Item 1. | Business |
1
2
3
4
5
6
7
| annual reports on Form 10-K; | |
| quarterly reports on Form 10-Q; | |
| current reports on Form 8-K; | |
| proxy statements for the annual meetings of stockholders; and | |
| Forms 3, 4 and 5 |
| charters for the committees of our board of directors, which are available under the heading Committee Charters in the Corporate Governance section of our websites Investors section; and | |
| our Code of Conduct, which is available under the heading Code of Conduct in the Corporate Governance section of our websites Investors section. |
Item 1A. | Risk Factors |
8
9
| innovation; | |
| customer acceptance; | |
| the efficiency of our suppliers in providing component parts; | |
| the economy; | |
| the performance and quality of our products relative to those of our competitors; and | |
| the strength of our dealer networks. |
10
11
12
13
| require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, which would reduce the availability of our cash flow to fund future working capital, capital expenditures, acquisitions and other general corporate purposes; | |
| increase our vulnerability to general adverse economic and industry conditions; | |
| limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate; | |
| restrict us from introducing new products or pursuing business opportunities; | |
| place us at a competitive disadvantage compared to our competitors that have relatively less indebtedness; |
14
| limit, along with the financial and other restrictive covenants in our indebtedness, among other things, our ability to borrow additional funds, pay cash dividends or engage in or enter into certain transactions; and | |
| prevent us from selling additional receivables to our commercial paper conduits. |
Item 1B. | Unresolved Staff Comments |
Item 2. | Properties |
Leased
|
Owned
|
|||||||||
Location
|
Description of Property
|
(Sq. Ft.) | (Sq. Ft.) | |||||||
United States:
|
||||||||||
Batavia, Illinois
|
Parts Distribution | 310,200 | ||||||||
Beloit, Kansas
|
Manufacturing | 192,200 | ||||||||
Duluth, Georgia
|
Corporate Headquarters | 125,000 | ||||||||
Hesston, Kansas
|
Manufacturing | 1,288,300 | ||||||||
Jackson, Minnesota
|
Manufacturing | 596,000 | ||||||||
Kansas City, Missouri
|
Parts Distribution/Warehouse | 593,600 | ||||||||
International:
|
||||||||||
Neuhausen, Switzerland
|
Regional Headquarters | 20,200 | ||||||||
Stoneleigh, United Kingdom
|
Sales and Administrative Office | 85,000 | ||||||||
Desford, United Kingdom
|
Parts Distribution | 298,000 | ||||||||
Beauvais,
France
(1)
|
Manufacturing | 1,144,400 | ||||||||
Ennery, France
|
Parts Distribution | 417,500 | ||||||||
Marktoberdorf, Germany
|
Manufacturing | 129,000 | 972,900 | |||||||
Baumenheim, Germany
|
Manufacturing | 561,000 | ||||||||
Hohenmoelsen, Germany
|
Manufacturing | 318,300 | ||||||||
Randers, Denmark
|
Manufacturing | 145,100 | 143,400 | |||||||
Linnavuori, Finland
|
Manufacturing | 257,700 | ||||||||
Suolahti, Finland
|
Manufacturing/Parts Distribution | 550,900 | ||||||||
Sunshine, Victoria, Australia
|
Regional Headquarters/Parts Distribution | 94,600 | ||||||||
Haedo, Argentina
|
Parts Distribution/Sales Office | 32,000 | ||||||||
Canoas, Rio Grande do Sul, Brazil
|
Regional Headquarters/ Manufacturing/Parts Distribution | 615,300 | ||||||||
Santa Rosa, Rio Grande do Sul, Brazil
|
Manufacturing | 386,500 | ||||||||
Mogi das Cruzes, Brazil
|
Manufacturing/Parts Distribution | 722,200 | ||||||||
Ibirubá, Rio Grande do Sul, Brazil
|
Manufacturing | 136,800 |
(1) | Includes our joint venture with GIMA, in which we own a 50% interest. |
15
Item 3. | Legal Proceedings |
Item 4. | Submission Of Matters to a Vote of Security Holders |
16
71
81
105
Item 5.
Market
For Registrants Common Equity, Related Stockholder Matters
and Issuer Purchases of Equity Securities
High
Low
$
28.13
$
15.10
30.79
20.63
33.50
25.06
32.78
26.15
High
Low
$
70.50
$
54.35
70.51
50.70
63.06
40.99
41.30
19.35
17
Table of Contents
Item 6.
Selected
Financial Data
Years Ended December 31,
2009
2008
(4)
2007
(4)
2006
(2)(4)
2005
(2)(4)
(In millions, except per share data)
$
6,630.4
$
8,424.6
$
6,828.1
$
5,435.0
$
5,449.7
1,072.5
1,499.7
1,191.0
927.8
933.6
219.3
565.0
394.8
68.9
274.7
135.7
385.9
232.9
(71.4
)
28.4
$
135.7
$
385.9
$
232.9
$
(71.4
)
$
28.4
$
1.44
$
3.95
$
2.41
$
(0.79
)
$
0.31
94.1
97.7
96.6
90.8
90.7
As of December 31,
2009
2008
(4)
2007
(4)
2006
(2)(4)
2005
(2)(4)
(In millions, except number of employees)
$
652.7
$
512.2
$
582.4
$
401.1
$
220.6
1,070.8
1,026.7
709.6
715.7
825.8
5,062.2
4,954.8
4,787.6
4,114.5
3,861.2
454.0
625.0
294.1
523.1
805.1
2,400.8
2,020.0
2,120.1
1,584.1
1,457.5
14,456
15,606
13,720
12,804
13,023
(1)
Holders of our $201.3 million
1
3
/
4
%
convertible senior subordinated notes due 2033 and our
$201.3 million
1
1
/
4
%
convertible senior subordinated notes due 2036 may convert
the notes if, during any fiscal quarter, the closing sales price
of our common stock exceeds 120% of the conversion price of
$22.36 per share for our
1
3
/
4
%
convertible senior subordinated notes and $40.73 per share for
our
1
1
/
4
%
convertible senior subordinated notes for at least 20 trading
days in the 30 consecutive trading days ending on the last
trading day of the preceding fiscal quarter. As of
December 31, 2009, the criteria was met for our
1
1
/
4
%
convertible senior subordinated notes, and, therefore, we
classified these notes as current liabilities. As of
December 31, 2008, this criteria was not met with respect
to either of the notes, and, therefore, we classified both notes
as long-term debt. As of December 31, 2007, the criteria
was met for both notes, and, therefore, we classified both notes
as current liabilities. As of December 31, 2006, the
criteria was met for our
1
3
/
4
%
convertible senior subordinated notes, and, therefore, we
classified these notes as a current liability.
(2)
During the fourth quarter of 2006,
we concluded that the goodwill associated with our Sprayer
business was impaired. We recorded a write-down of the total
amount of such goodwill of approximately $171.4 million.
During the fourth quarter of 2005, we recognized a non-cash
income tax charge of approximately $90.8 million related to
increasing the valuation allowance for our U.S. deferred income
tax assets.
(3)
Our
1
1
/
4
%
and
1
3
/
4
%
convertible senior subordinated notes also potentially will
impact the dilution of weighted shares outstanding for the
excess conversion value using the treasury stock method. For the
years ended December 31, 2006 and 2005, approximately
1.2 million and 4.4 million shares, respectively, were
excluded from the diluted weighted average shares outstanding
calculation related to the assumed conversion of our
1
3
/
4
%
convertible senior subordinates notes, as the impact would have
been antidilutive.
(4)
Operating data and balance sheet
data presented above have been retroactively restated for the
years ended December 31, 2008, 2007, 2006 and 2005 to
reflect adjustments made for the equity components of our
convertible senior subordinated notes and our noncontrolling
interests. Refer to Notes 1 and 7 of our Consolidated
Financial Statements for further discussion.
18
Table of Contents
Item 7.
Managements
Discussion and Analysis of Financial Condition and Results of
Operations
Years Ended December 31,
2009
2008
2007
100.0
%
100.0
%
100.0
%
83.8
82.2
82.6
16.2
17.8
17.4
9.5
8.6
9.1
2.9
2.3
2.3
0.2
0.3
0.2
0.2
3.3
6.7
5.8
0.7
0.4
0.6
0.3
0.2
0.6
2.3
6.1
4.6
0.9
2.0
1.6
1.4
4.1
3.0
0.6
0.5
0.4
2.0
4.6
3.4
2.0
%
4.6
%
3.4
%
19
Table of Contents
20
Table of Contents
Change due to Currency
Change
Translation
2009
2008
$
%
$
%
$
1,442.7
$
1,794.3
$
(351.6
)
(19.6
)%
$
(37.0
)
(2.1
)%
1,167.1
1,496.5
(329.4
)
(22.0
)%
(61.1
)
(4.1
)%
3,782.1
4,905.4
(1,123.3
)
(22.9
)%
(296.7
)
(6.1
)%
238.5
228.4
10.1
4.5
%
(9.6
)
(4.2
)%
$
6,630.4
$
8,424.6
$
(1,794.2
)
(21.3
)%
$
(404.4
)
(4.8
)%
Year Ended December 31,
2009 at
2009 at
Change due to
Actual Exchange
Adjusted Exchange
Currency
Rates
Rates
(1)
Translation
$
1,442.7
$
1,479.7
(2.1
)%
1,167.1
1,228.2
(4.1
)%
3,782.1
4,078.8
(6.1
)%
238.5
248.1
(4.2
)%
$
6,630.4
$
7,034.8
(4.8
)%
(1)
Adjusted exchange rates are 2008
exchange rates.
2009
2008
% of
% of
$
Net Sales
$
Net Sales
$
1,072.5
16.2
%
$
1,499.7
17.8
%
630.1
9.5
%
720.9
8.6
%
191.9
2.9
%
194.5
2.3
%
13.2
0.2
%
0.2
18.0
0.3
%
19.1
0.2
%
$
219.3
3.3
%
$
565.0
6.7
%
21
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22
Table of Contents
23
Table of Contents
Change due to Currency
Change
Translation
2008
2007
$
%
$
%
$
1,794.3
$
1,488.1
$
306.2
20.6
%
$
(11.6
)
(0.8
)%
1,496.5
1,090.6
405.9
37.2
%
76.8
7.0
%
4,905.4
4,067.1
838.3
20.6
%
181.3
4.5
%
228.4
182.3
46.1
25.3
%
1.4
0.8
%
$
8,424.6
$
6,828.1
$
1,596.5
23.4
%
$
247.9
3.6
%
Year Ended December 31,
2008 at
2008 at
Change due to
Actual Exchange
Adjusted Exchange
Currency
Rates
Rates
(1)
Translation
$
1,794.3
$
1,805.9
(0.8
)%
1,496.5
1,419.7
7.0
%
4,905.4
4,724.1
4.5
%
228.4
227.0
0.8
%
$
8,424.6
$
8,176.7
3.6
%
(1)
Adjusted exchange rates are 2007
exchange rates.
24
Table of Contents
2008
2007
% of
% of
$
Net Sales
$
Net Sales
$
1,499.7
17.8
%
$
1,191.0
17.4
%
720.9
8.6
%
625.7
9.1
%
194.5
2.3
%
154.9
2.3
%
0.2
(2.3
)
19.1
0.2
%
17.9
0.2
%
$
565.0
6.7
%
$
394.8
5.8
%
25
Table of Contents
Three Months Ended
March 31
June 30
September 30
December 31
(In millions, except per share data)
$
1,579.0
$
1,795.2
$
1,403.7
$
1,852.5
272.3
291.5
241.4
267.3
58.6
77.8
34.0
48.9
34.3
57.0
10.0
34.4
(0.6
)
0.4
1.1
(0.9
)
33.7
57.4
11.1
33.5
0.36
0.61
0.12
0.35
$
1,786.6
$
2,395.4
$
2,085.4
$
2,157.2
315.2
428.2
380.1
376.2
94.2
189.1
141.7
140.0
58.8
129.6
99.0
98.5
58.8
129.6
99.0
98.5
0.59
1.31
1.01
1.05
(1)
For 2009, the quarters ended
March 31, June 30, September 30 and December 31
included restructuring and other infrequent expenses of
$0.0 million, $2.8 million, $1.0 million and
$9.4 million, respectively, thereby impacting net income
per common share on a diluted basis by $0.00, $0.02, $0.01,
$0.07, respectively.
For 2008, the quarters ended
March 31, June 30, September 30 and December 31
included restructuring and other infrequent expenses (income) of
$0.1 million, $0.1 million, $0.1 million and
$(0.1) million, respectively, with no impact to net income
per common share on a diluted basis.
(2)
Amounts presented above for the
three months ended March 31, June 30,
September 30, and December 31, 2008 have been
retroactively restated to reflect adjustments made for the
amortization of the debt discounts related to our convertible
senior subordinated notes. Refer to Notes 1 and 7 of our
Consolidated Financial Statements for further discussion.
26
Table of Contents
27
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Our $300 million revolving credit facility which expires in
May 2013 (no amounts were outstanding as of December 31,
2009).
Our 200.0 million (or approximately
$286.5 million as of December 31,
2009) 6
7
/
8
% senior
subordinated notes, which mature in 2014.
Our $201.3 million
1
3
/
4
%
convertible senior subordinated notes may be required to be
repurchased on December 31, 2010, or could be converted
earlier based on the closing sales price of our common stock
(see further discussion below). Our $201.3 million
1
1
/
4
%
convertible senior subordinated notes may be required to be
repurchased on December 15, 2013, or could be converted
earlier based on the closing sales price of our common stock
(see further discussion below).
Our 140.0 million (or approximately
$200.6 million as of December 31,
2009) securitization facility in Europe, which expires in
October 2011. As of December 31, 2009, outstanding funding
related to this facility was approximately
104.6 million (or approximately $149.9 million).
Our new accounts receivable sales agreements in the United
States and Canada with AGCO Finance LLC and AGCO Finance Canada,
Ltd., with total funding of up to $600.0 million for
U.S. wholesale accounts receivable and up to
C$250.00 million (or approximately $234.7 million as
of December 31, 2009) for Canadian wholesale accounts
receivable. As of December 31, 2009, approximately
$444.6 million of proceeds had been received under these
agreements.
28
Table of Contents
29
Table of Contents
30
Table of Contents
Payments Due By Period
2011 to
2013 to
2015 and
Total
2010
2012
2014
Beyond
$
689.2
$
201.4
$
$
286.5
$
201.3
98.9
25.7
44.4
28.8
4.1
2.1
1.8
0.2
154.2
41.5
51.0
21.2
40.5
82.3
58.6
23.7
269.1
41.8
58.6
48.3
120.4
$
1,297.8
$
371.1
$
179.5
$
385.0
$
362.2
Amount of Commitment Expiration Per Period
2011 to
2013 to
2015 and
Total
2010
2012
2014
Beyond
$
9.3
$
9.3
$
$
$
74.1
64.3
9.0
0.8
$
83.4
$
73.6
$
9.0
$
0.8
$
(1)
Estimated interest payments are
calculated assuming current interest rates over minimum maturity
periods specified in debt agreements. Debt may be repaid sooner
or later than such minimum maturity periods. Indebtedness
amounts reflect the principal amount of our convertible senior
subordinated notes.
(2)
Other short-term and long-term
obligations include estimates of future minimum contribution
requirements under our U.S. and
non-U.S.
defined benefit pension and postretirement plans. These
estimates are based on current legislation in the countries we
operate within and are subject to change. Other short-term and
long-term obligations also include income tax liabilities
related to uncertain income tax positions connected with ongoing
income tax audits in various jurisdictions. In addition,
short-term obligations include amounts due to financial
institutions related to sales of certain receivables that did
not meet the off-balance sheet criteria.
31
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32
Table of Contents
33
Table of Contents
34
Table of Contents
35
Table of Contents
36
Table of Contents
37
Table of Contents
Inflation
Expected return on plan assets
Mortality rates
38
Table of Contents
39
Table of Contents
2009
2008
Large and small cap domestic equity securities
24
%
24
%
International equity securities
15
%
11
%
Domestic fixed income securities
22
%
23
%
Other investments
39
%
42
%
Total
100
%
100
%
2009
2008
Equity securities
39
%
39
%
Fixed income securities
35
%
33
%
Other investments
26
%
28
%
Total
100
%
100
%
40
Table of Contents
Inflation
Medical coverage elections
Mortality rates
41
Table of Contents
One Percentage
One Percentage
Point Increase
Point Decrease
$
0.2
$
(0.1
)
$
3.0
$
(2.6
)
42
Table of Contents
Item 7A.
Quantitative
and Qualitative Disclosures About Market Risk
43
Table of Contents
Item 8.
Financial
Statements and Supplementary Data
Page
45
46
47
48
49
50
44
Table of Contents
45
Table of Contents
Years Ended December 31,
2009
2008
2007
$
6,630.4
$
8,424.6
$
6,828.1
5,557.9
6,924.9
5,637.1
1,072.5
1,499.7
1,191.0
630.1
720.9
625.7
191.9
194.5
154.9
13.2
0.2
(2.3
)
18.0
19.1
17.9
219.3
565.0
394.8
43.3
33.2
37.5
22.2
20.1
43.4
153.8
511.7
313.9
56.5
164.6
111.4
97.3
347.1
202.5
38.4
38.8
30.4
135.7
385.9
232.9
$
135.7
$
385.9
$
232.9
$
1.47
$
4.21
$
2.55
$
1.44
$
3.95
$
2.41
92.2
91.7
91.5
94.1
97.7
96.6
46
Table of Contents
CONSOLIDATED BALANCE SHEETS
(In millions, except share amounts)
47
Table of Contents
CONSOLIDATED STATEMENTS OF STOCKHOLDERS
EQUITY
(In millions, except share amounts)
Comprehensive
Accumulated Other Comprehensive Income (Loss)
Income (Loss)
Comprehensive
Defined
Deferred
Accumulated
attributable to
Income (Loss)
Additional
Benefit
Cumulative
Gains
Other
Total
AGCO Corporation
attributable to
Common Stock
Paid-in
Retained
Pension
Translation
(Losses) on
Comprehensive
Noncontrolling
Stockholders
and
Noncontrolling
Shares
Amount
Capital
Earnings
Plans
Adjustment
Derivatives
Income (Loss)
Interests
Equity
subsidiaries
Interests
91,177,903
$
0.9
$
908.9
$
774.1
$
(170.3
)
$
(22.0
)
$
2.0
$
(190.3
)
$
$
1,493.6
94.2
(9.7
)
0.4
0.4
5.6
90.5
91,177,903
0.9
1,003.1
764.4
(169.9
)
(22.0
)
2.0
(189.9
)
5.6
1,584.1
232.9
232.9
$
232.9
$
6,346
0.2
0.2
425,646
8.0
8.0
25.6
25.6
1.4
1.4
1.4
1.4
71.1
71.1
71.1
71.1
0.1
0.1
0.1
0.1
10.5
10.5
0.1
10.6
10.5
0.1
7.7
7.7
7.7
7.7
(4.4
)
(4.4
)
(4.4
)
(4.4
)
182.5
182.5
0.3
182.8
182.5
0.3
91,609,895
0.9
1, 036.9
997.3
(86.8
)
160.5
5.3
79.0
6.0
2,120.1
501.8
0.4
385.9
385.9
385.9
136,457
1.6
1.6
62,387
(2.6
)
(2.6
)
35,454
(0.3
)
(0.3
)
31.8
31.8
(0.2
)
(0.2
)
(0.2
)
(0.2
)
(57.6
)
(57.6
)
(57.6
)
(57.6
)
5.6
5.6
5.6
5.6
(0.2
)
(0.2
)
(0.9
)
0.9
0.9
0.9
(44.4
)
(44.4
)
(44.4
)
(44.4
)
(1.0
)
(1.0
)
(1.0
)
(1.0
)
(418.4
)
(418.4
)
(0.3
)
(418.7
)
(418.4
)
(0.3
)
91,844,193
0.9
1,067.4
1,382.1
(138.1
)
(257.9
)
(40.1
)
(436.1
)
5.7
2,020.0
(129.2
)
(0.3
)
135.7
135.7
135.7
26,388
0.6
0.6
581,393
(5.2
)
(5.2
)
1,691
7.4
7.4
1.3
1.3
(75.6
)
(75.6
)
(0.1
)
(75.7
)
(75.6
)
(0.1
)
5.4
5.4
0.1
5.5
5.4
0.1
35.4
35.4
35.4
35.4
0.6
0.6
0.6
0.6
(8.3
)
(8.3
)
282.9
282.9
0.6
283.5
282.9
0.6
92,453,665
$
0.9
$
1,061.9
$
1,517.8
$
(208.3
)
$
25.0
$
(4.1
)
$
(187.4
)
$
7.6
$
2,400.8
$
384.4
$
0.6
48
Table of Contents
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In millions)
Years Ended December 31,
2009
2008
2007
$
135.7
$
385.9
$
232.9
129.6
127.4
115.6
2.8
3.2
4.7
18.0
19.1
17.9
15.0
14.1
13.4
8.0
33.3
25.7
(20.7
)
(11.0
)
(3.5
)
(21.9
)
7.3
2.5
1.4
(0.2
)
(2.9
)
265.9
(208.4
)
(3.0
)
292.8
(374.2
)
10.7
38.5
(75.6
)
(41.4
)
(411.3
)
284.4
54.1
(82.3
)
127.4
86.4
(19.8
)
(41.4
)
(8.8
)
216.0
(94.6
)
271.4
351.7
291.3
504.3
(215.3
)
(251.3
)
(141.4
)
2.6
4.9
6.0
0.5
(17.8
)
(17.6
)
(0.6
)
(68.0
)
37.1
(32.5
)
(2.7
)
(192.7
)
(279.5
)
(223.9
)
282.3
76.5
208.8
(343.6
)
(38.1
)
(329.5
)
0.3
8.2
(5.2
)
(3.2
)
(0.1
)
(1.4
)
(0.3
)
1.3
(65.3
)
34.1
(112.8
)
46.8
(116.1
)
13.7
140.5
(70.2
)
181.3
512.2
582.4
401.1
$
652.7
$
512.2
$
582.4
49
Table of Contents
1.
Operations
and Summary of Significant Accounting Policies
50
Table of Contents
51
Table of Contents
52
Table of Contents
53
Table of Contents
2009
2008
$
3.0
$
125.1
35.0
28.1
$
38.0
$
153.2
2009
2008
$
480.0
$
484.9
383.1
396.1
86.5
130.5
237.7
378.4
$
1,187.3
$
1,389.9
54
Table of Contents
2009
2008
$
60.1
$
54.5
363.1
297.3
1,145.1
969.9
202.3
172.7
1,770.6
1,494.4
(827.6
)
(683.3
)
$
943.0
$
811.1
55
Table of Contents
North
South
Europe/Africa/
America
America
Middle East
Consolidated
$
3.1
$
146.4
$
442.6
$
592.1
7.5
7.5
(7.9
)
(7.9
)
29.8
44.1
73.9
3.1
183.7
478.8
665.6
(16.8
)
(16.8
)
(42.1
)
(19.7
)
(61.8
)
3.1
141.6
442.3
587.0
(9.2
)
(9.2
)
45.6
10.6
56.2
$
3.1
$
187.2
$
443.7
$
634.0
Weighted-Average
30 years
7 years
10 years
56
Table of Contents
Trademarks and
Customer
Patents and
Tradenames
Relationships
Technology
Total
$
33.4
$
103.0
$
55.2
$
191.6
(0.2
)
(14.6
)
(2.3
)
(17.1
)
33.2
$
88.4
$
52.9
$
174.5
0.2
14.9
1.4
16.5
$
33.4
$
103.3
$
54.3
$
191.0
Trademarks and
Customer
Patents and
Tradenames
Relationships
Technology
Total
$
7.2
$
42.6
$
32.3
$
82.1
1.3
10.2
7.6
19.1
(0.1
)
(7.4
)
(1.7
)
(9.2
)
8.4
45.4
38.2
92.0
1.4
9.4
7.2
18.0
0.1
8.3
1.1
9.5
$
9.9
$
63.1
$
46.5
$
119.5
Trademarks and
Tradenames
$
96.2
(1.8
)
94.4
0.9
$
95.3
57
Table of Contents
2009
2008
$
264.6
$
169.8
161.8
164.3
144.4
183.9
112.8
135.9
151.2
145.9
$
834.8
$
799.8
2009
2008
2007
$
183.4
$
167.1
$
136.9
141.6
170.3
148.5
(150.9
)
(142.8
)
(129.9
)
7.5
(11.2
)
11.6
$
181.6
$
183.4
$
167.1
58
Table of Contents
Years Ended
December 31,
2009
2008
2007
$
0.1
$
1.5
$
1.0
8.2
32.0
25.0
$
8.3
$
33.5
$
26.0
2009
2008
2007
$
65.7
$
67.4
$
63.9
(22.4
)
(34.2
)
(26.4
)
$
43.3
$
33.2
$
37.5
59
Table of Contents
2009
2008
2007
$
135.7
$
385.9
$
232.9
92.2
91.7
91.5
$
1.47
$
4.21
$
2.55
$
135.7
$
385.9
$
232.9
92.2
91.7
91.5
0.4
0.4
0.3
1.5
5.6
4.8
94.1
97.7
96.6
$
1.44
$
3.95
$
2.41
60
Table of Contents
AGCO Corporation and
Noncontrolling
Subsidiaries
Interests
2009
2009
Before-tax
Income
After-tax
After-tax
Amount
Taxes
Amount
Amount
$
(97.6
)
$
27.4
$
(70.2
)
$
52.7
(17.3
)
35.4
0.6
0.6
282.9
282.9
0.6
$
238.6
$
10.1
$
248.7
$
0.6
AGCO Corporation and
Noncontrolling
Subsidiaries
Interests
2008
2008
Before-tax
Income
After-tax
After-tax
Amount
Taxes
Amount
Amount
$
(63.5
)
$
12.2
$
(51.3
)
$
(65.4
)
21.0
(44.4
)
(1.0
)
(1.0
)
(418.4
)
(418.4
)
(0.3
)
$
(548.3
)
$
33.2
$
(515.1
)
$
(0.3
)
AGCO Corporation and
Noncontrolling
Subsidiaries
Interests
2007
2007
Before-tax
Income
After-tax
After-tax
Amount
Taxes
Amount
Amount
$
116.5
$
(33.4
)
$
83.1
$
0.1
11.4
(3.7
)
7.7
(4.4
)
(4.4
)
182.5
182.5
0.3
$
306.0
$
(37.1
)
$
268.9
$
0.4
61
Table of Contents
62
Table of Contents
63
Table of Contents
64
Table of Contents
3.
Restructuring
and Other Infrequent Expenses (Income)
65
Table of Contents
4.
Accounts
Receivable Securitization
66
Table of Contents
United States
Canada
Europe
Total
2009
2008
2009
2008
2009
2008
2009
2008
$
$
336.2
$
$
74.5
$
205.9
$
154.5
$
205.9
$
565.2
$
$
55.8
$
$
9.4
$
56.0
$
16.2
$
56.0
$
82.0
$
$
0.4
$
$
0.1
$
$
$
$
0.5
2.7
2.7
2.2
2.1
3.6
%
4.2
%
1.5
%
4.7
%
$
81.4
0.5
(26.0
)
$
55.9
67
Table of Contents
68
Table of Contents
5.
Investments
in Affiliates
2009
2008
$
258.7
$
187.8
78.0
75.0
10.8
12.3
$
347.5
$
275.1
2009
2008
2007
$
36.4
$
29.7
$
26.6
2.0
9.1
3.8
$
38.4
$
38.8
$
30.4
As of December 31,
2009
2008
$
6,389.3
$
4,780.2
5,861.3
4,397.0
528.0
383.2
For the Years Ended December 31,
2009
2008
2007
$
335.8
$
295.6
$
283.8
229.0
206.0
200.3
$
106.8
$
89.6
$
83.5
69
Table of Contents
Weighted-Average
Amount
Useful Life
$
4.3
Indefinite
0.8
5 years
7.8
17 years
$
12.9
As of December 31,
2009
2008
$
250.9
$
283.4
101.7
141.3
149.2
142.1
70
Table of Contents
For the Years Ended December 31,
2009
2008
$
180.8
$
275.6
175.5
251.2
$
5.3
$
24.4
6.
Income
Taxes
2009
2008
2007
$
(29.7
)
$
(67.6
)
$
(89.1
)
183.5
579.3
403.0
$
153.8
$
511.7
$
313.9
2009
2008
2007
$
(4.0
)
$
(5.7
)
$
(6.7
)
0.2
82.2
163.0
115.6
78.4
157.3
108.9
(0.4
)
1.5
0.1
(21.5
)
5.8
2.4
(21.9
)
7.3
2.5
$
56.5
$
164.6
$
111.4
Table of Contents
2009
2008
2007
$
53.9
$
179.1
$
109.9
0.7
(0.3
)
(2.5
)
15.2
2.0
7.0
20.7
(23.7
)
(25.7
)
(38.8
)
6.9
22.6
4.8
0.6
0.1
$
56.5
$
164.6
$
111.4
2009
2008
$
215.0
$
210.8
40.4
51.2
23.3
23.0
86.6
63.7
92.5
75.6
27.2
47.1
485.0
471.4
(261.7
)
(294.4
)
223.3
177.0
178.1
171.3
30.0
29.0
208.1
200.3
$
15.2
$
(23.3
)
$
63.6
$
56.6
70.3
29.9
(1.7
)
(118.7
)
(108.1
)
$
15.2
$
(23.3
)
72
Table of Contents
$
20.1
8.4
1.3
(1.7
)
(4.0
)
(2.3
)
$
21.8
73
Table of Contents
7.
Indebtedness
December 31,
December 31,
2009
2008
$
286.5
$
279.4
193.0
185.3
167.5
160.3
0.1
0.1
647.1
625.1
(0.1
)
(0.1
)
(193.0
)
$
454.0
$
625.0
$
286.5
167.5
$
454.0
74
Table of Contents
December 31,
2009
2008
$
39.9
$
39.9
$
201.3
$
201.3
(8.3
)
(16.0
)
$
193.0
$
185.3
$
54.3
$
54.3
$
201.3
$
201.3
(33.8
)
(41.0
)
$
167.5
$
160.3
Years Ended December 31,
2009
2008
2007
$
11.3
$
10.9
$
10.4
$
9.8
$
9.4
$
9.0
75
Table of Contents
As
Previously
Reported
Adjustment
As Adjusted
$
682.0
$
(57.0
)
$
625.0
$
973.2
$
94.2
$
1,067.4
$
1,419.3
$
(37.2
)
$
1,382.1
$
19.1
$
14.1
$
33.2
$
400.0
$
(14.1
)
$
385.9
$
4.36
$
(0.15
)
$
4.21
$
4.09
$
(0.14
)
$
3.95
$
24.1
$
13.4
$
37.5
$
246.3
$
(13.4
)
$
232.9
$
2.69
$
(0.14
)
$
2.55
$
2.55
$
(0.14
)
$
2.41
76
Table of Contents
77
Table of Contents
78
Table of Contents
8.
Employee
Benefit Plans
2009
2008
2007
$
9.0
$
9.6
$
8.6
36.8
42.0
43.7
(29.5
)
(42.5
)
(43.6
)
6.5
8.3
14.9
(0.2
)
(0.3
)
(0.2
)
0.2
0.6
$
22.8
$
17.7
$
23.4
79
Table of Contents
2009
2008
2007
6.6
%
5.9
%
5.1
%
7.0
%
7.1
%
7.1
%
3.0-4.0
%
3.0-4.0
%
3.0-4.0
%
6.25
%
6.25
%
5.8
%
8.0
%
8.0
%
8.0
%
N/A
N/A
N/A
2009
2008
2007
$
0.1
$
$
0.1
1.7
1.5
1.4
(0.3
)
(0.3
)
(0.2
)
0.3
0.2
0.1
0.1
0.2
$
1.8
$
1.5
$
1.6
6.33
%
6.25
%
5.8
%
Pension Benefits
Postretirement Benefits
2009
2008
2009
2008
$
538.5
$
777.0
$
28.6
$
25.6
9.0
10.6
0.1
36.8
51.5
1.7
1.5
1.5
2.0
131.0
(82.1
)
(0.8
)
3.0
0.4
(1.4
)
(1.8
)
(39.5
)
(53.5
)
(1.7
)
(2.0
)
1.9
0.1
55.4
(167.1
)
0.2
$
731.3
$
538.5
$
28.1
$
28.6
80
Table of Contents
Pension Benefits
Postretirement Benefits
2009
2008
2009
2008
$
399.3
$
657.8
$
$
57.7
(98.9
)
28.4
31.7
1.7
2.0
1.5
2.0
(39.5
)
(53.5
)
(1.7
)
(2.0
)
(1.4
)
(1.8
)
1.6
43.2
(139.6
)
$
489.2
$
399.3
$
$
$
(242.1
)
$
(139.2
)
$
(28.1
)
$
(28.6
)
282.1
186.1
6.0
7.1
(2.3
)
(2.5
)
(0.5
)
(0.8
)
(279.8
)
(183.6
)
(5.5
)
(6.3
)
$
(242.1
)
$
(139.2
)
$
(28.1
)
$
(28.6
)
$
0.6
$
$
$
(5.1
)
(4.2
)
(1.8
)
(1.9
)
(237.6
)
(135.0
)
(26.3
)
(26.7
)
$
(242.1
)
$
(139.2
)
$
(28.1
)
$
(28.6
)
Table of Contents
2009
2008
5.7
%
6.6
%
2.5-4.5
%
3.0-4.0
%
5.5
%
6.25
%
N/A
N/A
82
Table of Contents
2009
2008
24
%
24
%
15
%
11
%
22
%
23
%
39
%
42
%
100
%
100
%
2009
2008
39
%
39
%
35
%
33
%
26
%
28
%
100
%
100
%
Total
Level 1
Level 2
Level 3
$
82.6
$
82.6
$
$
4.8
4.8
92.6
92.6
4.7
4.7
2.9
2.9
187.6
187.6
7.2
7.2
146.8
146.8
154.0
154.0
3.3
0.1
3.2
3.3
0.1
3.2
127.6
127.6
16.7
16.7
$
489.2
$
341.7
$
3.2
$
144.3
(1)
45% of fixed income securities are
in government treasuries; 25% in investment-grade corporate
bonds; 20% in foreign bonds; and 10% in other various fixed
income securities.
(2)
27% of alternative investments are
in long-short equity funds; 16% in multi-strategy funds; 15% in
event-driven funds; 11% in relative value funds; 11% in credit
funds; and 20% are distributed in hedged and non-hedged funds.
(3)
Miscellaneous funds consist of
pooled funds in Australia and insurance contracts in Finland,
Norway and Switzerland.
83
Table of Contents
Alternative
Miscellaneous
Total
Investments
Funds
$
122.6
$
110.6
$
12.0
17.4
15.8
1.6
2.7
2.7
(11.0
)
(12.6
)
1.6
12.6
11.1
1.5
$
144.3
$
127.6
$
16.7
84
Table of Contents
One Percentage
One Percentage
Point Increase
Point Decrease
$
0.2
$
(0.1
)
$
3.0
$
(2.6
)
$
43.3
42.0
44.3
46.6
46.3
235.5
$
458.0
85
Table of Contents
$
1.8
1.8
1.9
1.9
2.0
10.0
$
19.4
2009
2008
2007
$
1.2
$
1.1
$
1.1
0.8
0.6
0.6
0.5
0.5
0.6
(0.1
)
(0.2
)
(0.1
)
$
2.4
$
2.0
$
2.2
6.25
%
6.25
%
5.8
%
5.0
%
5.0
%
5.0
%
86
Table of Contents
2009
2008
$
12.4
$
10.2
1.2
1.1
0.8
0.6
2.5
0.9
(0.4
)
(0.4
)
$
16.5
$
12.4
$
(16.5
)
$
(12.4
)
0.7
(2.0
)
2.9
3.4
(3.6
)
(1.4
)
$
(16.5
)
$
(12.4
)
$
(0.7
)
$
(0.5
)
(15.8
)
(11.9
)
$
(16.5
)
$
(12.4
)
$
0.7
0.8
0.9
1.1
1.1
7.3
$
11.9
87
Table of Contents
9.
Common
Stock
10.
Stock
Incentive Plans
88
Table of Contents
1,446,168
1,238,000
(58,112
)
(883,188
)
1,742,868
89
Table of Contents
Years Ended December 31,
2009
2008
2007
$
7.46
$
17.90
$
16.99
5.5
5.5
5.5
1.6
%
2.7
%
4.7
%
45.3
%
38.0
%
41.4
%
415,791
300,500
(1,500
)
(6,750
)
708,041
$
21.45-29.23
23.80
23.80-56.98
$
21.59
23.80
32.52
31.09
SSARs Outstanding
SSARs Exercisable
Weighted Average
Exercisable
Remaining
as of
Number of
Contractual Life
Weighted Average
December 31,
Weighted Average
Shares
(Years)
Exercise Price
2009
Exercise Price
420,750
5.2
$
22.16
86,437
$
23.73
182,953
4.2
$
36.90
79,938
$
37.11
104,338
5.1
$
56.92
26,975
$
56.92
708,041
193,350
$
33.89
90
Table of Contents
91
Table of Contents
53,600
(1,425
)
52,175
1,935,437
$
11.00-15.12
$
14.75
12.23
14.82
Options Outstanding and Exercisable
as of December 31, 2009
Weighted Average
Remaining
Number of
Contractual Life
Weighted Average
Shares
(Years)
Exercise Price
13,900
0.8
$
11.51
38,275
2.0
$
16.02
52,175
$
14.82
92
Table of Contents
11.
Derivative
Instruments and Hedging Activities
93
Table of Contents
Before-Tax
Income
After-Tax
Amount
Tax
Amount
$
0.1
$
$
0.1
15.4
3.7
11.7
(4.1
)
(4.1
)
11.4
3.7
7.7
(49.5
)
(19.2
)
(30.3
)
(16.0
)
(1.9
)
(14.1
)
(54.1
)
(17.4
)
(36.7
)
34.6
13.7
20.9
18.1
3.6
14.5
$
(1.4
)
$
(0.1
)
$
(1.3
)
94
Table of Contents
Asset Derivatives
Liability Derivatives
As of December 31, 2009
As of December 31, 2009
Balance Sheet
Fair
Balance Sheet
Fair
Value
Location
Value
Other current assets
$
2.5
Other current liabilities
$
Other current assets
$
14.9
Other current liabilities
3.6
$
17.4
$
3.6
95
Table of Contents
12.
Commitments
and Contingencies
Payments Due By Period
2010
2011
2012
2013
2014
Thereafter
Total
$
25.7
$
22.2
$
22.2
$
22.2
$
6.6
$
$
98.9
2.1
1.3
0.5
0.1
0.1
4.1
41.5
30.3
20.7
13.1
8.1
40.5
154.2
58.6
16.2
7.5
82.3
41.8
29.3
29.3
24.1
24.2
120.4
269.1
$
169.7
$
99.3
$
80.2
$
59.5
$
39.0
$
160.9
$
608.6
(1)
Estimated interest payments are
calculated assuming current interest rates over minimum maturity
periods specified in debt agreements. Debt may be repaid sooner
or later than such minimum maturity periods.
(2)
Unconditional purchase obligations
exclude routine purchase orders entered into in the normal
course of business.
(3)
Other short-term and long-term
obligations include estimates of future minimum contribution
requirements under the Companys U.S. and
non-U.S.
defined benefit pension and postretirement plans. These
estimates are based on current legislation in the countries the
Company operates within and are subject to change. Other
short-term and long-term obligations also include income tax
liabilities related to uncertain income tax positions connected
with ongoing income tax audits in various jurisdictions. In
addition, short-term obligations include amounts due to
financial institutions related to sales of certain receivables
that did not meet the off-balance sheet criteria under ASC 860.
Amount of Commitment Expiration Per Period
2010
2011
2012
2013
2014
Thereafter
Total
$
64.3
$
5.0
$
4.0
$
0.7
$
0.1
$
$
74.1
96
Table of Contents
97
Table of Contents
13.
Related
Party Transactions
14.
Segment
Reporting
98
Table of Contents
North
South
Europe/Africa/
Asia/
America
America
Middle East
Pacific
Consolidated
$
1,442.7
$
1,167.1
$
3,782.1
$
238.5
$
6,630.4
21.9
64.6
222.3
21.2
330.0
24.1
15.7
86.9
2.9
129.6
583.9
515.1
1,566.6
140.8
2,806.4
33.3
29.4
152.3
0.3
215.3
$
1,794.3
$
1,496.5
$
4,905.4
$
228.4
$
8,424.6
8.6
134.2
517.1
28.3
688.2
26.8
20.0
77.8
2.8
127.4
685.0
489.2
1,751.0
86.6
3,011.8
31.4
25.1
194.7
0.1
251.3
$
1,488.1
$
1,090.6
$
4,067.1
$
182.3
$
6,828.1
(35.7
)
101.3
398.0
19.9
483.5
25.2
18.7
68.9
2.8
115.6
662.6
443.1
1,470.4
75.8
2,651.9
22.2
11.3
107.7
0.2
141.4
2009
2008
2007
$
330.0
$
688.2
$
483.5
(71.3
)
(71.9
)
(48.1
)
(8.2
)
(32.0
)
(25.0
)
(13.2
)
(0.2
)
2.3
(18.0
)
(19.1
)
(17.9
)
$
219.3
$
565.0
$
394.8
$
2,806.4
$
3,011.8
$
2,651.9
652.7
512.2
582.4
33.8
55.6
4.8
1.7
347.5
275.1
284.6
399.2
353.2
395.7
166.8
176.9
205.7
634.0
587.0
665.6
$
5,062.2
$
4,954.8
$
4,787.6
99
Table of Contents
2009
2008
2007
$
1,103.6
$
1,349.7
$
1,173.8
250.8
304.9
209.4
838.4
954.8
757.6
847.6
998.8
794.6
330.8
406.9
393.9
653.0
896.9
797.4
928.2
1,472.8
1,140.0
1,155.6
1,470.3
1,072.9
184.1
175.2
183.6
72.2
66.8
65.2
166.3
161.6
117.1
99.8
165.9
122.6
$
6,630.4
$
8,424.6
$
6,828.1
2009
2008
2007
$
4,393.4
$
5,620.7
$
4,647.6
377.3
481.8
319.9
252.2
363.8
296.8
667.6
909.8
680.2
939.9
1,048.5
883.6
$
6,630.4
$
8,424.6
$
6,828.1
2009
2008
$
138.6
$
129.0
195.8
206.8
297.9
237.0
179.3
128.3
98.9
103.2
104.0
89.3
$
1,014.5
$
893.6
100
Table of Contents
Item 9.
Changes
in and Disagreements with Accountants on Accounting and
Financial Disclosure
Item 9A.
Controls
and Procedures
101
Table of Contents
102
Table of Contents
Item 9B.
Other
Information
Item 10.
Directors,
Executive Officers and Corporate Governance
Item 11.
Executive
Compensation
Item 12.
Security
Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters
(a)
Securities
Authorized for Issuance Under Equity Compensation
Plans
(a)
(b)
(c)
Number of Securities
Number of Securities
Weighted-Average
Remaining Available for Future
to be Issued
Exercise Price
Issuance Under Equity
upon Exercise
of Outstanding
Compensation Plans
of Outstanding
Awards Under
(Excluding Securities Reflected
Awards Under the Plans
the Plans
in Column (a))
2,503,084
$
32.93
2,749,780
2,503,084
$
32.93
2,749,780
103
Table of Contents
Item 13.
Certain
Relationships and Related Transactions, and Director
Independence
Item 14.
Principal
Accountant Fees and Services
Item 15.
Exhibits
and Financial Statement Schedules
Valuation and Qualifying Accounts
The Filings Referenced for
Exhibit
Incorporation by Reference are
3
.1
Certificate of Incorporation
June 30, 2002, Form 10-Q, Exhibit 3.1
3
.2
By-Laws
December 31, 2008, Form 10-K, Exhibit 3.2
4
.1
Rights Agreement
March 31, 1994, Form 10-Q; August 8, 1999, Form 8-A/A, Exhibit
4.1 April 23, 2004,
Form 8-A/A,
Exhibit 4.1
4
.2
Indenture dated as of December 23, 2003
January 7, 2004, Form 8-K, Exhibit 4.1; May 26, 2005,
Registration Statement No. 333-125255, Exhibit 4.2
4
.3
Indenture dated as of April 23, 2004
April 15, 2004, Form 8-K, Exhibit 4.1
4
.4
Indenture dated as of December 4, 2006
December 4, 2006, Form 8-K, Exhibit 10.1
10
.1
2006 Long Term Incentive Plan*
June 30, 2008, Form 10-Q, Exhibit 10.3
10
.2
Form of Non-Qualified Stock Option Award Agreement*
March 31, 2006, Form 10-Q, Exhibit 10.2
10
.3
Form of Incentive Stock Option Award Agreement*
March 31, 2006, Form 10-Q, Exhibit 10.3
10
.4
Form of Stock Appreciation Rights Agreement*
March 31, 2006, Form 10-Q, Exhibit 10.4
10
.5
Form of Restricted Stock Agreement*
March 31, 2006, Form 10-Q, Exhibit 10.5
10
.6
Form of Performance Share Award*
March 31, 2006, Form 10-Q, Exhibit 10.6
104
Table of Contents
The Filings Referenced for
Exhibit
Incorporation by Reference are
10
.7
2001 Stock Option Plan*
March 31, 2001, Form 10-Q, Exhibit 10.2
10
.8
1991 Stock Option Plan*
December 31, 1998, Form 10-K, Exhibit 10.8
10
.9
Form of Stock Option Agreements*
Registration Statement #33-43437
10
.10
Management Incentive Plan*
June 30, 2008, Form 10-Q, Exhibit 10.4
10
.11
Executive Non-qualified Pension Plan*
June 30, 2008, Form 10-Q, Exhibit 10.2
10
.12
Employment and Severance Agreement with Martin H. Richenhagen*
Filed herewith
10
.13
Employment and Severance Agreement with Andrew H. Beck*
June 30, 2008, Form 10-Q, Exhibit 10.5
10
.14
Employment and Severance Agreement with Andre M. Carioba*
December 31, 2008, Form 10-K, Exhibit 10.15
10
.15
Employment and Severance Agreement with Gary L. Collar*
June 30, 2008, Form 10-Q, Exhibit 10.6
10
.16
Employment and Severance Agreement with Hubertus Muehlhaeuser*
June 30, 2008, Form 10-Q, Exhibit 10.7
10
.17
Employment and Severance Agreement with Hans-Bernd Veltmaat*
Filed herewith
10
.18
Credit Agreement dated as of May 16, 2008
May 22, 2008, Form 8-K, Exhibit 10.1; Filed herewith
10
.19
U.S. Receivables Purchase Agreement, dated December 22, 2009
December 23, 2009, Form 8-K, Exhibit 10.1
10
.20
Canadian Receivables Purchase Agreement, dated December 22,
2009
December 23, 2009, Form 8-K, Exhibit 10.2
10
.21
European Receivables Transfer Agreement, dated October 13,
2006
September 30, 2006, Form 10-Q, Exhibit 10.1; Filed herewith
10
.22
French Receivables Purchase Agreement, dated February 19,
2010
Filed herewith
10
.23
Current Director Compensation
Filed herewith
21
.0
Subsidiaries of the Registrant
Filed herewith
23
.1
Consent of KPMG LLP
Filed herewith
24
.0
Powers of Attorney
Filed herewith
31
.1
Certification of Martin Richenhagen
Filed herewith
31
.2
Certification of Andrew H. Beck
Filed herewith
32
.1
Certification of Martin Richenhagen and Andrew H. Beck
Filed herewith
Table of Contents
By:
Chairman, President and Chief
Executive Officer
February 26, 2010
Senior Vice President and Chief Financial Officer (Principal
Financial Officer and Principal Accounting Officer)
February 26, 2010
Director
February 26, 2010
Director
February 26, 2010
Director
February 26, 2010
Director
February 26, 2010
Director
February 26, 2010
Director
February 26, 2010
Director
February 26, 2010
Director
February 26, 2010
106
Table of Contents
Director
February 26, 2010
Director
February 26, 2010
Attorney-in-Fact
February 26, 2010
107
Table of Contents
II-1
Table of Contents
Additions
Balance at
Charged to
Foreign
Beginning
Acquired
Costs and
Currency
Balance at
of Period
Businesses
Expenses
Deductions
Translation
End of
Period
(2)
$
125.1
$
$
199.1
$
(226.7
)
$
$
97.5
$
107.9
$
$
193.9
$
(176.7
)
$
$
125.1
$
82.6
$
$
186.9
$
(161.6
)
$
$
107.9
Additions
Charged
Balance at
(Credited) to
Foreign
Beginning
Acquired
Costs and
Currency
Balance at
of Period
Businesses
Expenses
Deductions
Translation
End of Period
$
28.1
$
$
7.1
$
(6.7
)
$
6.5
$
35.0
$
34.5
$
$
2.1
$
(3.5
)
$
(5.0
)
$
28.1
$
37.7
$
0.2
$
(0.5
)
$
(5.4
)
$
2.5
$
34.5
Additions
Balance at
Charged to
Foreign
Beginning
Costs and
Reversal of
Currency
Balance at
of Period
Expenses
Accrual
Deductions
Translation
End of Period
$
$
13.2
$
$
(5.0
)
$
(0.2
)
$
8.0
$
0.9
$
0.2
$
(0.4
)
$
(0.7
)
$
$
$
1.1
$
0.9
$
$
(1.2
)
$
0.1
$
0.9
Additions
Charged
Balance at
(Credited) to
Foreign
Beginning
Acquired
Costs and
Currency
Balance at
of Period
Businesses
Expenses
(1)
Deductions
Translation
End of Period
$
294.4
$
$
(38.0
)
$
$
5.3
$
261.7
$
287.5
$
$
14.6
$
$
(7.7
)
$
294.4
$
258.4
$
$
20.5
$
$
8.6
$
287.5
(1)
Amounts charged through other
comprehensive income (loss) during the years ended
December 31, 2009, 2008 and 2007 were $0.8 million,
$7.7 million and $(2.1) million, respectively.
(2)
As of December 31, 2009,
approximately $94.5 million of this balance was recorded
within Accrued expenses and approximately
$3.0 million was recorded within accounts receivable
allowances in the Companys Consolidated Balance
Sheets.
II-2
Table of Contents
- 1 -
(1) | For the purpose of determining years of credited service, the Executive shall be guaranteed the first five (5) years of service. Benefits shall be vested and portable if the Executives employment is terminated by the Company without Cause, by the Executive for Good Reason or by the Company by not renewing this Agreement, even if the Executives actual employment is less than five (5) years. | ||
(2) | In the event the Executive elects to terminate employment with the Company for reasons other than Good Reason, the benefits of the SERP shall not be portable. |
- 2 -
- 3 -
- 4 -
- 5 -
- 6 -
(i) | The Company may terminate the Executives employment hereunder without Cause, by giving written Notice of Termination (as defined in Section 5(e)) to the Executive. | ||
(ii) | The Executive may terminate his employment hereunder, by giving written Notice of Termination to the Company. For the purposes of this Agreement, the Executive shall have Good Reason to terminate his employment hereunder upon (a) a substantial reduction in the Executives aggregate Base Salary and annual incentive compensation taken as a whole, excluding any reductions caused by the performance of the Company or the Executive, including but not limited to, the failure by the Executive to achieve performance targets established from time to time by the Board and/or under the Management Incentive Plan or Long Term Incentive Plan or from below budget performance by the Company, or (b) the Companys failure to make payments of Base Pay and incentive compensation, but only upon notice of such failure given by the Executive within ninety (90) days of the initial existence of the failure and the subsequent failure of the Company to cure the non-payment within thirty (30) days of such notice. |
- 7 -
- 8 -
- 9 -
6. | CONDITIONS APPLICABLE TO SEVERANCE PERIOD; MITIGATION OF DAMAGES |
- 10 -
- 11 -
Executive initials:
|
Company initials: |
- 12 -
- 13 -
AGCO CORPORATION | ||||||
|
||||||
|
By: | /s/ Debra E. Kuper | ||||
|
|
|
||||
|
Name: | Debra E. Kuper | ||||
|
|
|||||
|
Title: | VP, General Counsel & Secretary | ||||
|
|
|||||
|
||||||
EXECUTIVE | ||||||
|
||||||
|
||||||
|
By: | /s/ Martin Richenhagen | ||||
|
|
|
||||
|
Name: | Martin Richenhagen | ||||
|
|
|||||
|
Date: | February 24, 2010 | ||||
|
|
- 14 -
- 1 -
- 2 -
- 3 -
- 4 -
- 5 -
(i) | The Company may terminate the Executives employment hereunder without Cause, by giving written Notice of Termination (as defined in Section 5(e)) to the Executive. | ||
(ii) | The Executive may terminate his employment hereunder, by giving written Notice of Termination to the Company. For the purposes of this Agreement, the Executive shall have Good Reason to terminate his employment hereunder upon (a) a substantial reduction in the Executives aggregate Base Salary and annual incentive compensation taken as a whole, excluding any reductions caused by the performance of the Company or the Executive, including but not limited to, the failure by the Executive to achieve performance targets established from time to time by the Board and/or under the Long Term Incentive Plan or from below budget performance by the Company, or (b) the Companys failure to make payments of Base Pay and incentive compensation, but only upon notice of such failure given by the Executive and the subsequent failure of the Company to cure the non-payment within thirty (30) days of such notice. |
- 6 -
- 7 -
- 8 -
6. | CONDITIONS APPLICABLE TO SEVERANCE PERIOD; MITIGATION OF DAMAGES |
- 9 -
- 10 -
Executive initials: |
Company initials:
|
- 11 -
AGCO CORPORATION | ||||||
|
||||||
|
By: | |||||
|
|
|||||
|
Name: | |||||
|
|
|||||
|
Title: | |||||
|
|
|||||
|
||||||
EXECUTIVE | ||||||
|
||||||
|
By: | |||||
|
|
|||||
|
Name: | |||||
|
|
|||||
|
Date: | |||||
|
|
- 12 -
- 2 -
- 3 -
- 4 -
- 5 -
BORROWERS: | AGCO CORPORATION | ||||
|
|||||
|
|||||
|
By: | ||||
|
|||||
|
Title | ||||
|
|||||
|
|||||
AGCO INTERNATIONAL LIMITED |
|||||
|
|||||
|
|||||
|
By: | ||||
|
|||||
|
Title | ||||
|
|||||
|
|||||
AGCO INTERNATIONAL HOLDINGS B.V. |
|||||
|
|||||
|
|||||
|
By: | ||||
|
|||||
|
Title | ||||
|
GUARANTORS: | MASSEY FERGUSON CORP. | ||||
|
|||||
|
|||||
|
By: | ||||
|
|||||
|
Title | ||||
|
|||||
|
|||||
EXPORT MARKET SERVICES LLC |
|||||
|
|||||
|
|||||
|
By: | ||||
|
|||||
|
Title | ||||
|
ADMINISTRATIVE AGENT: | COÖPERATIEVE CENTRALE RAIFFEISEN | |||
BOERENLEENBANK B.A., RABOBANK | ||||
NEDERLAND, NEW YORK BRANCH , as | ||||
Administrative Agent | ||||
|
||||
|
||||
|
By: | |||
|
||||
|
Title | |||
|
||||
|
||||
|
By: | |||
|
||||
|
Title | |||
|
||||
|
||||
LENDERS: | See each Lender Addendum attached hereto |
[NAME OF LENDER]
|
||||
By: | ||||
Name:
|
||||
Title
|
||||
(1) | AGCO DEUTSCHLAND GMBH, as Originator and Sub-Servicer; | |
(2) | AGCO DISTRIBUTION S.A.S. , as Originator; | |
(3) | AGCO IBERIA SA , as Originator; | |
(4) | AGCO SERVICES LIMITED , as the Subordinated Lender; | |
(5) | AGCO LIMITED ; as the Master Servicer; | |
(6) | AGCO CORPORATION , as the Parent; | |
(7) | AGCO RECEIVABLES LIMITED , as the Company; | |
(8) | ERASMUS CAPITAL CORPORATION as CP Lender; and | |
(9) | COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. (TRADING AS RABOBANK INTERNATIONAL), LONDON BRANCH , as Agent, Administrator and Liquidity Bank |
Page | ||||
1. DEFINITIONS AND INTERPRETATION
|
1 | |||
|
||||
2. AMENDMENTS TO TRANSACTION DOCUMENTS
|
2 | |||
|
||||
2.1 Amendments to Schedule of Definitions
|
2 | |||
|
||||
2.2 Amendments to Receivables Funding Agreement
|
5 | |||
|
||||
2.3 Amendments to Servicing Agreement
|
5 | |||
|
||||
2.4 Governing Law
|
7 | |||
|
||||
2.5 Transfer by CP Lender
|
7 | |||
|
||||
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
|
8 | |||
|
||||
3.1 Reaffirmation of Representations and Warranties
|
8 | |||
|
||||
3.2 Additional Representations and Warranties
|
8 | |||
|
||||
3.3 Transaction Document
|
8 | |||
|
||||
4. EFFECTIVENESS, RATIFICATION
|
8 | |||
|
||||
4.1 Effectiveness
|
8 | |||
|
||||
4.2 Ratification
|
8 | |||
|
||||
5. MISCELLANEOUS
|
9 | |||
|
||||
5.1 Governing Law and Jurisdiction
|
9 | |||
|
||||
5.2 Headings
|
9 | |||
|
||||
5.3 Counterparts
|
9 | |||
|
||||
5.4 Severability, etc.
|
9 | |||
|
||||
5.5 No Petition
|
9 | |||
|
||||
5.6 Limited Recourse
|
10 |
i
(1) | AGCO DEUTSCHLAND GMBH (successor in interest to AGCO GMBH) , a Gesellschaft mit beschränkter Haftung established under the laws of Germany, as an Originator and Sub-Servicer; | |
(2) | AGCO DISTRIBUTION S.A.S. (successor in interest to AGCO S.A.) , a company incorporated under the laws of France, as an Originator and Sub-Servicer; | |
(3) | AGCO IBERIA SA , a Sociedad Anónima incorporated under the laws of Spain, as an Originator and Sub-Servicer; | |
(4) | AGCO SERVICES LIMITED , a company incorporated under the laws of England and Wales, as the Subordinated Lender; | |
(5) | AGCO LIMITED , a company incorporated under the laws of England and Wales, in its individual capacity and as the Master Servicer; | |
(6) | AGCO CORPORATION , a Delaware corporation, as the Parent; | |
(7) | AGCO RECEIVABLES LIMITED , a company incorporated under the laws of England and Wales, as the Company; | |
(8) | ERASMUS CAPITAL CORPORATION , a corporation incorporated under the laws of Delaware, as the CP Lender; and | |
(9) | COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. , ( trading as RABOBANK INTERNATIONAL ), London Branch ( Rabobank ) as the Agent, the Administrator and the Liquidity Bank. |
(A) | The parties to this Agreement (the Parties ) have entered into a Master Schedule of Definitions, Interpretation and Construction dated 13 October 2006 (as from time to time in effect, the Schedule of Definitions ) and into various other Transaction Documents (such and other capitalised terms being used herein, unless otherwise defined herein, with the meanings provided in Clause 1 ( Interpretation )) in connection with a trade receivables purchase programme (the Programme ) provided by the Company; | |
(B) | the Parties wish to amend the Transaction Documents in certain respects as set out herein. |
1. | DEFINITIONS AND INTERPRETATION |
In this Agreement, including the recitals hereto, except in so far as the context otherwise requires and subject to any contrary indication, words and expressions |
1
defined and expressed to be interpreted and construed in the Schedule of Definitions (after giving effect to the amendments thereto occurring on the date hereof) shall have the same definitions, interpretation and construction mutatis mutandis herein. | ||
2. | AMENDMENTS TO TRANSACTION DOCUMENTS | |
2.1 | Amendments to Schedule of Definitions | |
On the date (the Effective Date ) on which this Agreement has become effective pursuant to Clause 4.1 ( Effectiveness ), the Schedule of Definitions is hereby amended as follows: |
(a) | The definition of Administrator is amended in its entirety to read as follows: |
(b) | The definition of Applicable Margin is deleted. | ||
(c) | The definition of Borrower is amended in its entirety to read as follows: |
(d) | The definition of Commercial Paper is amended in its entirety to read as follows: |
(e) | The definition of Commitment Termination Date is amended in its entirety to read as follows: |
(f) | A definition of Conduit Funding Provider is added in the appropriate alphabetical order as follows: |
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(g) | The definition of CP Rate is amended by deleting the words by the CP Lender in the first line thereof. | ||
(h) | Clause (a) of the definition of CP Value is amended by deleting the words by the CP Lender in the second line thereof and by deleting the words the CP Lender in the sixth line thereof and replacing them with the words the CP Lender or the Conduit Funding Provider, as the case may be,. | ||
(i) | The definition of Fee Letter is amended in its entirety to read as follows: |
(j) | The definition of Forward Amount is amended by deleting the words by the CP Lender and replacing them with the words by the CP Lender or the Conduit Funding Provider, as the case may be,. | ||
(k) | The definition of Forward Contract is amended by deleting the words the CP Lender in the two places in which it appears and replacing them with the words the CP Lender or the Conduit Funding Provider, as the case may be, in both such places. | ||
(l) | The definition of Hedge Counterparty is amended in its entirety to read as follows: |
(m) | The definition of Program Support Agreement is amended in its entirety to read as follows: |
(n) | The definition of Program Support Provider is amended in its entirety to read as follows: |
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(o) | The definition of Rating Confirmation is amended in its entirety to read as follows: |
(p) | A new definition of Rating Downgrade is added in the appropriate alphabetical order as follows: |
(q) | The definition of Spot Contract is amended in its entirety to read as follows: |
(r) | The definition of Termination Date is amended as follows: |
(i) | Clause (d) is amended in its entirety to read as follows: |
(d) | the day on which Agent shall have declared the Termination Date to have occurred by written notice thereof to the Company and the Master Servicer if the Commercial Paper issued by the CP Lender or the Conduit Funding Provider, as the case may be, shall cease to be rated at least A-1 by S&P and at least P1 by Moodys (to the extent that the relevant rating agency has issued a credit rating with respect thereto). |
(ii) | The .at the end of clause (d) is deleted and replaced with ; and, and a new clause (e) is added as follows: |
(e) | the date specified in a written notice from the Agent to the Company and the Master Servicer falling not less than 30 |
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Business Days following the date of such notice if a collateral audit of the AGCO Parties satisfactory to the Agent (in its reasonable sole discretion) fails to occur on or prior to 31 December 2009. |
(s) | A new definition of Trigger Event is added in the appropriate alphabetical order as follows: |
2.2 | Amendments to Receivables Funding Agreement | |
On the Effective Date, the Receivables Funding Agreement is hereby amended as follows: |
(a) | Clause 6.1(e) of the Receivables Funding Agreement is amended in its entirety to read as follows: |
(e) | Indebtedness. Indebtedness (other than to another Group Company) of any one or more of the Parent, any Originator, the Master Servicer or any other AGCO Company (whether individually or collectively) has been declared, or is capable of being declared, or otherwise has become, due and payable prior to its scheduled maturity date. |
(b) | Clause 6.1(k) of the Receivables Funding Agreement is amended in its entirety to read as follows: |
(k) | Pool Triggers. Any of the following shall occur: |
(i) | the Average Default Ratios shall exceed 1.05% on any Reference Date; or | ||
(ii) | the Average Delinquency Ratio shall exceed 1.74% on any Reference Date; or | ||
(iii) | the Average Dilution Ratio shall exceed 9% on any Reference Date; |
2.3 | Amendments to Servicing Agreement | |
On the Effective Date, the Liquidity Agreement is hereby amended as follows: |
(a) | A new Clause 2.3 ( Appointment of Back-Up Servicer ) of the Servicing Agreement is hereby added as follows: |
2.3 | Appointment of Back-Up Servicer |
(a) | The Company shall, at any time following a Rating Downgrade if so instructed by the Agent, appoint a Person (the Back-Up Servicer ) to prepare itself to perform any or all of the |
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functions of the Master Servicer under this Agreement, all as specified in this Clause 2.3; provided that, in each case: |
(i) | the Agent shall have given its prior written consent to such appointment (such consent not to be unreasonably withheld), | ||
(ii) | the Master Servicer shall remain obligated and liable to the Company, the Agent and the Secured Parties for the servicing and administering of the Purchased Receivables in accordance with the provisions hereof without diminution of such obligation and liability by virtue of any such appointment of such Back-Up Servicer and to the same extent and under the same terms and conditions as if the Master Servicer alone were servicing and administering the Purchased Receivables, and | ||
(iii) | the Company shall not appoint a Back-Up Servicer to perform any portion of the obligations of the Master Servicer if, in the opinion of counsel, such appointment would cause the Company to become subject to tax in the jurisdiction in which such Back-Up Servicer is located solely by reason of such appointment. |
(b) | The Master Servicer shall cooperate with the Back-Up Servicer in all reasonable respects in connection with the performance by the Back-Up Servicer of its obligations hereunder. Without limiting the foregoing, the Master Servicer shall provide to the Back-Up Servicer all data, records and other information and documentation available to it that is useful in connection with the performance by the Back-Up Servicer of its obligations hereunder. | ||
(c) | The Company shall be responsible for the reasonable fees and expenses of the Back-Up Servicer in connection with the performance of its obligations hereunder. | ||
(d) | The Company may terminate the appointment of the Back-Up Servicer at any time and for any reason (or no reason) on not less than ten Business Days notice to the Master Servicer and the Agent; provided that no such termination shall be effective without the prior written consent of the Agent (such consent not to be unreasonably withheld). The Company shall be responsible for paying the Back-Up Servicers reasonable fees and expenses to the date of any such termination. | ||
(e) | During the term of its appointment hereunder, the Company shall procure that Back-Up Servicer shall comply in all respects with the obligations of the Master Servicer hereunder. |
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(b) | Clause 3.2 ( Reports ) of the Servicing Agreement is hereby amended in its entirety to read as follows: |
3.2 | Reports |
(a) | On each Master Servicer Reporting Date, the Master Servicer shall make available to the Agent and the Administrator a Master Servicer Report. Each such delivery of a Master Servicer Report shall constitute the Master Servicers representation and warranty that, based upon the data set forth in each Account Receivables Listing delivered in connection with the Purchased Receivables, no breach of the Transaction Documents would have occurred following the purchase of any Receivables offered for sale under any Receivables Transfer Agreement. | ||
(b) | Upon the occurrence of a Rating Downgrade, the Master Servicer shall, upon written request of the Agent, on a more frequent basis (as frequently as weekly) make available to the Agent and the Administrator a report in form and substance reasonably satisfactory to the Agent regarding the Purchased Receivables, Collections relating thereto, and such other matters as the Agent shall reasonably request . |
(c) | The caption to and the initial paragraph of Clause 3.3 ( Enforcement rights after Termination Event ) of the Servicing Agreement are hereby amended in their entirety to read as follows: |
3.3 | Enforcement rights after Trigger Event | ||
At any time upon the occurrence and during the continuance of a Trigger Event: |
2.4 | Governing Law | |
Notwithstanding anything in any Transaction Document to the contrary, the governing law of each Transaction Document shall also govern any non-contractual obligations arising out of or in connection with such Transaction Document. | ||
2.5 | Transfer by CP Lender | |
Notwithstanding anything in any Transaction Document to the contrary, the CP Lender shall be entitled at any time, by prior or concurrent notice to the Agent and the Parent, to transfer (by way of novation, assignment and assumption, or otherwise) to a Conduit Assignee all of its rights and obligations under the Transaction Documents, including all or a portion of the Net Funding Advances, in one transaction or in a series of transactions. After giving effect to such transfer, all references in the Transaction Documents to the CP Lender shall refer to such Conduit Assignee. |
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3. | REPRESENTATIONS, WARRANTIES AND COVENANTS | |
3.1 | Reaffirmation of Representations and Warranties | |
Upon the effectiveness of this Agreement, each of the Parties hereby reaffirms all covenants, representations and warranties made by such Party in each of the Transaction Documents and agrees that all such covenants, representations and warranties shall be deemed to have been remade as of the effective date of this Agreement. | ||
3.2 | Additional Representations and Warranties | |
Each of the Parties hereby represents and warrants that this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms. The Parent hereby represents and warrants that, upon the effectiveness of this Agreement, no Event of Default or event or circumstance which, with the giving of notice or the passage of time or both, would become an Event of Default shall exist or be occurring. | ||
3.3 | Transaction Document | |
Each of the Parties hereby agrees that this Agreement constitutes a Transaction Document. | ||
4. | EFFECTIVENESS, RATIFICATION | |
4.1 | Effectiveness | |
This Agreement shall become effective on the date first set out above when all of the items and documents listed on Schedule 1 ( Conditions to Effectiveness ), each dated the date of this Agreement (where relevant), shall have been delivered to the Agent in form and substance satisfactory to it. Upon the effectiveness of this Agreement, it shall thereafter be binding on the Parties hereto and their respective successors and assigns. On and after the effectiveness hereof, (i) this Agreement shall be and become a part of each of the Transaction Documents amended hereby and (ii) each reference in each such Transaction Document to this Agreement or hereof or hereunder or words of like import, and each reference in any other Transaction Document to such Transaction Document shall mean and be a reference to such Transaction Document as amended hereby. | ||
4.2 | Ratification | |
Except as expressly amended hereby each of the Transaction Documents shall remain in full force and effect and is hereby ratified and confirmed by the Parties hereto. |
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5. | MISCELLANEOUS | |
5.1 | Governing Law and Jurisdiction |
(a) | This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales. | ||
(b) | Each of the Parties agrees that the courts of England shall have jurisdiction to hear and determine any suit, action or proceeding, and to settle any dispute, which may arise out of or in connection with this Agreement and, for such purposes, irrevocably submits to the non-exclusive jurisdiction of such courts. |
5.2 | Headings | |
Headings used herein are for convenience of reference only and shall not affect the meaning of this Agreement. | ||
5.3 | Counterparts | |
This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. Delivery of a facsimile of an executed signature page of this Agreement shall be effective as delivery of an executed counterpart hereof. | ||
5.4 | Severability, etc. |
(a) | Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. | ||
(b) | If a court of competent jurisdiction determines that any term or provision of this Agreement as written is invalid, unenforceable or incomplete, the parties agree that the court making the determination of invalidity, unenforceability, or incompleteness shall reduce the scope, duration, or area of the term or provision, delete specific words or phrases, or replace any invalid, unenforceable or incomplete term or provision with a term or provision that is valid, enforceable and complete and that comes closest to expressing the intention of the invalid, unenforceable or incomplete term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the courts judgment may be appealed. |
5.5 | No Petition |
(a) | Each of the Parties hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of all outstanding Commercial Paper or other rated indebtedness of the CP Lender or any Conduit Funding Provider, as the case may be, it will not institute against, or join any other |
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Person in instituting against, the CP Lender or such Conduit Funding Provider any proceeding of a type referred to in the definition of Insolvency Event. |
(b) | Each of the Parties hereby covenants and agrees, without prejudice to any other actions such party is permitted to take against the Company to enforce its rights, that prior to the date which is two years and one day after the Final Payout Date, it will not institute against, or join any other Person in instituting against, the Company any proceeding of a type referred to in the definition of Insolvency Event. |
5.6 | Limited Recourse |
(a) | Notwithstanding anything to the contrary contained in this Agreement, the obligations of the CP Lender under this Agreement and all other Transaction Documents to which it is a party are solely the corporate obligations of the CP Lender and shall be payable solely to the extent of funds received from the Company in accordance herewith or from any party to any Transaction Document in accordance with the terms thereof in excess of funds necessary to pay matured and maturing Commercial Paper. | ||
(b) | Notwithstanding anything to the contrary contained in this Agreement, the obligations of the Company under all of the Transaction Documents to which it is a party are solely the corporate obligations of the Company and shall be payable solely to the extent of funds received by the Company and available for application thereto in accordance with the terms of the Receivables Servicing Agreement and the other Transaction Documents. |
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AGCO DEUTSCHLAND GMBH | ||||
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AGCO DISTRIBUTION S.A.S. | ||||
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AGCO IBERIA SA | ||||
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AGCO RECEIVABLES LIMITED | ||||
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S-1
AGCO SERVICES LIMITED | ||||
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AGCO LIMITED | ||||
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AGCO CORPORATION | ||||
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ERASMUS CAPITAL CORPORATION | ||||
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COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. , ( trading as RABOBANK INTERNATIONAL), LONDON BRANCH | ||||
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SCHEDULE I | |
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to | |
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Omnibus Amendment Agreement |
1. | Omnibus Amendment Agreement between AGCO Limited, AGCO Deutschland GmbH, AGCO Distribution S.A.S., AGCO Iberia SA, AGCO Receivables Limited, AGCO Services Limited, AGCO Corporation, Erasmus Capital Corporation and Rabobank | |
2. | Fee Letter from the CP Lender to the Company | |
3. | Secretarys Certificate: Regarding internal authorisation to enter into Omnibus Amendment Agreement and evidence of signing authority | |
4. | Legal Opinion regarding enforceability of Omnibus Amendment Agreement (Latham & Watkins) |
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1. SCOPE OF THE AGREEMENT
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2. ASSIGNMENT AND ACQUIREMENT
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3. SCOPE OF ASSIGNMENT
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4. SELLERS UNDERTAKINGS
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5. AGCO FINANCES UNDERTAKINGS
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6. PURCHASE LIMIT
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7. REVERSAL OF ASSIGNMENT
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8. LIABILITY OF SELLER FOR THE ASSIGNED RECEIVABLES
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9. COLLECTION OF RECEIVABLES, PROCEDURE WITH RESPECT TO PURCHASED RECEIVABLES
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10. AGCO FINANCE BEARS THE CREDIT RISK
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11. PAYMENT MADE TO THE SELLER
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12. OBJECTIONS TO THE RECEIVABLES
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13. RETURNED GOODS
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14. FEES (INTEREST FEE AND SERVICING FEE)
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15. ACCOUNTING
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16. INSPECTION RIGHTS, REGISTRATION AND DATA PROCESSING
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17. ASSIGNMENTS
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18. COMMENCEMENT DATE, TERM AND TERMINATION
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19. SETTLEMENT OF THE AGREEMENT AFTER ITS TERMINATION
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20. DATA PROTECTION
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21. MISCELLANEOUS
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APPENDIX 1 CERTAIN DEFINITIONS
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APPENDIX 2 DEALER AGREEMENT
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APPENDIX 3 CERTAIN TERMS
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APPENDIX 4 ASSIGNMENT SCHEDULE
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(A) | The Seller supplies specific goods to dealers who are located in the metropolitan territory of France. | |
(B) | AGCO FINANCE wishes to purchase the receivables originated by the supply of such goods, which are owed to the Seller by the dealers and to assume the debtor management in relation to such receivables. | |
(C) | This Agreement (as defined below) sets forth the essential terms and conditions applying to the purchase of these receivables and the debtor management for the Sellers outstanding receivables. |
1.1. | As of the date hereof, this Agreement shall apply to all assignments by the Seller and acquirements by AGCO FINANCE of Receivables, even if no express reference is made to this Agreement. This Agreement also applies to the debtor management implemented by AGCO FINANCE for the Seller. | |
1.2. | This Agreement regulates the terms and conditions of the assignment and acquirement of the Receivables and the collection of the Receivables conclusively. In particular, the Seller Terms and Conditions shall not form part of this Agreement irrespectively of whether they deviate from or supplement the terms and conditions of this Agreement. | |
1.3. | All the appendices to this Agreement including Appendix 1 Certain Definitions shall form an integral part of this Agreement. |
2.1. | During the term of this Agreement, the Seller shall assign and AGCO FINANCE shall acquire, in accordance with the provisions of articles L.313-23 et seq. of the |
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Code, all Receivables that qualify for assignment and acquirement under Section 2.8 below. | ||
2.2. | The amount of each Receivable shall equal the gross amount stated in the output invoice of the Seller to its Dealers, together with all ancillary costs such as packaging and shipment, assembly, and any VAT. | |
The purchase price for a Receivable purchased by AGCO FINANCE shall equal the nominal value of the respective Receivable within the meaning of this Section 2.2. | ||
Notwithstanding the provisions of Article 8.2, if the Seller issues a credit note related to the whole of a Receivable which were assigned to AGCO FINANCE, the Seller commits to assign that credit note to AGCO FINANCE and pay back the gross amount of such credit note to AGCO FINANCE. | ||
2.3. | The output invoice must clearly indicate the legal basis for the Receivable, and in particular the contractually agreed specifications as to the volume and nature of the Goods sold as well as detail concerning the purchase price, in particular its amount, due date and any time limits for discounts and bonuses. |
2.4. | To the extent the Seller has charged for other services under the agreement giving rise to a Receivable (e.g. packaging, delivery, assembly), in addition to the sale of the Goods, the amount relating to the sale of the Goods and the supply of the services must be invoiced separately (and, for the avoidance of doubt, the receivable under such separate invoice for other services shall not be deemed to be a Receivable and not be assignable hereunder). | |
2.5. | Any deductions from the Receivable, which cannot be inferred from the invoice, must be notified by the Seller to AGCO FINANCE prior to the purchase of the Receivable. | |
2.6. | AGCO FINANCE shall pay the Purchase price to the Seller within two Business Days after the assignment of the Receivable has taken place and, at the last working day of a financial quarter, AGCO FINANCE shall use its best efforts to pay the Purchase price on the same Business Day of the assignment of Receivables. | |
2.7. | If, in respect of any contract between the Seller and any of its Dealers, more than one invoice will be issued by the Seller, then the assignment of the Receivable under such contract shall encompass all invoices to be issued in respect thereof. | |
2.8. | Each Receivable shall meet the following criteria: |
2.8.1. | there is no prohibition on its assignment; | ||
2.8.2. | it is not subject to an existing current account relationship between the Seller and the respective Dealer; | ||
2.8.3. | the Dealer has entered into the Dealer Agreement according to the Seller Terms and Conditions, and has thus declared its consent to the Receivable being assigned to and collected by AGCO FINANCE; | ||
2.8.4. | the Seller has sold the Goods to which it relates subject to reservation of title; | ||
2.8.5. | the contract pursuant to which it arises is subject to French law; | ||
2.8.6. | it is free from objection or complaint except for the agreements on the deferred payment according to the Dealer Agreement; |
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2.8.7. | it is not in arrears at the time of its purchase; | ||
2.8.8. | its value offered for purchase together with the total value of Receivables already purchased, but not settled does not exceed the purchase limit granted to the respective Dealer pursuant to Section 6 (for the purpose of this criteria, direct debit collections are deemed to be paid in full on the value date of such collections); | ||
2.8.9. | no portion of it will be purchased, only full value of individual invoices; | ||
2.8.10. | at the time of the assignment the Seller has not been notified of any notice of insolvency served on the Dealer; | ||
2.8.11. | the Seller is its unrestricted owner and is able to dispose of it; | ||
2.8.12. | the Seller is not in possession of the Goods at the time of its purchase. |
3.1. | On the Business Day following the day on which the Seller has supplied the Goods to the Dealer, the Seller shall submit to AGCO FINANCE: |
3.1.1. | an Assignment Schedule including the corresponding Receivables; | ||
3.1.2. | for Receivables relating to Goods of Massey Ferguson and Valtra brands, invoice data related to the assigned Receivables or electronic access to the Sellers relevant systems to enable printing by AGCO FINANCE of the issued invoices; and |
3.1.3. | for Receivables relating to Goods of Fendt brand, copies of the issued and sent invoices related to the assigned Receivables until electronic access is granted to the Sellers relevant systems to enable printing by AGCO FINANCE of the issued invoices. |
3.2. | The submission of the Assignment Schedule and copies of such invoices (or the granting of electronic access to the Sellers relevant systems to enable printing by AGCO FINANCE of such invoices) shall be deemed an assignment by the Seller to AGCO FINANCE of the Receivables described in the invoices and other documents submitted in accordance with the terms and conditions of this Agreement. In case access to the Sellers relevant systems is not possible for whatever reason (failure of the systems, etc.), copies of the issued invoices must be provided by the Seller to AGCO Finance; an electronic form of such invoices is accepted by AGCO FINANCE. | |
3.3. | Ownership of the Receivables and benefit of the retention of title of the Goods shall vest in AGCO FINANCE immediately upon the date inserted by AGCO FINANCE on the corresponding Assignment Schedule at the time of its delivery to AGCO FINANCE. The Seller further assigns to AGCO FINANCE, in respect of all Receivables being assigned hereunder, all its rights (including the right to repossess the Goods sold) under each agreement concluded between the Seller and the Dealers. | |
3.4. | The Seller will duly notify in writing the Dealer that all rights of the Seller under the agreement between the Seller and the Dealer have been transferred to AGCO FINANCE and send a copy of such notification to AGCO FINANCE. However, the Sellers obligations towards the Dealer according to the agreement between the Seller and the Dealer shall remain unchanged. |
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3.5. | The vehicle registration documents attached to the Goods (in particular the certificate of compliance ( certificat de conformité )) shall be assigned by the Seller to AGCO FINANCE; the Seller shall retain in safe custody those vehicule registration documents (including the certificate of compliance), on behalf of AGCO FINANCE for no consideration. When the Seller hands over to third parties those vehicle registration documents relating to the Goods assigned to AGCO FINANCE, the Seller must immediately inform in writing AGCO FINANCE. | |
3.6. | The Seller shall exercise the rights and claims assigned under this Section 3 to AGCO FINANCE on behalf of AGCO FINANCE until such authority is revoked. Any acts which represent a disposal may not be undertaken by the Seller. | |
3.7. | In the event that a Dealer culpably does not make due payment of a Receivable assigned pursuant to this Agreement, AGCO FINANCE shall be entitled to enforce all security interest against the Dealer. |
4.1. | The Seller shall provide AGCO FINANCE with the following documents: |
4.1.1. | copies of all contracts entered into between the Seller and the Dealer and relating to the sale of Goods, from which, in particular, the name and the address of the respective Dealer can be inferred; | ||
4.1.2. | on a quarterly basis, a detail listing of all security interests granted by the Dealers or on their behalf to the Seller; upon reasonable demand of AGCO Finance, the Seller will provide AGCO Finance with copies of requested security interests within a reasonable period of time. | ||
4.1.3. | where the Seller has acquired the Goods from its supplier under reservation of title, copies of the respective agreements; | ||
4.1.4. | to the extent that the Seller has already paid the VAT related to the assigned Receivable at the time of the assignment, documents evidencing that the said VAT has been properly declared and paid to the relevant tax authorities; should such VAT be or become payable by the Seller after the assignment of the Receivable, the Seller shall provide the above mentioned documents as soon as possible and no later than 8 (eight) days following the date on which the VAT has been paid. | ||
4.1.5. | to the extent that Seller has such documents in its possession (and subject to any applicable data protection or privacy requirements, rules or law), relevant and contemporaneous documents as to the creditworthiness of the respective Dealer, in particular its financial accounts, bank and trade references, commercial register extract and articles of association. |
4.2. | On seven days written notice, AGCO FINANCE shall be entitled to inspect at the premises of the Seller all relevant original documentation referred to in Sections 3.6 and 4.1 above. | |
4.3. | The Seller shall inform AGCO FINANCE of any amendments to the Seller Terms and Conditions prior to such amendments becoming effective. |
6
5.1. | Assignment of Receivables | |
If and to the extent a purchase limit has been established for a particular Dealer in accordance with Section 6, and if this purchase limit, taking into account the Receivables already purchased for such Dealer, is not exhausted and the respective Dealer is not in breach of any other obligations to AGCO FINANCE, AGCO FINANCE shall accept the assignment of the Receivables having been assigned by the Seller pursuant to the terms and conditions of this Agreement. The right of AGCO FINANCE not to acquire a Receivable in accordance with Section 6 of this Agreement, and its right to revert the assignment of Receivables in accordance with Section 7 of this Agreement shall remain unaffected hereby. | ||
5.2. | Information undertaking | |
Upon AGCO FINANCE giving notice to any Dealer of any breach of such Dealers obligations pursuant to the relevant Dealer Agreement or any other agreement entered into between AGCO FINANCE and such Dealer, AGCO FINANCE shall without delay inform the Seller of such notice. |
6.1. | Prior to the first assignment of Receivables relating to a particular Dealer, AGCO FINANCE shall advise the Seller whether it has established a purchase limit for such particular Dealer, up to which limit AGCO FINANCE agrees to acquire Receivables pursuant to this Agreement for that Dealer provided, however, that AGCO FINANCE shall not be obligated to acquire any Receivable that is reasonably determined does not conform to the AGCO Finance customary standards or historic courses of action for the purchase of receivables including any AGCO Finance Credit or Collection Policies (or other documents to the same effect).. AGCO FINANCE shall decide whether to establish such a purchase limit or whether to change the amount of such purchase limit in its sole discretion taking into account bank customary considerations. | |
6.2. | AGCO FINANCE may increase or reduce the amount of the purchase limit for a particular Dealer during the term of this Agreement subject to the provisions of Section 6.3 below. The purchase limit can in particular be reduced if, taking into account standard principles for determining creditworthiness, AGCO FINANCE establishes, on the basis of its business dealings with the Dealer that such Dealers creditworthiness had deteriorated. This shall, in particular, be the case if the Dealers payments are repeatedly delayed or if there has been a protest or notice of dishonour with respect to its cheques or bills of exchange. Any variation to a purchase limit shall only affect those Receivables that are offered for sale to AGCO FINANCE after the variation in the purchase limit becoming effective. | |
6.3. | AGCO FINANCE shall notify the Seller without delay, of the variation to the purchase limit. AGCO FINANCE shall also notify the Seller of the extent to which the current purchase limit has been utilized. Such notifications can be made by e-mail, fax or by granting the Seller access to a website. | |
6.4. | So long as the Seller has a business relationship with a Dealer and a purchase limit continues to exist for such Dealer, AGCO FINANCE may request from the Dealer, at |
7
least every twelve months, all documents necessary to assess the creditworthiness of a particular Dealer, in particular those stated in Section 4.1. The Seller shall support AGCO FINANCE in obtaining such documents. | ||
6.5. | For the purposes of establishing which Receivables are ineligible because the purchase limit is exceeded: |
6.5.1. | the earliest dated Receivables will be purchased first (the invoice date will determine the date of the Receivable); | ||
6.5.2. | the last dated Receivables, the purchase of which would result in the purchase limit to be exceeded (and all later Receivables) will no longer be purchased; | ||
6.5.3. | to the extent that a purchase limit is still available but does not cover all Receivables of the same date, then the Receivables for smaller amounts will be purchased before the Receivables for larger amounts; | ||
6.5.4. | the Receivable, the purchase of which would result in the purchase limit to be exceeded (and all other Receivables for larger amounts) will no longer be purchased. |
7.1. | AGCO FINANCE may reverse the assignment of a Receivable if, at the date of the assignment: |
7.1.1. | the purchase limit as described in Section 6 above is exceeded; or | ||
7.1.2. | the criteria set out in Section 2.8 have not been observed. |
Any reversal by AGCO FINANCE of any assignment hereunder shall be made in writing and AGCO FINANCE shall simultaneously notify in writing the relevant Dealer. | ||
7.2. | Without prejudice to the provisions of Article 12 hereafter (in particular), any reversal by AGCO FINANCE under Articles 7.1.1 and 7.1.2 above shall be made within five Business Days of receipt of the assignment of the relevant Receivables. | |
7.3. | For the avoidance of doubt, the Seller shall upon reversal of any assignment repay to AGCO FINANCE all sums received upon the original assignment of the Receivable, including any VAT related thereto, and as the case may be shall be solely responsible for the obtaining of any refund of the said VAT from the relevant tax authorities. |
8.1. | The Seller represents and warrants to AGCO FINANCE the legal existence of the Receivables and the validity of the assignment of such Receivables to AGCO FINANCE, and that the Receivables are free of objections and rights of third parties at the time of the assignment. | |
8.2. | Seller also represents and warrants, that the legal existence of the Receivables assigned will not subsequently change, in particular, that such Receivables will not be extinguished by agreement with the Dealer or as a result of contestation or set-off. | |
8.3. | Moreover, the Seller shall be liable for the fact that the Dealer shall not be able to bring an objection or defence arising on the basis of the agreement giving rise to the Receivable (e.g. right to further performance, rectification, substitution, reduction in the purchase price, recession, damages, to expenses and to rights of retention). |
8
8.4. | Any statement which could affect the existence or content of an agreement entered into with a Dealer and giving rise to a Receivable, in particular statements regarding termination, amendment or cancellation of the agreement, may only be made by the Seller with the prior consent of AGCO FINANCE, such consent not to be unreasonably withheld. | |
8.5. | If the Seller breaches any of the obligations it has assumed pursuant to Sections 8.1 to 8.4 above, AGCO FINANCE may request the Seller to rectify such defect. Unless the Seller rectifies such defect within 14 days, AGCO FINANCE may reduce the purchase price, or revert the assignment and cancel, set-off or require cash repayment (as the case may be) of the purchase price in respect of the relevant Receivable. |
9.1. | The invoices shall state clearly and legibly that the debt owed, as stated in the invoice and all rights under the agreement with the Dealer (including the right to repossess the Goods sold) have been assigned to AGCO FINANCE and that the debt will only be satisfied if payment is made to AGCO FINANCE (by transfer of the payment to the AGCO FINANCE account) as follows: | |
In French: La créance relative à la présente facture, ainsi que tous les droits y attachés, ont été cédés à AGCO FINANCE SNC (RCS Beauvais n°388 432 023) conformément aux articles L.313-23 à L.313-34 du Code Monétaire et Financier. Le paiement doit exclusivement être effectué à lordre dAGCO FINANCE SNC conformément aux dispositions du Protocole dAccord [Concessionnaire/Distributeur] signé. | ||
Veuillez aviser immédiatement AGCO FINANCE SNC de tout fait qui sopposerait à son paiement . | ||
In English : The receivable related to this invoice and all its attached rights have been assigned to AGCO FINANCE SNC (Registered at Beauvais under the following number : 388 432 023) according to Articles L313-23 to L313-34 of the French Code Monétaire et Financier. Payment to clear the debt can only be made to AGCO FINANCE SNC according to the signed Dealer Agreement. | ||
Please inform AGCO FINANCE SNC of anything which could delay or prevent from the payment of such invoice. | ||
The above text shall be printed on the invoice in French. The English version is provided for information purposes only. | ||
Such notification shall constitute the notice of assignment to the Dealers in accordance with article L.313-28 of the Code. |
10.1. | Subject to Sections 10.2 and 12, and notwithstanding article L.313-24 of the Code, the assignment of Receivables shall be without recourse against the Seller in the event that a Receivable remains unpaid for any reason, including as a result of a Dealer being subject to Insolvency Proceedings and the Parties agree that the Seller shall not be jointly liable for the payment of the assigned Receivables in such circumstances. | |
10.2. | Notwithstanding the above, AGCO Finance shall immediately upon becoming aware of a Dealer being subject to Insolvency Proceedings inform the Seller that the Receivable has become a Defaulted Receivable and provide the Seller with all |
9
documents evidencing that the Receivable has become a Defaulted Receivable. Upon receipt of the information and document provided by AGCO Finance, the Seller shall issue to the relevant Dealer(s) a revised invoice in accordance with Article 272.1° of the French Tax Code and shall endeavour all necessary steps in order to obtain a refund of the VAT initially paid by the Seller in relation to the Defaulted Receivable. | ||
The Seller shall pay over to AGCO FINANCE the sums corresponding to the claimed VAT refund within 30 (thirty) days of receipt of such sums. | ||
10.3. | Subject to Section 10.4 below, the Seller shall have the right (but no obligation whatsoever) to repurchase any Defaulted Receivables by paying the Repurchase Price to the Seller. | |
10.4. | Further to the repurchase of the Defaulted Receivables, the Seller shall endeavour all and every necessary steps in order to obtain a refund of the VAT initially paid in relation to the Defaulted Receivables in accordance with Article 272.1° of the French Tax Code and, in particular, the Seller shall issue a revised invoice to the relevant Dealer(s). | |
The Seller shall pay over to AGCO Finance the sums corresponding to the claimed VAT refund within 30 (thirty) days of receipt of such sums. | ||
10.5. | The right of the Seller to repurchase any Defaulted Receivables is subject to the conditions precedent that: |
10.5.1. | the Seller shall have provided to AGCO FINANCE written notice of such repurchase on or prior to the Repurchase Date; | ||
10.5.2. | AGCO FINANCE shall have (simultaneously with delivery of the notice referred to in Section 10.5.1 above) delivered a written agreement for the repurchase of the relevant Receivables. |
10.6. | Upon execution by both parties of the documentation referred to in Section 10.5.2 above all of AGCO FINANCEs right, title and interest in, to and under each and every repurchased Receivable included in the required documentation shall be immediately and automatically resold and reassigned to the Seller. |
11.1. | Any payment that the Seller receives for any Receivable that is assigned to AGCO FINANCE shall be held by the Seller as agent ( mandataire ) for AGCO FINANCE. | |
11.2. | The Seller shall immediately separate the cheques or bills of exchange from its own funds and keep them separated until they are sent duly endorsed to AGCO FINANCE, indicating the name of the Dealer and the number of the invoice. Any payment by transfer shall be immediately forwarded to AGCO FINANCE. | |
11.3. | The relevant Dealer shall be reminded by the Seller of the assignment of the Receivable and requested to make all future payments in accordance with the notification according to Section 9.1. |
12.1. | If the Dealer asserts any Objections, AGCO FINANCE shall inform the Seller of the same. The Seller will make a statement vis-à-vis AGCO FINANCE within 30 days of the Objection becoming known to it and shall make available to AGCO FINANCE all information necessary to counter the Objections. The Seller may also declare that it |
10
will remedy the Objections within a further 30 days and carry out all measures necessary at its expense. | ||
12.2. | If the Seller does not make any statement or the Seller recognizes the Objections by the Dealer, AGCO FINANCE may assert the rights pursuant to Section 8.5. | |
12.3. | If the Seller does not recognize the Objections, AGCO FINANCE will demand payment from the Dealer once more. Should the Dealer not pay within 14 days of such further demand, AGCO FINANCE shall inform the Seller on such non payment. AGCO FINANCE will then pursue collection of the Receivable by court action. The Seller shall provide its assistance to AGCO FINANCE in this. | |
12.4. | To the extent that the Receivable asserted does not exist in full or part subsequent to a court decision which became enforceable, AGCO FINANCE will charge the Seller the amount of the non-existent Receivable including VAT plus interest at the Interest Rate. from the origination date of the Receivable. In addition, the Seller shall reimburse AGCO FINANCE for all costs of the assertion by legal means of the Receivable in the ratio of the non-existent part of the Receivable to the amount of the Receivable asserted. | |
12.5. | If and to the extent necessary, AGCO Finance shall cooperate with the Seller and provide any information or document(s) that may be necessary in order to allow the Seller to obtain a refund of the VAT related to the non-existent Receivable from the relevant Dealer(s) in accordance with Article 272 1° of the French Tax Code. |
13.1. | The Seller shall inform AGCO FINANCE without delay, if Goods are returned, the Receivable for which has been assigned to AGCO FINANCE. At the same time, the Seller shall comment on the reasons for such return. | |
13.2. | The parties hereby agree that title to such Goods shall pass to AGCO FINANCE in the form of an agreement in advance, provided that such title has not already passed to AGCO FINANCE as part of the reservation of title pursuant to Section 3. | |
13.3. | Save in respect of accessories, the returned Goods must be identifiable by unmistakable serial numbers which must be imparted to AGCO FINANCE. The Seller shall keep custody of these Goods, free of charge, separate from any other Goods in the name and on behalf of AGCO FINANCE. | |
13.4. | The Seller shall replace the returned Goods with defect free goods without delay, if the reason for the return was a defect. In this case, AGCO FINANCE shall release the returned Goods. The terms and conditions of this Agreement shall apply to the substitute Goods. |
14.1. | The Seller shall pay to AGCO FINANCE the Interest Fee, and a Servicing Fee, in the amounts as calculated in accordance with the provisions of Appendix 3. | |
14.2. | AGCO FINANCE will invoice the Seller the due Interest Fee including VAT and the due Servicing Fee including VAT once per month. Payment terms on these invoices will be paid by direct debit 10 days after the end of each month. If, for any reason whatsoever, such invoices are not paid at its due date, AGCO FINANCE is empowered to charge the Seller for default interest at a rate equal to three times the French annual legal rate (hereafter the Annual Legal Rate ), without prejudice to |
11
any other right or remedy of AGCO FINANCE. The Annual Legal Rate is equal to 3,79% for year 2009 and is published by décret at the beginning of each calendar year. Such default interest shall be compounded in accordance with article 1154 of the French Code Civil . |
15.1. | AGCO FINANCE undertakes to pass on to the Seller on an ongoing basis notifications pursuant to which the Seller is in a position to infer the status of the business relationship between AGCO FINANCE and the Dealer. The notifications made by AGCO FINANCE have to put the Seller in a position to keep accounts in accordance with applicable commercial and tax law. | |
15.2. | The Seller undertakes to pass on to AGCO FINANCE in a timely manner and fully all documents necessary for AGCO FINANCE to keep proper accounts in relation to the Dealer. |
16.1. | The Seller and/or AGCO FINANCE will conduct or arrange for third parties to conduct field audits of Dealers in accordance with the policies and at the direction of AGCO FINANCE. Such field audits will be performed at least twice a year. In conducting field audits, each party shall use the standards established by AGCO FINANCE or as mutually otherwise agreed. Each party shall furnish to the other party, upon request, any reports or information in its possession received or generated in connection with any field audit of a Dealer. Where a third party is contacted by AGCO FINANCE to conduct such field audits of Dealers, AGCO FINANCE will use reasonable endeavours to negotiate a contract with such third party which is competitive in the market place in respect of resource, service, price and quality. Prior to AGCO FINANCE entering into any contract with a third party for field audits, the terms of such contract shall be agreed with both the Seller and AGCO FINANCE acting reasonably to reach agreement on such terms. To the extent that AGCO FINANCE incurs any field audits costs by third parties, the Seller will reimburse AGCO FINANCE for such costs within ten (10) days of a request for reimbursement which request shall be accompanied by reasonable documentation supporting such costs and expenses. | |
16.2. | Data submitted to AGCO FINANCE by the Seller may be stored, processed and passed on to third parties to the extent necessary for the implementation of this Agreement and legally permissible. The Seller shall ensure that the Dealers give their written consent to such data processing by AGCO FINANCE. |
17.1. | AGCO FINANCE may assign, in whole or part, any of its rights pursuant to this Agreement at any time, subject to the Sellers prior written consent, such consent not to be unreasonably withheld. | |
17.2. | Should the proposed assignment jeopardize the right of the Seller to obtain a refund of the VAT initially paid in connection with assigned Receivable in case of Receivables becoming Defaulted Receivables or non-existent Receivables after the assignment, then the Parties shall agree for a specific procedure to allow the said Receivables to be repurchased by the Seller so as to enable it to claim a refund of VAT in accordance with Article 272-1 of the French Tax Code. |
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17.3. | If AGCO FINANCE assigns any of its rights under this Agreement, it must inform the relevant Dealer of such assignment. |
18.1. | This Agreement shall become effective on 29 January 2010. | |
18.2. | This Agreement shall continue until or unless it is terminated in accordance with this Section 18. | |
18.3. | Without prejudice to Section 18.4 below, |
18.3.1. | the Seller may terminate this Agreement at any time with a 90-days prior written notice to AGCO FINANCE (such notice not to expire on or before 31 December 2010); | ||
18.3.2. | AGCO FINANCE may terminate this Agreement at any time with a 364-days prior written notice to the Seller; | ||
18.3.3. | either party may terminate this Agreement with a 30 days prior notice if the shareholders agreement entered into between De Lage Landen Leasing SAS and AGCO Distribution SAS in relation to AGCO Finance on September 15, 1992 (as amended from time to time) is terminated. |
18.4. | Any party may, by notice to the other party, terminate this Agreement if: |
18.4.1. | such other party is unable or admits its unability to pay its debts as they fall due by reason of actual or anticipated financial difficulties, suspends making payments on any of its debts or commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness; | ||
18.4.2. | such other party is in a state of cessation des paiements within the meaning of Article L.631-1 of the French Code de Commerce ; | ||
18.4.3. | a moratorium is declared in relation to any indebtedness of such other party; | ||
18.4.4. | a judgement for sauvegarde , redressement judiciaire or liquidation judiciaire is rendered in relation to such other party under Articles L.620-1 to L.644-6 of the French Code de Commerce . |
18.5. | Any termination of this Agreement must be in writing. |
19.1. | AGCO FINANCE shall perform all services that it has agreed to perform pursuant to this Agreement in relation to all Receivables assigned prior to the termination of this Agreement becoming legally effective and not reverted in accordance with this Agreement. | |
19.2. | The termination of this Agreement shall not affect any obligations of the Seller with respect to Receivables assigned to AGCO FINANCE prior to the termination of this Agreement becoming legally effective and not reversed under the terms hereof, in particular the liability or any repurchase obligations. |
13
21.1. | This Agreement shall be governed by the laws of France and any dispute, controversy or claim shall be settled exclusively by the Tribunal de Commerce of Paris. | |
21.2. | If any provision of this Agreement, any of its appendices or any agreement entered into pursuant to this Agreement is invalid or becomes invalid or is incomplete or becomes incomplete, the legal effectiveness of the remaining provisions shall remain unaffected hereby. Instead of the invalid provision or to correct an omission, a provision shall apply which comes as close as possible to that which the parties intended or would have intended had they realized the provision was invalid or there was an omission. | |
21.3. | Any amendments to this Agreement must be in writing. | |
21.4. | This Agreement has been drafted in English. |
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(i) | as to which any payment due to be made by the relevant Dealer, or any part of such payment, remains unpaid for 90 days or more from the scheduled due date for such payment; or | |
(ii) | as to which the relevant Dealer has become subject to Insolvency Proceedings; or | |
(iii) | which has been or should be written-off as uncollectible in the books of AGCO FINANCE. |
15
(i) | the relevant person is in a state of cessation des paiements within the meaning of Article L.631-1 of the French Code de Commerce ; | |
(ii) | a moratorium is declared in relation to any indebtedness of the relevant person; | |
(iii) | a judgement for sauvegarde , redressement judiciaire or liquidation judiciaire is rendered in relation to the relevant person under Articles L.620-1 to L.644-6 of the French Code de Commerce . |
16
Retainers (1) | USD | |||
Annual Lead Director Retainer (paid only to Lead Director):
|
25,000 | |||
|
||||
Annual Director Base Retainer (applies to all Directors):
|
90,000 | |||
|
||||
Annual Committee Chairperson Retainer:
|
10,000 | |||
(except Audit Committee and Compensation Committee Chair)
|
||||
|
||||
Annual Audit Committee Chairperson Retainer:
|
20,000 | |||
|
||||
Annual Compensation Committee Chairperson Retainer:
|
15,000 | |||
|
||||
Additional Compensation
|
||||
Annual AGCO Stock Grant Award (2)
|
90,000 |
Page 1 of 2
1) | Payment of annual retainers are made in accordance with the following provisions: |
I) | Annual retainer are paid quarterly in four installments (for ease of calculation purposes quarters are divided into 90 days with a 360 day year). | ||
II) | Annual Retainers accrue as of the first day of each calendar quarter based on the Board and Committee Membership Roster in effect on that date. | ||
III) | Annual Retainers are paid in advance during the first month of the given calendar quarter (e.g., January for the first quarter). | ||
IV) | Changes to Board and Committee Memberships (including Chairpersons) will be reviewed and adjustments made to current quarters retainer amounts (up or down). | ||
V) | Any changes in the Retainer amounts due for the current quarter will be reflected in the ensuing quarters retainer payment. |
2) | Terms applicable to the Stock Grant Award are defined in the Plan Document. The stock grant equivalent to USD 90,000 is based on closing price on the day of the Annual Shareholders meeting. |
Page 2 of 2
Wholly Owned Subsidiaries of AGCO Corporation | Country of Jurisdicton | |
AGCO Corporation AG Chem (Jackson) Division
|
Delaware | |
AGCO Corporation Duluth, Batavia, Hesston & EMS Divisions
|
Delaware | |
AGCO Corporation Beloit (Sunflower) Divisions
|
Delaware | |
AGCO Corporation Eliminations
|
Delaware | |
Massey Ferguson Corp.
|
Delaware | |
AGCO Funding Corporation
|
Delaware | |
Export Market Services LLC (EMS)
|
Georgia | |
AGCO Canada Ltd.
|
Canada | |
AGCO Mexico S de RL de CV
|
Mexico | |
Prestadora de Servicios Mexicana del Bajio, SA de CV
|
Mexico | |
Valtractors Mexico SA de CV
|
Mexico | |
AGCO International Ltd.
|
United Kingdom | |
AGCO Manufacturing Ltd.
|
United Kingdom | |
Ag Chem (UK) Limited
|
United Kingdom | |
AGCO Ltd.
|
United Kingdom | |
Valtra Tractors (UK) Ltd.
|
United Kingdom | |
AGCO Services Ltd.
|
United Kingdom | |
AGCO Funding Company
|
United Kingdom | |
AGCO Pension Trust Ltd.
|
United Kingdom | |
Massey Ferguson Executive Pension Trust Ltd.
|
United Kingdom | |
Massey Ferguson Staff Pension Trust Ltd.
|
United Kingdom | |
Massey Ferguson Works Pension Trust Ltd.
|
United Kingdom | |
AGCO Machinery Ltd
|
United Kingdom | |
Valtra GesmbH
|
Austria | |
AGCO Hohenmolsen GmbH
|
Germany | |
AGCO Deutschland GmbH
|
Germany | |
AGCO Deutschland Holding Limited Co. KG
|
Germany | |
AGCO GmbH
|
Germany | |
AGCO Vertriebs GmbH
|
Germany | |
Fendt Fordertechnik GmbH
|
Germany | |
Fendt Immobilien KG
|
Germany | |
Fendt GmbH
|
Germany | |
Valtra Vertriebs GmbH
|
Germany | |
Valtra Deutschland GmbH
|
Germany | |
AGCO France SA
|
France | |
AGCO SA
|
France | |
AGCO Distribution SAS
|
France | |
AGCO Holding BV
|
Netherlands | |
AGCO Netherlands BV
|
Netherlands | |
Ag Chem Europe Industrial Equipment BV
|
Netherlands | |
Ag Chem Europe Fertilizer Equipment BV
|
Netherlands | |
Valtra International BV
|
Netherlands | |
AGCO International Holdings BV
|
Netherlands | |
AGCO CTP Holdings BV
|
Netherlands | |
AGCO Holdings (Hong Kong) Ltd
|
Hong Kong | |
MF Tarim Makineleri Ltd.
|
Turkey | |
AGCO International GmbH
|
Switzerland | |
AGCO A/S
|
Denmark | |
AGCO Danmark A/S
|
Denmark | |
AGCO CTP LLC
|
Russia | |
AGCO Machinery LLC
|
Russia | |
AGCO Genpower (Shanghai) Co. Limited
|
China | |
Beijing AGCO Trading Co., Ltd.
|
China | |
Fendt Italiana GmbH
|
Italy | |
AGCO Italia SpA
|
Italy | |
Farmec SpA
|
Italy | |
Valtra OY
|
Finland | |
AGCO Sisu Power Inc
|
Finland | |
Valtra Voukraus OY
|
Finland | |
AGCO Sisu Power Voukraus Inc
|
Finland | |
Eikmaskin AS
|
Norway | |
Valtra Norge AS
|
Norway | |
AGCO SPZOO
|
Poland | |
Valtractor Comercio de Tractores e Maquinas Agricolas SA
|
Portugal | |
AGCO Iberia SA
|
Spain | |
AGCO AB
|
Sweden | |
AGCO Australia, Ltd.
|
Australia | |
AGCO do Brazil Commercio e Industria Ltda.
|
Brazil | |
Valtra do Brazil Ltda.
|
Brazil | |
Tecnoagro Maquinas Agricolas Ltda.
|
Brazil | |
AGCO Argentina SA
|
Argentina | |
Indamo SA
|
Argentina | |
AGCO Parts Servicos Adminstrativos Ltda
|
Brazil | |
Industrial Agricola Fortaleza Importacao E Exportacao Ltda
|
Brazil | |
|
||
50% or Greater Joint Venture Interests of the Registrant
|
||
|
||
Groupement International De Mecanique Agricole SA
|
France | |
Deutz AGCO Motores SA
|
Argentina | |
Laverda SPA
|
Italy |
12/31/2009
Wholly Owned Subsidiaries of AGCO Corporation
Country of Jurisdicton
United States
Canada
United Kingdom
Argentina
Saudi Arabia
Morraco
Libya
Ireland
Sweden
Australia
Turkey
Germany
Brazil
France
Austria
Signature | Date | |
/s/ Martin Richenhagen | February 26, 2010 | |
|
||
/s/ P. George Benson | February 25, 2010 | |
|
||
/s/ Herman Cain | February 5, 2010 | |
|
||
/s/ Wolfgang Deml | February 10, 2010 | |
|
||
/s/ Francisco R. Gros | February 23, 2010 | |
|
||
/s/ Gerald B. Johanneson | February 25, 2010 | |
|
||
/s/ George E. Minnich | February 4, 2010 | |
|
||
/s/ Curtis E. Moll | February 25, 2010 | |
|
||
/s/ Thomas W. Lasorda | February 4, 2010 | |
|
||
/s/ Gerald L. Shaheen | February 4, 2010 | |
|
||
/s/ Hendrikus Visser | February 7, 2010 | |
|
1. | I have reviewed this Annual Report on Form 10-K of AGCO Corporation; | ||
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | ||
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | ||
4. | The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
(d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weakness in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | ||
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
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/s/ Martin Richenhagen
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Chairman of the Board, President and Chief | |||
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Executive Officer |
1. | I have reviewed this Annual Report on Form 10-K of AGCO Corporation; | ||
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | ||
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | ||
4. | The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
(d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weakness in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | ||
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
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/s/ Andrew H. Beck
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Senior Vice President and Chief Financial Officer |
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/s/ Martin Richenhagen | |||
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Chief Executive Officer | |||
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February 26, 2010 | |||
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/s/ Andrew H. Beck | |||
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Chief Financial Officer | |||
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February 26, 2010 |