exv10w2






Exhibit 10.2




 





RECEIVABLES PURCHASE AGREEMENT




dated as of December 22, 2009




among




AGCO CANADA, LTD.




as Seller,




AGCO CORPORATION,




in its capacity as servicer under the Interim Servicing Appendix,




and




AGCO FINANCE CANADA, LTD,




as Purchaser




 











 



 


TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1 DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	Section 1.01 Certain Defined Terms
	 	 	1	 
	Section 1.02 Other Terms
	 	 	14	 
	 
	 	 	 	 
	ARTICLE 2 PURCHASE FACILITY
	 	 	14	 
	 
	 	 	 	 
	Section 2.01 Agreement to Purchase and Sell
	 	 	14	 
	Section 2.02 Timing of Purchases
	 	 	16	 
	Section 2.03 Consideration for Purchases
	 	 	16	 
	Section 2.04 Perfection
	 	 	16	 
	Section 2.05 Servicing until Servicing Transfer Date
	 	 	17	 
	Section 2.06 Commitment of Purchaser; Termination Date
	 	 	17	 
	Section 2.07 Dealer Agreement
	 	 	17	 
	 
	 	 	 	 
	ARTICLE 3 PAYMENTS AND COLLECTIONS
	 	 	17	 
	 
	 	 	 	 
	Section 3.01 Collections Received by the Seller
	 	 	17	 
	Section 3.02 Credits, Discounts or other Allowances
	 	 	17	 
	Section 3.03 Payment Requirements
	 	 	17	 
	Section 3.04 Subsidized Interest Payment Amounts
	 	 	18	 
	 
	 	 	 	 
	ARTICLE 4 REPRESENTATIONS AND WARRANTIES
	 	 	18	 
	 
	 	 	 	 
	Section 4.01 Representations and Warranties of the Seller
	 	 	18	 
	Section 4.02 Representations and Warranties of the AGCO
	 	 	21	 
	Section 4.03 Representations and Warranties of the Purchaser
	 	 	22	 
	 
	 	 	 	 
	ARTICLE 5 CONDITIONS OF PURCHASES
	 	 	23	 
	 
	 	 	 	 
	Section 5.01 Conditions Precedent to Initial Purchase
	 	 	23	 
	Section 5.02 Conditions Precedent to All Purchases
	 	 	24	 
	 
	 	 	 	 
	ARTICLE 6 COVENANTS
	 	 	25	 
	 
	 	 	 	 
	Section 6.01 Affirmative Covenants
	 	 	25	 
	Section 6.02 Negative Covenants of the Seller
	 	 	27	 
	 
	 	 	 	 
	ARTICLE 7 PURCHASE TERMINATION EVENTS
	 	 	28	 
	 
	 	 	 	 
	Section 7.01 Purchase Termination Events
	 	 	28	 
	Section 7.02 Remedies for Purchase Termination Event
	 	 	29	 
	Section 7.03 Purchase Suspension Events
	 	 	30	 
	Section 7.04 Remedies for Purchase Suspension Event
	 	 	30	 
	 
	 	 	 	 
	ARTICLE 8 INDEMNIFICATION
	 	 	30	 
	 
	 	 	 	 
	Section 8.01 Indemnities
	 	 	30	 
	Section 8.02 Responsibilities of the Seller
	 	 	31	 
	 
	 	 	 	 
	ARTICLE 9 MISCELLANEOUS
	 	 	31	 
	 
	 	 	 	 
	Section 9.01 Waivers and Amendments
	 	 	31	 





-i-









 



 


TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page
	Section 9.02 Notices
	 	 	31	 
	Section 9.03 Assignments and Participations
	 	 	31	 
	Section 9.04 Confidentiality
	 	 	32	 
	Section 9.05 Limitation of Liability
	 	 	32	 
	Section 9.06 Governing Law; Consent to Jurisdiction; Waiver of Objection to Venue
	 	 	33	 
	Section 9.07 Waiver of Jury Trial
	 	 	33	 
	Section 9.08 Integration; Binding Effect; Survival of Terms
	 	 	33	 
	Section 9.09 Protection of Ownership Interests of the Purchaser; Collection
	 	 	33	 
	Section 9.10 Accounting
	 	 	34	 
	Section 9.11 Counterparts; Severability; Section References
	 	 	34	 
	Section 9.12 Sale Characterization; Grant of Security Interest
	 	 	34	 
	Section 9.13 Paramountcy
	 	 	35	 





-ii-









 






	 	 	 
	EXHIBITS
	 	 
	Exhibit A

	 	Form of Receivables Purchase Report
	Exhibit B

	 	Form of Assignment
	Exhibit C

	 	Form of Quebec Assignment
	Exhibit D

	 	Collection Rights Power of Attorney
	 
	 	 
	SCHEDULES
	 	 
	Schedule I

	 	CRA Business Number
	Schedule II

	 	Addresses
	Schedule III

	 	List of Closing Documents
	Schedule IV

	 	Interim Servicing Appendix












 



 


     This RECEIVABLES PURCHASE AGREEMENT (this “Agreement”) is entered into as of December
22, 2009 among:



     (1) AGCO CANADA, LTD., a Saskatchewan corporation (the “Seller”);



     (2) AGCO CORPORATION, a Delaware corporation, in its capacity as the servicer under the
Interim Servicing Appendix (“AGCO”); and



     (3) AGCO FINANCE CANADA, LTD., a Saskatchewan corporation, as the Purchaser (the
“Purchaser”).



PRELIMINARY STATEMENTS




     WHEREAS, on each Purchase Date, the Seller will sell and assign to the Purchaser, and the
Purchaser will purchase from the Seller, all of its right, title and interest in certain Dealer
Receivables and Related Security with respect thereto, in each case on the terms and subject to the
conditions of this Agreement; and



     WHEREAS, AGCO will, on behalf of and for the benefit of the Purchaser, service all Dealer
Receivables and Related Security acquired by Purchaser pursuant to this Agreement from the date of
the Initial Purchase until January 1, 2010 (the “Servicing Transfer Date”), pursuant to the
Interim Servicing Appendix hereto which incorporates the servicing terms and provisions of (i) the
Receivables Purchase Agreement, dated as of May 2, 2005, among Seller, Nieuw Amsterdam Receivables
Corporation as sellers, Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank
International,” New York Branch (“Rabobank”), as custodian, AGCO, as servicer, and AGCO
Finance Canada, Ltd., as purchaser (the “2005 RPA”) and (ii) the Securitization RPA (to the
extent the terms and provisions of the 2005 RPA are incorporated therein by reference to the
Securitization RPA); and



     WHEREAS, it is anticipated that on the Servicing Transfer Date the Purchaser will assume the
servicing (with certain support services to be provided by AGCO pursuant to a support agreement
between AGCO and the Purchaser) of the Dealer Receivables and Related Security which it acquires
under this Agreement; and



     WHEREAS, upon execution of this Agreement, the parties to the 2005 RPA and the Securitization
RPA shall have terminated the 2005 RPA and the Securitization RPA.



     NOW, THEREFORE, in consideration of the premises set forth above, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:



ARTICLE 1

DEFINITIONS




     Section 1.01 Certain Defined Terms. As used in this Agreement (including in the
foregoing recitals), the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):









 



 


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     “2005 RPA” has the meaning set forth in the Recitals.



     “2005 RPA Termination Agreement” means the termination agreement dated the date hereof
pursuant to which the 2005 RPA is terminated.



     “Account Transfer Date” has the meaning given to such term in the Support Agreement.



     “Adverse Claim” means a lien, security interest, charge, encumbrance, or other right
or claim in, of or on any Person’s assets or properties in favor of any other Person.



     “Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with, such Person or any
Subsidiary of such Person. A Person shall be deemed to control another Person if the controlling
Person owns 10% or more of any class of voting securities of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the management or policies of
the controlled Person, whether through ownership of shares/stock, by contract or otherwise.
Notwithstanding the foregoing, the Seller and the Purchaser will be deemed not to be Affiliates of
each other for the purposes of this Agreement.



     “AGCO” means AGCO Corporation, a Delaware corporation, and any successor thereto.



     “AGCO Credit Facility” means that certain Credit Agreement dated as of May 16, 2008,
among AGCO and certain of its subsidiaries named therein, the persons party thereto as “Lenders”,
Coöperatieve Centrale Raiffeisen-Boerenleenbank, B.A., “Rabobank Nederland”, New York Branch, as
Administrative Agent, as such agreement may be amended, modified, supplemented, renewed, extended,
refinanced, replaced or restated from time to time, in whole or in part.



     “AGCO Credit and Collection Policy” has the meaning assigned to such term in the
Support Agreement.



     “AGCO Finance Credit and Collection Policy” has the meaning assigned to such term in
the Support Agreement.



     “AGCO Finance Purchase Termination Event” has the meaning given to such term in
Section 7.02.



     “AGCO IF Committee” has the meaning given such term in the Support Agreement.



     “AGCO Purchase Termination Event” has the meaning given to such term in Section 7.02.



     “Agreement” means this Receivables Purchase Agreement, as it may be amended, restated,
supplemented or modified and in effect from time to time.



     “Assignment” has the meaning set forth in Section 2.04.



     “Atlanta Time” means the time in Atlanta, Georgia (USA).









 



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     “Authorized Officer” means, with respect to the Seller or the Purchaser, its
respective corporate controller, treasurer or chief financial officer.



     “Bankruptcy Event” means, with respect to any Person, the occurrence of any one or
more of the following events:




     (a) such Person shall generally not pay its debts as such debts become due or shall
admit in writing its inability to pay its debts generally,




     (b) such Person shall make a general assignment for the benefit of creditors,




     (c) any proceeding shall be instituted by or against such Person seeking to adjudicate
it bankrupt or insolvent, or seeking liquidation, dissolution, winding up, reorganization,
termination of existence, arrangement, adjustment, protection, relief or composition of it
or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the issuance of an order for relief or the appointment of a receiver,
manager, receiver-manager, interim receiver, liquidator, monitor, trustee in bankruptcy or
other similar official for it or any substantial part of its property, or




     (d) such Person shall take any corporate action to authorize any of the actions set
forth in clause (a), (b) or (c) hereof.



     “Business Day” means any day (other than a Saturday or Sunday) on which banks are not
authorized or required to close in New York, New York, Atlanta, Georgia, Toronto, Canada or Des
Moines, Iowa.



     “Calculation Letter” means that certain calculation letter dated as of the date
hereof, between the Seller and the Purchaser, as the same may be amended or modified and in effect
from time to time.



     “Canadian Dealer” means a Dealer that is resident in Canada and that remits payments
to a Lock-Box or Collection Account located in Canada.



     “Canadian Dollars” or “Cdn $” means the lawful currency of Canada.



     “Change of Control” means (1) with respect to Seller or AGCO at any time, the
occurrence of any of the following: (a) any Person or two or more Persons (including any “group” as
that term is used in Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934) acting in
concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934), directly or
indirectly, of voting Stock of the Seller or AGCO (as appropriate) (or other securities convertible
into such voting Stock) representing thirty-five percent (35%) or more of the combined voting power
of all voting Stock of the Seller or AGCO (as appropriate); or (b) during any period of up to
twenty-four (24) consecutive months, commencing after the Closing Date, individuals who at the
beginning of such twenty-four (24)-month period were directors of the Seller or AGCO (together with
any new directors whose election to the board of directors or









 



 - 4 - 



whose nomination for election by the Seller’s or AGCO’s (as appropriate) shareholders or
stockholders was approved by a vote of at least two-thirds of the members of the board of directors
at the beginning of such period or whose election or nomination for election was previously so
approved) shall cease for any reason to constitute a majority of the board of directors of the
Seller or AGCO (as appropriate); or (c) any “Change of Control”, as defined in the AGCO Credit
Facility or any of the Subordinated Debt Documents (as defined in the AGCO Credit Facility) shall
occur to either of the Seller or AGCO; and (2) with respect to the Purchaser, Coöperatieve Centrale
Raiffeisen-Boerenleenbank B.A., shall cease to own, directly or indirectly, at least fifty percent
(50%) of the voting power of the outstanding equity securities of the Purchaser.



     “Closing Date” means the date of the initial Purchase hereunder.



     “Collection Account” has the meaning assigned to such term in the Support Agreement.



     “Collection Proceeding” means, with respect to any Obligor, any legal collection,
replevin, injunctive action or similar action initiated or commenced by the Servicer, the Seller or
the Purchaser taken to enforce any obligation (including, without limitation, any Dealer
Receivable) owed by such Obligor to the Servicer, the Seller or the Purchaser.



     “Collection Rights” has the meaning given to such term in Section 9.09(c).



     “Collections” means, with respect to any Dealer Receivable (including, as applicable,
any Sold Receivable), all collections and other proceeds in respect of such Dealer Receivable,
including, without limitation, all cash, yield, finance charges or other related amounts accruing
in respect thereof and all cash and other proceeds of Related Security with respect to such Sold
Receivable.



     “Company Indebtedness” of a Person means such Person’s (i) obligations for borrowed
money, (ii) obligations representing the deferred purchase price of property or services (other
than accounts payable arising in the ordinary course of such Person’s business), (iii) obligations,
whether or not assumed, secured by liens, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) capitalized lease obligations, (vi) net liabilities under
interest rate swap, exchange or cap agreements, (vii) obligations under any agreement, undertaking
or arrangement by which such Person assumes, guarantees, endorses, contingently agrees to purchase
or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the
obligation or liability of any other Person, or agrees to maintain the net worth or working capital
or other financial condition of any other Person, or otherwise assures any creditor of such other
Person against loss, including, without limitation, any comfort letter, operating agreement,
take-or-pay contract or application for a letter of credit.



     “Contract” means, with respect to any Receivable, any and all instruments, agreements,
invoices or other writings pursuant to which such Receivable arises or which evidences such
Receivable, including, without limitation, any related Dealer Agreement and any related Security
Agreement.



     “Credit Limit” has the meaning assigned to such term in the Support Agreement.









 



 - 5 - 


     “Cut-off Date” means, with respect to any Purchase Date, the last day of the month
preceding such Purchase Date. For the avoidance of doubt, the Cut-off-Date with respect to the
Initial Purchase shall be November 30, 2009.



     “Dealer” means a Person that has entered into a Dealer Agreement with the Seller or
that is otherwise acquiring Eligible Equipment from the Seller.



     “Dealer Affiliate” means, with respect to any Dealer, any Person controlling such
Dealer. For purposes of this definition, “controlling,” when used with respect to any Dealer,
means the power to direct the management and policies of such Dealer, directly or indirectly,
whether through the ownership of capital stock or share capital, by contract, or otherwise.
Without limiting the foregoing, a Person shall be deemed to control a Dealer if such other Person
possesses, directly or indirectly, power to vote 25% or more of the capital stock or share capital
(on a fully diluted basis) or its equivalent, having ordinary voting power for the election of
directors, managers, or managing general partners of such Dealer.



     “Dealer Agreement” means an agreement between the Seller and another Person that has
agreed to act as a dealer for equipment manufactured or distributed by the Seller, which agreement
is (a) substantially in the form of the “Dealer Sales and Service Agreement” delivered to and
accepted by the AGCO IF Committee on the Closing Date or any substantially similar agreement,
howsoever denominated and (b) incorporates into its terms the Product Terms and Conditions
applicable to the equipment for which the Person who has entered into the Agreement with the Seller
has agreed to act as dealer.



     “Dealer Receivable” means the indebtedness and other obligations owed to the Seller
(without giving effect to any transfer or conveyance hereunder) or in which the Seller has or may
have a security interest or other interest, whether constituting an account, chattel paper,
instrument or intangible, arising in connection with the sale of farm machinery to a Canadian
Dealer pursuant to a Dealer Agreement or otherwise and includes, without limitation, the obligation
to pay any finance, interest, late payment charges or similar charges with respect thereto.
Indebtedness and other rights and obligations arising from any one transaction with a Canadian
Dealer, including, without limitation, indebtedness and other rights and obligations represented by
an individual invoice, shall constitute a Dealer Receivable separate from a Dealer Receivable
consisting of the indebtedness and other rights and obligations arising from any other transaction.



     “Dealer Regulatory Laws” has the meaning given to such term in Section 2.07.



     “Eligibility Criteria” means, with respect to any Receivable, each of the following
criteria:




     (a) the representations and warranties set forth in Section 4.01(g) and Section 4.01(h)
are true and correct with respect to such Receivable;




     (b) the Obligor of such Receivable is a Dealer and is not an Affiliate of the Seller;









 



 - 6 - 



     (c) such Receivable is denominated and payable only in Canadian Dollars in Canada;




     (d) the Obligor of such Receivable (i) (but not including any guarantor or surety in
respect of such Obligor) if a natural person, is a resident of Canada or, if a corporation
or other business organization, is organized under the laws of Canada or a Canadian province
and has its principal office in Canada; and (ii) is not a government or a governmental
subdivision or agency;




     (e) such Receivable is owed by an Obligor that is an Eligible Dealer,




     (f) such Receivable is evidenced by an invoice and constitutes an “account,”
“intangible”or “chattel paper” within the meaning of paragraph (ii) of the definition of the
UCC;




     (g) such Receivable was generated in the ordinary course of the Seller’s business from
the sale of equipment to the Obligor by the Seller, and not by any other Person (in whole or
in part);




     (h) such Receivable complies in all material respects with, and was originated in
accordance with, (i) all applicable requirements of the AGCO Credit and Collection Policy,
and (ii) the Credit Limit for Sold Receivables applicable to the related Obligor;




     (i) the outstanding principal balance of such Receivable does not exceed the purchase
price for the related Equipment payable by the Dealer;




     (j) the Outstanding Balance of such Receivable is due and payable in full upon the
Dealer’s sale of the related Equipment;




     (k) such Receivable, together with the Dealer Agreement, the Security Agreement and
each other Contract related thereto, as the case may be, does not contravene any law, rule
or regulation applicable thereto to an extent which would in any way impair the ability of
the Purchaser (or the servicer of the Sold Receivables) to ultimately collect any and all
amounts payable in respect of such Dealer Receivable;




     (l) unless the Receivable is an Eligible Unsecured Receivable, the security interest in
the Equipment securing payment of such Receivable is a validly perfected first priority
security interest in such Equipment;




     (m) in the case of a Receivable proposed for inclusion in any Subsequent Purchase,
except to the extent disclosed to the Purchaser and the Purchaser has waived the requirement
with respect to such Receivable, such Receivable was invoiced during the month prior to the
applicable Subsequent Purchase Date;




     (n) such Receivable arises from the sale of Eligible Equipment which is either new or
used Eligible Equipment; provided, that Receivables arising from the sale of used
Equipment shall only satisfy this clause (n) so long as the aggregate Outstanding Balance of
all Sold Receivables held by the Purchaser which arise from the sale of used









 



 - 7 - 



Equipment does not, on the relevant Purchase Date, exceed 30% of the Maximum
Outstanding Balance;




     (o) such Receivable (i) does not require (or does not contain terms which require) the
Obligor to consent to the transfer, sale or assignment of the rights and duties of the
Seller, (ii) does not arise under any Contract which contains a confidentiality provision
that purports to restrict the ability of the Purchaser (or its servicer on its behalf) to
exercise any of its rights under this Agreement, including, without limitation, its right to
review such Contract, (iii) was not created and the terms of such Receivable do not and the
transactions contemplated by this Agreement in respect of such Receivable do not contravene
any Privacy Laws, and (iv) does not arise under a Contract which contains an obligation to
pay a specified sum of money, contingent only upon the sale of goods or the provision of
services by the Seller; and




     (p) such Receivable has a stated rate of interest presented in the Dealer Agreement,
the Product Terms and Conditions, the invoice or other Contract which evidences such
Receivable, which interest rate shall be subject to adjustment by the Purchaser from time to
time other than set forth in the Product Terms and Conditions, and which the Obligor shall
be required to pay on the Outstanding Balance of such Receivable during any period when such
Receivable is not within the interest-free period specified in the applicable Product Terms
and conditions (or any extensions of the interest-free period).



     “Eligible Dealer” means any Dealer other than an Ineligible Dealer. The Eligible
Dealers as of the Closing Date shall be those which have been determined to be Eligible Dealers by
the AGCO IF Committee as of the Closing Date.



     “Eligible Dealer Secured Receivable” means a Receivable that satisfies the Eligibility
Criteria and such Receivable arises under a Dealer Agreement and is secured pursuant to security
interests granted under the Dealer Agreement or a Security Agreement which, together with such
Dealer Agreement and such Receivable, is in full force and effect and has not been terminated or
modified without the Purchaser’s advance written consent and constitutes the legal, valid and
binding obligation of the related Obligor in accordance with its terms and there has not occurred
any known claim for offset (other than programs for bonuses and volume discounts in effect at the
time of sale of such Receivable to the Purchaser on a Purchase Date), counterclaim or other defense
or contingency.



     “Eligible Equipment” means Equipment that is financed under a Dealer Receivable
pursuant to the Product Terms and Conditions.



     “Eligible Receivable” means, (a) on the Closing Date, the Receivables included in the
Initial Portfolio and acquired pursuant to the Initial Portfolio, provided that such Receivables
satisfy the Eligibility Criteria, and (b) at any time after the Closing Date, in connection with
any Subsequent Purchase, a Receivable that is on the Purchase Date for such Receivable (i) an
Eligible Dealer Secured Receivable, (ii) an Eligible Wholesale Secured Receivable, or (iii) an
Eligible Unsecured Receivable.









 



 - 8 - 


     “Eligible Unsecured Receivable” means a Receivable that satisfies the Eligibility
Criteria and such Receivable arises under an Invoice from the Seller to an Eligible Dealer who is
not a party to a Security Agreement covering the Equipment subject to such Invoice
provided, that Receivables which satisfy the above criteria may be treated as Eligible
Unsecured Receivables so long as the aggregate Outstanding Balance of all Sold Receivables held by
the Purchaser which are Eligible Unsecured Receivables does not on the relevant Purchase Date
exceed 15% of the Maximum Outstanding Balance.



     “Eligible Wholesale Secured Receivable” means a Receivable that satisfies the
Eligibility Criteria and:




     (a) such Receivable arises under an Invoice from the Seller to an Eligible Dealer who
is not a party to a Dealer Agreement;




     (b) such Receivable is secured pursuant to security interests granted under a Security
Agreement which, together with such Receivable, is in full force and effect and has not been
terminated or modified without the Purchaser’s advance written consent and constitutes the
legal, valid and binding obligation of the related Obligor enforceable against such Obligor
in accordance with its terms and there has not occurred any known claim for offset (other
than programs for bonuses and volume discounts in effect at the time of sale of such
Receivable to the Purchaser on a Purchase Date), counterclaim or other defense or
contingency; and



provided, that Receivables which satisfy the above criteria may be treated as Eligible
Wholesale Secured Receivables so long as the aggregate Outstanding Balance of all Sold Receivables
held by the Purchaser which are Eligible Wholesale Secured Receivables does not on the relevant
Purchase Date exceed 10% of the Maximum Outstanding Balance.



     “Equipment” means, with respect to any Dealer Receivable, the equipment the sale or
financing of which gave rise to such Dealer Receivable.



     “Facility Purchaser Termination Date” has the meaning given to such term in Section
2.06(a).



     “Facility Seller Termination Date” has the meaning given to such term in Section
2.06(b).



     “Ineligible Dealer” means, at any time, a Dealer that satisfies any one or more of the
following criteria:




     (a) the AGCO IF Committee has declared such Dealer to be an Ineligible Dealer for
purposes of this Agreement,




     (b) a Bankruptcy Event has occurred and is continuing with respect to such Dealer or a
related Dealer Affiliate,




     (c) on any Purchase Date, the aggregate Outstanding Balance of the Sold Receivables
from such Dealer exceeds, or to the extent that after giving effect to the Purchase on such
Purchase Date the aggregate Outstanding Balance of the Sold









 



 - 9 - 



Receivables from such Dealer would exceed, a credit limit established by the AGCO IF
Committee with respect to such Dealer,




     (d) a Collection Proceeding is pending against such Dealer or a related Dealer
Affiliate, and




     (e) the Dealer Agreement of such Dealer has been terminated (for any reason or for no
reason) or a “future termination date” has already been agreed with such Dealer, or the
relationship between such Dealer and the Seller for the purchase, related sale and
after-sale servicing of whole goods machinery items has otherwise been terminated (for any
reason or for no reason).



     “Initial Portfolio” means the Receivables listed on the schedule of Receivables
delivered by the Seller to the Purchaser on the Closing Date (via excel file labelled “Purchase by
Invoice — Canada”) and identified as the Receivables which will be acquired by the Purchaser in
the Initial Purchase provided the same constitute Eligible Receivables.



     “Initial Purchase” means the purchase and sale of the Initial Portfolio made on the
Closing Date.



     “Interim Servicing Appendix” means the interim servicing provisions in respect of sold
Receivables set out in Schedule VII.



     “Invoice” means an invoice for the sale of Eligible Equipment in a form approved by
the Purchaser.



     “Lock-Box” has the meaning given to such term in the Support Agreement.



     “Material Adverse Effect” means (a) with respect to the Seller, a material adverse
effect on (i) the ability of the Seller to perform its obligations under the Transaction Documents,
(ii) the legality, validity or enforceability of the Transaction Documents, (iii) the Purchaser’s
interest in the Sold Receivables generally or in any significant portion of the Sold Receivables or
Collections with respect thereto, (iv) the ability of the Purchaser (or its servicer on its behalf)
to enforce and collect Sold Receivables generally (other than by reason of the Obligor’s inability
to pay) or any material portion of the Sold Receivables and (b) with respect to the Purchaser, a
material adverse effect on (i) the ability of the Purchaser (including, without limitation, in its
capacity as servicer) to perform its obligations under the Transaction Documents, (ii) the
legality, validity or enforceability of the Transaction Documents, (iii) the Seller’s interest in
the Retained Receivables generally or in any significant portion of the Retained Receivables or
Collections with respect thereto, (iv) the ability of the Seller (or its servicer on its behalf) to
enforce and collect Retained Receivables generally (other than by reason of the Obligor’s inability
to pay) or any material portion of the Retained Receivables.



     “Maximum Outstanding Balance” means Cdn. $250,000,000 (or, in the sole discretion of
the Purchaser, such amount in excess thereof as communicated in writing by Purchaser to Seller;
provided, that, the fact that the Purchaser has increased the Maximum Outstanding Balance
above Cdn. $250,000,000 shall not preclude the Purchaser from, by written notice to the Seller,









 



 - 10 - 



thereafter reducing the Maximum Outstanding Balance (provided, that it may not be
reduced below Cdn. $250,000,000. 



     “Moody’s” means Moody’s Investors Service, Inc., and any successor thereto.



     “Obligor” means a Dealer or any other Person obligated to make payments with respect
to any Dealer Receivable, including any guarantor.



     “Outstanding Balance” means, with respect to any Dealer Receivable, the outstanding
principal balance of such Dealer Receivable expressed in Canadian Dollars plus any accrued interest
thereon.



     “Person” means an individual, partnership, corporation (including a business trust),
limited liability company, limited liability partnership, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or any political
subdivision or agency thereof.



     “Potential AGCO Purchase Termination Event” means an event which, with the passage of
time or the giving of notice, or both, would constitute an AGCO Purchase Termination Event.



     “Preliminary Monthly Receivables Purchase Report” has the meaning given to such term
in Section 2.01(b).



     “Privacy Law” means the Personal Information Protection and electronic Documents Act
(Canada), the Freedom of Information and Protection of Privacy Act (Ontario) and any comparable law
of any other province or territory of Canada.



     “Product Terms and Conditions” means the terms and conditions applicable to the
financing of Equipment delivered to and accepted by the AGCO IF Committee on the Closing Date, as
such terms and conditions may be amended from time to time in accordance with Section 6.02(e)
hereof.



     “Purchase” means the Initial Purchase or a Subsequent Purchase.



     “Purchase Date” means the Closing Date or a Subsequent Purchase Date.



     “Purchase Price” has the meaning set forth in Section 2.03(a).



     “Purchase Suspension Event” has the meaning specified in Section 7.03.



     “Purchase Termination Event” has the meaning set forth in Section 7.01.



     “Purchaser” has the meaning given to such term in the preamble.



     “Quebec Assignment” has the meaning given to such term in Section 5.01(e)



     “Rabobank” has the meaning set forth in the Recitals.









 



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     “Receivable” means a Dealer Receivable and the Related Security related thereto with
respect to which the Seller owns one hundred percent (100%) of the legal and beneficial interest
therein.



     “Receivables Purchase Report” means a report, in substantially the form of Exhibit
B hereto, constituting a Preliminary Monthly Receivables Purchase Report or a Final monthly
Receivable Purchase Report.



     “Records” means, with respect to any Receivable, all Contracts and other documents,
books, records and other information (including, without limitation, computer programs, tapes,
disks, punch cards, data processing software and related property and rights) relating to such
Receivable, any Related Security therefor and the related Obligor.



     “Related Security” means, with respect to any Dealer Receivable:




     (a) all of the Seller’s interest in the Equipment or other inventory and goods
(including returned, foreclosed or repossessed inventory or goods) the financing or sale of
which by the Seller gave rise to such Dealer Receivable, and all insurance contracts with
respect thereto,




     (b) all other security interests or liens and property subject thereto from time to
time, if any, purporting to secure payment of such Dealer Receivable, whether pursuant to
the Dealer Agreement related to such Dealer Receivable or otherwise, together with all
financing statements and security agreements describing any collateral securing such Dealer
Receivable,




     (c) all guarantees, insurance and other agreements or arrangements of whatever
character from time to time supporting or securing payment of such Dealer Receivable whether
pursuant to the Dealer Agreement related to such Dealer Receivable or otherwise,




     (d) all service contracts and other agreements associated with such Dealer Receivable;




     (e) all Records related to such Dealer Receivable;




     (f) the Collection Rights related to such Dealer Receivable;




     (g) all proceeds of any of the foregoing,




provided however that Related Security shall not include the related Dealer Agreement or
Security Agreement.



     “Repurchase Price” has the meaning given to such term in Section 4.01(k).



     “Retained Receivables” has the meaning given to such term in the Support Agreement.









 



 - 12 - 


     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., and any successor thereto.



     “Securitization RPA” means the receivables purchase agreement dates as of June 26,
2001 by and among the Seller, Nieuw Amsterdam Receivables Corporation and Rabobank.



     “Securitization RPA Termination and Receivables Repurchase Agreement” means the
Securitization RPA Termination and Receivables Repurchase Agreement dated as of the date hereof
among the Seller, Nieuw Amsterdam Receivables Corporation and Rabobank.



     “Security Agreement” means a wholesale security agreement executed by a Dealer in
favor of the Seller pursuant to which such Dealer grants to the Seller a security interest in
Equipment sold to such Dealer by the Seller to secure Dealer Receivables of such Dealer and all
present and future direct or indirect indebtedness that may be or become owed by such Dealer to the
Seller, substantially in the form of the “Agreement for Wholesale Financing (SECURITY AGREEMENT”)
delivered to and accepted by the AGCO IF Committee on the Closing Date, or any substantially
similar agreement, howsoever denominated.



     “Seller” has the meaning set forth in the preamble.



     “Servicer” means at any time the Person then authorized under this Agreement or
otherwise to service, administer and collect the Sold Receivables and on the date hereof until the
Servicing Transfer Date means AGCO.



     “Servicing Agreement” means the Servicing Agreement of even date hereof for the
Retained Receivables as amended, restated, supplemented or otherwise modified from time to time in
accordance with its terms.



     “Servicing Transfer Date” has the meaning set forth in the Recitals.



     “Sold Assets” means, collectively, the Sold Receivables and Collections with respect
thereto.



     “Sold Receivable” means a Receivable that has been sold or otherwise conveyed to the
Purchaser hereunder; provided, however, that on any Purchase Date, solely for
purposes of the representations and warranties set forth in ARTICLE 4 and Section 5.02 hereof,
“Sold Receivables” shall include the Receivables to be sold or otherwise conveyed on such Purchase
Date.



     “SOT Receivable” means a Dealer Receivable for which the proceeds received upon the
sale, loss, damage, destruction or other disposition of the Equipment securing such Dealer
Receivable are not applied to the payment of such Dealer Receivable.



     “Stock” means, as applied to any Person, any stock, share capital, partnership
interests or other equity of such Person, regardless of class or designation, and all warrants,
options, purchase rights, conversion or exchange rights, voting rights, calls or claims of any
character with respect thereto.









 



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     “Stockholders Agreement” means the agreement dated December 27, 2002 among the Seller,
De Lage Landen Finance Inc., and AGCO.



     “Subsequent Portfolio” means the Receivables listed on each Final Monthly Receivables
Purchase Report for each Subsequent Purchase Date and identified as the Receivables which will be
acquired by the Purchaser in the related Subsequent Purchase.



     “Subsequent Purchase” means the purchase and sale of Receivables made on a Subsequent
Purchase Date.



     “Subsequent Purchase Date” means the second Business Day following the delivery by the
Purchaser to the Seller of a Final Monthly Receivables Purchase Report from the Seller in
accordance with Section 2.01(b) hereof.



     “Subsidiary” of a Person means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or controlled, directly
or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or
more of its Subsidiaries, or (ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting power of which shall
at the time be so owned or controlled.



     “Subsidized Interest Payment Amount” has the meaning set forth in the Calculation
Letter.



     “Subsidized Interest Payment Date” means the third Business Day of each calendar
month.



     “Subsidized Interest Payment Period” means the calendar month immediately preceding
the applicable Subsidized Interest Payment Date (or, in the case of the initial Subsidized Interest
Payment Period, the period from date of the Initial Purchase to the last day of the month preceding
the first Subsidized Interest Payment Date).



     “Support Agreement” means that certain Support Services Agreement of even date hereof
between AGCO and the Purchaser as amended and restated, supplemented or otherwise modified in
accordance with the terms hereof.



     “Termination Date” means the earliest to occur of (i) the Facility Purchaser
Termination Date or the Facility Seller Termination Date, (ii) the Business Day immediately prior
to the occurrence of a Purchase Termination Event set forth in Section 7.01(c), (iii) the Business
Day specified in a written notice from (A) the Purchaser following the occurrence of any other AGCO
Purchase Termination Event, or (B) the Seller following the occurrence of any other AGCO Finance
Purchase Termination Event, and (iv) the date which is 30 days after the Purchaser’s receipt of
written notice from the Seller that it wishes to terminate the facility evidenced by this
Agreement.









 



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     “Transaction Documents” means, collectively, this Agreement, the Support Agreement,
the Quebec Assignment, each Assignment, the Calculation Letter and all other instruments, documents
and agreements executed and delivered in connection herewith and therewith.



     “UCC” means, (i) with respect to any jurisdiction in the United States, the Uniform
Commercial Code as from time to time in effect in such jurisdiction, and (ii) with respect to any
jurisdiction in Canada, the personal property security legislation applicable in such jurisdiction,
including with respect to the jurisdictions of Canada other than Quebec, the Personal Property
Security Act applicable in such jurisdictions.



     “U.S. Dollars” or “U.S.$” means the lawful currency of the United States of America.



     “U.S. Receivables Agreement” means the Receivables Purchase Agreement, dated as of
December 22, 2009, among AGCO, as seller and AGCO Finance LLC, as purchaser, as amended, restated,
supplemented or otherwise modified from time to time in accordance with the terms thereof.



     Section 1.02 Other Terms. All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles. All terms used in the
Personal Property Security Act of the Province of Ontario, and not specifically defined herein, are
used herein as defined in such legislation except that any reference herein to “equipment” includes
inventory as defined therein. Except as expressly provided in this Agreement, all dollar amounts
referred to in this Agreement are stated in U.S Dollars.



ARTICLE 2

PURCHASE FACILITY




     Section 2.01 Agreement to Purchase and Sell.




     (a) Initial Purchase on the Closing Date. Subject to the terms of paragraph
(d) below, on the terms and subject to the conditions set forth in this Agreement and in
consideration of the Purchaser’s delivery to the Seller of the aggregate Purchase Price of
the Receivables being sold on such date, the Seller agrees to sell to the Purchaser on the
Closing Date, and the Purchaser agrees to purchase from the Seller on the Closing Date,
without recourse to the Seller (except as expressly provided under this Agreement), all of
the Seller’s right, title and interest in and to the Receivables included in the Initial
Portfolio (provided the same are Eligible Receivables) to this Agreement, together with the
Related Security and all Collections related to such Receivables since the Cut-off-Date
applicable to the Initial Purchase.




     (b) Subsequent Purchases. Pursuant to the terms of this Agreement, the Seller
shall offer for sale to the Purchaser on each Subsequent Purchase Date all Eligible
Receivables originated by the Seller in the calendar month preceding such Subsequent
Purchase Date. The Seller shall prepare and forward to the Purchaser, no later than 12:00
noon (Atlanta Time) on the second Business Day following the end of each calendar month, a
Receivables Purchase Report containing information, accurate as of the last day of the
calendar month then most recently ended, identifying all Eligible Receivables









 



 - 15 - 



which the Seller originated during the prior calendar month and such other Eligible
Receivables which the Seller proposes to sell to the Purchaser (each such report, a
“Preliminary Monthly Receivables Purchase Report”).
No later than 12:00 noon
(Atlanta Time) on the second Business Day following the date on which the Preliminary
Monthly Receivables Purchase Report is received, the Purchaser will prepare and forward to
the Seller a Receivables Purchase Report listing those Eligible Receivables which were
included on the Preliminary Monthly Receivables Purchase Report and which the Purchaser
proposes to buy from the Seller on the applicable Subsequent Purchase Date (each such
report, a “Final Monthly Receivables Purchase Report”). The Purchaser may exclude
from the Final Monthly Receivables Purchase Report any Eligible Receivables listed on the
Preliminary Monthly Receivables Purchase Report which it reasonably determines do not
conform to its purchase standards for Sold Receivables, including, but not limited to, the
AGCO Finance Credit and Collection Policies. Subject to the terms of paragraph (d) below
and Section 2.06(b), as of the applicable Subsequent Purchase Date, on the terms and subject
to the conditions set forth in this Agreement and in consideration of the Purchaser’s
delivery to the Seller of the aggregate Purchase Price of the Eligible Receivables to be
sold on such Purchase Date, the Seller shall sell, on the applicable Subsequent Purchase
Date, to the Purchaser, and the Purchaser shall purchase, on the applicable Subsequent
Purchase Date, from Seller, without recourse to Seller (except as expressly provided under
this Agreement), all of Seller’s right, title and interest in and to the Eligible
Receivables identified in the applicable Final Monthly Receivables Purchase Report, together
with the Related Security and all Collections related to such Receivables since the Cut-off
Date applicable to such Subsequent Purchase.




     (c) Upon the consummation of each sale hereunder, the Seller shall have no interest in
the Sold Receivables or in the Collections thereon, and in the event the Seller suffers a
Bankruptcy Event, neither such Sold Receivables nor the Collections thereon shall be a part
of the Seller’s estate or assets. Upon the sale of each Receivable in accordance with
paragraph (a) or (b) above, as applicable, the Purchaser shall have all rights of ownership
relating to such Sold Receivable. As such, the Purchaser shall have the sole right to
assign, transfer, deliver, hypothecate or deal with the Sold Receivables or retain any gains
or profits created by selling, pledging, encumbering or holding the Sold Receivables, and
shall have the sole risk of and responsibility for losses or damages created by selling,
pledging, encumbering or holding the Sold Receivables. Likewise, the Seller has no right to
any surplus or other profits received on the Sold Receivables and is not liable for any
losses suffered by the Purchaser on the Sold Receivables (except as expressly provided
under this Agreement). The Purchaser has the sole right to retain for its own benefit all
Collections on the Sold Receivables received after the sale date regardless of whether such
Collections exceed or are less than the Purchase Price it paid to the Seller for such Sold
Receivables.




     (d) Notwithstanding the foregoing or anything to the contrary herein, the Purchaser
will not consider and shall be under no obligation to complete any Purchase (a) if and to
the extent that the aggregate Outstanding Balance of the Sold Receivables at any one time
outstanding, giving effect to such Purchase would exceed the Maximum Outstanding Balance or
(b) during the continuance of a Purchase Suspension Event.









 



 - 16 - 


     Section 2.02 Timing of Purchases. On the terms and subject to the conditions set
forth in this Agreement, upon payment by the Purchaser of the Purchase Price therefor payable
pursuant to Section 2.03, all of the Receivables included in the Initial Portfolio, in the case of
the Initial Purchase, or in a Final Monthly Receivables Purchase Report, in all other cases,
together in each case with the Related Security and Collections for such Receivables that have been
or are received after the closing of the Seller’s business on the Cut-off Date for such Purchase,
automatically shall be deemed to have been sold to the Purchaser as of the applicable Cut-off Date,
without further action by any other Person.



     Section 2.03 Consideration for Purchases. On the terms and subject to the conditions
set forth in this Agreement, the Purchaser agrees to make payments in consideration of the Sold
Assets in accordance with this Section 2.03.




     (a) Subject to Section 2.01(d) hereof, the Purchaser hereby agrees to pay the Seller on
each Purchase Date a purchase price equal to the aggregate Outstanding Balance of the Dealer
Receivables (in each case, the “Purchase Price”) then being sold by the Seller as
of the close of the Seller’s business on the Cut-off Date for such Purchase.




     (b) On the date of each Purchase, subject to Section 2.01(d) hereof and upon
satisfaction of the applicable conditions precedent set forth in ARTICLE 5, the Purchaser
shall deposit an amount equal to the relevant Purchase Price in the Collection Account or
such other account indentified by the Seller pursuant to written wire transfer instructions
delivered to the Purchaser with the applicable Preliminary Monthly Receivables Purchase
Report or, in the case of the Initial Purchase, on the Business Day prior to the Closing
Date, in immediately available funds, no later than 12:00 noon (Atlanta Time).



     Section 2.04 Perfection.




     (a) The Seller authorizes the Purchaser at any time and from time to time, and appoints
the Purchaser as its attorney-in-fact, to act on its behalf, to record and file, at the
Seller’s expense, financing statements (and continuation statements with respect to such
financing statements when applicable) necessary in the Purchaser’s sole discretion to
perfect and to maintain the perfection and first priority of the Purchaser’s interest in the
Sold Assets in accordance with the UCC.




     (b) The Seller further agrees (and AGCO agrees in its capacity as support services
provider under the Support Agreement), at its own expense, with respect to the Receivables
conveyed by it to the Purchaser hereunder: (a) on or promptly after each Purchase Date, to
indicate on its computer files and/or its physical files, that such Receivables have been
conveyed pursuant to this Agreement and (b) on the Closing Date and on or promptly after
each Subsequent Purchase Date to execute and deliver to the Purchaser an assignment in
substantially the form of Exhibit B hereto (each, an “Assignment”), to which
Assignment shall be attached a schedule of all Receivables (including for each the account
number and the Outstanding Balance as of the relevant Purchase Date) which are being
conveyed on such date. Each such schedule shall be incorporated by reference into, and
shall become a part of this Agreement.









 



 - 17 - 


     Section 2.05 Servicing until Servicing Transfer Date. AGCO agrees that it shall
continue servicing the Receivables acquired by the Purchaser hereunder, for the benefit of and on
behalf of the Purchaser, until the Servicing Transfer Date. AGCO shall perform such servicing
obligations on terms consistent with those included in the Interim Servicing Appendix hereto.



     Section 2.06 Commitment of Purchaser; Termination Date.




     (a) The term of this Agreement shall commence on December 22, 2009 and continue until
the date which is 364 days following the date on which the Purchaser delivers written notice
to the Seller of its intention to terminate this Agreement (the “Facility Purchaser
Termination Date”).




     (b) The Seller may terminate this Agreement at any time upon 90 days prior written
notice to the Purchaser (with the date which is 90 days following the date of such notice
being referred to herein as the “Facility Seller Termination Date”); provided that
the Seller may not deliver such written notice prior to December 31, 2010.



     Section 2.07 Dealer Agreement. Notwithstanding any other term or condition of this
Agreement or any other Transaction Documents, nothing in this Agreement or in any of the
Transaction Documents shall be construed either to expand, limit, change or contravene any term or
provision of any Dealer Agreement or applicable state or provincial laws, which govern or regulate
the relationship between any Dealer and the Seller (“Dealer Regulatory Laws”). Without
limitation, as between the Seller and the Purchaser, the Seller retains the sole authority to
grant, renew, terminate, cancel, amend, change or permit assignment of any Dealer Agreement or any
term thereof.



ARTICLE 3

PAYMENTS AND COLLECTIONS




     Section 3.01 Collections Received by the Seller. If at any time on or after the
applicable Cut-off Date the Seller or any of its Affiliates receives any Collections on Sold
Receivables, the Seller shall pay (or cause such Affiliate to pay) such Collections to the
Purchaser in accordance with the Support Agreement.



     Section 3.02 Credits, Discounts or other Allowances. In the event that the Seller
grants to a Dealer any allowance, rebate, adjustment, discount or other credit or concession with
respect to a Sold Receivable after the Purchase Date applicable to such Sold Receivable, or extends
financing to a Dealer in respect of any equipment traded-in on Equipment financed by a Sold
Receivable, the Seller shall be deemed for purposes of this Agreement to have received Collections
with respect to such Sold Receivable in the amount equal to such allowance, rebate, adjustment,
discount, financing or other credit or concession, and shall pay such Collections to the Servicer
and, at all times prior to such payment, such Collections shall be held in trust by the Seller for
the exclusive benefit of the Purchaser to the extent of its interests therein.



     Section 3.03 Payment Requirements. All amounts to be paid or deposited by the Seller
pursuant to any provision of this Agreement shall be paid or deposited in accordance with the terms
hereof no later than 12:00 p.m. (Atlanta Time) on the day when due in immediately









 



 - 18 - 



available funds, and if not received before 12:00 p.m. (Atlanta Time) shall be deemed to be
received on the next succeeding Business Day. Such amounts shall be paid to such account as may be
specified from time to time by the Purchaser in a written notice delivered to the Seller. If any
amount hereunder shall be payable on a day which is not a Business Day, such amount shall be
payable on the next succeeding Business Day.



     Section 3.04 Subsidized Interest Payment Amounts. On each Subsidized Interest Payment
Date, the Seller shall pay to the Purchaser (or, if directed by the Purchaser, to the servicer of
the Sold Receivables as designated by the Purchaser) the Subsidized Interest Payment Amount
applicable for the related Subsidized Interest Payment Period. Such payment shall be made by wire
transfer of immediately available funds to the Purchaser’s account at TD Canada Trust Bank, 55 King
Street West, Toronto, Ontario M1K 1A2 (DOMCATTTOR) No. 5281745 (Bank Code 0004; Transit Code
10202) no later than 4:30p.m. (New York time) on the applicable Subsidized Interest Payment Date.



ARTICLE 4

REPRESENTATIONS AND WARRANTIES




     Section 4.01 Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Purchaser that:




     (a) Corporate Existence and Power. The Seller is a corporation duly
amalgamated, validly existing and in good standing under the laws of Saskatchewan, is duly
qualified to do business and is in good standing as an extra-provincially registered
corporation, and has and holds all corporate power and all governmental licenses,
authorizations, consents and approvals required to execute, deliver and perform its
obligations under the Transaction Documents to which it is a party and to carry on its
business in each jurisdiction in which its business is conducted, except where the absence
of any such governmental license, authorization, consent or approval would not have a
Material Adverse Effect.




     (b) Power and Authority; Due Authorization Execution and Delivery. The
Seller’s execution and delivery of this Agreement and each other Transaction Document to
which it is a party, and the performance of its obligations hereunder and thereunder and the
Seller’s use of the proceeds of purchases made hereunder, are within its corporate powers
and authority and have been duly authorized by all necessary corporate action on its part.
This Agreement and each other Transaction Document to which the Seller is a party has been
duly executed and delivered by the Seller.




     (c) No Conflict. The execution and delivery by the Seller of this Agreement
and each other Transaction Document to which it is a party, and the performance of its
obligations hereunder and thereunder do not contravene or violate (i) its articles of
amalgamation or bylaws, (ii) any law, rule or regulation applicable to it the violation or
contravention of which would have a Material Adverse Effect, (iii) any restrictions under
any agreement, contract or instrument to which it is a party or by which it or any of its
property is bound the violation or contravention of which would have a Material Adverse
Effect or (iv) any order, writ, judgment, award, injunction or decree binding on or









 



 - 19 - 



affecting it or its property, and do not result in the creation or imposition of any
Adverse Claim on the assets of the Seller (except as created hereunder) and no transaction
contemplated hereby requires compliance with any bulk sales act or similar law.




     (d) Governmental Authorization. Other than the filing of the financing
statements required hereunder, no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is required for the
due execution and delivery by the Seller of this Agreement and each other Transaction
Document to which it is a party and the performance of its obligations hereunder and
thereunder other than those which, if not obtained, would not have a Material Adverse
Effect.




     (e) Actions, Suits. There are no actions, suits or proceedings pending, or to
the best of the Seller’s knowledge, threatened, against or affecting the Seller, or any of
its properties, in or before any court, arbitrator or other body, that could reasonably be
expected to have a Material Adverse Effect. The Seller is not in default with respect to
any order of any court, arbitrator or governmental body.




     (f) Binding Effect. This Agreement and each other Transaction Document to
which the Seller is a party constitute the legal, valid and binding obligations of the
Seller enforceable against the Seller in accordance with their respective terms, except as
such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws relating to or limiting creditors’ rights generally and by general
principles of equity (regardless of whether enforcement is sought in a proceeding in equity
or at law).




     (g) Good Title. Immediately prior to each purchase hereunder, the Seller shall
be the legal and beneficial owner of the Sold Receivables, free and clear of any Adverse
Claim. Prior to the Servicing Transfer Date, there have been duly filed all financing
statements necessary under the UCC (or any comparable law) of all appropriate jurisdictions
to perfect the Seller’s ownership interest in each such Sold Receivable prior to its
conveyance to the Purchaser.




     (h) Perfection. This Agreement, together with the filing of the financing
statements contemplated hereby, is effective to, and shall, upon each purchase hereunder,
transfer to the Purchaser (and the Purchaser shall acquire from the Seller) a valid
ownership interest in each Sold Receivable purchased hereunder, the Related Security and
Collections with respect thereto, free and clear of any Adverse Claim. There have been duly
filed all financing statements or other similar instruments or documents necessary under the
UCC (or any comparable law) of all appropriate jurisdictions to perfect the Purchaser’s
ownership interest in the Sold Receivables, the Related Security and the Collections with
respect thereto that was acquired from the Seller.




     (i) Records. The Records relating to all Receivables are held by AGCO on
behalf of the Purchaser (except that the Dealer Agreements are held on behalf of the Seller)
either (i) until the Servicing Transfer date pursuant to the Interim Servicing









 



 - 20 - 



Appendix or (ii) following the Servicing Transfer date, pursuant to the Support
Agreement.




     (j) Not a Holding Company or an Investment Company. The Seller is not a
“holding company” or a “subsidiary holding company” of a “holding company” within the
meaning of the United States Public Utility Holding Company Act of 1935, as amended, or any
successor statute. The Seller is not an “investment company” within the meaning of the
United States Investment Company Act of 1940, as amended, or any successor statute.




     (k) Eligible Receivables. Each Receivable included in the Initial Portfolio or
any Subsequent Portfolio is an Eligible Receivable on the relevant Purchase Date on which it
became a Sold Receivable; provided that if any Receivable was not an Eligible
Receivable as contemplated herein the representation and warranty of the Seller contained
herein shall not be regarded as breached if the Seller purchases such Receivable from the
Purchaser (without recourse, warranty or representation, except as to title (subject to
deficiencies in title transferred by the Seller to the Purchaser)) at a purchase price equal
to the Outstanding Balance of such Receivable (the “Repurchase Price”).




     (l) SOT Receivables. No Receivable included in the Sold Receivables (i) was,
as of the date of the most recent field audit of the Obligor on such Sold Receivable
conducted by AGCO prior to the relevant Purchase Date, a SOT Receivable or (ii) was, to the
knowledge of the Seller or AGCO, a SOT Receivable on the relevant Purchase Date of such Sold
Receivable.




     (m) Accuracy of Information. All information heretofore furnished in writing
by the Seller hereunder or under the Transaction Documents in each case with respect to Sold
Receivables is, and all such information hereafter furnished in writing by the Seller
hereunder or under any Transaction Documents will be, true and accurate in every material
respect on the date such information is stated or certified and does not and will not
contain any material misstatement of fact or omit to state a material fact or any fact
necessary to make the statements contained therein not misleading in any material respect.




     (n) Compliance with Credit and Collection Policy. The Seller has complied in
all material respects with the AGCO Credit and Collection Policy with regard to each
Receivable included in the Initial Portfolio and the related Contract. Prior to their
inclusion in the Initial Purchase, the related Receivables have at all times been serviced
in all material respects in accordance with the AGCO Credit and Collection Policy.




     (o) Places of Business. The principal place of business and chief executive
office of the Seller and the offices where it keeps all of its Records are located at the
address(es) listed on Schedule II or such other locations of which the Purchaser has
been notified in accordance with Section 6.02(a) in jurisdictions where all action required
by Section 9.09(a) has been taken and completed. The Seller’s Canada Revenue Agency
Business Number is correctly set forth on Schedule I.









 



 - 21 - 



     (p) Accounts. The conditions and requirements set forth in Section 3.02 of the
Support Agreement have been satisfied and duly performed. From the date hereof until the
Account Transfer Date, the Seller shall have no bank accounts for the receipt and deposit of
Collections other than the Collection Account, and such Collection Account is not, and shall
not be, through the Account Transfer Date, subject to any control agreement (other than a
control agreement to which the Purchaser is a party).




     (q) Compliance with Law. The Seller has complied in all respects with all
applicable laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it may be subject, except where the failure to comply would not have a
Material Adverse Effect.



     Section 4.02 Representations and Warranties of the AGCO. AGCO hereby represents and
warrants to the Purchaser that:




     (a) Corporate Existence and Power. AGCO is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware, is duly
qualified to do business and is in good standing as a foreign corporation, and has and holds
all corporate power and all governmental licenses, authorizations, consents and approvals
required to execute, deliver and perform its obligations under the Transaction Documents to
which it is a party and to carry on its business in each jurisdiction in which its business
is conducted, except where the absence of any such governmental license, authorization,
consent or approval would not have a Material Adverse Effect.




     (b) Power and Authority; Due Authorization Execution and Delivery. AGCO’s
execution and delivery of this Agreement and each other Transaction Document to which it is
a party, and the performance of its obligations hereunder and thereunder, are within its
corporate powers and authority and have been duly authorized by all necessary corporate
action on its part. This Agreement and each such other Transaction Document have been duly
executed and delivered by AGCO.




     (c) No Conflict. The execution and delivery by AGCO of this Agreement and each
other Transaction Document to which it is a party, and the performance of its obligations
hereunder or thereunder do not contravene or violate (i) its certificate or articles of
incorporation or by-laws, (ii) any law, rule or regulation applicable to it the violation or
contravention of which would have a Material Adverse Effect, (iii) any restrictions under
any agreement, contract or instrument to which it is a party or by which it or any of its
property is bound the violation or contravention of which would have a Material Adverse
Effect or (iv) any order, writ, judgment, award, injunction or decree binding on or
affecting it or its property, the violation of which would reasonably be expected to have a
Material Adverse Effect, and do not result in the creation or imposition of any Adverse
Claim on the assets of AGCO and no transaction contemplated hereby requires compliance with
any bulk sales act or similar law.




     (d) Governmental Authorization. No authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory body is
required for the due execution and delivery by AGCO of this Agreement or any other









 



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Transaction Document to which it is a party and the performance of its obligations
hereunder and thereunder other than those which, if not obtained, would not have a Material
Adverse Effect.




     (e) Binding Effect. This Agreement and each other Transaction Document to
which it is a party constitutes the legal, valid and binding obligations of AGCO enforceable
against AGCO in accordance with their respective terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating
to or limiting creditors’ rights generally and by general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).




     (f) Duties under Support Agreement. Following the Servicing Transfer Date,
AGCO has performed and discharged, in all material respects, its duties, obligations,
agreement and responsibilities under the Support Agreement except where failure to do so
would not reasonably be expected to have a Material Adverse Effect.



     Section 4.03 Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to, and agrees with, the Seller that:




     (a) Existence and Power. The Purchaser is a corporation duly incorporated,
validly existing and in good standing under the laws of Saskatchewan, is duly qualified to
do business and is in good standing as an extra-provincially registered corporation and has
and holds all corporate power and all governmental licenses, authorizations, consents and
approvals required to execute, deliver and perform its obligations under the Transaction
Documents to which it is a party and to carry on its business in each jurisdiction in which
its business is conducted, except where the absence of any such governmental license,
authorization, consent or approval would not have a Material Adverse Effect.




     (b) Power and Authority; Due Authorization Execution and Delivery. The
Purchaser’s execution and delivery of this Agreement and each other Transaction Document to
which it is a party, and the performance of its obligations hereunder and thereunder, are
within its corporate powers and authority and have been duly authorized by all necessary
corporate action on its part. This Agreement and each other Transaction Document to which
the Purchaser is a party have been duly executed and delivered by the Purchaser.




     (c) No Conflict. The execution and delivery by the Purchaser of this Agreement
and each other Transaction Document to which it is a party, and the performance of its
obligations hereunder and thereunder do not contravene or violate (i) its articles of
incorporation or bylaws, (ii) any law, rule or regulation applicable to it the violation or
contravention of which would have a Material Adverse Effect, (iii) any restrictions under
any agreement, contract or instrument to which it is a party or by which it or any of its
property is bound the violation or contravention of which would have a Material Adverse
Effect or (iv) any order, writ, judgment, award, injunction or decree binding on or
affecting it or its property, the violation of which would reasonably be









 



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expected to have a material adverse effect on the financial condition of the Purchaser
or on the ability of the Purchaser to perform its obligations under the Transaction
Documents to which it is a party.




     (d) Governmental Authorization. No authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory body is
required for the due execution and delivery by the Purchaser of this Agreement and each
other Transaction Document to which it is a party and the performance of its obligations
hereunder and thereunder other than those which, if not obtained, would not have a Material
Adverse Effect.




     (e) Binding Effect. This Agreement and each other Transaction Document to
which the Purchaser is a party constitute the legal, valid and binding obligations of the
Purchaser enforceable against the Purchaser in accordance with their respective terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to or limiting creditors’ rights generally and
by general principles of equity (regardless of whether enforcement is sought in a proceeding
in equity or at law).




     (f) Actions, Suits. There are no actions, suits or proceedings pending, or to
the best of Purchaser’s knowledge, threatened, against or affecting Purchaser, or any of its
properties, in or before any court, arbitrator or other body, that could reasonably be
expected to have a Material Adverse Effect. Purchaser is not in default with respect to any
order of any court, arbitrator or governmental body.




     (g) Compliance with Law. The Purchaser has complied in all respects with all
applicable laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it may be subject, except where the failure to comply would not have a
Material Adverse Effect.



ARTICLE 5

CONDITIONS OF PURCHASES




     Section 5.01 Conditions Precedent to Initial Purchase. The Initial Purchase is
subject to the conditions precedent that:




     (a) the Purchaser and the Seller shall have received on or before the Closing Date the
documents listed on Schedule III, and that the other conditions and payments referenced on
Schedule III shall have been satisfied and made on or before such date;




     (b) the Securitization RPA Termination and Receivables Repurchase Agreement has been
executed by the parties to the Securitization RPA and 100% of the Receivables shall be owned
by the Seller;




     (c) the Support Agreement has been executed by each of the parties thereto;




     (d) the Servicing Agreement has been executed by each of the parties thereto;









 



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     (e) the Seller shall have executed and delivered to the Purchaser on or before the
Closing Date the Quebec law assignment in respect of all Quebec Receivables (as such term is
defined therein) on or after the Closing date, in the form set out in Exhibit F (the
“Quebec Assignment”);




     (f) the 2005 RPA Termination Agreement has been executed by the parties to the 2005
RPA;




     (g) the Calculation Letter has been executed by the Seller and the Purchaser; and




     (h) the Purchaser shall have received opinions of McDougall Gauley LLP and Fraser
Milner Casgrain LLP, in a form reasonably acceptable to the Purchaser, as to corporate
matters with respect to the Seller, and as to true sale, security interest and perfection
matters.



     Section 5.02 Conditions Precedent to All Purchases. Each Purchase (including each
Subsequent Purchase) shall be subject to the further conditions precedent that (a) in the case of
each such Subsequent Purchase, the Seller shall have delivered to the Purchaser at least one (1)
Business Day prior to the date of such Purchase a Preliminary Monthly Receivables Purchase Report,
and the Purchaser shall have delivered to the Seller prior to the date of such Purchase a Final
Monthly Receivables Purchase Report, in each case, as and when due under Section 2.01(b) and (b) on
the date of each such Purchase, the following statements shall be true (and acceptance of the
proceeds of such Purchase shall be deemed a representation and warranty by the Seller that such
statements are then true):




     (a) the representations and warranties set forth in Section 4.01 with respect to the
Seller and in Section 4.02 with respect to AGCO are true and correct in all material
respects on and as of the date of such Purchase as though made on and as of such date
(except to the extent any such representation and warranty specifically relates to a prior
date, in which case such representation and warranty shall be true and correct in all
material respects on and as of such prior date);




     (b) no event has occurred and is continuing, or would result from such Purchase, that
will constitute a Purchase Termination Event, and no event has occurred and is continuing,
or would result from such Purchase, that would constitute a Potential Purchase Termination
Event or a Purchase Suspension Event;




     (c) immediately prior to and after giving effect to such Purchase, the Outstanding
Balance of the Sold Receivables shall not exceed the Maximum Outstanding Balance; and




     (d) the Termination Date shall not have occurred.









 



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ARTICLE 6

COVENANTS




     Section 6.01 Affirmative Covenants. Until the date on which this Agreement terminates
in accordance with its terms:




     (a) Notices by the Seller. The Seller will, unless otherwise stated, promptly
upon learning of the occurrence thereof, provide to the Purchaser notice of the following
events, which notice, in the case of clause (iii), will include a description of the
relevant events and the steps, if any, being taken with respect thereto:




	 	(i)	 	AGCO Purchase Termination Events or Potential AGCO Purchase
Termination Events. The occurrence of each AGCO Purchase Termination Event
and each Potential AGCO Purchase Termination Event, given in a statement of an
Authorized Officer of the Seller.
	 
	 	(ii)	 	Judgment and Proceedings. (A) The entry of any
judgment or decree against the Seller involving more than US $50,000,000; or
(B) the institution of any class action litigation (other than a securities
class action) against the Seller.
	 
	 	(iii)	 	Material Adverse Effect. The occurrence of any event
or condition that, has, or would reasonably be expected to have, a Material
Adverse Effect.
	 
	 	(iv)	 	Change in AGCO Credit and Collection Policy. Within
ten (10) days following the effectiveness of any material change in or
amendment to the AGCO Credit and Collection Policy, a notice describing in
reasonable detail such change or amendment.






     (b) Notices by the Purchaser. The Purchaser will, unless otherwise stated,
promptly upon learning of the occurrence thereof, provide to the Seller notice of the
occurrence of each AGCO Finance Purchase Termination Event, given in a statement of an
Authorized Officer of the Purchaser.




     (c) Performance and Enforcement of Receivables. Upon Purchaser’s request, the
Seller will give Purchaser reasonable assistance in enforcing the rights of Purchaser
arising under the Receivables, but the Purchaser will reimburse the Seller on demand (with
supporting documentation) for actual and reasonable costs and expenses incurred by the
Seller in rendering such assistance in accordance with the terms of the Support Agreement.




     (d) Further Assurances. The Seller shall cause to be promptly and duly taken,
executed, acknowledged, delivered and filed (if required) all such further acts, documents
and assurances as the Purchaser from time to time may reasonably request in order to carry
out more effectively the intent and purposes of this Agreement and the other Transaction
Documents and the transactions contemplated hereby and thereby.









 



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     (e) Compliance with Laws and Preservation of Corporate Existence. The Seller
will comply in all material respects with all applicable laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be subject, except where
the failure to comply would not be reasonably likely to have a Material Adverse Effect. The
Seller will preserve and maintain its corporate existence, rights, franchises and privileges
in the jurisdiction of its incorporation or amalgamation, and qualify and remain qualified
in good standing as a foreign corporation in each jurisdiction where its business is
conducted, except where its failure to be so qualified and in good standing could not
reasonably be expected to have a Material Adverse Effect.




     (f) Access to Records. To the extent not available to the Purchaser under the
Support Agreement, the Seller will furnish to the Purchaser from time to time such Records
with respect to the Sold Receivables as Purchaser may reasonably request. The Seller will,
from time to time during regular business hours as requested by Purchaser upon reasonable
notice and at the sole cost of the Purchaser, permit Purchaser, or its agents or
representatives, (i) to examine and make copies of and abstracts from all Records in the
possession or under the control of the Seller (to the extent not available to the Purchaser
under the Support Agreement) relating to the Sold Receivables and the Related Security,
including, without limitation, the related Contracts, and (ii) to visit the offices and
properties of the Seller for the purpose of examining such materials described in clause (i)
above.




     (g) Keeping and Marking of Records and Books. The Seller will (i) on or prior
to the date hereof with respect to the Initial Purchase and promptly after each Subsequent
Purchase, mark its master data processing records and other books and records relating to
the Sold Receivables relating to the relevant Purchase with a legend describing the
Purchaser’s interest in the Sold Receivables, (ii) mark each invoice for a Sold Receivable
constituting chattel paper under the UCC to reflect the ownership by the Purchaser of the
Sold Receivable and (iii) upon the request of Purchaser, deliver to it (or to the Servicer
of the Sold Receivables) all Contracts (including, without limitation, all multiple
originals of any such Contract other than the Dealer Agreement and Security Agreement, for
which copies will instead be provided) relating to the Sold Receivables.




     (h) Compliance with Contracts and AGCO Finance Credit and Collection Policies.
The Seller will timely and fully perform and comply with all provisions, covenants and other
promises required to be observed by it under the Contracts related to the Receivables.




     (i) Ownership. Prior to the Servicing Transfer Date, and subject to and in
accordance with Section 9.09 following such date, the Seller shall take all necessary action
to vest legal and equitable title to the Sold Receivables, the Related Security and the
related Collections irrevocably in the Purchaser, free and clear of any Adverse Claims other
than Adverse Claims in favor of the Purchaser (including, without limitation, the filing of
all financing statements or other similar instruments or documents necessary under the UCC
(or any comparable law) of all appropriate jurisdictions to perfect the Purchaser’s interest
in such Sold Receivables and the related Collections and such other









 



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action to perfect, protect or more fully evidence the interest of the Purchaser as the
Purchaser (or any servicer of the Sold Receivables) may reasonably request.




     (j) Repurchase Covenant. Within twenty (20) days of the earlier of either
discovery by, or notice to, the Seller of any breach of a representation or warranty or
covenant of the Seller which materially and adversely affects the value or enforceability of
any one or more of the Sold Receivables or the interest of the Purchaser therein (or which
materially and adversely affects the value or enforceability of the applicable Sold
Receivable or the interest of the Purchaser in the case of an individual Sold Receivable),
the Seller shall use its best efforts promptly to cure such breach in all material respects
and, if such breach cannot be cured within such twenty (20) day period, the Seller shall, at
the Purchaser’s option, promptly (no later than two (2) Business Days after the exercise by
the Purchaser of such option) repurchase such Sold Receivable at the Repurchase Price
without recourse, representation or warranty except as to title (subject to deficiencies in
title transferred by the Seller to the Purchaser).



     Section 6.02 Negative Covenants of the Seller. Until the date on which this Agreement
terminates in accordance with its terms:




     (a) Change of Name or Jurisdiction of Formation. The Seller will not change
its name, jurisdiction of incorporation or amalgamation or its chief executive office unless
it shall have given the Purchaser at least thirty (30) days’ prior written notice thereto.




     (b) Change in Payment Instructions to Obligors. The Seller will not make any
change in the instructions to Obligors regarding payments to be made in respect of Sold
Receivables except to the extent requested by the Purchaser.




     (c) Modifications to Sold Receivables. The Seller will not extend, amend or
otherwise modify (or offer to extend, amend or otherwise modify) the terms of any Receivable
or Contract related thereto unless (i) the Purchaser has provided written authorization and
approval for such action or (ii) such action is of the type deemed acceptable by the AGCO IF
Committee as of the Closing Date (and from time to time thereafter).




     (d) Negative Pledge. Except to the extent consented to in writing by the
Purchaser, the Seller shall not sell, assign (by operation of law or otherwise), pledge,
hypothecate, transfer or convey or otherwise dispose of, or grant any option with respect
to, or create or suffer to exist any Adverse Claim upon (including, without limitation, the
filing of any financing statement) or with respect to, any Receivable, Related Security or
Collection, or any Contract under which any Receivable arises, or any Lock-Box or Collection
Account, or assign any right to receive income with respect thereto (other than in favor of
the Purchaser as provided for herein), and the Seller shall defend the right, title and
interest of the Purchaser in, to and under any of the foregoing property, against all claims
of third parties claiming through or under the Seller.









 



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     (e) Product Terms and Conditions. At least ten (10) days prior to the
effectiveness of any change or amendment to any Product Terms and Conditions, the Seller
shall provide written notice to the Purchaser describing in reasonable detail such change or
amendment with a copy of such revised Product Terms and Conditions.



ARTICLE 7

PURCHASE TERMINATION EVENTS




     Section 7.01 Purchase Termination Events. The occurrence of any one or more of the
following events shall constitute a “Purchase Termination Event”:




     (a) The Seller or AGCO shall fail to perform or observe any term, covenant or agreement
hereunder or under any other Transaction Document and such failure shall continue for (i)
except with respect to Section 3.03, twenty (20) Business Days or (ii) in the case of
Section 3.03, two (2) Business Days, in each case after the earlier of (A) the date on which
the Seller obtains knowledge thereof and (ii) the date on which written notice thereof is
given to the Seller or AGCO, as the case may be, by the Purchaser;




     (b) Any representation, warranty, certification or statement made by the Seller or AGCO
in this Agreement or any other Transaction Document shall prove to have been incorrect in
any material respect (or in any respect if such representation, warranty, certification or
statement is already qualified by materiality) when made or deemed made and either (i) the
failure of such representation, warranty, certification or statement to be true and correct
shall have a Material Adverse Effect or (ii) such representation, warranty, certification or
statement shall continue to be incorrect for twenty (20) Business Days after notice thereof
provided, however, that the breach of any representation and warranty of the Seller made
with respect to any Sold Receivable shall not be a Purchase Termination Event if the Seller
purchases such Sold Receivables from the Purchaser (without recourse, warranty or
representation, except as to title (subject to deficiencies in title transferred by the
Seller to the Purchaser)) at the Repurchase Price;




     (c) A Bankruptcy Event shall occur with respect to the Seller or the Purchaser;




     (d) The Seller shall be required to register as an “investment company” by the
provisions of the Investment Company Act of 1940, as amended;




     (e) An “AGCO Purchase Termination Event” shall occur under, and as such term is defined
in, the U.S. Receivables Agreement.




     (f) Either (i) the occurrence of an “Event of Default” under, and as such term is
defined in, the AGCO Credit Facility or the occurrence of a similar event under any other
material agreements in respect of Company Indebtedness in excess of US$100,000,000 under
which AGCO or the Seller is the obligor (or a guarantor), in each case the effect of which
is to cause such Company Indebtedness of AGCO or the Seller, to become due in full prior to
its stated maturity and to cause the lenders thereunder to terminate all commitments to
extend credit thereunder; or









 



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     (g) The occurrence of any of the following with respect to the Purchaser under the
Stockholders Agreement:




     (i) a “Mandatory Sale Condition” (as defined therein); or




     (ii) the issue of an “Offer Notice” (as defined therein) by AGCO.




     (h) The Account Transfer Date has not occurred on or prior to April 30, 2010;




     (i) The occurrence of a Change of Control with respect to the Seller or AGCO;




     (j) The occurrence of a Change of Control with respect to the Purchaser;




     (k) The Purchaser shall fail to perform or observe any term, covenant or agreement
hereunder or under any other Transaction Document and such failure shall continue for twenty
(20) Business Days after the earlier of (A) the date on which the Purchaser obtains
knowledge thereof and (B) the date on which written notice thereof is given to the Purchaser
by the Seller; or




     (l) Any representation, warranty, certification or statement made by AGCO Finance in
this Agreement or any other Transaction Document shall prove to have been incorrect in any
material respect (or in any respect, if such representation, warranty, certification or
statement is already qualified by materiality) when made or deemed made and either (i) the
failure of such representation, warranty, certification or statement to be true and correct
shall have a Material Adverse Effect or (ii) such representation, warranty, certification or
statement shall continue to be incorrect for twenty (20) Business Days after notice thereof.



     Section 7.02 Remedies for Purchase Termination Event. Upon the occurrence and during
the continuation of a Purchase Termination Event described in clauses (a), (b), (d), (e), (f), (g),
(h) or (i) (each, an “AGCO Purchase Termination Event”), the Purchaser may, by notice to
the Seller, declare the Termination Date to have occurred, whereupon the Termination Date shall
forthwith occur, without demand, protest or other further notice of any kind, all of which are
hereby expressly waived by the Seller and AGCO. Upon the occurrence of a Purchase Termination
Event described in Section 7.01(c) or of an actual or deemed entry of an order for relief with
respect to the Seller or the Purchaser as the case may be, under the Bankruptcy and Insolvency Act
(Canada) or any other applicable bankruptcy or insolvency legislation, the Termination Date shall
automatically occur, without demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Seller, the Purchaser and AGCO, as the case may be. Upon the occurrence
and during the continuation of a Purchase Termination Event described in clauses (j), (k) or (l)
(each, an “AGCO Finance Purchase Termination Event”), the Seller may, by notice to the
Purchaser, declare the Termination Date to have occurred, whereupon the Termination Date shall
forthwith occur, without demand, protest or other further notice of any kind, all of which are
hereby expressly waived by the Purchaser.









 



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     Section 7.03 Purchase Suspension Events. The occurrence of any one or more of the
following events shall constitute a “Purchase Suspension Event”:




     (a) The occurrence and continuation of an AGCO Purchase Termination Event described in
clause (a) of Section 7.01 (i) without regard to any cure or grace periods described therein
and (ii) prior to the declaration of a Termination Date by the Purchaser;




     (b) An AGCO Purchase Termination Event other than the one described in Section 7.01(a)
has occurred and is continuing prior to the declaration of a Termination Date by the
Purchaser or the automatic occurrence of the Termination Date;




     (c) A “Purchase Suspension Event” shall occur under, and as such term is defined in,
the US Receivables Agreement.



     Section 7.04 Remedies for Purchase Suspension Event. Upon the occurrence and during
the continuation of a Purchase Suspension Event, the Purchaser may at its sole option and at any
time decline to purchase Receivables from the Seller hereunder regardless of whether or not such
Receivables are Eligible Receivables.



ARTICLE 8

INDEMNIFICATION




     Section 8.01 Indemnities.




     (a) Without limiting any other rights that the Purchaser may have hereunder or under
applicable law, the Seller hereby agrees to indemnify the Purchaser and its assigns,
officers, directors, agents and employees from and against any and all damages, losses,
claims, taxes, liabilities, costs, expenses and for all other amounts payable, including
reasonable attorneys’ fees (which attorneys may be employees of the Purchaser) and
disbursements awarded against or incurred by any of them arising out of or as a result of a
breach of the Seller’s representations, warranties or covenants contained in the Transaction
Documents to which the Seller is a party.




     (b) Without limiting any other rights that the Purchaser or the Seller may have
hereunder or under applicable law, AGCO hereby agrees to indemnify the Seller, the Purchaser
and their respective assigns, officers, directors, agents and employees from and against any
and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other
amounts payable, including reasonable attorneys’ fees (which attorneys may be employees of
the Purchaser or the Seller) and disbursements awarded against or incurred by any of them
arising out of or as a result of a breach of the AGCO’s representations, warranties or
covenants contained in Transaction Documents to which AGCO is a party.




     (c) Without limiting any other rights that the Seller may have hereunder or under
applicable law, the Purchaser hereby agrees to indemnify the Seller and its respective
assigns, officers, directors, agents and employees from and against any and all damages,
losses, claims, taxes, liabilities, costs, expenses and for all other amounts









 



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payable, including reasonable attorneys’ fees (which attorneys may be employees of the
Seller) and disbursements awarded against or incurred by any of them arising out of or as a
result of a breach of the Purchaser’s representations, warranties or covenants contained in
Transaction Documents to which the Purchaser is a party.



     Section 8.02 Responsibilities of the Seller. Anything herein to the contrary
notwithstanding, the Purchaser’s exercise of its rights hereunder or under any Transaction Document
shall not release the Seller from any of its duties or obligations to perform any obligations of
Seller or any of its Affiliates with respect to any Sold Receivables or under the related
Contracts. The Purchaser shall have no obligation with respect to any Sold Receivables or under
the related Contracts.



ARTICLE 9

MISCELLANEOUS




     Section 9.01 Waivers and Amendments.




     (a) No failure or delay on the part of the Purchaser in exercising any power, right or
remedy under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or remedy preclude any other further exercise
thereof or the exercise of any other power, right or remedy. The rights and remedies herein
provided shall be cumulative and nonexclusive of any rights or remedies provided by law.
Any waiver of this Agreement shall be effective only in the specific instance and for the
specific purpose for which given.




     (b) No provision of this Agreement may be amended, supplemented, modified or waived
except in a writing executed by the Seller, AGCO and the Purchaser.



     Section 9.02 Notices. Except as provided below, all communications and notices
provided for hereunder shall be in writing (including bank wire, telecopy or electronic
transmission or similar writing) and shall be given to the other parties hereto at their respective
addresses or telecopy numbers set forth on the signature pages hereof or at such other address or
telecopy number as such Person may hereafter specify for the purpose of notice to each of the other
parties hereto. Each such notice or other communication shall be effective (i) if given by
telecopy or electronic transmission or similar writing, upon the receipt thereof, (ii) if given by
mail, three (3) Business Days after the time such communication is deposited in the mail with first
class postage prepaid or (iii) if given by any other means, when received at the address specified
in this Section 9.02. Notwithstanding the foregoing, for purposes of providing the written notices
described in Section 6.02(e), such notices shall be deemed to have been provided in accordance with
this Section 9.02 if such notices are delivered via e-mail, with receipt acknowledged, to each
member of the AGCO IF Committee designated by (i) AGCO Finance LLC, in the case of notices from the
Seller and (ii) AGCO, in the case of notices from the Purchaser.



     Section 9.03 Assignments and Participations. Neither the Seller nor the Purchaser
shall have the right to assign its rights or obligations under this Agreement and the Quebec
Assignment; provided, however, that nothing contain herein shall be deemed or
construed to









 



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limit, restrict, prohibit or otherwise impair in any way the right of the Purchaser to sell,
transfer, encumber or otherwise dispose of the Sold Assets and the Seller agrees that the Purchaser
may assign to any transferee of the Sold Assets the representations, warranties and covenants made
by the Seller under this Agreement for the benefit of the Purchaser.



     Section 9.04 Confidentiality.




     (a) Each of the Seller, AGCO and the Purchaser shall maintain and shall cause each of
its employees, directors and officers to maintain the confidentiality of this Agreement and
the other confidential proprietary information with respect to the Purchaser, the Seller and
AGCO and their respective businesses obtained by it or them in connection with the
structuring, negotiating and execution of the transactions contemplated herein, except that
the Seller and the Purchaser and their respective officers, directors and employees may
disclose such information (i) to AGCO and its respective officers, directors and employees;
(ii) to such Person’s officers, directors (including the independent director of the Seller
and any company that employs such independent director) and external accountants and
attorneys; or (iii) to any rating agency; provided each such Person is informed of the
confidential nature of such information and, in the case of a Person described in clauses
(i) and (ii), agrees to maintain the confidentiality of such information on the terms and
conditions set forth in this Section 9.04(a). In addition, the Seller, AGCO and the
Purchaser may disclose any such information pursuant to any law, rule, regulation,
direction, request, requirement or order of any judicial, administrative or regulatory
authority or proceedings (whether or not having the force or effect of law).




     (b) Anything herein to the contrary notwithstanding, the Seller hereby consents to the
disclosure of any nonpublic information with respect to it (i) by the Purchaser to any of
its funding sources or Affiliates; or (ii) by the Purchaser to any officers, directors,
employees, outside accountants and attorneys of any of the foregoing; provided each
such Person is informed of the confidential nature of such information and agrees to
maintain the confidentiality of such information on the terms and conditions set forth in
this Section 9.04 or (iii) by the Purchaser to its certified public accounting firm; or (iv)
by Purchaser to any governmental or regulatory authority having jurisdiction over it or its
Affiliates. In addition, the Purchaser may disclose any such nonpublic information pursuant
to any law, rule, regulation, direction, request, requirement or order of any judicial,
administrative or regulatory authority or proceedings (whether or not having the force or
effect of law). For the purposes of this Section 9.04, the information included in the
Calculation Letter is deemed to be confidential proprietary information of the Purchaser and
the Seller.



     Section 9.05 Limitation of Liability. Except with respect to any claim arising out of
the willful misconduct or gross negligence of a party hereunder, no claim may be made by any Person
party to this Agreement against any other Person party to this Agreement, or such other Person’s
Affiliates, directors, officers, managers, employees or attorneys for any special, indirect,
consequential or punitive damages in respect of any claim for breach of contract or any other
theory of liability arising out of or related to the transactions contemplated by this Agreement,
or any act, omission or event occurring in connection therewith; and each Person









 



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party hereto hereby waives, releases, and agrees not to sue upon any claim for any such
damages, whether or not accrued and whether or not known or suspected to exist in its favor.



     Section 9.06 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE PROVINCE OF
ONTARIO. EACH OF THE PARTIES HERETO HEREBY AGREES TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE
OR FEDERAL COURT LOCATED IN NEW YORK, NEW YORK. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY
OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED
HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.



     Section 9.07 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR, RELATING TO
THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.



     Section 9.08 Integration; Binding Effect; Survival of Terms.




     (a) This Agreement, the other Transaction Documents and the US Receivables Agreement
contain the final and complete integration of all prior expressions by the parties hereto
with respect to the subject matter hereof and shall constitute the entire agreement among
the parties hereto with respect to the subject matter hereof, superseding all prior oral or
written understandings.




     (b) This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns (including any trustee in bankruptcy).
This Agreement shall create and constitute the continuing obligations of the parties hereto
in accordance with its terms and shall remain in full force and effect until terminated in
accordance with its terms.



     Section 9.09 Protection of Ownership Interests of the Purchaser; Collection.




     (a) The Seller agrees that from time to time, at its expense, it will promptly execute
and deliver all instruments and documents, and take all actions, that may be necessary or
that the Purchaser may reasonably request, to perfect, protect or more fully evidence the
sale of the Sold Receivables, or to enable the Purchaser (or any servicer of the Sold
Receivables) to exercise and enforce the Purchaser’s rights and remedies hereunder.




     (b) If the Seller fails to perform any of its obligations hereunder, the Purchaser (or
any servicer of the Sold Receivables) may (but shall not be required to) perform, or cause
performance of, such obligation, and such Purchaser’s costs and expenses incurred in
connection therewith shall be payable by the Seller as provided in ARTICLE 8. The Seller
irrevocably authorizes the Purchaser (or any Servicer of the









 



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Sold Receivables) at any time and from time to time in the sole discretion of such
Person, and appoints such Person as its attorney-in-fact, to act on its behalf (i) to
execute on behalf of the Seller as debtor and to file financing statements necessary in the
Purchaser’s sole discretion to perfect and to maintain the perfection and priority of the
interest of the Purchaser in the Sold Receivables and (ii) to file a carbon, photographic or
other reproduction of this Agreement or any financing statement with respect to the Sold
Receivables as a financing statement in such offices as the Purchaser in its sole discretion
deems necessary or desirable to perfect and to maintain the perfection and priority of the
interests of the Purchaser in the Sold Receivables. This appointment is coupled with an
interest and is irrevocable.




     (c) The Seller shall execute, at the written request of the Purchaser (provided that
the Purchaser may take such action itself pursuant to the following sentence), and furnish
to the Purchaser such documents provided to Seller as are necessary or appropriate to enable
the Purchaser (or a Servicer of the Sold Receivables on its behalf) to initiate Collection
Proceedings or other proceedings, as and when the Purchaser (or the Servicer) deems
appropriate, and to collect and/or enforce the obligations of an Obligor under a Sold
Receivable (the “Collection Rights”). Seller hereby grants to the Purchaser, and
this Agreement shall constitute, a power of attorney to carry out the foregoing. An
authorized officer of the Seller shall promptly upon request by the Purchaser execute a
separate power of attorney, substantially in the form attached as Exhibit D hereto
(with such changes, if any, required for the power of attorney to be effective in any
particular jurisdiction), in favor of the Purchaser (or a servicer of the Sold Receivables)
for the purposes described herein.



     Section 9.10 Accounting. Neither the Seller nor the Purchaser will account for or
treat (whether in financial statements or otherwise) the transactions contemplated hereby in any
manner other than as a sale of its interest in Receivables by the Seller to the Purchaser.



     Section 9.11 Counterparts; Severability; Section References. This Agreement may be
executed in any number of counterparts and by the 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. Any provisions of this Agreement
which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction. Unless otherwise
expressly indicated, all references herein to “Article,” “Section,” “Schedule” or “Exhibit” shall
mean articles and sections of, and schedules and exhibits to, this Agreement.



     Section 9.12 Sale Characterization; Grant of Security Interest.




     (a) It is the intention of the parties hereto that each purchase hereunder shall
constitute and be treated as an absolute and irrevocable sale, which purchase shall provide
the Purchaser with the full benefits of ownership of the Sold Assets. Except as
specifically provided in this Agreement, each sale of Sold Assets hereunder is made without
recourse to the Seller; provided, however, that (i) the Seller shall be
liable to the









 



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Purchaser for all representations, warranties and covenants made by the Seller pursuant
to the terms of this Agreement, and (ii) such sale does not constitute and is not intended
to result in an assumption by the Purchaser or any assignee thereof of any obligation of the
Seller or any other Person arising in connection with the Sold Assets or any other
obligations of the Seller or any other Person.




     (b) This Agreement shall constitute a security agreement under the UCC with respect to
the Collection Accounts (until the Account Transfer Date) and, to that end, the Seller
hereby grants to the Purchaser, in order to secure the payment of all present and future
Company Indebtedness and obligations of the Seller to the Purchaser with respect to the Sold
Receivables outstanding from time to time, a valid security interest in all of the Seller’s
right, title and interest in, to and under each Collection Account, and all amounts credited
thereto from time to time with respect to Sold Receivables.



     Section 9.13 Paramountcy. In the event of any conflict or inconsistency between the
terms of this Agreement and the terms of any Transaction Documents, the Parties agree that the
provisions of this Agreement shall prevail to the extent of such conflict or inconsistency.
Without limiting the generality of the foregoing, promptly following the request of the Seller at
any time, the Purchaser shall reconvey to the Seller by way of assignment, any Quebec Receivables
(as such expression is defined in the Quebec Assignment) conveyed to the Purchaser pursuant to the
Quebec Assignment not intended by the Parties to be conveyed hereunder by the Seller to the
Purchaser. Any such reconveyance by the Purchaser to the Seller shall be effected without any
representation or warranty (express, implied, legal, statutory or otherwise) except for the
Purchaser’s warranty that the reconveyed assets are not subject to any hypothec, lien, charge,
security interest, ownership interest or encumbrance created by the Purchaser. The Parties hereby
undertake to promptly execute and deliver all instruments and documents and take all other actions
that may be reasonably necessary or advisable in order to give effect to such reconveyance, and to
render same opposable to third Persons. The Purchaser furthermore agrees to remit promptly to the
Seller any and all Collections received on account of any Quebec Receivables (as such expression is
defined in the Quebec Assignment) conveyed to the Purchaser pursuant to the Quebec Assignment not
intended by the Parties to be conveyed hereunder by the Seller to the Purchaser.


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by
their duly authorized officers as of the date hereof.




[SIGNATURE PAGES FOLLOW]










 



 


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	 	 	“SELLER”	 	 
	 
	 	 	 	 	 	 
	 	 	AGCO CANADA, LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ David Williams
	 

	 	 	 	 

Name: David Williams
	 	 
	 

	 	 	 	Title: President	 	 
	 	 
	 	 	AGCO Canada, Ltd.	 	 
	 	 	c/o AGCO Corporation	 	 
	 	 	4205 River Green Parkway	 	 
	 	 	Duluth, GA 30096-2568	 	 
	 	 	Attention: David Williams	 	 
	 	 	Fax: (770) 813-6143	 	 
	 	 	Attention: Debra Kuper	 	 
	 	 	Fax: (770) 813-6599	 	 












 



 


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	 	 	“PURCHASER”	 	 
	 
	 	 	 	 	 	 
	 	 	AGCO FINANCE CANADA, LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Amy V. Hester
	 

	 	 	 	 

	 	 
	 

	 	 	 	Name: Amy Ventling Hester	 	 
	 

	 	 	 	Title:   Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	AGCO Finance Canada, Ltd.	 	 
	 	 	c/o AGCO Finance LLC	 	 
	 	 	4205 River Green Parkway	 	 
	 	 	Duluth, GA 30096-2568	 	 
	 	 	Attention: Amy Ventling Hester	 	 
	 	 	Fax: (770) 813-6032	 	 
	 
	 	 	 	 	 	 
	 	 	Copy to:	 	 
	 
	 	 	 	 	 	 
	 	 	AGCO Finance Canada, Ltd.	 	 
	 	 	c/o AGCO Finance LLC	 	 
	 	 	8001 Birchwood Court	 	 
	 	 	P.O. Box 2000	 	 
	 	 	Johnston, Iowa 50131-0020	 	 
	 	 	Attention: Mac Braun	 	 
	 	 	Fax: (515) 334-5811	 	 












 



 


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	 	 	“SERVICER”	 	 
	 
	 	 	 	 	 	 
	 	 	AGCO CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Andrew H. Beck
	 

	 	 	 	 

Andrew Beck
	 	 
	 

	 	 	 	Senior Vice President — Chief	 	 
	 

	 	 	 	Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	AGCO Corporation	 	 
	 	 	4205 River Green Parkway	 	 
	 	 	Duluth, GA 30096-2568	 	 
	 	 	Attention: David Williams	 	 
	 	 	Fax: (770) 813-6143	 	 
	 	 	Attention: Debra Kuper	 	 
	 	 	Fax: (770) 813-6599