EXHIBIT 10.1
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as of
July 16, 2003, by and among AGCO CORPORATION, a Delaware corporation ("AGCO"),
the Subsidiaries of AGCO signatory hereto (together with AGCO, each referred to
herein collectively as the "Borrowers" and individually as a "Borrower"); the
banks, financial institutions and other institutional lenders party to the
Credit Agreement (as defined below) (the "Lenders"); COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", CANADIAN BRANCH, as
Canadian administrative agent for the Canadian Facility Lenders (the "Canadian
Administrative Agent"), and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as administrative agent for the
Lenders (the "Administrative Agent");
W I T N E S S E T H:
WHEREAS, the Borrowers, the Administrative Agent, the Canadian
Administrative Agent and the Lenders are parties to that certain Credit
Agreement dated as of April 17, 2001 (as amended, restated, supplemented or
modified from time to time, the "Credit Agreement"); and
WHEREAS, the Borrowers have requested that certain terms and conditions
of the Credit Agreement be amended, and the Lenders, the Canadian Administrative
Agent and the Administrative Agent have agreed to the requested amendments on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree that
all capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Credit Agreement, and further agree as follows:
SECTION 1. Amendments to Section 1.1.
(a) Section 1.1 of the Credit Agreement, Certain Defined Terms, is
hereby amended by deleting the existing definition of "Applicable Margin" set
forth therein in the entirety and inserting the following in lieu thereof:
""Applicable Margin" means, as of any date of determination,
the applicable percentage indicated below which corresponds to the
Senior Debt Ratio of AGCO indicated below:
Applicable Margin for Applicable Margin for Applicable Margin
Senior Debt Ratio LIBO Rate Advances Base Rate Advances for Unused Fee
----------------- ------------------ ------------------ -----------------
Greater than or 3.00% 1.50% 0.50%
equal to 2.75 to
1.00
Greater than or 2.75% 1.50% 0.50%
equal to 2.50 to
1.00 but less
than 2.75 to 1.00
Greater than or 2.50% 1.25% 0.50%
equal to 2.00 to
1.00 but less
than 2.50 to 1.00
Greater than or 2.25% 1.00% 0.45%
equal to 1.50 to
1.00 but less
than 2.00 to 1.00
Less than 1.50 to 1.875% 0.625% 0.40%
1.00
The Applicable Margin for each Advance 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 (a) no change in the
Applicable Margin shall be effective until three 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 (b) the Applicable Margin shall
be the highest interest rate margin set forth above with respect to the
applicable Advances and Unused Fee, respectively, (i) if AGCO has not
submitted to the Administrative Agent the information described in
clause (a) of this proviso as and when required under Section 6.1(b) or
(c),
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as the case may be, for so long as such information has not been
received by the Administrative Agent, and (ii) at the election of the
Administrative Agent or the Required Lenders, upon the occurrence and
during the continuation of any Event of Default (whether or not the
Default Rate of interest shall then be in effect)."
(b) Section 1.1 of the Credit Agreement, Certain Defined Terms, is
hereby further amended by inserting the following definition of "Coventry
Pension Litigation" set forth below in appropriate alphabetical order therein:
""Coventry Pension Litigation" means that certain litigation
among AGCO and representatives of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Works Pension Trust
Limited relating to AGCO Limited's pension plan for its employees at its
Coventry, England manufacturing facility, being known as Case No. HC02C02865
pending in the High Court of Justice - Chancery Division."
SECTION 2. Amendments to Section 7.7. Section 7.7 of the Credit
Agreement, Sales of Assets, is hereby amended by deleting paragraphs (b) and (d)
thereof in the entirety and inserting the following, respectively, in lieu of
such paragraphs (b) and (d):
"(b) sales of (i) the Closed Facilities, and (ii) the
manufacturing facilities located in Coventry, England, DeKalb, Illinois
and Kempten, Germany (including the Real Property on which such
facilities are located and all buildings and improvements thereon);
(d) 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. $450,000,000;"
SECTION 3. Amendments to Section 7.19. Section 7.19 of the Credit
Agreement, Financial Covenants, is hereby amended by deleting paragraphs (a),
(b) and (d) thereof in the entirety and inserting the following, respectively,
in lieu of such paragraphs (a), (b) and (d):
"(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:
Fiscal Quarters Ending: Ratio:
----------------------- ------
June 30, 2001 6.00 to 1.00
September 30, 2001 5.90 to 1.00
December 31, 2001 5.60 to 1.00
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March 31, 2002 5.25 to 1.00
June 30, 2002 5.00 to 1.00
September 30, 2002 4.75 to 1.00
December 31, 2002, through March 31, 2003 4.75 to 1.00
June 30, 2003, through September 30, 2003 5.25 to 1.00
December 31, 2003 4.75 to 1.00
March 31, 2004, through June 30, 2004 4.50 to 1.00
September 30, 2004 4.25 to 1.00
December 31, 2004 4.00 to 1.00
March 31, 2005, and thereafter 3.50 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:
----------------------- ------
June 30, 2001 3.25 to 1.00
September 30, 2001 3.25 to 1.00
December 31, 2001 3.00 to 1.00
March 31, 2002, through June 30, 2002 2.75 to 1.00
September 30, 2002 2.50 to 1.00
December 31, 2002, through March 31, 2003 2.75 to 1.00
June 30, 2003, through September 30, 2003 3.25 to 1.00
December 31, 2003 3.00 to 1.00
March 31, 2004 2.75 to 1.00
June 30, 2004, through December 31, 2004 2.50 to 1.00
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March 31, 2005, and thereafter 2.25 to 1.00
(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 (i) the sum of (x) eighty-five percent (85%)
of Consolidated Tangible Net Worth as of March 31, 2001 (adjusted to
give pro forma effect to the Merger), plus (y) fifty percent (50%) of
Consolidated Net Income (to the extent positive) for the fiscal quarter
ending June 30, 2001, and each fiscal quarter thereafter on a
cumulative basis, minus (ii) the amount of any increase in AGCO's
pension plan liabilities after June 30, 2003, arising as a result of
the Coventry Pension Litigation, in an aggregate amount not exceeding
$70,000,000."
SECTION 4. Representations and Warranties. Each of AGCO and the other
Borrowers represents and warrants as follows:
(a) The execution, delivery and performance by each Borrower of this
Amendment and the other transactions contemplated hereby, are within such
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Borrower's charter or by-laws;
(ii) violate any Applicable Law (including, without limitation, to the extent
applicable, the Securities Exchange Act of 1934, the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of 1970 and any
similar statute); (iii) conflict with or result in the breach of, or constitute
a default under, any contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument binding on or affecting any Borrower, any of
its Subsidiaries or any of their properties (including the Material Contracts,
the Senior Note Documents and the Subordinated Note Documents); or (iv) except
for the Liens created under the Security Documents, result in or require the
creation or imposition of any Lien upon or with respect to any of the properties
of any Borrower or any of its Subsidiaries;
(b) No authorization or approval or other action by, and no notice to
or filing with, any Governmental Authority or regulatory body or any other third
party is required for the due execution, delivery, recordation, filing or
performance by any Borrower of this Amendment and each other Loan Document
contemplated hereby to which it is or is to be a party, or for the consummation
of the transactions contemplated hereby;
(c) This Amendment and each other document required to be delivered by
a Borrower hereunder has been duly executed and delivered by each Borrower
thereto, and constitutes the legal, valid and binding obligation of each
Borrower thereto, enforceable against such Borrower in accordance with its
terms;
(d) The representations and warranties contained in Article 4 of the
Credit Agreement, and in each of the other Loan Documents, are true and correct
on and as of
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the date hereof as though made on and as of such date, other than any such
representations and warranties that, by their terms, expressly refer to an
earlier date; and
(e) No event has occurred and is continuing which constitutes an Event
of Default or would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
SECTION 5. Conditions Precedent to Effectiveness of this Amendment.
This Amendment shall be effective as of the date first set forth above when the
Administrative Agent shall have received, in form and substance satisfactory to
it, each of the following:
(a) this Amendment, duly executed by the Borrowers, the Canadian
Administrative Agent, the Administrative Agent and the Required Lenders;
(b) an amendment fee for the account of each Lender that delivered to
the Administrative Agent prior to 5:00 p.m. (New York City time) on July 16,
2003, such Lender's executed signature page to this Amendment, in an amount
equal to fifteen (15) basis points of each such Lender's Commitment; and
(c) the payment of such other fees, and the delivery of such other
documents, instruments, and information, as the Administrative Agent may
reasonably request.
SECTION 6. Reference to and Effect on the Credit Agreement. Upon the
effectiveness of this Amendment as set forth in Section 5 hereof, on and after
the date hereof, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import shall mean and be a
reference to the Credit Agreement as amended hereby, and each reference in the
Notes and the other Loan Documents to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended hereby.
SECTION 7. Costs, Expenses and Taxes. The Borrowers agree, jointly and
severally, to pay on demand all costs and expenses of the Administrative Agent
in connection with the preparation, execution and delivery of this Amendment and
the other instruments and documents to be delivered hereunder (including,
without limitation, the fees and expenses of counsel for the Administrative
Agent with respect thereto).
SECTION 8. No Other Amendments. Except as otherwise expressed herein,
the execution, delivery and effectiveness of this Amendment shall not operate as
a waiver of any right, power or remedy of the Agents or the Lenders under the
Credit Agreement, or any of the other Loan Documents, nor constitute a waiver of
any provision of the Credit Agreement or any of the other Loan Documents. Except
for the amendment set forth above, the text of the Credit Agreement and all
other Loan Documents shall remain unchanged and in full force and effect and the
Borrowers hereby ratify and confirm their respective obligations thereunder.
This Amendment shall not constitute a modification of
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the Credit Agreement or a course of dealing with the Administrative Agent at
variance with the Credit Agreement such as to require further notice by the
Administrative Agent to require strict compliance with the terms of the Credit
Agreement and the other Loan Documents in the future, except as expressly set
forth herein. The Borrowers acknowledge and expressly agree that the Agents and
the Lenders reserve the right to, and do in fact, require strict compliance with
all terms and provisions of the Credit Agreement and the other Loan Documents
(in each case as amended hereby).
SECTION 9. Execution in Counterparts. This Amendment may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed to be an original and all of which taken together shall constitute but
one and the same instrument. Delivery of a signature page hereto by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 10. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws (without giving effect to the conflicts
of laws principles thereof) of the State of New York.
SECTION 11. Final Agreement. This Amendment represents the final
agreement between the Borrowers, the Administrative Agent, the Canadian
Administrative Agent and the Lenders as to the subject matter hereof and may not
be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the
parties. The Amendment shall constitute a Loan Document for all purposes.
[The remainder of the page is intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWERS: AGCO CORPORATION
By:
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Title:
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AG-CHEM EQUIPMENT CO., INC.
(f/k/a Agri Acquisition Corp.)
By:
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Title:
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AGCO LIMITED
By:
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Title:
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AGCO S.A.
By:
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Title:
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AGCO INTERNATIONAL LIMITED
By:
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Title:
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Third Amendment to Credit Agreement
Signature Page 1
AGCO HOLDING B.V.
By:
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Title:
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AGCO VERTRIEBS GMBH
By:
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Title:
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AGCO GMBH & CO.
By:
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Title:
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By:
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Title:
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AGCO CANADA, LTD.
By:
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Title:
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Third Amendment to Credit Agreement
Signature Page 2
AGENTS AND LENDERS: COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND," NEW YORK BRANCH, as
Administrative Agent, a Lender and
Multi-Currency Issuing Bank
By:
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Title:
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By:
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Title:
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COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND," CANADIAN BRANCH, as Canadian
Administrative Agent, a Canadian Facility
Lender and Canadian Issuing Bank
By:
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Title:
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By:
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Title:
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Third Amendment to Credit Agreement
Signature Page 3
CREDIT SUISSE FIRST BOSTON
By:
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Title:
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By:
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Title:
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SUNTRUST BANK
By:
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Title:
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COBANK, ACB
By:
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Title:
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BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC.
By:
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Title:
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HSBC BANK USA
By:
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Title:
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Third Amendment to Credit Agreement
Signature Page 4
NATEXIS BANQUES POPULAIRES
By:
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Title:
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By:
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Title:
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U.S. BANK NATIONAL ASSOCIATION
By:
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Title:
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BANK OF TOKYO-MITSUBISHI, LTD
By:
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Title:
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CREDIT INDUSTRIEL ET COMMERCIAL
By:
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Title:
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Third Amendment to Credit Agreement
Signature Page 5
GENERAL ELECTRIC CAPITAL CORPORATION
By:
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Title:
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AGFIRST FARM CREDIT BANK,
as a General Syndication Participant
By:
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Title:
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FARM CREDIT SERVICES OF AMERICA, PCA,
as a General Syndication Participant
By:
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Title:
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Third Amendment to Credit Agreement
Signature Page 6
