SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1998
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____ to _____.
Commission File Number: 0-25360
AG-CHEM EQUIPMENT CO., INC.
(Exact Name of Registrant as Specified in Its Charter)
Minnesota 41-0872842
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
5720 Smetana Drive
Minnetonka, Minnesota 55343-9688
(Address of Principal Executive Offices)
(612)933-9006
(Registrant's Telephone Number, Including Area Code)
Indicate by check mark whether the registrant: (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Exchange Act during
the past 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements of
the past 90 days.
_X_ Yes ___ No
As of July 31, 1998, there were outstanding, 9,649,568 shares of the
issuers' Common Stock, $.01 par value per share.
<PAGE>
TABLE OF CONTENTS
Page
----
PART I
ITEM 1. FINANCIAL STATEMENTS............................................2
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS
OF OPERATIONS................................................8
PART II
ITEM 1. LEGAL PROCEEDINGS..............................................12
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K...............................12
SIGNATURES ...............................................................13
EXHIBITS ...............................................................14
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONSOLIDATED BALANCE SHEETS
AG-CHEM EQUIPMENT CO., INC. AND SUBSIDIARIES
(Dollars in Thousands)
(UNAUDITED)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
June 30, September 30,
ASSETS 1998 1997
------ -------- --------
<S> <C> <C>
CURRENT ASSETS:
Cash $ 1,990 $ --
Accounts receivable, less allowance for
doubtful accounts of $714 and $576, respectively 21,312 23,728
Notes receivable, current portion, and
accrued interest receivable 4,665 3,188
Inventories (note 2) 90,526 99,894
Deferred income tax benefits 4,573 4,550
Prepaid expenses and other current assets 667 881
-------- --------
Total current assets 123,733 132,241
-------- --------
PROPERTY, PLANT AND EQUIPMENT, NET OF ACCUMULATED
DEPRECIATION OF $35,860 AND $30,257, RESPECTIVELY 52,285 46,260
OTHER ASSETS:
Notes receivable, long-term portion 3,985 5,213
Bond funds held by trustees 23 745
Intangible and other assets, net of accumulated
amortization of $3,108 and $2,392, respectively 2,718 3,540
-------- --------
Total other assets 6,726 9,498
-------- --------
Total assets $182,744 $187,999
======== ========
</TABLE>
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SEE ACCOMPANYING CONDENSED NOTES TO INTERIM CONSOLIDATED FINANCIAL STATEMENTS.
<PAGE>
CONSOLIDATED BALANCE SHEETS
AG-CHEM EQUIPMENT CO., INC. AND SUBSIDIARIES
(Dollars in Thousands)
(UNAUDITED)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
June 30, September 30,
LIABILITIES AND STOCKHOLDERS' EQUITY 1998 1997
------------------------------------ --------- ---------
<S> <C> <C>
CURRENT LIABILITIES:
Current installments of long-term debt $ 2,848 $ 5,135
Note payable to banks 12,209 32,685
Accounts payable 15,490 15,049
Checks outstanding in excess of cash balances -- 7
Customer prepayments 3,288 7,718
Accrued expenses (note 3) 15,294 17,363
Deferred income 1,718 563
Accrued income taxes 1,531 224
--------- ---------
Total current liabilities 52,378 78,744
--------- ---------
LONG-TERM DEBT, LESS CURRENT INSTALLMENTS 60,585 45,368
--------- ---------
Total liabilities 112,963 124,112
--------- ---------
STOCKHOLDERS' EQUITY:
Common stock, $.01 par value
Authorized, 40,000,000 shares; issued and
outstanding, 9,649,568 and 9,670,268 shares, respectively 96 97
Additional paid-in capital 1,828 2,188
Retained earnings 68,444 62,082
Foreign currency translation adjustment (587) (480)
--------- ---------
Total stockholders' equity 69,781 63,887
--------- ---------
Total liabilities and stockholders' equity $ 182,744 $ 187,999
========= =========
</TABLE>
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SEE ACCOMPANYING CONDENSED NOTES TO INTERIM CONSOLIDATED FINANCIAL STATEMENTS.
<PAGE>
CONSOLIDATED STATEMENTS OF EARNINGS
AG-CHEM EQUIPMENT CO., INC. AND SUBSIDIARIES
(Dollars in Thousands Except Per Share Amounts)
(UNAUDITED)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Three Months Ended June 30, Nine Months Ended June 30,
1998 1997 1998 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Net sales $ 71,248 $ 66,442 $ 256,285 $ 253,350
Cost of sales 52,984 48,406 186,902 183,403
--------- --------- --------- ---------
Gross profit 18,264 18,036 69,383 69,947
Selling, general and administrative
expenses 18,533 17,210 56,701 51,996
--------- --------- --------- ---------
Operating income (loss) (269) 826 12,682 17,951
--------- --------- --------- ---------
Other income (expense):
Other income 1,082 575 2,514 2,203
Interest expense (1,498) (1,340) (4,723) (4,612)
--------- --------- --------- ---------
Earnings before income taxes (685) 61 10,473 15,542
Income tax expense (benefit) (211) 25 4,112 6,225
--------- --------- --------- ---------
Net earnings (loss) $ (474) $ 36 $ 6,361 $ 9,317
========= ========= ========= =========
Earnings (loss) per share $ (0.05) $ 0.00 $ 0.66 $ 0.96
========= ========= ========= =========
Weighted average common shares
outstanding 9,659 9,667 9,665 9,688
========= ========= ========= =========
</TABLE>
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SEE ACCOMPANYING CONDENSED NOTES TO INTERIM CONSOLIDATED FINANCIAL STATEMENTS.
<PAGE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
AG-CHEM EQUIPMENT CO., INC. AND SUBSIDIARIES
(Dollars In Thousands)
(UNAUDITED)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Nine Months ended June 30,
-------------------------
1998 1997
--------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings $ 6,361 $ 9,317
ADJUSTMENTS TO RECONCILE NET EARNINGS TO NET CASH
PROVIDED BY OPERATING ACTIVITIES:
Depreciation and amortization 6,619 6,254
Loss (Gain) on sale of assets (83) 135
Increase in deferred income tax benefits (23) (212)
Changes in operating assets and liabilities:
Accounts receivable 2,416 578
Operating notes receivable (249) (328)
Inventories 9,368 12,292
Other current assets 215 79
Accounts payable 441 618
Customer prepayments and deferred income (3,275) (1,879)
Accrued expenses (2,069) (2,677)
Income taxes 1,307 (1,388)
--------- ---------
Cash provided by operating activities 21,028 22,789
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Retirement of (investment in) short-term investments
for industrial revenue bond 722 (10)
Purchase of property, plant and equipment (3,457) (4,557)
Increase in rental equipment (8,454) (6,623)
Proceeds from sale of equipment 65 14
Increase (decrease) in other assets 107 (144)
--------- ---------
Cash used in investing activities (11,017) (11,320)
--------- ---------
</TABLE>
(CONTINUED ON NEXT PAGE)
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SEE ACCOMPANYING CONDENSED NOTES TO INTERIM CONSOLIDATED FINANCIAL STATEMENTS.
<PAGE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
AG-CHEM EQUIPMENT CO., INC. AND SUBSIDIARIES
(Dollars In Thousands)
(UNAUDITED)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Nine Months ended June 30,
-------------------------
1998 1997
--------- ---------
<S> <C> <C>
CASH FLOWS FROM FINANCING ACTIVITIES:
Increase (decrease) in checks outstanding in excess of
cash balances (7) 1,040
Proceeds from notes payable - banks 135,600 28,645
Repayments of notes payable - banks (156,076) (49,440)
Proceeds from long-term borrowings 29,750 65,580
Repayments of long-term borrowings (16,820) (56,920)
Purchase of common stock (361) (511)
--------- ---------
Cash used in financing activities (7,914) (11,606)
--------- ---------
Foreign currency translation adjustment (107) 137
--------- ---------
Increase in cash 1,990 --
Cash at beginning of period -- --
--------- ---------
Cash at end of period $ 1,990 $ --
========= =========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest $ 4,723 $ 4,612
Income taxes $ 2,690 $ 7,800
SUPPLEMENTAL DISCLOSURE OF NON-CASH INVESTING AND FINANCING ACTIVITIES:
The Company entered into capital leases for computer equipment that
aggregated to $789 and $141 for the nine-month periods ended June 30, 1998 and
1997, respectively.
</TABLE>
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SEE ACCOMPANYING CONDENSED NOTES TO INTERIM CONSOLIDATED FINANCIAL STATEMENTS.
<PAGE>
NOTES TO INTERIM CONSOLIDATED FINANCIAL STATEMENTS
AG-CHEM EQUIPMENT CO., INC. AND SUBSIDIARIES
(Dollars In Thousands)
(UNAUDITED)
- --------------------------------------------------------------------------------
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accompanying unaudited interim consolidated financial statements
have been prepared in accordance with generally accepted accounting principles
for interim financial information and with the instructions in Rule 10-01 of
Regulation S-X. Accordingly, they do not include all of the footnotes required
by generally accepted accounting principles for complete financial statements.
In the opinion of management, all adjustments (consisting of normal recurring
accruals) considered necessary for a fair presentation have been included. For
further information, refer to the consolidated financial statements and
footnotes thereto for the year ended September 30, 1997 included in the
Company's annual report on Form 10-K. Results of the interim periods are not
necessarily indicative of the results for an entire year.
(2) INVENTORIES
Inventories consist of the following:
June 30, September 30,
1998 1997
--------- ---------
Finished goods $ 38,337 $ 46,278
Resale parts 24,359 22,116
Work in process 7,653 7,542
Raw materials 25,734 25,700
--------- ---------
Total 96,083 101,636
Less LIFO reserve (13,248) (12,454)
--------- ---------
Total 82,835 89,182
Used equipment 7,691 10,712
--------- ---------
Total inventories $ 90,526 $ 99,894
========= =========
If the first in, first out (FIFO) method utilizing current costs had
been used for inventories valued using the LIFO method, inventories would have
been higher by $13,248 at June 30, 1998 and $12,454 at September 30, 1997.
(3) ACCRUED EXPENSES
Accrued expenses consist of the following:
June 30, September 30,
1998 1997
--------- ---------
Compensation $ 6,313 $ 9,396
Warranty 1,349 1,385
Taxes other than income 1,217 1,790
Insurance 2,958 1,861
Interest 1,172 1,755
Other 2,285 1,176
--------- ---------
Total $ 15,294 $ 17,363
========= =========
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
(DOLLARS IN THOUSANDS)
RESULTS OF OPERATIONS - THREE-MONTH PERIOD ENDED JUNE 30, 1998 COMPARED TO
THREE-MONTH PERIOD ENDED JUNE 30, 1997
Consolidated net sales increased by $4,806 or 7.2 percent in the
three-month period ended June 30, 1998 from the three-month period ended June
30, 1997. The increase was primarily the result of an increase in parts and used
equipment sales that resulted from increased unit shipments due to increased
demand in these markets, and to a lesser extent pricing increases. Pre-emergence
and post-emergence equipment sales did not increase or decrease significantly,
as compared to the prior-year period. As a result, pre-emergence and
post-emergence equipment sales decreased as a percent of total sales.
Consolidated gross profit for the three-month period ended June 30,
1998 increased $228 or 1.3 percent as compared to the prior-year period.
Consolidated gross profit as a percent of net sales was 25.6 percent and 27.1
percent for the three-month periods ended June 30, 1998 and 1997, respectively.
The primary reasons for the lower gross profit percentage was reduced economies
of scale resulting from lower production volumes for post-emergence equipment,
and higher warranty costs on its older models. The Company has made efforts to
reduce warranty expense as a percentage of sales through improved design
techniques on newer models, but is uncertain of the amount and timing that the
effect of these new techniques will have. The Company has not yet fully utilized
the capacity of the latest plant expansions. In the near-term, the Company
expects this under-utilization to continue to negatively impact margins, while
in the long term, the expectation is that margins will improve as plant
utilization improves with increased production and sales. Also, the Company
introduces its discount programs on old models late in the summer, which further
reduce margins. Such a decrease in the fourth quarter is normal for the Company
and is expected to be similar to decreases experienced in prior years.
Additionally, higher levels of used equipment sales as a percent of total net
sales negatively impacted gross profit as a percent of net sales as compared to
the prior year. Used equipment sales have lower margins than new equipment. The
Company estimates that impact of these factors will continue to negatively
impact gross profit as a percent of sales in the fourth quarter of fiscal 1998,
depending on sales and product mix.
Consolidated selling, general and administrative ("S,G&A") expenses
increased $1,323 or 7.7 percent in the three-month period ended June 30, 1998 as
compared to the prior-year period. Compensation, employee benefits and
employee-related expenses increased 14.1 percent or $1,548. This increase was
primarily due to an increase in the number of employees to support new product
development and improve customer service. All other S,G&A expenses decreased by
3.6 percent or $225. S,G&A expenses as a percent of net sales were 26.0 percent
and 25.9 percent in the three-month periods ended June 30, 1998 and 1997,
respectively. The Company expects that annual S,G&A expenses may increase
slightly as a percentage of sales compared to previous periods depending on
sales during the remainder of fiscal 1998.
As a result of the above, operating income (loss) was ($269) and $826
in the three-month periods ended June 30, 1998 and 1997, respectively.
Other income increased 88.2 percent to $1,082 in the current
three-month period as compared to the prior year three-month period. The
increase was primarily the result of higher average note receivable balances.
The Company does not expect the increase to be a continuing trend.
<PAGE>
Interest expense increased 11.8 percent to $1,498 in the current
three-month period ended as compared to the prior-year period. This increase was
largely attributable to higher average outstanding borrowings as interest rates
were relatively stable in the current year quarter. The Company expects interest
expense to decrease due to net repayments of notes payable.
The effective tax expense (benefit) rate in the three-month periods
ended June 30, 1998 and 1997 was (30.8) percent and 37.7 percent, respectively.
As a result of the above, net earnings (loss) were ($474) and $36 in
the three-month periods ended June 30, 1998 and 1997, respectively. Earnings
(loss) per share were ($.05) and $.00 for the three-month periods ended June 30,
1998 and 1997, respectively.
RESULTS OF OPERATIONS - NINE-MONTH PERIOD ENDED JUNE 30, 1998 COMPARED TO
NINE-MONTH PERIOD ENDED JUNE 30, 1997
Consolidated net sales increased by $2,935 or 1.2 percent in the
nine-month period ended June 30, 1998 from the nine-month period ended June 30,
1997. The increase was primarily the result of an increase in pre-emergence
equipment sales that resulted from pricing increases, rather than a change in
the number of units shipped. Customer demand has shifted to newly designed
equipment that has a higher selling price, such as the new model 8103. This
model has a higher average selling price than the model it replaced. This
increase was largely offset by a decrease in post-emergence equipment sales that
resulted from decreased unit shipments due to increased competition. The Company
expects this competition to be a significant factor in the post-emergence market
and is uncertain about the impact on future sales. Additionally, the farming
economy in general has suffered as a result of relatively low commodity prices,
which temporarily decreased demand for new equipment. Also, the farm supply
industry has experienced consolidation that has reduced the number of customers.
This has resulted in a decrease in the demand for new equipment, which the
Company expects to be temporary. As a result, post-emergence equipment sales
decreased as a percent of total sales, while the remaining product mix remained
substantially unchanged.
Consolidated gross profit for the nine-month period ended June 30, 1998
decreased $564 or 0.8 percent as compared to the prior-year period. Consolidated
gross profit as a percent of net sales was 27.1 percent and 27.6 percent for the
nine-month periods ended June 30, 1998 and 1997, respectively. The primary
reason for the lower margin percentage was higher warranty costs on its older
models. The Company has made efforts to reduce warranty expense as a percentage
of sales through improved design techniques on newer models, but is uncertain of
the amount and timing that the effect of these new techniques will have. This
decrease was also the result of higher product costs due to start-up
expenditures in the first quarter on the new model 8103. The Company expected
margins on the new model 8103 to improve once start-up expenditures were
complete, and this was achieved in the second and third quarters. The Company
expects model 8103 margins to stabilize in future periods, however, the start-up
costs associated with the introduction of additional new models is expected to
negatively impact margins during the fourth quarter of fiscal year 1998.
Additionally, higher levels of used equipment sales as a percent of total net
sales negatively impacted gross profit as a percent of net sales as compared to
the prior year. Used equipment sales have lower margins than new equipment. The
Company has not yet fully utilized the capacity of the latest plant expansions.
In the near-term, the Company expects this under-utilization to continue to
negatively impact margins, while in the long term, the expectation is that
margins will improve as plant utilization grows with increased production and
sales. Also, the Company introduces its discount programs on old models late in
the summer, which further reduce margins. Such a decrease in the fourth quarter
is normal for the Company and is expected to be similar to the decrease
experienced in the prior year. The Company estimates that impact of these
factors will continue to
<PAGE>
negatively affect margins for the three-month period ending September 30, 1998,
depending on sales and product mix.
Consolidated sales, general and administrative ("S,G&A") expenses
increased $4,705 or 9.0 percent in the nine-month period ended June 30, 1998 as
compared to the prior-year period. Of the overall increase in S,G&A expenses,
costs to support the Company's sales growth increased $3,211 or 7.2 percent, and
costs to support product development increased $1,494 or 20.2 percent. S,G&A
expenses as a percent of net sales was 22.1 percent and 20.5 percent in the
nine-month periods ended June 30, 1998 and 1997, respectively. The Company
expects that annual S,G&A expenses may increase slightly as a percentage of
sales compared to previous periods depending on sales during the remainder of
fiscal 1998.
As a result of the above, operating income was $12,682 and $17,951 in
the nine-month periods ended June 30, 1998 and 1997, respectively.
Other income increased 14.1 percent to $2,514 in the current nine-month
period as compared to the prior year period. The increase was primarily the
result of higher average note receivable balances. The Company does not expect
the increase to be a continuing trend.
Interest expense increased 2.4 percent to $4,723 in the current
nine-month period ended as compared to the prior year period. This increase was
largely attributable to higher average outstanding borrowings as interest rates
were relatively stable and changes in such rates had a minimal effect on
interest expense. The Company expects interest expense to decrease due to net
repayments of notes payable.
The effective tax rate in the nine-month periods ended June 30, 1998
and 1997 was 39.3 percent and 40.1 percent, respectively. The decrease in the
effective tax rate was primarily the result of partial utilization of tax net
operating loss carry-forwards by the Company's Dutch subsidiary. Net income for
this subsidiary was $249 in the current nine-month period as compared to a net
loss of $486 in the prior-year period.
As a result of the above, net earnings were $6,361 and $9,317 in the
nine-month periods ended June 30, 1998 and 1997, respectively. Earnings per
share were $.66 and $.96 for the nine-month periods ended June 30, 1998 and
1997, respectively.
LIQUIDITY AND FINANCIAL POSITION - NINE-MONTH PERIOD ENDED JUNE 30, 1998
COMPARED TO NINE-MONTH PERIOD ENDED JUNE 30, 1997
Net cash provided by operating activities decreased to $21,028 in the
nine-month period ended June 30, 1998, compared to $22,789 in the nine-month
period ended June 30, 1997. The major reason for this change was a decrease in
net earnings of $2,955. This decrease was partially offset by an increase in
cash provided by operating assets and liabilities to $8,153 in the nine-month
period ended June 30, 1998 from $7,295 in the prior-year period. Inventories,
together with increased accounts payable balances, provided cash of $9,809
compared to $12,910 during the nine months ended June 30, 1998 and 1997,
respectively. The primary reason for the decrease in cash provided from the
combination of inventory and accounts payable balances was special discounts
given in the prior year on the Company's carry-over of 1996 models in an effort
to reduce inventory balances. Inventories decreased to $90,526 at June 30, 1998
as compared to $99,894 at September 30, 1997. This decrease was the result of
increased shipments to fill orders received during the first and second quarters
of the fiscal year. The Company normally experiences the highest sales levels in
the second quarter of the fiscal year. Customer prepayments and
<PAGE>
deferred income decreased $3,275 in the nine months ended June 30, 1998 compared
to $1,879 in the nine months ended June 30, 1997. The larger increase in
prepayments was primarily the result of more orders in the current-year. The
Company expects cash will continue to be provided by operating activities
through net earnings, and this cash will be used to satisfy the current portion
of long-term debt.
Accounts receivable and inventory turnover have remained relatively
stable in recent periods, and have not significantly affected liquidity.
Cash used in investing activities in the nine-month period ended June
30, 1998 was $11,017 compared to $11,320 in the prior-year period. This
decreased use of cash was primarily due to higher prior-year investments in
other assets and property, plant and equipment to support the Company's growth.
This was offset, in part, by customer demand for rental equipment that has
increased in the current year, requiring further investment.
Cash used in financing activities was $7,914 in the nine-month period
ended June 30, 1998, compared to $11,606 in the prior period. The decrease in
cash used in financing activities was primarily the result of the net proceeds
of long term borrowings of $12,930 during the nine-month period ended June 30,
1998, compared to $8,660 during the nine-month period ended June 30, 1997. This
decrease in net repayments is primarily due to increased working capital
requirements as compared to the prior year, when working capital was generated
through the reduction of higher inventory levels.
Working capital at June 30, 1998 was $71.4 million. As of June 30, 1998
the Company had $22.0 million of unused credit line available. The Company
periodically receives prepayments from customers to secure either more favorable
pricing or a desired delivery date. If the Company did not receive customer
prepayments, it believes its line of credit provides sufficient liquidity to
meet working capital requirements.
The terms of the Company's amended credit line agreement include
covenants that the Company must maintain. There are a number of standard
affirmative covenants, as well as restrictive negative covenants as to
additional borrowings and requirements for the Company to maintain certain
financial ratios. These restrictive covenants include a minimum tangible net
worth of $35 million plus 75 percent of each fiscal year's net earnings, a ratio
of total liabilities to tangible net worth, and an interest coverage ratio.
There are additional limitations on mergers, acquisitions, disposal of assets,
and capital expenditures. The Company does not anticipate any difficulty in
meeting these covenants.
The Company is currently engaged in a comprehensive review of its
computer systems to identify those systems that will be affected by the year
2000 problem. The Company will have all affected systems corrected and tested
prior to June 30, 1999. At this time, the Company does not have an estimate of
the total cost, but believes it will not be material.
FORWARD-LOOKING STATEMENTS
Certain information included in this Report is "forward looking" within
the meaning of the Private Securities Litigation Reform Act of 1995. Such
forward-looking statements can be identified by the use of words such as "will,"
"intends," "expects," "should," and similar language. Such forward-looking
statements involve known and unknown risks, uncertainties and other factors
which may cause the actual results, performance or achievements of the Company,
or industry results, to be materially different from any future results,
performance or achievements expressed or implied by such forward-looking
statements. This includes factors that affect all businesses, as well as matters
specific to the Company and markets it serves. A more complete discussion of
such factors is included in the Company's Form 10-K for the year-ended September
30, 1997.
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Reference is made to the Company's Annual Report on Form 10-K for the
fiscal year ended September 30, 1997 on file with the Securities and Exchange
Commission. During the quarter ended June 30, 1998, the Company was not a party
to any newly initiated material legal proceedings and there have been no
material developments during such period to existing legal proceedings.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits
See the index to exhibits immediately preceding the exhibits
filed with this report.
(b) Reports on Form 8-K
No reports on Form 8-K have been filed during the quarter for
which this report was filed.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AG-CHEM EQUIPMENT CO., INC.
Date: August 11, 1998 By: /s/ Alvin E. McQuinn
-------------------------------
Alvin E. McQuinn
Its: Chief Executive Officer
Date: August 11, 1998 By: /s/ John C. Retherford
-------------------------------
John C. Retherford
Its: Chief Financial Officer
<PAGE>
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
TO
FORM 10Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
AG-CHEM EQUIPMENT CO., INC.
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Title Page
- ----------- ----- ----
10.1 $30,000,000 Short Term Revolving Credit Agreement
among Ag-Chem Equipment Co., Inc., NBD Bank, as Lender
and Agent, Harris Trust and Savings Bank, as Lender,
Rabobank Nederland, as Lender, dated June 12, 1998.
10.2 Second Amendment to Long Term Second Amended and
Restated Revolving Credit Agreement among Ag-Chem
Equipment Co., Inc., NBD Bank, as Lender and Agent,
Harris Trust and Savings Bank, as Lender, Rabobank
Nederland, as Lender, dated July 14, 1998.
11.1 Statement Regarding Computation of Per Share Earnings
27 Financial Data Schedule
Exhibit 10.1
AG-CHEM EQUIPMENT CO., INC.
---------------------------------------
SHORT TERM
REVOLVING CREDIT AGREEMENT
$30,000,000
---------------------------------------
Dated as of June 12, 1998
---------------------------------------
NBD BANK, for itself and as AGENT
HARRIS TRUST AND SAVINGS BANK
COOPERATIEVE CENTRALE RAIFFEISEN - BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH
<PAGE>
TABLE OF CONTENTS
SHORT TERM REVOLVING CREDIT AGREEMENT
Page
Introduction................................................................. 1
ARTICLE I
DEFINITIONS.................................................................. 1
1.1 Certain Definitions...................................... 1
1.2 Certain Rules of Construction............................ 11
ARTICLE II
CREDIT FACILITY AND ADVANCES................................................. 11
2.1 Commitments of the Lenders............................... 11
2.2 Requesting Advances...................................... 12
2.3 Funding Advances......................................... 13
2.4 Termination or Reduction of Commitment................... 14
2.5 Interest and Principal Repayment......................... 15
2.6 Payments by Company...................................... 16
2.7 Remittance by Agent...................................... 16
2.8 Set-Off; etc............................................. 17
2.9 Servicing Fees........................................... 18
2.10 Additional Costs; Illegality and Impossibility........... 18
ARTICLE III
CONDITIONS PRECEDENT TO ADVANCES............................................. 21
3.1 Conditions for Initial Advances.......................... 21
3.2 Further Conditions for Advances.......................... 22
ARTICLE IV
REPRESENTATIONS AND WARRANTIES............................................... 23
4.1 Corporate Existence and Power............................ 23
4.2 Corporate Authority...................................... 23
4.3 Binding Effect........................................... 23
4.4 Subsidiaries............................................. 23
4.5 Litigation............................................... 24
4.6 Financial Condition...................................... 24
4.7 Use of Advances.......................................... 24
4.8 Consents, Etc............................................ 24
4.9 Taxes.................................................... 24
4.10 Title to Properties...................................... 25
4.11 Compliance with Governmental Regulations................. 25
4.12 ERISA.................................................... 25
4.13 Environmental and Safety Matters......................... 25
4.14 Investment Company Act; Unregistered Securities.......... 26
4.15 Public Utility Holding Company........................... 26
4.16 Disclosure............................................... 26
ARTICLE V
COVENANTS.................................................................... 27
5.1 Affirmative Covenants.................................... 27
5.2 Negative Covenants....................................... 30
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ARTICLE VI
DEFAULT...................................................................... 34
6.1 Events of Default........................................ 34
6.2 Remedies................................................. 36
ARTICLE VII
THE AGENT.................................................................... 37
7.1 Appointment, Powers and Immunities....................... 37
7.2 Reliance by Agent........................................ 38
7.3 Rights as a Lender....................................... 38
7.4 Indemnification.......................................... 38
7.5 Non-Reliance on Agent and Other Lenders.................. 39
7.6 Duties of Agent.......................................... 39
7.7 Successor Agent.......................................... 40
7.8 Nature of Advances....................................... 40
7.9 Default Interest......................................... 40
7.10 Limited Purpose of Certain Provisions.................... 41
ARTICLE VIII
MISCELLANEOUS................................................................ 41
8.1 Waivers, Amendments, etc................................. 41
8.2 Notices.................................................. 42
8.3 No Waiver by Conduct; Remedies Cumulative................ 42
8.4 Reliance on and Survival of Various Provisions........... 43
8.5 Expenses; Indemnification................................ 43
8.6 Successors and Assigns................................... 43
8.7 Disclosure of Information................................ 44
8.8 Counterparts............................................. 44
8.9 Governing Law............................................ 45
8.10 Table of Contents and Headings........................... 45
8.11 Construction of Certain Provisions....................... 45
8.12 Integration and Severability............................. 45
8.13 Independence of Covenants................................ 45
8.14 Interest Rate Limitation................................. 46
8.15 Limitation of Liability.................................. 46
8.16 Interpretation........................................... 46
8.17 Jurisdiction and Venue................................... 46
8.18 Waiver of Jury Trial..................................... 47
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SHORT TERM REVOLVING CREDIT AGREEMENT
This Short Term Revolving Credit Agreement, dated as of June 12, 1998,
is among Ag-Chem Equipment Co., Inc., a Minnesota corporation (the "Company"),
and NBD Bank ("NBD") for itself and as agent (in such capacity "Agent"), and the
other banks set forth on the signature pages hereto or who otherwise become
parties to this Agreement (together with NBD being sometimes referred to
collectively as the "Lenders" and individually as a "Lender").
INTRODUCTION
A. The Company obtained a $30,000,000 short term revolving credit
facility from NBD and the Lenders pursuant to a Short Term Revolving Credit
Agreement, dated June 10, 1997, as amended by an agreement dated as of February
13, 1998 (the "Existing Loan Agreement"), which expired June 8, 1998.
B. The Company has requested that it be given a new $30,000,000 short
term revolving credit facility.
C. The Company, the Agent and the Lenders desire to enter into a new
short term credit facility on the terms and conditions set forth in this
Agreement.
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Adjusted Eurodollar Rate" shall mean, for any Loan Period and the
applicable Eurodollar Rate Advance, the per annum rate of interest equal to the
sum of (a) the then applicable Margin, plus (b) the per annum rate (rounded up,
if necessary, to the nearest one-sixteenth of one percent (1/16%)) determined by
dividing (i) the Eurodollar Rate for such Eurodollar Rate Advance and related
Loan Period, by (ii) an amount equal to one minus the stated maximum rate
(expressed as a decimal) of all reserve requirements (including any basic,
marginal, emergency, supplemental, special or other reserves) that is specified
from time to time during a Loan Period by the Board of Governors of the Federal
Reserve System (or any successor agency) for determining the maximum reserve
requirement with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of such Board) maintained by a member
bank of such System, without benefit of credit or prorations, exemptions or
offsets which might otherwise be available to any of the Lenders from time to
time under Regulation D.
"Advance(s)" means individually or collectively, as appropriate, the
Floating Rate Advances and the Eurodollar Rate Advances.
"Affiliate", when used with respect to any person, means any other
person which, directly or indirectly, controls or is controlled by or is under
common control with such person and includes (a) any person which beneficially
owns or
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holds 5% or more of any class of voting securities of such person or 5% or more
of the equity interest in such person, (b) any person of which such person
beneficially owns or holds 5% or more of any class of voting securities or in
which such person beneficially owns or holds 5% or more of the equity interests
and (c) any director, officer or employee of such person. For purposes of this
definition "control" (including the correlative meanings of the terms
"controlled by" and "under common control with"), with respect to any person,
shall mean possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such person, whether through the
ownership of voting securities or by contract or otherwise.
"Agreement" means this Short Term Revolving Credit Agreement, either as
originally executed or as it may from time to time be supplemented, modified,
amended, renewed or extended.
"Applicable Rate" means, for any Loan Period and the relevant Advance,
the Floating Rate or Adjusted Eurodollar Rate applicable thereto.
"Business Day" means a day other than (a) with respect to all Advances,
a Saturday, Sunday or other day on which the banks in Chicago, Detroit or New
York generally not open to the public for carrying on substantially all of their
banking functions, and (b) with respect to Eurodollar Rate Advances only, a day
on which the London interbank market is not transacting business generally.
"Capital Expenditures" means, for any period, the additions to
property, plant and equipment and other capital expenditures of the Company and
its Subsidiaries for such period, as the same are or should be set forth on the
consolidated financial statements of the Company and its Subsidiaries in
accordance with GAAP.
"Capital Lease" of any person means any lease which, in accordance with
GAAP, is or should be capitalized on the books of such person.
"Cash Equivalents" means, as to any person, (a) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than 12
months from the date of acquisition, (b) time deposits and certificates of
deposit of any commercial bank with a long-term unsecured debt rating of at
least A or its equivalent from Standard & Poor's Rating Group or at least A-2 or
its equivalent from Moody's Investors Service, Inc. with maturities of not more
than six months from the date of acquisition by such person, (c) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (a) above entered into with any bank meeting the
qualifications specified in clause (b) above, (d) commercial paper issued by any
person incorporated in the United States, which commercial paper is rated at
least A-1 or the equivalent thereof by Standard & Poor's Ratings Group or at
least P-1 or the equivalent thereof by Moody's Investors Service, Inc. or at
least F-1 or the equivalent thereof by Fitch Investor Services, Inc. and in each
case maturing not more than 270 days after the date of issuance by such person,
and (e) investments in money market funds
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substantially all the assets of which are comprised of securities of the types
described in clauses (a) through (d) above.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations thereunder.
"Commitment" means the commitment of a Lender to make Advances pursuant
to Section 2.1(a) in the maximum principal set forth opposite the Lender's name
on the signature pages hereof as its Commitment, as such amount may be reduced
from time to time pursuant to Section 2.4.
"Contingent Liabilities" of any person means, as of any date, all
obligations of such person or of others for which such person is contingently
liable, as obligor, guarantor, surety or in any other capacity, or in respect of
which obligations such person assures a creditor against loss or agrees to take
any action to prevent any such loss (other than endorsements of negotiable
instruments for collection in the ordinary course of business), including all
reimbursement obligations of such person in respect of any letters of credit,
surety bonds or similar obligations and all obligations of such person to
advance funds to, or to purchase assets, property or services from, any other
person in order to maintain the financial condition of such other person.
"Default" means any of the events or conditions described in Section
6.1 which would, unless cured, become an Event of Default with notice or lapse
of time or both.
"Default Rate" means a rate per annum that is equal to the sum of the
Applicable Rate plus three percent (3%) per annum.
"Dollars" and "$" means the lawful money of the United States of
America.
"EBITDA" means, for any period, Net Income plus the sum of all amounts
recorded and deducted in computing Net Income for such period in respect of
Interest Expense, taxes, depreciation charges and expenses and amortization
charges and expenses (whether paid or accrued, or a cash or non-cash expense),
as determined in accordance with GAAP.
"Effective Date" means June 12, 1998.
"Environmental Laws" means any and all Governmental Regulations
concerning the protection of, or regulating the discharge of substances into,
the environment, including the Governmental Regulations specified in the
definition of Hazardous Materials.
"ERISA" means the Employee Retirement Income Securities Act of 1974, as
amended from time to time, and the regulations thereunder.
"ERISA Affiliate" means, with respect to any person, any trade or
business (whether or not incorporated) which, together with such person or any
Subsidiary of such person, would be treated as a single employer under Section
414 of the Code.
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"Eurodollar Rate " shall mean, for any Eurodollar Rate Advance and the
related Loan Period, the per annum rate of interest equal to the offered rate
for deposits in Dollars for the applicable Loan Period and comparable amount,
commencing on the first day of such Loan Period (a "Reset Date") which appears
on the Telerate Screen page 3750 (British Bankers' Association LIBOR setting) at
approximately 11:00 a.m., London time, on the date that is two Business Days
prior to such Reset Date, except as provided below. If two or more such offered
rates appear on the Telerate Screen on the applicable date, the Eurodollar Rate
will be the arithmetic mean of such offered rates. If the source referred to in
the first sentence of this definition is not reasonably available to the Agent,
the Eurodollar Rate for a particular Eurodollar Rate Advance and the related
Loan Period shall be the per annum rate of interest at which deposits in Dollars
for such Loan Period and in an aggregate amount comparable to the principal
amount of such Eurodollar Rate Advance are offered to the Agent by other prime
banks in the London interbank market, at approximately 11:00 a.m., London time,
on the day that is two Business Days preceding the applicable Reset Date, as
determined by the Agent.
"Eurodollar Rate Advance" means an Advance that bears interest at the
Adjusted Eurodollar Rate.
"Event of Default" means any of the events or conditions described in
Section 6.1.
"Existing Indebtedness" means all obligations of the Company to the
Prior Lenders and Agent under the Existing Loan Agreement, including, but not
limited to, payments of principal, interest and fees.
"Facility Margin" shall mean the following per annum percent applicable
from time to time based on the ratio of Funded Debt to EBITDA determined on a
rolling four quarter basis at the end of the applicable fiscal quarter:
Ratio of Funded Debt to EBITDA Facility Margin
Less than 1.75 to 1.0 0.100%
Equal to or greater than 1.75 to 1.0 0.125%
but less than 2.50 to 1.0
Equal to or greater than 2.50 to 1.0 0.150%
but less than or equal to 3.25 to 1.0
The foregoing ratios shall be determined as of the end of each fiscal quarter
based upon the financial statements to be delivered by the Company pursuant to
Section 5.1(d)(ii). The determination of the Facility Margin as of the end of
each such fiscal quarter shall be set forth on a certificate prepared by the
Company and delivered with the financial statements to be delivered with respect
to such quarter pursuant to Section 5.1(d)(ii). Any increase or decrease in the
Facility Margin shall become effective beginning after the fifth Business Day
following the date on which the Company delivers to the Agent its financial
statements in accordance with Section 5.1(d)(ii), together with a certificate
showing that a change in the Facility Margin is required; provided, however, if
the financial statements required by Section 5.1(d)(ii)
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for the applicable quarters, together with the foregoing certificate, are not
delivered within the required time period, then, until such delivery the
Facility Margin shall be deemed to be 0.150%. Notwithstanding the foregoing,
until the financial statements for the quarter ended June 30, 1998 are delivered
pursuant to Section 5.1(d)(ii), the Facility Margin shall be based on the
financial statements delivered to Agent for the quarter ended March 31, 1998.
"Federal Funds Rate" means, for any day, the weighted average of the
rates on overnight Federal Funds transactions with members of the Federal
Reserve System only, arranged by Federal Funds brokers, as published for such
day (or if such day is not a Business Day, for the immediately preceding
Business Day) by the Federal Reserve Bank of New York or, if such rate is not so
published for any Business Day, the average of the quotations for such day on
such transactions received by Agent from three Federal Funds brokers of
recognized standing selected by Agent.
"FDIC" means the Federal Deposit Insurance Corporation and any entity
succeeding to its functions.
"Floating Rate" shall mean the per annum rate equal to the higher of
(i) Prime Rate in effect from time to time, and (ii) 1/2% per annum plus the
Federal Funds Rate from time to time determined by the Agent. Such Floating Rate
shall change simultaneously with any change in the Prime Rate or Federal Funds
Rate.
"Floating Rate Advance" means an Advance that bears interest at the
Floating Rate.
"Funded Debt" means, at any date, all Indebtedness of the Company and
its consolidated Subsidiaries which bears interest (including Capital Leases),
other than Subordinated Debt.
"Funding Date" means any Business Day designated by the Company as a
day on which (a) a new Advance is to be made, (b) a Floating Rate Advance is to
be converted to a Eurodollar Rate Advance, or (c) a Loan Period is to be renewed
or extended, each in accordance with the terms and conditions of this Agreement.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis, and with respect the covenants in Section
5.2(a), (b) and (c), consistent with those principles in effect at the date of
the financial statements listed in Schedule 4.6.
"Governmental Authority" means any federal, state, local, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, and any and all Governmental Regulations
(including decrees, rules and orders) of any governmental bodies and offices
having power to regulate or supervise the business activities of any of the
Company, a Loan Party, the Agent or any Lender.
"Governmental Regulations" means any and all laws, statutes,
ordinances, rules, regulations, treaties, judgments, writs, injunctions,
decrees, orders,
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awards and standards, or any similar requirement, of the government of the
United States or of any foreign government or any state, province, municipality
or other political subdivision thereof or therein or any court, agency,
instrumentality, regulatory authority or commission of any of the foregoing.
"Guaranties" means the Guaranties (Short Term) given by the Guarantors
to the Agent and the Lenders guarantying the Obligations, together with any
amendments or restatements thereof.
"Guarantor(s)" means Ag-Chem Sales Co., Inc., a Minnesota corporation,
Lor*Al Products, Inc., a Minnesota corporation, Ag-Chem Equipment Co
International Corp, a Virgin Islands corporation, Ag-Chem Equipment Canada Ltd.,
a Minnesota corporation, Ag-Chem Manufacturing Co., Inc. (formerly known as Soil
Teq, Inc.), a Minnesota corporation, Ag-Chem Europe B.V. (formerly known as
Kurstjens Terra-Gator B.V.), a Netherlands private limited liability company and
any other person or entity that may guarantee the Obligations from time to time.
"Hazardous Materials" means asbestos-containing materials, mono- or
polychlorinated biphenyl urea formaldehyde products, radon, radioactive
materials and any "hazardous substance," "hazardous waste," "pollutant," "toxic
pollutant," "oil or contaminant" as used in, or defined pursuant to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 USC ss. 9601 et seq., and 40 CFR ss. 302.1 et seq.; the Federal
Clean Air Act, as amended, 42 USC ss. 7401 et seq., and regulations thereunder;
the Resource Conservation and Recovery Act, 42 USC ss. 6901 et seq., as amended,
and regulations thereunder; the Federal Water Pollution Control Act, 33 USC
ss. 1251 et seq., as amended, and regulations thereunder; 40 CFR ss. 116.1
et seq.; and any other substance, waste, pollutant, contaminant or material,
including petroleum products and derivatives, the use, transport, disposal,
storage, treatment, recycling, handling, discharge, release, threatened release
or emission of which is regulated or governed by any Environmental Laws.
"Indebtedness" of any person means (a) all obligations of such person
for borrowed money, (b) all obligations of such person as lessee under any
Capital Lease, (c) all obligations which are secured by any Lien existing on any
asset or property of such person whether or not the obligation secured thereby
shall have been assumed by such person, (d) the unpaid purchase price for goods,
property or services acquired by such person, except for accounts payable for
goods, property or services arising in the ordinary course of business that are
not more than 30 days past due, (e) all obligations of such person to purchase
goods, property or services where payment therefor is required regardless of
whether delivery of such goods or property or the performance of such services
is ever made or tendered (generally referred to as "take or pay contracts"), (f)
all liabilities of such person in respect of unfunded benefit liabilities
(determined in accordance with Section 4001(a)(18) of ERISA) under any Plan of
such person or of any ERISA Affiliate and any unfunded current liabilities with
respect to any employee benefit pension plans maintained by such person outside
the United States, (g) all obligations of such person in respect of any interest
rate or currency swap, rate cap or other similar transaction (valued in any
amount equal to the highest termination payment, if any, that would be payable
by such person upon termination for any reason on the date of determination),
and (h) all Contingent Liabilities of such person.
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"Interest Coverage Ratio" means the ratio of (a) the net income of the
Company and its consolidated Subsidiaries, before interest expense and taxes,
determined in accordance with GAAP, to (b) Interest Expense for the Company and
its Subsidiaries, on a consolidated basis, to be calculated as of the end of
each fiscal quarter of the Company for the four consecutive fiscal quarters then
ending.
"Interest Expense" means, for a person for the applicable fiscal
period, such person's interest expense (including capitalized interest accrued
during such period) for such period computed in accordance with GAAP including,
without limitation, the portion of any obligation under a Capital Lease
allocable to interest expense in accordance with GAAP.
"Interest Payment Date" means each January 1, April 1, July 1 and
October 1.
"Investment" of any person in another person means any advance, loan,
extension of credit or capital contribution to, or any investment in the capital
stock or other equity interest, or Indebtedness of, such other person or any
Contingent Liability incurred for the benefit of such other person.
"Lien" means any pledge, assignment, hypothecation, mortgage, security
interest, deposit arrangement, option, conditional sale or title retaining
contract, sale and leaseback transaction, finance statement filing (other than
with regard to operating leases), lessor's or lessee's interest under any lease
(other than the lessee's interest under any operating lease), subordination of
any claim or right, or any other type of lien, charge, encumbrance or other
claim or right.
"Loan Documents" means this Agreement, the Notes, the Guaranties, the
Long Term Credit Agreement and all other agreements, documents or instruments
now or hereafter executed by or on behalf of the Company, any of its
Subsidiaries or any Guarantor and delivered to the Agent or the Lenders in
connection with this Agreement or the Long Term Credit Agreement.
"Loan Party" means the Company and each Guarantor.
"Loan Period" means, (i) with respect to each Floating Rate Advance,
the period commencing on the Funding Date for such Floating Rate Advance and
ending on the earlier to occur of (A) the date of repayment by the Company, and
(B) the Termination Date, and (ii) with respect to each Eurodollar Rate Advance,
the period commencing on the Funding Date for such Eurodollar Rate Advance and
ending one month, two months, three months or six months thereafter, as
specified by the Company in the related notice under Section 2.2; provided,
however, that with respect to Eurodollar Rate Advances:
(a) any Loan Period which would otherwise end on a day which
is not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case such
Loan Period shall end on the next preceding Business Day;
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(b) any Loan Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Loan Period) shall, subject to clause
(c) below, end on the last Business Day of a calendar month; and
(c) any Loan Period which would otherwise end after the
Termination Date will end on the Termination Date.
"Long Term Credit Agreement" means the Long Term Second Amended and
Restated Revolving Credit Agreement, executed by the Company, the Agent and the
Lenders, dated June 10, 1997, and any further amendments or restatements
thereof.
"Margin" means the following per annum percent applicable from time to
time, based on the ratio of Funded Debt to EBITDA determined on a rolling four
quarter basis at the end of the applicable fiscal quarter:
Ratio of Funded Debt to EBITDA Margin
Less than 1.75 to 1.0 0.400%
Equal to or greater than 1.75 to 1.0 0.625%
but less than 2.50 to 1.0
Equal to or greater than 2.50 to 1.0 0.850%
but less than or equal to 3.25 to 1.0
The foregoing ratios shall be determined as of the end of each fiscal quarter
based upon the financial statements to be delivered by the Company pursuant to
Section 5.1(d)(ii). The determination of the Margin as of the end of each such
fiscal quarter shall be set forth on a certificate prepared by the Company and
delivered with the financial statements to be delivered with respect to such
quarter pursuant to Section 5.1(d)(ii). Any increase or decrease in the Margin
shall become effective for any newly funded or thereafter extended Eurodollar
Rate Advances beginning after the fifth Business Day following the date on which
the Company delivers to the Agent its financial statements in accordance with
Section 5.1(d)(ii), together with a certificate showing that a change in the
Margin is required; provided, however, if the financial statements required by
Section 5.1(d)(ii) for the applicable quarters, together with the foregoing
certificate, are not delivered within the required time period, then, until such
delivery the "Margin" shall be deemed to be 0.85%. Notwithstanding the
foregoing, until the financial statements for the quarter ended June 30, 1998
are delivered pursuant to Section 5.1(d)(ii), the Margin shall be based on the
financial statements delivered to Agent for the quarter ended March 31, 1998.
"Material Adverse Event" means any event, occurrence or state of facts
which has or could reasonably be expected to have a material adverse effect on
the business, properties, assets, operations, condition (financial or otherwise)
of the Company or any of its Subsidiaries.
"Multiemployer Plan" means any "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
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"Net Income" means, for any period, the net income of the Company and
its consolidated Subsidiaries after taxes, determined on a consolidated basis in
accordance with GAAP.
"Notes" means the promissory note(s) of the Company evidencing the
Advances in the form of Exhibit 2.1, executed and delivered by the Company to
each Lender, together with any promissory note or notes issued in exchange or
replacement therefore.
"Obligations" means the principal of and interest on the Advances and
all other indebtedness, obligations and liabilities of the Company to any Lender
under, arising out of or in connection with this Agreement or any other Loan
Document (including indemnities, fees and expenses), whether now existing or
hereafter incurred, direct or indirect, absolute or contingent, matured or
unmatured, joint or several, whether for principal, interest, reimbursement
obligations, fees, expenses or otherwise, and the due performance and compliance
by the Company and its Subsidiaries with the terms and conditions of this
Agreement and the other Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Percentage" means each Lender's pro-rata share of the Total Commitment
of the Lenders expressed as a percentage as set forth on the signature pages of
this Agreement, as such Percentage may from time to time be amended.
"Permits" means any and all licenses, permits, orders, decrees or
approvals which are required under Governmental Regulations in connection with
any of the businesses or properties of any Loan Party.
"Permitted Liens" means Liens permitted by Section 5.2(e).
"Plan" means, with respect to any person, any pension plan (other than
a Multiemployer Plan) subject to Title IV of ERISA or to the minimum funding
standards of Section 412 of the Code which has been established or maintained by
such person, any Subsidiary or such person or any ERISA Affiliate, or by any
other person if such person, any Subsidiary or such person or any ERISA
Affiliate could have liability with respect to such pension plan.
"Prime Rate" means the per annum rate equal to the prime rate of
interest as announced by NBD at its principal office at Detroit, Michigan, as in
effect from time to time, which rate may not be the lowest rate charged by NBD
to any of its customers, which Prime Rate shall change simultaneously with any
change in such announced prime rate.
"Prohibited Transaction" means any transaction involving any Plan which
is proscribed by Section 406 of ERISA or Section 4975 of the Code.
"Reportable Event" means a reportable event as described in Section
4043(b) of ERISA including those events as to which the 30-day notice period is
waived under Part 2615 of the regulations promulgated by the PBGC under ERISA.
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"Required Lenders" means those Lenders which hold at least 66-2/3% of
the outstanding Advances, or if no Advances are outstanding, 66-2/3% of the
Total Commitments.
"Subordinated Debt" shall mean Indebtedness of the Company or any of
its Subsidiaries which is incurred after the Effective Date with the written
consent of the Required Lenders; provided that such Indebtedness is made
subordinate to the Obligations on terms reasonably satisfactory to the Required
Lenders; and provided further that, unless otherwise agreed to by the Required
Lenders, the Agent shall take custody and possession of all original notes or
other evidence of such Indebtedness.
"Subsidiary" of any person means any other person (whether now existing
or hereafter organized or acquired) in which (other than directors qualifying
shares required by law) at least a majority of the securities or other ownership
interests of each class having ordinary voting power or analogous right (other
than securities or other ownership interests which have such power or right only
by reason of the happening of a contingency), at the time as of which any
determination is being made, are owned, beneficially and of record, by such
person or by one or more of the other Subsidiaries of such person or by any
combination thereof.
"Tangible Net Worth" means, as of any date, (a) the amount of any
capital stock, paid in capital and similar equity accounts of the Company and
its consolidated Subsidiaries plus (or minus in the case of a deficit) the
capital surplus and retained earnings of the Company and its consolidated
Subsidiaries, minus (b) the amount of any treasury stock reflected on such
balance sheet, minus (c) any amount attributable to the write-up of assets
(other than marketable securities) on or after September 30, 1997, minus (d) the
net book value of all items of the following character which are included in the
assets of the Company and its consolidated Subsidiaries as of such date: (i)
goodwill, including the excess of cost over book value of any asset; (ii)
organization or experimental expenses; (iii) unamortized debt discount and
expense; (iv) patents, trademarks, trade names and copyrights; (v) franchises,
licenses and permits; (vi) amounts due from Affiliates and (vii) all other
assets which are deemed intangible assets under GAAP.
"Termination Date" means the earlier to occur of (a) June 8, 1999 and
(b) the date on which the Commitments shall be terminated pursuant to the
provisions of this Agreement.
"Total Commitment" means the aggregate amount of all Lender's
Commitments, as the same may be reduced pursuant to Section 2.4 or hereafter
amended from time to time.
"Total Liabilities" means, as of the date of determination, the total
liabilities of the Company and its consolidated Subsidiaries that would properly
be classified as a liability under GAAP.
"Type of Advance" means a Floating Rate Advance or a Eurodollar Rate
Advance.
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1.2 Certain Rules of Construction. For purposes of this Agreement:
(a) Certain References. The words "herein," "hereof," and "hereunder,"
and words of similar import, refer to this Agreement as a whole and not to any
particular provision of this Agreement, and references to Articles, Sections,
Exhibits or Schedules, and similar references, are to Articles or Sections of,
or Exhibits or Schedules to, this Agreement unless otherwise specified.
(b) General Rules. Unless the context otherwise requires: (i) the
singular includes the plural, and vice versa; (ii) all definitions and
references to an agreement, instrument or document shall mean such agreement,
instrument or document together with all exhibits and schedules thereto and any
and all amendments, supplements or modifications thereto as the same may be in
effect at the time such definition or reference is applicable for any purpose;
(iii) all references to any party shall include such party's successors and
permitted assigns; (iv) the term "including" means including, without
limitation; and (v) reasonable attorneys' fees shall include reasonably
allocated costs of in-house counsel.
(c) Accounting Terms. All accounting terms used herein which are not
expressly defined in this Agreement shall have the meanings given to them in
accordance with GAAP, all computations made pursuant to this Agreement shall be
made in accordance with GAAP, and all financial statements shall be prepared in
accordance with GAAP.
ARTICLE II
CREDIT FACILITY AND ADVANCES
2.1 Commitments of the Lenders.
(a) Commitments. Subject to the terms and conditions of this Agreement,
each Lender agrees, for itself only, to make Advances to the Company from time
to time from the Effective Date until the Termination Date on any Business Day
up to an aggregate principal amount at any time outstanding not to exceed the
amount set forth opposite its name on the signature pages hereof as its
Commitment.
(b) Notes. The Advances made by Lenders shall be evidenced by, and be
payable in accordance with the terms of, the Notes made by the Company payable
to the order of each Lender. The Company and Lenders hereby irrevocably
authorize the Agent to make or cause to be made, at or about the time of each
Advance made by the Agent, an appropriate notation on the records of the Agent,
reflecting the principal amount Type of Advance and Loan Period of such Advance,
and the Agent shall make or cause to be made, on or about the time of receipt of
payment of any principal of the Note, an appropriate notation on its records
reflecting such payment. The aggregate amount of all Advances set forth on the
records of the Agent shall be rebuttable presumptive evidence of the principal
amount and accrued interest owing and unpaid on a Lender's Note.
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(c) Facility Fee. The Company agrees to pay to the Agent for the
benefit of the Lenders (pro rata according to each Lender's Percentage) a
facility fee computed at the per annum rate equal to the applicable Facility
Margin on the Total Commitments. Such facility fee shall accrue from and after
the Effective Date and shall be due and payable quarterly in arrears, beginning
on July 1, 1998 and on the first day of each fiscal quarter of the Company
thereafter through the Termination Date, with any accrued but unpaid facility
fee due on the Termination Date. Such fees will be debited by the Agent from
account no. 16 128 53 of the Company maintained at the main office of the Agent
(unless the Company otherwise instructs the Agent in writing). The Agent will
furnish to the Company written notice thereof setting out the details of such
calculation on or before the tenth Business Day following the end of the fiscal
quarter.
2.2 Requesting Advances.
(a) Types of Advances. Each Advance may be either a Floating Rate
Advance or a Eurodollar Rate Advance (each being herein called a "Type of
Advance"). Except for Advances which exhaust the entire remaining amount of the
Commitment, the principal amount of each Floating Rate Advance will be at least
$100,000 or a higher integral multiple of $100,000, and the principal amount of
each Eurodollar Rate Advance, will be at least $1,000,000, or a higher integral
multiple of $100,000.
(b) Requests for Advances. The Company will give the Agent notice of
each proposed Advance: (a) in the case of a Floating Rate Advance, not later
than 2:00 p.m., Detroit time, on the proposed Funding Date of such Floating Rate
Advance; and (b) in the case of a Eurodollar Rate Advance, not later than 2:00
p.m., Detroit time, on a day which is at least three Business Days prior to the
Funding Date of such Eurodollar Rate Advance. Any notice received after the hour
specified above, shall be deemed to be notice given prior to such hour on the
next succeeding Business Day. Each such request shall be effective upon receipt
by the Agent, shall be in writing or by telephone to be promptly confirmed in
writing (to be in the form of Exhibit 2.2), and shall specify the Type of
Advance, the Funding Date and the principal amount for each Advance and, for any
Eurodollar Rate Advance, the Loan Period thereof.
(c) Conversion of Advances; Procedures. So long as no Default or Event
of Default exists and is continuing, the Company may convert all or any part of
any outstanding Floating Rate Advance into a Eurodollar Rate Advance, if
available, by giving notice to the Agent of such conversion not later than 2:00
p.m., Detroit time, on a date which is at least three Business Days prior to the
date of the requested conversion. Each such notice shall be effective upon
receipt by the Agent, shall be in writing or by telephone to be promptly
confirmed in writing (in either case, to be in the form of Exhibit 2.2), shall
specify the Funding Date, Type of Advance, the total principal amount to be so
converted and the Advance Period therefor. Each conversion of a Floating Rate
Advance into a Eurodollar Rate Advance shall be on a Business Day, and in an
amount as provided in Section 2.2(a).
(d) Procedures at End of Loan Period.
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(i) Automatic Conversion. Unless the Company requests a new
Eurodollar Rate Advance in accordance with subsection (b) above or repays the
applicable Advance, the Agent shall automatically and without request by the
Company, on the last day of the applicable Loan Period, convert each Eurodollar
Rate Advance to a Floating Rate Advance.
(ii) Extension. So long as no Default or Event of Default
exists and is continuing, and subject to the limitations set forth in Section
2.2(a), the Company may cause all or any part of any outstanding Eurodollar Rate
Advance to continue to bear interest at an Adjusted Eurodollar Rate, if
available, at the end of the then-applicable Loan Period, by notifying the Agent
not later than 2:00 p.m., Detroit time, at least three Business Days prior to
the new Funding Date. Each such notice shall be effective upon receipt by the
Agent and shall be in writing or by telephone to be promptly confirmed in
writing (in either case to be in the form of Exhibit 2.2), and shall specify the
Type of Advance, the first day of the applicable Loan Period, the principal
amount of the new Eurodollar Rate Advance and the Loan Period therefor. Each new
Loan Period for Eurodollar Rate Advances shall begin on a Business Day and the
aggregate amount of the Advances bearing the new Adjusted Eurodollar Rate shall
be in an amount as provided in Section 2.2(a).
(e) Reaffirmation. Each request for an Advance shall be deemed a
representation and warranty by the Company that all conditions precedent to such
Advance under Article III are satisfied as of the date of such request and as of
the date of such Advance.
2.3 Funding Advances.
(a) Funding by Agent. Upon fulfillment of the applicable conditions set
forth in Article III of this Agreement, and subject to the Agent's receipt of
funds in accordance with Section 2.3(b) below, the Agent will not later than
4:15 p.m., Detroit time, on the proposed Funding Date of each Advance, make
available to the Company the requested Advance by depositing the amounts
thereof, in immediately available funds, in account no. 16 128 53 of the Company
maintained at the main office of the Agent (unless the Company otherwise
instructs the Agent in writing to pay such funds elsewhere).
(b) Funding by Lenders. On each Funding Date, not later than 4:00 p.m.,
Detroit time, each Lender shall make its pro rata portion necessary to fund its
appropriate Percentage of the Advances available at the principal office of the
Agent in immediately available funds for disbursement to the Company. If and to
the extent such Lender shall not have so made its pro rata portion necessary to
fund its appropriate Percentage of the Advances to the Agent, the Agent may (but
shall not be obligated to) make such amount available to the Company (herein
called an "Interim Advance") and such Lender and the Company severally agree to
pay to the Agent forthwith on demand an amount equal to such Interim Advance,
together with interest thereon, for each day from such Funding Date until the
date such Interim Advance is repaid to the Agent at a rate per annum equal to
(i) the Federal Funds Rate, in the event such Interim Advance is repaid to the
Agent by such Lender, or (ii) the Floating Rate during such period, in the event
such Interim Advance is repaid to the Agent by the Company. If such Lender pays
an amount equal to the Interim Advance, together with interest as provided
above, to the Agent, such amount so paid shall
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constitute an Advance by such Lender for the purpose of this Agreement as of
such Funding Date. The failure of any Lender ("Defaulting Lender") to make pro
rata portion necessary to fund its applicable Percentage of the Advances
available to the Agent on a Funding Date shall not relieve any other Lender of
its obligation to make available to the Agent its pro rata share necessary to
fund its Percentage of an Advance on the applicable Funding Date, but neither
the Agent nor any other Lender shall be responsible for, nor have any liability
to the Company as a result of, the failure of such Defaulting Lender to make
such pro rata portion necessary to fund its Percentage of the Advances available
to the Agent; provided, however, that the foregoing shall not affect or limit
any liability of the Defaulting Lender individually to the Company or the Agent
for such failure by the Defaulting Lender.
(c) Advancing Branch. Each Lender may, at its option, elect to make,
fund or maintain any Advance hereunder at the branch or office specified under
its signature hereto or such other of its branches or offices as such Lender may
from time to time elect.
2.4 Termination or Reduction of Commitment.
(a) Optional. The Company has the right to terminate or reduce the
Total Commitments at any time and from time to time, in which case the Total
Commitments shall be terminated or permanently reduced by the amount so
specified, as the case may be (with any reduction causing a pro rata reduction
in each Lender's Commitment); provided, however, that (i) the Company shall give
notice of such termination or reduction in writing to the Agent at least five
Business Days in advance thereof, specifying the amount by which the Total
Commitment is being reduced and effective date thereof, (ii) each partial
reduction shall be in a minimum amount of $5,000,000 and in integral multiples
of $500,000, (iii) no such termination or reduction shall be permitted with
respect to any portion as to which a request for an Advance is then pending,
(iv) the Total Commitment may not be reduced below the balance of any Advances
then outstanding. The termination or reduction of the amount of the Total
Commitments pursuant to this Section 2.4 shall be permanent and may not be
reinstated.
(b) Termination by Lenders. The Commitments, and thus the obligation of
the Lenders to make Advances, shall terminate:
(i) Immediately and without further action upon the occurrence
of an Event of Default of the nature referred to in clause (h) of
Section 6.1; or
(ii) Immediately when any Event of Default (other than of the
nature specified in clause (h) of Section 6.1) shall have occurred and
be continuing and either (A) the Required Lenders shall have demanded
payment of the Notes, or (B) the Required Lenders shall elect to
terminate the Commitments by giving written notice to the Company for
purposes of this clause.
(c) Default Interest. Upon the occurrence of an Event of Default under
Section 6.1(a) and during the continuation thereof, the principal amount of the
Obligations shall bear interest at the applicable Default Rate. At the
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election of the Required Lenders, upon the occurrence of an Event of Default
other than under Section 6.1(a), and during the continuation thereof, the
principal amount of the Obligations shall bear interest at the applicable
Default Rate.
2.5 Interest and Principal Repayment.
(a) Regular Interest Payments. The Company will pay interest to the
Agent for the benefit of the Lenders at the Applicable Rate on the unpaid
principal amount of each Advance as follows:
(i) Floating Rate Advances. Accrued and unpaid interest on
Floating Rate Advances shall be payable: (A) on each Interest Payment Date; (B)
as to any portion of a Floating Rate Advance which is converted to a Eurodollar
Rate Advance, on the date of such conversion; and (C) on the Termination Date.
(ii) Eurodollar Rate Advances. Accrued and unpaid interest on
Eurodollar Rate Advances shall be payable on the last day of each Loan Period
and, if the Loan Period exceeds three months, on each Interest Payment Date
until the end of the applicable Loan Period.
(b) Principal. The principal amount of the Advances shall be payable to
the Agent for the benefit of the Lenders immediately upon the earlier of (i) the
occurrence of an Event of Default and acceleration of the Obligations as a
result thereof, or (ii) termination of this Agreement. Payments will be applied
by the Agent as provided in Section 6.2.
(c) Optional Prepayment. The Company may at any time and from time to
time prepay all or a portion of the Advances, without premium or penalty;
provided, however, that each prepayment of a Floating Rate Advance shall be in a
minimum amount of $100,000 and in an integral multiple of $100,000 and each
prepayment of a Eurodollar Rate Advance shall be in a minimum amount of
$1,000,000 and in integral multiple of $100,000; and provided further that any
prepayment of a Eurodollar Rate Advance which is made on a day other than the
last day of a Loan Period shall be accompanied by the indemnity payment set
forth in Section 2.10(d) below.
(d) Final Payment. Unless earlier payment is required under this
Agreement, Company will pay to the Agent for the account of the Lenders, the
outstanding principal amount of all outstanding Advances on the Termination
Date. Principal payments will be applied by the Agent as provided in Section
6.2.
2.6 Payments by Company. The Company will make all payments of interest
on and principal of the Advances and fees and other payments due under this
Agreement or any other Loan Document in immediately available funds to Agent, at
the office specified by Agent from time to time, for the ratable benefit of the
Lenders or the holders of the Notes as provided in this Agreement.
Notwithstanding the foregoing, all fees payable to the Agent with respect to its
services hereunder shall be payable by the Company for the sole benefit of the
Agent. Unless otherwise requested in writing by the Company, the Agent will fund
payments as set forth in the next sentence. The Company
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authorizes the Agent to fund payments of interest, fees, costs and expenses and
other amounts due the Agent or any Lender under this Agreement or any of the
Loan Documents by charging such amount against the Company's account specified
in Section 2.3(a), or if sufficient funds are not available in such account,
then as a Floating Rate Advance.
2.7 Remittance by Agent.
(a) Payments to Lenders. The Agent shall remit to each Lender its share
of payments in immediately available funds (i) in the case of payments of
principal of any Advances or interest on any Advances, on the date payments are
made, according to its pro rata share of such payment based on its actual
outstanding Advances from time to time; and, (ii) in the case of fees paid
pursuant to Sections 2.1(c) and other amounts payable hereunder (other than the
amounts payable to the Agent under Section 2.9 or to the Agent or any Lender
under Sections 8.4 or 8.5), on the date payments are made, determined with
respect to each such Lender by its pro rata share of such fee or other amount.
(b) Payment of Interest by Agent. If the Agent fails to remit to any
Lender its share of any such payment received by the Agent from the Company by
5:00 p.m., Detroit time, or by the close of business of such Lender, whichever
occurs later, on the day such payment is to be made by the Agent under Section
2.7(a), the Agent shall pay to such Lender interest on such Lender's share of
such payment at the Federal Funds Rate until such share of such payment is
received by such Lender (unless waived by such Lender).
(c) No Setoff or Deduction. All payments of principal of and interest
on the Advances and other Obligations shall be paid by the Company without
setoff, or counterclaim, and free and clear of, and without deduction or
withholding for, or on account of, any present or future taxes, levies, imposts,
duties, fees, assessments or other charges of any nature whatsoever, whether
imposed by any governmental authority or by any department, agency or taxing
authority or other Person.
(d) Payment on Non-Business Day; Payment Computations. Except as
otherwise provided in this Agreement, whenever any installment of principal of,
or interest on, any Advance or any other Obligation becomes due and payable on a
day which is not a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day and, in the case of any installment of principal,
interest shall be payable thereon at the Applicable Rate (or Default Rate if
applicable), determined in accordance with this Agreement during such extension.
Computations of interest, fees and other amounts due under this Agreement shall
be made on the basis of a year of 360 days, for the actual number of days
elapsed, including the first day but excluding the last day of the relevant
period.
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2.8 Set-Off; etc.
(a) After Default. Upon the occurrence of an Event of Default and
acceleration of the Obligations, each Lender is hereby authorized at any time
and from time to time, without notice to the Company (any such notice being
expressly waived by the Company), to set-off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender to or for the credit or the
account of the Company, including specifically any amounts held in any account
maintained at such Lender, against any and all Obligations. Each Lender agrees
to give prompt written notice to the Company after exercising such right of
set-off, provided, that the failure to give such notice will not affect the
validity of any set-off nor give rise to any claim or defense of any Loan Party
against the Agent or any Lender. Any amount set off by a Lender shall be applied
to the Obligations in accordance with the provisions of Section 6.2 below.
(b) Sharing. If any Lender or any holder of any Note shall obtain any
payment (whether voluntary, involuntary, by application of offset or otherwise)
upon any Obligation which is to be shared under this Agreement or any other Loan
Document in excess of its share of such payment, then such Lender or other
holders shall purchase from the other Lenders or the other holder of Notes such
participation in the relevant Obligation as shall be necessary for such
purchasing Lender or holder to share the excess payment ratably with such other
Lenders or other holder according to the terms of this Agreement; provided,
however, that, if all or any portion of the excess payment is thereafter
recovered from such purchasing Lender or holder, the purchase shall be rescinded
and the purchase price restored to the extent of such recovery, but without
interest. The Company agrees that any Lender or holder so purchasing a
participation from another Lender or holder pursuant to this section may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender or holder were the direct creditor of the Company in the amount of such
participation.
2.9 Servicing Fees. The Company agrees to pay to the Agent such fees
agreed to by the Company and the Agent as set forth in the letter dated June 10,
1997, from Marguerite Mullins to John Retherford.
2.10 Additional Costs; Illegality and Impossibility.
(a) Taxes or Reserves. In the event that any Governmental Regulation
now or hereafter in effect and whether or not presently applicable to the
Lenders, or any interpretation or administration thereof by any governmental
authority charged with the interpretation or administration thereof, or
compliance by any Lender with any request or directive of any such authority
(whether or not having the force of law), shall (i) affect the basis of taxation
of payment to any Lender of any amounts payable by the Company under this
Agreement (other than taxes imposed on the overall net income of any Lender), or
(ii) impose, modify or deem applicable any reserve, special deposit, deposit
insurance or similar requirement against assets of, deposits with or for the
account of, or credit extended by any Lender, or (iii) impose
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any other condition with respect to this Agreement, the Notes or any of the
Advances and the result of any of the foregoing is to increase the cost to any
Lender of making, funding or maintaining any of the Advances or to reduce the
amount of any sum receivable by any Lender thereon, then the Company will pay to
such Lender, from time to time upon request by such Lender, additional amounts
sufficient to compensate such Lender for such increased cost to or reduced sum
receivable by such Lender to the extent such Lender is not expressly compensated
therefor in the computation of the interest rate applicable to the Advances;
provided, that the Company shall not be required to pay such compensation to the
extent such increase is attributable to a factor which is not generally
applicable to all banks organized under the same authority as the bank or is
attributable to an increase in deposit insurance rates to levels which do not
exceed those in effect at the date of this agreement, without application of any
retroactive adjustment or rebate. If any Lender seeks reimbursement, it shall
give the Company and the Agent written notice, in reasonable detail, of the law,
rule or regulation, or interpretation or administration thereof, which may give
rise to the increased cost or reduced sum receivable to such Lender and the
reimbursement obligation of the Company. The Company shall not be obligated to
pay any such amount to the extent it was incurred by such Lender more than 90
calendar days prior to the date of delivery of such written notice.
(b) Capital. In the event that any Governmental Regulation now or
hereafter in effect and whether or not presently applicable to any Lender, or
any interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or compliance by any
Lender with any guideline, request or directive of any such authority (whether
or not having the force of law), including any risk based capital guidelines
(excluding, however, any capital rules heretofore adopted and issued by any
governmental authority and presently in effect, but including any change in, or
in the interpretation of, any of such capital rules), affects or would affect
the amount of capital required or expected to be maintained by a Lender (or any
corporation controlling a Lender) and the Lender determines that the amount of
such capital is increased by or based upon the existence of such Lender's
obligations hereunder and such increase has the effect of reducing the rate of
return on such Lender's (or such Lender's controlling corporation's) capital as
a consequence of such obligations hereunder to a level below that which such
Lender (or such controlling corporation) could have achieved but for such
circumstances (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then the Company
will pay to such Lender additional amounts sufficient to compensate such Lender
(or such Lender's controlling corporation) for any increase in the amount of
capital and reduced rate of return which such Lender reasonably determines to be
allocable to the existence of its obligations hereunder; provided, that, the
Company shall not be required to pay such compensation to any Lender, to the
extent such reduction is attributable to any such law, rule or regulations, or
interpretation or administration thereof, or request or directive, as the case
may be, that is not generally applicable to all banks organized under the same
authority as such Lender (i.e., if the Lender is a State of Michigan chartered
bank, all State of Michigan chartered banks). If a Lender seeks reimbursement,
it shall give the Company and the Agent written notice, and reasonable detail,
of the law, rule or regulation, or interpretation or administration thereof,
which may give rise to the increased cost and the reimbursement obligation of
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the Company. The Company shall not be obligated to pay any such amount to the
extent it was incurred by such Lender more than 90 calendar days prior to the
date of delivery of such written notice.
(c) Illegality and Impossibility.
(i) Repayment. In the event that any Governmental Regulation
now or hereafter in effect and whether or not presently applicable to any
Lender, or any interpretation or administration thereof by any governmental
authority (including the Board of Governors Reserve System) charged with the
interpretation or administration thereof, or compliance by any Lender with any
request or directive of such authority (whether or not having the force of law),
including exchange controls, shall make it unlawful or impossible for such
Lender to maintain any Eurodollar Rate Advance at the Adjusted Eurodollar Rate
under this Agreement, the Company shall, upon receipt of notice thereof from
such Lender to the Company and the Agent, repay in full to such Lender the then
outstanding principal amount of such Eurodollar Rate Advance, together with all
accrued interest thereon to the date of payment and all amounts due to such
Lender under Section 2.10(d), (i) on the last day of the then current Loan
Period applicable to the Advance if such Lender may lawfully continue to
maintain such Advance at the Adjusted Eurodollar Rate to such day, or (ii)
immediately if such Lender may not continue to maintain such Advance at the
Adjusted Eurodollar Rate to such day.
(ii) Conversion of Eurodollar Rate Advances to Floating Rate
Advances. Notwithstanding Section 2.10(c)(i), if such Section would otherwise be
applicable, but a Lender could lawfully maintain the Eurodollar Rate Advances at
the Floating Rate then, during such period as such Lender cannot maintain the
Eurodollar Rate Advances at the Adjusted Eurodollar Rate, the Eurodollar Rate
Advances shall bear interest at a per annum rate equal to the Floating Rate in
effect from time to time. If all events or conditions making it unlawful or
impossible for such Lender to maintain the Eurodollar Rate Advances at the
Adjusted Eurodollar Rate cease to exist, then the Eurodollar Rate Advances shall
again bear interest at the Adjusted Eurodollar Rate, commencing on the first day
of the next Loan Period immediately following the date all such events and
conditions so cease to exist.
(d) Indemnity. If the Company fails to make any payment of principal or
interest in respect of any Eurodollar Rate Advance when due or makes any payment
or prepayment of the principal of any Eurodollar Rate Advance, for any reason,
on any date other than the last day of the Loan Period applicable thereto or if
the rate of interest with respect to any Eurodollar Rate Advance shall be
converted from the Adjusted Eurodollar Rate, pursuant to Section 2.10(c), on a
date other than the last day of the Loan Period applicable thereto, or if the
Company fails to borrow any Eurodollar Rate Advance after requesting the same in
accordance with this Agreement, the Company shall reimburse the Lender upon
written demand for any resulting loss or expense incurred by such Lender,
including any loss incurred in obtaining, liquidating or employing deposits from
third parties. Any written demand shall include a statement as to the amount of
such loss or expense, and be prepared in good faith and in reasonable detail and
shall be submitted by such Lender to the Company and the Agent. Calculation of
all amounts payable to a Lender under this Section with regard to Eurodollar
Rate Advances shall be made as though
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such Lender shall have funded or committed to fund such through the purchase of
an underlying deposit in an amount equal to such Advances and having a maturity
comparable to such Advances; provided, however, that each Lender may fund the
Eurodollar Rate Advances in any manner it sees fit and the foregoing assumption
shall be utilized only for the purpose of calculation of amounts payable under
this Section.
2.11 Withholding Tax Exemption. At least five Business Days prior to
the first date on which interest or fees are payable hereunder for the account
of any Lender, each Lender that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that it will deliver to each of
the Company and the Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, certifying in either case that such Lender is
entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes. Each Lender
which so delivers a Form 1001 or 4224 further undertakes to deliver to each of
the Company and the Agent two additional copies of such form (or a successor
form) on or before the date that such form expires (currently, three successive
calendar years for Form 1001 and one calendar year for Form 4224) or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent forms so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Company or the Agent, in
each case certifying that such Lender is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes, unless an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender advises the Company and the agent that
it is not capable of receiving payments without any deduction or withholding of
United States federal income tax.
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ARTICLE III
CONDITIONS PRECEDENT TO ADVANCES
3.1 Conditions for Initial Advances. The obligations of the Lenders to
restructure the Existing Indebtedness and make any Advances on the Effective
Date is subject to receipt by the Agent of the following documents and
completion of the following matters, in form and substance satisfactory to the
Agent and the Required Lenders:
(a) Charter Documents. On or prior to June 19, 1998, certificates of
recent date of the appropriate authority or official of the State of Minnesota,
the Territory of the Virgin Islands and the Netherlands, as appropriate listing
all charter documents of the Company and each other Loan Party on file in that
office and certifying as to the satisfactory status and corporate existence of
the Company and each other Loan Party, together with copies of such charter
documents of the Company and each other Loan Party certified as of a recent date
by such authority or official and certified as true and correct as of the
Effective Date by a duly authorized officer, respectively, of the Company and
each other Loan Party.
(b) Bylaws and Corporate Authorizations. On or prior to June 19, 1998,
copies of the bylaws of the Company and each other Loan Party together with all
authorizing resolutions and evidence of other corporate action taken by the
Company and each other Loan Party to authorize the execution, delivery and
performance by the Company and each other Loan Party of this Agreement and the
other Loan Documents and the consummation by the Company and each other Loan
Party of the transactions contemplated hereby, certified as true and correct as
of the Effective Date by a duly authorized officer, respectively, of the Company
and each other Loan Party.
(c) Incumbency Certificate. On or prior to June 19, 1998, certificates
of incumbency of the Company and each other Loan Party containing, and attesting
to the genuineness of, the signatures of those officers authorized to act on
behalf of the Company and each other Loan Party in connection with this
Agreement and the other Loan Documents and the consummation by such person of
the transactions contemplated hereby, certified as true and correct as of the
Effective Date by a duly authorized officer, of the Company and each other Loan
Party, respectively.
(d) Notes. On or prior to the Effective Date, the Notes, executed and
delivered by a duly authorized officer of the Company.
(e) Guaranties. On or prior to the Effective Date, the Guaranties in
substantially the form of Exhibit 3.1(e), executed and delivered by the
Guarantors.
(f) Legal Opinions. On or prior to June 19, 1998, the written opinion
of counsel for the Company in the form of Exhibit 3.1(f).
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(g) Consents, Approvals, Etc. On or prior to the Effective Date, copies
of all governmental and nongovernmental consents, approvals, authorization,
declarations, registrations or filings, if any, required on the part of the Loan
Parties in connection with the execution, delivery and performance of this
Agreement and the other Loan Documents or the transactions contemplated hereby
or as a condition to the legality, validity or enforceability of this Agreement
or the other Loan Documents, certified as true and correct and in full force and
effect as of the Effective Date by a duly authorized officer of each Loan Party.
(h) Satisfaction of Legal Counsel. On or prior to the Effective Date,
satisfaction of legal counsel to the Agent with all documents and instruments
delivered hereunder or under any other Loan Document and all proceedings related
to the consummation of the transactions contemplated by this Agreement and the
other Loan Documents, and delivery to the Agent and such legal counsel of copies
(executed or certified as may be appropriate) of all other legal documents or
proceedings which the Agent or such legal counsel may reasonably request in
connection with the consummation of such transactions.
3.2 Further Conditions for Advances. The obligation of the Lenders to
make any Advance is further subject to the satisfaction of the following
conditions precedent on each Funding Date:
(a) Representations True. The representations and warranties contained
in Article IV of this Agreement shall be true and correct on and as of any
Funding Date where (i) a Eurodollar Rate Advance is advanced or extended or (ii)
the aggregate principal amount of all Advances is increased (both before and
after such Advance is made), as if such representations and warranties were made
on and as of such date.
(b) No Default. No Default or Event of Default shall exist or shall
have occurred and be continuing on such Funding Date (both before and after such
Advance is made).
(c) No Material Adverse Event. Nothing shall have occurred since
September 30, 1997, or, if later, the date of the audited financial statements
most recently delivered to the Agent and the Lenders, which the Agent or the
Required Lenders shall determine either (i) constitutes a Material Adverse Event
or (ii) has, or may have, a material adverse effect on the rights or remedies of
the Agent and the Lenders under this Agreement or any other Loan Document.
(d) Request for Advances. In the case of any Advance, the Agent shall
have timely received the request for Advance in accordance with Section 2.3, in
form and substance reasonably satisfactory to the Agent.
The Company will be deemed to have made a representation and warranty to the
Agent and the Lenders at the time of making of each Advance to the effect set
forth in clauses (a) and (b) of this Section 3.2. For purposes of this Section
3.2, the representations and warranties contained in Section 4.6 shall be deemed
made with respect to the most recent financial statements delivered pursuant to
Section 5.1(d).
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and the Lenders as
follows, on the Effective Date and on each Funding Date:
4.1 Corporate Existence and Power. Each Loan Party is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its corporation, and is duly qualified to do business, and is in good
standing, in all applicable jurisdictions where such qualification is necessary
under applicable law and the failure to be so qualified would constitute a
Material Adverse Event. Each Loan Party has all requisite corporate power to own
or lease the properties used in its business and to carry on its business as now
being conducted and as proposed to be conducted, and to execute and deliver this
Agreement and the other Loan Documents to which it is a party and to engage in
the transactions contemplated by this Agreement.
4.2 Corporate Authority. The execution, delivery and performance by the
Company of this Agreement and by the respective Loan Parties of the other Loan
Documents have been duly authorized by all necessary corporate action does not
require any approval or consent of, or any registration, qualification or filing
with, any Governmental Authority or consent of any other Person, does not and
will not conflict with, result in any violation of or constitute any default
under, any provision of the Articles of Incorporation or By-laws of any Loan
Party, any material agreement binding on or applicable to a Loan Party or any of
its property, and are not in contravention of any law, Governmental Regulations,
court decree or order, or By-laws, or of any contract or undertaking to which
any Loan Party is a party or by which any Loan Party or its property may be
bound or affected and have a Material Adverse Effect and do not result in the
creation or imposition of any Lien.
4.3 Binding Effect. This Agreement is, and each of the Loan Documents
when delivered hereunder will be, the legal, valid, and binding obligations of
each Loan Party, enforceable against the respective Loan Party in accordance
with their respective terms.
4.4 Subsidiaries. All Subsidiaries of the Company are listed on
Schedule 4.4, together with their jurisdiction of incorporation or formation and
the ownership of their stock or other equity interests. The Company may from
time to time submit updates to Schedule 4.4 to the Agent as appropriate to keep
this representation correct. Ag-Chem Equipment International, Inc. has no
operations and assets worth no more than $10,000.
4.5 Litigation. Except as set forth in Schedule 4.5, there is no
action, suit or proceeding at law or equity, or before or by any Governmental
Authority pending or, to the best of the Company's knowledge, threatened against
or affecting any Loan Party which if adversely decided might result, either
individually or collectively, in any Material Adverse Event or in any adverse
effect on the legality, validity or enforceability of this Agreement or any
other Loan Document and, to the best of the Company's knowledge, there is no
basis for any such action, suit or proceeding; and no Loan Party in default
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with respect to any final judgment, writ, injunction, decree, rule or regulation
of any Governmental Authority where the effect of such default would be a
Material Adverse Event.
4.6 Financial Condition. The financial statements listed in Schedule
4.6, copies of which have been furnished to the Lenders, fairly present, and the
financial statements delivered pursuant to Section 5.1(d) will fairly present,
the financial position of the Company and its consolidated Subsidiaries as of
the respective dates thereof, and the results of operations and cash flow of the
Company and its consolidated Subsidiaries for the respective periods indicated,
all in accordance with GAAP consistently applied (subject, in the case of
interim statements, to normal, immaterial year-end audit adjustments). There has
been no Material Adverse Event since September 30, 1997. There is no undisclosed
material Contingent Liability of any Loan Party, which if determined adversely
to the Company and its consolidated Subsidiaries, would be a Material Adverse
Event, that is not reflected in such financial statements or in the notes
thereto.
4.7 Use of Advances. The Company will use the proceeds of the Advances
for its working capital and other general corporate purposes. The Company does
not extend or maintain, in the ordinary course of business, credit for the
purpose, whether immediate, incidental, or ultimate, of buying or carrying
margin stock (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System), and no part of the proceeds of any Advance will be
used by the Company for the purpose, whether immediate, incidental, or ultimate,
of buying or carrying any such margin stock or maintaining or extending credit
to others for any such purpose which violates, or which is inconsistent with,
any regulations promulgated by the Board of Governors of the Federal Reserve
System.
4.8 Consents, Etc. No consent, approval or authorization of or
declaration, registration or filing with any Governmental Authority or any
non-governmental person, including any creditor, lessor or shareholder of the
Company, is required on the part of any Loan Party in connection with the
execution, delivery and performance of this Agreement and the other Loan
Documents or the transactions contemplated hereby or as a condition to the
legality, validity or enforceability of this Agreement and the other Loan
Documents.
4.9 Taxes. Each Loan Party has filed all tax returns (federal, state
and local) required by Governmental Regulations to be filed and have paid all
taxes required to be paid, including interest and penalties, or has established
adequate financial reserves on its books and records for payment thereof. The
Company does not know of any actual or material proposed tax assessment or any
basis therefor, has no knowledge of any objections to or claims for additional
taxes by taxing authorities for subsequent years which could be a Material
Adverse Event, and no extension of time for the assessment of deficiencies in
any federal or state tax has been granted to any Loan Party.
4.10 Title to Properties. Except as otherwise disclosed in the latest
balance sheet delivered pursuant to Section 4.6 or 5.1(d) of this Agreement,
each Loan Party has a valid and indefeasible ownership interest in all of the
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properties and assets reflected in its balance sheet or subsequently acquired by
it. All of such properties and assets are free and clear of any Lien, except for
Permitted Liens.
4.11 Compliance with Governmental Regulations. Each Loan Party is in
compliance in all material respects with all Governmental Regulations (including
Environmental Laws) applicable to it or its business or properties. Without
limiting the generality of the foregoing, all Permits are in full force and
effect, no notice of any violation with a potential liability in excess of
$2,000,000 has been received in respect of any such Permits and no proceeding is
pending or, to the knowledge of the Company, threatened to terminate, revoke or
limit any such Permits.
4.12 ERISA. The Company, its ERISA Affiliates and their respective
Plans are in compliance in all material respects with those provisions of ERISA
and of the Code which are applicable with respect to any Plan. No Prohibited
Transaction or Reportable Event has occurred with respect to any such Plan.
Neither the Company nor any of its ERISA Affiliates are an employer with respect
to any Multiemployer Plan. Neither the Company nor any of its ERISA Affiliates
has established, maintained or contributed to any Multiemployer Plan during the
five (5) year period preceding the date of this Agreement. Neither the Company
nor any of its ERISA Affiliates have taken any action or failed to take any
action which, nor are there any other circumstances or events relating to any
Multiemployer Plan the occurrence of which, would result in the imposition on
the Company or any of its ERISA Affiliates of "withdrawal liability" within the
meaning of Section 4201 of ERISA. The Company and its ERISA Affiliates have met
the minimum funding requirements under ERISA and the Code with respect to each
of their respective Plans, if any, and have not incurred any liability to the
PBGC or any Plan; nor has the Company or its ERISA Affiliates engaged in a
transaction which would subject it to tax, penalty, or liability for prohibited
transactions imposed by ERISA or the Code. The execution, delivery and
performance of this Agreement and the other Loan Documents does not constitute a
Prohibited Transaction.
4.13 Environmental and Safety Matters. Except as disclosed in Schedule
4.13.
(a) Compliance. Each Loan Party is in compliance with all Environmental
Laws in jurisdictions in which it owns or operates, or has owned or operated, a
facility or site, or arranges or has arranged for disposal or treatment of
Hazardous Materials, accepts or has accepted for transport any Hazardous
Materials or holds or has held any interest in property, including the Company's
property, except where any non-compliance, individually or in the aggregate,
reasonably would not be expected to result in a Material Adverse Event.
(b) No Notices. No claim or demand, whether brought by any Governmental
Authority, private person or otherwise, arising under, relating to or in
connection with any Environmental Laws is pending or, to the best of the
Company's knowledge, threatened against any Loan Party, any property or any past
or present operation of any Loan Party which could result in a Material Adverse
Event.
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(c) Knowledge. The Company is not aware of any existing violation or
non-compliance of Environmental Laws at or about any property of a Loan Party,
and the Company does not have any knowledge of any actions commenced or
threatened by any party for or related to or arising out of non-compliance with
Environmental Laws which apply to any property, activities at any property or
Hazardous Materials at, from or affecting any property of a Loan Party and which
reasonably would be expected to result in a Material Adverse Event or a
liability in excess of $5,000,000. The Company is not aware that it is the
subject of any Governmental Authority investigation evaluating whether any
remedial action is needed to respond to a release of any Hazardous Materials in
the environment, and has not received any notice of any Hazardous Materials, or
upon any of its properties, in violation of any Environmental Laws which, in
either event, reasonably would be expected to result in a Material Adverse Event
or a liability in excess of $5,000,000. No property of the Company, and to the
best of the Company's knowledge, no property of any Loan Party, appears on the
National Priority List (as defined under federal law) or any state listing which
identifies sites for remedial clean-up or investigatory actions. To the best of
the Company's knowledge, none of the property has been contaminated with
substances which give rise to a clean-up obligation under any Environmental Law
or common law, which in the aggregate are reasonably expected to cost the Loan
Parties in excess of $5,000,000.
(d) Release. No release, threatened release or disposal of Hazardous
Materials is occurring or has occurred on, under or to any property, in which
any Loan Party holds any interest or performs any of its operations, in
violation of any Environmental Laws which reasonably could be expected to result
in a Material Adverse Event or a liability in excess of $5,000,000.
4.14 Investment Company Act; Unregistered Securities. The Company is
not an "investment company," or "principal underwriter," or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
4.15 Public Utility Holding Company. The Company is not a "holding
company" or a "subsidiary company" of a "holding company," or an "affiliate" of
a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
4.16 Disclosure. No report or other information furnished in writing by
or on behalf of the Agent or any Lender in connection with the negotiation or
administration of this Agreement contains any material misstatement of fact or
omits to state any material fact or any fact necessary to make the statements
contained therein not misleading. Neither this Agreement, the other Loan
Documents, nor any other document, certificate, or report or statement or other
information furnished the Agent or any Lender by or on behalf of any Loan Party
in connection with the transactions contemplated hereby, including any Advances
made hereunder, contains any untrue statement of a material fact or omits to
state a material fact in order to make the statements contained herein and
therein not misleading. There is no fact known to the Company which materially
and adversely affects, or which in the future could be expected to materially
and adversely affect, the business, properties, operations, condition, financial
or otherwise, or prospects of any Loan Party, which has not been set
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forth in this Agreement or in the other documents, certificates, statements,
reports and other information furnished in writing to the Agent by or on behalf
of any Loan Party in connection with the transactions contemplated hereby.
ARTICLE V
COVENANTS
5.1 Affirmative Covenants. The Company covenants and agrees that, until
the Termination Date and thereafter until payment in full of the principal of
and accrued interest on the Notes and the payment or performance of all other
Obligations, and unless the Required Lenders otherwise consent in writing, the
Company will, and will cause each Loan Party to:
(a) Preservation of Corporate Existence, Etc. Do or cause to be done
all things necessary to preserve, renew and keep in full force and effect its
legal existence, and its qualification as a foreign corporation in good standing
in each jurisdiction in which such qualification is necessary under applicable
Governmental Regulations and where the failure to be so qualified reasonably
could be expected to constitute a Material Adverse Event, and the Permits
(including those required under Environmental Laws), and intellectual property
material to the conduct of its businesses; and defend all of the foregoing
against all claims by or before any Governmental Authority.
(b) Compliance with Laws, Etc. Comply in all material respects with all
applicable Governmental Regulations (including ERISA, the Code and Environmental
Laws) in effect from time to time; and pay and discharge promptly when due all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income, revenues or property, before the same will become delinquent or in
default, as well as all lawful claims for labor, materials and supplies or
otherwise, which, if unpaid, might give rise to any Lien upon such properties or
any portion thereof, except to the extent that payment of any of the foregoing
is then being contested in good faith by appropriate legal proceedings and with
respect to which adequate financial reserves have been established on the books
and records of the Company.
(c) Maintenance of Properties; Insurance. Maintain, preserve and
protect all property that is material to the conduct of its business and keep
such property in good repair, working order and condition and from time to time
make, or cause to be made all needed and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times in
accordance with customary and prudent business practices for similar businesses;
and maintain in full force and effect insurance with responsible and reputable
insurance companies or associations in such amounts, on such terms and covering
such risks, including fire and other risks insured against by extended coverage,
as is usually carried by companies engaged in similar businesses and owning
similar properties similarly situated and maintain in full force and effect
public liability insurance, insurance against claims for personal injury or
death or property damage occurring in connection with any of its activities or
any of any properties owned, occupied or controlled by it, in
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such amounts as it reasonably will deem necessary, and maintain such other
insurance as may be required by Governmental Regulations or as reasonably may be
requested by the Agent for purposes of assuring compliance with this Section
5.1(c).
(d) Reporting Requirements. Furnish to the Agent and each Lender the
following:
(i) promptly and in any event within three Business Days after
becoming aware of the occurrence of (A) any Default or Event of Default, (B) the
commencement of any material litigation or Governmental Authority investigation
against, by or affecting a Loan Party or any of its properties or business
operations in which the damages claimed could exceed $2,000,000 or which is
otherwise material (other than litigation where insurance insures against the
damages claimed and the insurer has assumed defense of the litigation), and any
material developments therein, or (C) any development in the business or affairs
of any Loan Party which has resulted in or which is likely, in the reasonable
judgment of the Company, to result in a Material Adverse Event, a statement of
the Chief Financial Officer of the Company setting forth details of such Default
or Event of Default or such event or condition or such litigation and the action
which the affected person has taken and proposes to take with respect thereto;
(ii) as soon as available and in any event within 45 days
after the end of each fiscal quarter of the Company, the unaudited financial
statements of the Company and its consolidated Subsidiaries, consisting of a
balance sheet as of the close of such period and related statement of earnings
for the period commencing at the end of the previous fiscal year and ending with
the end of such quarter on a consolidated and consolidating basis, setting forth
in each case in comparative form the corresponding figures for the corresponding
date or period of the preceding fiscal year, all in reasonable detail and duly
certified (subject to normal, immaterial year-end audit adjustments) by the
Chief Financial Officer of the Company as having been prepared in accordance
with GAAP, together with a certificate of the Chief Financial Officer of the
Company stating that (A) no Default or Event of Default has occurred and is
continuing or, if any Default or Event of Default has occurred and is
continuing, a statement setting forth the details thereof and the action which
the applicable person has taken and proposes to take with respect thereto, and
(B) a computation (which computation will accompany such certificate and will be
in reasonable detail) showing compliance with Sections 5.2(a), (b) and (c) in
conformity with the terms of this Agreement. The financial statements described
in Section 5.1(d)(ii) will be accompanied by a certificate signed by the
Company's Chief Financial Officer stating that, to the best of his or her
knowledge, such unaudited financial statements fairly present the Company's
financial position as of the date and for the period covered subject, however,
to year-end adjustments which, in the aggregate, are not materially adverse and
are not likely to result in a Material Adverse Event.
(iii) as soon as available and in any event within 90 days
after the end of each fiscal year of the Company, a copy of the audited balance
sheet of the Company and its consolidated Subsidiaries and the related
statements of operations, stockholder's equity and cash flow, for such fiscal
year on a
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consolidated or consolidating basis, with a customary audit report of
independent certified public accountants selected by the Company and acceptable
to the Agent, without qualifications unacceptable to the Agent, together with a
certificate of the Chief Financial Officer of the Company stating that (A) no
Default or Event of Default has occurred or is continuing, or if any Default or
Event of Default has occurred and is continuing, a statement setting forth the
details thereof and the action which the applicable person has taken and
proposes to take with respect thereto, and (B) a computation (which computation
will accompany such certificate and will be in reasonable detail) showing
compliance with Sections 5.2(a) and (b), (c) in conformity with the terms of
this Agreement;
(iv) promptly after receipt thereof by the Company, copies of
any audit or management reports submitted to it by independent accountants in
connection with any audit, interim audit or other report submitted to the board
of directors (or other governing body) of the Company;
(v) promptly after the same are available, copies of each
annual report, proxy or financial statement or other communication sent to the
Company's stockholders and copies of all annual, regular, periodic and special
reports and registration statements which the Company may file or be required to
file with the Securities and Exchange Commission or with any securities exchange
or the National Association of Securities Dealers, Inc.; and,
(vi) promptly, such other information respecting the business,
properties, operations or condition, financial or otherwise, of the Company or
any of its Subsidiaries as the Agent or any Lender from time to time reasonably
may request.
(e) Accounting; Access to Records, Books, Etc. Maintain a system of
accounting established and administered in accordance with sound business
practices to permit preparation of financial statements in accordance with GAAP
and to comply with the requirements of this Agreement and, at any reasonable
time and from time to time, (i) permit the Agent, the Lenders or any agents or
representatives thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, any Loan Party and
to discuss the affairs, finances and accounts of such person with their
respective directors, officers, employees and independent auditors, and by this
provision the Company does hereby authorize the same and (ii) permit the Agent
or any of its agents or representatives to conduct a comprehensive field audit
of its books, records, properties and assets. The Agent and the Lenders agree
that they will endeavor to provide prior written notice of any such visit or
audit, provided, however, the failure to give such notice will not affect the
rights of the Agent and the Lenders under this Section 5.1(e).
(f) Compliance with Environmental Laws; Hold Harmless and
Indemnification. Timely comply with all applicable Environmental Laws, except
where any such noncompliance, individually or in the aggregate, reasonably would
not be expected to result in a Material Adverse Event. The Company hereby agrees
to indemnify and hold the Agent and the Lenders harmless from and against any
and all claims, and all costs and expenses incurred in connection herewith
(including attorney's fees and expenses), caused directly or indirectly, in
whole or in part, by (i) the presence on or under any of the
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Company's or other Loan Party's properties, of any Hazardous Materials, or any
releases or discharges of any Hazardous Materials on, under or from, or (ii) any
activity carried on or undertaken on or off any property, whether prior to the
Effective Date or whether by a Loan Party or any predecessor entity, or any
employees, agents, contractors or subcontractors of a Loan Party or any
predecessor entity, or any third persons at any time present on any property, in
connection with the handling, treatment, removal, storage, decontamination,
clean-up, transport or disposal of any Hazardous Materials at any time located
or present on or under any property.
(g) Further Assurances. Execute and deliver promptly after request
therefor by the Agent, all documents, and instruments and take all further
action that may be necessary or desirable, or that the Agent may request, in
order to give effect to, and to aid in the exercise and enforcement of the
rights and remedies of the Agent and the Lenders under this Agreement and the
other Loan Documents.
5.2 Negative Covenants. Until the Termination Date and thereafter until
payment in full of the principal of and accrued interest on the Notes and the
payment and performance of all other Obligations, and unless the Required
Lenders otherwise consent in writing, the Company will not and will not permit
any Loan Party to:
(a) Tangible Net Worth. Permit or suffer Tangible Net Worth to be, at
any time after the Effective Date, less than the sum of (i) $47,500,000, plus
(ii) the net amount of any proceeds from the sale of the Company's equity
interests received by the Company after the Effective Date, plus (iii) fifty
percent (50%) of annual Net Income accumulated from September 30, 1996,
beginning with the calculation for the year ending September 30, 1997; provided,
however, that no deduction will be made for any period where net income is less
than zero and any loss will not reduce any amount added for any other period.
(b) Total Liabilities to Tangible Net Worth. Permit or suffer the ratio
of Total Liabilities to Tangible Net Worth to exceed (i) 2.75 to 1.0 at June 30,
1998 and September 30, 1998, and (ii) 3.25 to 1.0 at December 31, 1998 and March
31, 1999.
(c) Interest Coverage Ratio. Permit or suffer the Interest Coverage
Ratio to be less than 2.0 to 1.0 at any time after the Effective Date.
(d) Indebtedness. Create, incur, assume or in any manner become liable
in respect of, or suffer to exist, any Indebtedness other than:
(i) the Advances and indebtedness under the Long Term Credit
Agreement (and any guaranties thereof);
(ii) Indebtedness to persons (including guaranties of
Indebtedness) other than the Lenders under this Agreement, as described on
Schedule 5.2(d), having the same material terms as those existing on the date of
this Agreement, and provided, that (i) with respect to the indebtedness
outstanding to Connecticut Mutual and Prudential Insurance, any extension
renewal or replacement thereof (including by a different person) not to exceed
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the original principal amount of such loan, on an unsecured basis and at the
then prevailing market terms, and (ii) with respect to any other indebtedness
described on Schedule 5.2(d), any extension or renewal thereof (but without
increase in the principal amount outstanding at the time of such extension or
renewal);
(iii) Indebtedness secured by Permitted Liens;
(iv) Indebtedness of up to $1,000,000 from state or local
governmental authorities or sub-divisions thereof or local development
authorities, provided that so long as any Default or Event of Default shall
exist and be continuing, such indebtedness may not be increased above the amount
existing at the time of such Default or Event of Default;
(v) Subordinated Debt which is acceptable to the Required
Lenders in their sole discretion, including the terms of the subordination
agreement covering the Subordinated Debt;
(vi) guaranties of Indebtedness which in the aggregate do not
exceed $1,000,000 at any time or other indebtedness not to exceed $500,000 at
any time (to the extent such guaranties or Indebtedness is not permitted under
clause (ii) above); provided that so long as any Default or Event of Default
shall exist and be continuing, such guaranties may not be increased from the
guaranties existing at the time of such Default or Event of Default; and
(vii) Indebtedness of one Loan Party to another Loan Party.
(e) Liens. Create, incur or suffer to exist any Lien on any of the
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired, of any Loan Party other
than:
(i) Liens for taxes not delinquent or for taxes being
contested in good faith by appropriate proceedings and as to which adequate
financial reserves have been established on its books and records;
(ii) Liens (other than any Lien imposed by ERISA) created and
maintained in the ordinary course of business which are not material in the
aggregate, and which would not constitute or result in a Material Adverse Event,
and which constitute (A) pledges or deposits under worker's compensation laws,
unemployment insurance laws or similar legislation, (B) good faith deposits in
connection with bids, tenders, contracts or leases to which a Loan Party is a
party for a purpose other than borrowing money or obtaining credit, including
rent security deposits, (C) Liens imposed by law, such as those of carriers,
warehousemen and mechanics, if payment of the obligation secured thereby is not
yet due, (D) Liens securing taxes, assessments or other governmental charges or
levies not yet subject to penalties for nonpayment, and (E) pledges or deposits
to secure public or statutory obligations of such Loan Party, or surety, customs
or appeal bonds to which such Loan Party is a party;
(iii) Liens affecting real property which constitute minor
survey exceptions or defects or irregularities in title, minor encumbrances,
easements or reservations of, or rights of others for, rights of way, sewers,
electric
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lines, telegraph and telephone lines and other similar purposes, or zoning or
other restrictions as to the use of such real property; provided, however, that
all of the foregoing, in the aggregate, do not at any time materially detract
from the value of said properties or materially impair their use in the
operation of the businesses of any Loan Party;
(iv) each Lien described in Schedule 5.2(e) which may be
suffered to exist upon the same terms as those existing on the date hereof, and
any extension or renewal thereof (but without increase in the principal amount
secured thereby outstanding at the time of such extension or renewal and
provided such Liens will not extend to cover any additional property); and
(v) purchase money Liens upon or in property of a Loan Party,
provided, however, that no such Lien will extend to or cover any other property
of any Loan Party and the amount of any such Lien will not exceed the purchase
price of the related collateral.
(f) Merger; Purchase of Assets; Acquisitions; Etc. Purchase or
otherwise acquire, whether in one or a series of transactions, all or a
substantial portion of the business, assets, rights, revenues or property, real,
personal or mixed, tangible or intangible, of any person, or all or a
substantial portion of the capital stock of or other ownership interest in any
other person nor merge or consolidate or amalgamate with any other person or
take any other action having a similar effect, nor enter into any joint venture
or similar arrangement with any other person; provided, that this Section 5.2(f)
will not prohibit any merger or consolidation solely between or among the
Company and any Subsidiary, so long as the Company is the surviving person of
such merger or consolidation.
(g) Disposition of Assets; Etc. Sell, lease, license, transfer, assign
or otherwise dispose of any of its business, assets, rights, revenues or
property, real, personal or mixed, tangible or intangible, whether in one or a
series of transactions, other than (i) inventory sold in the ordinary course of
business upon customary credit terms and sales of obsolete or damaged material
or equipment, (ii) the sale of all or part of Ag-Chem Equipment Co International
Corp, a Virgin Islands corporation, and (iii) transfers from one Loan Party to
another Loan Party, and (iv) other sales of assets not to exceed $3,000,000 in
the aggregate for all Loan Parties during any fiscal year of the Company;
provided that so long as any Default or Event of Default shall exist and be
continuing, no sales under clauses (ii) or (iii) above may be made beyond those
contracted for at the time of such Default or Event of Default.
(h) Fiscal Year. Change its fiscal year end from September 30.
(i) Investments. Make, commit to make or permit to exist any loans,
investments, advances or extensions of credit to any person, firm or
corporation, other than: (i) Cash Equivalents, (ii) loans not to exceed $500,000
at any time outstanding and travel advances extended to officers and employees
of a Loan Party in the ordinary course of business, (iii) investments existing
on the Effective Date in Subsidiaries that are not Loan Parties, (iv)
investments by the Company in other Loan Parties, (v) loans from one Loan Party
to another Loan Party, (vi) loans or extensions of credit granted in the
ordinary course of business to purchasers or lessees of a product sold
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or leased by a Loan Party so long as the Company is not in violation of the
financial covenants in this agreement, or (vii) other investments which in the
aggregate do not exceed $1,000,000 at any time after the Effective Date.
(j) Capital Expenditures. Make Capital Expenditures on an aggregate
basis for all Loan Parties during any fiscal year of the Company in excess of
$20,000,000.
(k) Transactions with Affiliates. Enter into, or permit or suffer to
exist, or be a party to, any transaction or arrangement, including the purchase,
sale, exchange or use of any property or asset, or any interest therein, whether
real, personal or mixed, or tangible or intangible, or the rendering of any
service, with any Affiliate that is not a Loan Party or any director or officer
of any Loan Party, except in the ordinary course of and pursuant to the
reasonable requirements of the Loan Party's business and upon fair and
reasonable terms which are no less favorable to such Loan Party than could be
obtained in a comparable arms-length transaction with a person not an Affiliate
or a director or officer of the Loan Party. The Company will not permit Ag-Chem
Equipment International to have any operations or assets with a value in excess
of $10,000.
(l) Dividends. Declare or pay dividends or make other stockholder
distributions or redemptions of its capital stock, or commit to make any
distribution of cash or property to its shareholders at any time after the
Effective Date; provided, however, that so long as no Default or Event of
Default has occurred and is continuing and no Default or Event of Default would
occur upon payment of such amounts, (i) the Company may pay cash dividends or
dividends paid solely in shares of the Company, and (ii) the Company may
repurchase or redeem shares of its capital stock for an amount not to exceed
$1,000,000 per fiscal year.
ARTICLE VI
DEFAULT
6.1 Events of Default. The occurrence of any one of the following
events or conditions shall be deemed an "Event of Default" hereunder unless
waived by the Lenders or the Required Lenders, as applicable pursuant to Section
8.1:
(a) Nonpayment. The Company shall fail to pay (i) when due (whether by
mandatory prepayment or otherwise) the outstanding principal balance of the
Notes, or (ii) more than five days after the due date, any interest on the
Notes, any fees due the Agent or any Lender or any other Obligations payable
hereunder, or (iii) any principal amount under the Long Term Credit Agreement
when due, or any interest, fees or other Obligations due the Agent or the Lender
under the Long Term Credit Agreement more than five days after the due date.
(b) Misrepresentation. Any representation or warranty made by the
Company or any Loan Party in Article IV or in any other Loan Document or in any
certificate, report, financial statement or other document furnished by or on
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behalf of the Company or any Loan Party in connection with this Agreement or the
Loan Documents shall prove to have been incorrect in any material respect when
made or deemed made.
(c) Certain Covenants. Any term, covenant or agreement contained in
Section 5.2 shall be breached and such breach shall not have been cured.
(d) Other Defaults. Any term, covenant or agreement contained in this
Agreement (other than those defaults described in other subsections of this
Section 6.1) or any other Loan Document shall be breached, and any such breach
shall remain unremedied for 30 calendar days after the Company or any Subsidiary
becomes aware thereof, or there exists and is continuing an Event of Default
under the Long Term Credit Agreement.
(e) Cross Default. The Company or any Loan Party fails to pay any part
of the principal of, the premium, if any, or the interest on, or any other
payment of money due under, any of its Indebtedness (other than Indebtedness
under this Agreement, including the Notes and the Obligations of the Company),
after expiration of any applicable period of grace provided with respect
thereto, which individually, or together with other such Indebtedness as to
which any such failure exists, has an aggregate outstanding principal amount in
excess of $5,000,000; or the Company or any Loan Party fails to perform or
observe any other term, covenant or agreement contained in any agreement,
document or instrument evidencing or securing any such Indebtedness having such
aggregate outstanding principal amount, or under which any such Indebtedness was
issued or created, and such failure has not been waived by such third party, and
after expiration of any applicable period of grace, if any, provided with
respect thereto if the effect of such failure is either (i) to cause, or permit
the holders of such Indebtedness (or a trustee on behalf of such holders) to
cause, any payment in respect of such Indebtedness to become due prior to its
due date or (ii) to permit the holders of such Indebtedness (or a trustee on
behalf of such holders) to elect a majority of the board of directors of the
Company.
(f) Judgments. One or more judgments, judicial or administrative orders
or arbitration award for the payment of money in an aggregate amount of
$5,000,000 or more which is not covered by insurance shall be rendered against
the Company or any other Loan Party, or any other judgment, judicial or
administrative order or arbitration award (whether or not for the payment of
money) shall be rendered against or shall affect the Company or any other Loan
Party which causes or could reasonably be expected to cause a Material Adverse
Event, and either (i) such judgment or order shall have remained unsatisfied and
the Company or the Loan Party shall not have taken action necessary to stay
enforcement thereof by reason of pending appeal or otherwise, prior to the
expiration of the applicable period of limitations for taking such action, or,
if such action shall have been taken, a final order denying such stay shall have
been rendered and such judgment or order shall remain unsatisfied for 15 days
thereafter, or (ii) enforcement proceedings shall have been commenced by any
creditor upon any such judgment or order.
(g) ERISA. The occurrence of a Reportable Event that results in
liability of the Company or any of its ERISA Affiliates to the PBGC or to any
Plan in excess of $5,000,000 which results or could reasonably be expected to
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result in a Material Adverse Event and such Reportable Event is not corrected
within 30 days after notice to any Loan Party the occurrence thereof; or the
occurrence of any Reportable Event which constitutes grounds for termination of
any Plan of the Company or any of its ERISA Affiliates by the PBGC or for the
appointment by the appropriate United States District Court of a trustee to
administer any such Plan and such Reportable Event is not corrected within 30
days after the occurrence thereof; or the filing by the Company or any of its
ERISA Affiliates of a notice of intent to terminate a Plan or the institution of
other proceedings to terminate a Plan which termination would or could
reasonably be expected to result in a Material Adverse Event; or the Company or
any of its ERISA Affiliates shall fail to pay when due any liability in excess
of $5,000,000 to the PBGC or to a Plan and such failure is not corrected within
30 days after notice to any Loan Party thereof, or the PBGC shall have
instituted proceedings to terminate, or to cause a trustee to be appointed to
administer, any Plan of the Company or any of its ERISA Affiliates; or any
person engages in a Prohibited Transaction with respect to any Plan which
results in liability in excess of $5,000,000 of the Company or any of its ERISA
Affiliates, any Plan of the Company or any of its ERISA Affiliates or any
fiduciary of any such Plan; or failure by the Company or any of its ERISA
Affiliates to make a required installment or other payment to any Plan within
the meaning of Section 302(f) of ERISA or Section 412(n) of the Code that
results in liability in excess of $5,000,000 of the Company or any of its ERISA
Affiliates to the PBGC or any Plan and such failure is not corrected within 30
days after notice to any Loan Party thereof; or the withdrawal of the Company or
any of its ERISA Affiliates from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA which results
or could reasonably be expected to result in a Material Adverse Event; or the
occurrence of events or circumstances, including action taken or omitted to be
taken by the Company or any of its ERISA Affiliates, with regard to a
Multiemployer Plan which results or could reasonably be expected to result in
the imposition to the Company or any of its ERISA Affiliates of "withdrawal
liability" within the meaning of Section 4201 of ERISA and such imposition of
withdrawal liability would or could reasonably be expected to result in a
Material Adverse Event.
(h) Insolvency, Etc. Any Loan Party: shall be dissolved or liquidated
(other than a dissolution or liquidation of Ag-Chem Equipment Co International
Corp, a Virgin Islands corporation) or any judgment, order or decree therefor
shall be entered; or shall generally not pay its debts as they become due; or
shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or shall institute, or there
shall be instituted against any Loan Party any proceeding or case seeking to
adjudicate it as bankrupt or insolvent or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief or protection of debtors or seeking the entry of an order for relief,
or the appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its assets, rights, revenues or property,
and, if such a proceeding is instituted against any Loan Party and is being
contested by such person in good faith by appropriate proceedings, such
proceeding shall remain undismissed or unstayed for a period of 120 days; or
shall take any action (corporate or other) to authorize or further any of the
actions described above in this subsection.
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(i) Change of Control. The Company shall cease to own 100% of the
capital stock of the Guarantors (to the extent a Guarantor's existence has not
ceased) or Alvin E. McQuinn, members of his immediate family and trusts for the
benefit of Alvin E. McQuinn or members of his immediate family shall cease to
own, in the aggregate beneficially and of record, at least 40% of the
outstanding capital stock of the Company.
(j) Enforceability of Loan Documents. This Agreement or any of the
other Loan Documents shall, at any time after their respective execution and
delivery, and for any reason, the validity or enforceability thereof or hereof
shall be contested by any Loan Party, any or any stockholder of the Company,
shall deny that it has any or further liability or obligation thereunder or
hereunder, as the case may be.
6.2 Remedies.
(a) Termination of Commitment; Acceleration. Upon the occurrence and
during the continuance of any Event of Default, the Agent may, and upon the
direction of the Required Lenders will, by notice to the Company terminate the
Commitments or declare the outstanding principal of, and accrued interest on,
the Notes and all other Obligations to be immediately due and payable, or both;
whereupon the Commitments shall immediately terminate and all such amounts shall
become immediately due and payable, or both; provided, however, that, upon the
occurrence of any event or condition described in Section 6.1(h), the
Commitments shall automatically terminate forthwith and all such amounts shall
automatically become immediately due and payable without notice; in all cases
without demand, presentment, protest, diligence, notice of dishonor or other
formality, all of which are hereby expressly waived.
(b) Other Remedies. Upon (x) the occurrence and during the continuance
of any Event of Default, the Agent may, and upon the direction of the Required
Lenders will, and (y) upon the termination of the Commitments and acceleration
of the Obligations any Lender may, exercise and enforce any and all other rights
and remedies available to them, whether arising under this Agreement or any
other Loan Document or under applicable law, in any manner deemed appropriate by
the Agent or such Lender, including suit in equity, action at law, or other
appropriate proceedings, whether for specific performance (to the extent
permitted by law) of any covenant or agreement contained in this Agreement or in
any other Loan Document or in aid of the exercise of any power granted in this
Agreement or any other Loan Document or under applicable law. All monies
received by the Agent or any Lender from the exercise of any of such rights or
remedies shall, unless otherwise required by applicable law, be applied as
follows:
(i) first, to the payment of all expenses (to the extent not
paid by the Company) incurred by the Agent or any Lender in connection
with the exercise of such rights or remedies, including all costs and
expenses of collection, reasonable attorneys' fees and court costs, all
costs incurred by the Agent or any Lender directly or indirectly in
carrying out the terms, covenants and agreements of the Company
contained in this Agreement or any of the other Loan Documents,
together with interest
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thereon as provided herein, and all other costs and expenses described
in Section 8.5;
(ii) next, to the payment of any outstanding fees due under
Sections 2.1(c) and 2.2(c);
(iii) next, to the payment of interest then accrued and unpaid
on the Notes;
(iv) next, to the payment of the principal balance then owing
on the Notes;
(v) next, to all of the other Obligations; and
(vi) surplus, if any, unless a court of competent jurisdiction
decrees otherwise, to the Company.
ARTICLE VII
THE AGENT
The Lenders and the Agent agree among themselves, and the Company
hereby consents, as follows:
7.1 Appointment, Powers and Immunities. Each Lender hereby irrevocably
appoints and authorizes the Agent to act as its agent hereunder and under the
other Loan Documents with such powers as are specifically delegated to the Agent
by the terms of this Agreement or the other Loan Documents, together with such
other powers as are reasonably incidental thereto. The Agent is expressly
authorized as agent to enforce, on behalf of the Lenders, all rights and
remedies available to it or the Lenders under this Agreement, any other Loan
Document or applicable law. The Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement and under the other Loan
Documents, and shall not by reason of this Agreement or any other Loan Document
be trustee for, or otherwise have a fiduciary relationship in respect of, any
Lender. The Agent shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement, or in any
certificate or other document referred to or provided for in, or received by any
of them under, this Agreement or any other Loan Document, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure by any Loan Party to
perform any of its obligations hereunder or under any other Loan Document. The
Agent may employ agents and attorneys-in-fact and shall not be answerable,
except as to money or securities received by it or its authorized agents, for
the gross negligence or willful misconduct of any such agents or
attorneys-in-fact selected by the Agent with reasonable care. Neither the Agent
nor any of its Affiliates, directors, officers, employees, attorneys or agents
shall be liable or responsible for any action taken or omitted to be taken by
them hereunder or in connection herewith, except for their own gross negligence
or willful misconduct.
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7.2 Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telex, telecopy, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper person or
persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by it. As to any matters not expressly
provided for by this Agreement or any other Loan Document, the Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
in accordance with instructions signed by the Lenders or the Required Lenders,
as the case may be.
7.3 Rights as a Lender. With respect to its Commitment and Notes, the
Agent in its capacity as a Lender hereunder shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were
not acting as an Agent. Unless otherwise prohibited under this Agreement, the
Agent and its Affiliates may (without having to account therefor to any Lender)
accept deposits from, lend money to and generally engage in any kind of banking,
trust or other business with, the Company or any of its Affiliates as if it were
not acting as an agent and an Agent may accept fees and other consideration from
the Company or any of its Affiliates for services in connection with this
Agreement, any other Loan Document or otherwise without having to account for
the same to the Lenders (except as to the payment of the commitment fees or
other consideration as expressly provided in this Agreement).
7.4 Indemnification. The Lenders agree to indemnify the Agent (to the
extent not reimbursed by the Company under Section 8.5), ratably in accordance
with each Lender's Percentage, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever (including reasonable attorneys' fees) which
may be imposed on, incurred by or asserted against the Agent in any way relating
to or arising out of its duties under this Agreement or any other Loan Document
or the transactions contemplated hereby (including the costs and expenses which
the Company is are obligated to pay under Sections 8.5) or the enforcement of
any of the terms hereof or of any such other documents, or pursuant to any other
instructions approved by the Lenders, or the Required Lenders, as the case may
be; provided that no Lender shall be liable for any of the foregoing to the
extent they arise from the gross negligence or willful misconduct of the Agent.
7.5 Non-Reliance on Agent and Other Lenders. Each Lender agrees that it
has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Company and decision to enter into this Agreement and
that it will, independently and without reliance upon the Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement and the other Loan Documents. Except for
notices, reports and other documents and information expressly required to be
furnished to the Lenders by the Agent under Section 7.6(b), the Agent shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the affairs,
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financial condition or business of the Company or any other Loan Party or any
other person which may come into its possession.
7.6 Duties of Agent.
(a) General. In carrying out the agency under this Agreement and the
other Loan Documents, the Agent shall have only the duties and responsibilities
specifically set forth in this Agreement and, in performing such duties and
responsibilities, the Agent shall exercise the same degree of care as it would
if the Advances were entirely for its own account, but, unless the Agent has
actual knowledge thereof, the Agent shall not be deemed to have knowledge of the
occurrence of any Event of Default or any Default, and need not take or continue
any action with respect thereto or towards the enforcement of this Agreement,
the Notes or the other Loan Documents, nor prosecute or defend any suit with
respect to this Agreement, the Notes or the other Loan Documents unless directed
to do so by the Required Lenders and unless it is indemnified to its
satisfaction against any loss, cost, liability or expense which it might incur
as a consequence of taking such action.
(b) Notices. The Agent shall provide the following notices or other
information to the Lenders: (i) notices of requests for Advances received from
the Company which shall be given by the Agent to each Lender no later than 2:15
p.m., Detroit time, on the Business Day such notice is received by the Agent
(provided such notice is received by the Agent by 2:00 p.m., Detroit time); (ii)
notices of any requests by the Company for consents, waivers or amendments under
this Agreement or any of the other Loan Documents, promptly after receipt
thereof by the Agent from the Company; (iii) summary of the results of each
audit or any comprehensive field audit conducted by the Agent and, if so
requested by any Lender, access to the complete audits, promptly after
completion thereof by the Agent; (iv) copies of any financial statements
furnished by the Company to the Agent and not otherwise furnished to the Lenders
hereunder, promptly after receipt by such Agent; and (v) notice of the
occurrence of a Default or an Event of Default, promptly after the Agent
receives notice thereof from the Company or a Lender or otherwise has actual
knowledge thereof. In connection with the foregoing, the Agent shall be entitled
to assume that the Company has given to the Lenders all notices, financial
statements and other information required to be furnished by the Company to the
Lenders under this Agreement or any other Loan Document and shall not be
required to duplicate such notices, financial statements or other information
(x) other than notices of a Default or Event of Default and any request for a
waiver or amendment of any negative covenant hereunder, and (y) unless the Agent
has received notice from a Lender that the Company have failed to deliver
specified items to such Lender. Notwithstanding anything in this Section 7.6(b)
to the contrary, the Agent shall not have any liability to the Lenders for
failure to provide any notices or other information as specified above, other
than due to gross negligence or willful misconduct.
7.7 Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Company. Upon any such resignation, the
Required Lenders shall, have the right to appoint a successor Agent; provided,
however, that so long as an Event of Default shall not have occurred and be
continuing, upon any such resignation, the Company shall, with the consent of
the Required Lenders (which consent shall not be unreasonably
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withheld), have the right to appoint any Lender as a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders or the
Company, as the case may be, and shall have accepted such appointment, within
thirty (30) days after the retiring Agent's giving of notice of resignation,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which may be (i) any Lender, or (ii) any other commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of its appointment as an Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Article shall inure to
its benefits as to any actions taken or omitted to be taken by it while it was
Agent.
7.8 Nature of Advances. Each Lender represents and warrants to the
Company, the Agent and the other Lenders that the Advances and the Notes to be
delivered to it hereunder will evidence loans made in the ordinary course of its
commercial banking business and will be acquired for itself for investment and
not with a view to any distribution thereof, subject, nevertheless, to the
disposition of its property being at all times within its control. The Agent may
for all purposes treat the Lender to which any Note is issued as the holder of
such Note unless the Agent shall have been notified in writing by such Lender of
its sale or disposition of such Note and the name and address of the new holder.
7.9 Default Interest. If either the Agent or any of the Lenders shall
fail to pay any amounts required to be paid by it (the party so failing to make
payment is referred to in this Section 7.9 as the "Defaulting Party") to another
Lender or to the Agent (the party entitled to receive such amount is referred to
in this Section 7.9 as the "Payee") under this Agreement when due or within ten
days after demand for payment has been made by Payee, then the Defaulting Party
shall pay to Payee interest on the amount not so paid when due, at a per annum
rate equal to the Federal Funds Rate plus three percent (3%) per annum, from the
tenth day after such demand is made by Payee until payment is received by Payee,
in addition to any other rights or remedies available to Payee under this
Agreement or applicable law.
7.10 Limited Purpose of Certain Provisions. The provisions of Article
VII, except for Section 7.7, are solely for the benefit of the Agent and the
Lenders and for the limited purpose of defining certain terms of their
respective relationship under this Agreement and the other Loan Documents.
Except with regard to the right to consent to any successor agent in accordance
with Section 7.7, neither the Company nor any other Loan Party shall have any
right, benefit or interest under, or because of the existence of, such
provisions nor shall such provisions (or the failure of the Agent or any of the
Lenders to comply with any of such provisions) affect the obligations of the
Loan Parties under this Agreement or any other Loan Document.
ARTICLE VIII
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MISCELLANEOUS
8.1 Waivers, Amendments, etc.
(a) General. No provision of this Agreement or any other Loan Document
may be modified, waived or amended except by an instrument or instruments signed
by the Company and the Required Lenders, except that any provision of Article
VII may not be amended without the signature of the Agent and any provision of
Article VII (excluding Section 7.7) may be modified, amended or waived without
the signature of the Company and provided that, except by an instrument in
writing executed by all of the Lenders, no such modification, amendment or
waiver shall:
(i) authorize or permit the extension of time or times of
payment of the principal of, or interest on, the Notes, or any one of
them, or the reduction in principal amount thereof or the rate of
interest thereon, or any other modification in the terms of payment of
principal of or interest on the Notes or the assignment of the rights
or obligations of the Company thereunder or under any Notes or any
other Loan Document or the release of any guaranty for the Obligations;
(ii) amend or change the aggregate Total Commitments or the
respective amounts of the Lenders' respective Commitments, or reduce
the percentage amount which constitute the Required Lenders, or change
the terms of this Section 8.1;
(iii) amend or change any of the Loan Documents so as to
materially impair the rights of the Lenders thereunder; or
(iv) authorize or permit the reduction in the amount of any of
the fees required to be paid to the Lenders under this Agreement or
change the due date of any such fees.
In the event that any Lender does not consent to any revision or
amendment for which the consent of all Lenders is required pursuant to this
Section 8.1 ("Nonconsenting Lender"), the Company shall have the option to
request the Agent to replace such Nonconsenting Lender. The Agent may thereafter
cause the outstanding Advances and Commitment of the Nonconsenting Lender to be
purchased and replaced by a new lender, including without limitation, any of the
Lenders and such Nonconsenting Lender must execute all assignments and other
transfer documents reasonably requested by the Agent to accomplish such
replacement.
8.2 Notices
(a) General. All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered, telecopied or sent to the
Company, the Agent or the Lenders to the applicable Address set forth on the
signature page attached hereto, or to such other address as may be designated by
one of the Lenders, the Agent or the Company by written notice to the other
parties.
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(b) Receipt of Notices. All notices, requests, consents and other
communications shall be deemed to have been given when received if hand
delivered, if mailed by certified or registered mail, postage prepaid, upon
receipt of such mailing, or if deposited with an expedited courier service such
as "Federal Express" or "Purolator", upon receipt which will be presumed to be
on the Business Day following such deposit, or if telecopied, on the Business
Day on which such telecopy is confirmed as having been received, in all cases,
addressed to the respective address set forth on the signature page attached
hereto, or as may otherwise be designated in accordance herewith.
(c) Notices of Termination or Prepayment. Notices by the Company to the
Agent with respect to terminations or reductions of the Total Commitments and
notices of prepayment, each pursuant to the terms of this Agreement, shall be
irrevocable and binding on the Company.
(d) Telephonic Notices. Any notice to be given by the Company to the
Agent pursuant to Section 2.2 and any notice to be given by the Agent or any
Lender hereunder, may be given by telephone, to be confirmed in writing in the
manner provided in Section 8.2(a). Any such notice given by telephone shall be
deemed effective upon receipt thereof by the President or Chief Financial
Officer of the Company and by the loan officer then administering this Agreement
or his or her supervisor with respect to the Agent and the Lenders.
8.3 No Waiver by Conduct; Remedies Cumulative. No course of dealing on
the part of the Agent or the Lenders, nor any delay or failure on the part of
the Agent or the Lenders in exercising any right, power or privilege hereunder
or under this Agreement or any other Loan Documents shall operate as a waiver of
such rights, power or privilege or otherwise prejudice their rights and remedies
hereunder or under this Agreement or any other Loan Document; nor shall any
single or partial exercise thereof preclude any further exercise thereof or the
exercise of any other right, power or privilege. No right or remedy conferred
upon or reserved to the Agent or the Lenders under this Agreement or under any
other Loan Document is intended to be exclusive of any other right or remedy,
and every right and remedy shall be cumulative and in addition to every other
right or remedy granted thereunder or now or hereafter existing under any
applicable law. Every right and remedy granted by this Agreement or under any
other Loan Document or by applicable law to the Agent or the Lenders may be
exercised from time to time and as often as may be deemed expedient by the Agent
or the Lenders and, unless contrary to the express provisions of this Agreement
or the other Loan Documents, irrespective of the occurrence or continuance of
any Default or Event of Default.
8.4 Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of the Company and/or any
other Loan Party made herein, to any other Loan Document, or in any certificate,
report, financial statement or other document furnished by or on behalf of the
Company or any other Loan Party in connection with this Agreement or any other
Loan Document shall be deemed to be material and to have been relied upon by the
Lenders, notwithstanding any investigation heretofore or hereafter made by the
Agent or in any Lender's behalf, and those covenants and agreements of the
Company set forth in Section 8.5 shall survive the repayment in full of the
Obligations and the termination of the Commitments.
42
<PAGE>
8.5 Expenses; Indemnification. The Company, agrees to pay, or reimburse
the Agent and the Lenders for the payment of, on demand: (a) the reasonable fees
and expenses of counsel to the Agent, including the reasonable fees and expenses
of Honigman Miller Schwartz and Cohn, in connection with the preparation,
execution, delivery and administration of this Agreement, the other Loan
Documents, any documents or instruments prepared prior to the Effective Date and
the consummation of the transactions contemplated hereby, and in connection with
advising the Agent and the Lenders as to its rights and responsibilities with
respect thereto, and in connection with any amendments, waivers or consents in
connection therewith; and (b) all stamp and other taxes and fees payable or
determined to be payable in connection with the execution, delivery, filing or
recording of this Agreement, the Notes and the other Loan Documents and the
consummation of the transactions contemplated hereby, and any and all
liabilities with respect to or resulting from any delay in paying or omitting to
pay such taxes or fees; and (c) all reasonable costs and expenses of each Lender
(including reasonable fees and expenses of counsel and when incurred through
negotiations, legal proceedings or otherwise) in connection with any Default or
Event of Default or the enforcement of, or the exercise or preservation of any
rights under, this Agreement, the Notes or any other Loan Document or in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement.
8.6 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns, except that the Company may not assign or transfer its rights
hereunder without the prior written consent of all the Lenders and no Lender may
assign any portion of its Advances, Notes or Commitment to any other person
other than an Affiliate of such Lender or the Federal Reserve Board (a) without
the prior written consent of the Agent and, so long as there is no Default or
Event of Default then existing, the Company (in each case, such consent not to
be unreasonably withheld), and (b) any such assignment must be in the minimum
amount of $5,000,000, or the entire Commitment of a Lender if less than
$5,000,000 subject, however, to the rights of each Lender to grant
participations of any amount in accordance with the following sentence. Without
limiting the foregoing, each Lender may grant participations in all or any part
of its Advances, Notes and Commitment to any institutional investor without the
consent of the Company and the Agent and each of such Lender's participants may
grant subparticipations but only so long as: (i) no holder of any such
participation or subparticipation, other than an Affiliate of such Lender, shall
be entitled to require such Lender to take or omit to take any action hereunder
(except that such holder may have rights to require such Lender to consent or
not consent to the items set forth in clauses (i) through (iv) of Section 8.1
above); and (ii) no Lender shall, as between the Company and such Lender or
between such Lender and any other Lender or the Agent, be relieved of any of its
obligations hereunder as a result of any such granting of a participation. The
Company hereby acknowledges and agrees that any participant or subparticipant
described in this Section 8.6 will, for purposes of Section 2.8, be considered
to be a Lender hereunder (provided that such participant or subparticipant shall
not be entitled to receive any more than the Lender owning the Advances or
Commitment subject to such participation or subparticipation would have received
had such Lender not sold a participation) and may rely on, and possess all
rights under, any opinions, certificates, or
43
<PAGE>
other instruments or documents delivered under or in connection with this
Agreement or any Note.
8.7 Disclosure of Information.
(a) General. Subject to Section 8.7(b), the Company authorizes the
Agent and the Lenders to disclose to any permitted assignee or participant or to
any successor to their respective assets (each, a "Transferee") and to any
prospective Transferee any and all financial and other information in the
Agent's or Lender's possession concerning the Company or any Subsidiary which
has been delivered to the Agent or a Lender by or on behalf of the Company or
any Subsidiary pursuant to this Agreement or the other Loan Documents or which
has been received by the Agent and the Lenders in connection with their credit
evaluation of the Company or any Subsidiary prior to entering into this
Agreement.
(b) Confidentiality. The Agent and Lenders agrees to hold any
non-public information which it has received or may receive from any Loan Party
pursuant to this Agreement or any other Loan Document confidential, except for
disclosure (i) to officers, employees and agents of the Agent and Lenders and
their respective Affiliates having a need to know such information in the course
of their duties to such party, (ii) to legal counsel, accountants, and other
professional advisors to the Agent or a Lender having a need to know such
information in the course of their duties to such person, (iii) to Governmental
Authorities, (iv) as requested pursuant to or as required by Governmental
Regulations, (v) in connection with any collection of the Obligations and/or any
legal proceeding to which the Agent or a Lender is a party, and (vi) to a
Transferee or prospective Transferee which agrees to be bound by this Section
8.7(b).
8.8 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.9 Governing Law.
(a) General. This Agreement is a contract made under, and shall be
governed by and construed in accordance with, the laws of the State of Michigan
applicable to contracts made and to be performed entirely within such State and
without giving effect to choice of law principles of such State. The Company
further agrees that any legal action or proceeding with respect to this
Agreement or any other Loan Document or the transactions contemplated hereby may
be brought in any court of the State of Michigan or a court of the United States
of America sitting in the Eastern District of Michigan, and the Company and each
of the Loan Parties hereby submits to and accepts generally and unconditionally
the jurisdiction of those courts with respect to its person and property.
(b) Suit in Other Jurisdictions. Nothing in Section 8.9(a) shall affect
the right of the Agent or any Lender to serve legal process in any other manner
permitted by law or affect the right of the Agent or any Lender to bring any
44
<PAGE>
action or proceeding against any Loan Party or their respective property in the
courts of any other jurisdictions.
(c) Immunity. To the extent that any Loan Party has or hereafter may
acquire any immunity from jurisdiction of any court or from any service of
process (whether from service or notice, or otherwise) with respect to itself or
its property, the Company hereby irrevocably waive such immunity in respect of
its obligations under this Agreement, the Notes and the other Loan Documents.
8.10 Table of Contents and Headings. The table of contents and the
headings of the various Articles, Sections and paragraphs hereof are for the
convenience of reference only and shall in no way modify any of the terms or
provisions hereof.
8.11 Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any person, or which such person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such person, whether or not expressly
specified in such provision.
8.12 Integration and Severability. This Agreement and the other Loan
Documents embody the entire agreement and understanding between the Company and
the other Loan Parties, on the one hand, and the Agent and the Lenders, on the
other hand, and supersede all prior agreements and understandings relating to
the subject matter hereof. In case any one or more of the obligations of the
Company or any Loan Party under this Agreement or any other Loan Document shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining obligations of the Company or any shall not
in any way be affected or impaired thereby, and such invalidity, illegality or
enforceability of the obligations of the Company and any other Loan Party under
this Agreement or any other Loan Document in any other jurisdiction.
8.13 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenant, the fact that it would be permitted by an exception to, or
would be otherwise within the limitation of, another covenant shall not avoid
the occurrence of a Default or Event of Default or any event or condition which
with notice or lapse of time, or both, could become such a Default or an Event
of Default if such action is taken or such condition exists.
8.14 Interest Rate Limitation. Notwithstanding any provisions of this
Agreement or any other Loan Document, in no event shall the amount of interest
paid or agreed to be paid by the Company exceed an amount computed at the
highest rate of interest permissible under applicable law. If, from any
circumstances whatsoever, fulfillment of any provision of this Agreement or any
other Loan Document at the time performance of such provision shall be due,
shall involve exceeding the interest rate limitation validly prescribed by law
which a court of competent jurisdiction may deem applicable hereto, then, ipso
facto, the obligations to be fulfilled shall be reduced to an amount computed at
the highest rate of interest permissible under applicable law, and if for any
reason whatsoever a Lender shall ever receive as interest an amount which
45
<PAGE>
would be deemed unlawful under such applicable law, such interest shall be
automatically applied to the payment of principal of the Advances outstanding
hereunder (whether or not then due and payable) and not to the payment of
interest, or shall be refunded to the Company if such principal and all other
Obligations of the Company to the Lender have been paid in full.
8.15 Limitation of Liability. Neither the Agent, the Lenders nor any of
their Affiliates, directors, officers, agents, attorneys or employees shall be
liable to the Company or any of its Affiliates for any action taken, or omitted
to be taken, by it or them or any of them under this Agreement or any other Loan
Document or in connection herewith or therewith, except that no person shall be
relieved of any liability for negligence, misconduct, or breach of contract.
8.16 Interpretation. This Agreement and each other Loan Document are
being entered into by competent and experienced business people, represented by
counsel, and this Agreement and each other Loan Document have been reviewed by
the parties and their counsel. Therefore, any ambiguous language will not
necessarily be construed against any particular party as the drafter of such
language. The parties intend that this Agreement and all other Loan Documents
shall be construed and interpreted in a consistent manner. In the event of any
conflict or inconsistency between the terms of this Agreement and the terms of
any other Loan Document, the terms of this Agreement shall be controlling but
the other Loan Document shall not otherwise be affected or the rights therein
impaired.
8.17 Jurisdiction and Venue. The Company hereby irrevocably submits to
the jurisdiction of any Minnesota or Michigan state court or any federal court
located in Minneapolis, Minnesota or Detroit, Michigan over any action or
proceeding arising out of or relating to this Agreement or any other Loan
Document, and Company hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in such state or court or
federal court. The Company hereby irrevocably waives, to the fullest extent it
may effectively do so, the defense of an inconvenient forum to the maintenance
of such action or proceeding. The Company agrees that judgment final by appeal,
or expiration of time to appeal without an appeal being taken, in any such
action or proceeding shall be conclusive and may be enforced in any other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this subsection shall affect the right of the Agent or any Lender to
serve legal process in any other manner permitted by law or affect the right of
the Agent or any Lender to bring any action or proceeding against the Company or
its property in the courts of any other jurisdiction. The Company agrees that,
if it brings any action or proceeding arising out of or relating to this
Agreement, it shall bring such action or proceeding in Hennepin County,
Minnesota or Wayne County, Michigan.
8.18 WAIVER OF JURY TRIAL. THE AGENT, THE COMPANY AND EACH OF THE
LENDERS, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO
A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS AGREEMENT,
THE NOTES OR ANY OTHER LOAN DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF ANY OF THEM. NEITHER THE AGENT, THE
46
<PAGE>
COMPANY NOR ANY LENDER SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE,
ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT
BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY THE AGENT, THE
COMPANY NOR ANY LENDER EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
47
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Short Term
Revolving Credit Agreement to be duly executed as of the date first written
above.
AG-CHEM EQUIPMENT CO., INC.
By: ____________________________________
John Retherford
Its: Senior Vice President
Address: 5720 Smetana Drive
Minnetonka, MN 55343
Attn: John Retherford
Telephone: 612/933-9006
Telecopy: 612/933-8799
Commitment: $15,000,000 NBD BANK
48
<PAGE>
Percentage: 50.0%
By: ____________________________________
Marguerite C. Gordy
Its: Vice President
Address: 611 Woodward Avenue
Detroit, Michigan 48226
Attn: Marguerite C. Gordy
Telephone: (313) 225-2873
Telecopy: (313) 225-1212
(Signatures continue on next page)
1
<PAGE>
Commitment: $9,600,000 HARRIS TRUST AND SAVINGS BANK
Percentage: 32.0%
By: ____________________________________
Name: ___________________________
Its: Vice President
Address:
111 W. Monroe, Floor 10C
P.O. Box 755
Chicago, IL 60690
Attn: Andrew Claar
Telephone: (312) 461-3271
Telecopy: (312) 293-5040
Commitment: $5,400,000 COOPERATIEVE CENTRALE RAIFFEISEN -
Percentage: 18.0% BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: ____________________________________
Its: ______________________________
By: ____________________________________
Its: ______________________________
Address:
245 Park Ave.
New York, NY 10167
Attn: Corporate Services Department
Telephone: (212) 916-7800
Telecopy: (212) 818-0233
with a copy to:
Rabobank Nederland
300 S. Wacker Dr., Suite 3500
Chicago, IL 60606
Attn: Brian Klatt
Telephone: (312) 408-8211
Telecopy: (312) 408-8240
2
<PAGE>
EXHIBITS
- --------
Exhibit 2.1 Note
Exhibit 2.2 Advance Request
Exhibit 3.1(e) Guaranty (Short Term)
Exhibit 3.1(f) Legal Opinion
SCHEDULES
- ---------
Schedule 4.4 Subsidiaries
Schedule 4.5 Litigation
Schedule 4.6 Financial Statements
Schedule 4.13 Environmental Disclosure
Schedule 5.2(d) Permitted Indebtedness
Schedule 5.2(e) Permitted Liens
3
<PAGE>
SCHEDULE 4.4
SUBSIDIARIES
Ag-Chem Sales Co., Inc., a Minnesota corporation. 100% of the outstanding Voting
Stock is owned by the Company.
Lor*Al Products, Inc., a Minnesota corporation. 100% of the outstanding Voting
Stock is owned by the Company.
Ag-Chem Equipment Co. International Corp., a U.S. Virgin Islands corporation.
100% of the outstanding Voting Stock is owned by the Company.
Ag-Chem Equipment International, Inc., a Minnesota corporation. 100% of the
outstanding Voting Stock is owned by the Company.
Ag-Chem Manufacturing Co., Inc., formerly known as Soil Teq, Inc., a Minnesota
corporation. 100% of the outstanding Voting Stock is owned by the Company.
Ag-Chem Equipment Canada, Ltd., a Minnesota corporation. 100% of the outstanding
Voting Stock is owned by the Company.
Ag-Chem Europe B.V., formerly known as Kurstjens Terra-Gator B.V., a Netherlands
Limited Liability Company. 100% of the outstanding Voting Stock is owned by the
Company.*
*Ag-Chem Europe has issued options to purchase up to 10% of its outstanding
voting stock.
4
<PAGE>
SCHEDULE 4.5
LITIGATION
5
<PAGE>
SCHEDULE 4.6
FINANCIAL STATEMENTS
6
<PAGE>
SCHEDULE 4.13
ENVIRONMENTAL DISCLOSURE
7
<PAGE>
SCHEDULE 5.2(d)
PERMITTED INDEBTEDNESS
8
<PAGE>
SCHEDULE 5.2(e)
PERMITTED LIENS
9
EXHIBIT 10.2
SECOND AMENDMENT TO LONG TERM SECOND AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT
This Second Amendment to Long Term Second Amended and Restated
Revolving Credit Agreement ("Second Amendment") is dated as of July ___, 1998,
and is entered into among Ag-Chem Equipment, Co., Inc., a Minnesota corporation
(the "Company"), NBD Bank ("NBD"), for itself and as Agent, First Chicago NBD
Bank, Canada, The First National Bank of Chicago, Harris Trust and Savings Bank,
and Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland,"
New York Branch (together with NBD, such financial institutions being sometimes
referred to collectively as the "Lenders" and individually as a "Lender"). This
Second Amendment amends that certain Long Term Second Amended and Restated
Revolving Credit Agreement dated as of June 10, 1997, as amended by the First
Amendment to Long Term Second Amended and Restated Revolving Credit Agreement
dated as of February 13, 1998 (as amended from time to time, the "Credit
Agreement"), among the Company and Lenders. Capitalized terms not otherwise
defined in this Second Amendment shall have the meanings given to them in the
Credit Agreement.
Recitals
WHEREAS, the Company has entered into a new Short Term Revolving Credit
Agreement, dated as of June 12, 1998 ("1998 Short Term Agreement"), with the
Agent and certain of the Lenders.
WHEREAS, the Company has requested that certain provisions of the
Credit Agreement be amended to provide for the new European currency and to
conform to the agreements reached in connection with the 1998 Short Term
Agreement.
WHEREAS, the Agent and Lenders have agreed to amend the Credit
Agreement as provided below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Revised Definitions.
(a) Existing Definitions. The following definitions contained in
Section 1.1 of the Credit Agreement are hereby amended to read as follows:
"Dutch Guilders" means the lawful money of the Kingdom of the
Netherlands; provided on the Conversion Date, references to Dutch
Guilders (including, without limitation, in the definition of Dutch
LIBOR Rate) shall thereafter refer to Dutch Guilders to the extent a
Dutch Guilders Advance was originally made in Dutch Guilders and to
Euros to the extent a Dutch Guilders Advance was originally made in
Euros.
"Short Term Credit Agreement" means the Short Term Revolving
Credit Agreement executed by the Company, the Agent and certain of the
Lenders, dated June 12, 1998, and any amendments to such agreements or
replacement short term borrowing facilities which are advanced by the
Agent and one or more of the Lenders from time to time.
1
<PAGE>
(b) New Definitions. The following definition is hereby added to
Section 1.1 of the Credit Agreement in alphabetical order:
"Conversion Date" means a date no earlier than the Euro
Implementation Date and no later than the first anniversary of the Euro
Implementation Date that is chosen by the Company by giving the Agent
at least two weeks prior written notice.
"Euros" means the euro referred to in Council Regulation (EC)
No 1103/97 dated 17 June 1997 passed by the Council of the European
Union, or, if different, the then lawful currency of the member states
of the European Union that participate in the third stage of Economic
and Monetary Union.
"Euro Implementation Date" means January 1, 1999, or such
other date on which Euros first become the currency of the Kingdom of
the Netherlands.
2. Permitted Investments. Clause (vi) of Section 5.2(i) of the Credit
Agreement is hereby deleted and replaced with the following clauses (vi) and
(vii) to read as follows:
(vi) loans or extensions of credit granted in the ordinary course of
business to purchasers or lessees of a product sold or leased by a Loan
Party so long as the Company is not in violation of the financial
covenants in this Agreement, or (vii) other investments which in the
aggregate do not exceed $1,000,000 at any time after the Effective
Date.
3. Permitted Indebtedness and Liens. Schedules 5.2(d) and 5.2(e) of the
Credit Agreement are hereby replaced with the Schedules 5.2(d) and 5.2(e)
attached to this Second Amendment, which attached schedules conform to the
schedules submitted in connection with the Short Term Agreement.
4. Advances in Euros. On and after the Conversion Date, all Dutch
Guilder Advances shall be made Euros and Dutch Guilder Advances must be repaid
in the currency in which they were originally advanced. The Agent may notify the
other parties to the Credit Agreement of any amendments to the Credit Agreement
which the Agent (acting reasonably and after consultation with the other parties
to the Credit Agreement) determines to be necessary as a result of the
commencement of the third stage of European Economic and Monetary Union and the
occurrence of the Conversion Date or the Euro Implementation Date.
Notwithstanding any other provision of the Credit Agreement, any amendments so
notified shall take effect in accordance with the terms of the relevant
notification. So far as possible, the amendments shall be such as to put the
parties in the same position as if the Conversion Date and/or the Euro
Implementation Date had not occurred. However, if and to the extent the Agent
determines this not possible to put all parties into that position, the Agent
may give priority to putting the Agent and the Lenders into that position.
5. Conditions to Amendment. Notwithstanding anything in this Second
Amendment to the contrary, this Second Amendment will not be effective unless
and
2
<PAGE>
until the Agent will have received copies of this Second Amendment duly
executed by each of the parties hereto.
6. Representations. The Company hereby represents and warrants to the
Lenders, as of the date of this Second Amendment becomes effective, that: (a)
after giving effect to this Second Amendment, the representations and warranties
of the Company in the Credit Agreement are true and correct; and (b) no Default
or Event of Default exists or has occurred and is continuing.
7. Ratification. The parties hereto acknowledge and agree that the
terms and provisions of this Second Amendment amend, add to and constitute part
of the Credit Agreement. Except as expressly modified and amended by the terms
of this Second Amendment, all of the other terms and conditions of the Credit
Agreement and all of the documents executed in connection therewith or referred
to or incorporated therein, remain in full force and effect and are hereby
ratified, confirmed and approved.
8. References to Credit Agreement. References in the Credit Agreement
or in any other Loan Document to the Credit Agreement will be deemed to be
references to the Credit Agreement as amended hereby and as further amended from
time to time.
9. Indemnification. The Company agrees to pay and to save the Agent and
the Lenders harmless from the payment of all costs and expenses arising in
connection with this Second Amendment and the other documents and agreements
executed hereunder or thereunder, including the fees of Honigman Miller Schwartz
and Cohn, counsel to the Agent, in connection with preparing this Second
Amendment and such other documents and agreements.
10. Conflicts. If there is an express conflict between the terms of
this Second Amendment and the terms of the Credit Agreement, or any of the other
agreements or documents executed in connection therewith or referred to or
incorporated therein, the terms of this Second Amendment shall govern and
control.
11. Counterparts. This Second Amendment may be executed in any number
of counterparts which when taken together will constitute one agreement.
3
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Second Amendment to
Long Term Second Amended and Restated Revolving Credit Agreement effective as of
the date noted above.
AG-CHEM EQUIPMENT CO., INC.
By: ____________________________________
John Retherford
Its: Senior Vice President
NBD BANK
By: ____________________________________
Marguerite C. Gordy
Its: Vice President
FIRST CHICAGO NBD BANK, CANADA
By: ____________________________________
Its: ______________________________
HARRIS TRUST AND SAVINGS BANK
By: ____________________________________
Its: ______________________________
[Signatures Continued on Next Page]
4
<PAGE>
[Signatures Continued from Prior Page]
THE FIRST NATIONAL BANK OF CHICAGO
By: ____________________________________
Its: ______________________________
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND," NEW YORK BRANCH
By: ____________________________________
Its: ______________________________
By: ____________________________________
Its: ______________________________
5
<PAGE>
REAFFIRMATION OF GUARANTY
The undersigned hereby acknowledges the terms of this Second Amendment
to Long Term Second Amended and Restated Revolving Credit Agreement and hereby
reaffirms each and every term of its respective Guaranty (Long Term) dated June
10, 1997, given in favor of NBD Bank for itself and as Agent, First Chicago NBD
Bank, Canada, The First National Bank of Chicago, Harris Trust and Savings Bank
and Cooperatieve Centrale Raiffeisen-Boerenleenbank, "Rabobank Nederland," New
York Branch, B.A., with respect to the obligations of Ag-Chem Equipment Co.,
Inc.
Lor*Al Products, Inc.
By: ____________________________________
John Retherford
Its: Vice President
Ag-Chem Equipment Co. International Corp.
By: ____________________________________
John Retherford
Its: Treasurer
Ag-Chem Equipment Canada Ltd.
By: ____________________________________
John Retherford
Its: Vice President
Ag-Chem Manufacturing Co., Inc., f/k/a
Soil Teq, Inc.
By: ____________________________________
John Retherford
Its: Vice President
Ag-Chem Europe B.V., f/k/a Kurstjens
Terra-Gator, B.V.
By: ____________________________________
Its: ______________________________
6
EXHIBIT 11.1
STATEMENT RE: COMPUTATION OF EARNINGS PER SHARE
AG-CHEM EQUIPMENT CO., INC. AND SUBSIDIARIES
(DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
- --------------------------------------------------------------------------------
The per share computations are based on the weighted average number of common
shares outstanding during the periods.
Three Months Ended June 30, Nine Months Ended June 30,
--------------------------- --------------------------
1998 1997 1998 1997
------- ------- ------- -------
Shares outstanding at 9,667 9,691 9,670 9,696
beginning of period
Issuance of common
stock -- -- -- --
Repurchase and
retirement of common
stock (17) (21) (20) (26)
------- ------- ------- -------
Shares outstanding at
end of period 9,650 9,670 9,650 9,670
======= ======= ======= =======
Weighted average
shares outstanding 9,660 9,676 9,665 9,688
======= ======= ======= =======
Net earnings (loss) $ (474) $ 36 $ 6,361 $ 9,317
======= ======= ======= =======
Earnings (loss) per
common share $ (0.05) $ 0.00 $ 0.66 $ 0.96
======= ======= ======= =======
The Company has no common stock equivalents outstanding.
7
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1998
<PERIOD-START> OCT-01-1997
<PERIOD-END> JUN-30-1998
<CASH> 1,990
<SECURITIES> 0
<RECEIVABLES> 21,312
<ALLOWANCES> (714)
<INVENTORY> 90,526
<CURRENT-ASSETS> 123,733
<PP&E> 52,285
<DEPRECIATION> (35,860)
<TOTAL-ASSETS> 182,744
<CURRENT-LIABILITIES> 52,378
<BONDS> 0
0
0
<COMMON> 9,650
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 182,744
<SALES> 256,285
<TOTAL-REVENUES> 256,285
<CGS> 186,902
<TOTAL-COSTS> 186,902
<OTHER-EXPENSES> 56,701
<LOSS-PROVISION> 138
<INTEREST-EXPENSE> 4,723
<INCOME-PRETAX> 10,473
<INCOME-TAX> 4,112
<INCOME-CONTINUING> 6,361
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 6,361
<EPS-PRIMARY> 0.66
<EPS-DILUTED> 0.66
</TABLE>
