EXHIBIT 10.44
AMENDMENT
TO
NOTE AGREEMENT
THIS AMENDMENT (the "Amendment"), made effective as of February 1, 2001
(the "Effective Date"), to that certain Note Agreement dated as of April 6, 1994
(as amended from time to time, the "Note Agreement"), between Ag-Chem Equipment
Co., Inc., a Minnesota corporation (the "Company"), and C.M. Life Insurance
Company ("Mass Mutual"), is entered into by each of the parties to the Note
Agreement. Capitalized terms used herein and not otherwise defined herein shall
have the meaning given to them in the Note Agreement.
WITNESSETH
WHEREAS, the Company, and Mass Mutual are parties to the Note
Agreement;
WHEREAS, the Company has requested that Mass Mutual agree to
amend the Credit Agreements in certain respects;
WHEREAS, Mass Mutual is willing to amend the Note Agreement on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and Mass Mutual hereby agree as follows:
1. Amendment. Effective as of the Effective Date first above written
and subject to the satisfaction of the conditions precedent set forth in Section
2 below, the definition of "Interest Coverage Ratio" set forth in Section 5.1 of
the Note Agreement is hereby amended to add the following at the end of clause
(a) thereof:
", plus an amount equal to the nonrecurring charges
of up to $3,434,000 in the aggregate related to
costs incurred in connection with the merger of the
Company and Agco Corporation to the extent such
charges are deducted in computing Net Income for the
applicable period,"
2. Conditions of Effectiveness. This Amendment shall become effective
and be deemed effective as of the Effective Date if, and only if, Mass Mutual
shall have received four (4) duly executed originals of this Amendment from the
Company.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants that (a) this Amendment has been duly authorized,
executed and delivered by the Company, (b) each representation and warranty set
forth in Section 3 of the Note Agreement is true and correct as of the date of
the execution and delivery of this Amendment by the Company with the same effect
as if made on such date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they were
true and correct as of such earlier date), and (c) after giving effect to the
amendments to the Note Agreement in Section 1 hereof, no Event of Default or
Default exists.
4. Effect on the Note Agreement.
(a) Upon the effectiveness of this Amendment, on and after the
date hereof, each reference to the Note Agreement in any other document,
instrument or agreement shall mean and be a reference to the Note Agreement, as
amended hereby.
(b) Except as specifically amended above, the Note Agreement
shall remain in full force and effect and is hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall neither, except as expressly provided herein, operate as a
waiver of any right, power or remedy of Mass Mutual nor constitute a waiver of
any provision of the Note Agreement or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
5. Costs and Expenses. The Company agrees to pay all reasonable costs,
fees and out-of-pocket expenses (including attorneys' fees) incurred by Mass
Mutual in connection with the preparation, arrangement, execution and
enforcement of this Amendment.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS OF SUCH STATE WHICH WOULD OTHERWISE CAUSE THIS
AMENDMENT TO BE CONSTRUED OR ENFORCED OTHER THAN IN ACCORDANCE WITH THE LAWS OF
THE STATE OF ILLINOIS.
7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
8. Counterparts. This Amendment may be executed by one or more of the
parties to the Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
9. No Strict Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Amendment. In the event an ambiguity or
question of intent or interpretation arises, this Amendment shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Amendment.
The remainder of this page is intentionally blank.
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IN WITNESS WHEREOF, this Amendment has been duly executed
effective as of the day and year first above written.
AG-CHEM EQUIPMENT CO., INC. C.M. LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc.,
As Investment Sub-Advisor
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Senior Vice President By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Investment Director
Each of the undersigned Guarantors hereby
consents to the foregoing amendments and
waivers and confirms that, notwithstanding
the foregoing amendments and waivers, all
of its obligations under its Subsidiary
Guaranty, dated as of April 6, 1994,
remain in full force and effect with
respect to the Note Agreement as amended
and waived as provided above.
LOR*AL PRODUCTS, INC.
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
AG-CHEM EQUIPMENT CANADA, LTD.
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
AG-CHEM EQUIPMENT CO.,
INTERNATIONAL CORP.
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
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AG-CHEM MANUFACTURING, INC.
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
AG-CHEM SALES CO., INC.
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
AG-CHEM EUROPE, B.V.
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Supervisory Director
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