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EXHIBIT 10.14
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of March 12, 1999
among
AGCO CORPORATION
and
CERTAIN SUBSIDIARIES NAMED HEREIN,
Borrowers,
THE LENDERS NAMED HEREIN,
Lenders,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
SUNTRUST BANK, ATLANTA
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Co-Managers,
DEUTSCHE BANK CANADA,
as Canadian Administrative Agent,
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
as Administrative Agent
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COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH,
SUNTRUST CAPITAL MARKETS, INC.
and
DEUTSCHE BANK SECURITIES INC.,
as Syndication Agents
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TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms....................................................................................2
1.02. Computation of Time Periods.............................................................................36
1.03. Accounting Terms........................................................................................36
1.04. Currency Equivalents....................................................................................37
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
2.01. The Advances............................................................................................37
2.02. Making the Advances.....................................................................................39
2.03. Repayment...............................................................................................43
2.04. Reduction of the Commitments............................................................................43
2.05. Prepayments and Deposits................................................................................46
2.06. Interest................................................................................................49
2.07. Fees....................................................................................................50
2.09. Increased Costs, Etc....................................................................................53
2.10. Payments and Computations...............................................................................57
2.11. Taxes...................................................................................................59
2.12. Sharing of Payments, Etc................................................................................61
2.13. Letters of Credit.......................................................................................62
2.14. Use of Proceeds.........................................................................................69
2.15. Replacement of a Bank...................................................................................69
ARTICLE III
CONDITIONS OF LENDING
3.01. Conditions Precedent to Initial Borrowing...............................................................73
3.02. Conditions Precedent to Each Borrowing and Issuance.....................................................77
3.03. Determinations Under Section 3.01.......................................................................77
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrowers.........................................................78
ARTICLE V
COVENANTS OF AGCO
5.01. Affirmative Covenants...................................................................................84
5.02. Negative Covenants......................................................................................88
5.03. Reporting Requirements.................................................................................102
5.04. Financial Covenants....................................................................................106
5.05. Covenants of the Borrowing Subsidiaries................................................................108
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default......................................................................................109
6.02. Actions in Respect of the Letters of Credit............................................................113
ARTICLE VII
THE AGENTS
7.01. Authorization and Action...............................................................................114
7.02. Agents' Reliance, Etc..................................................................................114
7.03. Agents, in their Individual Capacity and Affiliates....................................................116
7.04. Lender Credit Decision.................................................................................116
7.05. Indemnification........................................................................................116
7.06. Successor Agent........................................................................................117
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc........................................................................................118
8.02. Notices, Etc...........................................................................................119
8.03. No Waiver; Remedies....................................................................................120
8.04. Costs and Expenses.....................................................................................120
8.05. Right of Set-off.......................................................................................122
8.06. Binding Effect.........................................................................................123
8.07. Assignments and Participations.........................................................................123
8.08. Judgment Currency......................................................................................127
8.09. Consent to Jurisdiction................................................................................128
8.10. Governing Law..........................................................................................129
8.11. Execution in Counterparts..............................................................................129
8.12. No Liability of the Issuing Banks......................................................................129
8.13. Certain Cash Deposits..................................................................................130
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8.14. Conditions to Effectiveness of this Agreement..........................................................131
8.15. Schedules to this Agreement............................................................................131
8.16. Ratification of Guaranties, etc........................................................................132
8.17. Waiver of Jury Trial...................................................................................132
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Section iv Page
SCHEDULES
Schedule I Information regarding the Lenders and their Commitments
Schedule 3.01(e)(vii) Guarantors and Persons Whose Obligations Are Guaranteed
Schedule 4.01(b) Subsidiaries and Joint Ventures [Incomplete]
Schedule 4.01(v) Open Tax Years [Incomplete]
Schedule 4.01(z) Existing Debt [Incomplete]
EXHIBITS
Exhibit A-1 Form of Note--Multi-Currency Borrower
Exhibit A-2 Form of Note--Canadian Subsidiary
Exhibit B-1 Form of Notice of Borrowing--Multi-Currency Borrower
Exhibit B-2 Form of Notice of Borrowing--Canadian Subsidiary
Exhibit B-3 Form of Notice of Rollover--Canadian Subsidiary
Exhibit C Form of Borrowing Base Certificate
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Bankers' Acceptance
Exhibit F Form of Discount Note
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement")
dated as of March 12, 1999 amends and restates the Amended and Restated Credit
Agreement dated as of February 24, 1997, as amended, among AGCO CORPORATION, a
Delaware corporation ("AGCO"), AGCO CANADA, LTD., a Saskatchewan corporation
(the "Canadian Subsidiary"), AGCO MANUFACTURING LIMITED (formerly known as
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MANUFACTURING LIMITED), an English corporation ("English
Subsidiary One"), AGCO LIMITED (formerly known as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LIMITED), an
English corporation ("English Subsidiary Two"), AGCO INTERNATIONAL LIMITED
(formerly known as AGCO LIMITED), an English corporation ("English Subsidiary
Three"), AGCO S.A. (formerly known as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇.), a French societe
anonyme (the "French Subsidiary"), AGCO HOLDING B.V., a Netherlands corporation
(the "Netherlands Subsidiary"), and AGCO VERTRIEBS GMBH (formerly known as
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GMBH), a German corporation (the "German Subsidiary"; the
Canadian Subsidiary, English Subsidiary One, English Subsidiary Two, English
Subsidiary Three, the French Subsidiary, the Netherlands Subsidiary and the
German Subsidiary are referred to herein collectively as the "Borrowing
Subsidiaries" and individually as a "Borrowing Subsidiary"; AGCO and the
Borrowing Subsidiaries 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"), SUNTRUST BANK, ATLANTA, and
DEUTSCHE BANK AG, NEW YORK BRANCH, as co-managers (the "Co-Managers"); DEUTSCHE
BANK CANADA ("Deutsche Bank Canada"), as Canadian administrative agent for the
Canadian Subsidiary Lenders (together with any successor appointed pursuant to
Article VII, 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 VII, the "Administrative Agent").
PRELIMINARY STATEMENT:
The Borrowers have asked the Lenders severally to extend credit to them
for the purpose of refinancing debt outstanding under the Old Credit Agreement
and for other general corporate purposes, 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 as
follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. 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 Subsidiary Lender under this Agreement, a fee payable in Canadian
Dollars by the Borrower to such Lender calculated on the face amount of the
Bankers' Acceptance at a rate equal to the Applicable Margin, on the basis of
the number of days in the Contract Period and on the basis of a year of 365
days.
"Advance" means a Canadian Subsidiary Advance, a Multi-Currency Advance or a
Letter of Credit Advance.
"Administrative Agent" has the meaning specified in the introductory
paragraph of this Agreement.
"Account" means the Administrative Agent's Account or the Canadian
Administrative Agent's Account, as applicable.
"Administrative Agent's Account" means,
(a) for U.S. dollars, the account of the Administrative Agent with The
Bank of New York, ABA # ▇▇▇▇▇▇▇▇▇, at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. 8026002533, Favor: Rabobank Nederland, New
York Branch, Ref. AGCO/Struc. Fin.;
(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 # (▇▇▇▇▇▇▇▇), Account
No. 1429957021, Favor: Rabobank Nederland, New York Branch, Ref. AGCO/Struc.
Fin.;
(c) for Dutch guilders, the account of the Administrative Agent
maintained with Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", Utrecht Branch, The Netherlands, Swift # ▇▇▇▇▇▇▇▇,
Account No. 3908.17.333, Favor: Rabobank Nederland, New York Branch, Ref.
AGCO/Struc. Fin.;
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(d) for French francs, the account of the Administrative Agent
maintained with Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", Paris Branch, in Paris, Swift # (▇▇▇▇▇▇▇▇) Account No.
1019230100, Favor: Rabobank Nederland, New York Branch, Ref. AGCO/Struc.
Fin.;
(e) for German deutschemarks, the account of the Administrative Agent
maintained with Rabobank Deutschland A.G., in Frankfurt, Swift # (▇▇▇▇▇▇▇▇),
Account No. 603- 93775, Favor: Rabobank Nederland, New York Branch, Ref.
AGCO/Struc. Fin.;
(f) for Italian lira, the account of the Administrative Agent maintained
with Credito Italiano, in Milan, Swift # (▇▇▇▇▇▇▇▇), Account No.
995/84020/00, Favor: Rabobank Nederland, New York Branch, Ref. AGCO/Struc.
Fin.;
(g) for Swiss francs, the account of the Administrative Agent maintained
with Union Bank of Switzerland in Zurich, Swift # (▇▇▇▇▇▇▇▇), Account No.
79.147.05H, Favor: Rabobank Nederland, New York Branch, Ref. AGCO/Struc.
Fin.; and
(h) for European Union euros, the account of the Administrative Agent
maintained with Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", Utrecht Branch, The Netherlands, Swift # ▇▇▇▇▇▇▇▇,
Account No. 3908.17.333, Favor: Rabobank Nederland, New York Branch, Ref.
AGCO/Struc. Fin.
"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 or officer 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 means the possession, direct or
indirect, (a) by such other Person of the power to vote 5% or more of the Voting
Stock of such Person or (b) by such other Person of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of Voting 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 5% 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.
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"Allowances" means, with respect to any Person on any date of determination,
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the aggregate amount of all allowances for surplus or obsolete Inventory that
would appear as allowances with respect to Inventory on a balance sheet of such
Person at such date prepared in accordance with GAAP and the policies and
procedures of such Person with respect to the creation and maintenance of such
allowances in effect on the date of this Agreement.
"Alternate Currency" means
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(a) British pounds, Canadian Dollars, Dutch guilders, German
deutschemarks, French francs, Italian lira, Swiss francs and European Union
euros, and
(b) any other lawful currency that is freely transferable and
convertible into United States dollars and that has been approved by each
Lender.
"Applicable Lending Office" means, with respect to each Lender, such
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Lender's Domestic Lending Office in the case of a Base Rate Advance that is a
Multi-Currency Advance and such Lender's Eurocurrency Lending Office for loans
in another applicable currency, in the case of an Advance denominated in such
other currency.
"Applicable Margin" means, on any date of determination and for any
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Eurocurrency Rate Advance, any Base Rate Advance for which the Base Rate is
determined as provided in clause (b)(ii) of the definition thereof, Acceptance
Fee or fee payable pursuant to Section 2.13(e):
(a) until AGCO shall have delivered to the Administrative Agent pursuant
to Section 5.03(b) financial statements for its fiscal quarter ending March
31, 1999,1.00% per annum, and
(b) thereafter, the percentage rate per annum determined by reference to
the Applicable Rating and Senior Funded Debt/EBITDA Ratio in effect at such
date of determination, as set forth below in the matrix below but subject to
the next-following sentence:
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=========================================================================================================
APPLICABLE RATING SENIOR FUNDED DEBT/EBITDA RATIO
=========================================================================================================
<2.0 >=2.0 but <3.0 >=3.0 but <4.0 >=4.0
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>=A- 0.250% 0.375% 0.500% 0.625%
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>=BBB+ but =BBB but =BBB- but =BB+ but =BB but =2.0 but <3.0 >=3.0 but <4.0 >=4.0
EBITDA RATIO
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PERCENTAGE RATE 0.150% 0.250% 0.300% 0.350%
===============================================================================
(b) AGENTS' FEE. AGCO shall pay to the Agents for their respective
accounts the fees separately agreed between AGCO and each Agent.
(c) PAYMENT OF FEES. The fees and commission described in this Section
2.07 and in Section 2.13(e)(i) and (ii) shall be payable in arrears quarterly on
the last Business Day of each March, June, September and December, and on the
Termination Date.
SECTION 2.08. 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
2.09,
(x) AGCO may Convert all or any portion of the Multi-Currency Advances
(but not Letter of Credit Advances) in U.S. dollars of one Type comprising
the same Borrowing into Advances of another Type (other than Advances by
way of Bankers' Acceptances), and
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(y) the Canadian Subsidiary may Convert all or any portion of the
Canadian Subsidiary Advances or Multi-Currency Advances (but not Letter of
Credit Advances) of one Type comprising the same Borrowing into Advances of
another Type;
provided that
(i) any Conversion of Eurocurrency Rate Advances into Base Rate
Advances or into Advances by way of Bankers' Acceptances shall be made only
on the last day of an Interest Period for such Eurocurrency Rate Advances;
any Conversion of Base Rate Advances into Eurocurrency Rate Advances or
into Advances by way of Bankers' Acceptances shall be in an amount not less
than the relevant minimum amount specified in Section 2.01; any Conversion
of Advances by way of Bankers' Acceptances into Base Rate Advances or
Eurocurrency Rate Advances shall be made only on the last day of the
relevant Contract Period; if less than all Advances by way of Bankers'
Acceptances or all Eurocurrency Rate Advances are Converted, after such
Conversion, not less than the relevant minimum amount specified in Section
2.01 shall continue as Advances by way of Bankers' Acceptances or
Eurocurrency Rate Advances, as the case may be;
(ii) if less than all Advances comprising part of the same Borrowing
are Converted, the portion of the Advances Converted must at least equal
the minimum aggregate principal amount of a Borrowing permitted under
Section 2.01 and all Lenders' Advances comprising the Borrowing to be
Converted in part shall be Converted ratably in accordance with their
applicable Pro Rata Shares;
(iii) each Conversion of less than all Advances comprising part of the
same Borrowing shall be deemed to be an additional Borrowing for purposes
of Section 2.02(d), and no such Conversion of any Advances may result in
there being outstanding more separate Borrowings than permitted under
Section 2.02(d); and
(iv) no Advances may be Converted into Eurocurrency Rate Advances or
into Advances 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 Advances to be Converted (y) if
such Conversion is into Eurocurrency Rate Advances, the duration of the initial
Interest Period for such Advances and (z) if such Conversion is into Advances by
way of Bankers' Acceptances, the duration of the Contract Period for such
Advances. Each notice of Conversion shall be irrevocable and binding on AGCO.
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(b) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances denominated in U.S. dollars shall be reduced, by
payment or prepayment or otherwise, to less than U.S. $5,000,000, such Advances
shall automatically Convert into Base Rate Advances; if the aggregate face
amount of outstanding Bankers' Acceptances shall be reduced, by payment or
prepayment or otherwise, to less than Cdn. $5,000,000, the Advances by way of
such Bankers' Acceptances shall automatically convert, on the last day of the
relevant Contract Period, into Base Rate Advances.
(c) If a Borrower shall fail to select the duration of any Interest
Period for any Eurocurrency Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Appropriate Agent will forthwith so notify such Borrower and the Appropriate
Lenders, whereupon each such Eurocurrency Rate Advance will automatically, on
the last day of the then-existing Interest Period therefor,
(i) if it is an Advance denominated in U.S. dollars or Canadian
Dollars, Convert into a Base Rate Advance, and
(ii) if it is an Advance denominated in an Alternate Currency (other
than Canadian Dollars), be deemed to have an Interest Period of one month.
(d) If the Canadian Subsidiary shall fail to select the duration of
any Contract Period for any Advances by way of Bankers' Acceptances in
accordance with the provisions contained in the definition of "Contract Period"
in Section 1.01, the Canadian Administrative Agent will forthwith so notify the
Canadian Subsidiary and the Appropriate Lenders, whereupon each such Advance by
way of Banker's Acceptances will automatically, on the last day of the
then-existing Contract Period therefor, Convert into a Base Rate Advance.
SECTION 2.09. 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 date hereof, 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 Eurocurrency Rate Advances 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,
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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 Subsidiary 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, 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 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 date hereof,
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 Subsidiary 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 or
such Issuing Bank is the 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 Eurocurrency Rate Advances in U.S. dollars
or any Alternate Currency, Appropriate Lenders owed more than 50% of the
then-outstanding aggregate unpaid principal amount thereof notify the
Administrative Agent, in the case of Multi-Currency Advances and otherwise the
Canadian Administrative Agent that the Eurocurrency Rate for any Interest Period
for such Advances in U.S. dollars or any Alternate Currency will not adequately
reflect the cost to such Lenders of making, funding or
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maintaining their Eurocurrency Rate Advances 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
(i) if U.S. dollars are the affected currency, each such Eurocurrency
Rate Advance denominated in U.S. dollars will automatically, on the last day
of the then-existing Interest Period therefor, Convert into a Base Rate
Advance;
(ii) if an Alternate Currency is the affected currency, the affected
Borrower shall, on the last day of the then-existing Interest Period, prepay
in full such Eurocurrency Advances in the affected currency; and
(iii) the obligation of the Appropriate Lenders to make such
Eurocurrency Rate Advances 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 Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency Rate
Advances in U.S. dollars or any Alternate Currency or to continue to fund or
maintain such Eurocurrency Rate Advances 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, and otherwise through the
Canadian Administrative Agent,
(i) the obligation of the Appropriate Lenders to make Eurocurrency
Advances 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 Advances in any such Alternate Currency
other than Canadian Dollars and
(iii) each Eurocurrency Rate Advance denominated in U.S. dollars or
Canadian Dollars will automatically, upon such demand, Convert into a Base
Rate Advance,
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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 Eurocurrency Rate Advance 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 Advance and each
outstanding Bankers' Acceptance will automatically, on the last day of the
then-existing Contract Period therefor, Convert into a Base Rate Advance;
(ii) the Borrowers will, on the last day of the then-existing Interest
Period therefor, prepay each Eurocurrency Rate Advance in an Alternate
Currency other than Canadian Dollars; and
(iii) the obligation of the Lenders to make Eurocurrency Rate Advances
and accept Bankers' Acceptances shall be suspended.
(f) If on any date either S&P or ▇▇▇▇▇'▇ shall cease to rate the
senior, unsecured, long-term debt of AGCO, unless the Supermajority Lenders
consent otherwise,
(i) each Eurocurrency Rate Advance denominated in U.S. dollars or
Canadian Dollars will automatically, on the seventh Business Day after such
date, Convert into a Base Rate Advance and each outstanding Bankers'
Acceptance will automatically, on the later of the seventh Business Day
after such date and the last day of the then-existing Contract Period
therefor, Convert into a Base Rate Advance;
(ii) the Borrowers will, on the seventh Business Day after such date,
prepay each Eurocurrency Rate Advance in an Alternate Currency other than
Canadian Dollars; and
(iii) the obligation of the Lenders to make Eurocurrency Rate Advances
and accept Bankers' Acceptances shall be suspended until such time as S&P
and ▇▇▇▇▇'▇ both shall again rate such debt.
(g) 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 2.09 within 180 days, after such Lender obtains actual
knowledge thereof; provided that
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(i) if any Lender fails to give such notice within 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 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 Advances 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 2.10. Payments and Computations. (a) Each Borrower shall make
each payment hereunder and under the Notes free and clear of any setoff or
counterclaim 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 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
and under the Notes to more than one Lender, to such 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, 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 8.07(d), from
and after the effective date of such Assignment and Acceptance, the Appropriate
Agent shall make all payments hereunder and under the Notes in respect of the
interest assigned thereby to the Lender assignee thereunder, 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.
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(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 Advances 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 Advances and the
Available Amount of all Letters of Credit then outstanding, in repayment or
prepayment of such of the outstanding Advances 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 commissions
shall be made by the Appropriate Agent on the basis of a year of 360 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
(i) computations of interest for Base Rate Advances, and for fees and
Letter of Credit commissions payable in Canadian dollars, shall be made by
the Administrative Agent on the basis of a year of 365 or 366 days, as
applicable, and
(ii) each rate of interest on, and each fee and Letter of Credit
commission payable in respect of, Canadian Subsidiary Advances that is
calculated on the basis of a year of 360 days, shall be determined pursuant
to such calculation and expressed as an annual rate for the purpose of the
Interest Act (Canada) as equivalent to such rate as so determined,
multiplied by the actual number of days in the calendar year in which the
same is to be ascertained and divided by 360.
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 or under the Notes 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 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 Eurocurrency Rate Advances or of face amounts of Bankers'
Acceptances 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 the Borrower prior
to the date on which any payment is due to any Lender hereunder that the
Borrower will not
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make such payment in full, such Agent may assume that the Borrower has made such
payment in full to the 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
the 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 2.11. Taxes. (a) Any and all payments by the Borrowers
hereunder or under the Notes shall be made, in accordance with Section 2.10,
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 net income taxes 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 net income taxes that are imposed on such Lender by the
state 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 or under any Note to any Lender or 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 2.11) such Lender or such Agent
(as the case may be) receives an 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 under the Notes or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or the
Notes (hereinafter referred to as "Other Taxes").
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(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 2.11, paid by or
imposed on such Lender or such Agent (as the case may be) and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 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 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 8.02, the original receipt of
payment thereof or a certified copy of such receipt. In the case of any payment
hereunder or under the Notes 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 acceptable 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, and each 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, Internal Revenue
Service form 1001 or 4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service, certifying that such Lender is entitled to
benefits under an income tax treaty to which the United States is a party that
reduces the rate of interest-withholding tax on payments under this
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Agreement or the Notes or certifying that the income receivable pursuant to this
Agreement or the Notes is effectively connected with the conduct of a trade or
business in the United States, 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 forms, as are reasonably requested by such Borrower
and 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 or the Notes. 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) (or the jurisdiction
wherein the applicable Borrower is organized) 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 date hereof by Internal Revenue Service form 1001 or
4224 or other form that the applicable Borrower has indicated in writing to the
Lenders on the date hereof as being a required form to avoid or reduce
withholding tax on payments under this Agreement or on the Notes, 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) 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
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.
(g) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this
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Section 2.11 shall survive the payment in full of principal and interest
hereunder and under the Notes.
SECTION 2.12. 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
and under the Notes 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 and under the Notes at such time) of
payments on account of the Obligations due and payable to all Lenders
hereunder and under the Notes 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 and under the Notes 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 and
under the Notes at such time) of payments on account of the Obligations
owing (but not due and payable) to all Lenders hereunder and under the Notes
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
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 2.12 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.
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SECTION 2.13. Letters of Credit. (a) The Letter of Credit Facility.
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 the 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
(x) in the case of any Letter of Credit issued for the account of a
Multi- Currency Borrower, the date of the initial Borrowing, and
(y) in the case of any Letter of Credit issued for the account of the
Canadian Subsidiary, the date of this Agreement until 60 days before the
Termination 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 Appropriate
Issuing Bank's Letter of Credit Commitment, 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 either
(A) the aggregate Unused Multi-Currency Commitments on such
Business Day, or
(B) the excess, if any, of the Borrowing Base over Borrower
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 either
(A) the aggregate Unused Canadian Subsidiary Commitments on such
Business Day, or
(B) the excess, if any, of the Borrowing Base over Borrower
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 60
days before the Termination Date and, in the case of a Standby Letter of Credit,
one year after the date of issuance thereof, and, in the case of a Trade Letter
of Credit, 180 days after the date of issuance thereof. 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 Facility, and
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subject to the limits referred to above, the Borrower may request the issuance
of Letters of Credit under this Section 2.13(a), repay any Letter of Credit
Advances resulting from drawings thereunder pursuant to Section 2.13(c) and
request the issuance of additional Letters of Credit under this Section 2.13(a).
On the date of the initial Borrowing hereunder, each Letter of Credit
issued under the Old Credit Agreement shall be deemed for all purposes, as of
such date, without further action by any Person, to have been issued hereunder.
(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 telex, telecopier or cable, confirmed
immediately in writing, specifying therein
(A) the requested date of such issuance (which shall be a Business
Day);
(B) the requested Available Amount of such Letter of Credit;
(C) the requested expiration date of such Letter of Credit;
(D) the requested currency in which such Letter of Credit shall be
denominated, which shall be U.S. dollars or an Alternate Currency; provided
that no Borrower shall make a request for a Letter of Credit in an
Alternate 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;
(E) the requested name and address of the beneficiary of such Letter
of Credit; and
(F) 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
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(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 III, make such Letter of Credit available to the requesting
Borrower at its office referred to in Section 8.02 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
(A) to the Appropriate Agent on the first Business Day of each week a
written report summarizing issuance and 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;
(B) 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
(C) 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, which shall
(A) in the case of payment on a draft drawn under a Letter of
Credit denominated in U.S. dollars or Canadian Dollars, be a Base Rate
Advance in the amount of such draft, and
(B) in any other case, be a Eurocurrency Rate Advance that bears
interest at the rate per annum equal to the rate per annum at which
interest
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would accrue on a Eurocurrency Rate Advance with an Interest Period of
one month beginning on the date of such draw.
(ii) Upon the issuance of each Letter of Credit for the account of a
Multi-Currency Borrower, each Multi-Currency Credit Lender (other than the
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
Multi-Currency Issuing Bank) shall purchase from the Multi-Currency Issuing
Bank, directly and not as a participation, and the 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, by making available for the
account of its Applicable Lending Office to the Administrative Agent for
the account of the 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.
(iii) Upon the issuance of each Letter of Credit for the account of
the Canadian Subsidiary, each Canadian Subsidiary Lender (other than the
Canadian Issuing Bank, if it is then a Canadian Subsidiary 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 Subsidiary 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 Subsidiary 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, 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 Subsidiary Lender.
(iv) Each Borrower agrees to each participation, sale and assignment
pursuant to this subsection (c).
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(v) Each Appropriate Lender agrees to purchase its Pro Rata Share of
an outstanding Letter of Credit Advance on
(A) 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
(B) 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 Subsidiary Borrowings) in the case of
demands made by the Canadian Issuing Bank. If 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");
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(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 Loan
Party Guaranty or any other Guaranty, for all or any of the Obligations of
each Borrower in respect of the L/C Related Documents; or
(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.
(e) Compensation. (i) Each Multi-Currency Borrower shall pay to the
Administrative Agent, for the account of the Multi-Currency Lenders (which for
purposes of this subsection (e) shall be deemed to include each such Lender
acquiring a participation in a Letter of Credit issued for the account of a
Multi-Currency Borrower pursuant to subsection (c) above) a commission computed
each day at a rate equal to the rate per annum equal to the Applicable Margin on
such day for Eurocurrency Rate Advances on the aggregate Available Amount of all
Letters of Credit outstanding and issued for such Multi-Currency Borrower's
account. Each such Lender's commission shall be calculated by allocating to such
Lender a portion of the total commission determined ratably according to the
proportion that such
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Lender's Multi-Currency Commitments bear to all Multi-Currency Lenders'
Multi-Currency Commitments.
(ii) The Canadian Subsidiary shall pay to the Canadian Administrative
Agent, for the account of the Canadian Subsidiary Lenders (which for purposes of
this subsection (e) shall be deemed to include each such Lender acquiring a
participation in a Letter of Credit issued for the account of the Canadian
Subsidiary pursuant to subsection (c) above) a commission computed each day at a
rate equal to the rate per annum equal to the Applicable Margin on such day for
Eurocurrency Rate Advances on the aggregate Available Amount of all Letters of
Credit outstanding and issued for the Canadian Subsidiary's account. Each such
Lender's commission shall be calculated by allocating to such Lender a portion
of the total commission determined ratably according to the proportion that such
Lender's Canadian Subsidiary Commitments bear to all Canadian Subsidiary
Lenders' Canadian Subsidiary Commitments.
(iii) The commissions specified in this subsection (e) shall be
payable as provided in Section 2.07(c).
(iv) Each Borrower also shall pay to the Appropriate Issuing Bank, for
its own account, such issuance fees, other commissions, transfer fees and other
fees and charges in connection with the issuance or administration of each
Letter of Credit as the Borrowers and such Issuing Bank have separately agreed.
SECTION 2.14. Use of Proceeds. The proceeds of Advances to the
Borrowers shall be available (and AGCO agrees that it shall use such proceeds)
solely for the purpose of refinancing amounts owing under the Old Credit
Agreement and for general corporate purposes. Neither AGCO nor any Borrowing
Subsidiary will apply any such proceeds in violation of United States law or any
applicable foreign law.
SECTION 2.15. Replacement of a Bank. Subject to the second and third
paragraphs of this Section 2.15, if
(a) a Multi-Currency Lender requests compensation under Section
2.09(a) or (b) or 2.11 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 Subsidiary Lender requests compensation under Section
2.09(a) or (b) or 2.11 and other Canadian Subsidiary Lenders holding
Commitments equal to at least one third of the Canadian Subsidiary Facility
shall not have made a similar request,
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(c) the obligation of a Lender to make Eurocurrency Rate Advances or to
Convert Base Rate Advances into Eurocurrency Rate Advances shall be
suspended pursuant to Section 2.09(c) or (d) in circumstances in which such
obligations of other Lenders holding Commitments equal to at least one third
of the Multi-Currency Facility shall not have been suspended, or
(d) a Lender becomes insolvent, goes into receivership or fails to make
any Advances 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 to assume such Replaced Lender's
Commitments hereunder and to purchase any Advances by such Replaced Lender and
such Replaced Lender's rights hereunder, without recourse to or representation
or warranty by, or expense to, such Replaced Lender, for a purchase price equal
to the outstanding principal amount of the Advances by such Replaced Lender,
plus any accrued but unpaid interest on such Advances 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 8.07(a)(v))
and the payment to the Administrative Agent by AGCO on behalf of such Replaced
Lender of the assignment fee specified in Section 8.07(a)(vi), 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 2.09, 2.11 and 8.04 with respect to events
occurring or obligations arising before or as a result of such replacement shall
survive such replacement. Promptly following its replacement by the Replacement
Lender, the Replaced Lender shall return to the Borrowers the Notes delivered by
the Borrowers to such Replaced Lender and the Borrowers will deliver new Notes
to the Replacement Lender.
AGCO may not exercise its rights under this Section 2.15 with respect
to any Lender (i) unless its 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.
SECTION 2.16. 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.
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(b) Discount Rate. On each day on which Bankers' Acceptances are to be
accepted, the Canadian Administrative Agent shall advise the Borrower as to the
Canadian Administrative Agent's determination of the Discount Rate.
(c) Purchase and Reimbursement of Bankers' Acceptances. The Borrower
shall sell, and each Canadian Subsidiary Lender shall purchase, at the Discount
Rate each Bankers' Acceptance accepted by it and to deliver the Discount
Proceeds less the Acceptance Fee to the Canadian Administrative Agent for the
relevant Borrower's Account in accordance with Section 2.02(a). The Borrower
will reimburse each Canadian Subsidiary 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 Subsidiary 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 Borrower 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 E (or such
other form as may be acceptable to the Canadian Administrative Agent) executed
and duly endorsed in blank by the Borrower, in quantities sufficient for each of
the Canadian Subsidiary Lenders to fulfill its obligations under this Agreement.
No Canadian Subsidiary 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 Borrower to
provide duly executed and endorsed drafts to the Canadian Administrative Agent
on a timely basis nor shall the Canadian Subsidiary 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 wilful misconduct of the Canadian Subsidiary Lender, the Canadian
Administrative Agent or their respective employees.
(f) Execution of Bankers' Acceptances. Bills of exchange drawn by the
Borrower to be accepted as Bankers' Acceptances shall be signed by a duly
authorized officer or officers of the Borrower. Notwithstanding that any Person
whose signature appears on any Bankers' Acceptance may no longer be an
authorized signatory for the Borrower 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 Borrower.
(g) Issuance of Bankers' Acceptances. The Canadian Administrative
Agent, promptly following receipt of a notice of Advance by way of Bankers'
Acceptances, shall so
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advise the Canadian Subsidiary Lenders and shall advise each Canadian Subsidiary
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 Subsidiary Lenders). The aggregate face amount of the Bankers'
Acceptances to be accepted by a Canadian Subsidiary Lender shall be determined
by the Canadian Administrative Agent by reference to Section 2.01(b), except
that, if the face amount of a Bankers' Acceptance which would otherwise be
accepted by a Canadian Subsidiary Lender would not be Cdn. $100,000 or a whole
multiple thereof, such face amount shall be increased or reduced by the 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 Advance
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 Borrower shall notify the Canadian
Administrative Agent by telex, telecopier or cable in substantially the form of
Exhibit B-3 hereto, if the Borrower 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 Borrower
delivering such notice. If the Borrower fails to give such notice, such maturing
Bankers' Acceptances shall be converted on their maturity date into Base Rate
Advances in an amount equal to the face amount of such Bankers' Acceptances.
(i) Rollover. The rollover of Bankers' Acceptances pursuant to Section
2.16(h) shall not constitute a repayment of any Borrowing or a new advance of
funds.
(j) BA Equivalent Loans by Non BA Lenders. Whenever the Borrower
requests an Advance 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 Advance;
(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
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(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 Advance.
(l) Prepayment of Bankers' Acceptances. Whenever the provisions of this
Agreement states that the Borrower shall prepay the principal amount of Advances
or any portion of the principal amount of Advances, and such Advances are by way
of Bankers' Acceptances and not BA Equivalent Loans, such prepayment of such
Advances shall mean that the Borrower 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 Subsidiary Lender's
obligations in respect of such Bankers' Acceptances on the applicable maturity
date(s). The Borrower'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 Borrower.
(m) Rounding. The Canadian Administrative Agent is authorized by the
Canadian Subsidiary and each Canadian Subsidiary Lender to allocate among the
Canadian Subsidiary 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 Subsidiary
Lender's allocation up or down, so as to ensure that no Canadian Subsidiary
Lender is required to accept a Bankers' Acceptance for a fraction of Cdn.
$100,000, and in such event, the respective Lenders' Pro Rata Shares 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 Subsidiary Lender to cause the proportionate share
of one or more Lenders' Canadian Subsidiary Commitments to be exceeded by not
more than Cdn. $100,000 each as a result of such allocations; provided that (a)
the Canadian Subsidiary Outstandings shall not thereby exceed the amount of the
Canadian Subsidiary Facility and (b) no Canadian Subsidiary Lender shall be
required to make available an amount greater than its Pro Rata Share of the
Canadian Subsidiary Facility.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Borrowing. The obligation
of each Lender to make an Advance on the occasion of the initial Borrowing under
this Agreement (as in effect prior to its amendment and restatement hereby) is
subject to the following conditions precedent:
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(a) The Lenders shall be satisfied that, in connection with the initial
Borrowing hereunder, simultaneously with such initial Borrowing, all amounts
owing under the Old Credit Agreement shall have been paid in full and all
commitments to lend thereunder shall be terminated.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting AGCO or any of its Subsidiaries pending or threatened
before any court, governmental agency or arbitrator that, in the sole judgment
of any Lender,
(i) could have a Material Adverse Effect on AGCO or any Subsidiary
Guarantor or
(ii) purports to affect the legality, validity or enforceability of
this Agreement, any Note, any other Loan Document, any L/C Related Document
or the consummation of the transactions contemplated hereby.
(c) Each of the Lenders shall have completed a due diligence
investigation of AGCO and its Subsidiaries in scope, and with results,
satisfactory to each of the Lenders, and the results of such investigation shall
be acceptable to each of the Lenders in their sole discretion.
(d) AGCO shall have paid to the Administrative Agent the closing fee
separately agreed to between AGCO and the Administrative Agent.
(e) The Administrative Agent shall have received on or before the day
of the initial Borrowing the following, each dated such day (unless otherwise
specified), in form and substance satisfactory to the Lenders (unless otherwise
specified) and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board of Directors of
each Borrower and each other Loan Party approving this Agreement, the
Notes, 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 this
Agreement, the Notes, each other Loan Document and each L/C Related
Document.
(iii) A copy of the charter of each Borrower and each other Loan Party
and each amendment thereto, certified (as of a date reasonably near the
date of the initial
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Borrowing) by an appropriate governmental official as being a true and
correct copy thereof.
(iv) 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 date of the
initial Borrowing, listing the charter of such Person and each amendment
thereto on file in his office and certifying that
(A) such amendments are the only amendments to such Person's
charter on file in his office;
(B) such Person has paid all franchise taxes to the date of such
certificate; and
(C) such Person is duly incorporated and in good standing or
presently subsisting under the laws of the jurisdiction of
organization.
(v) 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 date of the initial Borrowing (the statements made in which
certificate shall be true on and as of the date of the initial Borrowing),
certifying as to
(A) the absence of any amendments to the charter of such Person
since the date of the certificate referred to in Section 3.01(e)(iii);
(B) a true and correct copy of the bylaws of such Person as in
effect on the date of the initial Borrowing; and
(C) 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.
(vi) A certificate of the Secretary or an Assistant Secretary or other
appropriate officer of each Borrower and each other Loan Party certifying
the names and true signatures of the officers of such Person authorized to
sign this Agreement, the Notes and each other Loan Document to which it is
or is to be parties and the other documents to be delivered hereunder and
thereunder.
(vii) Guaranties duly executed by each Person specified in Schedule
3.01(e)(vii) (each such Subsidiary of AGCO executing the same being a
"Subsidiary
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Guarantor"), each such Guaranty to be in form and substance satisfactory to
the Administrative Agent, and guaranteeing the obligations specified in
such Schedule.
(viii) Such financial, business and other information regarding each
Loan Party 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, 1995, of AGCO and its Restricted
Subsidiaries and AGCO and its Subsidiaries, respectively.
(ix) A letter, in form and substance satisfactory to the
Administrative Agent, from AGCO to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, its independent
certified public accountants, advising such accountants that the
Co-Managers 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 any Co-Manager 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 the 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) A favorable opinion of King & Spalding, counsel for the Borrowers,
in form and substance satisfactory to the Lenders.
(xi) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, vice president and general
counsel of AGCO, in form and substance satisfactory to the Lenders.
(xii) A favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇, in form and substance
satisfactory to the Lenders.
(xiii) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇, French counsel to the
Borrowers, in form and substance satisfactory to the Lenders.
(xiv) Such favorable opinions of ▇▇▇▇▇▇▇▇▇ Ready, Canadian counsel to
the Borrowers, Hengeler ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, German counsel to the
Borrowers, and De Brauw Blackstone Westbroek, Netherlands counsel to the
Borrowers, and such other favorable opinions of counsel as any Co-Manager
may reasonably request, in form and substance satisfactory to the Lenders.
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(xv) A favorable opinion of Shearman & Sterling, counsel for the Co-
Managers, in form and substance satisfactory to the Co-Managers.
(xvi) Evidence that AGCO has delivered to the trustee under the
Subordinated Debt Indenture a notice stating that this Agreement and
related instruments and documents are the "Bank Credit Agreement" under
such indenture.
(xvii) Such other approvals, opinions or documents as any Lender may
reasonably request.
(f) AGCO shall have paid all accrued fees and expenses of the Agents,
the Co-Managers and the Lenders (including the accrued fees and expenses of
counsel to the Co- Managers) that have theretofore been invoiced.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance. The
obligation of each Lender to make an Advance (including the initial Advance 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
Issuing Bank hereunder other than any such representations or warranties
that, by their terms, refer to a date other than the date of such Borrowing
or issuance;
(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; and
(c) such Borrowing is permitted under Section 2.01(a), if such
Borrowing is a Multi-Currency Borrowing, or Section 2.01(b), if such
Borrowing is a Canadian Subsidiary Borrowing.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or
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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 IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrowers. Each
Borrower represents and warrants as of the date of this Agreement (as amended
and restated) as follows:
(a) AGCO
(i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(ii) is duly qualified and in good standing 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
(iii) has all requisite corporate power and authority to own or lease
and operate its properties and to carry on its business as now conducted
and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) (or, for purposes of Section
3.02(a), the most recently delivered replacement for such Schedule, if any,
delivered pursuant to Section 5.03(p) (other than, for purposes of Section
3.02(a), Dormant Subsidiaries)) is a complete and accurate list of all
Subsidiaries of AGCO, showing as of the date hereof (as to each such Subsidiary)
the jurisdiction of its incorporation, the number of shares of each class of
capital stock authorized, and the number outstanding, on the date hereof 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 date hereof
and whether it is a Restricted Subsidiary or a Dormant Subsidiary.
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All of the outstanding capital 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 permitted under Section
5.02(a)(ix). Each Restricted Subsidiary
(i) is a corporation duly organized, validly existing and (if not a
Foreign Subsidiary) in good standing under the laws of the jurisdiction of
its incorporation;
(ii) is duly qualified and in good standing 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
(iii) has all requisite corporate power and authority to own or lease
and operate its properties and to carry on its business as now conducted
and as proposed to be conducted.
Also set forth on Schedule 4.01(b) (or, for purposes of Section
3.02(a)(i), the most recently delivered replacement for such Schedule, if any,
delivered pursuant to Section 5.03(q)) is a complete and accurate list of all
joint ventures of AGCO and/or any of its Subsidiaries and any third Person
showing as of the date hereof (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 capital stock or other equity interests of such
joint venture owned on the date hereof by AGCO or any of its Subsidiaries and
any outstanding options, warrants, rights of conversion or purchase and similar
rights on the date hereof with respect thereto.
(c) The execution, delivery and performance by each Loan Party of this
Agreement, the Notes, each other Loan Document and each L/C Related Document to
which it is or is to be a party and the consummation of the transactions
contemplated hereby, are within such Loan Party's corporate powers, have been
duly authorized by all necessary corporate action, and do not
(i) contravene such Loan Party's charter or by-laws;
(ii) violate any law (including without limitation the Securities
Exchange Act of 1934, 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), rule, regulation (including without limitation Regulation
X of the Board of Governors of the Federal Reserve System), order, writ,
judgment, injunction, decree, determination or award;
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(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; or
(iv) 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.
Neither AGCO nor any of its Subsidiaries is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award or
in breach of any such contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument, the violation or breach of which is reasonably
likely to have a Material Adverse Effect.
(d) 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, the Notes, 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 contemplated hereby; or
(ii) the exercise by either Agent or any Lender of its rights under the
Loan Documents.
(e) This Agreement and each of the Notes, 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 party thereto. This
Agreement, each of the Notes, 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 party thereto, enforceable against such
Loan Party in accordance with its terms.
(f) The consolidated balance sheets of AGCO and its Restricted
Subsidiaries and of AGCO and its Subsidiaries, respectively, as at December 31,
1995 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
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
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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, 1995, nothing
has occurred that has resulted in a Material Adverse Effect.
(g) 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 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, other than statements or
omissions corrected in writings delivered to the Co-Managers prior to the date
of execution hereof.
(h) 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 that
(i) would be reasonably likely to have a Material Adverse Effect, or
(ii) purports to affect the legality, validity or enforceability of
this Agreement, any Note, any other Loan Document or any L/C Related
Document or the consummation of the transactions contemplated thereby or
hereby.
(i) No proceeds of any Advance will be used directly to acquire any
equity security of a class that is registered pursuant to Section 12 of the
Securities Exchange Act of 1934.
(j) 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 might 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.
(k) All Borrowings under this Agreement will be "Senior Indebtedness",
as defined in the Subordinated Debt Indenture. This Agreement and all related
instruments and documents are the "Bank Credit Agreement", as defined in the
Subordinated Debt Indenture.
(l) 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.
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(m) 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 since the date of such Schedule B there has been no material
adverse change in such funding status.
(n) 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 could result in a Material Adverse Effect.
(o) 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 could result in a Material Adverse Effect.
(p) Neither the business nor the properties of AGCO or any of its
Subsidiaries are affected by any fire, explosion, accident, strike, lockout or
other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of
the public enemy or other casualty (whether or not covered by insurance) that
would be reasonably likely to have a Material Adverse Effect.
(q) The operations and properties of AGCO and each of its Subsidiaries
comply in all material respects with all Environmental Laws, all necessary
Environmental Permits have been obtained and are in effect that are material to
the operations and properties of AGCO and its Subsidiaries, AGCO and its
Subsidiaries are in compliance in all material respects with all such
Environmental Permits, and no circumstances exist that would be reasonably
likely to
(i) form the basis of an Environmental Action against any Loan Party or
any of its Subsidiaries or any their properties that could have a Material
Adverse Effect or
(ii) cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental Law
that could have a Material Adverse Effect.
(r) None of the properties of AGCO or any of its Subsidiaries is listed
or proposed for listing on the National Priorities List under CERCLA.
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(s) (i) Neither AGCO nor any of its Subsidiaries has transported or
arranged for the transportation of any Hazardous Materials to any location
that is listed or proposed for listing on the National Priorities List under
CERCLA;
(ii) to the best of AGCO's knowledge, Hazardous Materials have not been
generated, used, treated, handled, stored or disposed of on, or released or
transported to or from, any property of AGCO or any of its Subsidiaries, in
an amount that would require remediation in accordance with applicable
environmental laws; and
(iii) all other wastes generated at any such properties have been
disposed of in compliance in all material respects with all applicable
Environmental Laws and Environmental Permits,
except to the extent that such transportation, generation, use, treatment,
handling, storage, disposition or release would not result in a Material Adverse
Effect.
(t) Neither AGCO nor any of its Subsidiaries is a party to any
indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter or corporate restriction that would be
reasonably likely to have a Material Adverse Effect.
(u) 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
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 returns
required to be filed and has paid all taxes 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 has attached to its property
or become enforceable against its other creditors.
(v) Set forth on Schedule 4.01(v) hereto is a complete and accurate
list, as of the date hereof, 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.
(w) There are no adjustments as of the date hereof to the Federal
income tax liability of AGCO proposed by the Internal Revenue Service with
respect to any such year. No issues have been raised by the Internal Revenue
Service in respect of any such year that, in the aggregate, would be reasonably
likely to have a Material Adverse Effect.
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(x) The aggregate unpaid amount, as of the date hereof, of adjustments
to the state, local and foreign tax liability of AGCO and its Subsidiaries
proposed by all state, local and foreign taxing authorities (other than amounts
arising from adjustments to Federal income tax returns) does not exceed U.S.
$1,000,000. No issues have been raised by such taxing authorities that, in the
aggregate, would be reasonably likely to have a Material Adverse Effect.
(y) Neither AGCO nor any of its Subsidiaries is an "investment
company," or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended. Neither the making of any Advances, nor the
issuance of any Letters of Credit, nor the application of the proceeds or
repayment thereof by the 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.
(z) Set forth on Schedule 4.01(z) hereto is a complete and accurate
list as of the date hereof of all Debt of AGCO and its Subsidiaries, showing as
of the date hereof the principal amount outstanding thereunder. There are no
Liens on property of AGCO or any of its Restricted Subsidiaries, other than
Liens permitted under the Old Credit Agreement, Liens approved or consented to
by the lenders under the Old Credit Agreement and other Liens that are
immaterial, individually or in the aggregate.
ARTICLE V
COVENANTS OF AGCO
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder, AGCO will, unless the Required Lenders shall
otherwise consent in writing:
(a) Compliance with Laws, Etc. Except as provided in Subsection (c),
comply, and cause each of its Subsidiaries to comply, in all material respects,
with all applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA, 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.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
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(i) all Federal and foreign income taxes, all state income taxes in
jurisdictions where a tax Lien could be imposed on any assets of AGCO or any
of its Restricted Subsidiaries, and all other material income and other
taxes, assessments and governmental charges or levies imposed upon it or
upon its property, and
(ii) all lawful claims that, if unpaid, might by law become a Lien upon
its property;
provided that neither AGCO nor any of its Subsidiaries shall be required to pay
or discharge any such tax, assessment, charge or claim that is being contested
in good faith by appropriate proceedings promptly initiated and diligently
pursued and for which reserves or other appropriate provisions required by GAAP
shall have been established, unless and until any Lien resulting therefrom
attaches to its property and becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. 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 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, where the failure to do the same
could reasonably be expected to result in a Material Adverse Effect.
(d) Maintenance of Insurance. 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. Such insurance may be subject to (A) insurance by Affiliates of AGCO
or similar clauses that so long as such self insurance is in an amount no
greater than U.S. $25,000,000 and 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.
(e) Preservation of Corporate Existence, Etc. Except as otherwise
permitted by this Agreement, preserve and maintain, and cause each of its
Restricted Subsidiaries to preserve and maintain, its corporate existence,
rights (charter and statutory) and franchises; 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, and no Restricted Subsidiary (other than a Borrowing Subsidiary)
shall be required
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to preserve and maintain its corporate existence if the Board of Directors of
AGCO determines, 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 the Borrower, such Restricted Subsidiary or the Lenders.
(f) Visitation Rights. At any reasonable time and from time to time,
permit
(i) the Agents, any Co-Manager and (while any Default shall have
occurred and be continuing) any of the Lenders, and
(ii) if no Default shall have occurred and be continuing, any of the
Lenders on reasonable request,
or any agents or representatives thereof, to examine and make copies of and
abstracts from the records and books of account of, and visit the properties of,
AGCO and any of its Subsidiaries and to discuss the affairs, finances and
accounts of AGCO and any of its Subsidiaries with any of their officers or
directors and with their independent certified public accountants. The Lenders
will use reasonable efforts to coordinate with AGCO and the Co-Managers such
examination, copying, visits, examinations and discussions to limit any
inconvenience to AGCO and its Subsidiaries.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of AGCO and each
such Subsidiary in accordance with GAAP (or the foreign equivalent) in effect
from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Restricted Subsidiaries to maintain and preserve, all of its
properties that are used or useful in, and material to, the conduct of its
business in good working order and condition, ordinary wear and tear excepted.
(i) Qualification in New York. At all times remain qualified as a
foreign corporation entitled to do business in the State of New York.
(j) Performance of Material Contracts. 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.
(k) Transactions with Affiliates. Conduct, and cause each of its
Restricted Subsidiaries to conduct, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates (other than transactions between
AGCO and its Restricted Subsidiaries)
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(i) in accordance with current practice, or (ii) on terms that are fair and
reasonable and 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.
(l) 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, cause each wholly owned Foreign Subsidiary that
shall not previously have delivered a Loan Party Guaranty to execute and deliver
to the Lenders a Loan Party Guaranty substantially in the form of an Exhibit
hereto, with such changes as the Administrative Agent may reasonably request,
guarantying the obligations of AGCO hereunder and under the other Loan
Documents.
(m) Year 2000. Take, and cause each of its Subsidiaries to take, all
actions necessary to assure that its and its Subsidiaries' software, hardware,
firmware, equipment, goods and systems (including embedded systems) are able
effectively to process data including dates prior to, on and after January 1,
2000 and, at the request of either Agent or any Lender, provide, and cause each
of its Subsidiaries to provide, such Agent or Lender, as the case may be, with
assurance acceptable to such Agent or Lender, as the case may be, of their
respective year 2000 capabilities.
(n) Covenant to Give Security. Upon the request of the Administrative
Agent acting at the direction of the Required Lenders at any date when the
Applicable Rating shall be BB or less, and at the expense of the AGCO,
(i) within 15 Business Days after such request, furnish to the Agent a
description of the material real and personal properties of AGCO and its
Subsidiaries in detail satisfactory to the Agent;
(ii) within 60 Business Days after such request,
(A) duly execute and deliver to the Administrative Agent or its
designee such mortgages, pledges, assignments and other security
agreements, as specified by and in form and substance reasonably
satisfactory to the Administrative Agent (and which shall include
provision that the release of any collateral security thereunder other
than in accordance with the terms thereof shall require the consent of
each Lender), securing payment of all the Obligations of the Borrowers
under the Loan Documents and constituting Liens on such properties of
AGCO and its Subsidiaries as the Required Lenders may require,
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(B) take whatever action (including without limitation, the
recording of mortgages, the filing of Uniform Commercial Code
financing statements, the giving of notices and the endorsement of
notices on title documents) may be necessary or advisable in the
opinion of the Administrative Agent to vest in the Administrative
Agent or its designee valid and subsisting Liens on the properties
purported to be subject to the security agreements delivered pursuant
to this Section 5.01(p), enforceable against all third parties in
accordance with their terms, and
(C) deliver to the Administrative Agent signed copies of
favorable opinions, addressed to the Administrative Agent, the
Canadian Administrative Agent and the Lenders, of counsel for AGCO and
its Subsidiaries reasonably acceptable to the Administrative Agent,
and who are qualified to practice in such jurisdictions where such
collateral is or such Subsidiaries are located as the Administrative
Agent may reasonably require, as to the matters contained in this
Section 5.01(p), as to such security agreements being legal, valid and
binding obligations of AGCO and its Subsidiaries enforceable in
accordance with their terms, the creation and perfection of the Liens
created thereby and such other matters as the Agent may reasonably
request; and
(iii) at any time and from time to time, promptly execute and deliver
any and all further instruments and documents and take all such other
action as the Administrative Agent may reasonably deem desirable in
obtaining the full benefits of, or in preserving the Liens of, such
security agreements.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender shall have any
Commitment hereunder, AGCO will not, at any time, without the written consent of
the Required Lenders or, if required under Section 8.01, of all of the Lenders:
(a) Liens, Etc. 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 accounts) whether now owned or hereafter acquired or, except
with the consent of the Administrative Agent in connection with a refinancing of
this Agreement in its entirety, (x) sign or file, or permit any of its
Restricted Subsidiaries to sign or file, under the Uniform Commercial Code of
any jurisdiction (or any similar law of any jurisdiction outside the United
States), a financing statement that names AGCO or any of its Restricted
Subsidiaries as debtor, or (y) sign, or permit any of its Restricted
Subsidiaries to sign, any security agreement authorizing any secured party
thereunder to file such financing statement, or assign, or permit any of its
Restricted Subsidiaries to assign, any accounts or other right to receive
income, excluding, however, from the operation of the foregoing restrictions the
following:
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(i) Permitted Liens;
(ii) (A) Liens permitted under or approved or consented to by the
lenders under the Old Credit Agreement (other than Liens described in
clause (i), (ii)(B) or (iii) through (x) inclusive of this subsection (a))
and (B) other Liens existing on the date hereof that individually do not
secure Debt in an aggregate principal amount in excess of U.S. $100,000 or
in the aggregate secure Debt in an aggregate principal amount in excess of
U.S. $1,000,000;
(iii) purchase money Liens upon or in property acquired or held by
AGCO or any of its Restricted Subsidiaries to secure the purchase price of
such property or to secure Debt permitted under Section 5.02(b)(v) incurred
solely for the purpose of financing the acquisition, construction or
improvement of any such property to be subject to such Liens, or Liens
existing on any such property at the time of acquisition, or extensions,
renewals or replacements of any of the foregoing for the same or a lesser
amount; provided that no such Lien shall extend to or cover any property
other than the property being acquired, constructed or improved, and no
such extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the Lien being extended, renewed or
replaced;
(iv) the replacement, extension or renewal of any Lien permitted by
clause (iii) above upon or in the same property theretofore subject thereto
or the replacement, extension or renewal (without increase in the amount or
change in any direct or contingent obligor) of the Debt secured thereby;
(v) Liens existing on the property of a person immediately prior to
its being merged into AGCO or a Restricted Subsidiary or its becoming 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 merger or such Person's becoming a Restricted
Subsidiary or such acquisition of property; and provided further 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;
(vi) Liens on cash securing reimbursement obligations in respect of
letters of credit issued under facilities permitted under subsection
(b)(vii) below, so long as the aggregate undrawn amount thereunder at any
time outstanding does not exceed U.S. $15,000,000, and any such Liens
securing obligations under this Agreement;
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(vii) a deed to secure debt on the property on which AGCO's
headquarters are located in Duluth, Georgia and a mortgage or other Lien on
AGCO's Coldwater, Ohio facility in favor of an agency of the State of Ohio;
(viii) Liens on Receivables sold pursuant to a securitization facility
permitted under Section 5.02(e)(v) that, in either case, nevertheless would
appear as Receivables on a balance sheet of AGCO and its Restricted
Subsidiaries;
(ix) precautionary financing statements filed by lessors with respect
to equipment leases under which AGCO or a Restricted Subsidiary is lessee;
(x) Liens on cash and deposit accounts in an aggregate amount not
exceeding US$120,000,000 (or the Multi-Currency Equivalent thereof) as of
the date of the creation thereof by the French Subsidiary in favor of
Rabobank securing Debt, or Guaranties by the French Subsidiary of Debt,
owing by English Subsidiary Three to Rabobank;
(xi) Liens on Receivables discounted in transactions permitted under
Section 5.02(e)(x); and
(xii) Liens on capital stock of AGCO purchased with the proceeds of
Debt incurred pursuant to Section 5.02(b)(viii).
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Restricted Subsidiaries to create, incur, assume or suffer to exist, any
Debt other than:
(i) Debt under the Loan Documents;
(ii) Debt of AGCO, a Borrowing Subsidiary or a Subsidiary Guarantor
subordinated to the Advances on terms and conditions acceptable to each
Co-Manager and the Required Lenders in their sole discretion;
(iii) in the case of AGCO,
(A) Convertible Subordinated Debentures outstanding on the date
hereof, and
(B) Debt issued under the Subordinated Debt Indenture outstanding
on the date hereof;
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(iv) in the case of any of the Restricted Subsidiaries, Debt owed to
AGCO or to a Wholly Owned Restricted Subsidiary of AGCO and, in the case of
AGCO, Debt owed to any Wholly Owned Restricted Subsidiary that is
subordinated to the Advances on terms and conditions acceptable to each
Co-Manager and the Required Lenders in their sole discretion;
(v) Debt outstanding on the date hereof under the terms with respect
thereto in effect as of the date hereof, and any Debt extending the
maturity of, or refunding or refinancing, in whole or in part, any such
Debt; provided that the terms of any such extending, refunding or
refinancing Debt, and of any agreement entered into and of any instrument
issued in connection therewith, are otherwise permitted by the Loan
Documents and further provided that the principal amount of such Debt shall
not be increased above the principal amount thereof outstanding immediately
prior to such extension, refunding or refinancing, and the direct and
contingent obligors therefor shall not be changed, as a result of or in
connection with such extension, refunding or refinancing;
(vi) indorsements of negotiable instruments in the ordinary course of
business;
(vii) Debt in an aggregate principal amount not exceeding
US$120,000,000 (or the Multi-Currency Equivalent thereof) incurred by
English Subsidiary Three, owing by such Borrower to Rabobank and secured by
(or a Guaranty of which by the French Subsidiary is secured by) a Lien on
cash or deposit accounts of the French Subsidiary permitted under
subsection (a)(x) above;
(viii) Debt of AGCO and its Restricted Subsidiaries in an aggregate
principal amount not exceeding US$150,000,000 (or the Multi-Currency
Equivalent thereof) the proceeds of which are used, substantially
simultaneously with the incurrence thereof, to repurchase capital stock of
AGCO in a transaction otherwise permitted under this Agreement;
(ix) other Debt of AGCO and its Restricted Subsidiaries (including
without limitation Debt in respect of Receivables discounted in a
transaction permitted under subsection (e)(x) below and, without
duplication, Guaranties permitted under subsection (f)(xiii)(B) or (C)
below) in an aggregate principal amount not exceeding US$200,000,000 (or
the Multi-Currency Equivalent thereof); provided that, on the date of and
after giving effect to the incurrence of any Debt under this clause (ix),
the aggregate principal amount of Funded Debt owing by AGCO and its
Restricted Subsidiaries not permitted to be incurred or outstanding under
any clause of this subsection (b) other than this clause (ix) shall not
exceed US$100,000,000 (or the Multi-Currency Equivalent thereof);
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(x) Debt consisting of a Capitalized Lease in an aggregate principal
amount not exceeding US$20,000,000 arising from the lease by AGCO of its
headquarters building pursuant to Section 5.02(c);
(xi) Debt consisting of Guaranties permitted under subsection (f)
below (other than clause (xiii)(B) or (C) or (xiv) thereof); and
(xii) to the extent, if any, that the same shall be Debt of AGCO and
its Restricted Subsidiaries, Securitization Debt.
Notwithstanding clauses (i) through (xii) inclusive above, the Borrowers shall
not incur any Debt pursuant to clause (i) of the second paragraph of Section
4.03 of the Subordinated Debt Indenture (or that would be incurred pursuant to
such clause if Section 4.03 were then applicable under Section 4.20 of the
Subordinated Debt Indenture), other than
(x) Debt outstanding under this Agreement, and
(y) if the aggregate amount of the Multi-Currency Commitments and the
Canadian Subsidiary Commitments shall have been reduced (other than
pursuant to Section 4.10 of such indenture), Debt in an aggregate principal
amount not exceeding the amount of such reduction.
(c) Sale-Leasebacks. 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:
(i) AGCO or any Restricted Subsidiary has sold or transferred or is to
sell or transfer to any other Person, other than to another Restricted
Subsidiary, or
(ii) 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 the lease by AGCO of its headquarters building and related land at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ following a sale thereof permitted
under Section 5.02(e)(viii).
(d) Mergers, Etc. 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
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(i) any Restricted Subsidiary of AGCO may merge into or consolidate
with any other Restricted Subsidiary of AGCO, but only if
(A) in the case of any such consolidation, the Person formed by
such consolidation shall be a Restricted Subsidiary of AGCO, and
(B) if a Loan Party (x) is not the surviving corporation of any
such merger, 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;
(ii) any of AGCO's Restricted Subsidiaries may merge into AGCO so long
as AGCO is the surviving corporation; and
(iii) any other Person (other than a Subsidiary of AGCO that is not a
Restricted Subsidiary) may merge into AGCO or any of its Restricted
Subsidiaries so long as AGCO or such Restricted Subsidiary is the surviving
corporation;
provided that in each case, immediately after giving effect thereto, no event
shall occur and be continuing that constitutes a Default.
(e) Sales of Assets. Sell, lease, transfer or otherwise dispose of, or
permit any of its Restricted Subsidiaries to sell, lease, transfer or otherwise
dispose of, any assets, including without limitation substantially all assets
constituting the business of a division, branch or other unit operation, other
than Inventory sold in the ordinary course of its business, except
(i) sales, licenses and other dispositions of assets in the ordinary
course of its business;
(ii) in a transaction authorized by subsection (d) above;
(iii) the sale of any asset by AGCO or any Restricted Subsidiary
(other than a bulk sale of Inventory and a sale of Receivables other than
delinquent accounts for collection purposes only) so long as
(A) the purchase price paid to AGCO or such Restricted Subsidiary
for such asset shall be no less than the fair market value of such
asset at the time of such sale;
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(B) the purchase price for such asset (and all assets sold in
related transactions) shall be paid to AGCO or such Restricted
Subsidiary either (i) solely in cash or by way of the assumption of
liabilities of AGCO or such Restricted Subsidiary, or (ii) solely in
the form of assets (A) that are not Investments and (B) the aggregate
fair-market value of which, as determined in good faith by the Board
of Directors of AGCO, is equal to the aggregate fair- market value of
the assets sold;
(C) 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,
(1) shall not exceed U.S. $25,000,000 in the aggregate for
such transaction and all related transactions, or
(2) together with the aggregate purchase prices (including
any portions thereof in respect of an assumption of liabilities
of AGCO or any Restricted Subsidiary) paid to AGCO or any
Restricted Subsidiary for all such sales of assets after the date
of this Agreement, shall not exceed 10% of Consolidated Tangible
Net Worth as of the last day of the fiscal quarter of AGCO
immediately preceding such sale; and
(D) the Borrowers shall, on the date of such sale, if required by
Section 2.05(b)(i) or (ii), make any prepayment required by such
Section;
(iv) so long as no Default shall occur and be continuing, the grant of
any option or other right to purchase any asset in a transaction which
would be permitted under the provisions of clause (iii) above;
(v) sales of Receivables invoiced to third parties at addresses
located in the United States and Canada 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. $500,000,000;
(vi) transfers of assets between Restricted Subsidiaries and to AGCO;
(vii) dispositions of cash to make Investments permitted under
subsection (f) below;
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(viii) the sale by AGCO of its headquarters building and related land
at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and its former headquarters
building land at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
(ix) any sale by AGCO or any of its Restricted Subsidiaries of an
interest in the business of AGCO Argentina S.A. to Deutz AG that closes on
or before December 31, 1997;
(x) subject to Section 5.02(b)(ix), the discounting of Receivables by
▇▇▇▇▇▇ ▇▇▇▇▇ GmbH & Company and by AGCO Argentina S.A.; and
(xi) the sale of the Caravan division of ▇▇▇▇▇▇ ▇▇▇▇▇ GmbH & Company.
(f) Investments, Guaranties, Etc. Make or hold, or permit any of its
Restricted Subsidiaries to make or hold, any Investment in, or enter into a
Guaranty of any Obligation of, any Person other than
(i) (A) Investments in Restricted Subsidiaries existing on the date
hereof, and
(B) Investments by AGCO and its Wholly Owned Restricted
Subsidiaries in any Restricted Subsidiary at least 51% of all classes
and series of stock, interests in capital or profits and beneficial
interests of which are owned by AGCO and/or by one or more Wholly
Owned Restricted Subsidiaries (other than Financial Services Insurance
Company of Tennessee); provided that no Investments shall be made
pursuant to this clause (i) while a Default has occurred and is
continuing;
(ii) Investments after the date hereof (in addition to any Investment
permitted under clause (i) above or clauses (iii) through (v) below) by
AGCO and its Restricted Subsidiaries in any Person (other than Financial
Services Insurance Company of Tennessee)
(x) at least 5% of all classes and series of stock, interests in
capital or profits and beneficial interests of which are owned by AGCO
and/or by one or more Wholly Owned Restricted Subsidiaries, and
(y) that is solely engaged in businesses that are related,
ancillary or complementary to the business of AGCO and its Restricted
Subsidiaries as of the date hereof,
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the sole consideration for which consists of Common Stock of AGCO and/or
cash consideration not exceeding in the aggregate, on the date of any such
Investment,
(A) the sum of
(1) U.S. $50,000,000 (or the Multi-Currency Equivalent
thereof), and
(2) 50% of Consolidated Net Income for the period beginning
January 1, 1995 and ending at the end of the fiscal quarter
immediately preceding the date of such Investment, minus
(B) the aggregate amount of any dividends paid by AGCO pursuant
to subsection (g)(i)(B) below prior to the date of such Investment,
minus
(C) the aggregate amount of any cash Investments then outstanding
and made pursuant to clause (v);
provided that no Investments shall be made pursuant to this clause (ii):
(I) while a Default has occurred and is continuing,
(II) in the case of any such Investment in any Person that has
equity securities of any class that is registered pursuant to Section
12 of the Securities Exchange Act of 1934, at least five Business Days
prior to the date of such Investment, AGCO shall have notified each
Lender of the type and amount of such Investment and the issuer of
such equity securities and shall have certified that such Investment
will not result in a breach of the representation and warranty
contained in Section 4.01(i) or
(III) in a Finance Subsidiary if a default has occurred and is
continuing under any credit or loan agreement or similar facility to
which such Finance Subsidiary is a party or under any Debt of such
Finance Subsidiary;
(iii) Investments by AGCO and its Restricted Subsidiaries in joint
ventures outstanding as of the date hereof and specified in Schedule
4.01(b);
(iv) other Investments in joint ventures approved by the Required
Lenders;
(v) Investments in capital stock and other equity interests in Persons
(other than Financial Services Insurance Company of Tennessee), in addition
to those permitted under clauses (i) through (iv) inclusive above, but only
so long as
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(A) the aggregate amount of such Investments outstanding on the
date of any such Investment does not exceed U.S. $25,000,000 (or the
Multi-Currency Equivalent thereof),
(B) the amount of any such Investment does not exceed the
aggregate amount of any additional Investments that could be made
under clause (ii) above on the date of such Investment,
(C) in the case of any such Investment in any Person that has
equity securities of any class that is registered pursuant to Section
12 of the Securities Exchange Act of 1934, if, after giving effect to
such Investment, the aggregate amount of all Investments by AGCO and
the Restricted Subsidiaries in such Person would exceed US $10,000 (or
the Multi-Currency Equivalent thereof), at least five Business Days
prior to the date of such Investment, AGCO shall have notified each
Lender of the type and amount of such Investment and the issuer of
such equity securities and shall have certified that such Investment
will not result in a breach of the representation and warranty
contained in Section 4.01(i),
(D) at the time of such Investment, no Default shall have
occurred and be continuing and
(E) AGCO and its Restricted Subsidiaries shall not own in the
aggregate 5% or more of any class or series of stock, interests in
capital or profits or beneficial interests of any Person in which an
Investment is made pursuant this clause (v);
(vi) Investments received in settlement of Debt of third parties
created in the ordinary course of business;
(vii) Investments by AGCO and its Restricted Subsidiaries in Cash
Equivalents and in Hedge Agreements;
(viii) the indorsement of negotiable instruments in the ordinary
course of business;
(ix) Investments by AGCO and its Restricted Subsidiaries in Financial
Services Insurance Company of Tennessee in cash in an aggregate amount
invested not to exceed, on a Consolidated basis, U.S. $5,000,000 at any one
time outstanding;
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(x) advances to officers and employees of AGCO or any of its
Restricted Subsidiaries in the ordinary course of business for travel and
entertainment expenses;
(xi) Guaranties required to be delivered pursuant to Section
3.01(e)(vii), 5.01(l) or 5.02(l);
(xii) Investments in Agricredit Acceptance Corporation, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Finance Ltd., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ France SNC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Finanzierung G.m.b.H. in existence on the date hereof;
(xiii) Guaranties (A) by AGCO of the hedging and foreign-exchange
arrangements that any Subsidiary may enter into with any financial
institution, (B) by AGCO or any Restricted Subsidiary of 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, or by AGCO of Guaranties by Restricted Subsidiaries of such
lines of credit, and (C) by AGCO of Indebtedness of ▇▇▇▇▇▇ ▇▇▇▇▇ GmbH &
Company;
(xiv) Guaranties permitted under subsection (b) above (other than
clause (xiii) thereof);
(xv) Guaranties of obligations (other than obligations constituting
Debt) of any Subsidiary incurred in the ordinary course of such
Subsidiary's business;
(xvi) securities received in settlement of bankruptcy claims;
(xvii) Guaranties by the French Subsidiary of Debt of English
Subsidiary Three permitted under Section 5.02(b)(vii); and
(xviii) Guaranties by AGCO of Indebtedness of its Restricted
Subsidiaries permitted under Section 5.02(b)(ix).
(g) Dividends, Etc. Declare or pay any dividends, purchase, redeem,
---------------
retire, defease or otherwise acquire for value any of its capital stock or any
warrants, rights or options to acquire such capital stock, now or hereafter
outstanding, return any capital to its stockholders as such, make any
distribution of assets, capital stock, warrants, rights, options, obligations or
securities to its stockholders as such or permit any of its Restricted
Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for value
any capital stock of AGCO or any warrants, rights or options to acquire such
capital stock, except that
(i) so long as no Default shall have occurred and be continuing, AGCO
may
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(A) declare and deliver dividends and distributions payable only
in, or convert any preferred stock into, Common Stock of AGCO, and
(B) declare and pay cash dividends to its stockholders and
purchase, redeem, retire or otherwise acquire shares of its own
outstanding capital stock for cash so long as the aggregate amount
thereof does not exceed
(1) 50% of Consolidated Net Income for the period beginning
January 1, 1995 and ending at the end of the fiscal quarter
immediately preceding such declaration or payment, minus
(2) the aggregate amount of any cash Investments then
outstanding and made pursuant to subsection (f)(ii) above in
excess of U.S. $50,000,000;
(ii) AGCO may acquire shares of its capital stock to eliminate
fractional shares; provided that the aggregate amount paid by AGCO pursuant
to acquisitions under this clause (ii) after the date of this Agreement
shall not exceed U.S. $20,000,000.
Any dividend permitted under this Subsection (g) on the date of its declaration
may continue to be paid notwithstanding any subsequent change; provided that any
dividend shall be paid within 90 days after its declaration.
(h) Change in Nature of Business. Engage, or permit any of its
Restricted Subsidiaries (including without limitation any Persons becoming
Restricted Subsidiaries after the date hereof) to engage in any business that is
not related, ancillary or complementary to the business of AGCO and its
Restricted Subsidiaries as of the date hereof.
(i) Charter Amendments. Amend, or permit any of its Restricted
Subsidiaries to amend, its charter, bylaws or similar constituent documents that
would have a Material Adverse Effect.
(j) Prepayments, Etc. of Debt. Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or make
any payment in violation of, or amend, modify or supplement in any way, any
subordination terms of, any Debt, other than
(i) the prepayment of the Advances in accordance with the terms of
this Agreement;
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(ii) payments and prepayments of Debt outstanding under any overdraft
facility permitted under subsection (b)(viii) above;
(iii) regularly scheduled or required repayments or redemptions of
Debt outstanding on the date hereof;
(iv) regularly scheduled payments in respect of New Subordinated Debt
(to the extent such payment is not contrary to the terms of subordination
thereof);
(v) payments and prepayments of Debt owed by (A) AGCO to any
Restricted Subsidiary (other than a Foreign Subsidiary), (B) any Restricted
Subsidiary to AGCO, and (C) any Restricted Subsidiary to another Restricted
Subsidiary (other than a Foreign Subsidiary);
(vi) the prepayment of the Debt outstanding under the Old Credit
Agreement; and
(vii) the payment of Debt with the Net Cash Proceeds of the sale of
the Caravan division of ▇▇▇▇▇▇ ▇▇▇▇▇ GmbH & Company;
or amend, modify or change in any manner any term or condition (including
without limitation any financial covenant) of any such Debt, or permit any of
its Restricted Subsidiaries to do any of the foregoing (other than to prepay any
Debt payable to AGCO); or cancel, forgive or modify in any respect materially
adverse to AGCO or the Lenders any Debt owing by a Subsidiary to AGCO or another
Subsidiary.
(k) Restrictions on Dividends. 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 Debt
owing by any Restricted Subsidiary of AGCO to AGCO or another Subsidiary of
AGCO, other than (i) restrictions imposed under an agreement for the sale of all
of the capital 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, and (ii)
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.
(l) New Subsidiaries. Acquire, or permit any of its Restricted
Subsidiaries to acquire, any new Subsidiary, or permit any Dormant Subsidiary to
cease to meet the conditions necessary to qualify as a Dormant Subsidiary
hereunder, unless such new
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Subsidiary or Dormant Subsidiary (if other than a Finance Subsidiary) shall have
executed and delivered to the Administrative Agent a Loan Party Guaranty in form
and substance satisfactory to the Administrative Agent of any or all Loan
Parties' obligations hereunder and under the other Loan Documents, as determined
by the Administrative Agent; provided that, subject to Section 5.01(l), no
Foreign Subsidiary shall be required to guaranty the obligations of any
Subsidiary that is not a Foreign Subsidiary.
(m) Issuance or Sales of Stock. Either
(i) sell, assign or otherwise transfer, or permit any of its
Restricted Subsidiaries to sell, assign or otherwise transfer, any capital
stock of any Restricted Subsidiary owned at any time after the date hereof,
or
(ii) permit any Restricted Subsidiary to issue or sell any shares of
its capital stock, except
(A) to qualify directors of Subsidiaries where required by
applicable law or to satisfy other requirements of applicable law with
respect to the ownership of capital stock of Subsidiaries incorporated
in jurisdictions outside of the United States of America, and
(B) issuances and sales of capital stock by Wholly Owned
Restricted Subsidiaries to AGCO or other Wholly Owned Subsidiaries of
AGCO permitted by subsection (f)(ii) above,
except that AGCO or any Restricted Subsidiary may so transfer, issue or
sell such capital stock or shares:
(1) if, after giving effect to such transfer, issuance or sale, no
Default shall have occurred and be continuing (including without limitation
any Default under subsection (b) or (f) above);
(2) in circumstances where, as a result of such transfer, issuance or
sale, any Person would cease to be a Restricted Subsidiary, no Default
would have existed under Section 5.04 as of the end of the most recent
fiscal quarter of AGCO, assuming that such Person had not been a Restricted
Subsidiary at any time during the periods or on any date used in making any
calculation or determination under such Section; and
(3) if AGCO shall have delivered to each Lender (x) a certification to
the effect set forth in clause (1) and (if applicable) clause (2) above
(together with a reasonably detailed statement showing the basis for its
certification as to the matters
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described in clause (ii)) and (y) if requested by the Administrative Agent
pro-forma financial statements for each period and date referred to in
clause (2) above prepared as if such Person had not been a Restricted
Subsidiary for such period or as of such date.
(n) Change in Policies Regarding Receivables, Reserves and Allowances.
Modify, supplement or fail to carry out, or permit any Restricted Subsidiary to
modify, supplement or fail to carry out, in any material respect, its policies
and procedures in effect on the date hereof regarding the creation of Reserves
and Allowances or the terms of the obligations of the obligors under
Receivables, or implement any such policies or procedures that differ materially
from those of AGCO in effect on the date hereof.
(o) Excess Proceeds. Permit to exist any Excess Proceeds (as defined
in the Subordinated Debt Indenture), if the existence thereof would require AGCO
to offer to purchase the New Subordinated Debt.
(p) No Notice Under Subordinated Debt Indenture. Deliver, or permit
there to be delivered, to the trustee under the Subordinated Debt Indenture any
notice that any agreement, instrument or document, other than this Agreement and
related instruments and documents, is the "Bank Credit Agreement" thereunder.
SECTION 5.03. Reporting Requirements. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender shall
have any Commitment hereunder, AGCO will, unless the Required Lenders shall
otherwise consent in writing, furnish to the Administrative Agent (with a
sufficient number of copies so that the Administrative may distribute a copy to
the Canadian Administrative Agent and each of the Lenders, and the
Administrative Agent agrees promptly following receipt thereof to distribute to
the Canadian Administrative Agent and each Lender a copy of each item received
by it pursuant to this Section 5.03):
(a) Default Notice. As soon as possible and in any event within two
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
45 days after the end of each of the first three quarters of each fiscal year of
AGCO, and within 100 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 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
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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 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 covenants
contained in Sections 5.02(e)(iii), 5.02(f)(ii) and (v), 5.02(g)(i)(B) and
(iii) and 5.04(a), (b), (c) and (d).
(c) Annual Financials. As soon as available and in any event within
100 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 acceptable to the Required Lenders of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP 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, 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 Consolidated Average Funded Debt/EBITDA Ratio and
compliance with the covenants contained in Sections 5.02(e)(iii),
5.02(f)(ii) and (v), 5.02(g)(i)(B) and (iii) and 5.04(a), (b), (c) and (d);
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.
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(d) ERISA Events and ERISA Reports. (i) Promptly and in any event
within 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 furnished to the PBGC with
respect to any Plan pursuant to Section 4010 of ERISA, a copy of such records,
documents and information.
(e) Plan Terminations. Promptly and in any event within two 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 terminate any Plan
of any Loan Party or any of its ERISA Affiliates or to have a trustee appointed
to administer any such Plan.
(f) Plan Annual Reports. Promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service, copies of each
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.
(g) Multiemployer Plan Notices. Promptly and in any event within five
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.
(h) 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 4.01(h).
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(i) 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 its stockholders, 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.
(j) Creditor Reports. 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
5.03.
(k) 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.
(l) 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 could have a
Material Adverse Effect.
(m) Adverse Developments. Promptly after 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 (including without limitation any events or conditions
described in Section 4.01(q) or the loss of use of any trademarks or patents)
that is reasonably likely to have a Material Adverse Effect.
(n) Borrowing Base Certificates. As soon as practicable and, in any
event by
(i) the 15th day after the last day of each calendar month (or, if such
day is not a Business Day, on the next-following day that is a Business
Day),
(ii) if a Default shall have occurred and be continuing, not later than
the fifth Business Day after the Required Lenders shall have requested the
same, and
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(iii) if a sale of Receivables shall have occurred pursuant to Section
5.02(e)(v), not later than the fifth Business Day after the date of such
sale,
a Borrowing Base Certificate executed by the Chief Financial Officer, the
Treasurer or an Assistant Treasurer of AGCO with respect to the Receivables and
Inventory of AGCO and its Restricted Subsidiaries as of the last Business Day of
the immediately preceding calendar month, in the case of a Borrowing Base
Certificate delivered pursuant to clause (i) above, as of the date of such
request, in the case of a Borrowing Base Certificate delivered pursuant to
clause (ii) above and as of the date of such sale, in the case of a Borrowing
Base Certificate delivered pursuant to clause (iii) above.
(o) Quarterly Operations Report. As soon as possible and in any event
by the 45th day after each fiscal quarter of AGCO, beginning with the fiscal
quarter ending December 31, 1996, a quarterly operations report in respect of
the immediately preceding fiscal quarter in substantially the form prepared by
AGCO for its internal use and containing substantially the information as is
contained in such report as of the date hereof.
(p) Replacement Schedules. Promptly, and in any event within 30 days,
after any information contained in Schedule 4.01(b) (other than with respect to
Dormant Subsidiaries) or any representation or warranty herein referring to such
Schedule, if repeated as of any date, shall become or would be incorrect or
incomplete, deliver to the Administrative Agent a replacement for such Schedule
that will cause such information, or such representation or warranty, to be
correct and complete.
(q) Securitization Debt. Promptly on request by the Administrative
Agent, such information as the Administrative Agent may request to determine the
aggregate principal amount of Securitization Debt outstanding on any date.
(r) 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 Co-Manager may
reasonably request or any Lender may from time to time reasonably request
through a Co-Manager.
SECTION 5.04. Financial Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender shall have any
Commitment hereunder, AGCO will, unless the Required Lenders otherwise consent
in writing:
(a) Consolidated Total Debt Ratio. Maintain, as of the end of each
fiscal quarter of AGCO, the ratio of
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(i) the aggregate principal amount of all Debt of AGCO and its
Restricted Subsidiaries, to
(ii) such aggregate principal amount, plus Consolidated Net Worth, in
each case at the last day of such fiscal quarter, at no more than .60 to 1.
(b) EBITDA Ratio. Maintain, as of the end of each fiscal quarter of
AGCO, the ratio of
(i) Consolidated EBITDA, to
(ii) (A) Consolidated Net Interest Expense, plus
(B) the aggregate principal amount of Consolidated Senior Funded
Debt to be paid within one year after the last day of such fiscal
quarter, plus
(C) the aggregate amount of all capital expenditures made by AGCO
and its Restricted Subsidiaries,
in the case of clauses (i), (ii)(A) and (ii)(C) above for such fiscal quarter
and the three fiscal quarters of AGCO immediately preceding such fiscal quarter,
at no less than the ratio set forth below with respect to the date on which such
fiscal quarter ends:
-------------------------------------------------------------------
RATIO FISCAL QUARTERS ENDING:
-------------------------------------------------------------------
2.00 to 1.00 Prior to March 31, 1999
-------------------------------------------------------------------
1.20 to 1.00 On or after March 31, 1999 but prior to
December 31, 1999
-------------------------------------------------------------------
1.30 to 1.00 On or after December 31, 1999 but prior to
December 31, 2000
-------------------------------------------------------------------
1.50 to 1.00 On or after December 31, 2000 but prior to
March 31, 2001
-------------------------------------------------------------------
1.75 to 1.00 On or after March 31, 2001
-------------------------------------------------------------------
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(c) Consolidated Senior Funded Ratio. Maintain, as of the last day of
each fiscal quarter of AGCO, the ratio of
(i) the aggregate principal amount of Consolidated Senior Funded Debt
and Securitization Debt as of the end of such fiscal quarter to
(ii) Consolidated EBITDA for such fiscal quarter and the three
complete fiscal quarters of AGCO immediately preceding such fiscal quarter,
at no more than the ratio set forth below with respect to the date on which
such fiscal quarter ends:
----------------------------------------------------------------------
RATIO FISCAL QUARTERS ENDING:
----------------------------------------------------------------------
5.00 to 1.00 Prior to December 31, 1999
----------------------------------------------------------------------
4.00 to 1.00 On or after December 31, 1999 but prior to
September 30, 2000
----------------------------------------------------------------------
3.75 to 1.00 On or after September 30, 2000 but prior to
December 31, 2000
----------------------------------------------------------------------
3.50 to 1.00 On or after December 31, 2000
----------------------------------------------------------------------
(d) Consolidated Tangible Net Worth Ratio. Maintain, as of the last
day of each fiscal quarter of AGCO, the ratio of
(i) the sum of (A) Consolidated Tangible Net Worth, and (B) the
aggregate principal amount of all New Subordinated Debt and the
Convertible Subordinated Debentures, to
(ii) Consolidated Total Assets,
in each case as of the last day of such fiscal quarter, at no less than
(1) 0.22 to 1.00, if such fiscal quarter ends before July 1,
1997,
(2) 0.26 to 1.00, if such fiscal quarter ends after July 1, 1997
but before October 1, 1998,
(3) 0.30 to 1.00, if such fiscal quarter ends after October 1,
1998.
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SECTION 5.05. Covenants of the Borrowing Subsidiaries. Each Borrowing
Subsidiary will perform and observe each covenant in Section 5.01 and 5.02 that
AGCO is required to cause it to perform or observe under such Sections.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) (i) Any Borrower shall fail to pay (A) any principal or face
amount of any Advance on the date when the same becomes due and payable, or
(B) any interest on any Advance within one day 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 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) AGCO shall fail to perform or observe any term, covenant or
agreement contained in Section 5.01(e)(with respect to any Borrower),
5.02(c), (d), (e), (g) or (m), 5.03(a) or 5.04; or
(d) any Loan Party shall fail to perform any other term, covenant or
agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for 30 days after the
earlier of (i) such Loan Party having knowledge thereof, and (ii) written
notice thereof having been given to AGCO; or
(e) any Loan Party or any of AGCO's other Restricted Subsidiaries
shall fail to pay any principal of, premium or interest on or any other
amount payable in respect of any Debt, if such Debt is outstanding in a
principal or notional amount of at least U.S. $10,000,000 in the aggregate
(but excluding Debt 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 applicable
grace period, if any, specified in the agreement or instrument relating to
such Debt; or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Debt and shall continue
after the applicable grace
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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 Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or any such Debt 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 Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(f) any Loan Party or any of AGCO's other Restricted Subsidiaries
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 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
any Loan Party or any of AGCO's other Restricted Subsidiaries 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 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 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
any Loan Party or any of AGCO's other Restricted Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in
this subsection (f), 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 any Loan Party or
any of AGCO's other Restricted Subsidiaries, 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 (f) occurs under the laws of any applicable
jurisdictions; or
(g) 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)
shall be rendered against any Loan Party or any of AGCO's other Restricted
Subsidiaries and either
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(i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order, or
(ii) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of AGCO's other Restricted Subsidiaries that is reasonably
likely to have a Material Adverse Effect, and there shall be any period of
30 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(i) any provision of any Loan Document after delivery thereof pursuant
to Section 3.01 shall for any reason cease to be valid and binding on or
enforceable against any Loan Party party to it, or any such Loan Party
shall so state in writing; or
(j) any security agreement or other document delivered pursuant to
Section 5.01(n) shall for any reason (other than pursuant to the terms
thereof) cease to create a valid and perfected first-priority Lien (or a
valid first-priority Lien in the case of collateral provided by a Foreign
Subsidiary) on any purported collateral referred to therein; or
(k) any of the following shall occur:
(i) any Person or two or more Persons 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
40% or more of the combined voting power of all Voting Stock of AGCO;
or
(ii) during any period of up to 24 consecutive months, commencing
after the date of this Agreement, individuals who at the beginning of
such 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
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(iii) 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 40% or more
of the combined voting power of all Voting Stock of AGCO; or
(iv) any "Change of Control", as defined in the Subordinated Debt
Indenture, shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan of any
Loan Party or any of its ERISA Affiliates and the sum (determined as of the
date of occurrence of such ERISA Event) of the Insufficiency of such Plan
and the Insufficiency of any and all other Plans of the Loan Parties and
their ERISA Affiliates with respect to which an ERISA Event shall have
occurred and then exist for which the liability of the Loan Parties and
their ERISA Affiliates is reasonably likely to have a Material Adverse
Effect; or
(m) any Loan Party or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of any Loan Party or any of
its ERISA Affiliates that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount that, when aggregated with all other
amounts then 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), is reasonably likely to have a Material Adverse
Effect; or
(n) any Loan Party or any of its ERISA Affiliates shall have 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
is being terminated, within the meaning of Title IV of ERISA, and as a
result of such reorganization or termination the aggregate annual
contributions of the Loan Parties 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 year in which such reorganization or
termination occurs by an amount that is reasonably likely to have a
Material Adverse Effect,
then, and in any such event, the Administrative Agent
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(i) may, and shall at the request of the Required Lenders, by notice
to AGCO, declare the obligation of each Lender to make Advances and of the
Issuing Banks to issue Letters of Credit to be terminated, whereupon the
same shall forthwith terminate, and
(ii) may, and shall at the request of the Required Lenders,
(A) by notice to AGCO, declare the Notes, all interest thereon
and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes, 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
(B) 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 payable;
provided that in the event of an actual or deemed entry of an order for relief
with respect to any Borrower under the Federal Bankruptcy Code,
(x) the obligation of each Lender to make Advances and of the Issuing
Bank to issue Letters of Credit shall automatically be terminated and
(y) the Notes, 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.
SECTION 6.02. Actions in Respect of the Letters of Credit. If
(a) an event of an actual or deemed entry of an order for relief with
respect to any Borrower under the Federal 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 6.01 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
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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' 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.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
and authorizes Rabobank to take action on its behalf as the Administrative
Agent, and each Canadian Subsidiary Lender hereby appoints and authorizes
Deutsche Bank 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 (including
without limitation enforcement or collection of the Notes), 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
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
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. Each Agent will give to each Lender prompt notice
of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
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SECTION 7.02. 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:
(i) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor, and
an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) 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;
(iii) 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;
(iv) 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;
(v) 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;
(vi) 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 (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;
(vii) 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;
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(viii) 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";
(ix) 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
(xi) may act directly or through agents on its behalf.
SECTION 7.03. Agents, in their Individual Capacity and Affiliates.
With respect to their respective Commitments, and the Advances made by each of
them, respectively, and the Notes issued to each of them, respectively, Rabobank
and Deutsche Bank 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 Deutsche Bank Canada in their individual
capacities. Rabobank and Deutsche Bank 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 Deutsche Bank Canada were not Agents and without any duty to
account therefor to the Lenders.
SECTION 7.04. 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 4.01(f) and such
other documents and information as it has deemed appropriate, made its own
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.
SECTION 7.05. Indemnification. Each Lender severally agrees to
indemnify each Agent and each Co-Manager (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 consulted pursuant to Section 7.02(ii)) of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such
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Agent or any Co-Manager in any way relating to or arising out of the Loan
Documents or any action taken or omitted by such Agent or any Co-Manager 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 resulting from such Agent's or such
Co-Manager's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse each Agent and each Co-Manager
promptly upon demand for its ratable share of any costs and expenses payable by
any Borrower under Section 8.04, to the extent that such Agent or such
Co-Manager is not promptly reimbursed for such costs and expenses by the
Borrower. For purposes of this Section 7.05, 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 Advances (other than
Advances 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
(d) their respective Unused Multi-Currency Commitments and Unused
Canadian Subsidiary Commitments at such time.
SECTION 7.06. Successor Agent. Either Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrowers and may be
removed (but only as to all of the Facilities) at any time with cause by the
Required Lenders. Upon any such resignation or removal, 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 30 days after the retiring Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which
shall be a commercial bank or other financial institution and having a combined
capital and surplus of at least U.S. $1,000,000,000. Upon the acceptance of any
appointment as an Agent hereunder by a successor Agent, 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 VII and Section 8.04 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.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement, the Notes or any other Loan Document, nor consent to any
departure by the 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 of the Lenders, do any of the following at any time:
(i) waive any of the conditions specified in Section 3.02,
(ii) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of Lenders, that
shall be required for the Lenders or any of them to take any action
hereunder,
(iii) amend this Section 8.01,
(iv) reduce or forgive the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder or increase the
aggregate amount of the Commitments,
(v) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder
or amend Section 2.05,
(vi) permit any Letter of Credit to have an expiration date
(including all rights of a Borrower or beneficiary to require renewal)
later than 60 days before the Termination Date or
(vii) waive any rights under, consent to any departure from or
agree to any amendment of any provision of, the Subordinated Debt
Indenture;
(b) no amendment, waiver or consent shall be made to Section 2.09(f)
except with the consent of the Supermajority Lenders;
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(c) no amendment, waiver or consent shall, unless in writing and
signed by the Required Lenders and each Lender that has a Commitment under
the Facility affected by such amendment, waiver or consent,
(i) increase the Commitments of such Lender or subject such
Lender to any additional obligations,
(ii) reduce the principal of, or interest on, the Notes held by
such Lender or any fees or other amounts payable hereunder to such
Lender,
(iii) postpone any date fixed for any payment of principal of, or
interest on, the Notes held by such Lender or any fees or other
amounts payable hereunder to such Lender or
(iv) change the order of application of any prepayment set forth
in Section 2.05 in any manner that materially affects such Lender;
(d) 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
(e) 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 or any Note.
Anything in this Agreement to the contrary notwithstanding, if any
Lender shall fail to fulfill its obligations to make an Advance 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
or the Notes (including without limitation under this Section 8.01) to have no
Advances 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 8.01; provided that any action taken by the other Lenders with
respect to the matters referred to in clause (a) or (b) of this Section 8.01
shall not be effective as against such Lender.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopy communication)
and mailed, telecopied or delivered,
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(a) if to the AGCO or any Borrowing Subsidiary to AGCO at its address
at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇, 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
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender;
(c) if to the Administrative Agent, at its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance
Department, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇; and
(d) if to the Canadian Administrative Agent, at its address at ▇.▇.
▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, 12th Floor, Toronto, Ontario M5K 1H6, Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President and Director, Telecopier No. (416)
682-8484,
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 when five days after deposit in the mails and when
transmitted by telecopier, except that notices and communications to an Agent
pursuant to Article II, III or VII shall not be effective until received by such
Agent.
SECTION 8.03. 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 Note 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 8.04. Costs and Expenses. (a) (i) AGCO agrees to pay on demand
all costs and expenses of the Agents and each Co-Manager in connection with the
preparation, execution, delivery, administration, modification and amendment of
the Loan Documents at any time (including without limitation in connection with
this amendment and restatement) (including without limitation (A) all due
diligence, syndication, transportation, computer, duplication, appraisal, audit,
insurance and consultant fees and expenses and (B) the reasonable fees and
expenses of counsel (including without limitation New York, local and foreign
counsel) for the Agents and/or the Co-Managers with respect thereto, with
respect to advising the Agents and Co-Managers 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
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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);
provided that AGCO shall not be obligated to pay out-of-pocket expenses of the
Administrative Agent or the Co-Managers referred to in clause (A) above to the
extent that the aggregate amount thereof exceeds U.S. $50,000.
(ii) AGCO further agrees to pay on demand all costs and expenses of
each Agent, each Co-Manager and each Lender in connection with the enforcement
of the Loan Documents against any Borrower, whether in any action, suit or
litigation, any 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, each Co-Manager 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.
(b) AGCO agrees to indemnify and hold harmless each Agent, each Co-
Manager and each Lender and each of their affiliates and their officers,
directors, 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
(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
Co-Manager, 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
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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 Advances.
(c) If any prepayment or payment (or failure to prepay after the
delivery of a notice of prepayment) of principal of, or Conversion of, any
Eurocurrency Rate Advance is made by Borrower to or for the account of a Lender
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion, acceleration of the maturity of the Notes pursuant
to Section 6.01 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 Advance upon an
assignment of rights and obligations under this Agreement pursuant to Section
2.15, 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.
(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, any Co-Manager or any Lender, in
its sole discretion.
SECTION 8.05. 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 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, 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 2.12, to set off 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 and
the Note or Notes held by such Lender, irrespective of whether such Lender shall
have made any demand under this Agreement or such Note or Notes 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
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remedies (including without limitation other rights of set-off) that such Lender
and its Affiliates may have.
SECTION 8.06. 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 the prior written
consent of each Lender except as permitted under Section 5.02(d). Section 8.13
shall also inure to the benefit of each Subsidiary of AGCO referred to therein.
SECTION 8.07. 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 Advances owing to it
and the Note or Notes held by 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. $15,000,000 and shall
be an integral multiple of U.S. $1,000,000, 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 Subsidiary
Commitment (except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Canadian Subsidiary Lender or
an assignment of all of a Canadian Subsidiary Lender's rights and
obligations under this Agreement), (A) the amount of the Canadian
Subsidiary Commitment of the assigning Canadian Subsidiary 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
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than U.S. $10,000,000 and shall be an integral multiple of U.S. $1,000,000,
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) each such assignment shall be to an Eligible Assignee;
(v) the proposed Assignee (if other than an affiliate of the assignor)
shall be approved by the Administrative Agent, AGCO, the Canadian
Administrative Agent and the Canadian Issuing Bank (if such assignment
relates to Canadian Subsidiary Advances or Canadian Subsidiary Commitments)
and the Multi-Currency Issuing Bank (if such assignment relates to
Multi-Currency Advance or Multi-Currency Commitments) (such approval in
each case not to be unreasonably withheld or delayed); and
(vi) 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 any
Note or Notes subject to such assignment and a processing and recordation
fee of U.S. $2,500, payable by the assignee to the Administrative Agent.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in such Assignment and Acceptance,
(x) 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
(y) 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).
(b) 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:
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(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
Section 4.01(f) 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 Subsidiary 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; and
(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.
(c) The Administrative Agent shall maintain at its address referred to
in Section 8.02 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 Advances owing under each Facility to,
and the Notes held by, each Lender from time to time (the
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"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 Subsidiary Facility.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any Note or Notes subject to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit D
hereto,
(i) record the information contained therein in the Register, and
(ii) give prompt notice thereof to the Borrowers.
Within five Business Days after its receipt of such notice, the Borrowers, at
their own expense, shall execute and deliver to the Administrative Agent in
exchange for the surrendered Note or Notes a new Note to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by it under a
Facility pursuant to such Assignment and Acceptance and, if the assigning Lender
has retained a Commitment hereunder under such Facility, a new Note to the order
of the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A hereto for AGCO and the
Borrowing Subsidiaries.
(e) 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, the Advances owing to it and the Note or
Notes held by 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;
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(iii) such Lender shall remain the holder of any such Note for all
purposes of this Agreement,
(iv) 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
(v) 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 the
principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, except in accordance
with the terms hereof or of any other Loan Document.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, 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 labelled 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.
(g) 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 Advances owing
to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
Section 8.08. Judgment Currency. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or under
the Notes 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. 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 or under the
Notes held by such
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Lender 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 8.09. 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 (including without limitation Articles 14 and 15 of the French
Civil Code);
(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 8.02; 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.
Nothing in this Section 8.09 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 8.02.
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SECTION 8.10. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.11. 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 8.12. 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,
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
(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.
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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 8.13. 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 Borrower Outstandings
shall exceed 105% of the Multi-Currency Facility (the "Multi-Currency Borrower
Excess Outstandings") and to the extent that a Multi-Currency Borrower is not
required on such date to prepay Multi-Currency Advances in an aggregate
principal amount equal to the Multi-Currency Borrower Excess Outstandings
pursuant to Section 2.05(b)(ii)(A), 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 Borrower Excess
Outstandings (net of any prepayment pursuant to Section 2.05(b)(ii)(A)). 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 Borrower
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 Borrower
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 next-following Business Day), the Canadian Subsidiary Outstandings
shall exceed 105% of the Canadian Subsidiary Facility (the "Canadian Subsidiary
Excess Outstandings") and to the extent that the Canadian Subsidiary is not
required on such date to prepay Canadian Subsidiary Advances in an aggregate
principal amount equal to the Canadian Subsidiary Excess Outstandings pursuant
to Section 2.05(b)(ii)(B), the Canadian Subsidiary will, promptly after a
request therefor by the Canadian Administrative Agent, deposit in same-day funds
at the Canadian Administrative
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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 Subsidiary
Excess Outstandings (net of any prepayment pursuant to Section 2.05(b)(ii)(A)).
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 Subsidiary 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 Subsidiary Excess
Outstandings as of the date of and after giving effect to such reduction.
SECTION 8.14. Conditions to Effectiveness of this Agreement. Conditions
to the effectiveness of this Second Amended and Restated Credit Agreement are
(a) the delivery by each Subsidiary Guarantor that is not a Borrower of the
confirmation and ratification attached hereto, (b) the delivery of secretaries'
certificates or other evidence, in each case in form and substance satisfactory
to the Agents, that this Agreement has been duly authorized by each Borrower and
(c) the execution of this Second Amended and Restated Credit Agreement by each
Borrower, each Agent, the Appropriate Issuing Banks and the Required Lenders.
Until such conditions shall have been satisfied, this Agreement shall continue
to be in effect as in effect prior to its amendment and restatement hereby.
Promptly after the effective date of this Agreement on request by any Lender the
Borrowers will execute and deliver Notes to such Lender in the applicable form
attached to this Agreement as Exhibits A-1 and A-2. Prior to any such delivery,
the Notes previously delivered by the Borrowers pursuant to this Agreement as in
effect prior to its amendment and restatement hereby shall remain valid and
binding obligations of the Borrowers for all purposes, notwithstanding the
amendment and restatement of the form thereof as provided in this Agreement.
SECTION 8.15. Schedules to this Agreement. The Schedules (other than
Schedule I, which is attached to this amendment and restatement) attached to
this Agreement as in effect prior to its amendment and restatement hereby are
the Schedules referred to in this Agreement, as amended and restated, and shall
be deemed to be the Schedules attached to, and to form a part of, this
Agreement, as amended and restated.
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SECTION 8.16. Ratification of Guaranties, etc. Each Borrower that
entered into a Guaranty of the obligations of some or all of the other Borrowers
under the Credit Agreement or another Loan Document unconditionally confirms and
agrees that each such Loan Document is and shall continue to be in full force
and effect and is hereby ratified and confirmed in all respects, except that, on
and after the date of this Agreement, each reference therein to "this
Agreement", "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement shall mean and be a reference to this
Agreement, as amended and restated hereby.
SECTION 8.17. Waiver of Jury Trial. EACH OF EACH BORROWER, EACH AGENT,
EACH CO-MANAGER AND THE LENDERS 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
ADVANCES OR THE ACTIONS OF EITHER AGENT, ANY CO-MANAGER OR ANY LENDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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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.
AGCO CORPORATION AGCO MANUFACTURING LIMITED
(formerly known as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
MANUFACTURING LIMITED)
By_________________________
Title:
By_________________________
Title:
AGCO LIMITED (formerly known as
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LIMITED) AGCO S.A. (formerly known as ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇.▇.)
By_________________________ By_________________________
Title: Title:
AGCO INTERNATIONAL LIMITED AGCO HOLDING B.V.
(formerly known as AGCO LIMITED)
By_________________________
By_________________________ Title:
Title:
AGCO VERTRIEBS GMBH (formerly AGCO CANADA, LTD.
known as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GMBH)
By_________________________
By_________________________ Title:
Title:
The undersigned, as a guarantor of the Borrowers' obligations under the
above Credit Agreement, consents to the amendment and restatement of such Credit
Agreement as set forth above and confirms that its guaranty of such obligations
is, and shall continue to be, in full force and effect and ratifies and confirms
such guaranty in all respects, in each case except that, on and after the
effective date of such amendment and restatement, each reference in such
guaranty to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement, as amended and restated as provided above.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CORP.
By________________________
Title:
139
COOPERATIEVE CENTRALE DEUTSCHE BANK CANADA, as Canadian
RAIFFEISEN-BOERENLEENBANK B.A., Administrative Agent, a Canadian Subsidiary
"RABOBANK NEDERLAND", NEW Lender and Canadian Issuing Bank
YORK BRANCH, as Administrative Agent,
Co-Manager, a Multi-Currency Lender
and Issuing Bank By_________________________
Title:
By_________________________
Title:
By_________________________
Title:
SUNTRUST BANK, ATLANTA, as Co- DEUTSCHE BANK AG, NEW YORK
Manager and a Multi-Currency Lender BRANCH and/or CAYMAN ISLANDS
BRANCH, as Co-Manager and a Multi-
Currency Lender
By_________________________
Title:
By_________________________
Title:
By_________________________
Title:
By_________________________
Title:
140
THE FIRST NATIONAL BANK OF CHICAGO,
as a Multi-Currency Lender
By_________________________
Title:
CREDIT LYONNAIS, ATLANTA AGENCY,
as a Multi-Currency Lender
By_________________________
Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as a Multi-Currency Lender
By_________________________
Title:
MELLON BANK, N.A., as a
Multi-Currency Lender
By_________________________
Title:
BANKERS TRUST COMPANY,
as a Multi-Currency Lender
By_________________________
Title:
CHRISTIANIA BANK OG KREDITKASSE,
as a Multi-Currency Lender
By_________________________
Title:
CIBC INC., as a Multi-Currency Lender
By_________________________
Title:
COMMERZBANK AKTIEN-GESELLSCHAFT,
ATLANTA AGENCY, as a Multi-Currency Lender
By_________________________
Title:
KBC BANK, N.V., as a Multi-Currency Lender
By_________________________
Title:
CREDIT INDUSTRIEL ET COMMERCIAL,
as a Multi-Currency Lender
By_________________________
Title:
COBANK, ACB, as a Multi-Currency Lender
By_________________________
Title:
MARINE MIDLAND BANK,
as a Multi-Currency Lender
By_________________________
Title:
141
THE BANK OF TOKYO-MITSUBISHI, LTD.,
ATLANTA AGENCY, as a Multi-Currency Lender
By_________________________
Title:
UNION BANK OF CALIFORNIA,
as a Multi-Currency Lender
By_________________________
Title:
BAYERISCHE HYPOTHEKEN-UND
WECHSEL BANK AKTIEN-GESSELSCHAFT,
NEW YORK BRANCH, as a Multi-Currency Lender
By_________________________
Title:
WACHOVIA BANK OF GEORGIA, N.A.,
as a Multi-Currency Lender
By_________________________
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR, as a Multi-Currency Lender
By_________________________
Title:
BANK OF MONTREAL, as a Multi-Currency
Lender and a Canadian Subsidiary Lender
By_________________________
Title:
SOCIETE GENERALE,
as a Multi-Currency Lender
By_________________________
Title:
TORONTO DOMINION (TEXAS), INC.,
as a Multi-Currency Lender
By_________________________
Title:
BANQUE NATIONALE DE PARIS,
as a Multi-Currency Lender
By_________________________
Title:
CLYDESDALE BANK PLC,
as a Multi-Currency Lender
By_________________________
Title:
DG BANK DEUTSCHE GENOSSEN-
SCHAFTSBANK, CAYMAN ISLAND
BRANCH, as a Multi-Currency Lender
By_________________________
Title:
ISTITUTO BANCARIO SAN PAOLO
DI TORINO ISTITUTO MOBILIARE
ITALIANO SPA, as a Multi-Currency Lender
By_________________________
Title:
By_________________________
Title:
STANDARD CHARTERED BANK,
as a Multi-Currency Lender
By_________________________
Title:
THE SUMITOMO BANK, LIMITED,
as a Multi-Currency Lender
By_________________________
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH,
as a Multi-Currency Lender
By_________________________
Title:
BANCA NAZIONALE DEL LAVORO SPA,
NEW YORK BRANCH, as a Multi-Currency Lender
By_________________________
Title:
NATIONAL BANK OF CANADA,
as a Canadian Subsidiary Lender
By_________________________
Title:
THE TORONTO DOMINION BANK,
as a Canadian Subsidiary Lender
By_________________________
Title:
BANK AUSTRIA AKTIENGESELLSCHAFT,
NEW YORK BRANCH,
as a Multi-Currency Lender
By_________________________
Title:
142
EXHIBIT A-1 - FORM OF PROMISSORY NOTE -
MULTI-CURRENCY FACILITY
PROMISSORY NOTE
U.S.$_______ Dated: ___________ __, ____
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER],
HEREBY PROMISES TO PAY to the order of ______________ (the "Lender"), for the
account of its Applicable Lending Office (such term and other capitalized terms
used herein and not otherwise defined having the respective meanings specified
in the Credit Agreement referred to below) the aggregate principal amount of
the Advances (or such portion thereof as may be specified in the Credit
Agreement) made by the Lender to the Borrower pursuant to the Credit Agreement
outstanding on the Termination Date or on such earlier date as may be specified
in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal
amount is paid in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement.
Both principal and interest in respect of each Advance made
to it (a) in United States Dollars are payable in lawful money of the United
States of America to Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", New York Branch ("Rabobank") (or any successor appointed
as administrative agent pursuant to Article VII of the Credit Agreement), as
administrative agent, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Services Department, in same-day funds and (b) in an Alternate
Currency are payable in such currency at the Administrative Agent's office
specified in the Credit Agreement for payments in such currency, in same-day
funds. Each Advance owing to the Lender by the Borrower pursuant to the Credit
Agreement (including each Letter of Credit Advance purchased by the Lender as
provided in the Credit Agreement), and the maturity thereof, and all payments
made on account of principal thereof, shall be recorded by the Lender and,
prior to any transfer hereof, endorsed on the grid attached hereto which is
part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Second Amended and Restated Credit Agreement
dated as of February __, 1999 (as amended, modified and supplemented from time
to time, the "Credit Agreement") among [AGCO CORPORATION] [THE BORROWER] and
certain subsidiaries thereof; the lenders listed on the signature pages thereof;
Rabobank, SunTrust Bank, Atlanta, and Deutsche Bank AG, New York Branch, as
co-managers; Deutsche Bank Canada, as Canadian administrative agent, and
Rabobank, as administrative agent. The Credit Agreement, among other things,
143
2
(a) provides for the making of Advances by the Lender to the Borrower from time
to time in an aggregate amount not to exceed at any time outstanding the amount
specified above (or the equivalent in other currencies), all such Advances to
the undersigned being evidenced by this Promissory Note and (b) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.
[NAME OF BORROWER]
By________________________
Title:
144
ADVANCES AND PAYMENTS OF PRINCIPAL
------------------------------------------------------------------------------------------------------------------------
AMOUNT OF
DATE TYPE OF AMOUNT OF CURRENCY PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
ADVANCE ADVANCE OR PREPAID BALANCE MADE BY
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
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------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
145
EXHIBIT A-2 - FORM OF PROMISSORY NOTE
CANADIAN SUBSIDIARY FACILITY
PROMISSORY NOTE
U.S.$_______ Dated: ___________ __, ____
FOR VALUE RECEIVED, the undersigned, AGCO CANADA, LTD., a Saskatchewan
corporation, HEREBY PROMISES TO PAY to the order of ______________ (the
"Lender"), for the account of its Applicable Lending Office (such term and
other capitalized terms used herein and not otherwise defined having the
respective meanings specified in the Credit Agreement referred to below) the
aggregate principal amount of the Advances (or such portion thereof as may be
specified in the Credit Agreement) made by the Lender to the Borrower pursuant
to the Credit Agreement outstanding on the Termination Date or on such earlier
date as may be specified in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest in respect of each Advance made to it in
any currency are payable in such currency to Deutsche Bank Canada (or any
successor appointed as Canadian administrative agent pursuant to Article VII of
the Credit Agreement), as Canadian administrative agent, at _______, _______,
_______, in same-day funds. Each Advance owing to the Lender by the Borrower
pursuant to the Credit Agreement (including each Letter of Credit Advance
purchased by the Lender as provided in the Credit Agreement), and the maturity
thereof, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Second Amended and Restated Credit Agreement
dated as of February __, 1999 (as amended, modified and supplemented from time
to time, the "Credit Agreement") among AGCO Corporation and certain
subsidiaries thereof; the lenders listed on the signature pages thereof;
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New
York Branch ("Rabobank"), SunTrust Bank, Atlanta, and Deutsche Bank AG, New
York Branch, as co-managers; Deutsche Bank Canada, as Canadian administrative
agent, and Rabobank, as administrative agent. The Credit Agreement, among other
things, (a) provides for the making of Advances by the Lender to the Borrower
from time to time in an aggregate amount not to exceed at any time outstanding
the amount specified above (or the equivalent in other currencies), all such
Advances to the undersigned being evidenced by this Promissory Note and (b)
contains provisions for acceleration of the maturity hereof
146
upon the happening of certain stated events and also for prepayments on account
of principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
AGCO CANADA, LTD.
By:
-----------------------------
Title:
147
ADVANCES AND PAYMENTS OF PRINCIPAL
------------------------------------------------------------------------------------------------------------------------
AMOUNT OF
DATE TYPE OF AMOUNT OF CURRENCY PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
ADVANCE ADVANCE OR PREPAID BALANCE MADE BY
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
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148
EXHIBIT B-1 - FORM OF NOTICE OF BORROWING -
MULTI-CURRENCY BORROWERS
NOTICE OF BORROWING
Cooperatieve Centrale Raiffeisen-
Boerenleenbank B.A.,
"Rabobank Nederland", New York Branch,
as Administrative Agent
under the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ______ __, ____
Attention: Structured Finance Department
Ladies and Gentlemen:
The undersigned refers to the Second Amended and Restated Credit
Agreement dated as of February __, 1999 (as amended, modified and supplemented
from time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined) among AGCO Corporation and certain subsidiaries
thereof; the lenders listed on the signature pages thereof; Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch
("Rabobank"), SunTrust Bank, Atlanta, and Deutsche Bank AG, New York Branch, as
co-managers; Deutsche Bank Canada, as Canadian administrative agent, and
Rabobank, as administrative agent for the lenders; and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing"), as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is _________ __, 199_.
(ii) The Type of the Advances to comprise the Proposed Borrowing is a
[Eurocurrency Rate Advance] [Base Rate Advance].
(iii) The aggregate principal amount of the Proposed Borrowing is
$__________.
(iv) The currency in which such Proposed Borrowing is to be made is
_______. [U.S. dollars or Alternate Currency.]
[(v) The initial Interest Period for each Eurocurrency Rate Advance
comprising the proposed Borrowing is _______.] [Necessary for Eurocurrency Rate
Borrowings only.]
149
[(vi) The Borrower's Account for the undersigned for the Proposed
Borrowing is _______.]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in each Loan Document
are correct and will be correct on the date of the Proposed Borrowing, before
and after giving effect to the Proposed Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date, other than any
such representations or warranties that, by their terms, refer to a date
other than the date of the Proposed Borrowing;
(B) no event has occurred and is continuing, or would result from such
Proposed Borrowing or from the application of the proceeds therefrom, that
constitutes a Default;
(C) on the date of the Proposed Borrowing and after giving effect
thereto, the aggregate principal amount of all Borrower Outstandings will not
exceed the Borrowing Base on such date; and
(D) there has occurred no Material Adverse Effect since December 31,
1995.
Very truly yours,
[NAME OF BORROWER]
By______________________________
Title:
150
EXHIBIT B-2 - FORM OF NOTICE OF BORROWING -
CANADIAN SUBSIDIARY
NOTICE OF BORROWING
Deutsche Bank Canada,
as Canadian Administrative Agent under
the Credit Agreement
referred to below
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ______ __, ____
Attention: Corporate Finance Department/Syndications
Ladies and Gentlemen:
The undersigned refers to the Second Amended and Restated Credit
Agreement dated as of February __, 1999 (as amended, modified and supplemented
from time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined) among AGCO Corporation and certain subsidiaries
thereof; the lenders listed on the signature pages thereof; Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch
("Rabobank"), SunTrust Bank, Atlanta, and Deutsche Bank, New York Branch, as
co-managers; Deutsche Bank Canada, as Canadian administrative agent, and
Rabobank, as administrative agent for the lenders; and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing"), as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is _________ __, 199_.
(ii) The Type of the Advances to comprise the Proposed Borrowing is a
[Eurocurrency Rate Advance] [Base Rate Advance] [Bankers' Acceptance].
(iii) The aggregate principal amount [face amount] of the Proposed
Borrowing is $__________.
(iv) The initial Interest Period for each Eurocurrency Rate Advance
comprising the proposed Borrowing is _______. [Necessary for Eurocurrency Rate
Borrowings only.]
(v) The Contact Period for each Bankers' Acceptance comprising the
proposed Borrowing is ____________. [Necessary for Bankers' Acceptances only.]
151
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in each Loan Document
are correct and will be correct on the date of the Proposed Borrowing, before
and after giving effect to the Proposed Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date, other than any
such representations or warranties that, by their terms, refer to a date
other than the date of the Proposed Borrowing;
(B) no event has occurred and is continuing, or would result from such
Proposed Borrowing or from the application of the proceeds therefrom, that
constitutes a Default;
(C) on the date of the Proposed Borrowing and after giving effect
thereto, the aggregate principal amount of all Borrower Outstandings will not
exceed the Borrowing Base on such date; and
(D) there has occurred no Material Adverse Effect since December 31,
1995.
Very truly yours,
AGCO CANADA, LTD.
By_______________________________
Title:
Copy to: Deutsche Bank Securities Inc.
Loan Syndications
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
152
EXHIBIT B-3 - FORM OF NOTICE OF ROLLOVER -
CANADIAN SUBSIDIARY
NOTICE OF BORROWING
Deutsche Bank Canada,
as Canadian Administrative Agent under
the Credit Agreement
referred to below
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ______ __, ____
Attention: Corporate Finance Department/Syndications
Ladies and Gentlemen:
The undersigned refers to the Second Amended and Restated Credit
Agreement dated as of February __, 1999 (as amended, modified and supplemented
from time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined) among AGCO Corporation and certain subsidiaries
thereof; the lenders listed on the signature pages thereof; Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch
("Rabobank"), SunTrust Bank, Atlanta, and Deutsche Bank AG, New York Branch, as
co-managers; Deutsche Bank Canada, as Canadian administrative agent, and
Rabobank, as administrative agent for the lenders; and hereby gives you notice,
irrevocably, pursuant to Section 2.16(h) of the Credit Agreement that the
undersigned hereby requests that Bankers' Acceptances with an aggregate face
value of Cdn. $[ ] maturing on [ ] (the "Rollover Date") in accordance with
Section 2.16(h) of the Credit Agreement (the "Proposed Rollover").
Each new Bankers' Acceptance should be dated so as to mature on [ ],
19[ ], resulting in a term of [ ] days.
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the Rollover Date:
(A) the representations and warranties contained in each Loan Document
are correct and will be correct on the Rollover Date, before and after giving
effect to the Proposed Rollover and to the application of the proceeds
therefrom, as though made on and as of such date, other than any such
representations or warranties that, by their terms, refer to a date other
than the Rollover Date;
(B) no event has occurred and is continuing, or would result from such
Proposed Rollover or from the application of the proceeds therefrom, that
constitutes a Default;
153
(C) on the Rollover Date and after giving effect thereto, the
aggregate principal amount of all Borrower Outstandings will not exceed the
Borrowing Base on such date; and
(D) there has occurred no Material Adverse Effect since December 31,
1995.
Very truly yours,
AGCO CANADA, LTD.
By:__________________________
Title:
Copy to: Deutsche Bank North America
Loan Syndications
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
154
EXHIBIT C
AGCO CORPORATION
BORROWING BASE CERTIFICATE
THE UNDERSIGNED REFERS to the Second Amended and Restated Credit
Agreement dated as of February __, 1999 (as amended, modified and supplemented
from time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined) among AGCO Corporation and certain subsidiaries
thereof; the lenders listed on the signature pages thereof; Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch
("Rabobank"), SunTrust Bank, Atlanta, and Deutsche Bank AG, New York Branch, as
co-managers; Deutsche Bank Canada, as Canadian administrative agent; and
Rabobank, as administrative agent for the lenders, and CERTIFIES that the
amounts and computations set forth in the attached Schedule have been prepared
in compliance with and as required by the Credit Agreement and are correct as
of _______ __, 199_.
AGCO CORPORATION
By_________________________
Title:
155
SCHEDULE TO BORROWING BASE CERTIFICATE
AGCO BORROWING BASE COMPONENTS
A. RECEIVABLES
1. Gross Receivables $
------------------------
2. Reserves $
------------------------
3. Net Receivables (A.1 Minus A.2) $
------------------------
4. Loan Value Percentage Rate $ 0.9000
------------------------
5. Availability (A.3 x A.4) $
------------------------
B. INVENTORY
1. Gross Inventory $
------------------------
2. Allowances $
------------------------
3. Net Inventory (B.1 Minus B.2) $
------------------------
4. Loan Value Percentage Rate $ 0.6000
------------------------
5. Availability (B.3 x B.4) $
------------------------
C. TOTAL AVAILABILITY
1. Total Borrowing Base Component Availability
(A.5 Plus B.5) $
------------------
156
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Second Amended and Restated Credit
Agreement dated as of February __, 1999 (as amended, modified and supplemented
from time to time, the "Credit Agreement") among AGCO Corporation and certain
subsidiaries thereof; the lenders listed on the signature pages thereof;
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New
York Branch ("Rabobank"), SunTrust Bank, Atlanta, and Deutsche Bank AG, New
York Branch, as co-managers; Deutsche Bank Canada, as Canadian administrative
agent (the "Canadian Administrative Agent"); and Rabobank, as administrative
agent for the lenders (the "Administrative Agent"). Terms defined in the Credit
Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of the
date hereof equal to the percentage interest specified on Schedule 1 of all
outstanding rights and obligations under the Credit Agreement. After giving
effect to such sale and assignment, the Assignee's Commitments and the amount
of the Advances owing to the Assignee will be as set forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any other instrument
or document furnished pursuant thereto; (iii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Loan Party or the performance or observance by any Loan Party of any of
its obligations under the Loan Documents or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Notes held by the Assignor
and requests that the Administrative Agent exchange such Note or Notes for a
new Note or Notes payable to the order of the Assignee in an amount equal to
the Commitments assumed by the Assignee pursuant hereto or new Notes payable to
the order of the Assignee in an amount equal to the Commitments assumed by the
Assignee pursuant hereto and the Assignor in an amount equal to the Commitments
retained by the Assignor under the Credit Agreement, respectively, as specified
on Schedule 1.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof
157
2
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance upon
either Agent, the Assignor 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 the Credit Agreement;
(iii) confirms that it is an Eligible Assignee; (iv) appoints and authorizes
the Administrative Agent (and, if this Assignment and Acceptance relates to the
Canadian Subsidiary Facility, the Canadian Administrative Agent) to take such
action as agent on its behalf and to exercise such powers and discretion under
the Credit Agreement as are delegated to such Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) attaches any U.S. Internal Revenue
Service forms required under Section 2.11.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance and recording
by the Administrative Agent and, if applicable, the Canadian Administrative
Agent. The effective date for this Assignment and Acceptance (the "Effective
Date") shall be the date of acceptance hereof by the Administrative Agent and,
if applicable, the Canadian Administrative Agent, unless otherwise specified on
Schedule 1.
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Appropriate Agent shall make all
payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and commitment fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments under
the Credit Agreement and the Notes for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance 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 this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
158
3
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
[NAME OF ASSIGNOR], as Assignor
By:
-----------------------------
Title:
Dated: , 19
--------- -- --
[NAME OF ASSIGNEE], as Assignee
By:
-----------------------------
Title:
[For Multi-Currency Facility:
Domestic Lending Office:
Eurodollar Lending Offices:
Multi-Currency Facility:
For British pounds:
For Dutch guilders:
For French francs:
For German deutschemarks:
For Italian lira:
For Swiss francs:
AFor European Union euros:]
[For Canadian Subsidiary Facility:]
159
4
ACCEPTED AND APPROVED THIS DAY
----
OF , .
------------- --
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., NEW YORK BRANCH, as
Administrative Agent [and Multi-Currency Issuing Bank]
By:
------------------------------
Title:
AGCO CORPORATION
By:
------------------------------
Title:
[DEUTSCHE BANK CANADA,
as Canadian Administrative Agent
and Canadian Issuing Bank
By:
------------------------------
Title:]
160
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Percentage interest in Commitments assigned:
--------------
Assignee's Canadian Subsidiary Commitment: $
--------------
Assignee's Multi-Currency Commitment: $
--------------
Aggregate outstanding principal amount
of Canadian Subsidiary Advances assigned: $
--------------
Aggregate outstanding principal amount
of Multi-Currency Advances assigned: $
--------------
Aggregate outstanding principal amount
of Letter of Credit Advances of the account of
Multi-Currency Borrowers assigned: $
--------------
Aggregate outstanding principal amount
of Letter of Credit Advances for the account of
the Canadian Subsidiary assigned: $
--------------
Amount of participations in Letters of Credit
issued for the account of Multi-Currency Borrowers: $
--------------
Amount of participations in Letters of Credit
issued for the account of the Canadian Subsidiary: $
--------------
Principal amount of Notes of Multi-Currency Borrowers
payable to Assignee: $
--------------
Principal amount of Note of Multi-Currency Borrowers
payable to Assignor: $
--------------
Principal amount of Note of the Canadian Subsidiary
payable to Assignee: $
--------------
Principal amount of Note of the Canadian Subsidiary
payable to Assignor: $
--------------
Effective Date (if other than date of
acceptance by Administrative Agent): , 199
--------- -
161
EXHIBIT E - FORM OF BANKERS' ACCEPTANCE
[TO BE ATTACHED]
162
EXHIBIT F - FORM OF
DISCOUNT NOTE
Cdn.$ Date:
--------------
FOR VALUE RECEIVED, the undersigned unconditionally promises
to pay on __________________, 19__, to or to the order of [NAME OF NON BA
LENDER] ("Holder"), the sum of Cdn$_____________________________________ with
no interest thereon.
The undersigned hereby waives presentment, protest and notice
of every kind and waives any defenses based upon indulgences which may be
granted by the holder hereof to any party liable hereon and any days of grace.
This promissory note evidences a BA Equivalent Loan, as
defined in the Second Amended and Restated Credit Agreement dated as of
February __, 1999 among AGCO Corporation and certain subsidiaries named therein
as Borrowers, the lenders named therein as Lenders, Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A. "Rabobank Nederland", New York Branch
("Rabobank"), SunTrust Bank, Atlanta, and Deutsche Bank AG, New York Branch, as
Co-Managers, Deutsche Bank Canada as Canadian Administrative Agent, and
Rabobank as Administrative Agent (the "Credit Agreement") and constitutes
evidence of indebtedness to the Holder arising from such BA Equivalent Loan.
Payment of this note shall be made at the Canadian Administrative Agent's
Account as defined in the Credit Agreement.
AGCO CANADA, LTD.
By:
--------------------------------
Name:
Title:
163
SCHEDULE 3.01(E)(VII)
Guarantor Persons Whose Obligations are Guaranteed
--------- ----------------------------------------
AGCO Corporation AGCO Canada Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Manufacturing Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇.
AGCO Limited
AGCO Holding B.V.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Manufacturing Limited ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Corp. AGCO Corporation
AGCO Canada Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Manufacturing Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GmbH
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇.
AGCO Limited
AGCO Holding B.V.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Limited ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Manufacturing Limited
AGCO Limited ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Manufacturing Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇.
AGCO Holding B.V.
AGCO Holding B.V. AGCO Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Manufacturing Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇.
164
SCHEDULE I
Information Regarding Lenders and their Commitments
================================================================================================================================
Lender Multi-Currency Facility Canadian Facility Letter of Credit Lending Offices
------ ----------------------- ----------------- ---------------- ---------------
Commitment Commitment Commitment
---------- ---------- ----------
--------------------------------------------------------------------------------------------------------------------------------
COOPERATIEVE CENTRALE $74,841,531 $75,000,000 DOMESTIC:
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK Rabobank Nederland
RANCH ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇
EUROCURRENCY:
For British Pounds:
-------------------
Rabobank Nederland
London Branch
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
For Dutch Guilders:
-------------------
Rabobank Nederland
Utrecht Branch
▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
For French Francs:
------------------
Rabobank Nederland
▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇▇
For German Deutschemarks:
-------------------------
Rabobank Deutschebank A.G.
Solmstrasse 2-26 (City West)
6000 Frankfurt am Main ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany
For Italian Lira:
-----------------
Raofin Italia S.p.A.
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
For European Euro Euros:
------------------------
-----------
-----------
-----------
165
=================================================================================================================================
Lender Multi-Currency Facility Canadian Facility Letter of Credit Lending Offices
------ ----------------------- ----------------- ---------------- ---------------
Commitment Commitment Commitment
---------- ---------- ----------
---------------------------------------------------------------------------------------------------------------------------------
SUNTRUST BANK, ATLANTA $40,909,091 DOMESTIC and EUROCURRENCY:
SunTrust Bank, Atlanta
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
DEUTSCHE BANK CANADA $20,000,000 $75,000,000 Deutsche Bank Canada
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
DEUTSCHE BANK AG, NEW $36,818,182 Deutsche Bank AG, New York Branch
YORK BRANCH ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
BANK AUSTRIA $14,080,478 Bank Austria
AKTIENGESELLSCHAFT, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
THE FIRST NATIONAL BANK $40,909,091 The First National Bank of Chicago
OF CHICAGO ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
CREDIT LYONNAIS, $40,909,091 Credit Lyonnais Atlanta Agency
ATLANTA AGENCY ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ GUARANTY TRUST $28,636,364 ▇▇▇▇▇▇ Guaranty Trust Company
COMPANY OF NEW YORK ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
MELLON BANK, N.A. $20,454,545 Mellon Bank, N.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
BANKERS TRUST COMPANY $32,727,273 Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
CHRISTIANIA BANK OG $14,555,885 Christiania Bank
KREDITKASSE ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
CIBC INC. $40,909,091 CIBC Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------------
166
===============================================================================================================================
Lender Multi-Currency Facility Canadian Facility Letter of Credit Lending Offices
------ ----------------------- ----------------- ---------------- ---------------
Commitment Commitment Commitment
---------- ---------- ----------
-------------------------------------------------------------------------------------------------------------------------------
COMMERZBANK AKTIEN- $17,441,627 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ Agency
GESELLSCHAFT, ATLANTA ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
KBC BANK, N.V. $14,080,478 KBC Bank N.V.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
CREDIT INDUSTRIEL ET $28,636,364 DOMESTIC:
COMMERCIAL
CIC Paris
▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
COBANK, ACB $28,636,364 CoBank, ACB
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
MARINE MIDLAND BANK $20,454,545 Marine Midland Bank
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
THE BANK OF TOKYO- $20,454,545 The Bank of Tokyo-Mitsubishi, Ltd.,
MITSUBISHI, LTD., Atlanta Agency
ATLANTA AGENCY ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
UNION BANK OF $20,454,545 Union Bank of California
CALIFORNIA ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
BAYERISCHE HYPOTHEKEN- $40,909,091 Bayerische Hypo-and Vereinsbank AG
UND WECHSEL BANK ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
NEW YORK BRANCH
-------------------------------------------------------------------------------------------------------------------------------
WACHOVIA BANK OF $40,909,091 Wachovia Bank of Georgia, N.A.
GEORGIA, N.A. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
BANQUE FRANCAISE DU $20,454,545 Banque Francaise du Commerce
COMMERCE EXTERIEUR Exterie
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
BANK OF MONTREAL $16,363,636 $30,000,000 Bank of Montreal
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------------------------------------------------------------------------------------------------------------
167
==================================================================================================================================
Lender Multi-Currency Facility Canadian Facility Letter of Credit Lending Offices
------ ----------------------- ----------------- ---------------- ---------------
Commitment Commitment Commitment
---------- ---------- ----------
----------------------------------------------------------------------------------------------------------------------------------
SOCIETE GENERALE $28,636,364 Societe Generale
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------------------
TORONTO DOMINION $16,363,636 The Toronto-Dominion Bank
(TEXAS), INC. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------------------
BANQUE NATIONALE DE $20,454,545 DOMESTIC:
PARIS
Banque Nationale de ▇▇▇▇▇
▇▇▇▇▇▇▇ Agency
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------------------
CLYDESDALE BANK PLC $28,636,364 Clydesdale Bank PLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇.
----------------------------------------------------------------------------------------------------------------------------------
DG DEUTSCHE GENOSSEN- $28,636,364 DG Deutsche Genossen-Schaftsbank,
SCHAFTBANK, CAYMAN Cayman Islands Branch
ISLANDS BRANCH ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------------------
ISTITUTO BANCARIO SAN $20,454,545 Istituto Bancario San Paolo di Torino
PAOLO DI TORINO ISTITUTO Istituto Mobiliare Italiano SPA
MOBILIARE ITALIANO SPA ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------------------
STANDARD CHARTERED $20,454,545 Standard Chartered Bank
BANK 7 World trad Center
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------------------
THE SUMITOMO BANK, $20,454,545 The Sumitomo Bank, Limted
LIMITED ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------------------
WESTDEUTSCHE $40,909,091 Westdeutsche Landesbank Girozentrale
LANDESBANK 1211 Avenue of the Americas
GIROZENTRALE, NEW YORK ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BRANCH
----------------------------------------------------------------------------------------------------------------------------------
BANCA NAZIONALE DEL $20,454,545 Banca Nazionale de Lavoro S.p.A.
LAVORO SPA, NEW YORK New York Branch
BRANCH ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------------------
NATIONAL BANK OF CANADA $20,000,000
168
=================================================================================================================
Lender Multi-Currency Facility Canadian Facility Letter of Credit Lending Offices
------ ----------------------- ----------------- ---------------- ---------------
Commitment Commitment Commitment
---------- ---------- ----------
-----------------------------------------------------------------------------------------------------------------
THE TORONTO DOMINION BANK $ 30,000,000
=================================================================================================================