EXHIBIT 10.26
WAIVER DATED MAY 15, 2000,
BY C.M. MUTUAL LIFE INSURANCE COMPANY
OF CERTAIN DEFAULTS UNDER EXACT TITLE OF AGREEMENT
DATED APRIL 6, 1994
Ag-Chem Equipment Co., Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Chief Financial Officer
Ladies and Gentlemen:
Reference is made to that certain Note Agreement, dated as of April 6,
1994 (as amended from time to time, the "NOTE AGREEMENT"), between Ag-Chem
Equipment Co., Inc., a Minnesota corporation (the "COMPANY"), and C.M. Life
Insurance Company ("MASS MUTUAL"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Note Agreement.
Pursuant to the request of the Company and in accordance with the
provisions of Section 9.1 of the Note Agreement, the parties hereto agree as
follows:
SECTION 1. Amendments to Note Agreement. From and after the date this
letter becomes effective in accordance with its terms, the Note Agreement is
amended as follows:
1.1. Section 5.1 of the Note Agreement is amended to delete the term
"Indebtedness" presently appearing therein and to add the following defined
terms thereto in appropriate alphabetical order:
"BANKS" means the financial institutions from time to time
constituting the "Lenders" under the Credit Agreement or the Short Term
Credit Agreement.
"CAPITAL EXPENDITURES" means, for any period, the additions to
property, plant and equipment and other capital expenditures of the
Company and its Subsidiaries for such period, as the same are or should
be set forth on the consolidated financial statements of the Company
and its Subsidiaries in accordance with GAAP.
"CASH EQUIVALENTS" means as to any Person, (a) securities
issued or directly and fully guaranteed or insured by the United States
or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having
maturities of not more than 12 months from the date of acquisition, (b)
time deposits and certificates of deposit of any commercial bank with a
long-term unsecured debt rating of at least A or its equivalent from
Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., or at least A-2 or its
equivalent from Xxxxx'x Investors Service, Inc. with maturities of not
more than six months from the date of acquisition by such person, (c)
repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (a) above
entered into with any bank meeting the qualifications specified in
clause (b) above, (d) commercial paper issued by any person
incorporated in the United States, which commercial paper is rated at
least A-1 or the equivalent thereof by Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc., or at least
P-1 or the equivalent thereof by Xxxxx'x Investors Service, Inc. or at
least F-1 or the equivalent thereof by Fitch Investor Services, Inc.
and in each case maturing not more than 270 days after the date of
issuance by such person, and (e) investments in money market funds
substantially all the assets of which are comprised of securities of
the types described in clauses (a) through (d) above.
"COLLATERAL AGENT" means Bank One, N.A., in its capacity as
contractual representatives for the Banks, the holders of the Notes and
the holders of the Company's 7.25% Series A Senior Notes due April 6,
2005 under the Collateral Sharing Agreement, and its successors and
assigns in such capacity.
"CONTINGENT LIABILITIES" of any Person means, as of any date,
all obligations of such Person or of others for which such Person is
contingently liable, as obligor, guarantor, surety or in any other
capacity, or in respect of which obligations such Person assures a
creditor against loss or agrees to take any action to prevent any such
loss (other than endorsements of negotiable instruments for collection
in the ordinary course of business), including all reimbursement
obligations and all obligations of such Person to advance funds to, or
to purchase assets, property or services from, any other Person in
order to maintain the financial condition of such other Person.
"COLLATERAL SHARING AGREEMENT" mean that certain Collateral
Sharing Agreement, dated as of May 15, 2000, by and among the
Collateral Agent, Bank One, as contractual representative for the Banks
under the Credit Agreement and the Short Term Credit Agreement, the
Banks, the holders of the Notes and the holders of the Company's 7.25%
Senior Notes, Series A, due April 6, 2005, as amended from time to time
in accordance with the terms thereof.
"CREDIT AGREEMENT" shall mean the Third Amended and Restated
Long Term Revolving Credit Agreement, dated as of June 4, 1999, by and
among the Company, the Multicurrency Subsidiary Borrowers, certain of
the Banks and Bank One N.A., as agent, as amended by Waiver and
Amendment No. 1 thereto dated as of December 22, 1999 and Waiver and
Amendment No. 2 thereto dated May 15, 2000.
"EBITDA" means, for any period, Net Income plus the sum of all
amounts recorded and deducted in computing Net Income for such period
in respect of Interest Expense, taxes, depreciation charges and
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expenses and amortization charges and expenses (whether paid or
accrued, or a cash or non-cash expense), as determined in accordance
with GAAP.
"GOVERNMENTAL AUTHORITY" means any federal, state, local,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, and any and all
Governmental Regulations (including decrees, rules and orders) of any
governmental bodies and offices having power to regulate or supervise
the business activities of any of the company, a Subsidiary or any
holder of a Note.
"GOVERNMENTAL REGULATIONS" means any and all laws, statues,
ordinances, rules, regulations, treaties, judgments, writs,
injunctions, decrees, orders, awards and standards, or any similar
requirement, of the government of the United States or of any foreign
government or any state, province, municipality or other political
subdivision thereof or therein or any court, agency, instrumentality,
regulatory authority or commission of any of the foregoing.
"GUARANTORS" means Ag-Chem Equipment Co., International Corp.,
Lor*Al Products, Inc., Ag-Chem Equipment Canada, Ltd., Ag-Chem Europe,
B.V., formerly known as Kurstjens Terra-Gator B.V., Ag-Chem Sales Co.,
Inc., a Minnesota corporation, Ag-Chem Manufacturing, Inc., formerly
known as Soil Teq, Inc., a Minnesota corporation, and any other person
or entity that may guarantee the Notes from time to time.
"INDEBTEDNESS" of any Person means (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person as lessee
under any Capitalized Lease, (c) all obligations which are secured by
any Lien existing on any asset or property of such Person whether or
not the obligation secured thereby shall have been assumed by such
Person, (d) the unpaid purchase price for goods, property or services
acquired by such Person, except for accounts payable for goods,
property or services arising in the ordinary course of business that
are not more than sixty (60) days past due, (e) all obligations of such
Person to purchase goods, property or services where payment therefor
is required regardless of whether delivery of such goods or property or
the performance of such services is ever made or tendered (generally
referred to as "take or pay contracts"), (f) all liabilities of such
Person in respect of unfunded benefit liabilities (determined in
accordance with Section 4001(a)(18) of ERISA) under any Plan of such
person or of any ERISA Affiliate and any unfunded current liabilities
with respect to any employee benefit pension plans maintained by such
Person outside the United States, (g) all obligations of such Person in
respect of any interest rate or currency swap, rate cap or other
similar transaction (valued in any amount equal to the highest
termination payment, if any, that would be payable by such Person upon
termination for any reason on the date of determination), and (h) all
Contingent Liabilities of such Person.
"INTEREST COVERAGE RATIO" means the ratio of (a) EBITDA of the
Company and its consolidated Subsidiaries to (b) Interest Expense for
the Company and its Subsidiaries,
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on a consolidated basis, to be calculated as of the end of each fiscal
quarter of the Company for the four consecutive fiscal quarters then
ending.
"INTEREST EXPENSE" means, for a Person for the applicable
fiscal period, such Person's interest expense (including capitalized
interest accrued during such period) for such period computed in
accordance with GAAP including, without limitation, the portion of any
obligation under a Capitalized Lease allocable to interest expense in
accordance with GAAP.
"LOAN PARTIES" means the Company and the Guarantors.
"MULTICURRENCY SUBSIDIARY BORROWERS" means each of Ag-Chem
Europe, B.V., a Netherlands private limited liability company, and
Ag-Chem Equipment Canada, Ltd., a Minnesota corporation.
"NET INCOME" means, for any period, the net income of the
Company and its consolidated Subsidiaries after taxes, determined in
accordance with GAAP.
"NEW HOLLAND VENTURE" means the joint venture between the
Company and New Holland North America, Inc.
"PERMITTED LIENS" means Liens permitted by Section 7.4.
"SHORT TERM CREDIT AGREEMENT" means the Short Term Revolving
Credit Agreement, dated as of June 4, 1999, by and among the Company,
certain of the Banks and Bank One, N.A., as agent for such Banks, as
amended by Waiver and Amendment No. 1 thereto dated as of December 22,
1999 and Waiver and Amendment No. 2 thereto dated as of May 15, 2000.
"TANGIBLE NET WORTH" means, as of any date, (a) the amount of
any capital stock, paid in capital and similar equity accounts of the
Company and its consolidated Subsidiaries plus (or minus in the case of
a deficit) the capital surplus and retained earnings of the Company and
its consolidated Subsidiaries, minus (b) the amount of any treasury
stock reflected on such balance sheet, minus (c) any amount
attributable to the write-up of assets (other than marketable
securities) on or after September 30, 1998, minus (d) the net book
value of all items of the following character which are included in the
assets of the Company and its consolidated Subsidiaries as of such
date: (i) goodwill, including the excess of cost over book value of any
asset; (ii) organization or experimental expenses; (iii) unamortized
debt discount and expense; (iv) patents, trademarks, trade names and
copyrights; (v) franchises, licenses and permits; (vi) amounts due from
Affiliates and (vii) all other assets which are deemed intangible
assets under GAAP.
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"TOTAL LIABILITIES" means, as of the date of determination,
the total liabilities of the Company and its consolidated Subsidiaries
that would properly be classified as a liability under GAAP.
"WORKING CAPITAL COVERAGE RATIO" means the ratio of (a) the
sum of the face amount of the accounts receivable of the Company and
its consolidated Subsidiaries minus the amount of accounts receivable
classified as doubtful determined in accordance with GAAP plus the
value of the inventory of the Company and its consolidated Subsidiaries
valued at the lower of cost or market on a last-in first-out basis
determined in accordance with GAAP to (b) the sum of the principal
amount of the obligations of the Company to the Banks under the Credit
Agreement and the Short Term Credit Agreement plus the outstanding
principal indebtedness of the Company under that certain Note Agreement
dated as of October 10, 1995 with respect to the Company's 7.25% Senior
Notes, Series A, due April 6, 2005 plus the outstanding principal
amount of the Notes.
1.2. Section 7.1 of the Note Agreement is amended in its entirety to
read as follows:
"7.1 Financial Ratios.
(a) Tangible Net Worth. The Company will not permit or suffer
Tangible Net Worth to be, at any time after June 4, 1999, less than the
sum of (i) $57,500,000, plus (ii) the net amount of any proceeds from
the sale of the Company's equity interests received by the Company
after June 4, 1999, plus (iii) fifty percent (50%) of annual Net Income
accumulated from September 30, 1998, beginning with the calculation for
the year ending September 30, 1999; provided, however, that no
deduction will be made for any fiscal year where net income is less
than zero and any loss will not reduce any amount added for any other
fiscal year.
(b) Total Liabilities to Tangible Net Worth. The Company will
not permit or suffer the ratio of Total Liabilities to Tangible Net
Worth to exceed: (1) 2.75 to 1.0 at the end of the fiscal quarter
ending March 31, 2000 or (ii) 2.50 to 1.0 at the end of each fiscal
quarter ending on or after June 30, 2000 and on or prior to Xxxxx 00,
0000 xx (xxx) 2.0 to 1.0 at the end of each fiscal quarter ending on or
after June 30, 2001.
(c) Interest Coverage Ratio. The Company will not permit or
suffer the Interest Coverage Ratio to be less than (i) 2.0 to 1.0 for
the fiscal period ending March 31, 2000 or (ii) 1.50 to 1.0 for the
fiscal periods ending June 30, 2000, September 30, 2000 and December
31, 2000 or (iii) 2.0 to 1.0 for the fiscal period ending March 31,
2001 or (iv) 2.25 to 1.0 for the fiscal period ending June 30, 2001 or
(v) 2.5 to 1.0 for the fiscal periods ending September 30, 2001,
December 31, 2001, March 31, 2002 and June 30, 2002 or (vi) 3.25 to 1.0
for the fiscal periods ending September 30, 2002, December 31, 2002,
March 31, 2003
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and June 30, 2003 or (vii) 3.5 to 1.0 for each fiscal period ending as
of the end of each fiscal quarter ending on or after September 30,
2003.
(d) Working Capital Coverage Ratio. The Company will not
permit or suffer the Working Capital Coverage Ratio to be less than
1.30 to 1.0 as of the end of any fiscal quarter."
1.3. Section 7.2 of the Note Agreement is amended in its entirety to
read as follows:
"7.2 Indebtedness. The Company will not, and will not permit
any Subsidiary to, create, incur, assume or in any manner become liable
in respect of, or suffer to exist, any Indebtedness other than:
(i) Indebtedness evidenced by the Notes (and
guaranties thereof);
(ii) Indebtedness to Persons (including guaranties of
Indebtedness) other than Indebtedness evidenced by the Notes,
as described on Schedule 7.2, having the same material terms
as those existing on the date of this Agreement, and provided,
that (i) with respect to the Indebtedness outstanding under
the Company's 7.25% Senior Notes, Series A, due April 6, 2005,
any extension, renewal or replacement thereof (including by a
different person), not to exceed the original principal amount
of such Indebtedness and at the then prevailing market terms,
(ii) with respect to Indebtedness under the Credit Agreement
or the Short-Term Credit Agreement, any extension, renewal or
replacement thereof (including by a different person), not to
exceed the maximum amount available under the terms of the
Credit Agreement or the Short-Term Credit Agreement, as the
case may be, as in effect on May 15, 2000, and at the then
prevailing market rate, and (iii) with respect to any other
Indebtedness described on Schedule 7.2, any extension, renewal
or replacement thereof (but without increase in the principal
amount outstanding at the time of such extension, renewal or
replacement);
(iii) Indebtedness secured by Permitted Liens;
provided, however, that the proceeds of Indebtedness incurred
in connection with the grant of the Permitted Liens described
in Section 7.4(viii) shall be applied toward the satisfaction
of amounts owing under the Short Term Credit Agreement or the
Credit Agreement, or to make prepayments of the Notes under
Section 2.2(a);
(iv) Indebtedness of up to $1,000,000 from state or
local government authorities or sub-divisions thereof or local
development authorities, provided that so long as any Default
or Event of Default shall exist and be continuing, such
Indebtedness may not be increased above the amount existing at
the time of such Default or Event of Default;
(v) Subordinated Indebtedness which is acceptable to
the holders of at least a majority in aggregate principal
amount of outstanding Notes in their sole
6
discretion, including the terms of the subordination agreement
covering the Subordinated Indebtedness;
(vi) guaranties of Indebtedness which in the
aggregate do not exceed $1,000,000 at any time or other
Indebtedness not to exceed $500,000 at any time (to the extent
such guaranties or Indebtedness is not permitted under clause
(ii) above); provided that so long as any Default or Event of
Default shall exist and be continuing, such guaranties may not
be increased from the guaranties existing at the time of such
Default or Event of Default;
(vii) Indebtedness of one Loan Party or a subsidiary
thereof to another Loan Party or a subsidiary thereof; and
(viii) any interest rate or currency swap, rate, cap,
or similar transaction entered into with a Bank or any of its
Affiliates entered into in the ordinary course of business for
the purpose of protecting the Company from changes in interest
or currency rates or commodity prices and not for speculative
purposes."
1.4 Section 7.3 of the Note Agreement is deleted.
1.5 Section 7.4 of the Note Agreement is amended in its entirety to
read as follows:
"7.4. Liens. The Company will not, and will not permit any
Subsidiary to, create, incur or suffer to exist any Lien on any of the
assets, rights, revenues or property, real, personal or mixed, tangible
or intangible, whether now owned or hereafter acquired, of the Company
or any Subsidiary, other than:
(i) Liens for taxes not delinquent or for taxes being
contested in good faith by appropriate proceedings and as to
which adequate financial reserves have been established on its
books and records;
(ii) Liens (other than any Lien imposed by ERISA)
created and maintained in the ordinary course of business
which are not material in the aggregate, and which would not
constitute or result in a Material Adverse Effect, and which
constitute (A) pledges or deposits under worker's compensation
laws, unemployment insurance laws or similar legislation, (B)
good faith deposits in connection with bids, tenders,
contracts or leases to which a the Company or any Subsidiary
is a party for a purpose other than borrowing money or
obtaining credit, including rent security deposits, (C) Liens
imposed by law, such as those of carriers, warehousemen and
mechanics, if payment of the obligation secured thereby is not
yet due, (D) Liens securing taxes, assessments or other
governmental charges or levies not yet subject to penalties
for nonpayment, and (E) pledges or deposits to secure public
or statutory obligations of the Company or any Subsidiary, or
surety, customs or appeal bonds to which the Company
7
or any Subsidiary is a party;
(iii) Liens affecting real property which constitute
minor survey exceptions or defects or irregularities in title,
minor encumbrances, easements or reservations of, or rights of
others for, rights of way, sewers, electric lines, telegraph
and telephone lines and other similar purposes, or zoning or
other restrictions as to the use of such real property;
provided, however, that all of the foregoing, in the
aggregate, do not at any time materially detract from the
value of said properties or materially impair their use in the
operation of the businesses of the Company or any Subsidiary;
(iv) each Lien described in Schedule 7.4 which may be
suffered to exist upon the same terms as those existing on the
date hereof, and any extension, renewal or replacement thereof
(but without increase in the principal amount secured thereby
outstanding at the time of such extension, replacement, or
renewal and provided such Liens will not extend to cover any
additional property);
(v) Liens resulting from any action, suit,
proceeding, appeal or contest at law or equity brought in good
faith by or against the Company or a Multicurrency Subsidiary
Borrower before a Governmental Authority within the European
Union;
(vi) purchase money Liens upon or in property of a
Loan Party, provided, however, that no such Lien will extend
to or cover any other property of any Loan Party and the
amount of any such Lien will not exceed the purchase price of
the related collateral;
(vii) Liens pursuant to any Capitalized Lease under
which a Loan Party is the lessee;
(viii) Liens on the Company's real property located
in Minnetonka, Minnesota, including, without limitation,
fixtures located on such property, provided that no such lien
shall be incurred without the consent of the holders of the
Notes after the occurrence of an Event of Default; and
(ix) any Lien granted by the Company or any
Subsidiary in favor of the Collateral Agent securing the
"Obligations" as defined in the Collateral Sharing Agreement,
but only so long as the Collateral Sharing Agreement is in
full force and effect, the holders of all such "Obligations"
are parties thereto and any Indebtedness secured by any such
Lien is permitted under Section 7.2(ii)."
1.6 Section 7.5 of the Note Agreement is amended in its entirety to
read as follows:
8
"7.5. Merger; Purchase of Assets; Acquisitions; Etc. Other
than the New Holland Venture, the Company will not, and will not permit
any Subsidiary to, purchase or otherwise acquire, whether in one or a
series of transactions, all or a substantial portion of the business,
assets, rights, revenues or property, real, personal or mixed, tangible
or intangible, of any Person, or all or a substantial portion of the
capital stock of or other ownership interest in any other Person or
merge or consolidate or amalgamate with any other Person or take any
other action having a similar effect, not enter into any joint venture
or similar arrangement with any other Person, if any combination of the
aforementioned, in the aggregate, exceeds $5,000,000 in any fiscal
year; provided, that this Section 7.5 will not prohibit any merger or
consolidation solely between or among (i) the Company and any
Subsidiary, so long as the Company is the surviving person of such
merger or consolidation or (ii) Ag-Chem Europe, B.V. and any of its
Subsidiaries, so long as Ag-Chem Europe, B.V. is the surviving person
of such merger or consolidation."
1.7 Section 7.6 of the Note Agreement is amended in its entirety to
read as follows:
"7.6 Disposition of Assets; Etc. The Company will not, and
will not permit any Subsidiary to, sell, lease, license, transfer,
assign or otherwise dispose of any of its business, assets, rights,
revenues or property, real, personal or mixed, tangible or intangible,
whether in one or a series of transactions, other than (i) inventory
sold in the ordinary course of business upon customary credit terms,
which for purposes of this Section 7.6, shall include any sales of
inventory by the Company to the New Holland Venture, and sales of
obsolete or damaged material or equipment, (ii) the sale of all or part
of Ag-Chem Equipment Co. International Co., International Corp, a
Virgin Islands corporation, (iii) transfers from one Loan Party to
another Loan Party, (iv) intellectual property owned and licensed by
the Company in the ordinary course of business, provided that for
purposes of this clause (iv) "ordinary course" shall be defined as the
ordinary course of business for the Company in the particular
geographic region in which such intellectual property is being
licensed, (v) transfers of assets from any Loan Party to any subsidiary
thereof, irrespective of whether such subsidiary is a Loan Party, so
long as the aggregate dollar value of such transfers in any fiscal year
does not exceed $5,000,000, (vi) other sales of assets (excluding
assets sold in connection with the New Holland Venture) not to exceed
$3,000,000 in the aggregate for all Loan Parties during any fiscal year
of the Company; provided that so long as any Default or Event of
Default shall exist and be continuing, no sales or transfers under
clauses (ii), (iii) or (v) above may be made beyond those contracted
for at the time of such Default or Event of Default; or (vii) accounts
receivable and/or instruments owed to or in favor of a Loan Party that
are sold, transferred, and/or assigned in an arms-length transaction
for a fair market price by such Loan Party; provided, that no such
sale, transfer or assignment shall occur without the consent of the
holders of the Notes after the occurrence of an Event of Default;
provided, further, that 100% of the proceeds resulting from such sale,
transfer or assignment shall be applied toward the satisfaction of the
Indebtedness outstanding under the Credit Agreement or the Short Term
Credit Agreement or to make a prepayment of the Notes pursuant to
Section 2.2(a)."
9
1.8 New Sections 7.10, 7.11, 7.12 and 7.13 are added to the Note
Agreement, such Sections to read as follows:
"7.10 Investments. The Company will not, and will not permit
any Subsidiary to, make, commit to make or permit to exist any loans,
investments, advances or extensions of credit to any Person, firm or
corporation, other than: (i) Cash Equivalents, (ii) loans not to exceed
$500,000 at any time outstanding and travel advances extended to
officers and employees of a Loan Party in the ordinary course of
business, (iii) investments existing on June 4, 1999 in Subsidiaries
that are not Loan Parties, (iv) investments by the Company or any
Multicurrency Subsidiary Borrower in other Loan Parties, (v) loans from
one Loan Party to another Loan Party, (vi) loans or extensions of
credit granted in the ordinary course of business to purchasers or
lessees of a product sold or leased by a Loan Party, which for purposes
of this Section 7.10, shall include any loans or extensions of credit
to the New Holland Venture as a purchaser of products sold by a Loan
Party, so long as neither the Company nor any Subsidiary is in
violation of the financial covenants in this Agreement, (vii)
investments related to the New Holland Venture; provided that such
investments do not exceed $500,000 in any calendar year; provided,
further, that, for purposes of this clause (vii), "investments" shall
include any transfer of any assets by the Company to the New Holland
Venture, or (viii) other investments which in the aggregate do not
exceed $3,000,000 in any fiscal year of the Company.
7.11 Capital Expenditures. The Company will not, and will not
permit any Subsidiary to, make Capital Expenditures on an aggregate
basis for the Company and all Subsidiaries during any fiscal year of
the Company in excess of $20,000,000.
7.12 Dividends. The Company will not, and will not permit any
Subsidiary to, declare or pay dividends or make other stockholder
distributions or redemptions of its capital stock, or commit to make
any distribution of cash or property to its shareholders at any time
after June 4, 1999 other than dividends payable to the Company or a
Wholly-Owned Subsidiary; provided, however, that so long as no Default
or Event of Default has occurred and is continuing and no Default or
Event of Default would occur upon payment of such amounts, (i) the
Company may pay cash dividends or dividends paid solely in shares of
the Company, and (ii) the Company may repurchase or redeem shares of
its capital stock for an amount not to exceed $3,000,000 per fiscal
year.
7.13 Most Favored Lender. The Company will not, and will not
permit any Subsidiary to, agree to, with or for the benefit of the
holder of any other Indebtedness of the Company or any Subsidiary, any
financial or restrictive covenants or events of default which are more
restrictive than, or in addition to, the financial or negative
covenants or Events of Default contained in this Agreement, unless the
Company has, or has caused such Subsidiary to, offer to enter into an
agreement with the holders of the Notes, in form and substance
reasonably satisfactory to the holders of the Notes, whereby such
financial or negative covenants or events of default are added to this
Agreement for the benefit of the Notes."
10
1.9 Schedules 7.2 and 7.4 hereto are added as Schedules 7.2 and 7.4 to
the Note Agreement.
SECTION 2. Representations and Warranties. The Company represents and
warrants to each of the undersigned that (a) this letter has been duly
authorized, executed and delivered by the Company, (b) each representation and
warranty set forth in Section 3 of the Note Agreement is true and correct as of
the date of the execution and delivery of this letter by the Company with the
same effect as if made on such date (except to the extent such representations
and warranties expressly refer to an earlier date, in which case they were true
and correct as of such earlier date) and (c) after giving effect to the
amendments to the Note Agreement in Section 1 hereof except for the Specified
Defaults (as defined below), no Event of Default or Default exists.
SECTION 3. Effectiveness. The amendments described in Section 1 above
and the waivers set forth in Section 5 hereof shall become effective on the date
when (the "EFFECTIVE DATE") Mass Mutual has received:
(a) all costs and expenses of Mass Mutual (including
reasonable fees and disbursements of special counsel to Mass Mutual) in
connection with this letter;
(b) the following documents, each in a form and substance
satisfactory to Mass Mutual:
(i) counterparts of this letter agreement executed by
the Company and consented to by each Guarantor;
(ii) a Security Agreement signed by the Company and
each Guarantor, together with evidence, satisfactory to Mass
Mutual, that the Company and each Guarantor have delivered to
the Collateral Agent all financing statements and other
documents necessary to perfect the Collateral Agent's Lien on
all collateral granted under the Security Agreement;
(iii) the Collateral Sharing Agreement, signed by the
parties thereto and consented to by the Company and the
Guarantors;
(iv) an amendment and waiver to the Credit Agreement
and the Short Term Credit Agreement, executed by the Company,
the Multicurrency Subsidiary Borrowers, Bank One, NA, as agent
for the Banks, and the Banks; and
(v) an amendment and waiver to the Note Agreement,
dated as of October 10, 1995, duly executed by the Company and
the holders of the Company's7.25% Senior Notes, Series A; and
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(vi) an agreement from Ag-Chem Sales Co., Inc. to be
bound by the terms of the Subsidiary Guaranty.
(c) All corporate and other proceedings in connection with the
transactions contemplated by this letter agreement shall be
satisfactory to Mass Mutual and its counsel, and Mass Mutual shall have
received all such counterpart originals or certified or other copies of
such documents as it may reasonably request.
SECTION 4. Reference to and Effect on Note Agreements. Upon the
effectiveness of this letter, each reference to the Note Agreement in any other
document, instrument or agreement shall mean and be a reference to the Note
Agreement as modified by this letter. Except as specifically set forth in
Section 1 or 2 hereof, the Note Agreement shall remain in full force and effect
and is hereby ratified and confirmed in all respects.
SECTION 5. Waiver. Effective on the Effective Date, Mass Mutual hereby
waives any Default or Event of Default under Section 8.1(d) of the Note
Agreement resulting solely from a failure to comply with Section 7.3 of the Note
Agreement for the periods ended March 31, 2000 (the "Specified Default"). Except
as specifically set forth in the preceding sentence, nothing contained in the
letter shall be construed as a waiver of or consent to any other violation of
the Note Agreement or any other Default or Event of Default under the Note
Agreement.
SECTION 6. Governing Law. THIS LETTER SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS OF SUCH STATE WHICH WOULD OTHERWISE CAUSE THIS
LETTER TO BE CONSTRUED OR ENFORCED OTHER THAN IN ACCORDANCE WITH THE LAWS OF THE
STATE OF ILLINOIS.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
12
SECTION 7. Counterparts; Section Titles. This letter may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. The section titles contained in this letter are and shall be
without substance, meaning or content of any kind whatsoever and are not a part
of the agreement between the parties hereto.
Very truly yours,
C.M. LIFE INSURANCE COMPANY
By: Xxxxx Xxxxxx and Company
Incorporated, as Investment Sub
Adviser
By: /s/ Xxxxxxx X. Xxxxxxx XX
----------------------------------
Title: Managing Director
AGREED AND ACCEPTED:
AG-CHEM EQUIPMENT CO., INC.
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Title: CFO
Each of the undersigned Guarantors hereby consents to the foregoing amendments
and waivers and confirms that, notwithstanding the foregoing amendments and
waivers, all of its obligations under its Subsidiary Guaranty, dated as of April
6, 1994, remain in full force and effect with respect to the Note Agreement as
amended and waived as provided above.
LOR*AL PRODUCTS, INC.
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Title: CFO
AG-CHEM EQUIPMENT CANADA, LTD.
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Title: CFO
13
AG-CHEM EQUIPMENT CO.,
INTERNATIONAL CORP.
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Title: CFO
AG-CHEM MANUFACTURING, INC.
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Title: CFO
AG-CHEM SALES CO., INC.
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Title: CFO
AG-CHEM EUROPE, B.V.
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Title: CFO
14
Schedule 7.2
Existing Indebtedness
15
Schedule 7.4
Existing Liens
16
