EXHIBIT 10.3
AMENDMENT NO. 1
Dated as of April 14, 2004
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of June 26, 2001
THIS AMENDMENT NO. 1, dated as of April 14, 2004 (this
"Amendment"), is entered into by and among AGCO CANADA, LTD., as seller (the
"Seller"), AGCO CORPORATION ("AGCO"), as servicer (in such capacity, the
"Servicer"), NIEUW AMSTERDAM RECEIVABLES CORPORATION ("Nieuw Amsterdam") and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL",
NEW YORK BRANCH ("Rabobank International"), as an Administrator and as the Agent
and Custodian.
PRELIMINARY STATEMENTS
A. The Seller, the Servicer, Nieuw Amsterdam and
Rabobank International (as an Administrator and as the Agent and Custodian) are
parties to that certain Receivables Purchase Agreement, dated as of June 26,
2001 (as amended prior to the date hereof, the "Receivables Purchase
Agreement"). Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Receivables Purchase Agreement.
B. The parties hereto have agreed to amend the
Receivables Purchase Agreement on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises set forth
above, and other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments. Subject to the satisfaction of the
conditions precedent set forth in Section 2 below, the Receivables Purchase
Agreement is hereby amended as follows:
1.01. Section 1.01 is hereby amended by adding the following
defined terms in their proper alphabetical sequence:
"Asset Report" means a Monthly Report or a Weekly
Report.
"Weekly Report" means a report, in substantially the
form of Exhibit I hereto, furnished by the Servicer to the
Agent pursuant to Section 9.05.
1.02. The definition "Carrying Cost Reserve Percentage" in
Section 1.01 is hereby amended to read in its entirety as follows:
"Carrying Cost Reserve Percentage" means, at any
time, a percentage equal to:
1.5 * (3 Month LIBOR - Average Interest Yield + 3.0%) *
DSO/365
where
3 Month LIBOR = LIBOR for an assumed Settlement
Period of three months commencing
on the immediately preceding Payment
Date.
Average Interest
Yield = The lesser of (a) 2.5% and (b) the
average Interest Yield for the three
calendar month period then most
recently ended. As used herein,
"Interest Yield" means, with respect
to any calendar month, the annualized
percentage equivalent of a fraction,
the numerator of which is the
aggregate amount of Collections of
interest received by the Servicer in
respect of the Dealer Receivables
during such calendar month, and the
denominator of which is equal to the
aggregate Outstanding Balance of all
Dealer Receivables as of the last day
of the immediately preceding calendar
month.
DSO = The product of (i) 270, times (ii) a
fraction, the numerator of which is
equal to the aggregate Outstanding
Balance of all Dealer Receivables as
of the last day of the calendar month
most recently ended on or prior to
the date of determination, and the
denominator of which is equal to the
aggregate Outstanding Balance of all
Dealer Receivables arising during the
nine calendar month period then most
recently ended on or prior to such
date.
1.03. The definition "Credit Enhancement" in Section 1.01 is
hereby amended to read in its entirety as follows:
"Credit Enhancement" means, as of any date of
determination, the product of (a) the Net Eligible Receivables
Balance, times (b) the greater of (i) the Dynamic Reserve
Percentage and (ii) the percentage set forth
2
below opposite the long-term senior unsecured debt rating of
AGCO as of such date (determined based on the lower of the
ratings assigned by Moody' or S&P).
Moody's S&P Percentage
- ------------------------------- --------------------- ----------
Ba3 or higher BB- or higher 17%
B1 B+ 19%
B2 B 27%
B3 or lower or rating withdrawn B- or lower or rating 37%
withdrawn
1.04. Paragraphs (k) and (l) of the definition "Eligible
Receivable" in Section 1.01 are hereby amended to read in their entirety as
follows:
(k) such Dealer Receivable is required to be paid in
full within twenty-four (24) months of the date such Dealer
Receivable arises,
(l) the Dealer Agreement under which such Dealer
Receivable arises provides for interest to accrue on the
Outstanding Balance of such Dealer Receivables prior to its
final due date at a rate per annum equal to or greater than
the rate of interest published in the New York edition of The
Wall Street Journal as the prime rate (or, if such rate is not
so published, the rate of interest publicly announced by the
Agent as its prime or reference rate) plus 2%; provided, that
Dealer Receivables which satisfy all criteria in this
definition other than this paragraph (l) may be treated as
Eligible Receivables hereunder so long as the aggregate
outstanding Balance of such Dealer Receivables does not exceed
20% of the aggregate Outstanding Balance of all Dealer
Receivables;
1.05. The definition "Eligible Receivable" is hereby amended
by deleting the word "and" at the end of paragraph (r), relettering paragraph
(s) as paragraph (t) and inserting a new paragraph (s) as follows:
(s) the Obligor of such Receivable does not have
Delinquent Receivables that in the aggregate exceed 35% of the
Outstanding Balance of all Receivables due from such Obligor,
and
1.06. The definition "Maximum Program Amount" is hereby
amended to read in its entirety as follows:
"Maximum Program Amount" means $70,000,000.
3
1.07. The definition "Termination Date" in Section 1.01 is
hereby amended by deleting the date "June 25, 2006" contained therein and
substituting in replacement thereof the date "April 8, 2009".
1.08. Clause (a) of Section 7.02 is hereby amended by deleting
the words "Monthly Reports" contained therein and substituting in replacement
thereof the words "Asset Reports".
1.09. The first sentence of Section 9.05 is hereby amended in
its entirety to read as follows:
The Servicer shall prepare and forward to each
Administrator (i) on each Reporting Date and at such times as
any Administrator shall reasonably request, a duly completed
Monthly Report containing information accurate as of the last
day of the calendar month then most recently ended and (ii) if
the long-term senior unsecured debt rating of AGCO is lower
than Ba3 by Moody's or lower than BB- by S&P, on Tuesday (or,
if such day is not a Business Day, the next succeeding
Business Day) of each calendar week a duly completed Weekly
Report containing information accurate as of the last day of
the calendar week then most recently ended.
1.10. Clause (g) of Section 9.07 is hereby amended in its
entirety to read as follows:
(g) [Intentionally Omitted];
1.11. A new Exhibit I in the form of Annex 1 is hereby added
to the Receivables Purchase Agreement and the Table of Contents is hereby
amended by adding the following to the end of the EXHIBITS:
Exhibit I Form of Weekly Report
SECTION 2. Condition Precedent. This Amendment shall become
effective as of the date (the "Effective Date") on which (i) Rabobank
International shall have received a copy of this Amendment duly executed by each
of the parties hereto and (ii) payment has been made of all fees required to be
paid pursuant to any fee letters entered into in connection with the
transactions contemplated by this Amendment.
SECTION 3. Covenants, Representations and Warranties of the
Seller.
3.01. Upon the effectiveness of this Amendment, each of the
Seller and the Servicer hereby reaffirms all covenants, representations and
warranties made by it in the Receivables Purchase Agreement, as further amended
by this Amendment, and agrees that all such covenants, representations and
warranties shall be deemed to have been remade as of the Effective Date.
4
3.02. Each of the Seller and the Servicer hereby represents
and warrants that (i) this Amendment constitutes the legal, valid and binding
obligation of such party, enforceable against such party in accordance with its
terms except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to or limiting
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and (ii) upon
the effectiveness of this Amendment, no event or circumstance has occurred and
is continuing which constitutes an Early Amortization Event or which, with the
giving of notice of the lapse of time, or both, would constitute an Early
Amortization Event.
SECTION 4. Reference to and Effect on the Receivables Purchase
Agreement.
4.01. Upon the effectiveness of this Amendment, each reference
in the Receivables Purchase Agreement to "this Agreement," "hereunder,"
"hereof," "herein," "hereby" or words of like import shall mean and be a
reference to the Receivables Purchase Agreement as amended hereby, and each
reference to the Receivables Purchase Agreement in any other document,
instrument and agreement executed and/or delivered in connection with the
Receivables Purchase Agreement shall mean and be a reference to the Receivables
Purchase Agreement as amended hereby.
4.02. Except as specifically amended hereby, the Receivables
Purchase Agreement, the other Transaction Documents and all other documents,
instruments and agreements executed and/or delivered in connection therewith
shall remain in full force and effect and are hereby ratified and confirmed.
4.03. Except as expressly provided herein, the execution,
delivery and effectiveness of this Amendment shall not operate as a waiver of
any right, power or remedy of the Purchaser, the Administrator or the Agent
under the Receivables Purchase Agreement, the Transaction Documents or any other
document, instrument, or agreement executed in connection therewith, nor
constitute a waiver of any provision contained therein.
SECTION 5. Costs and Expenses. The Seller shall pay to the
Agent, the Administrator and the Purchaser on demand all reasonable costs and
out-of-pocket expenses in connection with the preparation, execution, delivery
and administration of this Amendment, the transactions contemplated hereby and
the other documents to be delivered hereunder, including without limitation, (i)
rating agency fees incurred by the Administrator or the Conduit Purchaser in
connection with the transactions contemplated hereby, and (ii) reasonable fees
and out-of-pocket expenses of legal counsel for the Agent, the Administrator and
the Purchaser with respect thereto.
SECTION 6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE PROVINCE OF ONTARIO, CANADA.
5
SECTION 7. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument. Delivery of a signature page hereto by facsimile
shall be deemed as effective as delivery of an original executed signature page
hereto.
SECTION 8. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
6
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized
as of the date first written above.
AGCO CANADA, LTD
By: -s- DAVID K WILLIAMS
-------------------------------------
Name: DAVID K WILLIAMS
Title: VP-TREASURER
AGCO CORPORATION
By: -s- DAVID K WILLIAMS
-------------------------------
Name: DAVID K. WILLIAMS
Title: VP-TREASURER
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK INTERNATIONAL", NEW YORK
BRANCH, as an Administrator and as the
Agent and Custodian
By: -s- James Han
-----------------------------------
Name: James Han
Title: Vice President
By: -s- Brett Delfino
-----------------------------------
Name: Brett Delfino
Title: Executive Director
NIEUW AMSTERDAM RECEIVABLES
CORPORATION, as a Purchaser
By: -s- Tony Wong
-----------------------------------
Name: Tony Wong
Title: Vice President
S-1