EXHIBIT 10.43
AMENDMENT NO.4
TO
THIRD AMENDED AND RESTATED
LONG TERM REVOLVING CREDIT AGREEMENT
AND
SHORT TERM REVOLVING CREDIT AGREEMENT
This AMENDMENT NO.4, dated as of February 12, 2001 (the
"Amendment"), to each of (i) the SHORT TERM REVOLVING CREDIT AGREEMENT, dated as
of June 4, 1999 (as amended, restated, supplemented or otherwise modified from
time to time, the "Short Term Credit Agreement"), by and among Ag-Chem Equipment
Co., Inc. (the "Borrower"), the institutions from time to time party thereto as
lenders (as amended, restated, supplemented or otherwise modified from time to
time, the "Short Term Lenders"), and Bank One, NA, as Agent (the "Agent") and
(ii) the THIRD AMENDED AND RESTATED LONG TERM REVOLVING CREDIT AGREEMENT, dated
as of June 4, 1999 (the "Long Term Credit Agreement", and together with the
Short Term Credit Agreement, the "Credit Agreements"), by and among the
Borrower, certain subsidiaries of the Borrower (the "Multicurrency Subsidiary
Borrowers"), and the Short Term Lenders, as the lenders thereunder (the "Long
Term Lenders"), and the Agent, is entered into by each of the parties to the
Credit Agreements. Capitalized terms used herein and not otherwise defined
herein shall have the meaning given to them in the Credit Agreements.
WITNESSETH
WHEREAS, the Borrower, the Short Term Lenders and the Agent
are parties to the Short Term Credit Agreement and, together with the
Multicurrency Subsidiary Borrowers, are parties to the Long Term Credit
Agreement;
WHEREAS, the Borrower and the Multicurrency Subsidiary
Borrowers have requested that the Short Term Lenders and the Long Term Lenders
(together, the "Lenders") and the Agent agree to amend the Credit Agreements in
certain respects;
WHEREAS, the Lenders and the Agent are willing to amend the
Credit Agreements on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrower, the Multicurrency Subsidiary Borrowers, the Agent and the Lenders
hereby agree as follows:
1. Amendment. Effective as of the date first above written and subject
to the satisfaction of the conditions precedent set forth in Section 2 below,
the Credit Agreements shall be and hereby are amended as follows:
(a) The definition of "Interest Coverage Ratio" set forth in
Section 1.01 of each Credit Agreement is hereby amended to add the following at
the end of clause (a) thereof:
"plus an amount equal to the nonrecurring charges of
up to $3,434,000 in the aggregate related to costs
incurred in connection with the merger of the
Company and Agco Corporation to the extent such
charges are deducted in computing Net Income for the
applicable period."
2. Conditions of Effectiveness. This Amendment shall become effective
and be deemed effective as of the date hereof, if, and only if the Agent shall
have received:
(i) four (4) duly executed originals of this Amendment from the
Borrower, the Multicurrency Subsidiary Borrowers and the Required Lenders, and
(ii) guaranty reaffirmations, in form and substance acceptable to the
Agent, for each guaranty of the Obligations entered into by Ag-Chem Sales Co.,
Inc., Lor*Al Products, Inc., Ag-Chem Manufacturing Co., Inc., and Ag-Chem
Equipment Canada, Ltd.
3. Representations and Warranties of the Borrower and the Multicurrency
Subsidiary Borrowers. Each of the Borrower and each Multicurrency Subsidiary
Borrower hereby represents and warrants as follows:
(a) Each of the Credit Agreements to which each of the
Borrower and each Multicurrency Subsidiary Borrower is a party as previously
executed constitutes the legal, valid and binding obligation of the Borrower and
each Multicurrency Subsidiary Borrower and is enforceable against the Borrower
and each Multicurrency Subsidiary Borrower in accordance with its terms.
(b) Upon the effectiveness of this Amendment, each of the
Borrower and each Multicurrency Subsidiary Borrower hereby (i) represents that
no Default or Event of Default exists under the terms of the Credit Agreements
to which it is a party, (ii) reaffirms all covenants, representations and
warranties made in the Credit Agreements to which it is a party, and (iii)
agrees that all such covenants, representations and warranties shall be deemed
to have been remade as of the effective date of this Amendment.
4. Effect on the Credit Agreement.
(a) Upon the effectiveness of this Amendment, on and after the
date hereof, each reference in each Credit Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import shall mean and be a
reference to such Credit Agreement, as amended hereby.
(b) Except as specifically amended above, the Credit
Agreements and all other documents, instrument/s and agreements executed and/or
delivered in connection therewith shall remain in full force and effect, and are
hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall neither, except as expressly provided herein, operate as a
waiver of any right, power or remedy of the Lenders or the Agent, nor constitute
a waiver of any provision of either Credit Agreement or any other documents,
instruments and agreements executed and/or delivered in connection therewith.
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5. Costs and Expenses. The Borrower agrees to pay all reasonable costs,
fees and out-of-pocket expenses (including attorneys' fees and expenses charged
to the Agent) incurred by the Agent and the Lenders in connection with the
preparation, arrangement, execution and enforcement of this Amendment.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, SECTION 735
ILCS 105/5-1 ET.SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS, OF THE STATE OF ILLINOIS.
7. 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.
8. Counterparts. This Amendment may be executed by one or more of the
parties to the Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
9. No Strict Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Amendment. In the event an ambiguity or
question of intent or interpretation arises, this Amendment shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Amendment.
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IN WITNESS WHEREOF, this Amendment No. 4 has been duly
executed as of the day and year first above written.
AG-CHEM EQUIPMENT CO., INC., as the AG-CHEM EUROPE, B.V., as a Multicurrency
Borrower Subsidiary Borrower
By: /s/ Xxxx X. Xxxxxxxxxx By: /s/ Xxxx X. Xxxxxxxxxx
--------------------------------- ----------------------------------
Name: Xxxx X. Xxxxxxxxxx Name: Xxxx X. Xxxxxxxxxx
Title: Senior Vice President Title: Supervising Director
AG-CHEM EQUIPMENT CANADA, LTD., BANK ONE, NA as a Lender and as Agent
as a Multicurrency Subsidiary under the Credit Agreements
Borrower
By: /s/ Xxxx X. Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------------------- ----------------------------------
Name: Xxxx X. Xxxxxxxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President Title: Authorized Officer
COOPERATIEVE CENTRALE RAIFFEISEN- XXXXXX TRUST AND SAVINGS BANK, as a
BOERENLEENBANK B.A., "RABOBANK Lender under the Credit Agreements
INTERNATIONAL", NEW YORK BRANCH, as
a Lender under the Credit Agreements By: /s/ Xxxxxx X. Xxxxx
----------------------------------
By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxx
--------------------------------- Title: Vice President
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
Title: Senior Credit Officer
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