EXHIBIT 10.17
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as
of December 31, 2002, by and among AGCO CORPORATION, a Delaware corporation
("AGCO"), the Subsidiaries of AGCO signatory hereto (together with AGCO, each
referred to herein collectively as the "Borrowers" and individually as a
"Borrower"); the banks, financial institutions and other institutional lenders
party to the Credit Agreement (as defined below) (the "Lenders"); COOPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", CANADIAN BRANCH,
as Canadian administrative agent for the Canadian Facility Lenders (the
"Canadian Administrative Agent"), and COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as
administrative agent for the Lenders (the "Administrative Agent");
W I T N E S S E T H:
WHEREAS, the Borrowers, the Administrative Agent, the Canadian
Administrative Agent and the Lenders are parties to that certain Credit
Agreement dated as of April 17, 2001 (as amended, restated, supplemented or
modified from time to time, the "Credit Agreement"); and
WHEREAS, the Borrowers have requested that certain terms and conditions
of the Credit Agreement be amended, and the Lenders, the Canadian Administrative
Agent and the Administrative Agent have agreed to the requested amendments on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree that
all capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Credit Agreement, and further agree as follows:
SECTION 1. Amendments to Section 1.1. Section 1.1 of the Credit
Agreement, Certain Defined Terms, is hereby amended by deleting the existing
definitions of "Applicable Margin" and "General Syndication Closing Date" set
forth therein in the entirety and inserting the following, respectively, in lieu
thereof:
"Applicable Margin" means, as of any date of determination,
the applicable percentage indicated below which corresponds to the
Senior Debt Ratio of AGCO indicated below:
----------------- --------------- ------------------ -----------------
Senior Debt Applicable Applicable Margin Applicable Margin
Ratio Margin for LIBO for Base Rate for Unused Fee
Rate Advances Advances
----------------- --------------- ------------------ -----------------
Greater than or 2.75% 1.50% 0.50%
equal to 2.50
----------------- --------------- ------------------ -----------------
Greater than or 2.50% 1.25% 0.50%
equal to 2.00 to
1.00 but less
than 2.50 to 1.00
----------------- --------------- ------------------ -----------------
Greater than or 2.25% 1.00% 0.45%
equal to 1.50 to
1.00 but less
than 2.00 to 1.00
----------------- --------------- ------------------ -----------------
Less than 1.50 to 1.875% 0.625% 0.40%
1.00
----------------- --------------- ------------------ -----------------
The Applicable Margin for each Advance shall be determined by reference
to the Senior Debt Ratio in effect from time to time at the end of each
fiscal quarter based on the financial statement for the most recently
ended fiscal quarter and the three immediately preceding completed
fiscal quarters; provided, however, that (a) no change in the
Applicable Margin shall be effective until three Business Days after
the date on which the Administrative Agent receives financial
statements pursuant to Section 6.1(b) and (c), as the case may be, and
a certificate of the Chief Financial Officer of AGCO demonstrating such
ratio, attaching thereto a schedule in form reasonably satisfactory to
the Administrative Agent of the computations used by AGCO in
determining such Senior Debt Ratio, and (b) the Applicable Margin shall
be the highest interest rate margin set forth above with respect to the
applicable Advances and Unused Fee, respectively, (i) for the period
commencing on January 1, 2003, through and including June 30, 2003,
(ii) if AGCO has not submitted to the Administrative Agent the
information described in clause (a) of this proviso as and when
required under Section 6.1(b) or (c), as the case may be, for so long
as such information has not been received by the Administrative Agent,
and (iii) at the election of the Administrative Agent or the Required
Lenders, upon the occurrence and during the continuation of any Event
of Default (whether or not the Default Rate of interest shall then be
in effect).
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"General Syndication Closing Date" has the meaning set forth
in Section 10.7(i) hereof."
SECTION 2. Amendments to Section 7.19. Section 7.19 of the
Credit Agreement, Financial Covenants, is hereby amended by deleting paragraphs
(a) and (b) thereof in the entirety and inserting the following, respectively,
in lieu of such paragraphs (a) and (b):
(a) Total Debt Ratio. AGCO shall not allow, as of the end
of each fiscal quarter of AGCO, the Total Debt Ratio to exceed the
ratio set forth below for the applicable fiscal quarter corresponding
thereto:
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Fiscal Quarters Ending: Ratio:
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June 30, 2001 6.00 to 1.00
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September 30, 2001 5.90 to 1.00
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December 31, 2001 5.60 to 1.00
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March 31, 2002 5.25 to 1.00
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June 30, 2002 5.00 to 1.00
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September 30, 2002 4.75 to 1.00
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December 31, 2002, through September 30, 4.75 to 1.00
2003
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December 31, 2003, through June 30, 2004 4.50 to 1.00
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September 30, 2004 4.25 to 1.00
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December 31, 2004 4.00 to 1.00
-------------------------------------------- -----------------------
March 31, 2005, and thereafter 3.50 to 1.00
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(b) Senior Debt Ratio. AGCO shall not allow, as of the
end of each fiscal quarter of AGCO, the Senior Debt Ratio to exceed the
ratio set forth below for the applicable fiscal quarter corresponding
thereto:
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Fiscal Quarters Ending: Ratio:
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June 30, 2001 3.25 to 1.00
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September 30, 2001 3.25 to 1.00
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December 31, 2001 3.00 to 1.00
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March 31, 2002, through June 30, 2002 2.75 to 1.00
-------------------------------------------- -------------------------
September 30, 2002 2.50 to 1.00
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December 31, 2002, through December 31, 2.75 to 1.00
2003
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March 31, 2004, through December 31, 2004 2.50 to 1.00
-------------------------------------------- -------------------------
March 31, 2005, and thereafter 2.25 to 1.00
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SECTION 3. Representations and Warranties. Each of AGCO and the other
Borrowers represents and warrants as follows:
(a) The execution, delivery and performance by each Borrower of
this Amendment and the other transactions contemplated hereby, are within such
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Borrower's charter or by-laws;
(ii) violate any Applicable Law (including, without limitation, to the extent
applicable, the Securities Exchange Act of 1934, the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of 1970 and any
similar statute); (iii) conflict with or result in the breach of, or constitute
a default under, any contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument binding on or affecting any Borrower, any of
its Subsidiaries or any of their properties (including the Material Contracts,
the Senior Note Documents and the Subordinated Note Documents); or (iv) except
for the Liens created under the Security Documents, result in or require the
creation or imposition of any Lien upon or with respect to any of the properties
of any Borrower or any of its Subsidiaries;
(b) No authorization or approval or other action by, and no notice
to or filing with, any Governmental Authority or regulatory body or any other
third party is required for the due execution, delivery, recordation, filing or
performance by any Borrower of
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this Amendment and each other Loan Document contemplated hereby to which it is
or is to be a party, or for the consummation of the transactions contemplated
hereby;
(c) This Amendment and each other document required to be
delivered by a Borrower hereunder has been duly executed and delivered by each
Borrower thereto, and constitutes the legal, valid and binding obligation of
each Borrower thereto, enforceable against such Borrower in accordance with its
terms;
(d) The representations and warranties contained in Article 4 of
the Credit Agreement, and in each of the other Loan Documents, are true and
correct on and as of the date hereof as though made on and as of such date,
other than any such representations and warranties that, by their terms,
expressly refer to an earlier date; and
(e) No event has occurred and is continuing which constitutes an
Event of Default or would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
SECTION 4. Conditions Precedent to Effectiveness of this Amendment.
This Amendment shall be effective as of the date first set forth above when the
Administrative Agent shall have received, in form and substance satisfactory to
it, each of the following:
(a) this Amendment, duly executed by the Borrowers, the
Administrative Agent and the Required Lenders;
(b) an amendment fee for the account of each Lender that delivered
to the Administrative Agent prior to 5:00 p.m. (New York City time) on December
23, 2002, such Lender's executed consent to the terms of this Amendment (as
described in the Amendment Summary distributed to the Lenders via IntraLinks on
December 9, 2002), in an amount equal to fifteen (15) basis points of each such
Lender's Commitment; and
(c) the payment of such other fees, and the delivery of such other
documents, instruments, and information, as the Administrative Agent may
reasonably request.
SECTION 5. Reference to and Effect on the Credit Agreement. Upon the
effectiveness of this Amendment as set forth in Section 4 hereof, on and after
the date hereof, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import shall mean and be a
reference to the Credit Agreement as amended hereby, and each reference in the
Notes and the other Loan Documents to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended hereby.
SECTION 6. Costs, Expenses and Taxes. The Borrowers agree, jointly and
severally, to pay on demand all costs and expenses of the Administrative Agent
in connection with the preparation, execution and delivery of this Amendment and
the other
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instruments and documents to be delivered hereunder (including, without
limitation, the fees and expenses of counsel for the Administrative Agent with
respect thereto).
SECTION 7. No Other Amendments. Except as otherwise expressed herein,
the execution, delivery and effectiveness of this Amendment shall not operate as
a waiver of any right, power or remedy of the Agents or the Lenders under the
Credit Agreement, or any of the other Loan Documents, nor constitute a waiver of
any provision of the Credit Agreement or any of the other Loan Documents. Except
for the amendment set forth above, the text of the Credit Agreement and all
other Loan Documents shall remain unchanged and in full force and effect and the
Borrowers hereby ratify and confirm their respective obligations thereunder.
This Amendment shall not constitute a modification of the Credit Agreement or a
course of dealing with the Administrative Agent at variance with the Credit
Agreement such as to require further notice by the Administrative Agent to
require strict compliance with the terms of the Credit Agreement and the other
Loan Documents in the future, except as expressly set forth herein. The
Borrowers acknowledge and expressly agree that the Agents and the Lenders
reserve the right to, and do in fact, require strict compliance with all terms
and provisions of the Credit Agreement and the other Loan Documents (in each
case as amended hereby).
SECTION 8. Execution in Counterparts. This Amendment may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed to be an original and all of which taken together shall constitute but
one and the same instrument. Delivery of a signature page hereto by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 9. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws (without giving effect to the conflicts
of laws principles thereof) of the State of New York.
SECTION 10. Final Agreement. This Amendment represents the final
agreement between the Borrowers, the Administrative Agent, the Canadian
Administrative Agent and the Lenders as to the subject matter hereof and may not
be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the
parties. The Amendment shall constitute a Loan Document for all purposes.
[The remainder of the page is intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWERS: AGCO CORPORATION
By:
-------------------------------
Title:
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AG-CHEM EQUIPMENT CO., INC.
(f/k/a Agri Acquisition Corp.)
By:
-------------------------------
Title:
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AGCO LIMITED
By:
-------------------------------
Title:
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AGCO S.A.
By:
-------------------------------
Title:
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AGCO INTERNATIONAL LIMITED
By:
-------------------------------
Title:
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[SIGNATURES CONTINUED ON NEXT PAGE]
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AGCO HOLDING B.V.
By:
-------------------------------
Title:
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AGCO VERTRIEBS GMBH
By:
-------------------------------
Title:
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AGCO GMBH & CO.
By:
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Title:
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By:
-------------------------------
Title:
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AGCO CANADA, LTD.
By:
-------------------------------
Title:
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[SIGNATURES CONTINUED ON NEXT PAGE]
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AGENTS AND LENDERS: COOPERATIEVE CENTRALE
AIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND," NEW YORK
BRANCH, as
Administrative Agent, a Lender and
Multi-Currency Issuing Bank
By:
-------------------------------
Title:
-----------------------------
By:
-------------------------------
Title:
-----------------------------
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND," CANADIAN
BRANCH, as Canadian Administrative
Agent, a Canadian Facility Lender
and Canadian Issuing Bank
By:
-------------------------------
Title:
-----------------------------
By:
-------------------------------
Title:
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[SIGNATURES CONTINUED ON NEXT PAGE]
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CREDIT SUISSE FIRST BOSTON
By:
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Title:
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By:
--------------------------------
Title:
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SUNTRUST BANK
By:
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Title:
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COBANK, ACB
By:
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Title:
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BEAR XXXXXXX CORPORATE LENDING INC.
By:
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Title:
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HSBC BANK USA
By:
--------------------------------
Title:
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[SIGNATURES CONTINUED ON NEXT PAGE]
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NATEXIS BANQUES POPULAIRES
By:
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Title:
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By:
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Title:
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U.S. BANK NATIONAL ASSOCIATION
By:
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Title:
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BANK OF TOKYO-MITSUBISHI, LTD
By:
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Title:
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CREDIT INDUSTRIEL ET COMMERCIAL
By:
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Title:
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[SIGNATURES CONTINUED ON NEXT PAGE]
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XXXXXXX XXXX CREDIT BANK,
as a General Syndication
Participant
By:
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Title:
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FARM CREDIT SERVICES OF
AMERICA, PCA, as a General
Syndication Participant
By:
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Title:
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