Exhibit 10.16
FOURTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT (this "Amendment")
dated as of June 2, 2005, by and among AGCO CORPORATION, a Delaware corporation
("AGCO"), AGCO CANADA, LTD., a Saskatchewan corporation ("Canadian Subsidiary"),
AGCO LIMITED, an English corporation ("English Subsidiary One"), AGCO
INTERNATIONAL LIMITED, an English corporation ("English Subsidiary Two"), AGCO
HOLDING B.V., a Netherlands corporation ("Netherlands Subsidiary'"). AGCO
DEUTSCHLAND HOLDING LIMITED & CO. KG, a German limited partnership ("German
Subsidiary"), and VALTRA HOLDING OY, a Finnish limited liability company
("Finnish Subsidiary"; AGCO, Canadian Subsidiary, English Subsidiary One,
English Subsidiary Two, Netherlands Subsidiary, German Subsidiary and Finnish
Subsidiary are referred to herein collectively as the "Borrowers" and
individually as a "Borrower"); the lenders (the "Lenders") signatory hereto;
COOPERATIVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
CANADIAN BRANCH, as Canadian administrative agent for the Canadian Lenders
(together with any successor, in such capacity, the "Canadian Administrative
Agent"); and COOPERATIVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as administrative agent for the Lenders (together
with any successor, in such capacity, the "Administrative Agent").
WITNESSETH:
WHEREAS, the Borrowers, the Administrative Agent, the Canadian
Administrative Agent, the Lenders, the Issuing Banks (as defined in the Credit
Agreement), SunTrust Bank and Xxxxxx Xxxxxxx Senior Funding, Inc., as
Co-Syndication Agents, and CoBank, ACB and The Bank of Tokyo-Mitsubishi, Ltd.,
NY Branch, as Co-Documentation Agents, are parties to that certain Credit
Agreement dated as of December 22, 2003 (as amended by that certain First
Amendment to Credit Agreement and Consent dated as of April 12, 2004, as further
amended by that certain Second Amendment to Credit Agreement dated as of August
17, 2004, as further amended by that certain Third Amendment to Credit Agreement
dated as of March 21, 2005 and as further amended, restated, supplemented or
modified from time to time, the "Credit Agreement"); and
WHEREAS, the Borrowers have requested that certain terms and conditions of
the Credit Agreement be amended, and the Lenders signatory hereto, the Canadian
Administrative Agent and the Administrative Agent have agreed to the requested
amendments on the terms and conditions set forth herein; and
WHEREAS, Valtra Traktor AB, Valtra Danmark A/S, Valtra Norge AS, and AGCO
AB may sell certain Inventory, Receivables and fixed assets located in Sweden,
Norway and Denmark to a distributor in connection with a distribution
arrangement
which may be entered into with such distributor (the "Distribution Sale"), and
the Distribution Sale may be prohibited by Section 7.7 of the Credit Agreement;
and
WHEREAS, the Borrowers have requested that the Agents and the Lenders
consent to the Distribution Sale, and the Lenders signatory hereto and the
Agents have consented to the Distribution Sale on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree that
all capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Credit Agreement, and further agree as follows:
SECTION 1. Amendments to Section 7.1.
(a) Section 7.1 of the Credit Agreement, Indebtedness, is hereby
amended and modified by deleting subsection (b) in its entirety and by
substituting the following in lieu thereof:
"(b) (i) a Capitalized Lease entered into by Valtra Holding Oy for
certain buildings and other improvements located on certain Real Property
in Suolahti, Finland provided the aggregate obligations of Valtra Holding
Oy thereunder do not exceed E6,500,000 at any time, and (ii) other
Capitalized Leases and Indebtedness secured by purchase money security
interests described in clause (g) of the definition of Permitted Liens set
forth in Article 1 hereof which are (x) in existence prior to the Agreement
Date, or (y) incurred after the Agreement Date and do not exceed the
aggregate amount of U.S. $5,000,000 made or incurred during any calendar
year;"
(b) Section 7.1 of the Credit Agreement, Indebtedness, is hereby
further amended and modified by deleting subsection (h) in its entirety and by
substituting the following in lieu thereof:
"(h) Other unsecured Indebtedness for borrowed money not exceeding an
aggregate amount outstanding at any time of (i) U.S. $100,000,000 at any
individual Restricted Subsidiary or (ii) U.S. $150,000,000 for AGCO and all
Restricted Subsidiaries;"
SECTION 2. Consent to Distribution Sale. Notwithstanding the limitations
set forth in Section 7.7(h) of the Credit Agreement, the Agents and the Lenders
hereby consent to the Distribution Sale provided that (i) no Default or Event of
Default shall have occurred and be continuing at the time the Distribution Sale
is consummated, (ii) the final executed documents governing the Distribution
Sale shall be delivered to the Administrative Agent promptly after the closing
thereof, and (iii) the purchase price paid to AGCO or its Restricted
Subsidiaries for the assets sold in the Distribution Sale shall be at least
equal to the Fair Market Value (as defined in Section 7.7(h) of the Credit
Agreement) of such
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assets as determined by the Board of Directors of AGCO or such Restricted
Subsidiaries, as the case may be, and evidenced in a resolution of such Board of
Directors, and the Fair Market Value of such assets shall not exceed
$30,000,000. Additionally, the Agents and Lenders agree that in connection with
any other sale transactions during this fiscal year, the purchase price paid to
AGCO or such Restricted Subsidiaries in connection with the Distribution Sale
shall not be included in calculating the U.S. $15,000,000 per fiscal year limit
set forth in Section 7.7(h) of the Credit Agreement.
SECTION 3. Representations and Warranties. Each of AGCO and the other
Borrowers represents and warrants as follows:
(a) The execution, delivery and performance by each Borrower of
this Amendment and the other transactions contemplated hereby, are within such
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Borrower's charter or bylaws;
(ii) violate any Applicable Law (including, without limitation, to the extent
applicable, the Securities Exchange Act of 1934, the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of 1970 and any
similar statute); (iii) conflict with or result in the breach of, or constitute
a default under, any contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument binding on or affecting any Borrower, any of
its Subsidiaries or any of their properties (including any of the Applicable
Capital Market Transaction Documents); or (iv) except for the Liens created
under the Security Documents, result in or require the creation or imposition of
any Lien upon or with respect to any of the properties of any Borrower or any of
its Subsidiaries;
(b) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or regulatory body or any
other third party is required for the due execution, delivery or performance by
any Borrower of this Amendment and each other Loan Document contemplated hereby
to which it is or is to be a party;
(c) This Amendment and each other document required to be
delivered by a Borrower hereunder has been duly executed and delivered by each
Borrower thereto, and constitutes the legal, valid and binding obligation of
each Borrower thereto, enforceable against such Borrower in accordance with its
terms;
(d) The representations and warranties contained in Article 4 of
the Credit Agreement, and in each of the other Loan Documents, are true and
correct on and as of the date hereof as though made on and as of such date,
other than (i) any such representations and warranties that, by their terms,
expressly refer to an earlier date, and (ii) as a result of changes permitted by
the terms of the Credit Agreement; and
(e) After giving effect hereto, no event has occurred and is
continuing which constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time elapse or both.
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SECTION 4. Conditions Precedent to Effectiveness of this Amendment. This
Amendment shall be effective as of the date first set forth above when the
Administrative Agent shall have received, in form and substance satisfactory to
it, each of the following:
(a) this Amendment, duly executed by the Borrowers, the Canadian
Administrative Agent and the Administrative Agent, and Lender Addenda, in the
form attached hereto, duly executed by the Required Lenders; and
(b) the delivery of such other documents, instruments and
information, as the Administrative Agent may reasonably request.
SECTION 5. Reference to and Effect on the Credit Agreement. Upon the
effectiveness of this Amendment as set forth in Section 4 hereof, on and after
the date hereof, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof, "herein" or words of like import shall mean and be a
reference to the Credit Agreement as amended hereby, and each reference in the
Notes and the other Loan Documents to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended hereby.
SECTION 6. Reaffirmation of Guaranty. By executing this Amendment, each
Guarantor hereby acknowledges, consents and agrees that all of its obligations
and liability under the Guaranty Agreements to which it is a party remain in
full force and effect, and that the execution and delivery of this Amendment and
any and all documents executed in connection therewith shall not alter, amend,
reduce or modify its obligations and liability under such Guaranty Agreements or
any of the other Loan Documents to which it is a party.
SECTION 7. Costs, Expenses and Taxes. The Borrowers agree, jointly and
severally, to pay on demand all costs and expenses of the Administrative Agent
in connection with the preparation, execution and delivery of this Amendment and
the other instruments and documents to be delivered hereunder (including,
without limitation, the fees and expenses of counsel for the Administrative
Agent with respect thereto).
SECTION 8. No Other Amendments. Except as otherwise expressed herein, the
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of the Agents or the Lenders under the
Credit Agreement, or any of the other Loan Documents, nor constitute a waiver of
any provision of the Credit Agreement or any of the other Loan Documents. Except
for the amendments set forth above, the text of the Credit Agreement and all
other Loan Documents shall remain unchanged and in full force and effect and the
Borrowers hereby ratify and confirm their respective obligations thereunder.
This Amendment shall not constitute a modification of the Credit Agreement or a
course of dealing with the Administrative Agent at variance with the Credit
Agreement such as to require further notice by the Administrative Agent to
require strict compliance with the terms of the Credit Agreement and the other
Loan Documents in the future, except as expressly set forth herein. The
Borrowers
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acknowledge and expressly agree that the Agents and the Lenders reserve the
right to, and do in fact, require strict compliance with all terms and
provisions of the Credit Agreement and the other Loan Documents (in each case as
amended hereby).
SECTION 9. Execution in Counterparts. This Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument. Delivery of a signature page hereto by facsimile
transmission or via email transmission of an Adobe portable document format file
(also known as a "PDF File") shall be as effective as delivery of a manually
executed counterpart hereof.
SECTION 10. Delivery of Lender Addenda. Each Lender executing this
Amendment shall do so by delivering to the Administrative Agent a Lender
Addendum, substantially in the form of Annex I attached hereto, duly executed by
such Lender.
SECTION 11. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws (without giving effect to the conflicts
of laws principles thereof) of the State of New York.
SECTION 12. Final Agreement. This Amendment represents the final agreement
between the Borrowers, the Administrative Agent, the Canadian Administrative
Agent and the Lenders as to the subject matter hereof and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements
of the parties. There are no unwritten oral agreements between the parties. The
Amendment shall constitute a Loan Document for all purposes.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWERS:
AGCO CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Title: SVP - GENERAL COUNSEL
AGCO CANADA, LTD.
By: /s/ Xxxxx Xxxxxxxx
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Title: PRESIDENT
AGCO LIMITED
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
AGCO INTERNATIONAL LIMITED
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
AGCO HOLDING B.V.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Fourth Amendment to Credit Agreement and Consent
Signature Page 1
AGCO DEUTSCHLAND HOLDING LIMITED & CO.
KG
By: /s/ Xxxxxxx X. Xxxxxx
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Title:
---------------------------------
By: /s/ Xxxxx Xxxxxxxx
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Title:
---------------------------------
VALTRA HOLDING OY
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
GUARANTORS: VALTRA DEUTSCHLAND GMBH
(formerly known as RM 2379
VERMOGENSVERWAITUNGS GMBH)
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
AGCO VERTRIEBS GMBH
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title: DIRECTOR
Fourth Amendment to Credit Agreement and Consent
Signature Page 2
AGCO GMBH
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
AGCO FRANCE S.A
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
AGCO S.A.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
VALTRA TRACTEURS FRANCE S.A.S.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
VALTRA INTERNATIONAL B.V.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
Fourth Amendment to Credit Agreement and Consent
Signature Page 3
XXXXXX XXXXXXXX CORP.
By: /s/ Xxxxx Xxxxxxxx
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Title: TREASURER
AGCO EQUIPMENT COMPANY
By:
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Title: DIRECTOR
SUNFLOWER MANUFACTURING COMPANY, INC.
By: /s/ Xxxxx Xxxxxxxx
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Title: TREASURER
AGCO MANUFACTURING LTD.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
AGCO SERVICES LTD.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
Fourth Amendment to Credit Agreement and Consent
Signature Page 4
VALTRA VUOKRAUS OY
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
AGCO DO BRASIL COMERCIA E INDUSTRIA
LTDA.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
VALTRA DO BRASIL LTDA.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: DIRECTOR
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Fourth Amendment to Credit Agreement and Consent
Signature Page 5
AGENTS, ISSUING BANKS AND SWING LINE COOPERATIEVE CENTRALE
BANK: RAIFFEISENBOERENLEENBANK B.A.,
"RABOBANK NEDERLAND," NEW YORK BRANCH,
as Administrative Agent and
Multi-Currency Issuing Bank
By: /s/ Xxxxxxxx X. English
------------------------------------
Xxxxxxxx X. English
Title: Vice President
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
Title: Executive Director
COOPERATIEVE CENTRALE
RAIFFEISENBOERENLEENBANK B.A.,
"RABOBANK NEDERLAND," CANADIAN BRANCH,
as Canadian Administrative Agent and
Canadian Issuing Bank
By:
------------------------------------
Title:
---------------------------------
By:
------------------------------------
Title:
---------------------------------
LENDERS: See each Lender Addendum attached hereto
Fourth Amendment to Credit Agreement
Signature Page 7
AGENTS, ISSUING BANKS AND SWING LINE COOPERATIEVE CENTRALE
BANK: RAIFFEISENBOERENLEENBANK B.A.,
"RABOBANK NEDERLAND,"NEW YORK BRANCH, as
Administrative Agent and Multi-Currency
Issuing Bank
By:
------------------------------------
Title:
---------------------------------
By:
------------------------------------
Title:
---------------------------------
COOPERATIEVE CENTRALE
RAIFFEISENBOERENLEENBANK B.A.,
"RABOBANK NEDERLAND," CANADIAN BRANCH,
as Canadian Administrative Agent and
Canadian Issuing Bank
By: /s/ XXXXX X. XXXXXXXX
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XXXXX X. XXXXXXXX
Title: EXECUTIVE DIRECTOR
By: /s/ Xxxxxxx Xxxxxx Khan
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Xxxxxxx Xxxxxx Khan
Title: Executive Director
LENDERS: See each Lender Addendum attached hereto
Fourth Amendment to Credit Agreement
Signature Page 7
