EXHIBIT 10.4
FIRST AMENDMENT TO CREDIT AGREEMENT AND CONSENT
This FIRST AMENDMENT TO CREDIT AGREEMENT AND CONSENT (this "Amendment")
dated as of April 12, 2004, 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;
COOPERATIEVE 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 COOPERATIEVE 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").
W I T N E S S E T H:
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, 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, the Canadian Administrative
Agent and the Administrative Agent have agreed to the requested amendments 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. Amendment to Section 2.5. Section 2.5 of the Credit
Agreement, Prepayments and Deposits, is hereby amended and modified by deleting
subsection 2.5(b)(i) in its entirety and by substituting the following in lieu
thereof:
"(i) If, at any time after the Initial Funding Date, any
Borrower shall (A) incur any Funded Debt (other than (1) the
Obligations, (2) Indebtedness under the Bridge Facility, and
(3) Indebtedness permitted under clauses (b), (d), (e), and
(g) through (j) of Section 7.1) or (B) issue any Stock (other
than (1) the issuance of Stock to AGCO or any Restricted
Subsidiary, (2) the issuance of Stock of AGCO to any employee,
executive, director or officer under an incentive compensation
program, (3) the issuance of any Stock of a Restricted
Subsidiary to directors of such Restricted Subsidiaries to the
extent the issuance thereof is required by applicable law, and
(4) the issuance of Stock of AGCO to the extent that the Net
Cash Proceeds thereof are used substantially concurrently to
purchase equity securities of AGCO from management, directors
or key employees of AGCO or any of its Subsidiaries), then one
hundred percent (100%) of the Net Cash Proceeds received by
such Borrower pursuant to clause (A) and seventy-five percent
(75%) of the Net Cash Proceeds received by such Borrower
pursuant to clause (B) shall be paid within seven (7) Business
Days of receipt thereof by such Borrower to the Administrative
Agent as a prepayment of the Loans (in either case to be
applied as set forth in Section 2.5(b)(xii) below).
Notwithstanding the foregoing, AGCO shall be permitted to
retain the Net Cash Proceeds from a Stock issuance or an
incurrence of Funded Debt (x) received at any time after the
Initial Funding Date by AGCO to the extent such Net Cash
Proceeds are concurrently used to repay the Bridge Facility,
and after the repayment in full of the Bridge Facility, are
used to repay any of the Existing 2006 Notes or the Existing
2008 Notes, and (y) received by AGCO within one (1) year from
the Initial Funding Date in an aggregate amount of up to U.S.
$150,000,000; provided the Bridge Facility has been repaid in
full or is not outstanding and AGCO has satisfied the
requirements of Section 5.21 as of such date. In the event
AGCO elects to apply Net Cash Proceeds pursuant to any of
clauses (x) and (y) above and such Net Cash Proceeds are from
the issuance of Stock and incurrence of Funded Debt
simultaneously or in a related transaction or series of
related transactions, the Net Cash Proceeds from the Stock
issuance shall be deemed to be applied first to the uses in
clauses (x) and/or (y) above and the Net Cash Proceeds from
the Funded Debt incurrence shall be deemed to be applied
thereafter to the uses in clauses (x) and/or (y) above.
Nothing in this Section shall authorize any Borrower to issue
any Stock or incur any Funded Debt except as expressly
permitted by this Agreement."
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SECTION 2. Consent. The Lenders hereby acknowledge and consent that, so
long as the Borrowers give the required notice of redemption of the Existing
2006 Notes to the trustee within one (1) Business Day of their receipt of net
proceeds from the New Senior Subordinated Notes, the Borrowers may (a) use the
net proceeds from the New Senior Subordinated Notes (and any remaining net
proceeds received on April 7, 2004 from the issuance of common stock) to repay
the Revolving Loans, and (b) reborrow the amount of such net proceeds as
Revolving Loans to redeem the Existing 2006 Notes, provided that the Borrowers
repay the Existing 2006 Notes in full no later than June 7, 2004.
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, or for the consummation
of the transactions contemplated hereby;
(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 any such representations and warranties that, by their
terms, expressly refer to an earlier date; and
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(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.
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. 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 7. 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 amendment 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 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).
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SECTION 8. 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 9. 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 10. 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 11. 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- XXXXX X XXXXXXXX
---------------------------------
Title: VP- TREASURER
AGCO CANADA, LTD.
By: -s- XXXXX X XXXXXXXX
---------------------------------
Title: VP- TREASURER
AGCO LIMITED
By: -s- CSD XXXXXX X.X. XXXXXX
---------------------------------
Title: ______________________________
AGCO INTERNATIONAL LIMITED
By: -s- CSD XXXXXX X.X. XXXXXX
---------------------------------
Title: ______________________________
AGCO HOLDING B.V.
By: -s- CSD XXXXXX
---------------------------------
Title: ______________________________
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
First Amendment to Credit Agreement
Signature Page 1
AGCO DEUTSCHLAND HOLDING
LIMITED & CO. KG
By: -s- XXXXX X XXXXXXXX
---------------------------------
Title: VP- TREASURER
VALTRA HOLDING OY
By: -s- XXXXX X XXXXXXXX
---------------------------------
Title: VP- TREASURER
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
First Amendment to Credit Agreement
Signature Page 2
AGCO DEUTSCHLAND HOLDING
LIMITED & CO. KG
By: -s- X. X. Xxxxxx
---------------------------------
Title:_______________________________
VALTRA HOLDING OY
By: -s- X. X. Xxxxxx
---------------------------------
Title: ______________________________
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
First Amendment to Credit Agreement
Signature Page 2
AGENTS, ISSUING BANKS COOPERATIEVE CENTRALE RAIFFEISEN-
AND SWING LINE BANK: BOERENLEENBANK B.A., "RABOBANK
NEDERLAND," NEW YORK BRANCH, as
Administrative Agent and Multi-Currency
Issuing Bank
By: -s- Xxxxxxxx X. English
------------------------------------
Title: Xxxxxxxx X. English
Vice President
By: -s- Xxxxx Xxxxxxx
------------------------------------
Title: Xxxxx Xxxxxxx
Executive Director
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND,"
CANADIAN BRANCH, as Canadian Administrative
Agent and Canadian Issuing Bank
By: -s- XXXXX X. XXXXXXXX
-----------------------------------
Title: XXXXX X. XXXXXXXX
VICE PRESIDENT
By: -s- Xxxxx Xxxxxxx
-----------------------------------
Title: Xxxxx Xxxxxxx
Vice President
LENDERS: See each Lender Addendum attached hereto
First Amendment to Credit Agreement
Signature Page 3
EXECUTED LENDER ADDENDA
ON FILE WITH THE ADMINISTRATIVE AGENT
ANNEX 1
LENDER ADDENDUM
Reference is made to the Credit Agreement dated as of December
22, 2003 (as amended, restated, renewed, supplemented or otherwise modified from
time to time, the "Credit Agreement") among AGCO Corporation, AGCO Canada Ltd.,
AGCO Limited, AGCO International Limited, AGCO Holding B.V., AGCO Deutschland
Holding Limited & Co. KG and Valtra Holding Oy (collectively, the "Borrowers"),
the lenders signatory thereto (together with any other financial institution
that subsequently becomes a Lender thereunder, the "Lenders"), the Issuing Banks
(as defined in the Credit Agreement), Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", Canadian Branch, as
Canadian Administrative Agent, SunTrust Bank and Xxxxxx Xxxxxxx Senior Funding,
Inc., as Co-Syndication Agents, CoBank, ACB and The Bank of Tokyo-Mitsubishi,
Ltd., NY Branch, as Co-Documentation Agents, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch, as the
Administrative Agent (the "Administrative Agent"). Capitalized terms used herein
without definition shall have the respective meanings ascribed to those terms in
the Credit Agreement.
Upon execution and delivery of this Lender Addendum by the
undersigned Lender, the undersigned Lender hereby consents to and agrees with
all of the terms and conditions contained in, and shall become a party to, the
First Amendment to Credit Agreement and Consent dated as of April 12, 2004.
THIS LENDER ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
This Lender Addendum may be executed by one or more of the
parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page hereof by facsimile
transmission or via email transmission of an Adobe portable document file (also
known as a "PDF File") shall be effective as delivery of a manually executed
counterpart hereof.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Lender
Addendum to be duly executed and delivered by their proper and duly authorized
officers effective as of the date set forth herein.
[NAME OF LENDER]
By:_________________________________
Name:_______________________________
Title:______________________________
