EXHIBIT 10.2
AMENDMENT NO. 2
Dated as of April 14, 2004
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of January 27, 2000
THIS AMENDMENT NO. 2, dated as of April 14, 2004 (this
"Amendment"), is entered into by and among AGCO FUNDING CORPORATION, as seller
(the "Seller"), AGCO CORPORATION ("AGCO"), as servicer (in such capacity, the
"Servicer"), NIEUW AMSTERDAM RECEIVABLES CORPORATION ("Nieuw Amsterdam"), GOTHAM
FUNDING CORPORATION ("Gotham"), as a Committed Purchaser, BANK OF
TOKYO-MITSUBISHI TRUST COMPANY ("BTMT"), as an Administrator, and COOPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL", NEW YORK
BRANCH ("Rabobank International"), as a Committed Purchaser, as an Administrator
and as the Agent.
PRELIMINARY STATEMENTS
A. The Seller, the Servicer, Nieuw Amsterdam, Gotham,
BTMT and Rabobank International (as a Committed Purchaser, as an Administrator
and as the Agent) are parties to that certain Receivables Purchase Agreement,
dated as of January 27, 2000 (as amended prior to the date hereof, the
"Receivables Purchase Agreement"). Capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to them in the Receivables
Purchase Agreement.
B. The parties hereto have agreed to amend the
Receivables Purchase Agreement on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises set forth
above, and other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments. Subject to the
satisfaction of the conditions precedent set forth in Section 2 below, the
Receivables Purchase Agreement is hereby amended as follows:
1.01. The definition "Credit Enhancement" in Section 1.01 is
hereby amended to read in its entirety as follows:
"Credit Enhancement" means, as of any date of
determination, the product of (a) the Net Eligible Receivables
Balance, times (b) the greater of (i) the Dynamic Reserve
Percentage and (ii) the percentage set forth
below opposite the long-term senior unsecured debt rating of AGCO as of such
date (determined based on the lower of the ratings assigned by Xxxxx' or S&P).
Xxxxx'x S&P Percentage
------------------------------- --------------------- ----------
Ba3 or higher BB- or higher 14%
B1 B+ 17%
B2 B 25%
B3 or lower or rating withdrawn B- or lower or rating 35%
withdrawn
Notwithstanding anything contained herein to the contrary, if
the average of the Payment Rates for the six most recently
ended calendar months shall be less than 10.5% and the
long-term senior unsecured debt rating of AGCO as of such date
(determined based on the lower of the ratings assigned by
Xxxxx' or S&P) is Ba3 or higher by Xxxxx'x and BB- or higher
by S&P, the percentage determined by clause (ii) above shall
be deemed to be 15%.
1.02. Paragraphs (k) and (l) of the definition "Eligible
Receivable" in Section 1.01 are hereby amended to read in their entirety as
follows:
(k) such Dealer Receivable is required to be paid in
full within twenty-four (24) months of the date such Dealer
Receivable arises,
(l) the Dealer Agreement under which such Dealer
Receivable arises provides for interest to accrue on the
Outstanding Balance of such Dealer Receivables prior to its
final due date at a rate per annum equal to or greater than
the rate of interest published in the New York edition of The
Wall Street Journal as the prime rate (or, if such rate is not
so published, the rate of interest publicly announced by the
Agent as its prime or reference rate) plus 2%; provided, that
Dealer Receivables which satisfy all criteria in this
definition other than this paragraph (l) may be treated as
Eligible Receivables hereunder so long as the aggregate
outstanding Balance of such Dealer Receivables does not exceed
20% of the aggregate Outstanding Balance of all Dealer
Receivables;
1.03. The definition "Eligible Receivable" is hereby amended
by deleting the word "and" at the end of paragraph (r), relettering paragraph
(s) as paragraph (t) and inserting a new paragraph (s) as follows:
(s) the Obligor of such Receivable does not have
Defaulted Receivables that in the aggregate exceed 35% of the
Outstanding Balance of all Receivables due from such Obligor,
and
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1.04. The definition "Maximum Program Amount" is hereby
amended to read in its entirety as follows:
"Maximum Program Amount" means $280,000,000.
1.05. The definition "Termination Date" in Section 1.01 is
hereby amended by deleting the date "January 27, 2005" contained therein and
substituting in replacement thereof the date "April 8, 2009".
1.06. Section 6.02 is hereby amended by inserting "; and"
immediately after the words "Section 8.05" contained therein.
1.07. Clause (ii) of the first sentence of Section 8.05 is
hereby amended by inserting the words "if the long-term senior unsecured debt
rating of AGCO is lower than Ba3 or withdrawn by Xxxxx'x or lower than BB- or
withdrawn by S&P," immediately prior to the words "on Tuesday" contained
therein.
1.08. Paragraph (g) of Section 8.07 is hereby amended in its
entirety to read as follows:
(g) [Intentionally Omitted];
1.09. Paragraph (h) of Section 9.01 is hereby amended by
deleting the percentage "4.0%" in clause (x) thereof and substituting in
replacement thereof the percentage "5.0%".
SECTION 2. Condition Precedent. This Amendment shall become
effective as of the date (the "Effective Date") on which (i) the Agent and the
Administrators shall have received a copy of this Amendment duly executed by
each of the parties hereto and (ii) payment has been made of all fees required
to be paid pursuant to any fee letters entered into in connection with the
transactions contemplated by this Amendment.
SECTION 3. Covenants, Representations and Warranties of the
Seller.
3.01. Upon the effectiveness of this Amendment, (i) each of
the Seller and the Servicer hereby reaffirms all covenants, representations and
warranties made by it in the Receivables Purchase Agreement, as further amended
by this Amendment, and agrees that all such covenants, representations and
warranties shall be deemed to have been remade as of the Effective Date and (ii)
AGCO hereby reaffirms all covenants, representations and warranties made by it
in the Originator Sale Agreement and agrees that all such covenants,
representations and warranties shall be deemed to have been remade as of the
Effective Date.
3.02. Each of the Seller and the Servicer hereby represents
and warrants that (i) this Amendment constitutes the legal, valid and binding
obligation of such party, enforceable against such party in accordance with its
terms except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws
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relating to or limiting creditors' rights generally and by general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and (ii) upon the effectiveness of this Amendment, no event or
circumstance has occurred and is continuing which constitutes an Early
Amortization Event or which, with the giving of notice of the lapse of time, or
both, would constitute an Early Amortization Event.
SECTION 4. Reference to and Effect on the Receivables Purchase
Agreement.
4.01. Upon the effectiveness of this Amendment, (i) the
Commitment of Gotham under the Receivables Purchase Agreement will be equal to
$140,000,000 and (ii) the Commitment of Rabobank International under the
Receivables Purchase Agreement will be equal to $140,000,000. The parties hereto
agree that the signature pages to the Receivables Purchase Agreement will be
deemed amended to reflect the arrangement described in this Section 4.01.
4.02. Upon the effectiveness of this Amendment, each reference
in the Receivables Purchase Agreement to "this Agreement," "hereunder,"
"hereof," "herein," "hereby" or words of like import shall mean and be a
reference to the Receivables Purchase Agreement as amended hereby, and each
reference to the Receivables Purchase Agreement in any other document,
instrument and agreement executed and/or delivered in connection with the
Receivables Purchase Agreement shall mean and be a reference to the Receivables
Purchase Agreement as amended hereby.
4.03. Except as specifically amended hereby, the Receivables
Purchase Agreement, the other Transaction Documents and all other documents,
instruments and agreements executed and/or delivered in connection therewith
shall remain in full force and effect and are hereby ratified and confirmed.
4.04. Except as expressly provided herein, the execution,
delivery and effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of any Purchaser, any Administrator or the Agent
under the Receivables Purchase Agreement, the Transaction Documents or any other
document, instrument, or agreement executed in connection therewith, nor
constitute a waiver of any provision contained therein.
SECTION 5. Costs and Expenses. The Seller shall pay to the
Agent, each Administrator and each Purchaser on demand all reasonable costs and
out-of-pocket expenses in connection with the preparation, execution, delivery
and administration of this Amendment, the transactions contemplated hereby and
the other documents to be delivered hereunder, including without limitation, (i)
rating agency fees incurred by any Administrator or any Conduit Purchaser in
connection with the transactions contemplated hereby, and (ii) reasonable fees
and out-of-pocket expenses of legal counsel for the Agent, each Administrator
and each Purchaser with respect thereto.
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SECTION 6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (AND NOT THE LAW OF
CONFLICTS) OF THE STATE OF NEW YORK.
SECTION 7. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument. Delivery of a signature page hereto by facsimile
shall be deemed as effective as delivery of an original executed signature page
hereto.
SECTION 8. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first written above.
AGCO FUNDING CORPORATION
By: -s- Xxxxx X Xxxxxxxx
-------------------------------
Name: XXXXX X XXXXXXXX
Title: VP-TREASURER
AGCO CORPORATION
By: -s- Xxxxx X Xxxxxxxx
-------------------------------
Name: XXXXX X XXXXXXXX
Title: VP-TREASURER
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as an Administrator
By: -s- Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
GOTHAM FUNDING CORPORATION, as a Conduit
Purchaser and as a Committed Purchaser
By: -s- Xxxxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Secretary
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
as a Committed Purchaser, as an
Administrator and as the Agent
By: -s- Xxxxx Xxx
--------------------------------
Name: Xxxxx Xxx
Title: Vice President
By: -s- Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Director
X-0
XXXXX XXXXXXXXX RECEIVABLES
CORPORATION, as a Conduit Purchaser
By: -s- Xxxx Xxxx
---------------------------------
Name: Xxxx Xxxx
Title: Vice President
S-2
