EXHIBIT 10.1
CREDIT AGREEMENT
dated as of December 22, 2003
among
AGCO CORPORATION
and
CERTAIN SUBSIDIARIES NAMED HEREIN,
as Borrowers,
THE LENDERS NAMED HEREIN,
as Lenders,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
as Lead Arranger and Book Runner,
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,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", CANADIAN BRANCH,
as Canadian Administrative Agent,
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
as Administrative Agent
TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS.......................................................... 2
Section 1.1 Certain Defined Terms................................................................ 2
Section 1.2 Computation of Time Periods.......................................................... 48
Section 1.3 Accounting Terms..................................................................... 48
Section 1.4 Currency Equivalents................................................................. 49
Section 1.5 Construction......................................................................... 49
ARTICLE 2. AMOUNTS AND TERMS OF THE loANS AND THE LETTERS OF CREDIT.................................. 49
Section 2.1 Revolving Credit Facility............................................................ 49
Section 2.2 Term Loan Facility................................................................... 51
Section 2.3 Making the Revolving Loans........................................................... 52
Section 2.4 Reduction of the Commitments......................................................... 56
Section 2.5 Prepayments and Deposits............................................................. 57
Section 2.6 Interest............................................................................. 61
Section 2.7 Fees................................................................................. 62
Section 2.8 Conversion and Designation of Interest Periods....................................... 63
Section 2.9 Payments and Computations............................................................ 65
Section 2.10 Sharing of Payments, Etc............................................................. 67
Section 2.11 Letters of Credit.................................................................... 67
Section 2.12 Defaulting Lenders................................................................... 72
Section 2.13 Borrower Liability................................................................... 73
Section 2.14 Bankers' Acceptances and BA Equivalent Loans......................................... 73
Section 2.15 Special Provisions Applicable to Lenders Upon the Occurrence of a Sharing Event...... 76
Section 2.16 Termination of Agreement............................................................. 83
ARTICLE 3. CONDITIONS PRECEDENT...................................................................... 84
Section 3.1 Conditions Precedent to Agreement Date............................................... 84
Section 3.2 Conditions Precedent to Initial Funding Date......................................... 87
Section 3.3 Conditions Precedent to Each Borrowing and Issuance.................................. 92
Section 3.4 Determinations Under Section 3.1 and Section 3.2..................................... 92
ARTICLE 4. REPRESENTATIONS AND WARRANTIES............................................................ 93
Section 4.1 Representations and Warranties of the Borrowers...................................... 93
Section 4.2 Survival of Representations and Warranties, etc...................................... 101
ARTICLE 5. AFFIRMATIVE COVENANTS..................................................................... 102
Section 5.1 Compliance with Laws, Etc............................................................ 102
Section 5.2 Preservation of Existence, Etc....................................................... 102
Section 5.3 Payment of Taxes and Claims.......................................................... 102
Section 5.4 Compliance with Environmental Laws................................................... 103
Section 5.5 Maintenance of Insurance............................................................. 000
-x-
Xxxxxxx 5.6 Visitation Rights.................................................................... 104
Section 5.7 Accounting Methods................................................................... 104
Section 5.8 Maintenance of Properties, Etc....................................................... 104
Section 5.9 Payment of Indebtedness; Performance of Material Contracts........................... 104
Section 5.10 Foreign Subsidiary Guaranties, Etc................................................... 104
Section 5.11 ERISA................................................................................ 105
Section 5.12 Conduct of Business.................................................................. 105
Section 5.13 Post-Closing Deliveries; Further Assurances.......................................... 105
Section 5.14 Broker's Claims...................................................................... 106
Section 5.15 Material Subsidiaries................................................................ 106
Section 5.16 Cash Concentration Accounts.......................................................... 107
Section 5.17 Use of Proceeds...................................................................... 107
Section 5.18 Covenants of the Borrowing Subsidiaries.............................................. 107
Section 5.19 Real Property Documents.............................................................. 107
Section 5.20 Canadian Bank Act Security Documents................................................. 107
Section 5.21 New Equity Issuance.................................................................. 107
ARTICLE 6. INFORMATION COVENANTS..................................................................... 108
Section 6.1 Reporting Requirements............................................................... 108
Section 6.2 Access to Accountants................................................................ 111
ARTICLE 7. NEGATIVE COVENANTS........................................................................ 112
Section 7.1 Indebtedness......................................................................... 112
Section 7.2 Limitation on Guaranties............................................................. 113
Section 7.3 Liens, Etc........................................................................... 114
Section 7.4 Restricted Payments and Purchases.................................................... 114
Section 7.5 Sale-Leasebacks...................................................................... 114
Section 7.6 Mergers, Etc......................................................................... 115
Section 7.7 Sales of Assets...................................................................... 115
Section 7.8 Investments.......................................................................... 117
Section 7.9 Acquisitions......................................................................... 118
Section 7.10 Change in Nature of Business......................................................... 119
Section 7.11 Affiliate Transactions............................................................... 119
Section 7.12 Amendments........................................................................... 119
Section 7.13 Prepayments of Indebtedness.......................................................... 120
Section 7.14 Restrictions; Negative Pledge........................................................ 120
Section 7.15 Accounting Changes................................................................... 121
Section 7.16 Issuance or Sales of Stock........................................................... 121
Section 7.17 No Notice Under Indentures........................................................... 121
Section 7.18 Financial Covenants.................................................................. 121
Section 7.19 Covenants of the Borrowing Subsidiaries.............................................. 123
Section 7.20 Anti-Terrorism Laws.................................................................. 123
Section 7.21 Speculative Transactions............................................................. 123
Section 7.22 Limitation of Covenants.............................................................. 123
ARTICLE 8. EVENTS OF DEFAULT......................................................................... 124
Section 8.1 Events of Default.................................................................... 124
Section 8.2 Remedies............................................................................. 127
Section 8.3 Actions in Respect of the Letters of Credit.......................................... 128
Section 8.4 Application of Payments.............................................................. 129
ARTICLE 9. THE AGENTS................................................................................ 129
Section 9.1 Authorization and Action............................................................. 129
Section 9.2 Agents' Reliance, Etc................................................................ 130
Section 9.3 Agents, in their Individual Capacity and Affiliates.................................. 131
Section 9.4 Lender Credit Decision............................................................... 131
Section 9.5 Notice of Default or Event of Default................................................ 131
Section 9.6 Indemnification...................................................................... 132
Section 9.7 Successor Agent...................................................................... 132
Section 9.8 Agent May File Proofs of Claim....................................................... 133
Section 9.9 Co-Documentation Agent and Co-Syndication Agent...................................... 133
Section 9.10 Collateral; Parallel Debt............................................................ 134
Section 9.11 Release of Collateral................................................................ 135
Section 9.12 Securitization Documents............................................................. 136
ARTICLE 10. MISCELLANEOUS............................................................................. 136
Section 10.1 Amendments, Etc...................................................................... 136
Section 10.2 Notices, Etc......................................................................... 138
Section 10.3 No Waiver: Remedies.................................................................. 138
Section 10.4 Costs and Expenses................................................................... 139
Section 10.5 Right of Set-off..................................................................... 140
Section 10.6 Binding Effect....................................................................... 140
Section 10.7 Assignments and Participations....................................................... 141
Section 10.8 Marshalling; Payments Set Aside...................................................... 145
Section 10.9 Delivery of Lender Addenda........................................................... 145
Section 10.10 Contribution Among Guarantors........................................................ 145
ARTICLE 11. INCREASED COSTS, TAXES, ETC............................................................... 146
Section 11.1 Increased Costs, Etc................................................................. 146
Section 11.2 LIBO Breakage Costs.................................................................. 149
Section 11.3 Judgment Currency.................................................................... 149
Section 11.4 Taxes................................................................................ 150
Section 11.5 Replacement of a Lender.............................................................. 153
ARTICLE 12. JURISDICTION.............................................................................. 155
Section 12.1 Consent to Jurisdiction.............................................................. 155
Section 12.2 Governing Law........................................................................ 155
Section 12.3 Execution in Counterparts............................................................ 155
Section 12.4 No Liability of the Issuing Banks.................................................... 155
Section 12.5 Certain Cash Deposits................................................................ 156
Section 12.6 Waiver of Jury Trial................................................................. 158
ARTICLE 13. Confidentiality........................................................................... 158
EXHIBITS AND SCHEDULES:
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Notice of Rollover (Canadian Facility)
Exhibit C-1 Form of Notice of Borrowing (Multi-Currency Facility)
Exhibit C-2 Form of Notice of Borrowing (Canadian Facility)
Exhibit D Form of Bankers' Acceptance
Exhibit E Form of Discount Note
Exhibit F Form of Lender Addendum
Schedule C-1 Closed Facilities to be sold
Schedule G-1 Guarantors; Guaranty Agreements
Schedule P-1 Permitted Real Property Liens
Schedule P-2 Pledgors
Schedule 2.11 Existing Letters of Credit
Schedule 4.1(b) Subsidiaries; Restricted Subsidiaries; Material Subsidiaries
Schedule 4.1(c) Joint Ventures
Schedule 4.1(e) Authorizations; Approvals
Schedule 4.1(i) Litigation
Schedule 4.1(l) ERISA Matters
Schedule 4.1(n) Environmental Matters
Schedule 4.1(o) Tax Matters
Schedule 4.1(p) Permitted Liens as of the Initial Funding Date
Schedule 4.1(s) Material Contracts
Schedule 4.1(t) Intellectual Property
Schedule 4.1(u) Indebtedness as of September 30, 2003
Schedule 4.1(v) Employee Relations
Schedule 5.19 Real Property Collateral
Schedule 7.6 Mergers
CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement") dated as of December 22, 2003
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") listed on the signature pages hereof; COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH
("Rabobank"), as lead arranger and book runner (in such capacity, the "Lead
Arranger"); SUNTRUST BANK and XXXXXX XXXXXXX SENIOR FUNDING, INC., as
co-syndication agents (the "Co-Syndication Agents"), COBANK, ACB and THE BANK OF
TOKYO-MITSUBISHI, LTD., NY BRANCH, as co-documentation agents (the
"Co-Documentation Agents"); COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", CANADIAN BRANCH ("Rabobank Canada"), as Canadian
administrative agent for the Canadian Lenders (together with any successor
appointed pursuant to Article 9, 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 appointed pursuant to Article 9, in such capacity, the
"Administrative Agent").
WITNESSETH:
WHEREAS, certain of the Borrowers, the Administrative Agent and certain
other financial institutions are parties to that certain Credit Agreement dated
as of April 17, 2001 (as amended, restated, supplemented or otherwise modified
from time to time prior to the Initial Funding Date, the "Existing Credit
Agreement"); and
WHEREAS, after the date hereof, but prior to or simultaneously with the
making of the initial Loans hereunder, (a) AGCO shall enter into the New Capital
Market Transactions (as defined herein) and (b) AGCO shall acquire the Stock and
assets of Valtra Oy Ab (the "Target") and its Subsidiaries; and
WHEREAS, the Net Cash Proceeds of the New Capital Market Transactions,
together with the Initial Loans (as defined herein) hereunder, will be used on
the Initial Funding Date (as defined herein) (a) to pay all the Obligations (as
defined in the Existing
1
Credit Agreement) then outstanding under the Existing Credit Agreement, and (b)
to fund the acquisition of the Target; and
WHEREAS, AGCO and each other Borrower operate related businesses, each
being integral to the other; and
WHEREAS, AGCO and each other Borrower acknowledge that the credit
facility provided hereby is and will be of direct interest, benefit and
advantage to each of them, and will enable them to achieve synergy and economies
of scale; and
WHEREAS, at the request of AGCO and each other Borrower, the Agents,
the Issuing Banks and the Lenders have agreed to extend the credit provided for
hereunder;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto hereby agree as follows:
ARTICLE 1.
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 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 Lender under this Agreement, a fee payable in Canadian Dollars by
the Canadian Subsidiary to such Canadian Lender calculated on the face amount of
the Bankers' Acceptance at a rate equal to the Applicable Margin for LIBO Rate
Loans, on the basis of the number of days in the Contract Period and on the
basis of a year of three hundred sixty-five (365) days.
"Account" means the Administrative Agent's Account or the Canadian
Administrative Agent's Account, as applicable.
"Acquisition" means the acquisition on the Initial Funding Date of
Target and its Subsidiaries by AGCO, as more fully described in the Asset
Purchase Agreement.
"Acquisition Amount Basket" has the meaning specified in Section 7.9
hereof.
"Adjusted 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 Equivalent Amount in U.S.
Dollars as of such date of (i) the aggregate principal amount of all
Multi-Currency Revolving Loans made by such Lender and outstanding on such date,
plus (ii) such Lender's Pro Rata Share of (x) the aggregate Available Amount of
all Letters of Credit issued for the account of any Multi-Currency Borrower and
outstanding on such date, plus (y) the aggregate principal
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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.
"Administrative Agent" has the meaning specified in the introductory
paragraph of this Agreement.
"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/Loan Syndications;
(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/Loan
Syndications; or
(c) for Euros, 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/Loan
Syndications.
"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, officer or partner 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 includes (a) the direct or
indirect beneficial ownership by such other Person of ten percent (10%) or more
of the outstanding voting securities or voting equity of such Person or (b) by
such other Person of the power, directly or indirectly, to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of 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 ten percent (10%) 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, and "Agents" means both of them.
"Agreed Alternative Currency" has the meaning specified in Section
2.3(a)(viii) hereof.
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"Agreement" means this Agreement.
"Agreement Date" means the date as of which this Agreement is dated.
"Anti-Terrorism Laws" means, collectively, any law, regulation or order
relating to terrorism, national security, U.S. embargoes or other sanctions, or
money laundering, including, without limitation, the International Emergency
Economic Powers Act (50 U.S.C. Section 1701 et seq.), the Trading with the Enemy
Act (50 U.S.C. Section 5 et seq.), the International Security Development and
Cooperation Act (22 U.S.C. Section 2349aa-9 et seq.), Executive Order No. 13224,
and the USA Patriot Act, and any rules and regulations promulgated pursuant to
or under the authority of any of the foregoing (including, without limitation,
the rules and regulations promulgated or administered by OFAC).
"Applicable Capital Market Transaction Documents" means, collectively,
as of any date, the Bridge Facility Documents, the Convertible Note Documents,
the Existing 2006 Note Documents, the Existing 2008 Note Documents, the New
Senior Subordinated Note Documents, and any other document governing the Capital
Market Transactions that are in effect and binding on AGCO, as of such date of
determination.
"Applicable Law" means, in respect of any Person, all provisions of
constitutions, statutes, rules, regulations, permits and orders of governmental
bodies or regulatory agencies applicable to such Person, and all orders and
decrees of all courts and arbitrators in proceedings or actions to which the
Person in question is a party or by which it is bound.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Loan denominated in
U.S. Dollars and such Lender's LIBOR Lending Office for Loans denominated in any
Offshore Currency.
"Applicable Margin" means, as of any date of determination, (a) if the
relevant Obligation is a US Term Loan that is a Base Rate Loan, 1.00%, (b) if
the relevant Obligation is a Euro Term Loan that is a Base Rate Loan, 2.25%, (c)
if the relevant Obligation is a Term Loan that is a LIBO Rate Loan, 2.25%, or
(d) for all other relevant Obligations, the applicable percentage indicated
below that corresponds to the Senior Debt Ratio of AGCO indicated below:
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Applicable
Margin for
LIBO Rate
Revolving
Loans and for
Base Rate Applicable
Revolving Margin for Base
Loans in Rate Revolving Applicable
Offshore Loans in U.S. Margin for
Senior Debt Ratio Currencies Dollars Unused Fee
------------------------------------------------------------------------------------------
Greater than or equal to 3.00 to 1.00 2.25% 1.00% 0.50%
------------------------------------------------------------------------------------------
Less than 3.00 to 1.00, but greater than 2.00% 0.75% 0.50%
or equal to 2.50 to 1.00
------------------------------------------------------------------------------------------
Less than 2.50 to 1.00, but greater than 1.75% 0.50% 0.45%
or equal to 2.00 to 1.00
------------------------------------------------------------------------------------------
Less than 2.00 to 1.00 1.50% 0.25% 0.40%
------------------------------------------------------------------------------------------
The Applicable Margin for each Revolving Loan and the Unused Fee shall be
determined by reference to the Senior Debt Ratio in effect from time to time at
the end of each fiscal quarter based on the financial statement for the most
recently ended fiscal quarter and the three immediately preceding completed
fiscal quarters; provided, however, that (x) no change in the Applicable Margin
shall be effective until three (3) Business Days after the date on which the
Administrative Agent receives financial statements pursuant to Section 6.1(b)
and (c), as the case may be, and a certificate of the Chief Financial Officer of
AGCO demonstrating such ratio, attaching thereto a schedule in form reasonably
satisfactory to the Administrative Agent of the computations used by AGCO in
determining such Senior Debt Ratio, and (y) the Applicable Margin shall be the
highest interest rate margin set forth above with respect to the applicable
Revolving Loan and Unused Fee, respectively, (i) from the Initial Funding Date
through and including the second Business Day after the Administrative Agent
receives the information required by clause (x) of this proviso for the first
fiscal quarter ending on or after the six (6)-month anniversary of the Initial
Funding Date, (ii) if AGCO has not submitted to the Administrative Agent the
information described in clause (x) of this proviso as and when required under
Section 6.1(b) or (c), as the case may be, for so long as such information has
not been received by the Administrative Agent, and (iii) at the election of the
Administrative Agent or the Required Lenders, upon the occurrence and during the
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continuation of any Event of Default (whether or not the Default Rate of
interest shall then be in effect).
"Appropriate Agent" means, at any time, with respect to matters
relating to the Multi-Currency Facility, the US Term Loan Facility, the Euro
Term Loan 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 Facility, or Letters of Credit or Bankers' Acceptances 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 applicable 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, with respect to the Multi-Currency
Facility, a Multi-Currency Lender, with respect to the Canadian Facility, a
Canadian Lender, with respect to the US Term Loan Facility, a US Term Loan
Lender, and with respect to the Euro Term Loan Facility, a Euro Term Loan
Lender.
"Approved Fund" means any Person (other than a natural person) that is
(or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or manages
a Lender.
"Asset Disposition" shall mean the disposition of any or all of the
assets (including, without limitation, the Stock of a Subsidiary or any
ownership interest in a joint venture) of any Borrower or any Subsidiary whether
by sale, lease, transfer or otherwise, excluding the sale of Inventory in the
ordinary course of business and the sale of Receivables pursuant to a
Securitization Facility.
"Asset Purchase Agreement" means that certain Master Agreement Purchase
of Assets and Business dated as of September 10, 2003, among Target, Tracfin
Holding OY, Partek Cargotec Holding Netherlands, B.V., Partek Holding, Inc.,
Kone Corporation and AGCO.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, accepted by the Administrative Agent,
and in accordance with Section 10.7 and in substantially the form of Exhibit A
hereto.
"Authorized Signatory" means, with respect to any Person, such senior
personnel of such Person as may be duly authorized and designated in writing by
such Person to execute documents, agreements, and instruments on behalf of the
Person.
6
"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 a Canadian Revolving Loan 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 D hereto (or such other form as may be satisfactory to the
Canadian Administrative Agent) denominated in Canadian Dollars drawn by the
Canadian Subsidiary and accepted by a Canadian Lender or Participant and the
term "Bankers' Acceptance" shall be construed to include Discount Notes as
provided in Section 2.14(k).
"Bankruptcy Code" means the United States Bankruptcy Code (11 U.S.C.
Section 101 et seq.), and any similar laws relating to the insolvency of debtors
in any other country (including, without limitation, the Bankruptcy and
Insolvency Act (Canada) and the Companies' Creditors Arrangement Act (Canada)),
as the same may now or hereafter be amended, and including any successor
statute.
"Base Rate" means, at any date of determination, 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 Revolving Loans in U.S. Dollars
and the U.S. Term Loan, 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 (the "Reference Rate"), and (ii) one-half of one percent (.50%) per annum
above the Federal Funds Rate, (b) with respect to Multi-Currency Revolving
Loans in Offshore Currencies and the Euro Term Loan, the offered quotation to
first-class banks in the Euro-Zone interbank market for Euro overnight deposits
of amounts in immediately available funds comparable to the amount of the
requested Loan as of 11:00 A.M. (Brussels time) on such date, as determined by
the Administrative Agent, and (c) with respect to Canadian Revolving Loans, the
annual rate of interest equivalent to the annual rate of interest that would be
paid by Rabobank Canada from time to time in obtaining funds (whether or not
funds are actually obtained) to make advances of loans that bear interest at a
fluctuating rate based on the prime rate of Rabobank Canada announced or
applied by it from time to time, as determined by the Canadian Administrative
Agent in Canada (which rate as of the Agreement Date is four and one-half
percent (4.5%)). Each change in the Base Rate shall take effect automatically
as of the opening of business on the effective date of the change in the
applicable rate described above.
"Base Rate Loan" means a Loan (a) denominated in U.S. Dollars and made
by a Multi-Currency Lender or a US Term Loan Lender, (b) denominated in an
Offshore Currency and made by a Multi-Currency Lender or a Euro Term Loan
Lender, or (c) denominated in Canadian Dollars and made by a Canadian Lender, in
each case that bears interest at the Base Rate plus the Applicable Margin in
effect from time to time with respect to Base Rate Loans.
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"Base Rate Revolving Loan" means a Base Rate Loan that is a Revolving
Loan.
"Blocked Person" has the meaning specified in Section 4.1(x) hereof.
"Board of Directors" means (a) with respect to a corporation, the board
of directors of such corporation or a duly authorized committee of the board of
directors, (b) with respect to a partnership, the board of directors or similar
body of the general partner (or, if more than one general partner, the managing
general partner) of such partnership, and (c) with respect to a limited
liability company, any managing or other authorized committee of such limited
liability company or any board of directors or similar body of any managing
member.
"Borrower" and "Borrowers" have the respective meanings specified in
the introductory paragraph of this Agreement; provided that additional Persons
may be added to 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 Outstandings, the Canadian Outstandings and the Term Loan
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 Revolving Loan Borrowing or a Term Loan, as
applicable.
"Borrowing Base" means, as of a date of determination, an amount equal
to the sum of: (a) eighty-five percent (85%) of the Eligible Receivables; plus
(b) sixty percent (60%) of the Eligible Inventory, valued at the lowest of (i)
the manufactured cost, determined in accordance with GAAP on a first-in,
first-out basis, (ii) market value or (iii) acquisition cost (or, if any such
cost or value is denominated in an Offshore Currency, the Equivalent Amount in
U.S. dollars of such cost as of such date of determination).
"Borrowing Base Certificate" shall mean a certificate, duly executed by
the Chief Financial Officer of AGCO, appropriately completed and in form and
substance satisfactory to the Administrative Agent.
"Borrowing Subsidiary" and "Borrowing Subsidiaries" means each of the
Borrowers other than AGCO.
"Bridge Facility" means, at any time, the Obligations (as defined in
the Bridge Facility Loan Agreement) of AGCO and its domestic Subsidiaries
outstanding under the Bridge Facility Documents, which shall not at any time
exceed the principal amount of U.S. $100,000,000, plus interest, fees and
expenses related thereto.
8
"Bridge Facility Documents" means the Bridge Facility Loan Agreement
and the Bridge Facility Notes, together with any Conversion Notes, indenture
with respect to the Conversion Notes, Exchange Notes, Exchange Note Indenture
and Exchange Registration Rights Agreement (as such terms are defined in the
Bridge Facility Loan Agreement) which may be in existence on or after the first
anniversary of the Bridge Facility.
"Bridge Facility Loan Agreement" means that certain Bridge Loan
Agreement, dated as of January 5, 2004, among AGCO, as borrower, Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch,
as Administrative Agent, Xxxxxx Xxxxxxx Senior Funding, Inc., as Syndication
Agent and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
Nederland", New York Branch and Xxxxxx Xxxxxxx Senior Funding, Inc., as Joint
Lead Arrangers and Joint Book-Runners.
"Bridge Facility Notes" means those certain promissory notes of AGCO
issued to any lender under the Bridge Facility Loan 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 LIBO Rate Loan, 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 Loan or Letter of Credit 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 Royal Bank of Canada in Xxxxxxx,
Xxxxxxx, Swift TID Royccat 2, Account Number 07172-003, #0000000, Beneficiary:
Rabobank Nederland, Canada, or such other account as the Canadian Administrative
Agent may from time to time designate as the Canadian Administrative Agent's
Account.
"Canadian Borrowing" means a borrowing consisting of simultaneous
Canadian Revolving Loans of the same Type made by the Canadian Lenders.
"Canadian Commitment" means, with respect to any Canadian Facility
Lender at any time, the amount set forth on Schedule 1 to the Lender Addendum
delivered by such Lender under the caption "Canadian 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 10.7 as such Lender's "Canadian Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.4.
9
"Canadian Dollars" and "Cdn. $" each means lawful money of Canada.
"Canadian Excess Outstandings" has the meaning specified in Section
12.5(b).
"Canadian Facility" means, at any time, the aggregate amount of the
Canadian Lenders' Canadian Commitments at such time, which shall not exceed the
Equivalent Amount of U.S. $20,000,000.
"Canadian Issuing Bank" means Rabobank Canada and its successors and
assigns hereunder as issuer of Letters of Credit for the account of the Canadian
Subsidiary.
"Canadian Lender" means any Lender that has a Canadian Commitment.
"Canadian Outstandings" means, on any date of determination, the
Equivalent Amount in U.S. Dollars of (a) the aggregate principal amount of all
Base Rate Loans or LIBO Rate Loans to the Canadian Subsidiary outstanding on
such date of determination, plus (b) 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 (c)
the aggregate Available Amount of all Letters of Credit issued for the account
of the Canadian Subsidiary and outstanding on such date of determination, plus
(d) the aggregate face amount of all Bankers' Acceptances outstanding on such
date of determination.
"Canadian Revolving Loan" has the meaning specified in Section 2.1(b).
"Canadian Securitization" means funding in connection with sales by the
Canadian Subsidiary of wholesale Receivables invoiced to third parties at
addresses located in Canada under a securitization trust vehicle, as more fully
set forth in the Canadian Securitization Documents.
"Canadian Securitization Documents" means (a) that certain Receivables
Purchase Agreement among Canadian Subsidiary, as the seller, AGCO, as the
initial servicer, Nieuw Amsterdam Receivables Corporation, as the purchaser, and
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank International",
New York Branch, as the agent, dated June 26, 2001, (b) that certain Liquidity
Asset Purchase Agreement among Nieuw Amsterdam Receivables Corporation,
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank International",
New York Branch, as the committed purchaser, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank International", New York Branch, as
liquidity agent, dated June 27, 2001, and (c) all other agreements in form and
substance satisfactory to the Administrative Agent executed in connection with,
or in replacement of, the foregoing, as the same may be amended, supplemented or
modified from time to time with the consent of the Administrative Agent.
10
"Canadian Subsidiary" has the meaning specified in the introductory
paragraph of this Agreement.
"Canadian Subsidiary Cash Collateral Account" has the meaning specified
in Section 12.5(b).
"Capital Expenditures" means, for any Person for any period, all
expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, fixed assets, Real Property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a Consolidated balance sheet of
such Person or have a useful life of more than one year; provided, however, that
there shall be excluded from this definition that portion of any expenditure
which is (a) otherwise treated as an expense on the statement of such Person
that would have an effect on such Person's Consolidated EBITDA, (b) made with
the proceeds of any trade-in or sale of existing fixed assets owned by such
Person to the extent the reinvestment of such proceeds in replacement assets is
permitted hereunder or (c) made with insurance proceeds received in respect of
loss or damage to a fixed asset to replace such asset.
"Capital Market Transactions" means, collectively, the Existing Capital
Market Transactions and the New Capital Market Transactions.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases on a balance sheet of the
lessee, excluding operating leases.
"Cash Equivalents" means, for any Person, any of the following, to the
extent owned by such Person free and clear of all Liens, other than Permitted
Liens and Liens created under the Security Documents and having a maturity of
not greater than one (1) year from the date of acquisition: (a) readily
marketable direct obligations of the government of the United States or any
agency or instrumentality thereof or obligations unconditionally guaranteed by
the full faith and credit of the government of the United States, (b) readily
marketable direct obligations denominated in U.S. Dollars of any other sovereign
government or any agency or instrumentality thereof which are unconditionally
guaranteed by the full faith and credit of such government and which have a
rating equivalent to at least "Prime-1" (or the then equivalent grade) by
Xxxxx'x or "A-1" (or the then equivalent grade) by S&P, (c) insured certificates
of deposit of, time deposits, or bankers' acceptances with any commercial bank
that issues (or the parent of which issues) commercial paper rated as described
in clause (d) below, is organized under the laws of the United States or any
State thereof or is a foreign bank or branch or agency thereof acceptable to the
Administrative Agent and, in any case, has combined capital and surplus of at
least U.S. $1,000,000,000 (or the foreign currency equivalent thereof) or (d)
commercial paper issued by any corporation organized under the laws of any State
of the United States or any commercial bank organized under the laws of the
United States
11
or any State thereof or any foreign bank, each of which shall have a
consolidated net worth of at least U.S. $250,000,000, 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.
"CERCLIS" has the meaning specified in Section 4.1(n) hereof.
"Change of Control" means at any time, the occurrence of any of the
following: (a) any Person or two or more Persons (including any "group" as that
term is used in Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934) 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
thirty-five percent (35%) or more of the combined voting power of all voting
Stock of AGCO; or (b) during any period of up to twenty-four (24) consecutive
months, commencing after the Agreement Date, individuals who at the beginning of
such twenty-four (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
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 (c)
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 thirty-five percent (35%) or more of the combined voting power of
all voting Stock of AGCO; or (d) any "Change of Control", as defined in any of
the Applicable Capital Market Transaction Documents shall occur, or (e) (i) AGCO
shall fail to own, directly or indirectly, one hundred percent (100%) of the
Stock of each Material Subsidiary, or (ii) Xxxxxx Xxxxxxxx Corp. (or any other
wholly owned United States Subsidiary of AGCO one hundred percent (100%) of
whose Stock is pledged to the Administrative Agent) shall fail to own, directly
or indirectly, one hundred percent (100%) of all Stock of each Foreign
Subsidiary that is a Material Subsidiary.
"Closed Facility" means the manufacturing facilities of AGCO and its
Subsidiaries disclosed on Schedule C-1 hereto, which, as of the Initial Funding
Date, are no longer operating or operating on a minimal basis, together with the
Real Property on which such facilities are located and all buildings and
improvements thereon.
"Co-Documentation Agents" has the meaning specified in the introductory
paragraph of this Agreement.
12
"Collateral" means all "Collateral" referred to in the Security
Documents and all other property (including, but not limited to, the proceeds of
such "Collateral" and all after-acquired property) that is or is intended to be
subject to any Lien in favor of the Appropriate Agent for the benefit of the
Issuing Banks and the Lenders in accordance with the terms of the Security
Documents.
"Commitment" of any Lender means its Multi-Currency Commitment,
Canadian Commitment, US Term Loan Commitment and/or Euro Term Loan Commitment
and of any Issuing Bank means its Letter of Credit Commitment; and "Commitments"
means all Multi-Currency Commitments, Canadian Commitments, US Term Loan
Commitments and Euro Term Loan Commitments.
"Common Stock" means the common stock, par value U.S. $.01 per share,
of AGCO.
"Computation Date" means the date on which the Equivalent Amount of any
Offshore Currency Loan is determined.
"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 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 of the following amounts deducted in arriving at such
Consolidated Net Income: (i) amounts 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), (ii) depreciation and amortization
expense, (iii) extraordinary or non-recurring cash expenses (not to exceed U.S.
$12,500,000 in the aggregate in any four fiscal quarter period), (iv) losses
under any Securitization Facility incurred in connection with the initial
transfer of Receivables thereunder, and (v) 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 or extraordinary or non-recurring gains increasing
Consolidated Net Income, all as determined in accordance with GAAP. Upon the
consummation of the Acquisition, for purposes of calculating "Consolidated
EBITDA" hereunder for any period during which the financial performance of
Target was not consolidated with AGCO, "Consolidated EBITDA" shall be calculated
by giving pro forma effect to the Acquisition as if the Acquisition has occurred
as of the first day of such period.
"Consolidated Interest Expense" means, for any period, the sum of (a)
all amounts that would be deducted in arriving at Consolidated Net Income for
such period in respect
13
of interest charges (including amortization of debt discount and expense and
imputed interest on Capitalized Leases) and (b) interest expense attributable to
any Securitization Funding for such period.
"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 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, 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 cash dividends or similar distributions; (b) the undistributed
earnings of any Restricted Subsidiary (other than a Borrowing Subsidiary or a
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 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 Indebtedness, of AGCO
or any Restricted Subsidiary; and (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.
"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, the sum as of such day of the capital stock (but excluding
treasury stock and
14
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.
"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; (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 Agreement Date and after the date
of acquisition thereof; and (c) all deferred charges (other than prepaid
expenses).
"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 Canadian Subsidiary and notified
to the Canadian Administrative Agent in accordance with Section 2.3, commencing
on the date of the Loan with respect to such Bankers' Acceptance or on the date
of Conversion or rollover in accordance with Section 2.14(h), as applicable, and
expiring on a Business Day which shall not be less than thirty (30) days nor
more than one hundred eighty (180) days thereafter, and which shall not, in any
event, expire after the Maturity Date.
"Contribution Agreement" means that certain Contribution Agreement
among the Guarantors dated January 5, 2004, as amended or supplemented from time
to time with the consent of the Administrative Agent.
"Conversion", "Convert" and "Converted" each refer to a conversion of
Loans of one Type into Loans of the other Type pursuant to Section 2.8 or 2.9.
"Convertible Note Documents" means the Convertible Note Indenture, the
Convertible Notes and such other documents executed by AGCO in connection
therewith.
15
"Convertible Note Indenture" means that certain Indenture dated on or
about December 23, 2003, by and among AGCO, as issuer, and the Convertible Note
Trustee, as trustee, as amended, modified and supplemented from time to time.
"Convertible Notes" means those certain U.S. $201,250,000 principal
amount 1 3/4% Convertible Senior Subordinated Notes due 2033 issued by AGCO
pursuant to the Convertible Note Indenture.
"Convertible Note Trustee" means SunTrust Bank, in its capacity as
trustee under the Convertible Note Indenture, and any successor trustee under
the Convertible Note Indenture.
"Co-Syndication Agents" has the meaning specified in the introductory
paragraph of this Agreement.
"Default" means any of the events specified in Section 8.1 hereof
regardless of whether there shall have occurred any passage of time or giving of
notice (or both) that would be necessary in order to constitute such event an
Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at such time,
owes any amount required to be paid by such Lender to the Appropriate Agent, the
Appropriate Issuing Bank or any other Lender hereunder or under any other Loan
Document which has not been so paid as of such time (including, without
limitation, any amount required to be paid by such Lender to fund a Letter of
Credit Advance, to purchase its Pro Rata Share in a Swing Line Loan or otherwise
fund its Pro Rata Share of any Borrowing).
"Default Rate" means a simple per annum interest rate equal to, (a)
with respect to outstanding principal, the sum of (i) the Base Rate or the LIBO
Rate, as applicable, plus (ii) the highest Applicable Margin, plus (iii) two
percent (2%), and (b) with respect to all other Obligations, the sum of (i) the
Base Rate, plus (ii) the highest Applicable Margin, plus (iii) two percent (2%).
"Discount Note" means a non-interest bearing promissory note
substantially in the form of Exhibit E, denominated in Canadian Dollars, issued
by the Canadian Subsidiary 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 Canadian Revolving Loan with respect to such
Bankers' Acceptance or on the date of the Conversion or on the date of the
rollover pursuant to Section 2.14(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 one hundred (100) and multiplied by (2) a
fraction, the numerator of which is the applicable Contract Period and the
denominator of which is three hundred sixty-five (365).
16
"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 available on that day for bankers' acceptances
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" on Schedule 1 to the
Lender Addendum delivered by such Lender or in the Assignment and Acceptance
pursuant to which it became a Lender, as the case may be, 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 the Initial Funding Date, any
Subsidiary of AGCO not conducting any business or other activities and not
owning any assets in excess of U.S. $100,000 on such date.
"Eligible Assignee" means (a) a commercial bank, savings bank or
savings and loan association having a combined capital and surplus of at least
U.S. $250,000,000, (b) a finance company, insurance company, or other financial
institution or fund (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 and having (together with its
Affiliates) total assets in excess of U.S. $250,000,000, (c) a Lender, an
Affiliate (other than individuals) of a Lender or an Approved Fund, and (d) any
other Person (other than a natural person) that shall be approved by (x) the
Administrative Agent, and (y) if no Default then exists, AGCO; provided that
notwithstanding the foregoing, "Eligible Assignee" shall not include any
Borrower or any Affiliate or Subsidiary of a Borrower.
"Eligible Inventory" means the aggregate amount of Inventory owned by
AGCO or its Restricted Subsidiaries held for sale in the ordinary course of
business that would appear, as of any date of determination, as "inventory, net"
on AGCO's Consolidated balance sheet prepared in accordance with GAAP (which
Inventory is net of allowances for surplus and obsolete inventories).
"Eligible Receivables" means the aggregate amount of AGCO's or its
Restricted Subsidiaries' Receivables that would appear, as of any date of
determination, as "accounts and notes receivable, net" on AGCO's Consolidated
balance sheet prepared in accordance with GAAP (which Receivables (a) are net of
allowances for sales incentive discounts available to dealers and for doubtful
accounts, and (b) exclude all Receivables
17
arising in respect of intercompany transactions), excluding any Receivables that
are transferred, in whole or in part, to a Person not an Affiliate pursuant to a
Securitization Facility.
"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.
"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, provincial, 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, to the extent applicable to
such property or Person, CERCLA, the Resource Conservation and Recovery Act, the
Hazardous Materials 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.
"Equivalent Amount" means (i) whenever this Agreement requires or
permits a determination on any date of the equivalent in U.S. Dollars of an
amount expressed in an Offshore Currency, the equivalent amount in U.S. Dollars
of such amount expressed in an Offshore Currency as determined by the
Administrative Agent on such date on the basis of the Spot Rate for the purchase
of U.S. Dollars with such Offshore Currency on the relevant Computation Date
provided for hereunder; or (ii) whenever this Agreement requires or permits a
determination on any date of the equivalent amount in an Offshore Currency of
such amount expressed in U.S. Dollars, the equivalent amount in such Offshore
Currency of such amount expressed in U.S. Dollars as determined by the
18
Administrative Agent on such date on the basis of the Spot Rate for the purchase
of such Offshore Currency with U.S. Dollars on the relevant Computation Date
provided for hereunder.
"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) either (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
thirty (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 thirty (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;
(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
19
(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.
"Euro Term Loan" has the meaning specified in Section 2.2(b).
"Euro Term Loan Amount" means the Equivalent Amount in Euros, as
determined three (3) Business Days prior to the Initial Funding Date, of U.S.
$150,000,000.
"Euro Term Loan Borrower" means German Subsidiary.
"Euro Term Loan Facility" means, at any time, the aggregate principal
amount of the Euro Term Loans at such time.
"Euro Term Loan Commitment" means, with respect to any Lender at any
time, the amount set forth on Schedule 1 to the Lender Addendum delivered by
such Lender under the caption "Euro Term Loan 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
10.7(d) as such Lender's "Euro Term Loan Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.4.
"Euro Term Loan Lender" means any Lender that has a Euro Term Loan
Commitment.
"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.
"European Securitization" means funding in connection with sales by
certain Foreign Subsidiaries of AGCO of wholesale Receivables invoiced to third
parties at addresses located in Europe under a securitization trust vehicle, as
more fully set forth in the European Securitization Documents.
"European Securitization Documents" means (a) that certain Receivables
Transfer Agreement among AGCO Services Limited, French Subsidiary, English
Subsidiary One and Rabobank London dated Xxxxx 00, 0000, (x) that certain
Receivables Transfer Agreement among AGCO Services Limited, AGCO Iberia S.A.,
English Subsidiary One, and Rabobank London dated April 12, 2001, (c) that
certain Receivables Transfer Agreement among AGCO Services Limited, AGCO
Vertriebs GmbH, a German corporation, English Subsidiary One and Rabobank London
dated Xxxxx 00, 0000, (x) that certain Receivables Purchase Agreement among
AGCO, AGCO Services Limited, English Subsidiary One, Erasmus Capital
Corporation, and Rabobank London dated
20
April 12, 2001, and (e) all other agreements in form and substance satisfactory
to the Administrative Agent executed in connection with, or in replacement of,
the foregoing, as the same may be amended, supplemented or modified from time to
time with the consent of the Administrative Agent.
"Euros" and the designation "(euro)" shall mean the currency introduced
on January 1, 1999 at the start of the third stage of European economic and
monetary union pursuant to the Treaty (expressed in euros).
"Event of Default" has the meaning specified in Section 8.1.
"Exchange Percentage" shall mean, as to each Lender, a fraction,
expressed as a decimal, in each case determined on the date of occurrence of a
Sharing Event (but before giving effect to any actions to occur on such date
pursuant to Section 2.15) of which (a) the numerator shall be the sum of (i) the
Pro Rata Share of such Lender of (x) the aggregate outstanding principal of all
Revolving Loans and Swing Line Loans (taking the Equivalent Amount of any
amounts expressed in currencies other than U.S. dollars on the date of the
occurrence of the Sharing Event), (y) the aggregate amount of Letter of Credit
Advances and (z) the aggregate amount of Bankers' Acceptances and BA Equivalent
Loans and (ii) the aggregate principal amount of all outstanding Term Loans of
such Lender, and (b) the denominator of which shall be the sum of (i) the sum of
(x) the aggregate outstanding principal of all Revolving Loans and Swing Line
Loans (taking the Equivalent Amount of any amounts expressed in currencies other
than U.S. dollars on the date of the occurrence of the Sharing Event), (y) the
aggregate amount of Letter of Credit Advances and (z) the aggregate amount of
Bankers' Acceptances and BA Equivalent Loans, and (ii) the aggregate principal
amount of all outstanding Term Loans of all Lenders.
"Excess Cash Flow" means, with respect to AGCO and its Restricted
Subsidiaries on a Consolidated Basis for the fiscal year most recently ended
prior to any determination date, (a) Consolidated EBITDA, minus (b) Consolidated
Net Interest Expense, minus (c) Capital Expenditures, minus (d) dividends paid
in cash for such period, minus (e) scheduled payments of the principal amount of
Funded Debt paid during such period, minus (e) federal, state and local income
taxes paid in cash, minus (f) the increase in Working Capital during such period
(or plus any decrease in Working Capital during such period).
"Excess Proceeds" has the meaning specified in the Existing 2006 Note
Indenture.
"Executive Order No. 13224" means Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001, as the same has been, or
shall hereafter be, renewed, extended, amended or replaced.
21
"Existing 2006 Note Documents" means the Existing 2006 Note Indenture,
the Existing 2006 Notes and such other documents executed by AGCO in connection
therewith.
"Existing 2006 Note Indenture" means that certain Indenture dated as of
March 20, 1996 by and among AGCO, as issuer, and the Existing 2006 Note Trustee,
as amended, modified and supplemented from time to time, or as replaced pursuant
to a refinancing permitted by the terms of this Agreement.
"Existing 2006 Notes" means those certain U.S. $250,000,000 principal
amount 8 1/2% Subordinated Notes due 2006 issued by AGCO pursuant to the
Existing 2006 Note Indenture, or as replaced or substituted pursuant to a
refinancing permitted by the terms of this Agreement.
"Existing 2006 Note Trustee" means SunTrust Bank, f/k/a SunTrust Bank,
Atlanta, in its capacity as trustee under the Existing 2006 Note Indenture, and
any successor trustee under the Existing 2006 Note Indenture.
"Existing 2008 Note Documents" means the Existing 2008 Note Indenture,
the Existing 2008 Notes and such other documents executed by AGCO in connection
therewith.
"Existing 2008 Note Trustee" means SunTrust Bank, in its capacity as
trustee under the Existing 2008 Note Indenture, and any successor trustee under
the Existing 2008 Note Indenture.
"Existing 2008 Note Indenture" means that certain Indenture dated as of
April 17, 2001 by and among AGCO, as issuer, and the Existing 2008 Note Trustee,
as amended, modified and supplemented from time to time, or as replaced pursuant
to a refinancing permitted by the terms of this Agreement.
"Existing 2008 Notes" means those certain U.S. $250,000,000 principal
amount 9.5% Senior Unsecured Notes due 2008 issued by AGCO pursuant to the
Existing 2008 Note Indenture, as replaced or substituted pursuant to a
refinancing permitted by the terms of this Agreement.
"Existing Capital Market Transactions" means, collectively, the
transactions under the Existing 2006 Note Documents and the Existing 2008 Note
Documents.
"Existing Credit Agreement" has the meaning specified in the recitals
hereto.
"Existing L/Cs" has the meaning specified in Section 2.11(a) hereof.
"Facility" means the Multi-Currency Facility, the Canadian Facility,
the US Term Loan Facility, the Euro Term Loan Facility or the Letter of Credit
Subfacility.
22
"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.
"Fee Letter" means that certain fee letter dated December 22, 2003
executed by AGCO and the other Borrowers and addressed to the Administrative
Agent.
"Finance Company" means any of AGCO Finance LLC, AGCO Finance Canada,
Ltd., Agricredit Ltd., Agricredit Ltd. Ireland, Agricredit S.N.C., Agricredit
GmbH, Agricredit do Brasil, Ltda. and any other Person (a) not a Subsidiary of
AGCO, (b) in whom AGCO or its Subsidiaries holds an Investment, and (c) which is
engaged primarily in the business of providing retail financing to purchasers of
agricultural equipment.
"Finnish Subsidiary" has the meaning specified in the introductory
paragraph of this Agreement.
"Fixed Charge Coverage Ratio" means, as of the last day of any fiscal
quarter, the ratio of (a) Consolidated EBITDA for such fiscal quarter and the
three fiscal quarters of AGCO immediately preceding such fiscal quarter, to (b)
the sum of (i) Consolidated Net Interest Expense for such fiscal quarter and the
three fiscal quarters of AGCO immediately preceding such fiscal quarter
(excluding, however, any non-cash interest expense arising solely from the
write-off of deferred transaction expenses in connection with any refinancing of
the Existing Capital Market Transactions or the Existing Credit Agreement), plus
(ii) the aggregate scheduled principal amount of Funded Debt to be paid within
one year after the last day of such fiscal quarter, plus (iii) the aggregate
amount of all Capital Expenditures made by AGCO and its Restricted Subsidiaries
for such fiscal quarter and the three fiscal quarters of AGCO immediately
preceding such fiscal quarter, plus (iv) the aggregate amount of dividends paid
by AGCO for such fiscal quarter and the three fiscal quarters of AGCO
immediately preceding such fiscal quarter; provided, however, upon consummation
of the Acquisition, for purposes of calculating the "Fixed Charge Coverage
Ratio" for any fiscal quarter during which the financial performance of Target
was not Consolidated with AGCO, an amount of U.S. $6,250,000 for each such
fiscal quarter shall be added to Consolidated Net Interest Expense, and an
amount of U.S. $4,500,000 for each such fiscal quarter shall be added to Capital
Expenditures.
"Foreign Exchange Agreement" means a foreign currency exchange hedging
product providing foreign currency exchange protection.
23
"Foreign Government Scheme or Arrangement" has the meaning specified in
Section 4.1(l) hereof.
"Foreign Obligor" means each Borrower (other than AGCO), and each
Guarantor that is a Foreign Subsidiary.
"Foreign Plan" has the meaning specified in Section 4.1(l) hereof.
"Foreign Subsidiary" means a Subsidiary of AGCO not organized under the
laws of the United States or any jurisdiction thereof.
"French Subsidiary" means AGCO S.A., a French societe anonyme.
"Funded Debt" means without double-counting, with respect to AGCO on a
Consolidated basis, as of any date of determination, all obligations of the type
described in clauses (a) through (e) of the definition of "Indebtedness" set
forth in Article 1 hereof and any Guaranty of any of the foregoing for which a
demand for payment has been received, and specifically including, without
limitation, the amount of Borrower Outstandings hereunder, and specifically
excluding, for a period not to exceed one year after the Initial Funding Date,
the principal outstanding under the Bridge Notes. Upon the consummation of the
Acquisition, for purposes of calculating the amount of "Funded Debt" hereunder
outstanding as of the last day of any fiscal quarter during which the financial
performance of Target was not Consolidated with AGCO, an additional amount of
U.S. $450,000,000 of Funded Debt shall be deemed to have been outstanding as of
the last day of each such fiscal quarter.
"GAAP" has the meaning specified in Section 1.3.
"German Subsidiary" has the meaning specified in the introductory
paragraph of this Agreement.
"Governmental Authority" means any government or political subdivision
of the United States or any other country or any agency, authority, board,
bureau, central bank, commission, department or instrumentality thereof or
therein, including, without limitation, any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic, or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to such government or political subdivision.
"Guaranty" or "Guaranteed," as applied to any Indebtedness, lease or
other obligations (each a "primary obligation"), means and includes (a) any
guaranty, direct or indirect, in any manner, of any part or all of such primary
obligation, and (b) any agreement, direct or indirect, contingent or otherwise,
the practical effect of which is to assure in any way the payment or performance
(or payment of damages in the event of
24
non-performance) of any part or all of such primary obligation, including,
without limiting the foregoing, any reimbursement obligations as to amounts
drawn down by beneficiaries of outstanding letters of credit, and any obligation
of such Person (the "primary obligor"), whether or not contingent, (i) to
purchase any such primary obligation or any property or asset constituting
direct or indirect security therefor, (ii) to advance or supply funds (1) for
the purchase or payment of such primary obligation or (2) to maintain working
capital, equity capital or the net worth, cash flow, solvency or other balance
sheet or income statement condition of any other Person, (iii) to purchase
property, assets, securities or services primarily for the purpose of assuring
the owner or holder of any primary obligation of the ability of the primary
obligor with respect to such primary obligation to make payment thereof or (iv)
otherwise to assure or hold harmless the owner or holder of such primary
obligation against loss in respect thereof; provided, however, "Guaranty" shall
not include non-binding comfort letters limited to corporate intent or policies.
"Guarantors" means each of the Persons listed under the heading of
"Guarantor" on Schedule G-1 hereof, and each other Person that delivers a
Guaranty Agreement at any time hereafter.
"Guaranty Agreements" means the guaranty agreements, guaranty and
indemnity deeds, and other similar agreements delivered on the Initial Funding
Date by each of the Persons listed under the heading of "Guarantor" on Schedule
G-1 hereto, guaranteeing or providing an indemnity for the obligations described
on Schedule G-1 hereto, and any other agreement delivered after the Initial
Funding Date (including by way of supplement or amendment to any guaranty or
indemnity agreement) by any Person providing an indemnity or guaranty of all or
any part of the Obligations, in each case as amended, supplemented or modified
from time to time in accordance with its terms.
"Hazardous Materials" means any pollutants, contaminants, toxic or
hazardous substances, materials, wastes, constituents, compounds, chemicals,
natural or manmade elements or forces (including, without limitation, petroleum
or any by-products or fractions thereof, any form of natural gas, lead, asbestos
and asbestos-containing materials building construction materials and debris,
polychlorinated biphenyls ("PCBs") and PCB-containing equipment, radon and other
radioactive elements, ionizing radiation, electromagnetic field radiation and
other non-ionizing radiation, sonic forces and other natural forces, infectious,
carcinogenic, mutagenic, or etiologic agents, pesticides, defoliants,
explosives, flammables, corrosives and urea formaldehyde foam insulation) that
are regulated by, or may now or in the future form the basis of liability under,
any Environmental Laws.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(a) the principal of and premium (if any) in respect of
(i) indebtedness of such Person for money borrowed and (ii) indebtedness
evidenced by notes, debentures,
25
bonds or other similar instruments for the payment of which such Person is
responsible or liable;
(b) all obligations under Capitalized Leases of such
Person;
(c) all obligations of such Person issued or assumed as
the deferred purchase price of property or services, all conditional sale
obligations of such Person and all obligations of such Person under any title
retention agreement (excluding trade accounts payable and accrued liabilities
arising in the ordinary course of business but only if and so long as such
accounts are payable on trade terms customary in the industry), which purchase
price or obligation is due more than six (6) months after the date of placing
such property in service or taking delivery and title thereto of the completion
of such services (provided that, in the case of obligations of an acquired
Person assumed in connection with an acquisition of such Person, such
obligations would constitute Indebtedness of such Person);
(d) all obligations of such Person for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing
obligations (other than obligations described in (a) through (c) above) entered
into in the ordinary course of business of such Person to the extent such
letters of credit are not drawn upon or, if and to the extent drawn upon, such
drawing is reimbursed no later than the tenth Business Day following receipt by
such Person of a demand for reimbursement following payment on the letter of
credit);
(e) the principal amount of any Securitization Funding;
(f) the amount of all obligations of such Person with
respect to the redemption, repayment or other repurchase of the Stock of such
Person;
(g) all obligations of the type referred to in clauses
(a) through (f) above of other Persons and all dividends of other Persons for
the payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including by means
of any Guaranty; and
(h) all obligations of the type referred to in clauses
(a) through (g) above of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by such Person),
the amount of such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations as described above at such date. For
purposes of this Agreement,
26
Indebtedness, with respect to any Person as of any date, means the actual amount
of Indebtedness then outstanding with respect to which such Person is then
liable without deduction for any discount therefrom as may be reflected on such
Person's financial statements to reflect the value of any warrants or other
equity securities that may be issued together with such Indebtedness.
Indebtedness shall not include, for purposes of this Agreement, obligations in
connection with the factoring of Receivables permitted hereunder, provided that
the Receivables subject to such factoring arrangement are not required under
GAAP to be included on the Consolidated balance sheet of AGCO and its
Subsidiaries.
"Indemnified Party" has the meaning specified in Section 10.4.
"Initial Funding Date" means the date on which the first Borrowing
occurs.
"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 Hedge Agreements" means the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Interest Period" means, for each LIBO Rate Loan comprising part of the
same Borrowing (or portion of the same Borrowing), the period commencing on the
date of such LIBO Rate Loan or the date of Conversion of any Base Rate Loan into
such LIBO Rate Loan, 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 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 one (1), two (2), three (3) or six (6) months (or such shorter
time period as may be acceptable to the Administrative Agent), 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) the duration of any Interest Period for any LIBO Rate
Loan that commences before the repayment date for such Loan and otherwise ends
after such repayment date shall end on such repayment date;
(b) if any Borrower fails to select the duration of any
Interest Period for a LIBO Rate Loan, the duration of such Interest Period shall
be one month;
27
(c) 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;
(d) 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;
(e) such Borrower shall not select an Interest Period
that ends after the Maturity Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"IntraLinks" means IntraLinks, Inc. or any other digital workspace
provider selected by the Administrative Agent from time to time after notice to
AGCO.
"Inventory" means, with respect to any Person, all "inventory" as that
term is defined in the Uniform Commercial Code, including, without limitation,
all goods, merchandise and other personal property owned and held for sale in
the ordinary course of its business, and all raw materials, work or goods in
process, materials and supplies of every nature which contribute to the finished
products of such Person.
"Investment" by any Person in any other Person means any direct or
indirect advance, loan (other than advances to wholesale or retail customers in
the ordinary course of business that are recorded as Receivables on the balance
sheet of such Person) or other extensions of credit (including by way of
Guaranty or similar arrangement) or capital contributions to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition of
Stock, Indebtedness or other similar instruments issued by 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 8.3.
"L/C Related Documents" has the meaning specified in Section 2.11(d).
"Lender Addendum" means, with respect to any Lender as of the Agreement
Date, a Lender Addendum, substantially in the form of Exhibit F hereto, executed
and delivered by such Lender on the Agreement Date as provided in Section 10.9
hereof.
28
"Lenders" means those lenders whose names are set forth on the
signature pages hereof under the heading "Lenders" and any assignees of the
Lenders who hereafter become parties hereto pursuant to and in accordance with
Section 10.7 hereof; and "Lender" means any one of the foregoing Lenders.
"Letter of Credit" has the meaning specified in Section 2.11(a).
"Letter of Credit Advance" means an advance made by the Issuing Bank
pursuant to Section 2.11(c).
"Letter of Credit Agreement" has the meaning specified in Section
2.11(b).
"Letter of Credit Commitment" means, with respect to each Issuing Bank,
the obligation of such Issuing Bank to issue Letters of Credit hereunder;
provided such obligations of all Issuing Banks shall not exceed in the aggregate
the amount of the Letter of Credit Subfacility.
"Letter of Credit Subfacility" means the aggregate Available Amounts of
Letters of Credit the Issuing Banks may issue pursuant to Section 2.11(a), which
shall not exceed U.S. $15,000,000.
"LIBO Rate" means, for any Interest Period for all LIBO Rate Loans 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
and Euros, obtained by dividing
(i) either (x) the rate per annum for deposits
in such currency that appears on page 3750 (if such currency is U.S. Dollars or
British pounds) of the Telerate Plus Service (or any other page that may replace
any such page on such service or is applicable to any other Offshore Currency,
in the judgment of the Administrative Agent), or (y) if a rate cannot be
determined pursuant to clause (x) 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 available to the Administrative Agent as determined by the
Administrative Agent in London, England to prime banks in the interbank market,
at 11:00 A.M. (London time) two (2) 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 one hundred percent
(100%), minus the LIBO Rate Reserve Percentage for such Interest Period, and
(b) in the case of Euros, either (i) the rate per annum
for deposits in such currency that appears on Reuters Page EURIBOR-01 (or any
successor page), or (ii)
29
if a rate cannot be determined pursuant to clause (i) 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 Euros are available to the Administrative Agent as determined
by the Administrative Agent in London, England to prime banks in the Euro-zone
interbank market, at 11:00 A.M. (Brussels time) two (2) Business Days before the
first day of such Interest Period and for a period equal to such Interest
Period, and
(c) in the case of Canadian Dollars, the rate per annum
determined by the Canadian Administrative Agent as its rate for cost of funds
for borrowings for a period equal to such Interest Period.
"LIBO Rate Loan" means a Loan denominated in U.S. Dollars or in an
Offshore Currency that bears interest at the LIBO Rate plus the Applicable
Margin in effect for LIBO Rate Loans from time to time.
"LIBO Rate Revolving Loan" means a LIBO Rate Loan that is a Revolving
Loan.
"LIBO Rate Reserve Percentage" means the percentage which is in effect
from time to time 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 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
LIBO Rate Loans is determined), whether or not any Lender has any Eurocurrency
Liabilities subject to such reserve requirement at that time. The LIBO Rate for
any LIBO Rate Loan shall be adjusted as of the effective date of any change in
the LIBO Rate Reserve Percentage.
"LIBOR Lending Office" means, with respect to any Lender and any
currency, the office of such Lender specified as its "LIBOR Lending Office" for
such currency on Schedule 1 to the Lender Addendum delivered by such Lender 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.
"Lien" means, with respect to any property, any mortgage, lien, pledge,
assignment by way of security, charge, hypothec, security interest, title
retention agreement, levy, execution, seizure, attachment, garnishment, or other
encumbrance of any kind in respect of such property, whether or not xxxxxx,
vested, or perfected.
"Loan" or "Loans" means, as applicable, a Canadian Revolving Loan
(including any Bankers' Acceptance or BA Equivalent Loan), a Multi-Currency
Revolving Loan, a Swing Line Loan, a Letter of Credit Advance, a US Term Loan or
a Euro Term Loan.
30
"Loan Documents" means this Agreement, the Guaranty Agreements, the
Security Documents, the Securitization Intercreditor Agreement, all L/C Related
Documents, the Fee Letter, each Notice of Borrowing, Notice of Issuance, and all
other documents, instruments, certificates, and agreements executed or delivered
by AGCO or its Subsidiaries in connection with or pursuant to this Agreement.
"Loan Parties" means the Borrowers, the Guarantors, the Pledgors, each
Material Subsidiary and each other Person executing a Security Document to
provide Collateral for the Obligations.
"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, (b) the material rights and remedies of either Agent or any
Lender under any Loan Document or in any Collateral, 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 Subsidiaries, taken as a whole, and for
which no alternative source of performance by the other party or parties thereto
is readily available, and each other contract to which AGCO or a Subsidiary is a
party which covers and/or replaces the services and/or arrangements which are
provided for in any of the foregoing.
"Material Subsidiary" means, as of the Initial Funding Date, those
direct and indirect Subsidiaries of AGCO listed on Schedule 4.1(b) hereto, and
thereafter, any direct or indirect Subsidiary of AGCO that, as a result of any
acquisition, Investment, merger, reorganization, transfer of assets, or other
change in circumstances after the Initial Funding Date, meets any of the
following conditions:
(a) AGCO's and its other Subsidiaries' proportionate
share of the total assets, in the aggregate (after intercompany eliminations),
of such Subsidiary (and its Subsidiaries) exceeds ten percent (10%) of the total
assets of AGCO and its Subsidiaries Consolidated as of the end of the most
recently completed fiscal quarter; or
(b) AGCO's and its other Subsidiaries' equity in the
income from continuing operations, in the aggregate, before income taxes,
extraordinary items and cumulative effect of a change in accounting principles
of such Subsidiary (and its Subsidiaries) exceeds ten percent (10%) of such
income of AGCO and its Subsidiaries Consolidated for the most recently completed
fiscal year.
31
"Maturity Date" means, as the context requires, either or both of (a)
the Revolving Loan Maturity Date or (b) the Term Loan Maturity Date.
"Moody's" means Xxxxx'x Investors Service, Inc. and it successors.
"Multi-Currency Borrower" means each AGCO, English Subsidiary One,
English Subsidiary Two, Netherlands Subsidiary and Finnish Subsidiary.
"Multi-Currency Borrower Cash Collateral Account" has the meaning
specified in Section 12.5(a).
"Multi-Currency Borrowing" means a borrowing consisting of simultaneous
Multi-Currency Revolving Loans of the same Type made by the Multi-Currency
Lenders.
"Multi-Currency Commitment" means, with respect to any Lender at any
time, the amount set forth on Schedule 1 to the Lender Addendum delivered by
such Lender 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
10.7(d) as such Lender's "Multi-Currency Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.4.
"Multi-Currency Excess Outstandings" has the meaning specified in
Section 12.5(a).
"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 Equivalent Amount of U.S. $280,000,000.
"Multi-Currency Issuing Bank" means (a) Rabobank, and (b) upon request
of AGCO and consent of the Administrative Agent and the Swing Line Bank from
time to time, the Swing Line Bank, together in each case with their respective
successors and assigns as issuer hereunder of Letters of Credit for the accounts
of Multi-Currency Borrowers.
"Multi-Currency Lender" means any Lender that has a Multi-Currency
Commitment.
"Multi-Currency Outstandings" means, on any date of determination:
(a) the aggregate principal amount of all Swing Line
Loans made to AGCO, plus the aggregate principal amount of all Multi-Currency
Revolving Loans in U.S. Dollars and of the Equivalent Amount in U.S. Dollars of
all Multi-Currency Revolving Loans in Offshore Currencies, in either case
outstanding on such date of determination, plus;
32
(b) the aggregate principal amount of all Letter of
Credit Advances in U.S. Dollars and of the Equivalent Amount of all Letter of
Credit Advances in Offshore 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 Equivalent Amount 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 Revolving Loan" has the meaning specified in Section
2.1(a).
"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 (5) 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 Asset Disposition or the
sale or issuance of any Indebtedness or Stock, any securities convertible into
or exchangeable for Stock or any warrants, rights or options to acquire 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, (b) the amount of taxes payable in connection with or as a result
of such transaction, and (c) the principal amount of, premium or penalty, if
any, and interest on any Indebtedness (other than the Loans) that is secured by
a Lien on the assets in question, 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.
"New Capital Market Transactions" means, collectively, the transactions
contemplated by the Bridge Facility Documents, the Convertible Note Documents,
and
33
the New Senior Subordinated Note Documents, together with any issuance of common
stock by AGCO prior to the Initial Funding Date.
"New Senior Subordinated Note Documents" means the New Senior
Subordinated Note Indenture, the New Senior Subordinated Notes and such other
documents executed by AGCO in connection therewith.
"New Senior Subordinated Note Indenture" means the Indenture or similar
agreement by and among AGCO, as issuer, and the New Senior Subordinated Note
Trustee, as trustee, in form and substance acceptable to the Administrative
Agent, and as amended, modified and supplemented from time to time.
"New Senior Subordinated Notes" means the senior subordinated notes
issued by AGCO after the Initial Funding Date, having no amortization or
maturity prior to January 1, 2010 and having a priority not greater than the
existing priority of the Existing 2006 Notes.
"New Senior Subordinated Note Trustee" means, at any time, the Person
acting as trustee under the New Senior Subordinated Note Indenture.
"Non BA Lender" means a Canadian Lender or Participant that cannot or
does not as a matter of policy issue bankers' acceptances.
"Notice of Borrowing" has the meaning specified in Section 2.3(a).
"Notice of Issuance" has the meaning specified in Section 2.11(b).
"NPL" has the meaning specified in Section 4.1(n).
"Obligations" means, (a) all payment and performance obligations of the
Borrowers to the Lenders, the Issuing Banks, and the Agents under this Agreement
and the other Loan Documents (including all Revolving Loans, Swing Line Loans,
the Term Loans and obligations under Letters of Credit and including any
interest, fees and expenses that, but for the provisions of the Bankruptcy Code,
would have accrued), as they may be amended from time to time, or as a result of
making the Loans or issuing the Letters of Credit, (b) the obligation to pay an
amount equal to the amount of any and all damages which the Issuing Banks, the
Lenders and the Agents, or any of them, may suffer by reason of a breach by any
Loan Party of any obligation, covenant, or undertaking with respect to this
Agreement or any other Loan Document, (c) all obligations of any Borrower to pay
the face amount of Bankers' Acceptances, (d) all obligations of the Borrowers to
the Administrative Agent under the Fee Letter and (e) all obligations of any
Borrower to any Lender or an Affiliate of any Lender pursuant to an Interest
Hedge Agreement.
34
"OFAC" means the Office of Foreign Assets Control of the United States
Department of the Treasury.
"Offshore Currency" means (a) British pounds, Canadian Dollars and
Euros, and (b) any Agreed Alternative Currency.
"Offshore Currency Loan" means any Loan denominated in an Offshore
Currency.
"Original Currency" has the meaning specified in Section 11.3 hereof.
"Other Currency" has the meaning specified in Section 11.3 hereof.
"Other Taxes" has the meaning specified in Section 11.4(b).
"Parallel Debt" means at any time of determination in relation to a
Foreign Obligor and a currency, an amount equal to the aggregate of that Foreign
Obligor's Underlying Debts at that time expressed in that currency.
"Participant" has the meaning specified in Section 10.7(f).
"PBGC" means the Pension Benefit Guaranty Corporation.
"PCBs" has the meaning specified in the definition of "Hazardous
Materials".
"Permitted Liens" means:
(a) Any Lien in favor of the Agents, the Issuing Banks or
the Lenders given to secure the Obligations;
(b) For the period from the Agreement Date through the
Initial Funding Date, Liens securing obligations under the Existing Credit
Agreement;
(c) (i) Liens on Real Property for real property taxes
not yet delinquent and (ii) Liens for taxes, assessments, judgments,
governmental charges or levies not yet delinquent, or the non-payment of which
is being diligently contested in good faith by appropriate proceedings and for
which adequate reserves have been set aside on such Person's books;
(d) Liens of landlords, Liens and set-off rights of banks
and Liens of carriers, warehousemen, mechanics, laborers, suppliers, workers and
materialmen, in each case incurred in the ordinary course of business for sums
not yet due or being diligently contested in good faith, if such reserve or
appropriate provision, if any, as shall be required by GAAP shall have been made
therefor;
35
(e) Liens incurred in the ordinary course of business in
connection with workers' compensation and unemployment insurance or other types
of social security benefits;
(f) Easements, rights-of-way, restrictions, and other
similar encumbrances on the use of Real Property which do not interfere with the
ordinary conduct of the business of such Person, or Liens incidental to the
conduct of the business of such Person or to the ownership of its properties
which were not incurred in connection with Indebtedness or other extensions of
credit and which do not in the aggregate materially detract from the value of
such properties or materially impair their use in the operation of the business
of such Person;
(g) Purchase money security interests, provided that such
Lien attaches only to the asset so purchased by such Person and secures only
Indebtedness incurred by such Person in order to purchase such asset, but only
to the extent permitted by Section 7.1(b) hereof;
(h) Liens on Real Property and related assets in
existence on the Agreement Date disclosed on Schedule P-1 securing Indebtedness
incurred prior to the Agreement Date;
(i) Liens existing on the property of a Person (including
Target and its Subsidiaries to the extent such Liens are disclosed on Schedule
4.1(p)) immediately prior to its being acquired by AGCO or 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 Person's
becoming a Restricted Subsidiary or such acquisition of property; and provided,
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;
(j) Deposits to secure the performance of bids, trade
contracts, tenders, sales, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(k) Judgment liens that (i) do not have a Material
Adverse Effect, and (ii) do not cause an Event of Default hereunder;
(l) Liens on wholesale Receivables (and the Related
Assets) sold pursuant to a Securitization Facility, and on Receivables sold
under any factoring arrangement permitted hereunder;
36
(m) Precautionary financing statements filed by lessors,
or retained interests in leased equipment by lessors, with respect to equipment
leases under which AGCO or a Restricted Subsidiary is lessee;
(n) Liens arising in connection with Tax Abatement
Transactions permitted hereunder;
(o) Liens encumbering customary initial deposits and
margin deposits that are either within the general parameters customary in the
industry and incurred in the ordinary course of business, in each case, securing
Indebtedness under Interest Hedge Agreements and Foreign Exchange Agreements and
forward contracts, options, future contracts, future options or similar
agreements or arrangements designed solely to protect AGCO or any of its
Restricted Subsidiaries from fluctuations in interest rates, currencies or the
price of commodities;
(p) Liens securing reimbursement obligations with respect
to letters of credit that encumber documents of title and property shipped under
such letters of credit, to the extent the incurrence of such reimbursement
obligations are permitted hereunder;
(q) Liens 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;
(r) Any other Liens that do not exceed U.S. $10,000,000
in the aggregate at any time outstanding;
(s) To the extent that Indebtedness secured thereby is
permitted by the terms of this Agreement to be extended, renewed, replaced or
refinanced, a future Lien upon any property which is subject to a Permitted Lien
described in clauses (g) or (i) above, if such future Lien attaches only to the
same property, secures only such permitted extensions, replacements, renewals or
refinancings and is of like quality, character and extent, and otherwise
satisfies all of the terms and conditions of this Agreement;
(t) Non-exclusive licenses of intellectual property
granted by AGCO or any Restricted Subsidiary in the ordinary course of business
and not interfering in any material respect with the ordinary conduct of the
business of AGCO or such Restricted Subsidiaries or the value of such
intellectual property; and
(u) Mandatory liens in favor of unsecured creditors
attaching to proceeds from the sale of property in a foreclosure or similar
proceeding imposed by law of any jurisdiction outside of the U.S. and which have
not arisen to secure Indebtedness for borrowed money and do not in the aggregate
materially detract from the value of such property or assets.
37
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, 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.
"Pledge Agreements" means any pledge agreement, charge over shares or
similar agreement delivered on the Initial Funding Date by each of the Persons
listed under the heading of "Pledgor" on Schedule P-2 hereto, granting a Lien on
the Stock described on Schedule P-2 hereto in favor of the Appropriate Agent,
and any other agreement delivered after the Initial Funding Date (including by
way of supplement to any pledge agreement) by any Person granting a Lien on any
Stock owned by such Person, in each case as amended, supplemented or modified
from time to time in accordance with its terms.
"Pledgors" means each of Persons listed under the heading of "Pledgor"
on Schedule P-2 hereof, and each other Person that at any time hereafter pledges
any of its assets (including Stock of any of its Subsidiaries) to secure the
Obligations or any part thereof.
"Post-Closing Letter" means that certain letter dated January 5, 2004,
from AGCO to, and accepted by, the Administrative Agent, setting forth the
agreement of AGCO to deliver certain non-material certificates and other
documents required pursuant to clauses (iv), (v), (viii) or (xiv) of Section
3.2(q) hereof within a certain time period after the Initial Funding Date, in
form and substance acceptable to the Administrative Agent.
"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, (b) with respect to any Canadian Lender at
any time, an amount equal to (i) a fraction the numerator of which is the amount
of such Lender's Canadian Commitment at such time and the denominator of which
is the Canadian Facility at such time, multiplied by (ii) such amount, (c) with
respect to any US Term Loan Lender at any time, an amount equal to (i) prior to
the making of the US Term Loan, the percentage obtained by dividing (A) a
fraction the numerator of which is the amount of such Lender's US Term Loan
Commitment at such time and the denominator of which is the US Term Loan
Facility at such time, multiplied by (B) such amount, and (ii) from and after
the making of the US Term Loan, the percentage obtained by dividing (A) the
principal amount of such Lender's portion of the US Term Loan by the principal
amount of the US Term Loan, multiplied by (B) such amount, (d) with respect to
any Euro Term Loan Lender at any time, an amount equal to (i) prior to the
making of the Euro Term Loan, the percentage
38
obtained by dividing (A) a fraction the numerator of which is the amount of such
Lender's Euro Term Loan Commitment at such time and the denominator of which is
the Euro Term Loan Facility at such time, multiplied by (B) such amount, and
(ii) from and after the making of the Euro Term Loan, the percentage obtained by
dividing (A) the principal amount of such Lender's portion of the Euro Term Loan
by the principal amount of the Euro Term Loan, multiplied by (B) such amount,
and (e) with respect to any Lender at any time, an amount equal to (i) a
fraction the numerator of which is the sum of the amount of such Lender's
Multi-Currency Commitment, such Lender's Canadian Commitment, such Lender's
portion of the principal amount of the US Term Loan Facility and such Lender's
portion of the principal amount of the Euro Term Loan Commitment at such time
and the denominator of which is the sum of all Lenders Multi-Currency
Commitment, Canadian Commitment and the principal amount of the Term Loans at
such time, multiplied by (ii) such amount.
"Rabobank" has the meaning specified in the introductory paragraph of
this Agreement.
"Rabobank Canada" has the meaning specified in the introductory
paragraph of this Agreement.
"Rabobank London" means Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., trading as Rabobank International, London Branch.
"Real Property" means, in respect of any Person, any estates or
interests in real property now owned or hereafter acquired by such Person.
"Real Property Collateral" means the parcel or parcels of Real Property
and the related improvements thereto identified on Schedule 5.19, and any other
Real Property subject to a Lien in favor of any Agent to secure all or any part
of the Obligations.
"Real Property Documents" means the mortgages, charges, deeds of trust,
or deeds to secure debt or similar instruments with respect to the Real Property
Collateral, executed by one or more Loan Parties to secure all or any part of
the Obligations, together with all related items, documents, and agreements,
including without limitation, mortgagee title insurance policies, opinions of
local counsel, existing environmental reports, existing surveys, and
environmental indemnity agreements, and such other items as requested by the
Administrative Agent, in each case as amended, supplemented or modified from
time to time in accordance with its terms, and in form and substance
satisfactory to the Administrative Agent.
"Receivables" means any right to payment for goods sold or leased or
for services rendered whether or not it has been earned by performance.
"Register" has the meaning specified in Section 10.7(d).
39
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Related Assets" means, with respect to any Receivable conveyed
pursuant to a Securitization Facility, all records, writings, contracts, payment
intangibles, encumbrances, liens, security interests and similar adverse claims
securing and supporting such Receivable.
"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.
"Required Lenders" means, at any time, Lenders whose Pro Rata Share of
the Borrower Outstandings exceeds fifty percent (50%) of the total principal
amount of the Borrower Outstandings (in the Equivalent Amount in U.S. Dollars as
of the most recent Computation Date); provided, however, that if any Lender
shall be a Defaulting Lender at such time, there shall be excluded from the
determination hereunder at such time, (x) the aggregate principal amount of
Loans made by such Lender and outstanding at such time, (y) such Lender's Pro
Rata Share of the Available Amount of any Letter of Credit or Swing Line Loans,
and (z) such Lender's Commitments at such time.
"Replaced Lender" has the meaning specified in Section 11.5.
"Replacement Lender" has the meaning specified in Section 11.5.
"Responsible Employee" means the Executive Chairman, President, Chief
Financial Officer, Treasurer, General Counsel or any Associate or Assistant
General Counsel, Assistant Treasurer or Vice President of AGCO or any equivalent
position of 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 who
functions as the plan administrator under the applicable pension plan.
"Restricted Payment" means any direct or indirect distribution,
dividend, or other payment to any Person on account of any general or limited
partnership interest in, or shares of Stock or other securities of such Person
and the payment of any management or similar fee to any Person.
"Restricted Purchase" means any payment on account of the purchase,
redemption, or other acquisition or retirement of any shares of Stock or other
securities of, AGCO.
"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, including each Material Subsidiary and excluding
any Finance Company.
40
"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.
"Revolving Loan" or "Revolving Loans" means, collectively, the
Multi-Currency Revolving Loans made by the Multi-Currency Lenders and the
Canadian Revolving Loans made by the Canadian Lenders pursuant to Section 2.1.
"Revolving Loan Borrowing" means a Multi-Currency Borrowing, a Canadian
Borrowing, a Swing Line Borrowing, or a Letter of Credit Advance.
"Revolving Loan Maturity Date" means (a) January 31, 2006, if prior to
such date AGCO has not refinanced the Existing 2006 Notes from the Net Cash
Proceeds received by AGCO from the issuance of securities (i) maturing no
earlier than January 1, 2010 and (ii) having a priority not greater than the
existing priority of the Existing 2006 Notes, (b) March 31, 2008, if prior to
such date AGCO has not refinanced the Existing 2008 Notes from the Net Cash
Proceeds received by AGCO from the issuance of securities (i) maturing no
earlier than January 1, 2010 and (ii) having a priority not greater than the
existing priority of the Existing 2008 Notes, or (c) January 5, 2009, if AGCO
has refinanced both the Existing 2006 Notes and the Existing 2008 Notes in
accordance with and prior to the dates set forth in clauses (a) and (b) of this
definition.
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc., and its successors.
"Same Day Funds" means (a) with respect to disbursements and payments
in U.S. Dollars, immediately available funds, and (b) with respect to
disbursements and payments in an Offshore Currency, same day or other funds as
may be determined by the Administrative Agent to be customary in the place of
disbursements or payment for the settlement of international banking
transactions in the relevant Offshore Currency.
"Security Agreements" means (a) that certain Security Agreement dated
as of the Initial Funding Date among AGCO, certain U.S. Subsidiaries of AGCO and
the Administrative Agent, (b) those certain Floating and Fixed Charges dated as
of the Initial Funding Date executed by each of English Subsidiary One, English
Subsidiary Two, AGCO Manufacturing Limited and AGCO Services Limited in favor of
the Administrative Agent, (c) that certain Security under Section 427 of the
Bank Act, and that certain General Security Agreement (Ontario) dated as of the
Initial Funding Date, executed by the Canadian Subsidiary in favor of the
Canadian Administrative Agent or one or more of the Canadian Lenders, as
applicable, together with all other notices, instruments or agreements related
thereto (including notices under Section 427 of the Bank Act), (d) those certain
Agreements on the Pledge of Floating Charge Notes dated as of the Initial
Funding Date executed by Finnish Subsidiary, Valtra Vuokraus Oy, and the
Administrative Agent, (e) that certain Intellectual Property Security Agreement
dated as
41
of the Initial Funding Date among AGCO, Xxxxxx Xxxxxxxx Corp., AGCO Equipment
Co., AGCO Acceptance Corporation, Sunflower Manufacturing, Inc., Finnish
Subsidiary and any other Subsidiary party thereto and the Administrative Agent,
and (f) any other agreement delivered on or after the Initial Funding Date
(including by way of supplement to any of the foregoing) by any Person granting
a Lien on the assets of such Person (including, without limitation, any Lien on
bank accounts of such Person) to secure all or any part of the Obligations, in
each case as amended, supplemented or modified from time to time in accordance
with its terms.
"Security Documents" means, individually and collectively, the Pledge
Agreements, the Security Agreements, and the Real Property Documents.
"Securitization Documents" means the US Securitization Documents, the
European Securitization Documents and the Canadian Securitization Documents, in
form and substance satisfactory to the Administrative Agent.
"Securitization Facility" means, individually or collectively, the US
Securitization, the European Securitization and the Canadian Securitization.
"Securitization Funding" means any Indebtedness, trust participations
or any other interests that the Administrative Agent determines are equivalent
thereto, incurred or issued by any Person purchasing Receivables in a
Securitization Facility and applicable to the purchase of such Receivables. Any
reference to the principal amount of Securitization Funding on any date refers
to the "invested amount," "capital," "investment," or analogous term reflecting
the amount paid for the purchase of Receivables in a Securitization Facility or
any trust participations or other equivalent interests issued in connection
therewith, in each case as of such date as determined by the Administrative
Agent. Any reference to the interest expense attributable to any Securitization
Funding refers to any interest expense in respect of any Indebtedness comprising
the same or the equivalent of such interest expense, as determined by the
Administrative Agent, with respect to such purchase of Receivables or any trust
participations or other equivalent interests issued in connection therewith, in
each case for such period.
"Securitization Intercreditor Agreement" means collectively or
individually (a) that certain Intercreditor Agreement dated as of the Initial
Funding Date by and among Rabobank, in its capacity as Administrative Agent, and
Rabobank, in its capacity as Agent under the US Securitization, and (b) that
certain Intercreditor Agreement dated as of the Initial Funding Date by and
among Rabobank, in its capacity as Administrative Agent, and Rabobank, in its
capacity as Agent under the Canadian Securitization, in each case, as the same
may be amended, restated or modified from time to time.
"Senior Debt Ratio" means, on any date of determination, the ratio of
(a)(i) the average of the principal amount of Funded Debt outstanding as of the
last day of each fiscal quarter for the four fiscal quarter period then ended,
minus (ii) the amount of
42
Indebtedness outstanding under the Existing 2008 Notes, the Existing 2006 Notes,
the Convertible Notes and any other New Capital Market Transaction that is
contractually subordinated to the Obligations as of the last day of the most
recent fiscal quarter end, to (b) Consolidated EBITDA for the most recent fiscal
quarter of AGCO for which financial statements have been delivered to the
Administrative Agent pursuant to Section 6.1(b) and for the three complete
fiscal quarters of AGCO immediately preceding such fiscal quarter.
"Sharing Event" means (i) the occurrence of any Event of Default with
respect to any Loan Party pursuant to Section 8.1(e), (ii) the declaration of
the termination of any Multi-Currency Commitment or Canadian Commitment, or the
acceleration of the maturity of any Loans, in each case pursuant to Section 8.2
hereof or (iii) the failure any Borrower to pay any principal of, or interest
on, Loans of any Tranche, any outstanding Letter of Credit or any Bankers'
Acceptance or BA Equivalent Loan on the relevant Maturity Date.
"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.
"Sisu Diesel" means Sisu Diesel Oy, a Finnish limited liability
company.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the tangible and intangible property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair salable
value of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured, (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay such debts and liabilities as they mature and (d) such Person is not engaged
in business or a transaction, and is not about to engage in business or a
transaction, for which such Person's tangible and intangible property would
constitute an unreasonably small capital. The amount of contingent liabilities
at any time shall be computed as the amount that, in the light of all the facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability; provided,
however, that with respect to any Person organized under the laws of the United
Kingdom, "Solvent" means that such Person is able to pay its debts as they fall
due, is not deemed unable to pay its debts as they fall due within the meaning
of Section 123(1) of the Insolvency Act of 1986 and that the value of its assets
is greater than the value of its liabilities, taking into account contingent and
prospective liabilities; provided, further, that with respect to any Person
organized under the laws of Canada or its provinces
43
"Solvent" means that (i) such Person is able to meet its obligations as they
generally become due; (ii) such Person is currently paying its current
obligations in the ordinary course of business as they generally come due; and
(iii) the aggregate value of that Person's property is, at a fair valuation,
sufficient, or if disposed of at a fairly conducted sale under legal process,
would be sufficient to enable payment of all its obligations, due and accruing
due.
"Special Reserve Account" has the meaning specified in Section 2.15(d)
"Spot Rate" for a currency means the rate quoted by the Administrative
Agent as the spot rate for the purchase by the Administrative Agent of such
currency with another currency through its foreign exchange office at
approximately 11:00 a.m. (New York time) on the date two (2) Business Days prior
to the date as of which the foreign exchange computation is made.
"Standby Letter of Credit" means any Letter of Credit issued under the
Letter of Credit Subfacility, other than a Trade Letter of Credit.
"Stock" means, as applied to any Person, any stock, share capital,
partnership interests or other equity of such Person, regardless of class or
designation, and all warrants, options, purchase rights, conversion or exchange
rights, voting rights, calls or claims of any character with respect thereto.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) fifty
percent (50%) or more of (a) the issued and outstanding Stock (or the equivalent
thereof) having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time Stock (or the
equivalent thereof) of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such partnership, joint venture or limited
liability company 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.
"Swing Line Loan" means an advance made by the Swing Line Bank pursuant
to Section 2.1(c).
"Swing Line Bank" means any Lender hereunder, as designated by AGCO in
accordance with this Agreement with the written consent of the Administrative
Agent, acting hereunder as "Swing Line Bank" to make Swing Line Loans to AGCO.
The initial Swing Line Bank shall be SunTrust Bank.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Loans made by the Swing Line Bank.
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"Swing Line Sublimit" has the meaning specified in Section 2.1(c).
"Target" has the meaning specified in the recitals hereto.
"Tax Abatement Transaction" means any revenue bond financing
arrangement between any Person and a development authority or other similar
governmental authority or entity for the purpose of providing property tax
abatement to such Person whereby (i) the development authority issues revenue
bonds to finance the acquisition of property that is now owned or hereafter
acquired by AGCO or a Restricted Subsidiary, (ii) the property so transferred is
leased back by AGCO or such Restricted Subsidiary, (iii) the bonds issued to
finance the acquisition are owned by AGCO or a Restricted Subsidiary, (iv) the
rental payments on the lease and the debt service payments on the bonds are
substantially equal and (v) AGCO or such Restricted Subsidiary has the option to
prepay the bonds, terminate its lease and reacquire the property for nominal
consideration at any time; provided that if at any time any of the foregoing
conditions shall cease to be satisfied, such transaction shall cease to be a Tax
Abatement Transaction.
"Tax Credit" has the meaning specified in Section 11.4(h).
"Taxes" has the meaning specified in Section 11.4(a).
"Term Loan" or "Term Loans" means, collectively, the US Term Loans and
the Euro Term Loans made by Term Loan Lenders pursuant to Section 2.2.
"Term Loan Borrowers" means, collectively, the US Term Loan Borrower
and the Euro Term Loan Borrower.
"Term Loan Facility" means, at any time, the aggregate amount of the US
Term Loan Facility at such time (up to the US Term Loan Amount), plus the Euro
Term Loan Facility at such time (up to the Euro Term Loan Amount).
"Term Loan Lender" means any US Term Loan Lender or any Euro Term Loan
Lender.
"Term Loan Maturity Date" means (a) January 31, 2006, if prior to such
date AGCO has not refinanced the Existing 2006 Notes from the Net Cash Proceeds
received by AGCO from the issuance of securities (i) maturing no earlier than
January 1, 2010 and (ii) having a priority not greater than the existing
priority of the Existing 2006 Notes, (b) March 31, 2008, if prior to such date
AGCO has not refinanced the Existing 2008 Notes from the Net Cash Proceeds
received by AGCO from the issuance of securities (i) maturing no earlier than
January 1, 2010 and (ii) having a priority not greater than the existing
priority of the Existing 2008 Notes, or (c) July 3, 2009, if AGCO has refinanced
both the Existing 2006 Notes and the Existing 2008 Notes in accordance with and
prior to the dates set forth in clauses (a) and (b) of this definition.
45
"Term Loan Outstandings" means, on any date of determination, the
amount in U.S. Dollars and the Equivalent Amount in U.S. Dollars of (a) the
aggregate principal amount of the US Term Loans outstanding on such date, plus
(b) the aggregate principal amount of the Euro Term Loans outstanding on such
date.
"Total Debt Ratio" means, at any date of determination, the ratio of
(a) the average of the principal amount of Funded Debt outstanding as of the
last day of each fiscal quarter for the four fiscal quarter period then ended,
to (b) Consolidated EBITDA for the most recent fiscal quarter of AGCO for which
financial statements have been delivered to the Administrative Agent pursuant to
Section 6.1(b) and for the three complete fiscal quarters of AGCO immediately
preceding such fiscal quarter.
"Trade Letter of Credit" means any Letter of Credit that is issued
under the Letter of Credit Subfacility for the benefit of a supplier of
Inventory to AGCO or any of its Restricted Subsidiaries to support payment for
such Inventory.
"Tranche" means the respective facilities and commitments utilized in
making Loans hereunder, with there being four Tranches (i.e., Multi-Currency
Revolving Loans, Canadian Revolving Loans, US Term Loans and Euro Term Loans).
"Treaty" means the Treaty establishing the European Community being the
Treaty of Rome of March 25, 1957, as amended by the Single Xxxxxxxx Xxx 0000,
the Maastricht Treaty (which was signed at Maastricht on February 7, 1992) and
the Treaty of Amsterdam (which was signed in Amsterdam on October 2, 1997).
"Type" refers to the distinction among Loans bearing interest at the
Base Rate and Loans bearing interest at the LIBO Rate and Loans by way of
Bankers' Acceptances.
"Underlying Debt" means, in relation to a Foreign Obligor and at any
given time, each amount (whether matured or not) owing by that Foreign Obligor
at that time to a Lender or an Issuing Bank under the Loan Documents (other than
that Foreign Obligor's Parallel Debt).
"United States Dollars", "U.S. Dollars" or "U.S. $" means lawful money
of the United States of America.
"Unreimbursed Payment" has the meaning specified in Section 2.15(a).
"Unused Canadian Commitment" means, with respect to any Canadian Lender
at any date of determination, (a) such Lender's Canadian Commitment at such
time, minus (b) the Equivalent Amount in U.S. Dollars as of such date of (i) the
aggregate principal amount of all Base Rate Loans and LIBO Rate Loans made by
such Lender and outstanding on such date, plus (ii) the aggregate face amount of
all Bankers' Acceptances accepted by such Lender and outstanding on such date,
plus (iii) such Lender's Pro Rata Share of (x) the aggregate Available Amount of
all Letters of Credit issued for the
46
account of the Canadian Subsidiary and outstanding on such date, plus (y) 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 Fee" has the meaning specified in Section 2.7(b) hereof.
"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 Equivalent Amount in U.S.
Dollars as of such date of (i) the aggregate principal amount of all
Multi-Currency Revolving Loans made by such Lender and outstanding on such date,
plus (ii) such Lender's Pro Rata Share of (x) the aggregate Available Amount of
all Letters of Credit issued for the account of any Multi-Currency Borrower and
outstanding on such date, plus (y) 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, plus (z) the aggregate
principal amount of all Swing Line Loans outstanding on such date.
"USA Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Pub. L. No. 107-56, 115 Stat. 272 (2001), as the same has been, or shall
hereafter be, renewed, extended, amended or replaced.
"US Securitization" means funding in connection with sales by AGCO of
wholesale Receivables invoiced to third parties located in, or who remit payment
of invoices to a lockbox or deposit account located in, the United States under
a securitization program, as more fully set forth in the US Securitization
Documents.
"US Securitization Documents" means (a) that certain Receivables Sale
Agreement among AGCO, as originator, and AGCO Funding Corporation, as buyer,
dated January 27, 2000, (b) that certain Receivables Purchase Agreement among
AGCO, as initial servicer, AGCO Funding Corporation, as seller, certain conduit
purchasers and committed purchasers, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank International", New York Branch, as
agent, dated January 27, 2000, and (c) all other agreements in form and
substance satisfactory to the Administrative Agent executed in connection with,
or in replacement of, the foregoing, as the same may be amended, supplemented or
modified from time to time with the consent of the Administrative Agent.
"US Term Loan" has the meaning specified in Section 2.2(a).
"US Term Loan Amount" means U.S. $300,000,000.
"US Term Loan Borrower" means AGCO.
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"US Term Loan Facility" means, at any time, the aggregate principal
amount of the US Term Loans at such time.
"US Term Loan Commitment" means, with respect to any Lender at any
time, the amount set forth on Schedule 1 to the Lender Addendum delivered by
such Lender under the caption "US Term Loan 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
10.7(d).
"US Term Loan Lender" means any Lender that has a US Term Loan
Commitment or an assignee of such a Lender.
"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.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
"Working Capital" means, as of any date of determination, AGCO's
Consolidated current assets minus AGCO's Consolidated current liabilities
(excluding the current amount of AGCO's Consolidated Funded Debt), determined in
accordance with GAAP.
Section 1.2 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 1.3 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
United States generally accepted accounting principles ("GAAP") applied on a
basis consistent with those used in the preparation of the latest financial
statements furnished to the Lenders hereunder. 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 6.1 most recently prior to or concurrently with such
calculations 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 one hundred eighty
(180) days after delivery of such financial statements and (ii) AGCO
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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.
(a) AGCO shall deliver to the Administrative Agent, at
the same time as the delivery of any annual or quarterly financial statement
under Section 6.1, (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.
Section 1.4 Currency Equivalents. For purposes of determining in
any currency any amount outstanding in another currency, the Equivalent Amount
of such currency on the date of any such determination shall be used. If any
reference to any Loans or other amount herein would include amounts in U.S.
Dollars and in one or more Offshore Currencies or to an amount in U.S. Dollars
that in fact is in one or more Offshore Currencies, such reference (whether or
not it expressly so provides) shall be deemed to refer, to the extent it
includes an amount in any Offshore Currency, the Equivalent Amount in U.S.
Dollars of such amount at the time of determination.
Section 1.5 Construction. The words "hereof," "herein," "hereby,"
"hereunder," and similar terms in this Agreement or any other Loan Document
refer to this Agreement or such other Loan Document, as the case may be, as a
whole and not to any particular provision of this Agreement or such other Loan
Document, as the case may be. Section, subsection, clause, schedule, and exhibit
references herein are to this Agreement unless otherwise specified. Any
reference in this Agreement or in the other Loan Documents to any agreement,
instrument, or document shall include all alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements, thereto and thereof, as applicable (subject to any restrictions on
such alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth herein). Any
reference herein to the repayment in full of the Obligations shall mean the
repayment in full in cash of all Obligations other than contingent
indemnification Obligations and other than any Obligations under the Interest
Hedge Agreements that, at such time, are allowed by the applicable Lender to
remain outstanding and are not required to be repaid or cash collateralized
pursuant to the provisions of this Agreement. Any reference herein to any Person
shall be construed to include such Person's successors and assigns. All of the
schedules and exhibits attached to this Agreement shall be deemed incorporated
herein by reference.
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ARTICLE 2.
AMOUNTS AND TERMS OF THE LOANS
AND THE LETTERS OF CREDIT
Section 2.1 Revolving Credit Facility. Subject to the terms and
conditions of, and in reliance upon the representations and warranties made in,
this Agreement and the other Loan Documents, the Multi-Currency Lenders and the
Canadian Lenders agree, severally in accordance with their respective Pro Rata
Shares of the Multi-Currency Commitment and the Canadian Commitment and not
jointly, to extend credit in an aggregate principal amount not to exceed THREE
HUNDRED MILLION DOLLARS (U.S. $300,000,000) to the Borrowers, as hereinafter
provided.
(a) Multi-Currency Revolving Loans. Each Multi-Currency
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make advances (each a "Multi-Currency Revolving Loan") to the Multi-Currency
Borrowers from time to time on any Business Day during the period from the
Initial Funding Date until the Maturity Date in an amount for each such
Multi-Currency Revolving Loan 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 Revolving Loan if, on the date of such
Multi-Currency Revolving Loan and after giving effect thereto, the
Multi-Currency Outstandings on such date would exceed the lesser of (i) the
Borrowing Base minus the aggregate amount of the Canadian Outstandings as of
such date, or (ii) the aggregate amount of Multi-Currency Commitments then in
effect. Each Multi-Currency Borrowing shall be in U.S. Dollars in, or the
Equivalent Amount in the requested Offshore Currency of, an aggregate amount of
U.S. $5,000,000 or an integral multiple of U.S. $1,000,000 in excess thereof
(except for the Multi-Currency Borrowing made on the Initial Funding Date) and
shall consist of Multi-Currency Revolving Loans made by such Lenders ratably
according to their Multi-Currency Commitments. The Equivalent Amount in U.S.
Dollars of each Multi-Currency Revolving Loan shall be recalculated hereunder on
each date on which it shall be necessary to determine the Unused Multi-Currency
Commitment, or any or all Loan or Loans 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 2.1(a), prepay pursuant to Section 2.5 and reborrow under this Section
2.1(a).
(b) Canadian Revolving Loans. Each Canadian Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances to and accept Bankers' Acceptances from (each a "Canadian Revolving
Loan"), the Canadian Subsidiary from time to time on any Business Day during the
period from the Initial Funding Date until the Maturity Date in an amount for
each such Canadian Revolving Loan not to exceed such Lender's Unused Canadian
Commitment on such Business Day. In no event shall the Canadian Lenders be
obligated to make any Canadian Revolving Loan if, on the date of such Canadian
Revolving Loan and after giving effect thereto, the
50
Canadian Outstandings on such date would exceed the lesser of (i) the Borrowing
Base minus the aggregate amount of the Multi-Currency Outstandings as of such
date, or (ii) the aggregate amount of Canadian Commitments then in effect. Each
Canadian Borrowing shall be by way of Bankers' Acceptances or Base Rate
Revolving or LIBO Rate Revolving Loans in the Equivalent Amount in Canadian
Dollars of an aggregate amount of U.S. $1,000,000 or an integral multiple of
U.S. $500,000 in excess thereof (except for the Canadian Borrowing made on the
Initial Funding Date), and shall consist of Canadian Revolving Loans made by
such Lenders ratably according to their Canadian Commitments. The Equivalent
Amount in U.S. Dollars of each Canadian Revolving Loan shall be recalculated
hereunder on each date on which it shall be necessary to determine the Unused
Canadian Commitment, or any or all Loan or Loans outstanding on such date.
Within the limits of each Canadian Facility Lender's Unused Canadian Commitment
in effect from time to time, the Borrowers may borrow under this Section 2.1(b),
prepay pursuant to Section 2.5 and reborrow under this Section 2.1(b).
(c) Swing Line Loans. Subject to the terms and conditions
hereinafter set forth (including the conditions in Article 3), the Swing Line
Bank, in its individual capacity, may in its sole discretion make overnight
loans in U.S. Dollars to AGCO from time to time on any Business Day during the
period from the Initial Funding Date until the Maturity Date in an aggregate
amount not to exceed at any time outstanding U.S. $15,000,000 (the "Swing Line
Sublimit"); provided that after giving effect to any such Borrowing, the
Multi-Currency Outstandings shall not exceed the lesser of (i) the Borrowing
Base minus the aggregate amount of the Canadian Outstandings as of such date or
(ii) the aggregate amount of the Multi-Currency Commitments then in effect. As
it is understood that the purpose for the Swing Line Loan is to fund AGCO's
operating account, the making of the Swing Line Loans and the repayments to the
Swing Line Bank may be made on a sweep basis requiring no formal notification
from AGCO. The Swing Line Bank may at its discretion, upon three (3) business
days written notice to AGCO, choose to require written notification of Swing
Line Loans from AGCO, but is not required to do so. No Swing Line Loan shall be
used for the purpose of funding the payment of principal of any other Swing Line
Loan. Each Swing Line Loan shall accrue interest at such rate as may be agreed
to between the Swing Line Bank and AGCO, and such interest shall be due and
payable in arrears monthly or more frequently as may be required by the Swing
Line Bank, and on the Maturity Date. Within the limits of the Swing Line
Sublimit, AGCO may borrow under this Section 2.1(c), prepay the Swing Line Loans
and reborrow under this Section 2.1(c).
Section 2.2 Term Loan Facility.
(a) US Term Loan Facility. Each US Term Loan Lender
severally agrees, on the terms and conditions hereinafter set forth, to make a
term loan (the "US Term Loan") to the US Term Loan Borrower on the Initial
Funding Date in an aggregate amount equal to such US Term Loan Lender's Pro Rata
Share of the US Term Loan
51
Amount. The US Term Loan shall be funded in a single drawing and shall be in
U.S. Dollars. Amounts borrowed under this Section 2.2(a) and repaid may not be
reborrowed.
(b) Euro Term Loan Facility. Each Euro Term Loan Lender
severally agrees, on the terms and conditions hereinafter set forth, to make a
term loan (the "Euro Term Loan") to the Euro Term Loan Borrower on the Initial
Funding Date in an aggregate amount equal to such Euro Term Loan Lender's Pro
Rata Share of the Euro Term Loan Amount. The Euro Term Loan shall be funded in a
single drawing and shall be denominated in Euros. Amounts borrowed under this
Section 2.2(b) and repaid may not be reborrowed.
Section 2.3 Making the Revolving Loans.
(a) Notices. Except as otherwise provided in Section
2.11, each Revolving Loan Borrowing (other than a Swing Line Loan) shall be made
on notice, given not later than:
(i) 11:00 A.M. (New York City time) on the third
Business Day prior to the date of a proposed Borrowing, in the case of a
Borrowing consisting of LIBO Rate Loans;
(ii) 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
Loans in U.S. Dollars if the aggregate principal amount thereof is less than
U.S. $100,000,000;
(iii) 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 Loans in U.S. Dollars if the aggregate
principal amount thereof is U.S. $100,000,000 or more;
(iv) 10:00 A.M. (Toronto time) on the second
Business Day prior to the date of a proposed Borrowing in the case of a
Borrowing consisting of Bankers' Acceptances;
(v) 10:00 A.M. (New York City time) on the
second Business Day prior to the date of a proposed Borrowing in the case of a
Borrowing consisting of Base Rate Loans in an Offshore Currency;
by or on behalf of the Borrower requesting such Revolving Loan to the
Administrative Agent (in the case of a Multi-Currency Borrowing) or the Canadian
Administrative Agent (in the case of a Canadian Borrowing), which shall give to
each Appropriate Lender prompt notice thereof by telecopier; provided, however,
in connection with the Borrowing of the initial Revolving Loans hereunder, such
Borrowing may be made by giving such notice by (1) 11:00 A.M. (New York City
time) on the Business Day of such Borrowing if in U.S. Dollars, or (2) 10:00
A.M. (New York City time) on the Business
52
Day prior to the date of such Borrowing if in an Offshore Currency. Each such
notice of a Revolving Loan Borrowing (a "Notice of Borrowing") shall be by
electronic mail, telecopier or telephone, confirmed immediately in writing, in
substantially the form of Exhibit C-1 hereto (in the case of a Borrowing by a
Multi-Currency Borrower) or Exhibit C-2 hereto (in the case of a Borrowing by
the Canadian Subsidiary), specifying therein the:
(vi) requested date of such Borrowing (which
shall be a Business Day);
(vii) requested Type of Revolving Loans comprising
such Borrowing, which (1) may be a Base Rate Loan or a LIBO Rate Loan if such
Revolving Loan is denominated in U.S. Dollars or Canadian Dollars, (2) prior to
the occurrence of a Sharing Event, shall be a LIBO Rate Loan if such Borrowing
is a Multi-Currency Revolving Loan and the requested currency for such Borrowing
is other than Canadian dollars or U.S. Dollars, (4) after the occurrence of a
Sharing Event, shall be a Base Rate Loan denominated in U.S. Dollars if such
Borrowing is a Multi-Currency Revolving Loan, and (4) may be by way of Bankers'
Acceptances if such Borrowing is denominated in Canadian Dollars;
(viii) requested aggregate principal amount or face
amount of such Borrowing, as the case may be;
(ix) requested currency in which such Borrowing
is to be made; provided that (1) such currency shall be (x) Canadian dollars, if
the Person requesting such Borrowing is the Canadian Subsidiary; (y) British
pounds, U.S. Dollars or Euros, if the Person requesting such Borrowing is a
Multi-Currency Borrower, and (2) so long as a Sharing Event has not occurred,
Borrowers shall be entitled to request that Multi-Currency Revolving Loans
hereunder also be permitted to be made in any other lawful currency constituting
a eurocurrency (other than U.S. Dollars), in addition to the currencies
specified in clause (a) of the definition of "Offshore Currency" herein, that in
the opinion of all of the Multi-Currency Lenders is at such time freely traded
in the offshore interbank foreign exchange markets and is freely transferable
and freely convertible into U.S. Dollars (an "Agreed Alternative Currency"). The
applicable Borrower shall deliver to the Administrative Agent any request for
designation of an Agreed Alternative Currency in accordance with this section,
to be received by the Administrative Agent not later than 12:00 noon (New York
City time) at least ten (10) Business Days prior to the date of any advance
hereunder proposed to be made in such Agreed Alternative Currency. Upon receipt
of any such request the Administrative Agent will promptly notify the
Multi-Currency Lenders thereof, and each Multi-Currency Lender will use its best
efforts to respond to such request within two (2) Business Days of receipt
thereof. The Multi-Currency Lenders may grant or accept such request in their
sole discretion, and the Borrowers understand that there is no commitment by or
understanding with any Multi-Currency Lender with respect to the approval of any
53
Agreed Alternative Currency. The Administrative Agent will promptly notify the
applicable Borrower of the acceptance or rejection of any such request;
(x) in the case of a Borrowing consisting of
LIBO Rate Loans, requested initial Interest Period for each such Borrowing and
in the case of a Borrowing consisting of Bankers' Acceptances, the Contract
Period for each such Revolving Loan Borrowing; and
(xi) 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 Revolving Loan Borrowing by the Canadian Subsidiary shall be a Borrowing
under the Canadian Facility, and each other Revolving Loan Borrowing shall be a
Borrowing under the Multi-Currency Facility.
(b) Making of Loans by Lenders. In the case of a proposed
Borrowing comprised of LIBO Rate Loans, the Appropriate Agent shall promptly
(and in any case no later than 11:00 A.M. (New York City time) on the second
Business Day before any LIBO Rate Loan or 1:00 P.M. (New York City time) on the
day of any Base Rate Loan) notify each Appropriate Lender of the applicable
interest rate under Section 2.6(a). Each Appropriate Lender shall, before 11:00
A.M. (Relevant Currency Time) on the date of any Borrowing consisting of LIBO
Rate Loans, or 3:00 P.M. (New York City time) on the date of any Borrowing
consisting of Base Rate Loans, 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 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 Canadian Subsidiary by way of the
acceptance of Bankers' Acceptances at the branch of the Appropriate Lender to
which notices are sent under Section 10.2, such Lender's Pro Rata Share of such
Borrowing in accordance with the Canadian 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 3,
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, CHIPS identification number or similar number with respect to the
delivery of such funds.
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(c) Appointment of AGCO as Agent, Etc. 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 LIBO Rate Loans 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 3, 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 Revolving Loan to be made by
such Lender as part of such Borrowing when such Revolving Loan, as a result of
such failure, is not made on such date.
(d) Maximum Borrowings. No Multi-Currency Borrower shall
request a Borrowing if, after giving effect thereto, there would be more than
twelve (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 five (5) Borrowings outstanding under the
Canadian Facility.
(e) Swing Line Loans.
(i) As it is understood that the purpose for the
Swing Line Loan is to fund AGCO's operating account, the Swing Line Loans and
repayments to the Swing Line Bank may be made on a sweep basis, requiring no
formal notification from AGCO. The Swing Line Bank may at its discretion, upon
three (3) business days' written notice to AGCO, choose to require written
notification of Swing Line Loans from AGCO, but is not required to do so. At any
time the Swing Line Bank makes a Swing Line Loan, each Multi-Currency Lender
(other than the Swing Line Bank) shall be deemed, without further action by any
Person, to have purchased from the Swing Line Bank an unfunded participation in
any such Swing Line Loan in an amount equal to such Lender's Pro Rata Share of
such Swing Line Loan and shall be obligated to fund such participation as a
Multi-Currency Revolving Loan at such time and in the manner provided below.
Each such Multi-Currency Lender's obligation to participate in, purchase and
fund such participating interests shall be absolute, irrevocable and
unconditional and shall not be affected by any circumstance, including, without
limitation, (1) any set-off, counterclaim, recoupment, defense or other right
which such Multi-Currency Lender or any other Person may have against the Swing
Line Bank or any other Person for any reason whatsoever; (2) the occurrence or
continuance of a
55
Default or an Event of Default or the termination of the Multi-Currency
Commitments; (3) any adverse change in the condition (financial or otherwise) of
AGCO or any other Person; (4) any breach of this Agreement by any Borrower or
any other Multi-Currency Lender; or (5) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing. Each Borrower
hereby consents to each such sale and assignment. Each Multi-Currency Lender
agrees to fund its Multi-Currency Commitment Pro Rata Share of an outstanding
Swing Line Loan on (x) the Business Day on which demand therefor is made by the
Swing Line Bank, provided that such demand is made not later than 11:00 A.M.
(New York City time) on such Business Day, or (y) the first Business Day next
succeeding such demand if such demand is made after such time. Upon any such
assignment by the Swing Line Bank to any other Multi-Currency Lender of a
participation in a Swing Line Loan, the Swing Line Bank represents and warrants
to such other Multi-Currency Lender that it 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 Swing Line Loan, the
Loan Documents or the Borrowers. If and to the extent that any Multi-Currency
Lender shall not have so made the amount of such participation in such Swing
Line Loan available to the Administrative Agent, such Multi-Currency Lender
agrees to pay to the Administrative Agent forthwith on demand such amount
together with interest thereon, for each day from the date of request by the
Swing Line Bank until the date such amount is paid to the Administrative Agent,
at the Federal Funds Rate. If such Multi-Currency Lender shall pay to the
Administrative Agent such amount for the account of the Swing Line Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
U.S. Dollar Loans made by such Multi-Currency Lender on such Business Day for
purposes of this Agreement, and the outstanding principal amount of the Swing
Line Loan made by the Swing Line Bank shall be reduced by such amount on such
Business Day.
(ii) Unless the Swing Line Lender is the
Administrative Agent, the Swing Line Lender shall provide to the Administrative
Agent, on Friday of each week and on each date the Administrative Agent notifies
the Swing Line Lender that any Borrower has made a borrowing request or the
Administrative Agent otherwise requests the same, an accounting for the
outstanding Swing Line Loans in form reasonably satisfactory to the
Administrative Agent. At any time that the Unused Multi-Currency Commitment is
less than U.S. $15,000,000, the Swing Line Sublimit shall be reduced temporarily
to such lesser amount; and
(iii) Unless a Default or an Event of Default then
exists, the Swing Line Lender shall give AGCO and the Administrative Agent at
least seven (7) days' prior written notice before exercising its discretion
herein not to make Swing Line Loans. AGCO must give ten (10) days' prior written
notice to the Administrative Agent of any change in designation of the Swing
Line Lender. The replaced Swing Line Lender shall continue to be a "Swing Line
Lender" for purposes of repayment of any Swing Line Loans made prior to such
replacement and outstanding after such replacement.
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Section 2.4 Reduction of the Commitments.
(a) Optional. AGCO may, upon at least three (3) Business
Days' notice to the Administrative Agent (and, with respect to a reduction of
the Unused Canadian Commitments, the Canadian Administrative Agent), terminate
in whole or reduce in part the unused portions of the Unused Canadian
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.
(b) Mandatory. The aggregate amount of the Multi-Currency
Facility and the Canadian Facility shall be permanently reduced by the amounts
of the Revolving Loans required to be repaid by Borrowers pursuant to Section
2.5(b)(i)-(iv). 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 Lender's Canadian
Commitment shall be reduced ratably in accordance with the proportion that such
Commitment bore to the Canadian Facility immediately before giving effect to
such reduction.
Section 2.5 Prepayments and Deposits.
(a) Optional Prepayments. The Borrowers may, upon at
least three (3) (or two (2) in the case of a Base Rate Loan) Business Days'
notice to the Administrative Agent (and with respect to a prepayment of a
Canadian Revolving Loan, to the Canadian Administrative Agent), prepay pro rata
among the Appropriate Lenders the outstanding amount of any Loan (other than (i)
any Swing Line Loan and Letter of Credit Advances made by an Issuing Bank
(resulting from a drawing under a Letter of Credit) not participated to any
other Lender, in which case, such prepayments shall not be made on a pro rata
basis or require prior notice, or (ii) Bankers' Acceptances) in whole or in part
with accrued interest to the date of such prepayment on the amount prepaid;
provided, however, that in the event that any Lender receives payment of the
principal of any LIBO Rate Loan other than on the last day of the Interest
Period relating to such LIBO Rate Loan (whether due to prepayments made by any
Borrower, or due to acceleration of the Loans, or due to any other reason), the
applicable Borrowers shall pay to such Appropriate Lender on demand any amounts
owing pursuant to Section 11.2.
(b) Mandatory Prepayments.
(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
57
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 on the date 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, 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.
$100,000,000; 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.
(ii) If any Borrower shall receive any Net Cash
Proceeds in any fiscal year in excess of U.S. $5,000,000 from an Asset
Disposition in any transaction or series of related transactions (other than a
disposition permitted by Section 7.7(a)-(g) hereof), then one hundred percent
(100%) of such Net Cash Proceeds received by such Borrower from Asset
Disposition shall be paid to the Administrative Agent as a prepayment of the
Loans (to be applied as set forth in Section 2.5(b)(xii) below) to the extent
such Net Cash Proceeds are not used to purchase or otherwise acquire replacement
assets of a similar kind and nature within one hundred twenty (120) days after
receipt of such Net Cash Proceeds. Nothing in this Section shall authorize any
Borrower to sell any Collateral except as expressly permitted by this Agreement.
(iii) Commencing on March 31, 2005, and on March
31 of each year thereafter, Borrowers shall pay the Administrative Agent fifty
percent (50%) of the Excess Cash Flow received by Borrowers in respect of the
fiscal year most recently
58
ended as a prepayment of the Loans (to be applied as set forth in Section
2.5(b)(xii) below).
(iv) The Borrowers shall repay the Loans in an
amount necessary to cause the Excess Proceeds to be less than U.S. $10,000,000
on any date(to be applied as set forth in Section 2.5(b)(xii) below).
(v) On any date on which the Multi-Currency
Facility shall be reduced pursuant to Section 2.4(a) or Section 2.4(b), if the
Multi-Currency 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 Revolving Loans or Letter
of Credit Advances by the Multi-Currency Lenders in the aggregate principal
amount equal to such excess, and shall pay on demand to the Appropriate Lenders
any amounts owing under Section 11.2 as a result of such prepayment. Each such
prepayment by a Multi-Currency Borrower shall be applied ratably to such
Multi-Currency Revolving Loans 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.
(vi) On any date on which the Canadian Facility
shall be reduced pursuant to Section 2.4(a) or Section 2.4(b), if the Canadian
Outstandings on such date shall exceed the amount of the Canadian Facility after
giving effect to such reduction, the Canadian Subsidiary shall prepay Canadian
Revolving Loans or Letter of Credit Advances by the Canadian Lenders in the
aggregate principal amount equal to such excess, and shall pay on demand to the
Appropriate Lenders any amounts owing under Section 11.2 as a result of such
prepayment. Each such prepayment by the Canadian Subsidiary shall be applied
ratably to such Canadian Revolving Loans 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.
(vii) If, on the last day of any Interest Period
for any LIBO Rate Loan to a Multi-Currency Borrower and on any date on which a
Base Rate Loan to a Multi-Currency Borrower is outstanding, if the
Multi-Currency Outstandings on such date shall exceed one hundred five percent
(105%) of the amount of the Multi-Currency Facility on such date, such
Multi-Currency Borrower shall prepay the lesser of (x) the aggregate principal
amount of such LIBO Rate Loan as to which such last date shall have occurred or
of such Base Rate Loan, and (y) such portion of such principal amount as shall
be the Equivalent Amount in the currency of such Loans of such excess.
(viii) On the last day of any Interest Period for
any LIBO Rate Loan 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 Loan to
59
the Canadian Subsidiary is outstanding, if the Canadian Outstandings on such
date shall exceed one hundred five percent (105%) of the amount of the Canadian
Facility on such date, the Canadian Subsidiary shall prepay the lesser of (x)
the aggregate principal amount of such LIBO Rate Loan to it as to which such
last day shall have occurred or the aggregate principal amount of such Base Rate
Loan or the aggregate face amount of such Bankers' Acceptances, and (y) such
portion of such principal amount or face amount, as the case may be, as shall be
the Equivalent Amount in the currency of such Loans of such excess.
(ix) 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 L/C Cash Collateral
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 Subfacility on such Business Day.
(x) The Canadian Subsidiary shall repay to the
Canadian Administrative Agent for the ratable account of the Canadian Lenders
the aggregate outstanding principal amount or face amount, as the case may be,
of its Borrowings consisting of Canadian Revolving Loans on the Maturity 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 Revolving Loans
on the Maturity Date.
(xi) Each Borrower shall, within one (1) Business
Day of the making thereof by the Appropriate Issuing Bank, repay to the
Appropriate Agent for the account of the Appropriate Issuing Bank the
outstanding principal amount of each Letter of Credit Advance made to such
Borrower.
(xii) Prior to the occurrence of an Event of
Default, all amounts required to be paid pursuant to Section 2.5(b)(i)-(iv)
shall be applied (1) first, to the principal amount of the Term Loans according
to the Term Loan Lenders' Pro Rata Shares, to be applied to the scheduled
installments of the Term Loans set forth in Section 2.5(c) in inverse order of
maturity; (2) second, to the payment of the Revolving Loans according to the
Multi-Currency Lenders' and Canadian Lenders' Pro Rata Shares; and (3) third, to
all other amounts payable under the Obligations in such order as may be
determined by the Administrative Agent. Subject to the foregoing, outstanding
Base Rate Loans of any Tranche shall be prepaid before outstanding LIBO Rate
Loans under such Tranche are prepaid. Subsequent to the occurrence and during
the continuation of an Event of Default, all amounts required to be paid
pursuant to Section 2.5(b)(i)-(iv) shall be applied in accordance with Section
8.4 hereof.
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(c) Repayment of Term Loans.
(i) The US Term Loan shall be repaid in equal
quarterly payments in the amount of U.S. $750,000 each, commencing on the last
day of the first full calendar quarter following the Initial Funding Date. The
outstanding unpaid principal balance and all accrued and unpaid interest under
the US Term Loan Facility shall be due and payable on the earlier of (i) Term
Loan Maturity Date or (ii) the date the Loans are accelerated in accordance with
the terms and conditions of Article 8 of this Agreement.
(ii) The Euro Term Loan shall be repaid in equal
quarterly payments in Euros in an amount equal to one quarter of one percent
(.25%) of the Euro Term Loan Amount (as determined on the Initial Funding Date)
commencing on the last day of the first full calendar quarter following the
Initial Funding Date. The outstanding unpaid principal balance and all accrued
and unpaid interest under the Euro Term Loan Facility shall be due and payable
on the earlier of (i) Term Loan Maturity Date or (ii) the date the Loans are
accelerated in accordance with the terms and conditions of Article 8 of this
Agreement.
(d) Interest on Principal Amounts Prepaid. All
prepayments under this Section 2.5 shall be made together with accrued interest
to the date of such prepayment on the principal amount prepaid.
Section 2.6 Interest.
(a) Ordinary Interest. Each Borrower shall pay interest
on the unpaid principal amount of each Base Rate Loan and LIBO Rate Loan to it
owing to each Lender from the date of such Loan until such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Loan. During such periods as such
Loan is a Base Rate Loan, at a rate per annum equal at all times to the Base
Rate in effect from time to time plus the Applicable Margin in effect for Base
Rate Loans, payable (x) in arrears monthly on the first day of the immediately
following calendar month during such periods, (y) on the date on which such Base
Rate Loan shall be paid in full, and (z) on the Maturity Date. Notwithstanding
any provision in this Agreement to the contrary, for the period of three (3)
Business Days immediately following the Initial Funding Date, the Loans shall be
Base Rate Loans.
(ii) LIBO Rate Loans. During such periods as such
Loan is a LIBO Rate Loan, a rate per annum equal at all times during each
Interest Period for such Loan to the sum of (x) the LIBO Rate for such Interest
Period for such Loan, and (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 (3) months, also on each day
that occurs during such Interest Period every three (3) months
61
from the first day of such Interest Period, (C) on the date on which such Loan
shall be paid in full and (D) on the Maturity Date.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default under Section 8.1(a), and at the election of the
Administrative Agent or the Required Lenders upon the occurrence and during the
continuance of any other Event of Default, each Borrower shall pay interest on
the unpaid principal amount or face amount, as the case may be, of each Loan
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 the Default Rate.
Section 2.7 Fees.
(a) Administrative Agent. The Borrowers agree to pay to
the Administrative Agent for its own account a fee separately agreed between the
Borrowers and the Administrative Agent and such other fees required by the Fee
Letter on the dates set forth therein.
(b) Unused Fee. The Borrowers 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 Lenders an unused
commitment fee (the "Unused Fee") in U.S. Dollars computed each day, on each
Multi-Currency Lender's Adjusted Unused Multi-Currency Commitment and each
Canadian Subsidiary Lender's Unused Canadian Commitment, from the Initial
Funding Date until the Revolving Loan Maturity Date at a rate per annum equal to
the Applicable Margin for the Unused Fee in effect from time to time, which fee
shall be due and payable quarterly in arrears on the last day of each calendar
quarter (commencing with the calendar quarter ending March 31, 2004) and, if
then unpaid, on the Revolving Loan Maturity Date; provided, however, that any
Unused Fee accrued with respect to any of the Commitments of a Defaulting Lender
during the period prior to the time such Lender became a Defaulting Lender and
unpaid at such time shall not be payable by the Borrowers so long as such Lender
shall be a Defaulting Lender except to the extent that such Unused Fee shall
otherwise have been due and payable by the Borrowers prior to such time; and
provided further that no Unused Fee shall accrue on any of the Commitments of a
Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(c) Letter of Credit Fee.
(i) From and after the Initial Funding Date,
each Multi-Currency Borrower shall pay to the Administrative Agent, for the
account of the Multi-Currency Lenders, a fee computed each day at a rate equal
to the rate per annum equal to the Applicable Margin on such day for LIBO Rate
Revolving Loans on the aggregate Available Amount of all Letters of Credit
outstanding and issued for such Multi-Currency
62
Borrower's account, which fee shall be due and payable quarterly in arrears on
the last day of each calendar quarter (commencing with the calendar quarter
ending March 31, 2004) and, if then unpaid, on the Maturity Date. Each such
Lender's fee shall be calculated by allocating to such Lender a portion of the
total fee determined ratably according to the proportion that such Lender's
Multi-Currency Commitments bear to all Multi-Currency Lenders' Multi-Currency
Commitments.
(ii) From and after the Initial Funding Date, the
Canadian Subsidiary shall pay to the Canadian Administrative Agent, for the
account of the Canadian Lenders, a fee computed each day at a rate equal to the
rate per annum equal to the Applicable Margin on such day for LIBO Rate
Revolving Loans on the aggregate Available Amount of all Letters of Credit
outstanding and issued for the Canadian Subsidiary's account, which fee shall be
due and payable quarterly in arrears on the last day of each calendar quarter
(commencing with the calendar quarter ending March 31, 2004) and, if then
unpaid, on the Maturity Date. Each such Lender's fee shall be calculated by
allocating to such Lender a portion of the total fee determined ratably
according to the proportion that such Lender's Canadian Commitments bear to all
Canadian Lenders' Canadian Commitments.
(d) Issuing Bank Fee. From and after the Initial Funding
Date, the Multi-Currency Borrowers agree to pay to the Administrative Agent, for
the account of the applicable Multi-Currency Issuing Bank, and the Canadian
Subsidiary agrees to pay to the Canadian Administrative Agent, for the account
of the Canadian Issuing Bank, in each case, a fee equal to 0.15% per annum
(computed on the basis of a year of three hundred sixty (360) days in connection
with the fee to such Multi-Currency Issuing Bank, and on the basis of a year of
three hundred sixty-five (365) days in connection with the fee to the Canadian
Issuing Bank, in each case for the actual number of days elapsed), of the face
amount of each Letter of Credit issued under the Multi-Currency Facility and the
Canadian Facility, respectively, which fee shall be due and payable quarterly in
arrears on the last day of each calendar quarter during which such Letter of
Credit was outstanding (commencing with the calendar quarter ending March 31,
2004) and, if then unpaid, on the Maturity Date. Additionally, the
Multi-Currency Borrowers and the Canadian Subsidiary, as applicable, agree to
pay to the Appropriate Issuing Bank, for its own account, its customary fees for
issuing, amending, paying, negotiating or renewing any Letter of Credit, which
fees shall be due and payable on the date of each such issuance, amendment,
payment, negotiation or renewal. The foregoing fees shall be fully earned when
due and nonrefundable when paid. In the event of any inconsistency between the
terms of this Agreement and the terms of any letter of credit reimbursement
agreements or indemnification agreements between any Borrower and the Issuing
Bank with respect to the Letters of Credit issued hereunder, the terms of this
Agreement shall control.
(e) Ticking Fee. From January 1, 2004 until the earlier
of (i) the Initial Funding Date or (ii) April 30, 2004, the Borrowers shall pay
to the Administrative
63
Agent, for the account of the Lenders, a fee equal to one-half of a percent
(0.5%) per annum (computed on the basis of a year of three hundred sixty (360)
days, in connection with the fees for all Lenders other than the Canadian
Lenders, and on a basis of three hundred sixty-five (365) days in connection
with the fees for the Canadian Lenders) of the Commitments. Each Lender's fee
shall be calculated in accordance with such Lender's Pro Rata Share of the
Commitments.
Section 2.8 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 11.1 and so long as no Sharing Event shall have occurred,
(i) AGCO may Convert all or any portion of the Multi-Currency Revolving Loans
(but not Letter of Credit Advances) in U.S. Dollars of one Type comprising the
same Borrowing into Revolving Loans of another Type (other than Revolving Loans
by way of Bankers' Acceptances), (ii) AGCO may Convert all or any portion of the
Term Loans in U.S. Dollars of one Type into Term Loans of another Type and (iii)
the Canadian Subsidiary may Convert all or any portion of the Canadian Revolving
Loans (but not Letter of Credit Advances) of one Type comprising the same
Borrowing into Revolving Loans of another Type; provided that (w) any Conversion
of LIBO Rate Loans into Base Rate Loans or into Revolving Loans by way of
Bankers' Acceptances shall be made only on the last day of an Interest Period
for such LIBO Rate Loans; any Conversion of Base Rate Loans into LIBO Rate Loans
or into Revolving Loans by way of Bankers' Acceptances shall be in an amount not
less than the relevant minimum amount specified in Section 2.1; any Conversion
of Revolving Loans by way of Bankers' Acceptances into Base Rate Loans shall be
made only on the last day of the relevant Contract Period; if less than all
Revolving Loans by way of Bankers' Advances or all LIBO Rate Loans are
Converted, after such Conversion not less than the relevant minimum amount
specified in Section 2.14(a) shall continue as Revolving Loans by way of
Bankers' Acceptances or LIBO Rate Loans, as applicable; if less than all LIBO
Rate Loans are Converted, after such Conversion, not less than the relevant
minimum amount specified in Section 2.1 shall continue as LIBO Rate Loans; (x)
if less than all Loans comprising part of the same Revolving Loan Borrowing are
Converted, the portion of the Loans Converted must at least equal the minimum
aggregate principal amount of a Borrowing permitted under Section 2.1 and all
Lenders' Loans comprising the Borrowing to be Converted in part shall be
Converted ratably in accordance with their applicable Pro Rata Shares; (y) each
Conversion of less than all Loans comprising part of the same Revolving Loan
Borrowing shall be deemed to be an additional Borrowing for purposes of Section
2.3(d), and no such Conversion of any Loans may result in there being
outstanding more separate Revolving Loan Borrowings than permitted under Section
2.3(d); and (z) no Loans may be Converted into LIBO Rate Loan or into Revolving
Loans 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 Loans to be
Converted, (y) if such
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Conversion is into LIBO Rate Loans, the duration of the initial Interest Period
for such Loans, and (z) if such Conversion is into Revolving Loans by way of
Bankers' Acceptances, the duration of the Contract Period for such Revolving
Loans. Each notice of Conversion shall be irrevocable and binding on AGCO.
(b) On the date on which the aggregate unpaid principal
amount of LIBO Rate Loans denominated in U.S. Dollars shall be reduced, by
payment or prepayment or otherwise, to less than U.S. $5,000,000, such Loans
shall automatically Convert into Base Rate Loans, and if the aggregate face
amount of outstanding Bankers' Acceptances shall be reduced by payment or
prepayment or otherwise, to less than Cnd. $5,000,000, the Revolving Loans by
way of such Bankers' Acceptances shall automatically Convert, on the last day of
the relevant Contract Period, into Base Rate Loans.
(c) If a Borrower shall fail to select the duration of
any Interest Period for any LIBO Rate Loans in accordance with the provisions
contained in the definition of "Interest Period", the Appropriate Agent will
forthwith so notify such Borrower and the Appropriate Lenders, whereupon each
such LIBO Rate Loan will automatically, on the last day of the then-existing
Interest Period therefor, convert into a LIBO Rate Loan with a one month
Interest Period.
(d) If the Canadian Subsidiary shall fail to select the
duration of any Contract Period for any Revolving Loans by way of Bankers'
Acceptances in accordance with the provisions contained in the definition of
"Contract Period," the Canadian Administrative Agent will forthwith so notify
the Canadian Subsidiary and the Appropriate Lenders, whereupon each such
Revolving Loan by way of Banker's Acceptances will automatically, on the last
day of the then-existing Contract Period therefor, Convert into a Base Rate
Loan.
Section 2.9 Payments and Computations.
(a) Each Borrower shall make each payment hereunder free
and clear of any setoff or counterclaim, with such payment (other than repayment
of a Swing Line Loan) being paid 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, prior to the occurrence of a Sharing Event,
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, to the applicable 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,
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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 10.7(d), from and after
the effective date of such Assignment and Acceptance, the Appropriate Agent
shall make all payments hereunder in respect of the interest assigned hereby to
the Lender assignee hereunder, 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 Loans 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
Loans and the Available Amount of all Letters of Credit then outstanding, in
repayment or prepayment of such of the outstanding Loans 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 fees payable by any Multi-Currency Borrower under the Multi-Currency
Facility or any Term Loan Borrower under the Term Loans shall be made by the
Administrative Agent on the basis of a year of three hundred sixty (360) days,
and all computations of interest, fees and Letter of Credit fees payable by the
Canadian Subsidiary under the Canadian Facility shall be made by the Canadian
Administrative Agent on the basis of a year of three hundred sixty-five (365)
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 each rate of interest on, and each fee and
Letter of Credit fee payable in respect of, Canadian Revolving Loans that is
calculated on the basis of a year of three hundred sixty-five (365) days, shall
be determined pursuant to such calculation and the equivalent, expressed as an
annual rate for the purpose of the Interest Act (Canada), of any such rate as so
determined shall be such rate, multiplied by the actual number of days in the
calendar year in which the same is to be ascertained and divided by three
hundred sixty-five (365). 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 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
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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 LIBO Rate Loans 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 any
Borrower prior to the date on which any payment is due to any Lender hereunder
that such Borrower will not make such payment in full, such Agent may assume
that such Borrower has made such payment in full to such Agent on such date and
such Agent may, in reliance upon such assumption, 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 such 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 2.10 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 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 at such time) of payments on account of the Obligations
due and payable to all Lenders hereunder 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 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 at such time) of payments on
account of the Obligations owing (but not due and payable) to all Lenders
hereunder 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
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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 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 2.11 Letters of Credit.
(a) The Letter of Credit Subfacility. 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 any 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 the Initial Funding Date until sixty (60) days before the
Maturity 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 amount of
the Letter of Credit Subfacility, 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 the lesser of (x) the aggregate Unused Multi-Currency
Commitments on such Business Day and (y) the Borrowing Base minus the
Multi-Currency Outstandings on such Business Day minus the Canadian 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 the
lesser of (x) the Unused Canadian Commitments on such Business Day and (y) the
Borrowing Base minus the Canadian Outstandings on such Business Date minus the
Multi-Currency 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 five (5) days before the Revolving
Loan Maturity Date and one (1) year after the date of issuance thereof;
provided, however, that any Letter of Credit that expires one (1) year after the
date of its issuance may provide for the automatic renewal of such Letter of
Credit for additional one (1)-year periods so long as such Letter of Credit, as
renewed, shall have an expiration date not later than five (5) days before the
Revolving Loan Maturity Date. Notwithstanding the foregoing, a Letter of Credit
may have an expiration date later than five (5) days prior to the Revolving Loan
Maturity Date if the requesting Borrower provides, at the time of the issuance
of such Letter of Credit, cash collateral to the Administrative Agent for the
benefit of those Lenders with a Multi-Currency Commitment or Canadian
Commitment, as applicable, in an amount equal to one hundred percent (100%) of
the face amount of such Letter of Credit. 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 Subfacility, and subject to the limits referred to above, the
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Borrowers may request the issuance of Letters of Credit under this Section
2.11(a), repay any Letter of Credit Advances resulting from drawings thereunder
pursuant to Section 2.11(c) and request the issuance of additional Letters of
Credit under this Section 2.11(a). On the Initial Funding Date, each outstanding
letter of credit issued under the Existing Credit Agreement and each letter of
credit described on Schedule 2.11 hereof (collectively, the "Existing L/Cs")
shall be deemed for all purposes, as of the Initial Funding Date, without
further action by any Person, to have been issued hereunder, and each such
issuer of the Existing L/Cs shall be deemed to be an "Issuing Bank" hereunder
for all purposes but solely with respect to, and until the termination,
expiration or replacement of, such Existing L/Cs.
(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 electronic mail, telecopier or telephone,
confirmed immediately in writing, specifying therein (1) the requested date of
such issuance (which shall be a Business Day); (2) the requested Available
Amount of such Letter of Credit; (3) the requested expiration date of such
Letter of Credit; (4) the requested currency in which such Letter of Credit
shall be denominated, which shall be U.S. Dollars or, prior to the occurrence of
a Sharing Event, an Offshore Currency; provided that no Borrower shall make a
request for a Letter of Credit in an Offshore 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; (5) the
requested name and address of the beneficiary of such Letter of Credit; and (6)
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, the Appropriate Issuing Bank will, upon fulfillment
of the applicable conditions set forth in Article 3, make such Letter of Credit
available to the requesting Borrower at its office referred to in Section 10.2
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 (1) to the
Appropriate Agent on the first Business Day of each week a written report
summarizing issuance and
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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; (2) 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
(3) 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 to
the applicable Borrower, which shall (1) in the case of payment on a draft drawn
under a Letter of Credit denominated in U.S. Dollars or Canadian Dollars, or
after a Sharing Event, any Letter of Credit, be a Base Rate Loan in the amount
of such draft, and (2) in any other case, be a LIBO Rate Loan that bears
interest at the rate per annum equal to the rate per annum at which interest
would accrue on a LIBO Rate Loan with an Interest Period of one month beginning
on the date of such draw, and be immediately due and payable in full by the
applicable Borrower within one (1) Business Day of the payment thereof by the
Appropriate Issuing Bank.
(ii) Upon the issuance of each Letter of Credit
for the account of a Multi-Currency Borrower, each Multi-Currency Lender (other
than the applicable 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 applicable
Multi-Currency Issuing Bank) shall purchase from such Multi-Currency Issuing
Bank, directly and not as a participation, and such 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 to the extent not previously repaid by the
applicable Borrower, by making available for the account of its Applicable
Lending Office to the Administrative Agent for the account of the applicable
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. Furthermore,
upon the occurrence of a Sharing Event and as more fully set forth in Section
2.15, additional sub-participations may be required to be granted by the various
Multi-
70
Currency Lenders in their participations in outstanding Letters of Credit, in
each case in accordance with, and subject to the provisions of, Section 2.15.
(iii) Upon the issuance of each Letter of Credit
for the account of the Canadian Subsidiary, each Canadian Lender (other than the
Canadian Issuing Bank, if it is then a Canadian 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 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 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 to the extent not previously repaid by the applicable Borrower, 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 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 (1) 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 (2) 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 Borrowings) in the case of demands
made by the Canadian Issuing Bank. If
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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");
(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 Guaranty Agreement or Security Document; or
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(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.
Section 2.12 Defaulting Lenders.
(a) 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 Section 2.3(b) and the Appropriate Agent 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 Borrowers, the interest
rate applicable at such time under Section 2.6 to Loans 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 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 Loan as part of such
Borrowing for purposes of this Agreement.
(b) The failure of any Lender to make the Loan 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 Revolving Loan on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Revolving Loan to be made by such other Lender on the date of
any Borrowing.
Section 2.13 Borrower Liability. AGCO shall be jointly and
severally liable for all Loans 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 any other Borrowing
Subsidiary (except as may otherwise be provided in such Borrowing Subsidiary's
Guaranty Agreement).
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Section 2.14 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.
(b) Discount Rate. On each day on which Bankers'
Acceptances are to be accepted, the Canadian Administrative Agent shall advise
the Canadian Subsidiary as to the Canadian Administrative Agent's determination
of the Discount Rate.
(c) Purchase and Reimbursement of Bankers' Acceptances.
On and after the Initial Funding Date, the Canadian Subsidiary may sell, and
each Canadian Lender shall purchase, at the Discount Rate each Bankers'
Acceptance accepted by it and deliver the Discount Proceeds less the Acceptance
Fee to the Canadian Administrative Agent for the Canadian Subsidiary's account.
The Canadian Subsidiary will reimburse each Canadian 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 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 Canadian Subsidiary
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 D (or such other form as may be satisfactory to the Canadian
Administrative Agent) executed and duly endorsed in blank by the Canadian
Subsidiary, in quantities sufficient for each of the Canadian Lenders to fulfill
its obligations under this Agreement. No Canadian 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 Canadian Subsidiary to provide duly executed and endorsed drafts
to the Canadian Administrative Agent on a timely basis nor shall the Canadian
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 willful misconduct of the Canadian
Lender, the Canadian Administrative Agent or their respective employees.
(f) Execution of Bankers' Acceptances. Bills of exchange
drawn by the Canadian Subsidiary to be accepted as Bankers' Acceptances shall be
signed by a duly authorized officer or officers of the Canadian Subsidiary.
Notwithstanding that any Person whose signature appears on any Bankers'
Acceptance may no longer be an authorized signatory for the Canadian Subsidiary
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 Canadian Subsidiary.
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(g) Issuance of Bankers' Acceptances. The Canadian
Administrative Agent, promptly following receipt of a notice of Advance by way
of Bankers' Acceptances, shall so advise the Canadian Lenders and shall advise
each Canadian 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 Lenders). The aggregate face amount of the Bankers' Acceptances
to be accepted by a Canadian Lender shall be determined by the Canadian
Administrative Agent by reference to Section 2.14(a), except that, if the face
amount of a Bankers' Acceptance which would otherwise be accepted by a Canadian
Lender would not be Cdn. $100,000 or a whole multiple thereof, such face amount
shall be increased or reduced by the Canadian Administrative 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 Revolving Loan 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 Canadian Subsidiary
shall notify the Canadian Administrative Agent by telex, telecopier or cable in
substantially the form of Exhibit B hereto, if the Canadian Subsidiary 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 Canadian Subsidiary delivering such notice. If the Canadian
Subsidiary fails to give such notice, such maturing Bankers' Acceptances shall
be converted on their maturity date into Base Rate Loans in an amount equal to
the face amount of such Bankers' Acceptances.
(i) Rollover. The rollover of Bankers' Acceptances
pursuant to Section 2.14(h) shall not constitute a repayment of any Borrowing or
a new Revolving Loan.
(j) BA Equivalent Loans by Non BA Lenders. Whenever the
Canadian Subsidiary requests a Canadian Revolving Loan 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 Revolving Loan;
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(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
(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
Revolving Loan.
(l) Prepayment of Bankers' Acceptances. Whenever the
provisions of this Agreement state that the Canadian Subsidiary shall prepay the
principal amount of Canadian Revolving Loans or any portion of the principal
amount of Canadian Revolving Loans, and such Canadian Revolving Loans are by way
of Bankers' Acceptances and not BA Equivalent Loans, such prepayment of such
Canadian Revolving Loans shall mean that the Canadian Subsidiary 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
Lender's obligations in respect of such Bankers' Acceptances on the applicable
maturity date(s). The Canadian Subsidiary'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 Canadian Subsidiary.
(m) Rounding. The Canadian Administrative Agent is
authorized by the Canadian Subsidiary and each Canadian Lender to allocate among
the Canadian 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 Lender's
allocation up or down, so as to ensure that no Canadian Lender is required to
accept a Bankers' Acceptance for a fraction of Cdn. $100,000, and in such event,
the respective Lenders' Pro Rata Share 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
Lender to cause the proportionate share of one or more Lenders' Canadian
Commitments to be exceeded by not more than Cdn. $100,000 each as a result of
such allocations; provided that (a) the Canadian Outstandings shall not thereby
exceed the amount of the Canadian Commitment and (b) no Canadian Lender shall be
required to make available an amount greater than its Pro Rata Share of the
Canadian Commitment.
Section 2.15 Special Provisions Applicable to Lenders Upon the
Occurrence of a Sharing Event.
(a) On the date of the occurrence of a Sharing Event,
automatically (and without the taking of any action) (x) all then outstanding
Offshore Currency Loans, all Letter of Credit Advances in respect of Letters of
Credit issued for any Borrower's account owed in an Offshore Currency and all
payments or disbursements made by a Canadian Lender under any Bankers'
Acceptance or BA Equivalent Loan issued by it (each such amount so paid until
reimbursed, an "Unreimbursed Payment") in respect of
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Bankers' Acceptances or BA Equivalent Loans issued for the Canadian Subsidiary's
account owed in Canadian Dollars, shall be automatically converted into Loans of
the respective Tranche maintained in, Letter of Credit Advances of the
respective Tranche owing in, or Unreimbursed Payments owing in, U.S. Dollars (in
an amount equal to the Equivalent Amount of the aggregate principal amount of
the respective Offshore Currency Loans, Letter of Credit Advances or
Unreimbursed Payments on the date such Sharing Event first occurred, which
Offshore Currency Loans, Letter of Credit Advances and Unreimbursed Payments (i)
shall continue to be owed by the Borrowers, as the case may be, (ii) shall at
all times thereafter be deemed to be Base Rate Loans and (iii) shall be
immediately due and payable on the date such Sharing Event has occurred) and (y)
all principal, accrued and unpaid interest and other amounts owing with respect
to such Offshore Currency Loans, Letter of Credit Advances and Unreimbursed
Payments shall be immediately due and payable in U.S. Dollars, taking the
Equivalent Amount of such principal, accrued and unpaid interest and other
amounts. The occurrence of any conversion of Offshore Currency Loans, Letter of
Credit Advances or Unreimbursed Payments to Base Rate Loans as provided above in
this Section 2.15(a) shall be deemed to constitute, for purposes of Article 11,
a prepayment of Loans before the last day of any Interest Period relating
thereto.
(b) On the date of the occurrence of any Sharing Event,
(i) if any Swing Line Loans are outstanding, a Multi-Currency Revolving Loan
shall be made by the respective Multi-Currency Lenders in accordance with the
provisions of Section 2.3(e)(i), and (ii) if there have been any drawings
pursuant to Letters of Credit that have not yet been reimbursed to the
Appropriate Issuing Bank pursuant to Section 2.11, the Multi-Currency Lenders
and the Canadian Lenders shall make payments to the Appropriate Issuing Bank
therefor in accordance with the requirements of Section 2.11(c)(ii) or Section
2.11(c)(iii), as applicable. Each Multi-Currency Lender or Canadian Lender, as
applicable, that is required to make payments pursuant to the immediately
preceding sentence shall be obligated to do so in accordance with the terms of
this Agreement. For purposes of making calculations pursuant to the following
provisions of this Section 2.15, such payments shall be deemed to have been made
on the date of the occurrence of the Sharing Event, before making such
calculations. Notwithstanding anything to the contrary contained in the
immediately preceding sentence, any Multi-Currency Lender or Canadian Lender, as
applicable, that has failed, or fails, to make any payments required to be made
by it as described in this clause (b) (and/or the other relevant Sections of
this Agreement) shall remain obligated to make such payments, together with
interest thereon, and shall be obligated to the Swing-Line Lender or the
Appropriate Issuing Bank, as the case may be, for any damages caused by its
delay or failure in making any payments required to be made by it as described
above.
(c) On the date of the occurrence of a Sharing Event, the
following actions shall be required to occur: (i) the participations of the
Multi-Currency Lenders and the Canadian Lenders in all then outstanding Letters
of Credit shall be automatically adjusted so that each Multi-Currency Lender and
each Canadian Lender shall participate
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in each outstanding Letter of Credit (whether such Letter of Credit is issued
under the Multi-Currency Facility or under the Canadian Facility) in accordance
with such Lender's Pro Rata Share of the Multi-Currency Facility and Canadian
Facility, as applicable, (ii) the participations of the Canadian Lenders in all
then outstanding Bankers' Acceptances or BA Equivalent Loans shall be
automatically adjusted so that each Multi-Currency Lender and each Canadian
Lender shall participate in each outstanding Bankers' Acceptance or BA
Equivalent Loan in accordance with such Lenders' Pro Rata Share of the
Multi-Currency Facility and Canadian Facility, as applicable, (iii) if the
outstanding principal of all then outstanding Revolving Loans, and Letter of
Credit Advances and Unreimbursed Payments theretofore paid, and owing to, the
respective Multi-Currency Lenders and Canadian Lenders, as applicable (after
giving effect to the conversions and events required by Section 2.15(a)), is
less than any Multi-Currency Lender's or Canadian Lender's Pro Rata Share of the
outstanding principal amount of all Revolving Loans and the aggregate amount of
all Letter of Credit Advances and Unreimbursed Payments at such time, then such
Lender shall purchase, for cash in U.S. Dollars, participations from the
Multi-Currency Lenders or Canadian Lenders, as applicable, in their outstanding
Revolving Loans, Letter of Credit Advances and/or Unreimbursed Payments so that,
after giving effect to such purchases by all Multi-Currency Lenders and Canadian
Lenders that are in such position, each Multi-Currency Lender and each Canadian
Lender shall have the same credit exposure (with respect to Revolving Loans,
Letter of Credit Advances and Unreimbursed Payments), in accordance with its Pro
Rata Share (before giving effect to any termination or reduction thereof at or
prior to the occurrence of the respective Sharing Event), as each other Lender.
Any payments made after the date of the respective Sharing Event pursuant to the
preceding sentence shall be required to be accompanied by payments of interest
(which shall be distributed by the Administrative Agent to the respective
Multi-Currency Lender(s), Canadian Lender(s) entitled to receive the respective
cash payments) at the greater of the Federal Funds Rate or such rate as may be
determined by the Administrative Agent in accordance with banking industry
practice on interbank compensation. The foregoing purchases shall be
accomplished through purchases and sales of participations in the relevant
obligations as required above, and each Multi-Currency Lender and each Canadian
Lender hereby agrees, at the request of the Administrative Agent, to enter into
customary participation agreements approved by the Administrative Agent to
effect the foregoing. All purchases of sales of participating interests pursuant
to this Section 2.15(c) shall be made in U.S. Dollars. Promptly following the
occurrence of a Sharing Event, the Administrative Agent shall notify each
Multi-Currency Lender and each Canadian Lender and shall specify the amount of
U.S. Dollars required from each Multi-Currency Lender and each Canadian Lender
to effect the purchases and sales by the various Multi-Currency Lenders and
Canadian Lenders of participating interests in the amounts required above
(together with accrued interest with respect to the period for the most recent
payment date through the date of the Sharing Event plus any additional amounts
payable by the Borrowers pursuant to Article 11 in respect of such accrued and
unpaid interest). Promptly upon receipt of such request, each Multi-Currency
Lender and each Canadian Lender required to purchase participations as specified
above shall deliver
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to the Administrative Agent (in immediately available funds) U.S. Dollars in the
amounts specified by the Administrative Agent. The Administrative Agent shall
promptly deliver the amounts so received to the various Multi-Currency Lenders
and Canadian Lenders who are selling participations in such amounts as are
needed to effect the purchases of participations as provided above. Promptly
following receipt thereof, each Multi-Currency Lender and each Canadian Lender
that had sold participations as provided above (through the Administrative
Agent) will deliver to each Multi-Currency Lender and each Canadian Lender
(through the Administrative Agent) that so purchased a participating interest in
its Loans, Letter of Credit Advances or Unreimbursed Payments a participation
certificate dated the date of such purchase and in such amounts.
(d) In the event that upon the occurrence of a Sharing
Event any Letter of Credit shall be outstanding and undrawn in whole or in part,
or there shall exist any Bankers' Acceptances or BA Equivalent Loans
representing credit exposure for events that have not then occurred, each
Multi-Currency Lender and each Canadian Lender shall on the date of the
occurrence of such Sharing Event, and after giving effect to the purchases and
sales of participations on such date pursuant to preceding Section 2.15(c), but
before giving effect to the purchases and sales of participations on such date
pursuant to Section 2.15(e), promptly pay over to the Administrative Agent, in
immediately available funds in the currency in which such Letter of Credit is,
or Bankers' Acceptances or BA Equivalent Loans are, denominated, an amount equal
to such Multi-Currency Lender's or Canadian Lender's Pro Rata Share of such
undrawn face amount or Bankers' Acceptance or BA Equivalent Loans, as
applicable, together with interest thereon (denominated in the relevant
currency) from the date of the Sharing Event to the date on which such amount
shall be paid to the Administrative Agent at a rate per annum equal to that rate
determined by the Administrative Agent in accordance with banking industry rules
or practice on interbank compensation. The Administrative Agent shall establish
a separate account or accounts for each Multi-Currency Lender and each Canadian
Lender in an amount equal to the amount received from such Multi-Currency Lender
and Canadian Lender pursuant to the preceding sentence. The Administrative Agent
shall have sole dominion and control over each such account (each, a "Special
Reserve Account"), and the amounts deposited in each Special Reserve Account
shall be held in such Special Reserve Account until withdrawn as provided in
clause (f), (g) or (h) below in this Section 2.15. The Administrative Agent
shall maintain records enabling it to determine the amounts paid over to it and
deposited in the Special Reserve Accounts. As amounts are drawn under
outstanding Letters of Credit or Bankers' Acceptances or BA Equivalent Loans in
respect of which amounts have been paid into the various Special Reserve
Accounts pursuant to this Section 2.15(d), amounts shall be drawn ratably from
the Special Reserve Accounts of the various Multi-Currency Lenders and Canadian
Lenders (in accordance with their Pro Rata Share) to pay such amounts. The
amounts paid to the Administrative Agent pursuant to this clause (d) shall be
held as a reserve against the outstanding Letter of Credit and/or Bankers'
Acceptances or BA Equivalent Loans, as the case may be, shall not constitute
Loans or extensions of credit to any Borrower and shall not give rise to any
obligation on the part of any Borrower to pay
79
interest to any Lender, it being agreed that the Borrowers' reimbursement
obligations (x) in respect of Letters of Credit shall arise only at such times
as drawings or payments are made thereunder as provided in Section 2.11 and (y)
in respect of Bankers' Acceptances or BA Equivalent Loans shall arise only at
such times as drawings or payments are made thereunder as provided in Section
2.14.
(e) Upon the occurrence of a Sharing Event, but after
giving effect to the actions required to be taken pursuant to preceding clause
(a) through (d) (although any failure by any Lender to take the actions required
of it pursuant to said clauses shall not prevent the exchanges required hereby,
but the respective Lender shall continue to be obligated to perform its
obligations as required above and the Administrative Agent shall be authorized
to make any equitable adjustments as may be deemed necessary or desirable
pursuant to following clause (i) of this Section 2.15), the Lenders shall
automatically and without further action be deemed to have exchanged interests
in the respective Tranches (including, in the case of the Multi-Currency
Commitment, interests in each outstanding Letter of Credit and each Letter of
Credit Advance, and, in the case of the Canadian Commitment, each outstanding
Letter of Credit, each Letter of Credit Advance, each Bank Guaranty or BA
Equivalent Loans and each Unreimbursed Payment) such that, in lieu of the
interests of each Lender in each Tranche, such Lender shall hold an interest in
all Tranches at such time (including, (v) in the case of the Multi-currency
Commitment, an interest in all of the Multi-Currency Outstandings, (w) in the
case of the Canadian Commitment, an interest in all of the Canadian
Outstandings, (x) in the case of the US Term Loan, an interest in the
outstanding amount US Term Loan, (y) in the case of the Euro Term Loan, an
interest in the outstanding amount of Euro Term Loan, and (z) each Special
Reserve Account established pursuant to Section 2.15(d) and all amounts
deposited therein from time to time or to be returned to the Lenders in
accordance with the provisions of Section 2.15(g)), whether or not such Lender
shall previously have participated therein, equal to such Lender's Exchange
Percentage thereof. The foregoing exchanges shall be accomplished automatically
pursuant to this Section 2.15(e) through purchases and sales of participations
in the various Tranches as required hereby, although at the request of the
Administrative Agent each Lender hereby agrees to enter into customary
participation agreements approved by the Administrative Agent to evidence same.
All purchases and sales of participating interests pursuant to this Section
2.15(e) shall be made in U.S. Dollars. At the request of the Administrative
Agent, each Lender that has sold participations in any of its Tranches and/or
Special Reserve Accounts as provided above (through the Administrative Agent)
will deliver to each Lender (through the Administrative Agent) that has so
purchased a participating interest therein a participation certificate in the
appropriate amount as determined in conjunction with the Administrative Agent.
It is understood that the amount of funds delivered by each Lender shall be
calculated on a net basis, giving effect to both the sales and purchases of
participations by the various Lenders as required above.
(f) In the event that after the occurrence of a Sharing
Event any drawing or payment shall be made in respect of a Letter of Credit or
Bank Guaranty or
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BA Equivalent Loan, the Administrative Agent shall, at the request of the
Appropriate Issuing Bank or Canadian Lender, withdraw from the Special Reserve
Account of each of the Lenders (in accordance with each Multi-Currency Lender's
and each Canadian Lender's Pro Rata Share) any amounts, up to the amount of such
drawing or payment, deposited in the respective Special Reserve Account and
remaining on deposit and deliver such amounts to such Appropriate Issuing Bank
or Canadian Lender, as the case may be, in satisfaction of the reimbursement
obligations of the various Lenders under Section 2.11 or 2.14, as the case may
be (but not of the applicable Borrower under this Agreement). In the event that
any Multi-Currency Lender or any Canadian Lender shall default on its obligation
to pay over any amount to the Administrative Agent in respect of any Letter of
Credit or Bankers' Acceptance or BA Equivalent Loans as provided in Section
2.15(d), the respective Appropriate Issuing Bank or Canadian Lender shall, in
the event of a drawing or payment thereunder, have a claim against such
Multi-Currency Lender or such Canadian Lender to the same extent as if such
Multi-Currency Lender or such Canadian Lender had defaulted on its obligations
under Section 2.11 or 2.14, as the case may be, but shall have no claim against
any other Multi-Currency Lender or Canadian Lender, notwithstanding the exchange
of interests in the applicable Borrower's reimbursement obligations pursuant to
Section 2.15(e). Each other Multi-Currency Lender and Canadian Lender shall have
a claim against such defaulting Multi-Currency Lender or each Canadian Lender
for any damages sustained by it as a result of such default.
(g) In the event that after the occurrence of a Sharing
Event any Letter of Credit or Bankers' Acceptance or BA Equivalent Loan shall
terminate or expire undrawn or unpaid upon, then, if and so long as the
Administrative Agent determines (in its reasonable discretion) that adequate
funds remain on deposit in the Special Reserve Accounts of the various
Multi-Currency Lenders and Canadian Lenders to fund (without giving effect to
the purchases of participation pursuant to Section 2.15(e)) all remaining
drawings or payments that could come due in respect of outstanding Letters of
Credit and/or Bankers' Acceptances or BA Equivalent Loans, the Administrative
Agent shall withdraw from the Special Reserve Account of each Multi-Currency
Lender and each Canadian Lender the amount remaining on deposit therein in
respect of such Letter of Credit or Bankers' Acceptance or BA Equivalent Loan
(or in any case, such lesser amount as the Administrative Agent reasonably
determines can be distributed without causing the amount on deposit from the
various Multi-Currency Lenders and Canadian Lenders to be less than the
remaining exposure on outstanding Letters of Credit and Bankers' Acceptances or
BA Equivalent Loans) and distribute such amount to such Multi-Currency Lender
and such Canadian Lender, provided that, if such amount is not denominated in
U.S. Dollars, the Administrative Agent shall distribute to each such Lender the
Equivalent Amount of such amount. All amounts received by any Multi-Currency
Lender or any Canadian Lender pursuant to this clause (g) shall, to the extent
it has sold participations therein in accordance with the requirements of
Section 2.15(e), be distributed by it to the various participants therein in
accordance with their participating interests.
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(h) Pending the withdrawal of any amounts from its
Special Reserve Account as contemplated above in this Section 2.15, the
Administrative Agent may, and shall, at the direction of the Required Lenders
and subject to such rules as the Administrative Agent may prescribe for the
avoidance of inconvenience, invest such amounts in Cash Equivalents.
(i) All determinations by the Administrative Agent
pursuant to this Section 2.15 shall be made by it in accordance with the
provisions herein and with the intent being to equitably share the credit risk
for all Tranches hereunder in accordance with the provisions hereof. Absent
manifest error, all determinations by the Administrative Agent hereunder shall
be binding on the Borrowers and each of the Lenders. The Administrative Agent
shall have no liability to any Borrower or Lender hereunder for any
determinations made by it hereunder except to the extent resulting from the
Administrative Agent's gross negligence or willful misconduct (as determined by
a court of competent jurisdiction in a final and non-appealable decision).
(j) Upon, and after, the occurrence of a Sharing Event
(i) no further Borrowings shall be made or occur, (ii) all amounts from time to
time accruing with respect to, and all amounts from time to time payable on
account of, Offshore Currency Loans (including, without limitation, any interest
and other amounts that were accrued but unpaid on the date of such Sharing
Event) shall be payable in U.S. Dollars (taking the Equivalent Amounts of all
such amounts on the date of the occurrence of the respective Sharing Event, with
all calculations for periods after the Sharing Event being made as if the
respective such Offshore Currency Loan had originally been made in U.S. Dollars)
and shall be distributed by the Administrative Agent for the account of the
Lenders which made such Offshore Currency Loans or are participating therein and
(iii) all Multi-Currency Commitments and Canadian Commitments of all the Lenders
shall be automatically terminated. Notwithstanding anything to the contrary
contained above, the failure of any Lender to purchase its participating
interests as required above in any extensions of credit upon the occurrence of a
Sharing Event shall not relieve any other Lender of its obligation hereunder to
purchase its participating interests in a timely manner, but no Lender shall be
responsible for the failure of any other Lender to purchase the participating
interest to be purchased by such other Lender on any date.
(k) If any amount required to be paid by any Lender
pursuant to this Section 2.15 is not paid to the Administrative Agent on the
date upon which the Sharing Event occurred, such Lender shall, in addition to
such aforementioned amount, also pay to the Administrative Agent on demand an
amount equal to the product of (i) the amount so required to be paid by such
Lender for the purchase of its participations, (ii) the daily average Federal
Funds Rate, during the period from and including the date of request for payment
to the date on which such payment is immediately available to the Administrative
Agent and (iii) a fraction the numerator of which is the number of days that
elapsed during such period and the denominator of which is three hundred sixty
(360). A certificate of the Administrative Agent submitted to any Lender with
respect to
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any amounts payable under this Section 2.15 shall be conclusive in the absence
of manifest error. Amounts payable by any Lender pursuant to this Section 2.15
shall be paid to the Administrative Agent for the account of the relevant
Lenders, provided that, if the Administrative Agent (in its sole discretion) has
elected to fund on behalf of such other Lender the amounts owing to such other
Lenders, then the amounts shall be paid to the Administrative Agent for its own
account.
(l) Whenever, at any time after the relevant Lenders have
received from any other Lenders purchases of participations pursuant to this
Section 2.15, the various Lenders receive any payment on account thereof, such
Lenders will distribute to the Administrative Agent, for the account of the
various Lenders participating therein, such Lenders' participating interests in
such amounts (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such participations were outstanding) in
like funds as received, provided, however, that in the event that such payment
received by any Lenders is required to be returned, the Lenders who received
previous distributions in respect of their participating interests therein will
return to the respective Lenders any portion thereof previously so distributed
to them in like funds as such payment is required to be returned by the
respective Lenders.
(m) Each Lender's obligation to purchase participating
interests pursuant to this Section 2.15 shall be absolute and unconditional and
shall not be affected by any circumstance including, without limitation, (i) any
setoff, counterclaim, recoupment, defense or other right which such Lender may
have against any other Lender, any Loan Party or any other Person for any reason
whatsoever, (ii) the occurrence or continuance of an Event of Default, (iii) any
adverse change in the condition (financial or otherwise) of any Loan Party or
any other Person, (iv) any breach of this Agreement by any Borrower, any Lender
or any other Person, or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(n) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, upon any purchase of participations as required
above, (i) each Lender which has purchased such participations shall be entitled
to receive from the relevant Borrower any increased costs and indemnities
(including, without limitation, pursuant to Sections 2.11, 2.12, 11.1 and 11.4)
directly from such Borrower to the same extent as if it were the direct Lender
as opposed to a participant therein, which increased costs shall be calculated
without regard to Section 10.7 or Section 11.5 and (ii) each Lender that has
sold such participations shall be entitled to receive from the relevant Borrower
indemnification from and against any and all taxes imposed as a result of the
sale of the participations pursuant to this Section 2.15. Each Borrower
acknowledges and agrees that, upon the occurrence of a Sharing Event and after
giving effect to the requirements of this Section 2.15, increased Taxes may be
owing by it pursuant to Section 11.4, which Taxes shall be paid (to the extent
provided in Section 11.4) by the respective Borrower or
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Borrowers, without any claim that the increased Taxes are not payable because
same resulted from the participations effected as otherwise required by this
Section 2.15.
Section 2.16 Termination of Agreement. Notwithstanding any other
provision contained herein to the contrary, in the event the Acquisition is not
consummated on or before April 30, 2004, this Agreement and all terms and
conditions herein (excluding the Borrowers' obligations pursuant to Section
2.7(e)) shall automatically terminate as of such date and thereafter the Lenders
shall no obligations hereunder. Notwithstanding the foregoing, the
indemnification obligations set forth in Section 9.6 and Section 10.4 of this
Agreement shall survive the termination of this Agreement.
ARTICLE 3.
CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent to Agreement Date. The Agreement shall
be effective, as of the Agreement Date, upon the satisfaction of the following
the conditions precedent:
(a) The Administrative Agent shall have received
satisfactory evidence that the Obligations under this Agreement and the Loan
Documents shall have a rating equivalent to at least "BB" (or the then
equivalent grade) by S&P or "Ba2" (or the then equivalent grade) by Xxxxx'x as
of the Agreement Date;
(b) The Administrative Agent shall be satisfied that no
default exists under any Material Contract or material Indebtedness of any Loan
Party (including the Existing Capital Market Transactions) and that the
Acquisition and the transactions contemplated herein shall not result in any
such default;
(c) The Administrative Agent shall have received (i)
audited Consolidated financial statements for AGCO and its Subsidiaries as at
December 31, 2002 and for the fiscal year then ended, meeting the requirements
of Regulation S-X for a Form S-1 registration statement under the Securities Act
of 1933, as amended and (ii) unaudited Consolidated financial statements (which
have been reviewed by the independent accountants for the Company as provided in
Statement on Accounting Standards No. 71) of AGCO and its Subsidiaries as at
June 30, 2003 and for the fiscal quarters ended after December 31, 2002
(together with a comparison to the unaudited Consolidated financial statements
of AGCO and its Subsidiaries for the first two fiscal quarters in the fiscal
year ended December 31, 2002), and all such financial statements shall be in
form and substance satisfactory to Administrative Agent;
(d) The Administrative Agent shall have completed a due
diligence investigation of Target and its Subsidiaries in such scope as may be
reasonably required by the Administrative Agent, and a due diligence
investigation of AGCO and its Subsidiaries in scope (to include, without
limitation, an investigation of (i) legal, regulatory, tax, labor,
environmental, insurance and pension matters and liabilities, actual
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or contingent and including product liability matters, (ii) material properties,
contracts, leases and debt agreements, and (iii) pending and threatened
litigation), and the results of each such investigation shall be reasonably
satisfactory to the Administrative Agent;
(e) The Administrative Agent shall have received detailed
projections for fiscal years 2003 through 2008, prepared by officers of AGCO,
in form and substance satisfactory to the Administrative Agent;
(f) There shall not have occurred any event, development
or circumstance since December 31, 2002 (except as otherwise indicated) that has
caused or could reasonably be expected to cause a material adverse condition or
material adverse change in or affecting (i) the condition (financial or
otherwise), results of operation, assets, liabilities, management, value or
prospects of AGCO, Target and their respective Subsidiaries, taken as a whole,
after giving effect to the Acquisition; (ii) the condition (financial or
otherwise), results of operation, assets, liabilities, management, value or
prospects of Target and its Subsidiaries, since June 30, 2003, (iii) the
Acquisition, (iv) the ability of the Borrowers to repay or to refinance the
credit to be extended under this Agreement, (v) the validity or enforceability
of any of the Loan Documents; or (vi) that calls into question in any material
respect the projections delivered to the Administrative Agent prior to the
Agreement Date or any material assumption on which such projections were
prepared;
(g) The Administrative Agent shall have received updated
appraisal valuations of the "Fendt" trademark property of AGCO and its
Subsidiaries prepared by appraisers satisfactory to Administrative Agent, in
form and substance satisfactory to Administrative Agent and prepared by
appraisers reasonably satisfactory to Administrative Agent;
(h) There shall exist no action, suit, investigation,
litigation or proceeding affecting AGCO, Target or any of their respective
Subsidiaries pending or threatened before any court, governmental agency or
arbitrator that could have a Material Adverse Effect on AGCO or any Loan Party
or purports to affect the legality, validity or enforceability of this
Agreement, any other Loan Document or any L/C Related Document;
(i) The Administrative Agent shall be satisfied with the
terms and conditions of the Acquisition and the corporate, tax, and ownership
structure of AGCO and its Subsidiaries, giving effect to the Acquisition on a
pro forma basis; and
(j) The Administrative Agent shall have received, on or
before the Agreement Date, the following, each dated such day (unless otherwise
specified), in form and substance satisfactory to the Administrative Agent
(unless otherwise specified):
(i) This Agreement, duly executed and delivered
by the Borrowers, the Lenders and the Agents;
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(ii) The Fee Letter, duly executed and delivered
by the Borrowers;
(iii) Certified copies of the resolutions of the
Board of Directors of each Borrower approving the execution and delivery of this
Agreement, and of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement;
(iv) A copy of the charter of each Borrower and
each amendment thereto, certified (as of a date reasonably near the Agreement
Date), if appropriate in the jurisdiction where such Subsidiary is organized, by
an appropriate governmental official as being a true and correct copy thereof;
(v) For AGCO, a copy of a certificate of the
Secretary of State of the State of Delaware, dated reasonably near the Agreement
Date, listing the charter of AGCO and each amendment thereto on file in his/her
office and certifying that (x) such amendments are the only amendments to AGCO's
charter on file in his/her office; (y) AGCO has paid all franchise taxes to the
date of such certificate; and (z) AGCO is duly incorporated and in good standing
or presently subsisting under the laws of the State of Delaware;
(vi) A certificate of each Borrower, 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
Agreement Date (the statements made in such certificate shall be true on and as
of the Agreement Date), certifying as to (x) the absence of any amendments to
the charter of such Person since the date of the certificate referred to in
clause (iv) above, as applicable; (y) a true and correct copy of the bylaws of
such Borrower as in effect on the Agreement Date; and (z) the due incorporation
and good standing of such Borrower 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;
(vii) A certificate of the Secretary or an
Assistant Secretary or other appropriate officer of each Borrower certifying the
names and true signatures of the officers of such Borrower authorized to sign
this Agreement or the other Loan Documents to which it is or is to be a party
and the other documents to be delivered hereunder and thereunder;
(viii) Such financial, business and other
information regarding each Loan Party and Target 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, 2002, of AGCO and its
Restricted Subsidiaries and AGCO and its Subsidiaries, respectively;
86
(ix) A letter, in form and substance satisfactory
to the Administrative Agent, from AGCO to KPMG, its independent certified public
accountants, advising such accountants that the Administrative Agent 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 the Administrative Agent 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 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) Schedule C-1, Schedule G-1, Schedule P-1,
Schedule P-2, Schedule 4.1(b), Schedule 4.1(e), Schedule 4.1(i), Schedule
4.1(l), Schedule 4.1(n), Schedule 4.1(o), Schedule 4.1(p), Schedule 4.1(s),
Schedule 4.1(t), Schedule 4.1(u), Schedule 4.1(v) and Schedule 5.19 to this
Agreement; and
(xi) Such other approvals, opinions or documents
as any Lender may reasonably request.
Section 3.2 Conditions Precedent to Initial Funding Date. The
obligation of each Lender to make a Loan on the Initial Funding Date and the
obligation of any Issuing Bank to issue the initial Letters of Credit, or the
obligation of any Canadian Lender to issue the initial Bankers' Acceptances is
subject to the following conditions precedent:
(a) The Lenders shall be satisfied that, in connection
with the initial Borrowing hereunder, simultaneously with such initial
Borrowing, all amounts owing under the Existing Credit Agreement shall have been
paid in full and all commitments to lend thereunder shall be terminated;
(b) The Administrative Agent shall be satisfied that no
default exists under any Material Contract or material Indebtedness of any Loan
Party (including the Existing Capital Market Transactions) and that the
Acquisition and the transactions contemplated herein shall not result in any
such default;
(c) There shall not have occurred any event, development
or circumstance since the Agreement Date (except as otherwise indicated) that
has caused or could reasonably be expected to cause a material adverse condition
or material adverse change in or affecting (i) the condition (financial or
otherwise), results of operation, assets, liabilities, management, value or
prospects of AGCO, Target and their respective Subsidiaries, taken as a whole,
after giving effect to the Acquisition; (ii) the condition (financial or
otherwise), results of operation, assets, liabilities, management, value or
prospects of Target and its Subsidiaries, since June 30, 2003, (iii) the
Acquisition, (iv) the ability of the Borrowers to repay or to refinance the
credit to be extended under this Agreement, (v) the validity or enforceability
of any of the Loan Documents; (vi) the
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validity, enforceability, perfection or priority of the Liens granted under the
Security Documents, or (vii) that calls into question in any material respect
the projections delivered to the Administrative Agent prior to the Agreement
Date or any material assumption on which such projections were prepared;
(d) There shall exist no action, suit, investigation,
litigation or proceeding affecting AGCO, Target or any of their respective
Subsidiaries pending or threatened before any court, governmental agency or
arbitrator that could have a Material Adverse Effect on the Acquisition or the
validity, enforceability, perfection or priority of the security interests
intended to be created by any Security Document;
(e) All governmental and third party approvals necessary
or, in the discretion of the Administrative Agent, advisable in connection with
the Acquisition, the transactions contemplated by this Agreement, and the
continuing operations of AGCO and its Subsidiaries shall have been received and
be in full force and effect (including any consents required by the providers of
the US Securitization), and all applicable waiting periods shall have expired
without any action being taken or threatened by an competent authority that
would restrain, prevent or otherwise impose adverse conditions on the
Acquisition, the transactions contemplated by this Agreement or the Loan
Documents or the continuing operations of AGCO, Target and their respective
Subsidiaries;
(f) The Administrative Agent shall have received (i)
audited Consolidated financial statements for Target and its Subsidiaries as at
December 31, 2002 and for the fiscal year then ended, meeting the requirements
of Regulation S-X for a Form S-1 registration statement under the Securities Act
of 1933, as amended and (ii) unaudited Consolidated financial statements for
Target and its Subsidiaries as at December 31, 2002 and for the fiscal year then
ended, and (iii) unaudited Consolidated financial statements of Target and its
Subsidiaries as at June 30, 2003, and for the fiscal quarters ended after
December 31, 2002 (together with a comparison to the unaudited Consolidated
financial statements of Target and its Subsidiaries for the first two fiscal
quarters in the fiscal year ended December 31, 2002), and all such financial
statements shall be in form and substance satisfactory to Administrative Agent;
(g) The Administrative Agent shall have received
unaudited Consolidated financial statements for AGCO and its Subsidiaries as at
the last day of the quarter immediately preceding the Acquisition, and for the
four (4) fiscal quarter period then ended (together with a comparison to the
unaudited Consolidated financial statements of AGCO and its Subsidiaries for the
four (4) fiscal quarter period immediately preceding the twelve month period
ended as of the last day of the month immediately preceding the Acquisition),
and such financial statements shall be in form and substance satisfactory to the
Administrative Agent;
(h) The Administrative Agent shall have received
unaudited Consolidated financial statements for Target and its Subsidiaries as
at the last day of the quarter immediately preceding the Acquisition, and for
the four (4) fiscal quarter period
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then ended (together with a comparison to the unaudited Consolidated financial
statements of Target and its Subsidiaries for the four (4) fiscal quarter period
immediately preceding the four (4) fiscal quarter period ended as of the last
day of the quarter immediately preceding the Acquisition), and such financial
statements shall be in form and substance satisfactory to the Administrative
Agent;
(i) The Administrative Agent shall have received (i) pro
forma financial statements for AGCO and its Subsidiaries as at the last day of
the quarter immediately preceding the Acquisition and for the four (4) fiscal
quarter period then ended, and such pro forma financial statements shall be in
form and substance satisfactory to Administrative Agent;
(j) The Administrative Agent shall have received the
results of a recent lien search in each relevant jurisdiction with respect to
AGCO and its Subsidiaries (including Target), and such search shall reveal no
Liens on any of the assets of AGCO or any of its Subsidiaries except for
Permitted Liens or Liens to be discharged on or prior to the Initial Funding
Date pursuant to documentation reasonably satisfactory to the Administrative
Agent;
(k) The Administrative Agent shall have received copies
of the duly executed Applicable Capital Market Transaction Documents, in form
and substance reasonably satisfactory to the Administrative Agent;
(l) The Administrative Agent shall have received evidence
that the New Capital Market Transactions necessary for the consummation of the
Acquisition shall have been consummated and the Administrative Agent shall have
received evidence that AGCO has received the Net Cash Proceeds of such
transactions;
(m) The Administrative Agent shall have received evidence
that, upon the making of the initial Loans hereunder, all of the conditions
precedent for the consummation of the Acquisition shall have been satisfied and
that the Acquisition shall be consummated and AGCO and its Subsidiaries shall
have completed their corporate reorganization pursuant to the organizational
charts provided to the Administrative Agent prior to the Initial Funding Date
(other than the formation of Fendt Immobilien KG);
(n) Administrative Agent shall have received a duly
executed Borrowing Base Certificate, dated as of the last day of the month
preceding the Initial Funding Date;
(o) The Administrative Agent shall have received copies
of phase-I environmental reports and a real estate survey, to the extent such
reports and surveys exist as of the Initial Funding Date, with respect to each
parcel of Real Property owned by AGCO, Target and their respective Subsidiaries
in the United States, Canada or Finland, including copies of any such
environmental reports received by AGCO in connection with the Acquisition or any
prior acquisitions by AGCO; the environmental
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consultants and surveyors retained for such reports or surveys, the scope of the
reports or surveys, and the results thereof shall be reasonably acceptable to
the Administrative Agent;
(p) The Administrative Agent shall be satisfied that (i)
Acquisition shall have been consummated in compliance with Applicable Law and
agreements applicable thereto and pursuant to the terms and conditions approved
by the Administrative Agent prior to the Agreement Date, and no provision
thereof shall have been waived, amended, supplemented or otherwise modified
without the consent of the Administrative Agent, which consent shall not be
unreasonably withheld (provided that any amendment shall not require the consent
of the Administrative Agent to the extent that such amendment extends the date
for closing under the Asset Purchase Agreement), and (ii) the proceeds from the
initial Loans under this Agreement, together with the Net Cash Proceeds received
by AGCO and its Subsidiaries from the New Capital Market Transaction shall be
sufficient to fund the required consideration with respect to the Acquisition,
to repay the obligations under the Existing Credit Agreement, and to pay all
costs, expenses and other liabilities of AGCO and its Subsidiaries with respect
to the foregoing and this Agreement;
(q) The Administrative Agent shall have received on or
before the Initial Funding Date the following, each dated such day (unless
otherwise specified), in form and substance satisfactory to the Administrative
Agent (unless otherwise specified), unless in the case of non-material
certificates and other documents required to be delivered pursuant to any of
clauses (iv), (v), (viii) or (xiv) below, the Administrative Agent shall have
agreed, in its sole discretion, to allow the delivery of such items after the
Initial Funding Date pursuant to the Post-Closing Letter:
(i) Certified copies of the resolutions of the
Board of Directors of each Borrower and each other Loan Party approving the
Acquisition, 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 each Loan
Document and each L/C Related Document;
(ii) A copy of the charter of each Loan Party
(other than the Borrowers) and each amendment thereto, certified (as of a date
reasonably near the Initial Funding Date), if appropriate in the jurisdiction
where such Subsidiary is organized, by an appropriate governmental official as
being a true and correct copy thereof;
(iii) 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 Initial
Funding Date, listing the charter of such Person and each amendment thereto on
file in his office and certifying that (x) such amendments are the only
amendments to such Person's charter on file in his office; (y) such Person has
paid all franchise taxes to the date of such certificate; and (z) such
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Person is duly incorporated and in good standing or presently subsisting under
the laws of the jurisdiction of organization;
(iv) 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 Initial Funding Date (the statements made in such
certificate shall be true on and as of the Initial Funding Date), certifying as
to (w) the absence of any amendments to the charter of such Person since the
date of the certificate referred to in Section 3.1(j)(vi), with respect to the
Borrowers, clause (iv) above, with respect to all other Loan Parties; (x), with
respect to the Loan Parties other than the Borrowers, a true and correct copy of
the bylaws of such Loan Party as in effect on the Initial Funding Date; (y) with
respect to the Borrowers, the absence of any amendments to the bylaws of such
Borrower since the date of the certificate delivered pursuant to Section
3.1(j)(vi), and (z) 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;
(v) A certificate of the Secretary or an
Assistant Secretary or other appropriate officer of each other Loan Party (other
than the Borrowers) certifying the names and true signatures of the officers of
such Person authorized to sign this Agreement and each other Loan Document to
which it is or is to be a party and the other documents to be delivered
hereunder and thereunder;
(vi) Each of the Security Documents duly executed
by each Person party thereto (other than the Pledge Agreement from AGCO France
S.A. pledging the shares of Valtra Tracteurs France SAS, which will be delivered
immediately after the initial Borrowing on the Initial Funding Date), together
with original certificates and powers for any Stock pledged thereunder and all
other perfection documents needed to duly perfect all Liens granted thereunder
(including, where relevant, Uniform Commercial Code financing statements), and
evidence that the Liens granted under the Security Documents will, as of the
filing of such perfection documents, constitute first priority perfected Liens
(subject to Permitted Liens) on the Collateral;
(vii) Each of the Guaranty Agreements duly
executed by each Person specified on Schedule G-1 (other than the Guaranty
Agreement from Valtra Tracteurs France SAS which will be delivered immediately
after the initial Borrowing on the Initial Funding Date), each such Guaranty
Agreement to be in form and substance satisfactory to the Administrative Agent,
and guaranteeing the obligations specified in such Schedule;
(viii) An updated Schedule 4.1(b), Schedule 4.1(o),
Schedule 4.1(p), Schedule 4.1(s) and Schedule 4.1(t) after giving effect to the
consummation of the Acquisition;
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(ix) Each of the Schedules to this Agreement not
otherwise delivered to the Administrative Agent on or prior to the Agreement
Date;
(x) Each of the Real Property Documents
requested by the Administrative Agent for the Real Property Collateral owned by
a U.S. Loan Party and listed on Schedule 5.19, in form and substance
satisfactory to the Administrative Agent;
(xi) A favorable opinion of (A) Xxxxxxxx Xxxxxxx
LLP, counsel to the Loan Parties, (B) general counsel of AGCO, (C) counsel to
AGCO in connection with the Acquisition, (D) Brazilian counsel to the Loan
Parties, (E) Canadian counsel to the Loan Parties, (F) Dutch counsel to the Loan
Parties, (G) Finnish counsel to the Loan Parties, (H) French Counsel to the Loan
Parties, (I) German counsel to the Loan Parties, and (J) United Kingdom counsel
to the Loan Parties;
(xii) A notice executed by AGCO addressed to each
of the Existing 2006 Note Trustee, the Existing 2008 Note Trustee and the
Convertible Note Trustee stating that this Agreement and the Loan Documents are
the "Bank Credit Agreement" under the Existing 2006 Note Documents, the Existing
2008 Note Documents and the Convertible Note Documents, respectively;
(xiii) A duly executed Securitization Intercreditor
Agreement; and
(xiv) Such other approvals, opinions or documents
(including, without limitation, the executed Contribution Agreement) as the
Administrative Agent may reasonably request.
(r) AGCO shall have paid all fees and expenses of the
Agents and Lenders that are due and payable on the Initial Funding Date.
Section 3.3 Conditions Precedent to Each Borrowing and Issuance.
The obligation of each Lender to make a Loan (including the initial Loan 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
Appropriate Issuing Bank hereunder other than as permitted by Section 4.2;
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(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 or Event of
Default; and
(c) such Borrowing is permitted under Section 2.1(a), if
such Borrowing is a Multi-Currency Borrowing, or Section 2.1(b), if such
Borrowing is a Canadian Borrowing.
Section 3.4 Determinations Under Section 3.1 and Section 3.2. For
purposes of determining compliance with the conditions specified in Section 3.1
and Section 3.2, each Lender shall be 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 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Borrowers. In
order to induce the Agents, the Lenders and the Issuing Banks to enter into this
Agreement and to extend credit to each Borrower, each Borrower hereby agrees,
represents, and warrants as follows:
(a) Organization; Power. (i) AGCO (x) is a corporation
duly organized, validly existing and in good standing (if applicable) under the
laws of the jurisdiction of its organization, (y) is duly qualified and in good
standing (if applicable) 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
(z) has all requisite power and authority and has all material licenses,
authorizations, consents and approvals necessary to own or lease and operate its
properties, to conduct its business as now being conducted and as proposed to be
conducted and to enter into and carry out the terms of the Loan Documents to
which it is a party; and (ii) each Restricted Subsidiary (other than a Dormant
Subsidiary) of AGCO, (x) is a corporation, partnership or other legal entity
duly organized or formed, validly existing and in good standing (if applicable)
under the laws of the jurisdiction of its organization, (y) is duly qualified
and in good standing (if applicable) 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 (z) has all requisite power and authority and has all licenses,
authorizations, consents and approvals necessary to own or lease and operate its
properties, to conduct its business as
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now being conducted and as proposed to be conducted and to enter into and carry
out the terms of the Loan Documents to which it is a party other than such
licenses, authorizations, consents and approvals, the failure of which would not
reasonably be expected to have a Material Adverse Effect.
(b) Subsidiaries. Set forth on Part I of Schedule 4.1(b)
is a complete and accurate list of all Subsidiaries of AGCO, as of the Agreement
Date (or, upon delivery of the updated Schedule pursuant to Section
3.2(q)(viii), the Initial Funding Date) showing (as to each such Subsidiary) the
jurisdiction of its incorporation or formation, the number of shares of each
class of Stock authorized, and the number outstanding, on the Initial Funding
Date 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 Initial Funding Date and whether it is a Restricted Subsidiary or
a Dormant Subsidiary. Set forth on Part II of Schedule 4.1(b) is a complete and
accurate list of each Material Subsidiary as of the Initial Funding Date. All of
the outstanding 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 under the Security Documents.
(c) Joint Ventures. Set forth on Schedule 4.1(c) is a
complete and accurate list of all joint ventures of AGCO and/or any of its
Subsidiaries and any third Person as of the Initial Funding Date showing (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 Stock
or other equity interests of such joint venture owned on the Initial Funding
Date by AGCO or any of its Subsidiaries and any outstanding options, warrants,
rights of conversion or purchase and similar rights on the Initial Funding Date
with respect thereto.
(d) Authorization; No Conflict. The execution, delivery
and performance by each Loan Party of this Agreement each other Loan Document
and each L/C Related Document to which it is or is to be a party and the other
transactions contemplated hereby, are within such Loan Party's corporate or
other similar powers, have been duly authorized by all necessary corporate or
other similar action, and do not (i) contravene such Loan Party'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 Loan Party,
any of its Subsidiaries or any of their properties (including the Material
Contracts and 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 Loan Party or any of its Subsidiaries.
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No Loan Party or any of its Subsidiaries is in violation of any such Applicable
Law or in breach of any such contract, loan agreement, indenture, mortgage, deed
of trust, lease or other instrument, the violation or breach of which could have
a Material Adverse Effect.
(e) No Authorizations Needed. Giving effect to the
execution and delivery of the Security Documents and the making of the initial
Loans hereunder, 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, 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 hereunder; or (ii) (A) the grant by any Loan
Party of the Liens granted by it on the Initial Funding Date pursuant to the
Security Documents; (B) the perfection or maintenance of the Liens created by
the Security Documents (including the first-priority nature thereof, subject to
any Permitted Liens); or (C) the exercise by any Agent of its rights under the
Loan Documents or the remedies in respect of the Collateral pursuant to the
Security Documents, except for the authorizations, approvals, actions, notices
and filings listed on Schedule 4.1(e), all of which have been duly obtained,
taken, given or made as of the Initial Funding Date and are in full force and
effect, and the filing or registration of the Security Documents and related
financing statements or other notification filings necessary to perfect any Lien
created thereby.
(f) Enforceability. This Agreement, 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 thereto. This
Agreement, 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 thereto, enforceable against such Loan Party in accordance with
its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws and principles of equity.
(g) Financial Statements. (i) The Consolidated balance
sheets of AGCO and its Restricted Subsidiaries and of AGCO and its Subsidiaries,
respectively, as at December 31, 2002 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 KPMG, 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 its Subsidiaries,
respectively, for the period ended on such date, all in accordance with GAAP
applied on a consistent basis, and since December 31, 2002, nothing has occurred
that has resulted in a Material Adverse Effect.
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(ii) All pro forma Consolidated balance sheets,
statements of income and cash flows of AGCO and its Restricted Subsidiaries and
of AGCO and its Subsidiaries, respectively, as at December 31, 2002 after giving
effect to the Acquisition, copies of which have been furnished to each Lender,
have been prepared in good faith based upon reasonable assumptions and in
accordance with GAAP applied on a consistent basis.
(h) Projections; Other Information. The five (5) year
projected Consolidated balance sheets and income statements of AGCO and its
Restricted Subsidiaries delivered to the Administrative Agent pursuant to
Section 3.1(e) were prepared in good faith on the basis of the assumptions
stated therein, which assumptions were fair in the light of conditions existing
at the time of delivery of such projected financial statements, and represented,
at the time of delivery, AGCO's reasonable estimate of its future financial
performance. 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 any transaction contemplated herein or therein 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.
(i) Litigation. 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, involving an amount in controversy in excess of U.S.
$5,000,000, except for (i) matters in which AGCO or its Subsidiary is the
plaintiff, (ii) matters disclosed on Schedule 4.1(i) hereto, and (iii) matters
arising after the Agreement Date that could not reasonably be expected to have a
Material Adverse Effect. No such matter disclosed on Schedule 4.1(i) purports to
affect the legality, validity or enforceability of this Agreement, any other
Loan Document or any L/C Related Document or the consummation of the
transactions contemplated thereby or hereby, or is reasonably likely to have a
Material Adverse Effect.
(j) Use of Proceeds. 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 would
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 under such regulations.
(k) Senior Indebtedness. All Borrowings under this
Agreement will be "Senior Indebtedness," under and as defined in the Existing
2006 Note Indenture and the
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Convertible Note Indenture and, as applicable, "Senior Indebtedness" or the
equivalent under the Bridge Facility Documents. Upon the making of the initial
Loans hereunder and the delivery of the notice specified in Section 3.2(q)(xii)
hereof, this Agreement and all Loan Documents shall be (i) the "Bank Credit
Agreement," as defined in the Existing 2006 Note Indenture, the Existing 2008
Note Indenture, the Convertible Note Indenture and, as applicable, the Bridge
Facility Documents, and (ii) a "Designated Credit Facility", as defined in the
New Senior Subordinated Note Documents.
(l) ERISA Matters. 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. 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, except as set forth on Schedule 4.1(l),
since the date of such Schedule B there has been no material adverse change in
such funding status. 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 would reasonably be expected to have a Material Adverse
Effect. 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 would reasonably be expected to have a
Material Adverse Effect. With respect to each scheme or arrangement mandated by
a government other than the United States providing for post-employment benefits
(a "Foreign Government Scheme or Arrangement") and with respect to each employee
benefit plan maintained or contributed to by any Loan Party or any Subsidiary of
any Loan Party that is not subject to United States law providing for
post-employment benefits (a "Foreign Plan"): (i) All material employer and
employee contributions required by law or by the terms of any Foreign Government
Scheme or Arrangement or any Foreign Plan have been made, or, if applicable,
accrued, in accordance with normal accounting practices; (ii) The fair market
value of the assets of each funded Foreign Plan, the liability of each insurer
for any Foreign Plan funded through insurance or the book reserve established
for any Foreign Plan, together with any accrued contributions, is sufficient to
procure or provide for the accrued benefit obligations, as of the Agreement
Date, with respect to all current and former participants in such Foreign Plan
according to the actuarial assumptions and valuations most recently used to
account for such obligations, in accordance with applicable generally accepted
accounting principles, and the liability of each Loan Party and each Subsidiary
of a Loan Party with respect to a Foreign Plan is reflected in accordance with
normal accounting practices on the financial statements of such Loan Party or
such Subsidiary, as the case may be; and (iii) Each Foreign Plan required to be
registered has been registered and has
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been maintained in good standing with applicable regulatory authorities unless,
in each case, the failure to do so would not be reasonably likely to have a
Material Adverse Effect.
(m) Casualties; Taking of Properties. Since December 31,
2002, neither the business nor the properties of AGCO or its Restricted
Subsidiaries, taken as a whole, has been materially and adversely affected as a
result of any fire, explosion, earthquake, windstorm, accident, strike or other
labor disturbance, embargo, requisition or taking of property or cancellation of
contracts, permits or concessions by any domestic or foreign government or any
agency thereof, riot, activities of armed forces, or acts of God or of any
public enemy.
(n) Environmental Matters. Except as set forth on
Schedule 4.1(n) hereto (i) each of AGCO and its Subsidiaries is in compliance
with all applicable Environmental Laws, the failure to comply with which could
have a Material Adverse Effect; (ii) each of AGCO and its Subsidiaries has
obtained and currently maintains all Environmental Permits necessary for the
operation of its business, all such Environmental Permits are in good standing
and AGCO and its Subsidiaries are in compliance with all such Environmental
Permits, except where the failure to so obtain, maintain or comply could not
have a Material Adverse Effect; (iii) neither AGCO nor its Subsidiaries are
subject to any Environmental Actions, and, to the knowledge of AGCO, no
Environmental Action has been threatened, in either case, which would be
reasonably expected to have a Material Adverse Effect or be required to be
disclosed on Schedule 4.1(i); (iv) to the best knowledge of AGCO after diligent
investigation, there has been no release, spill, emission, leaking, pumping,
injection, deposit, application, disposal, discharge, dispersal, leaking or
migration into the environment, including the movement of any Hazardous Material
in or through the environment, of any Hazardous Material at, in, on, under,
affecting or migrating to or from any Real Property, which could have a Material
Adverse Effect; (v) neither AGCO nor its Subsidiaries have caused or permitted
any Hazardous Material to be disposed of on or under any Real Property in
violation of any Environmental Law, the violation of which could have a Material
Adverse Effect; (vi) neither AGCO nor its Subsidiaries have transported or
arranged for the transportation of any Hazardous Materials to any location that
is listed or, to the knowledge of the Loan Parties, proposed for listing on the
National Priorities List under CERCLA ("NPL") or listed on the Comprehensive
Environmental Response, Compensation and Liability Information System
("CERCLIS") maintained by the Environmental Protection Agency or any analogous
state list, except to the extent such transportation would not reasonably be
expected to have a Material Adverse Effect; (vii) to the best knowledge of AGCO
and its Subsidiaries after diligent investigation, none of the Real Properties
presently require or previously required interim status or a hazardous waste
permit for the treatment, storage or disposal of hazardous waste pursuant to
CERCLA, or any analogous Environmental Law, except where the failure to obtain
such status or permit could not have a Material Adverse Effect, and no real
properties have been placed or proposed to be placed on the NPL or its state
equivalents or placed on CERCLIS or its state
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equivalents; and (viii) no asbestos-containing material, polychlorinated
biphenyls, or underground storage tanks are present on or under any Real
Property in a manner or condition that could result in a Material Adverse
Effect.
(o) Taxes. 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 federal, provincial or 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 and governmental remittance
returns required to be filed and has paid all taxes and other amounts 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 or right of demand has arisen or attached to its property and become
enforceable against its other creditors. Set forth on Schedule 4.1(o) hereto is
a complete and accurate list, as of the Agreement Date (or, upon delivery of the
updated Schedule pursuant to Section 3.2(q)(viii), the Initial Funding Date), 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.
There are no adjustments as of the Agreement Date to the federal income tax
liability of AGCO proposed by the Internal Revenue Service with respect to any
such year. Except as set forth on Schedule 4.1(o), the aggregate unpaid amount,
as of the Agreement Date, of adjustments to the state, provincial, local and
foreign tax liability of AGCO and its Subsidiaries proposed by all state,
provincial, local and foreign taxing authorities (other than amounts arising
from adjustments to Federal income tax returns) does not exceed U.S. $5,000,000.
No issues have been raised by any taxing authority that, in the aggregate, would
be reasonably likely to have a Material Adverse Effect.
(p) Security Interests; Title to Properties. On or after
the Initial Funding Date, the Security Documents shall create a valid and
perfected first priority security interest in the Collateral, subject to
Permitted Liens, securing the payment of all obligations purported to be secured
thereby. The Loan Parties are the legal and beneficial owners of the Collateral
free and clear of any Lien, except for Permitted Liens. As of the Agreement Date
(or, upon delivery of the updated Schedule pursuant to Section 3.2(q)(viii), the
Initial Funding Date), all Permitted Liens of record of AGCO, any Restricted
Subsidiary or Target (to the extent such Liens will remain in effect after the
Acquisition) are set forth on Schedule 4.1(p) attached hereto.
(q) Solvency. Each Borrower is, and will be after giving
effect to the transactions contemplated hereby, individually and together with
its Subsidiaries, Solvent.
(r) Investment Company. Neither AGCO nor any of its
Subsidiaries is an "investment company," or an "affiliated person" of, or
"promoter" or "principal
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underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended. Neither the making of any Loans, nor
the issuance of any Letters of Credit, nor the application of the proceeds or
repayment thereof by any 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.
(s) Material Contracts. Set forth on Schedule 4.1(s)
hereto is a complete and accurate list of all Material Contracts of each Loan
Party as of the Agreement Date (or, upon delivery of the updated Schedule
pursuant to Section 3.2(q)(viii), the Initial Funding Date), showing the
parties, subject matter and term thereof and listing all amendments thereto.
Each such Material Contract has been duly authorized, executed and delivered by
all parties thereto, has not been amended or otherwise modified since the
Agreement Date, except to the extent permitted hereby, is in full force and
effect and is binding upon and enforceable against all parties thereto in
accordance with its terms (subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally), and there exists no default under any Material Contract by any party
thereto.
(t) Intellectual Property. Set forth on Schedule 4.1(t)
hereto is a complete and accurate list of all patents, trademarks, trade names,
service marks and copyrights of AGCO and its Restricted Subsidiaries registered
with any Governmental Authority as of the Agreement Date (or, upon delivery of
the updated Schedule pursuant to Section 3.2(q)(viii), the Initial Funding
Date), showing the jurisdiction in which registered, the applicable registrant,
the registration number, the date of registration and the expiration date.
(u) Existing Indebtedness. Set forth on Schedule 4.1(u)
hereto is a complete and accurate list of all Indebtedness of AGCO and its
Subsidiaries outstanding as of September 30, 2003, showing the approximate
principal amount outstanding thereunder as of such date. Except as otherwise
disclosed in this Section 4.1, AGCO and its Restricted Subsidiaries have no
other liabilities that would result in a Material Adverse Effect.
(v) Employee Relations. AGCO and its Subsidiaries have a
stable work force in place and is not, as of the Agreement Date, except as set
forth on Schedule 4.1(v), party to any collective bargaining agreement nor has
any labor union been recognized as the representative of AGCO or any of its
Restricted Subsidiaries' employees, and the Borrowers know of no pending,
threatened or contemplated strikes, work stoppage or other labor disputes
involving AGCO or any of its Restricted Subsidiaries' employees except where
such strike, work stoppage or other labor dispute does not or would not
reasonably be likely to have a Material Adverse Effect.
(w) Anti-Terrorism Laws. None of Borrowers nor any
Affiliate of any Borrower knows, or reasonably should know of, any violation of
any Anti-Terrorism Law
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or knowingly engages in or conspires to engage in any transaction that evades or
avoids, or has the purpose of evading or avoiding, or attempts to violate, any
of the prohibitions set forth in any Anti-Terrorism Law.
(x) Blocked Persons. To Borrowers' knowledge, none of
Borrowers nor any Affiliate of any Borrower is any of the following (each a
"Blocked Person"):
(i) a Person that is listed in the annex to, or
is otherwise subject to the provisions of, Executive Order No. 13224;
(ii) a Person owned or controlled by, or acting
for or on behalf of, any Person that is listed in the annex to, or is otherwise
subject to the provisions of, Executive Order No. 13224;
(iii) a Person or entity with which any bank or
other financial institution is prohibited from dealing or otherwise engaging in
any transaction by any Anti-Terrorism Law;
(iv) a Person or entity that commits, threatens
or conspires to commit or supports "terrorism" as defined in Executive Order No.
13224;
(v) a Person or entity that is named as a
"specially designated national" or other blocked person on the most current list
maintained by OFAC and published or made available in the Federal Register or
published by OFAC at its official website or any replacement website or other
replacement official publication of such list; or
(vi) a Person or entity who is affiliated with a
Person or entity listed above.
Neither any Borrower nor any Affiliate of any Borrower (i) knowingly conducts
any business or engages in making or receiving any contribution of funds, goods
or services to or for the benefit of any Blocked Person or (ii) knowingly deals
in, or otherwise engages in any transaction relating to, any property or
interests in property blocked pursuant to Executive Order No. 13224 or other
applicable Anti-Terrorism Law.
(y) Use of Loans. The Loans are intended solely for the
purposes set forth in Section 5.17 and the Loans are not intended specifically
to enable any transaction that, if conducted by a United States entity, would
violate any rules or regulations promulgated by OFAC or other United States
economic or trade sanctions restrictions.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement shall be deemed to be
made, and shall be true and correct, at and as of the Agreement Date (unless
otherwise specified), the Initial Funding Date, and the date of each Loan which
will increase the
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principal amount of the Obligations outstanding, or upon the issuance of a
Letter of Credit hereunder, except (a) to the extent previously fulfilled in
accordance with the terms hereof, (b) to the extent subsequently inapplicable,
(c) to the extent such representation or warranty is limited to a specified
date, and (d) as a result of changes permitted by the terms of this Agreement.
All representations and warranties made under this Agreement shall survive, and
not be waived by, the execution hereof by the Lenders, the Agents and the
Issuing Banks, any investigation or inquiry by any Lender, Issuing Bank or the
Agents, or the making of any Loan or the issuance of any Letter of Credit under
this Agreement.
ARTICLE 5.
AFFIRMATIVE COVENANTS
AGCO covenants and agrees that, so long as any Loan shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder:
Section 5.1 Compliance with Laws, Etc. Except as provided in
Section 5.4 hereof, AGCO shall comply, and shall cause each of its Subsidiaries
to comply with all Applicable Laws, such compliance to include, without
limitation, to the extent applicable, 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 except where the failure to so comply
would not reasonably be expected to have a Material Adverse Effect.
Section 5.2 Preservation of Existence, Etc. Except as otherwise
permitted by this Agreement, AGCO shall preserve and maintain, and cause each of
its Restricted Subsidiaries to (a) qualify and remain qualified and authorized
to do business in each jurisdiction in which the character of their respective
properties or the nature of their respective business requires such
qualification or authorization except where such failure to so qualify and/or
remain qualified does not or would not reasonably be likely to have a Material
Adverse Effect, and (b) preserve and maintain, its existence, rights (charter
and statutory), privileges and franchises, except with respect to Restricted
Subsidiaries that are not Loan Parties to the extent that the failure to
maintain such existence, rights, privileges and franchises does not or would not
reasonably be likely to have a Material Adverse Effect; provided that neither
AGCO nor any of its Restricted Subsidiaries shall be required to preserve any
right or franchise if the Board of Directors of AGCO or such Restricted
Subsidiary shall determine 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 AGCO, such Restricted Subsidiary or the Lenders. AGCO
shall at all times remain qualified as a foreign corporation entitled to do
business in the State of New York.
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Section 5.3 Payment of Taxes and Claims. AGCO shall, and shall
cause each Subsidiary to, pay and discharge all material federal, foreign, state
and local taxes, assessments, and governmental charges or levies imposed upon
any of them or their respective incomes or profits or upon any properties
belonging to any of them prior to the date on which penalties attach thereto,
and all lawful claims for labor, materials and supplies which have become due
and payable and which by law have or may become a Lien upon any of their
respective property; except that, no such tax, assessment, charge, levy, or
claim need be paid which is being contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set aside on the
appropriate books, but only so long as such tax, assessment, charge, levy, or
claim does not become a Lien or charge other than a Permitted Lien and no
foreclosure, distraint, sale, or similar proceedings shall have been commenced
and remain unstayed for a period thirty (30) days after such commencement. Each
Borrower shall timely file all information returns required by federal, state,
provincial or local tax authorities.
Section 5.4 Compliance with Environmental Laws. AGCO shall
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 material 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, except in each case where the failure to take such action
would not result in a Material Adverse Effect.
Section 5.5 Maintenance of Insurance. AGCO shall 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, including, without limitation, physical
damage insurance on all real and personal property, comprehensive general
liability insurance, and business interruption insurance; provided, however,
that such insurance may be subject to (A) self-insurance by AGCO and its
Subsidiaries that so long as such self insurance 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. All policies of insurance required to be maintained under this
Agreement shall be in form and with insurers recognized as adequate by
Administrative Agent and all such policies shall be in such amounts as may be
reasonably satisfactory to the Administrative Agent and shall, by an endorsement
or independent instrument furnished to Agent provide that the insurance
companies will give the Administrative Agent at least thirty (30) days prior
written notice (ten (10) days, in the case of non-payment of premium) before any
such policy or policies
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of insurance shall be altered or canceled. AGCO shall deliver to the
Administrative Agent a certificate of insurance that evidences the existence of
each policy of insurance, payment of all premiums therefor and compliance with
all provisions of this Agreement and, upon request of the Administrative Agent,
AGCO shall deliver to the Administrative Agent a copy of each such policy. All
policies of property insurance shall contain an endorsement, in form and
substance satisfactory to the Administrative Agent, showing loss payable to the
Administrative Agent, as its interest appear and extra expense and business
interruption endorsements. Such endorsement, or an independent instrument
furnished to the Administrative Agent, shall provide that no act or default of
any Borrower or any other Person shall affect the right of the Administrative
Agent to recover under such policy or policies of insurance in case of loss or
damage. Each liability insurance policy shall contain an endorsement listing the
Administrative Agent as an additional insured thereunder.
Section 5.6 Visitation Rights. AGCO shall permit, and shall cause
its Subsidiaries to permit, representatives of the Agents, each Issuing Bank and
each Lender to (a) visit and inspect the properties of AGCO and its Subsidiaries
during normal business hours, (b) inspect and make extracts from and copies of
AGCO's and its Subsidiaries' books and records, (c) inspect the Collateral, and
(d) discuss with its respective principal officers, directors and accountants
its businesses, assets, liabilities, financial positions, results of operations,
and business prospects; provided, however, the Lenders will use reasonable
efforts to coordinate with AGCO and the Agents such visit and inspections to
limit any inconvenience to AGCO and its Subsidiaries and, prior to the
occurrence of any Default hereunder, the Lenders shall give AGCO reasonable
prior notice of any such visit or inspection.
Section 5.7 Accounting Methods. AGCO shall maintain, and cause
each of its Subsidiaries to maintain, a system of accounting established and
administered in accordance with GAAP (or the foreign equivalent), and will keep
adequate records and books of account in which complete entries will be made in
accordance with such accounting principles consistently applied and reflecting
all transactions required to be reflected by such accounting principles.
Section 5.8 Maintenance of Properties, Etc. AGCO shall preserve,
and shall cause each of its Restricted Subsidiaries to maintain and preserve in
the ordinary course of business in good repair, working order, and condition,
normal wear and tear, removal from service for routine maintenance and repair
and disposal of obsolete equipment excepted, all properties used or useful in
their respective businesses (whether owned or held under lease), and from time
to time make or cause to be made all needed and appropriate repairs, renewals,
replacements, additions, and improvements thereto.
Section 5.9 Payment of Indebtedness; Performance of Material
Contracts. AGCO shall, and shall cause its Subsidiaries to, (a) pay, subject to
any provisions therein regarding subordination, any and all of their respective
material Indebtedness when and
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as the same becomes due after any applicable cure period (other than amounts
duly disputed in good faith if appropriate reserves in accordance with GAAP are
made therefor on the books of such Person) and within the time period and in the
manner consistent with their business practices prior to the Agreement Date, and
(b) 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.
Section 5.10 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, then in such event, at the request
of the Administrative Agent or the Required Lenders, AGCO shall cause each
Wholly Owned Foreign Subsidiary that is a Material Subsidiary and that shall not
previously have delivered a Guaranty Agreement to execute and deliver to the
Administrative Agent a Guaranty Agreement in form and substance satisfactory to
the Administrative Agent, guarantying the obligations of AGCO hereunder and
under the other Loan Documents, to the extent the guaranty of such obligations
is not prohibited by the law of the jurisdiction of formation or organization of
such Foreign Subsidiary, and shall cause the pledge of all Stock of such Foreign
Subsidiary to the Administrative Agent to the extent only two-thirds of such
Stock was previously pledged to the Administrative Agent, to the extent the
pledge of such Stock is not prohibited by the law of the jurisdiction of
formation or organization of such Foreign Subsidiary or of the law of the
jurisdiction of formation or organization of such holder of the Stock of such
Foreign Subsidiary.
Section 5.11 ERISA. AGCO shall at all times make, or cause to be
made, timely payment of contributions required to meet the minimum funding
standards set forth in ERISA with respect to its and its ERISA Affiliates'
Plans; timely file any annual report required to be filed pursuant to ERISA in
connection with each such Plan of AGCO and its ERISA Affiliates; notify the
Administrative Agent as soon as practicable of the occurrence of any ERISA Event
and of any additional act or condition arising in connection with any such Plan
which AGCO believes might constitute grounds for the termination thereof by the
PBGC or for the appointment by the appropriate United States District Court of a
trustee to administer such Plan; and furnish to the Administrative Agent,
promptly upon the Administrative Agent's request therefor, a copy of such annual
report and such additional information concerning any such Plan as may be
reasonably requested by the Administrative Agent.
Section 5.12 Conduct of Business. AGCO and each Subsidiary of
AGCO shall continue to engage in business of the same general type as now
conducted by it, respectively, on the Agreement Date.
Section 5.13 Post-Closing Deliveries; Further Assurances.
(a) Immediately after the initial Borrowing on the
Initial Funding Date, AGCO shall deliver, or cause to be delivered, to the
Administrative Agent (i) a
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Guaranty Agreement executed by Valtra Tracteurs France SAS, and (ii) a Pledge
Agreement for all of the shares of Valtra Tracteurs SAS, in each case in form
and substance reasonably satisfactory to the Administrative Agent. Additionally,
AGCO shall comply with, and shall cause each of its Subsidiaries to comply with,
all of the covenants set forth in the Post-Closing Letter within the time
periods specified therein.
(b) Upon the reasonable request of the Administrative
Agent, AGCO will promptly cure, or cause to be cured, defects in the execution
and delivery of the Loan Documents (including this Agreement), resulting from
any act or failure to act by any Loan Party or any employee or officer thereof.
AGCO at its expense will promptly execute and deliver to the Agents and the
Lenders, or cause to be executed and delivered to the Agents and the Lenders,
all such other and further documents, agreements, and instruments in compliance
with or accomplishment of the covenants and agreements of AGCO and its
Subsidiaries in the Loan Documents, including this Agreement, or to correct any
omissions in the Loan Documents, or more fully to state the obligations set out
herein or in any of the Loan Documents, or to obtain any consents, all as may be
necessary or appropriate in connection therewith as may be reasonably requested
by the Administrative Agent.
Section 5.14 Broker's Claims. Each Borrower hereby indemnifies and
agrees to hold the Agents, the Issuing Banks and each of the Lenders harmless
from and against any and all losses, liabilities, damages, costs and expenses
which may be suffered or incurred by the Agents, the Issuing Banks and each of
the Lenders in respect of any claim, suit, action or cause of action now or
hereafter asserted by a broker or any Person acting in a similar capacity
arising from or in connection with the execution and delivery of this Agreement
or any other Loan Document or the consummation of the transactions contemplated
herein or therein
Section 5.15 Material Subsidiaries. AGCO shall, promptly and in no
event later than thirty (30) days after the date that any Subsidiary becomes a
Material Subsidiary (or thirty (30) days after such determination in connection
with the delivery of quarterly financial statements under Section 6.1(b)) or
after the acquisition or creation of any Material Subsidiary, (a) pledge, or
cause the pledge of, the Stock of such Subsidiary and, if such Subsidiary is
located in the United States, Canada, Finland or the United Kingdom, such
Subsidiary's personal property (including the Inventory, Receivables and
intellectual property of such Person) and, if requested by the Administrative
Agent, Real Property, to the Appropriate Agent for the benefit of the Agents,
Issuing Banks and Lenders pursuant to the Security Documents; provided, if such
Subsidiary is a Foreign Subsidiary, such pledge of Stock and assets may be
limited to the extent required to avoid any material adverse tax effect on AGCO
as a result thereof, as demonstrated to the reasonable satisfaction of the
Administrative Agent and may be limited to the extent such pledge is prohibited
by the laws of the jurisdiction of formation or organization of such Foreign
Subsidiary or of the laws of the jurisdiction of formation or organization of
such holder of the Stock of such Foreign Subsidiary, (b) cause such Material
Subsidiary to
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execute and deliver to the Administrative Agent a Guaranty Agreement; provided,
if such Subsidiary is a Foreign Subsidiary, such Guaranty Agreement shall be a
guaranty only of the Obligations of all Borrowers not formed or organized under
the laws of the United States of America or any state or other jurisdiction
thereof and may be limited to the extent the guaranty of such obligations is
prohibited by the laws of the jurisdiction of formation or organization of such
Foreign Subsidiary, and (c) deliver to the Administrative Agent such other
documents and opinions of counsel in connection therewith as the Administrative
Agent may reasonably request.
Section 5.16 Cash Concentration Accounts. AGCO will maintain cash
concentration accounts with one or more financial institutions reasonably
acceptable to the Administrative Agent that have accepted the assignment of such
account to the Administrative Agent pursuant to the Security Documents;
provided, however, that no such account shall be pledged to any Agent to the
extent that (a) such account is a collection account for proceeds of Receivables
sold pursuant to a Securitization Facility; (b) such account is a zero balance
account, or (c) the Administrative Agent determines such account to not be
material.
Section 5.17 Use of Proceeds. The Borrowers will use the proceeds
of the Loans, together with the proceeds of the New Capital Market Transactions,
solely for (a) on the Initial Funding Date, (i) the repayment of all
Indebtedness under the Existing Loan Agreement, (ii) to fund the Acquisition,
and (iii) to pay transaction costs relating to the Acquisition, this Agreement
and the New Capital Market Transactions, and (b) after the Initial Funding Date,
working capital needs and general corporate purposes (including, without
limitation, to make capital contributions to Restricted Subsidiaries in
accordance with Section 7.8(g)), in each case for the Borrowers and each
Borrower's Restricted Subsidiaries. Additionally, each Borrower agrees to use
the proceeds of the Loans from time to time, after the Initial Funding Date, and
as permitted by applicable law and by Section 7.1 hereof, to make intercompany
loans to the Loan Parties as may be needed by such Loan Parties in the ordinary
course of business and in accordance with this Agreement.
Section 5.18 Covenants of the Borrowing Subsidiaries. Each
Borrowing Subsidiary will perform and observe each covenant in Article 5 that
AGCO is required to cause it to perform or observe under such Article.
Section 5.19 Real Property Documents. AGCO shall cause its
Restricted Subsidiaries which are Loan Parties to execute and deliver or
provide, to the Administrative Agent within sixty (60) days after the Initial
Funding Date, each of the Real Property Documents reasonably requested by the
Administrative Agent with respect to the Real Property Collateral in Finland
listed on Schedule 5.19, in each case in form and substance reasonably
satisfactory to the Administrative Agent.
Section 5.20 Canadian Bank Act Security Documents. The Canadian
Subsidiary and each other Loan Party that has executed a Security Agreement with
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respect to Collateral located in Canada will execute and deliver promptly upon
request by the Administrative Agent, or the Canadian Administrative Agent, as
applicable, and in no event later than ten (10) days following such request,
such Bank Act security documents as may be requested by the Administrative Agent
or the Canadian Administrative Agent, as applicable, including without
limitation, a Notice of Intention to give security under Section 427 and related
Section 427 documents.
Section 5.21 New Equity Issuance. After the Agreement Date, but on
or before the date that is the one (1) year anniversary of the Initial Funding
Date, AGCO shall receive Net Cash Proceeds in an amount of not less than U.S.
$100,000,000 from the issuance of new Common Stock of AGCO.
ARTICLE 6.
INFORMATION COVENANTS
AGCO covenants and agrees that, so long as any Loan shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender shall have any
Commitment hereunder:
Section 6.1 Reporting Requirements. AGCO will deliver to the
Administrative Agent (and, with respect to clauses (b), (c), (j) and (o) of this
Section 6.1, such delivery may be made by AGCO posting such information directly
via IntraLinks):
(a) Default Notice. As soon as possible and in any event
within two (2) Business 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.
(b) Quarterly Financials. As soon as available and in any
event within forty-five (45) days after the end of each of the first three (3)
quarters of each fiscal year of AGCO, and within ninety (90) 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 (3)
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
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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 financial covenants contained in Article 7 hereof.
(c) Annual Financials. As soon as available and in any
event within ninety (90) 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 reasonably satisfactory to the Administrative
Agent of KPMG 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 with respect
to any of the "Financial Covenants" set forth in Article 7 hereof, 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 Senior Debt Ratio and
compliance with the financial covenants contained in Article 7 hereof; 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) Borrowing Base Certificate. Within forty-five (45)
days after the end of each fiscal quarter, a new Borrowing Base Certificate
calculated as of the last day of such fiscal quarter.
(e) ERISA Events and ERISA Reports. (i) Promptly and in
any event within ten (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
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furnished to the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA, a copy of such records, documents and information.
(f) Plan Terminations. Promptly and in any event within
two (2) 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
involuntarily terminate any Plan of any Loan Party or any of its ERISA
Affiliates or to have a trustee appointed to administer any such Plan.
(g) Plan Annual Reports. Upon the Administrative Agent's
request, copies of the most recent 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.
(h) Multiemployer Plan Notices. Promptly and in any event
within five (5) 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
(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.
(i) 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 4.1(i).
(j) 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 the stockholders of AGCO, 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.
(k) Creditor Reports. Copies of any statement, notice of
default or other material notice delivered to or received from the applicable
parties under the New Capital Market Transactions, the Existing 2006 Note
Trustee or the Existing 2008 Note
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Trustee and, 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 6.1.
(l) 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.
(m) 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 would reasonably be expected to have a Material Adverse Effect.
(n) Adverse Developments. Promptly after any Responsible
Employee becomes aware of 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 that is reasonably likely to have a Material Adverse Effect.
(o) Annual Budget. As soon as possible and in any event
by January 15 of each year, the annual quarterly budget for AGCO and its
Restricted Subsidiaries, including forecasts of the income statement, the
balance sheet and a cash flow statement, for such year, on a quarter-by-quarter
basis.
(p) Securitization Funding; Indentures. Promptly
following (i) the occurrence of any Servicer Default, Early Amortization Event,
Amortization Event or Termination Event (as such terms may be defined in any
Securitization Documents) under the Securitization Documents, or default by AGCO
under the Capital Market Transactions, giving in each case the details thereof
and specifying the action proposed to be taken with respect thereto, and (ii)
request by the Administrative Agent, such information as the Administrative
Agent may request to determine the aggregate principal amount of Securitization
Funding outstanding on any date.
(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 Agent may reasonably request or any Lender may from time to time reasonably
request through an Agent.
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Section 6.2 Access to Accountants. Each Borrower hereby authorizes the
Agents to discuss the financial condition of such Borrower and its Subsidiaries
with such Borrower's independent public accountants upon reasonable notification
to such Borrower of such Agent's intention to do so. Each Borrower shall be
given the reasonable opportunity to participate in any such discussion. Each
Borrower shall deliver to its independent public accountants a letter
authorizing and instructing them to comply with the provisions of this Section
6.2.
ARTICLE 7.
NEGATIVE COVENANTS
AGCO covenants and agrees that, so long as any Loan shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender shall have any
Commitment hereunder:
Section 7.1 Indebtedness. AGCO shall not create, assume, incur or
otherwise become or remain obligated in respect of, or permit to be outstanding,
and shall not permit any of its Restricted Subsidiaries to create, assume, incur
or otherwise become or remain obligated in respect of, or permit to be
outstanding, any Indebtedness except:
(a) Indebtedness under this Agreement and the other Loan
Documents;
(b) 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 (i) in existence prior
to the Agreement Date, or (ii) 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;
(c) Indebtedness of AGCO under the Capital Market
Transactions and refinancings, renewals, or extensions of the foregoing so long
as: (i) the terms and conditions of such refinancings, renewals, or extensions
do not, in the Administrative Agent's judgment, materially impair the prospects
of repayment of the Obligations by the Borrowers, (ii) such refinancings,
renewals, or extensions do not result in an increase in the aggregate principal
amount of, or an increase in the rate of interest or fees with respect to, the
applicable Indebtedness so refinanced, renewed, or extended, (iii) such
refinancings, renewals, or extensions do not result in a shortening of the
average weighted maturity of the applicable Indebtedness so refinanced, renewed,
or extended, nor are they on terms or conditions that are materially more
burdensome or restrictive to AGCO or any Restricted Subsidiary, (iv) if the
Indebtedness that is refinanced, renewed, or extended was subordinated in right
of payment to the Obligations, then the terms and conditions of the refinancing,
renewal, or extension Indebtedness must include subordination terms and
conditions that are at least as favorable to the Agents, the Issuing Banks and
the Lenders as those that were applicable to the refinanced, renewed, or
extended Indebtedness, as determined by the Administrative Agent, and (v) the
documents evidencing or governing such Indebtedness, as so refinanced, renewed
or
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extended, are otherwise in form and substance reasonably satisfactory to the
Administrative Agent in its reasonable judgment;
(d) Securitization Funding under the Securitization
Documents;
(e) Intercompany Indebtedness among any of AGCO and the
Restricted Subsidiaries; provided such Indebtedness shall be unsecured and, upon
the occurrence of an Event of Default, subordinated to the Obligations;
(f) For the period from the Agreement Date through the
Initial Funding Date, Indebtedness outstanding under the Existing Credit
Agreement;
(g) (i) Indebtedness in existence as of the Agreement
Date secured by Liens on Real Property and related assets permitted by clause
(h) of the definition of Permitted Liens, and (ii) Indebtedness in connection
with Tax Abatement Transactions entered into after the Agreement Date to the
extent permitted hereunder;
(h) Other unsecured Indebtedness for borrowed money not
exceeding an aggregate amount outstanding at any time of (x) U.S. $50,000,000 at
any individual Restricted Subsidiary or (y) U.S. $100,000,000 for AGCO and all
Restricted Subsidiaries;
(i) Other secured Indebtedness for borrowed money not
exceeding an aggregate amount outstanding at any time of U.S. $10,000,000 for
AGCO and its Restricted Subsidiaries; and
(j) Indebtedness permitted by Section 7.2 hereof.
Notwithstanding the foregoing, in no event shall the outstanding Indebtedness of
Sisu Diesel exceed an aggregate amount of U.S. $7,500,000 at any time, plus
intercompany Indebtedness permitted by clause (e) above.
Section 7.2 Limitation on Guaranties. AGCO shall not, and shall
not permit any of its Restricted Subsidiaries to, at any time Guaranty, or
assume, be obligated with respect to, or permit to be outstanding any Guaranty
of any obligation of any other Person, other than (a) under any Loan Document,
(b) obligations under agreements to indemnify Persons who have issued bid or
performance bonds or letters of credit issued in lieu of such bonds in the
ordinary course of business of AGCO or any Restricted Subsidiary securing
performance by AGCO or such Restricted Subsidiary of activities otherwise
permissible hereunder, (c) a guaranty by endorsement of negotiable instruments
for collection in the ordinary course of business, (d) guaranties by AGCO of the
Interest Hedge Agreements and Foreign Exchange Arrangements that any Restricted
Subsidiary may enter into with any financial institution, (e) guaranties by AGCO
or any Restricted Subsidiary of (i) financing provided to retail purchasers
(whether directly or indirectly through dealers) of Inventory of AGCO or its
Restricted Subsidiaries or (ii)
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lines of credit of dealers conducting business in Brazil and financing for
retail purchasers in Brazil or Argentina of products manufactured by AGCO or its
Restricted Subsidiaries, provided, in the case of (i) and (ii) above, such
guaranties are in the ordinary course of business and in accordance with the
past practices of AGCO, Target and their respective Subsidiaries, (f) guaranties
by AGCO of payment of fees, indemnification obligations and performance
obligations of any Restricted Subsidiary under the Securitization Documents, (g)
guaranties by AGCO or any other Restricted Subsidiary of obligations (other than
obligations constituting Funded Debt) of any Restricted Subsidiary incurred in
the ordinary course of such Restricted Subsidiary's business, (h) contingent
repurchase obligations of AGCO of Inventory, the lease or purchase of which is
financed by a Finance Company, (i) guaranties by AGCO or any Restricted
Subsidiary of Indebtedness of AGCO or any Restricted Subsidiary permitted under
clauses (b), (h) or (i) of Section 7.1, (j) guaranties by English Subsidiary Two
of the pension obligations of English Subsidiary One, and (k) other unsecured
guarantees in an aggregate amount not exceeding U.S. $5,000,000.
Section 7.3 Liens, Etc. AGCO shall not 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, Receivables) whether now owned
or hereafter acquired or, except Permitted Liens.
Section 7.4 Restricted Payments and Purchases. AGCO shall not,
and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly declare or make any Restricted Payment or Restricted Purchase, except
(a) AGCO's Subsidiaries may make Restricted Payments to AGCO or any other
Restricted Subsidiary, (b) any Subsidiary that is not a Wholly-Owned Subsidiary
may make Restricted Payments to the holders of its Stock on a pro rata basis or,
if made to AGCO or any other Restricted Subsidiary, on a preferred basis, and
(c) so long as no Default then exists or would be caused thereby, AGCO may (i)
declare and deliver dividends and distributions payable only in, or convert any
preferred stock into, Common Stock of AGCO, (ii) declare and pay cash dividends
on its Common Stock listed on a national securities exchange or Nasdaq or its
Series A Convertible Preferred Stock, in an aggregate amount not exceeding U.S.
$5,000,000 in any fiscal year, (iii) purchase, redeem, retire or otherwise
acquire shares of its own outstanding Stock for cash in connection with employee
stock option plans, (iv) acquire shares of its Stock to eliminate fractional
shares and (v) redeem any preferred Stock purchase rights issued under AGCO's
stockholders rights plan at a redemption price of $0.01 per right.
Section 7.5 Sale-Leasebacks. AGCO shall not 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: (a) AGCO
or any Restricted Subsidiary has sold or transferred or
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is to sell or transfer to any other Person, other than to another Restricted
Subsidiary, or (b) 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, except for (i) any lease in effect on the Agreement
Date, (ii) the lease of the facility located in Hesston, Kansas, and other
facilities located in the United States owned by AGCO or its Restricted
Subsidiaries (including Target) as of the Initial Funding Date in connection
with a Tax Abatement Transaction; provided, the documentation evidencing or
governing such Tax Abatement Transaction is in form and substance satisfactory
to the Administrative Agent, the bonds issued in connection with such
transaction are pledged to the Administrative Agent as Collateral hereunder, and
the Administrative Agent receives such other documentation as it may reasonably
request, and (iii) the lease of certain office space located at the Coventry,
England facility after the sale thereof by the Borrowers.
Section 7.6 Mergers, Etc. AGCO shall not 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, so long as no Default then
exists hereunder or would be caused thereby and the Administrative Agent
receives written notice of any such merger at least thirty (30) days (or such
shorter period as may be acceptable to the Administrative Agent) prior to the
effectiveness thereof if such merger involves a Loan Party: (a) any Restricted
Subsidiary (other than AGCO Acceptance Corporation) of AGCO may merge into or
consolidate with any other Restricted Subsidiary (other than or AGCO Acceptance
Corporation) of AGCO or any other Person to consummate an Investment permitted
by Section 7.8 or 7.9, but only if (i) the Person surviving such merger, or the
Person formed by such consolidation, shall be a Restricted Subsidiary of AGCO,
(ii) if a Loan Party is a party to such merger or consolidation and (x) the
surviving corporation of any such merger is not a Loan Party, 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, and (iii) if the
surviving Person of such merger is a Material Subsidiary, the Administrative
Agent receives the documents required to be delivered pursuant to Section 5.15
hereof; (b) any of AGCO's Restricted Subsidiaries (other than Xxxxxx Xxxxxxxx
Corp. or a Foreign Subsidiary) may merge into AGCO so long as AGCO is the
surviving corporation; (c) any Subsidiary that is not a Restricted Subsidiary
may merge into any other Subsidiary that is not a Restricted Subsidiary; and (d)
Subsidiaries of AGCO may merge with Subsidiaries of Target on the Initial
Funding Date in connection with the Acquisition, as set forth on Schedule 7.6.
AGCO shall not, and shall not permit any Restricted Subsidiary to (other than a
Dormant Subsidiary), liquidate or dissolve itself or otherwise wind up its
business, except any Restricted Subsidiary (other than Xxxxxx Xxxxxxxx Corp.)
may liquidate or dissolve if all of its assets are transferred to AGCO or
another Restricted Subsidiary in compliance with Section 7.7(e) hereof (provided
the Administrative Agent receives thirty (30) days' prior written notice if such
Restricted Subsidiary is a Loan Party).
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Section 7.7 Sales of Assets. AGCO shall not sell, lease, transfer
or otherwise dispose of, or permit any of its Restricted Subsidiaries to sell,
lease, transfer or otherwise dispose of, any assets, except:
(a) sales of Inventory in the ordinary course of its
business;
(b) sales of the Closed Facilities;
(c) sales of wholesale Receivables (together with the
Related Security) invoiced to third parties at addresses located in the United
States, Canada, and/or Europe under a Securitization Facility, but only so long
as the aggregate face amount of Receivables purchased by the purchasers under
such facility and outstanding on any date of determination may not exceed U.S.
$475,000,000;
(d) so long as no Default has occurred and is then
continuing, the sale of Real Property (together with the building and
improvements thereon) in connection with a Tax Abatement Transaction permitted
by Section 7.5;
(e) transfers of assets (i) between the Loan Parties;
provided (x) if such asset was subject to a Lien under any Security Document
prior to such transfer it remains subject to a first priority (subject to
Permitted Liens) perfected Lien under a Security Document after such transfer,
and (y) if such asset was not subject to an Agent's Lien but was owned by a
Material Subsidiary, such asset is transferred to another Material Subsidiary,
(ii) from a Subsidiary not a Loan Party to a Loan Party, (iii) between
Restricted Subsidiaries that are not Loan Parties, (iv) from a Loan Party to a
Restricted Subsidiary that is not a Loan Party; provided, (x) such transfer is
in the ordinary course of business in compliance with Section 7.11, (y) if such
asset was subject to a Lien under any Security Document prior to such transfer,
it remains subject to an enforceable first priority (subject to Permitted Liens)
perfected Lien under a Security Document after such transfer, and the Subsidiary
transferee guarantees the Obligations hereunder to the same extent as the
transferee had guaranteed the Obligations, or (z) the aggregate amount of such
transfers during any fiscal year does not exceed U.S. $5,000,000, and (v) from
AGCO GmbH and Co. to Fendt Immobilien KG, upon the formation thereof, provided
that, within 30 days after any such transfer to Fendt Immobilien KG, the
Administrative Agent receives the documents required pursuant to Section 5.15
hereof for Fendt Immobilien KG as if Fendt Immobilien KG was a Material
Subsidiary;
(f) sales of Receivables by a Foreign Subsidiary in
connection with factoring arrangements in the ordinary course of business;
(g) sale or disposition of Investments in Deutz AGCO
Motores SA, Tractors and Farm Equipment Limited, or Redball LLC; provided at the
time of such sale no Default shall exist; and
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(h) so long as no Default has occurred and is then
continuing, the sale of any other asset by AGCO or any Restricted Subsidiary
(other than a bulk sale of Inventory) if (i) the purchase price paid to AGCO or
such Restricted Subsidiary for such asset or assets, in a single transaction or
related transactions, shall be at least equal to the Fair Market Value (as
defined below) of such asset(s) as determined by (x) with respect to any asset
or assets, in a single transaction or related transactions, with a Fair Market
Value of at least U.S. $2,500,000 (or the foreign equivalent thereof), the Board
of Directors of AGCO or such Restricted Subsidiary, as the case may be, and
evidenced in a resolution of such Board of Directors, and (y) with respect to
any asset or assets, in a single transaction or related transactions, with a
Fair Market Value of less than U.S. $2,500,000 (or the foreign equivalent
thereof), two of any of the chief financial officer, the chief executive
officer, the president, the chief operating officer or any equivalent thereof,
and (ii) 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 or assets, shall not exceed U.S.
$15,000,000 in the aggregate for such transactions in any fiscal year. For the
purposes of this subsection, "Fair Market Value" means, with respect to any
asset or property, the value that would be obtained in an arm's-length
transaction between an informed and willing seller under no compulsion to sell
and an informed and willing buyer under no compulsion to buy, as determined by
the Board of Directors or such officer of such seller.
Section 7.8 Investments. AGCO shall not make or hold, or permit
any of its Restricted Subsidiaries to make or hold, any Investment in, any
Person other than:
(a) Investments by AGCO and its Restricted Subsidiaries
in Cash Equivalents and in Interest Hedge Agreements and Foreign Exchange
Agreements;
(b) Investments received in settlement of Indebtedness of
third parties created in the ordinary course of business;
(c) advances to officers and employees of AGCO or any of
its Restricted Subsidiaries in the ordinary course of business (i) made in
accordance with past practices of AGCO and its Restricted Subsidiaries that do
not exceed U.S. $4,000,000 in principal amount at any one time outstanding or
(ii) made for travel, entertainment or similar expenses;
(d) the majority ownership of AGCO and its Restricted
Subsidiaries of the Stock of their respective Subsidiaries as disclosed on
Schedule 4.1(b), and the minority ownership of AGCO in the Persons listed on
Schedule 4.1(b), in each case as in effect on the Agreement Date;
(e) (i) Investments by AGCO and its Restricted
Subsidiaries in joint ventures outstanding as of the Initial Funding Date
specified in Schedule 4.1(c), and (ii) Investments after the Initial Funding
Date in the joint ventures listed on Schedule 4.1(c), and in other Persons not
Restricted Subsidiaries engaged in businesses that are
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related, ancillary or complementary to the business of AGCO and its Restricted
Subsidiaries as of the Initial Funding Date, in an aggregate amount not to
exceed U.S. $15,000,000 during any fiscal year and not more than U.S.
$30,000,000 during the term of this Agreement;
(f) a new Restricted Subsidiary formed by AGCO or any
other Restricted Subsidiary for purposes of consummating a transaction permitted
by Section 7.9 hereof or otherwise consented to by the Required Lenders
provided, if such new Restricted Subsidiary is a Material Subsidiary, the
Administrative Agent shall receive the documents required by Section 5.15
hereof;
(g) loans and advances to and capital contributions in,
any Restricted Subsidiary in the ordinary course of business;
(h) Investments made in Finance Companies to the extent
necessary to meet regulatory ratios and guidelines, not to exceed U.S.
$50,000,000 (net of return of Investments) during the term of this Agreement;
and
(i) Investments under Interest Hedge Agreements and
Foreign Exchange Agreements; provided that such Interest Hedge Agreements and
Foreign Exchange Agreements are used solely as part of normal business
operations as a risk management strategy and/or hedge against charges resulting
from market operations in accordance with AGCO's customary policies and not as a
means to speculate for investment purposes or trends and shifts in financial or
commodities markets; and
(j) Investments permitted by Sections 7.2 or 7.9 hereof.
Section 7.9 Acquisitions. AGCO shall not, and shall not permit
any Restricted Subsidiary to, engage in or consummate any acquisition of all or
substantially all of the assets of a business or a business unit, or all or
substantially all of the operating assets of any Person, or assets which
constitute all or substantially all of the assets of a division or a separate or
separable line of business of any Person, or all or substantially all of the
Stock of any other Person, except (a) the acquisition of Target and its
Subsidiaries in connection with the Acquisition, and (b) Investments and
acquisitions in other assets or Persons after the Initial Funding Date by AGCO
and its Wholly Owned Restricted Subsidiaries; provided (i) any Person acquired
will be a Restricted Subsidiary immediately after such Investment or
acquisition, (ii) such assets are usable in, or Person is primarily engaged in,
businesses that are related, ancillary or complementary to the business of AGCO
and its Restricted Subsidiaries as of the Initial Funding Date, (iii) no Default
then exists or would be caused thereby, (iv) the pro forma cash flow and
operating statements of AGCO on a Consolidated basis after giving effect to such
acquisition or Investment demonstrate to the satisfaction of the Administrative
Agent that AGCO will be in compliance with the financial and other covenants
hereunder at the time of the acquisition or Investment through the four fiscal
quarter period thereafter, (v) prior to making any such acquisition or
Investment, AGCO shall provide to the Administrative
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Agent and the Lenders a certificate of the Chief Financial Officer of AGCO
certifying (A) that AGCO is in compliance with the financial covenants hereof
before and after giving effect to such acquisition or Investment, (B) that no
Event of Default then exists or would be caused thereby and (C) the total amount
of such acquisition or Investment and the full name and state of organization of
any new Subsidiary created for the purpose of effecting such acquisition or
Investment, (vi) to the extent the Person acquired is a Material Subsidiary, the
Administrative Agent shall have received all documents required by Section 5.15
hereof, and (vii) the purchase price (including the principal amount of any
Indebtedness assumed, paid off or otherwise satisfied by AGCO or a Restricted
Subsidiary in such transaction but excluding the portion of the purchase price
paid for solely in Common Stock of AGCO) of all such acquisitions and
Investments made shall not exceed U.S. $50,000,000 (or the Equivalent Amount
thereof) during any fiscal year (the "Acquisition Amount Basket"); provided,
however, the unused Acquisition Amount Basket in any fiscal year may be carried
forward to subsequent fiscal years; and, provided further, AGCO may make such
acquisitions and/or Investments in excess of the Acquisition Amount Basket in
any fiscal year if (x) the Total Debt Ratio, as of the last day of the fiscal
quarter immediately prior to the making of such acquisition or Investment, is
less than or equal to 4.00 to 1.00, and (y) as of the last day of each fiscal
quarter thereafter, AGCO maintains a Total Debt Ratio less than or equal to 4.25
to 1.00, or such lesser ratio as may be required by Section 7.18(a) hereof.
Section 7.10 Change in Nature of Business. AGCO shall not, or
permit any of its Restricted Subsidiaries (including without limitation any
Persons becoming Restricted Subsidiaries after the Agreement Date) to, make any
material change in the nature of its business as carried on at the Agreement
Date or on the date such Person becomes a Restricted Subsidiary thereafter.
Section 7.11 Affiliate Transactions. AGCO shall not enter into or
be a party to, or permit any of its Restricted Subsidiaries to enter into or be
a party to, any agreement or transaction with any Affiliate (other than a
Restricted Subsidiary or in a transaction constituting an Investment permitted
hereunder) except in the ordinary course of and pursuant to the reasonable
requirements of AGCO's or such Restricted Subsidiary's business and upon fair
and reasonable terms that, except in connection with the purchase and sale of
Inventory and transactions with the Finance Companies, are approved by AGCO's or
such Restricted Subsidiary's Board of Directors, 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, and on terms consistent with the
business relationship of AGCO or such Restricted Subsidiary and such Affiliate
prior to the Initial Funding Date, if any. Nothing contained in this Agreement
shall prohibit (i) increases in compensation and benefits for officers and
employees of AGCO which are customary in the industry or consistent with the
past business practice of AGCO, or payment of customary directors' fees and
indemnities or (ii) transactions entered into in the ordinary course of business
with an Affiliate that is a Finance Company provided that such transactions are
on fair and reasonable terms no less favorable to AGCO or such
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Restricted Subsidiary than could be obtained, at the time of such transaction
or, if such transaction is pursuant to a written agreement, at the time of the
execution of the agreement providing therefor, in a comparable arm's-length
transaction with a Person that is not such a holder or an Affiliate.
Section 7.12 Amendments. AGCO shall not, and shall not permit any
Restricted Subsidiary to, (a) (i) without the prior written consent of the
Administrative Agent and the Required Lenders enter into any amendment or waiver
of any of the Applicable Capital Market Transaction Documents, which in any case
would adversely affect the rights of the Lenders under this Agreement or any
other Loan Document or make the provisions of any such document after such
amendment materially more burdensome on AGCO or its Restricted Subsidiaries, or
(ii) without the prior written consent of the Administrative Agent enter into
any other amendment of any of the documents governing the Capital Market
Transactions, (b) amend, its charter, bylaws or similar constituent documents
that would have a Material Adverse Effect, or (c) amend, modify or supplement
any subordination terms of any Indebtedness that has been contractually
subordinated to the Obligations.
Section 7.13 Prepayments of Indebtedness. From and after the
Initial Funding Date, AGCO shall not, and shall not permit its Restricted
Subsidiaries to, prepay, redeem, defease or purchase in any manner, or deposit
or set aside funds for the purpose of any of the foregoing, make any payment in
respect of principal of, or make any payment in respect of interest on, any
Funded Debt, except AGCO and its Restricted Subsidiaries may (a) make regularly
scheduled payments of principal or interest required in accordance with the
terms of the Applicable Capital Market Transaction Documents or the terms of the
documents evidencing other Funded Debt permitted hereunder, (b) prepay
Indebtedness pursuant to refinancings permitted pursuant to Section 7.1(c) and
(c) prepay the Existing Capital Market Transactions and the Bridge Facility from
the Net Cash Proceeds received from the issuance of common stock of AGCO.
Section 7.14 Restrictions; Negative Pledge. AGCO shall not 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 Indebtedness owing by any Restricted Subsidiary of AGCO to AGCO
or another Subsidiary of AGCO, other than (a) restrictions imposed under an
agreement for the sale of all of the 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, (b) restrictions in any Securitization Documents, and
restrictions set forth in the Applicable Capital Market Transaction Documents as
of the effective date of such documents, and (c) restrictions in any agreement
with another Person relating to a joint venture conducted through a Subsidiary
of AGCO in which such Person is a minority stockholder requiring the consent of
such Person to the payment of dividends. Neither AGCO nor any Restricted
Subsidiary of AGCO shall, directly or
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indirectly, enter into any agreement (other than the Loan Documents) with any
Person that prohibits or restricts or limits the ability of AGCO or such
Restricted Subsidiary to create, incur, pledge, or suffer to exist any Lien upon
any of its respective assets, except for (i) restrictions in the Securitization
Documents and set forth in the Applicable Capital Market Transaction Documents
as of the effective date of such documents, (ii) customary restrictions relating
to the subletting, assignment, or transfer of any asset that is subject to a
lease or license, (iii) restrictions arising in connection with a Permitted Lien
on any asset provided that such restriction is limited to the assets subject to
such Permitted Lien, and (iv) restrictions in connection with unsecured
Indebtedness permitted by Section 7.1(h).
Section 7.15 Accounting Changes. AGCO will not, nor will it permit
any of its Subsidiaries to, make or permit any change in accounting policies or
reporting practices as such policies or practices are used in connection with
the preparation of the financial statements delivered or to be delivered to the
Administrative Agent pursuant to this Agreement, except as required by GAAP (or
the foreign equivalent). AGCO will not change its fiscal year for accounting
purposes from the fiscal year ending December 31.
Section 7.16 Issuance or Sales of Stock. AGCO shall not (a) sell,
assign or otherwise transfer, or permit any of its Restricted Subsidiaries to
sell, assign or otherwise transfer, any Stock of any Restricted Subsidiary, or
(b) permit any Restricted Subsidiary to issue or sell any shares of its Stock,
except (i) to qualify directors of Subsidiaries where required by applicable law
or to satisfy other requirements of applicable law with respect to the ownership
of Stock of Subsidiaries incorporated in jurisdictions outside of the United
States of America, (ii) issuances and sales of Stock by Restricted Subsidiaries
to AGCO or other Wholly Owned Restricted Subsidiaries of AGCO, and (iii) the
sale of Stock of a Subsidiary held by AGCO or its Restricted Subsidiaries, to
the extent permitted by Section 7.7 hereof.
Section 7.17 No Notice Under Indentures. AGCO shall not deliver,
or permit there to be delivered, to the Existing 2006 Note Trustee under the
Existing 2006 Note Indenture, the Existing 2008 Note Trustee under the Existing
2008 Note Indenture, the Convertible Note Trustee under the Convertible Note
Indenture or any other trustee under any Applicable Capital Market Transaction
Documents, any notice that any agreement, instrument or document, other than
this Agreement and the Loan Documents, is the "Bank Credit Agreement"
thereunder.
Section 7.18 Financial Covenants.
(a) Total Debt Ratio. AGCO shall not allow, as of the end
of each fiscal quarter of AGCO, the Total Debt Ratio to exceed the ratio set
forth below for the applicable fiscal quarter corresponding thereto:
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Fiscal Quarters Ending: Ratio:
----------------------------------------------------------------
From December 31, 2003 through September 30, 2004 5.35 to 1.00
----------------------------------------------------------------
December 31, 2004 through September 30, 2005 5.10 to 1.00
----------------------------------------------------------------
December 31, 2005 through September 30, 2006 4.60 to 1.00
----------------------------------------------------------------
December 31, 2006 through September 30, 2007 4.25 to 1.00
----------------------------------------------------------------
December 31, 2007 and thereafter 3.85 to 1.00
----------------------------------------------------------------
(b) Senior Debt Ratio. AGCO shall not allow, as of the
end of each fiscal quarter of AGCO, the Senior Debt Ratio to exceed the ratio
set forth below for the applicable fiscal quarter corresponding thereto:
Fiscal Quarters Ending: Ratio:
------------------------------------------------------------------
From December 31, 2003 through September 30, 2004 3.70 to 1.00
------------------------------------------------------------------
December 31, 2004 through September 30, 2005 3.50 to 1.00
------------------------------------------------------------------
December 31, 2005 through September 30, 2006 3.00 to 1.00
------------------------------------------------------------------
December 31, 2006 and thereafter 2.50 to 1.00
------------------------------------------------------------------
(c) Fixed Charge Coverage Ratio. AGCO shall maintain, as
of the end of each fiscal quarter of AGCO, a Fixed Charge Coverage Ratio for the
four fiscal quarter period then ended of not less than the ratio set forth below
for the applicable fiscal quarter corresponding thereto:
Fiscal Quarters Ending: Ratio:
------------------------------------------------------------------
From December 31, 2003 through December 31, 2005 1.50 to 1.00
------------------------------------------------------------------
March 31, 2006 through December 31, 2006 1.60 to 1.00
------------------------------------------------------------------
March 31, 2007 and thereafter 1.75 to 1.00
------------------------------------------------------------------
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(d) Consolidated Tangible Net Worth. AGCO shall maintain,
as of the last day of each fiscal quarter of AGCO, Consolidated Tangible Net
Worth of not less than the sum of (i) eighty-five percent (85%) of Consolidated
Tangible Net Worth as of December 31, 2003 (as reflected on AGCO's audited
financial statements for such period, but adjusted to give pro forma effect to
the Acquisition), plus (ii) for the fiscal quarter ending March 31, 2004, and
each fiscal quarter thereafter on a cumulative basis, (x) fifty percent (50%) of
Consolidated Net Income (to the extent positive) plus (y) eighty-five percent
(85%) of the Net Cash Proceeds from the sale of issuance of capital stock by
AGCO, excluding any capital stock or options for capital stock issued by AGCO or
its Restricted Subsidiaries pursuant to employee stock plans.
Section 7.19 Covenants of the Borrowing Subsidiaries. Each
Borrowing Subsidiary will perform and observe each covenant in Article 7 that
AGCO is required to cause it to perform or observe under such Article.
Section 7.20 Anti-Terrorism Laws. None of Borrowers nor any
Affiliate of any Borrower or agent of any Borrower shall knowingly: (i) conduct
any business or engage in any transaction or dealing with any Blocked Person,
including the making or receiving of any contribution of funds, goods or
services to or for the benefit of any Blocked Person; (ii) deal in, or otherwise
engage in any transaction relating to, any property or interests in property
blocked pursuant to Executive Order No. 13224 or other applicable Anti-Terrorism
Law; (iii) engage in or conspire to engage in any transaction that evades or
avoids, or has the purpose of evading or avoiding, or attempts to violate any of
the prohibitions set forth in any Anti-Terrorism Law. Borrowers shall deliver to
Agents and Lenders any certification or other evidence requested from time to
time by any Agent or any Lender, in their sole discretion, confirming Borrowers'
compliance with this Section 7.20.
Section 7.21 Speculative Transactions. AGCO will not, nor will it
permit any of its Restricted Subsidiaries to, engage in any transaction
involving commodity options or futures contracts or any similar speculative
transactions except for Interest Hedge Agreements and Foreign Exchange Contracts
that are used solely as part of normal business operations as a risk management
strategy and/or hedge against charges resulting from market operations in
accordance with AGCO's customary policies and not as a means to speculate for
investment purposes or trends and shifts in financial or commodities markets.
Section 7.22 Limitation of Covenants. Notwithstanding any
provision in this Agreement to the contrary, (a) prior to the Initial Funding
Date and the delivery of the notice referred to in Section 3.2(q)(xii) hereof to
the Existing 2006 Note Trustee and the Existing 2008 Note Trustee, the
provisions of Sections 7.1, 7.2, 7.4, 7.5, 7.6, 7.7, 7.8, 7.13 or 7.18 hereof
shall be ineffective to the extent, and only to the extent such provisions would
violate the provisions of the Existing 2006 Note Indenture or the Existing 2008
Note Indenture and (b) prior to the repayment in full of the Indebtedness
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outstanding under the Existing Credit Agreement, the covenants contained in this
Article 7 shall be ineffective to the extent, and only to the extent, such
provisions would violate the provisions of the Existing Credit Agreement.
ARTICLE 8.
EVENTS OF DEFAULT
Section 8.1 Events of Default. Each of the following shall
constitute an Event of Default (an "Event of Default"), whatever the reason for
such event and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment or order of any court or any order,
rule, or regulation of any governmental or non-governmental body:
(a) (i) any Borrower shall fail to pay (x) any principal
or face amount of any Loan on the date when the same becomes due and payable, or
(y) any interest or fees due hereunder within three (3) Business Days 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 (5)
Business 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) (i) any Borrower shall fail to perform any term,
covenant or agreement contained in Article 5 hereof if such failure shall remain
unremedied for thirty (30) days after the earlier of (x) such Borrower having
knowledge thereof, and (y) written notice thereof having been given to AGCO;
(ii) any Borrower shall fail to perform any term, covenant or agreement
contained in Article 6 hereof if such failure shall remain unremedied for ten
(10) days after the earlier of (x) such Borrower having knowledge thereof, and
(y) written notice thereof having been given to AGCO; (iii) any Borrower shall
fail to perform, observe or comply with any other term, covenant or agreement
contained in Article 7 hereof or any Security Document to which it is a party;
or (iv) any Borrower or any other Loan Party shall fail to perform any other
term, covenant or agreement contained in this Agreement or any other Loan
Document not referenced elsewhere in this Section 8.1 if such failure shall
remain unremedied for thirty (30) days after the earlier of (x) such Loan Party
having knowledge thereof, and (y) written notice thereof having been given to
AGCO; or
(d) AGCO or any Restricted Subsidiary shall fail to pay
any principal of, premium or interest on or any other amount payable in respect
of any Indebtedness, if such Indebtedness is outstanding in a principal or
notional amount of at least U.S. $10,000,000 in the aggregate (but excluding
Indebtedness 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
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applicable grace period, if any, specified in the agreement or instrument
relating to such Indebtedness; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such Indebtedness 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 Indebtedness
or otherwise to cause, or to permit the holder thereof to cause, such
Indebtedness to mature; or any such Indebtedness 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 Indebtedness shall be required to be
made, in each case prior to the stated maturity thereof; or
(e) AGCO or any Restricted Subsidiary (other than a
Dormant Subsidiary) 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
insolvency or 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 AGCO or any Restricted Subsidiary (other than a Dormant
Subsidiary) 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 (including, without limitation, any
proceeding under the Bankruptcy Code, the UK Insolvency Act of 1986, or any
similar law in any other jurisdiction) 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 thirty (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 AGCO or any Restricted Subsidiary shall take any
action to authorize any of the actions set forth above in this subsection, 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 AGCO or any Restricted Subsidiary, 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 the events specified in this
subsection occurs under the laws of any applicable jurisdictions; or
(f) 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), individually or in the
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aggregate, shall be rendered against AGCO or any Restricted Subsidiary, or a
warrant of attachment or execution or similar process shall be issued or levied
against property of AGCO or any Restricted Subsidiary pursuant to a judgment
which, together with all other such property of AGCO or any Restricted
Subsidiary subject to other such process, exceeds in value U.S. $10,000,000 in
the aggregate, and either (i) enforcement proceedings shall have been commenced
by any creditor upon such judgment, decree or order, or (ii) within thirty (30)
days after the entry, issue, or levy thereof, such judgment, warrant, or process
shall not have been vacated, rescinded or stayed pending appeal or otherwise; or
(g) any non-monetary judgment or order shall be rendered
against any AGCO or any Restricted Subsidiary that is reasonably likely to have
a Material Adverse Effect, and within thirty (30) days after the entry or issue
thereof, such judgment or order shall not have been vacated, rescinded or stayed
pending appeal or otherwise; or
(h) any material portion of any Loan Document shall at
any time and for any reason be declared to be null and void, or a proceeding
shall be commenced by any Loan Party or any of its respective Affiliates, or by
any governmental authority having jurisdiction over any Loan Party or any of its
Affiliates, seeking to establish the invalidity or unenforceability thereof
(exclusive of questions of interpretation of any provision thereof), or any
material provision of any Loan Document shall for any reason cease to be valid
and binding on or enforceable against any Loan Party to it, or any such Loan
Party shall so state in writing; or
(i) any Security Document shall for any reason (other
than pursuant to the terms thereof) cease to create a valid and perfected
first-priority Lien (except for Permitted Liens) on any Collateral referred to
therein; or
(j) a Change of Control shall occur; or
(k) (i) any ERISA Event shall have occurred with respect
to a Plan of any Loan Party or any ERISA Affiliate as a result of an
Insufficiency thereunder, and any Loan Party shall fail to make any payment in
excess of U.S. $1,000,000 as and when required to be made under ERISA as a
result of such Insufficiency, or any such Insufficiency shall have occurred and
then exist that would result in a Material Adverse Effect; or (ii) any Loan
Party or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan of such Loan Party or any ERISA Affiliate that it has
incurred Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts 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), exceeds U.S. $25,000,000 or requires
payments exceeding U.S. $5,000,000 per annum or would otherwise result in a
Material Adverse Effect; or (iii) any Loan Party or any ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan 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
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reorganization or termination the aggregate annual contributions of such Loan
Party 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 years in which such
reorganization or termination occurs by an amount exceeding U.S. $25,000,000 or
which would otherwise result in a Material Adverse Effect; or
(l) a Termination Event, an Amortization Event, or an
Early Amortization Event, or, if any Subsidiary of AGCO is the servicer at such
time, a Servicer Default (as such terms are defined in any Securitization
Document) under any of the Securitization Documents, or any other event which
causes an early permanent termination of a commitment to purchase or loan under
a Securitization Facility, shall occur and be continuing and shall not have been
rescinded in accordance with the terms of such Securitization Documents;
provided, however, that if such Termination Event, Amortization Event or Early
Amortization Event is solely the result of the election of AGCO or any
Restricted Subsidiary to voluntarily terminate the securitization program
pursuant to such Securitization Documents in respect of which such Termination
Event, Amortization Event or Early Amortization Event has occurred, then such
event shall not be an Event of Default provided that either (i) such
securitization program is simultaneously replaced by another securitization
program or factoring arrangement which will provide a comparable level of
liquidity for AGCO or the Restricted Subsidiary party thereto, as determined by,
and subject to documentation in form and substance satisfactory to, the
Administrative Agent, or (ii) the Administrative Agent determines that the
liquidity requirements of AGCO or the Restricted Subsidiary party to such
terminating securitization do not require the maintenance of such securitization
program.
Section 8.2 Remedies. If an Event of Default shall have occurred
and until such Event of Default is waived in writing by the Required Lenders, or
all of the Lenders as may be required by Section 10.1 hereof, the Administrative
Agent:
(a) may, and shall at the request of the Required
Lenders, by notice to AGCO, declare the obligation of each Lender to make Loans
and of the Issuing Banks to issue Letters of Credit and the Swing Line Bank to
make Swing Line Advances to be terminated, whereupon the same shall forthwith
terminate;
(b) may, and shall at the request of the Required Lenders
(i) by notice to AGCO, declare the Loans, all interest thereon and all other
amounts payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon the Loans, 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 (ii) 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
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payable; provided that in the event of an actual or deemed entry of an order for
relief or any assignment, proposal or the giving of notice of intention to make
a proposal with respect to any Borrower under the Bankruptcy Code, (x) the
obligation of each Lender to make Revolving Loans and of the Issuing Bank to
issue Letters of Credit and of the Swing Line Bank to make Swing Line Loans
shall automatically be terminated and (y) the Loans, 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; and
(c) may, and shall at the request of the Required
Lenders, exercise all of the post-default rights granted to it and to them under
the Loan Documents or under Applicable Law. The Administrative Agent, for the
benefit of itself, the Agents, the Issuing Banks and the Lenders, shall have the
right to the appointment of a receiver for the property of each Borrower, and
each Borrower hereby consents to such rights and such appointment and hereby
waives any objection each Borrower may have thereto or the right to have a bond
or other security posted by the Agents, the Issuing Bank or the Lenders in
connection therewith.
Section 8.3 Actions in Respect of the Letters of Credit. If (a)
an event of an actual or deemed entry of an order for relief or any assignment,
proposal or the giving of notice of intention to make a proposal with respect to
any Borrower under the 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 8.2 or otherwise, make demand upon AGCO to, and
forthwith upon such demand AGCO will, 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'
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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.
Section 8.4 Application of Payments. Subsequent to the occurrence
and during the continuation of an Event of Default, payments and prepayments
with respect to the Obligations made to the Administrative Agent, the Lenders,
the Issuing Banks, the Swing Line Bank or otherwise received by the
Administrative Agent, any Lender, any Issuing Bank or the Swing Line Bank (from
realization on Collateral or otherwise, but excluding any funds held in the L/C
Cash Collateral Account which shall be applied to, or held to pay, the Available
Amount of all Letters of Credit then outstanding as set forth in Section 8.3)
shall be distributed in the following order of priority: first, to the
reasonable costs and expenses (including reasonable attorneys' fees and
expenses), if any, incurred by the Administrative Agent, any Lender, the Issuing
Banks or the Swing Line Bank in the collection of such amounts under this
Agreement or of the Loan Documents, including, without limitation, any costs
incurred in connection with the sale or disposition of any Collateral until paid
in full; second, to any fees then due and payable to the Administrative Agent
under this Agreement or any other Loan Document until paid in full; third, to
any fees then due and payable to the Lenders and the Issuing Banks under this
Agreement until paid in full; fourth, to the ratable payment of interest then
due in respect of the Revolving Loans, the Swing Line Loans, and the Term Loans
until paid in full; fifth, to the ratable payment of principal of the Revolving
Loans (other than Bankers' Acceptances that are not BA Equivalent Loans and are
not then due), the Swing Line Loans, the Term Loans and, to the extent of any
Bankers' Acceptances that are not BA Equivalent Loans and are not then due and
any Letters of Credit then outstanding, to the interest-bearing account referred
to in Section 2.14(l) hereof or the L/C Cash Collateral Account, in each case
until paid (or cash collateralized) in full; sixth, to any other Obligations not
otherwise referred to in this Section, including any obligations owed to a
Lender or any Affiliate of a Lender under Interest Hedge Agreements with a Loan
Party until paid in full; and seventh, to Borrowers or such other Person
entitled thereto under applicable law.
ARTICLE 9.
THE AGENTS
Section 9.1 Authorization and Action. Each Lender hereby appoints
and authorizes Rabobank to take action on its behalf as the Administrative
Agent, and each Canadian Lender hereby appoints and authorizes Rabobank 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, 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
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refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders; 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. Except for action requiring the approval of the Required
Lenders, the Agents shall be entitled to use their discretion with respect to
exercising or refraining from exercising any rights which may be vested in it
by, and with respect to taking or refraining from taking any action or actions
which it may be able to take under or in respect of, any Loan Document, unless
such Agent shall have been instructed by the Required Lenders to exercise or
refrain from exercising such rights or to take or refrain from taking such
action. No Agent shall incur any liability under or in respect of any Loan
Document with respect to anything which it may do or refrain from doing in the
reasonable exercise of its judgment or which may seem to it to be necessary or
desirable in the circumstances, except for its gross negligence or willful
misconduct as determined by a final, non-appealable judicial order.
Section 9.2 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:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) 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
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(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;
(f) 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;
(g) 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";
(h) 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
(i) may act directly or through agents or attorneys on
its behalf but shall not be responsible to any Lender for the negligence or
misconduct of any agents or attorneys selected by it with reasonable care.
Section 9.3 Agents, in their Individual Capacity and Affiliates.
With respect to their respective Commitments, and the Loans made by each of
them, respectively, Rabobank and Rabobank 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 Rabobank Canada in their
individual capacities. Rabobank and Rabobank Canada and their 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 Rabobank Canada were not Agents and without
any duty to account therefor to the Lenders.
Section 9.4 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 3.1 and such other
documents and information as it has deemed appropriate, made its own independent
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.
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Section 9.5 Notice of Default or Event of Default. In the event
that any Agent or any Lender shall acquire actual knowledge, or shall have been
notified in writing, of any Default or Event of Default, such Agent or such
Lender shall promptly notify the Lenders and the Agents, and the Administrative
Agent shall take such action and assert such rights under this Agreement as the
Required Lenders shall request in writing, and the Administrative Agent shall
not be subject to any liability by reason of its acting pursuant to any such
request. If the Required Lenders shall fail to request the Administrative Agent
to take action or to assert rights under this Agreement in respect of any Event
of Default within ten days after their receipt of the notice of any Event of
Default from any Agent, or shall request inconsistent action with respect to
such Event of Default, the Administrative Agent may, but shall not be required
to, take such action and assert such rights (other than rights under Article 8
hereof) as it deems in its discretion to be advisable for the protection of the
Lenders, except that, if the Required Lenders have instructed the Administrative
Agent not to take such action or assert such right, in no event shall the
Administrative Agent act contrary to such instructions.
Section 9.6 Indemnification. Each Lender severally agrees to
indemnify each Agent (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, experts, agents and consultants) of any kind or nature whatsoever
that may be imposed on, incurred by, or asserted against such Agent in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by such Agent 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 found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Agent's gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender agrees to reimburse each Agent promptly upon demand
for its ratable share of any costs and expenses payable by any Borrower under
Section 10.4, to the extent that such Agent is not promptly reimbursed for such
costs and expenses by the Borrowers. For purposes of this Section, 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 Loans (other
than Revolving Loans 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;
(c) their respective Pro Rata Shares of the aggregate
Available Amount of all Letters of Credit outstanding at such time; and
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(d) their respective Unused Multi-Currency Commitments
and Unused Canadian Commitments at such time.
Section 9.7 Successor Agent. Either Agent may resign at any time
by giving written notice thereof to the Lenders and the Borrowers. Upon any such
resignation, 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 thirty (30) days after
the retiring Agent's giving of notice of resignation, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent, which shall be any
Lender or a commercial bank or other financial institution and having a combined
capital and reserves in excess of U.S. $500,000,000. The resignation of such
retiring Agent shall be effective only upon (i) the acceptance of any
appointment as an Agent hereunder by a successor Agent, and (ii) the execution
of all documents and the taking of all other actions necessary or, in the
opinion of the successor Agent, in connection with the substitution, in
accordance with applicable law, of the successor Agent as creditor of each
Foreign Obligor's Parallel Debts and as holder of the security created pursuant
to the Loan Documents. Upon such effectiveness pursuant to the foregoing clauses
(i) and (ii), 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 9 and Section 10.4 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.
Section 9.8 Agent May File Proofs of Claim. The Appropriate Agent
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Agents (including any claim for
the reasonable compensation, expenses, disbursements and advances of each Agent,
its agents, financial advisors and counsel), the Issuing Banks and the Lenders
allowed in any judicial proceedings relative to any Loan Party, or any of their
respective creditors or property, and shall be entitled and empowered to
collect, receive and distribute any monies, securities or other property payable
or deliverable on any such claims and any custodian in any such judicial
proceedings is hereby authorized by each Lender to make such payments to the
Appropriate Agent and, in the event that the Appropriate Agent shall consent to
the making of such payments directly to the Lenders, to pay to the Appropriate
Agent any amount due to the Appropriate Agent for the reasonable compensation,
expenses, disbursements and advances of the Appropriate Agent, its agents,
financial advisors and counsel, and any other amounts due the Appropriate Agent.
Nothing contained in this Agreement or the other Loan Documents shall be deemed
to authorize any Agent to authorize or consent to or accept or adopt on behalf
of any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender with respect thereto, or
to authorize any Agent to vote in respect of the claim of any Lender in any such
Proceeding.
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Section 9.9 Co-Documentation Agent and Co-Syndication Agent. It
is expressly acknowledged and agreed by the Agents, each Lender and the
Borrowers for the benefit of the Co-Documentation Agents and Co-Syndication
Agents that the Co-Documentation Agents and Co-Syndication Agents, in such
capacity, have no duties or obligations whatsoever with respect to this
Agreement or any other document or any matter related thereto.
Section 9.10 Collateral; Parallel Debt.
(a) Each Agent is hereby authorized to hold all
Collateral pledged to it pursuant to any Loan Document and to act on behalf of
the Agents, the Lenders and the Issuing Banks, in its own capacity and through
other agents appointed by it, under the Security Documents; provided, that such
Agent shall not agree to the release of any Collateral except in accordance with
the terms hereof.
(b) For the purposes of holding any security hereafter
granted by any of the Loan Parties pursuant to the laws of the Province of
Quebec, the Administrative Agent, or the Canadian Administrative Agent, as
applicable, shall be the holder of an irrevocable power of attorney ("fonde de
pouvoir" in accordance with article 2692 of the Civil Code of Quebec) for all
present and future Lenders. By executing an Assignment and Acceptance, any
future Lender shall be deemed to ratify the power of attorney granted to the
Administrative Agent or the Canadian Administrative Agent, as applicable,
hereunder. The Lenders and the Loan Parties agree that notwithstanding Section
32 of the Act respecting the Special Powers of Legal Persons (Quebec), the
Administrative Agent or the Canadian Administrative Agent, as applicable, may,
as the person holding the power of attorney of the Lenders, acquire any
debentures or other title of indebtedness secured by any hypothec granted by any
of the Loan Parties to the Administrative Agent or the Canadian Administrative
Agent, as applicable, pursuant to the laws of the Province of Quebec.
(c) Without prejudice to the other provisions of the Loan
Documents and for the purpose of ensuring the validity and effect of any
security right governed by Dutch or German law and granted or to be granted by
any Foreign Obligor pursuant to the Loan Documents, each Foreign Obligor
undertakes, as a separate and independent obligation to the Administrative
Agent, to pay to the Administrative Agent its Parallel Debts.
(d) (i) No Foreign Obligor may pay its Parallel Debts
other than at the instruction of, and in the manner determined by, the
Administrative Agent, and (ii) without prejudice to clause (i) above, each
Foreign Obligor shall be obliged to pay its Parallel Debts (or, if such Foreign
Obligor's Underlying Debts are due at different times, amounts of its Parallel
Debt corresponding to each such Underlying Debts) only when its Underlying Debts
have fallen due.
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(e) Any payment made, or amount recovered, in respect of
any Foreign Obligor's Parallel Debt shall reduce such Foreign Obligor's
Underlying Debts to any Lender or Issuing Bank by the amount that such Lender or
Issuing Bank is entitled to receive out of such payment or recovery under the
Loan Documents.
(f) Notwithstanding any provision to the contrary in any
Loan Document, in relation to any Foreign Obligor's Parallel Debt and any
security governed by Dutch or German law:
(i) the Administrative Agent shall act for
itself (but always for the benefit of the Agents, Issuing Banks and Lenders in
accordance with the provisions of the Loan Documents); and
(ii) the rights, powers and authorities vested in
the Administrative Agent pursuant to the Loan Documents are subject to any
restrictions imposed by mandatory Dutch or German law.
Section 9.11 Release of Collateral.
(a) Each Lender and each Issuing Bank hereby authorizes
and directs the Appropriate Agent to, in accordance with the terms of this
Agreement, and the Appropriate Agent agrees to, release or subordinate any Lien
held by the Appropriate Agent for the benefit of the Agents, the Lenders and the
Issuing Banks:
(i) against all of the Collateral, upon final
and indefeasible payment in full of the Obligations and termination of this
Agreement;
(ii) against any part of the Collateral sold or
disposed of by the applicable Loan Party if such Asset Disposition (1) is
permitted by Section 7.7 hereof as certified to the Administrative Agent by the
Loan Party in a certificate of an Authorized Signatory (and the Administrative
Agent may rely conclusively on any such certificate, without further inquiry);
or (2) is otherwise consented to by the requisite Lenders for such release as
set forth in Section 10.1 hereof.
(iii) against any Collateral that is sold or
disposed of by any Loan Party, other than pursuant to Section 7.7, and the Net
Cash Proceeds for such Asset Disposition do not exceed (1) U.S. $500,000 in any
one Asset Disposition or (2) U.S. $2,000,000, in the aggregate in any fiscal
year;
(iv) against any Collateral in which no Loan
Party or its Subsidiary owned any interest at the time the Lien was granted to
the Agents and Lenders pursuant to the Security Documentation at any time
thereafter; and
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(v) against any Collateral leased to a Loan
Party or its Subsidiaries under a lease that has expired or is terminated in a
transaction permitted under this Agreement.
Each Lender and each Issuing Bank hereby directs the Appropriate Agent
to, and the Appropriate Agent hereby agrees to, execute and deliver or file such
termination and partial release statements and do such other things as are
reasonably necessary to release Liens to be released pursuant to this Section
promptly upon the effectiveness of any such release. Upon request by the
Appropriate Agent at any time, the Lenders and the Issuing Banks will confirm in
writing the Appropriate Agent's authority to release particular types or items
of Collateral pursuant to this Section.
Section 9.12 Securitization Documents. The Administrative Agent is
hereby authorized to enter into the Securitization Intercreditor Agreement on
behalf of the Agents, the Lenders and each Issuing Bank.
ARTICLE 10.
MISCELLANEOUS
Section 10.1 Amendments, Etc. No amendment or waiver of any
provision of this Agreement or any other Loan Document, nor consent to any
departure by any 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 the Canadian Lenders, do any of the following at any
time:
(i) change the procedures for the issuance of
Bankers' Acceptances and BA Equivalent Loans hereunder; or
(ii) reduce or forgive any scheduled payment of
principal due under the Canadian Facility, or reduce the rate of interest or
fees payable under the Canadian Facility, or postpone any scheduled date for any
payment of interest or fees under the Canadian Facility;
(b) no amendment, waiver or consent shall, unless in
writing and signed by all the Multi-Currency Lenders affected thereby, reduce or
forgive any scheduled payment of principal due under the Multi-Currency
Facility, or reduce the rate of interest or fees payable under the
Multi-Currency Facility, or postpone any scheduled date for any payment of
interest or fees under the Multi-Currency Facility;
(c) no amendment, waiver or consent shall, unless in
writing and signed by all the US Term Loan Lenders affected thereby, reduce or
forgive any scheduled payment of principal due under the US Term Loan Facility,
or reduce the rate
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of interest or fees payable under the US Term Loan Facility, or postpone any
scheduled date for any payment of principal, interest or fees under the US Term
Loan Facility, or convert the US Term Loan to any currency other than U.S.
Dollars;
(d) no amendment, waiver or consent shall, unless in
writing and signed by all the Euro Term Loan Lenders affected thereby, reduce or
forgive any scheduled payment of principal due under the Euro Term Loan
Facility, or reduce the rate of interest or fees payable under the Euro Term
Loan Facility, or postpone any scheduled date for any payment of principal,
interest or fees under the Euro Term Loan Facility, or, except upon the
occurrence of a Sharing Event, convert the Euro Term Loan to any currency other
than Euros;
(e) no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders affected thereby and acknowledged by
the Administrative Agent, increase (i) the aggregate amount of the Commitments
of any Lender, or (ii) any Lender's Pro Rata Share;
(f) no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders and acknowledged by Administrative
Agent, do any of the following at any time:
(i) waive any of the conditions specified in
Section 3.3;
(ii) change the definition of "Required Lenders"
hereunder;
(iii) amend this Section 10.1;
(iv) extend the Revolving Loan Maturity Date or
the Term Loan Maturity Date; or
(v) release any Guarantor that is a Borrower or
a Material Subsidiary from its obligations under its respective Guaranty
Agreement, or release any material portion of the Collateral, except, in each
case, as permitted by Section 9.11 or in connection with a sale that is
permitted under Section 7.7;
(g) no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Bank in addition to the Lenders required
above to take such action, affect the rights or obligations of the Swing Line
Bank in such capacity under this Agreement;
(h) 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
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(i) 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.
Anything in this Agreement to the contrary notwithstanding, if any
Lender shall fail to fulfill its obligations to make a Loan 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 (including
without limitation under this Section 10.1) to have no Loans 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 10.1; provided
that any action taken by the other Lenders with respect to the matters referred
to in clauses (a), (b), (c), (d) or (f) of this Section 10.1 shall not be
effective as against such Lender.
Section 10.2 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 AGCO or any Borrowing Subsidiary to AGCO at its
address at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000-0000, Attention:
General Counsel, Facsimile 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 on Schedule 1 to the Lender Addendum with respect thereto 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 00000-0000, Attention: Loan
Syndications, Facsimile No. (000) 000-0000; and
(d) if to the Canadian Administrative Agent, at its
address at 00 Xxxx Xxxxxx Xxxx, Xxxxx 0000, X.X. Xxx 00, TD Centre, Toronto,
Xxxxxxx X0X0X0, Attention: Credit/Legal, Facsimile No. (000) 000-0000,
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 five days after deposit in the mail and when transmitted by
telecopier, except that notices and communications to an Agent pursuant to
Article 2, 3 or 9 shall not be effective until received by such Agent.
Section 10.3 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
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Loan Document 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 10.4 Costs and Expenses.
(a) AGCO agrees to pay on demand all costs and expenses
of the Agents in connection with the preparation, execution, delivery,
administration, modification and amendment of the Loan Documents at any time
(including without limitation (A) all reasonable due diligence, syndication,
transportation, computer, duplication, IntraLinks, appraisal, audit, insurance
and consultant out-of-pocket fees and expenses and (B) the reasonable fees and
expenses of counsel (including without limitation New York, local and foreign
counsel) for the Agents with respect thereto, with respect to advising the
Agents 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).
(b) AGCO further agrees to pay on demand all costs and
expenses of each Agent, each Issuing Bank and each Lender in connection with the
enforcement of the Loan Documents against any Loan Party, whether in any action,
suit or litigation, any workout, 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 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.
(c) AGCO agrees to indemnify and hold harmless each
Agent, each Issuing Bank and each Lender and each of their Affiliates and their
officers, directors, trustees, employees, 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
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(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 Issuing
Bank, 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 Loans.
(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 or any Lender, in its sole
discretion.
Section 10.5 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 8.2 to authorize the Administrative
Agent to declare the Loans, all interest thereon and all other amounts payable
under this Agreement and the other Loan Documents due and payable pursuant to
the provisions of Section 8.2, 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 2.10, to offset 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,
irrespective of whether such Lender shall have made any demand under this
Agreement 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 10.6 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
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the prior written consent of each Lender. Section 12.5 shall also inure to the
benefit of each Subsidiary of AGCO referred to therein.
Section 10.7 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 Loans owing to it), and the Issuing Bank may
assign its Letter of Credit Commitment; provided that:
(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. $5,000,000 and shall be an integral multiple
of U.S. $500,000 in excess thereof, 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 Commitment (except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Canadian Lender or an assignment of
all of a Canadian Lender's rights and obligations under this Agreement), (A) the
amount of the Canadian Commitment of the assigning Canadian 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. $5,000,000 and shall be an integral multiple of U.S. $500,000 in
excess thereof, 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) in the case of each such assignment of a
ratable portion of the US Term Loan Facility (except in the case of an
assignment (x) to a Person that, immediately prior to such assignment, was a US
Term Loan Lender, (y) of all of a US Term Loan Lender's rights and obligations
under this Agreement or (z) to Affiliates of an
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existing US Term Loan Lender and Approved Funds), the amount of the portion of
the US Term Loan Facility of the assigning US Term Loan Facility 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. $1,000,000;
(v) in the case of each such assignment of a
ratable portion of the Euro Term Loan Facility (except in the case of an
assignment (x) to a Person that, immediately prior to such assignment, was a
Euro Term Loan Lender, (y) of all of a Euro Term Loan Lender's rights and
obligations under this Agreement or (z) to Affiliates of an existing Euro Term
Loan Lender and Approved Funds), the amount of the portion of the Euro Term Loan
Facility of the assigning Euro Term Loan 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 (euro)1,000,000;
(vi) such assignment shall be to an Eligible
Assignee; and
(vii) the proposed assignment (if other than an
assignment by a Lender to an Affiliate or Approved Fund of such Lender) shall be
approved by (x) the Administrative Agent, and (y) if no Default then exists,
AGCO; the foregoing approvals in each case not to be unreasonably withheld or
delayed; and
(viii) 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 Register, an Assignment and Acceptance, together
with a processing and recordation fee of U.S. $3,500, payable by the assignee to
the Administrative Agent (with only one such fee payable in connection with
contemporaneous assignments pursuant to the same Assignment and Acceptance to or
by two or more Approved Funds of a single Lender).
(b) Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such Assignment and
Acceptance:
(i) 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
(ii) 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).
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(c) 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 Sections 3.1 and 3.2 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;
(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 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;
(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; and
(viii) that the benefit of the security interests
and guarantees attached to the rights being assigned shall be transferred to the
benefit of the assignee upon the completion of such assignment.
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(d) The Administrative Agent shall maintain at its
address referred to in Section 10.2 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 Loans owing under
each Facility to 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 Facility.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee, the Administrative Agent shall,
if such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit A hereto:
(i) record the information contained therein in
the Register; and
(ii) give prompt notice thereof to the Borrowers.
(f) 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 and the Loans owing to 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) 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
(iv) 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 any principal due hereunder, or reduce the rate of interest or any fees
payable hereunder, in each case to the extent subject to such participation,
postpone any scheduled date for any payment of interest or fees hereunder or
extend the Maturity Date, in each case to the extent subject to such
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participation, except in accordance with the terms hereof or of any other Loan
Document; and
(v) no Participant under any such participation
shall have any greater benefits or rights than such Lender with respect to fees
or yield maintenance provisions of this Agreement.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.7, 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
labeled 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.
(h) 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
Loans owing to it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System and any
Lender that is a fund may pledge all or any portion of its rights under this
Agreement (including without limitation the Loans owing to it) to its trustee in
support of its obligations to its trustee.
Section 10.8 Marshalling; Payments Set Aside. None of the Agents,
any Lender or any Issuing Bank shall be under any obligation to marshal any
assets in favor of the Borrowers or any other party or against or in payment of
any or all of the Obligations. To the extent that a Borrower makes a payment or
payments to any Agent, the Lenders or the Issuing Banks or any of such Persons
receives payment from the proceeds of the Collateral or exercise their rights of
setoff, and such payment or payments or the proceeds of such enforcement or
setoff or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party, then to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied, and all Liens, right and
remedies therefor, shall be revived and continued in full force and effect as if
such payment had not been made or such enforcement or setoff had not occurred.
Section 10.9 Delivery of Lender Addenda. Each initial Lender shall
become a party to this Agreement on the Agreement Date by delivering to the
Administrative Agent a Lender Addendum duly executed by such Lender, AGCO, on
behalf of itself and the other Borrowers, and the Administrative Agent.
Section 10.10 Contribution Among Guarantors.
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(a) Each Guarantor shall be entitled to subrogation,
contribution and reimbursement rights from and against the other Guarantors to
the extent any Guarantor is required to pay to the Agents, the Lenders or the
Issuing Banks any amount in excess of the Allocable Amount (as defined in the
Contribution Agreement) of such Guarantor, as more fully set forth in the
Contribution Agreement; provided, however, that such subrogation and
contribution rights are and shall be subject to the terms and conditions of
paragraph (b) below.
(b) No Guarantor will exercise any such rights that it
may acquire by way of subrogation under any other Loan Document or at law by any
payment made under its Guaranty Agreement or otherwise, nor shall any Guarantor
seek or be entitled to seek any contribution or reimbursement from any other
Guarantor in respect of payments made by such Guarantor under its Guaranty
Agreement or under any other Loan Document, until all Obligations are paid in
full in cash and the Commitments are terminated. If any amounts shall be paid to
any Guarantor on account of such subrogation or contribution rights at any time
when all of the Obligations shall not have been paid in full, such amount shall
be held by such Guarantor in trust for the Agents, the Issuing Banks and the
Lenders, segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to the Administrative Agent in
the exact form received by such Guarantor (duly endorsed by such Guarantor to
the Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, as provided for herein.
ARTICLE 11.
INCREASED COSTS, TAXES, ETC.
Section 11.1 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 Agreement Date, 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 LIBO Rate Loans 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
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 Lender, a US Term Loan Lender or a Euro Term Loan 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
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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
Agreement Date, 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 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, a US Term Loan
Lender or a Euro Term Loan Lender or such Issuing Bank is a 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 LIBO Rate Loans in U.S.
Dollars or any Offshore Currency, Appropriate Lenders owed more than fifty
percent (50%) of the then outstanding aggregate unpaid principal amount thereof
notify the Administrative Agent, in the case of Multi-Currency Revolving Loans
or the Term Loans and otherwise the Canadian Administrative Agent that the LIBO
Rate for any Interest Period for such Loans in U.S. Dollars or any Offshore
Currency will not adequately reflect the cost to such Lenders of making, funding
or maintaining their LIBO Rate Loans 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 LIBO Rate Loan denominated in U.S. Dollars will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Loan;
(ii) if an Offshore Currency is the affected
currency, the affected Borrower shall, on the last day of the then existing
Interest Period, prepay in full such LIBO Rate Loans in the affected currency;
and
(iii) the obligation of the Appropriate Lenders to
make such LIBO Rate Loans 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
LIBOR Lending Office to perform its obligations hereunder to make LIBO Rate
Loans in U.S. Dollars or any Offshore Currency or to continue to fund or
maintain such LIBO Rate Loans 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 or a Term Loan Lender, and otherwise
through the Canadian Administrative Agent:
(i) the obligation of the Appropriate Lenders to
make LIBO Rate Loans 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 Revolving Loans in any such
Offshore Currency other than Canadian Dollars; and
(iii) each LIBO Rate Loan denominated in U.S.
Dollars or Canadian Dollars will automatically, upon such demand, Convert into a
Base Rate Loan, 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.
(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 LIBO Rate Loan 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 Loan and each
outstanding Bankers' Acceptance will
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automatically, on the last day of the then-existing Contract Period therefor,
Convert into a Base Rate Loan;
(ii) the Borrowers will, on the last day of the
then-existing Interest Period therefor, prepay each LIBO Rate Loan in an
Offshore Currency other than Canadian Dollars; and
(iii) the obligation of the Lenders to make LIBO
Rate Loans and accept Bankers' Acceptances shall be suspended.
(f) 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 within one hundred eighty (180) days,
after such Lender obtains actual knowledge thereof; provided that:
(i) if any Lender fails to give such notice
within one hundred eighty (180) days after it obtains actual knowledge of such
an event, such Lender shall, with respect to compensation 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 one hundred eighty (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 Loans 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 11.2 LIBO Breakage Costs. If any prepayment or payment (or
failure to prepay after the delivery of a notice of prepayment) of principal of,
or Conversion of, any LIBO Rate Loan is made by any Borrower to or for the
account of a Lender other than on the last day of the Interest Period for such
Loan, as a result of a payment or Conversion, acceleration of the maturity of
any of the Obligations pursuant to Section 8.2 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 Loan upon an assignment of rights and obligations under this Agreement
pursuant to Section 10.7, 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 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.
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Section 11.3 Judgment Currency.
(a) If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder 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. (Relevant Currency Time) 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
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 11.4 Taxes.
(a) Any and all payments by the Borrowers hereunder shall
be made, in accordance with Section 2.9, 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 taxes imposed or calculated by reference to net income 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 taxes imposed or calculated by reference to net income that
are imposed on such Lender by the state or province 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 to 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) such Lender or such Agent (as the case may be)
receives an
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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 from the execution, delivery or
registration of, or otherwise with respect to, this Agreement (hereinafter
referred to as "Other Taxes").
(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, paid by
or imposed on such Lender or such Agent (as the case may be), including without
limitation any taxes resulting from the purchase of a participation as required
by Section 2.15 following the occurrence of a Sharing Event, and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within thirty (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 thirty (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 10.2, the original
receipt of payment thereof or a certified copy of such receipt. In the case of
any payment hereunder 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 reasonably satisfactory 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
or a Term Loan Lender, and each
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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 or a Term Loan Lender, (w) if such Lender claims an exemption from
withholding tax pursuant to its portfolio interest exception, (A) a statement of
the Lender, signed under penalty of perjury, that it is not (I) a "bank" as
described in Section 881(c)(3)(A) of the Internal Revenue Code, (II) a ten
percent (10%) shareholder of any Borrower (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code), or (III) a controlled foreign
corporation related to any Borrower within the meaning of Section 864(d)(4) of
the Internal Revenue Code, and (B) a properly completed and executed IRS Form
W-8BEN, (x) if such Lender claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, properly completed and
executed IRS Form W-8BEN; (y) if such Lender claims that interest paid under
this Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such Lender, a
properly completed and executed copy of IRS Form W-8ECI; and (z) such other form
or forms as may be required under the Internal Revenue Code or other laws of the
United States as a condition to exemption from, or reduction of, United States
withholding tax, 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 valid and fully completed forms, as are 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. 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) 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 Agreement Date by Internal Revenue Service form W-8ECI or W-8BEN or other
form that the applicable Borrower has indicated in writing to the
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Lenders on the Agreement Date as being a required form to avoid or reduce
withholding tax on payments under this Agreement, 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) If any Lender claims exemption from, or reduction of,
withholding tax pursuant to subsection (e), and such Lender sells, assigns,
grants a participation in, or otherwise transfers all or part of the Obligations
of Borrowers to such Lender, such Lender agrees to notify the Administrative
Agent of the percentage amount in which it is no longer the beneficial owner of
Obligations of Borrowers to such Lender. To the extent of such percentage
amount, the Administrative Agent will treat such Lender's documentation as no
longer valid. If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Lender in an amount equivalent to the applicable withholding tax after
taking into account such reduction. If the forms or other documentation required
by subsection (e) of this Section are not delivered to the Administrative Agent,
then the Administrative Agent may withhold from any interest payment to such
Lender not providing such forms or other documentation an amount equivalent to
the applicable withholding tax. If the Internal Revenue Service or any other
Governmental Authority of the United States or other jurisdiction asserts a
claim that the Administrative Agent did not properly withhold tax from amounts
paid to or for the account of any Lender (because the appropriate form was not
delivered, was not properly executed, or because such Lender failed to notify
the Administrative Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other
reason) such Lender shall indemnify and hold the Administrative Agent harmless
for all amounts paid, directly or indirectly, by the Administrative Agent as tax
or otherwise, including penalties and interest, and including any taxes imposed
by any jurisdiction on the amounts payable to the Administrative Agent under
this Section, together with all costs and expenses (including attorneys fees and
expenses). The obligation of the Lenders under this subsection shall survive the
payment of all Obligations and the resignation or replacement of the
Administrative Agent.
(g) 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 an additional payment or 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.
(h) If a Borrower makes a payment under subsection (a) or
(c) of this Section 11.4 and the Appropriate Agent or Lender determines that a
credit against, relief
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or remission for, or repayment of any tax, is attributable to that payment or to
the Taxes which gave rise to that payment (a "Tax Credit"), and the Appropriate
Agent or Lender has obtained, utilized and retained that Tax Credit, the
Appropriate Agent or Lender shall pay the amount of the Tax Credit to the
Borrowers up to such amount as the Appropriate Agent or Lender determines will
leave it (after that payment) in no better and no worse after-tax position as it
would have been in had the payment under subsection (a) or (c) not been made by
the Borrowers.
(i) Without prejudice to the survival of any other
agreement of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in this Section 11.4 shall survive the payment in full of
principal and interest hereunder.
Section 11.5 Replacement of a Lender. Subject to the second and
third paragraphs of this Section 11.5, if:
(a) a Multi-Currency Lender requests compensation under
Section 11.1 or 11.4 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 Lender requests compensation under Section
11.1 or 11.4 and other Canadian Lenders holding Commitments equal to at least
one third of the Canadian Facility shall not have made a similar request;
(c) a US Term Loan Lender requests compensation under
Section 11.1 or 11.4 and other US Term Loan Lenders holding Commitments equal to
at least one-third of the US Term Loan Facility shall not have made a similar
request;
(d) a Euro Term Loan Lender requests compensation under
Section 11.1 or 11.4 and other Euro Term Loan Lenders holding Commitments equal
to at least one-third of the Euro Term Loan Facility shall not have made a
similar request;
(e) the obligation of a Lender to make LIBO Rate Loans or
to Convert Base Rate Loans into LIBO Rate Loans shall be suspended pursuant to
Section 11.1 (c) or (d) in circumstances in which such obligations of other
Lenders holding Commitments for any Tranche (other than the Canadian Facility)
equal to at least one third such Tranche shall not have been suspended; or
(f) a Lender becomes insolvent, goes into receivership or
fails to make any Loans 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 (and acceptable to the Administrative
Agent) to assume such Replaced Lender's Commitments hereunder and to purchase
any Loans by such Replaced Lender and such Replaced Lender's rights hereunder,
without recourse to or representation or
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warranty by, or expense to, such Replaced Lender, for a purchase price equal to
the outstanding principal amount of the Loans by such Replaced Lender, plus any
accrued but unpaid interest on such Loans 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 10.7(a)(vii)) and the payment to the Administrative Agent by AGCO on
behalf of such Replaced Lender of the assignment fee specified in Section
10.7(a)(viii), 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 11.1, 11.2,
11.3 and 11.4 with respect to events occurring or obligations arising before or
as a result of such replacement shall survive such replacement.
AGCO may not exercise its rights under this Section with
respect to any Lender (i) unless it 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.
ARTICLE 12.
JURISDICTION
Section 12.1 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;
(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;
(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 10.2; 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.
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Nothing in this Section 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 10.2.
Section 12.2 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, without
regard to the conflicts of law principles thereof.
Section 12.3 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 12.4 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:
(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;
(e) 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:
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(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 12.5 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
Outstandings shall exceed one hundred five percent (105%) of the Multi-Currency
Revolving Facility (the "Multi-Currency Excess Outstandings") and to the extent
that a Multi-Currency Borrower is not required on such date to prepay
Multi-Currency Revolving Loans in an aggregate principal amount equal to the
Multi-Currency Excess Outstandings pursuant to Section 2.5(b)(vii), 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 Agent shall
specify (the "Multi-Currency Borrower Cash Collateral Account"), an amount equal
to the Multi-Currency Excess Outstandings (net of any prepayment pursuant to
Section 2.5(b)(vii)). 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 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 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
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next-following Business Day), the Canadian Outstandings shall exceed one hundred
five percent (105%) of the Canadian Facility (the "Canadian Excess
Outstandings") and to the extent that the Canadian Subsidiary is not required on
such date to prepay Canadian Revolving Loans in an aggregate principal amount
equal to the Canadian Excess Outstandings pursuant to Section 2.5(b)(viii), 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 Excess
Outstandings (net of any prepayment pursuant to Section 2.5(b)(viii)). 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 Excess Outstandings, the Canadian
Administrative 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 Excess Outstandings as of the
date of and after giving effect to such reduction.
Section 12.6 Waiver of Jury Trial. EACH BORROWER, EACH AGENT, EACH
ISSUING BANK AND EACH LENDER 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 LOANS
OR THE ACTIONS OF EITHER AGENT, ANY ISSUING BANK OR ANY LENDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
ARTICLE 13.
CONFIDENTIALITY
The Agents and the Lenders each individually (and not jointly or
jointly and severally) agree that material, non-public information regarding
Borrowers and their Subsidiaries, their operations, assets, and existing and
contemplated business plans shall be treated by the Agents and the Lenders in a
confidential manner, and shall not be
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disclosed by the Agents and the Lenders to Persons who are not parties to this
Agreement, except: (a) to attorneys for and other advisors, accountants,
auditors, and consultants to any Lender of any Issuing Bank, (b) to Subsidiaries
and Affiliates of any Lender or any Issuing Bank, provided that any such
Subsidiary or Affiliate shall have agreed to receive such information hereunder
subject to the terms of this Article 13, (c) as may be required by statute,
decision or other judicial or administrative order, rule, or regulation, (d) as
may be agreed to in advance by Borrowers or their Subsidiaries or as requested
or required by any Governmental Authority pursuant to any subpoena or other
legal process, (e) as to any such information that is or becomes generally
available to the public (other than as a result of prohibited disclosure by the
Agents or the Lenders), (f) in connection with any assignment, prospective
assignment, sale, prospective sale, participation or prospective participations,
or pledge or prospective pledge of any Lender's interest under this Agreement,
provided that any such assignee, prospective assignee, purchaser, prospective
purchaser, participant, prospective participant, pledgee, or prospective pledgee
shall have agreed in writing to in writing to receive such information hereunder
subject to the terms of this Article, and (g) in connection with any litigation
or other adversary proceeding involving parties hereto which such litigation or
adversary proceeding involves claims related to the rights or duties of such
parties under this Agreement or the other Loan Documents. The provisions of this
Article 13 shall survive for two (2) years after the payment in full of the
Obligations. Anything contained herein or in any other Loan Document to the
contrary notwithstanding, the obligations of confidentiality contained herein
and therein, as they relate to the transactions contemplated hereby, shall not
apply to the federal tax structure or federal tax treatment of such
transactions, and each party hereto (and any employee, representative, or agent
of any party hereto) may disclose to any and all Persons, without limitation of
any kind, the federal tax structure and federal tax treatment of such
transactions (including all written materials related to such tax structure and
tax treatment). The preceding sentence is intended to cause the transactions
contemplated hereby to not be treated as having been offered under conditions of
confidentiality for purposes of Section 1.6011-4(b)(3) (or any successor
provision) of the Treasury Regulations promulgated under Section 6011 of the
Internal Revenue Code and shall be construed in a manner consistent with such
purpose. In addition, each party hereto acknowledges that it has no proprietary
or exclusive rights to the tax structure of the transactions contemplated hereby
or any tax matter or tax idea related thereto.
[SIGNATURE PAGES TO FOLLOW]
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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.
BORROWERS:
AGCO CORPORATION
By: __________________________
Title: _______________________
AGCO CANADA, LTD.
By: __________________________
Title: _______________________
AGCO LIMITED
By: __________________________
Title: _______________________
AGCO INTERNATIONAL LIMITED
By: __________________________
Title: _______________________
AGCO HOLDING B.V.
By: __________________________
Title: _______________________
Credit Agreement S-1
AGCO DEUTSCHLAND HOLDING
LIMITED & CO. KG
By: __________________________
Title: _______________________
VALTRA HOLDING OY
By: __________________________
Title: _______________________
Credit Agreement S-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:_________________________________________________
Title: _____________________________________________
By:_________________________________________________
Title: _____________________________________________
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND," CANADIAN
BRANCH, as Canadian Administrative Agent and
Canadian Issuing Bank
By:_________________________________________________
Title: _____________________________________________
By:_________________________________________________
Title: _____________________________________________
SUNTRUST BANK, as Co-Syndication Agent and
Swing Line Bank
By:_________________________________________________
Title: _____________________________________________
By:_________________________________________________
Title: _____________________________________________
Credit Agreement S-3
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Co-Syndication Agent
By:_________________________________________________
Title: _____________________________________________
By:_________________________________________________
Title: _____________________________________________
COBANK, ACB, as Co-Documentation Agent
By:_________________________________________________
Title: _____________________________________________
By:_________________________________________________
Title: _____________________________________________
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NY BRANCH, as Co-Documentation Agent
By:_________________________________________________
Title: _____________________________________________
By:_________________________________________________
Title: _____________________________________________
LENDERS: See each Lender Addendum attached hereto
Credit Agreement S-4
