EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "Amendment") dated as
of March 14, 2002, by and among AGCO CORPORATION, a Delaware corporation
("AGCO"), the Subsidiaries of AGCO signatory hereto (together with AGCO, each
referred to herein collectively as the "Borrowers" and individually as a
"Borrower"); the banks, financial institutions and other institutional lenders
party to the Credit Agreement (as defined below) (the "Lenders"); COOPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", CANADIAN BRANCH,
as Canadian administrative agent for the Canadian Facility Lenders (the
"Canadian Administrative Agent"), and COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as
administrative agent for the Lenders (the "Administrative Agent");
WITNESSETH:
WHEREAS, the Borrowers, the Administrative Agent, the Canadian
Administrative Agent and the Lenders are parties to that certain Credit
Agreement dated as of April 17, 2001 (the "Credit Agreement"); and
WHEREAS, the Borrowers have requested that certain terms and
conditions of the Credit Agreement be amended, and the Lenders, the Canadian
Administrative Agent and the Administrative Agent have agreed to the requested
amendments on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree that
all capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Credit Agreement, and further agree as follows:
SECTION 1. Amendments to Section 1.1.
(a) Section 1.1 of the Credit Agreement, Certain Defined Terms,
is hereby amended by deleting the definition of "Consolidated EBITDA" set forth
therein in its entirety and inserting the following in lieu thereof:
""Consolidated EBITDA" means, for any period, (a)
Consolidated Net Income (or net loss) for such period, plus (b)
Consolidated Net Interest Expense for such period and all of the
following amounts deducted in arriving at such Consolidated Net
Income: (i) amounts in respect of taxes imposed on or measured by
income or excess profits (other than income taxes (either positive or
negative) attributable to extraordinary and non-recurring gains or
losses on sales of assets,
to the extent such gains or losses are not included in the definition
of Consolidated Net Income), (ii) depreciation and amortization
expense, (iii) restructuring and other infrequent expenses, (iv)
losses under any Securitization Facility incurred in connection with
the initial transfer of Receivables thereunder, (v) in respect of any
calculation including the fiscal quarter ending March 31, 2001, the
aggregate amount of consent fees and the solicitation agent fee paid
by AGCO in March 2001 in connection with the Subordinated Note
Indenture, and (vi) all other non-cash items reducing Consolidated Net
Income (other than items that will require cash payments and for which
an accrual or reserve is, or is required by GAAP to be, made), minus
(c) all non-cash items increasing Consolidated Net Income, all as
determined in accordance with GAAP; PROVIDED, HOWEVER, SOLELY FOR
PURPOSES OF CALCULATING COMPLIANCE WITH THE FINANCIAL COVENANTS SET
FORTH IN SECTION 7.19 (A), (B) AND (C) HEREOF (AND NOT FOR PURPOSES OF
CALCULATING THE SENIOR DEBT RATIO AS USED IN THE DEFINITION OF
"APPLICABLE MARGIN" OR FOR ANY OTHER PURPOSE), THE AMOUNT OF
CONSOLIDATED EBITDA OTHERWISE OBTAINED HEREUNDER SHALL BE ADJUSTED TO
REFLECT THE AMORTIZATION OF LTIP EXPENSE IN FOUR EQUAL QUARTERLY
INSTALLMENTS, COMMENCING WITH THE FISCAL QUARTER DURING WHICH SUCH
LTIP EXPENSE IS DEDUCTED IN ARRIVING AT CONSOLIDATED NET INCOME AND
CONTINUING FOR EACH OF THE THREE CONSECUTIVE FISCAL QUARTERS
THEREAFTER. Upon the consummation of the Merger, for purposes of
calculating "Consolidated EBITDA" hereunder for any quarter during
which the financial performance of Target was not consolidated with
AGCO, "Consolidated EBITDA" shall be calculated by giving pro forma
effect to the Merger as if the Merger has occurred as of the first day
of such quarter and, in connection with such calculation for any
period including the fiscal quarters ending September 30, 2000 and
December 31, 2000, the product recall expenses of Target incurred
during such quarters shall be included as "other infrequent expenses"
hereunder."
(b) Section 1.1 of the Credit Agreement, Certain Defined Terms,
is hereby further amended by adding the following definition of "LTIP Expense"
in appropriate alphabetical order thereto:
""LTIP Expense" means, for any fiscal quarter
beginning on or after January 1, 2002, the cash expense arising from
cash bonuses paid by AGCO to senior management participants in AGCO's
Long-Term Incentive Plan in connection with the vesting of AGCO Stock
in favor of such participants. "
SECTION 2. Representations and Warranties. Each of AGCO and the
other Borrowers represents and warrants as follows:
(a) The execution, delivery and performance by each Borrower of
this Amendment and the other transactions contemplated hereby, are within such
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do
-2-
not (i) contravene such Borrower's charter or by-laws; (ii) violate any
Applicable Law (including, without limitation, to the extent applicable, the
Securities Exchange Act of 1934, the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970 and any
similar statute); (iii) conflict with or result in the breach of, or constitute
a default under, any contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument binding on or affecting any Borrower, any of
its Subsidiaries or any of their properties (including the Material Contracts,
the Senior Note Documents and the Subordinated Note Documents); or (iv) except
for the Liens created under the Security Documents, result in or require the
creation or imposition of any Lien upon or with respect to any of the
properties of any Borrower or any of its Subsidiaries;
(b) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or regulatory body or any
other third party is required for the due execution, delivery, recordation,
filing or performance by any Borrower of this Amendment and each other Loan
Document contemplated hereby to which it is or is to be a party, or for the
consummation of the transactions contemplated hereby;
(c) This Amendment and each other document required to be
delivered by a Borrower hereunder has been duly executed and delivered by each
Borrower thereto, and constitutes the legal, valid and binding obligation of
each Borrower thereto, enforceable against such Borrower in accordance with its
terms;
(d) The representations and warranties contained in Article 4 of
the Credit Agreement, and in each of the other Loan Documents, are true and
correct on and as of the date hereof as though made on and as of such date,
other than any such representations and warranties that, by their terms,
expressly refer to an earlier date; and
(e) No event has occurred and is continuing which constitutes an
Event of Default or would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
SECTION 3. Conditions Precedent to Effectiveness of this
Amendment. This Amendment shall be effective as of the date first set forth
above when the Administrative Agent shall have received, in form and substance
satisfactory to it:
(a) This Amendment, duly executed by the Borrowers, the
Administrative Agent and the Required Lenders; and
(b) Such other documents, instruments, and information executed
and/or delivered by the Borrowers as the Administrative Agent may reasonably
request.
SECTION 4. Reference to and Effect on the Credit Agreement.
Upon the effectiveness of this Amendment as set forth in Section 3 hereof, on
and after the date hereof, each reference in the Credit Agreement to "this
Agreement", "hereunder",
-3-
"hereof", "herein" or words of like import shall mean and be a reference to the
Credit Agreement as amended hereby, and each reference in the Notes and the
other Loan Documents to the Credit Agreement shall mean and be a reference to
the Credit Agreement as amended hereby.
SECTION 5. Costs, Expenses and Taxes. The Borrowers agree,
jointly and severally, to pay on demand all costs and expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Amendment and the other instruments and documents to be delivered
hereunder (including, without limitation, the fees and expenses of counsel for
the Administrative Agent with respect thereto).
SECTION 6. No Other Amendments. Except as otherwise expressed
herein, the execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the Agents or the Lenders
under the Credit Agreement, or any of the other Loan Documents, nor constitute
a waiver of any provision of the Credit Agreement or any of the other Loan
Documents. Except for the amendment set forth above, the text of the Credit
Agreement and all other Loan Documents shall remain unchanged and in full force
and effect and the Borrowers hereby ratify and confirms their respective
obligations thereunder. This Amendment shall not constitute a modification of
the Credit Agreement or a course of dealing with the Administrative Agent at
variance with the Credit Agreement such as to require further notice by the
Administrative Agent to require strict compliance with the terms of the Credit
Agreement and the other Loan Documents in the future, except as expressly set
forth herein. The Borrowers acknowledge and expressly agree that the Agents and
the Lenders reserve the right to, and do in fact, require strict compliance
with all terms and provisions of the Credit Agreement and the other Loan
Documents (in each case as amended hereby).
SECTION 7. Execution in Counterparts. This Amendment may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument. Delivery of a signature page
hereto by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof.
SECTION 8. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws (without giving effect to the
conflicts of laws principles thereof) of the State of New York.
SECTION 9. Final Agreement. This Amendment represents the final
agreement between the Borrowers, the Administrative Agent, the Canadian
Administrative Agent and the Lenders as to the subject matter hereof and may
not be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the
parties. The Amendment shall constitute a Loan Document for all purposes.
[The remainder of the page is intentionally blank.]
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BORROWERS: AGCO CORPORATION
By:
----------------------------------------
Title:
-------------------------------------
AG-CHEM EQUIPMENT CO., INC. (f/k/a Agri
Acquisition Corp.)
By:
----------------------------------------
Title:
-------------------------------------
AGCO LIMITED
By:
----------------------------------------
Title:
-------------------------------------
AGCO S.A.
By:
----------------------------------------
Title:
-------------------------------------
AGCO INTERNATIONAL LIMITED
By:
----------------------------------------
Title:
-------------------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
-5-
AGCO HOLDING B.V.
By:
----------------------------------------
Title:
-------------------------------------
AGCO VERTRIEBS GMBH
By:
----------------------------------------
Title:
-------------------------------------
AGCO GMBH & CO.
By:
----------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Title:
-------------------------------------
AGCO CANADA, LTD.
By:
----------------------------------------
Title:
-------------------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
-6-
AGENTS AND LENDERS: COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND," NEW YORK BRANCH, as
Administrative Agent, a Lender and
Multi-Currency Issuing Bank
By:
----------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Title:
-------------------------------------
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND," CANADIAN BRANCH, as Canadian
Administrative Agent, a Canadian Facility
Lender and Canadian Issuing Bank
By:
----------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Title:
-------------------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
-7-
CREDIT SUISSE FIRST BOSTON
By:
----------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Title:
-------------------------------------
SUNTRUST BANK
By:
----------------------------------------
Title:
-------------------------------------
COBANK, ACB
By:
----------------------------------------
Title:
-------------------------------------
BEAR STEARNS CORPORATE LENDING INC.
By:
----------------------------------------
Title:
-------------------------------------
HSBC BANK USA
By:
----------------------------------------
Title:
-------------------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
-8-
NATEXIS BANQUES POPULAIRES
By:
----------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Title:
-------------------------------------
U.S. BANK NATIONAL ASSOCIATION
By:
----------------------------------------
Title:
-------------------------------------
BANK OF TOKYO-MITSUBISHI, LTD
By:
----------------------------------------
Title:
-------------------------------------
CREDIT INDUSTRIEL ET COMMERCIAL
By:
----------------------------------------
Title:
-------------------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
-9-
AGFIRST FARM CREDIT BANK,
as a General Syndication Participant
By:
----------------------------------------
Title:
-------------------------------------
FARM CREDIT SERVICES OF AMERICA, PCA, as a
General Syndication Participant
By:
----------------------------------------
Title:
-------------------------------------
-10-