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EXHIBIT 10.1
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CREDIT AGREEMENT
dated as of April 17, 2001
among
AGCO CORPORATION
and
CERTAIN SUBSIDIARIES NAMED HEREIN,
as Borrowers,
THE LENDERS NAMED HEREIN,
as Lenders,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
SUNTRUST BANK,
and
CREDIT SUISSE FIRST BOSTON,
as Co-Syndication Agents,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
COBANK, ACB,
and
BEAR XXXXXXX CORPORATE LENDING INC.,
as Co-Documentation Agents,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", CANADIAN BRANCH,
as Canadian Administrative Agent,
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
as Administrative Agent
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TABLE OF CONTENTS
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ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS................................................2
Section 1.1 Certain Defined Terms................................................2
Section 1.2 Computation of Time Periods.........................................40
Section 1.3 Accounting Terms....................................................40
Section 1.4 Currency Equivalents................................................40
ARTICLE 2. AMOUNTS AND TERMS OF THE ADVANCES AND
THE LETTERS OF CREDIT..........................................................41
Section 2.1 Extension of Credit.................................................41
Section 2.2 Making the Advances.................................................42
Section 2.3 Reduction of the Commitments........................................48
Section 2.4 Prepayments and Deposits............................................48
Section 2.5 Interest............................................................51
Section 2.6 Fees................................................................51
Section 2.7 Conversion and Designation of Interest Periods......................53
Section 2.8 Payments and Computations...........................................54
Section 2.9 Sharing of Payments, Etc............................................56
Section 2.10 Letters of Credit...................................................57
Section 2.11 Defaulting Lenders..................................................62
Section 2.12 Borrower Liability..................................................63
Section 2.13 Bankers' Acceptances and BA Equivalent Loans........................63
ARTICLE 3. CONDITIONS OF LENDING..........................................................66
Section 3.1 Conditions Precedent to Initial Borrowing...........................66
Section 3.2 Conditions Precedent to Each Borrowing and Issuance.................70
Section 3.3 Determinations Under Section 3.1....................................71
ARTICLE 4. REPRESENTATIONS AND WARRANTIES.................................................71
Section 4.1 Representations and Warranties of the Borrowers.....................71
Section 4.2 Survival of Representations and Warranties, etc.....................78
ARTICLE 5. AFFIRMATIVE COVENANTS..........................................................78
Section 5.1 Compliance with Laws, Etc...........................................78
Section 5.2 Preservation of Corporate Existence, Etc............................78
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Section 5.3 Payment of Taxes and Claims.........................................79
Section 5.4 Compliance with Environmental Laws..................................79
Section 5.5 Maintenance of Insurance............................................79
Section 5.6 Visitation Rights...................................................80
Section 5.7 Accounting Methods..................................................80
Section 5.8 Maintenance of Properties, Etc......................................81
Section 5.9 Payment of Indebtedness; Performance of Material Contracts..........81
Section 5.10 Foreign Subsidiary Guaranties, Etc..................................81
Section 5.11 ERISA...............................................................81
Section 5.12 Conduct of Business.................................................82
Section 5.13 Further Assurances..................................................82
Section 5.14 Broker's Claims.....................................................82
Section 5.15 Material Subsidiaries...............................................82
Section 5.16 Cash Concentration Accounts.........................................83
Section 5.17 Use of Proceeds.....................................................83
Section 5.18 Covenants of the Borrowing Subsidiaries.............................83
Section 5.19 Real Property Documents.............................................83
Section 5.20 Landlord and Warehouseman Waivers...................................83
Section 5.21 Canadian Bank Act Security Documents................................84
ARTICLE 6. INFORMATION COVENANTS..........................................................84
Section 6.1 Reporting Requirements..............................................84
Section 6.2 Access to Accountants...............................................88
ARTICLE 7. NEGATIVE COVENANTS.............................................................88
Section 7.1 Indebtedness........................................................88
Section 7.2 Limitation on Guaranties............................................89
Section 7.3 Liens, Etc..........................................................90
Section 7.4 Restricted Payments and Purchases...................................90
Section 7.5 Sale-Leasebacks.....................................................90
Section 7.6 Mergers, Etc........................................................91
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Section 7.7 Sales of Assets.....................................................92
Section 7.8 Investments.........................................................93
Section 7.9 Acquisitions........................................................94
Section 7.10 Change in Nature of Business........................................95
Section 7.11 Affiliate Transactions..............................................95
Section 7.12 Amendments..........................................................96
Section 7.13 Prepayments of Indebtedness.........................................96
Section 7.14 Restrictions; Negative Pledge.......................................96
Section 7.15 Accounting Changes..................................................97
Section 7.16 Issuance or Sales of Stock..........................................97
Section 7.17 Excess Proceeds.....................................................97
Section 7.18 No Notice Under Subordinated Note Indenture.........................97
Section 7.19 Financial Covenants.................................................97
Section 7.20 Covenants of the Borrowing Subsidiaries.............................99
ARTICLE 8. EVENTS OF DEFAULT.............................................................100
Section 8.1 Events of Default..................................................100
Section 8.2 Remedies...........................................................103
Section 8.3 Actions in Respect of the Letters of Credit........................104
ARTICLE 9. THE AGENTS....................................................................105
Section 9.1 Authorization and Action...........................................105
Section 9.2 Agents' Reliance, Etc..............................................105
Section 9.3 Agents, in their Individual Capacity and Affiliates................106
Section 9.4 Lender Credit Decision.............................................107
Section 9.5 Notice of Default or Event of Default..............................107
Section 9.6 Indemnification....................................................107
Section 9.7 Successor Agent....................................................108
Section 9.8 Agent May File Proofs of Claim.....................................108
Section 9.9 Co-Documentation Agent and Co-Syndication Agent....................109
Section 9.10 Collateral.........................................................109
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Section 9.11 Release of Collateral..............................................110
Section 9.12 Securitization Documents...........................................110
ARTICLE 10. MISCELLANEOUS................................................................110
Section 10.1 Amendments, Etc....................................................110
Section 10.2 Notices, Etc.......................................................112
Section 10.3 No Waiver: Remedies................................................112
Section 10.4 Costs and Expenses.................................................113
Section 10.5 Right of Set-off...................................................114
Section 10.6 Binding Effect.....................................................114
Section 10.7 Assignments and Participations.....................................115
Section 10.8 Marshalling; Payments Set Aside....................................120
ARTICLE 11. INCREASED COSTS, TAXES, ETC..................................................120
Section 11.1 Increased Costs, Etc...............................................120
Section 11.2 LIBO Breakage Costs................................................123
Section 11.3 Judgment Currency..................................................123
Section 11.4 Taxes..............................................................124
Section 11.5 Replacement of a Lender............................................127
ARTICLE 12. JURISDICTION.................................................................128
Section 12.1 Consent to Jurisdiction............................................128
Section 12.2 Governing Law......................................................129
Section 12.3 Execution in Counterparts..........................................129
Section 12.4 No Liability of the Issuing Banks..................................129
Section 12.5 Certain Cash Deposits..............................................130
Section 12.6 Waiver of Jury Trial...............................................131
EXHIBITS AND SCHEDULES:
Exhibit A Form of Assignment and Acceptance
Exhibit B-1 Form of Note (Multi-Currency Facility)
Exhibit B-2 Form of Note (Canadian Facility)
Exhibit B-3 Form of Notice of Rollover (Canadian Facility)
Exhibit C-1 Form of Notice of Borrowing (Multi-Currency Facility)
Exhibit C-2 Form of Notice of Borrowing (Canadian Facility)
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Exhibit D Form of Bankers' Acceptance
Exhibit E Form of Discount Note
Schedule I Commitments; Lending Offices
Schedule C-1 Closed Facilities to be sold
Schedule G-1 Guarantors; Guaranty Agreements
Schedule P-1 Pledgors
Schedule 2.10 Existing Letters of Credit
Schedule 4.1(b) Subsidiaries; Restricted Subsidiaries; Material Subsidiaries
Schedule 4.1(c) Joint Ventures
Schedule 4.1(e) Authorizations; Approvals
Schedule 4.1(i) Litigation
Schedule 4.1(l) ERISA Matters
Schedule 4.1(n) Environmental Matters
Schedule 4.1(o) Tax Matters
Schedule 4.1(p) Permitted Liens as of the Agreement Date
Schedule 4.1(s) Material Contracts
Schedule 4.1(t) Intellectual Property
Schedule 4.1(u) Indebtedness as of March 31, 2001
Schedule 5.17 Target Indebtedness to be paid on the Agreement Date
Schedule 5.19 Real Property Collateral
Schedule 7.1 Target Indebtedness to Survive the Agreement Date
Schedule 7.7 Assets to be Sold in connection with the Merger
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CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement") dated as of April 17, 2001 by and among
AGCO CORPORATION, a Delaware corporation ("AGCO"), AGCO CANADA, LTD., a
Saskatchewan corporation ("Canadian Subsidiary"), AG-CHEM EQUIPMENT CO., INC., a
Delaware corporation (known as "Agri Acquisition Corp." immediately prior to the
Agreement Date, "US Subsidiary"), AGCO LIMITED, an English corporation ("English
Subsidiary One"), AGCO INTERNATIONAL LIMITED, an English corporation ("English
Subsidiary Two"), AGCO S.A., a French societe anonyme ("French Subsidiary"),
AGCO HOLDING B.V., a Netherlands corporation ("Netherlands Subsidiary"), AGCO
VERTRIEBS GMBH, a German corporation ("German Subsidiary One"), and AGCO GMBH &
CO., a German corporation ("German Subsidiary Two"; AGCO, Canadian Subsidiary,
US Subsidiary, English Subsidiary One, English Subsidiary Two, French
Subsidiary, Netherlands Subsidiary, German Subsidiary One and German Subsidiary
Two are referred to herein collectively as the "Borrowers" and individually as a
"Borrower"); the lenders (the "Lenders") listed on the signature pages hereof;
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW
YORK BRANCH ("Rabobank"), SUNTRUST BANK and CREDIT SUISSE FIRST BOSTON, as
co-documentation agents (the "Co-Documentation Agents"); COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH
("Rabobank"), COBANK, ACB and BEAR XXXXXXX CORPORATE LENDING INC., as
co-syndication agents (the "Co-Syndication Agents"); COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", CANADIAN BRANCH ("Rabobank
Canada"), as Canadian administrative agent for the Canadian Facility Lenders
(together with any successor appointed pursuant to Article 9, the "Canadian
Administrative Agent"), and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as administrative agent for the
Lenders (together with any successor appointed pursuant to Article 9, the
"Administrative Agent").
WITNESSETH:
WHEREAS, each of the Borrowers (other than the US Subsidiary and German
Subsidiary Two), AGCO Manufacturing Limited, an English corporation, the
Administrative Agent and certain other financial institutions are parties to
that certain Second Amended and Restated Credit Agreement dated as of March 12,
1999 (as amended prior to the date hereof, the "Prior Credit Agreement"); and
WHEREAS, on or prior to the date hereof, and prior to the initial
advance hereunder, (a) AGCO will issue the Senior Unsecured Notes (as defined
herein) in an
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original face amount of $250,000,000, and certain Subsidiaries of AGCO will
enter into the European Securitization (as defined herein), and (b) Ag-Chem
Equipment Co., Inc., a Minnesota corporation (the "Target"), will merge into US
Subsidiary; and
WHEREAS, the Net Cash Proceeds of the Senior Unsecured Notes and the
European Securitization, together with the Advances hereunder, will be used (a)
on the date of the initial Advance hereunder to pay all Obligations (as defined
in the Prior Credit Agreement) outstanding under the Prior Credit Agreement, and
(b) on the Agreement Date or within thirty-five days thereafter, to repay
certain Indebtedness of the Target existing on the Agreement Date; and
WHEREAS, AGCO and each other Borrower operate related businesses, each
being integral to the other; and
WHEREAS, AGCO and each other Borrower acknowledge that the credit
facility provided hereby is and will be of direct interest, benefit and
advantage to each of them, and will enable them to achieve synergy and economies
of scale; and
WHEREAS, at the request of AGCO and each other Borrower, the Agents,
the Issuing Banks and the Lenders have agreed to extend the credit provided for
hereunder;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto hereby agree as follows:
ARTICLE 1.
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acceptance Fee" means, with respect to a Bankers' Acceptance accepted
by a Canadian Facility Lender under this Agreement, a fee payable in Canadian
Dollars by the Canadian Subsidiary to such Canadian Facility Lender calculated
on the face amount of the Bankers' Acceptance at a rate equal to the Applicable
Margin for LIBO Rate Advances, on the basis of the number of days in the
Contract Period and on the basis of a year of 365 days.
"Account" means the Administrative Agent's Account or the Canadian
Administrative Agent's Account, as applicable.
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"Adjusted Unused Multi-Currency Commitment" means, with respect to any
Multi-Currency Lender at any date of determination, (a) such Lender's
Multi-Currency Commitment at such time, minus (b) the Equivalent Amount in U.S.
dollars as of such date of (i) the aggregate principal amount of all
Multi-Currency Advances made by such Lender and outstanding on such date, plus
(ii) such Lender's Pro Rata Share of (x) the aggregate Available Amount of all
Letters of Credit issued for the account of any Multi-Currency Borrower and
outstanding on such date, plus (y) the aggregate principal amount of all Letter
of Credit Advances outstanding on such date in respect of Letters of Credit
issued for the account of any Multi-Currency Borrower.
"Administrative Agent" has the meaning specified in the introductory
paragraph of this Agreement.
"Administrative Agent's Account" means:
(a) for U.S. dollars, the account of the Administrative
Agent with The Bank of New York, ABA # 000000000, at its office at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No. 8026002533, Favor: Rabobank
Nederland, New York Branch, Ref. AGCO/Loan Syndications;
(b) for British pounds, the account of the Administrative
Agent maintained with Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", London Branch, in London, Swift # (XXXXXX0X), Account No.
1429957021, Favor: Rabobank Nederland, New York Branch, Ref. AGCO/Loan
Syndications; or
(c) for Dutch guilders, French francs, German
deutschemarks, or European Union euros, the account of the Administrative Agent
maintained with Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
Nederland", Utrecht Branch, The Netherlands, Swift # XXXXXX0X, Account No.
3908.17.333, Favor: Rabobank Nederland, New York Branch, Ref. AGCO/Loan
Syndications.
"Advance" means, as applicable, a Canadian Facility Advance, a
Multi-Currency Advance, a Swing Line Advance or a Letter of Credit Advance,
advanced by the applicable Lenders hereunder on the occasion of any Borrowing.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director, officer or partner of such Person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by" and "under common control with") of a Person includes (a) the direct or
indirect beneficial ownership by such other Person of 5% or more of the
outstanding voting securities or voting equity of such Person or (b) by such
other Person of the power, directly or indirectly, to direct or cause the
direction of
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the management and policies of such Person, whether through the ownership of
Stock, by contract or otherwise; provided that no mutual fund shall be deemed to
be an Affiliate of such Person solely by reason of having the power to vote 5%
or more of the voting Stock of such Person.
"AGCO" has the meaning specified in the introductory paragraph of this
Agreement.
"Agent" means Administrative Agent or the Canadian Administrative
Agent, and "Agents" means both of them.
"Agreed Alternative Currency" has the meaning specified in Section
2.2(a) hereof.
"Agreement" means this Agreement.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Law" means, in respect of any Person, all provisions of
constitutions, statutes, rules, regulations, and orders of governmental bodies
or regulatory agencies applicable to such Person, and all orders and decrees of
all courts and arbitrators in proceedings or actions to which the Person in
question is a party or by which it is bound.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance denominated
in U.S. dollars and such Lender's LIBOR Lending Office for Advances denominated
in any Offshore Currency.
"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:
Applicable
Margin for Applicable Applicable
LIBO Rate Margin for Base for Margin
Senior Debt Ratio Advances Rate Advances Unused Fee
----------------- ---------- --------------- ----------
Greater than or equal to 2.75 to 1.00 2.75% 1.50% 0.50%
Less than 2.75 to 1.00, but greater than 2.50% 1.25% 0.50%
or equal to 2.25 to 1.00
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Applicable
Margin for Applicable Applicable
LIBO Rate Margin for Base for Margin
Senior Debt Ratio Advances Rate Advances Unused Fee
----------------- ---------- --------------- ----------
Less than 2.25 to 1.00, but greater than 2.25% 1.00% 0.45%
or equal to 1.75 to 1.00
Less than 1.75 to 1.00 1.875% 0.625% 0.40%
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) from the Agreement Date through and including the second
Business Day after the Administrative Agent receives the information required by
clause (a) of this proviso for the fiscal quarter ending September 30, 2001,
(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).
"Appropriate Agent" means, at any time, with respect to matters
relating to the Multi-Currency Facility or Letters of Credit issued for the
account of Multi-Currency Borrowers, the Administrative Agent and, with respect
to matters relating to the Canadian Facility, or Letters of Credit or Bankers'
Acceptances issued for the account of the Canadian Subsidiary, the Canadian
Administrative Agent.
"Appropriate Issuing Bank" means, at any time, with respect to matters
relating to Letters of Credit issued for the account of Multi-Currency
Borrowers, the Multi-Currency Issuing Bank and, with respect to matters relating
to the Letters of Credit issued for the account of the Canadian Subsidiary, the
Canadian Issuing Bank.
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"Appropriate Lender" means, with respect to the Multi-Currency
Facility, a Multi-Currency Facility Lender, and with respect to the Canadian
Facility, a Canadian Facility Lender.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, accepted by the Administrative Agent,
and in accordance with Section 10.7 and in substantially the form of Exhibit A
hereto.
"Authorized Signatory" means, with respect to any Person, such senior
personnel of such Person as may be duly authorized and designated in writing by
such Person to execute documents, agreements, and instruments on behalf of the
Person.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such time
(assuming compliance at such time with all conditions to drawing).
"BA Equivalent Loan" means a Canadian Facility Advance made by a Non BA
Lender and evidenced by a Discount Note.
"Bankers' Acceptance" means a xxxx of exchange substantially in the
form of Exhibit D hereto (or such other form as may be satisfactory to the
Canadian Administrative Agent) denominated in Canadian Dollars drawn by the
Canadian Subsidiary and accepted by a Canadian Facility Lender or Participant
and the term "Bankers' Acceptance" shall be construed to include Discount Notes
as provided in Section 2.13(k).
"Bankruptcy Code" means the United States Bankruptcy Code (11 U.S.C.
Section 101 et seq.), and any similar laws relating to the insolvency of debtors
in any other country (including, without limitation, the Bankruptcy and
Insolvency Act (Canada) and the Companies' Creditors Arrangement Act (Canada)),
as the same may now or hereafter be amended, and including any successor
statute.
"Base Rate" means, at any date of determination, a fluctuating interest
rate per annum in effect from time to time, which rate per annum shall at all
times be equal to: (a) with respect to Multi-Currency Advances in U.S. dollars,
the higher of (i) the rate of interest announced by the Administrative Agent, in
New York, New York, from time to time, as its base rate (the "Reference Rate"),
and (ii) one-half of one percent per annum above the Federal Funds Rate, and (b)
with respect to Canadian Facility Advances, the annual rate of interest
generally available from time to time to the Canadian Administrative Agent as an
interest rate on Canadian Dollar-denominated commercial loans, as determined by
the Canadian Administrative Agent in Canada (which rate as of the Agreement Date
is 7.25%). Each change in the Base Rate shall take effect
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automatically as of the opening of business on the effective date of the change
in the applicable rate described above.
"Base Rate Advance" means an Advance denominated in U.S. dollars and
made by a Multi-Currency Lender or denominated in Canadian Dollars and made by a
Canadian Facility Lender, in either case that bears interest at the Base Rate
plus the Applicable Margin in effect from time to time with respect to Base Rate
Advances.
"Board of Directors" means (a) with respect to a corporation, the board
of directors of such corporation or a duly authorized committee of the board of
directors, (b) with respect to a partnership, the board of directors or similar
body of the general partner (or, if more than one general partner, the managing
general partner) of such partnership, and (c) with respect to a limited
liability company, any managing or other authorized committee of such limited
liability company or any board of directors or similar body of any managing
member.
"Borrower" and "Borrowers" have the respective meanings specified in
the introductory paragraph of this Agreement; provided that additional Persons
may be added to this Agreement as Borrowers with the consent of the Agents, the
Issuing Banks and each Lender.
"Borrower Outstandings" means, on any date of determination, the sum of
the Multi-Currency Borrower Outstandings and the Canadian Facility Outstandings
on such date.
"Borrower's Account" means the account of the Borrower requesting such
a Borrowing, as specified in such Borrower's Notice of Borrowing.
"Borrowing" means a Multi-Currency Borrowing or a Canadian Facility
Borrowing.
"Borrowing Subsidiary" and "Borrowing Subsidiaries" means each of the
Borrowers other than AGCO.
"Business Day" means a day of the year (a) on which banks are not
required or authorized to close in New York City or Atlanta, Georgia; (b) if the
applicable Business Day relates to any LIBO Rate Advance, on which any Lender
carries on dealings in the London interbank and foreign exchange markets; and
(c) if the applicable Business Day relates to any Advance or Letter of Credit in
a currency other than U.S. dollars, on which banks are not required or
authorized to close in the city of the jurisdiction of such currency where the
Appropriate Agent's Account for such currency is located.
"Canadian Administrative Agent" has the meaning specified in the
introductory paragraph of this Agreement.
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"Canadian Administrative Agent's Account" means the Canadian
Administrative Agent's account maintained with Royal Bank of Canada in Xxxxxxx,
Xxxxxxx, Swift TID Royccat 2, Account Number 07172-003, #0000000, Beneficiary:
Rabobank Nederland, Canada, or such other account as the Canadian Administrative
Agent may from time to time designate as the Canadian Administrative Agent's
Account.
"Canadian Dollars" and "Cdn. $" each means lawful money of Canada.
"Canadian Facility " means, at any time, the aggregate amount of the
Canadian Facility Lenders' Canadian Facility Commitments at such time, which
shall not exceed the Equivalent Amount of U.S. $20,000,000.
"Canadian Facility Advance" has the meaning specified in Section
2.1(b).
"Canadian Facility Borrowing" means a borrowing consisting of
simultaneous Canadian Facility Advances of the same Type made by the Canadian
Facility Lenders.
"Canadian Facility Commitment" means, with respect to any Canadian
Facility Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Canadian Facility Commitment" or, if such
Lender has entered into one or more Assignments and Acceptances, set forth for
such Lender in the Register maintained by the Administrative Agent pursuant to
Section 10.7 as such Lender's "Canadian Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.3.
"Canadian Facility Lender" means any Lender that has a Canadian
Facility Commitment.
"Canadian Facility Outstandings" means, on any date of determination,
the Equivalent Amount in U.S. dollars of (a) the aggregate principal amount of
all Base Rate Advances or LIBO Rate Advances to the Canadian Subsidiary
outstanding on such date of determination, plus (b) the aggregate principal
amount of all Letter of Credit Advances outstanding on such date of
determination in respect of Letters of Credit issued for the account of the
Canadian Subsidiary, plus (c) the aggregate Available Amount of all Letters of
Credit issued for the account of the Canadian Subsidiary and outstanding on such
date of determination, plus (d) the aggregate face amount of all Bankers'
Acceptances outstanding on such date of determination.
"Canadian Issuing Bank" means Rabobank Canada and its successors and
assigns hereunder as issuer of Letters of Credit for the account of the Canadian
Subsidiary.
"Canadian Securitization" means funding in connection with sales by the
Canadian Subsidiary of wholesale Receivables invoiced to third parties at
addresses
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located in Canada under a securitization trust vehicle, pursuant to
documentation in form and substance satisfactory to the Administrative Agent.
"Canadian Subsidiary" has the meaning specified in the introductory
paragraph of this Agreement.
"CapEx Carry Forward Amount" means, to the extent positive, for any
fiscal year, the unused Permitted Amount from the immediately preceding fiscal
year minus $5,000,000. For purposes of computing the CapEx Carry Forward Amount,
all Capital Expenditures in any fiscal year shall be applied, first, to reduce
the Permitted Amount, for such year, and second, to reduce the CapEx Carry
Forward Amount, if any, for such year.
"Capital Expenditures" means, for any Person for any period, all
expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, fixed assets, Real Property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a Consolidated balance sheet of
such Person or have a useful life of more than one year; provided, however, that
there shall be excluded from this definition that portion of any expenditure
which is (a) otherwise treated as an expense on the statement of such Person
that would have an effect on such Person's EBITDA, (b) made with the proceeds of
any trade-in or sale of existing fixed assets owned by such Person to the extent
the reinvestment of such proceeds in replacement assets is permitted hereunder
or (c) made with insurance proceeds received in respect of loss or damage to a
fixed asset to replace such asset.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases on a balance sheet of the
lessee, excluding operating leases.
"Cash Equivalents" means, for any Person, any of the following, to the
extent owned by such Person free and clear of all Liens, other than Permitted
Liens and Liens created under the Security Documents and having a maturity of
not greater than 1 year from the date of acquisition: (a) readily marketable
direct obligations of the government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full
faith and credit of the government of the United States, (b) readily marketable
direct obligations denominated in US Dollars of any other sovereign government
or any agency or instrumentality thereof which are unconditionally guaranteed by
the full faith and credit of such government and which have a rating equivalent
to at least "Prime-1" (or the then equivalent grade) by Xxxxx'x or "A-1" (or the
then equivalent grade) by S&P, (c) insured certificates of deposit of, time
deposits, or bankers' acceptances with any commercial bank that issues (or the
parent of which issues) commercial paper rated as described in clause (d) below,
is organized under the laws of the United States or any State thereof or is a
foreign bank or branch or agency
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thereof acceptable to the Administrative Agent and, in any case, has combined
capital and surplus of at least U.S. $1 billion (or the foreign currency
equivalent thereof) or (d) commercial paper issued by any corporation organized
under the laws of any State of the United States or any commercial bank
organized under the laws of the United States or any State thereof or any
foreign bank, each of which shall have a consolidated net worth of at least U.S.
$250 million, rated at least "Prime-1" (or the then equivalent grade) by Xxxxx'x
or "A-1" (or the then equivalent grade) by S&P.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980.
"Change of Control" means at any time, the occurrence of any of the
following: (a) any Person or two or more Persons (including any "group" as that
term is used in Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934) acting in concert shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), directly or indirectly, of voting Stock of
AGCO (or other securities convertible into such voting Stock) representing 35%
or more of the combined voting power of all voting Stock of AGCO; or (b) during
any period of up to 24 consecutive months, commencing after the Agreement Date,
individuals who at the beginning of such 24-month period were directors of AGCO
(together with any new directors whose election to the board of directors or
whose nomination for election by AGCO's stockholders was approved by a vote of
at least two-thirds of the members of the board of directors at the beginning of
such period or whose election or nomination for election was previously so
approved) shall cease for any reason to constitute a majority of the board of
directors of AGCO; or (c) any Person or two or more Persons acting in concert
shall have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or their
acquisition of, control over voting Stock of AGCO (or other securities
convertible into such securities) representing 35% or more of the combined
voting power of all voting Stock of AGCO; or (d) any "Change of Control", as
defined in the Subordinated Note Indenture, shall occur; or (e) any "Change of
Control", as defined in the Senior Note Indenture, shall occur; or (f) (i) AGCO
shall fail to own, directly or indirectly, 100% of the Stock of each Material
Subsidiary, or (ii) Xxxxxx Xxxxxxxx Corp. (or any other wholly-owned United
States Subsidiary of AGCO (other than a Senior Note Guarantor) one hundred
percent of whose Stock is pledged to the Administrative Agent) shall fail to
own, directly or indirectly, 100% of all Stock of each Foreign Subsidiary that
is a Material Subsidiary.
"Closed Facility" means the manufacturing facilities of AGCO and its
Subsidiaries disclosed on Schedule C-1 hereto, which, as of the Agreement Date,
are no longer operating or operating on a minimal basis, together with the Real
Property on which such facilities are located and all buildings and improvements
thereon.
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"Co-Documentation Agents" has the meaning specified in the introductory
paragraph of this Agreement.
"Collateral" means all "Collateral" referred to in the Security
Documents and all other property (including, but not limited to, the proceeds of
such "Collateral" and all after-acquired property) that is or is intended to be
subject to any Lien in favor of the Appropriate Agent for the benefit of the
Issuing Banks and the Lenders in accordance with the terms of the Security
Documents.
"Commitment" of any Lender means its Multi-Currency Commitment and/or
Canadian Facility Commitment and of any Issuing Bank means its Letter of Credit
Commitment; and "Commitments" means all Multi-Currency Commitments and Canadian
Facility Commitments.
"Common Stock" means the common stock, par value U.S. $.01 per share,
of AGCO.
"Computation Date" means the date on which the Equivalent Amount of any
Offshore Currency Loan is determined.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP, except that, in the case of AGCO, notwithstanding GAAP,
"Consolidated" shall refer to the consolidation of accounts of AGCO and its
Restricted Subsidiaries and not of AGCO and its Subsidiaries.
"Consolidated EBITDA" means, for any period, (a) Consolidated Net
Income (or net loss) for such period, plus (b) Consolidated Net Interest Expense
for such period and all of the following amounts deducted in arriving at such
Consolidated Net Income: (i) amounts in respect of taxes imposed on or measured
by income or excess profits (other than income taxes (either positive or
negative) attributable to extraordinary and non-recurring gains or losses on
sales of assets, to the extent such gains or losses are not included in the
definition of Consolidated Net Income), (ii) depreciation and amortization
expense, (iii) restructuring and other infrequent expenses, (iv) losses under
any Securitization Facility incurred in connection with the initial transfer of
Receivables thereunder, (v) in respect of any calculation including the fiscal
quarter ending March 31, 2001, the aggregate amount of consent fees and the
solicitation agent fee paid by AGCO in March 2001 in connection with the
Subordinated Note Indenture, and (vi) all other non-cash items reducing
Consolidated Net Income (other than items that will require cash payments and
for which an accrual or reserve is, or is required by GAAP to be, made), minus
(c) all non-cash items increasing Consolidated Net Income, all as determined in
accordance with GAAP. Upon the consummation of the Merger, for purposes of
calculating "Consolidated EBITDA" hereunder for any quarter during which the
financial performance of Target was not consolidated with AGCO, "Consolidated
EBITDA" shall
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be calculated by giving pro forma effect to the Merger as if the Merger has
occurred as of the first day of such quarter and, in connection with such
calculation for any period including the fiscal quarters ending September 30,
2000 and December 31, 2000, the product recall expenses of Target incurred
during such quarters shall be included as "other infrequent expenses" hereunder.
"Consolidated Interest Expense" means, for any period, the sum of (a)
all amounts that would be deducted in arriving at Consolidated Net Income for
such period in respect of interest charges (including amortization of debt
discount and expense and imputed interest on Capitalized Leases) and (b)
interest expense attributable to any Securitization Funding for such period.
"Consolidated Interest Income" means, for any period, the sum of all
amounts that would be included, for purposes of determining Consolidated Net
Income, as income of AGCO and its Restricted Subsidiaries for such period in
respect of interest payments by third parties to AGCO and its Restricted
Subsidiaries.
"Consolidated Net Income" means, for any period, the net income (or
deficit) of AGCO and its Restricted Subsidiaries for such period (taken as a
cumulative whole), after deducting all operating expenses, provisions for all
taxes and reserves (including reserves for deferred income taxes) and all other
proper deductions, after eliminating all intercompany transactions and after
deducting portions of income properly attributable to minority interests, if
any, in the stock and surplus of Restricted Subsidiaries, but including the
income (or deficit) of any Person that becomes a Restricted Subsidiary or is
merged into AGCO or a Restricted Subsidiary during such period that accrued
during such period prior to the date on which it became a Restricted Subsidiary
or was merged into AGCO or a Restricted Subsidiary, provided that there shall be
excluded for purposes of calculating Consolidated Net Income: (a) the income (or
deficit) of any Person (other than a Restricted Subsidiary) in which AGCO or any
Restricted Subsidiary has an ownership interest, except to the extent that any
such income has been actually received by AGCO or such Restricted Subsidiary in
the form of cash dividends or similar distributions; (b) the undistributed
earnings of any Restricted Subsidiary (other than a Borrowing Subsidiary or a
Guarantor) to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary is not at the time permitted by the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such Restricted
Subsidiary; (c) any aggregate net gain or aggregate net loss during such period
arising from the sale, exchange or other disposition of capital assets (such
term to include all fixed assets, whether tangible or intangible, all inventory
sold in conjunction with the disposition of fixed assets, and all securities);
(d) any write-up of any asset, or any write-down of any asset other than
Receivables or Inventory; (e) any net gain from the collection of the proceeds
of life insurance policies; (f) any gain or loss arising from the acquisition of
any
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securities, or the extinguishment, under GAAP, of any Indebtedness, of AGCO or
any Restricted Subsidiary; and (g) any net income or gain or any net loss during
such period from any change in accounting, from any discontinued operations or
the disposition thereof, from any extraordinary events or from any prior period
adjustments.
"Consolidated Net Interest Expense" means, for any period, (a)
Consolidated Interest Expense for such period, minus (b) Consolidated Interest
Income for such period.
"Consolidated Net Worth" means, as of the last day of any fiscal
quarter of AGCO, the sum as of such day of the capital stock (but excluding
treasury stock and capital stock subscribed and unissued) and surplus (including
earned surplus, capital surplus and the balance of the current profit and loss
account not transferred to surplus) accounts of AGCO and its Restricted
Subsidiaries appearing on a consolidated balance sheet of AGCO and its
Restricted Subsidiaries, after eliminating all intercompany transactions, all
amounts properly attributable to minority interests, if any, in the stock and
surplus of Restricted Subsidiaries and all currency-translation gains and
losses.
"Consolidated Tangible Net Worth" means, as of the last day of any
fiscal quarter of AGCO, Consolidated Net Worth as of such day, after deducting
therefrom (without duplication of deductions): (a) the net book amount of all
assets, after deducting any reserves applicable thereto, which would be treated
as intangible under GAAP, including without limitation such items as good will,
trademarks, trade names, service marks, brand names, copyrights, patents and
licenses, and rights with respect to the foregoing; (b) any write-up in the book
value of any asset on the books of AGCO or any Restricted Subsidiary resulting
from a revaluation thereof subsequent to the date hereof and after the date of
acquisition thereof; and (c) all deferred charges (other than prepaid expenses).
"Consolidated Total Assets" means, as of the last day of any fiscal
quarter of AGCO, the total assets of AGCO and its Restricted Subsidiaries that
would appear on a Consolidated balance sheet of AGCO and its Restricted
Subsidiaries prepared in accordance with GAAP as of such day, after eliminating
all intercompany transactions and all amounts properly attributable to minority
interests, if any, in the stock and surplus of Restricted Subsidiaries.
"Contract Period" means, with respect to a Bankers' Acceptance, the
term, subject to availability, selected by the Canadian Subsidiary and notified
to the Canadian Administrative Agent in accordance with Section 2.2, commencing
on the date of the Advance with respect to such Bankers' Acceptance or on the
date of Conversion or rollover in accordance with Section 2.13(h), as
applicable, and expiring on a Business Day which shall not be less than 30 days
nor more than 180 days thereafter, and which shall not, in any event, expire
after the Maturity Date.
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"Conversion", "Convert" and "Converted" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.7 or
2.8.
"Co-Syndication Agents" has the meaning specified in the introductory
paragraph of this Agreement.
"Default" means any of the events specified in Section 8.1 hereof
regardless of whether there shall have occurred any passage of time or giving of
notice (or both) that would be necessary in order to constitute such event an
Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at such time,
owes any amount required to be paid by such Lender to the Appropriate Agent, the
Appropriate Issuing Bank or any other Lender hereunder or under any other Loan
Document which has not been so paid as of such time (including, without
limitation, any amount required to be paid by such Lender to fund a Letter of
Credit Advance, to purchase its Pro Rata Share in a Swing Line Advance or
otherwise fund its Pro Rata Share of any Borrowing).
"Default Rate" means a simple per annum interest rate equal to, (a)
with respect to outstanding principal, the sum of (i) the Base Rate or the LIBO
Rate, as applicable, plus (ii) the highest Applicable Margin, plus (iii) two
percent (2%), and (b) with respect to all other Obligations, the sum of (i) the
Base Rate, plus (ii) the highest Applicable Margin, plus (iii) two percent (2%).
"Discount Note" means a non-interest bearing promissory note
substantially in the form of Exhibit E, denominated in Canadian Dollars, issued
by the Canadian Subsidiary to a Non BA Lender to evidence a BA Equivalent Loan.
"Discount Proceeds" means, for any Bankers' Acceptance, an amount
calculated on the date of the Canadian Facility Advance with respect to such
Bankers' Acceptance or on the date of the Conversion or on the date of the
rollover pursuant to Section 2.13(h), as applicable, calculated by dividing the
face amount of such Bankers' Acceptance by the sum of one plus the product of
(1) the Discount Rate divided by 100 and multiplied by (2) a fraction, the
numerator of which is the applicable Contract Period and the denominator of
which is 365.
"Discount Rate" means, with respect to a Bankers' Acceptance being
issued on any date, the percentage discount rate (rounded up or down to the
second decimal place with .005 % being rounded up) published on the Reuters'
Screen CDOR Page as the average discount bid rate for Canadian interbank
bankers' acceptances having a comparable issue and maturity date as the issue
and maturity date of such Bankers' Acceptance. If such percentage discount rate
is not so published, the Discount Rate shall be the percentage discount rate
determined by the Canadian Administrative Agent as being the arithmetic average
(rounded up or down to the second decimal place with .005%
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being rounded up) of the percentage discount bid rate available on that day for
bankers' acceptances having a comparable issue and maturity date as the issue
and maturity date of such Bankers' Acceptance.
"Domestic Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender, as the case may be, or such other office of such Lender as such
Lender may from time to time specify to the Borrowers and the Administrative
Agent.
"Dormant Subsidiary" means, as of the Agreement Date, any Subsidiary of
AGCO not conducting any business or other activities and not owning any assets
in excess of U.S. $50,000 on such date.
"Eligible Assignee" means a commercial bank, a finance company, an
insurance company or other financial institution (whether a corporation,
partnership, trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business,
having a combined capital and surplus of at least U.S. $500,000,000.
"English Subsidiary One" has the meaning specified in the introductory
paragraph of this Agreement.
"English Subsidiary Two" has the meaning specified in the introductory
paragraph of this Agreement.
"Environmental Action" means any administrative, regulatory, or
judicial action, suit, demand, demand letter, claim, notice of non-compliance or
violation, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law or any Environmental Permit,
including, without limitation (a) any claim by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or other actions
or damages pursuant to any Environmental Law, and (b) any claim by any third
party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to the environment or, to public health
and welfare in respect of Hazardous Materials.
"Environmental Law" means, with respect to any property or Person, any
federal, state, provincial, local or foreign law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award applicable to such property
or Person relating to the environment, public health and welfare in respect of
Hazardous Materials, including, without limitation, to the extent applicable to
such property or Person, CERCLA, the
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Resource Conservation and Recovery Act, the Hazardous Materials Transportation
Act, the Clean Water Act, the Toxic Substances Control Act, the Clean Air Act,
the Safe Drinking Water Act, the Atomic Energy Act, the Federal Insecticide,
Fungicide and Rodenticide Act and the Occupational Safety and Health Act, as any
of the foregoing may be from time to time amended, supplemented or otherwise
modified.
"Environmental Permit" means, with respect to any property or Person,
any permit, approval, identification number, license or other authorization
required under any Environmental Law applicable to such property or Person.
"Equivalent Amount" means (i) whenever this Agreement requires or
permits a determination on any date of the equivalent in U.S. dollars of an
amount expressed in an Offshore Currency, the equivalent amount in U.S. dollars
of such amount expressed in an Offshore Currency as determined by the
Administrative Agent on such date on the basis of the Spot Rate for the purchase
of U.S. dollars with such Offshore Currency on the relevant Computation Date
provided for hereunder; or (ii) whenever this Agreement requires or permits a
determination on any date of the equivalent amount in an Offshore Currency of
such amount expressed in U.S. dollars, the equivalent amount in such Offshore
Currency of such amount expressed in U.S. dollars as determined by the
Administrative Agent on such date on the basis of the Spot Rate for the purchase
of such Offshore Currency with U.S. dollars on the relevant Computation Date
provided for hereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, supplemented or otherwise modified from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of such Person's controlled group, or
under common control with such Person, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" with respect to any Person means:
(a) either (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan for which
such Person or any of its ERISA Affiliates is the plan administrator or the
contributing sponsor, as defined in Section 4001(a)(13) of ERISA unless the
30-day notice requirement with respect to such event has been waived by the
PBGC, or (ii) the requirements of subsection (a) of Section 4043(b) of ERISA
(without regard to subsection (2) of such Section) are met with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and
an
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event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of
ERISA is reasonably expected to occur with respect to such Plan within the
following 30 days;
(b) the provision by the administrator of any Plan of
such Person or any of its ERISA Affiliates of a notice of intent to terminate
such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA);
(c) the cessation of operations at a facility of such
Person or any of its ERISA Affiliates in the circumstances described in Section
4062(e) of ERISA;
(d) the withdrawal by such Person or any of its ERISA
Affiliates from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA;
(e) the failure by such Person or any of its ERISA
Affiliates to make a payment to a Plan required under Section 302(f)(1) of
ERISA;
(f) the adoption of an amendment to a Plan of such Person
or any of its ERISA Affiliates requiring the provision of security to such Plan,
pursuant to Section 307 of ERISA; or
(g) the institution by the PBGC of proceedings to
terminate a Plan of such Person or any of its ERISA Affiliates, pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition described in
Section 4042 of ERISA that could constitute grounds for the termination of, or
the appointment of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of
the Board of Governors of the Federal Reserve System, as in effect from time to
time.
"European Securitization" means funding in connection with sales by
certain Foreign Subsidiaries of AGCO of wholesale Receivables invoiced to third
parties at addresses located in Europe under a securitization trust vehicle, as
more fully set forth in the European Securitization Documents.
"European Securitization Documents" means (a) that certain Receivables
Transfer Agreement among AGCO Services Limited, French Subsidiary, English
Subsidiary One and Rabobank London dated Xxxxx 00, 0000, (x) that certain
Receivables Transfer Agreement among AGCO Services Limited, AGCO Iberia S.A.,
English Subsidiary One, and Rabobank London dated April 12, 2001, (c) that
certain Receivables Transfer Agreement among AGCO Services Limited, German
Subsidiary One, English Subsidiary One and Rabobank London dated Xxxxx 00, 0000,
(x) that certain Receivables Purchase
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Agreement among AGCO, AGCO Services Limited, English Subsidiary One, Erasmus
Capital Corporation, and Rabobank London dated April 12, 2001, and (e) all other
agreements in form and substance satisfactory to the Administrative Agent
executed in connection with, or in replacement of, the foregoing, as the same
may be amended, supplemented or modified from time to time with the consent of
the Administrative Agent.
"Event of Default" has the meaning specified in Section 8.1.
"Excess Proceeds" has the meaning specified in the Subordinated Note
Indenture.
"Existing L/Cs" has the meaning specified in Section 2.10(a) hereof.
"Facility" means the Multi-Currency Facility, the Canadian Facility or
the Letter of Credit Subfacility.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" means, that certain fee letter executed by AGCO setting
forth the applicable fees relating to this Agreement to be paid to the
Administrative Agent, on its behalf and on behalf of the Lenders.
"Finance Company" means AGCO Finance LLC, Agricredit Acceptance Canada,
Ltd., Agricredit Ltd., AgriFinance SNC, Agricredit GmbH, and any other Person
(a) not a Subsidiary of AGCO, (b) in whom AGCO or its Subsidiaries holds an
Investment, and (c) which is engaged primarily in the business of providing
retail financing to purchasers of agricultural equipment.
"Fixed Charge Coverage Ratio" means, as of the last day of any fiscal
quarter, the ratio of (a) Consolidated EBITDA for such fiscal quarter and the
three fiscal quarters of AGCO immediately preceding such fiscal quarter, to (b)
the sum of (i) Consolidated Net Interest Expense for such fiscal quarter and the
three fiscal quarters of AGCO immediately preceding such fiscal quarter, plus
(ii) the aggregate scheduled principal amount of Funded Debt to be paid within
one year after the last day of such fiscal quarter, plus (iii) the aggregate
amount of all Capital Expenditures made by AGCO and its
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Restricted Subsidiaries for such fiscal quarter and the three fiscal quarters of
AGCO immediately preceding such fiscal quarter, plus (iv) the aggregate amount
of dividends paid by AGCO for such fiscal quarter and the three fiscal quarters
of AGCO immediately preceding such fiscal quarter; provided, however, upon
consummation of the Merger, for purposes of calculating the "Fixed Charge
Coverage Ratio" for any fiscal quarter during which the financial performance of
Target was not Consolidated with AGCO, an amount of $3,500,000 for each such
fiscal quarter shall be added to clause (b)(i) above, and an amount of
$1,250,000 for each such fiscal quarter shall be added to clause (b)(iii) above.
"Foreign Exchange Agreement" means a foreign currency exchange hedging
product providing foreign currency exchange protection.
"Foreign Subsidiary" means a Subsidiary of AGCO not organized under the
laws of the United States or any jurisdiction thereof.
"French Subsidiary" has the meaning specified in the introductory
paragraph of this Agreement.
"Funded Debt" means without double-counting, with respect to AGCO on a
Consolidated basis, as of any date of determination, all obligations of the type
described in clauses (a) through (e) of the definition of "Indebtedness" set
forth in Article 1 hereof and any Guaranty of any of the foregoing for which a
demand for payment has been received, and specifically including, without
limitation, the amount of Borrower Outstandings hereunder. Upon the consummation
of the Merger, for purposes of calculating the amount of "Funded Debt" hereunder
outstanding as of the last day of any fiscal quarter during which the financial
performance of Target was not Consolidated with AGCO, an additional amount of
$175,000,000 of Funded Debt shall be deemed to have been outstanding as of the
last day of each such fiscal quarter.
"GAAP" has the meaning specified in Section 1.3.
"General Syndication Closing Date" has the meaning set forth in Section
10.7(h) hereof.
"German Subsidiary One" has the meaning specified in the introductory
paragraph of this Agreement.
"German Subsidiary Two" has the meaning specified in the introductory
paragraph of this Agreement.
"Governmental Authority" means any government or political subdivision
of the United States or any other country or any agency, authority, board,
bureau, central bank,
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commission, department or instrumentality thereof or therein, including, without
limitation, any court, tribunal, grand jury or arbitrator, in each case whether
foreign or domestic, or any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to such government or
political subdivision.
"Guaranty" or "Guaranteed," as applied to an obligation (each a
"primary obligation"), means and includes (a) any guaranty, direct or indirect,
in any manner, of any part or all of such primary obligation, and (b) any
agreement, direct or indirect, contingent or otherwise, the practical effect of
which is to assure in any way the payment or performance (or payment of damages
in the event of non-performance) of any part or all of such primary obligation,
including, without limiting the foregoing, any reimbursement obligations as to
amounts drawn down by beneficiaries of outstanding letters of credit, and any
obligation of such Person (the "primary obligor"), whether or not contingent,
(i) to purchase any such primary obligation or any property or asset
constituting direct or indirect security therefor, (ii) to advance or supply
funds (1) for the purchase or payment of such primary obligation or (2) to
maintain working capital, equity capital or the net worth, cash flow, solvency
or other balance sheet or income statement condition of any other Person, (iii)
to purchase property, assets, securities or services primarily for the purpose
of assuring the owner or holder of any primary obligation of the ability of the
primary obligor with respect to such primary obligation to make payment thereof
or (iv) otherwise to assure or hold harmless the owner or holder of such primary
obligation against loss in respect thereof; provided, however, "Guaranty" shall
not include non-binding comfort letters limited to corporate intent or policies.
"Guarantors" means each of the Persons listed under the heading of
"Guarantor" on Schedule G-1 hereof, and each other Person that delivers a
Guaranty Agreement at any time hereafter.
"Guaranty Agreements" means the guaranty agreements, guaranty and
indemnity deeds, and other similar agreements delivered on the Agreement Date by
each of the Persons listed under the heading of "Guarantor" on Schedule G-1
hereto, guaranteeing or providing an indemnity for the obligations described on
Schedule G-1 hereto, and any other agreement delivered after the Agreement Date
(including by way of supplement or amendment to any guaranty or indemnity
agreement) by any Person providing an indemnity or guaranty of all or any part
of the Obligations, in each case as amended, supplemented or modified from time
to time in accordance with its terms.
"Hazardous Materials" means any pollutants, contaminants, toxic or
hazardous substances, materials, wastes, constituents, compounds, chemicals,
natural or manmade elements or forces (including, without limitation, petroleum
or any by-products or fractions thereof, any form of natural gas, lead, asbestos
and asbestos-containing materials building construction materials and debris,
polychlorinated biphenyls ("PCBs")
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and PCB-containing equipment, radon and other radioactive elements, ionizing
radiation, electromagnetic field radiation and other non-ionizing radiation,
sonic forces and other natural forces, infectious, carcinogenic, mutagenic, or
etiologic agents, pesticides, defoliants, explosives, flammables, corrosives and
urea formaldehyde foam insulation) that are regulated by, or may now or in the
future form the basis of liability under, any Environmental Laws.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(a) the principal of and premium (if any) in respect of
(i) indebtedness of such Person for money borrowed and (ii) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable;
(b) all obligations under Capitalized Leases of such
Person;
(c) all obligations of such Person issued or assumed as
the deferred purchase price of property or services, all conditional sale
obligations of such Person and all obligations of such Person under any title
retention agreement (excluding trade accounts payable and accrued liabilities
arising in the ordinary course of business but only if and so long as such
accounts are payable on trade terms customary in the industry), which purchase
price or obligation is due more than six months after the date of placing such
property in service or taking delivery and title thereto of the completion of
such services (provided that, in the case of obligations of an acquired Person
assumed in connection with an acquisition of such Person, such obligations would
constitute Indebtedness of such Person);
(d) all obligations of such Person for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing
obligations (other than obligations described in (a) through (c) above) entered
into in the ordinary course of business of such Person to the extent such
letters of credit are not drawn upon or, if and to the extent drawn upon, such
drawing is reimbursed no later than the tenth Business Day following receipt by
such Person of a demand for reimbursement following payment on the letter of
credit);
(e) the principal amount of any Securitization Funding;
(f) the amount of all obligations of such Person with
respect to the redemption, repayment or other repurchase of the Stock of such
Person;
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(g) all obligations of the type referred to in clauses
(a) through (f) above of other Persons and all dividends of other Persons for
the payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including by means
of any Guaranty;
(h) all obligations of the type referred to in clauses
(a) through (g) above of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by such Person),
the amount of such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured; and
(i) to the extent not otherwise included in this
definition, all obligations of such Person under Interest Hedge Agreements or
Foreign Exchange Agreements.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations as described above at such date. For
purposes of this Agreement, Indebtedness, with respect to any Person as of any
date, means the actual amount of Indebtedness then outstanding with respect to
which such Person is then liable without deduction for any discount therefrom as
may be reflected on such Person's financial statements to reflect the value of
any warrants or other equity securities that may be issued together with such
Indebtedness. Indebtedness shall not include, for purposes of this Agreement,
obligations in connection with the factoring of Receivables permitted hereunder,
provided that the Receivables subject to such factoring arrangement are not
required under GAAP to be included on the Consolidated balance sheet of AGCO and
its Subsidiaries.
"Indemnified Party" has the meaning specified in Section 10.4.
"Insufficiency" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Hedge Agreements" means the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
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"Interest Period" means, for each LIBO Rate Advance comprising part of
the same Borrowing (or portion of the same Borrowing), the period commencing on
the date of such LIBO Rate Advance or the date of Conversion of any Base Rate
Advance into such LIBO Rate Advance, and ending on the last day of the period
selected by any Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the
Borrower requesting a Borrowing pursuant to the provisions below. The duration
of each such Interest Period shall be one, two, three or six months (or such
shorter time period as may be acceptable to the Administrative Agent), as such
Borrower may, upon notice received by the Administrative Agent (or if such
Borrower is the Canadian Subsidiary, the Canadian Administrative Agent) not
later than 11:00 A.M. (New York City time) on the third Business Day prior to
the first day of such Interest Period, select; provided that:
(a) the duration of any Interest Period for any LIBO Rate
Advance that commences before the repayment date for such Advance and otherwise
ends after such repayment date shall end on such repayment date;
(b) if any Borrower fails to select the duration of any
Interest Period for a LIBO Rate Advance, the duration of such Interest Period
shall be one month;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding Business Day;
provided that, if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
(d) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial calendar
month by the number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of such
succeeding calendar month;
(e) prior to the General Syndication Closing Date, (i) no
Borrower shall select an Interest Period in excess of one month, (ii) Borrowers
may be permitted to select Interest Periods of less than one month duration with
the consent of the Administrative Agent and (iii) no Borrower shall receive a
LIBO Rate Advance having an Interest Period ending on any day other than the
last day of the Interest Period of any other outstanding LIBO Rate Advance; and
(f) such Borrower shall not select an Interest Period
that ends after the Maturity Date.
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"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"IntraLinks" means IntraLinks, Inc. or any other digital workspace
provider selected by the Administrative Agent from time to time after notice to
AGCO.
"Inventory" means, with respect to any Person, all goods, merchandise
and other personal property owned and held for sale in the ordinary course of
its business, and all raw materials, work or goods in process, materials and
supplies of every nature which contribute to the finished products of such
Person.
"Investment" by any Person in any other Person means any direct or
indirect advance, loan (other than advances to customers in the ordinary course
of business that are recorded as accounts receivable on the balance sheet of
such Person) or other extensions of credit (including by way of Guaranty or
similar arrangement) or capital contributions to (by means of any transfer of
cash or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Stock, Indebtedness
or other similar instruments issued by such Person.
"Issuing Bank" means either the Multi-Currency Issuing Bank or the
Canadian Issuing Bank.
"L/C Cash Collateral Account" has the meaning specified in Section 8.3.
"L/C Related Documents" has the meaning specified in Section 2.10(d).
"Landlord and Warehouseman Waivers" means landlord waivers, mortgagee
waivers, bailee letters, or acknowledgement agreements of any warehouseman,
processor, lessor, consignee, or other similar Person in possession of, having a
Lien upon, or having rights or interests in any personal property which is the
subject of the Security Agreement in respect of any Loan Party, in each case in
form and substance reasonably satisfactory to the Administrative Agent.
"Lenders" means those lenders whose names are set forth on the
signature pages hereof under the heading "Lenders" and any assignees of the
Lenders who hereafter become parties hereto pursuant to and in accordance with
Section 10.7 hereof; and "Lender" means any one of the foregoing Lenders.
"Letter of Credit" has the meaning specified in Section 2.10(a).
"Letter of Credit Advance" means an advance made by the Issuing Bank
pursuant to Section 2.10(c).
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"Letter of Credit Agreement" has the meaning specified in Section
2.10(b).
"Letter of Credit Commitment" means, with respect to each Issuing Bank,
the amount set forth opposite such Issuing Bank's name on Schedule I hereto
under the caption "Letter of Credit Commitment", or, if such Issuing Bank has
entered into an Assignment and Acceptance, set forth in the Register maintained
by the Administrative Agent pursuant to Section 10.7(c), as such amount may be
reduced at or prior to such time pursuant to Section 2.3.
"Letter of Credit Subfacility" means the aggregate Available Amounts of
Letters of Credit the Issuing Banks may issue pursuant to Section 2.10(a), which
shall not exceed U.S. $15,000,000.
"LIBOR Lending Office" means, with respect to any Lender and any
currency, the office of such Lender specified as its "LIBOR Lending Office" for
such currency opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), as the case may be, or such other
office of such Lender as such Lender may from time to time specify to AGCO and
the Administrative Agent.
"LIBO Rate" means, for any Interest Period for all LIBO Rate Advances
by any Lender (whether or not a commercial bank) comprising part of the same
Borrowing in any currency, an interest rate per annum equal to the rate per
annum:
(a) in the case of currencies other than Canadian Dollars,
obtained by dividing
(i) either (x) the rate per annum for deposits
in such currency that appears on page 3750 (if such currency
is U.S. dollars, British pounds, German deutschemarks or Swiss
francs), page 3740 (if such currency is Dutch guilders, French
francs or Italian lira), the page that from time to time may
be applicable thereto (if such currency is European Union
euros) of the Telerate Plus Service (or any other page that
may replace any such page on such service or is applicable to
any other Offshore Currency, in the judgment of the
Administrative Agent), or (y) if a rate cannot be determined
pursuant to clause (x) above, a rate per annum equal to the
average (rounded upward to the nearest whole multiple of 1/16
of 1% per annum, if such average is not such a multiple) of
the rate per annum at which deposits in such currency are
available to the Administrative Agent as determined by the
Administrative Agent in London, England to prime banks in the
interbank market, at 11:00 A.M. (London time) two Business
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Days before the first day of such Interest Period and for a
period equal to such Interest Period, by
(ii) a percentage equal to 100%, minus the LIBO
Rate Reserve Percentage for such Interest Period, and
(b) in the case of Canadian Dollars, the rate per annum
determined by the Canadian Administrative Agent as its rate for cost of funds
for borrowings for a period equal to such Interest Period.
"LIBO Rate Advance" means an Advance denominated in U.S. dollars or in
an Offshore Currency that bears interest at the LIBO Rate plus the Applicable
Margin in effect for LIBO Rate Advances from time to time.
"LIBO Rate Reserve Percentage" means the percentage which is in effect
from time to time under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including without limitation any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
LIBO Rate Advances is determined), whether or not any Lender has any
Eurocurrency Liabilities subject to such reserve requirement at that time. The
LIBO Rate for any LIBO Rate Advance shall be adjusted as of the effective date
of any change in the LIBO Rate Reserve Percentage.
"Lien" means, with respect to any property, any mortgage, lien, pledge,
assignment by way of security, charge, hypothec, security interest, title
retention agreement, levy, execution, seizure, attachment, garnishment, or other
encumbrance of any kind in respect of such property, whether or not xxxxxx,
vested, or perfected.
"Loan Documents" means this Agreement, the Notes, the Guaranty
Agreements, the Security Documents, the Securitization Intercreditor Agreement,
all L/C Related Documents, the Fee Letter, each Notice of Borrowing, Notice of
Issuance, and all other documents, instruments, certificates, and agreements
executed or delivered by AGCO or its Subsidiaries in connection with or pursuant
to this Agreement.
"Loan Parties" means the Borrowers, the Guarantors, the Pledgors, each
Material Subsidiary and each other Person executing a Security Document to
provide Collateral for the Obligations.
"Margin Stock" has the meaning specified in Regulation U.
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"Material Adverse Effect" means, as of any date of determination, a
material adverse effect on (a) the business, condition (financial or otherwise),
operations, properties or prospects of AGCO and its Restricted Subsidiaries,
taken as a whole, (b) the material rights and remedies of either Agent or any
Lender under any Loan Document or in any Collateral, or (c) the ability of any
Loan Party to perform its Obligations under any Loan Document to which it is or
is to be a party.
"Material Contract" means, with respect to any Person, each contract to
which such Person is a party (a) involving aggregate minimum consideration
payable to or by such Person in any year of U.S. $25,000,000, or (b) otherwise
material to the business, condition (financial or otherwise), operations,
properties or prospects of AGCO and its Subsidiaries, taken as a whole, and for
which no alternative source of performance by the other party or parties thereto
is readily available, and each other contract to which AGCO or a Subsidiary is a
party which covers and/or replaces the services and/or arrangements which are
provided for in any of the foregoing.
"Material Subsidiary" means a Restricted Subsidiary of AGCO which meets
any of the following conditions:
(a) Such Subsidiary's total assets, in the aggregate (after
intercompany eliminations), equals or exceeds 10% of the Consolidated Total
Assets, as of the end of the most recently completed fiscal quarter; or
(b) The net revenues of such Subsidiary equals or exceeds 10% of
net revenues of AGCO and its Restricted Subsidiaries on a Consolidated basis for
the most recently completed fiscal quarter and the three immediately preceding
completed fiscal quarters.
"Maturity Date" means the earlier of October 17, 2005 and the date of
termination in whole of the Commitments pursuant to Section 2.3 or 8.1.
"Merger" means the merger on or prior to the Agreement Date of US
Subsidiary and Target, as more fully described in that certain Agreement and
Plan of Merger dated as of November 20, 2000, between Target, US Subsidiary and
AGCO.
"Moody's" means Xxxxx'x Investors Service, Inc. and it successors.
"Multi-Currency Advance" has the meaning specified in Section 2.1(a).
"Multi-Currency Borrowing" means a borrowing consisting of simultaneous
Multi-Currency Advances of the same Type made by the Multi-Currency Lenders.
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"Multi-Currency Borrower" means each Borrower other than the Canadian
Subsidiary.
"Multi-Currency Borrower Outstandings" means, on any date of
determination:
(a) the aggregate principal amount of all Swing Line
Advances made to AGCO, plus the aggregate principal amount of all Multi-Currency
Advances in U.S. dollars and of the Equivalent Amount in U.S. dollars of all
Multi-Currency Advances in Offshore Currencies, in either case outstanding on
such date of determination, plus;
(b) the aggregate principal amount of all Letter of
Credit Advances in U.S. dollars and of the Equivalent Amount of all Letter of
Credit Advances in Offshore Currencies, in either case in respect of Letters of
Credit outstanding on such date of determination and issued for the account of
any Multi-Currency Borrower, plus;
(c) the aggregate of the Available Amount of all Letters
of Credit denominated in U.S. dollars and the Equivalent Amount of the Available
Amount of all Letters of Credit denominated in other currencies, in either case
issued for the account of Multi-Currency Borrowers and outstanding on such date
of determination.
"Multi-Currency Commitment" means, with respect to any Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Multi-Currency Commitment" or, if such Lender has entered
into one or more Assignments and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 10.7(c) as
such Lender's "Multi-Currency Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.3.
"Multi-Currency Facility" means, at any time, the aggregate amount of
the Multi-Currency Lenders' Multi-Currency Commitments at such time, which shall
not exceed the Equivalent Amount of U.S. $330,000,000.
"Multi-Currency Issuing Bank " means Rabobank and its successors and
assigns hereunder as issuer of Letters of Credit for the accounts of
Multi-Currency Borrowers.
"Multi-Currency Lender" means any Lender that has a Multi-Currency
Commitment.
"Multiemployer Plan" of any Person means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, that is subject to ERISA and to which
such Person or any of its ERISA Affiliates is making or accruing an obligation
to make contributions, or has
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within any of the preceding five plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that is subject to ERISA and (a) is
maintained for employees of such Person or any of its ERISA Affiliates and at
least one Person other than such Person and its ERISA Affiliates or (b) was so
maintained and in respect of which such Person or any of its ERISA Affiliates
could have liability under Section 4064 or 4069 of ERISA in the event such plan
has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
other disposition of any asset or the sale or issuance of any Indebtedness or
Stock, any securities convertible into or exchangeable for Stock or any
warrants, rights or options to acquire Stock by any Person, the aggregate amount
of cash received from time to time by or on behalf of such Person in connection
with such transaction, after deducting therefrom only (a) reasonable and
customary brokerage commissions, underwriting fees and discounts, legal fees,
finder's fees and other similar fees and commissions, (b) the amount of taxes
payable in connection with or as a result of such transaction, and (c) the
principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Advances) that is secured by a Lien on the assets
in question, in each case to the extent, but only to the extent, that the
amounts so deducted are, at the time of receipt of such cash, actually paid to a
Person that is not an Affiliate and are properly attributable to such
transaction or to the asset that is the subject thereof.
"Netherlands Subsidiary" has the meaning specified in the introductory
paragraph of this Agreement.
"Non BA Lender" means a Canadian Facility Lender or Participant that
cannot or does not as a matter of policy issue bankers' acceptances.
"Note" means, collectively, (a) any promissory note of a Borrower
payable to the order of a Lender, in substantially the form of Exhibit B-1
hereto in the case of any Multi-Currency Borrower, or of Exhibit B-2 hereto, in
the case of the Canadian Subsidiary, evidencing the aggregate indebtedness of
such Borrower to such Lender, and (b) any promissory note executed by AGCO
payable to the Swing Line Bank in the amount of the Swing Line Sublimit.
"Notice of Borrowing" has the meaning specified in Section 2.2(a).
"Notice of Issuance" has the meaning specified in Section 2.10(b).
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"Obligations" means, (a) all payment and performance obligations of the
Borrowers to the Lenders, the Issuing Banks, and the Agents under this Agreement
and the other Loan Documents (including all obligations under Letters of Credit
and including any interest, fees and expenses that, but for the provisions of
the Bankruptcy Code, would have accrued), as they may be amended from time to
time, or as a result of making the Advances or issuing the Letters of Credit,
(b) the obligation to pay an amount equal to the amount of any and all damages
which the Issuing Banks, the Lenders and the Agents, or any of them, may suffer
by reason of a breach by any Loan Party of any obligation, covenant, or
undertaking with respect to this Agreement or any other Loan Document, (c) all
obligations of any Borrower to pay the face amount of Bankers' Acceptances, and
(d) all obligations of the Borrowers to the Administrative Agent under the Fee
Letter.
"Offshore Currency" means (a) British pounds, Canadian Dollars, Dutch
guilders, German deutschemarks, French francs, and European Union euros, and (b)
any Agreed Alternative Currency.
"Original Currency" has the meaning ascribed to such term in Section
11.3 hereof.
"Other Currency" has the meaning ascribed to such term in Section 11.3
hereof.
"Other Taxes" has the meaning specified in Section 11.4.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Participant" has the meaning specified in Section 10.7(e).
"Permitted Amount" means, for any fiscal year, the amount corresponding
to such fiscal year as set forth in the table in Section 7.19(e) hereof.
"Permitted Liens" means:
(a) Any Lien in favor of the Agents, the Issuing Banks or
the Lenders given to secure the Obligations;
(b) (i) Liens on Real Property for real property taxes
not yet delinquent and (ii) Liens for taxes, assessments, judgments,
governmental charges or levies, or claims the non-payment of which is being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves have been set aside on such Person's books;
(c) Liens of landlords and liens of carriers,
warehousemen, mechanics, laborers, suppliers, workers and materialmen incurred
in the ordinary course of business
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for sums not yet due or being diligently contested in good faith, if such
reserve or appropriate provision, if any, as shall be required by GAAP shall
have been made therefor;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance or other types
of social security benefits;
(e) Easements, rights-of-way, restrictions, and other
similar encumbrances on the use of Real Property which do not interfere with the
ordinary conduct of the business of such Person, or Liens incidental to the
conduct of the business of such Person or to the ownership of its properties
which were not incurred in connection with Indebtedness or other extensions of
credit and which do not in the aggregate materially detract from the value of
such properties or materially impair their use in the operation of the business
of such Person;
(f) Purchase money security interests, provided that such
Lien attaches only to the asset so purchased by such Person and secures only
Indebtedness incurred by such Person in order to purchase such asset, but only
to the extent permitted by Section 7.1(b) hereof;
(g) Liens existing on the property of a Person (including
Target and its Subsidiaries to the extent such Liens are disclosed on Schedule
4.1(p)) immediately prior to its being acquired by AGCO or a Restricted
Subsidiary, or any Lien existing on any property acquired by AGCO or a
Restricted Subsidiary at the time such property is so acquired; provided that no
such Lien shall have been created or assumed in contemplation of such Person's
becoming a Restricted Subsidiary or such acquisition of property; and provided,
that each such Lien shall at all times be confined solely to the item or items
of property so acquired and, if required by the terms of the instrument
originally creating such Lien, other property that is an improvement to or is
acquired for specific use in connection with such acquired property;
(h) Deposits to secure the performance of bids, trade
contracts, tenders, sales, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(i) Judgment liens that (i) do not have a Material
Adverse Effect, and (ii) do not cause an Event of Default hereunder;
(j) Liens on wholesale Receivables (and the Related
Assets) sold pursuant to a Securitization Facility, and on Receivables sold
under any factoring arrangement permitted hereunder;
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(k) Precautionary financing statements filed by lessors
with respect to equipment leases under which AGCO or a Restricted Subsidiary is
lessee;
(l) Liens arising in connection with Tax Abatement
Transactions permitted hereunder;
(m) Liens encumbering customary initial deposits and
margin deposits that are either within the general parameters customary in the
industry and incurred in the ordinary course of business, in each case, securing
Indebtedness under Interest Hedge Agreements and Foreign Exchange Agreements and
forward contracts, options, future contracts, future options or similar
agreements or arrangements designed solely to protect AGCO or any of its
Restricted Subsidiaries from fluctuations in interest rates, currencies or the
price of commodities;
(n) Liens on Real Property owned by Dronningborg
Industries AS as of the Agreement Date securing Indebtedness permitted by
Section 7.1(h)(ii);
(o) Liens securing reimbursement obligations with respect
to letters of credit that encumber documents of title and property shipped under
such letters of credit, to the extent the incurrence of such reimbursement
obligations are permitted hereunder;
(p) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in connection
with the importation of goods;
(q) Any other Liens that do not exceed $10,000,000 in the
aggregate at any time outstanding; and
(r) To the extent that Indebtedness secured thereby is
permitted by the terms of this Agreement to be extended, renewed, replaced or
refinanced, a future Lien upon any property which is subject to a Permitted Lien
described in clauses (f) or (g) above, if such future Lien attaches only to the
same property, secures only such permitted extensions, replacements, renewals or
refinancings and is of like quality, character and extent, and otherwise
satisfies all of the terms and conditions of this Agreement.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan that is
subject to ERISA.
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"Pledge Agreements" means any pledge agreement, charge over shares or
similar agreement delivered on the Agreement Date by each of the Persons listed
under the heading of "Pledgor" on Schedule P-1 hereto, granting a Lien on the
Stock described on Schedule P-1 hereto in favor of the Appropriate Agent, and
any other agreement delivered after the Agreement Date (including by way of
supplement to any pledge agreement) by any Person granting a Lien on any Stock
owned by such Person, in each case as amended, supplemented or modified from
time to time in accordance with its terms.
"Pledgors" means each of Persons listed under the heading of "Pledgor"
on Schedule P-1 hereof, and each other Person that at any time hereafter pledges
any of its assets (including Stock of any of its Subsidiaries) to secure the
Obligations or any part thereof.
"Prior Credit Agreement" has the meaning set forth in the recitals
hereto.
"Pro Rata Share" of any amount means: (a) with respect to any
Multi-Currency Lender at any time, an amount equal to (i) a fraction the
numerator of which is the amount of such Lender's Multi-Currency Commitment at
such time and the denominator of which is the Multi-Currency Facility at such
time, multiplied by (ii) such amount, (b) with respect to any Canadian Facility
Lender at any time, an amount equal to (i) a fraction the numerator of which is
the amount of such Lender's Canadian Facility Commitment at such time and the
denominator of which is the Canadian Facility at such time, multiplied by (ii)
such amount, and (c) with respect to any Lender at any time, an amount equal to
(i) a fraction the numerator of which is the sum of the amount of such Lender's
Multi-Currency Commitment and Canadian Facility Commitment at such time and the
denominator of which is the Commitments of all Lenders at such time, multiplied
by (ii) such amount.
"Rabobank" has the meaning specified in the introductory paragraph of
this Agreement.
"Rabobank Canada" has the meaning specified in the introductory
paragraph of this Agreement.
"Rabobank London" means Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., trading as Rabobank International, London Branch.
"Receivables" means right to payment for goods sold or leased or for
services rendered whether or not it has been earned by performance.
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"Real Property" means, in respect of any Person, any estates or
interests in real property now owned or hereafter acquired by such Person.
"Real Property Collateral" means the parcel or parcels of Real Property
and the related improvements thereto identified on Schedule 5.19, and any other
Real Property subject to a Lien in favor of any Agent to secure all or any part
of the Obligations.
"Real Property Documents" means the mortgages, deeds of trust, or deeds
to secure debt or similar instruments with respect to the Real Property
Collateral, executed by one or more Loan Parties to secure all or any part of
the Obligations, together with all related items, documents, and agreements,
including without limitation, mortgagee title insurance policies, opinions of
local counsel, existing environmental reports, existing surveys, and
environmental indemnity agreements, and such other items as requested by the
Administrative Agent, in each case as amended, supplemented or modified from
time to time in accordance with its terms, and in form and substance
satisfactory to the Administrative Agent.
"Register" has the meaning specified in Section 10.7.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Related Assets" means, with respect to any Receivable conveyed
pursuant to a Securitization Facility, all records, writings, contracts, payment
intangibles, encumbrances, liens, security interests and similar adverse claims
securing and supporting such Receivable.
"Relevant Currency Time" means, for any Borrowing in any currency, the
local time in the city where the Appropriate Agent's Account for such currency
is located.
"Required Lenders" means, at any time, (a) prior to the General
Syndication Date, the greater of three Lenders or the number of Lenders
determined by clause (b) below, and (b) on or after the General Syndication
Date, (i) if the Borrower Outstandings equal zero, Lenders the total of whose
Commitments equal or exceed fifty-one percent (51%) of all Commitments, or (ii)
if the Borrower Outstandings exceed zero, Lenders whose Pro Rata Share of the
Borrower Outstandings equals or exceeds fifty-one percent (51%) of the total
principal amount of the Borrower Outstandings (in the Equivalent Amount in U.S.
dollars as of the most recent Computation Date); provided, however, that if any
Lender shall be a Defaulting Lender at such time, there shall be excluded from
the determination hereunder at such time, (x) the aggregate principal amount of
Advances made by such Lender and outstanding at such time, (y) such Lender's Pro
Rata Share of the Available Amount of any Letter of Credit or Swing Line
Advances, and (z) such Lender's Commitments at such time.
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"Responsible Employee" means the Executive Chairman, President, Chief
Financial Officer, Treasurer, General Counsel or any Associate or Assistant
General Counsel, Assistant Treasurer or Vice President of AGCO or any equivalent
position of any Borrowing Subsidiary; any other employee of any Borrower
responsible for monitoring compliance with this Agreement or any other Loan
Document; and, with respect to matters relating to ERISA, any individual having
general management responsibility with respect to such matters.
"Restricted Payment" means any direct or indirect distribution,
dividend, or other payment to any Person on account of any general or limited
partnership interest in, or shares of Stock or other securities of such Person
and the payment of any management or similar fee to any Person.
"Restricted Purchase" means any payment on account of the purchase,
redemption, or other acquisition or retirement of any shares of Stock or other
securities of, AGCO.
"Restricted Subsidiaries" means, as of any date of determination, the
Subsidiaries of AGCO as of such date whose accounts would be Consolidated with
AGCO in accordance with GAAP, including each Material Subsidiary and excluding
Agricredit Acceptance Canada, Ltd.
"Reuters' Screen CDOR Page" means the display designated as page CDOR
on the Reuters' Monitor Money Service or such other page as may, from time to
time, replace the Reuters' Screen CDOR Page on that service for the purpose of
displaying bid quotations for bankers' acceptances issued by leading Canadian
banks.
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc., and its successors.
"Same Day Funds" means (a) with respect to disbursements and payments
in U.S. dollars, immediately available funds, and (b) with respect to
disbursements and payments in an Offshore Currency, same day or other funds as
may be determined by the Administrative Agent to be customary in the place of
disbursements or payment for the settlement of international banking
transactions in the relevant Offshore Currency.
"Security Agreements" means (a) that certain Security Agreement of even
date herewith among AGCO, US Subsidiary, certain U.S. Subsidiaries of AGCO and
the Administrative Agent, (b) those certain Floating and Fixed Charges of even
date herewith executed by each of English Subsidiary One, English Subsidiary
Two, AGCO Manufacturing Limited and AGCO Services Limited in favor of the
Administrative
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Agent, (c) that certain Security under Section 427 of the Bank Act, that certain
General Security Agreement (Ontario) of even date herewith, executed by the
Canadian Subsidiary in favor of the Canadian Administrative Agent or one or more
of the Canadian Facility Lenders, as applicable, together with all other
notices, instruments or agreements related thereto (including notices under
Section 427 of the Bank Act), (d) that certain Intellectual Property Security
Agreement of even date herewith among AGCO, Xxxxxx Xxxxxxxx Corp., US
Subsidiary, Hay & Forage Industries and the Administrative Agent, and (e) any
other agreement delivered on or after the Agreement Date (including by way of
supplement to any of the foregoing) by any Person granting a Lien on the assets
of such Person (including, without limitation, any Lien on bank accounts of such
Person) to secure all or any part of the Obligations, in each case as amended,
supplemented or modified from time to time in accordance with its terms.
"Security Documents" means, individually and collectively, the Pledge
Agreements, the Security Agreements, and the Real Property Documents.
"Securitization Documents" means the US Securitization Documents, the
European Securitization Documents and any documents executed in connection with
the Canadian Securitization, in form and substance satisfactory to the
Administrative Agent.
"Securitization Facility" means, individually or collectively, the US
Securitization, the European Securitization and the Canadian Securitization.
"Securitization Funding" means any Indebtedness, trust participations
or any other interests that the Administrative Agent determines are equivalent
thereto, incurred or issued by any Person purchasing Receivables in a
Securitization Facility and applicable to the purchase of such Receivables. Any
reference to the principal amount of Securitization Funding on any date refers
to the "invested amount," "capital," "investment," or analogous term reflecting
the amount paid for the purchase of Receivables in a Securitization Facility or
any trust participations or other equivalent interests issued in connection
therewith, in each case as of such date as determined by the Administrative
Agent. Any reference to the interest expense attributable to any Securitization
Funding refers to any interest expense in respect of any Indebtedness comprising
the same or the equivalent of such interest expense, as determined by the
Administrative Agent, with respect to such purchase of Receivables or any trust
participations or other equivalent interests issued in connection therewith, in
each case for such period.
"Securitization Intercreditor Agreement" means that certain
Intercreditor Agreement of even date herewith by and among Rabobank, in its
capacity as Administrative Agent, Rabobank, in its capacity as Agent under the
US Securitization, and Nieuw Amsterdam Receivables Corporation, as the same may
be amended, restated or modified from time to time.
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"Senior Debt Ratio" means, on any date of determination, the ratio of
(a)(i) the average of the principal amount of Funded Debt outstanding as of the
last day of each fiscal quarter for the four fiscal quarter period then ended,
minus (ii) the amount of Indebtedness outstanding under the Senior Unsecured
Notes and the Subordinated Notes as of the last day of the most recent fiscal
quarter end, to (b) Consolidated EBITDA for the most recent fiscal quarter of
AGCO for which financial statements have been delivered to the Administrative
Agent pursuant to Section 6.1(b) and for the three complete fiscal quarters of
AGCO immediately preceding such fiscal quarter.
"Senior Note Documents" means the Senior Unsecured Note Indenture, the
Senior Unsecured Notes and such other documents executed by AGCO in connection
therewith.
"Senior Note Guarantors" means Hay & Forage Industries, AGCO Ventures
LLC, Hesston Ventures Corporation, US Subsidiary, Ag-Chem Sales Co., Inc.,
Ag-Chem Manufacturing Co., Inc., Ag-Chem Equipment Canada, Ltd., Ag-Chem
Equipment International, Inc. and Lor*Al Products, Inc.
"Senior Note Trustee" means SunTrust Bank, in its capacity as trustee
under the Senior Unsecured Note Indenture, and any successor trustee under the
Senior Unsecured Note Indenture.
"Senior Unsecured Note Indenture" means that certain Indenture dated as
of April 17, 2001 by and among AGCO, as issuer, and the Senior Note Trustee, as
amended, modified and supplemented from time to time.
"Senior Unsecured Notes" means those certain $250,000,000 principal
amount 9.5% Senior Unsecured Notes due 2008 issued by AGCO pursuant to the
Senior Unsecured Note Indenture and any Exchange Notes (as defined in the Senior
Unsecured Note Indenture) issued in substitution, replacement or exchange
thereof.
"Single Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that is subject to ERISA and (a) is
maintained for employees of such Person or any of its ERISA Affiliates and no
Person other than such Person and its ERISA Affiliates, or (b) was so maintained
and in respect of which such Person or any of its ERISA Affiliates could have
liability under Section 4069 of ERISA in the event such plan has been or were to
be terminated.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the tangible and intangible property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair salable
value of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as
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they become absolute and matured, (c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay such debts and liabilities as they mature and (d) such Person is
not engaged in business or a transaction, and is not about to engage in business
or a transaction, for which such Person's tangible and intangible property would
constitute an unreasonably small capital. The amount of contingent liabilities
at any time shall be computed as the amount that, in the light of all the facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability; provided,
however, that with respect to any Person organized under the laws of the United
Kingdom, "Solvent" means that such Person is able to pay its debts as they fall
due, is not deemed unable to pay its debts as they fall due within the meaning
of Section 123(1) of the Insolvency Act of 1986 and that the value of its assets
is greater than the value of its liabilities, taking into account contingent and
prospective liabilities; provided, further, that with respect to any Person
organized under the laws of Canada or its provinces "Solvent" means that (i)
such Person is able to meet its obligations as they generally become due; (ii)
such Person is currently paying its current obligations in the ordinary course
of business as they generally come due; and (iii) the aggregate value of that
Person's property is, at a fair valuation, sufficient, or if disposed of at a
fairly conducted sale under legal process, would be sufficient to enable payment
of all its obligations, due and accruing due.
"Spot Rate" for a currency means the rate quoted by the Administrative
Agent as the spot rate for the purchase by the Administrative Agent of such
currency with another currency through its foreign exchange office at
approximately 11:00 a.m. (New York time) on the date two Business Days prior to
the date as of which the foreign exchange computation is made.
"Standby Letter of Credit" means any Letter of Credit issued under the
Letter of Credit Subfacility, other than a Trade Letter of Credit.
"Stock" means, as applied to any Person, any stock, share capital,
partnership interests or other equity of such Person, regardless of class or
designation, and all warrants, options, purchase rights, conversion or exchange
rights, voting rights, calls or claims of any character with respect thereto.
"Subordinated Note Documents" means the Subordinated Note Indenture,
the Subordinated Notes and such other documents executed by AGCO in connection
therewith.
"Subordinated Note Indenture" means that certain Indenture dated as of
March 20, 1996 by and among AGCO, as issuer, and the Subordinated Note Trustee,
as amended, modified and supplemented from time to time.
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"Subordinated Notes" means those certain $250,000,000 principal amount
8 1/2% Subordinated Notes due 2006 issued by AGCO pursuant to the Subordinated
Note Indenture.
"Subordinated Note Trustee" means SunTrust Bank, f/k/a SunTrust Bank,
Atlanta, in its capacity as trustee under the Subordinated Note Indenture, and
any successor trustee under the Subordinated Note Indenture.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) 50%
or more of (a) the issued and outstanding Stock (or the equivalent thereof)
having ordinary voting power to elect a majority of the Board of Directors of
such corporation (irrespective of whether at the time Stock (or the equivalent
thereof) of any other class or classes of such corporation shall or might have
voting power upon the occurrence of any contingency), (b) the interest in the
capital or profits of such partnership, joint venture or limited liability
company or (c) the beneficial interest in such trust or estate is at the time
directly or indirectly owned or controlled by such Person, by such Person and
one or more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Swing Line Advance" means an advance made by the Swing Line Bank
pursuant to Section 2.1(c).
"Swing Line Bank" means any Lender hereunder, as designated by AGCO in
accordance with this Agreement with the written consent of the Administrative
Agent, acting hereunder as "Swing Line Bank" to make Swing Line Advances to
AGCO. The initial Swing Line Bank shall be SunTrust Bank.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank.
"Swing Line Sublimit" has the meaning specified in Section 2.1(c).
"Target" has the meaning ascribed in the recitals hereto.
"Tax Abatement Transaction" means any revenue bond financing
arrangement between any Person and a development authority or other similar
governmental authority or entity for the purpose of providing property tax
abatement to such Person whereby (i) the development authority issues revenue
bonds to finance the acquisition of property that is now owned or hereafter
acquired by AGCO or a Restricted Subsidiary, (ii) the property so transferred is
leased back by AGCO or such Restricted Subsidiary, (iii) the bonds issued to
finance the acquisition are owned by AGCO or a Restricted Subsidiary, (iv) the
rental payments on the lease and the debt service payments on the bonds are
substantially equal and (v) AGCO or such Restricted Subsidiary has the option to
prepay the bonds,
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terminate its lease and reacquire the property for nominal consideration at any
time; provided that if at any time any of the foregoing conditions shall cease
to be satisfied, such transaction shall cease to be a Tax Abatement Transaction.
"Taxes" has the meaning specified in Section 11.4.
"Total Debt Ratio" means, at any date of determination, the ratio of
(a) the average of the principal amount of Funded Debt outstanding as of the
last day of each fiscal quarter for the four fiscal quarter period then ended,
to (b) Consolidated EBITDA for the most recent fiscal quarter of AGCO for which
financial statements have been delivered to the Administrative Agent pursuant to
Section 6.1(b) and for the three complete fiscal quarters of AGCO immediately
preceding such fiscal quarter.
"Trade Letter of Credit" means any Letter of Credit that is issued
under the Letter of Credit Subfacility for the benefit of a supplier of
Inventory to AGCO or any of its Restricted Subsidiaries to support payment for
such Inventory.
"Type" refers to the distinction among Advances bearing interest at the
Base Rate and Advances bearing interest at the LIBO Rate and Advances by way of
Bankers' Acceptances.
"United States dollars", "U.S. dollars" or "U.S. $" means lawful money
of the United States of America.
"Unused Canadian Facility Commitment" means, with respect to any
Canadian Facility Lender at any date of determination, (a) such Lender's
Canadian Facility Commitment at such time, minus (b) the Equivalent Amount in
U.S. dollars as of such date of (i) the aggregate principal amount of all Base
Rate Advances and LIBO Rate Advances made by such Lender and outstanding on such
date, plus (ii) the aggregate face amount of all Bankers' Acceptances accepted
by such Lender and outstanding on such date, plus (iii) such Lender's Pro Rata
Share of (x) the aggregate Available Amount of all Letters of Credit issued for
the account of the Canadian Subsidiary and outstanding on such date, plus (y)
the aggregate principal amount of all Letter of Credit Advances outstanding on
such date in respect of Letters of Credit issued for the account of the Canadian
Subsidiary.
"Unused Fee" has the meaning set forth in Section 2.6 hereof.
"Unused Multi-Currency Commitment" means, with respect to any
Multi-Currency Lender at any date of determination, (a) such Lender's
Multi-Currency Commitment at such time, minus (b) the Equivalent Amount in U.S.
dollars as of such date of (i) the aggregate principal amount of all
Multi-Currency Advances made by such
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Lender and outstanding on such date, plus (ii) such Lender's Pro Rata Share of
(x) the aggregate Available Amount of all Letters of Credit issued for the
account of any Multi-Currency Borrower and outstanding on such date, plus (y)
the aggregate principal amount of all Letter of Credit Advances outstanding on
such date in respect of Letters of Credit issued for the account of any
Multi-Currency Borrower, plus (z) the aggregate principal amount of all Swing
Line Advances outstanding on such date.
"US Securitization" means funding in connection with sales by AGCO of
wholesale Receivables invoiced to third parties located in, or who remit payment
of invoices to a lockbox or deposit account located in, the United States under
a securitization program, as more fully set forth in the US Securitization
Documents.
"US Securitization Documents" means (a) that certain Receivables Sale
Agreement among AGCO, as originator, and AGCO Funding Corporation, as buyer,
dated January 27, 2000, (b) that certain Receivables Purchase Agreement among
AGCO, as initial servicer, AGCO Funding Corporation, as seller, certain conduit
purchasers and committed purchasers, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank International", New York Branch, as
agent, dated January 27, 2000, and (c) all other agreements in form and
substance satisfactory to the Administrative Agent executed in connection with,
or in replacement of, the foregoing, as the same may be amended, supplemented or
modified from time to time with the consent of the Administrative Agent.
"US Subsidiary" has the meaning specified in the introductory paragraph
of this Agreement.
"Wholly Owned" means, as applied to any Restricted Subsidiary, a
Restricted Subsidiary all the outstanding shares (other than directors'
qualifying shares, if required by law) of every class of stock of which are at
the time owned by AGCO and/or by one or more Wholly Owned Restricted
Subsidiaries.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
Section 1.2 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding."
Section 1.3 Accounting Terms. (a) Except as otherwise expressly
provided herein, all accounting terms used herein shall be interpreted, and all
financial statements and certificates and reports as to financial matters
required to be delivered to the
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Administrative Agent hereunder shall (unless otherwise disclosed to the Lenders
in writing at the time of delivery thereof in the manner described in subsection
(b) below) be prepared, in accordance with U.S. generally accepted accounting
principles ("GAAP") applied on a basis consistent with those used in the
preparation of the latest financial statements furnished to the Lenders
hereunder. All calculations made for the purposes of determining compliance with
this Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied on a basis
consistent with those used in the preparation of the annual or quarterly
financial statements furnished to the Lenders pursuant to Section 6.1 most
recently prior to or concurrently with such calculations unless (i) either (x)
AGCO shall have objected to determining such compliance on such basis at the
time of delivery of such financial statements or (y) the Required Lenders shall
so object in writing within 180 days after delivery of such financial statements
and (ii) AGCO and the Required Lenders have not agreed upon amendments to the
financial covenants contained herein to reflect any change in such basis, in
which event such calculations shall be made on a basis consistent with those
used in the preparation of the latest financial statements as to which such
objection shall not have been made.
(b) AGCO shall deliver to the Administrative Agent, at
the same time as the delivery of any annual or quarterly financial statement
under Section 6.1, (i) a description in reasonable detail of any material
variation between the application of accounting principles employed in the
preparation of such statement and the application of accounting principles
employed in the preparation of the next preceding annual or quarterly financial
statements as to which no objection has been made in accordance with the last
sentence of subsection (a) above, and (ii) reasonable estimates of the
difference between such statements arising as a consequence thereof.
Section 1.3 Currency Equivalents. For purposes of determining in
any currency any amount outstanding in another currency, the Equivalent Amount
of such currency on the date of any such determination shall be used. If any
reference to any Advances or other amount herein would include amounts in U.S.
dollars and in one or more Offshore Currencies or to an amount in U.S. dollars
that in fact is in one or more Offshore Currencies, such reference (whether or
not it expressly so provides) shall be deemed to refer, to the extent it
includes an amount in any Offshore Currency, the Equivalent Amount in U.S.
dollars of such amount at the time of determination.
ARTICLE 2.
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
Section 2.1 Extension of Credit. Subject to the terms and
conditions of, and in reliance upon the representations and warranties made in,
this Agreement and the other
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Loan Documents, the Lenders agree, severally in accordance with their respective
Pro Rata Shares of the Commitments and not jointly, to extend credit in an
aggregate principal amount not to exceed THREE HUNDRED FIFTY MILLION DOLLARS
($350,000,000) to the Borrowers, as hereinafter provided.
(a) Multi-Currency Advances. Each Multi-Currency Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "Multi-Currency Advance") to the Multi-Currency Borrowers from
time to time on any Business Day during the period from the date hereof until
the Maturity Date in an amount for each such Advance not to exceed such Lender's
Unused Multi-Currency Commitment on such Business Day. In no event shall the
Multi-Currency Lenders be obligated to make any Multi-Currency Advance if, on
the date of such Advance and after giving effect thereto, the Multi-Currency
Borrower Outstandings on such date would exceed the amount of the Multi-Currency
Facility on such date. Each Multi-Currency Borrowing shall be in U.S. dollars
in, or the Equivalent Amount in the requested Offshore Currency of, an aggregate
amount of U.S. $5,000,000 or an integral multiple of U.S. $1,000,000 in excess
thereof and shall consist of Multi-Currency Advances made by such Lenders
ratably according to their Multi-Currency Commitments. The Equivalent Amount in
U.S. dollars of each Multi-Currency Advance shall be recalculated hereunder on
each date on which it shall be necessary to determine the Unused Multi-Currency
Commitment, or any or all Advance or Advances outstanding on such date. Within
the limits of each Multi-Currency Lender's Unused Multi-Currency Commitment in
effect from time to time, the Multi-Currency Borrowers may borrow under this
Section 2.1(a), prepay pursuant to Section 2.4 and reborrow under this Section
2.1(a).
(b) Canadian Facility Advances. Each Canadian Facility
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make advances to and accept Bankers' Acceptances from (each a "Canadian Facility
Advance"), the Canadian Subsidiary from time to time on any Business Day during
the period from the date hereof until the Maturity Date in an amount for each
such Advance not to exceed such Lender's Unused Canadian Facility Commitment on
such Business Day. In no event shall the Canadian Facility Lenders be obligated
to make any Canadian Facility Advance if, on the date of such Advance and after
giving effect thereto, the Canadian Facility Outstandings on such date would
exceed the amount of the Canadian Facility on such date. Each Canadian Facility
Borrowing shall be by way of Bankers' Acceptances or Base Rate Advances or LIBO
Rate Advances in the Equivalent Amount in Canadian Dollars of an aggregate
amount of U.S. $1,000,000 or an integral multiple of U.S. $500,000 in excess
thereof, and shall consist of Canadian Facility Advances made by such Lenders
ratably according to their Canadian Facility Commitments. The Equivalent Amount
in U.S. dollars of each Canadian Facility Advance shall be recalculated
hereunder on each date on which it shall be necessary to determine the Unused
Canadian Facility Commitment, or any or all Advance or Advances outstanding on
such date.
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Within the limits of each Canadian Facility Lender's Unused Canadian Facility
Commitment in effect from time to time, the Borrowers may borrow under this
Section 2.1(b), prepay pursuant to Section 2.4 and reborrow under this Section
2.1(b).
(c) Swing Line Advances. Subject to the terms and
conditions hereinafter set forth (including the conditions in Article 3), the
Swing Line Bank, in its individual capacity, may in its sole discretion make
overnight loans in U.S. dollars to AGCO from time to time on any Business Day
during the period from the date hereof until the Maturity Date in an aggregate
amount not to exceed at any time outstanding U.S. $15,000,000 (the "Swing Line
Sublimit"); provided that after giving effect to any such Borrowing, the Multi
Currency Borrowing Outstanding shall not exceed the Multi-Currency Facility. As
it is understood that the purpose for the Swing Line Advance is to fund AGCO's
operating account, the making of the Swing Line Advances and the repayments to
the Swing Line Bank may be made on a sweep basis requiring no formal
notification from AGCO. The Swing Line Bank may at its discretion, upon three
business days written notice to AGCO, choose to require written notification of
Swing Line Advances from AGCO, but is not required to do so. No Swing Line
Advance shall be used for the purpose of funding the payment of principal of any
other Swing Line Advance. Each Swing Line Advance shall accrue interest at such
rate as may be agreed to between the Swing Line Bank and AGCO, and such interest
shall be due and payable in arrears monthly or more frequently as may be
required by the Swing Line Bank, and on the Maturity Date. Within the limits of
the Swing Line Sublimit, AGCO may borrow under this Section 2.1(c), prepay the
Swing Line Advances and reborrow under this Section 2.1(c).
Section 2.2 Making the Advances.
(a) Notices. Except as otherwise provided in Section
2.10, each Borrowing (other than a Swing Line Advance) shall be made on notice,
given not later than:
(i) 11:00 A.M. (New York City time) on the third
Business Day prior to the date of a proposed Borrowing, in the
case of a Borrowing consisting of LIBO Rate Advances;
(ii) 10:00 A.M. (New York City time) on the day
of a proposed Borrowing, in the case of a Borrowing consisting
of Base Rate Advances if the aggregate principal amount
thereof is less than $100,000,000;
(iii) 10:00 A.M. (New York City time) on the
Business Day prior to the date of a proposed Borrowing, in the
case of a Borrowing consisting of Base Rate Advances if the
aggregate principal amount thereof is $100,000,000 or more;
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(iv) 10:00 A.M. (Toronto time) on the second
Business Day prior to the date of a proposed Borrowing in the
case of a Borrowing consisting of Bankers' Acceptances,
by or on behalf of the Borrower requesting such Advance to the Administrative
Agent (in the case of a Multi-Currency Borrowing) or the Canadian Administrative
Agent (in the case of a Canadian Facility Borrowing), which shall give to each
Appropriate Lender prompt notice thereof by telecopier; provided however, in
connection with the Borrowing of the initial Advances hereunder, such Borrowing
may be made by giving such notice by 11:00 A.M. (New York City time) on the
Business Day of such Borrowing. Each such notice of a Borrowing (a "Notice of
Borrowing") shall be by electronic mail, telecopier or telephone, confirmed
immediately in writing, in substantially the form of Exhibit C-1 hereto (in the
case of a Borrowing by a Multi-Currency Borrower) or Exhibit C-2 hereto (in the
case of a Borrowing by the Canadian Subsidiary), specifying therein the:
(v) requested date of such Borrowing (which
shall be a Business Day);
(vi) requested Type of Advances comprising such
Borrowing, which (1) may be a Base Rate Advance or a LIBO Rate
Advance if such Advance is denominated in U.S. dollars or
Canadian Dollars, (2) shall be a LIBO Rate Advance if such
Advance is a Multi-Currency Advance and the requested currency
for such Borrowing is other than Canadian dollars or U.S.
dollars, and (3) may be by way of Bankers' Acceptances if such
Advance is denominated in Canadian Dollars;
(vii) requested aggregate principal amount or face
amount of such Borrowing, as the case may be;
(viii) requested currency in which such Borrowing
is to be made; provided that (1) such currency shall be (u)
Canadian dollars, if the Person requesting such Borrowing is
the Canadian Subsidiary; (v) British pounds, U.S. dollars or
European Union euros, if the Person requesting such Borrowing
is English Subsidiary One; (w) British pounds, Dutch guilders,
U.S. dollars or European Union euros, if the Person requesting
such Borrowing is English Subsidiary Two; (x) Dutch guilders
or European Union euros, if the Person requesting such
Borrowing is the Netherlands Subsidiary; (y) French francs,
U.S. dollars or European Union euros, if the Person requesting
such Borrowing is the French Subsidiary; and (z) German
deutschemarks, U.S. dollars or European Union euros, if the
Person requesting such Borrowing is German Subsidiary One or
German Subsidiary Two, (2) such currency shall not be Canadian
dollars if the Borrower is AGCO or US Subsidiary, and (3)
Borrowers shall be entitled
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to request that Multi-Currency Advances hereunder also be
permitted to be made in any other lawful currency constituting
a eurocurrency (other than U.S. dollars), in addition to the
currencies specified in clause (a) of the definition of
"Offshore Currency" herein, that in the opinion of all of the
Multi-Currency Lenders is at such time freely traded in the
offshore interbank foreign exchange markets and is freely
transferable and freely convertible into U.S. dollars (an
"Agreed Alternative Currency"). The applicable Borrower shall
deliver to the Administrative Agent any request for
designation of an Agreed Alternative Currency in accordance
with this section, to be received by the Administrative Agent
not later than 12:00 noon (New York City time) at least ten
Business Days prior to the date of any advance hereunder
proposed to be made in such Agreed Alternative Currency. Upon
receipt of any such request the Administrative Agent will
promptly notify the Multi-Currency Lenders thereof, and each
Multi-Currency Lender will use its best efforts to respond to
such request within two Business Days of receipt thereof. The
Multi-Currency Lenders may grant or accept such request in
their sole discretion, and the Borrowers understand that there
is no commitment by or understanding with any Multi-Currency
Lender with respect to the approval of any Agreed Alternative
Currency. The Administrative Agent will promptly notify the
applicable Borrower of the acceptance or rejection of any such
request;
(ix) in the case of a Borrowing consisting of
LIBO Rate Advances, requested initial Interest Period for each
such Advance and in the case of a Borrowing consisting of
Bankers' Acceptances, the Contract Period for each such
Advance; and
(x) Borrower's Account of such Borrower for such
Borrowing (which shall be with an institution located in the
same country as the Appropriate Agent's Account for the
requested currency of such Borrowing).
Each Borrowing by the Canadian Subsidiary shall be a Borrowing under the
Canadian Facility, and each other Borrowing shall be a Borrowing under the
Multi-Currency Facility.
(b) Making of Advances by Lenders. In the case of a
proposed Borrowing comprised of LIBO Rate Advances, the Appropriate Agent shall
promptly (and in any case no later than 11:00 A.M. (New York City time) on the
second Business Day before any LIBO Rate Advance or 1:00 P.M. (New York City
time) on the day of any Base Rate Advance) notify each Appropriate Lender of the
applicable interest rate under Section 2.5(a). Each Appropriate Lender shall,
before 11:00 A.M. (Relevant Currency Time) on the date of any Borrowing
consisting of LIBO Rate Advances, or 3:00 P.M. (New York
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City time) on the date of any Borrowing consisting of Base Rate Advances, make
available for the account of its Applicable Lending Office to the Appropriate
Agent at the Appropriate Agent's Account for Borrowings in the applicable
currency, in same-day funds, such Lender's Pro Rata Share of such Borrowing in
accordance with the respective Commitments of such Appropriate Lender and the
other Appropriate Lenders. Each Appropriate Lender shall, before 1:00 P.M.
(Toronto time) on the date of any Borrowing consisting of Bankers' Acceptances,
make available to the Canadian Subsidiary by way of the acceptance of Bankers'
Acceptances at the branch of the Appropriate Lender to which notices are sent
under Section 10.2, such Lender's Pro Rata Share of such Borrowing in accordance
with the Canadian Facility Commitments of such Appropriate Lender and the other
Appropriate Lenders. After the Appropriate Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article 3, the
Appropriate Agent will make such funds available to the requesting Borrower by
delivering such funds to the relevant Borrower's Account in the applicable
currency; provided that, in the case of any Borrowing, the Appropriate Agent
shall first make a portion of such funds, equal to the aggregate principal
amount of any Letter of Credit Advances to such Borrower made by the Appropriate
Issuing Bank and outstanding on the date of such Borrowing, available for
repayment of such Letter of Credit Advances. Receipt of such funds in a
Borrower's Account shall be deemed to have occurred when the Appropriate Agent
notifies AGCO, by telephone or otherwise, of the Federal Reserve Bank reference
number, CHIPS identification number or similar number with respect to the
delivery of such funds.
(c) Appointment of AGCO as Agent, Etc. Each Notice of
Borrowing shall be irrevocable and binding on the Borrower delivering such
Notice. Each Borrower (other than AGCO) (i) irrevocably and unconditionally
designates, as its agent for purposes of delivering any Notice of Borrowing on
behalf of such Borrower, AGCO and any officer or employee of AGCO, and (ii)
acknowledges that (A) any such Notice at any time delivered by AGCO or any such
officer or employee shall be binding on such Borrower and (B) neither Agent nor
any Lender shall have any duty to determine whether the delivery of any such
Notice by AGCO or any such officer or director was duly authorized by such
Borrower in any specific instance. In the case of any Borrowing that the related
Notice of Borrowing specifies is to be comprised of LIBO Rate Advances or
Bankers' Acceptances, the Borrower requesting such Borrowing shall indemnify
each Appropriate Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing the applicable conditions set forth in Article 3,
including without limitation any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Advance to be made
by such Lender as part of such Borrowing when such Advance, as a result of such
failure, is not made on such date.
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(d) Maximum Borrowings. No Multi-Currency Borrower shall
request a Borrowing if, after giving effect thereto, there would be more than 12
Borrowings outstanding under the Multi-Currency Facility and the Canadian
Subsidiary shall not request a Borrowing if, after giving effect thereto, there
would be more than 5 Borrowings outstanding under the Canadian Facility.
(e) Swing Line Advances.
(i) As it is understood that the purpose for the
Swing Line Advance is to fund AGCO's operating account, the
Swing Line Advances and repayments to the Swing Line Bank may
be made on a sweep basis, requiring no formal notification
from AGCO. The Swing Line Bank may at its discretion, upon
three business days written notice to AGCO, choose to require
written notification of Swing Line Advances from AGCO, but is
not required to do so. At any time the Swing Line Bank makes a
Swing Line Advance, each Multi-Currency Lender (other than the
Swing Line Bank) shall be deemed, without further action by
any Person, to have purchased from the Swing Line Bank an
unfunded participation in any such Swing Line Advance in an
amount equal to such Lender's Pro Rata Share of such Advance
and shall be obligated to fund such participation as a
Multi-Currency Advance at such time and in the manner provided
below. Each such Multi-Currency Lender's obligation to
participate in, purchase and fund such participating interests
shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (1) any
set-off, counterclaim, recoupment, defense or other right
which such Multi-Currency Lender or any other Person may have
against the Swing Line Bank or any other Person for any reason
whatsoever; (2) the occurrence or continuance of a Default or
an Event of Default or the termination of the Multi-Currency
Commitments; (3) any adverse change in the condition
(financial or otherwise) of AGCO or any other Person; (4) any
breach of this Agreement by any Borrower or any other
Multi-Currency Lender; or (5) any other circumstance,
happening or event whatsoever, whether or not similar to any
of the foregoing. Each Borrower hereby consents to each such
sale and assignment. Each Multi-Currency Lender agrees to fund
its Multi-Currency Commitment Pro Rata Share of an outstanding
Swing Line Advance on (x) the Business Day on which demand
therefor is made by the Swing Line Bank, provided that such
demand is made not later than 11:00 A.M. (New York City time)
on such Business Day, or (y) the first Business Day next
succeeding such demand if such demand is made after such time.
Upon any such assignment by the Swing Line Bank to any other
Multi-Currency Lender of a participation in a Swing Line
Advance, the Swing Line Bank
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represents and warrants to such other Multi-Currency Lender
that it is the legal and beneficial owner of such interest
being assigned by it, but makes no other representation or
warranty and assumes no responsibility with respect to such
Swing Line Advance, the Loan Documents or the Borrowers. If
and to the extent that any Multi-Currency Lender shall not
have so made the amount of such participation in such Swing
Line Advance available to the Administrative Agent, such
Multi-Currency Lender agrees to pay to the Administrative
Agent forthwith on demand such amount together with interest
thereon, for each day from the date of request by the Swing
Line Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate. If such
Multi-Currency Lender shall pay to the Administrative Agent
such amount for the account of the Swing Line Bank on any
Business Day, such amount so paid in respect of principal
shall constitute a US Dollar Advance made by such
Multi-Currency Lender on such Business Day for purposes of
this Agreement, and the outstanding principal amount of the
Swing Line Advance made by the Swing Line Bank shall be
reduced by such amount on such Business Day.
(ii) Unless the Swing Line Lender is the
Administrative Agent, the Swing Line Lender shall provide to
the Administrative Agent, on Friday of each week and on each
date the Administrative Agent notifies the Swing Line Lender
that any Borrower has made a borrowing request or the
Administrative Agent otherwise requests the same, an
accounting for the outstanding Swing Line Advances in form
reasonably satisfactory to the Administrative Agent. At any
time that the Unused Multi-Currency Commitment is less than
$15,000,000, the Swing Line Sublimit shall be reduced
temporarily to such lesser amount; and
(iii) Unless a Default or an Event of Default then
exists, the Swing Line Lender shall give AGCO and the
Administrative Agent at least seven (7) days prior written
notice before exercising its discretion herein not to make
Swing Line Advances. AGCO must give ten (10) days prior
written notice to the Administrative Agent of any change in
designation of the Swing Line Lender. The replaced Swing Line
Lender shall continue to be a "Swing Line Lender" for purposes
of repayment of any Swing Line Advances made prior to such
replacement and outstanding after such replacement.
Section 2.3 Reduction of the Commitments.
(a) Optional. AGCO may, upon at least three Business
Days' notice to the Administrative Agent (and, with respect to a reduction of
the Letter of Credit
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Commitment and the Unused Canadian Facility Commitments, the Canadian
Administrative Agent), terminate in whole or reduce in part the unused portions
of the Letter of Credit Commitments of the Issuing Banks, the Unused Canadian
Facility Commitments or the Unused Multi-Currency Commitments; provided that
each partial reduction: (i) shall be in an aggregate amount of U.S. $10,000,000
or an integral multiple of U.S. $5,000,000 in excess thereof; (ii) shall be made
ratably among the Appropriate Lenders in accordance with their Commitments with
respect to the applicable Facility; and (iii) shall be permanent and
irrevocable. Any reduction of the Letter of Credit Commitments shall apply to
the Letter of Credit Commitments of both Issuing Banks and shall reduce each
such Letter of Credit Commitment by the full amount of such reduction.
(b) Mandatory. The aggregate amount of the Multi-Currency
Facility and the Canadian Facility shall be permanently reduced by the amount
necessary, at any time, to cause the aggregate amount of Excess Proceeds (or of
what would be such Excess Proceeds but for their application pursuant to this
Section) in existence on any date to be less than $10,000,000, with each such
Facility being reduced by a portion of such Excess Proceeds equal to the amount
thereof multiplied by a fraction, the numerator of which is the amount of such
Facility at the time of such reduction and the denominator of which is the
aggregate amount of both such Facilities. Upon such reduction, (A) each
Multi-Currency Lender's Multi-Currency Commitment shall be reduced ratably in
accordance with the proportion that such Commitment bore to the Multi-Currency
Facility immediately before giving effect to such reduction, and (B) each
Canadian Facility Lender's Canadian Facility Commitment shall be reduced ratably
in accordance with the proportion that such Commitment bore to the Canadian
Facility immediately before giving effect to such reduction.
Section 2.4 Prepayments and Deposits.
(a) Optional. The Borrowers may, upon at least 3 (or 2 in the
case of a Base Rate Advance) Business Days' notice to the Administrative Agent
(and with respect to a prepayment of a Canadian Facility Advance, to the
Canadian Administrative Agent), prepay pro rata among the Appropriate Lenders
the outstanding amount of any Advance (other than (i) any Swing Line Advance and
Letter of Credit Advances made by an Issuing Bank (resulting from a drawing
under a Letter of Credit) not participated to any other Lender, in which case,
such prepayments shall not be made on a pro rata basis or require prior notice,
or (ii) Bankers' Acceptances) in whole or in part with accrued interest to the
date of such prepayment on the amount prepaid; provided, however, that in the
event that any Lender receives payment of the principal of any LIBO Rate Advance
other than on the last day of the Interest Period relating to such LIBO Rate
Advance (whether due to prepayments made by any Borrower, or due to acceleration
of the Advances, or due to any other reason), the applicable Borrowers shall pay
to such Appropriate Lender on demand any amounts owing pursuant to Section 11.2.
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(b) Mandatory.
(i) On any date on which the Multi-Currency Facility
shall be reduced pursuant to Section 2.3, if the
Multi-Currency Borrower Outstandings on such date shall exceed
the amount of the Multi-Currency Facility after giving effect
to such reduction, the Multi-Currency Borrowers shall prepay
Multi-Currency Advances or Letter of Credit Advances by the
Multi-Currency Lenders in the aggregate principal amount equal
to such excess, and shall pay on demand to the Appropriate
Lenders any amounts owing under Section 11.2 as a result of
such prepayment. Each such prepayment by a Multi-Currency
Borrower shall be applied ratably to such Multi-Currency
Advances forming part of the same Borrowing by such Borrower,
or to such Letter of Credit Advances pursuant to draws on the
same Letter of Credit issued for the account of such
Multi-Currency Borrower, as AGCO shall designate at the time
of such prepayment.
(ii) On any date on which the Canadian Facility shall
be reduced pursuant to Section 2.3, if the Canadian Facility
Outstandings on such date shall exceed the amount of the
Canadian Facility after giving effect to such reduction, the
Canadian Subsidiary shall prepay Canadian Facility Advances or
Letter of Credit Advances by the Canadian Facility Lenders in
the aggregate principal amount equal to such excess, and shall
pay on demand to the Appropriate Lenders any amounts owing
under Section 11.2 as a result of such prepayment. Each such
prepayment by the Canadian Subsidiary shall be applied ratably
to such Canadian Facility Advances forming part of the same
Borrowing by the Canadian Subsidiary, or to such Letter of
Credit Advances pursuant to draws on the same Letter of Credit
issued for the account of the Canadian Subsidiary, as the
Canadian Subsidiary shall designate at the time of such
prepayment.
(iii) If, on the last day of any Interest Period for
any LIBO Rate Advance to a Multi-Currency Borrower and on any
date on which a Base Rate Advance to a Multi-Currency Borrower
is outstanding, if the Multi- Currency Borrower Outstandings
on such date shall exceed 105% of the amount of the
Multi-Currency Facility on such date, such Multi-Currency
Borrower shall prepay the lesser of (x) the aggregate
principal amount of such LIBO Rate Advance as to which such
last date shall have occurred or of such Base Rate Advance,
and (y) such portion of such principal amount as shall be the
Equivalent Amount in the currency of such Advances of such
excess.
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(iv) On the last day of any Interest Period for any
LIBO Rate Advance to the Canadian Subsidiary and on the last
day of any Contract Period with respect to any outstanding
Bankers' Acceptances, and on any date on which a Base Rate
Advance to the Canadian Subsidiary is outstanding, if the
Canadian Facility Outstandings on such date shall exceed 105%
of the amount of the Canadian Facility on such date, the
Canadian Subsidiary shall prepay the lesser of (x) the
aggregate principal amount of such LIBO Rate Advance to it as
to which such last day shall have occurred or the aggregate
principal amount of such Base Rate Advance or the aggregate
face amount of such Bankers' Acceptances, and (y) such portion
of such principal amount or face amount, as the case may be,
as shall be the Equivalent Amount in the currency of such
Advances of such excess.
(v) AGCO shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral
Account an amount sufficient to cause the aggregate amount on
deposit in such Account to equal the amount by which (A) the
Multi-Currency Equivalent in U.S. dollars of (1) the aggregate
principal amount of all Letter of Credit Advances, plus (2)
the aggregate Available Amount of all Letters of Credit then
outstanding, exceeds (B) the Letter of Credit Subfacility on
such Business Day.
(vi) The Canadian Subsidiary shall repay to the
Canadian Administrative Agent for the ratable account of the
Canadian Facility Lenders the aggregate outstanding principal
amount or face amount, as the case may be, of its Borrowings
consisting of Canadian Facility Advances on the Maturity Date,
and each Multi-Currency Borrower shall repay to the
Administrative Agent for the ratable account of the
Multi-Currency Lenders the aggregate outstanding principal
amount of its Borrowings consisting of Multi-Currency Advances
on the Maturity Date.
(vii) Each Borrower shall, on demand, repay to the
Appropriate Agent for the account of the Appropriate Lenders
the outstanding principal amount of each Letter of Credit
Advance made by them to such Borrower.
(c) Interest on Principal Amounts Prepaid. All prepayments
under this Section 2.4 shall be made together with accrued interest to the date
of such prepayment on the principal amount prepaid.
Section 2.5 Interest.
(a) Ordinary Interest. Each Borrower shall pay interest
on the unpaid principal amount of each Base Rate Advance and LIBO Rate Advance
to it owing to each
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Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advance. During such periods as such
Advance is a Base Rate Advance, at a rate per annum equal at
all times to the Base Rate in effect from time to time plus
the Applicable Margin in effect for Base Rate Advances,
payable (x) in arrears monthly on the first day of the
immediately following calendar month during such periods, (y)
on the date on which such Base Rate Advance shall be paid in
full, and (z) on the Maturity Date;
(ii) LIBO Rate Advances. During such periods as such
Advance is a LIBO Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum
of (x) the LIBO Rate for such Interest Period for such
Advance, and (y) the Applicable Margin in effect from time to
time, payable in arrears on (A) the last day of such Interest
Period, (B) if such Interest Period has a duration of more
than three months, also on each day that occurs during such
Interest Period every three months from the first day of such
Interest Period, (C) on the date on which such Advance shall
be paid in full and (D) on the Maturity Date.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default under Section 8.1(a), and at the election of the
Administrative Agent or the Required Lenders upon the occurrence and during the
continuance of any other Event of Default, each Borrower shall pay interest on
the unpaid principal amount or face amount, as the case may be, of each Advance
owing to each Lender or the amount of any interest, fee or other amount payable
hereunder, which in any case is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on the
date such amount shall be paid in full and on demand, at a rate per annum equal
at all times to the Default Rate.
Section 2.6 Fees.
(a) Administrative Agent. The Borrowers agree to pay to the
Administrative Agent for its own account a fee separately agreed between the
Borrowers and the Administrative Agent and such other fees required by the Fee
Letter.
(b) Commitment Fee. AGCO shall pay to the Administrative Agent
for the account of the Multi-Currency Lenders and to the Canadian Administrative
Agent for the account of the Canadian Facility Lenders an unused commitment fee
(the "Unused Fee") in U.S. dollars computed each day, on each Multi-Currency
Lender's Adjusted Unused Multi-Currency Commitment and each Canadian Subsidiary
Lender's Unused Canadian Facility Commitment, from the date hereof until the
Maturity Date at a rate per
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annum equal to the Applicable Margin for the Unused Fee in effect from time to
time, which fee shall be due and payable quarterly in arrears on the last day of
each calendar quarter and, if then unpaid, on the Maturity Date; provided,
however, that any Unused Fee accrued with respect to any of the Commitments of a
Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the Borrowers
so long as such Lender shall be a Defaulting Lender except to the extent that
such Unused Fee shall otherwise have been due and payable by the Borrowers prior
to such time; and provided further that no Unused Fee shall accrue on any of the
Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting
Lender.
(c) Letter of Credit Fee.
(i) Each Multi-Currency Borrower shall pay to the
Administrative Agent, for the account of the Multi-Currency
Lenders a fee computed each day at a rate equal to the rate
per annum equal to the Applicable Margin on such day for LIBO
Rate Advances on the aggregate Available Amount of all Letters
of Credit outstanding and issued for such Multi-Currency
Borrower's account, which fee shall be due and payable
quarterly in arrears on the last day of each calendar quarter
and, if then unpaid, on the Maturity Date. Each such Lender's
fee shall be calculated by allocating to such Lender a portion
of the total fee determined ratably according to the
proportion that such Lender's Multi-Currency Commitments bear
to all Multi-Currency Lenders' Multi-Currency Commitments.
(ii) The Canadian Subsidiary shall pay to the
Canadian Administrative Agent, for the account of the Canadian
Facility Lenders, a fee computed each day at a rate equal to
the rate per annum equal to the Applicable Margin on such day
for LIBO Rate Advances on the aggregate Available Amount of
all Letters of Credit outstanding and issued for the Canadian
Subsidiary's account, which fee shall be due and payable
quarterly in arrears on the last day of each calendar quarter
and, if then unpaid, on the Maturity Date. Each such Lender's
fee shall be calculated by allocating to such Lender a portion
of the total fee determined ratably according to the
proportion that such Lender's Canadian Facility Commitments
bear to all Canadian Facility Lenders' Canadian Facility
Commitments.
(d) Issuing Bank Fee. The Multi-Currency Borrowers agree to
pay to the Administrative Agent, for the benefit of the Multi-Currency Issuing
Bank, and the Canadian Subsidiary agrees to pay to the Canadian Administrative
Agent, for the benefit of the Canadian Issuing Bank, in each case, a fee equal
to 0.15% per annum (computed on the basis of a year of 360 days in connection
with the fee to the Multi-Currency
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Issuing Bank, and on the basis of a year of 365 days in connection with the fee
to the Canadian Issuing Bank, in each case for the actual number of days
elapsed), of the face amount of each Letter of Credit issued under the
Multi-Currency Facility and the Canadian Facility, respectively, which fee shall
be due and payable quarterly in arrears on the last day of each calendar quarter
during which such Letter of Credit was outstanding and, if then unpaid, on the
Maturity Date. Additionally, the Multi-Currency Borrowers and the Canadian
Subsidiary, as applicable, agree to pay to the Appropriate Issuing Bank its
customary fees for issuing, amending or renewing any Letter of Credit, which
fees shall be due and payable on the date of each such issuance, amendment or
renewal. The foregoing fees shall be fully earned when due and nonrefundable
when paid. In the event of any inconsistency between the terms of this Agreement
and the terms of any letter of credit reimbursement agreements or
indemnification agreements between any Borrower and the Issuing Bank with
respect to the Letters of Credit issued hereunder, the terms of this Agreement
shall control.
Section 2.7 Conversion and Designation of Interest Periods.
(a) On any Business Day, upon notice given to the Appropriate
Agent not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the date of the proposed Conversion and subject to the provisions of
Section 11.1, (i) AGCO may Convert all or any portion of the Multi-Currency
Advances (but not Letter of Credit Advances) in U.S. dollars of one Type
comprising the same Borrowing into Advances of another Type (other than Advances
by way of Bankers' Acceptances), and (ii) the Canadian Subsidiary may Convert
all or any portion of the Canadian Facility Advances (but not Letter of Credit
Advances) of one Type comprising the same Borrowing into Advances of another
Type; provided that (w) any Conversion of LIBO Rate Advances into Base Rate
Advances or into Advances by way of Bankers' Acceptances shall be made only on
the last day of an Interest Period for such LIBO Rate Advances; any Conversion
of Base Rate Advances into LIBO Rate Advances or into Advances by way of
Bankers' Acceptances shall be in an amount not less than the relevant minimum
amount specified in Section 2.1; any Conversion of Advances by way of Bankers'
Acceptances into Base Rate Advances shall be made only on the last day of the
relevant Contract Period; if less than all Advances by way of Bankers' Advances
or all LIBO Rate Advances are Converted, after such Conversion not less than the
relevant minimum amount specified in Section 2.13(a) shall continue as Advances
by way of Bankers' Acceptances or LIBO Rate Advances, as applicable; if less
than all LIBO Rate Advances are Converted, after such Conversion, not less than
the relevant minimum amount specified in Section 2.1 shall continue as LIBO Rate
Advances; (x) if less than all Advances comprising part of the same Borrowing
are Converted, the portion of the Advances Converted must at least equal the
minimum aggregate principal amount of a Borrowing permitted under Section 2.1
and all Lenders' Advances comprising the Borrowing to be Converted in part shall
be Converted ratably in accordance with their
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applicable Pro Rata Shares; (y) each Conversion of less than all Advances
comprising part of the same Borrowing shall be deemed to be an additional
Borrowing for purposes of Section 2.2(d), and no such Conversion of any Advances
may result in there being outstanding more separate Borrowings than permitted
under Section 2.2(d); and (z) no Advances may be Converted into LIBO Rate
Advances or into Advances by way of Bankers' Acceptances while a Default has
occurred and is continuing. Each such notice of Conversion shall, within the
restrictions specified above, specify (w) the date of such Conversion, (x) the
Advances to be Converted, (y) if such Conversion is into LIBO Rate Advances, the
duration of the initial Interest Period for such Advances, and (z) if such
Conversion is into Advances by way of Bankers' Acceptances, the duration of the
Contract Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on AGCO.
(b) On the date on which the aggregate unpaid principal amount
of LIBO Rate Advances denominated in U.S. dollars shall be reduced, by payment
or prepayment or otherwise, to less than U.S. $5,000,000, such Advances shall
automatically Convert into Base Rate Advances, and if the aggregate face amount
of outstanding Bankers' Acceptances shall be reduced by payment or prepayment or
otherwise, to less than Cnd. $5,000,000, the Advances by way of such Bankers'
Acceptances shall automatically Convert, on the last day of the relevant
Contract Period, into Base Rate Advances.
(c) If a Borrower shall fail to select the duration of any
Interest Period for any LIBO Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.1, the Appropriate
Agent will forthwith so notify such Borrower and the Appropriate Lenders,
whereupon each such LIBO Rate Advance will automatically, on the last day of the
then-existing Interest Period therefor, convert into a LIBO Rate Advance with a
one month Interest Period.
(d) If the Canadian Subsidiary shall fail to select the
duration of any Contract Period for any Advances by way of Bankers' Acceptances
in accordance with the provisions contained in the definition of "Contract
Period," the Canadian Administrative Agent will forthwith so notify the Canadian
Subsidiary and the Appropriate Lenders, whereupon each such Advance by way of
Banker's Acceptances will automatically, on the last day of the then-existing
Contract Period therefor, Convert into a Base Rate Advance.
Section 2.8 Payments and Computations.
(a) Each Borrower shall make each payment hereunder and under
the Notes free and clear of any setoff or counterclaim, with such payment (other
than repayment of a Swing Line Advance) being paid not later than 11:00 A.M.
(Relevant Currency Time) on the day when due, in the case of principal or
interest on and other amounts relating to any Borrowing in the currency in which
such Borrowing was
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denominated and in any other case in U.S. dollars, to the Appropriate Agent in
same-day funds by deposit of such funds to the Appropriate Agent's Account for
payments in the applicable currency. The Appropriate Agent will promptly
thereafter (and in any event, if received from a Borrower by the time specified
in the preceding two sentences, on the day of receipt) cause like funds to be
distributed (i) if such payment by a Borrower is in respect of principal,
interest, fees or any other Obligation then payable hereunder in a particular
currency and under the Notes to more than one Lender, to such Lenders for the
account of their respective Applicable Lending Offices for payments in such
currency ratably in accordance with the amounts of such respective Obligations
in such currency then payable to such Lenders, and (ii) if such payment by a
Borrower is in respect of any Obligation then payable hereunder to one Lender,
to such Lender for the account of its Applicable Lending Office for payments in
the applicable currency. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 10.7(d), from and after the effective date of such Assignment and
Acceptance, the Appropriate Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) If an Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, such Agent may, but shall not be obligated
to, elect to distribute such funds to each Lender ratably in accordance with
such Lender's proportionate share of the principal amount of all outstanding
Advances and the Available Amount of all Letters of Credit then outstanding, in
repayment or prepayment of such of the outstanding Advances or other Obligations
owed to such Lender, and for application to such principal installments, as such
Agent shall direct.
(c) All computations of interest, fees and Letter of Credit
fees payable by any Multi-Currency Borrower under the Multi-Currency Facility
shall be made by the Administrative Agent on the basis of a year of 360 days,
and all computations of interest, fees and Letter of Credit fees payable by the
Canadian Subsidiary under the Canadian Facility shall be made by the Canadian
Administrative Agent on the basis of a year of 365 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable, except that each rate of interest on, and each fee and Letter of Credit
fee payable in respect of, Canadian Facility Advances that is calculated on the
basis of a year of 365 days, shall be determined pursuant to such calculation
and the equivalent, expressed as an annual rate for the purpose of the Interest
Act (Canada), of any such rate as so determined shall be such rate, multiplied
by the actual number of days in the calendar year in which
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the same is to be ascertained and divided by 365. The principle of deemed
reinvestment of interest will not apply to any interest calculated under this
Agreement, and for the purposes of the Interest Act (Canada) the rates of
interest stipulated in the Agreement are intended to be nominal rates, and not
effective rates or yields. Each determination by an Agent of an interest rate,
fee or commission hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided that, if such extension would cause payment of
interest on or principal of LIBO Rate Advances to be made in the next-following
calendar month, such payment shall be made on the next-preceding Business Day.
(e) Unless an Agent shall have received notice from any
Borrower prior to the date on which any payment is due to any Lender hereunder
that such Borrower will not make such payment in full, such Agent may assume
that such Borrower has made such payment in full to such Agent on such date and
such Agent may, in reliance upon such assumption, cause to be distributed to
each such Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent such Borrower shall not have so made such payment
in full to such Agent and such Agent makes available to a Lender on such date a
corresponding amount, such Lender shall repay to such Agent forthwith on demand
such amount distributed to such Lender together with interest thereon, for each
day from the date such amount is distributed to such Lender until the date such
Lender repays such amount to such Agent, at the Federal Funds Rate.
Section 2.9 Sharing of Payments, Etc. If any Lender shall obtain at any
time any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) distributed other than in accordance with the
provisions of this Agreement:
(a) on account of Obligations due and payable to such Lender
hereunder and under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations due and
payable to such Lender at such time to (ii) the aggregate amount of the
Obligations due and payable to all Lenders hereunder and under the Notes at such
time) of payments on account of the Obligations due and payable to all Lenders
hereunder and under the Notes at such time obtained by all the Lenders at such
time; or
(b) on account of Obligations owing (but not due and payable)
to such Lender hereunder and under the Notes at such time in excess of its
ratable share (according to the proportion of (i) the amount of such Obligations
owing to such Lender at such time to (ii) the aggregate amount of the
Obligations owing (but not due and
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payable) to all Lenders hereunder and under the Notes at such time) of payments
on account of the Obligations owing (but not due and payable) to all Lenders
hereunder and under the Notes at such time obtained by all the Lenders at such
time;
such Lender shall forthwith purchase from the other Lenders such participations
in the Obligations due and payable or owing to them, as the case may be, as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each other Lender shall be rescinded and such other Lender shall repay to the
purchasing Lender the purchase price to the extent of such other Lender's
ratable share (according to the proportion of (x) the purchase price paid to
such Lender to (y) the aggregate purchase price paid to all Lenders) of such
recovery together with an amount equal to such Lender's ratable share (according
to the proportion of (A) the amount of such other Lender's required repayment to
(B) the total amount so recovered from the purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrowers agree that any Lender so purchasing a
participation from another Lender pursuant to this Section may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right
of set-off) with respect to such participation as fully as if such Lender were
the direct creditor of the Borrower in the amount of such participation.
Section 2.10 Letters of Credit.
(a) The Letter of Credit Subfacility. Each Issuing Bank
agrees, on the terms and conditions hereinafter set forth, to issue letters of
credit (the "Letters of Credit") for the account of any Multi-Currency Borrower
(in the case of the Multi-Currency Issuing Bank) or the Canadian Subsidiary (in
the case of the Canadian Issuing Bank) from time to time on any Business Day
during the period from the Agreement Date until 60 days before the Maturity Date
(i) in an aggregate Available Amount for all Letters of Credit issued for the
account of all Borrowers not to exceed at any time the Appropriate Issuing
Bank's Letter of Credit Commitment, minus the aggregate principal amount of all
Letter of Credit Advances to any Borrower then outstanding, (ii) in an Available
Amount for each Letter of Credit issued for the account of a Multi-Currency
Borrower not to exceed the aggregate Unused Multi-Currency Commitments on such
Business Day, and (iii) in an Available Amount for each such Letter of Credit
issued for the account of the Canadian Subsidiary not to exceed the aggregate
Unused Canadian Facility Commitments on such Business Day. No Letter of Credit
shall have an expiration date (including all rights of a Borrower or the
beneficiary to require renewal) later than the earlier of 5 days before the
Maturity Date and one year after the date of issuance thereof. Each Letter of
Credit shall require that all draws thereon must be presented to the Issuing
Bank by the expiration date therefor, regardless of whether presented prior to
such date to any correspondent bank or other institution. Within the limits of
the Letter of Credit Subfacility, and subject to the limits referred to above,
the
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Borrowers may request the issuance of Letters of Credit under this Section
2.10(a), repay any Letter of Credit Advances resulting from drawings thereunder
pursuant to Section 2.10(c) and request the issuance of additional Letters of
Credit under this Section 2.10(a). On the date of the initial Borrowing
hereunder, each outstanding letter of credit issued under the Prior Credit
Agreement and each letter of credit described on Schedule 2.10 hereof
(collectively, the "Existing L/Cs") shall be deemed for all purposes, as of such
date, without further action by any Person, to have been issued hereunder, and
each such issuer of the Existing L/Cs shall be deemed to be an "Issuing Bank"
hereunder for all purposes but solely with respect to, and until the
termination, expiration or replacement of, such Existing L/Cs.
(b) Request for Issuance.
(i) Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York City time)
on the first Business Day prior to the date of the proposed
issuance of such Letter of Credit, by a Borrower to the
Appropriate Issuing Bank, which shall give to the Appropriate
Agent and each Appropriate Lender prompt notice thereof by
telex, telecopier or cable. Each such notice of issuance of a
Letter of Credit (a "Notice of Issuance") shall be by
electronic mail, telecopier or telephone, confirmed
immediately in writing, specifying therein (1) the requested
date of such issuance (which shall be a Business Day); (2) the
requested Available Amount of such Letter of Credit; (3) the
requested expiration date of such Letter of Credit; (4) the
requested currency in which such Letter of Credit shall be
denominated, which shall be U.S. dollars or an Offshore
Currency; provided that no Borrower shall make a request for a
Letter of Credit in an Offshore Currency described in clause
(b) of the definition thereof unless it shall have previously
obtained the consent of each Lender to the issuance of Letters
of Credit in such currency; (5) the requested name and address
of the beneficiary of such Letter of Credit; and (6) the
requested form of such Letter of Credit, and shall be
accompanied by such application and agreement for letter of
credit (a "Letter of Credit Agreement") as the Appropriate
Issuing Bank may specify to such Borrower for use in
connection with such requested Letter of Credit. If (x) the
requested form of such Letter of Credit is acceptable to the
Appropriate Issuing Bank in its sole discretion, and (y) it
has not received notice of objection to such issuance from the
Required Lenders, the Appropriate Issuing Bank will, upon
fulfillment of the applicable conditions set forth in Article
3, make such Letter of Credit available to the requesting
Borrower at its office referred to in Section 10.2 or as
otherwise agreed with such Borrower in connection with such
issuance. In the event and to the extent that the provisions
of any Letter of
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Credit Agreement shall conflict with this Agreement, the
provisions of this Agreement shall govern. A Letter of Credit
shall be deemed to have been issued for the account of each
Borrower delivering the Notice of Issuance therefor.
(ii) The Issuing Bank shall furnish (1) to the
Appropriate Agent on the first Business Day of each week a
written report summarizing issuance and expiration dates of
Letters of Credit issued during the previous week, the
respective Available Amounts with respect thereto, currencies
in which such Letters of Credit were denominated, for whose
account such letters of credit were issued and drawings during
such week under all Letters of Credit; (2) to each Appropriate
Lender on the first Business Day of each month a written
report summarizing issuance and expiration dates of Letters of
Credit issued during the preceding month and drawings during
such month under all Letters of Credit; and (3) to the
Appropriate Agent and each Appropriate Lender on the first
Business Day of each calendar quarter a written report setting
forth the average daily aggregate Available Amount during the
preceding calendar quarter of all Letters of Credit.
(c) Drawing and Reimbursement.
(i) The payment by the Appropriate Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for
all purposes of this Agreement the making by such Issuing Bank
of a Letter of Credit Advance to the applicable Borrower,
which shall (1) in the case of payment on a draft drawn under
a Letter of Credit denominated in U.S. dollars or Canadian
Dollars, be a Base Rate Advance in the amount of such draft,
and (2) in any other case, be a LIBO Rate Advance that bears
interest at the rate per annum equal to the rate per annum at
which interest would accrue on a LIBO Rate Advance with an
Interest Period of one month beginning on the date of such
draw, and be immediately due and payable in full by the
applicable Borrower.
(ii) Upon the issuance of each Letter of Credit for
the account of a Multi-Currency Borrower, each Multi-Currency
Lender (other than the Multi-Currency Issuing Bank) shall be
deemed to have purchased a participation therein equal to its
Pro Rata Share of the Available Amount thereof and, upon
written demand by the Multi-Currency Issuing Bank following a
draw on such a Letter of Credit, with a copy of such demand to
the Administrative Agent, each Multi-Currency Lender (other
than the Multi-Currency Issuing Bank) shall purchase from the
Multi-Currency Issuing Bank, directly and not as a
participation, and the Multi-Currency Issuing Bank shall sell
and assign to each such other Multi-Currency
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Lender, such other Lender's Pro Rata Share of such Letter of
Credit Advance resulting from such draw as of the date of such
purchase to the extent not previously repaid by the applicable
Borrower, by making available for the account of its
Applicable Lending Office to the Administrative Agent for the
account of the Multi-Currency Issuing Bank, by deposit to the
Administrative Agent's Account, in same-day funds in the
currency in which such Letter of Credit was denominated, an
amount equal to the portion of the outstanding principal
amount of such Letter of Credit Advance to be purchased by
such Lender.
(iii) Upon the issuance of each Letter of Credit for
the account of the Canadian Subsidiary, each Canadian Facility
Lender (other than the Canadian Issuing Bank, if it is then a
Canadian Facility Lender) shall be deemed to have purchased a
participation therein equal to its Pro Rata Share of the
Available Amount thereof and, upon written demand by the
Canadian Issuing Bank following a draw on such a Letter of
Credit, with a copy of such demand to the Administrative Agent
and the Canadian Administrative Agent, each Canadian Facility
Lender (other than the Canadian Issuing Bank) shall purchase
from the Canadian Issuing Bank, directly and not as a
participation, and the Canadian Issuing Bank shall sell and
assign to each such other Canadian Facility Lender, such other
Lender's Pro Rata Share of the Letter of Credit Advance
resulting from such draw as of the date of such purchase to
the extent not previously repaid by the applicable Borrower,
by making available for the account of its Applicable Lending
Office to the Canadian Administrative Agent for the account of
the Canadian Issuing Bank, by deposit to the Canadian
Administrative Agent's Account, in same-day funds in the
currency in which such Canadian Subsidiary Letter of Credit
was denominated, an amount equal to the portion of the
outstanding principal amount of such Letter of Credit Advance
to be purchased by such Canadian Facility Lender.
(iv) Each Borrower agrees to each participation, sale
and assignment pursuant to this subsection (c).
(v) Each Appropriate Lender agrees to purchase its
Pro Rata Share of an outstanding Letter of Credit Advance on
(1) the Business Day on which demand therefor is made by the
Issuing Bank, provided notice of such demand is given not
later than 11:00 A.M. (New York City time) on such Business
Day, or (2) the first Business Day next succeeding such demand
if notice of such demand is given after such time.
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Upon any such assignment by the Appropriate Issuing Bank to any Appropriate
Lender of a portion of a Letter of Credit Advance, the Appropriate Issuing Bank
shall be deemed to have represented and warranted to such Appropriate Lender
that such Issuing Bank is the legal and beneficial owner of such interest being
assigned by it, but makes no other representation or warranty and assumes no
responsibility with respect to such Letter of Credit Advance, the Loan Documents
or any Loan Party. If and to the extent that any Appropriate Lender shall not
have so made the purchase price for its Pro Rata Share of a Letter of Credit
Advance available to the Appropriate Agent, such Lender agrees to pay to the
Appropriate Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Appropriate Issuing Bank
until the date such amount is paid to the Appropriate Agent, at the Federal
Funds Rate, in the case of demands made by the Multi-Currency Issuing Bank, and
at the Base Rate (with respect to Canadian Facility Borrowings) in the case of
demands made by the Canadian Issuing Bank. If such Lender shall pay to the
Appropriate Agent such amount for the account of the Appropriate Issuing Bank on
any Business Day, such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Lender on such Business Day for purposes
of this Agreement, and the outstanding principal amount of the Letter of Credit
Advance made by the Appropriate Issuing Bank shall be reduced by such amount on
such Business Day.
(d) Obligations Absolute. The Obligations of the Borrowers
under this Agreement, any Letter of Credit Agreement and any other
agreement or instrument relating to any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance
with the terms of this Agreement, such Letter of Credit Agreement and
such other agreement or instrument under all circumstances, including
without limitation the following circumstances:
(i) any lack of validity or enforceability of this
Agreement, any Letter of Credit Agreement, any Letter of
Credit or any other agreement or instrument relating thereto
(this Agreement and all of the other foregoing being,
collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Obligations of any Borrower in respect of any L/C Related
Document or any other amendment or waiver of or any consent to
departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or
other right that any Borrower may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any
Persons for whom any such beneficiary or any such transferee
may be acting), the Issuing Bank or any other Person, whether
in connection with the transactions contemplated by the L/C
Related Documents or any unrelated transaction;
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(iv) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(v) payment by the Appropriate Issuing Bank under a
Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of
such Letter of Credit; provided that this clause (v) shall not
be deemed to be a waiver of any claim that any Borrower might
have against such Issuing Bank as a result of any such
payment;
(vi) any exchange, release or non-perfection of any
Collateral, or any release or amendment or waiver of or
consent to departure from any Guaranty Agreement or Security
Document; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including
without limitation any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any
Borrower or a guarantor.
Section 2.11 Defaulting Lenders.
(a) Unless the Appropriate Agent shall have received notice
from an Appropriate Lender prior to the date of any Borrowing under a Facility
under which such Lender has a Commitment that such Lender will not make
available to the Appropriate Agent such Lender's ratable portion of such
Borrowing, the Appropriate Agent may assume that such Lender has made such
portion available to the Appropriate Agent on the date of such Borrowing in
accordance with Section 2.2(b) and the Appropriate Agent may, in reliance upon
such assumption, make available to the requesting Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Appropriate Agent and the Appropriate
Agent makes available to the requesting Borrower on such date a corresponding
amount, such Lender and each Borrower severally agree to repay or pay to the
Appropriate Agent forthwith on demand such corresponding amount and to pay
interest thereon, for each day from the date such amount is made available to
such Borrower until the date such amount is repaid or paid to the Appropriate
Agent, at:
(i) in the case of the Borrowers, the interest rate
applicable at such time under Section 2.5 to Advances
comprising such Borrowing; and
(ii) in the case of such Lender, the Federal Funds
Rate if such payment is made to the Administrative Agent or
the Base Rate (with respect to Canadian Facility Borrowings)
if such payment is made to the Canadian Administrative Agent.
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If such Lender shall pay to the Appropriate Agent such corresponding amount,
such amount so paid shall constitute such Lender's Advance as part of such
Borrowing for purposes of this Agreement.
(b) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
Section 2.12 Borrower Liability. AGCO shall be jointly and severally
liable for all Borrowings and other liabilities hereunder or under any other
Loan Document by or of itself or any Borrowing Subsidiary. No Borrowing
Subsidiary shall have any liability for any Borrowing or other liabilities
hereunder or under any other Loan Document by or of AGCO or any other Borrowing
Subsidiary (except as may otherwise be provided in such Borrowing Subsidiary's
Guaranty Agreement).
Section 2.13 Bankers' Acceptances and BA Equivalent Loans.
(a) Face Amounts. The face amount of each Bankers' Acceptance
shall be Cdn. $100,000 or any whole multiple thereof.
(b) Discount Rate. On each day on which Bankers' Acceptances
are to be accepted, the Canadian Administrative Agent shall advise the Canadian
Subsidiary as to the Canadian Administrative Agent's determination of the
Discount Rate.
(c) Purchase and Reimbursement of Bankers' Acceptances . The
Canadian Subsidiary shall sell, and each Canadian Facility Lender shall
purchase, at the Discount Rate each Bankers' Acceptance accepted by it and
deliver the Discount Proceeds less the Acceptance Fee to the Canadian
Administrative Agent for the Canadian Subsidiary's account. The Canadian
Subsidiary will reimburse each Canadian Facility Lender, on the last day of the
relevant Contract Period, for the face amount of each Bankers' Acceptance
accepted by it.
(d) Sale of Bankers' Acceptances. Each Canadian Facility
Lender, except a Non BA Lender, may at any time and from time to time hold,
sell, rediscount or otherwise dispose of any or all Bankers' Acceptances
accepted and purchased by it.
(e) Bankers' Acceptances in Blank. To facilitate the
acceptance of Bankers' Acceptances under this Agreement, the Canadian Subsidiary
shall upon execution of this Agreement and from time to time as required,
provide to the Canadian Administrative Agent drafts substantially in the form of
Exhibit D (or such other form as may be satisfactory to the Canadian
Administrative Agent) executed and duly endorsed in
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blank by the Canadian Subsidiary, in quantities sufficient for each of the
Canadian Facility Lenders to fulfill its obligations under this Agreement. No
Canadian Facility Lender shall be responsible or liable for its failure to
accept a Bankers' Acceptance as required under this Agreement if the cause of
such failure is, in whole or in part, due to the failure of the Canadian
Subsidiary to provide duly executed and endorsed drafts to the Canadian
Administrative Agent on a timely basis nor shall the Canadian Facility Lender be
liable for any damage, loss or other claim arising by reason of any loss or
improper use of any such instrument except a loss or improper use arising by
reason of the gross negligence or willful misconduct of the Canadian Facility
Lender, the Canadian Administrative Agent or their respective employees.
(f) Execution of Bankers' Acceptances. Bills of exchange drawn
by the Canadian Subsidiary to be accepted as Bankers' Acceptances shall be
signed by a duly authorized officer or officers of the Canadian Subsidiary.
Notwithstanding that any Person whose signature appears on any Bankers'
Acceptance may no longer be an authorized signatory for the Canadian Subsidiary
at the date of issuance of a Bankers' Acceptance, such signature shall
nevertheless be valid and sufficient for all purposes as if such authority had
remained in force at the time of such issuance and any such Bankers' Acceptance
so signed shall be binding on the Canadian Subsidiary.
(g) Issuance of Bankers' Acceptances. The Canadian
Administrative Agent, promptly following receipt of a notice of Advance by way
of Bankers' Acceptances, shall so advise the Canadian Facility Lenders and shall
advise each Canadian Facility Lender of the aggregate face amount of the
Bankers' Acceptances to be accepted by it and the applicable Contract Period
(which shall be identical for all Canadian Facility Lenders). The aggregate face
amount of the Bankers' Acceptances to be accepted by a Canadian Facility Lender
shall be determined by the Canadian Administrative Agent by reference to Section
2.13(a), except that, if the face amount of a Bankers' Acceptance which would
otherwise be accepted by a Canadian Facility Lender would not be Cdn. $100,000
or a whole multiple thereof, such face amount shall be increased or reduced by
the Canadian Administrative Agent in its sole discretion to Cdn. $100,000 or the
nearest whole multiple of that amount, as appropriate.
(h) Rollover of Bankers' Acceptances. With respect to each
Advance which is outstanding under this Agreement by way of Bankers'
Acceptances, at or before 10:00 a.m. (Toronto time), 2 Business Days before the
maturity date of such Bankers' Acceptances, the Canadian Subsidiary shall notify
the Canadian Administrative Agent by telex, telecopier or cable in substantially
the form of Exhibit B-3 hereto, if the Canadian Subsidiary intends to issue
Bankers' Acceptances on such maturity date to provide for the payment of such
maturing Bankers' Acceptances. Such notice shall be irrevocable and binding on
the Canadian Subsidiary delivering such notice. If the Canadian Subsidiary fails
to give such notice, such maturing Bankers' Acceptances shall be converted on
their
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maturity date into Base Rate Advances in an amount equal to the face amount of
such Bankers' Acceptances.
(i) Rollover. The rollover of Bankers' Acceptances pursuant to
Section 2.13(h) shall not constitute a repayment of any Borrowing or a new
Advance of funds.
(j) BA Equivalent Loans by Non BA Lenders. Whenever the
Canadian Subsidiary requests a Canadian Facility Advance under this Agreement by
way of Bankers' Acceptances, each Non BA Lender shall, in lieu of accepting a
Bankers' Acceptance, make a BA Equivalent Loan.
(k) Terms Applicable to Discount Notes. The term "Bankers'
Acceptance" shall include Discount Notes and all terms of this Agreement
applicable to Bankers' Acceptances shall apply equally to Discount Notes
evidencing BA Equivalent Loans with such changes as may in the context be
necessary. For greater certainty:
(i) the term of a Discount Note shall be the same as
the Contract Period for Bankers' Acceptances accepted on the
same date in respect of the same Advance;
(ii) an Acceptance Fee will be payable in respect of
a Discount Note and shall be calculated at the same rate and
in the same manner as the Acceptance Fee in respect of a
Bankers' Acceptance; and
(iii) the Discount Rate applicable to a Discount Note
shall be the Discount Rate applicable to Bankers' Acceptances
accepted on the same date, or maturity date in respect of
rollovers, in respect of the same Advance.
(l) Prepayment of Bankers' Acceptances. Whenever the
provisions of this Agreement state that the Canadian Subsidiary shall prepay the
principal amount of Canadian Facility Advances or any portion of the principal
amount of Canadian Facility Advances, and such Canadian Facility Advances are by
way of Bankers' Acceptances and not BA Equivalent Loans, such prepayment of such
Canadian Facility Advances shall mean that the Canadian Subsidiary shall deposit
the face amount of each such Bankers' Acceptance into such interest-bearing
account of the Canadian Administrative Agent as it shall specify. Such amounts
shall be held by the Canadian Administrative Agent for payment of the Canadian
Facility Lender's obligations in respect of such Bankers' Acceptances on the
applicable maturity date(s). The Canadian Subsidiary's obligations in respect of
any such Bankers' Acceptances shall be satisfied by any such payment and any
interest earned on such amounts shall be paid to the Canadian Subsidiary.
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(m) Rounding. The Canadian Administrative Agent is authorized
by the Canadian Subsidiary and each Canadian Facility Lender to allocate among
the Canadian Facility Lenders the Bankers' Acceptances to be issued in such
manner and amounts as the Canadian Administrative Agent may, in its sole and
unfettered discretion acting reasonably, consider necessary, rounding a Canadian
Facility Lender's allocation up or down, so as to ensure that no Canadian
Facility Lender is required to accept a Bankers' Acceptance for a fraction of
Cdn. $100,000, and in such event, the respective Lenders' Pro Rata Share of any
such Bankers' Acceptances and repayments thereof shall be altered accordingly.
Further, the Canadian Administrative Agent is authorized by the Canadian
Subsidiary and each Canadian Facility Lender to cause the proportionate share of
one or more Lenders' Canadian Facility Commitments to be exceeded by not more
than Cdn. $100,000 each as a result of such allocations; provided that (a) the
Canadian Facility Outstandings shall not thereby exceed the amount of the
Canadian Facility Commitment and (b) no Canadian Facility Lender shall be
required to make available an amount greater than its Pro Rata Share of the
Canadian Facility Commitment.
ARTICLE 3.
CONDITIONS OF LENDING
Section 3.1 Conditions Precedent to Initial Borrowing. The obligation
of each Lender to make an Advance on the occasion of the initial Borrowing under
this Agreement is subject to the following conditions precedent:
(a) The Lenders shall be satisfied that, in connection with
the initial Borrowing hereunder, simultaneously with such initial Borrowing, all
amounts owing under the Prior Credit Agreement shall have been paid in full and
all commitments to lend thereunder shall be terminated;
(b) The Lenders shall be satisfied that no default exists
under any Material Contract or material Indebtedness of any Loan Party
(including the Subordinated Notes);
(c) There shall not have occurred any event, development or
circumstance since December 31, 2000 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, or (ii) the ability of the Borrowers
to repay or to refinance the credit to be extended under this Agreement; or 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;
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(d) 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 on AGCO or any Loan Party or purports to affect the
legality, validity or enforceability of this Agreement, any Note, any other Loan
Document, any L/C Related Document or the consummation of the transactions
hereunder or the validity, enforceability, perfection or priority of the
security interests intended to be created by any Security Document;
(e) Each of the Lenders shall have completed a due diligence
investigation of Target in such scope as may be reasonably required by such
Lender, 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 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 satisfactory to
each of the Lenders in their sole discretion;
(f) All governmental and third party approvals necessary or,
in the discretion of the Administrative Agent, advisable in connection with the
Merger, 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 (including any consents required by the providers of the US
Securitization);
(g) The Administrative Agent shall have received (i) audited
consolidated financial statements for AGCO and its Subsidiaries as at December
31, 2000 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 of AGCO
and its Subsidiaries as at December 31, 2000 and for the fiscal quarter then
ended, and all such financial statements shall be in form and substance
satisfactory to Administrative Agent;
(h) The Administrative Agent shall have received pro forma
financial statements for AGCO and its Subsidiaries as at December 31, 2000 and
for the year then ending, and such pro forma financial statements shall be in
form and substance satisfactory to Administrative Agent and shall demonstrate,
to the satisfaction of Administrative Agent, that the aggregate amount of all
Funded Debt (including the Senior Unsecured Notes, the Subordinated Notes and
all Securitization Funding under the US Securitization and the European
Securitization) of AGCO and its Subsidiaries that will be outstanding after
giving effect to all transactions to be consummated on the Agreement Date will
be less than six (6) times the amount of the Consolidated EBITDA for the year
ending December 31, 2000, giving effect to the Merger on a pro forma basis
(calculated in accordance with Regulation S-X and including only those
adjustments that Administrative Agent agrees are appropriate);
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(i) Administrative Agent shall have received the results of a
recent lien search in each relevant jurisdiction with respect to AGCO and its
Subsidiaries (including Target), and such search shall reveal no Liens on any of
the assets of AGCO or any of its Subsidiaries except for Permitted Liens or
Liens to be discharged on or prior to the Agreement Date;
(j) Administrative Agent shall have received detailed
projections for fiscal years 2001 through 2004, prepared by officers of AGCO, in
form and substance satisfactory to the Administrative Agent;
(k) The Administrative Agent shall have received copies of the
duly executed Senior Note Documents, in form and substance satisfactory to the
Administrative Agent, and evidence that AGCO has received the Net Cash Proceeds
of the Senior Unsecured Notes;
(l) The Administrative Agent shall have received copies of the
duly executed European Securitization Documents, in form and substance
satisfactory to the Administrative Agent, and evidence that the initial transfer
of Receivables has occurred thereunder;
(m) The Administrative Agent shall have received 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;
(n) The Administrative Agent shall have received on or before
the day of the initial Borrowing the following, each dated such day (unless
otherwise specified), in form and substance satisfactory to the Administrative
Agent (unless otherwise specified):
(i) The Notes to the order of the Lenders;
(ii) Certified copies of the resolutions of the Board
of Directors of each Borrower and each other Loan Party
approving this Agreement, the Notes, each other Loan Document
and each L/C Related Document to which it is or is to be a
party, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement, the Notes, each other Loan Document
and each L/C Related Document;
(iii) A copy of the charter of each Borrower and each
other Loan Party and each amendment thereto, certified (as of
a date reasonably near the date of the initial Borrowing), if
appropriate in the jurisdiction
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where such Subsidiary is organized, by an appropriate
governmental official as being a true and correct copy
thereof;
(iv) For AGCO and each other Loan Party other than a
Foreign Subsidiary, a copy of a certificate of the Secretary
of State of the state of organization of such Person, dated
reasonably near the date of the initial Borrowing, listing the
charter of such Person and each amendment thereto on file in
his office and certifying that (x) such amendments are the
only amendments to such Person's charter on file in his
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 the jurisdiction of organization;
(v) A certificate of each Borrower and each other
Loan Party, 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
date of the initial Borrowing (the statements made in such
certificate shall be true on and as of the date of the initial
Borrowing), 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) above; (y) a true and
correct copy of the bylaws of such Person as in effect on the
date of the initial Borrowing; and (z) the due incorporation
and (if such Person is not a Foreign Subsidiary) good standing
of such Person 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;
(vi) A certificate of the Secretary or an Assistant
Secretary or other appropriate officer of each Borrower and
each other Loan Party certifying the names and true signatures
of the officers of such Person authorized to sign this
Agreement, the Notes and each other Loan Document to which it
is or is to be parties and the other documents to be delivered
hereunder and thereunder;
(vii) Each of the Security Documents duly executed by
each Person party thereto, together with original certificates
and powers for any Stock pledged thereunder and all other
perfection documents needed to duly perfect all Liens granted
thereunder (including, where relevant, UCC-1 financing
statements), and evidence that the Liens granted under the
Security Documents will, as of the filing of such perfection
documents, constitute first priority perfected Liens (subject
to Permitted Liens) on the Collateral;
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(viii) Each of the Guaranty Agreements duly executed
by each Person specified on Schedule G-1, each such Guaranty
Agreement to be in form and substance satisfactory to the
Administrative Agent, and guaranteeing the obligations
specified in such Schedule;
(ix) 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, 2000, of
AGCO and its Restricted Subsidiaries and AGCO and its
Subsidiaries, respectively;
(x) A letter, in form and substance satisfactory to
the Administrative Agent, from AGCO to Xxxxxx Xxxxxxxx LLP,
its independent certified public accountants, advising such
accountants that the Administrative Agent and the 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 Agent or the Canadian
Administrative Agent for such information, and also advising
such accountants that the Lenders have relied and will rely
upon the financial statements of AGCO and its Subsidiaries
examined by such accountants in determining whether to enter
into, or to take action or refrain from taking action under,
the Loan Documents;
(xi) A favorable opinion of (A) Xxxxxxxx Xxxxxxx LLP,
counsel for the Loan Parties, (B) general counsel of AGCO, (C)
Canadian counsel to the Loan Parties, (D) Canadian counsel to
the Agents, (E) Dutch counsel to the Loan Parties, (F) French
counsel to the Loan Parties, (G) German counsel to the Loan
Parties, (H) United Kingdom counsel to the Loan Parties, (I)
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel to the
Administrative Agent, and (J) such other counsel as the
Administrative Agent may reasonably request;
(xii) Evidence that AGCO has delivered to the
Subordinated Note Trustee under the Subordinated Note
Indenture a notice stating that this Agreement and the Loan
Documents are the "Bank Credit Agreement" under the
Subordinated Note Indenture;
(xiii) A duly executed Securitization Intercreditor
Agreement;
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(xiv) Such other approvals, opinions or documents as
any Lender may reasonably request; and
(xv) AGCO shall have paid all fees and expenses of
the Agents that are due and payable on the Agreement Date.
Section 3.2 Conditions Precedent to Each Borrowing and Issuance. The
obligation of each Lender to make an Advance (including the initial Advance but
other than a Letter of Credit Advance), and the right of any Borrower to request
the issuance of Letters of Credit, shall be subject to the further conditions
precedent that on the date of such Borrowing or issuance, the following
statements shall be true and any Notice of Borrowing delivered to the
Appropriate Agent hereunder shall certify that, as of the date of the Borrowing
requested thereunder:
(a) the representations and warranties contained in each Loan
Document will be correct on and as of the date of such Borrowing or issuance,
before and after giving effect to such Borrowing or issuance and to the
application of the proceeds therefrom, as though made on and as of such date,
and request for the issuance of a Letter of Credit delivered to the Issuing Bank
hereunder other than as permitted by Section 4.2;
(b) no event shall have occurred and be continuing, or would
result from such Borrowing or issuance or from the application of the proceeds
therefrom, that constitutes or would constitute a Default; and
(c) such Borrowing is permitted under Section 2.1(a), if such
Borrowing is a Multi-Currency Borrowing, or Section 2.1(b), if such Borrowing is
a Canadian Facility Borrowing.
Section 3.3 Determinations Under Section 3.1. For purposes of
determining compliance with the conditions specified in Section 3.1, each Lender
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Lenders unless an officer of
the Appropriate Agent responsible for the transactions contemplated by the Loan
Documents shall have received notice from such Lender prior to the initial
Borrowing specifying its objection thereto and such Lender shall not have made
available to the Appropriate Agent such Lender's ratable portion of such
Borrowing.
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ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Borrowers. In order
to induce the Agents, the Lenders and the Issuing Banks to enter into this
Agreement and to extend credit to each Borrower, each Borrower hereby agrees,
represents, and warrants as follows:
(a) Organization; Power. (i) AGCO (x) is a corporation duly
organized, validly existing and in good standing (if applicable) under the laws
of the jurisdiction of its organization, (y) is duly qualified and in good
standing (if applicable) as a foreign corporation in each other jurisdiction in
which it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to so qualify
or be licensed is not reasonably likely to have a Material Adverse Effect, and
(z) has all requisite power and authority and has all material licenses,
authorizations, consents and approvals necessary to own or lease and operate its
properties, to conduct its business as now being conducted and as proposed to be
conducted and to enter into and carry out the terms of the Loan Documents to
which it is a party; and (ii) each Restricted Subsidiary (other than a Dormant
Subsidiary) of AGCO, (x) is a corporation, partnership or other legal entity
duly organized or formed, validly existing and in good standing (if applicable)
under the laws of the jurisdiction of its organization, (y) is duly qualified
and in good standing (if applicable) as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed except where the failure to so
qualify or be licensed is not reasonably likely to have a Material Adverse
Effect and (z) has all requisite power and authority and has all material
licenses, authorizations, consents and approvals necessary to own or lease and
operate its properties, to conduct its business as now being conducted and as
proposed to be conducted and to enter into and carry out the terms of the Loan
Documents to which it is a party.
(b) Subsidiaries. Set forth on Part I of Schedule 4.1(b) is a
complete and accurate list of all Subsidiaries of AGCO, as of the date hereof
showing (as to each such Subsidiary) the jurisdiction of its incorporation or
formation, the number of shares of each class of Stock authorized, and the
number outstanding, on the date hereof and the percentage of the outstanding
shares of each such class owned (directly or indirectly) by AGCO, the number of
shares covered by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the date hereof and whether it is a Restricted
Subsidiary or a Dormant Subsidiary. Set forth on Part II of Schedule 4.1(b) is a
complete and accurate list of each Material Subsidiary as of the Agreement Date.
All of the outstanding Stock of all of the Subsidiaries of AGCO owned by AGCO or
any of its Subsidiaries has been validly issued, is fully paid and
non-assessable and is owned by
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AGCO or one or more of its Subsidiaries free and clear of all Liens, except for
Liens under the Security Documents.
(c) Joint Ventures. Set forth on Schedule 4.1(c) is a complete
and accurate list of all joint ventures of AGCO and/or any of its Subsidiaries
and any third Person as of the date hereof showing (as to each such joint
venture) the other Person or Persons parties thereto, a brief description of the
purpose thereof, and the percentage of the outstanding Stock or other equity
interests of such joint venture owned on the date hereof by AGCO or any of its
Subsidiaries and any outstanding options, warrants, rights of conversion or
purchase and similar rights on the date hereof with respect thereto.
(d) Authorization; No Conflict. The execution, delivery and
performance by each Loan Party of this Agreement, the Notes, each other Loan
Document and each L/C Related Document to which it is or is to be a party and
the other transactions contemplated hereby, are within such Loan Party's
corporate powers, have been duly authorized by all necessary corporate action,
and do not (i) contravene such Loan Party'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 Loan Party, 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 Loan Party or any of its Subsidiaries. No Loan Party or any of its
Subsidiaries is in violation of any such Applicable Law or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or other
instrument, the violation or breach of which could have a Material Adverse
Effect.
(e) No Authorizations Needed. 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 (i) the due execution,
delivery, recordation, filing or performance by any Loan Party of this
Agreement, the Notes, any other Loan Document or any L/C Related Document to
which it is or is to be a party, or for the consummation of the transactions
hereunder; or (ii) (A) the grant by any Loan Party of the Liens granted by it
pursuant to the Security Documents; (B) the perfection or maintenance of the
Liens created by the Security Documents (including the first-priority nature
thereof, subject to any Permitted Liens); or (C) the exercise by any Agent of
its rights under the Loan Documents or the remedies in respect of the Collateral
pursuant to the Security Documents, except for the authorizations, approvals,
actions, notices and filings listed on Schedule 4.1(e), all of which have been
duly obtained, taken, given or made and are in full force and effect, and the
filing or registration of the Security
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Documents and related financing statements or other notification filings
necessary to perfect any Lien created thereby.
(f) Enforceability. This Agreement and each of the Notes, each
other Loan Document and each L/C Related Document have been (or, when delivered
hereunder will have been), duly executed and delivered by each Loan Party
thereto. This Agreement, each of the Notes, each other Loan Document and each
L/C Related Document have been (or, when delivered hereunder will be), the
legal, valid and binding obligation of each Loan Party thereto, enforceable
against such Loan Party in accordance with its terms.
(g) Financial Statements. The consolidated balance sheets of
AGCO and its Restricted Subsidiaries and of AGCO and its Subsidiaries,
respectively, as at December 31, 2000 and the related consolidated statements of
income and cash flows of AGCO and its Restricted Subsidiaries and AGCO and its
Subsidiaries, respectively, for the fiscal year then ended, accompanied by an
opinion of Xxxxxx Xxxxxxxx LLP, independent public accountants, copies of which
have been furnished to each Lender, fairly present the consolidated financial
condition of AGCO and its Restricted Subsidiaries and AGCO and its Subsidiaries,
respectively, as at such date and the consolidated results of the operations of
AGCO and its Restricted Subsidiaries and AGCO and its Subsidiaries,
respectively, for the period ended on such date, all in accordance with GAAP
applied on a consistent basis, and since December 31, 2000, nothing has occurred
that has resulted in a Material Adverse Effect.
(h) Projections; Other Information. The four year projected
Consolidated balance sheets and income statements of AGCO and its Restricted
Subsidiaries delivered to the Administrative Agent pursuant to Section 3.1 were
prepared in good faith on the basis of the assumptions stated therein, which
assumptions were fair in the light of conditions existing at the time of
delivery of such projected financial statements, and represented, at the time of
delivery, AGCO's reasonable estimate of its future financial performance. No
information, exhibit or report furnished by any Loan Party to either Agent or
any Lender in connection with the negotiation of the Loan Documents or pursuant
to the terms of the Loan Documents contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements made
therein not misleading.
(i) Litigation. There is no action, suit, investigation,
litigation or proceeding affecting AGCO or any of its Subsidiaries, including
any Environmental Action, pending or threatened before any court, governmental
agency or arbitrator, involving an amount in controversy in excess of
$5,000,000, except for (i) matters in which AGCO or its Subsidiary is the
plaintiff, (ii) matters disclosed on Schedule 4.1(i) hereto, and (iii) matters
arising after the Agreement Date that could not reasonably be expected to have a
Material Adverse Effect. No such matter disclosed on Schedule 4.1(i)
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purports to affect the legality, validity or enforceability of this Agreement,
any Note, any other Loan Document or any L/C Related Document or the
consummation of the transactions contemplated thereby or hereby, or is
reasonably likely to have a Material Adverse Effect.
(j) Use of Proceeds. None of the Borrowers will, directly or
indirectly, use any of the proceeds of any Borrowing for the purpose, whether
immediate, incidental or ultimate, of buying a "margin stock" or of maintaining,
reducing or retiring any indebtedness originally incurred to purchase a stock
that is currently a "margin stock", or for any other purpose that would
constitute this transaction a "purpose credit", in each case within the meaning
of the margin regulations of the Board of Governors of the Federal Reserve
System, if such use would violate such regulations or cause any Lender to
violate such regulations or impose any filing or reporting requirement on any
Lender.
(k) Senior Indebtedness. All Borrowings under this Agreement
will be "Senior Indebtedness," as defined in the Subordinated Note Indenture.
This Agreement and all Loan Documents are the "Bank Credit Agreement," as
defined in the Subordinated Note Indenture.
(l) ERISA Matters. No ERISA Event has occurred or is
reasonably expected to occur with respect to any Plan of any Loan Party or any
of its ERISA Affiliates that has resulted in or is reasonably likely to result
in a Material Adverse Effect. Schedule B (Actuarial Information) to the most
recent annual report (Form 5500 Series) that any Loan Party or any of its ERISA
Affiliates is required to file for any Plan, copies of which have been filed
with the Internal Revenue Service, is complete and accurate and fairly presents
the funding status of such Plan, and, except as set forth on Schedule 4.1(i),
since the date of such Schedule B there has been no material adverse change in
such funding status. Neither any Loan Party nor any of its ERISA Affiliates has
incurred or is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan that would reasonably be expected to have a Material Adverse
Effect. Neither any Loan Party nor any of its ERISA Affiliates has been notified
by the sponsor of a Multiemployer Plan of any Loan Party or any of its ERISA
Affiliates that such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and to the knowledge of
AGCO no such Multiemployer Plan is reasonably expected to be in reorganization
or to be terminated, within the meaning of Title IV of ERISA, in either case
which reorganization or termination would reasonably be expected to have a
Material Adverse Effect. With respect to each scheme or arrangement mandated by
a government other than the United States providing for post-employment benefits
(a "Foreign Government Scheme or Arrangement") and with respect to each employee
benefit plan maintained or contributed to by any Loan Party or any Subsidiary of
any Loan Party that is not subject to United States law providing for
post-employment benefits (a "Foreign Plan"): (i) All material employer and
employee contributions required by law or by the terms of any Foreign Government
Scheme or Arrangement or
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any Foreign Plan have been made, or, if applicable, accrued, in accordance with
normal accounting practices; (ii) The fair market value of the assets of each
funded Foreign Plan, the liability of each insurer for any Foreign Plan funded
through insurance or the book reserve established for any Foreign Plan, together
with any accrued contributions, is sufficient to procure or provide for the
accrued benefit obligations, as of the date hereof, with respect to all current
and former participants in such Foreign Plan according to the actuarial
assumptions and valuations most recently used to account for such obligations,
in accordance with applicable generally accepted accounting principles, and the
liability of each Loan Party and each Subsidiary of a Loan Party with respect to
a Foreign Plan is reflected in accordance with normal accounting practices on
the financial statements of such Loan Party or such Subsidiary, as the case may
be; and (iii) Each Foreign Plan required to be registered has been registered
and has been maintained in good standing with applicable regulatory authorities
unless, in each case, the failure to do so would not be reasonably likely to
have a Material Adverse Effect.
(m) Casualties; Taking of Properties. Since December 31, 2000,
neither the business nor the properties of AGCO or its Restricted Subsidiaries,
taken as a whole, has been materially and adversely affected as a result of any
fire, explosion, earthquake, windstorm, accident, strike or other labor
disturbance, embargo, requisition or taking of property or cancellation of
contracts, permits or concessions by any domestic or foreign government or any
agency thereof, riot, activities of armed forces, or acts of God or of any
public enemy.
(n) Environmental Matters. Except as set forth on Schedule
4.1(n) hereto (i) each of AGCO and its Subsidiaries is in compliance with all
applicable Environmental Laws, the failure to comply with which could have a
Material Adverse Effect; (ii) each of AGCO and its Subsidiaries has obtained and
currently maintains all Environmental Permits necessary for the operation of its
business, all such Environmental Permits are in good standing and AGCO and its
Subsidiaries are in compliance with all such Environmental Permits, except where
the failure to so obtain, maintain or comply could not have a Material Adverse
Effect; (iii) neither AGCO nor its Subsidiaries are subject to any Environmental
Actions, and, to the knowledge of AGCO, no Environmental Action has been
threatened, in either case, which would be reasonably expected to have a
Material Adverse Effect or be required to be disclosed on Schedule 4.1(i); (iv)
to the best knowledge of AGCO after diligent investigation, there has been no
release, spill, emission, leaking, pumping, injection, deposit, application,
disposal, discharge, dispersal, leaking or migration into the environment,
including the movement of any Hazardous Material in or through the environment,
of any Hazardous Material at, in, on, under, affecting or migrating to or from
any Real Property, which could have a Material Adverse Effect; (v) neither AGCO
not its Subsidiaries have caused or permitted any Hazardous Material to be
disposed of on or under any Real Property in violation of any Environmental Law,
the violation of which could have a Material Adverse Effect; (vi)
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neither AGCO not its Subsidiaries have transported or arranged for the
transportation of any Hazardous Materials to any location that is listed or, to
the knowledge of the Loan Parties, proposed for listing on the National
Priorities List under CERCLA ("NPL") or listed on the Comprehensive
Environmental Response, Compensation and Liability Information System
("CERCLIS") maintained by the Environmental Protection Agency or any analogous
state list, except to the extent such transportation could not have a Material
Adverse Effect; (vii) to the best knowledge of AGCO and its Subsidiaries after
diligent investigation, none of the Real Properties presently require or
previously required interim status or a hazardous waste permit for the
treatment, storage or disposal of hazardous waste pursuant to RCRA, or any
analogous Environmental Law, except where the failure to obtain such status or
permit could not have a Material Adverse Effect, and no real properties have
been placed or proposed to be placed on the NPL or its state equivalents or
placed on CERCLIS or its state equivalents; and (viii) no asbestos-containing
material, polychlorinated biphenyls, or underground storage tanks are present on
or under any Real Property in a manner or condition that could result in a
Material Adverse Effect.
(o) Taxes. Each of AGCO and each of its Subsidiaries has
filed, has caused to be filed or has been included in all Federal and foreign
income-tax returns, all federal, provincial or state income-tax returns where a
tax Lien could be imposed on any assets of AGCO or any of its Restricted
Subsidiaries and all other material income-tax and governmental remittance
returns required to be filed and has paid all taxes and other amounts shown
thereon to be due, together with applicable interest and penalties, except for
any taxes being contested in good faith by appropriate proceedings promptly
initiated and diligently pursued and for which reserves or other appropriate
provisions required by GAAP have been established and with respect to which no
Lien or right of demand has arisen or attached to its property and become
enforceable against its other creditors. Set forth on Schedule 4.1(o) hereto is
a complete and accurate list, as of the date hereof, of each taxable year of
AGCO for which federal income tax returns have been filed and for which the
expiration of the applicable statute of limitations for assessment or collection
has not occurred by reason of extension or otherwise. There are no adjustments
as of the date hereof to the federal income tax liability of AGCO proposed by
the Internal Revenue Service with respect to any such year. Except as set forth
on Schedule 4.1(o), the aggregate unpaid amount, as of the date hereof, of
adjustments to the state, provincial, local and foreign tax liability of AGCO
and its Subsidiaries proposed by all state, provincial, local and foreign taxing
authorities (other than amounts arising from adjustments to Federal income tax
returns) does not exceed U.S. $5,000,000. No issues have been raised by any
taxing authority that, in the aggregate, would be reasonably likely to have a
Material Adverse Effect.
(p) Title to Properties. The Security Documents create a valid
and perfected first priority security interest in the Collateral, subject to
Permitted Liens,
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securing the payment of all obligations purported to be secured thereby. The
Loan Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for Permitted Liens. As of the Agreement Date, all
Permitted Liens of record of AGCO, any Restricted Subsidiary or Target (to the
extent such Liens will remain in effect after the Merger) are set forth on
Schedule 4.1(p) attached hereto.
(q) Solvency. Each Borrower is, and will be after giving
effect to the transactions contemplated hereby, individually and together with
its Subsidiaries, Solvent.
(r) Investment Company. Neither AGCO nor any of its
Subsidiaries is an "investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the issuance of any Letters of Credit, nor the
application of the proceeds or repayment thereof by any Borrower, nor the
consummation of the other transactions contemplated hereby, will violate any
provision of such Act or any rule, regulation or order of the Securities and
Exchange Commission thereunder.
(s) Material Contracts. Set forth on Schedule 4.1(s) hereto is
a complete and accurate list of all Material Contracts of each Loan Party as of
the date hereof, showing the parties, subject matter and term thereof and
listing all amendments thereto. Each such Material Contract has been duly
authorized, executed and delivered by all parties thereto, has not been amended
or otherwise modified since the Agreement Date, except to the extent permitted
hereby, is in full force and effect and is binding upon and enforceable against
all parties thereto in accordance with its terms (subject to any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally), and there exists no default under any Material
Contract by any party thereto.
(t) Intellectual Property. Set forth on Schedule 4.1(t) hereto
is a complete and accurate list of all patents, trademarks, trade names, service
marks and copyrights of AGCO and its Restricted Subsidiaries registered with any
Governmental Authority as of the date hereof, showing the jurisdiction in which
registered, the applicable registrant, the registration number, the date of
registration and the expiration date.
(u) Existing Indebtedness. Set forth on Schedule 4.1(u) hereto
is a complete and accurate list of all Indebtedness of AGCO and its Subsidiaries
outstanding as of March 31, 2001, showing the approximate principal amount
outstanding thereunder as of such date.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement shall be deemed to be
made,
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and shall be true and correct, at and as of the Agreement Date and the date of
each Advance which will increase the principal amount of the Obligations
outstanding, or upon the issuance of a Letter of Credit hereunder, except (a) to
the extent previously fulfilled in accordance with the terms hereof, (b) to the
extent subsequently inapplicable, (c) to the extent such representation or
warranty is limited to a specified date, and (d) as a result of changes
permitted by the terms of this Agreement. All representations and warranties
made under this Agreement shall survive, and not be waived by, the execution
hereof by the Lenders, the Agents and the Issuing Banks, any investigation or
inquiry by any Lender, Issuing Bank or the Agents, or the making of any Advance
or the issuance of any Letter of Credit under this Agreement.
ARTICLE 5.
AFFIRMATIVE COVENANTS
AGCO covenants and agrees that, so long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder:
Section 5.1 Compliance with Laws, Etc. Except as provided in Section
5.4 hereof, AGCO shall comply, and shall cause each of its Subsidiaries to
comply, in all material respects, with all Applicable Laws, such compliance to
include, without limitation, to the extent applicable, compliance with ERISA,
the Racketeer Influenced and Corrupt Organizations Chapter of the Organized
Crime Control Act of 1970, the Trading with the Enemy Act and any similar
statute.
Section 5.2 Preservation of Corporate Existence, Etc. Except as
otherwise permitted by this Agreement, AGCO shall preserve and maintain, and
cause each of its Restricted Subsidiaries to (a) qualify and remain qualified
and authorized to do business in each jurisdiction in which the character of
their respective properties or the nature of their respective business requires
such qualification or authorization except where such failure to so qualify
and/or remain qualified does not or would not reasonably be likely to have a
Material Adverse Effect, and (b) preserve and maintain, its corporate existence,
rights (charter and statutory) and franchises; provided that neither AGCO nor
any of its Restricted Subsidiaries shall be required to preserve any right or
franchise if the Board of Directors of AGCO or such Restricted Subsidiary shall
determine that the preservation and maintenance thereof is no longer desirable
in the conduct of the business of AGCO or such Restricted Subsidiary, as the
case may be, and that the loss thereof is not disadvantageous in any material
respect to AGCO, such Restricted Subsidiary or the Lenders. AGCO shall at all
times remain qualified as a foreign corporation entitled to do business in the
State of New York.
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Section 5.3 Payment of Taxes and Claims. AGCO shall, and shall cause
each Subsidiary to, pay and discharge all material federal, foreign, state and
local taxes, assessments, and governmental charges or levies imposed upon any of
them or their respective incomes or profits or upon any properties belonging to
any of them prior to the date on which penalties attach thereto, and all lawful
claims for labor, materials and supplies which have become due and payable and
which by law have or may become a Lien upon any of their respective property;
except that, no such tax, assessment, charge, levy, or claim need be paid which
is being contested in good faith by appropriate proceedings and for which
adequate reserves shall have been set aside on the appropriate books, but only
so long as such tax, assessment, charge, levy, or claim does not become a Lien
or charge other than a Permitted Lien and no foreclosure, distraint, sale, or
similar proceedings shall have been commenced and remain unstayed for a period
thirty (30) days after such commencement. Each Borrower shall timely file all
information returns required by federal, state, provincial or local tax
authorities.
Section 5.4 Compliance with Environmental Laws. AGCO shall comply, and
cause each of its Subsidiaries and all lessees and other Persons occupying its
properties to comply, with all Environmental Laws and Environmental Permits
applicable to its operations and properties; obtain and renew all material
Environmental Permits necessary for its operations and properties; and conduct,
and cause each of its Subsidiaries to conduct, any investigation, study,
sampling and testing, and undertake any cleanup, removal, remedial or other
action necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance with the requirements of all Environmental Laws,
except in each case where the failure to take such action would not result in a
Material Adverse Effect.
Section 5.5 Maintenance of Insurance. AGCO shall maintain, and cause
each of its Restricted Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which AGCO or such
Restricted Subsidiary operates, including, without limitation, physical damage
insurance on all real and personal property, comprehensive general liability
insurance, and business interruption insurance; provided, however, that such
insurance may be subject to (A) self-insurance by AGCO and its Subsidiaries that
so long as such self insurance is in accord with the approved practices of
corporations similarly situated and adequate insurance reserves are maintained
in connection with such self-insurance, and (B) deductibles and co-payment
obligations no greater than those of other corporations similarly situated. All
policies of insurance required to be maintained under this Agreement shall be in
form and with insurers recognized as adequate by Administrative Agent and all
such policies shall be in such amounts as may be reasonably satisfactory to the
Administrative Agent and shall, by an endorsement or independent instrument
furnished to Agent provide that the insurance
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companies will give the Administrative Agent at least thirty (30) days prior
written notice (10 days, in the case of non-payment of premium) before any such
policy or policies of insurance shall be altered or canceled. AGCO shall deliver
to the Administrative Agent a certificate of insurance that evidences the
existence of each policy of insurance, payment of all premiums therefor and
compliance with all provisions of this Agreement and, upon request of the
Administrative Agent, AGCO shall deliver to the Administrative Agent a copy of
each such policy. All policies of property insurance shall contain an
endorsement, in form and substance satisfactory to the Administrative Agent,
showing loss payable to the Administrative Agent, as its interest appear and
extra expense and business interruption endorsements. Such endorsement, or an
independent instrument furnished to the Administrative Agent, shall provide that
no act or default of any Borrower or any other Person shall affect the right of
the Administrative Agent to recover under such policy or policies of insurance
in case of loss or damage. Each liability insurance policy shall contain an
endorsement listing the Administrative Agent as an additional insured
thereunder.
Section 5.6 Visitation Rights. AGCO shall permit, and shall cause its
Subsidiaries to permit, representatives of the Agents, each Issuing Bank and
each Lender to (a) visit and inspect the properties of AGCO and its Subsidiaries
during normal business hours, (b) inspect and make extracts from and copies of
AGCO's and its Subsidiaries' books and records, and (c) discuss with its
respective principal officers, directors and accountants its businesses, assets,
liabilities, financial positions, results of operations, and business prospects;
provided, however, the Lenders will use reasonable efforts to coordinate with
AGCO and the Agents such visit and inspections to limit any inconvenience to
AGCO and its Subsidiaries and, prior to the occurrence of any Default hereunder,
the Lenders shall give AGCO reasonable prior notice of any such visit or
inspection.
Section 5.7 Accounting Methods. AGCO shall maintain, and cause each of
its Subsidiaries to maintain, a system of accounting established and
administered in accordance with GAAP (or the foreign equivalent), and will keep
adequate records and books of account in which complete entries will be made in
accordance with such accounting principles consistently applied and reflecting
all transactions required to be reflected by such accounting principles.
Section 5.8 Maintenance of Properties, Etc. AGCO shall maintain and
preserve, and cause each of its Restricted Subsidiaries to maintain and
preserve, in the ordinary course of business in good repair, working order, and
condition, normal wear and tear, removal from service for routine maintenance
and repair and disposal of obsolete equipment excepted, all properties used or
useful in their respective businesses (whether owned or held under lease), and
from time to time make or cause to be made all needed and appropriate repairs,
renewals, replacements, additions, and improvements thereto.
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Section 5.9 Payment of Indebtedness; Performance of Material
Contracts. AGCO shall, and shall cause its Subsidiaries to, (a) pay, subject to
any provisions therein regarding subordination, any and all of their respective
material Indebtedness when and as the same becomes due after any applicable
cure period (other than amounts duly disputed in good faith if appropriate
reserves in accordance with GAAP are made therefor on the books of such Person)
and within the time period and in the manner consistent with their business
practices prior to the Agreement Date, and (b) perform and observe all the
terms and provisions of each Material Contract to be performed or observed by
it, except where the failure to perform or observe the same would not have a
Material Adverse Effect.
Section 5.10 Foreign Subsidiary Guaranties, Etc. If AGCO shall at
any time consolidate its and its Subsidiaries' financial statements for
tax-reporting purposes on a worldwide basis, at the request of the
Administrative Agent or the Required Lenders, AGCO shall cause each wholly
owned Foreign Subsidiary that is a Material Subsidiary and that shall not
previously have delivered a Guaranty Agreement to execute and deliver to the
Administrative Agent a Guaranty Agreement in form and substance satisfactory to
the Administrative Agent, guarantying the obligations of AGCO hereunder and
under the other Loan Documents, to the extent the guaranty of such obligations
is not prohibited by the law of the jurisdiction of formation or organization
of such Foreign Subsidiary, and shall cause the pledge of all Stock of such
Foreign Subsidiary to the Administrative Agent to the extent only two-thirds of
such Stock was previously pledged to the Administrative Agent.
Section 5.11 ERISA. AGCO shall at all times make, or cause to be
made, prompt payment of contributions required to meet the minimum funding
standards set forth in ERISA with respect to its and its ERISA Affiliates'
Plans; timely file any annual report required to be filed pursuant to ERISA in
connection with each such Plan of AGCO and its ERISA Affiliates; notify the
Administrative Agent as soon as practicable of the occurrence of any ERISA
Event and of any additional act or condition arising in connection with any
such Plan which AGCO believes might constitute grounds for the termination
thereof by the PBGC or for the appointment by the appropriate United States
District Court of a trustee to administer such Plan; and furnish to the
Administrative Agent, promptly upon the Administrative Agent's request
therefor, a copy of such annual report and such additional information
concerning any such Plan as may be reasonably requested by the Administrative
Agent.
Section 5.12 Conduct of Business. AGCO and each Subsidiary of
AGCO shall continue to engage in business of the same general type as now
conducted by it, respectively, on the Agreement Date.
Section 5.13 Further Assurances. Upon the request of the
Administrative Agent, AGCO will promptly cure, or cause to be cured, defects in
the creation and
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issuance of any of the Notes and the execution and delivery of the Loan
Documents (including this Agreement), resulting from any act or failure to act
by any Loan Party or any employee or officer thereof. AGCO at its expense will
promptly execute and deliver to the Agents and the Lenders, or cause to be
executed and delivered to the Agents and the Lenders, all such other and
further documents, agreements, and instruments in compliance with or
accomplishment of the covenants and agreements of AGCO and its Subsidiaries in
the Loan Documents, including this Agreement, or to correct any omissions in
the Loan Documents, or more fully to state the obligations set out herein or in
any of the Loan Documents, or to obtain any consents, all as may be necessary
or appropriate in connection therewith as may be reasonably requested by the
Administrative Agent.
Section 5.14 Broker's Claims. Each Borrower hereby indemnifies
and agrees to hold the Agents, the Issuing Banks and each of the Lenders
harmless from and against any and all losses, liabilities, damages, costs and
expenses which may be suffered or incurred by the Agents, the Issuing Banks and
each of the Lenders in respect of any claim, suit, action or cause of action
now or hereafter asserted by a broker or any Person acting in a similar
capacity arising from or in connection with the execution and delivery of this
Agreement or any other Loan Document or the consummation of the transactions
contemplated herein or therein
Section 5.15 Material Subsidiaries. AGCO shall, promptly and in
no event later than 30 days after the date that any Subsidiary becomes a
Material Subsidiary (or 30 days after such determination in connection with the
delivery of quarterly financial statements under Section 6.1(b)) or after the
acquisition or creation of any Material Subsidiary, (a) pledge, or cause the
pledge of, the Stock of such Subsidiary and, if such Subsidiary is located in
the United States, Canada or the United Kingdom, such Subsidiary's personal
property (including the Inventory, Receivables and intellectual property of
such Person) and, if requested by the Administrative Agent, Real Property, to
the Appropriate Agent for the benefit of the Agents, Issuing Banks and Lenders
pursuant to the Security Documents; provided, if such Subsidiary is a Foreign
Subsidiary, such pledge of Stock and assets may be limited to the extent
required to avoid any material adverse tax effect on AGCO as a result thereof,
as demonstrated to the satisfaction of the Administrative Agent and may be
limited to the extent such pledge is prohibited by the laws of the jurisdiction
of formation or organization of such Foreign Subsidiary, (b) cause such
Material Subsidiary to execute and deliver to the Administrative Agent a
Guaranty Agreement; provided, if such Subsidiary is a Foreign Subsidiary, such
Guaranty Agreement shall be a guaranty of the Obligations of all Borrowers
other than Borrowers not formed or organized under the laws of the United
States of America or any state or other jurisdiction thereof and may be limited
to the extent the guaranty of such obligations is prohibited by the laws of the
jurisdiction of formation or organization of such Foreign Subsidiary, and (c)
deliver to the Administrative Agent such other
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documents and opinions of counsel in connection therewith as the Administrative
Agent may reasonably request.
Section 5.16 Cash Concentration Accounts. AGCO will maintain cash
concentration accounts with one or more financial institutions reasonably
acceptable to the Administrative Agent that have accepted the assignment of
such account to the Administrative Agent pursuant to the Security Documents;
provided, however, that no such account shall be pledged to any Agent to the
extent that (a) such account is a collection account for proceeds of
Receivables sold pursuant to a Securitization Facility; (b) such account is a
zero balance account, or (c) the Administrative Agent determines such account
to not be material.
Section 5.17 Use of Proceeds. The Borrowers will use the proceeds
of the Advances, together with the proceeds of the Senior Unsecured Notes and
the European Securitization, solely for (a) on the Agreement Date, the
repayment of all Indebtedness under the Prior Loan Agreement, (b) on or within
thirty-five (35) days after the Agreement Date, the repayment of Indebtedness
of Target disclosed on Schedule 5.17, and (c) after the Agreement Date, working
capital needs and general corporate purposes, in each case for the Borrowers
and each Borrower's Restricted Subsidiaries.
Section 5.18 Covenants of the Borrowing Subsidiaries. Each
Borrowing Subsidiary will perform and observe each covenant in Article 5 that
AGCO is required to cause it to perform or observe under such Article.
Section 5.19 Real Property Documents. AGCO shall execute and
deliver, or provide, or cause its Restricted Subsidiaries which are U.S.,
Canadian or U.K. Loan Parties to execute and deliver or provide, to the
Administrative Agent within 60 days after the Agreement Date, each of the Real
Property Documents reasonably requested by the Administrative Agent with
respect to the Real Property Collateral listed on Schedule 5.19, in form and
substance reasonably satisfactory to the Administrative Agent.
Section 5.20 Landlord and Warehouseman Waivers. AGCO shall use
its best efforts to deliver, or cause its Restricted Subsidiaries which are
U.S., Canadian or U.K. Loan Parties to deliver, to the Administrative Agent
within 60 days after the Agreement Date, Landlord and Warehouseman Waivers with
respect to such Inventory locations in the United States, Canada or the United
Kingdom as may be reasonably requested by the Administrative Agent, in form and
substance reasonably satisfactory to the Administrative Agent.
Section 5.21 Canadian Bank Act Security Documents. The Canadian
Subsidiary and each other Loan Party that has executed a Security Agreement
with respect to Collateral located in Canada will execute and deliver promptly
upon request by the Administrative Agent, or the Canadian Administrative Agent,
as applicable, and in no
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event later than 10 days following such request, such Bank Act security
documents as may be requested by the Administrative Agent or the Canadian
Administrative Agent, as applicable, including without limitation, a Notice of
Intention to give security under Section 427 and related Section 427 documents.
ARTICLE 6.
INFORMATION COVENANTS
AGCO covenants and agrees that, so long as any Advance shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender shall have any
Commitment hereunder:
Section 6.1 Reporting Requirements. AGCO will deliver to the
Administrative Agent (and, with respect to clauses (b), (c), (i) and (n) of
this Section 6.1, such delivery may be made by AGCO posting such information
directly via IntraLinks):
(a) Default Notice. As soon as possible and in any event
within two days after a Responsible Employee shall know of the occurrence of
each Default, a statement of the chief financial officer of AGCO setting forth
details of such Default and the action that AGCO has taken and proposes to take
with respect thereto.
(b) Quarterly Financials. As soon as available and in
any event within 45 days after the end of each of the first three quarters of
each fiscal year of AGCO, and within 100 days after the end of the fourth
quarter of each fiscal year of AGCO, consolidated balance sheets of AGCO and
its Restricted Subsidiaries and (in the case of the first three fiscal
quarters) AGCO and its Subsidiaries, respectively, as of the end of such
quarter and consolidated statements of income and cash flows of AGCO and its
Restricted Subsidiaries and (if applicable) AGCO and its Subsidiaries,
respectively, for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding period of the
preceding fiscal year, all in reasonable detail and duly certified (subject to
year-end audit adjustments) by the chief financial officer of AGCO as having
been prepared in accordance with GAAP, together with, in the case of the
financial statements relating to the first three fiscal quarters:
(i) a certificate of said officer stating that
no Default has occurred and is continuing or, if a Default
has occurred and is continuing, a statement as to the nature
thereof and the action that AGCO has taken and proposes to
take with respect thereto; and
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(ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by AGCO in
determining compliance with the financial covenants contained
in Article 7 hereof.
(c) Annual Financials. As soon as available and in any
event within 100 days after the end of each fiscal year of AGCO, a copy of the
annual audit report for such year for AGCO and its Subsidiaries, including
therein consolidated balance sheets and consolidated statements of income and
cash flows of AGCO and its Subsidiaries for such fiscal year, in each case
accompanied by an opinion satisfactory to the Required Lenders of Xxxxxx
Xxxxxxxx LLP or other independent public accountants of recognized national
standing, together with:
(i) a certificate of such accounting firm to
the Lenders stating that in the course of the regular audit
of the business of AGCO and its Subsidiaries, which audit was
conducted by such accounting firm in accordance with
generally accepted auditing standards, such accounting firm
has obtained no knowledge that a Default has occurred and is
continuing with respect to any of the "Financial Covenants"
set forth in Article 7 hereof, or if, in the opinion of such
accounting firm, a Default has occurred and is continuing, a
statement as to the nature thereof;
(ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by such
accountants in determining, as of the end of such fiscal
year, the Senior Debt Ratio and compliance with the financial
covenants contained in Article 7 hereof; and
(iii) a certificate of the chief financial
officer of AGCO stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a
statement as to the nature thereof and the action that AGCO
has taken and proposes to take with respect thereto.
(d) ERISA Events and ERISA Reports. (i) Promptly and in
any event within 10 Business Days after any Responsible Employee of any Loan
Party or any of its ERISA Affiliates knows or has reason to know that any ERISA
Event with respect to any Loan Party or any of its ERISA Affiliates has
occurred, a statement of the chief financial officer of AGCO describing such
ERISA Event and the action, if any, that such Loan Party or such ERISA
Affiliate has taken and proposes to take with respect thereto, and (ii) on the
date on which any records, documents or other information must be furnished to
the PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of
such records, documents and information.
(e) Plan Terminations. Promptly and in any event within
2 Business Days after receipt thereof by any Loan Party or any of its ERISA
Affiliates, copies of each
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notice from the PBGC stating its intention to involuntarily terminate any Plan
of any Loan Party or any of its ERISA Affiliates or to have a trustee appointed
to administer any such Plan.
(f) Plan Annual Reports. Upon the Administrative Agent's
request, copies of the most recent Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) with respect to each Plan for which any Loan
Party or any of its ERISA Affiliates is required to file such report.
(g) Multiemployer Plan Notices. Promptly and in any
event within 5 Business Days after receipt thereof by any Loan Party or any of
its ERISA Affiliates from the sponsor of a Multiemployer Plan of any Loan Party
or any of its ERISA Affiliates, copies of each notice concerning:
(i) the imposition of Withdrawal Liability by
any such Multiemployer Plan that might have a Material
Adverse Effect;
(ii) the reorganization or termination, within
the meaning of Title IV of ERISA, of any such Multiemployer
Plan that might be expected to have a Material Adverse
Effect; or
(iii) the amount of liability incurred by such
Loan Party or any of its ERISA Affiliates in connection with
any event described in clause (i) or (ii), if paying such
liability might have a Material Adverse Effect.
(h) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and proceedings before
any court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting AGCO or any of its Subsidiaries
of the type described in Section 4.1(i).
(i) Securities Reports. Promptly after the sending or
filing thereof, copies of all proxy statements, financial statements and
reports that AGCO or any of its Subsidiaries sends to the stockholders of AGCO,
and copies of all regular, periodic and special reports, and all registration
statements that any Loan Party or any of its Subsidiaries files with the
Securities and Exchange Commission or any governmental authority that may be
substituted therefor, or with any national securities exchange.
(j) Creditor Reports. Copies of any statement, notice of
default or other material notice delivered to or received from the Senior Note
Trustee or the Subordinated Note Trustee and, upon request by either Agent or
any Lender, copies of any statement or report furnished to any other holder of
the securities of any Loan Party or of any of its Subsidiaries pursuant to the
terms of any indenture, loan or credit or similar agreement
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and not otherwise required to be furnished to the Lenders pursuant to any other
clause of this Section 6.1.
(k) Material Contract Notices. Promptly upon receipt
thereof, copies of all default notices received by any Loan Party or any of its
Subsidiaries under or pursuant to any Material Contract and, from time to time
upon request by the Administrative Agent, such information regarding any
Material Contracts as the Administrative Agent may reasonably request.
(l) Environmental Conditions. Promptly after the
occurrence thereof, notice of any condition or occurrence on any property of
any Loan Party or any of its Subsidiaries that results in a material
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit or would be reasonably likely to form
the basis of an Environmental Action against any Loan Party or any of its
Subsidiaries or such property that would reasonably be expected to have a
Material Adverse Effect.
(m) Adverse Developments. Promptly after the occurrence
thereof, notice of any other event or condition relating to the business,
condition (financial or otherwise), operations, performance, properties or
prospects of AGCO and its Restricted Subsidiaries that is reasonably likely to
have a Material Adverse Effect.
(n) Quarterly Operations Report; Annual Budget. As soon
as possible and in any event by (i) the 45th day after each fiscal quarter of
AGCO, a quarterly operations report in respect of the immediately preceding
fiscal quarter in substantially the form prepared by AGCO for its internal use
and containing substantially the information as is contained in such report as
of the date hereof, and (ii) January 15 of each year, the annual quarterly
budget for AGCO and its Restricted Subsidiaries, including forecasts of the
income statement, the balance sheet and a cash flow statement, for such year,
on a quarter-by-quarter basis.
(o) Replacement Schedules. Promptly, and in any event
within 30 days after any information contained in Schedule 4.1(b) or any
representation or warranty herein referring to such Schedule, if repeated as of
any date, shall become or would be incorrect or incomplete, deliver to the
Administrative Agent a replacement for such Schedule that will cause such
information, or such representation or warranty, to be correct and complete,
which replacement schedule must be in form and substance satisfactory to the
Administrative Agent prior to being accepted as a schedule hereunder.
(p) Securitization Funding; Indentures. Promptly
following (i) the occurrence of any Servicer Default, Early Amortization Event,
Amortization Event or Termination Event (as such terms may be defined in any
Securitization Documents) under the Securitization Documents, or default by
AGCO under any Senior Note Documents or Subordinated Note
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Documents, giving in each case the details thereof and specifying the action
proposed to be taken with respect thereto, and (ii) request by the
Administrative Agent, such information as the Administrative Agent may request
to determine the aggregate principal amount of Securitization Funding
outstanding on any date.
(q) Other Information. Such other information respecting
the business, condition (financial or otherwise), operations, performance,
taxes, properties or prospects of any Loan Party or any of its Subsidiaries as
any Agent may reasonably request or any Lender may from time to time reasonably
request through an Agent.
Section 6.2 Access to Accountants. Each Borrower hereby
authorizes the Agents to discuss the financial condition of such Borrower and
its Subsidiaries with such Borrower's independent public accountants upon
reasonable notification to such Borrower of such Agent's intention to do so.
Each Borrower shall be given the reasonable opportunity to participate in any
such discussion. Each Borrower shall deliver to its independent public
accountants a letter authorizing and instructing them to comply with the
provisions of this Section 6.2.
ARTICLE 7.
NEGATIVE COVENANTS
AGCO covenants and agrees that, so long as any Advance shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender shall have any
Commitment hereunder:
Section 7.1 Indebtedness. AGCO shall not create, assume, incur
or otherwise become or remain obligated in respect of, or permit to be
outstanding, and shall not permit any of its Restricted Subsidiaries to create,
assume, incur or otherwise become or remain obligated in respect of, or permit
to be outstanding, any Indebtedness except:
(a) Indebtedness under this Agreement, the Notes and the
other Loan Documents;
(b) Capitalized Leases and Indebtedness secured by
purchase money security interests described in clause (f) of the definition of
Permitted Liens set forth in Article 1 hereof which do not exceed the aggregate
amount of $5,000,000 made or incurred during any calendar year;
(c) Indebtedness of AGCO under the Senior Unsecured
Notes and the Subordinated Notes, and refinancings, renewals, or extensions of
the foregoing so long as: (i) the terms and conditions of such refinancings,
renewals, or extensions do not, in
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the Administrative Agent's judgment, materially impair the prospects of
repayment of the Obligations by the Borrowers, (ii) such refinancings,
renewals, or extensions do not result in an increase in the aggregate principal
amount of, or an increase in the rate of interest or fees with respect to, the
applicable Indebtedness so refinanced, renewed, or extended, (iii) such
refinancings, renewals, or extensions do not result in a shortening of the
average weighted maturity of the applicable Indebtedness so refinanced,
renewed, or extended, nor are they on terms or conditions that are materially
more burdensome or restrictive to AGCO or any Restricted Subsidiary, (iv) if
the Indebtedness that is refinanced, renewed, or extended was subordinated in
right of payment to the Obligations, then the terms and conditions of the
refinancing, renewal, or extension Indebtedness must include subordination
terms and conditions that are at least as favorable to the Agents, the Issuing
Banks and the Lenders as those that were applicable to the refinanced, renewed,
or extended Indebtedness, as determined by the Administrative Agent, and (v)
the documents evidencing or governing such Indebtedness, as so refinanced,
renewed or extended, are otherwise in form and substance satisfactory to the
Administrative Agent in its reasonable judgment;
(d) Securitization Funding under the Securitization
Documents;
(e) Indebtedness under Interest Hedge Agreements and
Foreign Exchange Agreements entered into in the ordinary course of business;
provided that such agreements (i) are designed solely to protect AGCO and its
Restricted Subsidiaries against fluctuations in foreign currency exchange rates
or interest rates and (ii) do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in foreign
currency exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder;
(f) Intercompany Indebtedness among any of AGCO and the
Restricted Subsidiaries; provided such Indebtedness shall be unsecured and, to
the extent incurred by a Loan Party, at all times subordinate to the
Obligations;
(g) Indebtedness of the Target assumed by the US
Subsidiary upon the consummation of the Merger and disclosed on Schedule 7.1;
(h) (i) Indebtedness in connection with Tax Abatement
Transactions permitted hereunder, and (ii) Indebtedness of Dronningborg
Industries AS secured by liens on Real Property owned as of the Agreement Date
in an aggregate amount not exceeding $5,500,000;
(i) other unsecured Indebtedness for borrowed money not
exceeding an aggregate amount outstanding at any time of (x) $30,000,000 at any
individual Restricted Subsidiary or (y) $75,000,000 for AGCO and all Restricted
Subsidiaries; and
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(j) Indebtedness permitted by Section 7.2 hereof.
Section 7.2 Limitation on Guaranties. AGCO shall not, and shall
not permit any of its Restricted Subsidiaries to, at any time Guaranty, or
assume, be obligated with respect to, or permit to be outstanding any Guaranty
of any obligation of any other Person, other than (a) under any Loan Document,
(b) obligations under agreements to indemnify Persons who have issued bid or
performance bonds or letters of credit issued in lieu of such bonds in the
ordinary course of business of AGCO or any Restricted Subsidiary securing
performance by AGCO or such Restricted Subsidiary of activities otherwise
permissible hereunder, (c) a guaranty by endorsement of negotiable instruments
for collection in the ordinary course of business, (d) guaranties by AGCO of
the Interest Hedge Agreements and Foreign Exchange Arrangements that any
Restricted Subsidiary may enter into with any financial institution, (e)
guaranties by AGCO or any Restricted Subsidiary of lines of credit of dealers
conducting business in Brazil and financing for retail purchasers in Brazil or
Argentina of products manufactured by AGCO or its Restricted Subsidiaries in an
aggregate amount outstanding at any time not to exceed $20,000,000, (f)
guaranties by AGCO of payment of fees, indemnification obligations and
performance obligations of any Restricted Subsidiary under the Securitization
Documents, (g) guaranties by AGCO or any other Restricted Subsidiary of
obligations (other than obligations constituting Funded Debt) of any Restricted
Subsidiary incurred in the ordinary course of such Restricted Subsidiary's
business, (h) contingent repurchase obligations of AGCO of Inventory, the lease
or purchase of which is financed by a Finance Company, (i) guaranties by AGCO
or any Restricted Subsidiary of Indebtedness of AGCO or any Restricted
Subsidiary permitted under clauses (b) or (i) of Section 7.1, (j) the unsecured
guaranty of the Senior Notes executed by the Senior Note Guarantors, and (k)
other unsecured guarantees in an aggregate amount not exceeding $1,000,000
outstanding at any time.
Section 7.3 Liens, Etc. AGCO shall not create, incur, assume or
suffer to exist, or permit any of its Restricted Subsidiaries to create, incur,
assume or suffer to exist, any Lien on or with respect to any of its properties
of any character (including, without limitation, accounts) whether now owned or
hereafter acquired or, except Permitted Liens.
Section 7.4 Restricted Payments and Purchases. AGCO shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly
declare or make any Restricted Payment or Restricted Purchase, except (a)
AGCO's Subsidiaries may make Restricted Payments to AGCO or any other
Restricted Subsidiary, and (b) so long as no Default then exists or would be
caused thereby, AGCO may (i) declare and deliver dividends and distributions
payable only in, or convert any preferred stock into, Common Stock of AGCO,
(ii) declare and pay cash dividends on its Common Stock listed on a national
securities exchange or Nasdaq or its Series A Convertible Preferred Stock, in
an aggregate amount not exceeding $5,000,000 in any fiscal year, (iii)
purchase, redeem,
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retire or otherwise acquire shares of its own outstanding Stock for cash in
connection with employee stock option plans, (iv) acquire shares of its Stock
to eliminate fractional shares and (v) redeem any preferred Stock purchase
rights issued under AGCO's stockholders rights plan at a redemption price of
$0.01 per right.
Section 7.5 Sale-Leasebacks. AGCO shall not directly or
indirectly become or remain liable, or permit any Restricted Subsidiary to
become or remain liable, as lessee or guarantor or other surety with respect to
any lease, whether a Capitalized Lease or otherwise, of any assets (whether
real or personal or mixed), whether now owned or hereafter acquired, that: (a)
AGCO or any Restricted Subsidiary has sold or transferred or is to sell or
transfer to any other Person, other than to another Restricted Subsidiary, or
(b) AGCO or any Restricted Subsidiary intends to use for substantially the same
purpose as any other property that has been sold or is to be sold or
transferred by AGCO or any Restricted Subsidiary to any Person in connection
with such lease, except for (i) any lease in effect on the Agreement Date and,
(ii) the lease of the facility located in Hesston, Kansas, and other facilities
located in the United States owned by AGCO or its Restricted Subsidiaries
(including Target) as of the Agreement Date in connection with a Tax Abatement
Transaction; provided, the documentation evidencing or governing such Tax
Abatement Transaction is in form and substance satisfactory to the
Administrative Agent, the bonds issued in connection with such transaction are
pledged to the Administrative Agent as Collateral hereunder, and the
Administrative Agent receives such other documentation as it may reasonably
request.
Section 7.6 Mergers, Etc. AGCO shall not merge into or
consolidate with any Person or permit any Person to merge into it, or permit
any of its Restricted Subsidiaries to do so, except that, so long as no Default
then exists hereunder or would be caused thereby and the Administrative Agent
receives written notice of any such merger at least 30 days (or such shorter
period as may be acceptable to the Administrative Agent) prior to the
effectiveness thereof if such merger involves a Loan Party: (a) any Restricted
Subsidiary (other than a Senior Note Guarantor or AGCO Acceptance Corporation)
of AGCO may merge into or consolidate with any other Restricted Subsidiary
(other than a Senior Note Guarantor or AGCO Acceptance Corporation) of AGCO or
any other Person to consummate an Investment permitted by Section 7.8 or 7.9,
but only if (i) the Person surviving such merger, or the Person formed by such
consolidation, shall be a Restricted Subsidiary of AGCO, (ii) if a Loan Party
is a party to such merger or consolidation and (x) the surviving corporation of
any such merger is not a Loan Party, or (y) is a party to any such
consolidation, the surviving corporation or Person formed by such
consolidation, as the case may be, shall assume, in a manner reasonably
satisfactory to the Required Lenders, the obligations of such Loan Party under
the Loan Documents to which such Loan Party was a party, and (iii) if the
surviving Person of such merger is a Material Subsidiary, the Administrative
Agent receives the documents required to be delivered pursuant to Section 5.15
hereof; (b) any of AGCO's Restricted Subsidiaries
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(other than Xxxxxx Xxxxxxxx Corp. or a Foreign Subsidiary) may merge into AGCO
so long as AGCO is the surviving corporation; (c) any Subsidiary that is not a
Restricted Subsidiary may merge into any other Subsidiary that is not a
Restricted Subsidiary; (d) any Senior Note Guarantor may merge into any other
Senior Note Guarantor; and (e) US Subsidiary may merge with Target on (or prior
to) the Agreement Date in connection with the Merger; provided, however, US
Subsidiary shall be the survivor of such Merger and have changed its name to
"Ag-Chem Equipment Co., Inc". AGCO shall not, and shall not permit any
Restricted Subsidiary to (other than a Dormant Subsidiary), liquidate or
dissolve itself or otherwise wind up its business, except any Restricted
Subsidiary (other than Xxxxxx Xxxxxxxx Corp.) may liquidate or dissolve if all
of its assets are transferred to AGCO or another Restricted Subsidiary in
compliance with Section 7.7(f) hereof (provided the Administrative Agent
receives 30 days' prior written notice if such Restricted Subsidiary is a Loan
Party).
Section 7.7 Sales of Assets. AGCO shall not sell, lease,
transfer or otherwise dispose of, or permit any of its Restricted Subsidiaries
to sell, lease, transfer or otherwise dispose of, any assets, except:
(a) sales of Inventory in the ordinary course of its
business;
(b) sales of the Closed Facilities;
(c) the sale of the assets of Target and its
Subsidiaries listed on Schedule 7.7 hereto for the fair market value thereof,
provided at the time of such sale no Default shall exist;
(d) sales of wholesale Receivables (together with the
Related Security) invoiced to third parties at addresses located in the United
States, Canada, and/or Europe under a Securitization Facility, but only so long
as the aggregate face amount of Receivables purchased by the purchasers under
such facility and outstanding on any date of determination may not exceed U.S.
$425,000,000;
(e) so long as no Default has occurred and is then
continuing, the sale of Real Property (together with the building and
improvements thereon) in connection with a Tax Abatement Transaction permitted
by Section 7.5;
(f) transfers of assets (i) between the Loan Parties;
provided (x) if such asset was subject to a Lien under any Security Document
prior to such transfer it remains subject to a first priority (subject to
Permitted Liens) perfected Lien under a Security Document after such transfer,
(y) if such asset was not subject to an Agent's Lien but was owned by a
Material Subsidiary, such asset is transferred to another Material Subsidiary,
and (z) no Senior Note Guarantor shall transfer assets to, or receive assets
from, any other Loan Party other than AGCO or another Senior Note Guarantor,
(ii) from a Subsidiary
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not a Loan Party to a Loan Party, (iii) between Restricted Subsidiaries that
are not Loan Parties, and (iv) from a Loan Party to a Restricted Subsidiary
that is not a Loan Party; provided, (x) such transfer is in the ordinary course
of business in compliance with Section 7.11, (y) if such asset was subject to a
Lien under any Security Document prior to such transfer, it remains subject to
an enforceable first priority (subject to Permitted Liens) perfected Lien under
a Security Document after such transfer, and the Subsidiary transferee
guarantees the Obligations hereunder to the same extent as the transferee had
guaranteed the Obligations, or (z) the aggregate amount of such transfers
during any fiscal year does not exceed $5,000,000;
(g) sales of Receivables by a Foreign Subsidiary in
connection with factoring arrangements in the ordinary course of business;
(h) sale or disposition of Investments in Landini SpA,
Motores de San Xxxx, and Deutz AGCO Motores SA; provided at the time of such
sale no Default shall exist; and
(i) so long as no Default has occurred and is then
continuing, the sale of any other asset by AGCO or any Restricted Subsidiary
(other than a bulk sale of Inventory) if (i) the purchase price paid to AGCO or
such Restricted Subsidiary for such asset or assets, in a single transaction or
related transactions, shall be at least equal to the Fair Market Value (as
defined below) of such asset(s) as determined by (x) with respect to any asset
or assets, in a single transaction or related transactions, with a Fair Market
Value of at least U.S.$1,000,000 (or the foreign equivalent thereof), the Board
of Directors of AGCO or such Restricted Subsidiary, as the case may be, and
evidenced in a resolution of such Board of Directors, and (y) with respect to
any asset or assets, in a single transaction or related transactions, with a
Fair Market Value of less than U.S.$1,000,000 (or the foreign equivalent
thereof), two of any of the chief financial officer, the chief executive
officer, the president, the chief operating officer or any equivalent thereof,
and (ii) the purchase price (including any portion thereof in respect of an
assumption of liabilities of AGCO or such Restricted Subsidiary) paid to AGCO
or such Restricted Subsidiary for such asset or assets, shall not exceed U.S.
$10,000,000 in the aggregate for such transactions in any fiscal year. For the
purposes of this subsection, "Fair Market Value" means, with respect to any
asset or property, the value that would be obtained in an arm's-length
transaction between an informed and willing seller under no compulsion to sell
and an informed and willing buyer under no compulsion to buy, as determined by
the Board of Directors or such officer of such seller.
Section 7.8 Investments AGCO shall not make or hold, or permit
any of its Restricted Subsidiaries to make or hold, any Investment in, any
Person other than:
(a) Investments by AGCO and its Restricted Subsidiaries
in Cash Equivalents and in Interest Hedge Agreements and Foreign Exchange
Agreements;
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(b) Investments received in settlement of Indebtedness
of third parties created in the ordinary course of business;
(c) advances to officers and employees of AGCO or any of
its Restricted Subsidiaries in the ordinary course of business (i) made in
accordance with past practices of AGCO and its Restricted Subsidiaries that do
not exceed $3,000,000 in principal amount at any one time outstanding or (ii)
made for travel, entertainment or similar expenses;
(d) the majority ownership of AGCO and its Restricted
Subsidiaries of the Stock of their respective Subsidiaries as disclosed on
Schedule 4.1(b), and the minority ownership of AGCO in the Persons listed on
Schedule 4.1(b), in each case as in effect on the Agreement Date;
(e) (i) Investments by AGCO and its Restricted
Subsidiaries in joint ventures outstanding as of the Agreement Date specified
in Schedule 4.1(c), and (ii) Investments after the Agreement Date in the joint
ventures listed on Schedule 4.1(c), and in other Persons not Restricted
Subsidiaries engaged in businesses that are related, ancillary or complementary
to the business of AGCO and its Restricted Subsidiaries as of the date hereof,
in an aggregate amount not to exceed $15,000,000 during any fiscal year and not
more than $30,000,000 during the term of this Agreement;
(f) a new Restricted Subsidiary formed by AGCO or any
other Restricted Subsidiary for purposes of consummating a transaction
permitted by Section 7.9 hereof or otherwise consented to by the Required
Lenders provided, if such new Restricted Subsidiary is a Material Subsidiary,
the Administrative Agent shall receive the documents required by Section 5.15
hereof;
(g) loans and advances to and capital contributions in,
any Restricted Subsidiary in the ordinary course of business;
(h) Investments made in Finance Companies to the extent
necessary to meet regulatory ratios and guidelines, not to exceed $50,000,000
during the term of this Agreement;
(i) retail financing for purchasers in Brazil and
Argentina of products manufactured by AGCO or its Restricted Subsidiaries in an
aggregate amount outstanding not exceeding (i) $25,000,000 at any time prior to
the six month anniversary of the Agreement Date, and (ii) $20,000,000 on the
six month anniversary of the Agreement Date or at any time thereafter; and
(j) Investments permitted by Sections 7.2 or 7.9 hereof.
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Section 7.9 Acquisitions. AGCO shall not, and shall not permit
any Restricted Subsidiary to, engage in or consummate any acquisition of all or
substantially all of the assets of a business or a business unit, or all or
substantially all of the operating assets of any Person, or assets which
constitute all or substantially all of the assets of a division or a separate
or separable line of business of any Person, or all or substantially all of the
Stock of any other Person, except (a) the acquisition of Target in connection
with the Merger, and (b) Investments and acquisitions in other assets or
Persons after the date hereof by AGCO and its Wholly Owned Restricted
Subsidiaries; provided (i) any Person acquired will be a Restricted Subsidiary
immediately after such Investment or acquisition, (ii) such assets are usable
in, or Person is primarily engaged in, businesses that are related, ancillary
or complementary to the business of AGCO and its Restricted Subsidiaries as of
the date hereof, (iii) no Default then exists or would be caused thereby, (iv)
the pro forma cash flow and operating statements of AGCO on a Consolidated
basis after giving effect to such acquisition or Investment demonstrate to the
satisfaction of the Administrative Agent that AGCO will be in compliance with
the financial and other covenants hereunder at the time of the acquisition or
Investment through the four fiscal quarter period thereafter, (v) prior to
making any such acquisition or Investment, AGCO shall provide to the
Administrative Agent and the Lenders a certificate of the chief financial
officer of AGCO certifying (A) that AGCO is in compliance with the financial
covenants hereof before and after giving effect to such acquisition or
Investment, (B) that no Event of Default then exists or would be caused thereby
and (C) the total amount of such acquisition or Investment and the full name
and state of organization of any new Subsidiary created for the purpose of
effecting such acquisition or Investment, (vi) to the extent the Person
acquired is a Material Subsidiary, the Administrative Agent shall have received
all documents required by Section 5.15 hereof, and (vii) the purchase price
(including the principal amount of any Indebtedness assumed, paid off or
otherwise satisfied by AGCO or a Restricted Subsidiary in such transaction but
excluding the portion of the purchase price paid for solely in Common Stock of
AGCO) of all such acquisitions and Investments made shall not exceed U.S.
$50,000,000 (or the Equivalent Amount thereof) during any fiscal year (the
"Acquisition Amount Basket"); provided, however, the unused Acquisition Amount
Basket in any fiscal year may be carried forward to subsequent fiscal years;
and, provided further, AGCO may make such acquisitions and/or Investments in
excess of the Acquisition Amount Basket in any fiscal year if (x) the Total
Debt Ratio, as of the last day of the fiscal quarter immediately prior to the
making of such acquisition or Investment, is less than or equal to 4.00 to
1.00, and (y) as of the last day of each fiscal quarter thereafter, AGCO
maintains a Total Debt Ratio less than or equal to 4.25 to 1.00, or such lesser
ratio as may be required by Section 7.19(a) hereof.
Section 7.10 Change in Nature of Business. AGCO shall not, or
permit any of its Restricted Subsidiaries (including without limitation any
Persons becoming Restricted
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Subsidiaries after the date hereof) to, make any material change in the nature
of its business as carried on at the date hereof.
Section 7.11 Affiliate Transactions. AGCO shall not enter into
or be a party to, or permit any of its Restricted Subsidiaries to enter into or
be a party to, any agreement or transaction with any Affiliate (other than a
Restricted Subsidiary or in a transaction constituting an Investment permitted
hereunder) except in the ordinary course of and pursuant to the reasonable
requirements of AGCO's or such Restricted Subsidiary's business and upon fair
and reasonable terms that, except in connection with the purchase and sale of
Inventory, are approved by AGCO's or such Restricted Subsidiary's Board of
Directors, no less favorable to AGCO or such Restricted Subsidiary than it
would obtain in a comparable arms length transaction with a Person not an
Affiliate, and on terms consistent with the business relationship of AGCO or
such Restricted Subsidiary and such Affiliate prior to the Agreement Date, if
any. Nothing contained in this Agreement shall prohibit increases in
compensation and benefits for officers and employees of AGCO which are
customary in the industry or consistent with the past business practice of
AGCO, or payment of customary directors' fees and indemnities.
Section 7.12 Amendments. AGCO shall not, and shall not permit any
Restricted Subsidiary to, (a) (i) without the prior written consent of the
Administrative Agent and the Required Lenders enter into any amendment or
waiver of the Senior Note Documents or the Subordinated Note Documents, which
in either case would adversely affect the rights of the Lenders under this
Agreement or any other Loan Document or make the provisions of any such
document after such amendment more burdensome on AGCO or its Restricted
Subsidiaries, or (ii) without the prior written consent of the Administrative
Agent enter into any other amendment of the Senior Note Documents or the
Subordinated Note Documents, (b) amend, its charter, bylaws or similar
constituent documents that would have a Material Adverse Effect, or (c) amend,
modify or supplement any subordination terms of any Indebtedness that has been
contractually subordinated to the Obligations; provided, however, AGCO may
enter into an amendment of the Subordinated Note Indenture which allows AGCO to
make "Restricted Payments" (as defined in the Subordinated Note Indenture) in
an amount not in excess of $5,000,000 in any fiscal year.
Section 7.13 Prepayments of Indebtedness. AGCO shall not, and
shall not permit its Restricted Subsidiaries to, prepay, redeem, defease or
purchase in any manner, or deposit or set aside funds for the purpose of any of
the foregoing, make any payment in respect of principal of, or make any payment
in respect of interest on, the Senior Unsecured Notes or the Subordinated
Notes, except AGCO and its Restricted Subsidiaries may (a) make regularly
scheduled payments of principal or interest required in accordance with the
terms of the instruments governing the Senior Unsecured Notes and the
Subordinated Notes and (b) prepay the Senior Unsecured Notes or the
Subordinated Notes out of proceeds of (i) the issuance of shares of Common
Stock, or
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(ii) a refinancing permitted by Section 7.1(c) hereof; provided, however,
neither AGCO nor any Subsidiary of AGCO shall make any payments (whether with
respect to principal, interest, sinking fund obligations, or otherwise) on the
Subordinated Notes or any other Indebtedness if such payments would violate the
subordination provisions of the Subordinated Notes or such other Indebtedness.
Section 7.14 Restrictions; Negative Pledge. AGCO shall not permit
any of its Restricted Subsidiaries to enter into agreements that prohibit or
limit the amount of dividends or loans that may be paid or made to AGCO or
another Subsidiary of AGCO by any of its Restricted Subsidiaries or any demands
for payment on Indebtedness owing by any Restricted Subsidiary of AGCO to AGCO
or another Subsidiary of AGCO, other than (a) restrictions imposed under an
agreement for the sale of all of the Stock or other equity interest of a
Subsidiary or for the sale of a substantial part of the assets of such
Subsidiary, in either case to the extent permitted hereunder and pending the
consummation of such sale, (b) restrictions in any Securitization Documents,
and restrictions set forth in the Senior Note Documents and the Subordinated
Note Documents in effect on the Agreement Date, and (c) restrictions in any
agreement with another Person relating to a joint venture conducted through a
Subsidiary of AGCO in which such Person is a minority stockholder requiring the
consent of such Person to the payment of dividends. Neither AGCO nor any
Restricted Subsidiary of AGCO shall, directly or indirectly, enter into any
agreement (other than the Loan Documents) with any Person that prohibits or
restricts or limits the ability of AGCO or such Restricted Subsidiary to
create, incur, pledge, or suffer to exist any Lien upon any of its respective
assets, except for (i) restrictions in the Securitization Documents and set
forth in the Senior Note Documents and the Subordinated Note Documents as of
the Agreement Date, (ii) customary restrictions relating to the subletting,
assignment, or transfer of any asset that is subject to a lease or license,
(iii) restrictions arising in connection with a Permitted Lien on any asset
provided that such restriction is limited to the assets subject to such
Permitted Lien, and (iv) restrictions in connection with unsecured Indebtedness
permitted by Section 7.1(i).
Section 7.15 Accounting Changes. AGCO will not, nor will it
permit any of its Subsidiaries to, make or permit any change in accounting
policies or reporting practices as such policies or practices are used in
connection with the preparation of the financial statements delivered or to be
delivered to the Administrative Agent pursuant to this Agreement, except as
required by GAAP (or the foreign equivalent). AGCO will not change its fiscal
year for accounting purposes from the fiscal year ending December 31.
Section 7.16 Issuance or Sales of Stock. AGCO shall not (a) sell,
assign or otherwise transfer, or permit any of its Restricted Subsidiaries to
sell, assign or otherwise transfer, any Stock of any Restricted Subsidiary, or
(b) permit any Restricted Subsidiary to issue or sell any shares of its Stock,
except (i) to qualify directors of Subsidiaries where required by applicable
law or to satisfy other requirements of applicable law with
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respect to the ownership of Stock of Subsidiaries incorporated in jurisdictions
outside of the United States of America, (ii) issuances and sales of Stock by
Restricted Subsidiaries to AGCO or other Wholly Owned Restricted Subsidiaries
of AGCO, and (iii) the sale of Stock of a Subsidiary held by AGCO or its
Restricted Subsidiaries, to the extent permitted by Section 7.7 hereof.
Section 7.17 Excess Proceeds. Permit to exist any Excess Proceeds
(as defined in the Subordinated Note Indenture), if the existence thereof would
require AGCO to offer to purchase the Subordinated Notes.
Section 7.18 No Notice Under Subordinated Note Indenture.
Deliver, or permit there to be delivered, to the Subordinated Note Trustee
under the Subordinated Note Indenture any notice that any agreement, instrument
or document, other than this Agreement and the Loan Documents, is the "Bank
Credit Agreement" thereunder.
Section 7.19 Financial Covenants.
(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, 2003 4.50 to 1.00
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December 31, 2003, through September 30, 2004 4.00 to 1.00
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December 31, 2004, 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
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September 30, 2002 2.50 to 1.00
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December 31, 2002, through September 30, 2003 2.50 to 1.00
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December 31, 2003, through September 30, 2004 2.25 to 1.00
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December 31, 2004, and thereafter 2.25 to 1.00
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(c) Fixed Charge Coverage Ratio. AGCO shall maintain, as
of the end of each fiscal quarter of AGCO, a Fixed Charge Coverage Ratio for
the four fiscal quarter period then ended of not less than 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 1.05 to 1.00
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September 30, 2001 1.05 to 1.00
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December 31, 2001 1.15 to 1.00
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March 31, 2002, through September 30, 2002 1.25 to 1.00
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December 31, 2002, through September 30, 2003 1.35 to 1.00
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December 31, 2003, through September 30, 2004 1.50 to 1.00
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December 31, 2004, and thereafter 1.75 to 1.00
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(d) Consolidated Tangible Net Worth. AGCO shall
maintain, as of the last day of each fiscal quarter of AGCO, Consolidated
Tangible Net Worth of not less than the sum of (i) (x) eighty-five percent
(85%) of Consolidated Tangible Net Worth as of March 31, 2001, plus (y)
eighty-five percent (85%) of the market value of the Stock of
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AGCO or its Subsidiaries issued to the shareholders of Target in connection
with the Merger, plus (ii) fifty percent (50%) of Consolidated Net Income (to
the extent positive) for the fiscal quarter ending June 30, 2001, and each
fiscal quarter thereafter on a cumulative basis.
(e) Capital Expenditures. AGCO shall not make, or permit
its Restricted Subsidiaries to make, Capital Expenditures during any fiscal
year in an aggregate amount in excess of the "Permitted Amount" set forth
opposite such fiscal year below, plus, commencing with fiscal year 2002, the
CapEx Carry Forward Amount, if any, from the immediately preceding fiscal year:
--------------------------------------------- -------------------------------------------
Fiscal Year Permitted Amount
--------------------------------------------- -------------------------------------------
2001 $70,000,000
--------------------------------------------- -------------------------------------------
2002 $75,000,000
--------------------------------------------- -------------------------------------------
2003 $80,000,000
--------------------------------------------- -------------------------------------------
2004 $85,000,000
--------------------------------------------- -------------------------------------------
Section 7.20 Covenants of the Borrowing Subsidiaries. Each
Borrowing Subsidiary will perform and observe each covenant in Article 7 that
AGCO is required to cause it to perform or observe under such Article.
ARTICLE 8.
EVENTS OF DEFAULT
Section 8.1 Events of Default. Each of the following shall
constitute an Event of Default (an "Event of Default"), whatever the reason for
such event and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment or order of any court or any
order, rule, or regulation of any governmental or non-governmental body:
(a) (i) any Borrower shall fail to pay (x) any principal
or face amount of any Advance on the date when the same becomes due and
payable, or (y) any interest or fees due hereunder within one Business Day
after the date when the same becomes due and payable, or (ii) any Loan Party
shall fail to make any other payment under any Loan Document, in any case
within five days after the date when the same becomes due and payable; or
(b) any representation or warranty made by any Loan
Party (or any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made; or
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(c) (i) any Borrower shall fail to perform any term,
covenant or agreement contained in Article 5 hereof if such failure shall
remain unremedied for 30 days after the earlier of (x) such Borrower having
knowledge thereof, and (y) written notice thereof having been given to AGCO;
(ii) any Borrower shall fail to perform any term, covenant or agreement
contained in Article 6 hereof if such failure shall remain unremedied for 10
days after the earlier of (x) such Borrower having knowledge thereof, and (y)
written notice thereof having been given to AGCO; (iii) any Borrower shall fail
to perform, observe or comply with any other term, covenant or agreement
contained in Article 7 hereof or any Security Document to which it is a party;
or (iv) any Borrower or any other Loan Party shall fail to perform any other
term, covenant or agreement contained in this Agreement or any other Loan
Document not referenced elsewhere in this Section 8.1 if such failure shall
remain unremedied for 30 days after the earlier of (x) such Loan Party having
knowledge thereof, and (y) written notice thereof having been given to AGCO; or
(d) AGCO or any Restricted Subsidiary shall fail to pay
any principal of, premium or interest on or any other amount payable in respect
of any Indebtedness, if such Indebtedness is outstanding in a principal or
notional amount of at least U.S. $10,000,000 in the aggregate (but excluding
Indebtedness outstanding hereunder), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period,
if any, specified in the agreement or instrument relating to such Indebtedness;
or any other event shall occur or condition shall exist under any agreement or
instrument relating to any such Indebtedness and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness or otherwise to cause, or to
permit the holder thereof to cause, such Indebtedness to mature; or any such
Indebtedness shall be declared to be due and payable or required to be prepaid
or redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem, purchase or
defease such Indebtedness shall be required to be made, in each case prior to
the stated maturity thereof; or
(e) AGCO or any Restricted Subsidiary (other than a
Dormant Subsidiary) shall generally not pay its debts as such debts become due,
shall suspend or threaten to suspend making payment whether of principal or
interest with respect to any class of its debts or shall admit in writing its
insolvency or its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be instituted
by or against AGCO or any Restricted Subsidiary (other than a Dormant
Subsidiary) seeking, or seeking the administration, to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief
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or the appointment of a receiver, administrator, receiver and manager, trustee,
or other similar official for it or for any substantial part of its property
and, in the case of any such proceeding instituted against it (but not
instituted by it) that is being diligently contested by it in good faith,
either such proceeding shall remain undismissed or unstayed for a period of 30
days or any of the actions sought in such proceeding (including without
limitation the entry of an order for relief against, or the appointment of a
receiver, administrator, receiver and manager, trustee, custodian or other
similar official for, it or any substantial part of its property) shall occur;
or AGCO or any Restricted Subsidiary shall take any action to authorize any of
the actions set forth above in this subsection, or an encumbrancer takes
possession of, or a trustee or administrator or other receiver or similar
officer is appointed in respect of, all or any part of the business or assets
of AGCO or any Restricted Subsidiary, or distress or any form of execution is
levied or enforced upon or sued out against any such assets and is not
discharged within seven days of being levied, enforced or sued out, or any Lien
that may for the time being affect any of its assets becomes enforceable, or
anything analogous to any of the events specified in this subsection occurs
under the laws of any applicable jurisdictions; or
(f) any judgment or order for the payment of money in
excess of U.S. $10,000,000 (other than any such judgment for a monetary amount
insured against by a reputable insurer that shall have admitted liability
therefor), individually or in the aggregate, shall be rendered against AGCO or
any Restricted Subsidiary, or a warrant of attachment or execution or similar
process shall be issued or levied against property of AGCO or any Restricted
Subsidiary pursuant to a judgment which, together with all other such property
of AGCO or any Restricted Subsidiary subject to other such process, exceeds in
value $10,000,000 in the aggregate, and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment, decree or order,
or (ii) within thirty (30) days after the entry, issue, or levy thereof, such
judgment, warrant, or process shall not have been vacated, rescinded or stayed
pending appeal or otherwise; or
(g) any non-monetary judgment or order shall be rendered
against any AGCO or any Restricted Subsidiary that is reasonably likely to have
a Material Adverse Effect, and within thirty (30) days after the entry or issue
thereof, such judgment or order shall not have been vacated, rescinded or
stayed pending appeal or otherwise; or
(h) any material portion of any Loan Document shall at
any time and for any reason be declared to be null and void, or a proceeding
shall be commenced by any Loan Party or any of its respective Affiliates, or by
any governmental authority having jurisdiction over any Loan Party or any of
its Affiliates, seeking to establish the invalidity or unenforceability thereof
(exclusive of questions of interpretation of any provision thereof), or any
material provision of any Loan Document shall for any reason cease to be valid
and binding on or enforceable against any Loan Party to it, or any such Loan
Party shall so state in writing; or
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(i) any Security Document shall for any reason (other
than pursuant to the terms thereof) cease to create a valid and perfected
first-priority Lien (except for Permitted Liens) on any Collateral referred to
therein; or
(j) a Change of Control shall occur; or
(k) (i) any ERISA Event shall have occurred with respect
to a Plan of any Loan Party or any ERISA Affiliate as a result of an
Insufficiency thereunder, and any Loan Party shall fail to make any payment in
excess of $1,000,000 as and when required to be made under ERISA as a result of
such Insufficiency, or any such Insufficiency shall have occurred and then
exist that would result in a Material Adverse Effect; or (ii) any Loan Party or
any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer
Plan of such Loan Party or any ERISA Affiliate that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated with
all other amounts required to be paid to Multiemployer Plans by the Loan
Parties and their ERISA Affiliates as Withdrawal Liability (determined as of
the date of such notification), exceeds U.S. $25,000,000 or requires payments
exceeding U.S. $5,000,000 per annum or would otherwise result in a Material
Adverse Effect; or (iii) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of such Loan Party and their ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such Multiemployer
Plans for the plan years of such Multiemployer Plans immediately preceding the
plan in which such reorganization or termination occurs by an amount exceeding
U.S. $25,000,000 or which would otherwise result in a Material Adverse Effect;
or
(l) a Termination Event, an Amortization Event, or an
Early Amortization Event, or, if any Subsidiary of AGCO is the servicer at such
time, a Servicer Default (as such terms are defined in any Securitization
Document) under any of the Securitization Documents, or any other event which
causes an early permanent termination of a commitment to purchase or loan under
a Securitization Facility, shall occur and be continuing and shall not have
been rescinded in accordance with the terms of such Securitization Documents;
provided, however, that if such Termination Event, Amortization Event or Early
Amortization Event is solely the result of the election of AGCO or any
Restricted Subsidiary to voluntarily terminate the securitization program
pursuant to such Securitization Documents in respect of which such Termination
Event, Amortization Event or Early Amortization Event has occurred, then such
event shall not be an Event of Default provided that either (i) such
securitization program is simultaneously replaced by another securitization
program or factoring arrangement which will provide a comparable level of
liquidity for AGCO or the Restricted Subsidiary party thereto, as determined
by, and subject to documentation in form and substance
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satisfactory to, the Administrative Agent, or (ii) the Administrative Agent
determines that the liquidity requirements of AGCO or the Restricted Subsidiary
party to such terminating securitization do not require the maintenance of such
securitization program.
Section 8.2 Remedies. If an Event of Default shall have occurred
and until such Event of Default is waived in writing by the Required Lenders,
or all of the Lenders as may be required by Section 10.1 hereof, the
Administrative Agent:
(a) may, and shall at the request of the Required
Lenders, by notice to AGCO, declare the obligation of each Lender to make
Advances and of the Issuing Banks to issue Letters of Credit and the Swing Line
Bank to make Swing Line Advances to be terminated, whereupon the same shall
forthwith terminate;
(b) may, and shall at the request of the Required
Lenders (i) by notice to AGCO, declare the Advances, Notes, all interest
thereon and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Advances, the Notes,
all such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrowers, and (ii) by notice
to each party required under the terms of any agreement in support of which a
Standby Letter of Credit is issued, request that all Obligations under such
agreement be declared to be due and payable; provided that in the event of an
actual or deemed entry of an order for relief or any assignment, proposal or
the giving of notice of intention to make a proposal with respect to any
Borrower under the Bankruptcy Code, (x) the obligation of each Lender to make
Advances and of the Issuing Bank to issue Letters of Credit and of the Swing
Line Bank to make Swing Line Advances shall automatically be terminated and (y)
the Advances and the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrowers; and
(c) may, and shall at the request of the Required
Lenders, exercise all of the post default rights granted to it and to them
under the Loan Documents or under Applicable Law. The Administrative Agent, for
the benefit of itself, the Agents, the Issuing Banks and the Lenders, shall
have the right to the appointment of a receiver for the property of each
Borrower, and each Borrower hereby consents to such rights and such appointment
and hereby waives any objection each Borrower may have thereto or the right to
have a bond or other security posted by the Agents, the Issuing Bank or the
Lenders in connection therewith.
Section 8.3 Actions in Respect of the Letters of Credit. If (a)
an event of an actual or deemed entry of an order for relief or any assignment,
proposal or the giving of notice of intention to make a proposal with respect
to any Borrower under the Bankruptcy Code shall have occurred, AGCO will
forthwith, and (b) any other Event of Default shall
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have occurred and be continuing, the Administrative Agent may, irrespective of
whether it is taking any of the actions described in Section 8.2 or otherwise,
make demand upon AGCO to, and forthwith upon such demand AGCO will, pay to the
Administrative Agent on behalf of the Lenders in same-day funds at the
Administrative Agent's office designated in such demand, for deposit in such
interest-bearing account as the Administrative Agent shall specify (the "L/C
Cash Collateral Account"), an amount equal to the aggregate Available Amount of
all Letters of Credit then outstanding. If at any time the Administrative Agent
determines that any funds held in the L/C Cash Collateral Account are subject
to any right or claim of any Person other than the Administrative Agent and the
Lenders or that the total amount of such funds is less than the amount required
to be on deposit hereunder, AGCO will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to
be deposited and held in the L/C Cash Collateral Account, an amount equal to
the excess of (i) such amount required to be deposited hereunder over (ii) the
total amount of funds, if any, then held in the L/C Cash Collateral Account
that the Administrative Agent determines to be free and clear of any such right
and claim. The L/C Cash Collateral Account shall be in the name and under the
sole dominion and control of the Administrative Agent. The Administrative Agent
shall have no obligation to invest any amounts on deposit in the L/C Cash
Collateral Account. AGCO grants to the Administrative Agent, for its benefit
and the benefit of the Lenders, the Agents and the Issuing Banks, a lien on and
security interest in the L/C Cash Collateral Account and all amounts on deposit
therein as collateral security for the performance of the Borrowers'
obligations under this Agreement and the other Loan Documents. The
Administrative Agent shall have all rights and remedies available to it under
Applicable Law with respect to the L/C Cash Collateral Account and all amounts
on deposit therein.
ARTICLE 9.
THE AGENTS
Section 9.1 Authorization and Action. Each Lender hereby
appoints and authorizes Rabobank to take action on its behalf as the
Administrative Agent, and each Canadian Facility Lender hereby appoints and
authorizes Rabobank Canada to act on its behalf as Canadian Administrative
Agent, to exercise such powers and discretion under this Agreement and the
other Loan Documents as are delegated to them respectively by the terms hereof
and thereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by the Loan
Documents (including without limitation enforcement or collection of the
Notes), neither Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions
of the Required Lenders, and such instructions shall be binding upon all
Lenders and all holders of Notes; provided that neither Agent shall be required
to
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take any action that exposes it or its officers or directors to personal
liability or that is contrary to this Agreement or Applicable Law. Except for
action requiring the approval of the Required Lenders, the Agents shall be
entitled to use their discretion with respect to exercising or refraining from
exercising any rights which may be vested in it by, and with respect to taking
or refraining from taking any action or actions which it may be able to take
under or in respect of, any Loan Document, unless such Agent shall have been
instructed by the Required Lenders to exercise or refrain from exercising such
rights or to take or refrain from taking such action. No Agent shall incur any
liability under or in respect of any Loan Document with respect to anything
which it may do or refrain from doing in the reasonable exercise of its
judgment or which may seem to it to be necessary or desirable in the
circumstances, except for its gross negligence or willful misconduct as
determined by a final, non-appealable judicial order.
Section 9.2 Agents' Reliance, Etc. Neither Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken
or omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder
thereof until the Administrative Agent receives and accepts an Assignment and
Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 10.7;
(b) respectively, may consult with legal counsel
(including counsel for any Loan Party), independent public accountants and
other experts selected by it, and may rely on any opinion of counsel delivered
under this Agreement, and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts or any such opinion;
(c) make no warranty or representation to any Lender and
shall not be responsible to any Lender for any statements, warranties or
representations made in or in connection with the Loan Documents by any other
Person;
(d) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or
conditions of any Loan Document on the part of any Loan Party or to inspect the
property (including the books and records) of any Loan Party;
(e) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument or document furnished
pursuant hereto (other than its own execution and
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delivery thereof) or the creation, attachment perfection or priority of any
Lien purported to be created under or contemplated by any Loan Document;
(f) respectively, shall incur no liability under or in
respect of any Loan Document by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telegram, telecopy, cable or
telex) believed by it to be genuine and signed or sent by the proper party or
parties;
(g) shall have no liability or responsibility to any
Loan Party for any failure on the part of any Lender to comply with any
obligation to be performed by such Lender under this Agreement;
(h) shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default under this Agreement unless
they have received notice from a Lender or Loan Party referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "Notice of Default";
(i) shall incur no liability as a result of any
determination whether the transactions contemplated by the Loan Documents
constitute a "highly leveraged transaction" within the meaning of the
interpretations issued by the Comptroller of the Currency, the Federal Deposit
Insurance Corporation and the Board of Governors of the Federal Reserve System;
and
(j) may act directly or through agents or attorneys on
its behalf but shall not be responsible to any Lender for the negligence or
misconduct of any agents or attorneys selected by it with reasonable care.
Section 9.3 Agents, in their Individual Capacity and Affiliates.
With respect to their respective Commitments, and the Advances made by each of
them, respectively, and the Notes issued to each of them, respectively,
Rabobank and Rabobank Canada shall have the same rights and powers under the
Loan Documents as any other Lender and may exercise the same as though it were
not an Agent; and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated, include Rabobank and Rabobank Canada in their individual
capacities. Rabobank and Rabobank Canada and their respective Affiliates may
accept deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of
business with, any Loan Party, any of its Subsidiaries and any Person who may
do business with or own securities of any Loan Party or any such Subsidiary,
all as if Rabobank and Rabobank Canada were not Agents and without any duty to
account therefor to the Lenders.
Section 9.4 Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon either Agent or any other
Lender and based on
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the financial statements referred to in Section 3.1 and such other documents
and information as it has deemed appropriate, made its own independent credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon either Agent
or any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
Section 9.5 Notice of Default or Event of Default. In the event
that any Agent or any Lender shall acquire actual knowledge, or shall have been
notified in writing, of any Default or Event of Default, such Agent or such
Lender shall promptly notify the Lenders and the Agents, and the Administrative
Agent shall take such action and assert such rights under this Agreement as the
Required Lenders shall request in writing, and the Administrative Agent shall
not be subject to any liability by reason of its acting pursuant to any such
request. If the Required Lenders shall fail to request the Administrative Agent
to take action or to assert rights under this Agreement in respect of any Event
of Default within ten days after their receipt of the notice of any Event of
Default from any Agent, or shall request inconsistent action with respect to
such Event of Default, the Administrative Agent may, but shall not be required
to, take such action and assert such rights (other than rights under Article 8
hereof) as it deems in its discretion to be advisable for the protection of the
Lenders, except that, if the Required Lenders have instructed the
Administrative Agent not to take such action or assert such right, in no event
shall the Administrative Agent act contrary to such instructions.
Section 9.6 Indemnification. Each Lender severally agrees to
indemnify each Agent (to the extent not promptly reimbursed by the Borrowers)
from and against such Lender's ratable share of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements (including without limitation fees and expenses of
legal counsel, experts, agents and consultants) of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such Agent
in any way relating to or arising out of the Loan Documents or any action taken
or omitted by such Agent under the Loan Documents; provided that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
found in a final, non-appealable judgment by a court of competent jurisdiction
to have resulted from such Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender agrees to reimburse each Agent
promptly upon demand for its ratable share of any costs and expenses payable by
any Borrower under Section 10.4, to the extent that such Agent is not promptly
reimbursed for such costs and expenses by the Borrowers. For purposes of this
Section, the Lenders' respective ratable shares of any amount shall be
determined, at any time, according to the sum of:
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(a) the aggregate principal amount of the Advances
(other than Advances by way of Bankers' Acceptances) outstanding at such time
and owing to the respective Lenders;
(b) the aggregate face amount of Bankers' Acceptances
outstanding at such time and owing to the respective Lenders;
(c) their respective Pro Rata Shares of the aggregate
Available Amount of all Letters of Credit outstanding at such time; and
(d) their respective Unused Multi-Currency Commitments
and Unused Canadian Facility Commitments at such time.
Section 9.7 Successor Agent. Either Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrowers. Upon
any such resignation, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Agent's giving of notice of resignation, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be
any Lender or a commercial bank or other financial institution and having a
combined capital and reserves in excess of U.S. $500,000,000. Upon the
acceptance of any appointment as an Agent hereunder by a successor Agent, such
successor Agent shall succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under the Loan Documents.
After any retiring Agent's resignation or removal hereunder as an Agent, the
provisions of this Article 9 and Section 10.4 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was an Agent under this
Agreement.
Section 9.8 Agent May File Proofs of Claim. The Appropriate
Agent may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Agents (including any
claim for the reasonable compensation, expenses, disbursements and advances of
each Agent, its agents, financial advisors and counsel), the Issuing Banks and
the Lenders allowed in any judicial proceedings relative to any Loan Party, or
any of their respective creditors or property, and shall be entitled and
empowered to collect, receive and distribute any monies, securities or other
property payable or deliverable on any such claims and any custodian in any
such judicial proceedings is hereby authorized by each Lender to make such
payments to the Appropriate Agent and, in the event that the Appropriate Agent
shall consent to the making of such payments directly to the Lenders, to pay to
the Appropriate Agent any amount due to the Appropriate Agent for the
reasonable compensation, expenses, disbursements and advances of the
Appropriate Agent, its agents, financial advisors and counsel, and any other
amounts due the Appropriate Agent.
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contained in this Agreement or the other Loan Documents shall be deemed to
authorize any Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any holder thereof, or to authorize any
Agent to vote in respect of the claim of any Lender in any such Proceeding.
Section 9.9 Co-Documentation Agent and Co-Syndication Agent. It
is expressly acknowledged and agreed by the Agents, each Lender and the
Borrowers for the benefit of the Co-Documentation Agents and Co-Syndication
Agents that the Co-Documentation Agents and Co-Syndication Agents, in such
capacity, have no duties or obligations whatsoever with respect to this
Agreement, the Notes or any other document or any matter related thereto.
Section 9.10 Collateral.
(a) Each Agent is hereby authorized to hold all
Collateral pledged to it pursuant to any Loan Document and to act on behalf of
the Agents, the Lenders and the Issuing Banks, in its own capacity and through
other agents appointed by it, under the Security Documents; provided, that such
Agent shall not agree to the release of any Collateral except in accordance with
the terms hereof.
(b) For the purposes of holding any security hereafter
granted by any of the Loan Parties pursuant to the laws of the Province of
Quebec, the Administrative Agent, or the Canadian Administrative Agent, as
applicable, shall be the holder of an irrevocable power of attorney ("fonde de
pouvoir" in accordance with article 2692 of the Civil Code of Quebec) for all
present and future Lenders. By executing an Assignment and Acceptance, any
future Lender shall be deemed to ratify the power of attorney granted to the
Administrative Agent or the Canadian Administrative Agent, as applicable,
hereunder. The Lenders and the Loan Parties agree that notwithstanding Section
32 of the Act respecting the Special Powers of Legal Persons (Quebec), the
Administrative Agent or the Canadian Administrative Agent, as applicable, may,
as the person holding the power of attorney of the Lenders, acquire any
debentures or other title of indebtedness secured by any hypothec granted by any
of the Loan Parties to the Administrative Agent or the Canadian Administrative
Agent, as applicable, pursuant to the laws of the Province of Quebec.
Section 9.11 Release of Collateral.
(a) Each Lender and each Issuing Bank hereby directs the
Appropriate Agent to, in accordance with the terms of this Agreement, and the
Appropriate Agent agrees to, release or subordinate any Lien held by the
Appropriate Agent for the benefit of the Agents, the Lenders and the Issuing
Banks:
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(i) against all of the Collateral, upon final
and indefeasible payment in full of the Obligations and
termination of this Agreement; or
(ii) against any part of the Collateral sold or
disposed of by the applicable Loan Party if such sale or
disposition is permitted by Section 7.7 hereof (including any
sale of Receivables and Related Assets in connection with a
Canadian Securitization) as certified to the Administrative
Agent by the Loan Party in a certificate of an Authorized
Signatory or is otherwise consented to by the requisite
Lenders for such release as set forth in Section 10.1 hereof.
Each Lender and each Issuing Bank hereby directs the Appropriate Agent
to, and the Appropriate Agent hereby agrees to, execute and deliver or file such
termination and partial release statements and do such other things as are
reasonably necessary to release Liens to be released pursuant to this Section
promptly upon the effectiveness of any such release. Upon request by the
Appropriate Agent at any time, the Lenders and the Issuing Banks will confirm in
writing the Appropriate Agent's authority to release particular types or items
of Collateral pursuant to this Section.
Section 9.12 Securitization Documents. The Administrative Agent is
hereby authorized to enter into the Securitization Intercreditor Agreement on
behalf of the Agents, the Lenders and each Issuing Bank.
ARTICLE 10.
MISCELLANEOUS
Section 10.1 Amendments, Etc. No amendment or waiver of any
provision of this Agreement, the Notes or any other Loan Document, nor consent
to any departure by any Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Required Lenders, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided that:
(a) no amendment, waiver or consent shall, unless in
writing and signed by all the Canadian Facility Lenders, do any of the following
at any time:
(i) change the procedures for the issuance of
Bankers' Acceptances and BA Equivalent Loans hereunder; or
(ii) reduce or forgive any scheduled payment of
principal due under the Canadian Facility, or reduce the rate
of interest or fees payable
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under the Canadian Facility, or postpone any scheduled date
for any payment of interest or fees under the Canadian
Facility;
(b) no amendment, waiver or consent shall, unless in
writing and signed by all the Multi-Currency Lenders, reduce or forgive any
scheduled payment of principal due under the Multi-Currency Facility, or reduce
the rate of interest or fees payable under the Multi-Currency Facility, or
postpone any scheduled date for any payment of interest or fees under the
Multi-Currency Facility;
(c) no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders, do any of the following at any time:
(i) waive any of the conditions specified in
Section 3.2;
(ii) change the definition of "Required Lenders"
hereunder;
(iii) amend this Section 10.1;
(iv) increase the aggregate amount of the
Commitments, the Multi-Currency Facility Commitment or the
Canadian Facility Commitment;
(v) extend the Maturity Date; or
(vi) release any Guarantor that is a Borrower or
a Material Subsidiary from its obligations under its
respective Guaranty Agreement, or release any material portion
of the Collateral, except, in each case, in connection with a
sale that is permitted hereunder;
(d) no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Bank in addition to the Lenders required
above to take such action, affect the rights or obligations of the Swing Line
Bank in such capacity under this Agreement;
(e) no amendment, waiver or consent shall, unless in
writing and signed by the Appropriate Issuing Bank in addition to the Lenders
required above to take such action, affect the rights or obligations of such
Issuing Bank under this Agreement; and
(f) no amendment, waiver or consent shall, unless in
writing and signed by the Appropriate Agent, in addition to the Lenders required
above to take such action, affect the rights or duties of such Agent under this
Agreement or any Note.
Anything in this Agreement to the contrary notwithstanding, if any
Lender shall fail to fulfill its obligations to make an Advance hereunder then,
for so long as such failure shall continue, such Lender shall (unless AGCO and
the Required Lenders,
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determined as if such Lender were not a "Lender" hereunder, shall otherwise
consent in writing) be deemed for all purposes relating to amendments,
modifications, waivers or consents under this Agreement or the Notes (including
without limitation under this Section 10.1) to have no Advances or Commitments,
shall not be treated as a "Lender" hereunder when performing the computation of
Required Lenders, and shall have no rights under this Section 10.1; provided
that any action taken by the other Lenders with respect to the matters referred
to in clauses (a) , (b) or (c) of this Section 10.1 shall not be effective as
against such Lender.
Section 10.2 Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopy communication)
and mailed, telecopied or delivered,
(a) if to AGCO or any Borrowing Subsidiary to AGCO at its
address at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000-0000, Attention:
General Counsel, Facsimile No. (000) 000-0000, with a copy to the Chief
Financial Officer at the same address and telecopier number;
(b) if to any Lender, at its Domestic Lending Office
specified opposite its name on Schedule I hereto or in the Assignment and Loan
Acceptance pursuant to which it became a Lender;
(c) if to the Administrative Agent, at its address at 000
Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Loan
Syndications, Facsimile No. (000) 000-0000; and
(d) if to the Canadian Administrative Agent, at its
address at 00 Xxxx Xxxxxx Xxxx, Xxxxx 0000, X.X. Xxx 00, TD Centre, Toronto,
Xxxxxxx X0X0X0, Attention: Credit/Legal, Facsimile No. (000) 000-0000,
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall be effective five days after deposit in the mail and when transmitted by
telecopier, except that notices and communications to an Agent pursuant to
Article 2, 3 or 9 shall not be effective until received by such Agent.
Section 10.3 No Waiver: Remedies. No failure on the part of any
Lender or either Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
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Section 10.4 Costs and Expenses.
(a) AGCO agrees to pay on demand all costs and expenses
of the Agents in connection with the preparation, execution, delivery,
administration, modification and amendment of the Loan Documents at any time
(including without limitation (A) all due diligence, syndication,
transportation, computer, duplication, IntraLinks, appraisal, audit, insurance
and consultant fees and expenses and (B) the reasonable fees and expenses of
counsel (including without limitation New York, local and foreign counsel) for
the Agents with respect thereto, with respect to advising the Agents as to their
respective rights and responsibilities, or the perfection, protection or
preservation of rights or interests, under the Loan Documents, with respect to
negotiations with any Loan Party or with other creditors of any Loan Party or
any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto).
(b) AGCO further agrees to pay on demand all costs and
expenses of each Agent, each Issuing Bank and each Lender in connection with the
enforcement of the Loan Documents against any Loan Party, whether in any action,
suit or litigation, any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights generally or otherwise (including without limitation
the reasonable fees and expenses of counsel for each Agent and each Lender with
respect thereto), and each Borrowing Subsidiary severally agrees to pay on
demand all such costs and expenses in respect of any such enforcement relating
to itself.
(c) AGCO agrees to indemnify and hold harmless each
Agent, each Issuing Bank and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including without limitation reasonable fees and expenses of counsel)
that may be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason of, or in connection
with the preparation for a defense of, any investigation, litigation or
proceeding arising out of, related to or in connection with:
(i) any acquisition or proposed acquisition;
(ii) the actual or alleged presence of Hazardous
Materials on any property of any Loan Party or any of its
Subsidiaries or any Environmental Action relating in any way
to any Loan Party or any of its Subsidiaries; or
(iii) any financing hereunder;
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in each case whether or not such investigation, litigation or proceeding is
brought by any Loan Party, its directors, shareholders or creditors or an
Indemnified Party or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated, except to
the extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. The
Borrowers agree not to assert any claim against the either Agent, any Issuing
Bank, any Lender, any of their Affiliates, or any of their respective directors,
officers, employees, attorneys and agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise
relating to any of the transactions contemplated herein or in any other Loan
Document or the actual or proposed use of the proceeds of the Advances.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including
without limitation fees and expenses of counsel and indemnities, such amount may
be paid on behalf of such Loan Party by either Agent or any Lender, in its sole
discretion.
Section 10.5 Right of Set-off. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 8.2 to authorize the Administrative
Agent to declare the Notes due and payable pursuant to the provisions of Section
8.2, each Lender and each of its Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by law and subject to Section
2.9, to set off and otherwise apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender or such Affiliate to or for the credit or the
account of a Borrower against any and all of the Obligations of such Borrower
now or hereafter existing under this Agreement and the Note or Notes held by
such Lender, irrespective of whether such Lender shall have made any demand
under this Agreement or such Note or Notes and although such obligations may be
unmatured. Each Lender agrees promptly to notify such Borrower after any such
set-off and application; provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
and its Affiliates under this Section are in addition to other rights and
remedies (including without limitation other rights of set-off) that such Lender
and its Affiliates may have.
Section 10.6 Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrowers and the Agents and when the
Administrative Agent shall have been notified by each Lender that such Lender
has executed it and thereafter shall be binding upon and inure to the benefit of
the Borrowers, the Agents, the Issuing Banks and each Lender and their
respective successors and assigns, except that no Borrower shall have the right
to assign its rights hereunder or any interest herein without
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the prior written consent of each Lender. Section 12.5 shall also inure to the
benefit of each Subsidiary of AGCO referred to therein.
Section 10.7 Assignments and Participations.
(a) Each Lender and the Issuing Bank may assign to one or
more banks or other entities all or a portion of its rights and obligations
under this Agreement (including without limitation all or a portion of its
Commitment or Commitments, and the Advances owing to it and the Note or Notes
held by it), and the Issuing Bank may assign its Letter of Credit Commitment;
provided that:
(i) any such assignment by an Issuing Bank of
its Letter of Credit Commitment shall be of its entire Letter
of Credit Commitment;
(ii) in the case of each such assignment of a
Multi-Currency Commitment (except in the case of an assignment
to a Person that, immediately prior to such assignment, was a
Multi-Currency Lender or an assignment of all of a
Multi-Currency Lender's rights and obligations under this
Agreement), (A) the amount of the Multi-Currency Commitment of
the assigning Multi-Currency Lender being assigned pursuant to
such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no
event be less than U.S. $5,000,000 and shall be an integral
multiple of U.S. $500,000 in excess thereof, and (B) the
assignor shall simultaneously assign to the assignee a ratable
share of (1) all participations in Letters of Credit issued
for the account of Multi-Currency Borrowers and then
outstanding, and (2) all Letter of Credit Advances then owing
to such Lender as a result of draws on Letters of Credit
issued for the account of Multi-Currency Borrowers;
(iii) in the case of each such assignment of a
Canadian Facility Commitment (except in the case of an
assignment to a Person that, immediately prior to such
assignment, was a Canadian Facility Lender or an assignment of
all of a Canadian Facility Lender's rights and obligations
under this Agreement), (A) the amount of the Canadian Facility
Commitment of the assigning Canadian Facility Lender being
assigned pursuant to such assignment (determined as of the
date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than U.S. $5,000,000 and
shall be an integral multiple of U.S. $500,000 in excess
thereof, and (B) the assignor shall simultaneously assign to
the assignee a ratable share of (1) all participations in
Letters of Credit issued for the account of the Canadian
Subsidiary and then outstanding, and (2) all Letter of Credit
Advances then owing to such Lender as a result of
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draws on Letters of Credit issued for the account of the
Canadian Subsidiary;
(iv) each such assignment shall be to an Eligible
Assignee;
(v) the proposed Assignee (if other than an
Affiliate of the assignor) shall be approved by (x) the
Administrative Agent, and (y) if no Default then exists, AGCO;
the foregoing approvals in each case not to be unreasonably
withheld or delayed; and
(vi) the parties to each such assignment shall
execute and deliver to the Administrative Agent for its own
account, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes
subject to such assignment and a processing and recordation
fee of U.S. $3,500, payable by the assignee to the
Administrative Agent.
(b) Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such Assignment and
Acceptance:
(i) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations
hereunder or under any other Loan Document have been assigned
to it pursuant to such Assignment and Acceptance, shall have
the rights and obligations of a Lender hereunder; and
(ii) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations
under this Agreement and under each other Loan Document (and,
in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to
be a party hereto).
(c) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment
and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or
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value of this Agreement or any other instrument or document
furnished pursuant hereto;
(ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or the
performance or observance by any Borrower of any of its
obligations under this Agreement or any other instrument or
document furnished pursuant hereto;
(iii) such assignee confirms that it has received
a copy of this Agreement, together with copies of the
financial statements referred to in Section 3.1 and such other
documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such
Assignment and Acceptance;
(iv) such assignee will, independently and
without reliance upon either Agent, such assigning Lender or
any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this
Agreement;
(v) such assignee confirms that it is an
Eligible Assignee or an Affiliate of the assignor;
(vi) such assignee appoints and authorizes the
Administrative Agent (and, if such assignee will be a Canadian
Facility Lender, the Canadian Administrative Agent) to take
such action as agent on its behalf and to exercise such powers
and discretion under this Agreement as are delegated to the
Administrative Agent (and the Canadian Administrative Agent,
if applicable) by the terms hereof, together with such powers
and discretion as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the
terms of this Agreement are required to be performed by it as
a Lender.
(d) The Administrative Agent shall maintain at its
address referred to in Section 10.2 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Issuing Banks and the Lenders and their respective
Commitment under each Facility of, the principal amount of the Advances owing
under each Facility to, and the Notes held by, each Lender from time to time
(the "Register"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrowers, the Agents, the
Issuing Banks and the
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Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by any Borrower, the Canadian Administrative Agent, either
Issuing Bank or any Lender at any reasonable time and from time to time upon
reasonable prior notice. The Administrative Agent, promptly following receipt
thereof, will notify the Canadian Administrative Agent of any Assignment and
Acceptance relating to the Canadian Facility.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee, together with any Note or Notes
subject to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance has been completed and is in substantially the form of Exhibit A
hereto:
(i) record the information contained therein in
the Register; and
(ii) give prompt notice thereof to the Borrowers.
Within five Business Days after its receipt of such notice, the Borrowers, at
their own expense, shall execute and deliver to the Administrative Agent in
exchange for the surrendered Note or Notes a new Note to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by it under a
Facility pursuant to such Assignment and Acceptance and, if the assigning Lender
has retained a Commitment hereunder under such Facility, a new Note to the order
of the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit B hereto for AGCO and the
Borrowing Subsidiaries.
(f) Each Lender may sell participations in or to all or a
portion of its rights and obligations under this Agreement (including without
limitation all or a portion of its Commitments, the Advances owing to it and the
Note or Notes held by it) to a financial institution (a "Participant"); provided
that:
(i) such Lender's obligations under this
Agreement (including without limitation its Commitments) shall
remain unchanged;
(ii) such Lender shall remain solely responsible
to the other parties hereto for the performance of such
obligations;
(iii) such Lender shall remain the holder of any
such Note for all purposes of this Agreement;
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(iv) the Borrowers, the Agents and the other
Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations
under this Agreement; and
(v) no Participant under any such participation
shall have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent
that such amendment, waiver or consent would reduce or forgive
any principal due hereunder, or reduce the rate of interest or
any fees payable hereunder, in each case to the extent subject
to such participation, postpone any scheduled date for any
payment of interest or fees hereunder or extend the Maturity
Date, in each case to the extent subject to such
participation, except in accordance with the terms hereof or
of any other Loan Document.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.7, disclose to the assignee or Participant or proposed assignee or
Participant, any public information relating to any Borrower furnished to such
Lender by or on behalf of such Borrower and any information conspicuously
labeled by a Borrower as being confidential at the time such information is
furnished to such Lender if such assignee or Participant or proposed assignee or
Participant has agreed to use reasonable efforts to keep such information
confidential.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including without limitation the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
(i) It is contemplated that those Persons which are
Lenders hereunder on the Agreement Date will assign and transfer all or a
portion of their Commitments and Pro Rata Share of Borrower Outstandings
effective as of the date established by the Administrative Agent, after
consultation with such Lenders, as the date for closing the general syndication,
which date may not be less than thirty (30) days nor more than ninety (90) days
after the Agreement Date ("General Syndication Closing Date"). Notwithstanding
the foregoing provisions of this Section 10.7, assignments effective on the
General Syndication Closing Date (i) do not require the consent of AGCO; (ii)
are not subject to the minimum assignment amounts set forth in Section 10.7(a)
above; and (iii) shall be accomplished by the execution by all such Lenders as
of such date and all such transferees of a single agreement provided by the
Administrative Agent in substantially the form of an Assignment and Acceptance.
Such agreement shall provide that all
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Commitments shall, as of the effective date of such agreement, be as set forth
on Schedule A thereto, which Schedule shall, as of the General Syndication
Closing Date, amend Schedule I hereto. Except as modified in the preceding
sentence, all such assignments shall otherwise be governed by, and effective in
accordance with, the provisions of Section 10.7 hereof. No such Lender shall
assign any portion of its Commitments or Pro Rata Share of Borrower Outstandings
prior to the General Syndication Closing Date without the prior written consent
of the Administrative Agent.
Section 10.8 Marshalling; Payments Set Aside. None of the Agents,
any Lender or any Issuing Bank shall be under any obligation to marshal any
assets in favor of the Borrowers or any other party or against or in payment of
any or all of the Obligations. To the extent that a Borrower makes a payment or
payments to any Agent, the Lenders or the Issuing Banks or any of such Persons
receives payment from the proceeds of the Collateral or exercise their rights of
setoff, and such payment or payments or the proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party, then to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied, and all Liens, right and
remedies therefor, shall be revived and continued in full force and effect as if
such payment had not been made or such enforcement or setoff had not occurred.
ARTICLE 11.
INCREASED COSTS, TAXES, ETC.
Section 11.1 Increased Costs, Etc.
(a) If, due to either (i) the introduction of or any
change in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) made, or
effective, after the date hereof, there shall be any increase in the cost to any
Lender or either Issuing Bank of agreeing to make or of making, funding or
maintaining LIBO Rate Advances or of agreeing to accept Bankers' Acceptances or
of agreeing to issue or of issuing, maintaining or participating in Letters of
Credit or of agreeing to make or of making or maintaining Letter of Credit
Advances, in any case to or for the account of any Borrower, then such Borrower
shall from time to time, upon demand by such Lender or Issuing Bank (with a copy
of such demand to the Administrative Agent and, if such Lender is a Canadian
Facility Lender or such Issuing Bank is the Canadian Issuing Bank, the Canadian
Administrative Agent), pay to the Administrative Agent, if such Lender is a
Multi-Currency Lender, and otherwise to the Canadian Administrative Agent for
the account of such Lender or such Issuing Bank additional amounts sufficient to
compensate such Lender or such Issuing Bank for such
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increased cost. A certificate as to the amount of such increased cost and
stating that such Lender's or Issuing Bank's request for payment is consistent
with such Lender's or Issuing Bank's internal policies, submitted to such
Borrower by such Lender or such Issuing Bank, shall be conclusive and binding
for all purposes, absent manifest error.
(b) If any Lender or either Issuing Bank determines that
compliance with any law or regulation or any guideline or request from any
central bank or other governmental authority (whether or not having the force of
law), which in any such case is adopted, issued, made or effective after the
date hereof, affects or would affect the amount of capital required or expected
to be maintained by such Lender or such Issuing Bank or any corporation
controlling such Lender or such Issuing Bank and that the amount of such capital
is increased by or based upon the existence of such Lender's commitment to lend
or participate in Letters of Credit or, in the case of an Issuing Bank, to issue
Letters of Credit, hereunder and other commitments of such type or the issuance
or maintenance of the Letters of Credit (or similar contingent obligations), in
any case to or for the account of any Borrower, then, upon demand by such Lender
or such Issuing Bank (with a copy of such demand to the Administrative Agent
and, if such Lender is a Canadian Facility Lender or such Issuing Bank is the
Canadian Issuing Bank, the Canadian Administrative Agent), such Borrower shall
pay to the Administrative Agent, if such Lender is a Multi-Currency Lender or
such Issuing Bank is the Multi-Currency Issuing Bank, and otherwise to the
Canadian Administrative Agent for the account of such Lender or such Issuing
Bank, from time to time as specified by such Lender or such Issuing Bank,
additional amounts sufficient to compensate such Lender or such Issuing Bank in
the light of such circumstances, to the extent that such Lender or such Issuing
Bank reasonably determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend or such Issuing Bank's commitment
to issue or maintain of any Letters of Credit. A certificate as to such amounts
and stating that such Lender's or such Issuing Bank's request for payment is
consistent with such Lender's or such Issuing Bank's internal policies,
submitted to such Borrower by such Lender or such Issuing Bank, shall be
conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any LIBO Rate Advances in U.S.
dollars or any Offshore Currency, Appropriate Lenders owed more than 50% of the
then outstanding aggregate unpaid principal amount thereof notify the
Administrative Agent, in the case of Multi-Currency Advances and otherwise the
Canadian Administrative Agent that the LIBO Rate for any Interest Period for
such Advances in U.S. dollars or any Offshore Currency will not adequately
reflect the cost to such Lenders of making, funding or maintaining their LIBO
Rate Advances for such Interest Period, the Administrative Agent or Canadian
Administrative Agent, as applicable, shall forthwith so notify the affected
Borrower and the Appropriate Lenders, whereupon:
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(i) if U.S. dollars are the affected currency,
each such LIBO Rate Advance denominated in U.S. dollars will
automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance;
(ii) if an Offshore Currency is the affected
currency, the affected Borrower shall, on the last day of the
then existing Interest Period, prepay in full such LIBO Rate
Advances in the affected currency; and
(iii) the obligation of the Appropriate Lenders to
make such LIBO Rate Advances in the affected currency shall be
suspended,
until the Administrative Agent or Canadian Administrative Agent, as applicable,
shall notify the affected Borrowers that such Lenders have determined that the
circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation shall make it unlawful, or any central bank or other
governmental authority shall assert that it is unlawful, for any Lender or its
LIBOR Lending Office to perform its obligations hereunder to make LIBO Rate
Advances in U.S. dollars or any Offshore Currency or to continue to fund or
maintain such LIBO Rate Advances hereunder, then, on notice thereof and demand
therefor by such Lender to the Borrowers through the Administrative Agent, if
such Lender is a Multi-Currency Lender, and otherwise through the Canadian
Administrative Agent:
(i) the obligation of the Appropriate Lenders to
make LIBO Rate Advances in the affected currency shall be
suspended;
(ii) the affected Borrower shall, on the earlier
of the last day of the then existing Interest Period and such
date as may be required by law, prepay in full all
Multi-Currency Advances in any such Offshore Currency other
than Canadian Dollars; and
(iii) each LIBO Rate Advance denominated in U.S.
dollars or Canadian Dollars will automatically, upon such
demand, Convert into a Base Rate Advance, until the
Administrative Agent or the Canadian Administrative Agent, as
applicable, shall notify the affected Borrowers that such
Lender has determined that the circumstances causing such
suspension no longer exist.
(e) During the continuance of any Event of Default, and
upon the election of the Required Lenders and during the continuance of any
Default:
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(i) each LIBO Rate Advance denominated in U.S.
dollars or Canadian Dollars will automatically, on the last
day of the then-existing Interest Period therefor, Convert
into a Base Rate Advance and each outstanding Bankers'
Acceptance will automatically, on the last day of the
then-existing Contract Period therefor, Convert into a Base
Rate Advance;
(ii) the Borrowers will, on the last day of the
then-existing Interest Period therefor, prepay each LIBO Rate
Advance in an Offshore Currency other than Canadian Dollars;
and
(iii) the obligation of the Lenders to make LIBO
Rate Advances and accept Bankers' Acceptances shall be
suspended.
(f) Each Lender shall notify AGCO of any event occurring
after the date of this Agreement entitling such Lender to compensation under
subsection (a) or (b) of this Section within 180 days, after such Lender obtains
actual knowledge thereof; provided that:
(i) if any Lender fails to give such notice
within 180 days after it obtains actual knowledge of such an
event, such Lender shall, with respect to compensation payable
pursuant to such subsection (a) or (b) in respect of any costs
resulting from such event, only be entitled to payment under
such subsection (a) or (b) for costs incurred from and after
the date 180 days prior to the date that such Lender gives
such notice; and
(ii) each Lender will designate a different
Applicable Lending Office for the Advances of such Lender
affected by such event if such designation will avoid the need
for, or reduce the amount of, such compensation and will not,
in the sole opinion of such Lender, be disadvantageous to such
Lender or contrary to its policies.
Section 11.2 LIBO Breakage Costs. If any prepayment or payment (or
failure to prepay after the delivery of a notice of prepayment) of principal of,
or Conversion of, any LIBO Rate Advance is made by any Borrower to or for the
account of a Lender other than on the last day of the Interest Period for such
Advance, as a result of a payment or Conversion, acceleration of the maturity of
the Notes pursuant to Section 8.2 or for any other reason, or by an Eligible
Assignee to a Lender other than on the last day of the Interest Period for such
Advance upon an assignment of rights and obligations under this Agreement
pursuant to Section 10.7, such Borrower shall, upon demand by such Lender (with
a copy of such demand to the Appropriate Agent), pay to the Appropriate Agent
for the account of such Lender any amounts required to compensate such Lender
for all losses, costs or expenses that such Lender may reasonably incur as a
result of such
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failure, including without limitation foreign exchange losses, based on
customary funding and foreign exchange hedging arrangements, whether or not such
arrangements actually occur, and any and all other losses, costs or expenses
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund or maintain any Borrowing and the unavailability
of funds as a result of such Borrower failing to prepay any amount when
specified in a notice of prepayment or otherwise when due, but excluding loss of
anticipated profits.
Section 11.3 Judgment Currency.
(a) If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder or under the Notes in any
currency (the "Original Currency") into another currency (the "Other Currency")
the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the Original Currency
with the Other Currency at 11:00 A.M. on the second Business Day preceding that
on which final judgment is given.
(b) The obligation of a Borrower in respect of any sum
due in the Original Currency from it to any Lender or either Agent hereunder or
under the Notes held by such Lender shall, notwithstanding any judgment in any
Other Currency, be discharged only to the extent that on the Business Day
following receipt by such Lender or such Agent (as the case may be) of any sum
adjudged to be so due in such Other Currency such Lender or such Agent (as the
case may be) may in accordance with normal banking procedures purchase the
Original Currency with such Other Currency; if the amount of the Original
Currency so purchased is less than the sum originally due to such Lender or such
Agent (as the case may be) in the Original Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or such Agent (as the case may be) against such loss, and if the amount
of the Original Currency so purchased exceeds the sum originally due to any
Lender or such Agent (as the case may be) in the Original Currency, such Lender
or such Agent (as the case may be) agrees to remit to such Borrower such excess.
Section 11.4 Taxes.
(a) Any and all payments by the Borrowers hereunder or
under the Notes shall be made, in accordance with Section 2.8, free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto of
or by any governmental authorities, excluding, in the case of each Lender and
either Agent, franchise taxes and taxes imposed or calculated by reference to
net income that are imposed on such Lender, or either Agent by the state or
foreign jurisdiction under the laws of which such Lender or such Agent (as the
case may be) is organized or any political subdivision thereof
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(including the country within which such state or jurisdiction is located) and,
in the case of each Lender, franchise taxes and taxes imposed or calculated by
reference to net income that are imposed on such Lender by the state or province
of such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If the Borrowers
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note to any Lender or an Agent, (i) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) such Lender or such Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrowers shall make such deductions and (iii) the Borrowers shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrowers shall pay any present or
future stamp, documentary, excise, property or similar taxes, charges or levies
that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrowers shall indemnify each Lender and each
Agent for the full amount of Taxes and Other Taxes, and for the full amount of
taxes imposed by any jurisdiction on amounts payable under this Section, paid by
or imposed on such Lender or such Agent (as the case may be) and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days from
the date such Lender or such Agent (as the case may be) makes written demand
therefor, and delivers to AGCO with a certificate describing in reasonable
detail the manner in which the indemnified amount was calculated; provided that
a Lender or an Agent shall not be required to describe in such certificate
information that such Lender or Agent deems to be confidential or the disclosure
of which is inconsistent with such Lender's or Agent's internal policies. Any
such calculation shall be conclusive, absent manifest error.
(d) Within 30 days after the date of any payment of
Taxes, the Multi-Currency Borrowers shall furnish to the Administrative Agent,
and the Canadian Subsidiary shall furnish to the Canadian Administrative Agent,
at their respective addresses referred to in Section 10.2, the original receipt
of payment thereof or a certified copy of such receipt. In the case of any
payment hereunder or under the Notes by the Borrowers through an account or
branch outside the United States, in the case of any Multi-Currency Borrower, or
through an account or branch outside Canada, in the case of the Canadian
Subsidiary, or on behalf of the Borrowers by a payor that is not a United States
person, or a person Resident in Canada, as the case may be, if the Borrowers
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determine that no Taxes are payable in respect thereof, the Borrowers shall
furnish, or shall cause such payor to furnish, to the Appropriate Agent, at such
address, an opinion of counsel reasonably satisfactory to such Agent stating
that such payment is exempt from Taxes. For purposes of this subsection (d) and
subsection (e), the terms "United States" and "United States person" shall have
the meanings specified in Section 7701 of the Internal Revenue Code, and the
terms "Canada" and "Resident in Canada" shall have the meanings ascribed thereto
for purposes of the Income Tax Act (Canada).
(e) Each Lender organized under the laws of a
jurisdiction outside the United States, in the case of a Multi-Currency Lender,
and each Lender organized under the laws of a jurisdiction outside the country
of the applicable Borrower, in each other case, shall, on or prior to the date
of its execution and delivery of this Agreement in the case of each initial
Lender hereunder, and on the date of the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by a Borrower or the Appropriate Agent (but
only so long thereafter as such Lender remains lawfully able to do so), provide
the Appropriate Agent and such Borrower with (i) in the case of a Multi-Currency
Lender, Internal Revenue Service form W-8ECI or W-8BEN, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Lender is entitled to benefits under an income tax treaty to which the United
States is a party that reduces the rate of interest-withholding tax on payments
under this Agreement or the Notes or certifying that the income receivable
pursuant to this Agreement or the Notes is effectively connected with the
conduct of a trade or business in the United States, and (ii) in the case of any
Lender organized under the laws of a jurisdiction outside the country within
which an applicable Borrower is organized, such valid and fully completed forms,
as are required by the applicable tax authority of such jurisdiction, indicating
that such Lender is entitled to benefits under an income tax treaty to which the
country within which such Borrower is resident is a party that reduces the rate
of interest-withholding tax on payments under this Agreement or the Notes. If
the appropriate forms provided by a Lender at the time such Lender first becomes
a party to this Agreement indicates an interest-withholding tax rate in excess
of zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate form certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provide that,
if at the date of the Assignment and Acceptance pursuant to which a Lender
assignee becomes a party to this Agreement, the Lender assignor was entitled to
payments under subsection (a) in respect of United States (or the jurisdiction
wherein the applicable Borrower is organized) withholding tax with respect to
interest paid at such date by a Borrower, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includible in Taxes) (or the jurisdiction
wherein the applicable Borrower is organized) withholding tax, if any,
applicable with respect to the Lender assignee on such date. If
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any form or document referred to in this subsection (e) requires the disclosure
of information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form W-8ECI
or W-8BEN or other form that the applicable Borrower has indicated in writing to
the Lenders on the date hereof as being a required form to avoid or reduce
withholding tax on payments under this Agreement or on the Notes, that a Lender
reasonably considers to be confidential, such Lender shall give notice thereof
to the Borrowers and shall not be obligated to include in such form or document
such confidential information.
(f) For any period with respect to which a Lender has
failed to provide the Borrowers with the appropriate form described in
subsection (e) (other than if such failure is due to a change in law occurring
after the date on which a form originally was required to be provided or if such
form otherwise is not required under subsection (e)), such Lender shall not be
entitled to an additional payment or indemnification under subsection (a) or (c)
with respect to Taxes imposed by the United States; provided that should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrowers shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
(g) If a Borrower makes a payment under subsection (a) or
(c) of this Section 11.4 and the Appropriate Agent or Lender determines that a
credit against, relief or remission for, or repayment of any tax, is
attributable to that payment or to the Taxes which gave rise to that payment (a
"Tax Credit"), and the Appropriate Agent or Lender has obtained, utilized and
retained that Tax Credit, the Appropriate Agent or Lender shall pay the amount
of the Tax Credit to the Borrowers up to such amount as the Appropriate Agent or
Lender determines will leave it (after that payment) in no better and no worse
after-tax position as it would have been in had the payment under subsection (a)
or (c) not been made by the Borrowers.
(h) Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in this Section 11.4 shall survive the payment in full of
principal and interest hereunder and under the Notes.
Section 11.5 Replacement of a Lender. Subject to the second and
third paragraphs of this Section 11.5, if:
(a) a Multi-Currency Lender requests compensation under
Section 11.1 or 11.4 and other Multi-Currency Lenders holding
Commitments equal to at least one third of the Multi-Currency Facility
shall not have made a similar request;
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(b) a Canadian Facility Lender requests compensation
under Section 11.1 or 11.4 and other Canadian Facility Lenders holding
Commitments equal to at least one third of the Canadian Facility shall
not have made a similar request;
(c) the obligation of a Lender to make LIBO Rate Advances
or to Convert Base Rate Advances into LIBO Rate Advances shall be
suspended pursuant to Section 11.2 (c) or (d) in circumstances in which
such obligations of other Lenders holding Commitments equal to at least
one third of the Multi-Currency Facility shall not have been suspended;
or
(d) a Lender becomes insolvent, goes into receivership or
fails to make any Advances required to be made by it hereunder,
then, so long as such condition occurs and is continuing with respect to any
Lender (a "Replaced Lender"), AGCO may designate a Person (a "Replacement
Lender") that is an Eligible Assignee (and acceptable to the Administrative
Agent) to assume such Replaced Lender's Commitments hereunder and to purchase
any Advances by such Replaced Lender and such Replaced Lender's rights
hereunder, without recourse to or representation or warranty by, or expense to,
such Replaced Lender, for a purchase price equal to the outstanding principal
amount of the Advances by such Replaced Lender, plus any accrued but unpaid
interest on such Advances and accrued but unpaid fees and other amounts owing to
such Replaced Lender.
Subject to the execution and delivery to the Appropriate Agent
and the Replaced Lender by the Replacement Lender of an Assignment and
Acceptance (and the approval thereof by the applicable Persons specified in
Section 10.7(a)(v)) and the payment to the Administrative Agent by AGCO on
behalf of such Replaced Lender of the assignment fee specified in Section
10.7(a)(vi), the Replacement Lender shall succeed to the rights and obligations
of such Replaced Lender hereunder and such Replaced Lender shall no longer be a
party hereto or have any rights hereunder; provided that the obligations of the
Borrowers to such Replaced Lender under Sections 11.1, 11.2, 11.3 and 11.4 with
respect to events occurring or obligations arising before or as a result of such
replacement shall survive such replacement. Promptly following its replacement
by the Replacement Lender, the Replaced Lender shall return to the Borrowers the
Notes delivered by the Borrowers to such Replaced Lender and the Borrowers will
deliver new Notes to the Replacement Lender.
AGCO may not exercise its rights under this Section with
respect to any Lender (i) unless it exercises such rights with respect to all
Lenders to which circumstances giving rise to the replacement of such Lender
apply, or (ii) if a Default has occurred and is continuing.
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ARTICLE 12.
JURISDICTION
Section 12.1 Consent to Jurisdiction. Each Borrower irrevocably:
(a) submits to the jurisdiction of any New York State or
Federal court sitting in New York City and any appellate court from any
thereof in any action or proceeding arising out of or relating to any
Loan Document;
(b) agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York State or in
such Federal court;
(c) waives, to the fullest extent that it may effectively
do so, the defense of an inconvenient forum to the maintenance of such
action or proceeding (including without limitation Articles 14 and 15
of the French Civil Code);
(d) consents to the service of any and all process in any
such action or proceeding by the mailing of copies of such process to
such Borrower at its address specified in Section 10.2; and
(e) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law.
Nothing in this Section shall affect the right of either Agent or any Lender to
serve legal process in any other manner permitted by law or affect the right of
either Agent or any Lender to bring any action or proceeding against any
Borrower or its property in the courts of other jurisdictions.
Each Borrower irrevocably appoints and designates AGCO as its agent for
service of process and, without limitation of any other method of service,
consents to service of process by mail at the address of AGCO for delivery of
notices specified in Section 10.2.
Section 12.2 Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Section 12.3 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart
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of a signature page to this Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Agreement.
Section 12.4 No Liability of the Issuing Banks. Each Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
Issuing Bank nor any of its officers or directors shall be liable or responsible
for:
(a) the use that may be made of any Letter of Credit or
any acts or omissions of any beneficiary or transferee in connection therewith;
(b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged;
(c) payment by such Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or
(d) any other circumstances whatsoever in making or
failing to make payment under any Letter of Credit;
(e) except that no Borrower shall have a claim against
such Issuing Bank, and such Issuing Bank shall be liable to a Borrower, to the
extent of any direct, but not consequential, damages suffered by such Borrower
that such Borrower proves were caused by:
(i) such Issuing Bank's willful misconduct or
gross negligence in determining whether documents presented
under any Letter of Credit comply with the terms of the Letter
of Credit; or
(ii) such Issuing Bank's willful failure to make
lawful payment under a Letter of Credit after the presentation
to it of a draft and certificates strictly complying with the
terms and conditions of the Letter of Credit.
In furtherance and not in limitation of the foregoing, either Issuing Bank may
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
Section 12.5 Certain Cash Deposits.
(a) If, as of the 15th day of the first complete calendar
month after the end of the each fiscal quarter of AGCO (or, if such 15th day is
not a Business Day, the
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next-following Business Day), the Multi-Currency Borrower Outstandings shall
exceed 105% of the Multi-Currency Facility (the "Multi-Currency Borrower Excess
Outstandings") and to the extent that a Multi-Currency Borrower is not required
on such date to prepay Multi-Currency Advances in an aggregate principal amount
equal to the Multi-Currency Borrower Excess Outstandings pursuant to Section
2.4(b)(iii), AGCO will, promptly after a request therefor by the Administrative
Agent, deposit in same-day funds at the Administrative Agent's office designated
in such request, for deposit in such interest-bearing account as the
Administrative Agent shall specify (the "Multi-Currency Borrower Cash Collateral
Account"), an amount equal to the Multi-Currency Borrower Excess Outstandings
(net of any prepayment pursuant to Section 2.4(b)(iii)). The Multi-Currency
Borrower Cash Collateral Account shall be in the name and under the sole
dominion and control of the Administrative Agent. The Administrative Agent shall
have no obligation to invest any amounts on deposit in the Multi-Currency
Borrower Cash Collateral Account. AGCO grants to the Administrative Agent, for
its benefit and the benefit of the Lenders, a lien on and security interest in
the Multi-Currency Borrower Cash Collateral Account and all amounts from time to
time on deposit therein as collateral security for the performance of AGCO's
obligations under this Agreement and the other Loan Documents. The
Administrative Agent shall have all rights and remedies available to it under
applicable law with respect to the Multi-Currency Borrower Cash Collateral
Account and all amounts on deposit therein. Promptly after any date on which
there shall occur a reduction in the amount of the Multi-Currency Borrower
Excess Outstandings, the Administrative Agent will return to AGCO, free and
clear of any Lien under this subsection (a), an amount equal to the excess of
amounts then on deposit in the Multi-Currency Borrower Cash Collateral Account
(including accrued interest) over the amount of the Multi-Currency Borrower
Excess Outstandings as of the date of and after giving effect to such reduction.
(b) If, as of the 15th day of the first complete calendar
month after the end of the each fiscal quarter of AGCO (or, if such 15th day is
not a Business Day, the next-following Business Day), the Canadian Facility
Outstandings shall exceed 105% of the Canadian Facility (the "Canadian
Subsidiary Excess Outstandings") and to the extent that the Canadian Subsidiary
is not required on such date to prepay Canadian Facility Advances in an
aggregate principal amount equal to the Canadian Subsidiary Excess Outstandings
pursuant to Section 2.4(b)(iv), the Canadian Subsidiary will, promptly after a
request therefor by the Canadian Administrative Agent, deposit in same-day funds
at the Canadian Administrative Agent's office designated in such request, for
deposit in such interest-bearing account as the Canadian Administrative Agent
shall specify (the "Canadian Subsidiary Cash Collateral Account"), an amount
equal to the Canadian Subsidiary Excess Outstandings (net of any prepayment
pursuant to Section 2.4(b)(iv)). The Canadian Subsidiary Cash Collateral Account
shall be in the name and under the sole dominion and control of the Canadian
Administrative Agent. The Canadian Administrative Agent shall have no obligation
to invest any amounts on deposit in the
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Canadian Subsidiary Cash Collateral Account. The Canadian Subsidiary grants to
the Canadian Administrative Agent, for its benefit and the benefit of the
Lenders, a lien on and security interest in the Canadian Subsidiary Cash
Collateral Account and all amounts from time to time on deposit therein as
collateral security for the performance of the Canadian Subsidiary's obligations
under this Agreement and the other Loan Documents. The Canadian Administrative
Agent shall have all rights and remedies available to it under applicable law
with respect to the Canadian Subsidiary Cash Collateral Account and all amounts
on deposit therein. Promptly after any date on which there shall occur a
reduction in the amount of the Canadian Subsidiary Excess Outstandings, the
Canadian Administrative Agent will return to the Canadian Subsidiary, free and
clear of any Lien under this subsection (b), an amount equal to the excess of
amounts then on deposit in the Canadian Subsidiary Cash Collateral Account
(including accrued interest) over the amount of the Canadian Subsidiary Excess
Outstandings as of the date of and after giving effect to such reduction.
Section 12.6 Waiver of Jury Trial. EACH BORROWER, EACH AGENT, EACH
ISSUING BANK AND EACH LENDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE
ADVANCES OR THE ACTIONS OF EITHER AGENT, ANY ISSUING BANK OR ANY LENDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first-above written.
BORROWERS: AGCO CORPORATION
By:
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Title:
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AG-CHEM EQUIPMENT CO., INC. (f/k/a Agri Acquisition
Corp.)
By:
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Title:
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AGCO LIMITED
By:
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Title:
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AGCO S.A.
By:
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Title:
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AGCO INTERNATIONAL LIMITED
By:
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Title:
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145
AGCO HOLDING B.V.
By:
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Title:
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AGCO VERTRIEBS GMBH
By:
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Title:
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AGCO GMBH & CO.
By:
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Title:
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By:
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Title:
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AGCO CANADA, LTD.
By:
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Title:
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AGENTS AND LENDERS: COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND,"
NEW YORK BRANCH, as Administrative Agent, a Multi-
Currency Lender and Multi-Currency Issuing Bank
By:
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Title:
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By:
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Title:
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND," CANADIAN BRANCH, as Canadian
Administrative Agent, a Canadian Facility Lender and
Canadian Issuing Bank
By:
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Title:
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By:
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Title:
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CREDIT SUISSE FIRST BOSTON
By:
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Title:
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By:
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Title:
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147
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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4
