EXHIBIT 10.18
WAIVER AND AMENDMENT NO. 1
TO
THIRD AMENDED AND RESTATED
LONG TERM REVOLVING CREDIT AGREEMENT
AND
SHORT TERM REVOLVING CREDIT AGREEMENT
This WAIVER AND AMENDMENT NO. 1, dated as of December 22, 1999 (the
"Amendment"), to each of (i) the SHORT TERM REVOLVING CREDIT AGREEMENT, dated as
of June 4, 1999 (the "Short Term Credit Agreement"), by and among Ag-Chem
Equipment Co., Inc. (the "Borrower"), the institutions from time to time party
thereto as lenders (the "Short Term Lenders"), and Bank One, NA (formerly known
as The First National Bank of Chicago), as Agent (the "Agent") and (ii) the
THIRD AMENDED AND RESTATED LONG TERM REVOLVING CREDIT AGREEMENT, dated as of
June 4, 1999 (the "Long Term Credit Agreement", and together with the Short Term
Credit Agreement, the "Credit Agreements"), by and among the Borrower, certain
subsidiaries of the Borrower (the "Multicurrency Subsidiary Borrowers"), the
Short Term Lenders and Bank One Canada, formerly known as First Chicago NBD
Bank, Canada, as the lenders thereunder (the "Long Term Lenders"), and the
Agent, is entered into by each of the parties to the Credit Agreements.
Capitalized terms used herein and not otherwise defined herein shall have the
meaning given to them in the Credit Agreements.
WITNESSETH
WHEREAS, the Borrower, the Short Term Lenders and the Agent are parties
to the Short Term Credit Agreement and, together with the Multicurrency
Subsidiary Borrowers and Bank One Canada, are parties to the Long Term Credit
Agreement;
WHEREAS, the Borrower and the Multicurrency Subsidiary Borrowers have
requested that the Short Term Lenders and the Long Term Lenders (together, the
"Lenders") and the Agent provide a limited waiver under each of the Credit
Agreements with respect to the financial covenant set forth in Section 5.2(c) of
each of the Credit Agreements;
WHEREAS, each of the Borrower and each of the Multicurrency Subsidiary
Borrowers also wishes to amend the Credit Agreements to which it is a party in
certain respects;
WHEREAS, the Lenders and the Agent are willing to provide such limited
waivers and amend the Credit Agreements on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrower, the Multicurrency Subsidiary Borrowers, the Agent and the Lenders
hereby agree as follows:
1. Limited Waiver. Effective as of the date hereof, as expressly
limited hereby and subject to the satisfaction of the condition precedent set
forth in Section 3 below, the Lenders and the Agent hereby agree to waive the
requirements, as existed immediately prior to the effectiveness of this
Amendment, of Section 5.2(c) of each of the Credit Agreements with respect to
the fiscal quarter ended September 30, 1999.
2. Amendment. Effective as of the date first above written and subject
to the satisfaction of the condition precedent set forth in Section 3 below, the
Credit Agreement shall be and hereby is amended as follows:
(a) The definition of "Applicable Margin" set forth in Section
1.1 of the Short Term Credit Agreement is hereby amended to delete
therefrom the phrase "Eurodollar Rate Margin" and to substitute
therefor the phrase "Eurodollar Margin".
(b) The definition of "Floating Rate Margin" set forth in
Section l.1 of each of the Credit Agreements is hereby amended to
delete therefrom the percentage "1.25%" and to substitute therefor the
percentage "1.50%".
(c) The definition of "National Currency Margin and LIBOR Rate
Margin" set forth in Section 1.1 of the Long Term Credit Agreement is
hereby amended to delete therefrom the percentage "2.50%" and to
substitute therefor the percentage "2.75%".
(d) The definition of "Eurodollar Margin" set forth in Section
1.1 of the Short Term Credit Agreement is hereby amended to delete
therefrom the percentage "2.50%" and to substitute therefor the
percentage "2.75%".
(e) Section 5.2(c) of the Long Term Credit Agreement is hereby
amended in its entirety as follows:
"Interest Coverage Ratio. Permit or suffer the Interest
Coverage Ratio to be less than: (i) 1.35 to 1.00 for period
beginning with the fiscal quarter ending December 31, 1999 and
ending with the fiscal quarter ending December 31, 2000, (ii)
1.50 to 1.00 for the period beginning with the fiscal quarter
ending March 31, 2001 and ending with the fiscal quarter
ending December 31, 2001, and (iii) 2.25 to 1.00 for the
period beginning with the fiscal quarter ending March 31, 2002
and ending on the Termination Date. "
(f) Section 5.2(c) of the Short Term Credit Agreement is
hereby amended in its entirety as follows:
"Interest Coverage Ratio. Permit or suffer to permit the
Interest Coverage Ratio to be less than 1.35 to 1.00 for the
period beginning with the fiscal quarter ending December 31,
1999 and ending on the Termination Date."
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(g) Schedule A to the Long Term Credit Agreement is hereby
deleted therefrom and Schedule A attached hereto as Exhibit 1 is hereby
substituted therefor.
(h) Schedule A to the Short Term Credit Agreement is hereby
deleted therefrom and Schedule A attached hereto as Exhibit 2 is hereby
substituted therefor.
3. Conditions of Effectiveness. This Amendment shall become effective
and be deemed effective as of the date hereof, if, and only if, the Agent shall
have received four (4) duly executed originals of this Amendment from the
Borrower, the Multicurrency Subsidiary Borrowers and the Required Lenders.
4. Representations and Warranties of the Borrower and the Multicurrency
Subsidiary Borrowers. Each of the Borrower and each Multicurrency Subsidiary
Borrower hereby represents and warrants as follows:
(a) Each of the Credit Agreements to which each of the
Borrower and each Multicurrency Subsidiary Borrower is a party as
previously executed constitutes the legal, valid and binding obligation
of the Borrower and each Multicurrency Subsidiary Borrower and is
enforceable against the Borrower and each Multicurrency Subsidiary
Borrower in accordance with its terms.
(b) Upon the effectiveness of this Amendment, each of the
Borrower and each Multicurrency Subsidiary Borrower hereby (i)
represents that no Default or Event of Default exists under the terms
of the Credit Agreements to which it is a party, (ii) reaffirms all
covenants, representations and warranties made in the Credit Agreements
to which it is a party, and (iii) agrees that all such covenants,
representations and warranties shall be deemed to have been remade as
of the effective date of this Amendment.
5. Effect on the Credit Agreement.
(a) Upon the effectiveness of this Amendment, on and after the
date hereof, each reference in each Credit Agreement to "this
Agreement," "hereunder," "hereof," "herein" or words of like import
shall mean and be a reference to such Credit Agreement, as amended
hereby.
(b) Except as specifically amended above, the Credit
Agreements 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.
(c) The execution, delivery and effectiveness of this
Amendment shall neither, except as expressly provided herein, operate
as a waiver of any right, power or remedy of the Lenders or the Agent,
nor constitute a waiver of any provision of either Credit Agreement or
any other documents, instruments and agreements executed and/or
delivered in connection therewith.
6. Costs and Expenses. The Borrower agrees to pay all reasonable costs,
fees and out-of-pocket expenses (including attorneys' fees and expenses charged
to the Agent) incurred by
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the Agent and the Lenders in connection with the preparation, arrangement,
execution and enforcement of this Amendment.
7. GOVERNING, LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, SECTION 735
ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.
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.
9. Counterparts. This Amendment may be executed by one or more of the
parties to the Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
10. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Amendment. In the event an
ambiguity or question of intent or interpretation arises, this Amendment shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Amendment.
The remainder of this page is intentionally blank.
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IN WITNESS WHEREOF, this Waiver and Amendment No. 1 executed as of the
day and year first above written.
AG-CHEM EQUIPMENT CO., INC., as the AG-CHEM EUROPE, B.V., as a Multicurrency
Borrower Subsidiary Borrower.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------- -------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President Title: Senior Vice President
AG-CHEM EQUIPMENT CANADA, LTD., as BANK ONE, NA, (formerly known as The
a Multicurrency Subsidiary Borrower First National Bank of Chicago), as a
Lender and as Agent under the Credit
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Agreements
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President -------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
COOPERATIEVE CENTRALE RAIFFEISEN- Title: First Vice President
BOERENLEENBANK B. A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH, ▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as a
as a Lender under the Credit Lender under the Credit Agreements
Agreements
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. LEVASSURE -------------------------------
------------------------------- Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. Levassure Title: Managing Director
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BANK ONE CANADA, formerly known as
First Chicago NBD Bank, Canada, as a
Lender under the Long Term Credit
Agreement
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: First Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
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Signature Page to Waiver and Amendment No 1
EXHIBIT 1
TO
WAIVER AND AMENDMENT NO. 1
SCHEDULE A
to the
Loan Term Credit Agreement
Pricing and Fee Schedule
--------------------------------------------------------------------------------------------
Funded Debt to National Currency Floating Rate Margin Applicable Fee Rate
EBITDA Margin and LIBOR
Rate Margin
--------------------------------------------------------------------------------------------
Greater than 4.5 2.75% 1.50% 0.50%
--------------------------------------------------------------------------------------------
Greater than 4.0 but 2.50% 1.25% 0.50%
less than or equal to
4.5
--------------------------------------------------------------------------------------------
Greater than 3.5 but 2.25% 1.00% 0.50%
less than or equal to
4.0
--------------------------------------------------------------------------------------------
Greater than 3.0 but 2.05% 0.80% 0.45%
less than or equal to
3.5
--------------------------------------------------------------------------------------------
Greater than 2.5 but 1.625% 0.375% 0.375%
less than or equal to
3.0
--------------------------------------------------------------------------------------------
Less or equal to 2.5 1.20% 0% 0.25%
--------------------------------------------------------------------------------------------
EXHIBIT 2
TO
WAIVER AND AMENDMENT NO. 1
SCHEDULE A
to the
Short Term Credit Agreement
Pricing and Fee Schedule
-------------------------------------------------------------------------------------------
Funded Debt to Eurodollar Margin Floating Rate Margin Applicable Fee Rate
EBITDA
-------------------------------------------------------------------------------------------
Greater than 4.5 2.75% 1.50% 0.45%
-------------------------------------------------------------------------------------------
Greater than 4.0 but 2.50% 1.25% 0.45%
less than or equal to
4.5
-------------------------------------------------------------------------------------------
Greater than 3.5 but 2.25% 1.00% 0.45%
less than or equal to
4.0
-------------------------------------------------------------------------------------------
Greater than 3.0 but 2.05% 0.80% 0.40%
less than or equal to
3.5
-------------------------------------------------------------------------------------------
Greater than 2.5 but 1.625% 0.375% 0.325%
less than or equal to
3.0
-------------------------------------------------------------------------------------------
Less or equal to 2.5 1.20% 0% 0.20%
-------------------------------------------------------------------------------------------