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As Of Filer Filing For·On·As Docs:Size 2/27/15 Agco Corp/DE 10-K 12/31/14 115:27M |
Document/Exhibit Description Pages Size
1: 10-K Annual Report HTML 1.45M
2: EX-10.15 Material Contract HTML 585K
3: EX-10.25 Material Contract HTML 43K
4: EX-21.1 Subsidiaries List HTML 57K
5: EX-23.1 Consent of Experts or Counsel HTML 34K
6: EX-24.1 Power of Attorney HTML 42K
7: EX-31.1 Certification -- §302 - SOA'02 HTML 41K
8: EX-31.2 Certification -- §302 - SOA'02 HTML 41K
9: EX-32.1 Certification -- §906 - SOA'02 HTML 36K
78: R1 Document and Entity Information Document HTML 62K
60: R2 Consolidated Statements of Operations HTML 121K
74: R3 Consolidated Statements of Comprehensive Income HTML 98K
82: R4 Consolidated Balance Sheets HTML 163K
105: R5 Consolidated Balance Sheets Parenthetical HTML 57K
64: R6 Consolidated Statements of Stockholders' Equity HTML 291K
73: R7 Consolidated Statements of Cash Flows HTML 173K
54: R8 Operations and Summary of Significant Accounting HTML 420K
Policies
44: R9 Acquisitions HTML 54K
107: R10 Restructuring and Other Infrequent Expenses HTML 39K
84: R11 Accounts Receivable Sales Agreements HTML 42K
83: R12 Investments in Affiliates HTML 77K
90: R13 Income Taxes HTML 164K
91: R14 Indebtedness HTML 94K
88: R15 Employee Benefit Plans HTML 459K
92: R16 Stockholders' Equity HTML 116K
75: R17 Stock Incentive Plan HTML 127K
79: R18 Derivative Instruments and Hedging Activities HTML 129K
86: R19 Commitments and Contingencies HTML 99K
115: R20 Fair Value HTML 62K
100: R21 Related Party Transactions HTML 49K
69: R22 Segment Reporting HTML 206K
85: R23 Schedule II - Valuation and Qualifying Account HTML 181K
71: R24 Operations and Summary of Significant Accounting HTML 199K
Policies (Policies)
35: R25 Operations and Summary of Significant Accounting HTML 374K
Policies (Tables)
101: R26 Acquisitions (Tables) HTML 42K
111: R27 Investments in Affiliates (Tables) HTML 75K
49: R28 Income Taxes (Tables) HTML 155K
48: R29 Indebtedness (Tables) HTML 68K
52: R30 Employee Benefit Plans (Tables) HTML 474K
53: R31 Stockholders' Equity (Tables) HTML 98K
55: R32 Stock Incentive Plan (Tables) HTML 112K
24: R33 Derivative Instruments and Hedging Activities HTML 118K
(Tables)
98: R34 Commitments and Contingencies (Tables) HTML 86K
67: R35 Fair Value (Tables) HTML 87K
70: R36 Segment Reporting (Tables) HTML 211K
39: R37 Operations and Summary of Significant Accounting HTML 109K
Policies (Details)
114: R38 Operations and Summary of Significant Accounting HTML 111K
Policies - Accounts and Notes Receivable (Details)
16: R39 Operations and Summary of Significant Accounting HTML 56K
Policies - Inventories (Details)
57: R40 Operations and Summary of Significant Accounting HTML 67K
Policies - Property Plant and Equipment (Details)
104: R41 Operations and Summary of Significant Accounting HTML 204K
Policies - Goodwill and Other Intangible Assets
(Details)
37: R42 Operations and Summary of Significant Accounting HTML 81K
Policies - Accrued Expense and Reserves (Details)
47: R43 Operations and Summary of Significant Accounting HTML 44K
Policies - Stock Compensation Allocation (Details)
51: R44 Operations and Summary of Significant Accounting HTML 52K
Policies - Expenses (Details)
62: R45 Operations and Summary of Significant Accounting HTML 72K
Policies - Earnings Per Share (Details)
23: R46 Operations and Summary of Significant Accounting HTML 107K
Policies - Comprehensive Income (Details)
43: R47 Operations and Summary of Significant Accounting HTML 42K
Policies - Financial Instruments (Details)
18: R48 Acquisitions (Narrative) (Details) HTML 68K
103: R49 Acquisitions (Schedule Of Acquired Other HTML 47K
Identifiable Intangible Assets) (Details)
36: R50 Acquisitions (Schedule of Purchase Price HTML 36K
Allocation) (Details)
99: R51 Restructuring and Other Infrequent Expenses HTML 53K
(Details)
40: R52 Accounts Receivable Sales Agreements (Details) HTML 47K
58: R53 Investments in Affiliates (Details) HTML 91K
17: R54 Income Taxes (Narrative) (Details) HTML 90K
21: R55 Income Taxes (Schedule of Income before Income HTML 43K
Tax, Domestic and Foreign) (Details)
50: R56 Income Taxes (Schedule of Components of Income Tax HTML 74K
Expense (Benefit)) (Details)
28: R57 Income Taxes (Schedule of Effective Income Tax HTML 72K
Rate Reconciliation) (Details)
108: R58 Income Taxes (Schedule of Deferred Tax Assets and HTML 96K
Liabilities) (Details)
66: R59 Income Taxes (Summary of Income Tax Contingencies) HTML 57K
(Details)
89: R60 Indebtedness (Narrative) (Details) HTML 157K
42: R61 Indebtedness (Components Of Indebtedness) HTML 108K
(Details)
45: R62 Indebtedness (Maturities of Long-term Debt) HTML 52K
(Details)
96: R63 Indebtedness (Carrying Amount Of The Convertible HTML 38K
Senior Subordinated Notes) (Details)
93: R64 Indebtedness (Interest Expense Recognized On HTML 40K
Convertible Senior Subordinated Notes) (Details)
68: R65 Employee Benefit Plans (Narrative) (Details) HTML 186K
95: R66 Employee Benefit Plans (Net Pension And HTML 92K
Postretirement Cost) (Details)
41: R67 Employee Benefit Plans (Net Periodic Pension Costs HTML 107K
Included in Accumulated Other Comprehensive Income
(Loss)) (Details)
72: R68 Employee Benefit Plans (Assumptions for Pension HTML 61K
and Postretirement Cost) (Details)
110: R69 Employee Benefit Plans (Net Funded Status) HTML 185K
(Details)
20: R70 Employee Benefit Plans (Assumptions for Benefit HTML 63K
Obligation) (Details)
34: R71 Employee Benefit Plans (Asset Allocation) HTML 98K
(Details)
59: R72 Employee Benefit Plans (Fair Value of Plan Assets) HTML 145K
(Details)
26: R73 Employee Benefit Plans (Reconciliation of Level 3 HTML 92K
Assets) (Details)
113: R74 Employee Benefit Plans (One Percentage Point HTML 44K
Change in Health Care Trend Rate) (Details)
38: R75 Employee Benefit Plans (Expected Future Minimum HTML 61K
Payments) (Details)
29: R76 Employee Benefit Plans (Defined Contribution HTML 35K
Plans) (Details)
33: R77 Stockholders' Equity (Narrative) (Details) HTML 89K
22: R78 Stockholders' Equity Changes in Accumulated Other HTML 73K
Comprehensive Income (Details)
25: R79 Stockholders' Equity Reclassification Out of HTML 97K
Accumulated Other Comprehensive Income (Details)
80: R80 Stock Incentive Plan (Narrative) (Details) HTML 160K
31: R81 Stock Incentive Plan Stock Incentive Plan HTML 47K
(Performance Awards Earned and Issued) (Details)
109: R82 Stock Incentive Plan (Performance Award HTML 45K
Transactions) (Details)
56: R83 Stock Incentive Plan (SSAR Activity) (Details) HTML 74K
87: R84 Stock Incentive Plan (Schedule Of SSAR Exercise HTML 92K
Price Range, Number Of Shares, Weighted Average
Exercise Price And Remaining Contractual Lives)
(Details)
94: R85 Derivative Instruments and Hedging Activities HTML 77K
(Narrative) (Details)
30: R86 Derivative Instruments and Hedging Activities HTML 78K
(Summary Of Accumulated Other Comprehensive Loss
Related To Derivatives) (Details)
32: R87 Derivative Instruments and Hedging Activities ( HTML 50K
Fair Value Of Derivative Instruments) (Details)
106: R88 Commitments and Contingencies (Details) HTML 203K
27: R89 Fair Value (Details) HTML 57K
81: R90 Related Party Transactions Related Party HTML 79K
Transactions (Details)
77: R91 Segment Reporting (Sales Information By Reportable HTML 89K
Segments) (Details)
97: R92 Segment Reporting (Income From Operations And HTML 91K
Total Assets) (Details)
76: R93 Segment Reporting (Schedule of Revenue from HTML 75K
External Customers Attributed to Foreign Countries
by Geographic Area) (Details)
65: R94 Segment Reporting (Revenue from External Customers HTML 56K
by Products and Services) (Details)
102: R95 Segment Reporting (Schedule of Disclosure on HTML 59K
Geographic Areas, Long-Lived Assets in Individual
Foreign Countries by Country) (Details)
63: R96 Schedule II - Valuation and Qualifying Account HTML 110K
(Details)
112: XML IDEA XML File -- Filing Summary XML 177K
19: EXCEL IDEA Workbook of Financial Reports XLSX 485K
46: EXCEL IDEA Workbook of Financial Reports (.xls) XLS 4.27M
10: EX-101.INS XBRL Instance -- agco-20141231 XML 6.21M
12: EX-101.CAL XBRL Calculations -- agco-20141231_cal XML 431K
13: EX-101.DEF XBRL Definitions -- agco-20141231_def XML 1.57M
14: EX-101.LAB XBRL Labels -- agco-20141231_lab XML 3.38M
15: EX-101.PRE XBRL Presentations -- agco-20141231_pre XML 2.08M
11: EX-101.SCH XBRL Schema -- agco-20141231 XSD 321K
61: ZIP XBRL Zipped Folder -- 0000880266-15-000009-xbrl Zip 513K
| AGCO EX 10.15 - 2014 10K |
FI N° 31.593 (DE) |
Serapis N° 2011 0159 |
The European Investment Bank, having its seat at 98-100 blvd Konrad Adenauer, Luxembourg L-2950, Luxembourg, represented by Ms Elina Kamenitzer, Head of Division, and Ms Wiebke Jardet, Head of Division, | (the
‘‘Bank’’) |
AGCO International Holdings B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands having its registered office at Horsterweg 66a, 5971NG Grubbenvorst, The Netherlands and registered with the trade register of the commercial register of the Chamber of Commerce in The Netherlands under number 12067080, represented by Mr Paul Huijsmans, Authorized Representative, and Mr Gary
Rollinson, Authorized Representative, | (the ‘‘Borrower’’) |
(1) | AGCO Corporation, a company organised under the laws of Delaware, United States of America (the “Guarantor”),
has stated that its group is undertaking an investment programme in Germany, Finland and France concerning the research and development related to agricultural tractors and engines in the period 2015-2018 (the “Project”), as more particularly described in the technical description set out in Schedule A (the “Technical Description”). |
(2) | The Guarantor holds, indirectly through Massey Ferguson Corp., a company incorporated in the State of Delaware, United States of America, 100% (one hundred per cent) of the Borrower’s issued share capital and voting rights. |
(3) | The
total cost of the Project, as estimated by the Bank, is approximately EUR 408,900,000 (four hundred and eight million and nine hundred thousand euros), to be partly financed by the Guarantor’s own funds and other external funds available to the group. |
(4) | In order to fulfil the financing plan described in Recital (3), the Borrower has requested from the Bank a credit equivalent to EUR 200,000,000 (two hundred million euros) for the financing of the Project. |
(5) | The financial obligations of the Borrower under this finance contract
(the “Contract”) are to be guaranteed by the Guarantor under a guarantee and indemnity (the “Guarantee”) by execution of a deed of guarantee and indemnity and project implementation agreement in the form attached to this Contract as Schedule D (the “Guarantee Agreement”). |
(6) | The Guarantor shall comply with the provisions of the Guarantee Agreement at all times. |
(7) | The
Guarantor’s shares are listed on the New York Stock Exchange. As of the date of this Contract, the Guarantor has issued around 90 million shares. |
(8) | The Bank, considering that the financing of the Project falls within the scope of its functions, and having regard to the statements and facts cited in these Recitals, has decided to give effect to the Borrower’s request providing to it a credit in an amount equivalent to EUR 200,000,000 (two hundred million euros) under this Contract; provided that the amount of the Bank’s loan shall not, in any case, exceed 50% (fifty
per cent) of the total cost of the Project set out in Recital (3). |
(9) | The board of managing directors and the sole shareholder of the Borrower have authorised the borrowing of the sum equivalent to EUR 200,000,000 (two hundred million euros) represented by this credit on the terms and conditions set out in this Contract; copies of such authorisations are set out in Annex I. It has been duly certified to the Bank by the Borrower that such borrowing is within the corporate powers of the Borrower. |
(10) | The
Statute of the Bank provides that the Bank shall ensure that its funds are used as rationally as possible in the interests of the European Union. Accordingly, the terms and conditions of the Bank's loan operations must be consistent with relevant EU policies. |
(11) | The Bank considers that access to information plays an essential role in the reduction of environmental and social risks, including human rights violations, linked to the projects it finances. The Bank has therefore established its transparency policy, the purpose of which is to enhance the accountability of the Bank’s group towards its stakeholders and the EU citizens in general, by giving access to information that will enable them to understand its governance, strategy, policies, activities
and practices. |
(12) | The processing of personal data shall be carried out by the Bank in accordance with applicable European Union legislation on the protection of individuals with regard to the processing of personal data by the EU institutions and bodies and on the free movement of such data. |
(13) | Under current law, the Bank is exempt from withholding under FATCA pursuant to the Intergovernmental Agreement entered into between Luxembourg and the United States on 28 March 2014 implementing the Foreign Account Tax Compliance provisions
of the U.S. Hiring Incentives to Restore Employment Act of 2010. |
(a) | Interpretation |
(i) |
(ii) | References in this Contract to a provision of law are references to such provision as amended or re-enacted. |
(iii) | References
in this Contract to any other agreement or instrument are references to such other agreement or instrument as amended, novated, supplemented, extended or restated. |
(b) | Definitions |
(a) | 16h00
Luxembourg time on the day of delivery, if the notice is delivered by 14h00 Luxembourg time on a Business Day; or |
(b) | 11h00 Luxembourg time on the next following day which is a Business Day, if the notice is delivered after 14h00 Luxembourg time on any such day or is delivered on a day which is not a Business Day. |
(a) | a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with this Contract; or |
(b) | the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of either the Bank or the Borrower, preventing that party from: |
(i) | performing
its payment obligations under this Contract; or |
(ii) | communicating with other parties, |
(a) | Sections 1471 to 1474 of the Code or any associated regulations or other official guidance; |
(b) | any treaty, law, regulation or other official guidance
enacted in any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or |
(c) | any agreement pursuant to the implementation of paragraphs (a) or (b) above with the U.S. Internal Revenue Service, the U.S. government or any governmental or taxation authority in any other jurisdiction. |
(a) | there
are, in the reasonable opinion of the Bank, events or circumstances adversely affecting the Bank’s access to its sources of funding; |
(b) | in the opinion of the Bank, funds are not available from its ordinary sources of funding in order to adequately fund a Tranche in the relevant currency and/or for the relevant maturity and/or in relation to the reimbursement profile of such Tranche; |
(c) | in relation to a Tranche in respect of which interest is or would be payable at Floating Rate: |
(A)
| the cost to the Bank of obtaining funds from its sources of funding, as determined by the Bank, for a period equal to the Floating Rate Reference Period of such Tranche (i.e. in the money market) would be in excess of the applicable Relevant Interbank Rate; or |
(B) | the Bank determines that adequate and fair means do not exist for ascertaining the applicable Relevant Interbank Rate for the relevant currency of such Tranche or it is not possible to determine the Relevant Interbank Rate in accordance with the definition contained in Schedule B. |
(a) | the ability of the Borrower or the Guarantor to perform their obligations under this Contract or the Guarantee Agreement to which it is a party; |
(b) | the business, operations, property, condition (financial or otherwise) or liabilities of the Group as a whole; or |
(c) | the
validity or enforceability of, or the effectiveness or ranking of, or the value of any security granted to or procured for the Bank, or the rights or remedies of the Bank under this Contract or the Guarantee Agreement. |
(a) | the Guarantor’s and its other Subsidiaries’
proportionate share of the total assets, in the aggregate (after intercompany eliminations), of such Subsidiary (and its Subsidiaries) exceeds ten percent (10%) of the total assets of the Guarantor and its Subsidiaries Consolidated as of the end of the most recently completed Fiscal Quarter; or |
(b) | the Guarantor’s and its other Subsidiaries’ equity in the income from continuing operations, in the aggregate, before income taxes, extraordinary items and cumulative effect of a change
in accounting principles of such Subsidiary (and its Subsidiaries) exceeds ten percent (10%) of such income of the Guarantor and its Subsidiaries Consolidated for the most recently completed Fiscal Year; and |
(a) | for a Fixed Rate Tranche, the following Relevant Business
Day, without adjustment to the interest due under Article 3.01 except for those cases where repayment is made in a single instalment according to Article 4.01B, when the preceding Relevant Business Day shall apply instead to this single instalment and to the final interest payment and only in this case, with adjustment to the interest due under Article 3.01; and |
(b) | for a Floating Rate Tranche, the next day, if any, of that calendar month that is a Relevant Business Day or, failing that, the nearest preceding day that is a Relevant Business Day, in all cases with corresponding adjustment to the interest due under Article 3.01. |
(a) | Liens incurred in the ordinary course of business which do not secure Indebtedness or Hedging Obligations and which do not materially impair the value of, or materially interfere with the use of, in the ordinary course of business of the Guarantor and its Subsidiaries, the property affected and which do not, individually or in the aggregate, have a materially adverse effect on the business of the Guarantor or such Subsidiaries affected thereby individually or of the Guarantor and its Subsidiaries
on a Consolidated basis; |
(b) | Liens existing on the property of a Person immediately prior to it being acquired by the Guarantor or any of its Subsidiaries, or any Lien existing on any property acquired by the Guarantor or any of its Subsidiaries at the time such property is so acquired; provided that (i) no such Lien shall secure Indebtedness or Hedging Obligations, (ii) no such Lien shall have been created or assumed in contemplation of such Person becoming a Subsidiary of the Guarantor or such acquisition of property, and (iii) each such Lien shall at all times be confined
solely to the item or items of property so acquired and the proceeds thereof; |
(c) | Liens and rights of set-off of banks existing solely with respect to cash, Cash Equivalents or investment property on deposit with such bank in one or more accounts maintained by the Guarantor or any Subsidiary, in each case granted in the ordinary course of business in favour of the bank or banks with which such accounts are maintained; |
(d) | Liens
on Receivables sold under any factoring arrangement permitted hereunder; |
(e) | precautionary financing statements filed by lessors, or retained interests in leased equipment by lessors, with respect to equipment leases under which the Guarantor or a Subsidiary is lessee; |
(f) | Liens arising in connection with Tax Incentive Transactions; |
(g) | Liens
securing Indebtedness permitted under Article 6.06D(e) of this Contract and Article 5.17(e) of the Guarantee Agreement (as applicable) arising in connection with New Market Tax Credit Transactions; |
(h) | Liens securing reimbursement obligations with respect to letters of credit that encumber documents of title and/or property shipped under such letters of credit, to the extent incurred in the ordinary course of business; |
(i) | mandatory Liens
in favour of unsecured creditors attaching to proceeds from the sale of property in a foreclosure or similar proceeding imposed by law of any jurisdiction outside of the U.S. and which have not arisen to secure Indebtedness and do not in the aggregate materially detract from the value of such property or assets; |
(j) | Liens on cash or deposits to secure Hedging Obligations entered into in the ordinary course of business to hedge risks or reduce costs with respect to interest rates, currency or commodity exposure, and not for speculative purposes; and |
(k) | Liens
granted by a Subsidiary (other than the Borrower) to the Guarantor or another Subsidiary securing Indebtedness of such Subsidiary (other than the Borrower) to the Guarantor or such other Subsidiary; and |
(l) | any other Liens that secure Indebtedness or other obligations in a principal amount not in excess of 10% of the Guarantor’s Consolidated Net Tangible Assets. |
(a) | the
interest net of the Margin that would accrue thereafter on the Prepayment Amount over the period from the Prepayment Date to the Maturity Date, if it were not prepaid; over |
(b) | the interest that would so accrue over that period, if it were calculated at the Redeployment Rate, less 0.15% (fifteen basis points). |
(a) | for
EUR, a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer payment system, which utilises a single shared platform and which was launched on 19 November 2007 (TARGET2), is open for the settlement of payments in EUR; and |
(b) | for USD, a day on which banks are open for general business in New York. |
(a) | EURIBOR for a Tranche denominated in EUR; and |
(b) | LIBOR
for a Tranche denominated in USD. |
(c) | Dutch Terms |
(a) | a
necessary action to authorise, where applicable, includes without limitation: |
(i) | any action required to comply with the Dutch Works Council Act (Wet op de ondernemingsraden); and |
(ii) | obtaining unconditional positive advice (advies) from each competent works council; |
(b) | a
winding‑up, administration or dissolution includes a Dutch entity being: |
(i) | declared bankrupt (failliet verklaard); |
(ii) | dissolved (ontbonden); |
(c) | a moratorium includes surseance van
betaling and granted a moratorium includes surseance verleend; |
(d) | a trustee in bankruptcy includes a curator; |
(e) | an administrator includes a bewindvoerder; |
(f) | a
receiver or an administrative receiver does not include a curator or bewindvoerder; and |
(g) | an attachment includes a beslag. |
(a) | The Borrower may present to the Bank a Disbursement Request for the disbursement of a Tranche, such Disbursement Request to be received at the latest on the date falling 15 (fifteen) days before the Final Availability Date. The Disbursement Request shall be in the form set out in Schedule C.1 and shall specify: |
(i) | the amount and currency of the Tranche; |
(ii) | the
preferred disbursement date for the Tranche; such preferred disbursement date must be a Relevant Business Day falling at least 15 (fifteen) days after the date of the Disbursement Request and, in any event, on or before the Final Availability Date, it being understood that, notwithstanding the Final Availability Date, the Bank may disburse the Tranche up to 4 (four) calendar months from the date of the Disbursement Request; |
(iii) | whether the Tranche is a Fixed Rate Tranche or a Floating Rate Tranche, each pursuant to the relevant provisions of Article 3.01; |
(iv) | the
preferred interest payment periodicity for the Tranche, chosen in accordance with Article 3.01; |
(v) | the preferred terms for repayment of principal for the Tranche, chosen in accordance with Article 4.01; |
(vi) | the preferred first and last dates for repayment of principal for the Tranche; and |
(vii) | the IBAN
code (or appropriate format in line with local banking practice) and SWIFT BIC of the bank account to which disbursement of the Tranche should be made in accordance with Article 1.02D. |
(b) | If the Bank, following a request by the Borrower, has provided the Borrower before the submission of the Disbursement Request with a non‑binding fixed interest rate or spread quotation to be applicable to the Tranche, the Borrower may also, at its discretion, specify in the Disbursement Request such quotation, that is to say: |
(i) | in
the case of a Fixed Rate Tranche, the aforementioned fixed interest rate previously quoted by the Bank; or |
(ii) | in the case of a Floating Rate Tranche, the aforementioned spread previously quoted by the Bank, |
(c) | Each Disbursement Request shall be accompanied by evidence of the authority of the person or persons authorised to sign it and the specimen signature of such person or persons. |
(d) | Subject
to Article 1.02C(b), each Disbursement Request is irrevocable. |
(a) | Not less than 10 (ten) days before the proposed Scheduled Disbursement Date of a Tranche the Bank shall, if the Disbursement Request conforms to this Article 1.02, deliver to the Borrower a Disbursement Notice which shall specify: |
(i) | the
currency, amount and EUR equivalent of the Tranche; |
(ii) | the Scheduled Disbursement Date; |
(iii) | the interest rate basis for the Tranche, being: (i) a Fixed Rate Tranche; or (ii) a Floating Rate Tranche all pursuant to the relevant provisions of Article 3.01; |
(iv) | the first interest Payment Date and the
periodicity for the payment of interest for the Tranche; |
(v) | the terms for repayment of principal for the Tranche; |
(vi) | the first and last dates for repayment of principal for the Tranche; |
(vii) | the applicable Payment Dates for the Tranche; and |
(viii) | for
a Fixed Rate Tranche the Fixed Rate and for a Floating Rate Tranche the Spread applicable to the Tranche until the Maturity Date. |
(b) | If one or more of the elements specified in the Disbursement Notice does not reflect the corresponding element, if any, in the Disbursement Request, the Borrower may following receipt of the Disbursement Notice revoke the Disbursement Request by written notice to the Bank to be received no later than 12h00 Luxembourg time on the next Business Day and thereupon the Disbursement Request and the Disbursement Notice shall be of no effect. If the Borrower has not revoked in writing the Disbursement Request within such period, the Borrower will be deemed to have accepted all elements specified in the Disbursement Notice. |
(c) | If
the Borrower has presented to the Bank a Disbursement Request in which the Borrower has not specified the fixed interest rate or spread as set out in Article 1.02B(b), the Borrower will be deemed to have agreed in advance to the Fixed Rate or Spread as subsequently specified in the Disbursement Notice. |
(a) | a
copy of the articles of association (statuten) of the Borrower, as well as an extract (uittreksel) from the Dutch Commercial Register (Handelsregister) of the Borrower together with specimen signatures of the person or persons signing the Contract on behalf of the Borrower; |
(b) | a copy of a resolution of the board of managing directors of the Borrower: |
(i) |
(ii) | authorising a specified person or persons to execute this Contract on its behalf; and |
(iii) | authorising
a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Disbursement Request) to be signed and/or despatched by it under or in connection with this Contract; |
(c) | a copy of a resolution signed by the sole shareholder of the Borrower approving the resolutions of the board of managing directors referred to in paragraph (b) above and appointing an authorised person to represent the Borrower in case of a conflict of interest; |
(d) | if
applicable, a copy of (i) the request for advice from each works council, or central or European works council with jurisdiction over the transactions contemplated by this Contract and (ii) the unconditional positive advice from such works council, or, if no advice is required to be obtained, a declaration by the Borrower, signed by a person or persons duly authorised to act on behalf of the Borrower, that there is no works council, or central or European works council with jurisdiction over the transactions contemplated by this Contract; |
(e) | a certificate of an authorised
signatory of each of the Borrower and the Guarantor, certifying that each copy document relating to the Borrower or the Guarantor, as the case may be, specified in this Article 1.04A is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the date of this Contract; |
(f) | evidence that the Borrower has obtained all necessary consents, authorisations, licences or approvals of governmental or public bodies or authorities required in connection with this Contract or, if none are required, a declaration by the Borrower,
signed by a person or persons duly authorised to act on behalf of the Borrower, that no consents, authorisations, licenses or approvals of governmental or public bodies or authorities are required in connection with this Contract, such evidence substantially in the form provided for in Schedule C.2, paragraph (h); |
(g) | the duly executed Guarantee Agreement, in full force and effect, covering the aggregate financial obligations of the Borrower under this Contract, in the form set out in Schedule D; |
(h) | evidence
that the execution of the Guarantee Agreement by the Guarantor has been duly authorised and that the person or persons signing the Guarantee Agreement on behalf of the Guarantor is/are duly authorised to do so together with the specimen signature of each such person or persons; |
(i) | a legal opinion issued by external legal counsel on, inter alia, the authority and capacity of the Borrower, and due execution by the Borrower of this Contract; |
(j) | a
legal opinion issued by external legal counsel on, inter alia, the authority and capacity of the Guarantor, and due execution by the Guarantor of the Guarantee Agreement; |
(k) | a legal opinion issued by external legal counsel confirming, inter alia, that this Contract and the Guarantee Agreement are in full force and effect, and are valid, binding and enforceable in accordance with their respective terms under English law; |
(l) | evidence
of acceptance by the agent of service of its appointment with respect to this Contract; and |
(m) | evidence of acceptance by the agent of service of its appointment with respect to the Guarantee Agreement. |
(a) | receipt by the Bank, in form and substance satisfactory to it, on or before the date falling 5 (five) Business Days before the Scheduled Disbursement Date for the proposed Tranche, of the following documents or evidence: |
(i) | a certificate from the Borrower in the form of Schedule C.2; |
(ii) | a
certificate from the Guarantor in the form of Schedule C.3; |
(iii) | a duly executed Compliance Certificate; and |
(iv) | a copy of any other authorisation or other document, opinion or assurance, which the Bank has notified the Borrower is necessary or desirable in connection with the entry into, delivery and performance of, and the transactions contemplated by, this Contract, the Guarantee Agreement or any other security, or the validity and
enforceability of the same. |
(b) | that on the Disbursement Date for the proposed Tranche: |
(i) | the representations and warranties which are repeated pursuant to Article 6.07 being correct in all material respects; and |
(ii) | no event or circumstance which constitutes or would with the passage of time or giving
of notice under this Contract constitute: |
1.05B | Cancellation of a disbursement deferred by 6 (six) months |
(a) | The Bank may,
by notice in writing to the Borrower, suspend and/or cancel the undisbursed portion of the Credit in whole or in part at any time and with immediate effect: |
(i) | upon the occurrence of a Prepayment Event or an Event of Default or an event or circumstance which would with the passage of time or giving of notice under this Contract constitute a Prepayment Event or an Event of Default; or |
(ii) | if a Material Adverse Change occurs. |
(b) | The
Bank may also suspend the portion of the Credit in respect of which it has not issued a Disbursement Notice with immediate effect in the case that a Market Disruption Event occurs. |
(c) | Any suspension shall continue until the Bank ends the suspension or cancels the suspended amount. |
(a) | a Fixed Rate Tranche, which is a Notified Tranche, it shall indemnify the Bank under Article 4.02B; or |
(b) | a Floating Rate Tranche, which is a Notified Tranche, or any part of the Credit other than a Notified Tranche, no indemnity is payable. |
(a) | a
Fixed Rate Tranche, which is a Notified Tranche, upon an Indemnifiable Prepayment Event or upon the occurrence of a Material Adverse Change or pursuant to Article 1.05B, the Borrower shall pay to the Bank the Prepayment Indemnity; or |
(b) | a Notified Tranche upon an Event of Default, the Borrower shall indemnify the Bank under Article 10.03. |
(a) | for overdue sums related to Floating Rate Tranches, the applicable Floating Rate plus 2% (200 basis points); |
(b) | for
overdue sums related to Fixed Rate Tranches, the higher of (i) the applicable Fixed Rate plus 2% (200 basis points) or (ii) the Relevant Interbank Rate plus 2% (200 basis points); and |
(c) | for overdue sums other than under (a) or (b) above, the Relevant Interbank Rate plus 2% (200 basis points), and |
(a) | the Margin and |
(b) | the rate (expressed as a percentage rate per annum) which is determined by the Bank to be the all-inclusive cost to the Bank for the funding of the relevant Tranche based upon the then applicable internally generated Bank reference rate or an alternative rate determination method reasonably determined by the Bank. |
(a) | The Borrower shall repay each Tranche by instalments on the Payment Dates specified in the relevant Disbursement Notice in accordance with the terms of the amortisation table delivered pursuant to Article 2.03. |
(b) | Each amortisation table shall be drawn up on the basis that: |
(i) | in the case of a Fixed
Rate Tranche, repayment shall be made annually, semi-annually or quarterly by equal instalments of principal or constant instalments of principal and interest; |
(ii) | in the case of a Floating Rate Tranche, repayment shall be made by equal annual, semi-annual or quarterly instalments of principal; |
(iii) | the first repayment date of each Tranche shall be a Payment Date falling not earlier than 60 (sixty) days from the Scheduled Disbursement Date and not later than the first Payment Date immediately following the 2nd
(second) anniversary of the Scheduled Disbursement Date of the Tranche; and |
(iv) | the last repayment date of each Tranche shall be a Payment Date falling not earlier than 4 (four) years and not later than 8 (eight) years from the Scheduled Disbursement Date. |
(a) | a “Change-of-Control
Event” occurs if: |
(i) | any person, or group of persons acting in concert, gains beneficial ownership, directly or indirectly, of voting Equity Interests (or other securities convertible into such voting Equity Interests) representing 35% (thirty-five percent) or more of the combined voting power of all voting Equity Interests of the Guarantor; or |
(ii) | the Guarantor ceases to be the beneficial owner, directly or indirectly through wholly owned Subsidiaries,
of 100% (one hundred per cent) of the issued share capital of the Borrower; and |
(b) | “acting in concert” means acting together pursuant to an agreement or understanding (whether formal or informal). |
(a) | in
respect of interest and indemnities due under a Fixed Rate Tranche, a year of 360 (three hundred and sixty) days and a month of 30 (thirty) days; |
(b) | in respect of interest and indemnities due under a Floating Rate Tranche, a year of 360 (three hundred and sixty) days and the number of days elapsed; and |
(c) | in respect of fees, a year of 360 (three hundred and sixty) days and the number of days elapsed. |
5.03 | No set-off by the Borrower |
(a) | the Bank may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Contract as the Bank may deem necessary in the circumstances; |
(b) | the Bank shall not be obliged to consult with
the Borrower in relation to any changes mentioned in paragraph (a) if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes; and |
(c) | the Bank shall not be liable for any damages, costs or losses whatsoever arising as a result of a Disruption Event or for taking or not taking any action pursuant to or in connection with this Article 5.04. |
(a) | General |
(b) | Partial payments |
(i) | firstly,
in or towards the pro rata payment of any unpaid fees, costs, indemnities and expenses due under this Contract; |
(ii) | secondly, in or towards payment of any accrued interest due but unpaid under this Contract; |
(iii) | thirdly, in or towards payment of any principal due but unpaid under this Contract;
and |
(iv) | fourthly, in or towards payment of any other sum due but unpaid under this Contract. |
(c) | Allocation of sums related to Tranches |
- | a
partial voluntary prepayment of a Tranche that is subject to repayment in several instalments, the Prepayment Amount shall be applied pro rata to each outstanding instalment, or, at the request of the Borrower, in inverse order of maturity, |
- | a partial compulsory prepayment of a Tranche that is subject to repayment in several instalments, the Prepayment Amount shall be applied in reduction of the outstanding instalments in inverse order of maturity. |
(ii) | Sums received by the
Bank following a demand under Article 10.01 and applied to a Tranche shall reduce the outstanding instalments in inverse order of maturity. The Bank may apply sums received between Tranches at its discretion. |
(iii) | In case of receipt of sums which cannot be identified as applicable to a specific Tranche, and on which there is no agreement between the Bank and the Borrower on their application, the Bank may apply these between Tranches at its discretion. |
(a) | Except as provided below,
the Borrower shall not, and shall procure that neither the Guarantor nor any Subsidiary will, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily dispose of any part of its assets. |
(b) | Paragraph (a) above does not apply to: |
(i) | sales of Inventory in the ordinary course of its business; |
(ii) | sale
or disposition of obsolete, worn-out or surplus equipment in the ordinary course of business; |
(iii) | so long as no Event of Default has occurred and is then continuing, the sale of fixed assets in connection with Tax Incentive Transactions or New Market Tax Credit Transactions; |
(iv) | transfers of assets among the Guarantor and its Subsidiaries in compliance with Article 6.06B; |
(v) | sales
of Receivables in connection with factoring arrangements in the ordinary course of business; and |
(vi) | so long as no Event of Default has occurred and is then continuing, the sale of any other assets by the Guarantor or any Subsidiary in an aggregate amount during any Fiscal Year of the Guarantor not exceeding 10% of the Consolidated Net Tangible Assets of the Guarantor as of the last day of such Fiscal Year and (ii) in an aggregate amount during the term of this Contract not exceeding 20% of the Consolidated Net Tangible Assets of the Guarantor at any time, |
(i) | the Merger Event results or will result in an “unacceptable credit concentration” for the Bank; |
(ii) | the obligations under this Contract and/or under the Guarantee Agreement would, as a result of such Merger Event, not remain with the Borrower
and the Guarantor, respectively, but would instead be transferred (by law, agreement or otherwise) to another entity; |
(iii) | the Merger Event has or will have a material adverse effect on the validity, legality or enforceability of the Borrower’s obligations under this Contract or the Guarantor’s obligations under the Guarantee Agreement; or |
(iv) | the statutory seat of the Borrower would, as a result of such Merger Event, be transferred
outside the European Union and/or the Guarantor would cease to be organised under the laws of the State of Delaware, United States, |
(a) | Net Leverage Ratio. The Borrower shall not allow, and shall procure that the Guarantor does not allow,
as of the end of each Fiscal Quarter, the Net Leverage Ratio to exceed 3.00 to 1.00. |
(b) | Interest Coverage Ratio. The Borrower shall, and shall procure that the Guarantor will, maintain, as of the end of each Fiscal Quarter, an Interest Coverage Ratio of not less than 3.00 to 1.00. |
(a) | Indebtedness under the AGCO Credit Agreement; |
(b) | unsecured
Indebtedness of the Guarantor under the 2036 Senior Subordinated Notes Documents and Senior Debt Documents, in each case, as of the date of this Contract; |
(c) | unsecured Indebtedness under the European Term Loan Credit Agreement as of the date of this Contract; |
(d) | intercompany Indebtedness among any of the Guarantor and the Subsidiaries;
provided, to the extent such Indebtedness is incurred by or an obligation of the Borrower or the Guarantor, such Indebtedness, shall be unsecured; |
(e) | Indebtedness incurred in connection with a New Market Tax Credit Transaction in an aggregate amount not to exceed USD 20,000,000; |
(f) | Indebtedness
under any Capitalized Leases in existence as of the date of this Contract; and |
(g) | Indebtedness incurred after the date of this Contract so long as (i) no Event of Default exists or would result therefrom, (ii) the Borrower and/or the Guarantor (as applicable) determines after giving effect to the incurrence of such Indebtedness that it is in pro forma compliance with the financial covenants set forth in Article 6.06A of this Contract and/or Article 5.14 of the Guarantee Agreement
(as applicable), and (iii) such Indebtedness shall be unsecured except to the extent it is secured by a Permitted Lien. In the event any Indebtedness subject to this clause (g) is a revolving line of credit, the pro forma compliance shall be calculated based upon the maximum facility amount of such revolving credit facility, assuming it is fully drawn, in which case such pro forma compliance shall be satisfied for all future borrowings thereunder up to the amount of such maximum facility amount. |
(a)
| the amount of dividends or other distributions with respect to any of its Equity Interests that may be paid by such Subsidiary to the Guarantor or another Subsidiary of the Guarantor, |
(b) | the amount of loans that may be made by such Subsidiary to the Guarantor or another Subsidiary of the Guarantor, |
(c) | the amount of payments by such Subsidiary on Indebtedness owing by such Subsidiary of the Guarantor to the Guarantor or another Subsidiary, or |
(d)
| the ability of such Subsidiary to transfer any of its properties or assets to the Guarantor or any other Subsidiary of the Guarantor, |
(i) | restrictions imposed under an agreement for the sale of all of the Equity Interests in 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, |
(ii) | restrictions
set forth in the AGCO Credit Agreement, the 2036 Senior Subordinated Notes Documents and the Senior Debt Documents as of the effective date of such documents and any similar restrictions set forth in documents governing Indebtedness permitted under Article 6.06D, |
(iii) | restrictions imposed by applicable law, this Contract or the Guarantee Agreement, |
(iv) | restrictions in any agreement with another Person relating to a joint venture
conducted through a Subsidiary of the Guarantor in which such Person is a minority stockholder requiring the consent of such Person to the payment of dividends, |
(v) | with respect to restrictions of the type described in clause (d) above, restrictions under agreements governing Indebtedness secured by a Lien not otherwise prohibited hereunder that limit the right of the debtor to dispose of the assets securing such Indebtedness, |
(vi) | customary provisions contained in leases, licenses and other similar agreements entered into
in the ordinary course of business that impose restrictions of the type described in clause (d) above on the property subject to such lease, |
(vii) | customary anti-assignment provisions contained in agreements entered into in the ordinary course of business, |
(viii) | customary subordination of subrogation, contribution and similar claims contained in guaranties permitted under AGCO Credit Agreement and hereunder, |
(ix)
| restrictions on the transfer, lease, or license of any property or asset of the Guarantor or any Subsidiary in effect on the date of this Contract that were entered into in the ordinary course of business, and |
(x) | encumbrances or restrictions existing with respect to any Person or the property or assets of such Person acquired by the Guarantor or any Subsidiary of the Guarantor, provided that such encumbrances and restrictions were in existence immediately prior to such acquisition (and not created in contemplation thereof) and are not applicable to any Person or the property or assets of any
Person other than such acquired Person or the property or assets of such acquired Person. |
(a) | it is duly incorporated and validly existing as a private company with limited liability under the laws of Netherlands and it has power to carry on its business as it is now being conducted and to own its property and other assets; |
(b) | it
has the power to execute, deliver and perform its obligations under this Contract and all necessary corporate, shareholder and other action has been taken to authorise the execution, delivery and performance of the same by it; |
(c) | this Contract constitutes its legally valid, binding and enforceable obligations; |
(d) | the execution and delivery of,
the performance of its obligations under and compliance with the provisions of this Contract do not and will not: |
(i) | contravene or conflict with any applicable law, statute, rule or regulation, or any judgement, decree or permit to which it is subject; |
(ii) | contravene or conflict with any agreement or other instrument binding upon it which might reasonably be expected to have a material adverse effect on its ability to perform its obligations
under this Contract; and |
(iii) | contravene or conflict with any provision of its constitutional documents; |
(e) | the latest available accounts of the Borrower have been prepared on a basis consistent with previous years and represent a true and fair view of the results of its operations for that year and accurately disclose or reserve against all the liabilities (actual or contingent) of the Borrower; |
(f) | there
has been no Material Adverse Change since 18 November 2014; |
(g) | no event or circumstance which constitutes an Event of Default has occurred and is continuing unremedied or unwaived; |
(h) | no litigation, arbitration, administrative proceedings or investigation is current or, to its knowledge, is threatened or pending before any court, arbitral body or agency which has resulted or, if adversely determined, is reasonably likely to result in a Material Adverse Change, nor is there subsisting any unsatisfied judgement or award which
has resulted or is reasonably likely to result in a Material Adverse Change; |
(i) | it has obtained all necessary consents, authorisations, licences or approvals of governmental or public bodies or authorities in connection with this Contract, and in order to lawfully comply with its obligations hereunder, and all such consents, authorisations, licences or approvals are in full force and effect and admissible in evidence; |
(j) | the Group
is in compliance with Article 7.04, and the Borrower, the Guarantor and any Subsidiary are in compliance with Article 7.02; |
(k) | its payment obligations under this Contract rank not less than pari passu in right of payment with all other present and future unsecured and unsubordinated obligations under any of its debt instruments and with all present and future claims of its other unsecured and unsubordinated creditors except for obligations mandatorily preferred by law applying to companies generally; |
(l) | the
Borrower’s resolutions provided to the Bank pursuant to Annex I to this Contract have not been amended, rescinded, revoked or declared null and void; |
(m) | the articles of association of the Borrower have not been amended since 23 December 2008, or if they have been amended, the Borrower has notified the Bank thereof; |
(n) | to the best of its knowledge,
no funds invested in the Project by the Borrower, the Guarantor or any Subsidiary are of illicit origin, including products of money laundering or linked to the financing of terrorism. The Borrower shall promptly inform the Bank if at any time it becomes aware of the illicit origin of any such funds; |
(o) | it has its "centre of main interests" within the meaning of Regulation (EC) No. 1346/2000 of the Council of 29 May 2000 on Insolvency Proceedings in The Netherlands and it does not have an "establishment" within the meaning of Regulation (EC) No. 1346/2000 of the Council of 29 May 2000 on Insolvency Proceedings outside The Netherlands; |
(p) | it
deems the entering into, signing, execution, delivery and performance of this Contract to be (i) in the Borrower's corporate interest (vennootschappelijk belang) and conducive to the realisation of and useful in connection with the Borrower's corporate objects (doel) and (ii) not prejudicial to the interests of the Borrower's (present and future) creditors; |
(q) | no notice under Article 36 Tax Collection Act (Invorderingswet 1990) has been given by any member of the Group; |
(r) | where
applicable, it will at all times act in full compliance with article 2:98c of the Dutch Civil Code (Burgerlijk Wetboek); |
(s) | it shall comply with Financial Supervision Act (Wet op het financieel toezicht), including any regulations issued pursuant thereto; |
(t) | it is subject to civil and commercial law with respect to its obligations under this Contract
and in any proceedings taken in its jurisdiction of incorporation in relation to this Contract, it will not be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process; and |
(u) |
(a) | The Borrower shall not, and shall ensure that neither the Guarantor nor any Subsidiary will, create, incur, assume or suffer to exist any Lien on or with respect to any of its properties of any character, whether now owned or hereafter acquired, except Permitted Liens. |
(b) | The Borrower shall, and shall ensure that the Guarantor and any Subsidiary will, request the prior written consent of the Bank to create, incur, assume or suffer to exist any Lien other than a Permitted Lien on or with respect to any of its properties of any character,
whether now owned or hereafter acquired. The consent of the Bank shall not be unreasonably refused or delayed on the condition that the obligations of the Borrower under this Contract are secured equally and rateably prior to such Lien being provided to any third party lender. |
(a) | not included in this Contract, |
(b) | is
stricter than the relevant provisions of this Contract, or |
(c) | is otherwise more favourable for third party creditors than the relevant provisions of this Contract, |
(i) | any financial indebtedness incurred (x) from banks (other than multilateral development banks/IFIs) or (y) in form of bonds issued by any member of the Group, in each case in non-OECD countries by any member of the Group located and incorporated in a non-OECD country; and |
(ii) | upstream guarantees by Massey Ferguson Corp. and The GSI Group, LLC under the AGCO Credit Agreement in the maximum aggregate amount of up to USD 1,155,000,000. |
(a) | (i) deliver to the Bank each year within 1 (one) month after their publication its unaudited annual report, balance sheet, profit and loss account certified by its directors and, from time to time, such further information on its general financial situation as the Bank may reasonably require and (ii) deliver and/or procure that the Guarantor delivers to the Bank financial statements pursuant to Article 4.02(a) of the Guarantee Agreement
together with a Compliance Certificate, in form and substance satisfactory to the Bank, signed by authorised representatives of the Borrower and the Guarantor confirming compliance with the financial covenants pursuant to Article 6.06A of this Contract and Article 5.14 of the Guarantee Agreement (including evidence of such compliance and related calculations) and including necessary information for determining the applicable Margin; and |
(b) | inform the Bank immediately of: |
(i) | any
material alteration to its constitutional documents after the date of this Contract; |
(ii) | any fact which obliges the Borrower, the Guarantor or any other member of the Group to prepay any financial indebtedness in the amount in excess of USD 50,000,000 in the aggregate or any EU funding, except when such prepayment is (A) made by the Borrower, the Guarantor or any other member of the Group on a voluntary basis or when early redemption at the discretion of the Borrower, the Guarantor or any other member of the Group, as issuers, was originally foreseen in the documentation of the relevant capital markets instrument or (B) the result of the sale or other disposition
of assets which secure such indebtedness; |
(iii) | any event or decision that constitutes or may result in a Prepayment Event; |
(iv) | any intention on its part, or that of the Guarantor or any Subsidiary, to create, incur, assume or suffer to exist any Lien on or with respect to any of its properties of any character, or those of
the Guarantor or any Subsidiary, in favour of a third party, save for Permitted Liens; |
(v) | any intention on its part, or that of the Guarantor or any Subsidiary, to relinquish ownership of any material component of the Project, save as permitted pursuant to this Contract; |
(vi) | any fact or event that is reasonably likely to prevent the substantial fulfilment of any obligation of the Borrower under this Contract; |
(vii) | any
event listed in Article 10.01 having occurred or being imminent; |
(viii) | any event or decision that constitutes or may result in an event described in Article 6.02, other than those described in Article 6.02(b); |
(ix) | any Merger Event; |
(x) | any litigation, arbitration, administrative proceedings or investigation,
which is current, threatened or pending, which might reasonably be expected to result in a Material Adverse Change; |
(xi) | any investigation concerning the integrity of any member of the Borrower’s board of managing directors; and |
(xii) | to the extent permitted by law, any material litigation, arbitration, administrative proceedings or investigation carried out by a court, administration or similar public authority, which, to the best of its knowledge and belief, is current, imminent or pending against the Borrower or any of its
controlling entities or any member of the Borrower’s board of managing directors in connection with a Criminal Offence related to the Loan or the Project. |
9.03 | Increased
costs, indemnity and set-off |
(a) | The Borrower shall pay to the Bank any costs or expenses incurred or suffered by the Bank as a consequence of the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or compliance with any law or regulation after the date of this Contract in accordance with which (i) the Bank is obliged to incur additional costs in order to fund or perform its obligations under this Contract or (ii) any amount owed by the Borrower to the Bank under this Contract
or the financial income resulting from the granting of the Credit or the Loan by the Bank to the Borrower is reduced or eliminated. |
(b) | Without prejudice to any other rights of the Bank under this Contract or any applicable law, the Borrower shall indemnify and hold the Bank harmless from and against any loss incurred as a result of any full or partial discharge of the Borrower’s obligations under this Contract that takes place in a manner other than as expressly provided for in this Contract. |
(c)
| The Bank may set off any matured obligation due from the Borrower under this Contract (to the extent beneficially owned by the Bank) against any obligation (whether or not matured) owed by the Bank to the Borrower regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Bank may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off. |
(a) | if the Borrower does not pay on the due date any amount payable pursuant to this Contract
at the place and in the currency in which it is expressed to be payable, unless (i) its failure to pay is caused by an administrative or technical error or a Disruption Event and (ii) payment is made within 3 (three) Business Days of its due date; |
(b) | if any information or document given to the Bank by or on behalf of the Borrower or the Guarantor or any representation, warranty or statement made or deemed to be made by the Borrower or the Guarantor in or pursuant to this Contract or the Guarantee Agreement is, or proves to have been, incorrect, incomplete or misleading in any material respect; |
(c) | if
the Borrower or the Guarantor or any other member of the Group shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebtedness, if such Indebtedness is outstanding in a principal or notional amount of at least USD 50,000,000 in the aggregate (but excluding Indebtedness 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 Indebtedness; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace 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 Indebtedness or
otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature; or any such Indebtedness 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 Indebtedness shall be required to be made, in each case prior to the stated maturity thereof; |
(d) | if the Borrower or the Guarantor or any other member of the Group is generally unable to pay its debts as they fall due, or suspends its debts, or makes or seeks to make a composition with its creditors; |
(e) | if
any corporate action, legal proceedings or other procedure or step is taken in relation to the suspension of payments, a moratorium of any indebtedness, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) or an order is made or an effective resolution is passed for the winding up of the Borrower or the Guarantor or any other member of the Group, or if the Borrower or the Guarantor or any other member of the Group takes steps towards a substantial reduction in its capital, is declared insolvent or ceases or resolves to cease to carry on the whole or any substantial part of its business or activities; |
(f) | if an encumbrancer takes possession of, or a receiver, trustee in bankruptcy, liquidator,
administrator, administrative receiver or similar officer is appointed, whether by a court of competent jurisdiction or by any competent administrative authority or by any person, of or over any part of the business or assets of the Borrower or the Guarantor or any other member of the Group or any property forming part of the Project; |
(g) | if the Borrower or the Guarantor or any other member of the Group defaults in the performance of any obligation in respect of any other loan granted by the Bank or financial instrument entered into with the Bank; |
(h) | if
any distress, execution, sequestration, attachment or other process is levied or enforced upon the property of the Borrower or the Guarantor or any other member of the Group or any property forming part of the Project and is not discharged or stayed within 14 (fourteen) days; |
(i) | if (x) it is or becomes unlawful for the Borrower or the Guarantor to perform any of its obligations under this Contract or the Guarantee Agreement; or (y) this Contract or the Guarantee Agreement is not effective in accordance with its terms or is alleged by the Borrower or the Guarantor to
be ineffective in accordance with its terms; or |
(j) | if a notice under Article 36 Tax Collection Act (Invorderingswet 1990) has been given by any member of the Group. |
(a) | the Borrower fails to comply with any obligation under this Contract
not being an obligation mentioned in Article 10.01A or the Guarantor fails to comply with any obligation under the Guarantee Agreement; or |
(b) | any fact stated in the Recitals materially alters and is not materially restored and the alteration either prejudices the interests of the Bank as lender to the Borrower or adversely affects the implementation or operation of the Project, |
11.03 | Forum conveniens and enforcement abroad |
(a) | waives
any objection it may have to the English courts on grounds of inconvenient forum or otherwise as regards proceedings in connection with this Contract; and |
(b) | agrees that a judgment or order of an English court in connection with this Contract is conclusive and binding on it and may be enforced against it in the courts of any other jurisdiction. |
11.04 | Agent
of service |
(a) |
(b) | If any person appointed as process
agent under paragraph (a) above is unable for any reason to so act or if such appointment is terminated for any reason, the Borrower must immediately (and in any event within 15 (fifteen) days of the event taking place) appoint another agent on terms acceptable to the Bank. Failing this, the Bank may appoint another process agent for this purpose. |
(c) | The Borrower agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings. |
(d) | This Article 11.04 does not affect any other
method of service allowed by law. |
11.05 | Place of performance |
For the Bank | Attention: Ops - Central Europe Department 98-100 boulevard Konrad Adenauer L-2950 Luxembourg Facsimile no.:
+352 4379 67197 |
For the Borrower | Attention: Finance Department |
(a) | “Finance Documents” means this Contract
and the Guarantee Agreement; and |
(b) | “Parties” means the Borrower, the Guarantor and the Bank. |
Schedule A | Technical
Description |
Schedule B | Definitions of EURIBOR and LIBOR |
Schedule C | Forms for the Borrower and the Guarantor |
Schedule D | Form of the Guarantee Agreement |
Schedule E | Form of Compliance Certificate |
Annex
I | Borrower’s resolutions of the board of managing directors and the sole shareholder, the extract (uittreksel) from the Dutch Commercial Register (Handelsregister) of the Borrower and authorisation of signatories |
Signed for and on behalf of EUROPEAN INVESTMENT BANK | Signed for and on behalf of AGCO International Holdings B.V. | ||
/s/
E. Kamenitzer | /s/ W. Jardet | /s/ P. Huijsmans | /s/ G. Rollinson |
Head of Division | Head
of Division | Authorized Representative | Authorized Representative |
(i) Marktoberdorf, Germany | ||
Project name | Project description | Deliverables |
X217 | New
emission technology in order to meet COMIIIB (Tier 4 interim) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 4 interim requirements |
X315 | New emission technology in order to meet COMIV (Tier 4 final) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 4 final requirements |
New driver place, new hydraulic concept, new features | Increase the overall efficiency of the machine | |
Capability
for bigger tyres | Increase scope of application | |
X320 | New emission technology in order to meet COMV (Tier 5) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 5 requirements |
New engine with increased horse power | Increase engine efficiency (fuel) | |
CEA Guide implementation | Increase efficiency of material
usage (seeds, fertilizer, pesticide, fuel, etc.) | |
X515 | New emission technology in order to meet COMIV (Tier 4 final) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 4 final requirements |
X520 | New emission technology in order to meet COMV (Tier 5) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 5 requirements |
X719 | New emission technology in order to meet COMV (Tier 5) requirements | Reduce
nitrogen oxide and particulate matter to meet Tier 5 requirements |
New engine and implementation of new CVT generation (TA190) | Increase fuel (energy) efficiency | |
Improved/extended automation of driver place | Increase operator respectively overall machine efficiency | |
CEA Guide implementation | Increase efficiency of material usage (seeds, fertilizer, pesticide, fuel, etc.) | |
Tyre
pressure control system | Increase fuel efficiency (on- & off-road) | |
X820 | New emission
technology in order to meet COMV (Tier 5) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 5 requirements |
CEA Guide implementation | Increase efficiency of material usage (seeds, fertilizer, pesticide, fuel, etc.) | |
X918 | New emission technology in order to meet COMV (Tier 5) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 5 requirements |
New
engine and implementation of new CVT generation (TA300) | Increase fuel (energy) efficiency | |
New hydraulic concept | Increase fuel efficiency | |
X1015 | New model range in the range 400 - 500 HP, mainly used for heavy pulling but also maintaining the Fendt-specific all-round capability like for transport etc | Provide efficient Fendt Technology in a new model range |
New emission technology in
order to meet COMIV (Tier 4 final) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 4 final requirements | |
X1019 | New emission technology in order to meet COMV (Tier 5) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 5 requirements |
SPFH | New emission technology in order to meet COMV (Tier 5) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 5 requirements |
New
Model Katana 45 | Provide efficient Fendt Technology in a new model range | |
New Technology NIR-Sensor | Mixture measurement for efficiency in harvesting and further processing | |
TA190 | Module Development of new CVT generation | Increase fuel (energy) efficiency |
TA300 | Module Development of new CVT generation | Increase fuel (energy) efficiency |
TA
- MT 700 | Module Development of new CVT generation for track tractors | Provide fuel efficient technology to track tractors |
TA - MT 800 | Module Development of new CVT generation for track tractors | Provide fuel efficient technology to track tractors |
Section Control | Module Development for automatic switching of sections of an implement based on GPS position and desired degree of overlap | Increase efficiency of material usage (seeds, fertilizer, pesticide, fuel,
etc.) |
CEA Guide | Module Development of automatic guidance system | Increase efficiency of material usage (seeds, fertilizer, pesticide, fuel, etc.) |
Research projects - Robotics | MARS SMART-E | Increase efficiency of material usage (fertilizer, pesticide, seeds, fuel, etc.) and Resources |
(ii)
Beauvais, France | ||
Project name | Project description | Deliverables |
Reliability | All engineering efforts to cover current product maintenance and reliability improvement. New features requested by product | |
management
during serial production | ||
SRT1 4 cylinder T4 final | Due to emission legislation Tier 4 final has to be implemented onto the big 4cyl tractors MF/Challenger/Iseki up to 130kW New CVT installation bringing additional lift capacity and new hydraulic installation | New 6700 range T4F compliant New hydraulic installation with new features. New CVT with new features |
ERT 4 cylinders T4 final | Due to emission legislation Tier 4 final has to be implemented onto the small 4cyl tractors MF/Iseki up to 95kW | New
5700 range 4cyl T4F compliant New hydraulic installation with new features |
ERT1 4 cylinders T4 final | Due to emission legislation Tier 4 final has to be implemented onto the small 4cyl tractors MF up to 80kW. New hydraulic installation. HP increase | New 5700 range 4cyl T4F compliant New hydraulic installation with new features. New front axle suspension. Max horse power increase |
SRT2 6 cylinders T5 | Due to emission legislation Tier 5 has to be implemented onto the 6cyl tractors. In addition the new range has to
be compliant with the mother regulation (incl. ABS compatibility) New range of transmissions and engines. New cab and hood design | |
(iii) Suolahti, Finland | ||
Project
name | Project description | Deliverables |
Tier 4 Final | Engine series (56<P<365kW) designed to meet Tier IV Final emission legislation | Fulfil Tier IV final emission requirement (engine development, testing, validation and application work) |
AP 3000 | New base engine series designed to meet Tier V Final emission legislation (56<P<250 kW) | As an integration with EAT system AP300 series is designed to meet Tier V requirement, low cost, Low total cost of
ownership, superior performance, good durability |
Big bore | New base engine series designed to meet Tier V Final emission legislation (184<P<405kW) | As an integration with EAT system BB upgrade series is designed to meet Tier V requirement, superior total cost of ownership, superior performance, superior durability |
Engine After Treatment (including StageV) | New after treatment system designed for following engine platforms: current Tier 4 Final, New AP3000, New Big Bore upgrade and Eco platform | Fulfil Tier V final emission requirement together with base engine technology, to develop
simple and reliable Diesel Particulate Filter system |
(iv) Linnavuori, Finland | ||
Project
name | Project description | Deliverables |
Tier IV final emissions, Cab Phase 11 (VT11) | Tier 4 Final 6-cyl (66 and 74 Engines) | To meet Tier IV final requirement |
150 - 235 HP | SOP Q4 2014 | |
New Cab, New design of front end, Product range shift up to T234 | ||
New hydraulic options, LS with mechanical spool valves | ||
3
speed PTO, New transmission control interface | ||
Tier IV final emissions, Cab Phase 11 (VN12a) | Tier4 Final 3- and 4-cyl (33, 44 and 49 Engines) | To meet Tier IV final requirement |
90 - 180 HP | SOP Q3 2015 (VN12a 4 cyl) | |
New outlook, design aligned with VT11 | SOP Q2 2016 (VN12b 3 cyl) | |
3 PS replaced with 5 PS | ||
3
cylinder common pilot project (VN12b) | Introduce CM08 Phase 2 cabin version in Small N-series (carry over from VN12a) | Gradually replace all N3 models during 2015-2016 |
Introduce optional 3-speed rear PTO (carry over from VN12a and VT11) | VN12b will be AGCO pilot project for common front-end design. It will be done jointly with MF Z19A project | |
Robotized creeper and GSPTO (carry over from VN12a and VT11) | ||
Change EGR technology to SCR Only | ||
Next
generation A, (VA13) | Global AGCO project will deliver also Valtra models as a new A-series | SOP Q4 2016 |
Replacement for existing A3-series | ||
70 - 130 HP | ||
Valtra brand specific cab | ||
New design of front end | ||
N, T and S range (VT16
and VS16, CEA) | Modernization of user interface | SOP Q1 / 2017 |
Meet EU Tractor mother regulations | ||
AGCO common electric architecture | ||
AGCO global S-platform (volume) | Stage 5 4-cyl | SOP Q3 / 2019 |
AGCO global M-platform (volume) | Stage 5 6-cyl | SOP
Q1 / 2019 |
Research and advance engineering | Betra | |
Reliability | Engineering efforts to cover current product maintenance and reliability improvement | |
(a) | in respect of a relevant period of less than one
month, the Screen Rate (as defined below) for a term of one month; |
(b) | in respect of a relevant period of one or more months for which a Screen Rate is available, the applicable Screen Rate for a term for the corresponding number of months; and |
(c) | in respect of a relevant period of more than one month for which a Screen Rate is not available, the rate resulting from a linear interpolation by reference to two Screen Rates, one of which is applicable for a period next shorter and the other for a period next longer than the
length of the relevant period, |
(a) | in respect of a relevant period of less than one month, the Screen Rate for a term of one month; |
(b) | in respect of a relevant period of one or more months for which a Screen Rate is available, the applicable Screen Rate for a term for the corresponding number of months; and |
(c) | in
respect of a relevant period of more than one month for which a Screen Rate is not available, the rate resulting from a linear interpolation by reference to two Screen Rates, one of which is applicable for a period next shorter and the other for a period next longer than the length of the relevant period, |
(a) | “London Business Day” means a day on which banks are open for normal business in London and “New York Business Day” means a day on which banks are open for normal business in New York. |
(b) | All
percentages resulting from any calculations referred to in this Schedule will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, with halves being rounded up. |
(c) | The Bank shall inform the Borrower without delay of the quotations received by the Bank. |
(d) | If any of the foregoing provisions becomes inconsistent with provisions adopted under the aegis of EMMI and EURIBOR ACI (or any successor to that function of EMMI and EURIBOR ACI as determined by the Bank) or of the ICE Benchmark Administration
Limited (or any successor to that function of the ICE Benchmark Administration Limited as determined by the Bank) in respect of LIBOR, the Bank may by notice to the Borrower amend the provision to bring it into line with such other provisions. |
Date:
| |
Loan Name (*): | AGCO R&D | ||||||||||||||||||
Signature
Date (*): | Contract FI number: | 31.593 | |||||||||||||||||
Currency & amount requested | Proposed
disbursement date: | ||||||||||||||||||
Currency | Amount | ||||||||||||||||||
I
N T E R E S T | Int. rate basis (Art. 3.01) | Reserved for the Bank | (contract currency) | ||||||||||||||||
Rate
(% or Spread) OR (please indicate only ONE) Maximum Rate (% or Maximum Spread) If the Borrower does not specify an interest rate or Spread here, the Borrower will be deemed to have agreed to the interest rate or Spread subsequently provided by the Bank in the Disbursement Notice, in accordance with Article 1.02C(c). | ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ | Total Credit Amount: | |||||||||||||||||
Frequency
(Art. 3.01) | Annual Semi-annual Quarterly | Disbursed to date: | |||||||||||||||||
Payment
Dates (Art. 5) | Balance for disbursement: | ||||||||||||||||||
Current
disbursement: | |||||||||||||||||||
C A P I T A L | Repayment frequency | Annual Semi-annual Quarterly | Balance after disbursement: | ||||||||||||||||
Repayment
methodology (Art. 4.01) | Equal instalments Constant annuities Single instalment | Disbursement deadline: | |||||||||||||||||
First
repayment date | Max. number of disbursements: | ||||||||||||||||||
Maturity
Date | Minimum Tranche size: | ||||||||||||||||||
Total
allocations to date: | |||||||||||||||||||
Conditions
precedent: | Yes / No | ||||||||||||||||||
To: | European Investment Bank |
From: | AGCO International Holdings B.V. |
Date: | <> |
Subject: |
(a) | no Prepayment Event has occurred and is continuing unremedied or unwaived; |
(b) | no Lien of the type prohibited under Article 7.02 has been created or is in existence; |
(c) | no event or circumstance which constitutes or would with the passage of time or giving of notice under the Finance
Contract constitute an Event of Default has occurred and is continuing unremedied or unwaived; |
(d) | no litigation, arbitration, administrative proceedings or investigation is current or to our knowledge is threatened or pending before any court, arbitral body or agency which has resulted or if adversely determined is reasonably likely to result in a Material Adverse Change, nor is there subsisting any unsatisfied judgement or award which has resulted or is reasonably likely to result in a Material Adverse Change; |
(e) | the
representations and warranties to be made or repeated by us under Article 6.07 are true in all material respects; |
(f) | no Material Adverse Change has occurred; [and] |
(g) | no event of the type prohibited under Article 6.02 or of which we are required to inform you under Article 6.05 has occurred; [and] |
(h) | [we
have obtained all necessary consents, authorisations, licences or approvals of governmental or public bodies or authorities required in connection with the Finance Contract.] / [no consents, authorisations, licenses or approvals of governmental or public bodies or authorities are required in connection with the Finance Contract.] |
To: | European Investment Bank |
From: | AGCO Corporation |
Date: | <> |
Subject: |
(a) | no Prepayment Event has occurred and is continuing unremedied or unwaived; |
(b) | no Lien of the type prohibited under Article 7.02 of the Finance Contract and under Article 6.01 of the Guarantee Agreement has been created or is in existence; |
(c) | there
has been no material change to any aspect of the Project or in respect of which we are obliged to report under Article 4.01 of the Guarantee Agreement, save as previously communicated by us; |
(d) | we have sufficient funds available to ensure the timely completion and implementation of the Project in accordance with Schedule A.1 of the Guarantee Agreement; |
(e) | no event or circumstance which constitutes or would with the passage of time or giving of notice under the Finance Contract
constitute an Event of Default has occurred and is continuing unremedied or unwaived; |
(f) | the representations and warranties to be made or repeated by us under Article 2.09 of the Guarantee Agreement are true in all material respects; |
(g) | no litigation, arbitration, administrative proceedings or investigation is current or to our knowledge is threatened or pending before any court, arbitral body or agency which has resulted or if adversely determined is reasonably likely to result in a Material Adverse Change, nor is there
subsisting against us or any of our Subsidiaries any unsatisfied judgement or award which has resulted or is reasonably likely to result in a Material Adverse Change; |
(h) | no Material Adverse Change has occurred; |
(i) |
(j) | no event of the type prohibited under Article 5.06 of the Guarantee Agreement or of which we are required to inform you under Article 5.09 of the Guarantee Agreement has occurred. |
FI
N° 31.593 (DE) |
Serapis N° 2011 0159 |
1. | The
Guarantor has stated that its group is undertaking an investment programme in Germany, Finland and France concerning the research and development related to agricultural tractors and engines in the period 2015-2018 (the “Project”), as more particularly described in the technical description set out in Schedule A.1 (the “Technical Description”). |
2. | The Guarantor’s shares are listed on the New York Stock Exchange. As of the date of this deed of guarantee and indemnity (the “Deed of Guarantee and Indemnity”), the Guarantor has issued around 90 million shares. |
3. | The
total cost of the Project, as estimated by the Bank, is approximately EUR 408,900,000 (four hundred and eight million and nine hundred thousand euros), to be partly financed by the Guarantor’s own funds and other external funds available to the group. |
4. | By a finance contract dated [] December 2014 (the “Finance Contract") between the Bank and AGCO International Holdings B.V., a private company with limited liability (besloten vennootschap met beperkte
aansprakelijkheid) incorporated under the laws of The Netherlands having its registered office at Horsterweg 66a, 5971NG Grubbenvorst, The Netherlands and registered with the trade register of the commercial register of the Chamber of Commerce in The Netherlands under number 12067080 (the “Borrower”), the Bank has agreed to establish in favour of the Borrower a credit in an aggregate amount of up to EUR 200,000,000 (two hundred million euros) or the equivalent thereof in USD (the “Credit”) to be used by the Borrower for the financing of the Project. |
5. | The obligations
of the Bank under the Finance Contract and the disbursement of funds thereunder are conditional upon, inter alia, the prior due execution and delivery by the Guarantor of this Deed of Guarantee and Indemnity. |
6. | The board of directors of the Guarantor is satisfied that the Guarantor is entering into this Deed of Guarantee and Indemnity for the purposes of its business and that its doing so benefits the Guarantor. |
7. | The
execution of this Deed of Guarantee and Indemnity is authorised by the board of directors and certain designated officers of the Guarantor. A copy of the secretary’s certificate from the Guarantor relating to such authorisation is set out in Annex I to this Deed of Guarantee and Indemnity. |
8. | The Guarantor and the Bank intend this Deed of Guarantee and Indemnity to take effect as a deed. |
9. | Accordingly,
the Bank and the Guarantor have agreed to enter into this Deed of Guarantee and Indemnity pursuant to which the Guarantor shall act as guarantor of the Borrower’s financial obligations under and in connection with the Finance Contract. |
1.02A | Capitalised terms used but not defined in this Deed of Guarantee
and Indemnity have the meanings given to them in the Finance Contract. |
1.02B | Any reference in this Deed of Guarantee and Indemnity to: |
(a) | “tax” shall be construed so as to include any tax, levy, impost, duty or other charge of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the same); and |
(b) | the “winding-up”, “dissolution” or “administration” of a company or corporation shall be construed so as to include any equivalent or analogous proceedings under the law of the jurisdiction in which such company or corporation is established or any jurisdiction in which such company or corporation carries on business including the seeking of liquidation, winding up, reorganisation, dissolution, administration, arrangement, adjustment, protection from creditors or relief of debtors. |
1.02C | Any
reference in Articles 2.09(l), 4.01(c), 4.02(c)(xi), 4.03, 5.01, 5.04, 5.05 and 5.07 of, and Schedule A.1 to, this Deed of Guarantee and Indemnity to: |
(a) | the “Group” shall be construed as, in addition to the Borrower, the Guarantor and the Guarantor’s Material Subsidiaries, to also include AGCO GmbH, AGCO SAS, Valtra Oy and AGCO Power Oy. |
1.03A | All
definitions and provisions which are incorporated herein by reference to any other document or agreement shall survive the expiry or termination of such document or agreement and any repayment or payment of moneys by the Borrower, any other obligor or other person thereunder. Any amendment, supplement, restatement, novation or replacement to or of any such definition or provision agreed between the parties (in accordance with the Finance Contract and this Deed of Guarantee and Indemnity) to the relevant document or agreement and approved by the Bank in writing shall apply for the purposes of this Deed of Guarantee and Indemnity. Subject thereto, all such definitions and provisions shall be construed by reference to the form of the relevant document or agreement current at the date of this Deed of Guarantee and Indemnity. |
1.03B | Subject
to Article 1.03A above, any reference herein to any document or agreement shall be construed as a reference to the same as from time to time amended, supplemented, restated, novated or replaced in accordance with its terms. |
2.01 | Payment |
(a)
| Immediate recourse guarantee |
2.02 | Waiver
of defences |
(a) | any time, waiver or consent granted to, or composition with, the Guarantor, the Borrower or other person; |
(b) | the
release of the Guarantor, the Borrower or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; |
(c) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, the Guarantor, the Borrower or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; |
(d) | any
incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Guarantor, the Borrower or any other person; |
(e) | subject to Article 7, any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of the Finance Contract, this Deed of Guarantee and Indemnity or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under the Finance Contract,
this Deed of Guarantee and Indemnity or other document or security; |
(f) | any unenforceability, illegality or invalidity of any obligation of any person under the Finance Contract, this Deed of Guarantee and Indemnity or any other document or security; or |
(g) | any insolvency or similar proceedings. |
2.03 | Indemnity |
2.04 | Continuing guarantee |
2.05 | Reinstatement |
2.06 | Deferral of the Guarantor’s rights |
2.08 | Application
of payments |
2.09 | Representations
and warranties of the Guarantor |
(a) | it is duly incorporated and validly existing as a corporation under the laws of the State of Delaware, United States of America, and it has power to carry on its business as it is now being conducted and to own its property and other assets; |
(b) | it
has the power to execute and deliver, and perform its obligations under, this Deed of Guarantee and Indemnity and all necessary corporate, shareholder and other action has been taken to authorise the execution, delivery and performance of the same by it; |
(c) | the board of directors of the Guarantor is satisfied that the Guarantor is entering into this Deed of Guarantee and Indemnity for the purposes of its business and that its doing so benefits the Guarantor; |
(d) | this Deed of
Guarantee and Indemnity constitutes its legally valid, binding and enforceable obligations subject to any qualifications set out in the legal opinions provided to the Bank pursuant to Article 1.04 of the Finance Contract; |
(e) | the execution and delivery of, the performance of its obligations under and compliance with the provisions of, this Deed of Guarantee and Indemnity do not and will not: |
(i) | contravene or conflict with any applicable
law, statute, rule or regulation, or any judgement, decree or permit to which it is subject; |
(ii) | contravene or conflict with any agreement or other instrument binding upon it which might reasonably be expected to have a material adverse effect on its ability to perform its obligations under this Deed of Guarantee and Indemnity; and |
(iii) | contravene or conflict with any provision of its constitutional documents; |
(f) | the
latest available consolidated audited financial statements of the Guarantor have been prepared in accordance with Applicable Accounting Standards and have been approved by its auditors as representing a true and fair view of the results of its operations for that year and accurately disclose or reserve, to the extent required in accordance with Applicable Accounting Standards, against all the liabilities (actual or contingent) of the Guarantor; |
(g) | there has been no Material Adverse Change since 18 November 2014; |
(h) | no event
or circumstance which constitutes an event of default under Article 10.01 of the Finance Contract has occurred and is continuing unremedied or unwaived; |
(i) | no litigation, arbitration, administrative proceedings or investigation is current or to its knowledge is threatened or pending before any court, arbitral body or agency which has resulted or if adversely determined is reasonably likely to result in a Material Adverse Change, nor is there subsisting against it or any of its Subsidiaries any unsatisfied judgement or award which has resulted or is reasonably likely
to result in a Material Adverse Change; |
(j) | it has obtained all necessary consents, authorisations, licences or approvals of governmental or public bodies or authorities in connection with this Deed of Guarantee and Indemnity, and in order to lawfully comply with its obligations hereunder, and all such consents, authorisations, licences or approvals are in full force and effect and admissible in evidence; |
(k) | the Borrower, the Guarantor and any Subsidiary are in compliance with Article 6.01 of this Deed of Guarantee and
Indemnity; |
(l) | it is in compliance with Article 5.05(e) of this Deed of Guarantee and Indemnity and to the best of its knowledge and belief (having made due and careful enquiry) no material Environmental Claim has been commenced or is threatened against it or any member of the Group in relation to the Project; |
(m) | it will not be required to make any deduction or withholding from any payment it may make under this Deed of Guarantee and Indemnity; |
(n) | under
the laws of its jurisdiction of incorporation, the claims of the Bank against it under this Deed of Guarantee and Indemnity will rank at least pari passu with the claims of all its other unsecured creditors save those whose claims are preferred by reason of any bankruptcy, insolvency, liquidation or other similar laws of general application; |
(o) | under the laws of its jurisdiction of incorporation, it is not necessary that this Deed of Guarantee and Indemnity be filed, recorded or enrolled with any court or other |
(p) | it has not taken any corporate action nor have any other steps been taken or legal proceedings been started or (to the best of its knowledge and belief) threatened against it for its winding-up, dissolution, administration or reorganisation or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of it or of a material part of its assets or revenues; |
(q) | in
any proceedings taken in its jurisdiction of incorporation in relation to this Deed of Guarantee and Indemnity, the choice of English law as the governing law of this Deed of Guarantee and Indemnity, the submission to the courts of England and any judgment obtained in England will be recognised and enforced, in each case subject to any qualifications set out in the legal opinions provided to the Bank pursuant to Article 1.04 of the Finance Contract; and |
(r) | it has obtained all consents, authorisations, licences or approvals of governmental or public bodies or authorities in connection with its business activities, except where the failure to have such consents,
authorisations, licences or approvals could not reasonably be expected to result in a Material Adverse Change, and all such consents, authorisations, licences or approvals are in full force and effect and admissible in evidence. |
2.10 | Covenants of the Guarantor |
(a) | the Guarantor shall: |
(i) | not seek to enforce any obligation owed to the Guarantor by the Borrower which arises by virtue of the discharge by the Guarantor of its obligations hereunder; |
(ii) | pay
to the Bank all distributions in liquidation or otherwise received by it from or for the account of the Borrower in respect of any obligation referred to in sub-paragraph (i) above; the Bank shall apply such sums to reduce the outstand-ing Guaranteed Sums in such sequence as it may decide; |
(iii) | not exercise any claim for payment against the Borrower or right of subrogation in either case as a result of any payment hereunder to the rights of the Bank under the Finance Contract or any security granted in connection therewith; |
(iv) | not
bring legal or other proceedings for an order requiring the Borrower to make any payment or perform any obligation in respect of which the Guarantor has given a guarantee, undertaking or indemnity under this Deed of Guarantee and Indemnity; and |
(v) | not claim or prove as a creditor of the Borrower or any other person or its estate in competition with the Bank. |
(b) | the
Guarantor shall hold any monies, rights or security held or received by the Guarantor as a result of the exercise of any such rights of recourse on behalf of, and to the order of, the Bank for application in accordance with the terms of this Deed of Guarantee and Indemnity as if such monies, rights or security were held or received by the Bank under this Deed of Guarantee and Indemnity; |
(c) | the Guarantor shall obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws and regulations of its jurisdiction of incorporation to enable it lawfully to enter into and perform its obligations
under this Deed of Guarantee and Indemnity and to ensure the legality, validity, enforceability and admissibility in evidence in its jurisdiction of incorporation and in England of this Deed of Guarantee and Indemnity; |
(d) | the Guarantor shall not take any action which would cause any of the representations made in Article 2.09 above to be untrue in any material respect at any time during the continuation of this Deed of Guarantee and Indemnity; |
(e) | the
Guarantor shall notify the Bank of the occurrence of any event which results in or may reasonably be expected to result in any of the representations made in Article 2.09 above being untrue when made or when deemed to be repeated; and |
(f) | the Guarantor shall not change its “centre of main interests” (as that term is used in Article 3(1) of the Council of the European Union Regulation No 1346/2000 on Insolvency Proceedings) from its jurisdiction of incorporation. |
2.11 | Acknowledgement |
3.01 | Certificate conclusive |
4.01 | Information concerning the Project |
(i) | the information in content and in form, and at the times, specified in Schedule A.2 or otherwise as agreed from time to time by the parties to this Deed of Guarantee and Indemnity; and |
(ii) | any such information or further document concerning the financing, procurement, implementation, operation and environmental matters of or for the Project as the Bank may reasonably require within a reasonable time; |
(b) | submit for the approval of the Bank without delay any material change to the Project, also taking into account the disclosures made to the Bank in connection with the Project prior to the signing of this Deed of Guarantee and Indemnity, in respect of, inter alia,
costs, design, plans, timetable, or the expenditure programme or financing plan for the Project; |
(c) | promptly inform the Bank of: |
(i) | any action or protest initiated or any objection raised by any third party or any genuine complaint received by the Guarantor or any member of the Group or any material Environmental Claim that is to its knowledge commenced, pending or threatened against it or any member of the Group with regard to environmental or other matters affecting the
Project; |
(ii) | any fact or event known to the Guarantor, which may substantially prejudice or affect the conditions of execution or operation of the Project; |
(iii) | a genuine allegation, complaint or information with regard to a Criminal Offence related to the Project; |
(iv) | any non-compliance by it or
any member of the Group with any Environmental Law applicable to the Project; |
(v) | any non-compliance by it or any member of the Group with any required Environmental Approval applicable to the Project in material respect; and |
(vi) | any suspension, revocation or modification of any Environmental Approval, |
(a) | fauna and flora; |
(b) | soil, water, air, climate and the landscape; and |
(c) | cultural heritage and the built environment, |
(a) | EU
law, standards and principles; |
(b) | the national laws and regulations of Germany, Finland and France (as applicable); and |
(c) | applicable international treaties, |
4.02 | Information
concerning the Guarantor |
(i) | in the event that the Borrower has not already done so in accordance with Article 8.01 (Information concerning the Borrower) of the Finance Contract, each year (within 1 (one) month after their publication) the Borrower’s unaudited annual report, balance sheet, profit and loss account certified by the Borrower’s
directors and, from time to time, such further information on the Borrower’s general financial situation as the Bank may reasonably require; |
(ii) | as soon as available and in any event within 45 (forty-five) days (plus any extension period obtained by the Guarantor from the U.S. Securities and Exchange Commission for the filing of an equivalent periodic report) after the end of each of the first 3 (three) Fiscal Quarters of each Fiscal Year of the Guarantor, consolidated balance sheets of the Guarantor and its Subsidiaries, as of the end of such Fiscal Quarter and consolidated statements of income and cash flows of the Guarantor and its Subsidiaries,
for the portion of the Fiscal Year then ended, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding Fiscal Year, all in reasonable detail and duly certified (except as to the omission of footnotes and subject to year-end audit adjustments) by an authorized financial officer of the Guarantor as having been prepared in accordance with Applicable Accounting Standards; |
(iii) | together with the financial statements delivered pursuant to (ii) above, a Compliance Certificate, in form and substance satisfactory to the Bank, signed by authorised representatives of the Borrower and the Guarantor confirming compliance with the financial covenants pursuant to Article 6.06A of the Finance Contract
and Article 5.14 hereof (including evidence of such compliance and related calculations) and including necessary information for determining the applicable Margin; |
(iv) | as soon as available and in any event within 90 (ninety) days (plus any extension period obtained by the Guarantor from the U.S. Securities and Exchange Commission for the filing of an equivalent periodic report) after the end of each Fiscal Year of the Guarantor, a copy of the annual audit report for such year for the Guarantor and its Subsidiaries, including therein consolidated balance sheets and consolidated statements of income and cash flows of the Guarantor and its Subsidiaries
for such Fiscal Year, in each case reported on by KPMG LLC or other independent public accountants of recognized international standing (without a “going concern” or like qualification or exception) to the effect that such consolidated financial statements present fairly in all material respects the financial |
(v) | together
with the financial statements delivered pursuant to (iv) above, a Compliance Certificate, in form and substance satisfactory to the Bank, signed by authorised representatives of the Borrower and the Guarantor confirming compliance with the financial covenants pursuant to Article 6.06A of the Finance Contract and Article 5.14 hereof (including evidence of such compliance and related calculations) and including necessary information for determining the applicable Margin; and |
(vi) | from time to time, such further information on the Guarantor’s general financial situation as the Bank may reasonably require; |
(b) | ensure
that its accounting records fully reflect the operations relating to the financing, execution and operation of the Project; and |
(c) | inform the Bank immediately of: |
(i) | any material alteration to the constitutional documents of the Borrower after the date of the Finance Contract and of the Guarantor after the date hereof; |
(ii) | any
fact which obliges the Borrower, the Guarantor or any other member of the Group to prepay any financial indebtedness in the amount in excess of USD 50,000,000 in the aggregate or any EU funding, except when such prepayment is (A) made by the Borrower, the Guarantor or any other member of the Group on a voluntary basis or when early redemption at the discretion of the Borrower, the Guarantor or any other member of the Group, as issuers, was originally foreseen in the documentation of the relevant capital markets instrument or (B) the result of the sale or other disposition of assets which secure such indebtedness; |
(iii) | any event or decision that constitutes or may result in the events described in Article 4.03A of the Finance Contract; |
(iv) | any
intention on its part, or that of the Borrower or any Subsidiary, to create, incur, assume or suffer to exist any Lien on or with respect to any of its properties of any character, or those of the Borrower or any Subsidiary, in favour of a third party, save for Permitted Liens; |
(v) | any intention on its part, or that of the Borrower or any Subsidiary, to relinquish ownership of any material component of the Project, save as permitted pursuant to this Deed of Guarantee and Indemnity; |
(vi) | any fact or event that is reasonably
likely to prevent the substantial fulfilment of any obligation of the Guarantor under this Deed of Guarantee and Indemnity; |
(vii) | any event listed in Article 10.01 of the Finance Contract having occurred or being imminent; |
(viii) | any litigation, arbitration, administrative proceedings or investigation, which is current, threatened or pending, which might reasonably be expected to result in a Material Adverse Change; |
(ix) | any
event or decision that constitutes or may result in an event described in Article 5.06, other than those described in Article 5.06(b); |
(x) | any Merger Event; and |
(xi) | any measure taken by the Guarantor or any other member of the Group pursuant to Article 5.05(f). |
4.03 | Visits
by the Bank |
(a) | to visit the sites, installations and works comprising the Project; |
(b) | to
interview representatives of the Borrower, the Guarantor and each member of the Group, and not obstruct contacts with any other person involved in or affected by the Project; and |
(c) | to review the Borrower’s, the Guarantor’s and each member’s of the Group books and records in relation to the execution of the Project and be able to take copies of related documents to the extent permitted by law. |
5.02 | Completion
of the Project |
5.03 | Increased cost of the Project |
5.04 | Procurement procedure |
5.05 | Continuing Project undertakings |
(a) | Maintenance:
maintain, repair, overhaul and renew all property forming part of the Project as required to keep it in good working order, ordinary wear and tear excepted; |
(b) | Project assets: unless the Bank has given its prior consent in writing, retain title to and possession of all or substantially all the assets comprising the Project or, as appropriate, replace and renew such assets and maintain the Project in substantially continuous operation in accordance with its original purpose; provided that the Bank may withhold its consent only where the proposed action would prejudice the Bank's interests as lender to the Borrower or would render the Project ineligible for financing by the Bank under its Statute or under Article 309 of the
Treaty on the Functioning of the European Union; |
(c) | Insurance: insure all works and property forming part of the Project with first class insurance companies in accordance with the most comprehensive relevant industry practice; |
(d) | Rights and Permits: maintain in force all rights of way or use and all permits necessary for the execution and operation of the Project; |
(e) | Environment:
|
(i) | implement and operate the Project in compliance with Environmental Law; |
(ii) | obtain and maintain Environmental Approvals for the Project; and |
(iii) | comply with any such Environmental Approvals in material respect, |
(f) | Integrity: take, within a reasonable
timeframe, appropriate measures in respect of any member of its management bodies who has been convicted by a final and irrevocable court ruling of a Criminal Offence perpetrated in the course of the exercise of his/her professional duties, in order to ensure that such member is excluded from any activity in relation to the Loan or the Project; and |
(g) | State aid: to the extent the financing of the Project includes state subsidies and/or grants, ensure that the provision of such funds is provided in compliance with all relevant European Union and national law and is duly authorised by the relevant authorities in case a notification is required pursuant to applicable law. |
5.06 | Disposal
of assets |
(a) | Except as provided below, the Guarantor shall not, and shall procure that neither the Borrower nor any Subsidiary will, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily dispose of any part of its assets. |
(b) | Paragraph (a) above does not apply to: |
(i) | sales
of Inventory in the ordinary course of its business; |
(ii) | sale or disposition of obsolete, worn-out or surplus equipment in the ordinary course of business; |
(iii) | so long as no Event of Default has occurred and is then continuing, the sale of fixed assets in connection with Tax
Incentive Transactions or New Market Tax Credit Transactions; |
(iv) | transfers of assets among the Guarantor and its Subsidiaries in compliance with Article 6.06B of the Finance Contract and Article 5.15 of this Deed of Guarantee and Indemnity; |
(v) | sales of Receivables in connection with factoring arrangements in the ordinary course of business; and |
(vi) | so
long as no Event of Default has occurred and is then continuing, the sale of any other assets by the Guarantor or any Subsidiary in an aggregate amount during any Fiscal Year of the Guarantor not exceeding 10% of the Consolidated Net Tangible Assets of the Guarantor as of the last day of such Fiscal Year and (ii) in an aggregate amount during the term of this Deed of Guarantee and Indemnity not exceeding 20% of the Consolidated Net Tangible Assets of the Guarantor at any time, |
5.07 | Compliance with laws |
5.08 | Change
in business |
5.09 | Mergers |
(a) | Net
Leverage Ratio. The Guarantor shall not allow, as of the end of each Fiscal Quarter, the Net Leverage Ratio to exceed 3.00 to 1.00. |
(b) | Interest Coverage Ratio. The Guarantor shall maintain, as of the end of each Fiscal Quarter, an Interest Coverage Ratio of not less than 3.00 to 1.00. |
(a) | Indebtedness under the AGCO Credit Agreement; |
(b) | unsecured Indebtedness of the Guarantor under the 2036 Senior Subordinated Notes Documents and Senior Debt Documents, in each case, as of the date of this Deed of Guarantee and Indemnity; |
(c) | unsecured
Indebtedness under the European Term Loan Credit Agreement as of the date of this Deed of Guarantee and Indemnity; |
(d) | intercompany Indebtedness among any of the Guarantor and the Subsidiaries; provided, (x) to the extent such Indebtedness is incurred by or an obligation of the Guarantor, such Indebtedness shall be unsecured and, upon the occurrence of an Event of Default, subordinated to the obligations of the Guarantor under this Deed of Guarantee and Indemnity and (y) to the extent such Indebtedness is incurred by or an obligation of the Borrower, such Indebtedness shall be unsecured; |
(e) | Indebtedness
incurred in connection with a New Market Tax Credit Transaction in an aggregate amount not to exceed USD 20,000,000; |
(f) | Indebtedness under any Capitalized Leases in existence as of the date of this Deed of Guarantee and Indemnity; and |
(g) | Indebtedness incurred after the date of this Deed of Guarantee and Indemnity so long as (i) no Event of Default exists or would result therefrom, (ii) the Borrower and/or the Guarantor (as applicable) determines after giving effect to the incurrence of such Indebtedness that it is in pro
forma compliance with the financial covenants set forth in Article 6.06A of the Finance Contract and/or Article 5.14 of this Deed of Guarantee and Indemnity (as applicable), and (iii) such Indebtedness shall be unsecured except to the extent it is secured by a Permitted Lien. In the event any Indebtedness subject to this clause (g) is a revolving line of credit, the pro forma compliance shall be calculated based upon the maximum facility amount of such revolving credit facility, assuming it is fully drawn, in which case such pro forma compliance shall be satisfied for all future borrowings thereunder up to the amount of such maximum facility amount. |
(a) | the amount of dividends or other distributions with respect to any of its Equity Interests that may be paid by such Subsidiary to the Guarantor or another Subsidiary of the Guarantor, |
(b) | the amount of loans that may be made by such Subsidiary to the Guarantor or another Subsidiary of the Guarantor, |
(c)
| the amount of payments by such Subsidiary on Indebtedness owing by such Subsidiary of the Guarantor to the Guarantor or another Subsidiary, or |
(d) | the ability of such Subsidiary to transfer any of its properties or assets to the Guarantor or any other Subsidiary of the Guarantor, |
(i)
| restrictions imposed under an agreement for the sale of all of the Equity Interests in 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, |
(ii) | restrictions set forth in the AGCO Credit Agreement, the 2036 Senior Subordinated Notes Documents and the Senior Debt Documents as of the effective date of such documents and any similar restrictions set forth in documents governing Indebtedness permitted under Article 6.06D of the Finance Contract and Article 5.17 of this Deed
of Guarantee and Indemnity, |
(iii) | restrictions imposed by applicable law, the Finance Contract or this Deed of Guarantee and Indemnity, |
(iv) | restrictions in any agreement with another Person relating to a joint venture conducted through a Subsidiary of the Guarantor in which such Person is a minority stockholder requiring the consent of such Person to the payment of dividends, |
(v)
| with respect to restrictions of the type described in clause (d) above, restrictions under agreements governing Indebtedness secured by a Lien not otherwise prohibited hereunder that limit the right of the debtor to dispose of the assets securing such Indebtedness, |
(vi) | customary provisions contained in leases, licenses and other similar agreements entered into in the ordinary course of business that impose restrictions of the type described in clause (d) above on the property subject to such lease, |
(vii) | customary
anti-assignment provisions contained in agreements entered into in the ordinary course of business, |
(viii) | customary subordination of subrogation, contribution and similar claims contained in guaranties permitted under AGCO Credit Agreement and hereunder, |
(ix) | restrictions on the transfer, lease, or license of any property or asset of the Guarantor or any Subsidiary in effect on the date of this Deed of Guarantee and Indemnity that were entered into in the ordinary course of business, and |
(x)
| encumbrances or restrictions existing with respect to any Person or the property or assets of such Person acquired by the Guarantor or any Subsidiary of the Guarantor, provided that such encumbrances and restrictions were in existence immediately prior to such acquisition (and not created in contemplation thereof) and are not applicable to any Person or the property or assets of any Person other than such acquired Person or the property or assets of such acquired Person. |
(a) | The Guarantor shall not, and shall ensure that neither the Borrower nor any Subsidiary will, create, incur, assume or suffer to exist any Lien on or with respect to any of its properties of any character, whether now owned or hereafter acquired, except Permitted Liens |
(b) | The
Guarantor shall, and shall ensure that the Borrower and any Subsidiary will, request the prior written consent of the Bank to create, incur, assume or suffer to exist any Lien other than a Permitted Lien on or with respect to any of its properties |
(a) | not included in the Finance Contract or this Deed of Guarantee and Indemnity, |
(b) | is stricter than the relevant provisions of the Finance Contract
or this Deed of Guarantee and Indemnity, or |
(c) | is otherwise more favourable for third party creditors than the relevant provisions of the Finance Contract or this Deed of Guarantee and Indemnity, |
(i) | any
financial indebtedness incurred (x) from banks (other than multilateral development banks/IFIs) or (y) in form of bonds issued by any member of the Group, in each case in non-OECD countries by any member of the Group located and incorporated in a non-OECD country; and |
(ii) | upstream guarantees by Massey Ferguson Corp. and The GSI Group, LLC under the AGCO Credit Agreement in the maximum aggregate amount of up to USD 1,155,000,000. |
(a) | the amendment or variation does not increase the amounts payable by the Guarantor under this Deed of Guarantee and Indemnity or change the conditions under which such amounts are payable in any material respect; or |
(b) | the amendment or variation consists of the extension of time for payment of a Guaranteed Sum of up to 3 (three)
months; or |
(c) | the Guarantor has given its prior written consent to the amendment or variation (which the Borrower has previously approved), provided that such consent may not be unreasonably refused or unreasonably delayed, |
8.01 | The Guarantor shall bear its own costs of execution and implementation of this Deed of Guarantee and Indemnity and, without prejudice to the terms of Article 2, shall indemnify, reimburse and hold harmless the Bank against all: |
(a) | taxes and fiscal charges, legal costs and other expenses incurred by the Bank in the execution, implementation, amendment or enforcement of this Deed of Guarantee and Indemnity; and |
(b) | losses,
charges and expenses to which the Bank may be subject or which it may properly incur under or in connection with the recovery from any person of sums expressed due under, pursuant to or in connection with this Deed of Guarantee and Indemnity. |
8.02 | The Guarantor shall make payments under this Deed of Guarantee and Indemnity gross without withholding or deduction on account of tax or fiscal charges, provided that, if the Guarantor is obliged by law to make any such withholding or deduction, the Guarantor shall gross up the payment to the Bank so that the net sum received by the Bank is equal to the sum demanded. |
10.01 | Law |
10.02 | Jurisdiction |
(a) | The English courts have exclusive jurisdiction to settle any dispute in connection with this Deed of Guarantee and Indemnity. |
(b) | The
parties agree that English courts are the most appropriate and convenient courts to settle any such dispute in connection with this Deed of Guarantee and Indemnity. |
(c) | References in this Article 10.02 to a dispute in connection with this Deed of Guarantee and Indemnity include any dispute as to the existence, validity or termination of this Deed of Guarantee and Indemnity. |
10.03 | Forum conveniens and enforcement abroad |
(a) | waives any objection it may have to the English courts on grounds of inconvenient forum or otherwise as regards proceedings in connection with this Deed of Guarantee and Indemnity; and |
(b) | agrees that a judgment or order of an English court in connection with this Deed of Guarantee and Indemnity is conclusive and binding on it and may be enforced against it in the courts of any other jurisdiction. |
10.04 | Waiver
of immunity |
(a) | agrees not to claim any immunity from proceedings brought by the Bank against the Guarantor in relation to this Deed of Guarantee and Indemnity and to ensure that no such claim is made on its behalf; |
(b) | consents generally to the giving of any relief or the issue of any process in connection with the proceedings as referred
to in paragraph (a) above; and |
(c) | waives all rights of immunity in respect of it or its assets. |
10.05 | Agent for service of process |
(a) | The Guarantor hereby irrevocably appoints AGCO Ltd., Abbey Park, Stoneleigh,
Kenilworth, CV8 2TQ, UK, as its agent for service of process under this Deed of Guarantee and Indemnity for service of process in any proceedings before the English courts in connection with this Deed of Guarantee and Indemnity. |
(b) | If any person appointed as process agent under paragraph (a) above is unable for any reason to so act or if such appointment is terminated for any reason, the Guarantor must immediately, and in any event within 15 (fifteen) Business Days of the event taking place, appoint another agent on terms acceptable to the Bank. Failing this, the Bank may appoint another process agent for this purpose. |
(c) | To
the maximum extent permitted by law, the Guarantor agrees that failure by a process agent to notify it of any process will not invalidate the relevant proceedings. |
(d) | This Article 10.05 does not affect any other method of service allowed by law. |
11.01 | Invalidity |
(a) | the legality, validity or enforceability in that jurisdiction of any other term of this Deed of Guarantee and Indemnity or the effectiveness in any other respect of the remainder of this Deed of Guarantee and Indemnity in that jurisdiction; or |
(b) | the
legality, validity or enforceability in other jurisdictions of that or any other term of this Deed of Guarantee and Indemnity or the effectiveness of this Deed of Guarantee and Indemnity under such other jurisdictions. |
11.02 | Potentially avoided payments |
11.03 | Currency conversion |
11.04 | Currency indemnity |
11.05 | Remedies and waivers |
11.06 | Rights
cumulative |
11.08 | Notices |
11.09 | Counterparts |
11.10 | Entire agreement |
(a) | “Finance Documents” means this Deed of Guarantee and Indemnity, and the Finance Contract; and |
(b) | “Parties” means the Borrower, the Guarantor and the Bank. |
11.11 | Recitals,
Schedules and Annexes |
Schedule A.1 | Technical Description |
Schedule A.2 | Reporting |
Annex
I | Evidence of the Authorisation of the Guarantor to Execute the Deed of Guarantee and Indemnity and Evidence of the Due Authorisation of the Signatories of the Guarantor |
Executed and delivered as a deed for EUROPEAN INVESTMENT BANK acting by its authorised signatories: | Executed
and delivered as a deed for AGCO CORPORATION acting by its authorised signatories: | ||
A. H. Beck | D. K. Williams | ||
(i) Marktoberdorf, Germany | ||
Project
name | Project description | Deliverables |
X217 | New emission technology in order to meet COMIIIB (Tier 4 interim) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 4 interim requirements |
X315 | New emission technology in order to meet COMIV (Tier 4 final) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 4 final requirements |
New
driver place, new hydraulic concept, new features | Increase the overall efficiency of the machine | |
Capability for bigger tyres | Increase scope of application | |
X320 | New emission technology in order to meet COMV (Tier 5) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 5 requirements |
New engine with increased horse power | Increase
engine efficiency (fuel) | |
CEA Guide implementation | Increase efficiency of material usage (seeds, fertilizer, pesticide, fuel, etc.) | |
X515 | New emission technology in order to meet COMIV (Tier 4 final) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 4 final requirements |
X520 | New emission technology in order to meet COMV (Tier 5) requirements | Reduce nitrogen oxide
and particulate matter to meet Tier 5 requirements |
X719 | New emission technology in order to meet COMV (Tier 5) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 5 requirements |
New engine and implementation of new CVT generation (TA190) | Increase fuel (energy) efficiency | |
Improved/extended automation of driver place | Increase operator respectively overall machine
efficiency | |
CEA Guide implementation | Increase efficiency of material usage (seeds, fertilizer, pesticide, fuel, etc.) | |
Tyre
pressure control system | Increase fuel efficiency (on- & off-road) | |
X820 | New emission technology in order to meet COMV (Tier 5) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 5 requirements |
CEA Guide implementation | Increase efficiency of material usage (seeds, fertilizer, pesticide, fuel, etc.) | |
X918 | New emission technology in order to meet COMV (Tier 5) requirements | Reduce
nitrogen oxide and particulate matter to meet Tier 5 requirements |
New engine and implementation of new CVT generation (TA300) | Increase fuel (energy) efficiency | |
New hydraulic concept | Increase fuel efficiency | |
X1015 | New model range in the range 400 - 500 HP, mainly used for heavy pulling but also maintaining the Fendt-specific all-round capability like for transport etc | Provide efficient
Fendt Technology in a new model range |
New emission technology in order to meet COMIV (Tier 4 final) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 4 final requirements | |
X1019 | New emission technology in order to meet COMV (Tier 5) requirements | Reduce nitrogen oxide and particulate matter to meet Tier 5 requirements |
SPFH | New emission technology in order to meet COMV (Tier 5) requirements | Reduce
nitrogen oxide and particulate matter to meet Tier 5 requirements |
New Model Katana 45 | Provide efficient Fendt Technology in a new model range | |
New Technology NIR-Sensor | Mixture measurement for efficiency in harvesting and further processing | |
TA190 | Module Development of new CVT generation | Increase fuel (energy) efficiency |
TA300 | Module
Development of new CVT generation | Increase fuel (energy) efficiency |
TA - MT 700 | Module Development of new CVT generation for track tractors | Provide fuel efficient technology to track tractors |
TA - MT 800 | Module Development of new CVT generation for track tractors | Provide fuel efficient technology to track tractors |
Section Control | Module Development for automatic switching of sections
of an implement based on GPS position and desired degree of overlap | Increase efficiency of material usage (seeds, fertilizer, pesticide, fuel, etc.) |
CEA Guide | Module Development of automatic guidance system | Increase efficiency of material usage (seeds, fertilizer, pesticide, fuel, etc.) |
Research projects - Robotics | MARS SMART-E | Increase efficiency of material usage (fertilizer, pesticide, seeds, fuel, etc.) and Resources |
(ii) Beauvais, France | ||
Project name | Project description | Deliverables |
Reliability | All
engineering efforts to cover current product maintenance and reliability improvement. New features requested by product management during serial production | |
SRT1 4 cylinder T4 final | Due to emission legislation Tier 4 final has to be implemented onto the big 4cyl tractors MF/Challenger/Iseki up to 130kW New CVT installation bringing additional lift capacity and new hydraulic installation | New 6700 range T4F compliant New hydraulic installation with new features. New CVT with new features |
ERT 4 cylinders T4 final | Due to emission legislation
Tier 4 final has to be implemented onto the small 4cyl tractors MF/Iseki up to 95kW | New 5700 range 4cyl T4F compliant New hydraulic installation with new features |
ERT1 4 cylinders T4 final | Due to emission legislation Tier 4 final has to be implemented onto the small 4cyl tractors MF up to 80kW. New hydraulic installation. HP increase | New 5700 range 4cyl T4F compliant New hydraulic installation with new features. New front axle suspension. Max horse power increase |
SRT2 6 cylinders T5 | Due
to emission legislation Tier 5 has to be implemented onto the 6cyl tractors. In addition the new range has to be compliant with the mother regulation (incl. ABS compatibility) New range of transmissions and engines. New cab and hood design | |
(iii) Suolahti, Finland | ||
Project name | Project
description | Deliverables |
Tier 4 Final | Engine series (56<P<365kW) designed to meet Tier IV Final emission legislation | Fulfil Tier IV final emission requirement (engine development, testing, validation and application work) |
AP 3000 | New base engine series designed to meet Tier V Final emission legislation (56<P<250 kW) | As an integration with EAT system AP300 series is designed to meet Tier V requirement, low cost, Low total cost of ownership, superior performance, good durability |
Big
bore | New base engine series designed to meet Tier V Final emission legislation (184<P<405kW) | As an integration with EAT system BB upgrade series is designed to meet Tier V requirement, superior total cost of ownership, superior performance, superior durability |
Engine After Treatment (including StageV) | New after treatment system designed for following engine platforms: current Tier 4 Final, New AP3000, New Big Bore upgrade and Eco platform | Fulfil Tier V final emission requirement together with base engine technology, to develop simple and reliable Diesel Particulate Filter system |
(iv) Linnavuori, Finland | ||
Project name | Project description | Deliverables |
Tier
IV final emissions, Cab Phase 11 (VT11) | Tier 4 Final 6-cyl (66 and 74 Engines) | To meet Tier IV final requirement |
150 - 235 HP | SOP Q4 2014 | |
New Cab, New design of front end, Product range shift up to T234 | ||
New hydraulic options, LS with mechanical spool valves | ||
3 speed PTO, New transmission control interface | ||
Tier
IV final emissions, Cab Phase 11 (VN12a) | Tier4 Final 3- and 4-cyl (33, 44 and 49 Engines) | To meet Tier IV final requirement |
90 - 180 HP | SOP Q3 2015 (VN12a 4 cyl) | |
New outlook, design aligned with VT11 | SOP Q2 2016 (VN12b 3 cyl) | |
3 PS replaced with 5 PS | ||
3
cylinder common pilot project (VN12b) | Introduce CM08 Phase 2 cabin version in Small N-series (carry over from VN12a) | Gradually replace all N3 models during 2015-2016 |
Introduce optional 3-speed rear PTO (carry over from VN12a and VT11) | VN12b will be AGCO pilot project for common front-end design. It will be done jointly with MF Z19A project | |
Robotized creeper and GSPTO (carry over from VN12a and VT11) | ||
Change
EGR technology to SCR Only | ||
Next generation A, (VA13) | Global AGCO project will deliver also Valtra models as a new A-series | SOP Q4 2016 |
Replacement for existing A3-series | ||
70 - 130 HP | ||
Valtra brand specific cab | ||
New design of
front end | ||
N, T and S range (VT16 and VS16, CEA) | Modernization of user interface | SOP Q1 / 2017 |
Meet EU Tractor mother regulations | ||
AGCO common electric architecture | ||
AGCO global S-platform (volume) | Stage 5 4-cyl | SOP Q3 / 2019 |
AGCO
global M-platform (volume) | Stage 5 6-cyl | SOP Q1 / 2019 |
Research and advance | Betra | |
engineering | ||
Reliability | Engineering
efforts to cover current product maintenance and reliability improvement | |
1. | Dispatch of information: designation of the responsible person |
Financial/Technical Contact | |
Company | AGCO Corporation |
Contact
person | Iain WATSON |
Title | Mr. |
Function / Department financial and technical | Assistant Treasurer EAME/APAC |
Address | Abbey Park, Stoneleigh, Kenilworth CV8 2TQ, UK |
Phone | +44 2476852549 |
Fax | +44 2476852640 |
Email | |
2. | Miscellaneous |
3. | Information
on the Project’s implementation |
Document / information | Deadline | Frequency of reporting |
Project
Progress Report A brief update on the Technical Description, explaining the reasons for significant changes vs. initial scope; Update on the date of completion of each of the main Project’s components, explaining reasons for any possible delay; Update on the cost of the Project, explaining reasons for any possible cost increases vs. initial budgeted cost; A description of any major issue with impact on the environment; A short update about the relevant demand and technology trends in the agricultural machinery industry and specifically for the promoter; Any significant issue that has occurred and any significant risk that may affect the Project’s operation; Any legal
action concerning the Project that may be on-going. | March 31st, 2017 | Intermediate report |
4. | Information on the end of works |
Document / information | Date of delivery to the Bank |
Project Completion Report, including: A brief description of the technical characteristics of the Project as completed, explaining the reasons for any significant change; The date of completion of each of the main Project’s components, explaining reasons for any possible delay; The
final cost of the Project, explaining reasons for any possible cost increases vs. initial budgeted cost; The number of new jobs created by the Project: both jobs during implementation and permanent new jobs created; A description of any major issue with impact on the environment; A short update about the relevant demand and technology trends in the agricultural machinery industry and specifically for the promoter; The following information for the update of the Bank’s monitoring indicators: An estimate of the number of FTEs employed by the promoter during the implementation of the R&D project (2015-2018); An estimate of the number of new jobs created by the promoter (if any) in R&D and operations in
Europe over the Project period; The number of patent applications and patents granted during the period 2015-2018 in relation to the Project or at corporate level (globally); The number of collaborations with universities and research institutes (Europe); The promoter’s WACC1 (average cost of capital - before taxes) and ROIC2, as a proxy for minimum return on investment of RDI at portfolio level, in the period 2015-2018; Any significant issue that has occurred and any significant risk that may affect the Project’s operation; Any legal action concerning the Project that
may be on-going. | March 31st, 2019 |
Language of reports | English |
To: | European Investment Bank |
From: | AGCO Corporation / AGCO International Holdings B.V. |
Date: | <> |
Subject: |
(i) | [insert details and computations of covenants to be certified]; |
(ii) | [include other relevant evidence as per Article 8.01(a) of the Finance Contract
and Article 4.02(a) of the Guarantee Agreement]. |
| This ‘10-K’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed on: | 2/27/15 | |||
| For Period end: | 12/31/14 | SD | ||
| List all Filings | ||||
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/25/22 AGCO Corp. 10-K 12/31/21 151:24M 3/01/21 AGCO Corp. 10-K 12/31/20 142:23M |