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EXHIBIT 10.17
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") dated as
of February 24, 1997 amends and restates the Credit Agreement dated as of
January 14, 1997 among AGCO CORPORATION, a Delaware corporation ("AGCO"), AGCO
CANADA, LTD., a Saskatchewan corporation (the "Canadian Subsidiary"), XXXXXX
XXXXXXXX MANUFACTURING LIMITED, an English corporation ("English Subsidiary
One"), XXXXXX XXXXXXXX LIMITED, an English corporation ("English Subsidiary
Two"), AGCO LIMITED, an English corporation ("English Subsidiary Three"), XXXXXX
XXXXXXXX X.X., a French societe anonyme (the "French Subsidiary"), AGCO HOLDING
B.V., a Netherlands corporation (the "Netherlands Subsidiary"), and XXXXXX
XXXXXXXX GMBH, a German corporation (the "German Subsidiary"; the Canadian
Subsidiary, English Subsidiary One, English Subsidiary Two, English Subsidiary
Three, the French Subsidiary, the Netherlands Subsidiary and the German
Subsidiary are referred to herein collectively as the "Borrowing Subsidiaries"
and individually as a "Borrowing Subsidiary"; AGCO and the Borrowing
Subsidiaries 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, ATLANTA, and
DEUTSCHE BANK AG, NEW YORK BRANCH, as co-managers (the "Co-Managers"); DEUTSCHE
BANK CANADA ("Deutsche Bank Canada"), as Canadian administrative agent for the
Canadian Subsidiary Lenders (together with any successor appointed pursuant to
Article VII, 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 VII, the "Administrative Agent").
PRELIMINARY STATEMENT:
The Borrowers have asked the Lenders severally to extend
credit to them for the purposes of refinancing debt outstanding under the Old
Credit Agreement and for other general corporate purposes, on the terms and
conditions set forth herein.
NOW THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. 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 Subsidiary Lender under this Agreement, a fee payable in Canadian
Dollars by the Borrower to such Lender calculated on the face amount of the
Bankers' Acceptance at a rate equal to the Applicable Margin, on the basis of
the number of days in the Contract Period and on the basis of a year of 365
days.
"Advance" means a Canadian Subsidiary Advance, a Multi-Currency Advance
or a Letter of Credit Advance.
"Administrative Agent" has the meaning specified in the introductory
paragraph of this Agreement.
"Account" means the Administrative Agent's Account or the Canadian
Administrative Agent's Account, as applicable.
"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/Struc. Fin.;
(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/Struc. Fin.;
(c) for Dutch guilders, 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/Struc. Fin.;
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(d) for French francs, the account of the Administrative Agent
maintained with Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", Paris Branch, in Paris, Swift # (XXXXXXXX)
Account No. 1019230100, Favor: Rabobank Nederland, New York Branch,
Ref. AGCO/Struc. Fin.;
(e) for German deutschemarks, the account of the
Administrative Agent maintained with Rabobank Deutschland A.G., in
Frankfurt, Swift # (XXXXXXXX), Account No. 603-93775, Favor: Rabobank
Nederland, New York Branch, Ref. AGCO/Struc. Fin.;
(f) for Italian lira, the account of the Administrative Agent
maintained with Credito Italiano, in Milan, Swift # (XXXXXXXX), Account
No. 995/84020/00, Favor: Rabobank Nederland, New York Branch, Ref.
AGCO/Struc. Fin.; and
(g) for Swiss francs, the account of the Administrative Agent
maintained with Union Bank of Switzerland in Zurich, Swift #
(XXXXXXXX), Account No. 79.147.05H, Favor: Rabobank Nederland, New York
Branch, Ref. AGCO/Struc. Fin.
"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 or officer 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 means the possession, direct or
indirect, (a) by such other Person of the power to vote 5% or more of the Voting
Stock of such Person or (b) by such other Person of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of Voting 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.
"Allowances" means, with respect to any Person on any date of
determination, the aggregate amount of all allowances for surplus or obsolete
Inventory that would appear as allowances with respect to Inventory on a balance
sheet of such Person at such date prepared in accordance with GAAP and the
policies and procedures of such Person with respect to the creation and
maintenance of such allowances in effect on the date of this Agreement.
"Alternate Currency" means
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(a) British pounds, Canadian Dollars, Dutch guilders, German
deutschemarks, French francs, Italian lira and Swiss francs, and
(b) any other lawful currency that is freely transferable and
convertible into United States dollars and that has been approved by
each Lender.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance that is a
Multi-Currency Advance and such Lender's Eurocurrency Lending Office for loans
in another applicable currency, in the case of an Advance denominated in such
other currency .
"Applicable Margin" means, on any date of determination and for any
Eurocurrency Rate Advance, any Base Rate Advance for which the Base Rate is
determined as provided in clause (b)(ii) of the definition thereof, Acceptance
Fee or fee payable pursuant to Section 2.13(e), the percentage rate per annum
determined by reference to the Applicable Rating in effect at such date of
determination, as set forth below:
===============================================================
APPLICABLE RATING APPLICABLE MARGIN
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>=A- 0.25%
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BBB+ 0.35%
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BBB 0.40%
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BBB- 0.45%
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Split Rating 0.60%
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BB+ 0.70%
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BB 0.80%
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< BB 1.25%
==============================================================
"Applicable Rating" means
(a) if the respective credit ratings of AGCO's senior,
unsecured, long-term debt by Xxxxx'x and S&P shall be equivalent, such
rating by S&P, and
(b) if the respective ratings of such debt by such rating
agencies shall not be equivalent,
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(i) if S&P shall rate such debt BBB- or higher
and Xxxxx'x shall rate such debt Baa3 or higher, the lower of
the two ratings (except that, if the lower of the two ratings
shall be the Xxxxx'x rating, the S&P equivalent of such
Xxxxx'x rating shall be the Applicable Rating),
(ii) if either (A) S&P shall rate such debt BBB-
and Xxxxx'x shall rate such debt Ba1 or (B) S&P shall rate
such debt BB+ and Xxxxx'x shall rate such debt Baa3, the
Applicable Rating shall be referred to as a "Split Rating" and
(iii) in all other circumstances, the S&P rating
that is the equivalent of the average of the ratings of such
debt by Xxxxx'x and S&P (or, if such average falls between two
ratings, the S&P rating next below such average).
Any change in the Applicable Rating shall be effective on the seventh Business
Day after any modification of a rating by Xxxxx'x or S&P of AGCO's senior,
unsecured, long-term debt giving rise to such change.
"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 Subsidiary Facility or Letters of Credit
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.
"Appropriate Lender" means, at any time, with respect to any of the
Multi-Currency Facility, the Letter of Credit Facility or the Canadian
Subsidiary Facility, a Lender that has a Commitment with respect to such
Facility at such time.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Administrative
Agent and, if such assignment and acceptance relates to the Canadian Subsidiary
Facility, the Canadian Administrative Agent, in accordance with Section 8.07
and in substantially the form of Exhibit D hereto.
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"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 an 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 E (or such other form as may be acceptable to the Canadian
Administrative Agent) denominated in Canadian Dollars drawn by the Borrower and
accepted by a Canadian Subsidiary Lender or Participant and the term "Bankers'
Acceptance" shall be construed to include Discount Notes as provided in Section
2.16(k).
"Base Rate" means 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 Borrowings 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, and
(ii) one-half of one percent per annum above the
Federal Funds Rate, and
(b) with respect to Canadian Subsidiary Borrowings, the
higher of
(i) the annual rate of interest announced from
time to time by the Canadian Administrative Agent as its
reference rate then in effect for determining interest rates
on Canadian Dollar- denominated commercial loans made by the
Canadian Administrative Agent in Canada, and
(ii) the rate per annum announced by the Canadian
Administrative Agent as its rate for cost of funds for
borrowings for a one-month period, plus the Applicable Margin.
"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 Subsidiary Lender, in either case that bears interest as provided in
Section 2.06(a)(i).
"Borrower" and "Borrowers" have the respective meanings specified in
the introductory paragraph of this Agreement; provided that additional Persons
may be added to
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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 Subsidiary
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 Subsidiary
Borrowing.
"Borrowing Base" means on any date of determination and for AGCO and
its Restricted Subsidiaries, the sum of
(a) (i) 0.60, multiplied by
(ii) (A) the sum, for all items of Inventory
owned by AGCO and its Restricted Subsidiaries, of the
lowest of (1) manufactured cost, determined in
accordance with GAAP on a first-in, first-out basis,
(2) market value and (3) acquisition cost, for each
such item (or, if any such cost or value is
denominated in an Alternate Currency, the
Multi-Currency Equivalent in U.S. dollars of such
cost or value as of such date of determination),
minus
(B) all Allowances with respect to such Inventory, and
(b) (i) 0.90, multiplied by
(ii) (A) the gross amount of Receivables
owing to AGCO and its Restricted Subsidiaries (other
than any such Receivables arising in respect of
intercompany transactions) (calculated, with respect
to all Receivables denominated in an Alternate
Currency, on the basis of the Multi-Currency
Equivalent in U.S. dollars of such gross amount as of
any date of determination), minus
(B) all Reserves with respect to such Receivables,
in each case as such amounts are specified in the most recent Borrowing Base
Certificate delivered to the Administrative Agent prior to such date of
determination pursuant to Section 5.03(n).
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"Borrowing Base Certificate" means a certificate in respect of the
Inventory and Receivables of AGCO and its Restricted Subsidiaries substantially
in the form of Exhibit F.
"Borrowing Subsidiary" and "Borrowing Subsidiaries" have the
respective meaning specified in the introductory paragraph of this Agreement.
"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
Eurocurrency 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
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.
"Canadian Administrative Agent's Account" means the Canadian
Administrative Agent's account maintained with Deutsche Bank Canada in Toronto,
Ontario, Swift # (XXXXXXXX), Attention: X. Xxxxxxxxxx, Reference AGCO Canada,
Ltd, or such other account as the Canadian Administrative Agent may from time
to time designates as the Canadian Administrative Agent's Account.
"Canadian Dollars" and "Cdn. $" each means lawful money of Canada.
"Canadian Issuing Bank" means Deutsche Bank Canada and its successors
and assigns hereunder as issuer of Letters of Credit for the account of the
Canadian Subsidiary.
"Canadian Reference Banks" means Deutsche Bank Canada, National Bank
of Canada and Bank of Montreal.
"Canadian Subsidiary" has the meaning specified in the introductory
paragraph of this Agreement.
"Canadian Subsidiary Advance" has the meaning specified in Section
2.01(b).
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"Canadian Subsidiary Borrowing" means a borrowing consisting of
simultaneous Canadian Subsidiary Advances of the same Type made by the Canadian
Subsidiary Lenders.
"Canadian Subsidiary Commitment" means, with respect to any Canadian
Subsidiary Lender at any time, the amount set forth opposite such Lender's name
on Schedule I hereto under the caption "Canadian Subsidiary 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 8.07(c) as such Lender's "Canadian Commitment", as such amount may
be reduced at or prior to such time pursuant to Section 2.04.
"Canadian Subsidiary Facility" means, at any time, the aggregate
amount of the Canadian Subsidiary Lenders' Canadian Subsidiary Commitments at
such time, which shall not exceed the Multi-Currency Equivalent of U.S.
$100,000,000.
"Canadian Subsidiary Lender" means any Lender that has a Canadian
Subsidiary Commitment.
"Canadian Subsidiary Outstandings" means, on any date of
determination, the Multi-Currency Equivalent in U.S. dollars of
(a) the aggregate principal amount of all Base Rate
Advances or Eurocurrency Rate Advances to the Canadian Subsidiary
outstanding on such date of determination,
plus
(b) the aggregate face amount of all Bankers' Acceptances
outstanding on such date of determination, plus
(c) 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
(d) the aggregate Available Amount of all Letters of
Credit issued for the account of the Canadian Subsidiary and
outstanding on such date of determination.
"Capitalized Leases" has the meaning specified in clause (e) of the
definition of Debt.
"Cash Equivalents" means any of the following, to the extent owned by
AGCO or a Restricted Subsidiary of AGCO free and clear of all Liens and having
a maturity of not greater than 360 days from the date of issuance thereof:
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(a) (i) readily marketable direct obligations of the
Government of the United States, Canada, England, France or Germany,
or any agency or instrumentality of any of such Governments, (ii)
obligations unconditionally guaranteed by the full faith and credit of
the Government of the United States, Canada, England, France or
Germany or (iii) a mutual fund investing solely in obligations of the
types described in clauses (i) and (ii);
(b) insured certificates of deposit of, time deposits or
banker's acceptances with or issued by any commercial bank that is
(i) a Lender,
(ii) a member of the Federal Reserve System
organized under the laws of the United States or any State
thereof, that has combined capital and surplus of at least
U.S. $1 billion and that issues (or the parent of which
issues) commercial paper rated as described in clause (c)
below or
(iii) organized under the laws of a country that is
a member of the Organization for Economic Cooperation and
Development, or any jurisdiction of any thereof, that has
combined capital and surplus of at least the equivalent of
U.S. $1 billion and that issues (or the parent of which
issues) commercial paper rated as described in clause (c)
below or with a rating by another rating agency nationally
recognized in any such jurisdiction that is at least the
equivalent of a rating described in clause (c) below; or
(c) commercial paper in an aggregate amount of no more
than U.S. $25,000,000 per issuer outstanding at any time, issued by
(i) any Lender or its parent, or
(ii) any corporation organized under the laws of
any State of the United States, but only if such commercial
paper is 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.
"Co-Managers" has the meaning specified in the introductory paragraph
of this Agreement.
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"Commitment" of any Lender means its Multi-Currency Commitment and/or
Canadian Subsidiary Commitment and of any Issuing Bank means its Letter of
Credit Commitment.
"Common Stock" means the common stock, par value U.S. $.01 per share, of AGCO.
"Competitor" means any Person engaged in, or having an Affiliate
engaged in, the business of manufacturing, sale, distribution or financing of
agricultural equipment and related parts, other than a commercial bank or other
financial institution.
"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 Funded Debt" means, on any date of determination, the
Funded Debt of AGCO and its Restricted 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 amounts deducted in arriving at such Consolidated Net Income 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), depreciation expense, amortization expense
and 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.
"Consolidated Interest Expense" means, for any period, the sum of 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).
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"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
(x) 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, and
(y) any Person substantially all of the assets of which
have been acquired by AGCO or a Restricted Subsidiary during such
period that accrued during such period prior to the date on which such
assets were acquired,
to the extent such income or deficit would appear on a pro forma income
statement, or the notes thereto, prepared in accordance with Regulation S-X of
the Securities and Exchange Commission, of AGCO and its Restricted Subsidiaries
reflecting such event; 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 dividends or similar distributions;
(b) the undistributed earnings of any Restricted
Subsidiary (other than a Borrowing Subsidiary or a Subsidiary
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
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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
securities, or the extinguishment, under GAAP, of any Debt, of AGCO or
any Restricted Subsidiary;
(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; and
(h) any deferred credit representing the excess of equity
in any Restricted Subsidiary at the date of acquisition over the cost
of the investment in such Restricted Subsidiary.
"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,
(a) 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, plus
(b) the aggregate principal amount of Convertible
Subordinated Debentures outstanding as of such day.
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"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,
unamortized debt discount and expense and the excess of cost of
purchased Restricted Subsidiaries over equity in the net assets
thereof at the date of acquisition;
(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;
(c) all deferred charges (other than prepaid expenses); and
(d) the amounts at which any Investment in any Person
would appear on the asset side of such balance sheet.
"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 Borrower and notified to the
Canadian Administrative Agent in accordance with Section 2.02(a), commencing on
the date of the Advance with respect to such Bankers' Acceptance or on the date
of Conversion or on the date of rollover in accordance with Section 2.16(h), as
applicable, and expiring on a Business Day which shall not be less than 30 days
or more than 180 days thereafter, and which shall not shall not expire after
the Termination Date.
"Conversion", "Convert" and "Converted" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.08
or 2.09.
"Convertible Subordinated Debentures" means the 6 1/2% Convertible
Subordinated Debentures due 2008 of AGCO outstanding on the date hereof.
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"Debt" of any Person means, without duplication,
(a) all indebtedness of such Person for borrowed money;
(b) all Obligations of such Person for the deferred
purchase price of property or services, other than trade payables
incurred in the ordinary course of business and not overdue by more
than 90 days;
(c) all Obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments;
(d) all Obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property);
(e) all Obligations of such Person as lessee under leases
that have been or should be, in accordance with GAAP, recorded as
capital leases ("Capitalized Leases");
(f) all Obligations, contingent or otherwise, of such
Person under acceptance, letter of credit or similar facilities;
(g) all Obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any
capital stock of or other ownership or profit interest in such Person
or any other Person or any warrants, rights or options to acquire such
capital stock, valued, in the case of Redeemable Preferred Stock, at
the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends;
(h) all Guaranties of the Debt of others referred to in
clauses (a) through (g) above, but excluding the Agricredit Keepwell
Agreement; and
(i) all Debt referred to in clauses (a) through (h) above
secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including without limitation accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such Debt.
For purposes of any calculation of any Debt of AGCO and its Restricted
Subsidiaries, (A) there shall be no double- counting of direct obligations,
Guaranties and reimbursement obligations for letters of credit; (B) the
principal amount of any Debt of any Person arising by
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reason of such Person having guaranteed Debt of others, where the amount of such
Guaranty is limited to a specified amount that is less than the principal amount
of the Debt guaranteed, shall be such amount as so limited; and (C) there shall
be excluded from such Debt any Debt of a joint venture the general partner of
which is a single-purpose Subsidiary of AGCO, if the joint venture is not
consolidated with AGCO for financial-reporting purposes and such single-purpose
Subsidiary's sole significant asset is its general partnership interest in such
joint venture.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Deutsche Bank Canada" has the meaning specified in the introductory
paragraph of this Agreement.
"Discount Note" means a non-interest bearing promissory note
substantially in the form of Exhibit F, denominated in Canadian Dollars, issued
by the Borrower 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 Advance with respect to such Bankers' Acceptance
or on the date of the Conversion or on the date of the rollover pursuant to
Section 2.16(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% being
rounded up) of the percentage discount bid rate quoted on that day by each of
the Canadian Reference Banks for bankers' acceptances issued by each of the
Canadian Reference Banks and 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,
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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 any date of determination, any
Subsidiary of AGCO not conducting any business or other activities or holding
any assets in excess of U.S. $15,000 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 and that is
not a Competitor.
"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.
"English Subsidiary Three" 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, 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 CERCLA, the Resource
Conservation and Recovery Act, the Hazardous Materials
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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.
"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) (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 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;
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(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 Lending Office" means, with respect to any Lender and
any currency, the office of such Lender specified as its "Eurocurrency 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.
"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.
"Eurocurrency Rate" means, for any Interest Period for all
Eurocurrency 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
(A) 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) of the Dow Xxxxx Telerate Service (or any other
page that may replace any such page on such service
or is applicable to any other Alternate Currency, in
the judgment of the Administrative Agent), or
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(B) if a rate cannot be determined
pursuant to clause (A) 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 offered by the
principal office of each of the Reference Banks as
determined by the Administrative Agent (or, if the
Administrative Agent is unable to obtain information
as to such rate from all of the Reference Banks, as
to each Reference Bank from which it has obtained
such information) in London, England to prime banks
in the interbank market,
at 11:00 A.M. (London time) two Business 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 Eurocurrency
Rate Reserve Percentage for such Interest Period, and
(b) in the case of Canadian Dollars, the rate per annum
announced by the Canadian Administrative Agent as its rate for cost of
funds for borrowings for a period equal to such Interest Period.
"Eurocurrency Rate Advance" means an Advance denominated in U.S.
dollars or in an Alternate Currency that bears interest as provided in Section
2.06(a)(ii).
"Eurocurrency Rate Reserve Percentage", for any Interest Period for
all Eurocurrency Rate Advances comprising part of the same Borrowing, means the
reserve percentage applicable two Business Days before the first day of such
Interest Period 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 in New York City 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 Eurocurrency Rate Advances is determined) having a term equal
to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Proceeds" has the meaning specified in the Subordinated Debt
Indenture.
"Facility" means the Multi-Currency Facility, the Canadian Subsidiary
Facility or the Letter of Credit Facility.
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"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.
"Finance Subsidiary" means any Subsidiary of AGCO (other than a
Borrower or Guarantor) engaged primarily in the business of providing retail
financing to purchasers of agricultural equipment, and each Subsidiary of any
of such Persons.
"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" of any Person means Debt in respect of the Advances, in
the case of the Borrowers, and all other Debt of such Person that by its terms
matures more than one year after the date of its creation or matures within one
year from such date but is renewable or extendible, at the option of such
Person, to a date more than one year after such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year after such date (but
excluding trade letters of credit issued in the ordinary course of business and
time drafts), including without limitation all amounts of Funded Debt of such
Person required to be paid or prepaid within one year after the date of
determination.
"GAAP" has the meaning specified in Section 1.03.
"German Subsidiary" has the meaning specified in the introductory
paragraph of this Agreement.
"Guaranty" means any Debt or other Obligation of another Person
guaranteed directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement;
(a) to pay or purchase such Obligation or to advance or
supply funds for the payment or purchase of such Obligation;
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(b) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose
of enabling the debtor to make payment of such Obligation or to assure
the holder of such Obligation against loss;
(c) to supply funds to or in any other manner invest in
the obligor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are
rendered); or
(d) otherwise to assure a creditor against loss.
"Hazardous Materials" means
(a) petroleum or petroleum products, natural or synthetic
gas, asbestos in any form that is or could become friable, urea
formaldehyde foam insulation and radon gas;
(b) any substances defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous
wastes", "toxic substances", "toxic pollutants", "contaminants" or
"pollutants", or words of similar import, under any applicable
Environmental Law; and
(c) any other substance exposure to which is regulated
under any applicable Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Indemnified Party" has the meaning specified in Section 8.04(b).
"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 Period" means, for each Eurocurrency Rate Advance comprising
part of the same Borrowing (or portion of the same Borrowing), the period
commencing on the date of such Eurocurrency Rate Advance or the date of the
Conversion of any Base Rate Advance into a Eurocurrency 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
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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, for
any Interest Period ending on or prior to March 31, 1997, one, two or three
weeks or one, two or three months, and for any Interest Period ending on any
date thereafter, one, two, three, six or, with the consent of each Appropriate
Lender, nine or 12 months, 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) 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;
(b) 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;
(c) such Borrower shall not select an Interest Period
that ends after the Termination Date; and
(d) until March 31, 1997, no Interest Period shall end on
a date after March 31, 1997.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Inventory" means, with respect to any Person on any date of
determination, solely for purposes of calculating the Borrowing Base of such
Person, all finished goods and parts owned and held for sale by such Person the
amount of which would appear as inventory on a balance sheet of such Person at
such date prepared in accordance with GAAP.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock, warrants, rights,
options, obligations or other securities of such Person, any capital
contribution to such Person or any other investment in such Person, including
without limitation any arrangement pursuant to which the investor incurs
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Debt of the types referred to in clauses (g), (h) and (in respect of Debt
referred to in such clause (g) or (h)) (i) of the definition of "Debt" in
respect of 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
6.02.
"L/C Related Documents" has the meaning specified in Section 2.13(d).
"Lenders" means the financial institutions listed as Multi-Currency
Lenders or Canadian Subsidiary Lenders on the signature pages hereof and each
Eligible Assignee that shall become a party hereto pursuant to Section 8.07.
"Letter of Credit" has the meaning specified in Section 2.13(a).
"Letter of Credit Advance" means an advance made by the Issuing Bank
pursuant to Section 2.13(c).
"Letter of Credit Agreement" has the meaning specified in Section
2.13(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 8.07(c), as such
amount may be reduced at or prior to such time pursuant to Section 2.04.
"Letter of Credit Facility" means the aggregate Available Amounts of
Letters of Credit the Issuing Banks may issue pursuant to Section 2.13(a),
which shall not exceed U.S. $75,000,000.
"Lien" means any lien, security interest or other pledge, charge or
encumbrance of any kind, or any other type of preferential arrangement,
including without limitation the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on title
to real property.
"Loan Documents" means this Agreement, the Notes, the Loan Party
Guaranties and each Letter of Credit Agreement.
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"Loan Parties" means the Borrowers, the Subsidiary Guarantors and each
Person executing a Loan Party Guaranty pursuant to Section 5.01(l) or 5.02(l).
"Loan Party Guaranty" means the Guaranties specified in Section
3.01(e)(vii) and the Guaranties delivered pursuant to Section 5.01(l) and
5.02(l), in each case as amended from time to time in accordance with its
terms.
"Margin Stock" has the meaning specified in Regulation U.
"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, or any Borrowing Subsidiary and its
Subsidiaries that are Restricted Subsidiaries, taken as a whole,
(b) the rights and remedies of either Agent or any Lender
under any Loan Document or L/C Related Document, 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 Restricted Subsidiaries, taken as a whole, or any Borrowing
Subsidiary and its Subsidiaries that are Restricted Subsidiaries,
taken as a whole, and for which no alternative source of performance
by the other party or parties thereto is readily available.
"Moody's" means Xxxxx'x Investors Service, Inc and it successors.
"Multi-Currency Advance" has the meaning specified in Section 2.01(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 Multi-Currency
Advances in U.S. dollars and of the Multi- Currency Equivalent in U.S.
dollars of all Multi-Currency Advances in other 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 Multi-Currency Equivalent
of all Letter of Credit Advances in other 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 Multi-Currency
Equivalent 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 8.07(c) as
such Lender's "Multi-Currency Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.04.
"Multi-Currency Equivalent" means, on any date of determination, the
equivalent in any Alternate Currency or other currency of an amount in U.S.
dollars, or in U.S. dollars of an amount in any Alternate Currency or other
currency, determined at the rate of exchange quoted by the Administrative Agent
in New York City, at 9:00 A.M. (New York City time) on the Calculation Date
with respect to such date of determination, to prime banks in New York City for
the spot purchase in the New York foreign exchange market of such amount of
U.S. dollars with such Alternate Currency or such amount of such Alternate
Currency or other currency with U.S. Dollars. For purposes of this definition,
"Calculation Date" means, with respect to any date of determination, the date
most recently occurring prior to (or occurring on) such date of determination
that is the 15th day of the first complete calendar month after the end of the
most recently completed fiscal quarter of AGCO (or, if such 15th day is not a
Business Day, the next-following Business Day).
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"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 Multi-Currency Equivalent of U.S. $1,100,000,000.
"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 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 Debt or
capital stock, any securities convertible into or exchangeable for capital
stock or any warrants, rights or options to acquire capital 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, and
(b) the amount of taxes payable in connection with or as
a result of such transaction,
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.
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"Non BA Lender" means a Canadian Subsidiary Lender or Participant that
cannot or does not as a matter of policy issue Bankers' Acceptances.
"Note" means a promissory note of any Borrower payable to the order of
a Lender, in substantially the form of Exhibit A-1 hereto (subject to the first
sentence of Section 2.16), in the case of any Multi-Currency Borrower, or of
Exhibit A-2 hereto, in the case of the Canadian Subsidiary, evidencing the
aggregate indebtedness of such Borrower to such Lender, including the aggregate
face amount of all outstanding Bankers' Acceptances.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.13(b)(i).
"Obligation" means, with respect to any Person, any obligation of such
Person of any kind, including without limitation any liability of such Person
on any claim, whether or not the right of any creditor to payment in respect of
such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured, and
whether or not such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(f). Without limiting the generality of
the foregoing, the Obligations of the Loan Parties under the Loan Documents
include
(a) the obligation to pay principal, interest, face
amount of Bankers' Acceptances, Letter of Credit commissions, charges,
expenses, fees, attorneys' fees and disbursements, indemnities and
other amounts payable by any Loan Party under any Loan Document, and
(b) the obligation to reimburse any amount in respect of
any of the foregoing that any Lender, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
"Old Credit Agreement" means the Amended and Restated Credit Agreement
dated as of June 25, 1996 among the Borrowers, Rabobank, as administrative
agent, Deutsche Bank Canada, as Canadian administrative agent, Rabobank,
Deutsche Bank Canada and SunTrust Bank, Atlanta, as co-managers, and the
lenders parties thereto.
"Other Taxes" has the meaning specified in Section 2.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Participant" has the meaning specified in Section 8.07(e).
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"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced:
(a) Liens for taxes, assessments and governmental charges
or levies to the extent not required to be paid under Section 5.01(b);
(b) Liens imposed by law, such as landlords',
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 30
days;
(c) pledges or deposits to secure non-delinquent
obligations under worker's compensation, unemployment insurance and
other social security legislation;
(d) Liens arising in the ordinary course of business that
do not secure the repayment of Debt in respect of borrowed money
(i) to secure the performance of bids, trade
contracts, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature;
(ii) 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;
(iii) consisting of restrictions (other than
pledges or other security interests) on the transferability of
Investments in favor of co-investors or the issuers of such
Investments or imposed by law; and
(iv) on trademarks, patents, copyrights and other
intellectual property (whether individually or as part of a
group) consisting of the license or similar disposition of
such property made in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
sublicenses, restrictions on the use of property or minor
imperfections in title thereto which, in the aggregate, are not
material in amount, and which do not in any case materially detract
from the value of the property subject thereto or interfere with the
ordinary conduct of the business of AGCO or any of its Restricted
Subsidiaries;
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(f) Liens resulting from progress payments or partial
payments under United States government contracts or subcontracts;
(g) Liens arising from legal proceedings, so long as such
proceedings are being contested in good faith by appropriate
proceedings diligently conducted and so long as execution is stayed on
all judgments resulting from any such proceedings;
(h) Liens imposed by or pursuant to ERISA; and
(i) rights with respect to property reserved or vested in
governmental authorities that do not render title to the property
encumbered thereby unmarketable or materially adversely affect the use
of such property for its present purposes.
"Person" means an individual, partnership, corporation (including a
business trust), 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.
"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, and
(b) with respect to any Canadian Subsidiary Lender at any
time, an amount equal to
(i) a fraction the numerator of which is the amount
of such Lender's Canadian Subsidiary Commitment at
such time and the denominator of which is the
Canadian Subsidiary Facility at such time, multiplied
by
(ii) such amount.
"Rabobank" has the meaning specified in the introductory paragraph of
this Agreement.
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"Receivables" means, with respect to any Person on any date of
determination, all accounts owing to such Person that would appear as
receivables on a balance sheet of such Person at such date prepared in
accordance with GAAP, but excluding any receivables that, although sold to a
third party as part of a securitization of receivables or otherwise, would
continue to appear on a balance sheet of such Person.
"Reference Banks" means Barclays Bank, National Westminster Bank, Bank
of Tokyo and Citibank, N.A.
"Register" has the meaning specified in Section 8.07(c).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"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.
"Renault Joint Venture" means the joint venture between the French
Subsidiary and Renault Agriculture S.A. for, among other things, the
manufacture of drive-line assemblies for higher horsepower tractors at the
Xxxxxxxx facility of the French Subsidiary.
"Required Lenders" means at any time, subject to Section 8.01(c),
Lenders owed or holding (or, in the case of Bankers' Acceptances, that
initially accepted) at least 51% of the sum of
(a) the aggregate principal amount of the Advances (other
than Advances by way of Bankers' Acceptances) outstanding at such
time;
(b) the aggregate face amount of Bankers' Acceptances
outstanding at such time;
(c) the aggregate Available Amount of all Letters of
Credit outstanding at such time;
(d) the aggregate Unused Multi-Currency Commitments at
such time; and
(e) the aggregate Unused Canadian Subsidiary Commitments
at such time. For purposes of this definition, the Available Amount of any
Letter of Credit issued for the account of the Canadian Subsidiary shall be
considered to be owed to the Canadian Subsidiary Lenders ratably in accordance
with their respective Canadian Subsidiary Commitments, and
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the Available Amount of any Letter of Credit issued for the account of any
Multi- Currency Borrower shall be considered to be owed to the Multi-Currency
Lenders ratably in accordance with their respective Multi-Currency Commitments
"Reserves" means, with respect to any Person on any date of
determination, the aggregate amount of all reserves for bad debt (including
both general loss provisions and specific known losses), dealer discounts and
intercompany receivables that would appear as reserves with respect to
Receivables on a balance sheet of such Person at such date prepared in
accordance with GAAP and the policies and procedures of such Person with
respect to the creation and maintenance of such reserves in effect on the date
of this Agreement.
"Responsible Employee" shall mean the Chairman, President, Chief
Financial Officer, Treasurer, General Counsel or any Associate or Assistant
General Counsel, Assistant Treasurer or Vice President of AGCO or 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 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, other than Finance Subsidiaries.
"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.
"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.
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"Split Rating" has the meaning specified in clause (b)(ii) of the
definition of Applicable Rating.
"Standby Letter of Credit" means any Letter of Credit issued under the
Letter of Credit Facility, other than a Trade Letter of Credit.
"Subordinated Debt Indenture" means the Indenture dated as of March
20, 1996 between AGCO and SunTrust Bank, Atlanta, as trustee, as amended,
modified and supplemented from time to time.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) more than 50% of
(a) the issued and outstanding Voting Stock of such
Person,
(b) the interest in the capital or profits of such
partnership or joint venture 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. Unless otherwise specified in this Agreement, a
reference to a Subsidiary shall mean a Subsidiary of AGCO.
"Subsidiary Guarantor" has the meaning specified in Section
3.01(e)(vii).
"Supermajority Lenders" means at any time, subject to Section 8.01(c),
Lenders owed or holding at least 90% of the sum of
(a) the aggregate principal amount of the Advances (other
than Advances by way of Bankers' Acceptances) outstanding at such
time;
(b) the aggregate face amount of Bankers' Acceptances
outstanding at such time;
(c) the aggregate Available Amount of all Letters of
Credit outstanding at such time;
(d) the aggregate Unused Multi-Currency Commitments at
such time; and
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(e) the aggregate Unused Canadian-Subsidiary Commitments
at such time. For purposes of this definition, the Available Amount of any
Letter of Credit issued for the account of the Canadian Subsidiary shall be
considered to be owed to the Canadian Subsidiary Lenders ratably in accordance
with their respective Canadian Subsidiary Commitments, and the Available Amount
of any Letter of Credit issued for the account of any Multi- Currency Borrower
shall be considered to be owed to the Multi-Currency Lenders ratably in
accordance with their respective Multi-Currency Commitments.
"Taxes" has the meaning specified in Section 2.11(a).
"Termination Date" means the earlier of January 14, 2002 and the date
of termination in whole of the Commitments pursuant to Section 2.04 or 6.01.
"Trade Letter of Credit" means any Letter of Credit that is issued
under the Letter of Credit Facility for the benefit of a supplier of inventory
to the Borrower or any of its Restricted Subsidiaries to effect payment for such
inventory, the conditions to drawing under which include the presentation to the
Issuing Bank of negotiable bills of lading, invoices and related documents
sufficient, in the judgment of the Issuing Bank, to create a valid and perfected
Lien on such inventory.
"Type" refers to the distinction among Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurocurrency 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 Subsidiary Commitment" means, with respect to any
Canadian Subsidiary Lender at any date of determination,
(a) such Lender's Canadian Subsidiary Commitment at such
time, minus
(b) the Multi-Currency Equivalent in U.S. dollars as of
such date of
(i) the aggregate principal amount of all Base
Rate Advances and Eurocurrency Rate Advances made by such
Lender and outstanding on such date, plus
(ii) the aggregate face amount of all Bankers'
Acceptances outstanding on such date, plus
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(iii) such Lender's Pro Rata Share of
(A) the aggregate Available Amount of
all Letters of Credit issued for the account of the
Canadian Subsidiary and outstanding on such date, plus
(B) 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 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 Multi-Currency Equivalent 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
(A) the aggregate Available Amount of
all Letters of Credit issued for the account of any
Multi-Currency Borrower and outstanding on such date,
plus
(B) 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.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even though the right
so to vote has been suspended by the happening of such a contingency.
"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.
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"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
SECTION 1.02. 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 1.03. 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 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
applied on a basis consistent with those used in the preparation of the latest
financial statements furnished to the Lenders hereunder (which, prior to the
delivery of the first financial statements under Section 5.03(c) shall mean the
audited financial statements as at December 31, 1995 referred to in Section
4.01(f)). 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 5.03 most
recently prior to or concurrently with such calculations (or, prior to the
delivery of the first financial statements under Section 5.03(c), used in the
preparation of the audited financial statements as at December 31, 1995 referred
to in Section 4.01(f)) 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 (which, if objection is made in respect of the first
financial statements delivered under Section 5.03(c), shall mean the financial
statements referred to in Section 4.01(f)) ("GAAP").
(b) AGCO shall deliver to the Administrative Agent, at
the same time as the delivery of any annual or quarterly financial statement
under Section 5.03, (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.
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SECTION 1.04. Currency Equivalents. For purposes of
determining in any currency any amount outstanding in another currency, the
Multi-Currency Equivalent 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 Alternate
Currencies or to an amount in U.S. dollars that in fact is in one or more
Alternate Currencies, such reference (whether or not it expressly so provides)
shall be deemed to refer, to the extent it includes an amount in any Alternate
Currency, the Multi-Currency Equivalent in U.S. dollars of such amount at the
time of determination.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances. (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 Termination 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,
(i) the Multi-Currency Borrower Outstandings on such date
would exceed the amount of the Multi- Currency Facility on such date,
or
(ii) the Borrower Outstandings on such date would exceed
the Borrowing Base on such date.
Each Multi-Currency Borrowing shall be in U.S. dollars in, or the
Multi-Currency Equivalent in the requested Alternate 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 Multi-Currency
Equivalent 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 2.01(a), prepay pursuant to Section
2.05(a) and reborrow under this Section 2.01(a).
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(b) Canadian Subsidiary Advances. Each Canadian
Subsidiary Lender severally agrees, on the terms and conditions hereinafter set
forth, to make advances (each a "Canadian Subsidiary Advance") to the Canadian
Subsidiary from time to time on any Business Day during the period from the
date hereof until the Termination Date in an amount for each such Advance not
to exceed such Lender's Unused Canadian Subsidiary Commitment on such Business
Day. In no event shall the Canadian Subsidiary Lenders be obligated to make
any Canadian Subsidiary Advance if, on the date of such Advance and after
giving effect thereto,
(i) the Canadian Subsidiary Outstandings on such date
would exceed the amount of the Canadian Subsidiary Facility on such
date, or
(ii) the Borrower Outstandings on such date would exceed
the Borrowing Base on such Date.
Each Canadian Subsidiary Borrowing shall be by way of (x) Base Rate Advances or
Eurocurrency Rate Advances in the Multi- Currency Equivalent in Canadian
Dollars of an aggregate amount of U.S. $5,000,000 or an integral multiple of
U.S. $1,000,000 in excess thereof or (y) the acceptance and purchase of
Bankers' Acceptances, pursuant to Section 2.16, in a minimum aggregate face
amount of Cdn. $5,000,000 or an integral multiple of Cdn. $1,000,000 in excess
thereof, and shall consist of Canadian Subsidiary Advances made by such Lenders
ratably according to their Canadian Subsidiary Commitments. The Multi-Currency
Equivalent in U.S. dollars of each Canadian Subsidiary Advance shall be
recalculated hereunder on each date on which it shall be necessary to determine
the Unused Canadian Subsidiary Commitment, or any or all Advance or Advances
outstanding on such date. Within the limits of each Canadian Subsidiary Lender's
Unused Canadian Subsidiary Commitment in effect from time to time, the Borrowers
may borrow under this Section 2.01(b), prepay pursuant to Section 2.05(a) and
reborrow under this Section 2.01(b).
(c) 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 (except
as may otherwise be provided in such Borrowing Subsidiary's Guaranty) any other
Borrowing Subsidiary.
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.13, each Borrowing shall be made on notice, given not
later than
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(w) 11:00 A.M. (New York Time) on the third Business Day
prior to the date of a proposed Borrowing, in the case of a Borrowing
consisting of Eurocurrency Rate Advances,
(x) 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,
(y) 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, or
(z) 10:00 A.M. (Toronto time) two Business Days 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 Subsidiary Borrowing), which
shall give to each Appropriate Lender prompt notice thereof by telecopier.
Each such notice of a Borrowing (a "Notice of Borrowing") shall be by telex,
telecopier or cable, confirmed immediately in writing, in substantially the
form of Exhibit B-1 hereto (in the case of a Borrowing by a Multi-Currency
Borrower) or Exhibit B-2 hereto (in the case of a Borrowing by the Canadian
Subsidiary), specifying therein the
(i) requested date of such Borrowing (which shall be a
Business Day);
(ii) requested Type of Advances comprising such Borrowing,
which
(A) may be a Base Rate Advance or a Eurocurrency
Advance if such Advance is denominated in U.S. dollars or
Canadian Dollars,
(B) may be by way of Bankers' Acceptances if such
Advance is denominated in Canadian Dollars, and
(C) shall be a Eurocurrency 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;
(iii) requested aggregate principal amount or face amount
of such Borrowing, as the case may be;
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(iv) requested currency in which such Borrowing is to be
made; provided that
(A) such currency shall be Canadian dollars, if
the Person requesting such Borrowing is the Canadian
Subsidiary; British pounds or U.S. dollars, if the Person
requesting such Borrowing is English Subsidiary One, English
Subsidiary Two or English Subsidiary Three; Dutch guilders, if
the Person requesting such Borrowing is the Netherlands
Subsidiary; French francs or U.S. dollars, if the Person
requesting such Borrowing is the French Subsidiary; and German
deutschemarks or U.S. dollars, if the Person requesting such
Borrowing is the German Subsidiary,
(B) such currency shall not be Canadian dollars,
if the Borrower is AGCO and
(C) no Borrower shall make a request for a
Borrowing in an Alternate Currency described in clause (b) of
the definition thereof unless it shall have previously
obtained the consent of each Multi-Currency Lender to
Borrowings in such currency;
(v) in the case of a Borrowing consisting of Eurocurrency
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
(vi) 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 Subsidiary Facility, and each other Borrowing shall be a Borrowing
under the Multi-Currency Facility. In the case of a proposed Borrowing
comprised of Eurocurrency Rate Advances, the Appropriate Agent shall promptly
(and in any case no later than 11:00 A.M. (New York Time) on the second
Business Day before any Eurocurrency 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 2.06(a). Each Appropriate Lender
shall, before 11:00 A.M. (Relevant Currency Time) on the date of any Borrowing
consisting of Eurocurrency Rate Advances, or 3:00 P.M. (New York 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
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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 Borrower by way of the acceptance of Bankers' Acceptances
at the branch of the Appropriate Lender to which notices may be sent under
Section 8.02 such Lender's Pro Rata Share of such Borrowing in accordance with
the respective 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 III, 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 or CHIPS identification number with respect to the delivery of such
funds.
(b) 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 Eurocurrency 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 III, 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.
(c) 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 subsection (a) of this Section 2.02 and the Appropriate Agent
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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 Borrower, the interest rate
applicable at such time under Section 2.06 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 Subsidiary Borrowings) if such payment is
made to the Canadian Administrative Agent.
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.
(d) 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 12 Borrowings outstanding under the Canadian Subsidiary Facility.
(e) 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 2.03. Repayment. (a) Canadian Subsidiary Advances
and Multi-Currency Advances. The Canadian Subsidiary shall repay to the
Canadian Administrative Agent for the ratable account of the Canadian
Subsidiary Lenders the aggregate outstanding principal amount or face amount,
as the case may be, of its Borrowings consisting of Canadian Subsidiary
Advances on the Termination 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 Termination Date.
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(b) Letter of Credit Advances. 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.
SECTION 2.04. 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 Commitment and the
Unused Canadian Subsidiary 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 Subsidiary
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.
(i) On the date of receipt by AGCO or any of its
Restricted Subsidiaries of the Net Cash Proceeds from the sale, lease,
transfer or other disposition of any assets of AGCO or any of its
Restricted Subsidiaries, other than
(s) dispositions to joint ventures permitted
under Section 5.02(f)(vi),
(t) sales of assets in the ordinary course of
business,
(u) dispositions the Net Cash Proceeds of which
do not exceed U.S. $2,000,000 for any one disposition or
series of related dispositions,
(v) after the date on which the aggregate
Multi-Currency Commitments under the Multi- Currency Facility
shall be $900,000,000 or less, any dispositions, until and to
the extent the aggregate amount of Net Cash Proceeds therefrom
after such date do not exceed U.S. $20,000,000,
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(w) dispositions by a Restricted Subsidiary to
another Restricted Subsidiary or AGCO and dispositions by AGCO
to a Restricted Subsidiary,
(x) the disposition of AGCO's real property
located in Topeka, Kansas or of the former headquarters
building in Stoneleigh, England,
(y) the disposition of any capital stock of
Agricredit Acceptance Corporation and
(z) bulk sales of Receivables permitted under
Section 5.02(e)(v),
the aggregate amount of the Multi-Currency Facility and the Canadian
Subsidiary Facility shall be permanently reduced by the amount of 50%
of such Net Cash Proceeds, with each such facility being reduced by a
portion of such Net Cash 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 Subsidiary Lender's Canadian
Subsidiary Commitment shall be reduced ratably in accordance with the
proportion that such Commitment bore to the Canadian Subsidiary
Facility immediately before giving effect to such reduction.
(ii) The aggregate amount of the Multi-Currency Facility
and the Canadian Subsidiary Facility shall be permanently reduced by
the amount of any Excess Proceeds (or of what would be such Excess
Proceeds but for their application pursuant to Section 2.05(b)(iv)) in
existence on any date, 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 Subsidiary Lender's Canadian
Subsidiary Commitment shall be reduced ratably in accordance with the
proportion that such Commitment bore to the Canadian Subsidiary
Facility immediately before giving effect to such reduction.
(iii) On the date of receipt by AGCO or any of its
Restricted Subsidiaries of the Net Cash Proceeds from the sale or
issuance of any Debt or capital stock, the aggregate amount of the
Multi-Currency Facility shall be permanently reduced by the
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Net Cash Proceeds thereof, except that the aggregate amount of the
Multi- Currency Facility shall not be reduced by more than U.S.
$200,000,000 in the aggregate or below $900,000,000 pursuant to this
subsection (iii). Upon such reduction, 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.
(iv) On January 1, 1998, if the aggregate amount of the
Multi-Currency Commitments under the Multi- Currency Facility shall be
then be in excess of U.S. $1,000,000,000, such amount shall be reduced
to U.S. $1,000,000,000 and on January 1, 1999 if the aggregate amount
of the Multi-Currency Commitments under the Multi-Currency Facility
shall be then be in excess of U.S. $900,000,000, such amount shall be
reduced to U.S. $900,000,000. Upon each such reduction, 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.
(c) Letters of Credit. If on any date the aggregate
amount of the Multi-Currency Facility is less than U.S. $75,000,000 (or, if the
Letter of Credit Facility on such date is in a lesser amount, such lesser
amount), the amount of the Letter of Credit Facility and each Issuing Bank's
Letter of Credit Commitment automatically shall be reduced to such aggregate
amount, except that on no date shall the amount of the Letter of Credit
Facility be reduced below the then-outstanding Available Amount of all Letters
of Credit and the aggregate principal amount of all Letter of Credit Advances.
SECTION 2.05. Prepayments and Deposits. (a) Optional. A
Borrower may, upon at least two Business Days' notice to the Administrative
Agent stating the proposed date (which shall be a Business Day) and aggregate
principal amount of the prepayment, and if such notice is given such Borrower
shall, except as provided in the next- following sentence, prepay the
outstanding aggregate principal amount of the Advances, other than Bankers'
Acceptances, comprising part of the same Borrowing made by it, in whole or
ratably in part; provided that each partial prepayment shall be in an aggregate
principal amount of U.S. $5,000,000 or an integral multiple of U.S. $1,000,000
(or the Multi- Currency Equivalent) in excess thereof. A Borrower shall not be
required to prepay any amount as to which it shall have given a notice of
prepayment; provided that, if a Borrower shall have failed to prepay an Advance
as to which it shall have given a notice of prepayment, then, if such Advance
is a Eurocurrency Rate Advance, such Advance shall accrue interest from the
prepayment date specified in such notice of prepayment for the next following
three Business Days at 2% per annum in excess of the rate per annum at which
interest would accrue on a Eurocurrency Rate Advance with an Interest Period of
one month, beginning on such prepayment date, and from such third Business Day
shall have such Interest Period as such Borrower may specify in accordance with
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the provisions contained in the definition of "Interest Period" in Section 1.01
or, if it shall failed so to have specified an Interest Period, as provided in
Section 2.08(c).
(b) Mandatory.
(i) (A) On any date on which the Multi-Currency
Facility shall be reduced pursuant to Section 2.04(b), 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. 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.
(B) On any date on which the Canadian Subsidiary
Facility shall be reduced pursuant to Section 2.04(b), if the
Canadian Subsidiary Outstandings on such date shall exceed the
amount of the Canadian Subsidiary Facility after giving effect
to such reduction, the Canadian Subsidiary shall prepay
Canadian Subsidiary Advances or Letter of Credit Advances by
the Canadian Subsidiary Lenders in the aggregate principal
amount equal to such excess. Each such prepayment by the
Canadian Subsidiary shall be applied ratably to such Canadian
Subsidiary 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.
(ii) (A) If, on the last day of any Interest Period
for any Eurocurrency 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
(1) the aggregate principal amount of
such Eurocurrency Advance as to which such last date
shall have occurred or of such Base Rate Advance, and
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(2) such portion of such principal
amount as shall be the Multi-Currency Equivalent in
the currency of such Advances of such excess.
(B) On the last day of any Interest Period for
any Eurocurrency 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 Subsidiary Outstandings on such date shall
exceed 105% of the amount of the Canadian Subsidiary Facility
on such date, the Canadian Subsidiary shall prepay the lesser
of
(1) the aggregate principal amount of
such Eurocurrency Rate Advance to it as to which such
last day shall have occurred or the aggregate face
amount of such Bankers' Acceptance as to which such
last day shall have occurred or the aggregate
principal amount of such Base Rate Advance, and
(2) such portion of such principal
amount or face amount, as the case may be, as shall
be the Multi-Currency Equivalent in the currency of
such Advances of such excess.
(iii) (A) With respect to any determination of the
Borrowing Base in respect of a certificate delivered pursuant
to Section 5.03(n)(i), the Borrowers shall, on the 30th day
after the end of the fiscal quarter in respect of which such
certificate was delivered (or, if such day is not a Business
Day, the next-following Business Day) prepay an aggregate
principal amount of the Advances equal to the amount, if any
by which the Borrower Outstandings on such day shall exceed
the Borrowing Base as determined pursuant to such certificate.
(B) With respect to any determination of the
Borrowing Base in respect of a certificate delivered pursuant
to Section 5.03(n)(ii), the Borrowers shall, on the Business
Day next following the day on which such certificate shall be
delivered, prepay an aggregate principal amount of the
Advances equal to the amount, if any by which the Borrower
Outstandings on such day shall exceed the Borrowing Base as
determined pursuant to such certificate.
(C) The Borrowers shall, on any Business Day on
which Excess Proceeds exist (or would exist if not applied to
the prepayment provided herein), prepay an aggregate principal
amount of the Advances equal to such Excess Proceeds.
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Each such prepayment shall be applied ratably to such Advances forming
part of the same Borrowings or such Letter of Credit Advances pursuant
to draws on the same Letters of Credit as AGCO shall designate at the
time of such prepayment.
(iv) On the date on which the aggregate unpaid principal
amount of Eurocurrency Rate Advances comprising any Borrowing under
the Multi-Currency Facility shall be reduced, by payment or
prepayment, to less than U.S. $5,000,000, the Borrower owing such
Borrowing shall prepay such Advances in full.
(v) The Borrowers shall make such prepayments of
Multi-Currency Advances as are required by Sections 2.09(c)(ii),
(d)(ii), (e)(ii) and (f)(ii).
(vi) 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
Facility on such Business Day.
(c) Interest on Principal Amounts Prepaid. All
prepayments under this Section 2.05 shall be made together with
accrued interest to the date of such prepayment on the principal
amount prepaid.
SECTION 2.06. Interest. (a) Ordinary Interest. Each
Borrower shall pay interest on the unpaid principal amount of each Base Rate
Advance and Eurocurrency Rate Advance to it owing to each 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 Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at all times to
the Base Rate in effect from time to time, payable in arrears (A)
quarterly on the last day of each March, June, September, and December
during such periods, (B) on the date on which such Base Rate Advance
shall be paid in full and (C) on the Termination Date.
(ii) Eurocurrency Rate Advances. During such periods as
such Advance is a Eurocurrency Rate Advance, a rate per annum equal at
all times during each Interest Period for such Advance to the sum of
(x) the Eurocurrency Rate for such Interest
Period for such Advance, and
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(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 which such Advance
shall be paid in full and (D) on the Termination Date.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default under Section 6.01(a), and at the election of the
Required Lenders upon the occurrence and during the continuance of any other
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
(i) in the case of any Base Rate Advance, 2% per annum
above the rate per annum required to be paid on Base Rate Advances
pursuant to Section 2.06(a)(i) above;
(ii) in the case of any Eurocurrency Rate Advance
denominated in U.S. dollars, (A) until the end of the then-current
Interest Period, 2% per annum above the interest rate that would
otherwise be applicable pursuant to subsection (a)(ii) above, and (B)
thereafter, 2% per annum above the rate per annum required to be paid
on Base Rate Advances pursuant to Section 2.06(a)(i) above;
(iii) in the case of any Eurocurrency Rate Advance
denominated in an Alternate Currency, a rate per annum computed each
day and equal to 2% per annum above the rate per annum at which
interest would accrue on a Eurocurrency Rate Advance with an Interest
Period of one month beginning on such day; and
(iv) in the case of any outstanding Bankers' Acceptances,
2% per annum above the Base Rate applicable to Canadian Subsidiary
Borrowings.
SECTION 2.07. Fees. (a) 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 Subsidiary
Lenders a commitment fee computed each day, beginning on January 14, 1997, on
each Multi-Currency Lender's Unused Multi-Currency Commitment and each
Canadian Subsidiary Lender's Unused Canadian Subsidiary Commitment, from the
date hereof until the Termination Date, at the percentage
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rate per annum determined by reference to the Applicable Rating in effect as of
such date of determination, as set forth below:
==========================================
APPLICABLE RATING RATE
-----------------------------------------
>= A- 0.09%
-----------------------------------------
BBB+ 0.11%
-----------------------------------------
BBB 0.15%
-----------------------------------------
BBB- 0.20%
-----------------------------------------
Split Rating 0.25%
-----------------------------------------
BB+ 0.30%
-----------------------------------------
BB 0.35%
-----------------------------------------
< BB 0.50%
=========================================
(b) Agents' Fee. AGCO shall pay to the Agents for their
respective accounts the fees separately agreed between AGCO and each Agent.
(c) Payment of Fees. The fees and commission described
in this Section 2.07 and in Section 2.13(e)(i) and (ii) shall be payable in
arrears quarterly on the last Business Day of each March, June, September and
December, commencing March 31, 1997, and on the Termination Date.
SECTION 2.08. 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 2.09,
(x) 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
(y) the Canadian Subsidiary may Convert all or any
portion of the Canadian Subsidiary Advances or Multi-Currency Advances
(but not Letter of Credit Advances) of one Type comprising the same
Borrowing into Advances of another Type;
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provided that
(i) any Conversion of Eurocurrency 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
Eurocurrency Rate Advances; any Conversion of Base Rate Advances into
Eurocurrency 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 2.01; any Conversion of Advances by way of
Bankers' Acceptances into Base Rate Advances or Eurocurrency Rate
Advances shall be made only on the last day of the relevant Contract
Period; if less than all Advances by way of Bankers' Acceptances or
all Eurocurrency Rate Advances are Converted, after such Conversion,
not less than the relevant minimum amount specified in Section 2.01
shall continue as Advances by way of Bankers' Acceptances or
Eurocurrency Rate Advances, as the case may be;
(ii) 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 2.01 and all Lenders' Advances comprising the
Borrowing to be Converted in part shall be Converted ratably in
accordance with their applicable Pro Rata Shares;
(iii) 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 2.02(d), and no such Conversion of
any Advances may result in there being outstanding more separate
Borrowings than permitted under Section 2.02(d); and
(iv) no Advances may be Converted into Eurocurrency 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 Eurocurrency 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 Eurocurrency 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; if the
aggregate face amount of outstanding Bankers'
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Acceptances shall be reduced, by payment or prepayment or otherwise, to less
than Cdn. $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 Eurocurrency Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Appropriate Agent will forthwith so notify such Borrower and the
Appropriate Lenders, whereupon each such Eurocurrency Rate Advance will
automatically, on the last day of the then-existing Interest Period therefor,
(i) if it is an Advance denominated in U.S. dollars or
Canadian Dollars, Convert into a Base Rate Advance, and
(ii) if it is an Advance denominated in an Alternate
Currency (other than Canadian Dollars), be deemed to have an Interest
Period of one month.
(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" in Section 1.01, 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 2.09. 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 Eurocurrency 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 Subsidiary 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
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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 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 Subsidiary 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 Eurocurrency Rate Advances in
U.S. dollars or any Alternate 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 Eurocurrency Rate for any Interest
Period for such Advances in U.S. dollars or any Alternate Currency will not
adequately reflect the cost to such Lenders of making, funding or maintaining
their Eurocurrency 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
Eurocurrency 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 Alternate Currency is the affected currency,
the affected Borrower shall, on the last day of the then-existing
Interest Period, prepay in full such Eurocurrency Advances in the
affected currency; and
(iii) the obligation of the Appropriate Lenders to make
such Eurocurrency 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
Eurocurrency Lending Office to perform its obligations hereunder to make
Eurocurrency Rate Advances in U.S. dollars or any Alternate Currency or to
continue to fund or maintain such Eurocurrency 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
Eurocurrency 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 Alternate Currency other than Canadian Dollars and
(iii) each Eurocurrency 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.
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(e) During the continuance of any Event of Default, and
upon the election of the Required Lenders and during the continuance of any
Default,
(i) each Eurocurrency 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 Eurocurrency Rate
Advance in an Alternate Currency other than Canadian Dollars; and
(iii) the obligation of the Lenders to make Eurocurrency
Rate Advances and accept Bankers' Acceptances shall be suspended.
(f) If on any date either S&P or Xxxxx'x shall cease to
rate the senior, unsecured, long-term debt of AGCO, unless the Supermajority
Lenders consent otherwise,
(i) each Eurocurrency Rate Advance denominated in U.S.
dollars or Canadian Dollars will automatically, on the seventh
Business Day after such date, Convert into a Base Rate Advance and
each outstanding Bankers' Acceptance will automatically, on the later
of the seventh Business Day after such date and the last day of the
then-existing Contract Period therefor, Convert into a Base Rate
Advance;
(ii) the Borrowers will, on the seventh Business Day after
such date, prepay each Eurocurrency Rate Advance in an Alternate
Currency other than Canadian Dollars; and
(iii) the obligation of the Lenders to make Eurocurrency
Rate Advances and accept Bankers' Acceptances shall be suspended until
such time as S&P and Xxxxx'x both shall again rate such debt.
(g) 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 2.09 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
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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 2.10. Payments and Computations. (a) Each Borrower
shall make each payment hereunder and under the Notes free and clear of any
setoff or counterclaim 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
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 8.07(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
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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 commissions shall be made by the Appropriate Agent on the basis of a
year of 360 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
(i) computations of interest for Base Rate Advances, and
for fees and Letter of Credit commissions payable in Canadian dollars,
shall be made by the Administrative Agent on the basis of a year of
365 or 366 days, as applicable, and
(ii) each rate of interest on, and each fee and Letter of
Credit commission payable in respect of, Canadian Subsidiary Advances
that is calculated on the basis of a year of 360 days, shall be
determined pursuant to such calculation and expressed as an annual
rate for the purpose of the Interest Act (Canada) as equivalent to
such rate as so determined, multiplied by the actual number of days in
the calendar year in which the same is to be ascertained and divided
by 360.
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 Eurocurrency Rate Advances or of
face amounts of Bankers' Acceptances 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 the
Borrower prior to the date on which any payment is due to any Lender hereunder
that the Borrower will not make such payment in full, such Agent may assume
that the Borrower has made such payment in full to the such Agent on such date
and such Agent may, in reliance upon such assumption,
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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 the 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 2.11. Taxes. (a) Any and all payments by the
Borrowers hereunder or under the Notes shall be made, in accordance with
Section 2.10, 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 net
income taxes 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 (including the
country within which such state or jurisdiction is located) and, in the case of
each Lender, franchise taxes and net income taxes that are imposed on such
Lender by the state 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
2.11) 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").
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(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 2.11,
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 8.02, 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 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 acceptable 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 1001 or 4224, 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
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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 forms, as are reasonably requested by such Borrower and 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; provided 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 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 1001 or
4224 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 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) Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in this Section 2.11 shall survive the payment in full of
principal and interest hereunder and under the Notes.
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SECTION 2.12. 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
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 2.12
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 2.13. Letters of Credit. (a) The Letter of Credit
Facility. 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
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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
(x) in the case of any Letter of Credit issued for the
account of a Multi-Currency Borrower, the date of the initial
Borrowing, and
(y) in the case of any Letter of Credit issued for the
account of the Canadian Subsidiary, the date of this Agreement until
60 days before the Termination 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
either
(A) the aggregate Unused Multi-Currency Commitments on such Business Day,
or
(B) the excess, if any, of the Borrowing Base
over Borrower Outstandings 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 either
(A) the aggregate Unused Canadian Subsidiary Commitments on such Business
Day, or
(B) the excess, if any, of the Borrowing Base
over Borrower Outstandings 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 60
days before the Termination Date and, in the case of a Standby Letter of
Credit, one year after the date of issuance thereof, and, in the case of a
Trade Letter of Credit, 180 days 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 Facility, and subject to the limits referred to
above, the Borrower may request the issuance of Letters of Credit under this
Section 2.13(a), repay any Letter of Credit Advances resulting from
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drawings thereunder pursuant to Section 2.13(c) and request the issuance of
additional Letters of Credit under this Section 2.13(a).
On the date of the initial Borrowing hereunder, each Letter of
Credit issued under the Old Credit Agreement shall be deemed for all purposes,
as of such date, without further action by any Person, to have been issued
hereunder.
(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 telex, telecopier or
cable, confirmed immediately in writing, specifying therein
(A) the requested date of such issuance (which shall be a
Business Day);
(B) the requested Available Amount of such Letter of
Credit;
(C) the requested expiration date of such Letter of
Credit;
(D) the requested currency in which such Letter of Credit
shall be denominated, which shall be U.S. dollars or an Alternate
Currency; provided that no Borrower shall make a request for a Letter
of Credit in an Alternate 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;
(E) the requested name and address of the beneficiary of
such Letter of Credit; and
(F) 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,
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the Appropriate Issuing Bank will, upon fulfillment of the applicable
conditions set forth in Article III, make such Letter of Credit available to
the requesting Borrower at its office referred to in Section 8.02 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 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
(A) 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;
(B) 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
(C) 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, which shall
(A) 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
(B) in any other case, be a Eurocurrency Rate
Advance that bears interest at the rate per annum equal to the
rate per annum at which interest would accrue on a
Eurocurrency Rate Advance with an Interest Period of one month
beginning on the date of such draw.
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(ii) Upon the issuance of each Letter of Credit for the
account of a Multi-Currency Borrower, each Multi-Currency Credit
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 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, 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 Subsidiary Lender
(other than the Canadian Issuing Bank, if it is then a Canadian
Subsidiary 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 Subsidiary 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 Subsidiary 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, 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
Subsidiary 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
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(A) 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
(B) the first Business Day next succeeding such
demand if notice of such demand is given after such time.
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 Subsidiary
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");
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(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;
(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 Loan Party Guaranty or any other Guaranty, for all
or any of the Obligations of each Borrower in respect of the L/C
Related Documents; 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.
(e) Compensation. (i) Each Multi-Currency Borrower
shall pay to the Administrative Agent, for the account of the Multi-Currency
Lenders (which for purposes of this subsection (e) shall be deemed to include
each such Lender acquiring a participation in a Letter of Credit issued for the
account of a Multi-Currency Borrower pursuant to subsection (c) above) a
commission computed each day at a rate equal to the rate per annum equal to the
Applicable Margin on such day for Eurocurrency Rate Advances on the aggregate
Available Amount of all Letters of Credit outstanding and issued for such
Multi-Currency Borrower's account. Each such Lender's commission shall be
calculated by allocating to such Lender a portion of the total commission
determined ratably according to the proportion that such
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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 Subsidiary Lenders (which
for purposes of this subsection (e) shall be deemed to include each such Lender
acquiring a participation in a Letter of Credit issued for the account of the
Canadian Subsidiary pursuant to subsection (c) above) a commission computed
each day at a rate equal to the rate per annum equal to the Applicable Margin
on such day for Eurocurrency Rate Advances on the aggregate Available Amount of
all Letters of Credit outstanding and issued for the Canadian Subsidiary's
account. Each such Lender's commission shall be calculated by allocating to
such Lender a portion of the total commission determined ratably according to
the proportion that such Lender's Canadian Subsidiary Commitments bear to all
Canadian Subsidiary Lenders' Canadian Subsidiary Commitments.
(iii) The commissions specified in this subsection (e)
shall be payable as provided in Section 2.07(c).
(iv) Each Borrower also shall pay to the Appropriate
Issuing Bank, for its own account, such issuance fees, other commissions,
transfer fees and other fees and charges in connection with the issuance or
administration of each Letter of Credit as the Borrowers and such Issuing Bank
have separately agreed.
SECTION 2.14. Use of Proceeds. The proceeds of Advances to
the Borrowers shall be available (and AGCO agrees that it shall use such
proceeds) solely for the purpose of refinancing amounts owing under the Old
Credit Agreement and for general corporate purposes. Neither AGCO nor any
Borrowing Subsidiary will apply any such proceeds in violation of United States
law or any applicable foreign law.
SECTION 2.15. Replacement of a Bank. Subject to the second
and third paragraphs of this Section 2.15, if
(a) a Multi-Currency Lender requests compensation under
Section 2.09(a) or (b) or 2.11 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,
(b) a Canadian Subsidiary Lender requests compensation
under Section 2.09(a) or (b) or 2.11 and other Canadian Subsidiary
Lenders holding Commitments equal to at least one third of the
Canadian Subsidiary Facility shall not have made a similar request,
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(c) the obligation of a Lender to make Eurocurrency Rate
Advances or to Convert Base Rate Advances into Eurocurrency Rate
Advances shall be suspended pursuant to Section 2.09(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 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 8.07(a)(v)) and the payment to the Administrative Agent by AGCO on
behalf of such Replaced Lender of the assignment fee specified in Section
8.07(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 2.09, 2.11 and 8.04 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 2.15 with
respect to any Lender (i) unless its 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.
SECTION 2.16. 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.
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(b) Discount Rate. On each day on which Bankers'
Acceptances are to be accepted, the Canadian Administrative Agent shall advise
the Borrower as to the Canadian Administrative Agent's determination of the
Discount Rate.
(c) Purchase and Reimbursement of Bankers' Acceptances.
The Borrower shall sell, and each Canadian Subsidiary Lender shall purchase, at
the Discount Rate each Bankers' Acceptance accepted by it and to deliver the
Discount Proceeds less the Acceptance Fee to the Canadian Administrative Agent
for the relevant Borrower's Account in accordance with Section 2.02(a). The
Borrower will reimburse each Canadian Subsidiary 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
Subsidiary 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 Borrower 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 E
(or such other form as may be acceptable to the Canadian Administrative Agent)
executed and duly endorsed in blank by the Borrower, in quantities sufficient
for each of the Canadian Subsidiary Lenders to fulfill its obligations under
this Agreement. No Canadian Subsidiary 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 Borrower to provide duly executed and endorsed drafts to the
Canadian Administrative Agent on a timely basis nor shall the Canadian
Subsidiary 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 wilful misconduct of
the Canadian Subsidiary Lender, the Canadian Administrative Agent or their
respective employees.
(f) Execution of Bankers' Acceptances. Bills of exchange
drawn by the Borrower to be accepted as Bankers' Acceptances shall be signed by
a duly authorized officer or officers of the Borrower. Notwithstanding that
any Person whose signature appears on any Bankers' Acceptance may no longer be
an authorized signatory for the Borrower 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
Borrower.
(g) Issuance of Bankers' Acceptances. The Canadian
Administrative Agent, promptly following receipt of a notice of Advance by way
of Bankers' Acceptances, shall so
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advise the Canadian Subsidiary Lenders and shall advise each Canadian Subsidiary
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 Subsidiary Lenders). The aggregate face amount of the Bankers'
Acceptances to be accepted by a Canadian Subsidiary Lender shall be determined
by the Canadian Administrative Agent by reference to Section 2.01(b), except
that, if the face amount of a Bankers' Acceptance which would otherwise be
accepted by a Canadian Subsidiary Lender would not be Cdn. $100,000 or a whole
multiple thereof, such face amount shall be increased or reduced by the 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), two (2) Business Days
before the maturity date of such Bankers' Acceptances, the Borrower shall
notify the Canadian Administrative Agent by telex, telecopier or cable in
substantially the form of Exhibit B-3 hereto, if the Borrower 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 Borrower delivering such notice. If the Borrower fails to give such
notice, such maturing Bankers' Acceptances shall be converted on their 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 2.16(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
Borrower requests an 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
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(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 states that the Borrower shall prepay the
principal amount of Advances or any portion of the principal amount of
Advances, and such Advances are by way of Bankers' Acceptances and not BA
Equivalent Loans, such prepayment of such Advances shall mean that the Borrower
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 Subsidiary Lender's obligations in respect of such
Bankers' Acceptances on the applicable maturity date(s). The Borrower'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
Borrower.
(m) Rounding. The Canadian Administrative Agent is authorized by
the Canadian Subsidiary and each Canadian Subsidiary Lender to allocate among
the Canadian Subsidiary 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 Subsidiary Lender's allocation up or down, so as to ensure that no
Canadian Subsidiary Lender is required to accept a Bankers' Acceptance for a
fraction of Cdn. $100,000, and in such event, the respective Lenders' Pro Rata
Shares 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 Subsidiary Lender to cause the
proportionate share of one or more Lenders' Canadian Subsidiary Commitments to
be exceeded by not more than Cdn. $100,000 each as a result of such
allocations; provided that (a) the Canadian Subsidiary Outstandings shall not
thereby exceed the amount of the Canadian Subsidiary Facility and (b) no
Canadian Subsidiary Lender shall be required to make available an amount
greater than its Pro Rata Share of the Canadian Subsidiary Facility.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Borrowing. The
obligation of each Lender to make an Advance on the occasion of the initial
Borrowing under this Agreement (as in effect prior to its amendment and
restatement hereby) is subject to the following conditions precedent:
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(a) The Lenders shall be satisfied that, in connection
with the initial Borrowing hereunder, simultaneously with such initial
Borrowing, all amounts owing under the Old Credit Agreement shall have been
paid in full and all commitments to lend thereunder shall be terminated.
(b) 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, in the
sole judgment of any Lender,
(i) could have a Material Adverse Effect on AGCO or any
Subsidiary Guarantor or
(ii) 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
contemplated hereby.
(c) Each of the Lenders shall have completed a due
diligence investigation of AGCO and its Subsidiaries in scope, and with
results, satisfactory to each of the Lenders, and the results of such
investigation shall be acceptable to each of the Lenders in their sole
discretion.
(d) AGCO shall have paid to the Administrative Agent the
closing fee separately agreed to between AGCO and the Administrative Agent.
(e) 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 Lenders
(unless otherwise specified) and (except for the Notes) in sufficient copies
for each Lender:
(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
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Borrowing) 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
(A) such amendments are the only amendments to
such Person's charter on file in his office;
(B) such Person has paid all franchise taxes to the date of such
certificate; and
(C) 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 which certificate shall be true on and as of
the date of the initial Borrowing), certifying as to
(A) the absence of any amendments to the charter
of such Person since the date of the certificate referred to
in Section 3.01(e)(iii);
(B) a true and correct copy of the bylaws of such
Person as in effect on the date of the initial Borrowing; and
(C) 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.
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(vii) Guaranties duly executed by each Person specified in
Schedule 3.01(e)(vii) (each such Subsidiary of AGCO executing the same
being a "Subsidiary Guarantor"), each such Guaranty to be in form and
substance satisfactory to the Administrative Agent, and guaranteeing
the obligations specified in such Schedule.
(viii) Such financial, business and other information
regarding each Loan Party 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,
1995, of AGCO and its Restricted Subsidiaries and AGCO and its
Subsidiaries, respectively.
(ix) 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 Co-Managers 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 any Co-Manager 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
the 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.
(x) A favorable opinion of King & Spalding, counsel for
the Borrowers, in form and substance satisfactory to the Lenders.
(xi) A favorable opinion of Xxxxxxx Xxxxx, vice president
and general counsel of AGCO, in form and substance satisfactory to the
Lenders.
(xii) A favorable opinion of Xxxxxx Xxxxxx, in form and
substance satisfactory to the Lenders.
(xiii) A favorable opinion of Xxxxxxx Xxxxx, French counsel
to the Borrowers, in form and substance satisfactory to the Lenders.
(xiv) Such favorable opinions of XxXxxxxxx Ready, Canadian
counsel to the Borrowers, Hengeler Xxxxxx Xxxxxxx Xxxxx, German
counsel to the Borrowers, and
De Brauw Blackstone Westbroek, Netherlands counsel to the Borrowers,
and such other favorable opinions of counsel as any Co-Manager may
reasonably request, in form and substance satisfactory to the Lenders.
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(xv) A favorable opinion of Shearman & Sterling, counsel
for the Co-Managers, in form and substance satisfactory to the
Co-Managers.
(xvi) Evidence that AGCO has delivered to the trustee under
the Subordinated Debt Indenture a notice stating that this Agreement
and related instruments and documents are the "Bank Credit Agreement"
under such indenture.
(xvii) Such other approvals, opinions or documents as any
Lender may reasonably request.
(f) AGCO shall have paid all accrued fees and expenses of
the Agents, the Co-Managers and the Lenders (including the accrued fees and
expenses of counsel to the Co-Managers) that have theretofore been invoiced.
SECTION 3.02. 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 any such
representations or warranties that, by their terms, refer to a date
other than the date of such Borrowing or issuance;
(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 2.01(a), if
such Borrowing is a Multi-Currency Borrowing, or Section 2.01(b), if
such Borrowing is a Canadian Subsidiary Borrowing.
SECTION 3.03. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified in Section
3.01, each Lender shall be
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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.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrowers. Each Borrower represents and warrants as of the date of this
Agreement (as amended and restated) as follows:
(a) AGCO
(i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation;
(ii) is duly qualified and in good standing 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
(iii) has all requisite corporate power and authority to
own or lease and operate its properties and to carry on its business
as now conducted and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) (or, for purposes of
Section 3.02(a), the most recently delivered replacement for such Schedule, if
any, delivered pursuant to Section 5.03(p) (other than, for purposes of Section
3.02(a), Dormant Subsidiaries)) is a complete and accurate list of all
Subsidiaries of AGCO, showing as of the date hereof (as to each such
Subsidiary) the jurisdiction of its incorporation, the number of shares of each
class of capital 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.
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All of the outstanding capital 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 AGCO or one or more of
its Subsidiaries free and clear of all Liens, except for Liens permitted under
Section 5.02(a)(ix). Each Restricted Subsidiary
(i) is a corporation duly organized, validly existing and
(if not a Foreign Subsidiary) in good standing under the laws of the
jurisdiction of its incorporation;
(ii) is duly qualified and in good standing 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
(iii) has all requisite corporate power and authority to
own or lease and operate its properties and to carry on its business
as now conducted and as proposed to be conducted.
Also set forth on Schedule 4.01(b) (or, for purposes of
Section 3.02(a)(i), the most recently delivered replacement for such Schedule,
if any, delivered pursuant to Section 5.03(q)) is a complete and accurate list
of all joint ventures of AGCO and/or any of its Subsidiaries and any third
Person showing as of the date hereof (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 capital 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.
(c) 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 consummation of the
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 law (including without limitation the
Securities Exchange Act of 1934, 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), rule, regulation
(including without limitation Regulation X of the Board of Governors
of the Federal Reserve System), order, writ, judgment, injunction,
decree, determination or award;
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(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; or
(iv) 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.
Neither AGCO nor any of its Subsidiaries is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
or in breach of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the violation or breach of which is
reasonably likely to have a Material Adverse Effect.
(d) 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 contemplated
hereby; or
(ii) the exercise by either Agent or any Lender of its
rights under the Loan Documents.
(e) 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 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 party thereto, enforceable
against such Loan Party in accordance with its terms.
(f) The consolidated balance sheets of AGCO and its
Restricted Subsidiaries and of AGCO and its Subsidiaries, respectively, as at
December 31, 1995 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
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its Subsidiaries, respectively, for the period ended on such date, all in
accordance with GAAP applied on a consistent basis, and since December 31, 1995,
there has been no Material Adverse Effect.
(g) 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, other than
statements or omissions corrected in writings delivered to the Co-Managers
prior to the date of execution hereof.
(h) 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 that
(i) would be reasonably likely to have a Material Adverse
Effect, or
(ii) 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.
(i) No proceeds of any Advance will be used directly to
acquire any equity security of a class that is registered pursuant to Section
12 of the Securities Exchange Act of 1934.
(j) 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 might 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) All Borrowings under this Agreement will be "Senior
Indebtedness", as defined in the Subordinated Debt Indenture. This Agreement
and all related instruments and documents are the "Bank Credit Agreement", as
defined in the Subordinated Debt Indenture.
(l) 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.
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(m) 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 since the date of such Schedule B there
has been no material adverse change in such funding status.
(n) 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 could result in a Material Adverse
Effect.
(o) 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 could result in a
Material Adverse Effect.
(p) Neither the business nor the properties of AGCO or
any of its Subsidiaries are affected by any fire, explosion, accident, strike,
lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act
of God or of the public enemy or other casualty (whether or not covered by
insurance) that would be reasonably likely to have a Material Adverse Effect.
(q) The operations and properties of AGCO and each of its
Subsidiaries comply in all material respects with all Environmental Laws, all
necessary Environmental Permits have been obtained and are in effect that are
material to the operations and properties of AGCO and its Subsidiaries, AGCO
and its Subsidiaries are in compliance in all material respects with all such
Environmental Permits, and no circumstances exist that would be reasonably
likely to
(i) form the basis of an Environmental Action against any
Loan Party or any of its Subsidiaries or any their properties that
could have a Material Adverse Effect or
(ii) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law that could have a Material Adverse Effect.
(r) None of the properties of AGCO or any of its
Subsidiaries is listed or proposed for listing on the National Priorities List
under CERCLA.
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(s) (i) Neither AGCO nor any of its Subsidiaries has
transported or arranged for the transportation of any Hazardous
Materials to any location that is listed or proposed for listing on
the National Priorities List under CERCLA;
(ii) to the best of AGCO's knowledge, Hazardous Materials
have not been generated, used, treated, handled, stored or disposed of
on, or released or transported
to or from, any property of AGCO or any of its Subsidiaries, in an
amount that would require remediation in accordance with applicable
environmental laws; and
(iii) all other wastes generated at any such properties
have been disposed of in compliance in all material respects with all
applicable Environmental Laws and Environmental Permits,
except to the extent that such transportation, generation, use, treatment,
handling, storage, disposition or release would not result in a Material
Adverse Effect.
(t) Neither AGCO nor any of its Subsidiaries is a party
to any indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter or corporate restriction that would be
reasonably likely to have a Material Adverse Effect.
(u) 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 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 returns required to be filed and has paid all taxes
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 has attached to its property or become enforceable against its
other creditors.
(v) Set forth on Schedule 4.01(v) 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.
(w) 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. No issues have been raised by the Internal
Revenue Service in respect of any such year that, in the aggregate, would be
reasonably likely to have a Material Adverse Effect.
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(x) The aggregate unpaid amount, as of the date hereof,
of adjustments to the state, local and foreign tax liability of AGCO and its
Subsidiaries proposed by all state, local and foreign taxing authorities (other
than amounts arising from adjustments to Federal income tax returns) does not
exceed U.S. $1,000,000. No issues have been raised by such taxing authorities
that, in the aggregate, would be reasonably likely to have a Material Adverse
Effect.
(y) 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 the 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.
(z) Set forth on Schedule 4.01(z) hereto is a complete
and accurate list as of the date hereof of all Debt of AGCO and its
Subsidiaries, showing as of the date hereof the principal amount outstanding
thereunder. There are no Liens on property of AGCO or any of its Restricted
Subsidiaries, other than Liens permitted under the Old Credit Agreement, Liens
approved or consented to by the lenders under the Old Credit Agreement and
other Liens that are immaterial, individually or in the aggregate.
ARTICLE V
COVENANTS OF AGCO
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
shall have any Commitment hereunder, AGCO will, unless the Required Lenders
shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Except as provided in
Subsection (c), comply, and cause each of its Subsidiaries to comply, in all
material respects, with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, 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.
(b) Payment of Taxes, Etc. Pay and discharge, and cause
each of its Subsidiaries to pay and discharge, before the same shall become
delinquent,
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(i) all Federal and foreign income taxes, all state
income taxes in jurisdictions where a tax Lien could be imposed on any
assets of AGCO or any of its Restricted Subsidiaries, and all other
material income and other taxes, assessments and governmental charges
or levies imposed upon it or upon its property, and
(ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property;
provided that neither AGCO nor any of its Subsidiaries shall be required to pay
or discharge any such tax, assessment, charge or claim that is being contested
in good faith by appropriate proceedings promptly initiated and diligently
pursued and for which reserves or other appropriate provisions required by GAAP
shall have been established, unless and until any Lien resulting therefrom
attaches to its property and becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. 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 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, where the failure
to do the same could reasonably be expected to result in a Material Adverse
Effect.
(d) Maintenance of Insurance. 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. Such insurance may be subject to (A) insurance
by Affiliates of AGCO or similar clauses that so long as such self insurance is
in an amount no greater than U.S. $25,000,000 and 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.
(e) Preservation of Corporate Existence, Etc. Except as
otherwise permitted by this Agreement, preserve and maintain, and cause each of
its Restricted Subsidiaries to 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
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any right or franchise if the Board of Directors of AGCO or such Restricted
Subsidiary shall determine, and no Restricted Subsidiary (other than a Borrowing
Subsidiary) shall be required to preserve and maintain its corporate existence
if the Board of Directors of AGCO determines, 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 the Borrower, such
Restricted Subsidiary or the Lenders.
(f) Visitation Rights. At any reasonable time and from
time to time, permit
(i) the Agents, any Co-Manager and (while any Default
shall have occurred and be continuing) any of the Lenders, and
(ii) if no Default shall have occurred and be continuing,
any of the Lenders on reasonable request,
or any agents or representatives thereof, to examine and make copies of and
abstracts from the records and books of account of, and visit the properties
of, AGCO and any of its Subsidiaries and to discuss the affairs, finances and
accounts of AGCO and any of its Subsidiaries with any of their officers or
directors and with their independent certified public accountants. The Lenders
will use reasonable efforts to coordinate with AGCO and the Co-Managers such
examination, copying, visits, examinations and discussions to limit any
inconvenience to AGCO and its Subsidiaries.
(g) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of AGCO and each such Subsidiary in accordance with GAAP (or the
foreign equivalent) in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and
preserve, and cause each of its Restricted Subsidiaries to maintain and
preserve, all of its properties that are used or useful in, and material to,
the conduct of its business in good working order and condition, ordinary wear
and tear excepted.
(i) Qualification in New York. At all times remain
qualified as a foreign corporation entitled to do business in the State of New
York.
(j) Performance of Material Contracts. 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.
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(k) Transactions with Affiliates. Conduct, and cause
each of its Restricted Subsidiaries to conduct, all transactions otherwise
permitted under the Loan Documents with any of their Affiliates (other than
transactions between AGCO and its Restricted Subsidiaries) (i) in accordance
with current practice, or (ii) on terms that are fair and reasonable and no
less favorable to AGCO or such Restricted Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate.
(l) 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, cause each wholly owned Foreign
Subsidiary that shall not previously have delivered a Loan Party Guaranty to
execute and deliver to the Lenders a Loan Party Guaranty substantially in the
form of an Exhibit hereto, with such changes as the
Administrative Agent may reasonably request, guarantying the obligations of
AGCO hereunder and under the other Loan Documents.
SECTION 5.02. Negative Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
shall have any Commitment hereunder, AGCO will not, at any time, without the
written consent of the Required Lenders or, if required under Section 8.01, of
all of the Lenders:
(a) Liens, Etc. 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 with the consent of the Administrative Agent in
connection with a refinancing of this Agreement in its entirety, (x) sign or
file, or permit any of its Restricted Subsidiaries to sign or file, under the
Uniform Commercial Code of any jurisdiction (or any similar law of any
jurisdiction outside the United States), a financing statement that names AGCO
or any of its Restricted Subsidiaries as debtor, or (y) sign, or permit any of
its Restricted Subsidiaries to sign, any security agreement authorizing any
secured party thereunder to file such financing statement, or assign, or permit
any of its Restricted Subsidiaries to assign, any accounts or other right to
receive income, excluding, however, from the operation of the foregoing
restrictions the following:
(i) Permitted Liens;
(ii) (A) Liens permitted under or approved or consented to
by the lenders under the Old Credit Agreement (other than Liens
described in clause (i), (ii)(B) or (iii) through (x) inclusive of
this subsection (a)) and (B) other Liens existing on the date hereof
that individually do not secure Debt in an aggregate principal amount
in excess of U.S. $100,000 or in the aggregate secure Debt in an
aggregate principal amount in excess of U.S. $1,000,000;
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(iii) purchase money Liens upon or in property acquired or
held by AGCO or any of its Restricted Subsidiaries to secure the
purchase price of such property or to secure Debt permitted under
Section 5.02(b)(v) incurred solely for the purpose of financing the
acquisition, construction or improvement of any such property to be
subject to such Liens, or Liens existing on any such property at the
time of acquisition, or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount;
provided that no such Lien shall extend to or cover any property other than the
property being acquired, constructed or improved, and no such
extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended, renewed
or replaced;
(iv) the replacement, extension or renewal of any Lien
permitted by clause (iii) above upon or in the same property
theretofore subject thereto or the
replacement, extension or renewal (without increase in the amount or
change in any direct or contingent obligor) of the Debt secured
thereby;
(v) Liens existing on the property of a person
immediately prior to its being merged into AGCO or a Restricted
Subsidiary or its becoming 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 merger or
such Person's becoming a Restricted Subsidiary or such acquisition of
property; and provided further 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;
(vi) Liens on cash securing reimbursement obligations in
respect of letters of credit issued under facilities permitted under
subsection (b)(vii) below, so long as the aggregate undrawn amount
thereunder at any time outstanding does not exceed U.S. $15,000,000,
and any such Liens securing obligations under this Agreement;
(vii) a deed to secure debt on the property on which AGCO's
headquarters are located in Duluth, Georgia and a mortgage or other
Lien on AGCO's Coldwater, Ohio facility in favor of an agency of the
State of Ohio;
(viii) Liens on Receivables sold pursuant to a
securitization facility permitted under Section 5.02(e)(v) that, in
either case, nevertheless would appear as Receivables on a balance
sheet of AGCO and its Restricted Subsidiaries;
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(ix) precautionary financing statements filed by lessors
with respect to equipment leases under which AGCO or a Restricted
Subsidiary is lessee.
(b) Debt. Create, incur, assume or suffer to exist, or
permit any of its Restricted Subsidiaries to create, incur, assume or suffer to
exist, any Debt other than:
(i) Debt under the Loan Documents;
(ii) Debt of AGCO, a Borrowing Subsidiary or a Subsidiary
Guarantor subordinated to the Advances on terms and conditions
acceptable to each Co-Manager and the Required Lenders in their sole
discretion;
(iii) in the case of AGCO,
(A) Convertible Subordinated Debentures outstanding on the date hereof, and
(B) Debt issued under the Subordinated Debt Indenture outstanding on the
date hereof;
(iv) in the case of any of the Restricted Subsidiaries,
Debt owed to AGCO or to a Wholly Owned Restricted Subsidiary of AGCO
and, in the case of AGCO, Debt owed to any Wholly Owned Restricted
Subsidiary that is subordinated to the Advances on terms and
conditions acceptable to each Co-Manager and the Required Lenders in
their sole discretion;
(v) Debt incurred in the ordinary course of business for
the deferred purchase price of property or services and secured by
Liens permitted under subsection (a)(iii) above, so long as, after
giving effect to the incurrence thereof, the aggregate principal
amount of such Debt incurred by AGCO and its Restricted Subsidiaries
then outstanding, on a Consolidated basis, does not exceed U.S.
$25,000,000 (or the Multi-Currency Equivalent thereof);
(vi) the Debt outstanding on the date hereof (other than
Debt outstanding under the Old Credit Agreement or described in clause
(iii) above) under the terms with respect thereto in effect as of the
date hereof, and any Debt extending the maturity of, or refunding or
refinancing, in whole or in part, any such Debt, provided that the
terms of any such extending, refunding or refinancing Debt, and of any
agreement entered into and of any instrument issued in connection
therewith, are otherwise permitted by the Loan Documents and further
provided that the principal amount of such Debt shall not be increased
above the principal amount thereof outstanding
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immediately prior to such extension, refunding or refinancing, and the
direct and contingent obligors therefor shall not be changed, as a
result of or in connection with such extension, refunding or
refinancing;
(vii) overdraft and ancillary facilities that are unsecured
(except for Liens permitted under subsection (a)(vi) above), so long
as the aggregate principal amount of Debt of AGCO and its Restricted
Subsidiaries outstanding thereunder, on a Consolidated basis, on any
date of determination, does not exceed U.S. $50,000,000 (or the
Multi-Currency Equivalent thereof), minus the aggregate principal
amount of Debt outstanding on such date and incurred pursuant to
clause (xii) below;
(viii) Debt in an aggregate principal amount not exceeding
(A) U.S. $50,000,000 (or the Multi-Currency
Equivalent thereof) of Xxxxxx Xxxxx GmbH & Company that is
unsecured and is issued and outstanding on the date on which
such Person becomes a Restricted Subsidiary, and
(B) U.S. $1,000,000 (or the Multi-Currency
Equivalent thereof) of any other Restricted Subsidiary issued
and outstanding on or prior to the date on which such
Restricted Subsidiary was acquired by AGCO (other than Debt
issued as consideration in, or to provide all or any portion
of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to
which such Restricted Subsidiary became a Restricted
Subsidiary or was acquired by AGCO), but only so long as the
aggregate principal amount of all Debt incurred pursuant to
this clause (B) and outstanding on any date does not exceed
U.S. $5,000,000 (or the Multi-Currency Equivalent thereof);
(ix) indorsements of negotiable instruments in the
ordinary course of business;
(x) Debt of AGCO not exceeding $10,000,000 in aggregate
principal amount secured by a Lien permitted under subsection (a)(vii)
above;
(xi) in the case of any Borrower, Debt outstanding under
the Old Credit Agreement, so long as all such Debt is repaid as of the
date of the initial Borrowing hereunder or otherwise is no longer an
obligation of any Borrower as of such date;
(xii) Debt consisting of Guaranties permitted under
subsection (f) below (other than clause (xiv) thereof).
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Notwithstanding clauses (i) through (xiii) inclusive above, the Borrowers shall
not incur any Debt pursuant to clause (i) of the second paragraph of Section
4.03 of the Subordinated Debt Indenture (or that would be incurred pursuant to
such clause if Section 4.03 were then applicable under Section 4.20 of the
Subordinated Debt Indenture), other than
(x) Debt outstanding under this Agreement, and
(y) if the aggregate amount of the Multi-Currency
Commitments and the Canadian Subsidiary Commitments shall have been
reduced (other than pursuant to Section 4.10 of such indenture), Debt
in an aggregate principal amount not exceeding the amount of such
reduction.
(c) Sale-Leasebacks. 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
(i) 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
(ii) 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.
(d) Mergers, Etc. 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
(i) any Restricted Subsidiary of AGCO may merge into or
consolidate with any other Restricted Subsidiary of AGCO, but only if
(A) in the case of any such consolidation, the
Person formed by such consolidation shall be a Restricted
Subsidiary of AGCO, and
(B) if a Loan Party (x) is not the surviving
corporation of any such merger, 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;
(ii) any of AGCO's Restricted Subsidiaries may merge into
AGCO so long as AGCO is the surviving corporation; and
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(iii) any other Person (other than a Subsidiary of AGCO
that is not a Restricted Subsidiary) may merge into AGCO or any of its
Restricted Subsidiaries so long as AGCO or such Restricted Subsidiary
is the surviving corporation;
provided that in each case, immediately after giving effect thereto, no event
shall occur and be continuing that constitutes a Default.
(e) Sales of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Restricted Subsidiaries to sell, lease,
transfer or otherwise dispose of, any assets, including without limitation
substantially all assets constituting the business of a division, branch or
other unit operation, other than Inventory sold in the ordinary course of its
business, except
(i) sales, licenses and other dispositions of assets in
the ordinary course of its business;
(ii) in a transaction authorized by subsection (d) above;
(iii) the sale of any asset by AGCO or any Restricted
Subsidiary (other than a bulk sale of Inventory and a sale of
Receivables other than delinquent accounts for collection purposes
only) so long as
(A) the purchase price paid to AGCO or such
Restricted Subsidiary for such asset shall be no less than the
fair market value of such asset at the time of such sale;
(B) the purchase price for such asset (and all
assets sold in related transactions) shall be paid to AGCO or
such Restricted Subsidiary either (i) solely in cash or by way
of the assumption of liabilities of AGCO or such Restricted
Subsidiary, or (ii) solely in the form of assets (A) that are
not Investments and (B) the aggregate fair-market value of
which, as determined in good faith by the Board of Directors
of AGCO, is equal to the aggregate fair-market value of the
assets sold;
(C) 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,
(1) shall not exceed U.S. $25,000,000
in the aggregate for such transaction and all related
transactions, or
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(2) together with the aggregate purchase
prices (including any portions thereof in respect of
an assumption of liabilities of AGCO or any
Restricted Subsidiary) paid to AGCO or any Restricted
Subsidiary for all such sales of assets after the
date of this Agreement, shall not exceed 10% of
Consolidated Tangible Net Worth as of the last day of
the fiscal quarter of AGCO immediately preceding such
sale; and
(D) the Borrowers shall, on the date of such
sale, if required by Section 2.05(b)(i) or (ii), make any
prepayment required by such Section;
(iv) so long as no Default shall occur and be continuing,
the grant of any option or other right to purchase any asset in a
transaction which would be permitted under the provisions of clause
(iii) above;
(v) sales of Receivables to a third party under a
securitization facility pursuant to a program approved by the Required
Lenders;
(vi) transfers of assets between Restricted Subsidiaries
and to AGCO; and
(vii) dispositions of cash to make Investments permitted
under subsection (f) below.
(f) Investments, Guaranties, Etc. Make or hold, or
permit any of its Restricted Subsidiaries to make or hold, any Investment in,
or enter into a Guaranty of any Obligation of, any Person other than
(i) (A) Investments in Restricted Subsidiaries
existing on the date hereof, and
(B) Investments by AGCO and its Wholly Owned
Restricted Subsidiaries in any Restricted Subsidiary at least
51% of all classes and series of stock, interests in capital
or profits and beneficial interests of which are owned by AGCO
and/or by one or more Wholly Owned Restricted Subsidiaries
(other than Financial Services Insurance Company of
Tennessee); provided that no Investments shall be made
pursuant to this clause (i) while a Default has occurred and
is continuing;
(ii) Investments after the date hereof (in addition to any
Investment permitted under clause (i) above or clauses (iii) through
(v) below) by AGCO and its
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Restricted Subsidiaries in any Person (other than Financial Services
Insurance Company of Tennessee)
(x) at least 5% of all classes and series of
stock, interests in capital or profits and beneficial
interests of which are owned by AGCO and/or by one or more
Wholly Owned Restricted Subsidiaries, and
(y) that is solely engaged in businesses that are
related, ancillary or complementary to the business of AGCO
and its Restricted Subsidiaries as of the date hereof,
the sole consideration for which consists of Common Stock of AGCO
and/or cash consideration not exceeding in the aggregate, on the date
of any such Investment,
(A) the sum of
(1) U.S. $50,000,000 (or the Multi-Currency Equivalent thereof), and
(2) 50% of Consolidated Net Income for
the period beginning January 1, 1995 and ending at
the end of the fiscal quarter immediately preceding
the date of such Investment, minus
(B) the aggregate amount of any dividends paid by
AGCO pursuant to subsection (g)(i)(B) below prior to the date
of such Investment, minus
(C) the aggregate amount of any cash Investments
then outstanding and made pursuant to clause (v);
provided that no Investments shall be made pursuant to this clause
(ii):
(I) while a Default has occurred and is
continuing,
(II) in the case of any such Investment in any
Person that has equity securities of any class that is
registered pursuant to Section 12 of the Securities Exchange
Act of 1934, at least five Business Days prior to the date of
such Investment, AGCO shall have notified each Lender of the
type and amount of such Investment and the issuer of such
equity securities and shall have certified that such
Investment will not result in a breach of the representation
and warranty contained in Section 4.01(i) or
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(III) in a Finance Subsidiary if a default has
occurred and is continuing under any credit or loan agreement
or similar facility to which such Finance Subsidiary is a
party or under any Debt of such Finance Subsidiary;
(iii) Investments by AGCO and its Restricted Subsidiaries
in joint ventures outstanding as of the date hereof and specified in
Schedule 4.01(b);
(iv) other Investments in joint ventures approved by the
Required Lenders;
(v) Investments in capital stock and other equity
interests in Persons (other than Financial Services Insurance Company
of Tennessee), in addition to those permitted under clauses (i)
through (iv) inclusive above, but only so long as
(A) the aggregate amount of such Investments
outstanding on the date of any such Investment does not exceed
U.S. $25,000,000 (or the Multi-Currency Equivalent thereof),
(B) the amount of any such Investment does not
exceed the aggregate amount of any additional Investments that
could be made under clause (ii) above on the date of such
Investment,
(C) in the case of any such Investment in any
Person that has equity securities of any class that is
registered pursuant to Section 12 of the Securities Exchange
Act of 1934, if, after giving effect to such Investment, the
aggregate amount of all Investments by AGCO and the Restricted
Subsidiaries in such Person would exceed US $10,000 (or the
Multi-Currency Equivalent thereof), at least five Business
Days prior to the date of such Investment, AGCO shall have
notified each Lender of the type and amount of such Investment
and the issuer of such equity securities and shall have
certified that such Investment will not result in a breach of
the representation and warranty contained in Section 4.01(i),
(D) at the time of such Investment, no Default shall have occurred and be
continuing and
(E) AGCO and its Restricted Subsidiaries shall
not own in the aggregate 5% or more of any class or series of
stock, interests in capital or profits or beneficial interests
of any Person in which an Investment is made pursuant this
clause (v);
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(vi) Investments received in settlement of Debt of third
parties created in the ordinary course of business;
(vii) Investments by AGCO and its Restricted Subsidiaries
in Cash Equivalents and in Hedge Agreements;
(viii) the indorsement of negotiable instruments in the
ordinary course of business;
(ix) Investments by AGCO and its Restricted Subsidiaries
in Financial Services Insurance Company of Tennessee in cash in an
aggregate amount invested not to exceed, on a Consolidated basis, U.S.
$5,000,000 at any one time outstanding;
(x) advances to officers and employees of AGCO or any of
its Restricted Subsidiaries in the ordinary course of business for
travel and entertainment expenses;
(xi) Guaranties required to be delivered pursuant to
Section 3.01(e)(vii), 5.01(l) or 5.02(l);
(xii) Investments in Agricredit Acceptance Corporation,
Xxxxxx Xxxxxxxx Finance Ltd., Xxxxxx Xxxxxxxx France SNC and Xxxxxx
Xxxxxxxx Finanzierung G.m.b.H. in existence on the date hereof;
(xiii) Guaranties by AGCO of (A) the hedging and
foreign-exchange arrangements that any Subsidiary may enter into with
any financial institution, (B) dealer lines of credit in an aggregate
principal amount at any one time outstanding not exceeding U.S.
$50,000,000 in favor of any Restricted Subsidiary conducting business
in Brazil and (C) Indebtedness of Xxxxxx Xxxxx GmbH & Company
permitted under subsection (b)(viii)(A) above;
(xiv) Guaranties permitted under subsection (b) above
(other than clause (xiii) thereof);
(xv) Guaranties of obligations (other than obligations
constituting Debt) of any Subsidiary incurred in the ordinary course
of such Subsidiary's business; and
(xvi) securities received in settlement of bankruptcy
claims.
(g) Dividends, Etc. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any of its
capital stock or any warrants, rights or options to acquire such capital stock,
now or hereafter outstanding, return any capital to its
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stockholders as such, make any distribution of assets, capital stock, warrants,
rights, options, obligations or securities to its stockholders as such or permit
any of its Restricted Subsidiaries to purchase, redeem, retire, defease or
otherwise acquire for value any capital stock of AGCO or any warrants, rights or
options to acquire such capital stock, except that
(i) so long as no Default shall have occurred and be
continuing, AGCO may
(A) declare and deliver dividends and
distributions payable only in, or convert any preferred stock
into, Common Stock of AGCO, and
(B) declare and pay cash dividends to its
stockholders and purchase, redeem, retire or otherwise acquire
shares of its own outstanding capital stock for cash so long
as the aggregate amount thereof does not exceed
(1) 50% of Consolidated Net Income for
the period beginning January 1, 1995 and ending at
the end of the fiscal quarter immediately preceding
such declaration or payment, minus
(2) the aggregate amount of any cash
Investments then outstanding and made pursuant to
subsection (f)(ii) above in excess of U.S.
$50,000,000;
(ii) AGCO may acquire shares of its capital stock to
eliminate fractional shares; provided that the aggregate amount paid
by AGCO pursuant to acquisitions under this clause (ii) after the date
of this Agreement shall not exceed U.S. $20,000,000.
Any dividend permitted under this Subsection (g) on the date of its declaration
may continue to be paid notwithstanding any subsequent change; provided that
any dividend shall be paid within 90 days after its declaration.
(h) Change in Nature of Business. Engage, or permit any
of its Restricted Subsidiaries (including without limitation any Persons
becoming Restricted Subsidiaries after the date hereof) to engage in any
business that is not related, ancillary or complementary to the business of
AGCO and its Restricted Subsidiaries as of the date hereof.
(i) Charter Amendments. Amend, or permit any of its
Restricted Subsidiaries to amend, its charter, bylaws or similar constituent
documents that would have a Material Adverse Effect.
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(j) Prepayments, Etc. of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of, or amend, modify or supplement in
any way, any subordination terms of, any Debt, other than
(i) the prepayment of the Advances in accordance with the
terms of this Agreement;
(ii) payments and prepayments of Debt outstanding under
any overdraft facility permitted under subsection (b)(viii) above;
(iii) regularly scheduled or required repayments or
redemptions of Debt outstanding on the date hereof;
(iv) regularly scheduled payments in respect of New
Subordinated Debt (to the extent such payment is not contrary to the
terms of subordination thereof);
(v) payments and prepayments of Debt owed by (A) AGCO to
any Restricted Subsidiary (other than a Foreign Subsidiary), (B) any
Restricted Subsidiary to AGCO, and (C) any Restricted Subsidiary to
another Restricted Subsidiary (other than a Foreign Subsidiary); and
(vi) the prepayment of the Debt outstanding under the Old
Credit Agreement;
or amend, modify or change in any manner any term or condition (including
without limitation any financial covenant) of any such Debt, or permit any of
its Restricted Subsidiaries to do any of the foregoing (other than to prepay
any Debt payable to AGCO); or cancel, forgive or modify in any respect
materially adverse to AGCO or the Lenders any Debt owing by a Subsidiary to
AGCO or another Subsidiary.
(k) Restrictions on Dividends. 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 Debt owing by any Restricted Subsidiary of AGCO to AGCO or another
Subsidiary of AGCO, other than (i) restrictions imposed under an agreement for
the sale of all of the capital 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, and (ii) restrictions in any agreement with another Person relating
to a joint venture conducted through a Subsidiary of AGCO in
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which such Person is a minority stockholder requiring the consent of such Person
to the payment of dividends.
(l) New Subsidiaries. Acquire, or permit any of its
Restricted Subsidiaries to acquire, any new Subsidiary, or permit any Dormant
Subsidiary to cease to meet the conditions necessary to qualify as a Dormant
Subsidiary hereunder, unless such new Subsidiary or Dormant Subsidiary (if
other than a Finance Subsidiary) shall have executed and delivered to the
Administrative Agent a Loan Party Guaranty in form and substance satisfactory
to the Administrative Agent of any or all Loan Parties' obligations hereunder
and under the other Loan Documents, as determined by the Administrative Agent;
provided that, subject to Section 5.01(l), no Foreign Subsidiary shall be
required to guaranty the obligations of any Subsidiary that is not a Foreign
Subsidiary.
(m) Issuance or Sales of Stock. Either
(i) sell, assign or otherwise transfer, or permit any of
its Restricted Subsidiaries to sell, assign or otherwise transfer, any
capital stock of any Restricted Subsidiary owned at any time after the
date hereof, or
(ii) permit any Restricted Subsidiary to issue or sell any
shares of its capital stock, except
(A) to qualify directors of Subsidiaries where
required by applicable law or to satisfy other requirements of
applicable law with respect to the ownership of capital stock
of Subsidiaries incorporated in jurisdictions outside of the
United States of America, and
(B) issuances and sales of capital stock by
Wholly Owned Restricted Subsidiaries to AGCO or other Wholly
Owned Subsidiaries of AGCO permitted by subsection (f)(ii)
above,
except that AGCO or any Restricted Subsidiary may so transfer, issue
or sell such capital stock or shares:
(1) if, after giving effect to such transfer, issuance or
sale, no Default shall have occurred and be continuing (including
without limitation any Default under subsection (b) or (f) above);
(2) in circumstances where, as a result of such transfer,
issuance or sale, any Person would cease to be a Restricted
Subsidiary, no Default would have existed under Section 5.04 as of the
end of the most recent fiscal quarter of AGCO, assuming
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that such
Person had not been a Restricted Subsidiary at any time during the
periods or on any date used in making any calculation or determination
under such Section; and
(3) if AGCO shall have delivered to each Lender (x) a
certification to the effect set forth in clause (1) and (if
applicable) clause (2) above (together with a reasonably detailed
statement showing the basis for its certification as to the matters
described in clause (ii)) and (y) if requested by the Administrative
Agent pro-forma financial statements for each period and date referred
to in clause (2) above prepared as if such Person had not been a
Restricted Subsidiary for such period or as of such date.
(n) Change in Policies Regarding Receivables, Reserves
and Allowances. Modify, supplement or fail to carry out, or permit any
Restricted Subsidiary to modify, supplement or fail to carry out, in any
material respect, its policies and procedures in effect on the date hereof
regarding the creation of Reserves and Allowances or the terms of the
obligations of the obligors under Receivables, or implement any such policies
or procedures that differ materially from those of AGCO in effect on the date
hereof.
(o) Excess Proceeds. Permit to exist any Excess Proceeds
(as defined in the Subordinated Debt Indenture), if the existence thereof would
require AGCO to offer to purchase the New Subordinated Debt.
(p) No Notice Under Subordinated Debt Indenture.
Deliver, or permit there to be delivered, to the trustee under the Subordinated
Debt Indenture any notice that any agreement, instrument or document, other
than this Agreement and related instruments and documents, is the "Bank Credit
Agreement" thereunder.
SECTION 5.03. Reporting Requirements. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
shall have any Commitment hereunder, AGCO will, unless the Required Lenders
shall otherwise consent in writing, furnish to the Administrative Agent (with a
sufficient number of copies so that the Administrative may distribute a copy to
the Canadian Administrative Agent and each of the Lenders, and the
Administrative Agent agrees promptly following receipt thereof to distribute to
the Canadian Administrative Agent and each Lender a copy of each item received
by it pursuant to this Section 5.03):
(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.
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(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
(ii) a schedule in form satisfactory to the Administrative
Agent of the computations used by AGCO in determining compliance with
the covenants contained in Sections 5.02(e)(iii), 5.02(f)(ii) and (v),
5.02(g)(i)(B) and (iii) and 5.04(a), (b), (c) and (d).
(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 acceptable 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, 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 Consolidated Average Funded
Debt/EBITDA Ratio and compliance with the
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covenants contained in
Sections 5.02(e)(iii), 5.02(f)(ii) and (v), 5.02(g)(i)(B) and (iii)
and 5.04(a), (b), (c) and (d); 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
two Business Days after receipt thereof by any Loan Party or any of its ERISA
Affiliates, copies of each notice from the PBGC stating its intention to
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. Promptly and in any event
within 30 days after the filing thereof with the Internal Revenue Service,
copies of each 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 five 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
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(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 4.01(h).
(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 its stockholders, 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. 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 and not otherwise
required to be furnished to the Lenders pursuant to any other clause of this
Section 5.03.
(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 could 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 (including without limitation
any events or conditions described in Section 4.01(q) or the loss of use of any
trademarks or patents) that is reasonably likely to have a Material Adverse
Effect.
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(n) Borrowing Base Certificates. As soon as practicable
and, in any event by (i) the 30th day after each fiscal quarter of AGCO (or, if
such day is not a Business Day, on the next-following day that is a Business
Day), and (ii) if a Default shall have occurred and be continuing, not later
than the fifth Business Day after the Required Lenders shall have requested the
same, a Borrowing Base Certificate, executed by the Chief Financial Officer,
the Treasurer or an Assistant Treasurer of AGCO with respect to the Receivables
and Inventory of AGCO and its Restricted Subsidiaries as of the last Business
Day of the immediately preceding fiscal quarter, in the case of a Borrowing
Base Certificate delivered pursuant to clause (i) above, and as of the date of
such request, in the case of a Borrowing Base Certificate delivered pursuant to
clause (ii) above.
(o) Quarterly Operations Report. As soon as possible and
in any event by the 30th day after each fiscal quarter of AGCO, beginning with
the fiscal quarter ending December 31, 1996, 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.
(p) Replacement Schedules. Promptly, and in any event
within 30 days, after any information contained in Schedule 4.01(b) (other than
with respect to Dormant Subsidiaries) 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.
(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 Co-Manager may reasonably request or any Lender may from time to time
reasonably request through a Co-Manager.
SECTION 5.04. Financial Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
shall have any Commitment hereunder, AGCO will, unless the Required Lenders
otherwise consent in writing:
(a) Consolidated Total Debt Ratio. Maintain, as of the
end of each fiscal quarter of AGCO, the ratio of
(i) the aggregate principal amount of all Debt of AGCO
and its Restricted Subsidiaries, to
(ii) such aggregate principal amount, plus Consolidated
Net Worth,
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in each case at the last day of such fiscal quarter, at no more than .60 to 1.
(b) EBITDA Ratio. Maintain, as of the end of each fiscal
quarter of AGCO, the ratio of
(i) Consolidated EBITDA, to
(ii) (A) Consolidated Net Interest Expense, plus
(B) the aggregate principal amount of
Consolidated Funded Debt to be paid within one year after the
last day of such fiscal quarter, plus
(C) the aggregate amount of all capital
expenditures made by AGCO and its Restricted Subsidiaries,
in the case of clauses (i), (ii)(A) and (ii)(C) above for such fiscal quarter
and the three fiscal quarters of AGCO immediately preceding such fiscal
quarter, at no less than 2.0 to 1.
(c) Consolidated Funded Debt Ratio. Maintain, as of the
last day of each fiscal quarter of AGCO, the ratio of
(i) the aggregate principal amount of Consolidated
Funded Debt as of the end of such fiscal quarter to
(ii) Consolidated EBITDA for such fiscal quarter and the
three complete fiscal quarters of AGCO immediately preceding such
fiscal quarter,
at no more than 5.0 to 1.
(d) Consolidated Tangible Net Worth Ratio. Maintain, as
of the last day of each fiscal quarter of AGCO, the ratio of
(i) the sum of (A) Consolidated Tangible Net Worth, and
(B) the aggregate principal amount of all New Subordinated Debt and
the Convertible Subordinated Debentures, to
(ii) Consolidated Total Assets,
in each case as of the last day of such fiscal quarter, at no less than
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(A) 0.22 to 1.00, if such fiscal quarter ends before July
1, 1997,
(A) 0.26 to 1.00, if such fiscal quarter ends after July
1, 1997 but before October 1, 1997,
(A) 0.30 to 1.00, if such fiscal quarter ends after
October 1, 1997.
SECTION 5.05. Covenants of the Borrowing Subsidiaries. Each
Borrowing Subsidiary will perform and observe each covenant in Section 5.01 and
5.02 that AGCO is required to cause it to perform or observe under such
Sections.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) (i) Any Borrower shall fail to pay (A) any principal
or face amount of any Advance on the date when the same becomes due
and payable, or (B) any interest on any Advance within one 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
(c) AGCO shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(e)(with respect to any
Borrower), 5.02(c), (d), (e), (g) or (m), 5.03(a) or 5.04; or
(d) any Loan Party shall fail to perform any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30
days after the earlier of (i) such Loan Party having knowledge
thereof, and (ii) written notice thereof having been given to AGCO; or
(e) any Loan Party or any of AGCO's other Restricted
Subsidiaries shall fail to pay any principal of, premium or interest
on or any other amount payable in respect
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of any Debt, if such Debt is
outstanding in a principal or notional amount of at least U.S.
$10,000,000 in the aggregate (but excluding Debt 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 Debt; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such Debt 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 Debt or otherwise to cause, or to permit the holder thereof to
cause, such Debt to mature; or any such Debt 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 Debt
shall be required to be made, in each case prior to the stated
maturity thereof; or
(f) any Loan Party or any of AGCO's other Restricted
Subsidiaries 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 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 any Loan Party or any of
AGCO's other Restricted Subsidiaries 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 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 any Loan Party or any of AGCO's other Restricted
Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (f), 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 any Loan Party or any of AGCO's other
Restricted Subsidiaries, 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
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the events specified in
this subsection (f) occurs under the laws of any applicable
jurisdictions; or
(g) 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) shall be rendered against any Loan Party
or any of AGCO's other Restricted Subsidiaries and either
(i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order, or
(ii) there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not
be in effect; or
(h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of AGCO's other Restricted Subsidiaries
that is reasonably likely to have a Material Adverse Effect, and there
shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(i) any provision of any Loan Document after delivery
thereof pursuant to Section 3.01 shall for any reason cease to be
valid and binding on or enforceable against any Loan Party party to
it, or any such Loan Party shall so state in writing; or
(j) any of the following shall occur:
(i) any Person or two or more Persons 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
40% or more of the combined voting power of all Voting Stock
of AGCO; or
(ii) during any period of up to 24 consecutive
months, commencing after the date of this Agreement,
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
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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
(iii) 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 40% or more of
the combined voting power of all Voting Stock of AGCO; or
(iv) any "Change of Control", as defined in the
Subordinated Debt Indenture, shall occur; or
(k) any ERISA Event shall have occurred with respect to a
Plan of any Loan Party or any of its ERISA Affiliates and the sum
(determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other
Plans of the Loan Parties and their ERISA Affiliates with respect to
which an ERISA Event shall have occurred and then exist for which the
liability of the Loan Parties and their ERISA Affiliates is reasonably
likely to have a Material Adverse Effect; or
(l) any Loan Party or any of its ERISA Affiliates shall
have been notified by the sponsor of a Multiemployer Plan of any Loan
Party or any of its ERISA Affiliates that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts then 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),
is reasonably likely to have a Material Adverse Effect; or
(m) any Loan Party or any of its ERISA Affiliates shall
have 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 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 the Loan Parties 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 year in which such
reorganization or termination occurs by an amount that is reasonably
likely to have a Material Adverse Effect,
then, and in any such event, the Administrative Agent
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(i) 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 to
be terminated, whereupon the same shall forthwith terminate, and
(ii) may, and shall at the request of the Required
Lenders,
(A) by notice to AGCO, declare the 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 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
(B) 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
with respect to any Borrower under the Federal Bankruptcy Code,
(x) the obligation of each Lender to make Advances and of
the Issuing Bank to issue Letters of Credit shall automatically be
terminated and
(y) 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.
SECTION 6.02. Actions in Respect of the Letters of Credit. If
(a) an event of an actual or deemed entry of an order for
relief with respect to any Borrower under the Federal Bankruptcy Code
shall have occurred, AGCO will forthwith, and
(b) any other Event of Default shall have occurred and be
continuing, the Administrative Agent may, irrespective of whether it
is taking any of the actions described in Section 6.01 or otherwise,
make demand upon AGCO to, and forthwith upon such demand AGCO will,
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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.
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ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes Rabobank to take action on its behalf as the
Administrative Agent, and each Canadian Subsidiary Lender hereby appoints and
authorizes Deutsche Bank 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 take any action that exposes it or its officers or directors to personal
liability or that is contrary to this Agreement or applicable law. Each Agent
will give to each Lender prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. 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:
(i) 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 8.07;
(ii) 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;
(iii) 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;
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(iv) 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;
(v) 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
delivery thereof) or the creation, attachment perfection or priority
of any Lien purported to be created under or contemplated by any Loan
Document;
(vi) 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;
(vii) 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;
(viii) 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";
(ix) 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
(xi) may act directly or through agents on its behalf.
SECTION 7.03. 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 Deutsche Bank 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 Deutsche Bank Canada in
their individual capacities. Rabobank and Deutsche Bank Canada and their
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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 Deutsche Bank Canada were not Agents and
without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon either Agent
or any other Lender and based on the financial statements referred to in
Section 4.01(f) and such other documents and information as it has deemed
appropriate, made its own 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 7.05. Indemnification. Each Lender severally agrees
to indemnify each Agent and each Co- Manager (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 consulted pursuant to Section
7.02(ii)) of any kind or nature whatsoever that may be imposed on, incurred by,
or asserted against such Agent or any Co-Manager in any way relating to or
arising out of the Loan Documents or any action taken or omitted by such Agent
or any Co-Manager 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
resulting from such Agent's or such Co- Manager's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse each Agent and each Co-Manager promptly upon demand for its ratable
share of any costs and expenses payable by any Borrower under Section 8.04, to
the extent that such Agent or such Co-Manager is not promptly reimbursed for
such costs and expenses by the Borrower. For purposes of this Section 7.05,
the Lenders' respective ratable shares of any amount shall be determined, at
any time, according to the sum of
(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;
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(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 Subsidiary Commitments at such time.
SECTION 7.06. Successor Agent. Either Agent may resign at
any time by giving written notice thereof to the Lenders and the Borrowers and
may be removed (but only as to all of the Facilities) at any time with cause by
the Required Lenders. Upon any such resignation or removal, 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 or the Required Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a commercial bank or other financial institution and
having a combined capital and surplus of at least U.S. $1,000,000,000. 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 VII and Section 8.04 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.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. 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 the 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 of the Lenders, do any of the following at
any time:
(i) waive any of the conditions specified in
Section 3.02,
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(ii) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Notes, or the
number of Lenders, that shall be required for the Lenders or
any of them to take any action hereunder,
(iii) amend this Section 8.01,
(iv) reduce or forgive the principal of, or
interest on, the Notes or any fees or other amounts payable
hereunder or increase the aggregate amount of the Commitments,
(v) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other
amounts payable hereunder or amend Section 2.05,
(vi) permit any Letter of Credit to have an
expiration date (including all rights of a Borrower or
beneficiary to require renewal) later than 60 days before the
Termination Date or
(vii) waive any rights under, consent to any
departure from or agree to any amendment of any provision of,
the Subordinated Debt Indenture;
(b) no amendment, waiver or consent shall be made to
Section 2.09(f) except with the consent of the Supermajority Lenders;
(c) no amendment, waiver or consent shall, unless in
writing and signed by the Required Lenders and each Lender that has a
Commitment under the Facility affected by such amendment, waiver or
consent,
(i) increase the Commitments of such Lender or
subject such Lender to any additional obligations,
(ii) reduce the principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable
hereunder to such Lender,
(iii) postpone any date fixed for any payment of
principal of, or interest on, the Notes held by such Lender or
any fees or other amounts payable hereunder to such Lender or
(iv) change the order of application of any
prepayment set forth in Section 2.05 in any manner that
materially affects such Lender;
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(d) 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
(e) 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, 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 8.01) 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 8.01; provided that any action taken by the other Lenders with
respect to the matters referred to in clause (a) or (b) of this Section 8.01
shall not be effective as against such Lender.
SECTION 8.02. 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 the AGCO or any Borrowing Subsidiary to AGCO at
its address at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000,
Attention: General Counsel, Telecopier 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 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, Attention:
Structured Finance Department, Telecopier No. (000) 000-0000; and
(d) if to the Canadian Administrative Agent, at its
address at X.X. Xxx 000, 000 Xxx Xxxxxx, 12th Floor, Toronto, Ontario
M5K 1H6, Attention: Xxxxxxxx Xxxxxxx, Vice President and Director,
Telecopier No. (000) 000-0000,
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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 when five days after deposit in the mails and when
transmitted by telecopier, except that notices and communications to an Agent
pursuant to Article II, III or VII shall not be effective until received by such
Agent.
SECTION 8.03. 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.
SECTION 8.04. Costs and Expenses. (a) (i) AGCO agrees to
pay on demand all costs and expenses of the Agents and each Co-Manager in
connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents at any time (including without
limitation in connection with this amendment and restatement) (including
without limitation (A) all due diligence, syndication, transportation,
computer, duplication, 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 and/or the
Co-Managers with respect thereto, with respect to advising the Agents and
Co-Managers 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); provided that AGCO shall not
be obligated to pay out-of-pocket expenses of the Administrative Agent or the
Co-Managers referred to in clause (A) above to the extent that the aggregate
amount thereof exceeds U.S. $50,000.
(ii) AGCO further agrees to pay on demand all costs and
expenses of each Agent, each Co-Manager and each Lender in connection with the
enforcement of the Loan Documents against any Borrower, 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, each
Co-Manager 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.
(b) AGCO agrees to indemnify and hold harmless each
Agent, each Co-Manager and each Lender and each of their affiliates and their
officers, directors, employees,
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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;
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
Co-Manager, 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.
(c) If any prepayment or payment (or failure to prepay
after the delivery of a notice of prepayment) of principal of, or Conversion
of, any Eurocurrency Rate Advance is made by 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 6.01 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 2.15, 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 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
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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.
(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, any Co-Manager or any
Lender, in its sole discretion.
SECTION 8.05. 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 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, 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 2.12, 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 8.06. 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 the prior
written consent of each Lender except as permitted under Section 5.02(d).
Section 8.13 shall also inure to the benefit of each Subsidiary of AGCO
referred to therein.
SECTION 8.07. 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
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(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.
$15,000,000 and shall be an integral multiple of U.S. $1,000,000, 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
Subsidiary Commitment (except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Canadian Subsidiary
Lender or an assignment of all of a Canadian Subsidiary Lender's
rights and obligations under this Agreement), (A) the amount of the
Canadian Subsidiary Commitment of the assigning Canadian Subsidiary
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. $10,000,000 and shall
be an integral multiple of U.S. $1,000,000, 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 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 the Administrative Agent, AGCO, the
Canadian Administrative Agent and the Canadian Issuing Bank (if such
assignment relates to Canadian Subsidiary Advances or Canadian
Subsidiary Commitments) and the Multi-Currency Issuing Bank (if such
assignment relates to Multi-Currency Advance or Multi-Currency
Commitments) (such approval 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
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Register, an Assignment and
Acceptance, together with any Note or Notes subject to such assignment
and a processing and recordation fee of U.S. $2,500, payable by the
assignee to the Administrative Agent.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in such Assignment and Acceptance,
(x) 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
(y) 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).
(b) 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 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 4.01(f) 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;
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(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
Subsidiary 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.
(c) The Administrative Agent shall maintain at its
address referred to in Section 8.02 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 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 Subsidiary
Facility.
(d) 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 D hereto,
(i) record the information contained therein in the
Register, and
(ii) give prompt notice thereof to the Borrowers.
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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 A hereto for AGCO and the
Borrowing Subsidiaries.
(e) 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,
(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 the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to
such participation, except in accordance with the terms hereof or of
any other Loan Document.
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(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, 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
labelled 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.
(g) 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.
Section 8.08. 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 8.09. 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;
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(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 8.02; 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 8.09 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 8.02.
SECTION 8.10. 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 8.11. 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 of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.12. 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:
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(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,
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 8.13. 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 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 2.05(b)(ii)(A), 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
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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 2.05(b)(ii)(A)). 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 Subsidiary
Outstandings shall exceed 105% of the Canadian Subsidiary Facility (the
"Canadian Subsidiary Excess Outstandings") and to the extent that the Canadian
Subsidiary is not required on such date to prepay Canadian Subsidiary Advances
in an aggregate principal amount equal to the Canadian Subsidiary Excess
Outstandings pursuant to Section 2.05(b)(ii)(B), 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 2.05(b)(ii)(A)). 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 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
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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 8.14. Conditions to Effectiveness of this Agreement.
Conditions to the effectiveness of this Agreement are (a) the delivery by each
Subsidiary Guarantor that is not a Borrower of the confirmation and
ratification attached hereto and (b) the delivery of secretaries' certificates
or other evidence, in each case in form and substance satisfactory to the
Agents, that this Agreement has been duly authorized by each Borrower. Until
such conditions shall have been satisfied, this Agreement shall continue to be
in effect as in effect prior to its amendment and restatement hereby. Promptly
after the effective date of this Agreement on request by any Lender the
Borrowers will execute and deliver Notes to such Lender in the applicable form
attached to this Agreement as Exhibits A-1 and A-2. Prior to any such
delivery, the Notes previously delivered by the Borrowers pursuant to this
Agreement as in effect prior to its amendment and restatement hereby shall
remain valid and binding obligations of the Borrowers for all purposes,
notwithstanding the amendment and restatement of the form thereof as provided in
this Agreement.
SECTION 8.15. Schedules to this Agreement. The Schedules
(other than Schedule I, which is attached to this amendment and restatement)
attached to this Agreement as in effect prior to its amendment and restatement
hereby are the Schedules referred to in this Agreement, as amended and
restated, and shall be deemed to be the Schedules attached to, and to form a
part of, this Agreement, as amended and restated.
SECTION 8.16. Ratification of Guaranties, etc. Each Borrower
that entered into a Guaranty of the obligations of some or all of the other
Borrowers under the Credit Agreement or another Loan Document unconditionally
confirms and agrees that each such Loan Document is and shall continue to be in
full force and effect and is hereby ratified and confirmed in all respects,
except that, on and after the date of this Agreement, each reference therein to
"this Agreement", "the Credit Agreement", "thereunder", "thereof" or words of
like import referring to the Credit Agreement shall mean and be a reference to
this Agreement, as amended and restated hereby.
SECTION 8.17. Waiver of Jury Trial. EACH OF EACH BORROWER,
EACH AGENT, EACH CO-MANAGER AND THE LENDERS 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 CO-MANAGER OR ANY
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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.
AGCO CORPORATION XXXXXX XXXXXXXX
MANUFACTURING LIMITED
By_________________________
By_________________________ Title:
Title:
XXXXXX XXXXXXXX (UNITED KINGDOM) LIMITED XXXXXX XXXXXXXX X.X.
By_________________________
By_________________________ Title:
Title:
AGCO LIMITED AGCO HOLDING B.V.
By_________________________
By_________________________ Title:
Title:
XXXXXX XXXXXXXX GMBH AGCO CANADA, LTD.
By_________________________
By_________________________ Title:
Title:
The undersigned, as a guarantor of the Borrowers' obligations under
the above Credit Agreement, consents to the amendment and restatement of such
Credit Agreement as set forth above and confirms that its guaranty of such
obligations is, and shall continue to be, in full force and effect and ratifies
and confirms such guaranty in all respects, in each case except that, on and
after the effective date of such amendment and restatement, each reference in
such guaranty to "the Credit Agreement", "thereunder", "thereof" or words of
like import referring to the Credit Agreement shall mean and be a reference to
the Credit Agreement, as amended and restated as provided above.
XXXXXX XXXXXXXX CORP.
By_________________________
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Title:
132
COOPERATIEVE CENTRALE DEUTSCHE BANK CANADA,
RAIFFEISEN-BOERENLEENBANK B.A., as Canadian Administrative
"RABOBANK NEDERLAND", NEW Agent and Canadian Subsidiary
YORK BRANCH, as Administrative Agent,
Lender Co-Manager and
Multi-Currency Lender
By_________________________ Title:
By_________________________
Title:
By_________________________
Title:
SUNTRUST BANK, ATLANTA, as Co-Manager and Multi- DEUTSCHE BANK AG, NEW
YORK BRANCH and/or CAYMAN Currency Lender
ISLANDS BRANCH, as Co-Manager and Multi-Currency
Lender
By_________________________
Title:
By_________________________
Title:
By_________________________
Title:
By_________________________
Title:
