Conditions Precedent to Agreement Date. The effectiveness of this Agreement and the obligation of each Lender to make its Pro Rata Share of the Term Loan on the Agreement Date, is subject to the satisfaction of the following conditions precedent: (a) The Lenders shall be satisfied that, in connection with the initial borrowing of the Term Loan hereunder, prior to or simultaneously with such initial borrowing of the Term Loan, notice of redemption has been given to the trustee for the European Subordinated Notes and all amounts necessary for the repayment in full of the European Subordinated Notes upon the redemption date shall have been deposited with such Trustee; (b) The Administrative Agent shall have received, on or before the Agreement Date, the following, each dated such date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified): (i) This Agreement, duly executed and delivered by the Borrower, the Administrative Agent, and each Lender; (ii) The Fee Letter, duly executed and delivered by the Borrower; (iii) Copies of the resolutions of the Managing Officers (Geschäftsführer) of the Borrower and of the Board of Directors of each Guarantor, in each case, approving the execution and delivery of this Agreement and certified by the secretary or other similar officer of such Loan Party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement; (iv) A copy of the charter of the Borrower and each amendment thereto, certified (as of a date reasonably near the Agreement Date), if appropriate in the jurisdiction where the Borrower is organized, by an appropriate governmental official as being a true and correct copy thereof; (v) For AGCO and each Guarantor, a copy of a certificate of the Secretary of State (or other applicable Governmental Authority) of the State of formation or organization of such Loan Party, dated reasonably near the Agreement Date, listing the charter of such Person and each amendment thereto on file in his/her office and certifying that (x) such amendments are the only amendments to such Person’s charter on file in his/her office; (y) such Person has paid all franchise taxes to the date of such certificate; and (z) such Person is duly incorporated and in good standing or presently subsisting under the laws of such state; (vi) A certificate of the Borrower and each Guarantor, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary, or by other appropriate officers of it, dated the Agreement Date (the statements made in such certificate shall be true on and as of the Agreement Date), certifying as to (x) the absence of any amendments to the charter of such Person since the date of the certificate referred to in clause (iv) and (v) above, as applicable; (y) a true and correct copy of the bylaws (or similar governing document) of the Borrower or such Guarantor as in effect on the Agreement Date; and (z) the due incorporation or formation and good standing of the Borrower or such Guarantor organized under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of such Person; (vii) A certificate of the Secretary or an Assistant Secretary or other appropriate officer of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor authorized to sign this Agreement or the other Loan Documents to which it is or is to be a party and the other documents to be delivered hereunder and thereunder; (viii) Each of the Guaranty Agreements duly executed by each Guarantor existing as of the Agreement Date, each such Guaranty Agreement to be in form and substance satisfactory to the Administrative Agent; and (ix) A copy of the quotaholder’s resolution (Gesellschafterversammlungsbeschluss) of the Borrower approving the execution and delivery of this Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement; (c) The Administrative Agent shall be satisfied that no default exists under AGCO Revolving Credit Agreement or any Subordinated Debt Document; (d) There shall not have occurred any event, development or circumstance since December 31, 2010 (x) that has caused or could reasonably be expected to cause a material adverse condition or material adverse change in or affecting (i) the condition (financial or otherwise), results of operation, assets, properties or liabilities (actual or contingent) of AGCO and its respective Subsidiaries, taken as a whole; (ii) the ability of the Borrower to repay the credit to be extended under this Agreement, or (iii) the validity or enforceability of any of the Loan Documents; or (y) that calls into question in any material respect the projections delivered to the Administrative Agent prior to the Agreement Date or any material assumption on which such projections were prepared; (e) There shall exist no action, suit, investigation, litigation or proceeding affecting AGCO or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that could have a Material Adverse Effect or impair the validity or enforceability of any Loan Document; (f) The Administrative Agent shall have received the unaudited financial statements of the Borrower as at December 31, 2009 and for the fiscal year then ended; (g) The Administrative Agent shall have received detailed projections for AGCO and its Subsidiaries for fiscal years 2011 through 2014, prepared by officers of AGCO, in form and substance satisfactory to the Administrative Agent; (h) All governmental and third party approvals necessary or, in the discretion of the Administrative Agent, advisable in connection with the transactions contemplated by this Agreement and the continuing operations of AGCO and its Subsidiaries shall have been received and be in full force and effect; (i) A favorable opinion of (A) Xxxxxxxx Xxxxxxx LLP, counsel to the Loan Parties, and (B) Pestalozzi Attorneys at Law Ltd, Swiss counsel to the Loan Parties; (j) [Intentionally omitted]; (k) The Administrative Agent shall have received all required internal know-your-customer documents, certificates and approvals as the Administrative Agent may reasonably request; (l) The Borrower shall have paid all fees and expenses (including the fees under the Fee Letter and fees and expenses of counsel) of the Administrative Agent and Lenders that are due and payable on the Agreement Date and are in compliance with all terms of the Fee Letter on or before the Agreement Date; (m) The Administrative Agent shall be satisfied that the representations and warranties contained in each Loan Document will be correct on and as of the Agreement Date before and after giving effect to the making of the Term Loan and to the application of the proceeds therefrom, as though made on and as of such date; (n) The Administrative Agent shall be satisfied that no event shall have occurred and be continuing, or would result from the making of the Term Loan or from the application of the proceeds therefrom, that constitutes or would constitute a Default or Event of Default; (o) At least three (3) Business Days prior to the Agreement Date, Administrative Agent shall have received a funding indemnity letter from the Borrower, pursuant to which the Borrower agrees to be pay losses with respect the funding of the Term Loan in Euros on the Agreement Date, in form and substance acceptable to Administrative Agent; and (p) The Administrative Agent shall have received such other instruments, documents or agreements as the Administrative Agent may reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Agco Corp /De), Credit Agreement (Agco Corp /De)
Conditions Precedent to Agreement Date. The effectiveness of this Agreement and the obligation of each Lender to make its Pro Rata Share of the Term Loan on the Agreement Date, is subject to the satisfaction of the following conditions precedent:
(a) The Lenders shall be satisfied that, in connection with the initial borrowing of the Term Loan hereunder, prior to or simultaneously with such initial borrowing of the Term Loan, notice of redemption has been given to the trustee for the European Subordinated Notes and all amounts necessary for the repayment in full of the European Subordinated Notes upon the redemption date shall have been deposited with such Trustee;
(b) The Administrative Agent shall have received, on or before the Agreement Date, the following, each dated such date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified):
(i) This Agreement, duly executed and delivered by the Borrower, the Administrative Agent, and each Lender;
(ii) The Fee Letter, duly executed and delivered by the Borrower;
(iii) Copies of the resolutions of the Managing Officers (Geschäftsführer) of the Borrower and of the Board of Directors of each GuarantorAGCO, in each case, approving the execution and delivery of this Agreement and certified by the secretary or other similar officer of such Loan Party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement;
(iv) A copy of the charter of the Borrower and each amendment thereto, certified (as of a date reasonably near the Agreement Date), if appropriate in the jurisdiction where the Borrower is organized, by an appropriate governmental official as being a true and correct copy thereof;
(v) For AGCO and each GuarantorAGCO, a copy of a certificate of the Secretary of State (or other applicable Governmental Authority) of the State of formation or organization of such Loan Party, dated reasonably near the Agreement Date, listing the charter of such Person AGCO and each amendment thereto on file in his/her office and certifying that (x) such amendments are the only amendments to such PersonAGCO’s charter on file in his/her office; (y) such Person AGCO has paid all franchise taxes to the date of such certificate; and (z) such Person AGCO is duly incorporated and in good standing or presently subsisting under the laws of such state;
(vi) A certificate of the Borrower and each GuarantorAGCO, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary, or by other appropriate officers of it, dated as of the Agreement Date (the statements made in such certificate shall be true on and as of the Agreement Date), certifying as to (x) the absence of any amendments to the charter of such Person since the date of the certificate referred to in clause (iv) and (v) above, as applicable; (y) a true and correct copy of the bylaws (or similar governing document) of the Borrower or such Guarantor AGCO as in effect on the Agreement Date; and (z) the due incorporation or formation and good standing of the Borrower or such Guarantor and AGCO organized under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of such Person;
(vii) A certificate of the Secretary or an Assistant Secretary or other appropriate officer of the Borrower and each Guarantor AGCO certifying the names and true signatures of the officers of the Borrower and such Guarantor AGCO authorized to sign this Agreement or the other Loan Documents to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(viii) Each of the The Guaranty Agreements Agreement duly executed by each Guarantor existing as of the Agreement DateAGCO, each such Guaranty Agreement to be in form and substance satisfactory to the Administrative Agent; and
(ix) A copy of the quotaholder’s resolution (Gesellschafterversammlungsbeschluss) of the Borrower approving the execution and delivery of this Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement;
(cb) The Administrative Agent shall be satisfied that no default exists under AGCO Revolving Credit Agreement or any Subordinated Debt DocumentAgreement;
(d) There shall not have occurred any event, development or circumstance since December 31, 2010 (x) that has caused or could reasonably be expected to cause a material adverse condition or material adverse change in or affecting (i) the condition (financial or otherwise), results of operation, assets, properties or liabilities (actual or contingent) of AGCO and its respective Subsidiaries, taken as a whole; (ii) the ability of the Borrower to repay the credit to be extended under this Agreement, or (iii) the validity or enforceability of any of the Loan Documents; or (y) that calls into question in any material respect the projections delivered to the Administrative Agent prior to the Agreement Date or any material assumption on which such projections were prepared;
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting AGCO or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that could have a Material Adverse Effect or impair the validity or enforceability of any Loan Document;
(f) The Administrative Agent shall have received the unaudited financial statements of the Borrower as at December 31, 2009 and for the fiscal year then ended;
(g) The Administrative Agent shall have received detailed projections for AGCO and its Subsidiaries for fiscal years 2011 through 2014, prepared by officers of AGCO, in form and substance satisfactory to the Administrative Agent;
(h) All governmental and third party approvals necessary or, in the discretion of the Administrative Agent, advisable in connection with the transactions contemplated by this Agreement and the continuing operations of AGCO and its Subsidiaries shall have been received and be in full force and effect;
(i) A favorable opinion of (A) Xxxxxxxx Xxxxxxx LLP, counsel to the Loan Parties, and (B) Pestalozzi Attorneys at Law Ltd, Swiss counsel to the Loan Parties;
(j) [Intentionally omitted];
(k) The Administrative Agent shall have received all required internal know-your-customer documents, certificates and approvals as the Administrative Agent may reasonably request;
(l) The Borrower shall have paid all fees and expenses (including the fees under the Fee Letter and fees and expenses of counsel) of the Administrative Agent and Lenders that are due and payable on the Agreement Date and are in compliance with all terms of the Fee Letter on or before the Agreement Date;
(m) The Administrative Agent shall be satisfied that the representations and warranties contained in each Loan Document will be correct on and as of the Agreement Date before and after giving effect to the making of the Term Loan and to the application of the proceeds therefrom, as though made on and as of such date;
(n) The Administrative Agent shall be satisfied that no event shall have occurred and be continuing, or would result from the making of the Term Loan or from the application of the proceeds therefrom, that constitutes or would constitute a Default or Event of Default;
(o) At least three (3) Business Days prior to the Agreement Date, Administrative Agent shall have received a funding indemnity letter from the Borrower, pursuant to which the Borrower agrees to be pay losses with respect the funding of the Term Loan in Euros on the Agreement Date, in form and substance acceptable to Administrative Agent; and
(p) The Administrative Agent shall have received such other instruments, documents or agreements as the Administrative Agent may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Agco Corp /De)
Conditions Precedent to Agreement Date. The effectiveness of this Agreement and the obligation of each Lender to make its Pro Rata Share the Loans comprising the initial Borrowing hereunder and the obligation of any Issuing Bank to issue the Term Loan on the Agreement Dateinitial Letters of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Lenders shall be satisfied that, in connection with the initial borrowing of the Term Loan Borrowing hereunder, prior to or simultaneously with such initial borrowing of the Term LoanBorrowing, notice of redemption has been given to the trustee for the European Subordinated Notes and all amounts necessary for owing under the repayment in full of the European Subordinated Notes upon the redemption date Existing Credit Agreement shall have been deposited with such Trusteepaid in full and all commitments to lend thereunder shall be terminated;
(b) The Administrative Agent shall have received, on or before the Agreement Date, the following, each dated such date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified):
(i) This Agreement, duly executed and delivered by the BorrowerBorrowers, the Administrative Agent, Agent and the delivery of a Lender Addendum by each Lender;
(ii) The Fee Letter, duly executed and delivered by the BorrowerBorrowers;
(iii) Copies Certified copies of the resolutions of the Managing Officers (Geschäftsführer) of the Borrower and of the Board of Directors of each Guarantor, in each case, Borrower and Guarantor approving the execution and delivery of this Agreement and certified by the secretary or other similar officer of such Loan PartyAgreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement;
(iv) A copy of the charter of the each Borrower and each Guarantor that is a Foreign Subsidiary and each amendment thereto, certified (as of a date reasonably near the Agreement Date), if appropriate in the jurisdiction where the such Borrower or Guarantor is organized, by an appropriate governmental official as being a true and correct copy thereof;
(v) For AGCO and each GuarantorGuarantor that is not a Foreign Subsidiary, a copy of a certificate of the Secretary of State (or other applicable Governmental Authority) of the State of formation or organization of such Loan Party, dated reasonably near the Agreement Date, listing the charter of such Person and each amendment thereto on file in his/her office and certifying that (x) such amendments are the only amendments to such Person’s charter on file in his/her office; (y) such Person has paid all franchise taxes to the date of such certificate; and (z) such Person is duly incorporated and in good standing or presently subsisting under the laws of such state;
(vi) A certificate of the each Borrower and each Guarantor, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary, or by other appropriate officers of it, dated the Agreement Date (the statements made in such certificate shall be true on and as of the Agreement Date), certifying as to (x) the absence of any amendments to the charter of such Person since the date of the certificate referred to in clause (iv) and (v) above, as applicable; (y) a true and correct copy of the bylaws (or similar governing document) of the such Borrower or such Guarantor as in effect on the Agreement Date; and (z) the due incorporation or formation and good standing of the such Borrower or such Guarantor organized under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of such Person;
(vii) A certificate of the Secretary or an Assistant Secretary or other appropriate officer of the each Borrower and each Guarantor certifying the names and true signatures of the officers of the such Borrower and such Guarantor authorized to sign this Agreement or the other Loan Documents to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;.
(viii) Each of the Guaranty Agreements duly executed by each Guarantor existing as of the Agreement DatePerson specified on Schedule G-1, each such Guaranty Agreement to be in form and substance satisfactory to the Administrative Agent; and
(ix) A copy of the quotaholder’s resolution (Gesellschafterversammlungsbeschluss) of the Borrower approving the execution and delivery of this Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement;guaranteeing the obligations specified in such Schedule.
(c) The Administrative Agent shall be satisfied that no default exists under AGCO Revolving Credit Agreement or any Subordinated Debt Document;
(d) There shall not have occurred any event, development or circumstance since December 31, 2010 2007 (x) that has caused or could reasonably be expected to cause a material adverse condition or material adverse change in or affecting (i) the condition (financial or otherwise), results of operation, assets, properties or liabilities (actual or contingent) ), management, business, value or prospects of AGCO and its respective Subsidiaries, taken as a whole; (ii) the ability of the Borrower Borrowers to repay or to refinance the credit to be extended under this Agreement, or (iii) the validity or enforceability of any of the Loan Documents; or (y) that calls into question in any material respect the projections delivered to the Administrative Agent prior to the Agreement Date or any material assumption on which such projections were prepared;
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting AGCO or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that could have a Material Adverse Effect or impair the validity or enforceability of any Loan Document;.
(f) The Administrative Agent shall have received the unaudited audited Consolidated financial statements of the Borrower for AGCO and its Subsidiaries as at December 31, 2009 2007 and for the fiscal year then ended, and such financial statements shall be in form and substance satisfactory to the Administrative Agent;
(g) The Administrative Agent shall have received detailed projections for AGCO and its Subsidiaries for fiscal years 2011 2008 through 20142010, prepared by officers of AGCO, in form and substance satisfactory to the Administrative Agent;
(h) All governmental and third party approvals necessary or, in the discretion of the Administrative Agent, advisable in connection with the transactions contemplated by this Agreement and the continuing operations of AGCO and its Subsidiaries shall have been received and be in full force and effect;
(i) A favorable opinion of (A) Xxxxxxxx Xxxxxxx LLP, counsel to the Loan Parties, and (B) Pestalozzi Attorneys at Law Ltd, Swiss Dutch counsel to the Loan Parties and (C) United Kingdom counsel to the Loan Parties;
(j) [Intentionally omitted]A notice executed by AGCO addressed to each trustee under any Subordinated Debt Document stating that this Agreement and the Loan Documents are the “Bank Credit Agreement” (or similar defined term) under such Subordinated Debt Document;
(k) The Administrative Agent shall have received all required internal know-your-customer documents, certificates and approvals as the Administrative Agent may reasonably request;
(l) The Borrower AGCO shall have paid all fees and expenses (including the fees under the Fee Letter and fees and expenses of counsel) of the Administrative Agent and Lenders that are due and payable on the Agreement Date and are in compliance with all terms of the Fee Letter on or before the Agreement Date;
(m) The Administrative Agent shall be satisfied that the representations and warranties contained in each Loan Document will be correct on and as of the Agreement Date before and after giving effect to the making of the Term Loan and to the application of the proceeds therefrom, as though made on and as of such date;
(n) The Administrative Agent shall be satisfied that no event shall have occurred and be continuing, or would result from the making of the Term Loan or from the application of the proceeds therefrom, that constitutes or would constitute a Default or Event of Default;
(o) At least three (3) Business Days prior to the Agreement Date, Administrative Agent shall have received a funding indemnity letter from the Borrower, pursuant to which the Borrower agrees to be pay losses with respect the funding of the Term Loan in Euros on the Agreement Date, in form and substance acceptable to Administrative Agent; and
(pm) The Administrative Agent shall have received such other instrumentsapprovals, opinions or documents or agreements as the Administrative Agent may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Agco Corp /De)
Conditions Precedent to Agreement Date. The effectiveness of this Agreement and the obligation of each Lender to make its Pro Rata Share the Loans hereunder and the obligation of any Issuing Bank to issue the Term Loan on the Agreement Dateinitial Letters of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Lenders shall be satisfied that, in connection with the initial borrowing of the Term Loan Borrowing hereunder, prior to or simultaneously with such initial borrowing of the Term LoanBorrowing, notice of redemption has been given to the trustee for the European Subordinated Notes and all amounts necessary for owing under the repayment in full of the European Subordinated Notes upon the redemption date Existing Credit Agreement shall have been deposited with such Trusteepaid in full and all commitments to lend thereunder shall be terminated;
(b) The Administrative Agent shall have received, on or before the Agreement DateDate (except to the extent delivery of certain documents with respect to AGCO UK and AGCO BV after the Agreement Date is permitted under Section 5.15), the following, each dated such date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified):
(i) This Agreement, duly executed and delivered by the BorrowerBorrowers, the Administrative Agent, Agent and each Initial Lender;
(ii) The Fee Letter, duly executed and delivered by the BorrowerBorrowers;
(iii) Copies Each of the Guaranty Agreements duly executed by each Person specified on Schedule G, each such Guaranty Agreement to be in form and substance satisfactory to the Administrative Agent, and guaranteeing the obligations specified in such Schedule;
(iv) Certified copies of the resolutions of the Managing Officers (Geschäftsführer) of the Borrower and of the Board of Directors of each Guarantor, in each case, Borrower and Guarantor approving the execution and delivery of this Agreement and certified by the secretary or other similar officer of such Loan PartyDocument to which it is a party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement;
Agreement and the Loan Documents (iv) A copy except to the extent delivery of the charter of the Borrower such documents with respect to AGCO UK and each amendment thereto, certified (as of a date reasonably near AGCO BV after the Agreement DateDate is permitted under Section 5.15), if appropriate in the jurisdiction where the Borrower is organized, by an appropriate governmental official as being a true and correct copy thereof;
(v) For AGCO Such documents and each Guarantorcertificates as Administrative Agent may reasonably request relating to the organization, a copy of a certificate of the Secretary of State existence and good standing (or other the equivalent in the applicable Governmental Authorityjurisdiction) of the State of formation or organization of such each Loan Party, dated reasonably near the authorization of the Transactions, the identity, authority and capacity of each Responsible Employee authorized to act on behalf of a Loan Party in connection with the Loan Documents and any other legal matters relating to the Loan Parties, this Agreement, the other Loan Documents or the Transactions (except to the extent delivery of such documents with respect to AGCO UK and AGCO BV after the Agreement Date, listing the charter of such Person and each amendment thereto on file in his/her office and certifying that (x) such amendments are the only amendments to such Person’s charter on file in his/her office; (y) such Person has paid all franchise taxes to the date of such certificate; and (z) such Person Date is duly incorporated and in good standing or presently subsisting permitted under the laws of such stateSection 5.15);
(vi) A certificate Notice of Borrowing executed and delivered by AGCO to Administrative Agent pursuant to Section 2.2(a) with respect to the initial funding of the Borrower and each Guarantor, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary, or by other appropriate officers of it, dated the Agreement Date (the statements Loans to be made in such certificate shall be true on and as of the Agreement Date), certifying as to (x) the absence of any amendments to the charter of such Person since the date of the certificate referred to in clause (iv) and (v) above, as applicable; (y) a true and correct copy of the bylaws (or similar governing document) of the Borrower or such Guarantor as in effect on the Agreement Date; and (z) the due incorporation or formation and good standing of the Borrower or such Guarantor organized under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of such Person;and
(vii) A certificate of the Secretary or an Assistant Secretary or other appropriate officer of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor authorized to sign this Agreement or the other Loan Documents to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(viii) Each of the Guaranty Agreements duly executed by each Guarantor existing as of the Agreement Date, each such Guaranty Agreement to be in form and substance satisfactory to the Administrative Agent; and
(ix) A copy of the quotaholder’s resolution (Gesellschafterversammlungsbeschluss) of the Borrower approving the execution and delivery of this Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement;
(c) The Administrative Agent shall be satisfied that no default exists under AGCO Revolving Credit Agreement or any Subordinated Debt Document;
(d) There shall not have occurred any event, development or circumstance since December 31, 2010 (x) that has caused or could reasonably be expected to cause a material adverse condition or material adverse change in or affecting (i) the condition (financial or otherwise), results of operation, assets, properties or liabilities (actual or contingent) of AGCO and its respective Subsidiaries, taken as a whole; (ii) the ability of the Borrower to repay the credit to be extended under this Agreement, or (iii) the validity or enforceability of any of the Loan Documents; or (y) that calls into question in any material respect the projections delivered to the Administrative Agent prior to the Agreement Date or any material assumption on which such projections were prepared;
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting AGCO or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that could have a Material Adverse Effect or impair the validity or enforceability of any Loan Document;
(f) The Administrative Agent shall have received the unaudited financial statements of the Borrower as at December 31, 2009 and for the fiscal year then ended;
(g) The Administrative Agent shall have received detailed projections for AGCO and its Subsidiaries for fiscal years 2011 through 2014, prepared by officers of AGCO, in form and substance satisfactory to the Administrative Agent;
(h) All governmental and third party approvals necessary or, in the discretion of the Administrative Agent, advisable in connection with the transactions contemplated by this Agreement and the continuing operations of AGCO and its Subsidiaries shall have been received and be in full force and effect;
(i) A favorable opinion of (A) Xxxxxxxx Xxxxxxx LLP, counsel to the Loan Parties, and (B) Pestalozzi Attorneys at Law Ltd, Swiss internal counsel to AGCO BV and (C) internal counsel to AGCO UK (except to the Loan Partiesextent delivery of the opinions of counsel described in the preceding clauses (B) and (C) with respect to AGCO UK and AGCO BV after the Agreement Date is permitted under Section 5.15); and
(c) There shall be no Default or Event of Default hereunder as a result of (i) defaults under other indebtedness of AGCO and its Existing Subsidiaries in an aggregate amount in excess of $50,000,000, (ii) any judgments or orders for the payment of money of the types describe in Section 7.1(f) against AGCO or any Existing Subsidiary in an aggregate amount in excess of $50,000,000, or (iii) any bankruptcy or insolvency events of the types described in Section 7.1(e) relating to AGCO and the Existing Subsidiaries;
(j) [Intentionally omitted];
(kd) The Administrative Agent shall have received evidence (which evidence may include a certificate to such facts by a Responsible Employee of AGCO) that the Acquisition shall have been consummated on the Agreement Date (or shall be simultaneously with the initial funding of the initial extensions of credit hereunder) in accordance with the terms and conditions of the Acquisition Agreement and in accordance with all applicable requirements of law, and no conditions precedent or other terms or provisions of the Acquisition Documents shall have been amended or modified, and no condition shall have been waived or consent granted, in any respect that is material and adverse to the interest of the Lenders without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld or delayed), it being understood and agreed that (i) any amendment or modification of the Acquisition Agreement to provide for the payment of any of the cash consideration by Merger Sub rather than AGCO shall be deemed to not be material or adverse to the interest of the Lenders and (ii) any increase or decrease in the Merger Consideration (as defined in the Acquisition Agreement, and other than as a result of any adjustment to the Merger Consideration as provided in the Acquisition Agreement as in effect on September 30, 2011), or any change to the definition of Company Material Adverse Effect (as defined in the Acquisition Agreement), shall in each case be deemed to be material and adverse to the interest of the Lenders;
(e) The Administrative Agent shall have received a copy of the Acquisition Agreement and any amendments, supplements, annexes, schedules or modifications thereto, together with a certificate of a Responsible Employee of AGCO to the effect that attached thereto are true and complete copies of each such document in effect on the Agreement Date;
(f) The representations and warranties made by or on behalf of the Target and its Subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders shall be true and correct as of the Agreement Date but only to the extent that AGCO (or its Subsidiary) has the right to terminate its obligations under the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement;
(g) There shall not have occurred any event, development or circumstance since June 30, 2011 that has caused or could reasonably be expected to cause a Company Material Adverse Effect (as defined in the Acquisition Agreement) with respect to the Target and the Acquired Business;
(h) The Administrative Agent shall have received (i) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of AGCO and its Subsidiaries for the Fiscal Quarter ending September 30, 2011 prepared in conformity with GAAP; (ii) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Acquired Business for the two years ended December 31, 2010, in each case prepared in conformity with GAAP; and (iii) customary pro forma financial statements in a format acceptable for an offering memorandum in Rule 144A debt offerings;
(i) The Administrative Agent and the Lenders shall have received all information, documents, and certificates required internal by the Administrative Agent and the Lenders under “know-your-customer documentscustomer” and anti-money laundering rules and regulations, certificates including the USA Patriot Act (except to the extent delivery of such documents with respect to AGCO UK and approvals as AGCO BV after the Administrative Agent may reasonably request;Agreement Date is permitted under Section 5.15); and
(lj) The Borrower AGCO shall have paid all fees and expenses (including the fees under the Fee Letter and fees and expenses of counsel) of the Administrative Agent and Lenders that are due and payable on the Agreement Date Date, in each case which have been invoiced at least two Business Days before the Agreement Date, and are in compliance with all terms of the Fee Letter on or before the Agreement Date;
(m) The Administrative Agent shall be satisfied that the representations and warranties contained in each Loan Document will be correct on and as of the Agreement Date before and after giving effect to the making of the Term Loan and to the application of the proceeds therefrom, as though made on and as of such date;
(n) The Administrative Agent shall be satisfied that no event shall have occurred and be continuing, or would result from the making of the Term Loan or from the application of the proceeds therefrom, that constitutes or would constitute a Default or Event of Default;
(o) At least three (3) Business Days prior to the Agreement Date, Administrative Agent shall have received a funding indemnity letter from the Borrower, pursuant to which the Borrower agrees to be pay losses with respect the funding of the Term Loan in Euros on the Agreement Date, in form and substance acceptable to Administrative Agent; and
(p) The Administrative Agent shall have received such other instruments, documents or agreements as the Administrative Agent may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Agco Corp /De)
Conditions Precedent to Agreement Date. The effectiveness Agreement shall be effective, as of this Agreement and the obligation of each Lender to make its Pro Rata Share of the Term Loan on the Agreement Date, is subject to upon the satisfaction of the following the conditions precedent:
(a) The Lenders Administrative Agent shall be satisfied that, in connection with have received satisfactory evidence that the initial borrowing Obligations under this Agreement and the Loan Documents shall have a rating equivalent to at least "BB" (or the then equivalent grade) by S&P or "Ba2" (or the then equivalent grade) by Xxxxx'x as of the Term Loan hereunder, prior to or simultaneously with such initial borrowing of the Term Loan, notice of redemption has been given to the trustee for the European Subordinated Notes and all amounts necessary for the repayment in full of the European Subordinated Notes upon the redemption date shall have been deposited with such TrusteeAgreement Date;
(b) The Administrative Agent shall be satisfied that no default exists under any Material Contract or material Indebtedness of any Loan Party (including the Existing Capital Market Transactions) and that the Acquisition and the transactions contemplated herein shall not result in any such default;
(c) The Administrative Agent shall have received (i) audited Consolidated financial statements for AGCO and its Subsidiaries as at December 31, 2002 and for the fiscal year then ended, meeting the requirements of Regulation S-X for a Form S-1 registration statement under the Securities Act of 1933, as amended and (ii) unaudited Consolidated financial statements (which have been reviewed by the independent accountants for the Company as provided in Statement on Accounting Standards No. 71) of AGCO and its Subsidiaries as at June 30, 2003 and for the fiscal quarters ended after December 31, 2002 (together with a comparison to the unaudited Consolidated financial statements of AGCO and its Subsidiaries for the first two fiscal quarters in the fiscal year ended December 31, 2002), and all such financial statements shall be in form and substance satisfactory to Administrative Agent;
(d) The Administrative Agent shall have completed a due diligence investigation of Target and its Subsidiaries in such scope as may be reasonably required by the Administrative Agent, and a due diligence investigation of AGCO and its Subsidiaries in scope (to include, without limitation, an investigation of (i) legal, regulatory, tax, labor, environmental, insurance and pension matters and liabilities, actual 84 or contingent and including product liability matters, (ii) material properties, contracts, leases and debt agreements, and (iii) pending and threatened litigation), and the results of each such investigation shall be reasonably satisfactory to the Administrative Agent;
(e) The Administrative Agent shall have received detailed projections for fiscal years 2003 through 2008, prepared by officers of AGCO, in form and substance satisfactory to the Administrative Agent;
(f) There shall not have occurred any event, development or circumstance since December 31, 2002 (except as otherwise indicated) that has caused or could reasonably be expected to cause a material adverse condition or material adverse change in or affecting (i) the condition (financial or otherwise), results of operation, assets, liabilities, management, value or prospects of AGCO, Target and their respective Subsidiaries, taken as a whole, after giving effect to the Acquisition; (ii) the condition (financial or otherwise), results of operation, assets, liabilities, management, value or prospects of Target and its Subsidiaries, since June 30, 2003, (iii) the Acquisition, (iv) the ability of the Borrowers to repay or to refinance the credit to be extended under this Agreement, (v) the validity or enforceability of any of the Loan Documents; or (vi) that calls into question in any material respect the projections delivered to the Administrative Agent prior to the Agreement Date or any material assumption on which such projections were prepared;
(g) The Administrative Agent shall have received updated appraisal valuations of the "Fendt" trademark property of AGCO and its Subsidiaries prepared by appraisers satisfactory to Administrative Agent, in form and substance satisfactory to Administrative Agent and prepared by appraisers reasonably satisfactory to Administrative Agent;
(h) There shall exist no action, suit, investigation, litigation or proceeding affecting AGCO, Target or any of their respective Subsidiaries pending or threatened before any court, governmental agency or arbitrator that could have a Material Adverse Effect on AGCO or any Loan Party or purports to affect the legality, validity or enforceability of this Agreement, any other Loan Document or any L/C Related Document;
(i) The Administrative Agent shall be satisfied with the terms and conditions of the Acquisition and the corporate, tax, and ownership structure of AGCO and its Subsidiaries, giving effect to the Acquisition on a pro forma basis; and
(j) The Administrative Agent shall have received, on or before the Agreement Date, the following, each dated such date day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified):
(i) This Agreement, duly executed and delivered by the BorrowerBorrowers, the Administrative Agent, Lenders and each Lenderthe Agents;
(ii) The Fee Letter, duly executed and delivered by the BorrowerBorrowers;
(iii) Copies Certified copies of the resolutions of the Managing Officers (Geschäftsführer) of the Borrower and of the Board of Directors of each Guarantor, in each case, Borrower approving the execution and delivery of this Agreement and certified by the secretary or other similar officer of such Loan PartyAgreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement;
(iv) A copy of the charter of the each Borrower and each amendment thereto, certified (as of a date reasonably near the Agreement Date), if appropriate in the jurisdiction where the Borrower such Subsidiary is organized, by an appropriate governmental official as being a true and correct copy thereof;
(v) For AGCO and each GuarantorAGCO, a copy of a certificate of the Secretary of State (or other applicable Governmental Authority) of the State of formation or organization of such Loan PartyDelaware, dated reasonably near the Agreement Date, listing the charter of such Person AGCO and each amendment thereto on file in his/her office and certifying that (x) such amendments are the only amendments to such Person’s AGCO's charter on file in his/her office; (y) such Person AGCO has paid all franchise taxes to the date of such certificate; and (z) such Person AGCO is duly incorporated and in good standing or presently subsisting under the laws of such statethe State of Delaware;
(vi) A certificate of the Borrower and each GuarantorBorrower, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary, or by other appropriate officers of it, dated the Agreement Date (the statements made in such certificate shall be true on and as of the Agreement Date), certifying as to (x) the absence of any amendments to the charter of such Person since the date of the certificate referred to in clause (iv) and (v) above, as applicable; (y) a true and correct copy of the bylaws (or similar governing document) of the such Borrower or such Guarantor as in effect on the Agreement Date; and (z) the due incorporation or formation and good standing of the such Borrower or such Guarantor as a corporation organized under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of such Person;
(vii) A certificate of the Secretary or an Assistant Secretary or other appropriate officer of the each Borrower and each Guarantor certifying the names and true signatures of the officers of the such Borrower and such Guarantor authorized to sign this Agreement or the other Loan Documents to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(viii) Each Such financial, business and other information regarding each Loan Party and Target as the Lenders shall have requested, including without limitation information as to possible contingent liabilities, tax matters, environmental matters, obligations under ERISA, collective bargaining agreements and other arrangements with employees, annual consolidated financial statements dated December 31, 2002, of the Guaranty Agreements duly executed by each Guarantor existing as of the Agreement DateAGCO and its Restricted Subsidiaries and AGCO and its Subsidiaries, each such Guaranty Agreement to be in form and substance satisfactory to the Administrative Agent; andrespectively;
(ix) A copy of the quotaholder’s resolution (Gesellschafterversammlungsbeschluss) of the Borrower approving the execution and delivery of this Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement;
(c) The Administrative Agent shall be satisfied that no default exists under AGCO Revolving Credit Agreement or any Subordinated Debt Document;
(d) There shall not have occurred any event, development or circumstance since December 31, 2010 (x) that has caused or could reasonably be expected to cause a material adverse condition or material adverse change in or affecting (i) the condition (financial or otherwise), results of operation, assets, properties or liabilities (actual or contingent) of AGCO and its respective Subsidiaries, taken as a whole; (ii) the ability of the Borrower to repay the credit to be extended under this Agreement, or (iii) the validity or enforceability of any of the Loan Documents; or (y) that calls into question in any material respect the projections delivered to the Administrative Agent prior to the Agreement Date or any material assumption on which such projections were prepared;
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting AGCO or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that could have a Material Adverse Effect or impair the validity or enforceability of any Loan Document;
(f) The Administrative Agent shall have received the unaudited financial statements of the Borrower as at December 31, 2009 and for the fiscal year then ended;
(g) The Administrative Agent shall have received detailed projections for AGCO and its Subsidiaries for fiscal years 2011 through 2014, prepared by officers of AGCOletter, in form and substance satisfactory to the Administrative Agent;
(h) All governmental , from AGCO to KPMG, its independent certified public accountants, advising such accountants that the Administrative Agent and third party approvals necessary or, in the discretion Canadian Administrative Agent have been authorized to exercise all rights of AGCO to require such accountants to disclose any and all financial statements and any other information of any kind that they may have with respect to AGCO and its Subsidiaries and directing such accountants to comply with any reasonable request of the Administrative AgentAgent or the Canadian Administrative Agent for such information, advisable in connection with and also advising such accountants that the transactions contemplated by this Agreement Lenders have relied and will rely upon the continuing operations financial statements of AGCO and its Subsidiaries shall have been received and be examined by such accountants in full force and effectdetermining whether to enter into, or to take action or refrain from taking action under, the Loan Documents;
(ix) A favorable opinion of (ASchedule C-1, Schedule G-1, Schedule P-1, Schedule P-2, Schedule 4.1(b), Schedule 4.1(e), Schedule 4.1(i), Schedule 4.1(l), Schedule 4.1(n), Schedule 4.1(o), Schedule 4.1(p), Schedule 4.1(s), Schedule 4.1(t), Schedule 4.1(u), Schedule 4.1(v) Xxxxxxxx Xxxxxxx LLP, counsel and Schedule 5.19 to the Loan Parties, and (B) Pestalozzi Attorneys at Law Ltd, Swiss counsel to the Loan Parties;
(j) [Intentionally omitted];
(k) The Administrative Agent shall have received all required internal know-your-customer documents, certificates and approvals as the Administrative Agent may reasonably request;
(l) The Borrower shall have paid all fees and expenses (including the fees under the Fee Letter and fees and expenses of counsel) of the Administrative Agent and Lenders that are due and payable on the Agreement Date and are in compliance with all terms of the Fee Letter on or before the Agreement Date;
(m) The Administrative Agent shall be satisfied that the representations and warranties contained in each Loan Document will be correct on and as of the Agreement Date before and after giving effect to the making of the Term Loan and to the application of the proceeds therefrom, as though made on and as of such date;
(n) The Administrative Agent shall be satisfied that no event shall have occurred and be continuing, or would result from the making of the Term Loan or from the application of the proceeds therefrom, that constitutes or would constitute a Default or Event of Default;
(o) At least three (3) Business Days prior to the Agreement Date, Administrative Agent shall have received a funding indemnity letter from the Borrower, pursuant to which the Borrower agrees to be pay losses with respect the funding of the Term Loan in Euros on the Agreement Date, in form and substance acceptable to Administrative Agentthis Agreement; and
(pxi) The Administrative Agent shall have received such Such other instrumentsapprovals, opinions or documents or agreements as the Administrative Agent any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Agco Corp /De)
Conditions Precedent to Agreement Date. The effectiveness of this Agreement and the obligation of each Lender to make its Pro Rata Share the Loans hereunder and the obligation of any Issuing Bank to issue the Term Loan on the Agreement Dateinitial Letters of Credit, is subject to the satisfaction of the following conditions precedent:
(a) The Lenders shall be satisfied that, in connection with the initial borrowing of the Term Loan Borrowing hereunder, prior to or simultaneously with such initial borrowing of the Term LoanBorrowing, notice of redemption has been given to the trustee for the European Subordinated Notes and all amounts necessary for owing under the repayment in full of the European Subordinated Notes upon the redemption date Existing Credit Agreement shall have been deposited with such Trusteepaid in full and all commitments to lend thereunder shall be terminated;
(b) The Administrative Agent shall have received, on or before the Agreement Date, the following, each dated such date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified):
(i) This Agreement, duly executed and delivered by the BorrowerBorrowers, the Administrative Agent, Agent and each Initial Lender;
(ii) The Fee Letter, duly executed and delivered by the BorrowerBorrowers;
(iii) Copies Each of the Guaranty Agreements duly executed by each Person specified on Schedule G, each such Guaranty Agreement to be in form and substance satisfactory to the Administrative Agent, and guaranteeing the obligations specified in such Schedule;
(iv) Certified copies of the resolutions of the Managing Officers (Geschäftsführer) of the Borrower and of the Board of Directors of each Guarantor, in each case, Borrower and Guarantor approving the execution and delivery of this Agreement and certified by the secretary or other similar officer of such Loan PartyDocument to which it is a party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement;
(iv) A copy of Agreement and the charter of the Borrower and each amendment thereto, certified (as of a date reasonably near the Agreement Date), if appropriate in the jurisdiction where the Borrower is organized, by an appropriate governmental official as being a true and correct copy thereofLoan Documents;
(v) For AGCO Such documents and each Guarantorcertificates as Administrative Agent may reasonably request relating to the organization, a copy of a certificate of the Secretary of State existence and good standing (or other the equivalent in the applicable Governmental Authorityjurisdiction) of the State of formation or organization of such each Loan Party, dated reasonably near the Agreement Dateauthorization of the Transactions, listing the charter identity, authority and capacity of such Person each Responsible Employee authorized to act on behalf of a Loan Party in connection with the Loan Documents and each amendment thereto on file in his/her office and certifying that (x) such amendments are the only amendments to such Person’s charter on file in his/her office; (y) such Person has paid all franchise taxes any other legal matters relating to the date of such certificate; and (z) such Person is duly incorporated and in good standing Loan Parties, this Agreement, the other Loan Documents or presently subsisting under the laws of such stateTransactions;
(vi) A certificate Notice of Borrowing executed and delivered by AGCO to Administrative Agent pursuant to Section 2.2(a) with respect to the initial funding of the Borrower and each Guarantor, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary, or by other appropriate officers of it, dated the Agreement Date (the statements Loans to be made in such certificate shall be true on and as of the Agreement Date), certifying as to (x) the absence of any amendments to the charter of such Person since the date of the certificate referred to in clause (iv) and (v) above, as applicable; (y) a true and correct copy of the bylaws (or similar governing document) of the Borrower or such Guarantor as in effect on the Agreement Date; and (z) the due incorporation or formation and good standing of the Borrower or such Guarantor organized under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of such Person;and
(vii) A certificate of the Secretary or an Assistant Secretary or other appropriate officer of the Borrower and each Guarantor certifying the names and true signatures of the officers of the Borrower and such Guarantor authorized to sign this Agreement or the other Loan Documents to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(viii) Each of the Guaranty Agreements duly executed by each Guarantor existing as of the Agreement Date, each such Guaranty Agreement to be in form and substance satisfactory to the Administrative Agent; and
(ix) A copy of the quotaholder’s resolution (Gesellschafterversammlungsbeschluss) of the Borrower approving the execution and delivery of this Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement;
(c) The Administrative Agent shall be satisfied that no default exists under AGCO Revolving Credit Agreement or any Subordinated Debt Document;
(d) There shall not have occurred any event, development or circumstance since December 31, 2010 (x) that has caused or could reasonably be expected to cause a material adverse condition or material adverse change in or affecting (i) the condition (financial or otherwise), results of operation, assets, properties or liabilities (actual or contingent) of AGCO and its respective Subsidiaries, taken as a whole; (ii) the ability of the Borrower to repay the credit to be extended under this Agreement, or (iii) the validity or enforceability of any of the Loan Documents; or (y) that calls into question in any material respect the projections delivered to the Administrative Agent prior to the Agreement Date or any material assumption on which such projections were prepared;
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting AGCO or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that could have a Material Adverse Effect or impair the validity or enforceability of any Loan Document;
(f) The Administrative Agent shall have received the unaudited financial statements of the Borrower as at December 31, 2009 and for the fiscal year then ended;
(g) The Administrative Agent shall have received detailed projections for AGCO and its Subsidiaries for fiscal years 2011 through 2014, prepared by officers of AGCO, in form and substance satisfactory to the Administrative Agent;
(h) All governmental and third party approvals necessary or, in the discretion of the Administrative Agent, advisable in connection with the transactions contemplated by this Agreement and the continuing operations of AGCO and its Subsidiaries shall have been received and be in full force and effect;
(i) A favorable opinion of (A) Xxxxxxxx Xxxxxxx LLP, counsel to the Loan Parties, Parties and (B) Pestalozzi Attorneys at Law Ltd, Swiss internal counsel to the Loan PartiesAGCO BV;
(jc) [Intentionally omittedReserved];
(kd) The Administrative Agent and the Lenders shall have received (i) all information, documents, and certificates required internal by the Administrative Agent and the Lenders under “know-your-customer documentscustomer” and anti-money laundering rules and regulations, certificates including the USA Patriot Act and approvals (ii) at least five days prior to the Agreement Date, a Beneficial Ownership Certification from each Borrower that qualifies as a “legal entity customer” under the Administrative Agent may reasonably request;Beneficial Ownership Regulation; and
(le) The Borrower AGCO shall have paid all fees and expenses (including the fees under the Fee Letter and fees and expenses of counsel) of the Administrative Agent and Lenders that are due and payable on the Agreement Date Date, in each case which have been invoiced at least two Business Days before the Agreement Date, and are in compliance with all terms of the Fee Letter on or before the Agreement Date;
(m) The Administrative Agent shall be satisfied that the representations and warranties contained in each Loan Document will be correct on and as of the Agreement Date before and after giving effect to the making of the Term Loan and to the application of the proceeds therefrom, as though made on and as of such date;
(n) The Administrative Agent shall be satisfied that no event shall have occurred and be continuing, or would result from the making of the Term Loan or from the application of the proceeds therefrom, that constitutes or would constitute a Default or Event of Default;
(o) At least three (3) Business Days prior to the Agreement Date, Administrative Agent shall have received a funding indemnity letter from the Borrower, pursuant to which the Borrower agrees to be pay losses with respect the funding of the Term Loan in Euros on the Agreement Date, in form and substance acceptable to Administrative Agent; and
(p) The Administrative Agent shall have received such other instruments, documents or agreements as the Administrative Agent may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Agco Corp /De)
Conditions Precedent to Agreement Date. The effectiveness of this Agreement and the obligation of each Lender to make its Pro Rata Share of the Term Loan on the Agreement Date, is subject to the satisfaction of the following conditions precedent:
(a) The Lenders shall be satisfied that, in connection with the initial borrowing of the Term Loan hereunder, prior to or simultaneously with such initial borrowing of the Term Loan, notice of redemption has been given to the trustee for the European Subordinated Notes and all amounts necessary for the repayment in full of the European Subordinated Notes upon the redemption date shall have been deposited with such Trustee;
(b) The Administrative Agent shall have received, on or before the Agreement Date, the following, each dated such date (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified):
(i) This Agreement, duly executed and delivered by the Borrower, the Administrative Agent, and each Lender;
(ii) The Fee Letter, duly executed and delivered by the Borrower;
(iii) Copies of the resolutions of the Managing Officers (Geschäftsführer) of the Borrower and of the Board of Directors of each GuarantorAGCO, in each case, approving the execution and delivery of this Agreement and certified by the secretary or other similar officer of such Loan Party, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement;
(iv) A copy of the charter of the Borrower and each amendment thereto, certified (as of a date reasonably near the Agreement Date), if appropriate in the jurisdiction where the Borrower is organized, by an appropriate governmental official as being a true and correct copy thereof;
(v) For AGCO and each GuarantorAGCO, a copy of a certificate of the Secretary of State (or other applicable Governmental Authority) of the State of formation or organization of such Loan Party, dated reasonably near the Agreement Date, listing the charter of such Person AGCO and each amendment thereto on file in his/her office and certifying that (x) such amendments are the only amendments to such PersonAGCO’s charter on file in his/her office; (y) such Person AGCO has paid all franchise taxes to the date of such certificate; and (z) such Person AGCO is duly incorporated and in good standing or presently subsisting under the laws of such state;
(vi) A certificate of the Borrower and each GuarantorAGCO, signed on behalf of such Person by its President or a Vice President and its Secretary or any Assistant Secretary, or by other appropriate officers of it, dated as of the Agreement Date (the statements made in such certificate shall be true on and as of the Agreement Date), certifying as to (x) the absence of any amendments to the charter of such Person since the date of the certificate referred to in clause (iv) and (v) above, as applicable; (y) a true and correct copy of the bylaws (or similar governing document) of the Borrower or such Guarantor AGCO as in effect on the Agreement Date; and (z) the due incorporation or formation and good standing of the Borrower or such Guarantor and AGCO organized under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of such Person;
(vii) A certificate of the Secretary or an Assistant Secretary or other appropriate officer of the Borrower and each Guarantor AGCO certifying the names and true signatures of the officers of the Borrower and such Guarantor AGCO authorized to sign this Agreement or the other Loan Documents to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(viii) Each of the The Guaranty Agreements Agreement duly executed by each Guarantor existing as of the Agreement DateAGCO, each such Guaranty Agreement to be in form and substance satisfactory to the Administrative Agent; and
(ix) A copy of the quotaholder’s resolution (Gesellschafterversammlungsbeschluss) of the Borrower approving the execution and delivery of this Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement;
(cb) The Administrative Agent shall be satisfied that no default exists under AGCO Revolving Credit Agreement or any Subordinated Debt DocumentAgreement;
(dc) There shall not have occurred any event, development or circumstance since December 31, 2010 2015 (x) that has caused or could reasonably be expected to cause a material adverse condition or material adverse change in or affecting (i) the condition (financial or otherwise), results of operation, assets, properties or liabilities (actual or contingent) of AGCO and its respective Subsidiaries, taken as a whole; (ii) the ability of the Borrower to repay the credit to be extended under this Agreement, or (iii) the validity or enforceability of any of the Loan Documents; or (y) that calls into question in any material respect the projections delivered to the Administrative Agent prior to the Agreement Date or any material assumption on which such projections were prepared;
(ed) There shall exist no action, suit, investigation, litigation or proceeding affecting AGCO or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that could have a Material Adverse Effect or impair the validity or enforceability of any Loan Document;
(fe) The Administrative Agent shall have received the unaudited financial audited Consolidated balance sheets and related statements of the Borrower as at December 31income, 2009 stockholders’ equity and for the fiscal year then ended;
(g) The Administrative Agent shall have received detailed projections for cash flows of AGCO and its Subsidiaries for the fiscal years 2011 through 2014year ended December 31, 2015 prepared by officers of AGCO, in form and substance satisfactory to the Administrative Agentconformity with GAAP;
(hf) All governmental and third party approvals necessary or, in the discretion of the Administrative Agent, advisable in connection with the transactions contemplated by this Agreement and the continuing operations of AGCO and its Subsidiaries shall have been received and be in full force and effect;
(ig) A favorable opinion of (A) Xxxxxxxx Xxxxxxx LLP, counsel to the Loan Parties, and (B) Pestalozzi Attorneys at Law Ltd, Swiss counsel to the Loan Parties;
(jh) [Intentionally omitted];
(ki) The Administrative Agent and each of the Lenders shall have received all required internal know-your-customer information, documents, and certificates and approvals as required by the Administrative Agent may reasonably requestand the Lenders under “know-your-customer” and anti-money laundering rules and regulations, including the USA Patriot Act;
(lj) The Borrower shall have paid all fees and expenses (including the fees under the Fee Letter and fees and expenses of counsel) of the Administrative Agent and Lenders that are due and payable on the Agreement Date Date, in each case which have been invoiced at least two (2) Business Days before the Agreement Date, and are in compliance with all terms of the Fee Letter on or before the Agreement Date;
(mk) The Administrative Agent shall be satisfied that the representations and warranties contained in each Loan Document will be correct on and as of the Agreement Date before and after giving effect to the making of the Term Loan and to the application of the proceeds therefrom, as though made on and as of such date;
(nl) The Administrative Agent shall be satisfied that no event shall have occurred and be continuing, or would result from the making of the Term Loan or from the application of the proceeds therefrom, that constitutes or would constitute a Default or Event of Default;
(om) At least three (3) Business Days prior to the Agreement Date, the Administrative Agent shall have received a funding indemnity letter from the Borrower, pursuant to which the Borrower agrees to be pay losses with respect the funding of the Term Loan in Euros on the Agreement Date, in form and substance acceptable to the Administrative Agent;
(n) The Pandios Credit Agreement and the related “Loan Documents” thereunder shall have been duly executed and delivered to the Administrative Agent, and all conditions precedent to the effectiveness thereof shall have been satisfied or waived in accordance with the terms of the Pandios Credit Agreement; and
(po) The Administrative Agent shall have received such other instruments, documents or agreements as the Administrative Agent may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Agco Corp /De)
