SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
___________________
FORM 10-Q
___________________
Quarterly Report Pursuant to Section 13 or 15(d)
of the
Securities Exchange Act of 1934
For the quarterly period ended April 30, 1995
______________________________
Commission file no: 1-4121
______________________________
DEERE & COMPANY
Delaware 36-2382580
(State of incorporation) (IRS employer
identification no.)
John Deere Road
Moline, Illinois 61265
(Address of principal executive offices)
Telephone Number: (309) 765-8000
______________________________
Indicate by check mark whether the registrant (1) has filed
all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the
preceding 12 months (or for such shorter period that the
registrant was required to file
such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes x No
At April 30, 1995, 86,658,997 shares of common stock, $1 par
value, of the
registrant were outstanding.
_________________________________________________________________
Page 1 of 531 Pages.
Index to Exhibits: Page 21.
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
DEERE & COMPANY
STATEMENT OF CONSOLIDATED INCOME
Three Months Ended April 30
Millions of dollars except per share amounts
(Unaudited)
CONSOLIDATED
(Deere & Company and Consolidated Subsidiaries)
Three Months Ended
April 30
1995 1994
Net Sales and Revenues
Net sales of equipment $2,452.9 $2,128.0
Finance and interest income 160.0 127.8
Insurance and health care premiums 180.8 167.0
Investment income 23.2 23.7
Other income 23.2 13.7
Total 2,840.1 2,460.2
Costs and Expenses
Cost of goods sold 1,867.7 1,646.2
Research and development expenses 82.3 68.7
Selling, administrative and general expenses 254.9 225.5
Interest expense 102.6 71.3
Insurance and health care claims and benefits 141.1 144.2
Other operating expenses 20.6 9.2
Total 2,469.2 2,165.1
Income of Consolidated Group
Before Income Taxes 370.9 295.1
Provision for income taxes 136.9 108.0
Income of Consolidated Group 234.0 187.1
Equity in Income of Unconsolidated
Subsidiaries and Affiliates
Credit
Insurance and health care .8
Other 3.0 1.4
Total 3.0 2.2
Net Income $ 237.0 $189.3
Net income per share, primary
and fully diluted $ 2.74 $ 2.20
See Notes to Interim Financial Statements.
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
DEERE & COMPANY
STATEMENT OF CONSOLIDATED INCOME
Three Months Ended April 30
Millions of dollars except per share amounts
(Unaudited)
EQUIPMENT OPERATIONS
(Deere & Company with Financial Services on the Equity Basis)
Three Months Ended April 30
1995 1994
Net Sales and Revenues
Net sales of equipment $2,452.9 $2,128.0
Finance and interest income 21.9 18.9
Insurance and health care premiums
Investment income
Other income 5.8 5.7
Total 2,480.6 2,152.6
Costs and Expenses
Cost of goods sold 1,867.6 1,650.0
Research and development expenses 82.3 68.7
Selling, administrative and
general expenses 181.3 162.5
Interest expense 34.8 30.2
Insurance and health care
claims and benefits
Other operating expenses 10.5 4.0
Total 2,176.5 1,915.4
Income of Consolidated Group
Before Income Taxes 304.1 237.2
Provision for income taxes 112.5 89.7
Income of Consolidated Group 191.6 147.5
Equity in Income of Unconsolidated
Subsidiaries and Affiliates
Credit 34.4 28.4
Insurance and health care 8.0 12.0
Other 3.0 1.4
Total 45.4 41.8
Net Income $ 237.0 $ 189.3
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
DEERE & COMPANY
STATEMENT OF CONSOLIDATED INCOME
Three Months Ended April 30
Millions of dollars except per share amounts
(Unaudited)
FINANCIAL SERVICES
Three Months Ended
April 30
1995 1994
Net Sales and Revenues
Net sales of equipment
Finance and interest income $ 139.7 $ 109.8
Insurance and health care premiums 216.5 201.9
Investment income 23.2 23.7
Other income 18.2 9.2
Total 397.6 344.6
Costs and Expenses
Cost of goods sold
Research and development expenses
Selling, administrative and
general expenses 76.1 66.3
Interest expense 69.4 42.0
Insurance and health care
claims and benefits 175.2 173.0
Other operating expenses 10.2 5.3
Total 330.9 286.6
Income of Consolidated Group
Before Income Taxes 66.7 58.0
Provision for income taxes 24.3 18.4
Income of Consolidated Group 42.4 39.6
Equity in Income of Unconsolidated
Subsidiaries and Affiliates
Credit
Insurance and health care .8
Other
Total .8
Net Income $ 42.4 $ 40.4
See Notes to Interim Financial Statements. Supplemental
consolidating data are shown for
the "Equipment Operations" and "Financial Services".
Transactions between the "Equipment
Operations" and "Financial Services" have been eliminated to
arrive at the "Consolidated"
data.
<PAGE>
DEERE & COMPANY
STATEMENT OF CONSOLIDATED INCOME
Six Months Ended April 30
Millions of dollars except per share amounts
(Unaudited)
CONSOLIDATED
(Deere & Company and Consolidated Subsidiaries)
Six Months Ended
April 30
1995 1994
Net Sales and Revenues
Net sales of equipment $ 4,183.4 $3,534.8
Finance and interest income 313.6 252.7
Insurance and health care premiums 361.4 324.5
Investment income 49.0 45.9
Other income 39.0 29.1
Total 4,946.4 4,187.0
Costs and Expenses
Cost of goods sold 3,206.9 2,767.9
Research and development expenses 149.3 129.1
Selling, administrative
and general expenses 475.4 423.1
Interest expense 190.9 142.5
Insurance and health care
claims and benefits 300.0 279.6
Other operating expenses 31.6 16.3
Total 4,354.1 3,758.5
Income of Consolidated Group
Before Income Taxes 592.3 428.5
Provision for income taxes 220.4 156.1
Income of Consolidated Group 371.9 272.4
Equity in Income of Unconsolidated
Subsidiaries and Affiliates
Credit
Insurance and health care .7 2.1
Other 2.9 1.8
Total 3.6 3.9
Net Income $ 375.5 $ 276.3
Net income per share, primary
and fully diluted $ 4.34 $ 3.22
<PAGE>
DEERE & COMPANY
STATEMENT OF CONSOLIDATED INCOME
Six Months Ended April 30
Millions of dollars except per share amounts
(Unaudited)
EQUIPMENT OPERATIONS
(Deere & Company with Financial Services on the Equity Basis)
Six Months Ended
April 30
1995 1994
Net Sales and Revenues
Net sales of equipment $ 4,183.4 $3,534.8
Finance and interest income 45.7 38.6
Insurance and health care premiums
Investment income
Other income 11.9 10.1
Total 4,241.0 3,583.5
Costs and Expenses
Cost of goods sold 3,220.8 2,775.1
Research and development expenses 149.3 129.1
Selling, administrative and general expenses 335.8 297.3
Interest expense 62.5 60.9
Insurance and health care claims
and benefits
Other operating expenses 16.3 5.9
Total 3,784.7 3,268.3
Income of Consolidated Group
Before Income Taxes 456.3 315.2
Provision for income taxes 168.9 119.7
Income of Consolidated Group 287.4 195.5
Equity in Income of Unconsolidated
Subsidiaries and Affiliates
Credit 64.1 54.0
Insurance and health care 21.1 25.0
Other 2.9 1.8
Total 88.1 80.8
Net Income $ 375.5 $ 276.3
<PAGE>
DEERE & COMPANY
STATEMENT OF CONSOLIDATED INCOME
Six Months Ended April 30
Millions of dollars except per share amounts
(Unaudited)
FINANCIAL SERVICES
Six Months Ended
April 30
1995 1994
Net Sales and Revenues
Net sales of equipment
Finance and interest income $ 270.9 $ 215.8
Insurance and health care premiums 431.4 386.0
Investment income 49.0 45.9
Other income 28.7 21.2
Total 780.0 668.9
Costs and Expenses
Cost of goods sold
Research and development expenses
Selling, administrative and general expenses 146.2 131.6
Interest expense 131.4 83.4
Insurance and health care claims and benefits 351.0 330.2
Other operating expenses 15.4 10.4
Total 644.0 555.6
Income of Consolidated Group Before
Income Taxes 136.0 113.3
Provision for income taxes 51.5 36.4
Income of Consolidated Group 84.5 76.9
Equity in Income of Unconsolidated
Subsidiaries and Affiliates
Credit
Insurance and health care .7 2.1
Other
Total .7 2.1
Net Income $85.2 $ 79.0
<PAGE>
See Notes to Interim Financial Statements. Supplemental
consolidating data are shown for
the "Equipment Operations" and "Financial Services".
Transactions between the "Equipment
Operations" and "Financial Services" have been eliminated to
arrive at the "Consolidated"
data.
<PAGE>
DEERE & COMPANY
CONDENSED CONSOLIDATED BALANCE SHEET
Millions of dollars (Unaudited)
CONSOLIDATED
(Deere & Company and Consolidated Subsidiaries)
Apr 30 Oct 31 Apr 30
1995 1994 1994
Assets
Cash and short-term
investments $520.8 $245.4 $280.0
Cash deposited with
unconsolidated subsidiaries
Cash and cash equivalents 520.8 245.4 280.0
Marketable securities 1,135.1 1,126.3 1,061.7
Receivables from
unconsolidated subsidiaries
and affiliates 3.0 8.9 4.0
Dealer accounts and notes
receivable - net 3,588.5 2,939.4 3,153.0
Credit receivables - net 4,286.2 4,501.7 4,163.8
Other receivables 506.3 429.7 357.2
Equipment on operating
leases - net 234.1 219.5 200.5
Inventories 996.3 698.0 745.5
Property and equipment - net 1,292.6 1,314.1 1,200.0
Investments in unconsolidated
subsidiaries and affiliates 154.2 154.3 144.9
Intangible assets - net 280.3 283.7 295.3
Deferred income taxes 679.8 679.8 683.7
Other assets and deferred
charges 214.2 180.4 202.9
Total $13,891.4 $12,781.2 $12,492.5
Liabilities and Stockholders' Equity
Short-term borrowings $ 3,006.9 $ 2,637.4 $ 2,953.0
Payables to unconsolidated
subsidiaries
and affiliates 30.8 34.0 26.4
Accounts payable and
accrued expenses 2,395.4 2,285.2 2,077.0
Insurance and health care
claims and reserves 783.9 761.3 712.1
Accrued taxes 143.9 80.2 86.8
Deferred income taxes 14.1 13.5 8.2
Long-term borrowings 2,341.4 2,053.9 1,974.7
Retirement benefit
accruals and other
liabilities 2,318.1 2,357.8 2,345.3
Total liabilities 11,034.5 10,223.3 10,183.5
<PAGE>
Common stock, $1 par value
(issued shares
at April 30, 1995
- 86,850,546 1,502.6 1,491.4 1,473.8
Retained earnings 1,634.6 1,353.9 1,117.1
Minimum pension liability
adjustment (248.4) (248.4) (215.5)
Cumulative translation
adjustment (8.0) (17.9) (45.0)
Unrealized loss on marketable
securities available for sale (1.5)
Unamortized restricted stock
compensation (10.1) (8.8) (6.2)
Common stock in treasury,
at cost (12.3) (12.3) (15.2)
Total stockholders' equity 2,856.9 2,557.9 2,309.0
Total $13,891.4 $12,781.2 $12,492.5
<PAGE>
DEERE & COMPANY
CONDENSED CONSOLIDATED BALANCE SHEET
Millions of dollars (Unaudited)
EQUIPMENT OPERATIONS
(Deere & Company with Financial Services on the Equity Basis)
Apr 30 Oct 31 Apr 30
1995 1994 1994
Assets
Cash and short-term
investments $ 101.6 $ 104.0 $ 28.2
Cash deposited with
unconsolidated subsidiaries
Cash and cash equivalents 328.4
Marketable securities 430.0 104.0 28.2
Receivables from
unconsolidated subsidiaries
and affiliates 82.2 196.9 174.1
Dealer accounts and
notes receivable - net 3,588.5 2,939.4 3,153.0
Credit receivables - net 107.3 115.8 151.9
Other receivables 15.2
Equipment on operating
leases - net 106.0 94.3 70.4
Inventories 996.3 698.0 745.5
Property and equipment
- net 1,256.7 1,281.8 1,172.0
Investments in
unconsolidated subsidiaries
and affiliates 1,343.7 1,285.9 1,236.8
Intangible assets
- net 264.9 266.8 277.4
Deferred income taxes 619.4 620.5 629.3
Other assets and deferred
charges 115.8 91.8 117.1
Total $ 8,910.8 $ 7,710.4 $ 7,755.7
Liabilities and
Stockholders' Equity
Short-term borrowings $ 872.6 $ 53.8 $ 493.9
Payables to
unconsolidated subsidiaries
and affiliates 31.4 34.0 41.8
Accounts payable and
accrued expenses 1,679.9 1,617.3 1,460.5
Insurance and health
care claims and reserves
Accrued taxes 143.4 79.7 83.0
Deferred income taxes 14.1 13.5 8.1
Long-term borrowings 1,017.7 1,019.4 1,029.5
Retirement benefit
accruals and other
liabilities 2,294.8 2,334.8 2,329.9
Total liabilities 6,053.9 5,152.5 5,446.7
Common stock, $1 par value
(issued shares
at April 30, 1995
- 86,850,546 1,502.6 1,491.4 1,473.8
Retained earnings 1,634.6 1,353.9 1,117.1
Minimum pension liability
adjustment (248.4) (248.4) (215.5)
Cumulative translation
adjustment (8.0) (17.9) (45.0)
Unrealized loss on
marketable securities
available for sale (1.5)
Unamortized restricted stock
compensation (10.1) (8.8) (6.2)
Common stock in treasury,
at cost (12.3) (12.3) (15.2)
Total stockholders'
equity 2,856.9 2,557.9 2,309.0
Total $ 8,910.8 $ 7,710.4 $ 7,755.7
<PAGE>
DEERE & COMPANY
CONDENSED CONSOLIDATED BALANCE SHEET
Millions of dollars (Unaudited)
FINANCIAL SERVICES
Apr 30 Oct 31 Apr 30
1995 1994 1994
Assets
Cash and short-term
investments $ 419.2 $ 141.4 $ 251.8
Cash deposited with
unconsolidated subsidiaries
Cash and cash equivalents 419.2 141.4 251.8
Marketable securities 1,135.1 1,126.3 1,061.7
Receivables from
unconsolidated subsidiaries
and affiliates .6 15.4
Dealer accounts and notes
receivable - net
Credit receivables - net 4,178.9 4,385.9 4,011.9
Other receivables 507.3 415.5 358.2
Equipment on operating
leases - net 128.1 125.2 130.1
Inventories
Property and equipment
- net 35.9 32.3 28.0
Investments in unconsolidated
subsidiaries and affiliates 53.2 55.1 54.7
Intangible assets - net 15.4 16.9 18.0
Deferred income taxes 60.5 59.2 54.4
Other assets and deferred
charges 98.4 88.6 85.7
Total 6,632.6 $ 6,446.4 $ 6,069.9
Liabilities and Stockholders'
Equity
Short-term borrowings $ 2,134.3 $ 2,583.5 $ 2,459.1
Payables to unconsolidated
subsidiaries and affiliates 407.6 187.9 170.1
Accounts payable and
accrued expenses 716.6 668.9 617.5
Insurance and health care
claims and reserves 783.9 761.3 712.1
Accrued taxes .5 .5 3.8
Deferred income taxes
Long-term borrowings 1,323.7 1,034.5 945.2
Retirement benefit accruals
and other liabilities 23.3 23.0 15.4
Total liabilities 5,389.9 5,259.6 4,923.2
Common stock, $1 par value
(issued shares
at April 30, 1995
- 86,850,546 209.4 209.5 209.0
Retained earnings 1,038.2 980.3 942.5
Minimum pension liability
adjustment
Cumulative translation
adjustment (3.4) (3.0) (4.8)
Unrealized loss on marketable
securities available for sale (1.5)
Unamortized restricted stock
compensation
Common stock in treasury, at cost
Total stockholders' equity 1,242.7 1,186.8 1,146.7
Total $ 6,632.6 $ 6,446.4 $6,069.9
See Notes to Interim Financial Statements. Supplemental
consolidating data are shown for
the "Equipment Operations" and "Financial Services".
Transactions between the "Equipment
Operations" and "Financial Services" have been eliminated to
arrive at the "Consolidated"
data.<PAGE>
DEERE & COMPANY
CONDENSED STATEMENT OF CONSOLIDATED CASH FLOWS
Six Months Ended April 30
Millions of dollars (Unaudited)
CONSOLIDATED
(Deere & Company and Consolidated Subsidiaries)
Six Months Ended
April 30
1995 1994
Cash Flows from Operating Activities
Net income $ 375.5 $ 276.3
Adjustments to reconcile net income
to net cash provided by
(used for) operating activities (739.5) (548.4)
Net cash provided by (used for)
operating activities (364.0) (272.1)
Cash Flows from Investing Activities
Collections and sales of credit
receivables 2,454.3 1,588.5
Proceeds from sales of marketable
securities 68.3 146.7
Cost of credit receivables acquired (2,307.5) (1,986.5)
Purchases of marketable securities (74.6) (209.3)
Purchases of property and equipment (82.5) (73.5)
Cost of operating leases acquired (63.1) (45.4)
Other 76.5 58.3
Net cash provided by (used for)
investing activities 71.4 (521.2)
Cash Flows from Financing Activities
Increase (decrease) in short-term
borrowings 797.5 1,265.8
Change in intercompany
receivables/payables
Proceeds from long-term borrowings 405.0 10.0
Principal payments on long-term
borrowings (546.3) (486.9)
Proceeds from issuance of common stock 9.6 35.5
Dividends paid (95.1) (85.5)
Other (4.9) (4.1)
Net cash provided by financing
activities 565.8 734.8
Effect of Exchange Rate Changes
on Cash 2.2 .3
Net Increase (Decrease) in Cash
and Cash Equivalents 275.4 (58.2)
Cash and Cash Equivalents at
Beginning of Period 245.4 338.2
Cash and Cash Equivalents at
End of Period $ 520.8 $ 280.0
<PAGE>
DEERE & COMPANY
CONDENSED STATEMENT OF CONSOLIDATED CASH FLOWS
Six Months Ended April 30
Millions of dollars (Unaudited)
EQUIPMENT OPERATIONS
(Deere & Company with Financial Services on the Equity Basis)
Six Months Ended
April 30
1995 1994
Cash Flows from Operating Activities
Net income $ 375.5 $276.3
Adjustments to reconcile net income
to net cash provided by
(used for) operating activities (810.6) (491.4)
Net cash provided by (used for)
operating activities (435.1) (215.1)
Cash Flows from Investing Activities
Collections and sales of credit receivables 26.0 32.5
Proceeds from sales of marketable securities
Cost of credit receivables acquired (17.4) (67.9)
Purchases of marketable securities
Purchases of property and equipment (75.7) (68.1)
Cost of operating leases acquired (38.7) (12.3)
Other 31.2 13.1
Net cash provided by (used for)
investing activities (74.6) (102.7)
Cash Flows from Financing Activities
Increase (decrease) in short-term
borrowings 817.6 144.8
Change in intercompany receivables/payables 109.4 353.2
Proceeds from long-term borrowings
Principal payments on long-term borrowings (3.1) (169.9)
Proceeds from issuance of common stock 9.6 35.5
Dividends paid (95.1) (85.5)
Other (4.9) (4.1)
Net cash provided by financing
activities 833.5 274.0
Effect of Exchange Rate Changes
on Cash 2.2 .3
Net Increase (Decrease) in Cash and
Cash Equivalents 326.0 (43.5)
Cash and Cash Equivalents at Beginning
of Period 104.0 71.7
Cash and Cash Equivalents at End
of Period $430.0 $ 28.2
<PAGE>
DEERE & COMPANY
CONDENSED STATEMENT OF CONSOLIDATED CASH FLOWS
Six Months Ended April 30
Millions of dollars (Unaudited)
FINANCIAL SERVICES
Six Months Ended
April 30
1995 1994
Cash Flows from Operating Activities
Net income $ 85.2 $ 79.0
Adjustments to reconcile net income
to net cash provided by (used for)
operating activities 13.2 47.0
Net cash provided by (used for)
operating activities 98.4 126.0
Cash Flows from Investing Activities
Collections and sales of
credit receivables 2,428.3 1,566.7
Proceeds from sales of marketable
securities 68.3 146.7
Cost of credit receivables acquired (2,290.1) (1,929.3)
Purchases of marketable securities (74.6) (209.3)
Purchases of property and equipment (6.8) (5.4)
Cost of operating leases acquired (24.4) (33.1)
Other 45.3 45.2
Net cash provided by (used for)
investing activities 146.0 (418.5)
Cash Flows from Financing Activities
Increase (decrease) in short-term borrowings (20.1) 1,121.0
Change in intercompany receivables/payables 219.1 (353.2)
Proceeds from long-term borrowings 405.0 10.0
Principal payments on long-term borrowings (543.3) (316.9)
Proceeds from issuance of common stock
Dividends paid (27.3) (183.1)
Other
Net cash provided by financing activities 33.4 277.8
Effect of Exchange Rate Changes on Cash
Net Increase (Decrease) in Cash and Cash
Equivalents 277.8 (14.7)
Cash and Cash Equivalents at Beginning
of Period 141.4 266.5
Cash and Cash Equivalents at End of Period $ 419.2 $ 251.8
See Notes to Interim Financial Statements. Supplemental
consolidating data are shown for
the "Equipment Operations" and "Financial Services".
Transactions between the "Equipment
Operations" and "Financial Services" have been eliminated to
arrive at the "Consolidated"
data.
<PAGE>
Notes to Interim Financial Statements
(1) The consolidated financial statements of Deere & Company and
consolidated subsidiaries have been prepared by the Company,
without audit, pursuant to the rules and regulations of the
Securities and Exchange Commission. Certain information and
footnote disclosures normally included in annual financial
statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted as
permitted by such rules and regulations. All adjustments,
consisting of normal recurring adjustments, have been
included. Management believes that the disclosures are
adequate to present fairly the financial position, results
of operations and cash flows at the dates and for the
periods presented. It is suggested that these interim
financial statements be read in conjunction with the
financial statements and the notes thereto included in the
Company's latest annual report on Form 10-K. Results for
interim periods are not necessarily indicative of those to
be expected for the fiscal year.
(2) The Company's consolidated financial statements and some
information in the notes and related commentary are
presented in a format which includes data grouped as
follows:
Equipment Operations - These data include the Company's
agricultural equipment, industrial equipment and lawn and
grounds care equipment operations with Financial Services
reflected on the equity basis. Data relating to the above
equipment operations, including the consolidated group data
in the income statement, are also referred to as "Equipment
Operations" in this report.
Financial Services - These data include the Company's
credit, insurance and health care operations.
Consolidated - These data represent the consolidation of the
Equipment Operations and Financial Services in conformity
with Financial Accounting Standards Board (FASB) Statement
No. 94. References to "Deere & Company" or "the Company"
refer to the entire enterprise.
(3) An analysis of the Company's retained earnings follows in
millions of dollars:
Three Months Six Months
Ended Ended
April 30 April 30
1995 1994 1995 1994
Balance, beginning
of period........ $1,444.9 $970.8 $1,353.9 $ 926.5
Net income......... 237.0 189.3 375.5 276.3
Dividends declared. (47.3) (43.0) (94.8) (85.7)
Balance, end of
period........... $1,634.6 $1,117.1 $1,634.6 $1,117.1
(4) An analysis of the cumulative translation adjustment in
millions of dollars follows:
Three Months Six Months
Ended Ended
April 30 April 30
1995 1994 1995 1994
Balance, beginning
of period................ $ 33.9 $40.4 $ 17.9 $41.5
Translation adjustments.... (26.4) 5.4 (10.4) 3.6
Income taxes applicable to
translation adjustments.. .5 (.8) .5 (.1)
Balance, end of period.....$ 8.0 $45.0 $ 8.0 $45.0
(5) Substantially all inventories owned by Deere & Company and
its
United States equipment subsidiaries are valued at cost on
the
"last-in, first-out" (LIFO) method. If all of the Company's
inventories had been valued on a "first-in, first-out"
(FIFO)
method, estimated inventories by major classification in
millions of dollars would have been as follows:
April 30 October 31 April 30
1995 1994 1994
Raw materials and
supplies................ $ 229 $ 206 $ 196
Work-in-process........... 446 357 374
Finished machines and
parts................... 1,284 1,079 1,140
Total FIFO value.......... 1,959 1,642 1,710
Adjustment to LIFO
basis................... 963 944 964
Inventories............... $ 996 $ 698 $ 746
(6) During the first six months of 1995, the Financial Services
subsidiaries and the Equipment Operations received proceeds
from
the sale of retail notes in the public market and to other
financial institutions of $724 million. At April 30, 1995,
the
net unpaid balance of all retail notes previously sold by
the
Financial Services subsidiaries and the Equipment Operations
was
$1,469 million. At April 30, 1995, the Company's maximum
exposure under all credit receivable recourse provisions was
$211
million for all retail notes sold.
Certain foreign subsidiaries have pledged assets with a
balance sheet value of $56 million as collateral for bank
advances of $1 million as of April 30, 1995.
At April 30, 1995, the Company had commitments of
approximately
$64 million for construction and acquisition of property and
equipment.
<PAGE>
(7) Worldwide net sales and revenues and operating profit in
millions
of dollars follow:
Three Months Ended Six Months Ended
April 30 April 30
% %
1995 1994 Change 1995 1994 Change
Net sales:
Agricultural equipment...$1,434 $1,332 + 8 $2,456 $2,219 +11
Industrial equipment.....500 432 +16 908 740 +23
Lawn and grounds care
equipment*.......... 519 364 +43 819 576 +42
Total net sales.....2,453 2,128 +15 4,183 3,535 +18
Financial Services revenues.361 309 +17 709 607 +17
Other revenues.......... 26 23 +13 54 45 +20
Total net sales and
revenues........ $2,840 $2,460 +15 $4,946 $4,187 +18
United States and Canada:
Equipment net sale.... $1,882 $1,663 +13 $3,207 $2,783 +15
Financial Services
revenues........... 361 309 +17 709 607 +17
Total............. 2,243 1,972 +14 3,916 3,390 +16
Overseas net sales*..... 571 465 +23 976 752 +30
Other revenues.......... 26 23 +13 54 45 +20
Total net sales and
revenues........ $2,840 $2,460 +15 $4,946 $4,187 +18
Operating profit:
Agricultural equipment.$ 237 $ 184 $ 352 $ 269
Industrial equipment.... 55 45 100 54
Lawn and grounds care
equipment........... 64 47 92 67
Financial Services**.. 67 59 137 116
Total operating
profit. 423 335 681 506
Interest and corporate
expenses-net......... (49) (38) (86) (74)
Income taxes........... (137) (108) (220) (156)
Net income....... $ 237 $ 189 $ 375 $ 276
* Second quarter 1995 worldwide lawn and grounds care
equipment net
sales, United States and Canada net sales and overseas net
sales
include $87 million, $74 million and $13 million,
respectively, of
sales by Homelite, which was acquired in the fourth quarter
of
1994. The first six months of 1995 include $137 million,
$113
million and $24 million, respectively, of Homelite's net
sales.
** Operating profit of Financial Services includes the effect
of
interest expense.
<PAGE>
(8) Dividends declared and paid on a per share basis were as
follows:
Three Months Six Months
Ended Ended
April 30 April 30
1995 1994 1995 1994
Dividends declared. $.55 $.50 $1.10 $1.00
Dividends paid..... $.55 $.50 $1.10 $1.00
(9) The calculation of primary net income per share is based on
the average number of shares outstanding during the six
months ended April 30, 1995 and 1994 of 86,505,000 and
85,867,000, respectively. The calculation of fully diluted
net income per share recognizes the dilutive effect of the
assumed exercise of stock options, stock appreciation rights
and conversion of convertible debentures. The effect of the
fully diluted calculation was immaterial.
(10) The Company is subject to various unresolved legal actions
which arise in the normal course of its business, the most
prevalent of which relate to product liability and retail
credit matters. Although it is not possible to predict with
certainty the outcome of these unresolved legal actions or
the range of possible loss, the Company believes these
unresolved legal actions will not have a material effect on
its financial position or results of operations.
(11) During the second quarter of 1993, the Company initiated
plans to downsize and rationalize its European operations.
This resulted in a restructuring charge of $80 million after
income taxes or $1.03 per share ($107 million before income
taxes). The charge mainly represented the cost of
employment reductions to be implemented during 1993 and the
next few years. As of April 30, 1995, the expected
employment reductions and the disbursement of the $107
million accrual were both approximately 72 percent complete.
(12) In the first quarter of 1995, the Company adopted FASB
Statement No. 115, Accounting for Certain Investments in
Debt and Equity Securities. The Company designated
approximately two-thirds of its debt securities as held-to-
maturity with the remaining debt and equity securities
classified as available-for-sale. The held-to-maturity debt
securities are carried at cost and the available-for-sale
securities are carried at fair value with unrealized gains
and losses shown as a separate component of stockholders'
equity. Previously, the Company valued all its securities
on a cost basis. The Statement had an immaterial effect on
stockholders' equity and no impact on the consolidated
income statement.
<PAGE>
(13) In January 1995, the Company's insurance subsidiaries agreed
to sell their 3.1 million shares (43.8 percent) of Re
Capital Corporation to Zurich Reinsurance Centre Holdings,
Inc. for $18.50 a share. In April 1995, the insurance
subsidiaries agreed to sell their wholly-owned subsidiary,
John Deere Life Insurance Company, to Life Reassurance
Corporation of America. These sales did not have a
significant effect on the Company's consolidated financial
position or net income for the second quarter or first six
months of 1995.
<PAGE>
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Deere & Company achieved record worldwide net income in the
second quarter of 1995 of $237.0 million or $2.74 per share
compared with $189.3 million or $2.20 per share last year. This
was the highest quarterly net income and earnings per share ever
reported by the Company. Worldwide net income improved by $47.7
million or 25 percent compared with last year's second quarter.
Year-to-date net income totaled $375.5 million or $4.34 per share
compared with $276.3 million or $3.22 per share for the first six
months of 1994. The increased income for both the quarter and
the first six months was primarily due to higher sales and
production activity and continued productivity improvements,
which were partially offset by unfavorable currency fluctuations.
Worldwide net sales and revenues increased 15 percent to $2,840
million in the second quarter and 18 percent to $4,946 million
for the first six months of 1995 compared with $2,460 million and
$4,187 million, respectively, last year. Worldwide production
tonnage was up seven percent in the quarter and nine percent
year-to-date compared with the same periods last year.
The Company's operations continue to be favorably affected by
several key developments. Market demand for all the Company's
products remains strong, reflecting increased export demand,
continued growth in the general economy and sustained high levels
of farmers' confidence. Additionally, the Company recently
signed a new three-year labor agreement with the United Auto
Workers which encourages employee innovation and should generate
significant productivity gains. Further, worldwide customer
acceptance of the Company's new medium and large row crop tractor
lines continues to be outstanding.
Net sales to dealers of agricultural, industrial and lawn and
grounds care equipment were $2,453 million in the second quarter
and $4,183 million year-to-date in 1995 compared with $2,128
million for the quarter and $3,535 million year-to-date last
year. Net sales in 1995 include Homelite sales of $87 million
during the quarter and $137 million in the first six months.
Homelite sales were not included in the comparable periods last
year. The physical volume of worldwide net sales to dealers
increased approximately 10 percent in the second quarter and 13
percent year-to-date in 1995. North American net sales of John
Deere agricultural, industrial and lawn and grounds care
equipment all increased during the second quarter and first six
months of 1995 compared with last year. Exports from the United
States also continued to strengthen, totaling $645 million for
the first six months, which was 15 percent higher than last
year's export levels of $560 million. Overseas net sales and
physical volume of sales in the first six months were also
higher, increasing 30 percent and 17 percent, respectively,
compared with a year ago.
The Company's worldwide Equipment Operations, which exclude the
Financial Services subsidiaries and unconsolidated affiliates,
had income of $191.6 million for the quarter and $287.4 million
year-to-date compared with $147.5 million and $195.5 million,
respectively, last year. All of the Company's equipment
businesses generated higher operating profits during the quarter
and year-to-date compared with last year. The improved results
were due primarily to higher production and sales volumes and
continued improvements in productivity, partially offset by
unfavorable currency fluctuations. The ratio of cost of goods
sold to net sales of the Equipment Operations decreased from 77.5
percent in the second quarter of 1994 to 76.1 percent in the same
period this year. During the first six months of 1995, the ratio
of cost of goods sold to net sales was 77.0 percent compared with
78.5 percent in the first half of last year. Operating profit is
defined as income before interest expense, foreign exchange gains
and losses, income taxes and certain corporate expenses, except
for the operating profit of the credit segment which includes the
effect of interest expense. Additional information on business
segments is presented in Note 7 to the interim financial
statements.
Net income of the Company's credit operations was $34.4 million
in the second quarter of 1995 compared with $28.4 million in last
year's second quarter. For the first six months of 1995, net
income of these subsidiaries was $64.1 million compared with
$54.0 million last year. Compared with last year, earnings for
both the quarter and the first six months were favorably affected
by increased gains on the sale of retail notes and higher margins
on a larger average receivable and lease portfolio financed.
Total revenues of the credit operations increased 33 percent from
$119 million in the second quarter of 1994 to $158 million in the
current quarter and increased 27 percent in the first half from
$237 million last year to $300 million this year. Revenues
increased reflecting a higher overall yield on the receivables
held, a larger average portfolio financed and the increased gains
on the sale of retail notes. The average balance of receivables
and leases financed was 17 percent higher in the second quarter
and 18 percent higher in the first six months of 1995 compared
with the same periods last year. The resulting increase in
average borrowings coupled with higher borrowing rates this year
resulted in a 65 percent increase in interest expense in the
current quarter and a 58 percent increase in the first half of
1995 compared with 1994. The credit subsidiaries' consolidated
ratio of earnings before fixed charges to fixed charges was 1.78
to 1 for the second quarter this year compared with 2.11 to 1 in
1994. This ratio was 1.76 to 1 for the first six months this
year compared with 2.00 to 1 in the comparable period of 1994.
Net income from insurance and health care operations was $8.0
million in the second quarter of 1995 compared with $12.0 million
in the same quarter last year. For the first six months, net
income from these operations was $21.1 million this year compared
with $25.0 million in 1994. The insurance operations' results in
1995 were unfavorably affected by an expected small net loss from
the recently announced agreement to sell the John Deere Life
Insurance Company, a higher effective tax rate and lower equity
income due to the sale of Re Capital Corporation. This decline
was partially offset by an improvement in insurance and health
care underwriting earnings compared to 1994. For the second
quarter, insurance and health care premiums earned increased
seven percent in 1995 compared with the same period last year,
while claims, policy benefits and selling, administrative and
general expenses increased five percent this year. For the six-
month period, insurance and health care premiums earned increased
by 12 percent in 1995, while claims, policy benefits and selling,
administrative and general expenses increased nine percent
compared with last year. The insurance operations will continue
to focus on their core property and casualty business and the
sale of the life insurance subsidiary will not significantly
affect future results.
Current North American retail sales activity of agricultural
equipment provides a strong foundation for operations during the
remainder of the year. Although some uncertainty has developed
as a result of the debate on a new United States farm bill and
extremely wet and cool weather conditions which have delayed
spring planting in many areas, farmers' confidence remains high
and continues to promote strong agricultural equipment demand.
Recent strong levels of United States net farm cash income
continue to provide a solid base for farm expenditures.
Additionally, higher exports of farm commodities resulting from
continued growth in demand from developing countries, as well as
from China and the former Soviet Union, have stabilized commodity
prices at levels which should further improve customer buying
confidence. Recent weakness in the dollar against key foreign
currencies has also improved the worldwide competitiveness of
most domestic farm commodities.
Markets for the Company's other major businesses also remain at
strong levels. The North American general economy has sustained
its moderate growth, which should support continued demand for
both industrial and lawn and grounds care equipment as well as
provide a sound basis for expansion of the Company's Financial
Services revenues.
In response to these market conditions, the worldwide Equipment
Operations' production tonnage is expected to increase by six
percent in 1995 compared with 1994. Third quarter worldwide
production tonnage is expected to be eight percent higher
compared with last year, reflecting continued strong retail
demand coupled with the excellent acceptance of the Company's new
8000-series tractor line as well as other new products.
CAPITAL RESOURCES AND LIQUIDITY
The discussion of capital resources and liquidity has been
organized to review separately, where appropriate, the Company's
Equipment Operations, Financial Services operations and the
consolidated totals.
Equipment Operations
The Company's equipment businesses are capital intensive and are
subject to large seasonal variations in financing requirements
for receivables from dealers and inventories. Accordingly, to
the extent necessary, funds provided from operations are
supplemented from external sources.
Negative cash flows from operating activities in the first six
months of 1995 resulted from the normal seasonal increases in
dealer receivables and Company-owned inventories and annual
volume discount program payments made to dealers. Partially
offsetting these operating cash outflows were positive cash flows
from net income and dividends received from the Financial
Services operations. The resulting net cash requirement for
operating activities of $435 million, along with cash required
for increases in cash and cash equivalents, payment of dividends
and purchases of property and equipment were provided primarily
from an increase in borrowings and a decrease in receivables from
the Financial Services operations.
In the first half of 1994, negative cash flows from operating
activities resulted from the normal seasonal increases in dealer
receivables and Company-owned inventories, annual volume discount
program payments made to dealers and contributions to the pension
fund. Partially offsetting these operating cash outflows were
positive cash flows from net income and dividends received from
the Financial Services operations. The resulting net cash
requirement for operating activities of $215 million, along with
cash required for payment of dividends, purchases of property and
equipment and a decrease in borrowings were provided primarily
from a decrease in receivables from the Financial Services
operations and a decrease in cash and cash equivalents.
Net dealer accounts and notes receivable, which largely represent
dealers' inventories financed by the Company, have increased $649
million since October 31, 1994 and $436 million compared to a
year ago due primarily to a normal seasonal increase and higher
retail demand. The ratios of these receivables to the last 12
months net sales were 43 percent at April 30, 1995, 38 percent
at October 31, 1994 and 44 percent at April 30, 1994. North
American agricultural equipment and industrial equipment dealer
receivables increased approximately $70 million and $110
million, respectively, compared with the levels 12 months
earlier. North American lawn and grounds care dealer receivables
increased approximately $160 million compared to a year earlier,
which included an additional $58 million of Homelite receivables
in 1995. Total overseas dealer receivables were approximately
$95 million higher than a year ago, approximately one-half of
which was due to higher foreign currency exchange rates in 1995.
The percentage of total worldwide dealer receivables outstanding
for periods exceeding 12 months was seven percent at April 30,
1995 and October 31, 1994, and eight percent at April 30, 1994.
Company-owned inventories at April 30, 1995 have increased by
$298 million compared with the end of the previous fiscal year
and $251 million compared to one year ago, reflecting a normal
seasonal increase as well as increased retail demand, higher
foreign currency exchange rates and approximately $60 million of
additional Homelite inventories at April 30, 1995 and October 31,
1994 compared to a year ago.
Total interest-bearing debt of the Equipment Operations was
$1,890 million at April 30, 1995 compared with $1,073 million at
the end of fiscal year 1994 and $1,523 million at April 30, 1994.
The ratio of total debt to total capital (total interest-bearing
debt and stockholders' equity) was 40 percent, 30 percent and 40
percent at April 30, 1995, October 31, 1994 and April 30, 1994,
respectively.
Financial Services
The Financial Services' credit subsidiaries rely on their ability
to raise substantial amounts of funds to finance their receivable
and lease portfolios. Their primary sources of funds for this
purpose are a combination of borrowings and equity capital.
Additionally, the John Deere Capital Corporation (Capital
Corporation), the Company's United States credit subsidiary,
periodically sells substantial amounts of retail notes in the
public market. The insurance and health care operations generate
their funds through internal operations and have no external
borrowings.
During the first six months of 1995, the aggregate cash provided
from operating, investing and financing activities increased cash
and cash equivalents. Cash provided from Financial Services
operating activities was $98 million in the first six months.
Investing activities provided $146 million of cash in the first
six months, primarily due to proceeds of $723 million received
from the sale of retail notes in the public market, which was
partially offset by the acquisitions of credit receivables
exceeding collections by $585 million. Cash provided by
financing activities totaled $33 million in 1995, representing a
$219 million temporary increase in payables to the Equipment
Operations, partially offset by a $158 million decrease in
outside borrowings and payment of a $27 million dividend to the
Equipment Operations. Cash and cash equivalents increased $278
million during the first half of 1995.
In the first six months of 1994, the aggregate cash provided from
operating and financing activities was used primarily to increase
credit receivables. Cash provided from Financial Services
operating activities was $126 million during the first six months
of 1994. Financing activities provided $278 million during the
same period, resulting from an $814 million increase in outside
borrowings which was partially offset by a $353 million decrease
in payables to the Equipment Operations and payment of a $183
million dividend to the Equipment Operations. Cash used for
investing activities totaled $419 million in the first six
months, primarily due to the cost of credit receivables acquired
exceeding collections. Other cash flows from investing
activities increased in 1994 mainly due to collections on
receivables previously sold that were being held for payment to
trusts. Cash and cash equivalents also decreased $15 million in
the first six months of 1994.
The positive cash flows from insurance and health care operations
have been primarily invested in marketable securities.
Marketable securities consist primarily of debt securities held
by the insurance and health care operations in support of their
obligations to policyholders. These investments increased in the
first six months of 1995 and during the past 12 months, resulting
primarily from the continuing growth in the insurance and health
care operations.
Credit receivables decreased by $207 million in the first six
months of 1995 and increased by $167 million during the past 12
months. These receivables consist of retail notes originating in
connection with retail sales by dealers of John Deere products,
retail notes from non-Deere-related customers, revolving charge
accounts, financing leases and wholesale notes receivable.
The credit subsidiaries' receivables decreased during the first
six months of 1995 due to the sale of retail notes for proceeds
of $723 million, which was partially offset by the acquisitions
of credit receivables exceeding collections. Total acquisitions
of credit receivables were 19 percent higher in the first six
months of 1995 compared with the same period last year. This
significant increase resulted mainly from improvements in the
general economy, increased retail sales of John Deere equipment
and recreational products, and a higher revolving charge account
and wholesale note volume. The sale of retail notes during the
past 12 months for proceeds of $1,245 million, partially offset
the increase in credit receivables from acquisitions exceeding
collections in the same period. The levels of wholesale
receivables, revolving charge accounts and financing lease
receivables were higher than one year ago, while retail notes
were slightly lower compared to last year. Credit receivables
administered by the credit subsidiaries, which include
receivables previously sold, amounted to $5,677 million at April
30, 1995 compared with $5,600 million at October 31, 1994 and
$4,949 million at April 30, 1994. At April 30, 1995, the unpaid
balance of all retail notes previously sold was $1,468 million
compared with $1,175 million at October 31, 1994 and $896 million
at April 30, 1994. Additional sales of retail notes are expected
to be made in the future.
Total interest-bearing debt of the credit subsidiaries was $3,458
million at April 30, 1995 compared with $3,618 million at the end
of fiscal year 1994 and $3,404 million at April 30, 1994. Total
outside borrowings decreased during the first six months of 1995
and increased during the past 12 months, generally corresponding
with the levels of the credit receivable and lease portfolio
financed, the level of cash and cash equivalents and the change
in the amounts of payables owed to the Equipment Operations. The
credit subsidiaries' ratio of total interest-bearing debt to
stockholder's equity was 5.1 to 1 at April 30, 1995 compared with
5.3 to 1 at October 31, 1994 and 5.1 to 1 at April 30, 1994.
During the first six months of 1995, the Capital Corporation
issued $150 million of floating rate notes due in 1998 and
retired $150 million of 5% debentures, $150 million of 11-5/8%
debentures and $100 million of 6% debentures all due in 1995.
During the same period, the Capital Corporation also issued $255
million and retired $143 million of medium-term notes.
Consolidated
The Company maintains unsecured lines of credit with various
banks in North America and overseas. Some of the lines are
available to both the Equipment Operations and certain credit
subsidiaries. Worldwide lines of credit totaled $4,115 million
at April 30, 1995, $1,326 million of which were unused. For the
purpose of computing unused credit lines, total short-term
borrowings, excluding the current portion of long-term
borrowings, were considered to constitute utilization. Included
in the total credit lines is a long-term credit agreement
commitment for $3,500 million.
During the first six months of 1995, the total increase in cash
and cash equivalents on a consolidated basis was $275 million.
This represents $326 million provided by the Equipment Operations
and $278 million provided by Financial Services, reduced by $329
million of Equipment Operations' cash equivalents receivable from
the Financial Services operations.
Stockholders' equity was $2,857 million at April 30, 1995
compared with $2,558 million at October 31, 1994 and $2,309
million at April 30, 1994. The increase of $299 million in the
first six months of 1995 resulted primarily from net income of
$375 million, partially offset by dividends declared of $95
million.
The Board of Directors at its meeting on May 31, 1995 declared a
quarterly dividend of 55 cents per share payable August 1, 1995
to stockholders of record on June 30, 1995.<PAGE>
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
See Note (10) to the Interim Financial Statements.
Item 2. Changes in Securities
None
Item 3. Defaults upon Senior Securities
None
Item 4. Submission of Matters to a Vote of Security Holders
(a,b,c) At the annual meeting of stockholders held February
22, 1995 the following directors were elected:
Votes For Votes Withheld
Hans W. Becherer 72,762,852 285,349
Agustine Santamarina V. 72,808,462 239,739
David H. Stowe, Jr. 72,760,245 287,956
John R. Walter 72,804,937 243,264
John R. Block, Leonard A. Hadley and Professor Regina
E. Herzlinger continue to serve as directors of the
Company for terms expiring at the annual meeting in
1996. Samuel C. Johnson, Arthur L. Kelly, William A.
Schreyer and Dr. Arnold R. Weber continue to serve as
directors of the Company for terms expiring at the
annual meeting in 1997.
At the annual meeting on February 22, 1995,
stockholders also approved the John Deere Performance
Bonus Plan and the John Deere Equity Incentive Plan
with votes cast as follows:
Votes Broker
Votes For Against Abstentions Non-Votes
Performance 64,446,642 2,002,893 719,239 5,879,427
Bonus Plan
Equity 65,232,110 7,095,313 720,778 -0-
Incentive
Plan
Item 5. Other Information
None
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
See the index to exhibits immediately preceding the
exhibits filed with this report.
Certain instruments relating to long-term debt
constituting less than 10% of the registrant's total
assets are not filed as exhibits herewith pursuant to
Item 601(b)(4)(iii) (A) of Regulation S-K. The
registrant will file copies of such instruments upon
request of the Commission.
(b) Reports on Form 8-K
Current Report on Form 8-K dated February 21, 1995
(Item 7).
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
DEERE & COMPANY
Date: June 12, 1995 By s/ Pierre E. Leroy
Pierre E. Leroy
Senior Vice President,
Principal Financial Officer
and Principal Accounting Officer
<PAGE>
INDEX TO EXHIBITS
Number Page
2 Not applicable -
3 Not applicable -
4.1 Credit agreements among registrant, John Deere
(a,b) Capital Corporation, various financial
institutions, and Chemical Bank, The Chase
Manhattan Bank (National Association), Bank of
America National Trust and Savings Association,
Deutsche Bank AG, and The Toronto Dominion Bank
as Managing Agents, dated as of April 5, 1995. 22
4.2 Credit Agreements among John Deere Limited,
(a,b) John Deere Finance Limited, various financial
institutions, and The Toronto-Dominion Bank, as
Agent, dated as of April 5, 1995. 277
10 Not applicable -
11 Computation of net income per share 529
12 Computation of ratio of earnings to 530
fixed charges
15 Not applicable -
18 Not applicable -
19 Not applicable -
22 Not applicable -
23 Not applicable -
24 Not applicable -
27 Financial data schedule 531
99 Not applicable -
EXHIBIT 4.1
CREDIT AGREEMENT, dated as of April 5, 1995, among (a)
DEERE & COMPANY, a Delaware corporation (the "Company"), (b) JOHN
DEERE CAPITAL CORPORATION, a Delaware corporation (the "Capital
Corporation"), (c) the several financial institutions parties
hereto (collectively, the "Banks", and individually, a "Bank"),
(d) CHEMICAL BANK, as administrative agent hereunder (in such
capacity, the "Administrative Agent"), (e) THE CHASE MANHATTAN
BANK (NATIONAL ASSOCIATION), as syndication agent hereunder (in
such capacity, the "Syndication Agent"), (f) BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as documentation agent
hereunder (in such capacity, the "Documentation Agent"), (g)
DEUTSCHE BANK AG CHICAGO BRANCH, as auction agent hereunder (in
such capacity, the "Auction Agent"), (h) THE TORONTO-DOMINION
BANK, as Canadian administrative agent hereunder (in such
capacity, the "Canadian Administrative Agent"), (i) CHEMICAL
BANK, THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, DEUTSCHE BANK AG
CHICAGO BRANCH and THE TORONTO-DOMINION BANK, as managing agents
(collectively, the "Managing Agents"), and (j) the co-agents
identified on the signature pages hereof (collectively, the "Co-
Agents").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
following terms have the following meanings:
"ABR": at any particular date, the higher of (a) the
rate of interest per annum publicly announced by Chemical
for such date as its prime rate in effect at its principal
office in New York City and (b) .5% per annum above the rate
set forth for such date or, if such date is not a Business
Day, the next preceding Business Day, opposite the caption
"Federal Funds (Effective)" in the weekly statistical
release designated as "H.15(519)" (or any successor
publication) published by the Board of Governors of the
Federal Reserve System or, if such rate is not so published
for such date, the average of the quotations for such day on
such transactions received by the Administrative Agent from
three Federal Funds dealers of recognized standing selected
by it. The prime rate is not intended to be the lowest rate
of interest charged by Chemical in connection with
extensions of credit to debtors.
"ABR Loans": Committed Rate Loans at such time as they
are made and/or being maintained at a rate of interest based
upon the ABR.
"Absolute Rate Bid Loan": any Bid Loan made pursuant
to an Absolute Rate Bid Loan Request.
"Absolute Rate Bid Loan Request": any Bid Loan Request
requesting the Banks to offer to make Bid Loans at an
absolute rate (as opposed to a rate composed of the
Applicable Index Rate plus (or minus) a margin).
"Administrative Agent": as defined in the preamble
hereto.
"Affiliated Linked Lender": as to each Tranche B Bank,
the Linked Lender set forth opposite its name below:
Tranche B Bank Linked Lender
Canadian Imperial Bank Canadian Imperial Bank
of Commerce of Commerce
Royal Bank of Canada Royal Bank of Canada
Toronto Dominion The Toronto-Dominion Bank
(Texas), Inc.
This definition shall be deemed automatically amended to
include any new Tranche B Bank and its Affiliated Linked
Lender resulting from the replacement pursuant to subsection
2.19 of a Cancelled Bank which was a Tranche B Bank or from
any assignment of rights and obligations made pursuant to
subsection 10.5(d).
"Agent": the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Auction Agent or the
Canadian Administrative Agent, as the context shall require;
together, the "Agents".
"Agreement": this Credit Agreement, as amended,
supplemented or modified from time to time.
"Applicable Index Rate": in respect of any Bid Loan
requested pursuant to an Index Rate Bid Loan Request, the
Eurodollar Rate applicable to the Interest Period for such
Bid Loan.
"Applicable Margin": for each Type of Committed Rate
Loan the rate per annum set forth below:
ABR Eurodollar C/D Rate
Loans Loans Loans
0% .155% .28%
"Assessment Rate": with respect to each day during
each Interest Period for a C/D Rate Loan, the net annual
assessment rate in effect two Business Days prior to the
first day of such Interest Period which is payable by a
member of the Bank Insurance Fund classified as well
capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within
the meaning of 12 C.F.R. Section 327.3(e) (or any successor
provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the
United States.
"Attributable Debt": as defined in subsection
6.2(b)(ii).
"Auction Agent": as defined in the preamble hereto.
"Bank" and "Banks": as defined in the preamble hereto.
"Base Rate": with respect to each day during each
Interest Period for a C/D Rate Loan, (a) the rate determined
by the Administrative Agent to be the rate set forth in
H.15(519) (published by the Federal Reserve Bank of New
York) for such Interest Period under the caption "CDs
(Secondary Market)", or, if on the first day of such
Interest Period such rate for such Interest Period is not
yet published in H.15(519), the rate for such Interest
Period will be the rate determined by the Administrative
Agent to be the rate set forth in Composite 3:30 P.M.
Quotations for U.S. Government Securities (published by the
Federal Reserve Bank of New York) for that day in respect of
such Interest Period under the caption "Certificates of
Deposit" or (b), if on the first day of such Interest
Period, the appropriate rate for such Interest Period is not
yet published in either H.15(519) or Composite 3:30 P.M.
Quotations for U.S. Government Securities, the rate for such
Interest Period will be the arithmetic average (rounded
upward to the nearest 1/100 of 1%) of the respective rates
notified to the Administrative Agent by the Reference Banks
as the rates per annum bid at 10:00 A.M. (New York City
time) (or as soon thereafter as practicable) on the first
day of such Interest Period by a total of three certificate
of deposit dealers located in New York City and of
recognized standing selected by each Reference Bank for the
purchase at face value from such Reference Bank of its
certificates of deposit in an amount comparable to the C/D
Rate Loan of such Reference Bank to which such Interest
Period applies and having a maturity comparable to such
Interest Period; provided that if such bids from such
dealers are not available to such Reference Bank, such
Reference Bank shall notify the Administrative Agent of a
reasonably equivalent rate determined by it on the basis of
another source or sources selected by it.
"benefitted Bank": as defined in subsection 10.6.
"Bid Loan": each loan (other than Negotiated Rate
Loans) made pursuant to subsection 2.2; the aggregate amount
advanced by a Bid Loan Bank pursuant to subsection 2.2 on
each Borrowing Date shall constitute one Bid Loan, or more
than one Bid Loan if so specified by the relevant Loan
Assignee in its request for promissory notes pursuant to
subsection 10.5(c).
"Bid Loan Banks": the collective reference to each
Bank designated from time to time as a Bid Loan Bank by a
Borrower (for purposes of Bid Loans to such Borrower) by
written notice to the Auction Agent and the Administrative
Agent and which has not been removed as a Bid Loan Bank by
such Borrower by written notice to the Auction Agent and the
Administrative Agent (each of which notices the Auction
Agent shall transmit to each such affected Bank).
"Bid Loan Confirmation": each confirmation by the
Company or the Capital Corporation of its acceptance of Bid
Loan Offers, which Bid Loan Confirmation shall be
substantially in the form of Exhibit D and shall be
delivered to the Auction Agent by facsimile transmission or
by telephone, immediately confirmed by facsimile
transmission.
"Bid Loan Offer": each offer by a Bid Loan Bank to
make Bid Loans pursuant to a Bid Loan Request, which Bid
Loan Offer shall contain the information specified in
Exhibit C and shall be delivered to the Auction Agent by
facsimile transmission or by telephone, immediately
confirmed by facsimile transmission.
"Bid Loan Request": each request by a Borrower for Bid
Loan Banks to submit bids to make Bid Loans, which shall
contain the information in respect of such requested Bid
Loans specified in Exhibit B and shall be delivered to the
Auction Agent by facsimile transmission or by telephone,
immediately confirmed by facsimile transmission.
"Borrower": the Company or the Capital Corporation;
collectively, the "Borrowers".
"Borrowing Date": in respect of any Loan, the date
such Loan is made.
"Business Day": a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are
authorized or required by law to close.
"Canadian Administrative Agent": as defined in the
preamble hereto.
"Canadian Dollars" and "Cdn.$": dollars in the lawful
currency of Canada.
"Cancelled Bank": any Bank that has the whole or any
part of its Commitment cancelled under subsection 2.5(b),
subsection 2.13(a), (b) or (c), subsection 2.16(c) or
subsection 2.17(b) or the Commitment of which has expired
under subsection 2.16(a).
"Capital Corporation": as defined in the preamble
hereto.
"C/D Rate": with respect to each day during the
Interest Period for a C/D Rate Loan, a rate per annum equal
to the following determined for such day:
Base Rate + Assessment Rate
1.00 - Reserve Percentage
"C/D Rate Loans": Committed Rate Loans at such time as
they are made and/or being maintained at a rate of interest
based upon a C/D Rate.
"Chemical": Chemical Bank, a New York banking
corporation.
"Closing Date": the date on which each of the
conditions precedent specified in subsection 4.1 shall have
been satisfied (or compliance therewith shall have been
waived by the Required Banks hereunder).
"Co-Agents": as defined in the preamble hereto.
"Code": the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment": as to any Bank, the amount set opposite
such Bank's name on Schedule II, as such amount may be
modified as provided herein; collectively, as to all the
Banks, the "Commitments".
"Commitment Expiration Date": as defined in subsection
2.16(a).
"Commitment Percentage": as to any Bank at any time,
the percentage which such Bank's Commitment at such time
constitutes of all the Commitments at such time;
collectively, as to all the Banks, the "Commitment
Percentages".
"Commitment Period": the period from and including the
Closing Date to but not including the Termination Date or
such earlier date on which the Commitments shall terminate
as provided herein.
"Commitment Transfer Supplement": a Commitment
Transfer Supplement, substantially in the form of Exhibit F.
"Committed Global Exposure": as to any Bank, at a
particular time, an amount equal to the sum of (a) the
aggregate unpaid principal amount at such time of all
Committed Rate Loans made by such Bank, and (b) the
Equivalent Amount of the aggregate unpaid principal amount
of all Committed Linked Loans made by such Bank's Affiliated
Linked Lender.
"Committed Linked Loans": Linked Loans other than
"Operating Facility Loans" and "Excluded Loans" under the
Linked Agreement.
"Committed Rate Loans": each loan made pursuant to
subsection 2.1.
"Commonly Controlled Entity": in relation to a
Borrower, an entity, whether or not incorporated, which is
under common control with such Borrower within the meaning
of Section 414(b) or (c) of the Code.
"Company": as defined in the preamble hereto.
"Consolidated Capital Base": at a particular time for
the Capital Corporation and its consolidated Subsidiaries,
the sum of (a) the amount shown opposite the item "Total
stockholder's equity" on the consolidated balance sheet of
the Capital Corporation and its consolidated Subsidiaries
plus (b) the principal amounts outstanding under the 8-5/8%
Subordinated Debentures due 2019 and the 9-5/8% Subordinated
Notes due 1998 of the Capital Corporation (in each case so
long as the subordination terms thereof continue to be as
favorable to the Administrative Agent and the Banks as in
existence on the Closing Date) and all indebtedness of the
Capital Corporation and its consolidated Subsidiaries for
borrowed money subordinated (on terms no less favorable to
the Administrative Agent and the Banks than the terms of
subordination set forth on Schedule I) to the indebtedness
which may be incurred hereunder by the Capital Corporation,
provided that the sum of clauses (a) and (b) hereof as at
the end of a fiscal quarter of the Capital Corporation and
its consolidated Subsidiaries (including the last quarter of
a fiscal year of the Capital Corporation and its
consolidated Subsidiaries) shall be determined by reference
to the publicly available consolidated balance sheet of the
Capital Corporation and its consolidated Subsidiaries as at
the end of such fiscal quarter and after such adjustments,
if any, as may be required so that the sum of the amounts
referred to in clauses (a) and (b) is determined in
accordance with GAAP.
"Consolidated Net Worth": as defined in subsection
6.2(b)(ii).
"Consolidated Senior Debt": at a particular time for
the Capital Corporation and its consolidated Subsidiaries,
indebtedness for borrowed money other than the 8-5/8%
Subordinated Debentures due 2019 and the 9-5/8% Subordinated
Notes due 1998 of the Capital Corporation (in each case so
long as the subordination terms thereof continue to be as
favorable to the Administrative Agent and the Banks as such
terms in existence on the Closing Date) and any such
indebtedness that is subordinated, on terms no less
favorable to the Administrative Agent and the Banks than the
terms of subordination set forth on Schedule I, to the
indebtedness which may be incurred hereunder by the Capital
Corporation, provided that the amount of such indebtedness
for borrowed money (other than such subordinated
indebtedness) as at the end of a fiscal quarter of the
Capital Corporation and its consolidated Subsidiaries
(including the last quarter of a fiscal year of the Capital
Corporation and its consolidated Subsidiaries) shall be
determined by reference to the publicly available
consolidated balance sheet of the Capital Corporation and
its consolidated Subsidiaries as at the end of such fiscal
quarter and after such adjustments, if any, as may be
required so that such amount is determined in accordance
with GAAP.
"Consolidated Tangible Net Worth": at a particular
time for a Borrower and its consolidated Subsidiaries, the
excess of the amount shown opposite the item "Total
stockholder's equity" on the consolidated balance sheet of
such Borrower and its consolidated Subsidiaries over the
aggregate amount shown on such balance sheet for any
intangible assets, including, without limitation, goodwill,
franchises, licenses, patents, trademarks, trade-names,
copyrights, service marks and brand names, provided that
such excess amount shall be determined (a) with respect to
the Company and its consolidated Subsidiaries as at the end
of any of their fiscal quarters (including the last quarter
of any of their fiscal years), by reference to the publicly
available consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of such fiscal
quarter and (b) with respect to the Capital Corporation and
its consolidated Subsidiaries as at the end of any of their
fiscal quarters (including the last quarter of any of their
fiscal years), by reference to the publicly available
consolidated balance sheet of the Capital Corporation and
its consolidated Subsidiaries as at the end of such fiscal
quarter, in each such case after such adjustments, if any,
as may be required so that such excess is determined in
accordance with GAAP.
"Contractual Obligation": as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is
a party or by which it or any of its property is bound.
"Deal Year": as defined in subsection 2.16(c).
"Debt": as defined in subsection 6.2.
"Default": any of the events specified in Section 8
(other than Section 8(i)), whether or not any requirement
for the giving of notice, the lapse of time, or both, or any
other condition, event or act has been satisfied.
"Documentation Agent": as defined in the preamble
hereto.
"Dollars" and "$": dollars in lawful currency of the
United States of America.
"Domestic Dollar Loans": the collective reference to
C/D Rate Loans and ABR Loans.
"Equivalent Amount": on any date, the equivalent
amount in Dollars after giving effect to a conversion of a
specified amount of Canadian Dollars to Dollars at the
Exchange Rate on that date. The Equivalent Amount of any
stamping fee paid to any Linked Lender pursuant to
subsection 6.1(b) of the Linked Agreement shall be
determined as of the date of such payment.
"ERISA": the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Eurodollar Loans": Committed Rate Loans at such time
as they are made and/or being maintained at a rate of
interest based upon a Eurodollar Rate.
"Eurodollar Rate": with respect to each day during
each Interest Period for a Eurodollar Loan and for each
Index Rate Bid Loan, (a) the rate determined by the
Administrative Agent to be the arithmetic mean of the
offered rates for deposits in Dollars for a period of such
Interest Period which appear on the Reuters Screen LIBO Page
as of 11:00 a.m., London time, on the date that is two
Working Days prior to the beginning of such Interest Period
or (b) if fewer than two offered rates appear, the rate in
respect of such Interest Period will be the rate per annum
equal to the average (rounded upwards, if necessary, to the
nearest whole multiple of one sixteenth of one percent) of
the respective rates notified to the Administrative Agent by
the Reference Banks as the rate at which such Reference Bank
is offered Dollar deposits two Working Days prior to the
beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency
and exchange operations in respect of its Eurodollar Loans
are customarily conducted at or about 10:00 a.m., New York
City time, for delivery on the first day of such Interest
Period for the number of days comprised therein and in an
amount (i) in the case of Eurodollar Loans, comparable to
the amount of the Eurodollar Loan of such Reference Bank to
be outstanding during such Interest Period and (ii) in the
case of an Index Rate Bid Loan by any Bank, equal to the
principal amount of all Index Rate Bid Loans to which such
Interest Period applies.
"Event of Default": any of the events specified in
Section 8, provided that any requirement for the giving of
notice, the lapse of time, or both, or any other condition,
event or act has been satisfied.
"Excess Amount": as defined in subsection 2.6(b).
"Exchange Rate": on any date, the rate of exchange on
that date for converting Canadian Dollars into Dollars
quoted as the offering rate for wholesale transactions by
the Canadian Administrative Agent at approximately noon
(Toronto time) on such date.
"Extension Request": each request by the Borrowers
made pursuant to subsection 2.16 for the Banks to extend
this Agreement, which shall contain the information in
respect of such extension specified in Exhibit I and shall
be delivered to the Administrative Agent in writing.
"Fixed Charges": for any particular period for the
Capital Corporation and its consolidated Subsidiaries, all
of the Capital Corporation's and its consolidated
Subsidiaries' consolidated interest on indebtedness for
borrowed money, amortization of discounts of indebtedness
for borrowed money, the portion of rentals under financing
leases deemed to represent interest and rentals under
operating leases, provided that such amounts for a fiscal
quarter of the Capital Corporation and its consolidated
Subsidiaries (including the last quarter of a fiscal year of
the Capital Corporation and its consolidated Subsidiaries)
shall be determined by reference to the publicly available
consolidated statement of income of the Capital Corporation
and its consolidated Subsidiaries for or covering such
fiscal quarter and after such adjustments, if any, as may be
required so that such amounts are determined in accordance
with GAAP.
"Foreign Taxes": as defined in subsection 2.17(a).
"GAAP": generally accepted accounting principles in
the United States of America as applied in the preparation
of financial statements of the Company or the Capital
Corporation, respectively, as of the fiscal year ended
October 31, 1994.
"Governmental Authority": any nation or government,
any state or other political subdivision thereof, and any
entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Important Property": (a) any manufacturing plant,
including land, all buildings and other improvements
thereon, and all manufacturing machinery and equipment
located therein, owned and used by the Company or a
Restricted Subsidiary primarily for the manufacture of
products to be sold by the Company or such Restricted
Subsidiary, (b) the executive office and administrative
building of the Company in Moline, Illinois, and (c)
research and development facilities, including land and
buildings and other improvements thereon and research and
development machinery and equipment located therein, in each
case, owned and used by the Company or a Restricted
Subsidiary; except in any case property of which the
aggregate fair value as determined by the Board of Directors
of the Company does not at the time exceed 1% of
Consolidated Net Worth, as shown on the audited consolidated
balance sheet contained in the latest annual report to
stockholders of the Company.
"Index Rate Bid Loan": any Bid Loan made at an
interest rate based upon the Applicable Index Rate.
"Index Rate Bid Loan Request": any Bid Loan Request
requesting the Banks to offer to make Index Rate Bid Loans
at an interest rate equal to the Applicable Index Rate plus
(or minus) a margin.
"Interest Payment Date": (a) as to any ABR Loan, the
last Business Day of each March, June, September and
December, commencing on the first of such days to occur
after such ABR Loan is made or a C/D Rate Loan or a
Eurodollar Loan is converted to an ABR Loan and (b) as to
any Eurodollar Loan or C/D Rate Loan, the last day of each
Interest Period applicable thereto, provided that as to any
Eurodollar Loan in respect of which a Borrower has selected
an Interest Period of six months and any C/D Rate Loan in
respect of which a Borrower has selected an Interest Period
of 180 days, interest shall also be paid on the day which is
three months or 90 days, as the case may be, after the
beginning of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar
Loan, the period commencing on the Borrowing Date, the date
any ABR Loan or C/D Rate Loan is converted to a Eurodollar
Loan or the date any Eurodollar Loan is continued as a
Eurodollar Loan, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by a Borrower in its notice of
borrowing, conversion or continuance as provided in
subsection 2.1(c) or 2.9;
(b) with respect to any C/D Rate Loan, the period
commencing on the Borrowing Date, the date any ABR Loan or
Eurodollar Loan is converted to a C/D Rate Loan or the date
any C/D Rate Loan is continued as a C/D Rate Loan, as the
case may be, with respect to such C/D Rate Loan and ending
30, 60, 90 or 180 days thereafter, as selected by a Borrower
in its notice of borrowing, conversion or continuance as
provided in subsection 2.1(c) or 2.9;
(c) with respect to any Bid Loan, the period commencing
on the Borrowing Date with respect to such Bid Loan and
ending on the date not less than seven days nor more than
six months thereafter, as specified by a Borrower in its Bid
Loan Request as provided in subsection 2.2(b); and
(d) with respect to any Negotiated Rate Loan, the
period or periods commencing on the Borrowing Date with
respect to such Negotiated Rate Loan or the last day of any
Interest Period with respect thereto and ending on the dates
as shall be mutually agreed upon between the relevant
Borrower and the relevant Bank;
provided, that all of the foregoing provisions relating to
Interest Periods are subject to the following:
(i) if any Interest Period pertaining to a
Eurodollar Loan or an Index Rate Bid Loan would
otherwise end on a day which is not a Working Day, that
Interest Period shall be extended to the next
succeeding Working Day unless the result of such
extension would be to carry such Interest Period into
another calendar month in which event such Interest
Period shall end on the immediately preceding Working
Day;
(ii) if any Interest Period pertaining to a
Negotiated Rate Loan, a C/D Rate Loan or an Absolute
Rate Bid Loan would otherwise end on a day which is not
a Business Day, that Interest Period shall be extended
to the next succeeding Business Day;
(iii) any Interest Period pertaining to a
Eurodollar Loan having an Interest Period of one, two,
three or six months or an Index Rate Bid Loan having an
Interest Period of one, two, three, four, five or six
months, that begins on the last Working Day of a
calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Working Day of a calendar month;
(iv) Interest Periods shall be deemed
available
only if the Required Banks shall not have advised the
Administrative Agent that the C/D Rate or the
Eurodollar Rate, as the case may be, determined by the
Administrative Agent on the basis of the applicable
quotes will not adequately and fairly reflect the cost
to such Banks of maintaining or funding their Committed
Rate Loans bearing interest based on the C/D Rate or
the Eurodollar Rate, as the case may be, determined for
such Interest Period. The Administrative Agent shall
notify the Borrowers and each Bank promptly after
having been advised by the Required Banks that a C/D
Rate or Eurodollar Rate will not so adequately and
fairly reflect such Banks' costs as aforesaid. If a
requested Interest Period shall be unavailable in
accordance with the foregoing sentence, the proposed
Borrower may (A) in accordance with the provisions
(including any requirements for notification) of
subsection 2.1 request, at its option, that the
requested Committed Rate Loans be made or maintained as
C/D Rate Loans, if applicable, or ABR Loans or (B)
withdraw the request for such Committed Rate Loans for
which the Interest Period was unavailable by giving
notice of such election to the Administrative Agent in
accordance with subsection 2.11; provided, that if the
Administrative Agent does not receive any notice
hereunder, such Borrower shall be deemed to have
requested ABR Loans;
(v) with respect to Loans made by an Objecting
Bank, no Interest Periods with respect to such Loans
shall end after such Objecting Bank's Commitment
Expiration Date; and
(vi) no Interest Period shall end after the
Termination Date.
"Linked Agreement": the U.S.$612,500,000 Loan
Agreement, dated as of April 5, 1995, among John Deere
Limited, John Deere Finance Limited, certain Canadian
chartered banks and The Toronto-Dominion Bank, as agent, as
amended, supplemented or otherwise modified from time to
time in accordance with the terms thereof.
"Linked Lender": each "Lender" (as defined in the
Linked Agreement) under the Linked Agreement.
"Linked Loans": the "Loans" (as defined in the Linked
Agreement) under the Linked Agreement.
"Loan Account": as defined in subsection 2.3;
collectively, the "Loan Accounts".
"Loan Assignees": as defined in subsection 10.5(c).
"Loan Assignment": a Loan Assignment, substantially in
the form of Exhibit E.
"Loans": the collective reference to the Committed
Rate Loans, the Bid Loans and the Negotiated Rate Loans.
"Majority Banks": at any particular time, Banks having
Commitment Percentages aggregating more than fifty percent;
provided, that at any time after the termination of all the
Commitments, "Majority Banks" shall mean Banks holding Loans
aggregating more than fifty percent in principal amount of
all outstanding Loans.
"Managing Agents: as defined in the preamble hereto.
"Margin Stock": as defined in Regulation U of the
Board of Governors of the Federal Reserve System.
"Mortgage": as defined in subsection 6.2.
"Negotiated Rate Loan": each Loan made to a Borrower
by a Bank pursuant to a Negotiated Rate Loan Request in such
principal amount, for such number of Interest Periods
(subject to the proviso to the definition of "Interest
Period" in this subsection 1.1) and having such interest
rate(s) and repayment terms as shall, in each case, be
mutually agreed upon between such Borrower and such Bank.
"Negotiated Rate Loan Request": each request by a
Borrower for a Bank to make Negotiated Rate Loans, which
shall be delivered to such Bank in writing, by facsimile
transmission, or by telephone, immediately confirmed in
writing, and which shall specify the amount to be borrowed
and the proposed Borrowing Date.
"Net Earnings Available for Fixed Charges": for any
particular period for the Capital Corporation and its
consolidated Subsidiaries, consolidated net earnings of the
Capital Corporation and such Subsidiaries for such period
without deduction of Fixed Charges and without deduction of
federal, state or other income taxes, provided that such net
earnings for a fiscal quarter of the Capital Corporation and
its consolidated Subsidiaries (including the last quarter of
a fiscal year of the Capital Corporation and its
consolidated Subsidiaries) shall be determined by reference
to the publicly available statement of income of the Capital
Corporation and its consolidated Subsidiaries for or
covering such fiscal quarter and after such adjustments, if
any, as may be required so that such net earnings are
determined in accordance with GAAP, except that earned
investment tax credits may be included as revenue in the
consolidated income statement of the Capital Corporation and
its consolidated Subsidiaries, rather than as an offset
against the provision for income taxes.
"Objecting Banks": as defined in subsection 2.16(a).
"Participants": as defined in subsection 10.5(b).
"Person": an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other
entity of whatever nature, provided that for purposes of
Section 8(h), Person shall also include two or more entities
acting as a syndicate or any other group for the purpose of
acquiring, holding or disposing of securities of the
Company.
"Plan": any pension plan which is covered by Title IV
of ERISA and in respect of which either Borrower or a
Commonly Controlled Entity is an "employer" as defined in
Section 3(5) of ERISA.
"Purchasing Banks": as defined in subsection 10.5(d).
"Reference Banks": Chemical, The Chase Manhattan Bank
(National Association) and Bank of America National Trust
and Savings Association.
"Register": as defined in subsection 10.5(e).
"Report Period": as defined in subsection 2.18.
"Reportable Event": any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder.
"Required Banks": at a particular time, Banks having
Commitment Percentages aggregating at least 66-2/3%;
provided, that (a) at any time after the termination of all
the Commitments, "Required Banks" means Banks holding Loans
aggregating at least 66-2/3% in principal amount of all
outstanding Loans and (b) as used in subsection 2.16,
"Required Banks" means with respect to any Extension
Request, at a particular time after the Termination Date has
been extended pursuant to such subsection, Banks (i) which
are not Objecting Banks with respect to any previous
Extension Request and (ii) which have Commitment Percentages
aggregating at least 66-2/3% of the aggregate Commitment
Percentages of such non-Objecting Banks.
"Requirement of Law": as to any Person, the
Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person, and
any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any
of its property or to which such Person or any of its
property is subject.
"Reserve Percentage": for any day during the Interest
Period for a C/D Rate Loan, that percentage (expressed as a
decimal) which is in effect on the first day of such
Interest Period, as prescribed by the Board of Governors of
the Federal Reserve System (or any successor), for
determining the maximum reserve requirement for a member
bank of the Federal Reserve System in New York City with
deposits exceeding one billion Dollars in respect of new
non-personal time deposits in Dollars in New York City
having a maturity comparable to the Interest Period for the
relevant C/D Rate Loans and in an amount of $100,000 or
more.
"Reserves": as defined in subsection 2.13(c).
"Responsible Officer": of a Borrower, the Chairman,
the President, any Executive, Senior or other Vice
President, the Treasurer and any Assistant Treasurer of such
Borrower.
"Restricted Margin Stock": any Margin Stock, the sale,
pledge or other disposition of which by the Company or any
of its Subsidiaries is in any way restricted by an
arrangement with any Bank or any affiliate thereof to the
extent that the value thereof (determined in accordance with
Regulation U of the Board of Governors of the Federal
Reserve System) does not exceed 25% of the value (determined
in accordance with such Regulation U) of all the assets
subject to such restriction.
"Restricted Subsidiary": any Subsidiary of the Company
incorporated in the United States of America or Canada (a)
which is engaged in, or whose principal assets consist of
property used by the Company or any Restricted Subsidiary
in, the manufacture of products within the United States of
America or Canada or in the sale of products principally to
customers located in the United States of America or Canada
except any corporation which is a retail dealer in which the
Company has, directly or indirectly, an investment, or (b)
which the Company shall designate as a Restricted Subsidiary
in an officers' certificate signed by two Responsible
Officers of the Company and delivered to the Administrative
Agent.
"Sale and Lease-back Transaction": as defined in
subsection 6.3.
"Significant Subsidiary": of a Borrower, any
Subsidiary of such Borrower the assets, revenues or net
worth of which is, at the time of determination, equal to or
greater than ten percent of the assets, revenues or net
worth, respectively, of such Borrower at such time.
"Subsidiary": of a Person, a corporation or other
entity of which securities or other ownership interests
having ordinary voting power (other than securities or other
ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the
board of directors or other Persons performing similar
functions are at the time directly or indirectly owned by
such Person or one or more Subsidiaries of such Person, or
by such Person and one or more Subsidiaries of such Person.
"Syndication Agent": as defined in the preamble
hereto.
"Termination Date": April 4, 2000 or such later date
as shall be determined pursuant to the provisions of
subsection 2.16 with respect to non-Objecting Banks.
"Tranche A Bank": each Bank listed in Part A of
Schedule II; collectively, the "Tranche A Banks".
"Tranche B Bank": each Bank listed in Part B of
Schedule II; collectively, the "Tranche B Banks".
"Transferees": as defined in subsection 10.5(g).
"Transfer Effective Date": as defined in each
Commitment Transfer Supplement and each Loan Assignment.
"Type": as to any Committed Rate Loan, its nature as
an ABR Loan, Eurodollar Loan or C/D Rate Loan.
"Utilized Percentage": as to any Bank at any time, the
ratio (expressed as a percentage) of (a) the Committed
Global Exposure of such Bank to (b) the amount of such
Bank's Commitment.
"Working Day": any Business Day on which dealings in
foreign currencies and exchange between banks may be carried
on in London, England and New York, New York.
1.2 Other Definitional Provisions. (a) All terms
defined in this Agreement shall have the defined meanings when
used in any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any certificate or other
document made or delivered pursuant hereto, accounting terms
relating to either Borrower and its Subsidiaries not defined in
subsection 1.1, and accounting terms partly defined in subsection
1.1 to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision
of this Agreement, and Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(d) Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the relevant Borrower.
SECTION 2. THE COMMITTED RATE LOANS; THE BID
LOANS; THE NEGOTIATED RATE LOANS;
AMOUNT AND TERMS
2.1 The Committed Rate Loans. (a) During the
Commitment Period, subject to the terms and conditions hereof,
each Bank severally agrees to make loans (individually, a
"Committed Rate Loan") to either Borrower from time to time in an
aggregate principal amount for both Borrowers at any one time
outstanding not to exceed such Bank's Commitment; provided,
however, that (i) the aggregate amount of the Committed Global
Exposure of any Bank, after giving effect to any concurrent
payment and/or borrowing under this Agreement or the Linked
Agreement, shall not at any time exceed the amount of its
Commitment and (ii) the aggregate outstanding principal amount of
Loans plus the aggregate Equivalent Amount of all Linked Loans
shall not at any time exceed the aggregate amount of the
Commitments. During the Commitment Period, either Borrower may
use the Commitments by borrowing, repaying and reborrowing, all
in accordance with the terms and conditions hereof.
(b) The Committed Rate Loans may be either (i)
Eurodollar Loans, (ii) ABR Loans, (iii) C/D Rate Loans or (iv) a
combination thereof as determined by the relevant Borrower.
(c) Either Borrower may borrow Committed Rate Loans on
any Working Day, if the borrowing is of Eurodollar Loans, or on
any Business Day, if the borrowing is of C/D Rate Loans or ABR
Loans; provided, however, that a Responsible Officer of such
Borrower shall give the Administrative Agent irrevocable notice
thereof (which notice must be received by the Administrative
Agent (i) prior to 12:00 Noon, New York City time, three Working
Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, (ii) prior to 12:00 Noon, New York City time,
two Business Days prior to the requested Borrowing Date in the
case of C/D Rate Loans, (iii) except as provided in clause (iv)
hereof below, prior to 12:00 Noon, New York City time, one
Business Day prior to the requested Borrowing Date, in the case
of ABR Loans and (iv) prior to 11:00 A.M., New York City time, on
the requested Borrowing Date in the case of ABR Loans up to an
aggregate principal amount for both Borrowers not to exceed 25%
of the Commitments on such Borrowing Date). Each such notice
shall be given in writing or by facsimile transmission
substantially in the form of Exhibit A (with appropriate
insertions) or shall be given by telephone (specifying the
information set forth in Exhibit A) promptly confirmed by notice
given in writing or by facsimile transmission substantially in
the form of Exhibit A (with appropriate insertions). On the day
of receipt of any such notice from either Borrower, the
Administrative Agent shall promptly notify each Bank thereof.
Subject to paragraph (e) below, each Bank will make the amount of
its share of each borrowing available to the Administrative Agent
for the account of such Borrower at the office of the
Administrative Agent set forth in subsection 10.2 at 11:00 A.M.
(or 2:00 P.M., in the case of ABR Loans requested pursuant to
clause (iv) above), New York City time, on the Borrowing Date
requested by such Borrower in funds immediately available to the
Administrative Agent as the Administrative Agent may direct. The
proceeds of all such Committed Rate Loans will be made available
promptly to such Borrower by the Administrative Agent at the
office of the Administrative Agent specified in subsection 10.2
by crediting the account of such Borrower on the books of such
office of the Administrative Agent with the aggregate of the
amount made available to the Administrative Agent by the Banks
and in like funds as received by the Administrative Agent.
(d) All Committed Rate Loans made to each Borrower
shall be repaid in full by such Borrower on or before the
Termination Date.
2.2 The Bid Loans; the Negotiated Rate Loans. (a)
Either Borrower may borrow Bid Loans or Negotiated Rate Loans
from time to time on any Business Day (in the case of Bid Loans
made pursuant to an Absolute Rate Bid Loan Request), any Working
Day (in the case of Bid Loans made pursuant to an Index Rate Bid
Loan Request) or, in the case of Negotiated Rate Loans, on such
days as shall be mutually agreed upon between the relevant
Borrower and the applicable Bank, in each case during the
Commitment Period and in the manner set forth in this subsection
2.2 and in amounts such that the aggregate principal amount of
Loans at any time outstanding shall not exceed the aggregate
amount of the Commitments at such time. Notwithstanding any
other provision of this Agreement, the aggregate principal amount
of the outstanding Bid Loans and/or Negotiated Rate Loans made by
any Bank may at any time (but shall not be required to) exceed
the Commitment of such Bank so long as the aggregate outstanding
principal amount of all Loans plus the aggregate Equivalent
Amount of all Linked Loans does not at any time exceed the
aggregate amount of the Commitments.
(b)(i) Either Borrower shall request Bid Loans or
Negotiated Rate Loans by delivering (A) in the case of an Index
Rate Bid Loan, a Bid Loan Request to the Auction Agent, c/o
Deutsche Bank AG New York Branch, 31 West 52nd Street, New York,
New York 10019, Attention: Loan Syndications, Telephone: (212)
474-7041, Facsimile: (212) 474-7048, not later than 12:00 Noon
(New York City time) four Working Days prior to the proposed
Borrowing Date, (B) in the case of an Absolute Rate Bid Loan, a
Bid Loan Request to the Auction Agent at the address set forth in
clause (A) of this subsection 2.2(b)(i) not later than 10:00 A.M.
(New York City time) one Business Day prior to the proposed
Borrowing Date or (C) in the case of a Negotiated Rate Loan, a
Negotiated Rate Loan Request to any Bank at such time as the
applicable Borrower and the applicable Bank shall agree. Each
Bid Loan Request may solicit bids for Bid Loans in an aggregate
principal amount of $25,000,000 or an integral multiple of
$5,000,000 in excess thereof and for not more than three
alternative Interest Periods for such Bid Loans. The Auction
Agent shall promptly notify each Bid Loan Bank and the
Administrative Agent by facsimile transmission or by telephone,
immediately confirmed by facsimile transmission, of the contents
of each Bid Loan Request received by it.
(ii) In the case of an Index Rate Bid Loan
Request,
upon receipt of notice from the Auction Agent of the contents of
such Bid Loan Request, any Bid Loan Bank that elects, in its sole
discretion, to do so, shall irrevocably offer to make one or more
Bid Loans at the Applicable Index Rate plus or minus a margin for
each such Bid Loan determined by such Bid Loan Bank, in its sole
discretion. Any such irrevocable offer shall be made by
delivering a Bid Loan Offer to the Auction Agent at the address
set forth in clause (i)(A) above before 10:30 A.M. (New York City
time) three Working Days before the proposed Borrowing Date,
setting forth the maximum amount of Bid Loans for each Interest
Period, and the aggregate maximum amount for all Interest
Periods, which such Bank would be willing to make and the margin
above or below the Applicable Index Rate at which such Bid Loan
Bank is willing to make each such Bid Loan. The Auction Agent
shall advise the relevant Borrower before 11:00 A.M. (New York
City time) three Working Days before the proposed Borrowing Date
of the contents of each such Bid Loan Offer received by it. If
the Auction Agent in its capacity as a Bid Loan Bank shall, in
its sole discretion, elect to make any such offer, it shall
advise such Borrower of the contents of its Bid Loan Offer before
10:15 A.M. (New York City time) three Working Days before the
proposed Borrowing Date.
(iii) In the case of an Absolute Rate Bid Loan
Request,
upon receipt of notice from the Auction Agent of the contents of
such Bid Loan Request, any Bid Loan Bank that elects, in its sole
discretion, to do so, shall irrevocably offer to make one or more
Bid Loans at a rate or rates of interest for each such Bid Loan
determined by such Bid Loan Bank in its sole discretion. Any
such irrevocable offer shall be made by delivering a Bid Loan
Offer to the Auction Agent at the address set forth in clause
(i)(A) of this subsection 2.2(b) before 9:30 A.M. (New York City
time) on the proposed Borrowing Date, setting forth the maximum
amount of Bid Loans for each Interest Period, and the aggregate
maximum amount for all Interest Periods, which such Bid Loan Bank
would be willing to make and the rate or rates of interest at
which such Bid Loan Bank is willing to make each such Bid Loan.
The Auction Agent shall advise the relevant Borrower before 10:00
A.M. (New York City time) on the proposed Borrowing Date of the
contents of each such Bid Loan Offer received by it. If the
Auction Agent in its capacity as a Bid Loan Bank shall, in its
sole discretion, elect to make any such offer, it shall advise
such Borrower of the contents of its Bid Loan Offer before 9:15
A.M. (New York City time) on the proposed Borrowing Date.
(iv) The relevant Borrower shall before 11:30 A.M.
(New
York City time) three Working Days before the proposed Borrowing
Date (in the case of Bid Loans requested by an Index Rate Bid
Loan Request) and before 10:30 A.M. (New York City time) on the
proposed Borrowing Date (in the case of Bid Loans requested by an
Absolute Rate Bid Loan Request) either, in its absolute
discretion:
(A) cancel such Bid Loan Request by giving the Auction
Agent telephone notice to that effect, or
(B) accept one or more of the offers made by any Bid
Loan Bank or Bid Loan Banks pursuant to clause (ii) or
clause (iii) of this subsection 2.2(b), as the case may be,
by giving telephone notice to the Auction Agent (immediately
confirmed by delivery to the Auction Agent at the address
set forth in clause (i)(A) of this subsection 2.2(b) of a
Bid Loan Confirmation) of the amount of Bid Loans for each
relevant Interest Period to be made by each Bid Loan Bank
(which amount shall be equal to or less than the maximum
amount for such Interest Period specified in the Bid Loan
Offer of such Bid Loan Bank, and for all Interest Periods
included in such Bid Loan Offer shall be equal to or less
than the aggregate maximum amount specified in such Bid Loan
Offer for all such Interest Periods) and reject any
remaining offers made by Bid Loan Banks pursuant to clause
(ii) or clause (iii) above, as the case may be; provided,
however, that (x) such Borrower may not accept offers for
Bid Loans for any Interest Period in an aggregate principal
amount in excess of the maximum principal amount requested
for such Interest Period in the related Bid Loan Request,
(y) if such Borrower accepts any such offers, it must accept
offers strictly based upon pricing for such relevant
Interest Period and upon no other criteria whatsoever and
(z) if two or more Bid Loan Banks submit offers for any
Interest Period at identical pricing and such Borrower
accepts any of such offers but does not wish to borrow the
total amount offered by such Bid Loan Banks with such
identical pricing, such Borrower shall accept offers from
all of such Bid Loan Banks in amounts allocated among them
pro rata according to the amounts offered by such Bid Loan
Banks (or as nearly pro rata as shall be practicable, after
giving effect to the requirement that Bid Loans made by a
Bid Loan Bank on a Borrowing Date for each relevant Interest
Period shall be in a principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, it being
agreed that to the extent that it is not possible to make
allocations in accordance with the provisions of this clause
(z) such allocations shall be made in accordance with the
instructions of such Borrower, it being understood that in
no event shall any Bank be obligated to make any Bid Loan in
a principal amount less than $5,000,000).
(v) If such Borrower notifies the Auction Agent that a
Bid Loan Request is cancelled pursuant to clause (iv)(A) of this
subsection 2.2(b), the Auction Agent shall give prompt telephone
notice thereof to the Bid Loan Banks and the Administrative
Agent, and the Bid Loans requested thereby shall not be made.
(vi) (A) If such Borrower accepts pursuant to
clause
(iv)(B) of this subsection 2.2(b) one or more of the offers made
by any Bid Loan Bank or Bid Loan Banks pursuant to a Bid Loan
Request, the Auction Agent shall promptly notify by telephone the
Administrative Agent and each Bid Loan Bank which has made such
an offer of the aggregate amount of such Bid Loans to be made on
such Borrowing Date for each Interest Period and of the
acceptance or rejection of any offers to make such Bid Loans made
by such Bid Loan Bank. Each Bid Loan Bank which is to make a Bid
Loan pursuant to a Bid Loan Request shall, before 12:00 Noon (New
York City time) on the Borrowing Date specified in the Bid Loan
Request applicable thereto, make available to the Administrative
Agent at its office set forth in subsection 10.2 the amount of
Bid Loans to be made by such Bid Loan Bank, in immediately
available funds. The Administrative Agent will make such funds
available to such Borrower as soon as practicable on such date at
the Administrative Agent's aforesaid address.
(B) If such Borrower and any Bank agree to the terms
of a Negotiated Rate Loan to be made on a Borrowing Date
pursuant to a Negotiated Rate Loan Request, such Borrower
and such Bank shall promptly notify by telephone the
Administrative Agent of the aggregate amount of Negotiated
Rate Loans to be made on such Borrowing Date and the
respective Interest Periods therefor. Each Bank which is to
make a Negotiated Rate Loan shall, at such time, on such
Borrowing Date and at such location as shall be mutually
agreed upon between such Borrower and such Bank, make avail-
able to such Borrower the amount of Negotiated Rate Loans to
be made by such Bank, in immediately available funds.
(C) As soon as practicable after each Borrowing Date
for Bid Loans and Negotiated Rate Loans, the Administrative
Agent shall notify each Bank of the aggregate amount of Bid
Loans or Negotiated Rate Loans advanced pursuant to a Bid
Loan Request or Negotiated Rate Loan Request on such
Borrowing Date and the respective Interest Periods therefor.
(c) Within the limits and on the conditions set forth
in this subsection 2.2, each Borrower may from time to time
borrow under this subsection 2.2, repay pursuant to paragraph (d)
below, and reborrow under this subsection 2.2.
(d) Each Borrower shall repay to the Administrative
Agent for the account of each Bid Loan Bank (or the Loan Assignee
in respect thereof, as the case may be) which has made a Bid Loan
to such Borrower on the last day of the Interest Period for each
Bid Loan (such Interest Period being that specified by such
Borrower for repayment of such Bid Loan in the related Bid Loan
Request) the then unpaid principal amount of such Bid Loan. Each
Borrower shall repay to each Bank which has made a Negotiated
Rate Loan to such Borrower (or the Loan Assignee in respect
thereof, as the case may be) the principal thereof as agreed by
such Borrower and such Bank.
(e) Each Borrower shall pay interest on the unpaid
principal amount of each Bid Loan and each Negotiated Rate Loan
borrowed by such Borrower from the applicable Borrowing Date to
the stated maturity date thereof, in the case of a Bid Loan, at
the rate of interest determined pursuant to paragraph (b) of this
subsection 2.2, and, in the case of a Negotiated Rate Loan, as
agreed by such Borrower and the relevant Bank (calculated on the
basis of a 360 day year for actual days elapsed), payable on the
interest payment date or dates (i) specified by such Borrower for
such Bid Loan in the related Bid Loan Request and (ii) mutually
agreed upon between such Borrower and such Bank in the case of
Negotiated Rate Loans, provided that as to any Bid Loan in
respect of which the stated maturity date is more than three
months after such Borrowing Date, interest shall also be paid on
the day which occurs three months after such Borrowing Date. If
all or a portion of the principal amount of any Bid Loan shall
not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue principal amount shall,
without limiting any rights of any Bank under this Agreement,
bear interest from the date on which such payment was due at a
rate per annum which is 1% above the rate which would otherwise
be applicable to such Bid Loan until the scheduled maturity date
with respect thereto and for each day thereafter at a rate per
annum which is 1% above the ABR until paid in full (as well after
as before judgment). If all or any portion of the principal
amount of any Negotiated Rate Loan shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise),
such overdue principal amount shall, without limiting any rights
of any Bank under this Agreement, bear interest from the date on
which such payment was due at a rate per annum as shall be
mutually agreed upon between the relevant Borrower and the
relevant Bank.
(f) After the first Bid Loan Request has been given
hereunder, no Bid Loan Request or Negotiated Rate Loan Request
shall be given until at least one Business Day, in the case of an
Absolute Rate Bid Loan Request, or one Working Day, in the case
of an Index Rate Bid Loan Request, after the earliest to occur of
(i) the Borrowing Dates with respect to all prior Bid Loan
Requests made pursuant to subsection 2.2(b)(i), (ii) the date on
which all Bid Loan Banks have failed to submit Bid Loan Offers
with respect to any Bid Loan Requests within the time specified
in subsection 2.2(b)(ii) or (iii), as the case may be, and (iii)
the date on which the relevant Borrower has cancelled all prior
Bid Loan Requests pursuant to subsection 2.2(b)(iv).
2.3 Loan Accounts. Each Bank, with respect to its
Committed Rate Loans, Bid Loans and Negotiated Rate Loans, and
the Administrative Agent, with respect to all Committed Rate
Loans and Bid Loans, shall open and maintain in the name of each
Borrower loan accounts (as to each Bank, its "Loan Account"
applicable to such Borrower) on its books and records setting
forth the amounts of principal, interest and other sums paid and
payable by such Borrower from time to time hereunder in respect
of such Loans, and the obligation of such Borrower to pay or
repay, as the case may be, such amounts to such Bank shall be
evidenced by such Bank's Loan Account. In case of any dispute,
action or proceeding relating to any Committed Rate Loan, Bid
Loan or Negotiated Rate Loan, the entries in such records shall
constitute prima facie evidence of the accuracy of the
information set forth therein. In case of discrepancy between
the entries in the Administrative Agent's books and records and
any Bank's, the entries in the Administrative Agent's books and
records shall constitute prima facie evidence of the accuracy of
the information set forth therein.
2.4 Fees. (a) The Company and the Capital
Corporation jointly and severally agree to pay to the
Administrative Agent for the account of each Bank a facility fee
from and including the Closing Date to and including the last day
of the Commitment Period, computed at a rate of .095% per annum
on the average daily amount of the Commitment of such Bank in
effect during the period for which payment is made, payable
quarterly in arrears on the first Business Day of each January,
April, July and October of each year and on the Termination Date
or such earlier date as the Commitments shall terminate as
provided herein, commencing in July, 1995; provided that, for
each quarter, any facility fee payable hereunder to a Tranche B
Bank shall be reduced (but not below zero) by an amount equal to
the Equivalent Amount of 38% of any stamping fees previously paid
to such Tranche B Bank's Affiliated Linked Lender pursuant to
subsection 6.1(b) of the Linked Agreement and not theretofore
applied to reduce such facility fee.
(b) The Company and the Capital Corporation jointly
and severally agree to pay to the Administrative Agent for its
own account all fees set forth in the letter agreement dated
February 22, 1995 from the Administrative Agent to the Borrowers.
(c) The Company and the Capital Corporation jointly
and severally agree to pay to the Syndication Agent for its own
account all fees set forth in the letter agreement dated March
10, 1995 from the Syndication Agent to the Borrowers.
(d) The Company and the Capital Corporation jointly
and severally agree to pay to the Documentation Agent for its own
account all fees set forth in the letter agreement dated
March 13, 1995 from the Documentation Agent to the Borrowers.
(e) The Company and the Capital Corporation jointly
and severally agree to pay to the Auction Agent for its own
account all fees set forth in the letter agreement dated March 8,
1995 from the Auction Agent to the Borrowers.
(f) The Company and the Capital Corporation jointly
and severally agree to pay to the Canadian Administrative Agent
for its own account all fees set forth in the letter agreement
dated March 8, 1995 from the Canadian Administrative Agent to the
Borrowers.
2.5 Termination or Reduction of Commitments;
Cancellation of Capital Corporation as Borrower. (a) The
Borrowers, acting jointly, shall have the right, upon not less
than five Business Days' notice to the Administrative Agent, to
terminate the Commitments or, from time to time, reduce the
amount of the Commitments, provided that (i) any such reduction
shall be accompanied by prepayment of Committed Rate Loans
hereunder and/or Committed Linked Loans under the Linked
Agreement, together with accrued interest on the amount so
prepaid to the date of such prepayment, to the extent, if any,
that the aggregate outstanding principal amount of all Loans plus
the aggregate Equivalent Amount of all Linked Loans exceeds the
amount of the Commitments as then reduced, (ii) any such
reduction shall be accompanied by a reduction of the
"Commitments" of the Linked Lenders under the Linked Agreement to
the extent required to cause such "Commitments" not to exceed the
Commitments of the Tranche B Banks hereunder and (iii) any such
termination of the Commitments shall be accompanied by
termination of the "Commitments" of the Linked Lenders under the
Linked Agreement and prepayment in full of the Loans then
outstanding hereunder in accordance with subsection 2.6, and any
termination of a Bank's Commitment pursuant to subsection 2.13,
2.16 or 2.17 shall, with respect to each affected Loan, on the
last day of the applicable Interest Period therefor or, if
earlier, on such earlier date as shall be notified by the
Borrowers, be accompanied by prepayment in full of such Loan,
together with, in each case, accrued interest thereon to the date
of such prepayment, the payment of any unpaid facility fee then
accrued hereunder, and the payment of any amounts then payable
pursuant to subsections 2.13, 2.14, 2.15 and 2.17. Upon receipt
of such notice from the Borrowers the Administrative Agent shall
promptly notify each Bank thereof. Any reduction of the
Commitments pursuant to this subsection 2.5 shall be in an amount
not less than $25,000,000, and shall be an amount which is a
whole multiple of $5,000,000, and shall reduce permanently the
amount of the Commitments then in effect.
(b) Sections 4.3 and 5.4 and subsection 15.15(b) of
the Linked Agreement permit, under the circumstances therein
contemplated, the termination of the "Commitment" under the
Linked Agreement of a Tranche B Bank's Affiliated Linked Lender.
The Borrowers, acting jointly, may, upon giving at least three
Business Days' prior notice to the Administrative Agent, cancel
the Commitment hereunder of a Tranche B Bank upon such
termination of the "Commitment" under the Linked Agreement of
such Tranche B Bank's Affiliated Linked Lender. Any such
cancellation shall be accompanied by prepayment of the Committed
Rate Loans made hereunder by the relevant Tranche B Bank in
accordance with subsection 2.6, together with accrued interest on
the amount so prepaid to the date of such prepayment.
(c) The Company may cancel the ability of the Capital
Corporation to borrow hereunder upon not less than five Business
Days' notice to the Administrative Agent. Upon receipt of such
notice from the Company the Administrative Agent shall promptly
notify each Bank thereof. On the first day following receipt of
such notice, on which all Loans to the Capital Corporation and
all interest thereon shall have been paid in full, and
notwithstanding any other provision of this Agreement, (i) the
Capital Corporation shall cease to be a party hereto or to have
any right or obligation hereunder, (ii) rights and obligations
expressed herein to be, in effect, of either the Company or the
Capital Corporation or of both of them, but not any such rights
and obligations expressed herein to be of the Capital Corporation
only, shall be deemed to be rights and obligations of the Company
only and (iii) the Banks shall cease to have any right or
obligation hereunder which depends or is contingent upon any
action, condition or performance, or the absence thereof, whether
past or present, of the Capital Corporation other than any
action, condition or performance, or the absence thereof, of the
Capital Corporation in its capacity as a Subsidiary, Significant
Subsidiary or Restricted Subsidiary hereunder; provided, however,
that the obligation of the Capital Corporation to make any
payment pursuant to subsection 2.13, 2.14, 2.15 or 2.17 which
arises prior to the cancellation of the ability of the Capital
Corporation to borrow hereunder shall survive the cancellation of
the ability of the Capital Corporation to borrow hereunder.
2.6 Optional and Mandatory Prepayments. (a) Either
Borrower may at any time and from time to time prepay its
Committed Rate Loans in whole or in part, without premium or
penalty, but subject to the provisions of subsection 2.14, upon
at least three Working Days' irrevocable notice, in the case of
Eurodollar Loans, two Business Days' irrevocable notice in the
case of C/D Rate Loans, or one Business Day's irrevocable notice
in the case of ABR Loans, in each case to the Administrative
Agent, specifying the date and amount of prepayment and whether
the prepayment is of its Eurodollar Loans, ABR Loans, C/D Rate
Loans, or a combination thereof, and if of a combination thereof
the amount of prepayment allocable to each. Upon receipt of such
notice the Administrative Agent shall promptly notify each Bank
thereof. If such notice is given, the Borrower delivering such
notice shall make such prepayment, and the payment of the amount
specified in such notice shall be due and payable, on the date
specified therein, together with accrued interest to such date on
the amount prepaid and any amounts payable pursuant to
subsections 2.14 and 2.15. Except as provided in the immediately
following sentence, partial prepayments shall be in an aggregate
principal amount of $5,000,000, or a whole multiple thereof;
provided, however, that after giving effect thereto, the
aggregate principal amount of all Committed Rate Loans made on
the same Borrowing Date shall not be less than $25,000,000.
Anything contained in this subsection 2.6 to the contrary
notwithstanding, partial prepayments of a Cancelled Bank's Loans
in connection with the termination under subsection 2.13(a), (b)
or (c), 2.16(c) or 2.17(b) of such Cancelled Bank's Commitment
(in whole or in part) shall be in an amount equal to the
principal amount of the Loans of such Bank being prepaid,
notwithstanding the amount thereof, and shall be permitted
notwithstanding the provisions of the foregoing proviso. Either
Borrower may prepay Negotiated Rate Loans or Bid Loans on such
terms as shall be mutually agreed upon between the relevant
Borrower and the relevant Bank.
(b) On the last Business Day of each March, June,
September and December, the Canadian Administrative Agent will
determine the Equivalent Amount of outstanding Linked Loans and
notify the Borrowers and the Administrative Agent of such amount.
If on the last day of any March, June, September and December the
aggregate (i) amount of outstanding Loans of the Tranche B Banks
and (ii) Equivalent Amount of outstanding "Loans" under the
Linked Agreement, exceeds the Commitments of the Tranche B Banks
(the "Excess Amount"), the Borrowers shall as soon as possible
but, in any event, within 30 days of the giving of such notice or
such longer period of time as may be required in order that
Eurodollar Loans or C/D Rate Loans be paid on the last day of an
Interest Period, prepay Committed Rate Loans of the Tranche B
Banks hereunder to the extent of the Excess Amount.
Notwithstanding the preceding sentence, the Borrowers shall be
relieved of their obligation to make payment hereunder to the
extent that John Deere Limited or John Deere Finance Limited have
made a payment or prepayment of Linked Loans in accordance with
the Linked Agreement which has the effect of reducing the Excess
Amount.
2.7 Minimum Amount of Certain Loans. All borrowings,
conversions, continuations, payments and, except as set forth in
the penultimate sentence of subsection 2.6(a), prepayments in
respect of Committed Rate Loans shall be in such amounts and be
made pursuant to such elections that, after giving effect
thereto, (a) the aggregate principal amount of Committed Rate
Loans made on any Borrowing Date shall not be less than
$25,000,000 or a whole multiple of $5,000,000 in excess thereof
and (b) the aggregate principal amount of Committed Rate Loans of
any Type with the same Interest Period shall not be less than
$10,000,000 or a whole multiple of $1,000,000 in excess thereof.
2.8 Committed Rate Loan Interest Rate and Payment
Dates. (a) The Eurodollar Loans shall bear interest for the
period from the date thereof until the stated maturity thereof on
the unpaid principal amount thereof at a rate per annum equal to
the Eurodollar Rate determined for the Interest Period therefor
plus the Applicable Margin.
(b) The ABR Loans shall bear interest for each day
during the period from the date thereof until the payment in full
thereof on the unpaid principal amount thereof at a fluctuating
rate per annum equal to the ABR for such day plus the Applicable
Margin.
(c) The C/D Rate Loans shall bear interest for the
period from the date thereof until the stated maturity thereof on
the unpaid principal amount thereof at a rate per annum equal to
the C/D Rate determined for the Interest Period therefor plus the
Applicable Margin.
(d) If all or a portion of the principal amount of any
of the Committed Rate Loans shall not be paid when due (whether
at the stated maturity, by acceleration or otherwise) such
overdue principal amount of such Committed Rate Loan (i) shall
bear interest at a rate per annum which is 1% above the rate
which would otherwise be applicable pursuant to subsection
2.8(a), (b) or (c), as the case may be, from the date when such
principal amount is due until the date on which such amount is
paid in full and (ii) shall, if such Committed Rate Loan is a
Eurodollar Loan or C/D Rate Loan, be converted to an ABR Loan at
the end of the Interest Period applicable thereto.
(e) Interest shall be payable in arrears on each
Interest Payment Date.
2.9 Conversion and Continuation Options. (a) The
relevant Borrower may elect from time to time to convert
Committed Rate Loans of one Type into Committed Rate Loans of
another Type by giving to the Administrative Agent irrevocable
notice of such conversion by the earliest time that they would
have been required to give notice under subsection 2.1(c) if they
had been borrowing Committed Rate Loans of each such Type on the
conversion date specified in such notice, provided that any such
conversion of Eurodollar Loans or C/D Rate Loans may only be made
on the last day of an Interest Period with respect thereto. Any
such notice of conversion to Eurodollar Loans or C/D Rate Loans
shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Bank thereof. If
the last day of the then current Interest Period with respect to
C/D Rate Loans that are to be converted to Eurodollar Loans is
not a Working Day, such conversion shall be made on the next
succeeding Working Day, and during the period from such last day
to such succeeding Working Day such Loans shall bear interest as
if they were ABR Loans. All or any part of outstanding
Eurodollar Loans, ABR Loans and C/D Rate Loans may be converted
as provided herein, provided that no Loan may be converted into a
Eurodollar Loan or a C/D Rate Loan after the date that is one
month or 30 days, respectively, prior to (i) in the case of a
Loan made by an Objecting Bank, such Objecting Bank's Commitment
Expiration Date, and (ii) in the case of all Loans, the
Termination Date.
(b) Any Eurodollar Loans or C/D Rate Loans may be
continued as such upon the expiration of the then current
Interest Period with respect thereto by the relevant Borrower
giving notice to the Administrative Agent, such notice to be
given by the time it would have been required to give notice
under subsection 2.1(c) if it had been borrowing Eurodollar Loans
or C/D Rate Loans, as the case may be, on the last day of the
then expiring Interest Period therefor, of the length of the next
Interest Period to be applicable to such Loans, provided that no
Eurodollar Loan or C/D Rate Loan may be continued as such after
the date that is one month or 30 days, respectively, prior to (i)
in the case of a Loan made by an Objecting Bank, such Objecting
Bank's Commitment Expiration Date, and (ii) in the case of all
Loans, the Termination Date. Upon receipt of any such notice,
the Administrative Agent shall promptly notify each Bank thereof.
2.10 Computation of Interest and Fees. (a) Facility
fees and interest in respect of ABR Loans based upon clause (a)
of the definition of ABR shall be calculated on the basis of a
365 (or 366 as the case may be) day year for the actual days
elapsed (including the first day and excluding the last day).
Interest in respect of Eurodollar Loans, C/D Rate Loans, Bid
Loans and ABR Loans based upon clause (b) of the definition of
ABR shall be calculated on the basis of a 360 day year for the
actual days elapsed (including the first day and excluding the
last day). The Administrative Agent shall promptly notify the
Borrowers and the Banks of each determination of a Eurodollar
Rate and of a C/D Rate. Any change in the interest rate on a
Committed Rate Loan resulting from a change in the ABR shall
become effective as of the opening of business on the day on
which such change in the ABR shall become effective. The
Administrative Agent shall promptly notify the Borrowers and the
Banks of the effective date and the amount of each such change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement
shall be conclusive and binding on the Borrowers and the Banks in
the absence of manifest error. The Administrative Agent shall,
at the request of a Borrower, deliver to such Borrower a
statement showing the quotations given by the Reference Banks and
the computations used by the Administrative Agent in determining
any interest rate.
(c) If any Reference Bank's Commitment shall terminate
(otherwise than on termination of all the Commitments) or, as the
case may be, its Loans are assigned, prepaid or repaid for any
reason whatsoever, such Reference Bank shall thereupon cease to
be a Reference Bank, and the Administrative Agent (after
consultation with the Banks and with the consent of the
Borrowers) shall, by notice to the Borrowers and the Banks,
designate a sufficient number of other Banks as Reference Banks
so that there shall at all times be at least three Reference
Banks.
(d) Each Reference Bank shall use its best efforts to
furnish quotations of rates to the Administrative Agent as
contemplated hereby. If any of the Reference Banks shall be
unable or otherwise fails to supply such rates to the
Administrative Agent upon its request, the rate of interest shall
be determined on the basis of the quotations of the remaining
Reference Banks or Reference Bank.
2.11 Inability to Determine Interest Rate. (a) In
the event that the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the
Borrowers) that by reason of circumstances affecting the
interbank eurodollar market generally, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for any
requested Interest Period with respect to Committed Rate Loans
that a Borrower has requested be made as, continued as or
converted into Eurodollar Loans, the Administrative Agent shall
promptly give notice of such determination to such Borrower and
the Banks prior to the first day of the requested Interest Period
for such Eurodollar Loans. If such notice is given, such
Borrower may (i) in accordance with the provisions of subsection
2.1 or 2.9, as the case may be (including any requirements for
notification), request that the affected Loans be made as,
continued as or converted into, as the case may be, C/D Rate
Loans or ABR Loans, or (ii) in the case of Loans requested to be
made on the first day of such Interest Period, withdraw the
notice given under subsections 2.1 or 2.9, as the case may be, by
giving telephonic notice to the Administrative Agent, no later
than 10:00 A.M. (New York City time) on the applicable Borrowing
Date, confirmed in writing no later than one Business Day after
such telephonic notice is given; provided that if the
Administrative Agent does not receive any notice permitted from
the relevant Borrower hereunder, such Borrower shall be deemed to
have requested that the affected Loans be made as, continued as
or converted into, as the case may be, ABR Loans. Until the
notice given pursuant to the first sentence of this paragraph has
been withdrawn by the Administrative Agent, no further Loans
shall be made as, continued as or converted into, as the case may
be, Eurodollar Loans.
(b) In the event that the Administrative Agent shall
have determined (which determination shall be conclusive and
binding upon the Borrowers) that by reason of circumstances
affecting the domestic certificate of deposit market generally,
adequate and reasonable means do not exist for ascertaining the
C/D Rate for any requested Interest Period with respect to
Committed Rate Loans that a Borrower has requested be made as,
continued as or converted into C/D Rate Loans, the Administrative
Agent shall promptly give notice of such determination to such
Borrower and the Banks on or prior to the first day of the
requested Interest Period for such C/D Rate Loans. If such
notice is given, such Borrower may (i) in accordance with the
provisions of subsection 2.1 or 2.9, as the case may be
(including any requirements for notification), request that the
affected Loans be made as, continued as or converted into, as the
case may be, ABR Loans, or (ii) in the case of Loans requested to
be made on the first day of such Interest Period, withdraw the
notice given under subsection 2.1 or 2.9, as the case may be, by
giving telephonic notice to the Administrative Agent, no later
than the later of 10:00 A.M. (New York City time) on the
applicable Borrowing Date and one hour after receipt by such
Borrower of the notice referred to in the preceding sentence,
confirmed in writing no later than one Business Day after such
telephonic notice is given; provided that if the Administrative
Agent does not receive any notice permitted from the relevant
Borrower hereunder, such Borrower shall be deemed to have
requested that the affected Loans be made as, continued as or
converted into, as the case may be, ABR Loans. Until the notice
given pursuant to the first sentence of this paragraph has been
withdrawn by the Administrative Agent, no further Loans shall be
made as, continued as or converted into, as the case may be, C/D
Rate Loans.
(c) In the event that the Auction Agent shall have
determined (which determination shall be conclusive and binding
upon the Borrowers) that by reason of circumstances affecting the
interbank eurodollar market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for any Interest
Period with respect to a proposed Bid Loan to be made pursuant to
an Index Rate Bid Loan Request, the Auction Agent shall forthwith
give notice of such determination to the relevant Borrower and
the Bid Loan Banks at least two Business Days prior to the
proposed Borrowing Date, and such Bid Loans shall not be made on
such Borrowing Date. Until any such notice has been withdrawn by
the Auction Agent, no further Index Rate Bid Loan Requests shall
be submitted by either Borrower.
2.12 Pro Rata Treatment and Payments. (a) All
payments (including prepayments), to be made by the Borrowers on
account of principal, interest and fees shall be made without
defense, set-off or counterclaim and shall be made, in the case
of fees and principal of, and interest on, Loans (other than
Negotiated Rate Loans) at the Administrative Agent's office
specified in subsection 10.2, in each case in lawful money of the
United States of America and in immediately available funds not
later than 11:00 A.M. (New York City time) on the date due. The
Administrative Agent shall distribute such payments to the Banks
entitled thereto on the day of receipt in like funds as received,
provided that the Administrative Agent shall have received such
payments not later than 11:00 A.M. (New York City time). If the
Administrative Agent shall distribute such payments to the Banks
entitled thereto on a date after the date on which such payments
were received prior to 11:00 A.M. (New York City time), the
Administrative Agent shall pay to each such Bank on demand an
amount equal to the product of (i) the daily average Federal
funds rate during such period as quoted by the Administrative
Agent, times (ii) the amount of such Bank's share of such
payment, times (iii) a fraction the numerator of which is the
number of days that elapse from and including such date of
receipt of payment by the Administrative Agent to but excluding
the date on which such Bank's share of such payment shall have
become immediately available to such Bank and the denominator of
which is 360. All payments (including prepayments) to be made by
the Borrowers on account of principal, interest and fees relating
to Negotiated Rate Loans shall be made to the Bank with respect
thereto on such terms, at such address and at such time as shall
be mutually agreed upon between the relevant Borrower and the
relevant Bank in lawful money of the United States of America on
the date due.
(b) (i) Each borrowing by the Borrowers of Committed Rate
Loans and each payment of principal in respect of Committed Rate
Loans shall be made in accordance with the following
requirements:
(A) All borrowings of Committed Rate Loans from
Tranche A Banks, and all principal payments in respect of
such Loans, shall be made pro rata according to the
respective Commitments of the Tranche A Banks.
(B) All borrowings of Committed Rate Loans from
Tranche B Banks, and all principal payments in respect of
such Loans, shall be made pro rata according to the
respective Commitments of the Tranche B Banks.
(C) If any borrowing is made in respect of Committed
Rate Loans on any day when, after giving effect to any
concurrent payment and/or borrowing under this Agreement or
the Linked Agreement, the respective Utilized Percentages of
the Tranche A Banks exceed the respective Utilized
Percentages of the Tranche B Banks, such borrowing in
respect of Committed Rate Loans shall be allocated first to
the Tranche B Banks to the extent required to cause the
respective Utilized Percentages of all the Banks to be equal
(to the extent the amount of such borrowing is sufficient to
yield such result), and second, any remaining amount of such
borrowing shall be allocated among all the Banks pro rata
according to the respective Commitment Percentages of the
Banks.
(D) Except as provided in subclause (G) below, if any
payment is made in respect of Committed Rate Loans on any
day when, after giving effect to any concurrent payment
and/or borrowing under this Agreement or the Linked
Agreement, the respective Utilized Percentages of the
Tranche A Banks exceed the respective Utilized Percentages
of the Tranche B Banks, such payment in respect of Committed
Rate Loans shall be allocated first to the Tranche A Banks
to the extent required to cause the respective Utilized
Percentages of all the Banks to be equal (to the extent the
amount of such payment is sufficient to yield such result),
and second, such payment shall be allocated among all the
Banks pro rata according to the respective Commitment
Percentages of the Banks until either (I) all of such
payment has been so applied or (II) all outstanding
Committed Rate Loans owing to Tranche B Banks have been paid
in full, and after all outstanding Committed Rate Loans
owing to Tranche B Banks have been paid in full any
remaining amount of such payment shall be allocated to the
Tranche A Banks.
(E) If any borrowing is made in respect of Committed
Rate Loans on any day when, after giving effect to any
concurrent payment and/or borrowing under this Agreement or
the Linked Agreement, the respective Utilized Percentages of
the Tranche B Banks exceed the respective Utilized
Percentages of the Tranche A Banks, such borrowing in
respect of Committed Rate Loans shall be allocated first to
the Tranche A Banks to the extent required to cause the
respective Utilized Percentages of all the Banks to be equal
(to the extent the amount of such borrowing is sufficient to
yield such result), and second, any remaining amount of such
borrowing shall be allocated among all the Banks pro rata
according to the respective Commitment Percentages of the
Banks.
(F) Except as provided in subclause (G) below, if any
payment is made in respect of Committed Rate Loans on any
day when, after giving effect to any concurrent payment
and/or borrowing under this Agreement or the Linked
Agreement, the respective Utilized Percentages of the
Tranche B Banks exceed the respective Utilized Percentages
of the Tranche A Banks, such payment in respect of Committed
Rate Loans shall be allocated first to the Tranche B Banks
to the extent required to cause (I) the Committed Rate Loans
owing to Tranche B Banks to be repaid in full or (II) the
respective Utilized Percentages of all the Banks to be equal
(in each case to the extent the amount of such payment is
sufficient to yield such result), whichever shall first
occur, and second, such payment shall be allocated among all
the Banks pro rata according to the respective Commitment
Percentages of the Banks until either (x) all of such
payment has been so applied or (y) all Committed Rate Loans
owing to Tranche B Banks have been paid in full, and after
all Committed Rate Loans owing to Tranche B Banks have been
paid in full any remaining amount of such payment shall be
allocated to the Tranche A Banks.
(G) As provided in clause (b)(ii) below, if any
principal payment is made in respect of any Loans on any day
on which principal amounts are due and owing in respect of
any Loans, such principal payment shall be applied to the
Banks pro rata according to the respective amounts of
principal due and owing to the Banks in respect of Loans
under this Agreement. Payment of the Loans of the Tranche B
Banks made in accordance with subsection 2.6(b) shall be
applied to the Tranche B Banks pro rata according to the
respective amounts of Committed Rate Loans owing to the
Tranche B Banks.
(ii) Except as provided in subsections 2.13, 2.16 and 2.17,
each reduction of the Commitments shall be made pro rata among
the Banks according to their respective Commitment Percentages.
Each payment by the Borrowers under this Agreement or of any Loan
(other than Negotiated Rate Loans) shall be applied, first, to
any fees then due and owing pursuant to subsection 2.4, second,
to interest then due and owing in respect of the Loans (other
than Negotiated Rate Loans) and third, to principal then due and
owing hereunder (other than principal due and owing under
Negotiated Rate Loans) and under the Loans (other than Negotiated
Rate Loans). Each payment made by the Borrowers under this
Agreement relating to a Negotiated Rate Loan to the Bank with
respect thereto shall be applied, first, to interest then due and
owing in respect of such Negotiated Rate Loan and second, to
principal then due and owing hereunder with respect to such
Negotiated Rate Loan and under such Negotiated Rate Loan. Each
payment (other than voluntary prepayments made when no principal
payments are due and owing hereunder) by either Borrower on
account of principal of and interest on the Loans shall be made
for the account of each Bank pro rata according to the respective
amounts of principal and interest due and owing to such Bank
under this Agreement. Subject to the requirements of clause (i)
of this paragraph (b), each payment by a Borrower on account of
principal of the Loans (other than Negotiated Rate Loans) shall
be applied, first, to such of its Committed Rate Loan borrowings
as such Borrower may designate, and, second, after all Committed
Rate Loans shall have been paid in full, to all of its Absolute
Rate Bid Loans or Index Rate Bid Loans made on the same Borrowing
Date with the same Interest Period as such Borrower may
designate, pro rata according to the respective amounts
outstanding; provided, however, that prepayments made pursuant to
subsection 2.13(a), (b) or (c), 2.16(c) or 2.17(b) shall be
applied in accordance with such subsection.
(c) If any payment hereunder (other than payments on
the Eurodollar Loans and Index Rate Bid Loans) becomes due and
payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day. If any payment on
a Eurodollar Loan or Index Rate Bid Loan becomes due and payable
on a day other than a Working Day, the maturity thereof shall be
extended to the next succeeding Working Day unless the result of
such extension would be to extend such payment into another
calendar month in which event such payment shall be made on the
immediately preceding Working Day. With respect to any extension
of the payment of principal pursuant to this subsection 2.12(c),
interest thereon shall be payable at the then applicable rate
during such extension.
(d) Unless the Administrative Agent shall have been
notified in writing by any Bank prior to the date of the
Committed Rate Loan, Committed Rate Loans, Bid Loan or Bid Loans
to be made by such Bank (which notice shall be effective upon
receipt) that such Bank will not make its pro rata share of the
amount of the requested borrowing on such date available to the
Administrative Agent, the Administrative Agent may assume that
such Bank has made such amount available to it on such date and
the Administrative Agent may, in reliance upon such assumption,
make available to the relevant Borrower a corresponding amount.
If a Bank shall make such amount available to the Administrative
Agent on a date after such Borrowing Date, such Bank shall pay to
the Administrative Agent on demand an amount equal to the product
of (i) the daily average Federal funds rate during such period as
quoted by the Administrative Agent, times (ii) the amount of such
Bank's pro rata share of such borrowing, times (iii) a fraction
the numerator of which is the number of days that elapse from and
including such Borrowing Date to but excluding the date on which
such Bank's pro rata share of such borrowing shall have become
immediately available to the Administrative Agent and the
denominator of which is 360. A certificate of the Administrative
Agent submitted to any Bank with respect to any amounts owing
under this subsection 2.12(d) shall be conclusive, absent
manifest error. If such Bank's pro rata share is not in fact
made available to the Administrative Agent by such Bank within
three Business Days of such Borrowing Date, the Administrative
Agent shall be entitled to recover such amount, on demand, from
the relevant Borrower with interest thereon at the rate equal to
the product of (i) during the period from and including such
Borrowing Date to the Business Day next following the date of
such demand, the daily average Federal funds rate as quoted by
the Administrative Agent, times a fraction the numerator of which
is the number of days that elapse from and including such
Borrowing Date to but excluding the Business Day next following
the date of such demand and the denominator of which is 360 and
(ii) thereafter, the interest rate or rates applicable to the
Loan or Loans funded by the Administrative Agent on behalf of
such Bank on such Borrowing Date, times a fraction the numerator
of which is the number of days which elapse from and including
the Business Day next following the date of such demand to but
excluding the date such amount is recovered by the Administrative
Agent from such Borrower and the denominator of which is 360. In
the event any Bank's pro rata share of a borrowing is not made
available to the Administrative Agent in accordance with this
paragraph within three Business Days of the applicable Borrowing
Date (i) such Bank shall, during the period from such Borrowing
Date to the date such Bank makes its pro rata share of the
applicable borrowing available, not accrue and shall not be
entitled to receive any facility fee under subsection 2.4 and
(ii) either Borrower may exercise or pursue any other rights,
remedies, powers and privileges against such Bank as are provided
by law or by contract.
2.13 Requirements of Law. (a) If any Bank shall
determine that by reason of (i) the introduction after the date
hereof of any applicable law, regulation or guideline or any
change after the date hereof in any applicable law, regulation or
guideline (including the phasing-in of a provision of any
applicable law, regulation or guideline) or in the interpretation
thereof by any governmental or other regulatory authority charged
with the administration thereof or any court of competent
jurisdiction and/or (ii) compliance by such Bank with any
requirement adopted after the date hereof of or directive adopted
after the date hereof from any central bank or other fiscal,
monetary or other regulatory authority (whether or not having the
force of law), there shall be any increase in the cost of such
Bank of maintaining or giving effect to its obligations with
respect to Committed Rate Loans under this Agreement or
maintaining its Commitment with respect to Committed Rate Loans
or making or maintaining any C/D Rate Loans or Eurodollar Loans
or any reduction in any amount receivable by such Bank in respect
of C/D Rate Loans or Eurodollar Loans under this Agreement,
notwithstanding the reasonable efforts (such reasonable efforts
not to result in the incurrence of additional costs or expenses)
of such Bank to mitigate such increase or reduction, then the
relevant Borrower shall from time to time on receipt (whenever
occurring) of a certificate from such Bank (which shall be
executed by an officer thereof and a copy of which shall be
delivered to the Administrative Agent) pay to such Bank such
amounts as are stated therein to be required to indemnify such
Bank against such increased costs or reduction; provided,
however, that if such Borrower becomes obligated to pay any Bank
any additional amount pursuant to this subsection 2.13(a), such
Borrower shall have the right, so long as no Event of Default has
occurred and is then continuing, upon giving notice to the
Administrative Agent and such Bank in accordance with subsection
2.6, to prepay in full the Loans of such Bank, together with
accrued interest thereon, any amounts payable to such Bank
pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued
and unpaid facility fee or other amount payable to such Bank
hereunder and/or, upon giving not less than three Business Days'
notice to any such Bank and the Administrative Agent, to cancel
the whole or part of the Commitment of any such Bank; provided,
further, that such Borrower shall not be obligated to pay any
Bank any additional amount pursuant to this subsection 2.13(a)
(A) which constitutes a present or future income, stamp or other
tax, levy, impost, duty, charge, fee, deduction or withholding
referred to in subsection 2.17(a) or (B) as a result of any law,
rule, guideline, regulation, request or directive regarding
capital adequacy referred to in subsection 2.13(b). A
certificate of such Bank as to the amount of such increased costs
or reduction shall set forth in reasonable detail the computation
of such increased costs or reduction, and shall be binding and
conclusive in the absence of manifest error. Amounts payable
pursuant to this subsection 2.13(a) shall not include amounts
which the relevant Borrower is obligated to pay pursuant to the
definition of "C/D Rate" or subsection 2.13(c). A Bank which
demands indemnification hereunder as a result of an increased
cost or reduction referred to herein shall deliver the
certificate referred to above to the relevant Borrower demanding
indemnification no later than the later of (y) the thirtieth day
immediately following each payment or realization by such Bank of
such increased cost or reduction (and such certificate shall
certify that the amounts set forth therein were paid or realized
within such thirty-day period) and (z) the thirtieth day
immediately following such Bank's knowledge of the incurrence or
realization by such Bank of such increased cost or reduction (and
such certificate shall so certify).
(b) In the event that any Bank shall have determined
that the adoption after the date hereof of any law, rule,
guideline or regulation regarding capital adequacy, or any change
after the date hereof in any existing or future law, rule,
guideline or regulation regarding capital adequacy (excluding,
however, the phasing-in of any existing law, rule, regulation or
guideline regarding capital adequacy) or in the interpretation or
application thereof or compliance by such Bank or any corporation
controlling such Bank with any request or directive made or
adopted after the date hereof regarding capital adequacy (whether
or not having the force of law) from any central bank or
Governmental Authority, does or shall have the effect of reducing
the rate of return on such Bank's or such corporation's capital
as a consequence of its obligations hereunder to a level below
that which such Bank or such corporation could have achieved but
for such adoption, change or compliance (taking into
consideration such Bank's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Bank to
be material, then from time to time, within 30 days after receipt
(whenever occurring) of a certificate from such Bank (which shall
be executed by an officer thereof and a copy of which shall be
delivered to the Administrative Agent), the Borrowers jointly and
severally agree to pay to such Bank such additional amounts as
are stated therein to be required to compensate it for such
reduction; provided, however, that if such Borrower becomes
obligated to pay any Bank any additional amount pursuant to this
subsection 2.13(b), such Borrower shall have the right, so long
as no Event of Default has occurred and is then continuing, upon
giving notice to the Administrative Agent and such Bank in
accordance with subsection 2.6, to prepay in full the Loans of
such Bank, together with accrued interest thereon, any amounts
payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any
accrued and unpaid facility fee or other amounts payable to it
hereunder and/or, upon giving not less than three Business Days'
notice to any such Bank and the Administrative Agent, to cancel
the whole or part of the Commitment of any such Bank. A
certificate of such Bank as to the amount of such reduction shall
set forth in reasonable detail the computation of such reduction,
and shall be binding and conclusive in the absence of manifest
error. A Bank which demands indemnification hereunder as a
result of a reduction referred to herein shall deliver the
certificate referred to above to the relevant Borrower demanding
indemnification no later than the later of (i) the thirtieth day
immediately following each realization by such Bank of such
reduction (and such certificate shall certify that the amounts
set forth therein were realized within such thirty-day period)
and (ii) the thirtieth day immediately following such Bank's
knowledge of the realization by such Bank of such reduction (and
such certificate shall so certify).
(c) Each Borrower shall pay to each Bank that delivers
a certificate to such Borrower in accordance with the second and
third following sentences such amounts as shall be necessary to
reimburse such Bank for the costs (determined in accordance with
the immediately following sentence), if any, incurred by such
Bank, as a result of the application to such Bank during any
period on which there are outstanding Eurodollar Loans advanced
by such Bank to such Borrower of basic, supplemental, marginal
and emergency reserves under any regulations of the Board of
Governors of the Federal Reserve System or other Governmental
Authority having jurisdiction with respect thereto dealing with
reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency liabilities" in
Regulation D of such Board) maintained by a member bank of such
System (any such reserves dealing with reserve requirements
prescribed for eurocurrency funding being referred to as
"Reserves"), such amount to be set forth in a certificate of such
Bank delivered to the relevant Borrower; provided, however, that
if a Bank gives to a Borrower the written notice contemplated by
the proviso set forth in the second following sentence, such
Borrower shall have the right, so long as no Event of Default has
occurred and is then continuing, upon giving notice to the
Administrative Agent and such Bank in accordance with subsection
2.6, to prepay in full the Loans of such Bank, together with
accrued interest thereon, any amounts payable pursuant to
subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid
facility fee or other amounts payable to it hereunder and/or upon
giving not less than three Working Days' notice to such Bank and
the Administrative Agent, to cancel the whole or part of the
Commitment of any such Bank. Amounts certified by a Bank
hereunder for any period shall represent such Bank's calculation
or, if an accurate calculation is impracticable, reasonable
estimate (using such reasonable means of allocation as such Bank
shall determine) of the actual costs, if any, theretofore
incurred by such Bank as a result of the application of Reserves
to Eurocurrency liabilities (as referred to in Regulation D
referred to above) of such Bank in an amount equal to such Bank's
Eurodollar Loans during such period and in any event shall not
exceed the amount obtainable utilizing the maximum Reserves
prescribed by the Board of Governors of the Federal Reserve
System or other Governmental Authority having jurisdiction with
respect thereto for such period. Such payment shall be made
within fifteen days after receipt by the relevant Borrower of a
certificate, signed by an officer of the Bank delivering such
certificate, which certificate shall be binding and conclusive in
the absence of demonstrable error, specifying the period (prior
to the date of such certificate) during which the cost set forth
therein was incurred by such Bank and stating (i) that such
amount represents the actual cost, or, if an accurate calculation
of such cost is impracticable stating that such amount represents
such Bank's reasonable estimate of the actual cost, incurred by
such Bank during such period as a result of the application of
Reserves to Eurocurrency liabilities of such Bank in an amount
equal to such Bank's Eurodollar Loans during such period and
specified in such certificate and (ii) that the amount set forth
therein does not in any event exceed the amount obtainable
utilizing the maximum Reserves prescribed for such period by the
Board of Governors of the Federal Reserve System or such other
Governmental Authority having jurisdiction with respect thereto;
provided that the obligation of the Borrowers to pay any amounts
pursuant to this subsection 2.13(c) shall apply only in the case
of those Banks that give to the relevant Borrower and the
Administrative Agent, no later than 3:00 P.M. (New York City
time) on the day that is two Working Days prior to the applicable
Borrowing Date therefor, a written notice stating that such Bank
intends to demand reimbursement pursuant hereto. A Bank which
demands reimbursement of Reserve costs hereunder on account of a
Eurodollar Loan made by such Bank shall deliver the certificate
referred to in the preceding sentence to the relevant Borrower
setting forth the items specified in clauses (i) and (ii) of the
preceding sentence no later than the thirtieth day immediately
following the last day of the Interest Period applicable to such
Eurodollar Loan.
(d) The obligations of the parties under this
subsection 2.13 shall survive termination of this Agreement and
payment of the Loans.
2.14 Indemnity. Each Borrower agrees to indemnify
each Bank and to hold each Bank harmless from any loss or expense
which such Bank may sustain or incur as a consequence of (a)
default by such Borrower in payment of the principal amount of or
interest on any Loan by such Bank, including, but not limited to,
any such loss or expense arising from interest or fees payable by
such Bank to lenders of funds obtained by it in order to maintain
its Loans hereunder, (b) default by such Borrower in making a
borrowing, conversion or continuance after such Borrower has
given a notice in accordance with subsection 2.1, 2.2 or 2.9, (c)
default by such Borrower in making any prepayment after such
Borrower has given a notice in accordance with subsection 2.5 or
2.6 or (d) the making by such Borrower of a prepayment of a
Committed Rate Loan (other than an ABR Loan), a Bid Loan or, to
the extent agreed to by the relevant Borrower and the relevant
Bank with respect to a Negotiated Rate Loan, a Negotiated Rate
Loan on a day which is not the last day of an Interest Period
with respect thereto (with respect to Committed Rate Loans) or
the maturity date therefor (with respect to Bid Loans) or any
agreed date (with respect to Negotiated Rate Loans), including,
but not limited to, any such loss or expense arising from
interest or fees payable by such Bank to lenders of funds
obtained by it in order to maintain its Loans hereunder. This
covenant shall survive termination of this Agreement and payment
of the outstanding Loans. A certificate as to any amount payable
pursuant to the foregoing shall be submitted by such Bank (and
executed by an officer thereof) to the relevant Borrower, setting
forth the computation of such amounts in reasonable detail, and
shall be conclusive in the absence of manifest error.
2.15 Non-Receipt of Funds by the Administrative Agent.
With respect to all Loans except Negotiated Rate Loans, unless
the Administrative Agent shall have been notified by the relevant
Borrower prior to the date on which any payment is due from it
hereunder (which notice shall be effective upon receipt) that
such Borrower does not intend to make such payment, the
Administrative Agent may assume that such Borrower has made such
payment when due, and the Administrative Agent may in reliance
upon such assumption (but shall not be required to) make
available to each Bank on such payment date an amount equal to
the portion of such assumed payment to which such Bank is
entitled hereunder, and if such Borrower has not in fact made
such payment to the Administrative Agent, such Bank shall, on
demand, repay to the Administrative Agent the amount made
available to such Bank together with interest thereon in respect
of each day during the period commencing on the date such amount
was made available to such Bank and ending on (but excluding) the
date such Bank repays such amount to the Administrative Agent, at
a rate per annum equal to the Administrative Agent's cost of
obtaining overnight funds in the federal funds market in New York
on each such day. A certificate of the Administrative Agent
submitted to the relevant Bank with respect to any amount owing
under this subsection 2.15 shall be conclusive absent manifest
error.
2.16 Extension of Termination Date. (a) No later
than one year prior to the Termination Date then in effect,
provided that no Event of Default shall have occurred and be
continuing, the Borrowers may request an extension of such
Termination Date by submitting to the Administrative Agent an
Extension Request containing the information in respect of such
extension specified in Exhibit I, which the Administrative Agent
shall promptly furnish to each Bank. If the Required Banks shall
approve in writing the extension of the Termination Date
requested in such Extension Request, the Termination Date shall
automatically and without any further action by any Person be
extended for the period specified in such Extension Request;
provided that (i) each extension pursuant to this subsection 2.16
shall be for a maximum of one year, (ii) after giving effect to
any extension, the Termination Date shall not be more than five
years after the date of such extension and (iii) the Commitment
of any Bank which does not consent in writing to such extension
within 30 days of its receipt of such Extension Request (an
"Objecting Bank") shall, unless earlier terminated in accordance
with this Agreement, expire on the Termination Date in effect on
the date of such Extension Request (such Termination Date, if
any, referred to as the "Commitment Expiration Date" with respect
to such Objecting Bank). If, within 30 days of their receipt of
an Extension Request, the Required Banks shall not approve in
writing the extension of the Termination Date requested in such
Extension Request, the Termination Date shall not be extended
pursuant to such Extension Request. The Administrative Agent
shall promptly notify (y) the Banks and the Borrowers of any
extension of the Termination Date pursuant to this subsection
2.16 and (z) the Borrowers and any other Bank of any Bank which
becomes an Objecting Bank.
(b) Any Objecting Bank the Commitment of which shall
expire prior to any extended Termination Date shall, subject to
subsection 2.16(c), have its Committed Rate Loans prepaid in full
by the applicable Borrower(s) on such expiration date, together
with accrued interest thereon, and shall have any accrued and
unpaid facility fee or other amount payable to it hereunder paid
on the first date to occur following such expiration date on
which the fees referred to in subsection 2.4(a) are payable to
the non-Objecting Banks or, if such fees shall be so payable on
such expiration date, such unpaid facility fee and other amount
shall be paid on such expiration date.
(c) The Borrowers shall have the right, so long as no
Event of Default has occurred and is then continuing, upon giving
notice to the Administrative Agent and an Objecting Bank in
accordance with subsection 2.6, to prepay in full the Committed
Rate Loans of such Objecting Bank, together with accrued interest
thereon, any amounts payable pursuant to subsections 2.13, 2.14,
2.15 and 2.17 and any accrued and unpaid facility fee or other
amounts payable to it hereunder and/or, upon giving not less than
three Working Days' notice to such Objecting Bank and the
Administrative Agent, to cancel the whole or part of the
Commitment of such Objecting Bank, provided that during the
period from the Closing Date through April 4, 1996 and,
commencing April 5, 1996, during each one-year period thereafter
to and including the Termination Date (each, a "Deal Year"), the
aggregate Commitments of Banks which are terminated pursuant to
this subsection 2.16(c) and are not replaced during such Deal
Year pursuant to subsection 2.19 shall not exceed 33-1/3% of the
aggregate Commitments in effect on the first day of such Deal
Year of Banks which were not Objecting Banks on such first day.
2.17 Foreign Taxes. (a) All payments made under this
Agreement shall be made without set-off or counterclaim and free
and clear of, and without reduction for or on account of, any
present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions, withholdings or restrictions
or conditions of any nature whatsoever, now or hereafter imposed,
levied, collected, withheld or assessed by any country (or by any
political subdivision or taxing authority thereof or therein)
from or through which any amount is paid under this Agreement
excluding, in the case of each Bank, (i) income and franchise
taxes (including, without limitation, branch taxes imposed by the
United States or similar taxes imposed by a political subdivision
or taxing authority thereof or therein but excluding, in the case
of any Bank not organized under the laws of the United States,
any taxes imposed by the United States by means of withholding at
the source), (ii) in the case of any Bank not organized under the
laws of the United States, any taxes imposed by the United States
by means of withholding at the source unless such Bank has
provided the Company, the Capital Corporation and the
Administrative Agent with the documents it is required to provide
to them under subsection 2.17(c) and (iii) taxes that would not
have been imposed on such Bank but for the existence of a
connection between such Bank and the jurisdiction imposing such
taxes (other than a connection arising principally by virtue of
this Agreement) (such non-excluded taxes being called "Foreign
Taxes"). If any Foreign Taxes are required to be withheld from
any amounts so payable to any Bank hereunder, the amounts so
payable to such Bank shall be increased to the extent necessary
to yield to such Bank (after payment of all Foreign Taxes)
interest or any such other amounts payable hereunder at the rates
or in the amounts specified in this Agreement. Whenever any
Foreign Taxes are payable by the Company or the Capital
Corporation, as the case may be, as promptly as possible
thereafter the Company or the Capital Corporation, as the case
may be, shall send to the Administrative Agent, for the account
of the affected Bank, a certified copy of the original official
receipt, if any, received by the Company or the Capital
Corporation, as the case may be, showing payment thereof. If the
Company or the Capital Corporation, as the case may be, fails to
pay any Foreign Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent, for the
account of the affected Banks, the required receipts or other
required documentary evidence, the Company or the Capital
Corporation, as the case may be, shall indemnify such Banks for
any incremental taxes, interest or penalties that may become
payable by such Banks as a result of any such failure.
(b) If a Borrower is required by this subsection 2.17
to make a payment to or in respect of any Bank, such Borrower
shall have the right, so long as no Event of Default has occurred
and is then continuing, upon giving notice to the Administrative
Agent and such Bank in accordance with subsection 2.6, to prepay
in full the Loans of such Bank, together with accrued interest
thereon, any amounts payable pursuant to subsections 2.13, 2.14,
2.15 and 2.17 and any accrued and unpaid facility fee or other
amounts payable to it hereunder and/or on giving not less than
three Business Days' notice to any such Bank and the
Administrative Agent, to cancel the whole or part of the
Commitment of such Bank.
(c) At least two Business Days prior to the first
Borrowing Date or, if such date does not occur within thirty days
after the Closing Date, by the end of such thirty-day period,
each Bank agrees that it will deliver to each Borrower and the
Administrative Agent (i) either (A) a statement that it is
incorporated under the laws of the United States or a state
thereof or (B) if it is not so incorporated, a letter in
duplicate in the form of Exhibit J or Exhibit K, as appropriate,
and two duly completed copies of United States Internal Revenue
Service Form 4224 or 1001 or successor applicable form, as the
case may be, certifying in each case that such Bank is entitled
to receive payment under this Agreement without deduction or
withholding of any United States Federal income taxes, and (ii)
Internal Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be, to establish an exemption from United
States backup withholding tax. Each Bank agrees (for the benefit
of the Administrative Agent and the Borrowers) to provide the
Administrative Agent and the Borrowers a new letter and Form 4224
or 1001 and Form W-8 or W-9, or successor applicable form or
other manner of certification, on or before the date that any
such letter or form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent
letter or form previously delivered by it, certifying in the case
of a Form 1001 or 4224 that such Bank is entitled to receive
payments under this Agreement without deduction or withholding of
any United States Federal income tax, and in the case of a Form
W-8 or W-9 establishing exemption from United States backup
withholding tax. The Administrative Agent shall not be
responsible for obtaining such documentation from any Bank other
than Chemical.
(d) The Company and the Capital Corporation shall not
be required to make payments on account of United States
withholding taxes to any Bank under the second sentence of
subsection 2.17(a) to the extent that such taxes could have been
avoided had such Bank complied with a reasonable request by the
Company, the Capital Corporation or the Administrative Agent for
the forms or documents referred to in subsection 2.17(c).
(e) To the extent that, as determined by any Bank in
its sole discretion and without any obligation to disclose its
tax records, Foreign Taxes have been irrevocably utilized by such
Bank (either as credits or deductions) to reduce its tax
liabilities and such utilization is consistent with its overall
tax policies, such Bank shall pay to the Company or the Capital
Corporation, as the case may be, an amount equal to such
reduction obtained to the extent of such increased amounts paid
by the Company or the Capital Corporation to such Bank as
aforesaid.
(f) The obligations of the parties under this
subsection 2.17 shall survive termination of this Agreement and
payment of the Loans.
2.18 Confirmations. The Administrative Agent shall,
within 15 days following the last day of each calendar quarter
(each such period being a "Report Period"), furnish to the
Borrowers a written account with respect to all amounts
outstanding under the Loan Accounts as at the last day of such
Report Period, including an accounting setting forth, for such
Report Period the amounts of principal, interest and other sums
paid and payable hereunder. The Borrowers shall, within 15 days
following receipt of such written account, notify the
Administrative Agent of any discrepancies between such written
account and the Borrowers' records or, if no such discrepancies
exist, furnish written confirmation to the Administrative Agent
of the accuracy of such written account. Upon any Bank's
request, the Administrative Agent shall furnish to each Bank a
copy of such written account together with the Borrowers'
response thereto.
2.19 Replacement of Cancelled Banks. The Borrowers
may designate one or more financial institutions to act as a Bank
hereunder in place of any Cancelled Bank, and upon the Borrowers,
each such financial institution and the Administrative Agent
executing a writing substantially in the form of Exhibit L, such
financial institution shall become and be a Bank hereunder with
all the rights and obligations it would have had if it had been
named on the signature pages hereof, and having for all such
financial institutions an aggregate Commitment no greater than
the whole, or such cancelled part, of the Commitment of the
Cancelled Bank in place of which such financial institutions were
designated; provided, however, that all rights and obligations of
such Cancelled Bank relating to the Loans made by such Cancelled
Bank that are outstanding on the date of such cancellation shall
be the rights and obligations of such Cancelled Bank and not of
any such financial institution; and provided, further, that no
such financial institution shall become and be a Tranche B Bank
hereunder in place of a Cancelled Bank which was a Tranche B Bank
unless concurrently therewith such financial institution or an
affiliate thereof becomes a party to the Linked Agreement in
accordance with its terms with a "Commitment" under the Linked
Agreement. The Administrative Agent shall execute any such
writing presented to it and shall notify the Banks of the
execution thereof, the name of the financial institution
executing such writing and the amount of its Commitment.
2.20 Certain Notices. Concurrently with the delivery
to the Administrative Agent or the Auction Agent hereunder by
either Borrower of a notice of borrowing, a notice of prepayment,
a notice of reduction or termination of Commitments or a notice
requesting extension of the Termination Date, such Borrower will
deliver a copy of such notice to the Canadian Administrative
Agent. The Administrative Agent will promptly notify the
Canadian Administrative Agent of (a) each borrowing of Committed
Rate Loans to be made from the Tranche B Banks, (b) the principal
amount of Committed Rate Loans to be made by each Tranche B Bank,
(c) the principal amount of each payment in respect of such
Loans, (d) any termination or reduction of the Commitments, (e)
any extension of the Termination Date and (f) any assignment of
all or a portion of any Tranche B Bank's Commitment.
Concurrently with the delivery to the Canadian Administrative
Agent by either "Borrower" under (and as defined in) the Linked
Agreement of a notice of borrowing, a notice of prepayment, a
notice of reduction or termination of commitments under the
Linked Agreement or a notice requesting extension of the
Termination Date (as defined in the Linked Agreement), the
Borrowers will cause such "Borrower" to deliver a copy of such
notice to the Administrative Agent. The Canadian Administrative
Agent will promptly notify the Administrative Agent of (i) each
borrowing of Loans under (and as defined in) the Linked
Agreement, (ii) the principal amount of such Loans, (iii) the
amount of each principal payment in respect of such Loans, (iv)
any termination or reduction of the commitments under the Linked
Agreement, (v) any assignment of all or a portion of any Linked
Lender's rights or obligations pursuant to Section 15.2 of the
Linked Agreement and (vi) the Equivalent Amount of 38% of any
stamping fee paid pursuant to subsection 6.1(b) of the Linked
Agreement, the period (including the applicable dates) in respect
of such stamping fee and the proportion of such stamping fee paid
to each Linked Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES
Each Borrower hereby represents and warrants to the
Administrative Agent and to each Bank that:
3.1 Financial Condition. The consolidated balance
sheet of such Borrower and its consolidated Subsidiaries as at
October 31, 1994 and the related consolidated statements of
income and of cash flow for the fiscal year then ended (including
the related schedules and notes) reported on by Deloitte &
Touche, copies of which have heretofore been furnished to each
Bank, fairly present the consolidated financial condition of such
Borrower and its consolidated Subsidiaries as at such date, and
the consolidated results of their operations and changes in
financial position for the fiscal year then ended. The condensed
unaudited consolidated balance sheet of such Borrower and its
consolidated Subsidiaries as at January 31, 1995 and the related
unaudited consolidated statement of income for the three-month
period ended on such date, certified by a Responsible Officer of
such Borrower, copies of which have heretofore been furnished to
each Bank, present fairly the consolidated financial condition of
such Borrower and its consolidated Subsidiaries as at such date,
and the consolidated results of their operations for the three-
month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in
accordance with generally accepted accounting principles in the
United States of America applied consistently throughout the
periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed
therein).
3.2 Corporate Existence. Such Borrower is duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has the corporate
power and authority to own its properties and to conduct the
business in which it is currently engaged.
3.3 Corporate Power; Authorization; Enforceable
Obligations. Such Borrower has the corporate power and authority
and the legal right to execute, deliver and perform this
Agreement and to borrow hereunder and has taken all necessary
corporate action to authorize its borrowings on the terms and
conditions of this Agreement and to authorize its execution,
delivery and performance of this Agreement. No consent or
authorization of, filing with, or other act by or in respect of,
any Governmental Authority, is required in connection with the
borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement other
than any such consents, authorizations, filings or acts as have
been obtained, taken or made and are in full force and effect.
This Agreement has been duly executed and delivered on behalf of
such Borrower, and this Agreement constitutes a legal, valid and
binding obligation of such Borrower enforceable against such
Borrower in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equity
principles (whether enforcement is sought by proceedings in
equity or at law).
3.4 No Legal Bar. The execution, delivery and
performance of this Agreement, the borrowings hereunder and the
use of the proceeds thereof, will not violate any Requirement of
Law or any Contractual Obligation of such Borrower, and will not
result in, or require, the creation or imposition of any lien on
any of its properties or revenues pursuant to any Requirement of
Law or Contractual Obligation.
3.5 No Material Litigation. No litigation,
investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of such
Borrower, threatened by or against such Borrower or any of its
Subsidiaries or against any of its or their respective properties
or revenues except actions, suits or proceedings which will not
materially adversely affect the ability of such Borrower to
perform its obligations hereunder. All of the defaults, if any,
of such Borrower or any of its Subsidiaries with respect to any
order of any Governmental Authority do not, and will not
collectively, have a material adverse effect on the business,
operations, property or financial or other condition of such
Borrower and its Subsidiaries taken as a whole.
3.6 Taxes. Each of such Borrower and its Subsidiaries
has filed or caused to be filed all tax returns which, to the
knowledge of such Borrower, are required to be filed (except
where the failure to file such tax returns would not have a
material adverse effect on the business, operations, property or
financial or other condition of such Borrower and its
Subsidiaries taken as a whole), and has paid all taxes shown to
be due and payable on said returns or on any assessments made
against it or any of its property and all other taxes, fees or
other charges imposed on it or any of its property by any
Governmental Authority (other than assessments, taxes, fees and
other charges the amount or validity of which is currently being
contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been
provided on the books of such Borrower or its Subsidiaries, as
the case may be).
3.7 Margin Regulations. No part of the proceeds of
any Loan hereunder will be used for any purpose which violates
the provisions of Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in
effect.
3.8 Pari Passu Ranking. The indebtedness of such
Borrower under its Loans and all other amounts due hereunder
ranks at least pari passu with all present and future unsecured
senior indebtedness of such Borrower (other than indebtedness
preferred by law).
3.9 No Defaults. No "Event of Default" or similar
event, or event which, with the lapse of time or the giving of
notice, or both, would constitute such an Event of Default or
similar event, has occurred and is continuing hereunder or under
any material bond, debenture, note or other evidence of
indebtedness, or in any material mortgage, deed of trust,
indenture or loan agreement, of such Borrower.
3.10 Use of Proceeds. The proceeds of the Loans will
be used by such Borrower for its general corporate purposes,
which shall include, but shall not be limited to, any purchase or
other acquisition of all or a portion of the debt or stock or
other evidences of ownership of such Borrower or the assets or
stock or other evidences of ownership of any other Person or
Persons.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loan. The obligation of
each Bank to make its initial Loan hereunder is subject to the
satisfaction of the following conditions precedent:
(a) Counterparts. The Administrative Agent shall have
received counterparts hereof, executed by all of the parties
hereto.
(b) Resolutions. The Administrative Agent shall have
received, with a counterpart for each Bank, resolutions,
certified by the Secretary or an Assistant Secretary of each
Borrower, in form and substance satisfactory to the
Administrative Agent, adopted by the Board of Directors of
such Borrower authorizing the execution of this Agreement
and the performance of its obligations hereunder and any
borrowings hereunder from time to time.
(c) Legal Opinions. The Administrative Agent shall
have received, with a counterpart for each Bank, an opinion
of Frank S. Cottrell, Esq., or his successor, as general
counsel, or an associate general counsel, for each of the
Borrowers, dated the Closing Date and addressed to the
Agents and the Banks, substantially in the form of Exhibit
G, and an opinion of Shearman & Sterling, special counsel to
the Borrowers, dated the Closing Date and addressed to the
Agents and the Banks, substantially in the form of Exhibit
H. Such opinions shall also cover such other matters
incident to the transactions contemplated by this Agreement
as the Administrative Agent shall reasonably require.
(d) Incumbency Certificate. The Administrative Agent
shall have received, with a counterpart for each Bank, a
certificate of the Secretary or an Assistant Secretary of
each Borrower certifying the names and true signatures of
the officers of such Borrower authorized to sign this
Agreement, together with evidence of the incumbency of such
Secretary or Assistant Secretary.
(e) Termination of Existing Agreements. The
Administrative Agent shall have received evidence
satisfactory to it that the commitment of each financial
institution to make loans to the Borrowers pursuant to (i)
the $1,675,000,000 Credit Agreement, dated as of December
15, 1993, among the Borrowers, the lenders parties thereto,
Chemical Bank, as Administrative Agent, Deutsche Bank AG
Chicago Branch, as Auction Agent, and the Managing Agents
and the Co-Agents named therein, (ii) the $825,000,000
Credit Agreement, dated as of December 15, 1993, among the
Borrowers, the lenders parties thereto, Chemical Bank, as
Administrative Agent, Deutsche Bank AG Chicago Branch, as
Auction Agent, and the Managing Agents and the Co-Agents
named therein, (iii) the Credit Agreement, dated as of March
26, 1993, among the Borrowers, the lenders parties thereto
and Toronto Dominion (Texas), Inc., as Agent, and (iv) the
Loan Agreement, dated as of March 26, 1993, among John Deere
Limited, John Deere Finance Limited, the lenders parties
thereto and The Toronto-Dominion Bank, as Agent, shall have
been terminated in full and the outstanding principal amount
of the indebtedness thereunder and all other amounts owing
to any bank thereunder shall have been repaid or paid by the
Borrowers, John Deere Limited and John Deere Finance
Limited.
(f) Fees. The Administrative Agent shall have
received, for the accounts of the Banks and the
Administrative Agent, and each Agent shall have received,
for the account of such Agent, all accrued fees and expenses
owing hereunder or in connection herewith to the Banks and
the Agents to be received on the Closing Date.
(g) Linked Agreement. The Linked Agreement shall have
been executed and delivered by the parties thereto and all
conditions to the effectiveness of the Linked Agreement
shall have been satisfied.
(h) Additional Matters. All other documents which the
Administrative Agent may reasonably request in connection
with the transactions contemplated by this Agreement shall
be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel.
4.2 Conditions to All Loans. The obligation of each
Bank to make any Loan (which shall include the initial Loan to be
made by it hereunder) to be made by it hereunder is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. The
representations and warranties made by the Borrowers herein
or which are contained in any certificate, document or
financial or other statement furnished by either Borrower at
any time hereunder or in connection herewith (other than any
representations and warranties which by the terms of such
certificate, document or financial or other statement do not
survive the execution of this Agreement) shall be correct on
and as of the date of such Loan as if made on and as of such
date except as such representations and warranties expressly
relate to an earlier date.
(b) No Default or Event of Default. No Default or
Event of Default shall have occurred and be continuing on
such date or after giving effect to the Loans to be made on
such date and the application of the proceeds thereof.
(c) Additional Conditions to Bid Loans. If such Loan
is made pursuant to subsection 2.2, all conditions set forth
in subsection 2.2(f) shall have been satisfied.
Each acceptance by either Borrower of a Loan shall
constitute a representation and warranty by the relevant Borrower
as of the date of such Loan that the applicable conditions in
clauses (a), (b) and (c) of this subsection 4.2 have been
satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
Each of the Borrowers (except as otherwise specified)
hereby agrees that, so long as there is any obligation by any
Bank to make Loans to it hereunder, any Loan of such Borrower
remains outstanding and unpaid or any other amount is owing by
such Borrower to any Bank or any Agent hereunder (unless the
Required Banks shall otherwise consent in writing):
5.1 Financial Statements. Such Borrower shall furnish
to each Bank:
(a) as soon as available, but in any event within 120
days after the end of each fiscal year of such Borrower, a
copy of the consolidated balance sheet of such Borrower and
its consolidated Subsidiaries as at the end of such year and
the related consolidated statements of income and of cash
flow for such year, reported on by Deloitte & Touche or
other independent certified public accountants of nationally
recognized standing; and
(b) as soon as available, but in any event not later
than 60 days after the end of each of the first three
quarterly periods of each fiscal year of such Borrower, the
condensed unaudited consolidated balance sheet of such
Borrower and its consolidated Subsidiaries as at the end of
each such quarter and the related unaudited consolidated
statement of income of such Borrower and its consolidated
Subsidiaries for such quarterly period and the portion of
the fiscal year through such date, certified by a
Responsible Officer of such Borrower (subject to normal
year-end audit adjustments);
all such financial statements to present fairly the consolidated
financial condition and results of operations of such Borrower
and its consolidated Subsidiaries and to be prepared in
accordance with generally accepted accounting principles in the
United States of America applied consistently throughout the
periods reflected therein (except as approved by such accountants
or officer, as the case may be, and disclosed therein).
5.2 Certificates; Other Information. Such Borrower
shall furnish to each Bank:
(a) concurrently with the delivery of the financial
statements referred to in subsections 5.1(a) and (b) above,
a certificate of a Responsible Officer of such Borrower
stating that (i) he has no knowledge of the occurrence and
continuance of any Default or Event of Default except as
specified in such certificate, in which case such
certificate shall contain a description thereof and a
statement of the steps, if any, which such Borrower is
taking, or proposes to take, to cure the same and (ii) the
financial statements delivered pursuant to subsection 5.1
would not be different if prepared in accordance with GAAP
except as specified in such certificate; and
(b) promptly, such additional financial and other
information as any Bank may from time to time reasonably
request.
5.3 Company Indenture Documents. The Company shall,
contemporaneously with the delivery thereof to the Trustee,
furnish to each Bank a copy of any information, document or
report required to be filed with the Trustee pursuant to Section
7.03 of the indenture dated July 1, 1994 between the Company and
The Chase Manhattan Bank (National Association), as Trustee.
5.4 Capital Corporation Indenture Documents. The
Capital Corporation shall, contemporaneously with the delivery
thereof to the Trustee, furnish to each Bank a copy of any
information, document or report required to be filed with the
Trustee pursuant to Section 7.03 of the indenture dated February
1, 1991, between the Capital Corporation and The Bank of New
York, as Trustee.
5.5 Notice of Default. Such Borrower shall promptly
give notice to the Administrative Agent of the occurrence of any
Default or Event of Default, which notice shall be given in
writing as soon as possible, and in any event within 10 days
after a Responsible Officer of such Borrower obtains knowledge of
such occurrence, with a description of the steps being taken to
remedy the same (provided that such Borrower shall not be
obligated to give notice of any Default or Event of Default which
is remedied prior to or within 10 days after a Responsible
Officer of such Borrower first acquires such knowledge). Upon
receipt of any such notice, the Administrative Agent shall
promptly notify each Bank thereof.
5.6 Ownership of Capital Corporation Stock. The
Company shall continue to own, directly or through one or more
wholly-owned Subsidiaries, free and clear of any lien or other
encumbrance, 51% of the voting stock of the Capital Corporation;
provided, however, that the Capital Corporation may merge or
consolidate with, or sell or convey substantially all of its
assets to, the Company as provided in subsection 7.4.
5.7 Employee Benefit Plans. The Company shall
maintain, and cause each of its Subsidiaries to maintain, each
Plan as to which it may have liability, in compliance with all
applicable requirements of law and regulations.
SECTION 6. NEGATIVE COVENANTS OF THE COMPANY
The Company hereby agrees that, so long as there is any
obligation by any Bank to make Loans hereunder, any Loan remains
outstanding and unpaid or any other amount is owing to any Agent
or any Bank hereunder, it shall not, nor in the case of
subsections 6.2 and 6.3 shall it permit any Restricted Subsidiary
to (unless the Required Banks shall otherwise consent in
writing):
6.1 Company May Consolidate, etc., Only on Certain
Terms. Consolidate with or merge with or into any other
corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(a) either the Company shall be the continuing
corporation, or the corporation (if other than the Company)
formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company
substantially as an entirety shall expressly assume, by an
assumption agreement, executed and delivered to the
Administrative Agent, in form satisfactory to the Required
Banks, the due and punctual payment of the principal of and
interest on the Loans to the Company and the performance of
every covenant of this Agreement on the part of the Company
to be performed or observed;
(b) immediately after giving effect to such
transaction, no Default or Event of Default, shall have
happened and be continuing;
(c) if as a result thereof any property or assets of
the Company or a Restricted Subsidiary would become subject
to any Mortgage not permitted by (i) through (xii) of
subsection 6.2(a) or subsection 6.2(b), compliance shall be
effected with the first clause of subsection 6.2(a); and
(d) the Company and the successor Person have
delivered to the Administrative Agent an officers'
certificate signed by two Responsible Officers of the
Company stating that such consolidation, merger, conveyance
or transfer and such assumption agreement comply with this
subsection 6.1 and that all conditions precedent herein
provided for relating to such transaction have been complied
with.
6.2 Limitation on Liens. (a) Issue, incur, assume or
guarantee any debt (hereinafter in this subsection referred to as
"Debt") secured by any mortgage, security interest, pledge, lien
or other encumbrance (hereinafter called "Mortgage" or
"Mortgages") upon any Important Property, or upon any shares of
stock or indebtedness issued or incurred by any Restricted
Subsidiary (whether such Important Property, shares of stock or
indebtedness is now owned or hereafter acquired) without in any
such case effectively providing, concurrently with the issuance,
incurrence, assumption or guaranty of any such Debt, that the
Loans and all other amounts hereunder (together with, if the
Company shall so determine, any other indebtedness of or guaranty
by the Company or such Restricted Subsidiary ranking equally with
the Loans then existing or thereafter created) shall be secured
equally and ratably with or prior to such Debt; provided,
however, that the foregoing restrictions shall not apply to:
(i) Mortgages on any property acquired, constructed or
improved by the Company or any Restricted Subsidiary after
the date of this Agreement which are created or assumed
contemporaneously with, or within 120 days after, such
acquisition, construction or improvement to secure or
provide for the payment of all or any part of the purchase
price of such property or the cost of such construction or
improvement incurred after the date of this Agreement, or
(in addition to Mortgages contemplated by clauses (ii),
(iii) and (iv) below) Mortgages on any property existing at
the time of acquisition thereof; provided that such
Mortgages shall not apply to any Important Property
theretofore owned by the Company or any Restricted
Subsidiary other than, in the case of any such construction
or improvement, any theretofore unimproved real property on
which the property so constructed, or the improvement, is
located;
(ii) Mortgages on any property, shares of stock,
or
indebtedness existing at the time of acquisition thereof
from a corporation which is consolidated with or merged
into, or substantially all of the assets of which are
acquired by, the Company or a Restricted Subsidiary;
(iii) Mortgages on property of a corporation
existing at
the time such corporation becomes a Restricted Subsidiary;
(iv) Mortgages to secure Debt of a Restricted
Subsidiary to the Company or to another Restricted
Subsidiary;
(v) Mortgages in favor of the United States of America
or any State thereof, or any department, agency or
instrumentality or political subdivision of the United
States of America or any State thereof, to secure partial,
progress, advance or other payments pursuant to any contract
or statute or to secure any indebtedness incurred for the
purpose of financing all or any part of the purchase price
or the cost of constructing or improving the property
subject to such Mortgages and Mortgages given to secure
indebtedness incurred in connection with the financing of
construction of pollution control facilities, the interest
on which indebtedness is exempt from income taxes under the
Code;
(vi) any deposit or pledge of assets (1) with any
surety company or clerk of any court, or in escrow, as
collateral in connection with, or in lieu of, any bond on
appeal from any judgment or decree against the Company or a
Restricted Subsidiary, or in connection with other
proceedings or actions at law or in equity by or against the
Company or a Restricted Subsidiary, or (2) as security for
the performance of any contract or undertaking not directly
related to the borrowing of money or the securing of
indebtedness, if made in the ordinary course of business, or
(3) with any governmental agency, which deposit or pledge is
required or permitted to qualify the Company or a Restricted
Subsidiary to conduct business, to maintain self-insurance,
or to obtain the benefits of any law pertaining to worker's
compensation, unemployment insurance, old age pensions,
social security, or similar matters, or (4) made in the
ordinary course of business to obtain the release of
mechanics', workmen's, repairmen's, warehousemen's or
similar liens, or the release of property in the possession
of a common carrier;
(vii) Mortgages existing on property acquired by
the
Company or a Restricted Subsidiary through the exercise of
rights arising out of defaults on receivables acquired in
the ordinary course of business;
(viii) judgment liens, so long as the finality of
such
judgment is being contested in good faith and execution
thereon is stayed;
(ix) Mortgages for the sole purpose of extending,
renewing or replacing in whole or in part Debt secured by
any Mortgage referred to in the foregoing clauses (i) to
(viii), inclusive, or in this clause (ix), provided,
however, that the principal amount of Debt secured thereby
shall not exceed the principal amount of Debt so secured at
the time of such extension, renewal or replacement, and that
such extension, renewal or replacement shall be limited to
all or a part of the property which secured the Mortgage so
extended, renewed or replaced (plus improvements on such
property);
(x) liens for taxes or assessments or governmental
charges or levies not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being
contested in good faith by appropriate proceedings;
landlord's liens on property held under lease; and any other
liens of a nature similar to those hereinabove described in
this clause (x) which do not, in the opinion of the Company,
materially impair the use of such property in the operation
of the business of the Company or a Restricted Subsidiary or
the value of such property for the purposes of such
business;
(xi) Mortgages on Margin Stock owned by the
Company and
its Restricted Subsidiaries to the extent such Margin Stock
so Mortgaged exceeds 25% of the fair market value of the sum
of the Important Property of the Company and the Restricted
Subsidiaries plus the shares of stock (including Margin
Stock) and indebtedness issued or incurred by the Restricted
Subsidiaries; and
(xii) Mortgages on any Important Property of, or
any
shares of stock or indebtedness issued or incurred by, any
Restricted Subsidiary organized under the laws of Canada.
(b) (i) The provisions of subsection 6.2(a) shall not
apply to the issuance, incurrence, assumption or guarantee by the
Company or any Restricted Subsidiary of Debt secured by a
Mortgage which would otherwise be subject to the foregoing
restrictions up to an aggregate amount which, together with the
sum of (A) all other Debt issued or incurred by the Company and
its Restricted Subsidiaries secured by Mortgages (other than
Mortgages permitted by subsection 6.2(a)) which would otherwise
be subject to the foregoing restrictions and (B) the Attributable
Debt in respect of Sale and Lease-back Transactions in existence
at such time (other than Sale and Lease-back Transactions which,
if the Attributable Debt in respect of such Sale and Lease-back
had been a Mortgage, would have been permitted by clause (i) of
subsection 6.2(a) and other than Sale and Lease-back Transactions
the proceeds of which have been applied in accordance with
subsection 6.3(b)) does not at the time exceed 5% of Consolidated
Net Worth, as shown on the audited consolidated balance sheet
contained in the latest annual report to stockholders of the
Company.
(ii) For purposes of subsection 6.2(b)(i), the
term
"Consolidated Net Worth" shall mean the aggregate of capital and
surplus of the Company and its consolidated Subsidiaries, less
minority interests in Subsidiaries, determined in accordance with
GAAP; and the term "Attributable Debt" shall mean, as of any
particular time, the present value, discounted at a rate per
annum equal to the interest rate set forth in the Company's 8-
1/2% Debentures Due 2022, compounded semi-annually, of the
obligation of a lessee for rental payments during the remaining
term of any lease (including any period for which such lease has
been extended or may, at the option of the lessor, be extended);
the net amount of rent required to be paid for any such period
shall be the total amount of the rent payable by the lessee with
respect to such period, but may exclude amounts required to be
paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges; and, in the case of
any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may
be so terminated.
(c) If, upon any consolidation or merger of any
Restricted Subsidiary with or into any other corporation, or upon
any consolidation or merger of any other corporation with or into
the Company or any Restricted Subsidiary or upon any sale or
conveyance of the property of any Restricted Subsidiary as an
entirety or substantially as an entirety to any other Person, or
upon any acquisition by the Company or any Restricted Subsidiary
by purchase or otherwise of all or any part of the property of
any other Person, any Important Property theretofore owned by the
Company or such Restricted Subsidiary would thereupon become
subject to any Mortgage not permitted by the terms of subsection
(a) or (b) of this subsection 6.2, the Company, prior to such
consolidation, merger, sale or conveyance, or acquisition, will,
or will cause such Restricted Subsidiary to, secure payment of
the principal of and interest on the Loans (equally and ratably
with or prior to any other indebtedness of the Company or such
Subsidiary then entitled thereto) by a direct lien on all such
property prior to all liens other than any liens theretofore
existing thereon by an assumption agreement or otherwise.
(d) If at any time the Company or any Restricted
Subsidiary shall issue, incur, assume or guarantee any Debt
secured by any Mortgage not permitted by this subsection 6.2, to
which the covenant in subsection 6.2(a) is applicable, the
Company will promptly deliver to the Administrative Agent (with
counterparts for each Bank):
(i) an officers' certificate signed by two Responsible
Officers of the Company stating that the covenant of the
Company contained in paragraph (a) or (c) of this subsection
6.2 has been complied with; and
(ii) an opinion of counsel satisfactory to the
Administrative Agent to the effect that such covenant has
been complied with, and that any instruments executed by the
Company in the performance of such covenant comply with the
requirements of such covenant.
6.3 Limitations on Sale and Lease-back Transactions.
Enter into any arrangement with any Person providing for the
leasing to the Company or any Restricted Subsidiary of any
Important Property owned or hereafter acquired by the Company or
such Restricted Subsidiary (except for temporary leases for a
term, including any renewal thereof, of not more than three years
and except for leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries), which Important
Property has been or is to be sold or transferred by the Company
or such Restricted Subsidiary to such Person (herein referred to
as a "Sale and Lease-back Transaction") unless the net proceeds
of such sale are at least equal to the fair value (as determined
by the Board of Directors of the Company or such Restricted
Subsidiary, as applicable) of such property and either (a) the
Company or such Restricted Subsidiary would be entitled, pursuant
to the provisions of (1) subsection 6.2(a)(i) or (2) subsection
6.2(b), to incur Debt secured by a Mortgage on the Important
Property to be leased without equally and ratably securing the
Loans, or (b) the Company shall, and in any such case the Company
covenants that it will, within 120 days of the effective date of
any such arrangement, apply an amount equal to the fair value (as
so determined) of such property to the reduction of the
Commitments (to be accompanied by prepayment of the Loans in
accordance with subsection 2.6 to the extent that the principal
amount thereof outstanding prior to such prepayment would exceed
the Commitments as so reduced) or to the payment or other
retirement of funded debt for money borrowed, incurred or assumed
by the Company which ranks senior to or pari passu with the Loans
or of funded debt for money borrowed, incurred or assumed by any
Restricted Subsidiary (other than, in either case, funded debt
owned by the Company or any Restricted Subsidiary). For this
purpose, funded debt means any Debt which by its terms matures at
or is extendable or renewable at the sole option of the obligor
without requiring the consent of the obligee to a date more than
twelve months after the date of the creation of such Debt.
6.4 Consolidated Tangible Net Worth. Permit
Consolidated Tangible Net Worth as at the end of any fiscal
quarter of the Company and its consolidated Subsidiaries
(including the last quarter of any fiscal year of the Company and
its consolidated Subsidiaries) to be less than $500,000,000.
SECTION 7. NEGATIVE COVENANTS OF THE CAPITAL
CORPORATION
The Capital Corporation hereby agrees that, so long as
there is any obligation by any Bank to make Loans to the Capital
Corporation hereunder, any Loan of the Capital Corporation
remains outstanding and unpaid or any other amount is owing by
the Capital Corporation to any Bank or any Agent hereunder, the
Capital Corporation shall not, nor in the case of the agreements
set forth in subsection 7.3 shall it permit any of its
Subsidiaries to, directly or indirectly (unless the Required
Banks shall otherwise consent in writing):
7.1 Fixed Charges Ratio. Permit the ratio of Net
Earnings Available for Fixed Charges to Fixed Charges for any
fiscal quarter of the Capital Corporation and its consolidated
Subsidiaries (including the last quarter of any fiscal year of
the Capital Corporation and its consolidated Subsidiaries) to be
less than 1.05 to 1.
7.2 Consolidated Senior Debt to Consolidated
Capital Base. Permit the ratio of Consolidated Senior Debt to
Consolidated Capital Base as at the end of any fiscal quarter of
the Capital Corporation and its consolidated Subsidiaries
(including the end of any fiscal year of the Capital Corporation
and its consolidated Subsidiaries) to be more than 8 to 1.
7.3 Limitation on Liens. Issue, incur, assume or
guarantee any Debt secured by any Mortgage upon any of its
property or assets, or any of the property or assets of any of
its Subsidiaries (whether any such property or assets is now
owned or hereafter acquired) without in any such case effectively
providing, concurrently with the issuance, incurrence, assumption
or guaranty of any such Debt, that the Loans and all other
amounts hereunder (together with, if the Capital Corporation
shall so determine, any other indebtedness of or guaranty by such
Borrower or such Subsidiary ranking equally with the Loans then
existing or thereafter created) shall be secured equally and
ratably with or prior to such Debt; provided, however, that the
foregoing restrictions shall not apply to:
(a) Mortgages on fixed assets or other physical
properties hereafter acquired to secure all or part of the
purchase price thereof or the acquiring hereafter of such assets
or properties subject to any existing lien or charge securing
indebtedness (whether or not assumed);
(b) easements, liens, franchises or other minor
encumbrances on or over any real property which do not materially
detract from the value of such property or its use in the
business of the Capital Corporation or a Subsidiary of the
Capital Corporation;
(c) any deposit or pledge of assets (i) with any
surety company or clerk of any court, or in escrow, as collateral
in connection with or in lieu of, any bond on appeal from any
judgment or decree against the Capital Corporation or a
Subsidiary of the Capital Corporation, or in connection with
other proceedings or actions at law or in equity by or against
the Capital Corporation or a Subsidiary of the Capital
Corporation or (ii) as security for the performance of any
contract or undertaking not directly or indirectly related to the
borrowing of money or the securing of indebtedness, if made in
the ordinary course of business, or (iii) with any governmental
agency, which deposit or pledge is required or permitted to
qualify the Capital Corporation or a Subsidiary of the Capital
Corporation to conduct business, to maintain self-insurance, or
to obtain the benefits of any law pertaining to workmen's
compensation, unemployment insurance, old age pensions, social
security, or similar matters, or (iv) made in the ordinary course
of business to obtain the release of mechanics', workmen's,
repairmen's, warehousemen's or similar liens, or the release of
property in the possession of a common carrier;
(d) Mortgages by a Subsidiary as security for
indebtedness owed to the Capital Corporation;
(e) liens for taxes and governmental charges not yet
due or contested by appropriate proceedings in good faith;
(f) Mortgages existing on property acquired by the
Capital Corporation or a Subsidiary of the Capital Corporation
through the exercise of rights arising out of defaults on
receivables acquired in the ordinary course of business;
(g) judgment liens, so long as the finality of such
judgment is being contested in good faith and execution thereon
is stayed;
(h) any Mortgage (other than directly or indirectly to
secure borrowed money) if, after giving effect thereto, the
aggregate principal sums secured by pledges or liens otherwise
within the restrictions in clauses (a) through (h) of this
subsection 7.3 do not exceed $500,000;
(i) any transaction characterized as a sale of
receivables (retail or wholesale) but reflected as secured
indebtedness on a balance sheet in conformity with generally
accepted accounting principles in the United States of America;
and
(j) Mortgages on Margin Stock owned by the Capital
Corporation and its Subsidiaries to the extent such Margin Stock
exceeds 25% of the fair market value of property and assets of
the Capital Corporation and its Subsidiaries (including Margin
Stock).
7.4 Consolidation; Merger. Merge or consolidate with,
or sell or convey (other than a conveyance by way of lease) all
or substantially all of its assets to, any other corporation,
unless (a) the Capital Corporation shall be the surviving
corporation in the case of a merger or the surviving, resulting
or transferee corporation (the "successor corporation") shall be
a corporation organized under the laws of the United States or
any State thereof or the District of Columbia and shall expressly
assume the due and punctual performance of all of the agreements,
covenants and obligations of the Capital Corporation under this
Agreement by supplemental agreement satisfactory to the
Administrative Agent and executed and delivered to the
Administrative Agent by the successor corporation and (b) the
Capital Corporation or such successor corporation, as the case
may be, shall not, immediately after such merger, consolidation,
sale or conveyance, be in default in the performance of any such
agreements, covenants or obligations; provided, however, that the
Capital Corporation may merge or consolidate with, or sell or
convey substantially all of its assets to, the Company, if (i)
the Company is the successor corporation (as defined above) and
(ii) subclause (b) above is complied with. Upon any such merger,
consolidation, sale or conveyance, the successor corporation
shall succeed to and be substituted for, and may exercise every
right and power of and shall be subject to all the obligations
of, the Capital Corporation under this Agreement, with the same
effect as if the successor corporation had been named as the
Capital Corporation herein and therein.
SECTION 8. EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any
of the following events:
(a) Either Borrower shall fail to pay any principal of
any Loan when due in accordance with the terms hereof or to
pay any interest on any Loan, in each case within two
Business Days after any such amount becomes due in
accordance with the terms hereof or shall fail to pay any
other amount payable hereunder within five Business Days
after any such other amount becomes due in accordance with
the terms thereof or hereof; or
(b) Any representation or warranty made or pursuant to
subsection 4.2 deemed made by either Borrower herein or
which is contained in any material certificate, material
document or material financial statement or other material
statement furnished at any time under or in connection with
this Agreement shall prove to have been incorrect in any
material respect on or as of the date made or deemed made;
or
(c) The Company shall default in the observance or
performance of any agreement contained in subsection 5.6,
6.1 or 6.4, or the Capital Corporation shall default in the
observance or performance of any agreement contained in
subsections 7.1, 7.2 or 7.4; or
(d) Either Borrower shall default in the observance or
performance of any agreement contained in this Agreement
(other than those agreements referred to above in this
Section 8), and such default shall continue unremedied for a
period of 30 days after written notice thereof shall have
been given to such Borrower by the Administrative Agent or
any of the Banks through the Administrative Agent; or
(e) (i) Either Borrower or any of its Significant
Subsidiaries shall default in any payment of principal of or
interest on any indebtedness for borrowed money (other than
the Loans) in a principal amount in excess of $30,000,000 in
the aggregate, or any interest or premium thereon, when due
(whether at scheduled maturity or by required prepayment,
acceleration, demand or otherwise) and such failure shall
continue beyond the period of grace, if any, provided in the
instrument or agreement under which such indebtedness was
created; or (ii) any other default (other than any default
arising solely out of either Borrower's, or any of its
Significant Subsidiaries', violation of any arrangement with
any Bank, or any affiliate of any Bank, in any way
restricting such Borrower's, or such Significant
Subsidiary's, right or ability to sell, pledge or otherwise
dispose of Margin Stock other than Restricted Margin Stock),
or any other event that with notice or the lapse of time, or
both, would constitute such a default, under any agreement
or instrument relating to any such indebtedness for borrowed
money (other than the Loans), shall occur and shall continue
after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such default or
event is to accelerate the maturity of such indebtedness; or
(iii) any such indebtedness shall, by reason of default, be
declared to be due and payable, or required to be prepaid,
prior to the stated maturity thereof (unless such
indebtedness is declared due and payable, or required to be
prepaid, solely by reason of either Borrower's, or any of
its Significant Subsidiaries', violation of any arrangement
with any Bank, or any affiliate of any Bank, in any way
restricting such Borrower's, or such Significant
Subsidiary's, right or ability to sell, pledge or otherwise
dispose of Margin Stock other than Restricted Margin Stock);
or
(f) (i) Either Borrower or any of its Significant
Subsidiaries shall commence any case, proceeding or other
action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for
it or for all or any substantial part of its assets, or such
Borrower or any of its Significant Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii)
there shall be commenced against either Borrower or any of
its Significant Subsidiaries any case, proceeding or other
action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 90 days; or
(g) Any action is undertaken to terminate any Plan as
to which either Borrower, or any Subsidiary of either
Borrower, may have liability, or any such Plan is terminated
or such Borrower or Subsidiary withdraws from such Plan, or
any Reportable Event as to any such Plan shall occur, and
there shall exist a deficiency in the assets available to
satisfy the benefits guaranteeable under ERISA with respect
to such Plan, in the aggregate for all such Plans with
respect to which any of the foregoing shall have occurred in
the immediately preceding 12 consecutive months, of more
than 25% of the Consolidated Tangible Net Worth of such
Borrower; or
(h) Any Person shall own beneficially, directly or
indirectly, 30% or more of the common stock of the Company;
or any Person shall have the power, direct or indirect, to
vote securities having 30% or more of the ordinary voting
power for the election of directors of the Company or shall
own beneficially, directly or indirectly, securities having
such power, provided that there shall not be included among
the securities as to which any such Person has such power to
vote or which such Person so owns securities owned by such
Person as nominee for the direct or indirect beneficial
owner thereof or securities as to which such power to vote
arises by virtue of proxies solicited by the management of
the Company; or
(i) In circumstances not covered by paragraph (e) of
this Section 8, amounts outstanding under the Linked
Agreement shall have been declared or become due and payable
by reason of the occurrence of an "Event of Default" under
the Linked Agreement, and such amounts shall not have been
repaid in full within 90 days after the date on which such
amounts were so declared or become due and payable;
then, and in any such event, (a) if such event is an Event of
Default specified in paragraph (f) above, automatically the
Commitments shall immediately terminate and the Loans hereunder
(with accrued interest thereon) and all other amounts owing under
this Agreement and the Loans shall immediately become due and
payable, and (b) if such event is any Event of Default specified
in paragraph (a) or (e), then with the consent of the Majority
Banks, the Administrative Agent may, or upon the request of the
Majority Banks, the Administrative Agent shall, or if such Event
is an Event of Default specified in paragraph (b), (c), (d), (g),
(h) or (i), then with the consent of the Required Banks, the
Administrative Agent may, or upon the request of the Required
Banks, the Administrative Agent shall, take either or both of the
following actions: (i) by notice to the Borrowers, declare the
Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (ii) by notice of default to the
Borrowers, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement to be
due and payable forthwith, whereupon the same shall immediately
become due and payable. Except as expressly provided above in
this Section, presentment, demand, protest and all other notices
of any kind are hereby expressly waived with respect to this
Agreement.
SECTION 9. THE AGENTS
9.1 Appointment. (a) Each Bank hereby irrevocably
designates and appoints Chemical as the Administrative Agent of
such Bank under this Agreement, and each Bank hereby irrevocably
authorizes Chemical as the Administrative Agent for such Bank, to
take such action on its behalf under the provisions of this
Agreement and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent by the terms
of this Agreement, together with such other powers as are
reasonably incidental thereto.
(b) Each Bank hereby irrevocably designates and
appoints Deutsche Bank AG as the Auction Agent of such Bank under
this Agreement, and each Bank hereby irrevocably authorizes
Deutsche Bank AG, as the Auction Agent for such Bank, to take
such action on its behalf under the provisions of this Agreement
and to exercise such powers and perform such duties as are
expressly delegated to the Auction Agent by the terms of this
Agreement, together with such other powers as are reasonably
incidental thereto.
(c) Notwithstanding anything to the contrary contained
in this Agreement, the parties hereto hereby agree that neither
the Syndication Agent, the Documentation Agent, any Managing
Agent nor any Co-Agent shall have any rights, duties or
responsibilities in such respective capacity nor shall any such
Person have the authority to take any action hereunder in its
capacity as such.
(d) Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or otherwise exist against any
Agent.
9.2 Delegation of Duties. Each Agent may execute any
of its duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Each Agent
shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any
of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable to any Bank
for any action lawfully taken or omitted to be taken by it or
such Person under or in connection with this Agreement (except
for its or such Person's own gross negligence or wilful
misconduct), or (ii) responsible in any manner to any of the
Banks for any recitals, statements, representations or warranties
made by the Borrowers or any officer thereof contained in this
Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by any Agent
under or in connection with, this Agreement or for the value,
validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or for any failure of the Borrowers
to perform their obligations hereunder. No Agent shall be under
any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in,
or conditions of, this Agreement, or to inspect the properties,
books or records of the Borrowers.
9.4 Reliance by Agents. Each Agent shall be entitled
to rely, and shall be fully protected in relying, upon any Loan,
writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, facsimile, telex or teletype
message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation,
counsel to the Borrowers), independent accountants and other
experts selected by such Agent. Each Agent may deem and treat
the payee of any Loan as the owner thereof for all purposes
except as provided in subsections 10.5(c) and 10.5(d). Each
Agent shall be fully justified in failing or refusing to take any
discretionary action under this Agreement unless it shall first
receive such advice or concurrence of the Required Banks as it
deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting,
under this Agreement in accordance with a request of the Required
Banks, or all of the Banks (if the consent of all of the Banks is
required), and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Banks.
9.5 Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default unless the Administrative Agent
has received notice from a Bank or either Borrower referring to
this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event
that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Banks. The
Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by
the Majority Banks, the Required Banks, or all Banks, as
applicable; provided that, unless and until the Administrative
Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests
of the Banks.
9.6 Non-Reliance on Agents and Other Banks. Each Bank
expressly acknowledges that neither any Agent nor any of its
respective officers, directors, employees, agents, attorneys-in-
fact or affiliates has made any representations or warranties to
it and that no act by such Agent hereafter taken, including any
review of the affairs of the Borrowers, shall be deemed to
constitute any representation or warranty by such Agent to any
Bank. Each Bank represents to each Agent that it has,
independently and without reliance upon such Agent or any other
Bank, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation
into the business, operations, property, financial and other
condition and creditworthiness of each Borrower and made its own
decision to make its Loans hereunder and enter into this
Agreement. Each Bank also represents that it will, independently
and without reliance upon each Agent or any other Bank, and based
on such documents and information as it shall deem appropriate at
the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this
Agreement, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the
Borrowers. Except for notices, reports and other documents
expressly required to be furnished to the Banks by any Agent
hereunder, such Agent shall not have any duty or responsibility
to provide any Bank with any credit or other information
concerning the business, operations, property, financial and
other condition or creditworthiness of either Borrower which may
come into the possession of such Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
9.7 Indemnification. The Banks agree to indemnify
each Agent in its capacity as such (to the extent not reimbursed
by the Borrowers and without limiting the obligation of the
Borrowers to do so), ratably (as reasonably determined by the
Administrative Agent), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever
which may at any time (including without limitation at any time
following the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out
of this Agreement, or any documents contemplated by or referred
to herein or the transactions contemplated hereby or any action
taken or omitted by such Agent under or in connection with any of
the foregoing; provided that no Bank shall be liable for the
payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from such Agent's gross negligence
or wilful misconduct. The agreements in this subsection 9.7
shall survive the payment of the Loans and all other amounts
payable hereunder.
9.8 Agents in their Individual Capacities. Each Agent
and its respective affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the
Borrowers as though such Agent were not an Agent hereunder. With
respect to its Loans made by it, each Agent shall have the same
rights and powers under this Agreement as any Bank and may
exercise the same as though it were not an Agent, and the terms
"Bank" and "Banks" shall include the Administrative Agent and the
Auction Agent in their respective individual capacity.
9.9 Successor Agents. Each Agent may resign as Agent
upon 30 days' notice thereof to the Borrowers and the Banks. If
any Agent shall resign as Agent under this Agreement, then the
Required Banks shall appoint from among the Banks a successor
agent for the Banks which successor agent shall be approved by
the Borrowers, whereupon such successor agent shall succeed to
the rights, powers and duties of the Administrative Agent, the
Auction Agent or Canadian Administrative Agent, as the case may
be, and the term "Administrative Agent", "Auction Agent" or
"Canadian Administrative Agent", as the case may be, shall mean
such successor agent effective upon its appointment, and the
former Agent's rights, powers and duties as Agent shall be
terminated, without any other or further act or deed on the part
of such former Agent or any of the parties to this Agreement.
After any retiring Agent's resignation hereunder as Agent, the
provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent
under this Agreement.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. With the written consent
of the Required Banks, the Administrative Agent and the Borrowers
may, from time to time, enter into written amendments,
supplements or modifications hereto for the purpose of adding any
provisions to this Agreement or changing in any manner the rights
of the Banks or of the Borrowers hereunder, and with the consent
of the Required Banks the Administrative Agent on behalf of the
Banks may execute and deliver to the Borrowers a written
instrument waiving, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the
requirements of this Agreement or any Default or Event of Default
and its consequences; provided, however, that no such waiver,
amendment, supplement or modification shall (a) extend the
maturity of any Loan, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount
thereof, or reduce the rate of any fee payable hereunder or
extend the time of payment thereof, in each case, without the
written consent of (i) with respect to any such change to any
Committed Rate Loan, each Bank and (ii) with respect to any such
change to any Bid Loan, the Bank which made such Bid Loan, or (b)
change the amount of any Bank's Commitment or the terms of its
obligation to make Loans hereunder or amend, modify or waive any
provision of this subsection 10.1 or reduce the percentage
specified in the definition of Majority Banks or Required Banks,
or consent to the assignment or transfer by either Borrower of
any of its rights and obligations under this Agreement, in each
case without the written consent of each Bank, or (c) amend,
modify or waive any provision of Section 9 without the written
consent of the then Administrative Agent and Auction Agent and,
if applicable, any other Agent affected by such amendment,
modification or waiver, or (d) extend the Termination Date with
respect to any Bank without the written consent of such Bank.
Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Banks and shall
be binding upon the Borrowers, the Banks and the Agents. In the
case of any waiver, the Borrowers, the Banks and the Agents shall
be restored to their former position and rights hereunder, and
any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any
right consequent thereon. Anything contained in the foregoing to
the contrary notwithstanding, the relevant Borrower and the
relevant Bank with respect to a Negotiated Rate Loan may, from
time to time, enter into amendments, supplements or modifications
for the purpose of adding any provisions to such Negotiated Rate
Loans or changing in any manner the rights of such Bank and such
Borrower thereunder and such Bank may waive any of the
requirements of such Negotiated Rate Loan; provided, however,
that such Borrower and such Bank shall notify the Administrative
Agent in writing of any extension of the maturity of such
Negotiated Rate Loan or reduction of the principal amount
thereof; provided, further, that such Borrower and such Bank
shall not extend the maturity of such Negotiated Rate Loan beyond
the last day of the Commitment Period.
10.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in
writing, by facsimile transmission, by telephone confirmed in
writing or by telegraph and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when
delivered by hand, or when deposited in the mail, postage
prepaid, or, in the case of facsimile transmission, when
received, or, in the case of telegraphic notice, when delivered
to the telegraph company or department, addressed as follows in
the case of the Borrowers, the Administrative Agent, the Auction
Agent and the Canadian Administrative Agent and as set forth on
Schedule III in the case of the other parties hereto, or to such
address or other address as may be hereafter notified by the
respective parties hereto:
The Borrowers:
The Company: Deere & Company
Attention: Treasurer
John Deere Road
Moline, Illinois 61265
Telephone: 309-765-4405
Facsimile: 309-765-5021
The Capital
Corporation: John Deere Capital Corporation
Attention: Manager
First National Bank Building
1 East First Street
Reno, Nevada 89501
Telephone: 702-786-5527
Facsimile: 702-786-4145
with a copy to: Deere & Company
Attention: Treasurer
John Deere Road
Moline, Illinois 61265
Facsimile: 309-765-5021
The Administrative
Agent: Chemical Bank
Attention: Theodore Swimmer
270 Park Avenue
New York, New York 10017
Telephone: 212-270-5720
Facsimile: 212-270-2112
The Auction Agent: Deutsche Bank AG Chicago Branch
c/o Deutsche Bank AG New York Branch
Attention: Loan Syndications
31 West 52nd Street
New York, New York 10019
Telephone: 212-474-7041
Facsimile: 212-474-7048
The Canadian
Administrative Agent: The Toronto-Dominion Bank
Attention: Manager Agency
Agency Administration
Corporate and Investment Banking
Group
Toronto Dominion Center
Toronto Dominion Tower
55 King Street West, 7th Floor
Toronto, Ontario
Canada M5K 1A2
Telephone: 416-982-3706
Facsimile: 416-982-5535
provided that any notice, request or demand to or upon the
Administrative Agent, the Auction Agent or the Banks pursuant to
subsections 2.1, 2.2, 2.5, 2.6, 2.9, 2.11 and 9.9 shall not be
effective until received (including receipt by telephone if
permitted hereby).
10.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of either
Borrower, the Administrative Agent, the Auction Agent or any
Bank, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4 Payment of Expenses and Taxes. (a) The Company
agrees (i) to pay or reimburse the Administrative Agent for all
its out-of-pocket costs and expenses incurred in connection with
the preparation and execution of, and any amendment, supplement
or modification to, this Agreement and any other documents
prepared in connection herewith, and the consummation of the
transactions contemplated hereby and thereby in such manner and
in such amounts as shall be agreed to in writing by the Company
and the Administrative Agent, (ii) to pay or reimburse the
Administrative Agent for the reasonable fees and disbursements of
counsel to the Administrative Agent incurred in connection with
the preparation and execution of, and any amendment, supplement,
modification to, this Agreement and other documents prepared in
connection herewith, and the consummation of the transaction
contemplated hereby and thereby, and (iii) to pay or reimburse
each Bank and each Agent for all its out-of-pocket costs and
expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement and any such
other documents, including, without limitation, fees and
disbursements of counsel to each Agent and one counsel
representing the Banks.
(b) The Borrowers agree jointly and severally to
indemnify and hold harmless each Agent and each Bank against any
and all losses, claims, damages and liabilities (other than in
connection with actions, suits and proceedings by any of the
Banks against any of the other Banks), joint or several, to which
they or any of them may become subject insofar as such losses,
claims, damages and liabilities arise out of, relate to or are
based on this Agreement (including the responsibilities, duties
and obligations of the Banks hereunder and their agreement to
make Loans hereunder) in connection with any acquisition or
proposed acquisition of any securities or assets by a Borrower or
any of its Subsidiaries, and shall reimburse each such
indemnified party for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any
such loss, claim, damage or liability, subject to the following
paragraph. This indemnity agreement shall be in addition to any
liability which either Borrower may otherwise have.
(c) Promptly after receipt by an indemnified party
under subsection 10.4(b) of written notice of any loss, claim,
damage or liability in respect of which indemnity may be sought
by it hereunder, such indemnified party will, if a claim is to be
made against the Borrowers, notify the Borrowers thereof in
writing; but the omission so to notify the Borrowers will not
relieve the Borrowers from any liability (otherwise than under
this subsection 10.4) which they may have to any indemnified
party except as may be required or provided otherwise than under
this subsection 10.4. Thereafter, the indemnified party and the
Borrowers shall consult, to the extent appropriate, with a view
to minimizing the cost to the Borrowers of their obligations
hereunder. In case any indemnified party receives written notice
of any loss, claim, damage or liability in respect of which
indemnity may be sought hereunder by it and it notifies the
Borrowers thereof, the Borrowers will be entitled to participate
therein and, to the extent that they may elect by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory at all
times to such indemnified party; provided, however, that (i) if
the parties against whom any loss, claim, damage or liability
arises include both the indemnified party and a Borrower or any
Subsidiary of a Borrower and the indemnified party shall have
reasonably concluded that there may be legal defenses available
to it or other indemnified parties which are different from or
additional to those available to a Borrower or any Subsidiary of
a Borrower and may conflict therewith, the indemnified party or
parties shall have the right to select one separate counsel for
such indemnified party or parties to assume such legal defenses
and to otherwise participate in the defense of such loss, claim,
damage or liability on behalf of such indemnified party or
parties and (ii) if any loss, claim, damage or liability arises
out of actions brought by or for the benefit of a Borrower or any
Subsidiary of a Borrower, the indemnified party or parties shall
have the right to select their counsel and to assume and direct
the defense thereof and neither Borrower shall be entitled to
participate therein or assume the defense thereof. Upon receipt
of notice from the Borrowers to such indemnified party of their
election so to assume the defense of such loss, claim, damage or
liability and approval by the indemnified party of counsel, the
Borrowers shall not be liable to such indemnified party under
this subsection 10.4 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such
counsel in connection with the assumption of legal defenses in
accordance with the proviso to the next preceding sentence, (ii)
the Borrowers shall not have employed and continued to employ
counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
commencement of the action or (iii) the Borrowers shall have
authorized the employment of counsel for the indemnified party at
the expense of the Borrowers.
(d) Notwithstanding any other provision contained in
this subsection 10.4, (i) the Borrowers shall not be liable for
any settlement, compromise or consent to the entry of any order
adjudicating or otherwise disposing of any loss, claim, damage or
liability effected without their consent and (ii) after the
Borrowers have assumed the defense of any loss, claim, damage or
liability under the preceding paragraph with respect to any Bank,
they will not settle, compromise or consent to entry of any order
adjudicating or otherwise disposing thereof (1) if such
settlement, compromise or order involves the payment of money
damages, except if the Borrowers agree with such Bank to pay such
money damages, and, if not simultaneously paid, to furnish such
Bank with satisfactory evidence of their ability to pay such
money damages, and (2) if such settlement, compromise or order
involves any relief against such Bank, other than the payment of
money damages, except with the prior written consent of such
Bank.
(e) The agreements in this subsection 10.4 shall
survive repayment of the Loans and all other amounts payable
hereunder.
10.5 Successors and Assigns; Participations;
Purchasing Banks. (a) This Agreement shall be binding upon and
inure to the benefit of the Borrowers, the Banks, the Agents and
their respective successors and assigns, except that the
Borrowers may not assign or transfer any of their rights or
obligations under this Agreement without the prior written
consent of each Bank.
(b) Any Bank may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time sell to one or more banks or other financial
institutions ("Participants") participating interests in the
Loans, Commitments and other interests of such Bank hereunder.
In the event of any such sale by a Bank of participating
interests to a Participant, such Bank's obligations under this
Agreement to the other parties to this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the
performance thereof, such Bank shall remain the holder of any
such Loan for all purposes under this Agreement, and the
Borrowers, the Administrative Agent and the Auction Agent shall
continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement.
(c) Any Bank may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time assign to one or more banks or other financial
institutions ("Loan Assignees") any Bid Loan or Negotiated Rate
Loan or portion thereof owing to such Bank, pursuant to a Loan
Assignment executed by the assignor Bank and the Loan Assignee.
Upon such execution, from and after the Transfer Effective Date
specified in such Loan Assignment, the Loan Assignee shall, to
the extent of the assignment provided for in such Loan Assignment
and to the extent permitted by applicable law, be deemed to have
the same rights and benefits with respect to such Bid Loans and
Negotiated Rate Loans and the same obligation to share pursuant
to subsection 10.6 as it would have had if it were a Bank
hereunder; provided, that unless such Loan Assignment shall
otherwise specify and a copy of such Loan Assignment shall have
been delivered to the Administrative Agent for its acceptance and
recording in the Register in accordance with subsection 10.5(f),
the assignor Bank shall act as collection agent for the Loan
Assignee, and in the case of Bid Loans, the Administrative Agent
shall pay all amounts received from the relevant Borrower which
are allocable to the assigned Bid Loan directly to the assignor
Bank without any further liability to the relevant Loan Assignee,
and, in the case of Negotiated Rate Loans, the relevant Borrower
shall pay all amounts due under the assigned Negotiated Rate Loan
directly to the assignor Bank without any further liability to
the Loan Assignee. At the request of any Loan Assignee, on or
promptly after the Transfer Effective Date specified in such Loan
Assignment, the relevant Borrower, at its own expense, shall
execute and deliver to the Loan Assignee a promissory note with
respect to the Bid Loans or Negotiated Rate Loans to the order of
such Loan Assignee in an amount equal to the Bid Loan or
Negotiated Rate Loan assigned. Such note shall be dated the
Borrowing Date in respect of such Bid Loan or Negotiated Rate
Loan and shall otherwise be in the form of Exhibit M; provided,
however, that such Borrower shall not be required to execute and
deliver more than an aggregate of two notes with respect to the
Bid Loans of any Bank with the same Interest Period at any time
outstanding. A Loan Assignee shall not, by virtue of such Loan
Assignment, become a party to this Agreement or have any rights
to consent to or refrain from consenting to any amendment, waiver
or other modification of any provision of this Agreement or any
related document; provided, that (i) the assignor Bank and the
Loan Assignee may, in their discretion, agree between themselves
upon the manner in which the assignor Bank will exercise its
rights under this Agreement and any related document, and (ii) if
a copy of such Loan Assignment shall have been delivered to the
Administrative Agent for its acceptance and recording in the
Register in accordance with subsection 10.5(f), neither the
principal amount of, the interest rate on, nor the maturity date
of, any Bid Loan or Negotiated Rate Loan assigned to a Loan
Assignee will be modified without written consent of such Loan
Assignee.
(d) Any Bank may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, with the consent of the Borrowers, sell to any Bank or any
affiliate thereof and to one or more additional banks or other
financial institutions ("Purchasing Banks"), portions (subject to
the last sentence of this subsection 10.5(d)) of its rights
(which rights may include such Bank's rights in respect of Loans
it has disbursed) and obligations under this Agreement, pursuant
to a Commitment Transfer Supplement, executed by such Purchasing
Bank and such transferor Bank (and, in the case of a Purchasing
Bank that is not then a Bank or an affiliate thereof, by the
Borrowers and the Administrative Agent), and delivered to the
Administrative Agent for its acceptance and recording in the
Register; provided, that in any event any such sale by a Tranche
B Bank of any portion of its rights (which rights may include
such Bank's rights in respect of Loans it has disbursed) and
obligations hereunder to a Purchasing Bank must be accompanied by
a concurrent assignment by such Tranche B Bank's Affiliated
Linked Lender to such Purchasing Bank (or to an affiliate of such
Purchasing Bank) of an equal percentage of such Affiliated Linked
Lender's rights (which rights may include such Bank's rights in
respect of "Loans" disbursed thereunder) and obligations under
the Linked Agreement. Upon such execution, delivery, acceptance
and recording, from and after the Transfer Effective Date
specified in such Commitment Transfer Supplement, (i) the
Purchasing Bank thereunder shall be a party hereto and, to the
extent provided in such Commitment Transfer Supplement, have the
rights and obligations of a Bank hereunder with a Commitment as
set forth therein, and (ii) the transferor Bank thereunder shall
cease to have rights and obligations under this Agreement to
which the Purchasing Bank has succeeded (and, in the case of a
Commitment Transfer Supplement covering all or the remaining
portion of a transferor Bank's rights and obligations under this
Agreement, such transferor Bank shall cease to be a party
hereto). Such Commitment Transfer Supplement shall be deemed to
amend this Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Purchasing Bank and the
resulting adjustment of Commitments and Commitment Percentages
arising from the purchase by such Purchasing Bank of a portion of
the rights and obligations of such transferor Bank under this
Agreement. On or promptly after the Transfer Effective Date
specified in such Commitment Transfer Supplement, the Purchasing
Bank and the Administrative Agent, on behalf of such Purchasing
Bank, shall open and maintain in the name of each Borrower a Loan
Account with respect to such Purchasing Bank's Committed Rate
Loans and Bid Loans to such Borrower. Anything contained in this
Agreement to the contrary notwithstanding, no Bank may sell any
portion of its rights and obligations under this subsection
10.5(d) to any bank or financial institution if after giving
effect to such sale the Commitment of either of the selling and
purchasing institutions would be less than $5,000,000.
(e) The Administrative Agent shall maintain at its
address referred to in subsection 10.2 a copy of each Loan
Assignment and each Commitment Transfer Supplement delivered to
it and a register (the "Register") for the recordation of (i) the
names and addresses of the Banks and the Commitment of, and
principal amount of the Loans (other than Negotiated Rate Loans)
owing to, each Bank from time to time, and (ii) with respect to
each Loan Assignment delivered to the Administrative Agent, the
name and address of the Loan Assignee and the principal amount of
each Bid Loan owing to such Loan Assignee. The entries in the
Register shall constitute prima facie evidence of the accuracy of
the information so recorded, and the Borrowers, the
Administrative Agent and the Banks may treat each Person whose
name is recorded in the Register as the owner of the Loan
recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by the Company or any
Bank or Loan Assignee at any reasonable time and from time to
time upon reasonable prior notice.
(f) Upon its receipt of a Loan Assignment executed by
an assignor Bank and a Loan Assignee, together with payment to
the Administrative Agent (by the assignor Bank or the Loan
Assignee, as agreed between them) of a registration and
processing fee of $2,500, the Administrative Agent shall (i)
accept such Loan Assignment, (ii) record the information
contained therein in the Register and (iii) give prompt notice of
such acceptance and recordation to the assignor Bank, the Loan
Assignee and the Borrowers. Upon its receipt of a Commitment
Transfer Supplement executed by a transferor Bank and a
Purchasing Bank (and, in the case of a Purchasing Bank that is
not then a Bank or an affiliate thereof, by the Borrowers and the
Administrative Agent) together with payment to the Administrative
Agent (by the transferor Bank or the Purchasing Bank, as agreed
between them) of a registration and processing fee of $2,500 for
each Purchasing Bank listed in such Commitment Transfer
Supplement, the Administrative Agent shall (A) accept such
Commitment Transfer Supplement, (B) record the information
contained therein in the Register and (C) give prompt notice of
such acceptance and recordation to the Banks and the Borrowers.
(g) The Company authorizes each Bank to disclose to
any Participant, Loan Assignee or Purchasing Bank (each, a
"Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning the
Borrowers and their Subsidiaries which has been delivered to such
Bank by or on behalf of the Borrowers pursuant to this Agreement
or in connection with such Bank's credit evaluation of the
Borrowers and their Subsidiaries prior to becoming a party to
this Agreement, provided that with respect to confidential data
or information described in subsection 10.7, such confidential
data may be disclosed only to (i) a Purchasing Bank and/or (ii)
any other Transferee or prospective Transferee with the
Borrowers' prior written consent, which consent shall not be
unreasonably withheld with respect to prospective Participants,
Participants, prospective Loan Assignees and Loan Assignees;
provided, however, that such Bank shall not disclose any such
confidential data or information pursuant to this subsection
10.5(g) unless (i) it has notified the Purchasing Bank or other
Transferee or potential Transferee that such data or information
are confidential, such notification to be in writing if such data
or information are disclosed in writing and orally if such data
or information are disclosed orally, and (ii) such Purchasing
Bank, Transferee or potential Transferee has agreed in writing to
be bound by the provisions of subsection 10.7.
(h) If, pursuant to this subsection, any loan
participation or series of loan participations is sold or any
interest in this Agreement is transferred to any Transferee, the
transferor Bank shall cause such Transferee, concurrently with
the effectiveness of such transfer or the first transfer to occur
in a series of transfers between such transferor Bank and such
Transferee, (i) to represent to the transferor Bank (for the
benefit of the transferor Bank, the Administrative Agent and the
Borrowers) either (A) that it is incorporated under the laws of
the United States or a state thereof or (B) that under applicable
law and treaties no taxes will be required to be withheld by the
Administrative Agent, the Borrowers or the transferor Bank with
respect to any payments to be made to such Transferee in respect
of the Loans, (ii) to furnish to the transferor Bank, the
Administrative Agent and the Borrowers (A) either (I) a statement
that it is incorporated under the laws of the United States or a
state thereof or (II) if it is not so incorporated, a letter in
duplicate in the form of Exhibit J or Exhibit K, as appropriate,
and two duly completed copies of United States Internal Revenue
Service Form 4224 or 1001 or successor applicable form, as the
case may be, certifying in each case that such Transferee is
entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes, and (B) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be, to establish an
exemption from United States backup withholding tax, and (iii) to
agree (for the benefit of the transferor Bank, the Administrative
Agent and the Borrowers) to provide the transferor Bank, the
Administrative Agent and the Borrowers a new Form 4224 or 1001
and Form W-8 or W-9, or successor applicable form or other manner
of certification, on or before the date that any such letter or
form expires or becomes obsolete or after the occurrence of any
event requiring a change in the most recent letter and form
previously delivered by it, certifying in the case of a Form 1001
or 4224 that such Transferee is entitled to receive payments
under this Agreement without deduction or withholding of any
United States federal income tax, and in the case of a Form W-8
or W-9 establishing exemption from United States backup
withholding tax. The Administrative Agent shall not be
responsible for obtaining such documentation except from its own
Transferees.
(i) Nothing in this subsection 10.5 shall prohibit any
Bank from pledging or assigning its Loans to any Federal Reserve
Bank in accordance with applicable law.
10.6 Adjustments. Except as provided in subsection
2.12, if any Bank (a "benefitted Bank") shall at any time receive
any payment of all or part of its Committed Rate Loans, or
interest thereon or facility fee hereunder, or receive any
collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in clause (e) of Section 8, or otherwise)
in a greater proportion than any such payment to and collateral
received by any other Bank, if any, in respect of such other
Bank's Committed Rate Loans, or interest thereon, or facility fee
hereunder, such benefitted Bank shall purchase for cash from the
other Banks such portion of each such other Bank's Committed Rate
Loans, or shall provide such other Banks with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary
to cause such benefitted Bank to share the excess payment or
benefits of such collateral or proceeds ratably with each of such
other Banks; provided, however, that if all or any portion of
such excess payment or benefits is thereafter recovered from such
benefitted Bank, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrowers agree that each
Bank so purchasing a portion of another Bank's Committed Rate
Loans may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as
fully as if such Bank were the direct holder of such portion.
10.7 Confidentiality. (a) Each of the Agents and the
Banks shall, subject as hereinafter provided, keep confidential
from any third party any data or information received by them
from the Borrowers pursuant to this Agreement which, if provided
in writing, is designated in writing as such, and if provided
orally, is designated orally as such by the Borrowers except:
(i) any such data or information as is or becomes
publicly available or generally known otherwise than as a
result of any breach of the provisions of this subsection
10.7;
(ii) as required by law, rule, regulation or
official
direction;
(iii) as may be necessary to protect as against the
Borrowers or either of them the interests of the Banks or
any of them under this Agreement;
(iv) to the extent permitted under subsection
10.5; and
(v) to the attorneys, accountants and regulators of
such Banks, and to each other Bank.
(b) Each of the Agents and the Banks shall use their
reasonable efforts to ensure that any confidential data or
information received by them from the Borrowers pursuant to this
Agreement which is disclosed to employees of such Agent or Bank
(as the case may be) is so disclosed only to the extent necessary
for purpose of the administration of this Agreement and, in all
cases, on the condition that such information and data shall be
kept confidential except for such purpose.
(c) The provisions of this subsection 10.7 shall
survive the payment in full of all amounts payable hereunder and
the termination of this Agreement.
10.8 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of
separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall
be lodged with the Borrowers and the Administrative Agent.
10.9 Governing Law. This Agreement and the rights and
obligations of the parties under this Agreement shall be governed
by, and construed and interpreted in accordance with, the law of
the State of New York.
10.10 Waiver with Respect to Existing Credit
Facilities. The Banks parties to the Credit Agreements referred
to in subsection 4.1(e)(i) and (ii) hereby waive compliance by
the Borrowers with the provisions of subsection 2.5 of each such
Credit Agreement to the extent necessary to allow the Borrowers,
acting jointly, upon delivery to the Administrative Agent
thereunder of a notice of termination, to terminate the
"Commitments" thereunder immediately upon such delivery.
10.11 Consent to Jurisdiction and Service of Process.
All judicial proceedings brought against the Borrowers with
respect to this Agreement may be brought in any state or federal
court of competent jurisdiction in the State of New York, and, by
execution and delivery of this Agreement, the Borrowers accept,
for themselves and in connection with their properties, generally
and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and irrevocably agree to be bound by any final
judgment rendered thereby in connection with this Agreement from
which no appeal has been taken or is available. The Borrowers
irrevocably agree that all process in any such proceedings in any
such court may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form
of mail), postage prepaid, to them at their addresses set forth
in subsection 10.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto,
such service being hereby acknowledged by the Borrowers to be
effective and binding service in every respect. Each of the
Borrowers, the Agents and the Banks irrevocably waives any
objection, including without limitation, any objection to the
laying of venue or based on the grounds of forum non conveniens
which it may now or hereafter have to the bringing of any such
action or proceeding in any such jurisdiction. Nothing herein
shall affect the right to serve process in any other manner
permitted by law or shall limit the right of any Agent or any
Bank to bring proceedings against the Borrowers in the courts of
any other jurisdiction.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
DEERE & COMPANY
Attested by:
/s/ Michael A. Harring By:/s/ Nathan J. Jones
Title: Assistant Secretary Title: Treasurer
JOHN DEERE CAPITAL CORPORATION
Attested by:
/s/ Michael A. Harring By:/s/ Nathan J. Jones
Title: Assistant Secretary Title: Treasurer
CHEMICAL BANK, as Administrative
Agent, as a Managing Agent and as
a Bank
By:/s/ Robert Gaynor
Title: Vice President
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as
Syndication Agent, as a Managing
Agent and as a Bank
By:/s/ Patricia B. Bril
Title: Managing Director
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as
Documentation Agent, as a
Managing Agent and as a Bank
By:/s/ Patricia Del Grande
Title: Vice President
DEUTSCHE BANK AG CHICAGO BRANCH, as
Auction Agent and as a Managing
Agent
By:/s/ David S. Berger
Title: Assistant Vice President
By:/s/ Pamela J. Neal
Title: Assistant Vice President
DEUTSCHE BANK AG CHICAGO AND/OR
CAYMAN ISLANDS BRANCHES, as a
Managing Agent and as a Bank
By:/s/ David S. Berger
Title: Assistant Vice President
By:/s/ Pamela J. Neal
Title: Assistant Vice President
THE TORONTO-DOMINION BANK,
as Canadian Administrative Agent
and as a Managing Agent
By:/s/ Bruce Chambers
Title: Manager
TORONTO DOMINION (TEXAS), INC., as
a Bank
By:/s/ Lisa Allison
Title: Vice President
THE BANK OF NEW YORK, as a Co-Agent
and as a Bank
By:/s/ Charlotte Sohn
Title: Assistant Vice President
BANQUE NATIONALE DE PARIS, CHICAGO
BRANCH, as a Co-Agent and as a
Bank
By:/s/ Patricia J. Doyle
Title: Senior Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Co-Agent and as a Bank
By:/s/ John W. Kunkle
Title: Authorized Signatory
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as a Co-Agent and as a
Bank
By:/s/ Patricia Merritt
Title: Vice President
NATIONSBANK OF TEXAS, N.A., as a
Co-Agent and as a Bank
By:/s/ Perry B. Stephenson
Title: Senior Vice President
ROYAL BANK OF CANADA, as a Co-Agent
and as a Bank
By:/s/ Preston D. Jones
Title: Senior Manager
Corporate Banking
SOCIETE GENERALE, as a Co-Agent and
as a Bank
By:/s/ Eric E.O. Siebert
Title: Vice President
UNION BANK OF SWITZERLAND, as a Co-
Agent and as a Bank
By:/s/ Douglas R. Elliott
Title: Vice President
Corporate Banking
By:/s/ Michelle A. Moreno
Title: Vice President
THE BANK OF TOKYO, LTD.
CHICAGO BRANCH
By:/s/ Joseph P. Howard
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT,
GRAND CAYMAN BRANCH
By:/s/ Mark D. Monson
Title: Assistant Vice President
By:/s/ Joachim G. Fuchs
Title: Executive Vice President
CREDIT SUISSE
By:/s/ Harry R. Olsen
Title: Member of Senior
Management
By:/s/ Kristinn R. Kristinsson
Title: Associate
THE FIRST NATIONAL BANK OF CHICAGO
By:/s/ Michael W. McCorkle
Title: Attorney-in-fact
THE FUJI BANK, LIMITED
By:/s/ Peter L. Chinnici
Title: Joint General Manager
THE LONG TERM CREDIT BANK OF JAPAN,
LTD. CHICAGO BRANCH
By:/s/ Armund J. Schoen, Jr.
Title: Vice President and
Deputy General Manager
MELLON BANK N.A.
By:/s/ Gary Gegick
Title: Vice President
NBD BANK
By:/s/ Timothy M. Monohan
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By:/s/ J.P. Peyton
Title: Senior Vice President and
Group Executive
<PAGE>
SCHEDULE I
TERMS OF SUBORDINATION
"Senior Indebtedness" means the principal of (and
premium, if any) and unpaid interest on (a) indebtedness of John
Deere Capital Corporation (the "Capital Corporation") (including
indebtedness of others guaranteed by the Capital Corporation),
other than the indebtedness evidenced by the Securities [such
term to be defined as the debt to be issued under the indenture
or agreement to which this Schedule relates], the 8-5/8%
Subordinated Debentures due 2019 and the 9-5/8% Subordinated
Notes due 1998 of the Capital Corporation, whether outstanding on
the date hereof or hereafter created, incurred, assumed or
guaranteed, for money borrowed, unless in the instrument creating
or evidencing the same or pursuant to which the same is
outstanding it is provided that such indebtedness is not senior
or prior in right of payment to the Securities, and (b) renewals,
extensions, modifications and refundings of any such
indebtedness.
SUBORDINATION
Section 1. Agreement to Subordinate.
The Capital Corporation, for itself, its successors and
assigns, covenants and agrees, and each holder of Securities, by
such holder's acceptance thereof, likewise covenants and agrees,
that the payment of the principal of (and premium, if any) and
interest on each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all
Senior Indebtedness.
Section 2. Distribution on Dissolution, Liquidation
and Reorganization; Subrogation of Securities.
Upon any distribution of assets of the Capital
Corporation upon any dissolution, winding up, liquidation or
reorganization of the Capital Corporation, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling
of the assets and liabilities of the Capital Corporation or
otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provisions reflecting the
rights conferred in this Agreement upon the Senior Indebtedness
and the holders thereof with respect to the Securities by a
lawful plan of reorganization under applicable bankruptcy law),
(a) the holders of Senior Indebtedness shall be
entitled to receive payment in full of the principal thereof
(and premium if any) and the interest due on the Senior
Indebtedness before the holders of the Securities are
entitled to receive any payment upon the principal of (or
premium, if any) or interest on indebtedness evidenced by
the Securities; and
(b) any payment or distribution of assets of the
Capital Corporation of any kind or character, whether in
cash, property or securities, to which the holders of the
Securities or any trustee therefor would be entitled except
for the provisions of this Article shall be paid by the
liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to
the holders of Senior Indebtedness or their representative
or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according
to the aggregate amounts remaining unpaid on account of the
principal of (and premium, if any) and interest on the
Senior Indebtedness held or represented by each holder of
Senior Indebtedness, to the extent necessary to make payment
in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing,
any payment or distribution of assets of the Capital
Corporation of any kind or character, whether in cash,
property or securities, shall be received by any trustee for
the holders of the Securities or the holders of the
Securities before all Senior Indebtedness is paid in full,
such payment or distribution shall be paid over, upon
written notice to any trustee for the holders of the
Securities, to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the payment
of all Senior Indebtedness remaining unpaid until all such
Senior Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
holders of the Securities shall be subrogated to the rights of
the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Capital
Corporation applicable to Senior Indebtedness until the principal
of (and premium, if any) and interest on the Securities shall be
paid in full and no such payments or distributions to the holders
of the Securities of cash, property or securities otherwise
distributable to the holders of Senior Indebtedness shall, as
between the Capital Corporation, its creditors other than the
holders of Senior Indebtedness, and the holders of the
Securities, be deemed to be a payment by the Capital Corporation
to or on account of the Securities. It is understood that the
provisions of this Article are, and are intended, solely for the
purpose of defining the relative rights of the holders of the
Securities, on the one hand, and the holders of Senior
Indebtedness, on the other hand. Nothing contained in this
Article or elsewhere in this Agreement or in the Securities is
intended to or shall impair, as between the Capital Corporation,
its creditors other than the holders of Senior Indebtedness, and
the holders of the Securities, the obligation of the Capital
Corporation, which is unconditional and absolute, to pay to the
holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become
due and payable in accordance with their terms, or to affect the
relative rights of the holders of the Securities and creditors of
the Capital Corporation other than the holders of Senior
Indebtedness, nor shall anything herein or in the instruments or
other evidence of the Securities prevent any trustee for the
holders of the Securities or the holder of any Securities from
exercising all remedies otherwise permitted by applicable law
upon default under this Agreement or such instrument or other
evidence, subject to the rights, if any, under this Article of
the holders of Senior Indebtedness in respect of cash, property
or securities of the Capital Corporation received upon the
exercise of any such remedy.
Section 3. No Payment on Securities in Event of Non-
Payment When Due of Senior Indebtedness.
No payment by the Capital Corporation on account of
principal (or premium, if any), sinking funds, or interest on the
Securities shall be made unless full payment of amounts then due
for principal, premium, if any, sinking funds and interest on
Senior Indebtedness has been made or duly provided for in money
or money's worth.
<PAGE>
SCHEDULE II
COMMITMENTS
Bank
Commitment
PART A:
Chemical Bank
$262,500,000
Bank of America National Trust and
$262,500,000
Savings Association
The Chase Manhattan Bank (National Association)
$262,500,000
Deutsche Bank AG Chicago and/or
$262,500,000
Cayman Islands Branches
The Bank of New York
$175,000,000
Banque Nationale de Paris, Chicago Branch
$175,000,000
Morgan Guaranty Trust Company of New York
$175,000,000
NationsBank of Texas, N.A.
$175,000,000
Societe Generale
$175,000,000
Union Bank of Switzerland
$175,000,000
The Bank of Tokyo, Ltd., Chicago Branch
$87,500,000
Commerzbank Aktiengesellschaft,
$87,500,000
Grand Cayman Branch
Credit Suisse
$87,500,000
The First National Bank of Chicago
$87,500,000
The Fuji Bank, Limited
$87,500,000
The Long Term Credit Bank of Japan, Ltd.
$87,500,000
Chicago Branch
Mellon Bank, N.A.
$87,500,000
NBD Bank
$87,500,000
Wachovia Bank of Georgia, N.A.
$87,500,000
Total
$2,887,500,000
Part B:
Toronto Dominion (Texas), Inc.
$262,500,000
Canadian Imperial Bank of Commerce
$175,000,000
Royal Bank of Canada
$175,000,000
Total
$612,500,000
<PAGE>
SCHEDULE III
ADDRESSES FOR NOTICES
Chemical Bank
Attention: Theodore Swimmer
270 Park Avenue
New York, New York 10017
Telephone: (212) 270-5720
Facsimile: (212) 270-2112
The Chase Manhattan Bank
(National Association)
Attention: Patricia Bril
Asset Management Group
One Chase Manhattan Plaza, 5th Floor
New York, New York 10081
Telephone: (212) 552-6233
Facsimile: (212) 552-7075
Bank of America National Trust
and Savings Association
Attention: Patricia Del Grande
231 South LaSalle Street
Chicago, Illinois 60697
Telephone: (312) 828-3122
Facsimile: (312) 765-2080
Deutsche Bank AG Chicago and/or
Cayman Islands Branches
Attention: Christine Cierpinski
Suite 4350
227 West Monroe Street
Chicago, Illinois 60606
Telephone: (312) 578-4107
Facsimile: (312) 578-4111
Toronto Dominion (Texas), Inc.
Attention: Lisa Allison
909 Fannin, Suite 1700
Houston, Texas 77010
Telephone: (713) 653-8231
Facsimile: (713) 951-9921
with a copy to:
The Toronto-Dominion Bank
Attention: Dylan T. MacKenzie
Suite 5430
70 West Madison Street
Chicago, Illinois 60602
Telephone: (312) 977-2119
Facsimile: (312) 782-6337
The Bank of New York
Attention: Charlotte Sohn
One Wall Street
Central Division - 19th Floor
New York, New York 10286
Telephone: (212) 635-1147
Facsimile: (212) 635-1208
Banque Nationale de Paris,
Chicago Branch
Attention: Christine Howatt
209 South LaSalle Street
Chicago, Illinois 60604
Telephone: (312) 977-1383
Facsimile: (312) 977-1380
Canadian Imperial Bank of Commerce
Attention: John W. Kunkle
200 West Madison
Suite 2300
Chicago, Illinois 60606
Telephone: (312) 750-8732
Facsimile: (312) 726-8884
Morgan Guaranty Trust Company
of New York
Attention: Patricia Merritt
60 Wall Street
22nd Floor
New York, New York 10260
Telephone: (212) 648-6744
Facsimile: (212) 648-5336
NationsBank of Texas, N.A.
Attention: Perry B. Stephenson
901 Main Street
67th Floor
P.O. Box 831000
Dallas, Texas 75283
Telephone: (214) 508-0913
Facsimile: (214) 508-0980
Royal Bank of Canada
Grand Cayman (North America No. 1) Branch
c/o New York Operations Center
Attention: Manager, Loans Administration
Financial Square
23rd Floor
New York, New York 10005
Telephone: (212) 428-6311
Facsimile: (212) 428-2372
with a copy to:
Royal Bank of Canada
Attention: Preston D. Jones
One North Franklin Street
Suite 700
Chicago, Illinois 60606
Telephone: (312) 551-1618
Facsimile: (312) 551-0805
Societe Generale
Attention: Eric E.O. Siebert, Jr.
181 West Madison Street
Suite 3400
Chicago, Illinois 60602
Telephone: (312) 578-5003
Facsimile: (312) 578-5099
Union Bank of Switzerland
Attention: Douglas R. Elliott
30 South Wacker Drive
Chicago, Illinois 60606
Telephone: (312) 993-5468
Facsimile: (312) 993-5530
The Bank of Tokyo, Ltd.
Chicago Branch
Attention: Jennifer Nelson
69 West Washington Street
9th Floor
Chicago, Illinois 60602
Telephone: (312) 236-3132
Facsimile: (312) 236-8268
Commerzbank Aktiengesellschaft,
Grand Cayman Branch
Attention: Mark Monson
311 South Wacker Drive
Suite 5800
Chicago, Illinois 60606
Telephone: (312) 408-6920
Facsimile: (312) 435-1486
Credit Suisse
Attention: Hazel Leslie
12 East 49th Street
41st Floor
New York, New York 10017
Telephone: (212) 238-5218
Facsimile: (212) 238-5246
The First National Bank
of Chicago
Attention: Michael W. McCorkle
One First National Plaza
Suite 0324
Chicago, Illinois 60670
Telephone: (312) 732-3568
Facsimile: (312) 732-1712
The Fuji Bank, Limited
Attention: Richard J. Dunning
225 West Wacker Drive
Suite 2000
Chicago, Illinois 60606
Telephone: (312) 621-9485
Facsimile: (312) 621-0539
The Long Term Credit Bank of Japan, Ltd.
Chicago Branch
Attention: John Carley
190 South LaSalle Street
Suite 800
Chicago, Illinois 60603
Telephone: (312) 853-9516
Facsimile: (312) 704-8505
Mellon Bank N.A.
Attention: Jeffrey M. Anderson
55 West Monroe
Suite 2600
Chicago, Illinois 60603
Telephone: (312) 357-3405
Facsimile: (312) 357-3414
NBD Bank
Attention: Timothy M. Monahan
611 Woodward Avenue
Detroit, Michigan 48226
Telephone: (313) 225-2762
Facsimile: (313) 225-3269
Wachovia Bank of Georgia, N.A.
Attention: Shedrick La-Vern Cleveland
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Telephone: (404) 332-1197
Facsimile: (404) 332-6898
<PAGE>
EXHIBIT A
[FORM OF BORROWING NOTICE]
,
Chemical Bank
as Administrative Agent under the
Credit Agreement referred to below
270 Park Avenue
New York, New York 10017
Gentlemen:
Pursuant to subsection 2.1(c) of the $3,500,000,000
Credit Agreement, dated as of April 5, 1995, among DEERE &
COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties
thereto, CHEMICAL BANK, as Administrative Agent, THE CHASE
MANHATTAN BANK (NATIONAL ASSOCIATION), as Syndication Agent, BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Documentation Agent, DEUTSCHE BANK AG CHICAGO BRANCH, as Auction
Agent, THE TORONTO-DOMINION BANK, as Canadian Administrative
Agent, the Managing Agents named therein and the Co-Agents named
therein (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), the
undersigned hereby requests that the following Committed Rate
Loans be made on __________, as follows:
(1). Total Amount of Committed Rate
Loans.......................... $
(2). Amount of (1) to be allocated to
Eurodollar Loans............... $
(3). Amount of (1) to be allocated to
C/D Rate Loans................. $
(4). Amount of (1) to be allocated to
ABR Loans..................... $
(5A). Interest Periods and amounts to be
allocated thereto in respect of
Eurodollar Loans (amounts must total (2)):
(i) one month................ $
(ii) two months............... $
(iii) three months............. $
(iv) six months............... $
Total Eurodollar Loans.......... $
(5B). Interest Periods and amounts to
be allocated thereto in respect
of C/D Rate Loans (amounts must
total (3)):
(i) 30 days.................. $
(ii) 60 days.................. $
(iii) 90 days.................. $
(iv) 180 days................. $
Total C/D Rate Loans........... $
NOTE: THE AMOUNT APPEARING IN LINE (1) ABOVE
MUST BE AT LEAST EQUAL TO $25,000,000 AND
IN A WHOLE MULTIPLE OF $5,000,000 AND THE
AMOUNTS APPEARING IN EACH OTHER LINE ABOVE
MUST BE AT LEAST EQUAL TO $10,000,000 AND IN
A WHOLE MULTIPLE OF $1,000,000.
Terms defined in the Credit Agreement shall have the same
meanings when used herein.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
<PAGE>
EXHIBIT B
[FORM OF BID LOAN REQUEST]
,
Deutsche Bank AG Chicago Branch,
as Auction Agent under the Credit
Agreement referred to below
c/o Deutsche Bank AG New York Branch
31 West 52nd Street
New York, New York 10019
Dear Sirs:
Reference is made to the $3,500,000,000 Credit Agreement,
dated as of April 5, 1995, among DEERE & COMPANY, JOHN DEERE
CAPITAL CORPORATION, the Banks parties thereto, CHEMICAL BANK, as
Administrative Agent, THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as Syndication Agent, BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Documentation Agent, DEUTSCHE
BANK AG CHICAGO BRANCH, as Auction Agent, THE TORONTO-DOMINION
BANK, as Canadian Administrative Agent, the Managing Agents named
therein and the Co-Agents named therein (as the same may be
amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement
are used herein as therein defined.
This is an [Index Rate] [Absolute Rate] Bid Loan Request
pursuant to subsection 2.2 of the Credit Agreement requesting
quotes for the following Bid Loans:
Aggregate Principal Amount $ $ $
Borrowing Date
Interest Period
Maturity Date
Interest Payment Dates
Interest Rate Basis 360 day year
NOTE: THE AGGREGATE PRINCIPAL AMOUNTS APPEARING ABOVE
MUST BE IN THE AGGREGATE AT LEAST EQUAL TO
$25,000,000 AND IN A WHOLE MULTIPLE OF
$5,000,000.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
Note: Pursuant to the Credit Agreement, a Bid Loan Request may
be transmitted by facsimile transmission, or by
telephone, immediately confirmed by facsimile
transmission. In any case, a Bid Loan Request shall
contain the information specified in the second paragraph
of this form.
<PAGE>
EXHIBIT C
[FORM OF BID LOAN OFFER]
Deutsche Bank AG Chicago Branch, as Auction
Agent under the Credit Agreement
referred to below
c/o Deutsche Bank AG New York Branch
31 West 52nd Street
New York, New York 10019
Dear Sirs:
Reference is made to the $3,500,000,000 Credit
Agreement, dated as of April 5, 1995, among DEERE & COMPANY,
JOHN
DEERE CAPITAL CORPORATION, the Banks parties thereto, CHEMICAL
BANK, as Administrative Agent, THE CHASE MANHATTAN BANK
(NATIONAL
ASSOCIATION), as Syndication Agent, BANK OF AMERICA NATIONAL
TRUST
AND SAVINGS ASSOCIATION, as Documentation Agent, DEUTSCHE BANK
AG
CHICAGO BRANCH, as Auction Agent, THE TORONTO-DOMINION BANK, as
Canadian Administrative Agent, the Managing Agents named
therein
and the Co-Agents named therein (as the same may be amended,
supplemented or otherwise modified from time to time, the
"Credit
Agreement"). Terms defined in the Credit Agreement are used
herein as therein defined.
In accordance with subsection 2.2 of the Credit Agreement,
the undersigned Bid Loan Bank offers to make Bid Loans
thereunder
in the following amounts with the following maturity dates:
Borrowing Date:
Aggregate Maximum Amount: $
<PAGE>
Maturity Date 1: : Maturity Date 2: : Maturity Date 3: :
Maximum Amount $ Maximum Amount $ Maximum Amount $
Rate* Amount $ Rate* Amount $ Rate* Amount $
Rate* Amount $ Rate* Amount $ Rate* Amount $
Very truly yours,
[NAME OF BID LOAN BANK]
By:
Name:
Title:
Telephone:
Facsimile:
* If Index Rate Bid Loan, insert percentage above or below
Eurodollar Rate.
<PAGE>
EXHIBIT D
[FORM OF BID LOAN CONFIRMATION]
Deutsche Bank AG Chicago Branch, as Auction Agent
under the Credit Agreement referred
to below
c/o Deutsche Bank AG New York Branch
31 West 52nd Street
New York, New York 10019
Dear Sirs:
Reference is made to the $3,500,000,000 Credit
Agreement, dated as of April 5, 1995, among DEERE & COMPANY,
JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto,
CHEMICAL BANK, as Administrative Agent, THE CHASE MANHATTAN
BANK (NATIONAL ASSOCIATION), as Syndication Agent, BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Documentation Agent, DEUTSCHE BANK AG CHICAGO BRANCH, as
Auction Agent, THE TORONTO-DOMINION BANK, as Canadian
Administrative Agent, the Managing Agents named therein and
the Co-Agents named therein (as the same may be amended,
supplemented or otherwise modified from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement
are used herein as therein defined.
In accordance with subsection 2.2 of the Credit
Agreement, the undersigned accepts and confirms the offers by
Bid Loan Bank(s) to make Bid Loans to the undersigned on
, ____ [Borrowing Date] under said subsection 2.2 in
the (respective) amount(s) set forth on the attached list of
Bid Loans offered.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
[Borrower to attach Bid Loan Offer list prepared by Auction
Agent with accepted amount entered by the Borrower to right
of each Bid Loan Offer].
<PAGE>
EXHIBIT E
[FORM OF LOAN ASSIGNMENT]
LOAN ASSIGNMENT
LOAN ASSIGNMENT, dated as of the date set forth in
Item 1 of Schedule I hereto, among the Assignor Bank set
forth in Item 2 of Schedule I hereto (the "Assignor Bank"),
the Loan Assignee set forth in Item 3 of Schedule I hereto
(the "Loan Assignee"), and CHEMICAL BANK, as administrative
agent for the Banks under the Credit Agreement described
below (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, this Loan Assignment is being executed and
delivered in accordance with subsection 10.5(c) of the
$3,500,000,000 Credit Agreement, dated as of April 5, 1995
among DEERE & COMPANY (the "Company"), JOHN DEERE CAPITAL
CORPORATION (the "Capital Corporation"), the Assignor Bank
and the other Banks party thereto, the Administrative Agent,
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as
Syndication Agent, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Documentation Agent, DEUTSCHE BANK AG CHICAGO
BRANCH, as Auction Agent, THE TORONTO-DOMINION BANK, as
Canadian Administrative Agent, the Managing Agents named
therein and the Co-Agents named therein (as from time to time
amended, supplemented or otherwise modified in accordance
with the terms thereof, the "Credit Agreement"; terms defined
therein being used herein as therein defined); and
WHEREAS, the Assignor Bank has advanced to [the
Company] [the Capital Corporation] the Bid Loan or Negotiated
Rate Loan or portion thereof described in Item 5 of Schedule
I hereto (the "Loan"), and the Assignor Bank is assigning the
Loan to the Loan Assignee pursuant to this Loan Assignment;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
1. The Assignor Bank acknowledges receipt from the
Loan Assignee of an amount equal to the purchase price, as
agreed between the Assignor Bank and the Loan Assignee, of
the outstanding principal amount of, and accrued interest on,
the Loan. The Assignor Bank hereby irrevocably sells,
assigns and transfers to the Loan Assignee without recourse,
representation or warranty, and the Loan Assignee hereby
irrevocably purchases, takes and acquires from the Assignor
Bank, the Loan, together with all instruments, documents and
collateral security pertaining thereto.
2. (a) From and after the date set forth in Item
4 of Schedule I hereto (the "Transfer Effective Date"),
principal and interest that would otherwise be payable to or
for the account of the Assignor Bank pursuant to the Loan
shall, instead, be payable to or for the account of the Loan
Assignee.
(b) If Item 6 of Schedule I hereto contains
payment instructions for the Loan Assignee and if the Loan
Assignee delivers a copy of this Loan Assignment to the
Administrative Agent in accordance with subsection 10.5(f) of
the Credit Agreement at least 5 Business Days prior to the
due date of any payment to the Loan Assignee, the Loan
Assignee hereby instructs the Administrative Agent to pay all
such amounts payable to it pursuant to the provision of
subparagraph (a) of this paragraph 2 in accordance with such
payment instructions. If Item 6 of Schedule I hereto does
not contain payment instructions for the Loan Assignee (or a
copy hereof is not delivered to the Administrative Agent as
aforesaid), the Assignor Bank and the Loan Assignee agree
that, notwithstanding the provisions of subparagraph (a) of
this paragraph 2, the Assignor Bank is hereby appointed by
the Loan Assignee as its collection agent to receive from the
Administrative Agent, for and on behalf of and for the
account of the Loan Assignee, all amounts payable to or for
the account of the Loan Assignee under the Loan; the Assignor
Bank will immediately pay over to the Loan Assignee any such
amounts received by it, in like funds as received.
3. Each of the parties to this Loan Assignment
agrees that at any time and from time to time upon the
written request of any other party, it will execute and
deliver such further documents and do such further acts and
things as such other party may reasonably request in order to
effect the purposes of this Loan Assignment.
4. By executing and delivering this Loan
Assignment, the Assignor Bank and the Loan Assignee confirm
to and agree with each other and the Administrative Agent and
the Banks as follows: (i) other than the representation and
warranty that it is the legal and beneficial owner of the
interest being assigned hereby free and clear of any adverse
claim, the Assignor Bank makes no representation or warranty
and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with
the Credit Agreement or any other instrument or document
furnished pursuant thereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document
furnished pursuant thereto; (ii) the Assignor Bank makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or the
Capital Corporation or the performance or observance by the
Company or the Capital Corporation of any of its obligations
under the Credit Agreement or any other instrument or
document furnished pursuant thereto; (iii) the Loan Assignee
confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to
in subsection 3.1 of the Credit Agreement (unless financial
statements referred to in subsection 5.1(a) of the Credit
Agreement have become available), the financial statements
delivered pursuant to subsection 5.1 of the Credit Agreement,
if any, and such other documents and information as it has
deemed appropriate to make its own credit analysis and
decision to enter into this Loan Assignment; (iv) the Loan
Assignee will, independently and without reliance upon the
Administrative Agent, the Assignor Bank or any other Bank and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in respect of the Credit Agreement; and (v) the
Loan Assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental
thereto, all in accordance with Section 9 of the Credit
Agreement.
5. The Loan Assignee represents that it is
organized under the laws of . If the Loan
Assignee is organized under the laws of any jurisdiction
other than the United States or any State thereof, the Loan
Assignee (i) represents to the Assignor Bank (for the benefit
of the Assignor Bank, the Administrative Agent and [the
Company] [the Capital Corporation]) that under applicable law
and treaties no taxes will be required to be withheld by the
Administrative Agent, [the Company] [the Capital Corporation]
or the Assignor Bank with respect to any payments to be made
to the Loan Assignee in respect of the Loan, (ii) will
furnish to the Assignor Bank, the Administrative Agent and
[the Company] [the Capital Corporation], on or prior to the
Transfer Effective Date, a letter in duplicate in the form of
Exhibit J or Exhibit K, as appropriate, to the Credit
Agreement and two duly completed copies of either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein the Loan Assignee claims
entitlement to complete exemption from U.S. federal
withholding tax on all interest payments under the Loan),
(iii) will furnish to the Assignor Bank, the Administrative
Agent and [the Company] [the Capital Corporation], on or
prior to the Transfer Effective Date either U.S. Internal
Revenue Service Form W-8 or U.S. Internal Revenue Service
Form W-9 (wherein the Loan Assignee claims entitlement to
complete exemption from U.S. federal backup withholding tax
on all interest payments under the Loan) and (iv) agrees (for
the benefit of the Assignor Bank, the Administrative Agent
and [the Company] [the Capital Corporation]) to provide the
Assignor Bank, the Administrative Agent and [the Company]
[the Capital Corporation] a new Form 4224 or Form 1001 and
Form W-8 or W-9 or successor applicable form or other manner
of certification on or before the expiration or obsolescence
of, or after the occurrence of any event requiring a change
in, any previously delivered letter or form and comparable
statements in accordance with applicable U.S. laws and
regulations and amendments duly executed and completed by the
Loan Assignee, and comply from time to time with all
applicable U.S. laws and regulations with regard to such
withholding tax exemption and such backup withholding tax
exemption.
6. The Loan Assignee agrees to be bound by
subsection 10.7 of the Credit Agreement relating to
confidentiality.
7. This Loan Assignment shall be governed by, and
construed and interpreted in accordance with, the law of the
State of New York.
IN WITNESS WHEREOF, the parties hereto have caused
this Loan Assignment to be executed by their respective duly
authorized officers on Schedule I hereto as of the date set
forth in Item 1 of Schedule I hereto.
<PAGE>
SCHEDULE I
TO LOAN
ASSIGNMENT
Item 1 (Date of Loan
Assignment): [Insert date of Loan
Assignment]
Item 2 (Assignor Bank): [Insert name of Assignor
Bank]
Item 3 (Loan Assignee): [Insert name, address,
telephone and telex
numbers and name of
contact party of Loan
Assignee]
Item 4 (Transfer Effective
Date): [Insert Transfer Effective
Date] [To be a date not
less than five Business
Days after date of Loan
Assignment]
Item 5 (Description of Loan):
a. Borrowing Date and Maturity Date of Bid
Loan or Negotiated Rate Loan:
b. Principal Amount of Loan:
Item 6 (Payment Instructions): [Complete only if payments
are to be made by
Administrative Agent to
Loan Assignee rather than
to Assignor Bank as
collection agent for Loan
Assignee; leave blank if
Assignor Bank is to act as
such collection agent]
Item 7 (Signatures):
, as
Assignor Bank
By:
Title:
, as
Loan Assignee
By:
Title:
ACCEPTED FOR RECORDATION
IN REGISTER:
CHEMICAL BANK, as Administrative
Agent
By:
Title:
<PAGE>
EXHIBIT F
[FORM OF COMMITMENT TRANSFER SUPPLEMENT]
COMMITMENT TRANSFER SUPPLEMENT
COMMITMENT TRANSFER SUPPLEMENT, dated as of the
date set forth in Item 1 of Schedule I hereto, among the
Transferor Bank set forth in Item 2 of Schedule I hereto (the
"Transferor Bank"), each Purchasing Bank set forth in Item 3
of Schedule I hereto (each, a "Purchasing Bank"), DEERE &
COMPANY, a Delaware corporation (the "Company"), JOHN DEERE
CAPITAL CORPORATION, a Delaware corporation (the "Capital
Corporation"), and CHEMICAL BANK, as administrative agent for
the Banks under the Credit Agreement described below (in such
capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, this Commitment Transfer Supplement is
being executed and delivered in accordance with subsection
10.5(d) of the $3,500,000,000 Credit Agreement, dated as of
April 5, 1995, among the Company, the Capital Corporation,
the Transferor Bank and the other Banks party thereto, the
Administrative Agent, The Chase Manhattan Bank (National
Association), as Syndication Agent, Bank of America National
Trust and Savings Association, as Documentation Agent,
Deutsche Bank AG Chicago Branch, as Auction Agent, The
Toronto-Dominion Bank, as Canadian Administrative Agent, the
Managing Agents named therein and the Co-Agents named therein
(as from time to time amended, supplemented or otherwise
modified in accordance with the terms thereof, the "Credit
Agreement"; terms defined therein being used herein as
therein defined);
WHEREAS, each Purchasing Bank (if it is not already
a Bank party to the Credit Agreement) wishes to become a Bank
party to the Credit Agreement; and
WHEREAS, the Transferor Bank is selling and
assigning to each Purchasing Bank, rights, obligations and
commitments under the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
1. From and after the Transfer Effective Date set
forth in Item 4 of Schedule I hereto (the "Transfer Effective
Date"), each Purchasing Bank shall be a Bank party to the
Credit Agreement for all purposes thereof.
2. The Transferor Bank acknowledges receipt from
each Purchasing Bank of an amount equal to the purchase
price, as agreed between the Transferor Bank and such
Purchasing Bank (the "Purchase Price"), of the portion being
purchased by such Purchasing Bank (such Purchasing Bank's
"Purchased Percentage") of the outstanding Committed Rate
Loans and other amounts owing to the Transferor Bank under
the Credit Agreement (other than any Bid Loans and Negotiated
Rate Loans owing to the Transferor Bank). The Transferor
Bank hereby irrevocably sells, assigns and transfers to each
Purchasing Bank, without recourse, representation or
warranty, and each Purchasing Bank hereby irrevocably
purchases, takes and assumes from the Transferor Bank, such
Purchasing Bank's Purchased Percentage of the Commitments and
the presently outstanding Committed Rate Loans and other
amounts owing to the Transferor Bank under the Credit
Agreement (other than any Bid Loans and Negotiated Rate Loans
owing to the Transferor Bank) together with all instruments,
documents and collateral security pertaining thereto.
3. The Transferor Bank has made arrangements with
each Purchasing Bank with respect to (i) the portion, if any,
to be paid, and the date or dates for payment, by the
Transferor Bank to such Purchasing Bank of any fees
heretofore received by the Transferor Bank pursuant to the
Credit Agreement prior to the Transfer Effective Date and
(ii) the portion, if any, to be paid, and the date or dates
for payment, by such Purchasing Bank to the Transferor Bank
of fees or interest received by such Purchasing Bank pursuant
to the Credit Agreement from and after the Transfer Effective
Date.
4. (a) From and after the Transfer Effective
Date, principal, interest, fees and other amounts that would
otherwise be payable to or for the account of the Transferor
Bank pursuant to the Credit Agreement and the Committed Rate
Loans (other than any Bid Loans and Negotiated Rate Loans
owing to the Transferor Bank) shall, instead, be payable to
or for the account of the Transferor Bank and the Purchasing
Banks, as the case may be, in accordance with their
respective interests as reflected in this Commitment Transfer
Supplement, whether such amounts have accrued prior to the
Transfer Effective Date or accrue subsequent to the Transfer
Effective Date.
(b) The Transferor Bank and each Purchasing Bank
hereby agree and instruct the Administrative Agent that,
notwithstanding the provisions of subparagraph (a) of this
paragraph 4, on each date hereafter on which interest or fees
are payable under the Credit Agreement and the Committed Rate
Loans in respect of any period (an "Accrual Period") ending
on or prior to the Transfer Effective Date, any such interest
or fees payable to the Purchasing Bank on account of such
Accrual Period in respect of its interests as reflected in
this Commitment Transfer Supplement shall be paid over to the
Transferor Bank (and, if such interest or fees are not paid
in full when due, the payment over to the Transferor Bank
shall be ratable), and the Transferor Bank and such
Purchasing Bank will make appropriate arrangements for the
payment to such Purchasing Bank of the portion thereof owing
to it to reflect the amount, if any, included in the Purchase
Price for interest and fees in respect of any Accrual Period.
5. On or promptly after the Transfer Effective
Date specified in this Commitment Transfer Supplement, the
Purchasing Bank and the Administrative Agent, on behalf of
such Purchasing Bank, shall open and maintain in the name of
each Borrower a Loan Account with respect to such Purchasing
Bank's Committed Rate Loans and Bid Loans to such Borrower.
6. Concurrently with the execution and delivery
hereof, the Administrative Agent will, at the expense of the
Transferor Bank, provide to each Purchasing Bank (if it is
not already a Bank party to the Credit Agreement) conformed
copies of all documents delivered to the Administrative Agent
on the Closing Date in satisfaction of the conditions
precedent set forth in the Credit Agreement.
7. Each of the parties to this Commitment Transfer
Supplement agrees that at any time and from time to time upon
the written request of any other party, it will execute and
deliver such further documents and do such further acts and
things as such other party may reasonably request in order to
effect the purposes of this Commitment Transfer Supplement.
8. By executing and delivering this Commitment
Transfer Supplement, the Transferor Bank and each Purchasing
Bank confirm to and agree with each other and the
Administrative Agent and the Banks as follows: (i) other
than the representation and warranty that it is the legal and
beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, the Transferor Bank makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made
in or in connection with the Credit Agreement or any other
instrument or document furnished pursuant thereto or the
execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, the Committed
Rate Loans or any other instrument or document furnished
pursuant thereto; (ii) the Transferor Bank makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or the
Capital Corporation or the performance or observance by the
Company or the Capital Corporation of any of its obligations
under the Credit Agreement or any other instrument or
document furnished pursuant thereto; (iii) each Purchasing
Bank confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements
referred to in subsection 3.1 of the Credit Agreement, the
financial statements delivered pursuant to subsection 5.1 of
the Credit Agreement, if any, and such other documents and
information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Commitment
Transfer Supplement; (iv) each Purchasing Bank will,
independently and without reliance upon the Administrative
Agent, the Transferor Bank or any other Bank and based on
such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (v)
each Purchasing Bank appoints and authorizes the
Administrative Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement
as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably
incidental thereto, all in accordance with Section 9 of the
Credit Agreement; and (vi) each Purchasing Bank agrees that
it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are
required to be performed by it as a Bank.
9. The Purchasing Bank represents that it is
organized under the laws of . If the Purchasing
Bank is organized under the laws of any jurisdiction other
than the United States or any State thereof, the Purchasing
Bank (i) represents to the Transferor Bank (for the benefit
of the Transferor Bank, the Administrative Agent and the
Borrowers) that under applicable law and treaties no taxes
will be required to be withheld by the Administrative Agent,
the Borrowers or the Transferor Bank with respect to any
payments to be made to the Purchasing Bank in respect of the
Loans, (ii) will furnish to the Transferor Bank, the
Administrative Agent and the Borrowers, on or prior to the
Transfer Effective Date, a letter in duplicate in the form of
Exhibit J or Exhibit K, as appropriate, to the Credit
Agreement and two duly completed copies of either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein the Purchasing Bank claims
entitlement to complete exemption from U.S. federal
withholding tax on all interest payments in respect of the
Loans), (iii) will furnish to the Transferor Bank, the
Administrative Agent and the Borrowers, on or prior to the
Transfer Effective Date either U.S. Internal Revenue Service
Form W-8 or U.S. Internal Revenue Service Form W-9 (wherein
the Purchasing Bank claims entitlement to complete exemption
from U.S. federal backup withholding tax on all interest
payments under the Loan) and (iv) agrees (for the benefit of
the Transferor Bank, the Administrative Agent and the
Borrowers), to provide the Transferor Bank, the
Administrative Agent and the Borrowers a new Form 4224 or
Form 1001 and Form W-8 or W-9 or successor applicable form or
other manner of certification on or before the expiration or
obsolescence of, or after the occurrence of any event
requiring a change in, any previously delivered letter or
form and comparable statements in accordance with applicable
U.S. laws and regulations and amendments duly executed and
completed by the Purchasing Bank, and comply from time to
time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption and such backup
withholding tax exemption.
10. The Purchasing Bank agrees to be bound by
subsection 10.7 of the Credit Agreement relating to
confidentiality.
11. Schedule II hereto sets forth the revised
Commitments and Commitment Percentages of the Transferor Bank
and each Purchasing Bank as well as administrative
information with respect to each Purchasing Bank.
12. This Commitment Transfer Supplement shall be
governed by, and construed and interpreted in accordance
with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused
this Commitment Transfer Supplement to be executed by their
respective duly authorized officers on Schedule I hereto as
of the date set forth in Item 1 of Schedule I hereto.
<PAGE>
SCHEDULE I
TO
COMMITMENT
TRANSFER
SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR COMMITMENT
TRANSFER SUPPLEMENT
Item 1 (Date of Commitment [Insert date of Commitment
Transfer Supplement): Transfer Supplement]
Item 2 (Transferor Bank): [Insert name of Transferor
Bank]
Item 3 (Purchasing Bank[s]): [Insert name[s] of
Purchasing Bank[s]]
Item 4 (Transfer Effective [Insert Transfer Effective
Date): Date] [To be a date not
less than five Business
Days after date of
Commitment Transfer
Supplement]
Item 5 (Signatures of Parties
to Commitment Transfer
Supplement):
,
as Transferor Bank
By:
Title:
,
as a Purchasing Bank
By:
Title:
,
as a Purchasing Bank
By:
Title:
CONSENTED TO AND ACKNOWLEDGED:
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
ACCEPTED FOR RECORDATION
IN REGISTER:
CHEMICAL BANK, as Administrative
Agent
By:
Title:
<PAGE>
SCHEDULE II
TO COMMITMENT
TRANSFER
SUPPLEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
[Name of Transferor Bank] Revised Commitment Amount: $
Revised Commitment Percentage:
[Name of Purchasing Bank] New Commitment Amount: $
Address for Notices:
New Commitment Percentage:
Attn:
Telephone:
Facsimile:
[Name of Purchasing Bank] New Commitment Amount: $
Address for Notices:
New Commitment Percentage:
Attn:
Telephone:
Facsimile:
<PAGE>
EXHIBIT G
[FORM OF OPINION OF GENERAL COUNSEL
TO THE BORROWERS]
To each of the Banks parties to
the Credit Agreement referred
to below, to Chemical Bank,
as Administrative Agent, The
Chase Manhattan Bank (National
Association), as Syndication
Agent, Bank of America National
Trust and Savings Association,
as Documentation Agent, Deutsche
Bank AG Chicago Branch, as
Auction Agent, and The Toronto-
Dominion Bank, as Canadian
Administrative Agent
Deere & Company and
John Deere Capital Corporation
Gentlemen:
This opinion is furnished to you pursuant to
subsection 4.1(c) of the $3,500,000,000 Credit Agreement
dated as of April 5, 1995 (the "Credit Agreement") among
Deere & Company (the "Company"), John Deere Capital
Corporation (the "Capital Corporation", the Company and the
Capital Corporation being referred to herein individually as
a "Borrower" and collectively as the "Borrowers"), the Banks
parties thereto, Chemical Bank, as Administrative Agent, The
Chase Manhattan Bank (National Association), as Syndication
Agent, Bank of America National Trust and Savings
Association, as Documentation Agent, Deutsche Bank AG Chicago
Branch, as Auction Agent, The Toronto-Dominion Bank, as
Canadian Administrative Agent, the Managing Agents named
therein and the Co-Agents named therein for said Banks.
Terms defined in the Credit Agreement are used herein as
therein defined.
I am General Counsel of the Company and have acted
as counsel for the Capital Corporation in this matter. I am
familiar with the corporate history and organization of each
Borrower and of its Subsidiaries and the proceedings relating
to the authorization, execution and delivery by each Borrower
of the Credit Agreement. In that connection I have examined
or caused to have examined:
1. The Credit Agreement;
2. The documents furnished by each of the
Borrowers pursuant to Section 4 of the Credit
Agreement;
3. The Certificates of Incorporation of the
Borrowers and all amendments thereto (the
"Charters");
4. The bylaws of the Borrowers and all amendments
thereto (the "Bylaws"); and
5. Certificates of the Secretary of State of
Delaware, each dated a recent date, attesting
to the continued corporate existence and good
standing of the Borrowers in that State.
In addition, I have reviewed or caused to have
reviewed such of the corporate proceedings of the Borrowers,
and have examined such documents, corporate records, and
other instruments relating to the organization of the
Borrowers and their respective Subsidiaries and such other
agreements and instruments to which the Borrowers and their
respective Subsidiaries are parties, as I consider necessary
as a basis for the opinions hereinafter expressed. I have
assumed the due execution and delivery, pursuant to due
authorization, of the Credit Agreement by the Banks, the
Administrative Agent, the Syndication Agent, the
Documentation Agent, the Auction Agent, the Canadian
Administrative Agent, the Managing Agents and the Co-Agents,
and the authenticity of all documents submitted to me as
originals and the conformity to the original documents of all
documents submitted to me as certified, conformed or
photostatic copies.
I am qualified to practice law in the State of
Illinois and do not purport to be an expert on, and do not
express any opinion herein concerning, any laws other than
the laws of the State of Illinois, the General Corporation
Law of the State of Delaware and the Federal laws of the
United States.
Based upon the foregoing and upon such
investigation as I have deemed necessary, I am of the
following opinion:
1. Each Borrower is a corporation duly organized,
validly existing and in good standing under
the laws of the State of Delaware and has the
corporate power and authority to carry on its
business as now being conducted and to own its
properties.
2. The execution, delivery and performance by
each Borrower of the Credit Agreement are
within such Borrower's corporate powers, have
been duly authorized by all necessary
corporate action, and (i) do not contravene,
or constitute a default under the Charter or
the Bylaws of such Borrower, any judgment,
law, rule or regulation applicable to such
Borrower, or any Contractual Obligation by
which such Borrower is bound or (ii) result in
the creation of any lien, charge or
encumbrance upon any of its property or
assets. The Credit Agreement has been duly
executed and delivered on behalf of each
Borrower.
3. No authorization, approval, or other action
by, and no notice to or filing with, any
governmental authority or regulatory body is
required for the due execution, delivery and
performance by each Borrower of the Credit
Agreement.
4. There is no pending or, to the best of my
knowledge, threatened action or proceeding
against either Borrower or any of its
Subsidiaries before any court, governmental
agency or arbitrator which is likely to have a
materially adverse effect upon the financial
condition or operations of such Borrower and
its Subsidiaries taken as a whole.
I am aware that Shearman & Sterling will rely upon
the opinions set forth in paragraphs 1, 2, and 3 of this
opinion in rendering their opinion furnished pursuant to
subsection 4.1(c) of the Credit Agreement and consent
thereto.
Very truly yours,
Frank S. Cottrell
<PAGE>
EXHIBIT H
[FORM OF OPINION OF SPECIAL NEW YORK COUNSEL
TO THE BORROWERS]
To each of the Banks parties to the
Credit Agreement referred to below, to
Chemical Bank, as Administrative
Agent, The Chase Manhattan Bank
(National Association), as Syndication
Agent, Bank of America National Trust
and Savings Association, as
Documentation Agent, Deutsche Bank
AG Chicago Branch, as Auction Agent,
and The Toronto-Dominion Bank, as
Canadian Administrative Agent
Deere & Company
John Deere Capital Corporation
Ladies and Gentlemen:
This opinion is furnished to you pursuant to
subsection 4.1(c) of the $3,500,000,000 Credit Agreement,
dated as of April 5, 1995 (the "Credit Agreement"), among
Deere & Company (the "Company"), John Deere Capital
Corporation (the "Capital Corporation", the Company and the
Capital Corporation being referred to herein individually as
a "Borrower" and collectively as the "Borrowers"), the Banks
parties thereto, Chemical Bank, as Administrative Agent, The
Chase Manhattan Bank (National Association), as Syndication
Agent, Bank of America National Trust and Savings
Association, as Documentation Agent, Deutsche Bank AG Chicago
Branch, as Auction Agent, The Toronto-Dominion Bank, as
Canadian Administrative Agent, the Managing Agents named
therein and the Co-Agents named therein. Terms defined in
the Credit Agreement are used herein as therein defined.
We have acted as special New York counsel for the
Borrowers in connection with the preparation, execution and
delivery of the Credit Agreement.
In that connection we have examined:
(1) the Credit Agreement; and
(2) the documents furnished by each of the
Borrowers pursuant to Section 4 of the Credit Agreement.
We have assumed the due execution and delivery,
pursuant to due authorization, of the Credit Agreement by the
Banks and the Agents, the authenticity of all documents
submitted to us as originals and the conformity to the
original documents of all documents submitted to us as
certified, conformed or photostatic copies. We have also
assumed that the Banks and the Agents will perform the Credit
Agreement reasonably and in good faith and will act
reasonably and in good faith in taking action, exercising
discretion and making determinations thereunder. We have
also assumed that no Bid Loan or Negotiated Rate Loan made in
an amount of less than $2,500,000 will bear interest at a
rate greater than 25% per annum.
We are qualified to practice law in the State of
New York. We do not express any opinion herein concerning
any laws other than the laws of the State of New York and the
Federal laws of the United States. To the extent our
opinions expressed below involve conclusions as to matters
set forth in paragraph 1, 2 or 3 of the opinion of Frank S.
Cottrell, General Counsel to the Borrowers, a copy of which
is attached hereto, we have, with your permission, relied on
such opinion.
Based upon the foregoing and upon such
investigation as we have deemed necessary, we are of the
opinion that the Credit Agreement constitutes the legal,
valid and binding obligation of each Borrower enforceable
against such Borrower in accordance with its terms, subject
to (a) the effect of any applicable bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers, reorganization and moratorium) or
similar law affecting creditors' rights generally and (b) the
effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
Very truly yours,
SHEARMAN & STERLING
<PAGE>
EXHIBIT I
[FORM OF EXTENSION REQUEST]
_______________, ____
Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Attention:
Dear Sirs:
Reference is made to the $3,500,000,000 Credit
Agreement, dated as of April 5, 1995 among Deere & Company,
John Deere Capital Corporation, the Banks parties thereto,
Chemical Bank, as Administrative Agent, The Chase Manhattan
Bank (National Association), as Syndication Agent, Bank of
America National Trust and Savings Association, as
Documentation Agent, Deutsche Bank AG Chicago Branch, as
Auction Agent, The Toronto-Dominion Bank, as Canadian
Administrative Agent, the Managing Agents named therein and
the Co-Agents named therein (as the same may be amended,
supplemented or otherwise modified from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement
are used herein as therein defined.
This is an Extension Request pursuant to subsection
2.16 of the Credit Agreement requesting an extension of the
Termination Date to [INSERT REQUESTED TERMINATION DATE].
Please transmit a copy of this Extension Request to each of
the Banks.
Very truly yours,
DEERE & COMPANY
By:_____________________
Title:
JOHN DEERE CAPITAL CORPORATION
By:_____________________
Title:
<PAGE>
EXHIBIT J
[FORM OF TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form 1001 of
the Internal Revenue Service]
[Bank's Letterhead]
,
Deere & Company
John Deere Road
Moline, Illinois 61265
Attention: Treasurer
John Deere Capital Corporation
First National Bank Building
1 East First Street
Reno, Nevada 89501
Attention: Manager
Re: $3,500,000,000 Credit
Agreement dated as of April 5, 1995 with
Deere & Company and John Deere Capital
Corporation
Dear Sirs:
In connection with the $3,500,000,000 Credit
Agreement, dated as of April 5, 1995, among Deere & Company,
John Deere Capital Corporation, the Banks parties thereto,
Chemical Bank, as Administrative Agent, The Chase Manhattan
Bank (National Association), as Syndication Agent, Bank of
America National Trust and Savings Association, as
Documentation Agent, Deutsche Bank AG Chicago Branch, as
Auction Agent, The Toronto-Dominion Bank, as Canadian
Administrative Agent, the Managing Agents named therein and
the Co-Agents named therein, we hereby represent and warrant
that [name of Bank, address] is a [name of Country]
corporation and is currently exempt from any U.S. federal
withholding tax on payments to it from U.S. sources by virtue
of compliance with the provisions of the Income Tax
Convention between the United States and [name of Country]
signed [date], [as amended]. Our fiscal year is the twelve
months ending [ ].
The undersigned (a) is a corporation organized
under the laws of [ ] whose registered business
is managed or controlled in [ ], (b) [does not
have a permanent establishment or fixed base in the United
States] [does have a permanent establishment or fixed base in
the United States but the above Agreement is not effectively
connected with such permanent establishment or fixed base],
(c) is not exempt from tax on the income in [ ]
and (d) is the beneficial owner of the income.
We enclose herewith two copies of Form 1001 of the
U.S. Internal Revenue Service.
Yours faithfully,
[NAME OF BANK]
By:
Title:
cc: Chemical Bank, as Administrative Agent
<PAGE>
EXHIBIT K
[FORM OF TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form 4224 of
the Internal Revenue Service]
[Bank's Letterhead]
____________, ____
Deere & Company
John Deere Road
Moline, Illinois 61265
Attention: Treasurer
John Deere Capital Corporation
First National Bank Building
1 East First Street
Reno, Nevada 89501
Attention: Manager
Re: $3,500,000,000 Credit Agreement
dated as of April 5, 1995 with
Deere & Company and John Deere
Capital Corporation
Dear Sirs:
In connection with the above $3,500,000,000 Credit
Agreement, dated as of April 5, 1995, among Deere & Company,
John Deere Capital Corporation, the Banks parties thereto,
Chemical Bank, as Administrative Agent, The Chase Manhattan
Bank (National Association), as Syndication Agent, Bank of
America National Trust and Savings Association, as
Documentation Agent, Deutsche Bank AG Chicago Branch, as
Auction Agent, The Toronto-Dominion Bank, as Canadian
Administrative Agent, the Managing Agents named therein and
the Co-Agents named therein, we hereby represent and warrant
that [name of Bank, address] is a corporation and is entitled
to exemption from U.S. federal withholding tax on payments to
it under the Agreement by virtue of Section 1441(c)(1) of the
Internal Revenue Code of the United States of America and
Treasury Regulation Section 1.1441-4(a) thereunder.
We enclose herewith two copies of Form 4224 of the
U.S. Internal Revenue Service.
Yours faithfully,
[NAME OF BANK]
By
Title:
cc: Chemical Bank, as Administrative Agent
<PAGE>
EXHIBIT L
[FORM OF AGREEMENT]
THIS AGREEMENT, dated as of ,
("Agreement"), among Deere & Company (the "Company"), John
Deere Capital Corporation (the "Capital Corporation"),
____________ ("New Bank") and Chemical Bank, as
Administrative Agent for the Existing Banks referred to
below.
W I T N E S S E T H :
WHEREAS, the Company, the Capital Corporation, the
several financial institutions parties thereto (the "Existing
Banks") Chemical Bank, as Administrative Agent, The Chase
Manhattan Bank (National Association), as Syndication Agent,
Bank of America National Trust and Savings Association, as
Documentation Agent, Deutsche Bank AG Chicago Branch, as
Auction Agent, The Toronto-Dominion Bank, as Canadian
Administrative Agent, the Managing Agents named therein and
the Co-Agents named therein are parties to a $3,500,000,000
Credit Agreement, dated as of April 5, 1995 (as the same may
have been or may hereafter be amended, supplemented or
otherwise modified, the "Credit Agreement"; terms defined
therein being used herein as therein defined);
WHEREAS, subsection 2.19 of the Credit Agreement
provides that one or more financial institutions (which may
be Existing Banks) may be added as a "Bank" or "Banks" for
purposes of the Credit Agreement upon the cancellation of all
or a portion of the Commitments pursuant to subsection
2.13(a), (b) or (c), 2.16(c) or 2.17(b) of the Credit
Agreement or the expiration of all or a portion of the
Commitments pursuant to subsection 2.16(b) of the Credit
Agreement and the execution of an agreement in substantially
the form of this Agreement;
WHEREAS, the Borrowers have cancelled or there have
expired an aggregate principal amount of Commitments equal to
$ which have not heretofore been replaced (the
"Cancelled Commitments"; the Banks that are maintaining or
have maintained the Cancelled Commitments being collectively
referred to as "Cancelled Banks"); such Cancelled Commitments
being on the date hereof, or on the date of notice of
cancellation hereof having been, utilized as follows:
Last day of
Principal Amount Interest Period
I Unused Portion N/A
II Committed Rate Loans
C/D Rate Loans
1
2
3
Eurodollar Loans
1
2
3
ABR Loans N/A
III Bid Loans
1
2
3
IV Negotiated Rate Loans
1
2
3
WHEREAS, the cancellation of the Cancelled
Commitments is effective in accordance with the Credit
Agreement; and
WHEREAS, [the Borrowers desire the New Bank to
become, and the New Bank is agreeable, to becoming, a "Bank"
for purposes of the Credit Agreement] [the New Bank is an
Existing Bank and the Borrowers desire the New Bank to
increase, and the New Bank is agreeable to increasing, its
Commitment] on the terms contained herein.
NOW, THEREFORE, in consideration of the premises
and mutual covenants contained herein, the parties hereto
agree as follows:
1. Benefits of Agreement. The Borrowers, the
Administrative Agent and the New Bank hereby [agree that on
and as of the date hereof the New Bank shall be] [confirm
that the New Bank is] a "Bank" for all purposes and shall
[continue to] be bound by and entitled to the benefits of the
Credit Agreement [as if the New Bank had been named on the
signature pages thereof], provided that the New Bank shall
not assume and shall, except as herein provided, have no
obligations in respect of any Loans outstanding on the date
hereof and made by any [Existing Bank.] [Cancelled Bank.]*
2. Commitment of New Bank. The Borrowers, the
Administrative Agent and the New Bank hereby agree that on
and as of the dates set forth below the New Bank shall
replace, as specified herein, % (such percentage being
referred to as the New Bank's "Percentage") of each
utilization of the Cancelled Commitments [set forth in the
third recital hereof] [set forth under the caption "Committed
Rate Loans"] and that the aggregate Commitment of the New
Bank shall on and as of the date hereof be $ **. In
connection therewith, the Borrowers, the Administrative Agent
and the New Bank hereby agree as follows***:
(i) for purposes of determining such New Bank's
pro rata share of each Committed Rate Loan borrowing
advanced on or after the date hereof such Bank's
Commitment shall be equal to $[same as above];
(ii) the unused and available portion of such New
Bank's Commitment shall be deemed utilized by its
Percentage of the Committed Rate Loans made by the
Cancelled Banks and listed in the third recital hereof.
In furtherance thereof, the unused and available portion
of such New Bank's Commitment shall, on the earlier of
(x) the last day of each Interest Period specified for
each outstanding Committed Rate Loan in the third
recital hereof (and the payment in full to the Cancelled
Banks of the principal thereof and accrued interest
thereon) and (y) the prepayment of the principal of such
Loans together with accrued interest thereon,
automatically and without any further action by any
party increase by an amount equal to the New Bank's
Percentage of such Loan; and
(iii) [(A)] [concurrently with the execution
hereof the New Bank shall disburse to each Borrower in
immediately available funds such amount as shall be
necessary so that the ratio which each Bank's
outstanding ABR Loans bears to all of the outstanding
ABR Loans equals the ratio which each Bank's Commitment
(determined, for the New Bank, in accordance with clause
(i) above) bears to all of the Commitments (determined,
for the New Bank, in accordance with the immediately
foregoing parenthetical);]
[(B)] [on the last day of each Interest Period for
each outstanding Eurodollar Loan and C/D Rate Loan,
automatically and without any further action by either
Borrower, the New Bank shall disburse to each Borrower in
immediately available funds such amounts as shall be
necessary so that the ratio which each Bank's outstanding
Eurodollar Loans and C/D Rate Loans, bears to all of the
outstanding Eurodollar Loans and C/D Rate Loans,
respectively, equals the ratio which each Bank's Commitment
(determined, for the New Bank, in accordance with clause (i)
hereof) bears to all of the Commitments (determined, for the
New Bank, in accordance with the immediately foregoing
parenthetical);]
[(C)] [Funding of outstanding Bid Loans of
Cancelled Banks]
[(D)] [Funding of outstanding Negotiated Rate Loans
of Cancelled Banks].*
3. Representation and Warranty of Borrowers. The
Borrowers hereby represent and warrant that after giving
effect to the provisions of paragraph 2 hereof the aggregate
principal amount of the Commitments of all Banks (including,
without limitation, the Commitment of the New Bank but
excluding the cancelled or expired portion of the Commitments
of the Cancelled Banks) under the Credit Agreement do not
exceed the aggregate principal amount of the Commitments in
effect immediately prior to the cancellation referred to in
the third recital hereof.
4. Confidentiality. The New Bank agrees to
[continue to] be bound by the provisions of subsection 10.7
of the Credit Agreement.
[5. Taxes. The New Bank (i) represents to the
Administrative Agent and the Borrowers that [it is
incorporated under the laws of the United States or a state
thereof][under applicable law and treaties no taxes will be
required to be withheld by the Administrative Agent or the
Borrowers with respect to any payments to be made to such New
Bank in respect of the Loans], (ii) represents that it has
furnished to the Administrative Agent and the Borrowers (A)
[a statement that it is incorporated under the laws of the
United States or a state thereof][a letter in duplicate in
the form of Exhibit [J][K] to the Credit Agreement and two
duly completed copies of United States Internal Revenue
Service Form [4224][1001][successor applicable form],
certifying that such New Bank is entitled to receive payments
under the Credit Agreement without deduction or withholding
of any United States federal income taxes], and (B) [an
Internal Revenue Service Form [W-8][W-9]] [successor
applicable form] to establish an exemption from United States
backup withholding tax, and (iii) agrees to provide the
Administrative Agent and the Borrowers a new Form
[4224][1001] and Form [W-8][W-9], or successor applicable
form or other manner of certification, on or before the date
that any such letter or form expires or becomes obsolete or
after the occurrence of any event requiring a change in the
most recent letter and form previously delivered by it,
certifying in the case of a Form [1001][4224] that it is
entitled to receive payments under the Credit Agreement
without deduction or withholding of any United States federal
income tax, and in the case of a Form [W-8][W-9] establishing
exemption from United States backup withholding tax.]
[5][6]. Miscellaneous. (a) This Agreement may be
executed by the parties hereto in separate counterparts and
all of the counterparts taken together shall constitute one
and the same instrument and shall be effective only upon
receipt by the Administrative Agent of all of the
counterparts.
(b) This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the
State of New York.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered as of the day and year
first above written.
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
[NAME OF NEW BANK]
By:
Title:
[Address]
Telephone:
Facsimile:
CHEMICAL BANK, as
Administrative Agent
By:
Title:
<PAGE>
EXHIBIT M
[FORM OF BID LOAN OR NEGOTIATED RATE LOAN NOTE]
PROMISSORY NOTE
$__________ New York,
New York
___________
__, ____
FOR VALUE RECEIVED, the undersigned, [DEERE &
COMPANY] [JOHN DEERE CAPITAL CORPORATION], a Delaware
corporation (the "Borrower"), hereby promises to pay on
[insert maturity date or dates] to the order of
________________ (the "Bank") at the office of [Chemical Bank
located at 270 Park Avenue, New York, New York 10017 -- for
Bid Loan Note] [Name and address of Bank -- for Negotiated
Rate Loan Note], in lawful money of the United States of
America and in immediately available funds, the principal sum
of ______________DOLLARS ($____________). The undersigned
further agrees to pay interest in like money at such office
on the unpaid principal amount hereof from time to time from
the date hereof [at the rate of ___% per annum -- for Bid
Loan Note] [specify rate for Negotiated Rate Loan Note]
(calculated on the basis of a year of 360 days and actual
days elapsed) until the due date hereof (whether at the
stated maturity, by acceleration, or otherwise) and
thereafter at the rates determined or agreed in accordance
with subsection 2.2(e) of the $3,500,000,000 Credit
Agreement, dated as of April 5, 1995 (the "Credit
Agreement"), among the Borrower, [Deere & Company] [John
Deere Capital Corporation], the Bank, the other financial
institutions parties thereto, Chemical Bank, as
Administrative Agent, The Chase Manhattan Bank (National
Association), as Syndication Agent, Bank of America National
Trust and Savings Association, as Documentation Agent,
Deutsche Bank AG Chicago Branch, as Auction Agent, The
Toronto-Dominion Bank, as Canadian Administrative Agent, the
Managing Agents named therein and the Co-Agents named
therein. Interest shall be payable on _______________. This
Note may be prepaid pursuant to the provisions of subsection
2.6 of the Credit Agreement.
This Note is one of the [Bid] [Negotiated Rate
Loan] Notes referred to in, is subject to and is entitled to
the benefits of, the Credit Agreement, which Credit
Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the occurrence of
any one or more of the Events of Default specified in the
Credit Agreement.
Terms defined in the Credit Agreement are used
herein with their defined meanings unless otherwise defined
herein. This Note shall be governed by, and construed and
interpreted in accordance with, the law of the State of
New York.
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:_________________________
Title:
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . .
. . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . .
. . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . .
. . . . 16
SECTION 2. THE COMMITTED RATE LOANS; THE BID
LOANS; THE NEGOTIATED RATE LOANS;
AMOUNT AND TERMS . . . . . . . . . . . . . . . . .
. . . . 17
2.1 The Committed Rate Loans. . . . . . . . . . . . . .
. . . . 17
2.2 The Bid Loans; the Negotiated Rate Loans. . . . . .
. . . . 18
2.3 Loan Accounts . . . . . . . . . . . . . . . . . . .
. . . . 23
2.4 Fees. . . . . . . . . . . . . . . . . . . . . . . .
. . . . 23
2.5 Termination or Reduction of Commitments;
Cancellation of Capital Corporation
as Borrower . . . . . . . . . . . . . . . . . . .
. . . . 24
2.6 Optional and Mandatory Prepayments. . . . . . . . .
. . . . 25
2.7 Minimum Amount of Certain Loans . . . . . . . . . .
. . . . 26
2.8 Committed Rate Loan Interest Rate and Payment
Dates . . . . . . . . . . . . . . . . . . . . . .
. . . . 27
2.9 Conversion and Continuation Options . . . . . . . .
. . . . 27
2.10 Computation of Interest and Fees. . . . . . . . . .
. . . . 28
2.11 Inability to Determine Interest Rate. . . . . . . .
. . . . 29
2.12 Pro Rata Treatment and Payments . . . . . . . . . .
. . . . 30
2.13 Requirements of Law . . . . . . . . . . . . . . . .
. . . . 35
2.14 Indemnity . . . . . . . . . . . . . . . . . . . . .
. . . . 38
2.15 Non-Receipt of Funds by the Administrative
Agent . . . . . . . . . . . . . . . . . . . . . .
. . . . 39
2.16 Extension of Termination Date . . . . . . . . . . .
. . . . 39
2.17 Foreign Taxes . . . . . . . . . . . . . . . . . . .
. . . . 40
2.18 Confirmations . . . . . . . . . . . . . . . . . . .
. . . . 43
2.19 Replacement of Cancelled Banks. . . . . . . . . . .
. . . . 43
2.20 Certain Notices . . . . . . . . . . . . . . . . . .
. . . . 43
SECTION 3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . .
. . . . 44
3.1 Financial Condition . . . . . . . . . . . . . . . .
. . . . 44
3.2 Corporate Existence . . . . . . . . . . . . . . . .
. . . . 45
3.3 Corporate Power; Authorization; Enforceable
Obligations . . . . . . . . . . . . . . . . . . .
. . . . 45
3.4 No Legal Bar. . . . . . . . . . . . . . . . . . . .
. . . . 45
3.5 No Material Litigation. . . . . . . . . . . . . . .
. . . . 45
3.6 Taxes . . . . . . . . . . . . . . . . . . . . . . .
. . . . 46
3.7 Margin Regulations. . . . . . . . . . . . . . . . .
. . . . 46
3.8 Pari Passu Ranking. . . . . . . . . . . . . . . . .
. . . . 46
3.9 No Defaults . . . . . . . . . . . . . . . . . . . .
. . . . 46
3.10 Use of Proceeds . . . . . . . . . . . . . . . . . .
. . . . 46
SECTION 4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . .
. . . . 46
4.1 Conditions to Initial Loan. . . . . . . . . . . . .
. . . . 46
4.2 Conditions to All Loans . . . . . . . . . . . . . .
. . . . 48
SECTION 5. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . .
. . . . 49
5.1 Financial Statements. . . . . . . . . . . . . . . .
. . . . 49
5.2 Certificates; Other Information . . . . . . . . . .
. . . . 49
5.3 Company Indenture Documents . . . . . . . . . . . .
. . . . 50
5.4 Capital Corporation Indenture Documents . . . . . .
. . . . 50
5.5 Notice of Default . . . . . . . . . . . . . . . . .
. . . . 50
5.6 Ownership of Capital Corporation Stock. . . . . . .
. . . . 50
5.7 Employee Benefit Plans. . . . . . . . . . . . . . .
. . . . 50
SECTION 6. NEGATIVE COVENANTS OF THE COMPANY. . . . . . . . . .
. . . . 51
6.1 Company May Consolidate, etc., Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . . .
. . . . 51
6.2 Limitation on Liens . . . . . . . . . . . . . . . .
. . . . 51
6.3 Limitations on Sale and Lease-back
Transactions . . . . . . . . . . . . . . . . . . .
. . . . 55
6.4 Consolidated Tangible Net Worth . . . . . . . . . .
. . . . 56
SECTION 7. NEGATIVE COVENANTS OF THE CAPITAL
CORPORATION. . . . . . . . . . . . . . . . . . . .
. . . . 56
7.1 Fixed Charges Ratio . . . . . . . . . . . . . . . .
. . . . 56
7.2 Consolidated Senior Debt to Consolidated
Capital Base. . . . . . . . . . . . . . . . . . .
. . . . 56
7.3 Limitation on Liens . . . . . . . . . . . . . . . .
. . . . 57
7.4 Consolidation; Merger . . . . . . . . . . . . . . .
. . . . 58
SECTION 8. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . .
. . . . 59
SECTION 9. THE AGENTS . . . . . . . . . . . . . . . . . . . . .
. . . . 61
9.1 Appointment . . . . . . . . . . . . . . . . . . . .
. . . . 61
9.2 Delegation of Duties. . . . . . . . . . . . . . . .
. . . . 62
9.3 Exculpatory Provisions. . . . . . . . . . . . . . .
. . . . 62
9.4 Reliance by Agents. . . . . . . . . . . . . . . . .
. . . . 63
9.5 Notice of Default . . . . . . . . . . . . . . . . .
. . . . 63
9.6 Non-Reliance on Agents and Other Banks. . . . . . .
. . . . 63
9.7 Indemnification . . . . . . . . . . . . . . . . . .
. . . . 64
9.8 Agents in their Individual Capacities . . . . . . .
. . . . 64
9.9 Successor Agents. . . . . . . . . . . . . . . . . .
. . . . 65
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . .
. . . . 65
10.1 Amendments and Waivers. . . . . . . . . . . . . . .
. . . . 65
10.2 Notices . . . . . . . . . . . . . . . . . . . . . .
. . . . 66
10.3 No Waiver; Cumulative Remedies. . . . . . . . . . .
. . . . 67
10.4 Payment of Expenses and Taxes . . . . . . . . . . .
. . . . 68
10.5 Successors and Assigns; Participations;
Purchasing Banks. . . . . . . . . . . . . . . . .
. . . . 70
10.6 Adjustments . . . . . . . . . . . . . . . . . . . .
. . . . 74
10.7 Confidentiality . . . . . . . . . . . . . . . . . .
. . . . 75
10.8 Counterparts. . . . . . . . . . . . . . . . . . . .
. . . . 75
10.9 Governing Law . . . . . . . . . . . . . . . . . . .
. . . . 76
10.10 Waiver with Respect to Existing Credit
Facilities. . . . . . . . . . . . . . . . . . . .
. . . . 76
10.11 Consent to Jurisdiction and Service of
Process. . . . . . . . . . . . . . . . . . . . . .
. . . . 76
SCHEDULES:
Schedule I Terms of Subordination
Schedule II Commitments
Schedule III Addresses for Notices
EXHIBITS:
Exhibit A Form of Borrowing Notice
Exhibit B Form of Bid Loan Request
Exhibit C Form of Bid Loan Offer
Exhibit D Form of Bid Loan Confirmation
Exhibit E Form of Loan Assignment
Exhibit F Form of Commitment Transfer Supplement
Exhibit G Form of Opinion of General Counsel to the
Borrowers
Exhibit H Form of Opinion of Special New York Counsel
to the Borrowers
Exhibit I Form of Extension Request
Exhibit J Form of Form 1001 Tax Letter
Exhibit K Form of Form 4224 Tax Letter
Exhibit L Form of Agreement
Exhibit M Form of Promissory Note
<PAGE>
[CONFORMED COPY]
DEERE & COMPANY
JOHN DEERE CAPITAL CORPORATION
$3,500,000,000
CREDIT AGREEMENT
Dated as of April 5, 1995
CHEMICAL BANK,
as Administrative Agent and as a Managing Agent
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
as Syndication Agent and as a Managing Agent
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
as Documentation Agent and as a Managing Agent
DEUTSCHE BANK AG CHICAGO BRANCH,
as Auction Agent and as a Managing Agent
THE TORONTO-DOMINION BANK,
as Canadian Administrative Agent and as a Managing Agent
<PAGE>
CREDIT AGREEMENT, dated as of April 5, 1995, among (a)
DEERE & COMPANY, a Delaware corporation (the "Company"), (b) JOHN
DEERE CAPITAL CORPORATION, a Delaware corporation (the "Capital
Corporation"), (c) the several financial institutions parties
hereto (collectively, the "Banks", and individually, a "Bank"),
(d) CHEMICAL BANK, as administrative agent hereunder (in such
capacity, the "Administrative Agent"), (e) THE CHASE MANHATTAN
BANK (NATIONAL ASSOCIATION), as syndication agent hereunder (in
such capacity, the "Syndication Agent"), (f) BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as documentation agent
hereunder (in such capacity, the "Documentation Agent"), (g)
DEUTSCHE BANK AG CHICAGO BRANCH, as auction agent hereunder (in
such capacity, the "Auction Agent"), (h) THE TORONTO-DOMINION
BANK, as Canadian administrative agent hereunder (in such
capacity, the "Canadian Administrative Agent"), (i) CHEMICAL
BANK, THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, DEUTSCHE BANK AG
CHICAGO BRANCH and THE TORONTO-DOMINION BANK, as managing agents
(collectively, the "Managing Agents"), and (j) the co-agents
identified on the signature pages hereof (collectively, the "Co-
Agents").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
following terms have the following meanings:
"ABR": at any particular date, the higher of (a) the
rate of interest per annum publicly announced by Chemical
for such date as its prime rate in effect at its principal
office in New York City and (b) .5% per annum above the rate
set forth for such date or, if such date is not a Business
Day, the next preceding Business Day, opposite the caption
"Federal Funds (Effective)" in the weekly statistical
release designated as "H.15(519)" (or any successor
publication) published by the Board of Governors of the
Federal Reserve System or, if such rate is not so published
for such date, the average of the quotations for such day on
such transactions received by the Administrative Agent from
three Federal Funds dealers of recognized standing selected
by it. The prime rate is not intended to be the lowest rate
of interest charged by Chemical in connection with
extensions of credit to debtors.
"ABR Loans": Committed Rate Loans at such time as they
are made and/or being maintained at a rate of interest based
upon the ABR.
"Absolute Rate Bid Loan": any Bid Loan made pursuant
to an Absolute Rate Bid Loan Request.
"Absolute Rate Bid Loan Request": any Bid Loan Request
requesting the Banks to offer to make Bid Loans at an
absolute rate (as opposed to a rate composed of the
Applicable Index Rate plus (or minus) a margin).
"Administrative Agent": as defined in the preamble
hereto.
"Affiliated Linked Lender": as to each Tranche B Bank,
the Linked Lender set forth opposite its name below:
Tranche B Bank Linked Lender
Canadian Imperial Bank Canadian Imperial Bank
of Commerce of Commerce
Royal Bank of Canada Royal Bank of Canada
Toronto Dominion The Toronto-Dominion Bank
(Texas), Inc.
This definition shall be deemed automatically amended to
include any new Tranche B Bank and its Affiliated Linked
Lender resulting from the replacement pursuant to subsection
2.19 of a Cancelled Bank which was a Tranche B Bank or from
any assignment of rights and obligations made pursuant to
subsection 10.5(d).
"Agent": the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Auction Agent or the
Canadian Administrative Agent, as the context shall require;
together, the "Agents".
"Agreement": this Credit Agreement, as amended,
supplemented or modified from time to time.
"Applicable Index Rate": in respect of any Bid Loan
requested pursuant to an Index Rate Bid Loan Request, the
Eurodollar Rate applicable to the Interest Period for such
Bid Loan.
"Applicable Margin": for each Type of Committed Rate
Loan the rate per annum set forth below:
ABR Eurodollar C/D Rate
Loans Loans Loans
0% .185% .31%
"Assessment Rate": with respect to each day during
each Interest Period for a C/D Rate Loan, the net annual
assessment rate in effect two Business Days prior to the
first day of such Interest Period which is payable by a
member of the Bank Insurance Fund classified as well
capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within
the meaning of 12 C.F.R. Section 327.3(e) (or any successor
provision) to the Federal Deposit Insurance Corporation (or
any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the
United States.
"Attributable Debt": as defined in subsection
6.2(b)(ii).
"Auction Agent": as defined in the preamble hereto.
"Bank" and "Banks": as defined in the preamble hereto.
"Base Rate": with respect to each day during each
Interest Period for a C/D Rate Loan, (a) the rate determined
by the Administrative Agent to be the rate set forth in
H.15(519) (published by the Federal Reserve Bank of New
York) for such Interest Period under the caption "CDs
(Secondary Market)", or, if on the first day of such
Interest Period such rate for such Interest Period is not
yet published in H.15(519), the rate for such Interest
Period will be the rate determined by the Administrative
Agent to be the rate set forth in Composite 3:30 P.M.
Quotations for U.S. Government Securities (published by the
Federal Reserve Bank of New York) for that day in respect of
such Interest Period under the caption "Certificates of
Deposit" or (b), if on the first day of such Interest
Period, the appropriate rate for such Interest Period is not
yet published in either H.15(519) or Composite 3:30 P.M.
Quotations for U.S. Government Securities, the rate for such
Interest Period will be the arithmetic average (rounded
upward to the nearest 1/100 of 1%) of the respective rates
notified to the Administrative Agent by the Reference Banks
as the rates per annum bid at 10:00 A.M. (New York City
time) (or as soon thereafter as practicable) on the first
day of such Interest Period by a total of three certificate
of deposit dealers located in New York City and of
recognized standing selected by each Reference Bank for the
purchase at face value from such Reference Bank of its
certificates of deposit in an amount comparable to the C/D
Rate Loan of such Reference Bank to which such Interest
Period applies and having a maturity comparable to such
Interest Period; provided that if such bids from such
dealers are not available to such Reference Bank, such
Reference Bank shall notify the Administrative Agent of a
reasonably equivalent rate determined by it on the basis of
another source or sources selected by it.
"benefitted Bank": as defined in subsection 10.6.
"Bid Loan": each loan (other than Negotiated Rate
Loans) made pursuant to subsection 2.2; the aggregate amount
advanced by a Bid Loan Bank pursuant to subsection 2.2 on
each Borrowing Date shall constitute one Bid Loan, or more
than one Bid Loan if so specified by the relevant Loan
Assignee in its request for promissory notes pursuant to
subsection 10.5(c).
"Bid Loan Banks": the collective reference to each
Bank designated from time to time as a Bid Loan Bank by a
Borrower (for purposes of Bid Loans to such Borrower) by
written notice to the Auction Agent and the Administrative
Agent and which has not been removed as a Bid Loan Bank by
such Borrower by written notice to the Auction Agent and the
Administrative Agent (each of which notices the Auction
Agent shall transmit to each such affected Bank).
"Bid Loan Confirmation": each confirmation by the
Company or the Capital Corporation of its acceptance of Bid
Loan Offers, which Bid Loan Confirmation shall be
substantially in the form of Exhibit D and shall be
delivered to the Auction Agent by facsimile transmission or
by telephone, immediately confirmed by facsimile
transmission.
"Bid Loan Offer": each offer by a Bid Loan Bank to
make Bid Loans pursuant to a Bid Loan Request, which Bid
Loan Offer shall contain the information specified in
Exhibit C and shall be delivered to the Auction Agent by
facsimile transmission or by telephone, immediately
confirmed by facsimile transmission.
"Bid Loan Request": each request by a Borrower for Bid
Loan Banks to submit bids to make Bid Loans, which shall
contain the information in respect of such requested Bid
Loans specified in Exhibit B and shall be delivered to the
Auction Agent by facsimile transmission or by telephone,
immediately confirmed by facsimile transmission.
"Borrower": the Company or the Capital Corporation;
collectively, the "Borrowers".
"Borrowing Date": in respect of any Loan, the date
such Loan is made.
"Business Day": a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are
authorized or required by law to close.
"Canadian Administrative Agent": as defined in the
preamble hereto.
"Canadian Dollars" and "Cdn.$": dollars in the lawful
currency of Canada.
"Cancelled Bank": any Bank that has the whole or any
part of its Commitment cancelled under subsection 2.5(b),
subsection 2.13(a), (b) or (c), subsection 2.16(c) or
subsection 2.17(b) or the Commitment of which has expired
under subsection 2.16(a).
"Capital Corporation": as defined in the preamble
hereto.
"C/D Rate": with respect to each day during the
Interest Period for a C/D Rate Loan, a rate per annum equal
to the following determined for such day:
Base Rate + Assessment Rate
1.00 - Reserve Percentage
"C/D Rate Loans": Committed Rate Loans at such time as
they are made and/or being maintained at a rate of interest
based upon a C/D Rate.
"Chemical": Chemical Bank, a New York banking
corporation.
"Closing Date": the date on which each of the
conditions precedent specified in subsection 4.1 shall have
been satisfied (or compliance therewith shall have been
waived by the Required Banks hereunder).
"Co-Agents": as defined in the preamble hereto.
"Code": the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment": as to any Bank, the amount set opposite
such Bank's name on Schedule II, as such amount may be
modified as provided herein; collectively, as to all the
Banks, the "Commitments".
"Commitment Expiration Date": as defined in subsection
2.16(a).
"Commitment Percentage": as to any Bank at any time,
the percentage which such Bank's Commitment at such time
constitutes of all the Commitments at such time;
collectively, as to all the Banks, the "Commitment
Percentages".
"Commitment Period": the period from and including the
Closing Date to but not including the Termination Date or
such earlier date on which the Commitments shall terminate
as provided herein.
"Commitment Transfer Supplement": a Commitment
Transfer Supplement, substantially in the form of Exhibit F.
"Committed Global Exposure": as to any Bank, at a
particular time, an amount equal to the sum of (a) the
aggregate unpaid principal amount at such time of all
Committed Rate Loans made by such Bank, and (b) the
Equivalent Amount of the aggregate unpaid principal amount
of all Committed Linked Loans made by such Bank's Affiliated
Linked Lender.
"Committed Linked Loans": Linked Loans other than
"Excluded Loans" under the Linked Agreement.
"Committed Rate Loans": each loan made pursuant to
subsection 2.1.
"Commonly Controlled Entity": in relation to a
Borrower, an entity, whether or not incorporated, which is
under common control with such Borrower within the meaning
of Section 414(b) or (c) of the Code.
"Company": as defined in the preamble hereto.
"Consolidated Capital Base": at a particular time for
the Capital Corporation and its consolidated Subsidiaries,
the sum of (a) the amount shown opposite the item "Total
stockholder's equity" on the consolidated balance sheet of
the Capital Corporation and its consolidated Subsidiaries
plus (b) the principal amounts outstanding under the 8-5/8%
Subordinated Debentures due 2019 and the 9-5/8% Subordinated
Notes due 1998 of the Capital Corporation (in each case so
long as the subordination terms thereof continue to be as
favorable to the Administrative Agent and the Banks as in
existence on the Closing Date) and all indebtedness of the
Capital Corporation and its consolidated Subsidiaries for
borrowed money subordinated (on terms no less favorable to
the Administrative Agent and the Banks than the terms of
subordination set forth on Schedule I) to the indebtedness
which may be incurred hereunder by the Capital Corporation,
provided that the sum of clauses (a) and (b) hereof as at
the end of a fiscal quarter of the Capital Corporation and
its consolidated Subsidiaries (including the last quarter of
a fiscal year of the Capital Corporation and its
consolidated Subsidiaries) shall be determined by reference
to the publicly available consolidated balance sheet of the
Capital Corporation and its consolidated Subsidiaries as at
the end of such fiscal quarter and after such adjustments,
if any, as may be required so that the sum of the amounts
referred to in clauses (a) and (b) is determined in
accordance with GAAP.
"Consolidated Net Worth": as defined in subsection
6.2(b)(ii).
"Consolidated Senior Debt": at a particular time for
the Capital Corporation and its consolidated Subsidiaries,
indebtedness for borrowed money other than the 8-5/8%
Subordinated Debentures due 2019 and the 9-5/8% Subordinated
Notes due 1998 of the Capital Corporation (in each case so
long as the subordination terms thereof continue to be as
favorable to the Administrative Agent and the Banks as such
terms in existence on the Closing Date) and any such
indebtedness that is subordinated, on terms no less
favorable to the Administrative Agent and the Banks than the
terms of subordination set forth on Schedule I, to the
indebtedness which may be incurred hereunder by the Capital
Corporation, provided that the amount of such indebtedness
for borrowed money (other than such subordinated
indebtedness) as at the end of a fiscal quarter of the
Capital Corporation and its consolidated Subsidiaries
(including the last quarter of a fiscal year of the Capital
Corporation and its consolidated Subsidiaries) shall be
determined by reference to the publicly available
consolidated balance sheet of the Capital Corporation and
its consolidated Subsidiaries as at the end of such fiscal
quarter and after such adjustments, if any, as may be
required so that such amount is determined in accordance
with GAAP.
"Consolidated Tangible Net Worth": at a particular
time for a Borrower and its consolidated Subsidiaries, the
excess of the amount shown opposite the item "Total
stockholder's equity" on the consolidated balance sheet of
such Borrower and its consolidated Subsidiaries over the
aggregate amount shown on such balance sheet for any
intangible assets, including, without limitation, goodwill,
franchises, licenses, patents, trademarks, trade-names,
copyrights, service marks and brand names, provided that
such excess amount shall be determined (a) with respect to
the Company and its consolidated Subsidiaries as at the end
of any of their fiscal quarters (including the last quarter
of any of their fiscal years), by reference to the publicly
available consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of such fiscal
quarter and (b) with respect to the Capital Corporation and
its consolidated Subsidiaries as at the end of any of their
fiscal quarters (including the last quarter of any of their
fiscal years), by reference to the publicly available
consolidated balance sheet of the Capital Corporation and
its consolidated Subsidiaries as at the end of such fiscal
quarter, in each such case after such adjustments, if any,
as may be required so that such excess is determined in
accordance with GAAP.
"Contractual Obligation": as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is
a party or by which it or any of its property is bound.
"Debt": as defined in subsection 6.2.
"Default": any of the events specified in Section 8
(other than Section 8(i)), whether or not any requirement
for the giving of notice, the lapse of time, or both, or any
other condition, event or act has been satisfied.
"Documentation Agent": as defined in the preamble
hereto.
"Dollars" and "$": dollars in lawful currency of the
United States of America.
"Domestic Dollar Loans": the collective reference to
C/D Rate Loans and ABR Loans.
"Equivalent Amount": on any date, the equivalent
amount in Dollars after giving effect to a conversion of a
specified amount of Canadian Dollars to Dollars at the
Exchange Rate on that date. The Equivalent Amount of any
stamping fee paid to any Linked Lender pursuant to
subsection 6.1(b) of the Linked Agreement shall be
determined as of the date of such payment.
"ERISA": the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Eurodollar Loans": Committed Rate Loans at such time
as they are made and/or being maintained at a rate of
interest based upon a Eurodollar Rate.
"Eurodollar Rate": with respect to each day during
each Interest Period for a Eurodollar Loan and for each
Index Rate Bid Loan, (a) the rate determined by the
Administrative Agent to be the arithmetic mean of the
offered rates for deposits in Dollars for a period of such
Interest Period which appear on the Reuters Screen LIBO Page
as of 11:00 a.m., London time, on the date that is two
Working Days prior to the beginning of such Interest Period
or (b) if fewer than two offered rates appear, the rate in
respect of such Interest Period will be the rate per annum
equal to the average (rounded upwards, if necessary, to the
nearest whole multiple of one sixteenth of one percent) of
the respective rates notified to the Administrative Agent by
the Reference Banks as the rate at which such Reference Bank
is offered Dollar deposits two Working Days prior to the
beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency
and exchange operations in respect of its Eurodollar Loans
are customarily conducted at or about 10:00 a.m., New York
City time, for delivery on the first day of such Interest
Period for the number of days comprised therein and in an
amount (i) in the case of Eurodollar Loans, comparable to
the amount of the Eurodollar Loan of such Reference Bank to
be outstanding during such Interest Period and (ii) in the
case of an Index Rate Bid Loan by any Bank, equal to the
principal amount of all Index Rate Bid Loans to which such
Interest Period applies.
"Event of Default": any of the events specified in
Section 8, provided that any requirement for the giving of
notice, the lapse of time, or both, or any other condition,
event or act has been satisfied.
"Excess Amount": as defined in subsection 2.6(b).
"Exchange Rate": on any date, the rate of exchange on
that date for converting Canadian Dollars into Dollars
quoted as the offering rate for wholesale transactions by
the Canadian Administrative Agent at approximately noon
(Toronto time) on such date.
"Exposure": (a) with respect to an Objecting Bank at
any time, the aggregate outstanding principal amount of its
Loans and (b) with respect to any other Bank at any time,
the Commitment of such Bank.
"Extension Request": each request by the Borrowers
made pursuant to subsection 2.16 for the Banks to extend
this Agreement, which shall contain the information in
respect of such extension specified in Exhibit I and shall
be delivered to the Administrative Agent in writing.
"Fixed Charges": for any particular period for the
Capital Corporation and its consolidated Subsidiaries, all
of the Capital Corporation's and its consolidated
Subsidiaries' consolidated interest on indebtedness for
borrowed money, amortization of discounts of indebtedness
for borrowed money, the portion of rentals under financing
leases deemed to represent interest and rentals under
operating leases, provided that such amounts for a fiscal
quarter of the Capital Corporation and its consolidated
Subsidiaries (including the last quarter of a fiscal year of
the Capital Corporation and its consolidated Subsidiaries)
shall be determined by reference to the publicly available
consolidated statement of income of the Capital Corporation
and its consolidated Subsidiaries for or covering such
fiscal quarter and after such adjustments, if any, as may be
required so that such amounts are determined in accordance
with GAAP.
"Foreign Taxes": as defined in subsection 2.17(a).
"GAAP": generally accepted accounting principles in
the United States of America as applied in the preparation
of financial statements of the Company or the Capital
Corporation, respectively, as of the fiscal year ended
October 31, 1994.
"Governmental Authority": any nation or government,
any state or other political subdivision thereof, and any
entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Important Property": (a) any manufacturing plant,
including land, all buildings and other improvements
thereon, and all manufacturing machinery and equipment
located therein, owned and used by the Company or a
Restricted Subsidiary primarily for the manufacture of
products to be sold by the Company or such Restricted
Subsidiary, (b) the executive office and administrative
building of the Company in Moline, Illinois, and (c)
research and development facilities, including land and
buildings and other improvements thereon and research and
development machinery and equipment located therein, in each
case, owned and used by the Company or a Restricted
Subsidiary; except in any case property of which the
aggregate fair value as determined by the Board of Directors
of the Company does not at the time exceed 1% of
Consolidated Net Worth, as shown on the audited consolidated
balance sheet contained in the latest annual report to
stockholders of the Company.
"Index Rate Bid Loan": any Bid Loan made at an
interest rate based upon the Applicable Index Rate.
"Index Rate Bid Loan Request": any Bid Loan Request
requesting the Banks to offer to make Index Rate Bid Loans
at an interest rate equal to the Applicable Index Rate plus
(or minus) a margin.
"Interest Payment Date": (a) as to any ABR Loan, the
last Business Day of each March, June, September and
December, commencing on the first of such days to occur
after such ABR Loan is made or a C/D Rate Loan or a
Eurodollar Loan is converted to an ABR Loan and (b) as to
any Eurodollar Loan or C/D Rate Loan, the last day of each
Interest Period applicable thereto, provided that as to any
Eurodollar Loan in respect of which a Borrower has selected
an Interest Period of six months and any C/D Rate Loan in
respect of which a Borrower has selected an Interest Period
of 180 days, interest shall also be paid on the day which is
three months or 90 days, as the case may be, after the
beginning of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar
Loan, the period commencing on the Borrowing Date, the date
any ABR Loan or C/D Rate Loan is converted to a Eurodollar
Loan or the date any Eurodollar Loan is continued as a
Eurodollar Loan, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by a Borrower in its notice of
borrowing, conversion or continuance as provided in
subsection 2.1(c) or 2.9;
(b) with respect to any C/D Rate Loan, the period
commencing on the Borrowing Date, the date any ABR Loan or
Eurodollar Loan is converted to a C/D Rate Loan or the date
any C/D Rate Loan is continued as a C/D Rate Loan, as the
case may be, with respect to such C/D Rate Loan and ending
30, 60, 90 or 180 days thereafter, as selected by a Borrower
in its notice of borrowing, conversion or continuance as
provided in subsection 2.1(c) or 2.9;
(c) with respect to any Bid Loan, the period commencing
on the Borrowing Date with respect to such Bid Loan and
ending on the date not less than seven days nor more than
six months thereafter, as specified by a Borrower in its Bid
Loan Request as provided in subsection 2.2(b); and
(d) with respect to any Negotiated Rate Loan, the
period or periods commencing on the Borrowing Date with
respect to such Negotiated Rate Loan or the last day of any
Interest Period with respect thereto and ending on the dates
as shall be mutually agreed upon between the relevant
Borrower and the relevant Bank;
provided, that all of the foregoing provisions relating to
Interest Periods are subject to the following:
(i) if any Interest Period pertaining to a
Eurodollar Loan or an Index Rate Bid Loan would
otherwise end on a day which is not a Working Day, that
Interest Period shall be extended to the next
succeeding Working Day unless the result of such
extension would be to carry such Interest Period into
another calendar month in which event such Interest
Period shall end on the immediately preceding Working
Day;
(ii) if any Interest Period pertaining to a
Negotiated Rate Loan, a C/D Rate Loan or an Absolute
Rate Bid Loan would otherwise end on a day which is not
a Business Day, that Interest Period shall be extended
to the next succeeding Business Day;
(iii) any Interest Period pertaining to a
Eurodollar Loan having an Interest Period of one, two,
three or six months or an Index Rate Bid Loan having an
Interest Period of one, two, three, four, five or six
months, that begins on the last Working Day of a
calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Working Day of a calendar month;
(iv) Interest Periods shall be deemed
available
only if the Required Banks shall not have advised the
Administrative Agent that the C/D Rate or the
Eurodollar Rate, as the case may be, determined by the
Administrative Agent on the basis of the applicable
quotes will not adequately and fairly reflect the cost
to such Banks of maintaining or funding their Committed
Rate Loans bearing interest based on the C/D Rate or
the Eurodollar Rate, as the case may be, determined for
such Interest Period. The Administrative Agent shall
notify the Borrowers and each Bank promptly after
having been advised by the Required Banks that a C/D
Rate or Eurodollar Rate will not so adequately and
fairly reflect such Banks' costs as aforesaid. If a
requested Interest Period shall be unavailable in
accordance with the foregoing sentence, the proposed
Borrower may (A) in accordance with the provisions
(including any requirements for notification) of
subsection 2.1 request, at its option, that the
requested Committed Rate Loans be made or maintained as
C/D Rate Loans, if applicable, or ABR Loans or (B)
withdraw the request for such Committed Rate Loans for
which the Interest Period was unavailable by giving
notice of such election to the Administrative Agent in
accordance with subsection 2.11; provided, that if the
Administrative Agent does not receive any notice
hereunder, such Borrower shall be deemed to have
requested ABR Loans;
(v) with respect to Loans made by an Objecting
Bank, no Interest Periods with respect to such Loans
shall end after the second anniversary of such
Objecting Bank's Commitment Expiration Date; and
(vi) no Interest Period shall end after the
second
anniversary of the Termination Date.
"Linked Agreement": the U.S.$87,500,000 Loan
Agreement, dated as of April 5, 1995, among John Deere
Limited, John Deere Finance Limited, certain Canadian
chartered banks and The Toronto-Dominion Bank, as agent, as
amended, supplemented or otherwise modified from time to
time in accordance with the terms thereof.
"Linked Lender": each "Lender" (as defined in the
Linked Agreement) under the Linked Agreement.
"Linked Loans": the "Loans" (as defined in the Linked
Agreement) under the Linked Agreement.
"Loan Account": as defined in subsection 2.3;
collectively, the "Loan Accounts".
"Loan Assignees": as defined in subsection 10.5(c).
"Loan Assignment": a Loan Assignment, substantially in
the form of Exhibit E.
"Loans": the collective reference to the Committed
Rate Loans, the Bid Loans and the Negotiated Rate Loans.
"Majority Banks": at any particular time, Banks having
Commitment Percentages aggregating more than fifty percent;
provided that (a) at any time after the termination of all
the Commitments, "Majority Banks" shall mean Banks holding
Loans aggregating more than fifty percent in principal
amount of all outstanding Loans and (b) at any time after
the Commitment Expiration Date with respect to any Objecting
Bank (but prior to the termination of all the Commitments),
"Majority Banks" shall mean Banks whose Exposure aggregates
more than fifty percent of the aggregate Exposure of all the
Banks.
"Managing Agents: as defined in the preamble hereto.
"Margin Stock": as defined in Regulation U of the
Board of Governors of the Federal Reserve System.
"Mortgage": as defined in subsection 6.2.
"Negotiated Rate Loan": each Loan made to a Borrower
by a Bank pursuant to a Negotiated Rate Loan Request in such
principal amount, for such number of Interest Periods
(subject to the proviso to the definition of "Interest
Period" in this subsection 1.1) and having such interest
rate(s) and repayment terms as shall, in each case, be
mutually agreed upon between such Borrower and such Bank.
"Negotiated Rate Loan Request": each request by a
Borrower for a Bank to make Negotiated Rate Loans, which
shall be delivered to such Bank in writing, by facsimile
transmission, or by telephone, immediately confirmed in
writing, and which shall specify the amount to be borrowed
and the proposed Borrowing Date.
"Net Earnings Available for Fixed Charges": for any
particular period for the Capital Corporation and its
consolidated Subsidiaries, consolidated net earnings of the
Capital Corporation and such Subsidiaries for such period
without deduction of Fixed Charges and without deduction of
federal, state or other income taxes, provided that such net
earnings for a fiscal quarter of the Capital Corporation and
its consolidated Subsidiaries (including the last quarter of
a fiscal year of the Capital Corporation and its
consolidated Subsidiaries) shall be determined by reference
to the publicly available statement of income of the Capital
Corporation and its consolidated Subsidiaries for or
covering such fiscal quarter and after such adjustments, if
any, as may be required so that such net earnings are
determined in accordance with GAAP, except that earned
investment tax credits may be included as revenue in the
consolidated income statement of the Capital Corporation and
its consolidated Subsidiaries, rather than as an offset
against the provision for income taxes.
"Objecting Banks": as defined in subsection 2.16(a).
"Participants": as defined in subsection 10.5(b).
"Person": an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other
entity of whatever nature, provided that for purposes of
Section 8(h), Person shall also include two or more entities
acting as a syndicate or any other group for the purpose of
acquiring, holding or disposing of securities of the
Company.
"Plan": any pension plan which is covered by Title IV
of ERISA and in respect of which either Borrower or a
Commonly Controlled Entity is an "employer" as defined in
Section 3(5) of ERISA.
"Purchasing Banks": as defined in subsection 10.5(d).
"Reference Banks": Chemical, The Chase Manhattan Bank
(National Association) and Bank of America National Trust
and Savings Association.
"Register": as defined in subsection 10.5(e).
"Report Period": as defined in subsection 2.18.
"Reportable Event": any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder.
"Required Banks": at a particular time, Banks having
Commitment Percentages aggregating at least 66-2/3%;
provided that (a) at any time after the termination of all
the Commitments, "Required Banks" means Banks holding Loans
aggregating at least 66-2/3% in principal amount of all
outstanding Loans, (b) as used in subsection 2.16, "Required
Banks" means with respect to any Extension Request, at a
particular time after the Termination Date has been extended
pursuant to such subsection, Banks (i) which are not
Objecting Banks with respect to any previous Extension
Request and (ii) which have Commitment Percentages
aggregating at least 66-2/3% of the aggregate Commitment
Percentages of such non-Objecting Banks and (c) as used in
any provision other than subsection 2.16 at any time after
the Commitment Expiration Date with respect to any Objecting
Bank (but prior to the termination of all the Commitments),
"Required Banks" means Banks whose Exposure aggregates at
least 66-2/3% of the aggregate Exposure of all the Banks.
"Requirement of Law": as to any Person, the
Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person, and
any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any
of its property or to which such Person or any of its
property is subject.
"Reserve Percentage": for any day during the Interest
Period for a C/D Rate Loan, that percentage (expressed as a
decimal) which is in effect on the first day of such
Interest Period, as prescribed by the Board of Governors of
the Federal Reserve System (or any successor), for
determining the maximum reserve requirement for a member
bank of the Federal Reserve System in New York City with
deposits exceeding one billion Dollars in respect of new
non-personal time deposits in Dollars in New York City
having a maturity comparable to the Interest Period for the
relevant C/D Rate Loans and in an amount of $100,000 or
more.
"Reserves": as defined in subsection 2.13(c).
"Responsible Officer": of a Borrower, the Chairman,
the President, any Executive, Senior or other Vice
President, the Treasurer and any Assistant Treasurer of such
Borrower.
"Restricted Margin Stock": any Margin Stock, the sale,
pledge or other disposition of which by the Company or any
of its Subsidiaries is in any way restricted by an
arrangement with any Bank or any affiliate thereof to the
extent that the value thereof (determined in accordance with
Regulation U of the Board of Governors of the Federal
Reserve System) does not exceed 25% of the value (determined
in accordance with such Regulation U) of all the assets
subject to such restriction.
"Restricted Subsidiary": any Subsidiary of the Company
incorporated in the United States of America or Canada (a)
which is engaged in, or whose principal assets consist of
property used by the Company or any Restricted Subsidiary
in, the manufacture of products within the United States of
America or Canada or in the sale of products principally to
customers located in the United States of America or Canada
except any corporation which is a retail dealer in which the
Company has, directly or indirectly, an investment, or (b)
which the Company shall designate as a Restricted Subsidiary
in an officers' certificate signed by two Responsible
Officers of the Company and delivered to the Administrative
Agent.
"Sale and Lease-back Transaction": as defined in
subsection 6.3.
"Significant Subsidiary": of a Borrower, any
Subsidiary of such Borrower the assets, revenues or net
worth of which is, at the time of determination, equal to or
greater than ten percent of the assets, revenues or net
worth, respectively, of such Borrower at such time.
"Subsidiary": of a Person, a corporation or other
entity of which securities or other ownership interests
having ordinary voting power (other than securities or other
ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the
board of directors or other Persons performing similar
functions are at the time directly or indirectly owned by
such Person or one or more Subsidiaries of such Person, or
by such Person and one or more Subsidiaries of such Person.
"Syndication Agent": as defined in the preamble
hereto.
"Termination Date": April 3, 1996 or such later date
as shall be determined pursuant to the provisions of
subsection 2.16 with respect to non-Objecting Banks.
"Tranche A Bank": each Bank listed in Part A of
Schedule II; collectively, the "Tranche A Banks".
"Tranche B Bank": each Bank listed in Part B of
Schedule II; collectively, the "Tranche B Banks".
"Transferees": as defined in subsection 10.5(g).
"Transfer Effective Date": as defined in each
Commitment Transfer Supplement and each Loan Assignment.
"Type": as to any Committed Rate Loan, its nature as
an ABR Loan, Eurodollar Loan or C/D Rate Loan.
"Utilized Percentage": as to any Bank at any time, the
ratio (expressed as a percentage) of (a) the Committed
Global Exposure of such Bank to (b) the amount of such
Bank's Commitment.
"Working Day": any Business Day on which dealings in
foreign currencies and exchange between banks may be carried
on in London, England and New York, New York.
1.2 Other Definitional Provisions. (a) All terms
defined in this Agreement shall have the defined meanings when
used in any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any certificate or other
document made or delivered pursuant hereto, accounting terms
relating to either Borrower and its Subsidiaries not defined in
subsection 1.1, and accounting terms partly defined in subsection
1.1 to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision
of this Agreement, and Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(d) Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the relevant Borrower.
SECTION 2. THE COMMITTED RATE LOANS; THE BID
LOANS; THE NEGOTIATED RATE LOANS;
AMOUNT AND TERMS
2.1 The Committed Rate Loans. (a) During the
Commitment Period, subject to the terms and conditions hereof,
each Bank severally agrees to make loans (individually, a
"Committed Rate Loan") to either Borrower from time to time in an
aggregate principal amount for both Borrowers at any one time
outstanding not to exceed such Bank's Commitment; provided,
however, that (i) the aggregate amount of the Committed Global
Exposure of any Bank, after giving effect to any concurrent
payment and/or borrowing under this Agreement or the Linked
Agreement, shall not at any time exceed the amount of its
Commitment and (ii) the aggregate outstanding principal amount of
Loans plus the aggregate Equivalent Amount of all Linked Loans
shall not at any time exceed the aggregate amount of the
Commitments. During the Commitment Period, either Borrower may
use the Commitments by borrowing, repaying and reborrowing, all
in accordance with the terms and conditions hereof.
(b) The Committed Rate Loans may be either (i)
Eurodollar Loans, (ii) ABR Loans, (iii) C/D Rate Loans or (iv) a
combination thereof as determined by the relevant Borrower.
(c) Either Borrower may borrow Committed Rate Loans on
any Working Day, if the borrowing is of Eurodollar Loans, or on
any Business Day, if the borrowing is of C/D Rate Loans or ABR
Loans; provided, however, that a Responsible Officer of such
Borrower shall give the Administrative Agent irrevocable notice
thereof (which notice must be received by the Administrative
Agent (i) prior to 12:00 Noon, New York City time, three Working
Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, (ii) prior to 12:00 Noon, New York City time,
two Business Days prior to the requested Borrowing Date in the
case of C/D Rate Loans, (iii) except as provided in clause (iv)
hereof below, prior to 12:00 Noon, New York City time, one
Business Day prior to the requested Borrowing Date, in the case
of ABR Loans and (iv) prior to 11:00 A.M., New York City time, on
the requested Borrowing Date in the case of ABR Loans up to an
aggregate principal amount for both Borrowers not to exceed 25%
of the Commitments on such Borrowing Date). Each such notice
shall be given in writing or by facsimile transmission
substantially in the form of Exhibit A (with appropriate
insertions) or shall be given by telephone (specifying the
information set forth in Exhibit A) promptly confirmed by notice
given in writing or by facsimile transmission substantially in
the form of Exhibit A (with appropriate insertions). On the day
of receipt of any such notice from either Borrower, the
Administrative Agent shall promptly notify each Bank thereof.
Subject to paragraph (e) below, each Bank will make the amount of
its share of each borrowing available to the Administrative Agent
for the account of such Borrower at the office of the
Administrative Agent set forth in subsection 10.2 at 11:00 A.M.
(or 2:00 P.M., in the case of ABR Loans requested pursuant to
clause (iv) above), New York City time, on the Borrowing Date
requested by such Borrower in funds immediately available to the
Administrative Agent as the Administrative Agent may direct. The
proceeds of all such Committed Rate Loans will be made available
promptly to such Borrower by the Administrative Agent at the
office of the Administrative Agent specified in subsection 10.2
by crediting the account of such Borrower on the books of such
office of the Administrative Agent with the aggregate of the
amount made available to the Administrative Agent by the Banks
and in like funds as received by the Administrative Agent.
(d) All Committed Rate Loans made to each Borrower
shall be repaid in full by such Borrower on or before the second
anniversary of the Termination Date; provided, that Committed
Rate Loans made by Objecting Banks shall be repaid as provided in
subsection 2.16(b).
2.2 The Bid Loans; the Negotiated Rate Loans. (a)
Either Borrower may borrow Bid Loans or Negotiated Rate Loans
from time to time on any Business Day (in the case of Bid Loans
made pursuant to an Absolute Rate Bid Loan Request), any Working
Day (in the case of Bid Loans made pursuant to an Index Rate Bid
Loan Request) or, in the case of Negotiated Rate Loans, on such
days as shall be mutually agreed upon between the relevant
Borrower and the applicable Bank, in each case during the
Commitment Period and in the manner set forth in this subsection
2.2 and in amounts such that the aggregate principal amount of
Loans at any time outstanding shall not exceed the aggregate
amount of the Commitments at such time. Notwithstanding any
other provision of this Agreement, the aggregate principal amount
of the outstanding Bid Loans and/or Negotiated Rate Loans made by
any Bank may at any time (but shall not be required to) exceed
the Commitment of such Bank so long as the aggregate outstanding
principal amount of all Loans plus the aggregate Equivalent
Amount of all Linked Loans does not at any time exceed the
aggregate amount of the Commitments.
(b)(i) Either Borrower shall request Bid Loans or
Negotiated Rate Loans by delivering (A) in the case of an Index
Rate Bid Loan, a Bid Loan Request to the Auction Agent, c/o
Deutsche Bank AG New York Branch, 31 West 52nd Street, New York,
New York 10019, Attention: Loan Syndications, Telephone: (212)
474-7041, Facsimile: (212) 474-7048, not later than 12:00 Noon
(New York City time) four Working Days prior to the proposed
Borrowing Date, (B) in the case of an Absolute Rate Bid Loan, a
Bid Loan Request to the Auction Agent at the address set forth in
clause (A) of this subsection 2.2(b)(i) not later than 10:00 A.M.
(New York City time) one Business Day prior to the proposed
Borrowing Date or (C) in the case of a Negotiated Rate Loan, a
Negotiated Rate Loan Request to any Bank at such time as the
applicable Borrower and the applicable Bank shall agree. Each
Bid Loan Request may solicit bids for Bid Loans in an aggregate
principal amount of $25,000,000 or an integral multiple of
$5,000,000 in excess thereof and for not more than three
alternative Interest Periods for such Bid Loans. The Auction
Agent shall promptly notify each Bid Loan Bank and the
Administrative Agent by facsimile transmission or by telephone,
immediately confirmed by facsimile transmission, of the contents
of each Bid Loan Request received by it.
(ii) In the case of an Index Rate Bid Loan
Request,
upon receipt of notice from the Auction Agent of the contents of
such Bid Loan Request, any Bid Loan Bank that elects, in its sole
discretion, to do so, shall irrevocably offer to make one or more
Bid Loans at the Applicable Index Rate plus or minus a margin for
each such Bid Loan determined by such Bid Loan Bank, in its sole
discretion. Any such irrevocable offer shall be made by
delivering a Bid Loan Offer to the Auction Agent at the address
set forth in clause (i)(A) above before 10:30 A.M. (New York City
time) three Working Days before the proposed Borrowing Date,
setting forth the maximum amount of Bid Loans for each Interest
Period, and the aggregate maximum amount for all Interest
Periods, which such Bank would be willing to make and the margin
above or below the Applicable Index Rate at which such Bid Loan
Bank is willing to make each such Bid Loan. The Auction Agent
shall advise the relevant Borrower before 11:00 A.M. (New York
City time) three Working Days before the proposed Borrowing Date
of the contents of each such Bid Loan Offer received by it. If
the Auction Agent in its capacity as a Bid Loan Bank shall, in
its sole discretion, elect to make any such offer, it shall
advise such Borrower of the contents of its Bid Loan Offer before
10:15 A.M. (New York City time) three Working Days before the
proposed Borrowing Date.
(iii) In the case of an Absolute Rate Bid Loan
Request,
upon receipt of notice from the Auction Agent of the contents of
such Bid Loan Request, any Bid Loan Bank that elects, in its sole
discretion, to do so, shall irrevocably offer to make one or more
Bid Loans at a rate or rates of interest for each such Bid Loan
determined by such Bid Loan Bank in its sole discretion. Any
such irrevocable offer shall be made by delivering a Bid Loan
Offer to the Auction Agent at the address set forth in clause
(i)(A) of this subsection 2.2(b) before 9:30 A.M. (New York City
time) on the proposed Borrowing Date, setting forth the maximum
amount of Bid Loans for each Interest Period, and the aggregate
maximum amount for all Interest Periods, which such Bid Loan Bank
would be willing to make and the rate or rates of interest at
which such Bid Loan Bank is willing to make each such Bid Loan.
The Auction Agent shall advise the relevant Borrower before 10:00
A.M. (New York City time) on the proposed Borrowing Date of the
contents of each such Bid Loan Offer received by it. If the
Auction Agent in its capacity as a Bid Loan Bank shall, in its
sole discretion, elect to make any such offer, it shall advise
such Borrower of the contents of its Bid Loan Offer before 9:15
A.M. (New York City time) on the proposed Borrowing Date.
(iv) The relevant Borrower shall before 11:30 A.M.
(New
York City time) three Working Days before the proposed Borrowing
Date (in the case of Bid Loans requested by an Index Rate Bid
Loan Request) and before 10:30 A.M. (New York City time) on the
proposed Borrowing Date (in the case of Bid Loans requested by an
Absolute Rate Bid Loan Request) either, in its absolute
discretion:
(A) cancel such Bid Loan Request by giving the Auction
Agent telephone notice to that effect, or
(B) accept one or more of the offers made by any Bid
Loan Bank or Bid Loan Banks pursuant to clause (ii) or
clause (iii) of this subsection 2.2(b), as the case may be,
by giving telephone notice to the Auction Agent (immediately
confirmed by delivery to the Auction Agent at the address
set forth in clause (i)(A) of this subsection 2.2(b) of a
Bid Loan Confirmation) of the amount of Bid Loans for each
relevant Interest Period to be made by each Bid Loan Bank
(which amount shall be equal to or less than the maximum
amount for such Interest Period specified in the Bid Loan
Offer of such Bid Loan Bank, and for all Interest Periods
included in such Bid Loan Offer shall be equal to or less
than the aggregate maximum amount specified in such Bid Loan
Offer for all such Interest Periods) and reject any
remaining offers made by Bid Loan Banks pursuant to clause
(ii) or clause (iii) above, as the case may be; provided,
however, that (x) such Borrower may not accept offers for
Bid Loans for any Interest Period in an aggregate principal
amount in excess of the maximum principal amount requested
for such Interest Period in the related Bid Loan Request,
(y) if such Borrower accepts any such offers, it must accept
offers strictly based upon pricing for such relevant
Interest Period and upon no other criteria whatsoever and
(z) if two or more Bid Loan Banks submit offers for any
Interest Period at identical pricing and such Borrower
accepts any of such offers but does not wish to borrow the
total amount offered by such Bid Loan Banks with such
identical pricing, such Borrower shall accept offers from
all of such Bid Loan Banks in amounts allocated among them
pro rata according to the amounts offered by such Bid Loan
Banks (or as nearly pro rata as shall be practicable, after
giving effect to the requirement that Bid Loans made by a
Bid Loan Bank on a Borrowing Date for each relevant Interest
Period shall be in a principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, it being
agreed that to the extent that it is not possible to make
allocations in accordance with the provisions of this clause
(z) such allocations shall be made in accordance with the
instructions of such Borrower, it being understood that in
no event shall any Bank be obligated to make any Bid Loan in
a principal amount less than $5,000,000).
(v) If such Borrower notifies the Auction Agent that a
Bid Loan Request is cancelled pursuant to clause (iv)(A) of this
subsection 2.2(b), the Auction Agent shall give prompt telephone
notice thereof to the Bid Loan Banks and the Administrative
Agent, and the Bid Loans requested thereby shall not be made.
(vi) (A) If such Borrower accepts pursuant to
clause
(iv)(B) of this subsection 2.2(b) one or more of the offers made
by any Bid Loan Bank or Bid Loan Banks pursuant to a Bid Loan
Request, the Auction Agent shall promptly notify by telephone the
Administrative Agent and each Bid Loan Bank which has made such
an offer of the aggregate amount of such Bid Loans to be made on
such Borrowing Date for each Interest Period and of the
acceptance or rejection of any offers to make such Bid Loans made
by such Bid Loan Bank. Each Bid Loan Bank which is to make a Bid
Loan pursuant to a Bid Loan Request shall, before 12:00 Noon (New
York City time) on the Borrowing Date specified in the Bid Loan
Request applicable thereto, make available to the Administrative
Agent at its office set forth in subsection 10.2 the amount of
Bid Loans to be made by such Bid Loan Bank, in immediately
available funds. The Administrative Agent will make such funds
available to such Borrower as soon as practicable on such date at
the Administrative Agent's aforesaid address.
(B) If such Borrower and any Bank agree to the terms
of a Negotiated Rate Loan to be made on a Borrowing Date
pursuant to a Negotiated Rate Loan Request, such Borrower
and such Bank shall promptly notify by telephone the
Administrative Agent of the aggregate amount of Negotiated
Rate Loans to be made on such Borrowing Date and the
respective Interest Periods therefor. Each Bank which is to
make a Negotiated Rate Loan shall, at such time, on such
Borrowing Date and at such location as shall be mutually
agreed upon between such Borrower and such Bank, make avail-
able to such Borrower the amount of Negotiated Rate Loans to
be made by such Bank, in immediately available funds.
(C) As soon as practicable after each Borrowing Date
for Bid Loans and Negotiated Rate Loans, the Administrative
Agent shall notify each Bank of the aggregate amount of Bid
Loans or Negotiated Rate Loans advanced pursuant to a Bid
Loan Request or Negotiated Rate Loan Request on such
Borrowing Date and the respective Interest Periods therefor.
(c) Within the limits and on the conditions set forth
in this subsection 2.2, each Borrower may from time to time
borrow under this subsection 2.2, repay pursuant to paragraph (d)
below, and reborrow under this subsection 2.2.
(d) Each Borrower shall repay to the Administrative
Agent for the account of each Bid Loan Bank (or the Loan Assignee
in respect thereof, as the case may be) which has made a Bid Loan
to such Borrower on the last day of the Interest Period for each
Bid Loan (such Interest Period being that specified by such
Borrower for repayment of such Bid Loan in the related Bid Loan
Request) the then unpaid principal amount of such Bid Loan. Each
Borrower shall repay to each Bank which has made a Negotiated
Rate Loan to such Borrower (or the Loan Assignee in respect
thereof, as the case may be) the principal thereof as agreed by
such Borrower and such Bank.
(e) Each Borrower shall pay interest on the unpaid
principal amount of each Bid Loan and each Negotiated Rate Loan
borrowed by such Borrower from the applicable Borrowing Date to
the stated maturity date thereof, in the case of a Bid Loan, at
the rate of interest determined pursuant to paragraph (b) of this
subsection 2.2, and, in the case of a Negotiated Rate Loan, as
agreed by such Borrower and the relevant Bank (calculated on the
basis of a 360 day year for actual days elapsed), payable on the
interest payment date or dates (i) specified by such Borrower for
such Bid Loan in the related Bid Loan Request and (ii) mutually
agreed upon between such Borrower and such Bank in the case of
Negotiated Rate Loans, provided that as to any Bid Loan in
respect of which the stated maturity date is more than three
months after such Borrowing Date, interest shall also be paid on
the day which occurs three months after such Borrowing Date. If
all or a portion of the principal amount of any Bid Loan shall
not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue principal amount shall,
without limiting any rights of any Bank under this Agreement,
bear interest from the date on which such payment was due at a
rate per annum which is 1% above the rate which would otherwise
be applicable to such Bid Loan until the scheduled maturity date
with respect thereto and for each day thereafter at a rate per
annum which is 1% above the ABR until paid in full (as well after
as before judgment). If all or any portion of the principal
amount of any Negotiated Rate Loan shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise),
such overdue principal amount shall, without limiting any rights
of any Bank under this Agreement, bear interest from the date on
which such payment was due at a rate per annum as shall be
mutually agreed upon between the relevant Borrower and the
relevant Bank.
(f) After the first Bid Loan Request has been given
hereunder, no Bid Loan Request or Negotiated Rate Loan Request
shall be given until at least one Business Day, in the case of an
Absolute Rate Bid Loan Request, or one Working Day, in the case
of an Index Rate Bid Loan Request, after the earliest to occur of
(i) the Borrowing Dates with respect to all prior Bid Loan
Requests made pursuant to subsection 2.2(b)(i), (ii) the date on
which all Bid Loan Banks have failed to submit Bid Loan Offers
with respect to any Bid Loan Requests within the time specified
in subsection 2.2(b)(ii) or (iii), as the case may be, and (iii)
the date on which the relevant Borrower has cancelled all prior
Bid Loan Requests pursuant to subsection 2.2(b)(iv).
2.3 Loan Accounts. Each Bank, with respect to its
Committed Rate Loans, Bid Loans and Negotiated Rate Loans, and
the Administrative Agent, with respect to all Committed Rate
Loans and Bid Loans, shall open and maintain in the name of each
Borrower loan accounts (as to each Bank, its "Loan Account"
applicable to such Borrower) on its books and records setting
forth the amounts of principal, interest and other sums paid and
payable by such Borrower from time to time hereunder in respect
of such Loans, and the obligation of such Borrower to pay or
repay, as the case may be, such amounts to such Bank shall be
evidenced by such Bank's Loan Account. In case of any dispute,
action or proceeding relating to any Committed Rate Loan, Bid
Loan or Negotiated Rate Loan, the entries in such records shall
constitute prima facie evidence of the accuracy of the
information set forth therein. In case of discrepancy between
the entries in the Administrative Agent's books and records and
any Bank's, the entries in the Administrative Agent's books and
records shall constitute prima facie evidence of the accuracy of
the information set forth therein.
2.4 Fees. (a) The Company and the Capital
Corporation jointly and severally agree to pay to the
Administrative Agent for the account of each Bank a facility fee
(i) from and including the Closing Date to but excluding the date
on which the Commitment of such Bank terminates hereunder,
computed at a rate of .065% per annum on the average daily amount
of the Commitment of such Bank in effect during the period for
which payment is made and (ii) thereafter until all Committed
Rate Loans of such Bank are paid in full, computed at a rate of
.065% per annum on the average daily amount of such Committed
Rate Loans outstanding, in each case, payable quarterly in
arrears on the first Business Day of each January, April, July
and October of each year, on the Termination Date or such earlier
date on which the Commitments shall terminate as provided herein,
and on the second anniversary of the Termination Date or such
earlier date on which the Loans are repaid in full, commencing in
July, 1995; provided that, for each quarter, any facility fee
payable hereunder to a Tranche B Bank shall be reduced (but not
below zero) by an amount equal to the Equivalent Amount of 26% of
any stamping fees previously paid to such Tranche B Bank's
Affiliated Linked Lender pursuant to subsection 6.1(b) of the
Linked Agreement and not theretofore applied to reduce such
facility fee.
(b) The Company and the Capital Corporation jointly
and severally agree to pay to the Administrative Agent for its
own account all fees set forth in the letter agreement dated
February 22, 1995 from the Administrative Agent to the Borrowers.
(c) The Company and the Capital Corporation jointly
and severally agree to pay to the Syndication Agent for its own
account all fees set forth in the letter agreement dated March
10, 1995 from the Syndication Agent to the Borrowers.
(d) The Company and the Capital Corporation jointly
and severally agree to pay to the Documentation Agent for its own
account all fees set forth in the letter agreement dated
March 13, 1995 from the Documentation Agent to the Borrowers.
(e) The Company and the Capital Corporation jointly
and severally agree to pay to the Auction Agent for its own
account all fees set forth in the letter agreement dated March 8,
1995 from the Auction Agent to the Borrowers.
(f) The Company and the Capital Corporation jointly
and severally agree to pay to the Canadian Administrative Agent
for its own account all fees set forth in the letter agreement
dated March 8, 1995 from the Canadian Administrative Agent to the
Borrowers.
2.5 Termination or Reduction of Commitments;
Cancellation of Capital Corporation as Borrower. (a) The
Borrowers, acting jointly, shall have the right, upon not less
than five Business Days' notice to the Administrative Agent, to
terminate the Commitments or, from time to time, reduce the
amount of the Commitments, provided that (i) any such reduction
shall be accompanied by prepayment of Committed Rate Loans
hereunder and/or Committed Linked Loans under the Linked
Agreement, together with accrued interest on the amount so
prepaid to the date of such prepayment, to the extent, if any,
that the aggregate outstanding principal amount of all Loans plus
the aggregate Equivalent Amount of all Linked Loans exceeds the
amount of the Commitments as then reduced, (ii) any such
reduction shall be accompanied by a reduction of the
"Commitments" of the Linked Lenders under the Linked Agreement to
the extent required to cause such "Commitments" not to exceed the
Commitments of the Tranche B Banks hereunder and (iii) any such
termination of the Commitments shall be accompanied by
termination of the "Commitments" of the Linked Lenders under the
Linked Agreement and prepayment in full of the Loans then
outstanding hereunder in accordance with subsection 2.6, and any
termination of a Bank's Commitment pursuant to subsection 2.13,
2.16 or 2.17 shall, with respect to each affected Loan, on the
last day of the applicable Interest Period therefor or, if
earlier, on such earlier date as shall be notified by the
Borrowers, be accompanied by prepayment in full of such Loan,
together with, in each case, accrued interest thereon to the date
of such prepayment, the payment of any unpaid facility fee then
accrued hereunder, and the payment of any amounts then payable
pursuant to subsections 2.13, 2.14, 2.15 and 2.17. Upon receipt
of such notice from the Borrowers the Administrative Agent shall
promptly notify each Bank thereof. Any reduction of the
Commitments pursuant to this subsection 2.5 shall be in an amount
not less than $25,000,000, and shall be an amount which is a
whole multiple of $5,000,000, and shall reduce permanently the
amount of the Commitments then in effect.
(b) Sections 4.3 and 5.4 and subsection 15.15(b) of
the Linked Agreement permit, under the circumstances therein
contemplated, the termination of the "Commitment" under the
Linked Agreement of a Tranche B Bank's Affiliated Linked Lender.
The Borrowers, acting jointly, may, upon giving at least three
Business Days' prior notice to the Administrative Agent, cancel
the Commitment hereunder of a Tranche B Bank upon such
termination of the "Commitment" under the Linked Agreement of
such Tranche B Bank's Affiliated Linked Lender. Any such
cancellation shall be accompanied by prepayment of the Committed
Rate Loans made hereunder by the relevant Tranche B Bank in
accordance with subsection 2.6, together with accrued interest on
the amount so prepaid to the date of such prepayment.
(c) The Company may cancel the ability of the Capital
Corporation to borrow hereunder upon not less than five Business
Days' notice to the Administrative Agent. Upon receipt of such
notice from the Company the Administrative Agent shall promptly
notify each Bank thereof. On the first day following receipt of
such notice, on which all Loans to the Capital Corporation and
all interest thereon shall have been paid in full, and
notwithstanding any other provision of this Agreement, (i) the
Capital Corporation shall cease to be a party hereto or to have
any right or obligation hereunder, (ii) rights and obligations
expressed herein to be, in effect, of either the Company or the
Capital Corporation or of both of them, but not any such rights
and obligations expressed herein to be of the Capital Corporation
only, shall be deemed to be rights and obligations of the Company
only and (iii) the Banks shall cease to have any right or
obligation hereunder which depends or is contingent upon any
action, condition or performance, or the absence thereof, whether
past or present, of the Capital Corporation other than any
action, condition or performance, or the absence thereof, of the
Capital Corporation in its capacity as a Subsidiary, Significant
Subsidiary or Restricted Subsidiary hereunder; provided, however,
that the obligation of the Capital Corporation to make any
payment pursuant to subsection 2.13, 2.14, 2.15 or 2.17 which
arises prior to the cancellation of the ability of the Capital
Corporation to borrow hereunder shall survive the cancellation of
the ability of the Capital Corporation to borrow hereunder.
2.6 Optional and Mandatory Prepayments. (a) Either
Borrower may at any time and from time to time prepay its
Committed Rate Loans in whole or in part, without premium or
penalty, but subject to the provisions of subsection 2.14, upon
at least three Working Days' irrevocable notice, in the case of
Eurodollar Loans, two Business Days' irrevocable notice in the
case of C/D Rate Loans, or one Business Day's irrevocable notice
in the case of ABR Loans, in each case to the Administrative
Agent, specifying the date and amount of prepayment and whether
the prepayment is of its Eurodollar Loans, ABR Loans, C/D Rate
Loans, or a combination thereof, and if of a combination thereof
the amount of prepayment allocable to each. Upon receipt of such
notice the Administrative Agent shall promptly notify each Bank
thereof. If such notice is given, the Borrower delivering such
notice shall make such prepayment, and the payment of the amount
specified in such notice shall be due and payable, on the date
specified therein, together with accrued interest to such date on
the amount prepaid and any amounts payable pursuant to
subsections 2.14 and 2.15. Except as provided in the immediately
following sentence, partial prepayments shall be in an aggregate
principal amount of $5,000,000, or a whole multiple thereof;
provided, however, that after giving effect thereto, the
aggregate principal amount of all Committed Rate Loans made on
the same Borrowing Date shall not be less than $25,000,000.
Anything contained in this subsection 2.6 to the contrary
notwithstanding, partial prepayments of a Cancelled Bank's Loans
in connection with the termination under subsection 2.13(a), (b)
or (c), 2.16(c) or 2.17(b) of such Cancelled Bank's Commitment
(in whole or in part) shall be in an amount equal to the
principal amount of the Loans of such Bank being prepaid,
notwithstanding the amount thereof, and shall be permitted
notwithstanding the provisions of the foregoing proviso. Either
Borrower may prepay Negotiated Rate Loans or Bid Loans on such
terms as shall be mutually agreed upon between the relevant
Borrower and the relevant Bank.
(b) On the last Business Day of each March, June,
September and December, the Canadian Administrative Agent will
determine the Equivalent Amount of outstanding Linked Loans and
notify the Borrowers and the Administrative Agent of such amount.
If on the last day of any March, June, September and December the
aggregate (i) amount of outstanding Loans of the Tranche B Banks
and (ii) Equivalent Amount of outstanding "Loans" under the
Linked Agreement, exceeds the Commitments of the Tranche B Banks
(the "Excess Amount"), the Borrowers shall as soon as possible
but, in any event, within 30 days of the giving of such notice or
such longer period of time as may be required in order that
Eurodollar Loans or C/D Rate Loans be paid on the last day of an
Interest Period, prepay Committed Rate Loans of the Tranche B
Banks hereunder to the extent of the Excess Amount.
Notwithstanding the preceding sentence, the Borrowers shall be
relieved of their obligation to make payment hereunder to the
extent that John Deere Limited or John Deere Finance Limited have
made a payment or prepayment of Linked Loans in accordance with
the Linked Agreement which has the effect of reducing the Excess
Amount.
2.7 Minimum Amount of Certain Loans. All borrowings,
conversions, continuations, payments and, except as set forth in
the penultimate sentence of subsection 2.6(a), prepayments in
respect of Committed Rate Loans shall be in such amounts and be
made pursuant to such elections that, after giving effect
thereto, (a) the aggregate principal amount of Committed Rate
Loans made on any Borrowing Date shall not be less than
$25,000,000 or a whole multiple of $5,000,000 in excess thereof
and (b) the aggregate principal amount of Committed Rate Loans of
any Type with the same Interest Period shall not be less than
$10,000,000 or a whole multiple of $1,000,000 in excess thereof.
2.8 Committed Rate Loan Interest Rate and Payment
Dates. (a) The Eurodollar Loans shall bear interest for the
period from the date thereof until the stated maturity thereof on
the unpaid principal amount thereof at a rate per annum equal to
the Eurodollar Rate determined for the Interest Period therefor
plus the Applicable Margin.
(b) The ABR Loans shall bear interest for each day
during the period from the date thereof until the payment in full
thereof on the unpaid principal amount thereof at a fluctuating
rate per annum equal to the ABR for such day plus the Applicable
Margin.
(c) The C/D Rate Loans shall bear interest for the
period from the date thereof until the stated maturity thereof on
the unpaid principal amount thereof at a rate per annum equal to
the C/D Rate determined for the Interest Period therefor plus the
Applicable Margin.
(d) If all or a portion of the principal amount of any
of the Committed Rate Loans shall not be paid when due (whether
at the stated maturity, by acceleration or otherwise) such
overdue principal amount of such Committed Rate Loan (i) shall
bear interest at a rate per annum which is 1% above the rate
which would otherwise be applicable pursuant to subsection
2.8(a), (b) or (c), as the case may be, from the date when such
principal amount is due until the date on which such amount is
paid in full and (ii) shall, if such Committed Rate Loan is a
Eurodollar Loan or C/D Rate Loan, be converted to an ABR Loan at
the end of the Interest Period applicable thereto.
(e) Interest shall be payable in arrears on each
Interest Payment Date.
2.9 Conversion and Continuation Options. (a) The
relevant Borrower may elect from time to time to convert
Committed Rate Loans of one Type into Committed Rate Loans of
another Type by giving to the Administrative Agent irrevocable
notice of such conversion by the earliest time that they would
have been required to give notice under subsection 2.1(c) if they
had been borrowing Committed Rate Loans of each such Type on the
conversion date specified in such notice, provided that any such
conversion of Eurodollar Loans or C/D Rate Loans may only be made
on the last day of an Interest Period with respect thereto. Any
such notice of conversion to Eurodollar Loans or C/D Rate Loans
shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Bank thereof. If
the last day of the then current Interest Period with respect to
C/D Rate Loans that are to be converted to Eurodollar Loans is
not a Working Day, such conversion shall be made on the next
succeeding Working Day, and during the period from such last day
to such succeeding Working Day such Loans shall bear interest as
if they were ABR Loans. All or any part of outstanding
Eurodollar Loans, ABR Loans and C/D Rate Loans may be converted
as provided herein, provided that no Loan may be converted into a
Eurodollar Loan or a C/D Rate Loan after the date that is one
month or 30 days, respectively, prior to (i) in the case of a
Loan made by an Objecting Bank, the second anniversary of such
Objecting Bank's Commitment Expiration Date, and (ii) in the case
of all Loans, the second anniversary of the Termination Date.
(b) Any Eurodollar Loans or C/D Rate Loans may be
continued as such upon the expiration of the then current
Interest Period with respect thereto by the relevant Borrower
giving notice to the Administrative Agent, such notice to be
given by the time it would have been required to give notice
under subsection 2.1(c) if it had been borrowing Eurodollar Loans
or C/D Rate Loans, as the case may be, on the last day of the
then expiring Interest Period therefor, of the length of the next
Interest Period to be applicable to such Loans, provided that no
Eurodollar Loan or C/D Rate Loan may be continued as such after
the date that is one month or 30 days, respectively, prior to (i)
in the case of a Loan made by an Objecting Bank, the second
anniversary of such Objecting Bank's Commitment Expiration Date,
and (ii) in the case of all Loans, the second anniversary of the
Termination Date. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Bank thereof.
2.10 Computation of Interest and Fees. (a) Facility
fees and interest in respect of ABR Loans based upon clause (a)
of the definition of ABR shall be calculated on the basis of a
365 (or 366 as the case may be) day year for the actual days
elapsed (including the first day and excluding the last day).
Interest in respect of Eurodollar Loans, C/D Rate Loans, Bid
Loans and ABR Loans based upon clause (b) of the definition of
ABR shall be calculated on the basis of a 360 day year for the
actual days elapsed (including the first day and excluding the
last day). The Administrative Agent shall promptly notify the
Borrowers and the Banks of each determination of a Eurodollar
Rate and of a C/D Rate. Any change in the interest rate on a
Committed Rate Loan resulting from a change in the ABR shall
become effective as of the opening of business on the day on
which such change in the ABR shall become effective. The
Administrative Agent shall promptly notify the Borrowers and the
Banks of the effective date and the amount of each such change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement
shall be conclusive and binding on the Borrowers and the Banks in
the absence of manifest error. The Administrative Agent shall,
at the request of a Borrower, deliver to such Borrower a
statement showing the quotations given by the Reference Banks and
the computations used by the Administrative Agent in determining
any interest rate.
(c) If any Reference Bank's Commitment shall terminate
(otherwise than on termination of all the Commitments) or, as the
case may be, its Loans are assigned, prepaid or repaid for any
reason whatsoever, such Reference Bank shall thereupon cease to
be a Reference Bank, and the Administrative Agent (after
consultation with the Banks and with the consent of the
Borrowers) shall, by notice to the Borrowers and the Banks,
designate a sufficient number of other Banks as Reference Banks
so that there shall at all times be at least three Reference
Banks.
(d) Each Reference Bank shall use its best efforts to
furnish quotations of rates to the Administrative Agent as
contemplated hereby. If any of the Reference Banks shall be
unable or otherwise fails to supply such rates to the
Administrative Agent upon its request, the rate of interest shall
be determined on the basis of the quotations of the remaining
Reference Banks or Reference Bank.
2.11 Inability to Determine Interest Rate. (a) In
the event that the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the
Borrowers) that by reason of circumstances affecting the
interbank eurodollar market generally, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for any
requested Interest Period with respect to Committed Rate Loans
that a Borrower has requested be made as, continued as or
converted into Eurodollar Loans, the Administrative Agent shall
promptly give notice of such determination to such Borrower and
the Banks prior to the first day of the requested Interest Period
for such Eurodollar Loans. If such notice is given, such
Borrower may (i) in accordance with the provisions of subsection
2.1 or 2.9, as the case may be (including any requirements for
notification), request that the affected Loans be made as,
continued as or converted into, as the case may be, C/D Rate
Loans or ABR Loans, or (ii) in the case of Loans requested to be
made on the first day of such Interest Period, withdraw the
notice given under subsections 2.1 or 2.9, as the case may be, by
giving telephonic notice to the Administrative Agent, no later
than 10:00 A.M. (New York City time) on the applicable Borrowing
Date, confirmed in writing no later than one Business Day after
such telephonic notice is given; provided that if the
Administrative Agent does not receive any notice permitted from
the relevant Borrower hereunder, such Borrower shall be deemed to
have requested that the affected Loans be made as, continued as
or converted into, as the case may be, ABR Loans. Until the
notice given pursuant to the first sentence of this paragraph has
been withdrawn by the Administrative Agent, no further Loans
shall be made as, continued as or converted into, as the case may
be, Eurodollar Loans.
(b) In the event that the Administrative Agent shall
have determined (which determination shall be conclusive and
binding upon the Borrowers) that by reason of circumstances
affecting the domestic certificate of deposit market generally,
adequate and reasonable means do not exist for ascertaining the
C/D Rate for any requested Interest Period with respect to
Committed Rate Loans that a Borrower has requested be made as,
continued as or converted into C/D Rate Loans, the Administrative
Agent shall promptly give notice of such determination to such
Borrower and the Banks on or prior to the first day of the
requested Interest Period for such C/D Rate Loans. If such
notice is given, such Borrower may (i) in accordance with the
provisions of subsection 2.1 or 2.9, as the case may be
(including any requirements for notification), request that the
affected Loans be made as, continued as or converted into, as the
case may be, ABR Loans, or (ii) in the case of Loans requested to
be made on the first day of such Interest Period, withdraw the
notice given under subsection 2.1 or 2.9, as the case may be, by
giving telephonic notice to the Administrative Agent, no later
than the later of 10:00 A.M. (New York City time) on the
applicable Borrowing Date and one hour after receipt by such
Borrower of the notice referred to in the preceding sentence,
confirmed in writing no later than one Business Day after such
telephonic notice is given; provided that if the Administrative
Agent does not receive any notice permitted from the relevant
Borrower hereunder, such Borrower shall be deemed to have
requested that the affected Loans be made as, continued as or
converted into, as the case may be, ABR Loans. Until the notice
given pursuant to the first sentence of this paragraph has been
withdrawn by the Administrative Agent, no further Loans shall be
made as, continued as or converted into, as the case may be, C/D
Rate Loans.
(c) In the event that the Auction Agent shall have
determined (which determination shall be conclusive and binding
upon the Borrowers) that by reason of circumstances affecting the
interbank eurodollar market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for any Interest
Period with respect to a proposed Bid Loan to be made pursuant to
an Index Rate Bid Loan Request, the Auction Agent shall forthwith
give notice of such determination to the relevant Borrower and
the Bid Loan Banks at least two Business Days prior to the
proposed Borrowing Date, and such Bid Loans shall not be made on
such Borrowing Date. Until any such notice has been withdrawn by
the Auction Agent, no further Index Rate Bid Loan Requests shall
be submitted by either Borrower.
2.12 Pro Rata Treatment and Payments. (a) All
payments (including prepayments), to be made by the Borrowers on
account of principal, interest and fees shall be made without
defense, set-off or counterclaim and shall be made, in the case
of fees and principal of, and interest on, Loans (other than
Negotiated Rate Loans) at the Administrative Agent's office
specified in subsection 10.2, in each case in lawful money of the
United States of America and in immediately available funds not
later than 11:00 A.M. (New York City time) on the date due. The
Administrative Agent shall distribute such payments to the Banks
entitled thereto on the day of receipt in like funds as received,
provided that the Administrative Agent shall have received such
payments not later than 11:00 A.M. (New York City time). If the
Administrative Agent shall distribute such payments to the Banks
entitled thereto on a date after the date on which such payments
were received prior to 11:00 A.M. (New York City time), the
Administrative Agent shall pay to each such Bank on demand an
amount equal to the product of (i) the daily average Federal
funds rate during such period as quoted by the Administrative
Agent, times (ii) the amount of such Bank's share of such
payment, times (iii) a fraction the numerator of which is the
number of days that elapse from and including such date of
receipt of payment by the Administrative Agent to but excluding
the date on which such Bank's share of such payment shall have
become immediately available to such Bank and the denominator of
which is 360. All payments (including prepayments) to be made by
the Borrowers on account of principal, interest and fees relating
to Negotiated Rate Loans shall be made to the Bank with respect
thereto on such terms, at such address and at such time as shall
be mutually agreed upon between the relevant Borrower and the
relevant Bank in lawful money of the United States of America on
the date due.
(b) (i) Each borrowing by the Borrowers of Committed Rate
Loans and each payment of principal in respect of Committed Rate
Loans shall be made in accordance with the following
requirements:
(A) All borrowings of Committed Rate Loans from
Tranche A Banks, and all principal payments in respect of
such Loans, shall be made pro rata according to the
respective Commitments of the Tranche A Banks.
(B) All borrowings of Committed Rate Loans from
Tranche B Banks, and all principal payments in respect of
such Loans, shall be made pro rata according to the
respective Commitments of the Tranche B Banks.
(C) If any borrowing is made in respect of Committed
Rate Loans on any day when, after giving effect to any
concurrent payment and/or borrowing under this Agreement or
the Linked Agreement, the respective Utilized Percentages of
the Tranche A Banks exceed the respective Utilized
Percentages of the Tranche B Banks, such borrowing in
respect of Committed Rate Loans shall be allocated first to
the Tranche B Banks to the extent required to cause the
respective Utilized Percentages of all the Banks to be equal
(to the extent the amount of such borrowing is sufficient to
yield such result), and second, any remaining amount of such
borrowing shall be allocated among all the Banks pro rata
according to the respective Commitment Percentages of the
Banks.
(D) Except as provided in subclause (G) below, if any
payment is made in respect of Committed Rate Loans on any
day when, after giving effect to any concurrent payment
and/or borrowing under this Agreement or the Linked
Agreement, the respective Utilized Percentages of the
Tranche A Banks exceed the respective Utilized Percentages
of the Tranche B Banks, such payment in respect of Committed
Rate Loans shall be allocated first to the Tranche A Banks
to the extent required to cause the respective Utilized
Percentages of all the Banks to be equal (to the extent the
amount of such payment is sufficient to yield such result),
and second, such payment shall be allocated among all the
Banks pro rata according to the respective Commitment
Percentages of the Banks until either (I) all of such
payment has been so applied or (II) all outstanding
Committed Rate Loans owing to Tranche B Banks have been paid
in full, and after all outstanding Committed Rate Loans
owing to Tranche B Banks have been paid in full any
remaining amount of such payment shall be allocated to the
Tranche A Banks.
(E) If any borrowing is made in respect of Committed
Rate Loans on any day when, after giving effect to any
concurrent payment and/or borrowing under this Agreement or
the Linked Agreement, the respective Utilized Percentages of
the Tranche B Banks exceed the respective Utilized
Percentages of the Tranche A Banks, such borrowing in
respect of Committed Rate Loans shall be allocated first to
the Tranche A Banks to the extent required to cause the
respective Utilized Percentages of all the Banks to be equal
(to the extent the amount of such borrowing is sufficient to
yield such result), and second, any remaining amount of such
borrowing shall be allocated among all the Banks pro rata
according to the respective Commitment Percentages of the
Banks.
(F) Except as provided in subclause (G) below, if any
payment is made in respect of Committed Rate Loans on any
day when, after giving effect to any concurrent payment
and/or borrowing under this Agreement or the Linked
Agreement, the respective Utilized Percentages of the
Tranche B Banks exceed the respective Utilized Percentages
of the Tranche A Banks, such payment in respect of Committed
Rate Loans shall be allocated first to the Tranche B Banks
to the extent required to cause (I) the Committed Rate Loans
owing to Tranche B Banks to be repaid in full or (II) the
respective Utilized Percentages of all the Banks to be equal
(in each case to the extent the amount of such payment is
sufficient to yield such result), whichever shall first
occur, and second, such payment shall be allocated among all
the Banks pro rata according to the respective Commitment
Percentages of the Banks until either (x) all of such
payment has been so applied or (y) all Committed Rate Loans
owing to Tranche B Banks have been paid in full, and after
all Committed Rate Loans owing to Tranche B Banks have been
paid in full any remaining amount of such payment shall be
allocated to the Tranche A Banks.
(G) As provided in clause (b)(ii) below, if any
principal payment is made in respect of any Loans on any day
on which principal amounts are due and owing in respect of
any Loans, such principal payment shall be applied to the
Banks pro rata according to the respective amounts of
principal due and owing to the Banks in respect of Loans
under this Agreement. Payment of the Loans of the Tranche B
Banks made in accordance with subsection 2.6(b) shall be
applied to the Tranche B Banks pro rata according to the
respective amounts of Committed Rate Loans owing to the
Tranche B Banks.
(ii) Except as provided in subsections 2.13, 2.16 and 2.17,
each reduction of the Commitments shall be made pro rata among
the Banks according to their respective Commitment Percentages.
Each payment by the Borrowers under this Agreement or of any Loan
(other than Negotiated Rate Loans) shall be applied, first, to
any fees then due and owing pursuant to subsection 2.4, second,
to interest then due and owing in respect of the Loans (other
than Negotiated Rate Loans) and third, to principal then due and
owing hereunder (other than principal due and owing under
Negotiated Rate Loans) and under the Loans (other than Negotiated
Rate Loans). Each payment made by the Borrowers under this
Agreement relating to a Negotiated Rate Loan to the Bank with
respect thereto shall be applied, first, to interest then due and
owing in respect of such Negotiated Rate Loan and second, to
principal then due and owing hereunder with respect to such
Negotiated Rate Loan and under such Negotiated Rate Loan. Each
payment (other than voluntary prepayments made when no principal
payments are due and owing hereunder) by either Borrower on
account of principal of and interest on the Loans shall be made
for the account of each Bank pro rata according to the respective
amounts of principal and interest due and owing to such Bank
under this Agreement. Subject to the requirements of clause (i)
of this paragraph (b), each payment by a Borrower on account of
principal of the Loans (other than Negotiated Rate Loans) shall
be applied, first, to such of its Committed Rate Loan borrowings
as such Borrower may designate, provided, however, that if any
such payment is made after the Commitment Expiration Date for any
Objecting Banks to which Committed Rate Loans remain outstanding,
such Objecting Banks shall receive, pro rata, the portion of such
payment that bears the same ratio to the aggregate outstanding
principal amount of Committed Rate Loans owing to all Objecting
Banks as the portion of such prepayment applied to the Committed
Rate Loans of the other Banks bears to the aggregate outstanding
principal amount of Committed Rate Loans owing to such other
Banks, and, second, after all Committed Rate Loans shall have
been paid in full, to all of its Absolute Rate Bid Loans or Index
Rate Bid Loans made on the same Borrowing Date with the same
Interest Period as such Borrower may designate, pro rata
according to the respective amounts outstanding; provided,
however, that prepayments made pursuant to subsection 2.13(a),
(b) or (c), 2.16(c) or 2.17(b) shall be applied in accordance
with such subsection.
(c) If any payment hereunder (other than payments on
the Eurodollar Loans and Index Rate Bid Loans) becomes due and
payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day. If any payment on
a Eurodollar Loan or Index Rate Bid Loan becomes due and payable
on a day other than a Working Day, the maturity thereof shall be
extended to the next succeeding Working Day unless the result of
such extension would be to extend such payment into another
calendar month in which event such payment shall be made on the
immediately preceding Working Day. With respect to any extension
of the payment of principal pursuant to this subsection 2.12(c),
interest thereon shall be payable at the then applicable rate
during such extension.
(d) Unless the Administrative Agent shall have been
notified in writing by any Bank prior to the date of the
Committed Rate Loan, Committed Rate Loans, Bid Loan or Bid Loans
to be made by such Bank (which notice shall be effective upon
receipt) that such Bank will not make its pro rata share of the
amount of the requested borrowing on such date available to the
Administrative Agent, the Administrative Agent may assume that
such Bank has made such amount available to it on such date and
the Administrative Agent may, in reliance upon such assumption,
make available to the relevant Borrower a corresponding amount.
If a Bank shall make such amount available to the Administrative
Agent on a date after such Borrowing Date, such Bank shall pay to
the Administrative Agent on demand an amount equal to the product
of (i) the daily average Federal funds rate during such period as
quoted by the Administrative Agent, times (ii) the amount of such
Bank's pro rata share of such borrowing, times (iii) a fraction
the numerator of which is the number of days that elapse from and
including such Borrowing Date to but excluding the date on which
such Bank's pro rata share of such borrowing shall have become
immediately available to the Administrative Agent and the
denominator of which is 360. A certificate of the Administrative
Agent submitted to any Bank with respect to any amounts owing
under this subsection 2.12(d) shall be conclusive, absent
manifest error. If such Bank's pro rata share is not in fact
made available to the Administrative Agent by such Bank within
three Business Days of such Borrowing Date, the Administrative
Agent shall be entitled to recover such amount, on demand, from
the relevant Borrower with interest thereon at the rate equal to
the product of (i) during the period from and including such
Borrowing Date to the Business Day next following the date of
such demand, the daily average Federal funds rate as quoted by
the Administrative Agent, times a fraction the numerator of which
is the number of days that elapse from and including such
Borrowing Date to but excluding the Business Day next following
the date of such demand and the denominator of which is 360 and
(ii) thereafter, the interest rate or rates applicable to the
Loan or Loans funded by the Administrative Agent on behalf of
such Bank on such Borrowing Date, times a fraction the numerator
of which is the number of days which elapse from and including
the Business Day next following the date of such demand to but
excluding the date such amount is recovered by the Administrative
Agent from such Borrower and the denominator of which is 360. In
the event any Bank's pro rata share of a borrowing is not made
available to the Administrative Agent in accordance with this
paragraph within three Business Days of the applicable Borrowing
Date (i) such Bank shall, during the period from such Borrowing
Date to the date such Bank makes its pro rata share of the
applicable borrowing available, not accrue and shall not be
entitled to receive any facility fee under subsection 2.4 and
(ii) either Borrower may exercise or pursue any other rights,
remedies, powers and privileges against such Bank as are provided
by law or by contract.
2.13 Requirements of Law. (a) If any Bank shall
determine that by reason of (i) the introduction after the date
hereof of any applicable law, regulation or guideline or any
change after the date hereof in any applicable law, regulation or
guideline (including the phasing-in of a provision of any
applicable law, regulation or guideline) or in the interpretation
thereof by any governmental or other regulatory authority charged
with the administration thereof or any court of competent
jurisdiction and/or (ii) compliance by such Bank with any
requirement adopted after the date hereof of or directive adopted
after the date hereof from any central bank or other fiscal,
monetary or other regulatory authority (whether or not having the
force of law), there shall be any increase in the cost of such
Bank of maintaining or giving effect to its obligations with
respect to Committed Rate Loans under this Agreement or
maintaining its Commitment with respect to Committed Rate Loans
or making or maintaining any C/D Rate Loans or Eurodollar Loans
or any reduction in any amount receivable by such Bank in respect
of C/D Rate Loans or Eurodollar Loans under this Agreement,
notwithstanding the reasonable efforts (such reasonable efforts
not to result in the incurrence of additional costs or expenses)
of such Bank to mitigate such increase or reduction, then the
relevant Borrower shall from time to time on receipt (whenever
occurring) of a certificate from such Bank (which shall be
executed by an officer thereof and a copy of which shall be
delivered to the Administrative Agent) pay to such Bank such
amounts as are stated therein to be required to indemnify such
Bank against such increased costs or reduction; provided,
however, that if such Borrower becomes obligated to pay any Bank
any additional amount pursuant to this subsection 2.13(a), such
Borrower shall have the right, so long as no Event of Default has
occurred and is then continuing, upon giving notice to the
Administrative Agent and such Bank in accordance with subsection
2.6, to prepay in full the Loans of such Bank, together with
accrued interest thereon, any amounts payable to such Bank
pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued
and unpaid facility fee or other amount payable to such Bank
hereunder and/or, upon giving not less than three Business Days'
notice to any such Bank and the Administrative Agent, to cancel
the whole or part of the Commitment of any such Bank; provided,
further, that such Borrower shall not be obligated to pay any
Bank any additional amount pursuant to this subsection 2.13(a)
(A) which constitutes a present or future income, stamp or other
tax, levy, impost, duty, charge, fee, deduction or withholding
referred to in subsection 2.17(a) or (B) as a result of any law,
rule, guideline, regulation, request or directive regarding
capital adequacy referred to in subsection 2.13(b). A
certificate of such Bank as to the amount of such increased costs
or reduction shall set forth in reasonable detail the computation
of such increased costs or reduction, and shall be binding and
conclusive in the absence of manifest error. Amounts payable
pursuant to this subsection 2.13(a) shall not include amounts
which the relevant Borrower is obligated to pay pursuant to the
definition of "C/D Rate" or subsection 2.13(c). A Bank which
demands indemnification hereunder as a result of an increased
cost or reduction referred to herein shall deliver the
certificate referred to above to the relevant Borrower demanding
indemnification no later than the later of (y) the thirtieth day
immediately following each payment or realization by such Bank of
such increased cost or reduction (and such certificate shall
certify that the amounts set forth therein were paid or realized
within such thirty-day period) and (z) the thirtieth day
immediately following such Bank's knowledge of the incurrence or
realization by such Bank of such increased cost or reduction (and
such certificate shall so certify).
(b) In the event that any Bank shall have determined
that the adoption after the date hereof of any law, rule,
guideline or regulation regarding capital adequacy, or any change
after the date hereof in any existing or future law, rule,
guideline or regulation regarding capital adequacy (excluding,
however, the phasing-in of any existing law, rule, regulation or
guideline regarding capital adequacy) or in the interpretation or
application thereof or compliance by such Bank or any corporation
controlling such Bank with any request or directive made or
adopted after the date hereof regarding capital adequacy (whether
or not having the force of law) from any central bank or
Governmental Authority, does or shall have the effect of reducing
the rate of return on such Bank's or such corporation's capital
as a consequence of its obligations hereunder to a level below
that which such Bank or such corporation could have achieved but
for such adoption, change or compliance (taking into
consideration such Bank's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Bank to
be material, then from time to time, within 30 days after receipt
(whenever occurring) of a certificate from such Bank (which shall
be executed by an officer thereof and a copy of which shall be
delivered to the Administrative Agent), the Borrowers jointly and
severally agree to pay to such Bank such additional amounts as
are stated therein to be required to compensate it for such
reduction; provided, however, that if such Borrower becomes
obligated to pay any Bank any additional amount pursuant to this
subsection 2.13(b), such Borrower shall have the right, so long
as no Event of Default has occurred and is then continuing, upon
giving notice to the Administrative Agent and such Bank in
accordance with subsection 2.6, to prepay in full the Loans of
such Bank, together with accrued interest thereon, any amounts
payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any
accrued and unpaid facility fee or other amounts payable to it
hereunder and/or, upon giving not less than three Business Days'
notice to any such Bank and the Administrative Agent, to cancel
the whole or part of the Commitment of any such Bank. A
certificate of such Bank as to the amount of such reduction shall
set forth in reasonable detail the computation of such reduction,
and shall be binding and conclusive in the absence of manifest
error. A Bank which demands indemnification hereunder as a
result of a reduction referred to herein shall deliver the
certificate referred to above to the relevant Borrower demanding
indemnification no later than the later of (i) the thirtieth day
immediately following each realization by such Bank of such
reduction (and such certificate shall certify that the amounts
set forth therein were realized within such thirty-day period)
and (ii) the thirtieth day immediately following such Bank's
knowledge of the realization by such Bank of such reduction (and
such certificate shall so certify).
(c) Each Borrower shall pay to each Bank that delivers
a certificate to such Borrower in accordance with the second and
third following sentences such amounts as shall be necessary to
reimburse such Bank for the costs (determined in accordance with
the immediately following sentence), if any, incurred by such
Bank, as a result of the application to such Bank during any
period on which there are outstanding Eurodollar Loans advanced
by such Bank to such Borrower of basic, supplemental, marginal
and emergency reserves under any regulations of the Board of
Governors of the Federal Reserve System or other Governmental
Authority having jurisdiction with respect thereto dealing with
reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency liabilities" in
Regulation D of such Board) maintained by a member bank of such
System (any such reserves dealing with reserve requirements
prescribed for eurocurrency funding being referred to as
"Reserves"), such amount to be set forth in a certificate of such
Bank delivered to the relevant Borrower; provided, however, that
if a Bank gives to a Borrower the written notice contemplated by
the proviso set forth in the second following sentence, such
Borrower shall have the right, so long as no Event of Default has
occurred and is then continuing, upon giving notice to the
Administrative Agent and such Bank in accordance with subsection
2.6, to prepay in full the Loans of such Bank, together with
accrued interest thereon, any amounts payable pursuant to
subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid
facility fee or other amounts payable to it hereunder and/or upon
giving not less than three Working Days' notice to such Bank and
the Administrative Agent, to cancel the whole or part of the
Commitment of any such Bank. Amounts certified by a Bank
hereunder for any period shall represent such Bank's calculation
or, if an accurate calculation is impracticable, reasonable
estimate (using such reasonable means of allocation as such Bank
shall determine) of the actual costs, if any, theretofore
incurred by such Bank as a result of the application of Reserves
to Eurocurrency liabilities (as referred to in Regulation D
referred to above) of such Bank in an amount equal to such Bank's
Eurodollar Loans during such period and in any event shall not
exceed the amount obtainable utilizing the maximum Reserves
prescribed by the Board of Governors of the Federal Reserve
System or other Governmental Authority having jurisdiction with
respect thereto for such period. Such payment shall be made
within fifteen days after receipt by the relevant Borrower of a
certificate, signed by an officer of the Bank delivering such
certificate, which certificate shall be binding and conclusive in
the absence of demonstrable error, specifying the period (prior
to the date of such certificate) during which the cost set forth
therein was incurred by such Bank and stating (i) that such
amount represents the actual cost, or, if an accurate calculation
of such cost is impracticable stating that such amount represents
such Bank's reasonable estimate of the actual cost, incurred by
such Bank during such period as a result of the application of
Reserves to Eurocurrency liabilities of such Bank in an amount
equal to such Bank's Eurodollar Loans during such period and
specified in such certificate and (ii) that the amount set forth
therein does not in any event exceed the amount obtainable
utilizing the maximum Reserves prescribed for such period by the
Board of Governors of the Federal Reserve System or such other
Governmental Authority having jurisdiction with respect thereto;
provided that the obligation of the Borrowers to pay any amounts
pursuant to this subsection 2.13(c) shall apply only in the case
of those Banks that give to the relevant Borrower and the
Administrative Agent, no later than 3:00 P.M. (New York City
time) on the day that is two Working Days prior to the applicable
Borrowing Date therefor, a written notice stating that such Bank
intends to demand reimbursement pursuant hereto. A Bank which
demands reimbursement of Reserve costs hereunder on account of a
Eurodollar Loan made by such Bank shall deliver the certificate
referred to in the preceding sentence to the relevant Borrower
setting forth the items specified in clauses (i) and (ii) of the
preceding sentence no later than the thirtieth day immediately
following the last day of the Interest Period applicable to such
Eurodollar Loan.
(d) The obligations of the parties under this
subsection 2.13 shall survive termination of this Agreement and
payment of the Loans.
2.14 Indemnity. Each Borrower agrees to indemnify
each Bank and to hold each Bank harmless from any loss or expense
which such Bank may sustain or incur as a consequence of (a)
default by such Borrower in payment of the principal amount of or
interest on any Loan by such Bank, including, but not limited to,
any such loss or expense arising from interest or fees payable by
such Bank to lenders of funds obtained by it in order to maintain
its Loans hereunder, (b) default by such Borrower in making a
borrowing, conversion or continuance after such Borrower has
given a notice in accordance with subsection 2.1, 2.2 or 2.9, (c)
default by such Borrower in making any prepayment after such
Borrower has given a notice in accordance with subsection 2.5 or
2.6 or (d) the making by such Borrower of a prepayment of a
Committed Rate Loan (other than an ABR Loan), a Bid Loan or, to
the extent agreed to by the relevant Borrower and the relevant
Bank with respect to a Negotiated Rate Loan, a Negotiated Rate
Loan on a day which is not the last day of an Interest Period
with respect thereto (with respect to Committed Rate Loans) or
the maturity date therefor (with respect to Bid Loans) or any
agreed date (with respect to Negotiated Rate Loans), including,
but not limited to, any such loss or expense arising from
interest or fees payable by such Bank to lenders of funds
obtained by it in order to maintain its Loans hereunder. This
covenant shall survive termination of this Agreement and payment
of the outstanding Loans. A certificate as to any amount payable
pursuant to the foregoing shall be submitted by such Bank (and
executed by an officer thereof) to the relevant Borrower, setting
forth the computation of such amounts in reasonable detail, and
shall be conclusive in the absence of manifest error.
2.15 Non-Receipt of Funds by the Administrative Agent.
With respect to all Loans except Negotiated Rate Loans, unless
the Administrative Agent shall have been notified by the relevant
Borrower prior to the date on which any payment is due from it
hereunder (which notice shall be effective upon receipt) that
such Borrower does not intend to make such payment, the
Administrative Agent may assume that such Borrower has made such
payment when due, and the Administrative Agent may in reliance
upon such assumption (but shall not be required to) make
available to each Bank on such payment date an amount equal to
the portion of such assumed payment to which such Bank is
entitled hereunder, and if such Borrower has not in fact made
such payment to the Administrative Agent, such Bank shall, on
demand, repay to the Administrative Agent the amount made
available to such Bank together with interest thereon in respect
of each day during the period commencing on the date such amount
was made available to such Bank and ending on (but excluding) the
date such Bank repays such amount to the Administrative Agent, at
a rate per annum equal to the Administrative Agent's cost of
obtaining overnight funds in the federal funds market in New York
on each such day. A certificate of the Administrative Agent
submitted to the relevant Bank with respect to any amount owing
under this subsection 2.15 shall be conclusive absent manifest
error.
2.16 Extension of Termination Date. (a) Not less than
60 days and not more than 90 days prior to the Termination Date
then in effect, provided that no Event of Default shall have
occurred and be continuing, the Borrowers may request an
extension of such Termination Date by submitting to the
Administrative Agent an Extension Request containing the
information in respect of such extension specified in Exhibit I,
which the Administrative Agent shall promptly furnish to each
Bank. Each Bank shall, not less than 30 days and not more than
60 days prior to the Termination Date then in effect, notify the
Borrowers and the Administrative Agent of its election to extend
or not extend the Termination Date as requested in such Extension
Request. Notwithstanding any provision of this Agreement to the
contrary, any notice by any Bank of its willingness to extend the
Termination Date shall be revocable by such Bank in its sole and
absolute discretion at any time prior to the date which is 30
days prior to the Termination Date then in effect. If the
Required Banks shall approve in writing the extension of the
Termination Date requested in such Extension Request, the
Termination Date shall automatically and without any further
action by any Person be extended for the period specified in such
Extension Request; provided that (i) each extension pursuant to
this subsection 2.16 shall be for a maximum of 364 days and (ii)
the Commitment of any Bank which does not consent in writing to
such extension not less than 30 days and not more than 60 days
prior to the Termination Date then in effect (an "Objecting
Bank") shall, unless earlier terminated in accordance with this
Agreement, expire on the Termination Date in effect on the date
of such Extension Request (such Termination Date, if any,
referred to as the "Commitment Expiration Date" with respect to
such Objecting Bank). If, not less than 30 days and not more
than 60 days prior to the Termination Date then in effect, the
Required Banks shall not approve in writing the extension of the
Termination Date requested in an Extension Request, the
Termination Date shall not be extended pursuant to such Extension
Request. The Administrative Agent shall promptly notify (y) the
Banks and the Borrowers of any extension of the Termination Date
pursuant to this subsection 2.16 and (z) the Borrowers and any
other Bank of any Bank which becomes an Objecting Bank.
(b) Committed Rate Loans owing to any Objecting Bank
on the Commitment Expiration Date with respect to such Bank shall
be repaid in full on or before the date which is two years after
such Commitment Expiration Date.
(c) The Borrowers shall have the right, so long as no
Event of Default has occurred and is then continuing, upon giving
notice to the Administrative Agent and the Objecting Banks in
accordance with subsection 2.6, to prepay in full the Committed
Rate Loans of the Objecting Banks, together with accrued interest
thereon, any amounts payable pursuant to subsections 2.13, 2.14,
2.15 and 2.17 and any accrued and unpaid facility fee or other
amounts payable to it hereunder and/or, upon giving not less than
three Working Days' notice to the Objecting Banks and the
Administrative Agent, to cancel the whole or part of the
Commitments of the Objecting Banks.
2.17 Foreign Taxes. (a) All payments made under this
Agreement shall be made without set-off or counterclaim and free
and clear of, and without reduction for or on account of, any
present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions, withholdings or restrictions
or conditions of any nature whatsoever, now or hereafter imposed,
levied, collected, withheld or assessed by any country (or by any
political subdivision or taxing authority thereof or therein)
from or through which any amount is paid under this Agreement
excluding, in the case of each Bank, (i) income and franchise
taxes (including, without limitation, branch taxes imposed by the
United States or similar taxes imposed by a political subdivision
or taxing authority thereof or therein but excluding, in the case
of any Bank not organized under the laws of the United States,
any taxes imposed by the United States by means of withholding at
the source), (ii) in the case of any Bank not organized under the
laws of the United States, any taxes imposed by the United States
by means of withholding at the source unless such Bank has
provided the Company, the Capital Corporation and the
Administrative Agent with the documents it is required to provide
to them under subsection 2.17(c) and (iii) taxes that would not
have been imposed on such Bank but for the existence of a
connection between such Bank and the jurisdiction imposing such
taxes (other than a connection arising principally by virtue of
this Agreement) (such non-excluded taxes being called "Foreign
Taxes"). If any Foreign Taxes are required to be withheld from
any amounts so payable to any Bank hereunder, the amounts so
payable to such Bank shall be increased to the extent necessary
to yield to such Bank (after payment of all Foreign Taxes)
interest or any such other amounts payable hereunder at the rates
or in the amounts specified in this Agreement. Whenever any
Foreign Taxes are payable by the Company or the Capital
Corporation, as the case may be, as promptly as possible
thereafter the Company or the Capital Corporation, as the case
may be, shall send to the Administrative Agent, for the account
of the affected Bank, a certified copy of the original official
receipt, if any, received by the Company or the Capital
Corporation, as the case may be, showing payment thereof. If the
Company or the Capital Corporation, as the case may be, fails to
pay any Foreign Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent, for the
account of the affected Banks, the required receipts or other
required documentary evidence, the Company or the Capital
Corporation, as the case may be, shall indemnify such Banks for
any incremental taxes, interest or penalties that may become
payable by such Banks as a result of any such failure.
(b) If a Borrower is required by this subsection 2.17
to make a payment to or in respect of any Bank, such Borrower
shall have the right, so long as no Event of Default has occurred
and is then continuing, upon giving notice to the Administrative
Agent and such Bank in accordance with subsection 2.6, to prepay
in full the Loans of such Bank, together with accrued interest
thereon, any amounts payable pursuant to subsections 2.13, 2.14,
2.15 and 2.17 and any accrued and unpaid facility fee or other
amounts payable to it hereunder and/or on giving not less than
three Business Days' notice to any such Bank and the
Administrative Agent, to cancel the whole or part of the
Commitment of such Bank.
(c) At least two Business Days prior to the first
Borrowing Date or, if such date does not occur within thirty days
after the Closing Date, by the end of such thirty-day period,
each Bank agrees that it will deliver to each Borrower and the
Administrative Agent (i) either (A) a statement that it is
incorporated under the laws of the United States or a state
thereof or (B) if it is not so incorporated, a letter in
duplicate in the form of Exhibit J or Exhibit K, as appropriate,
and two duly completed copies of United States Internal Revenue
Service Form 4224 or 1001 or successor applicable form, as the
case may be, certifying in each case that such Bank is entitled
to receive payment under this Agreement without deduction or
withholding of any United States Federal income taxes, and (ii)
Internal Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be, to establish an exemption from United
States backup withholding tax. Each Bank agrees (for the benefit
of the Administrative Agent and the Borrowers) to provide the
Administrative Agent and the Borrowers a new letter and Form 4224
or 1001 and Form W-8 or W-9, or successor applicable form or
other manner of certification, on or before the date that any
such letter or form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent
letter or form previously delivered by it, certifying in the case
of a Form 1001 or 4224 that such Bank is entitled to receive
payments under this Agreement without deduction or withholding of
any United States Federal income tax, and in the case of a Form
W-8 or W-9 establishing exemption from United States backup
withholding tax. The Administrative Agent shall not be
responsible for obtaining such documentation from any Bank other
than Chemical.
(d) The Company and the Capital Corporation shall not
be required to make payments on account of United States
withholding taxes to any Bank under the second sentence of
subsection 2.17(a) to the extent that such taxes could have been
avoided had such Bank complied with a reasonable request by the
Company, the Capital Corporation or the Administrative Agent for
the forms or documents referred to in subsection 2.17(c).
(e) To the extent that, as determined by any Bank in
its sole discretion and without any obligation to disclose its
tax records, Foreign Taxes have been irrevocably utilized by such
Bank (either as credits or deductions) to reduce its tax
liabilities and such utilization is consistent with its overall
tax policies, such Bank shall pay to the Company or the Capital
Corporation, as the case may be, an amount equal to such
reduction obtained to the extent of such increased amounts paid
by the Company or the Capital Corporation to such Bank as
aforesaid.
(f) The obligations of the parties under this
subsection 2.17 shall survive termination of this Agreement and
payment of the Loans.
2.18 Confirmations. The Administrative Agent shall,
within 15 days following the last day of each calendar quarter
(each such period being a "Report Period"), furnish to the
Borrowers a written account with respect to all amounts
outstanding under the Loan Accounts as at the last day of such
Report Period, including an accounting setting forth, for such
Report Period the amounts of principal, interest and other sums
paid and payable hereunder. The Borrowers shall, within 15 days
following receipt of such written account, notify the
Administrative Agent of any discrepancies between such written
account and the Borrowers' records or, if no such discrepancies
exist, furnish written confirmation to the Administrative Agent
of the accuracy of such written account. Upon any Bank's
request, the Administrative Agent shall furnish to each Bank a
copy of such written account together with the Borrowers'
response thereto.
2.19 Replacement of Cancelled Banks. The Borrowers
may designate one or more financial institutions to act as a Bank
hereunder in place of any Cancelled Bank, and upon the Borrowers,
each such financial institution and the Administrative Agent
executing a writing substantially in the form of Exhibit L, such
financial institution shall become and be a Bank hereunder with
all the rights and obligations it would have had if it had been
named on the signature pages hereof, and having for all such
financial institutions an aggregate Commitment no greater than
the whole, or such cancelled part, of the Commitment of the
Cancelled Bank in place of which such financial institutions were
designated; provided, however, that all rights and obligations of
such Cancelled Bank relating to the Loans made by such Cancelled
Bank that are outstanding on the date of such cancellation shall
be the rights and obligations of such Cancelled Bank and not of
any such financial institution; and provided, further, that no
such financial institution shall become and be a Tranche B Bank
hereunder in place of a Cancelled Bank which was a Tranche B Bank
unless concurrently therewith such financial institution or an
affiliate thereof becomes a party to the Linked Agreement in
accordance with its terms with a "Commitment" under the Linked
Agreement. The Administrative Agent shall execute any such
writing presented to it and shall notify the Banks of the
execution thereof, the name of the financial institution
executing such writing and the amount of its Commitment.
2.20 Certain Notices. Concurrently with the delivery
to the Administrative Agent or the Auction Agent hereunder by
either Borrower of a notice of borrowing, a notice of prepayment,
a notice of reduction or termination of Commitments or a notice
requesting extension of the Termination Date, such Borrower will
deliver a copy of such notice to the Canadian Administrative
Agent. The Administrative Agent will promptly notify the
Canadian Administrative Agent of (a) each borrowing of Committed
Rate Loans to be made from the Tranche B Banks, (b) the principal
amount of Committed Rate Loans to be made by each Tranche B Bank,
(c) the principal amount of each payment in respect of such
Loans, (d) any termination or reduction of the Commitments, (e)
any extension of the Termination Date and (f) any assignment of
all or a portion of any Tranche B Bank's Commitment.
Concurrently with the delivery to the Canadian Administrative
Agent by either "Borrower" under (and as defined in) the Linked
Agreement of a notice of borrowing, a notice of prepayment, a
notice of reduction or termination of commitments under the
Linked Agreement or a notice requesting extension of the
Termination Date (as defined in the Linked Agreement), the
Borrowers will cause such "Borrower" to deliver a copy of such
notice to the Administrative Agent. The Canadian Administrative
Agent will promptly notify the Administrative Agent of (i) each
borrowing of Loans under (and as defined in) the Linked
Agreement, (ii) the principal amount of such Loans, (iii) the
amount of each principal payment in respect of such Loans, (iv)
any termination or reduction of the commitments under the Linked
Agreement, (v) any assignment of all or a portion of any Linked
Lender's rights or obligations pursuant to Section 15.2 of the
Linked Agreement and (vi) the Equivalent Amount of 26% of any
stamping fee paid pursuant to subsection 6.1(b) of the Linked
Agreement, the period (including the applicable dates) in respect
of such stamping fee and the proportion of such stamping fee paid
to each Linked Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES
Each Borrower hereby represents and warrants to the
Administrative Agent and to each Bank that:
3.1 Financial Condition. The consolidated balance
sheet of such Borrower and its consolidated Subsidiaries as at
October 31, 1994 and the related consolidated statements of
income and of cash flow for the fiscal year then ended (including
the related schedules and notes) reported on by Deloitte &
Touche, copies of which have heretofore been furnished to each
Bank, fairly present the consolidated financial condition of such
Borrower and its consolidated Subsidiaries as at such date, and
the consolidated results of their operations and changes in
financial position for the fiscal year then ended. The condensed
unaudited consolidated balance sheet of such Borrower and its
consolidated Subsidiaries as at January 31, 1995 and the related
unaudited consolidated statement of income for the three-month
period ended on such date, certified by a Responsible Officer of
such Borrower, copies of which have heretofore been furnished to
each Bank, present fairly the consolidated financial condition of
such Borrower and its consolidated Subsidiaries as at such date,
and the consolidated results of their operations for the three-
month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in
accordance with generally accepted accounting principles in the
United States of America applied consistently throughout the
periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed
therein).
3.2 Corporate Existence. Such Borrower is duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has the corporate
power and authority to own its properties and to conduct the
business in which it is currently engaged.
3.3 Corporate Power; Authorization; Enforceable
Obligations. Such Borrower has the corporate power and authority
and the legal right to execute, deliver and perform this
Agreement and to borrow hereunder and has taken all necessary
corporate action to authorize its borrowings on the terms and
conditions of this Agreement and to authorize its execution,
delivery and performance of this Agreement. No consent or
authorization of, filing with, or other act by or in respect of,
any Governmental Authority, is required in connection with the
borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement other
than any such consents, authorizations, filings or acts as have
been obtained, taken or made and are in full force and effect.
This Agreement has been duly executed and delivered on behalf of
such Borrower, and this Agreement constitutes a legal, valid and
binding obligation of such Borrower enforceable against such
Borrower in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equity
principles (whether enforcement is sought by proceedings in
equity or at law).
3.4 No Legal Bar. The execution, delivery and
performance of this Agreement, the borrowings hereunder and the
use of the proceeds thereof, will not violate any Requirement of
Law or any Contractual Obligation of such Borrower, and will not
result in, or require, the creation or imposition of any lien on
any of its properties or revenues pursuant to any Requirement of
Law or Contractual Obligation.
3.5 No Material Litigation. No litigation,
investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of such
Borrower, threatened by or against such Borrower or any of its
Subsidiaries or against any of its or their respective properties
or revenues except actions, suits or proceedings which will not
materially adversely affect the ability of such Borrower to
perform its obligations hereunder. All of the defaults, if any,
of such Borrower or any of its Subsidiaries with respect to any
order of any Governmental Authority do not, and will not
collectively, have a material adverse effect on the business,
operations, property or financial or other condition of such
Borrower and its Subsidiaries taken as a whole.
3.6 Taxes. Each of such Borrower and its Subsidiaries
has filed or caused to be filed all tax returns which, to the
knowledge of such Borrower, are required to be filed (except
where the failure to file such tax returns would not have a
material adverse effect on the business, operations, property or
financial or other condition of such Borrower and its
Subsidiaries taken as a whole), and has paid all taxes shown to
be due and payable on said returns or on any assessments made
against it or any of its property and all other taxes, fees or
other charges imposed on it or any of its property by any
Governmental Authority (other than assessments, taxes, fees and
other charges the amount or validity of which is currently being
contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been
provided on the books of such Borrower or its Subsidiaries, as
the case may be).
3.7 Margin Regulations. No part of the proceeds of
any Loan hereunder will be used for any purpose which violates
the provisions of Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in
effect.
3.8 Pari Passu Ranking. The indebtedness of such
Borrower under its Loans and all other amounts due hereunder
ranks at least pari passu with all present and future unsecured
senior indebtedness of such Borrower (other than indebtedness
preferred by law).
3.9 No Defaults. No "Event of Default" or similar
event, or event which, with the lapse of time or the giving of
notice, or both, would constitute such an Event of Default or
similar event, has occurred and is continuing hereunder or under
any material bond, debenture, note or other evidence of
indebtedness, or in any material mortgage, deed of trust,
indenture or loan agreement, of such Borrower.
3.10 Use of Proceeds. The proceeds of the Loans will
be used by such Borrower for its general corporate purposes,
which shall include, but shall not be limited to, any purchase or
other acquisition of all or a portion of the debt or stock or
other evidences of ownership of such Borrower or the assets or
stock or other evidences of ownership of any other Person or
Persons.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loan. The obligation of
each Bank to make its initial Loan hereunder is subject to the
satisfaction of the following conditions precedent:
(a) Counterparts. The Administrative Agent shall have
received counterparts hereof, executed by all of the parties
hereto.
(b) Resolutions. The Administrative Agent shall have
received, with a counterpart for each Bank, resolutions,
certified by the Secretary or an Assistant Secretary of each
Borrower, in form and substance satisfactory to the
Administrative Agent, adopted by the Board of Directors of
such Borrower authorizing the execution of this Agreement
and the performance of its obligations hereunder and any
borrowings hereunder from time to time.
(c) Legal Opinions. The Administrative Agent shall
have received, with a counterpart for each Bank, an opinion
of Frank S. Cottrell, Esq., or his successor, as general
counsel, or an associate general counsel, for each of the
Borrowers, dated the Closing Date and addressed to the
Agents and the Banks, substantially in the form of Exhibit
G, and an opinion of Shearman & Sterling, special counsel to
the Borrowers, dated the Closing Date and addressed to the
Agents and the Banks, substantially in the form of Exhibit
H. Such opinions shall also cover such other matters
incident to the transactions contemplated by this Agreement
as the Administrative Agent shall reasonably require.
(d) Incumbency Certificate. The Administrative Agent
shall have received, with a counterpart for each Bank, a
certificate of the Secretary or an Assistant Secretary of
each Borrower certifying the names and true signatures of
the officers of such Borrower authorized to sign this
Agreement, together with evidence of the incumbency of such
Secretary or Assistant Secretary.
(e) Termination of Existing Agreements. The
Administrative Agent shall have received evidence
satisfactory to it that the commitment of each financial
institution to make loans to the Borrowers pursuant to (i)
the $1,675,000,000 Credit Agreement, dated as of December
15, 1993, among the Borrowers, the lenders parties thereto,
Chemical Bank, as Administrative Agent, Deutsche Bank AG
Chicago Branch, as Auction Agent, and the Managing Agents
and the Co-Agents named therein, (ii) the $825,000,000
Credit Agreement, dated as of December 15, 1993, among the
Borrowers, the lenders parties thereto, Chemical Bank, as
Administrative Agent, Deutsche Bank AG Chicago Branch, as
Auction Agent, and the Managing Agents and the Co-Agents
named therein, (iii) the Credit Agreement, dated as of March
26, 1993, among the Borrowers, the lenders parties thereto
and Toronto Dominion (Texas), Inc., as Agent, and (iv) the
Loan Agreement, dated as of March 26, 1993, among John Deere
Limited, John Deere Finance Limited, the lenders parties
thereto and The Toronto-Dominion Bank, as Agent, shall have
been terminated in full and the outstanding principal amount
of the indebtedness thereunder and all other amounts owing
to any bank thereunder shall have been repaid or paid by the
Borrowers, John Deere Limited and John Deere Finance
Limited.
(f) Fees. The Administrative Agent shall have
received, for the accounts of the Banks and the
Administrative Agent, and each Agent shall have received,
for the account of such Agent, all accrued fees and expenses
owing hereunder or in connection herewith to the Banks and
the Agents to be received on the Closing Date.
(g) Linked Agreement. The Linked Agreement shall have
been executed and delivered by the parties thereto and all
conditions to the effectiveness of the Linked Agreement
shall have been satisfied.
(h) Additional Matters. All other documents which the
Administrative Agent may reasonably request in connection
with the transactions contemplated by this Agreement shall
be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel.
4.2 Conditions to All Loans. The obligation of each
Bank to make any Loan (which shall include the initial Loan to be
made by it hereunder) to be made by it hereunder is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. The
representations and warranties made by the Borrowers herein
or which are contained in any certificate, document or
financial or other statement furnished by either Borrower at
any time hereunder or in connection herewith (other than any
representations and warranties which by the terms of such
certificate, document or financial or other statement do not
survive the execution of this Agreement) shall be correct on
and as of the date of such Loan as if made on and as of such
date except as such representations and warranties expressly
relate to an earlier date.
(b) No Default or Event of Default. No Default or
Event of Default shall have occurred and be continuing on
such date or after giving effect to the Loans to be made on
such date and the application of the proceeds thereof.
(c) Additional Conditions to Bid Loans. If such Loan
is made pursuant to subsection 2.2, all conditions set forth
in subsection 2.2(f) shall have been satisfied.
Each acceptance by either Borrower of a Loan shall
constitute a representation and warranty by the relevant Borrower
as of the date of such Loan that the applicable conditions in
clauses (a), (b) and (c) of this subsection 4.2 have been
satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
Each of the Borrowers (except as otherwise specified)
hereby agrees that, so long as there is any obligation by any
Bank to make Loans to it hereunder, any Loan of such Borrower
remains outstanding and unpaid or any other amount is owing by
such Borrower to any Bank or any Agent hereunder (unless the
Required Banks shall otherwise consent in writing):
5.1 Financial Statements. Such Borrower shall furnish
to each Bank:
(a) as soon as available, but in any event within 120
days after the end of each fiscal year of such Borrower, a
copy of the consolidated balance sheet of such Borrower and
its consolidated Subsidiaries as at the end of such year and
the related consolidated statements of income and of cash
flow for such year, reported on by Deloitte & Touche or
other independent certified public accountants of nationally
recognized standing; and
(b) as soon as available, but in any event not later
than 60 days after the end of each of the first three
quarterly periods of each fiscal year of such Borrower, the
condensed unaudited consolidated balance sheet of such
Borrower and its consolidated Subsidiaries as at the end of
each such quarter and the related unaudited consolidated
statement of income of such Borrower and its consolidated
Subsidiaries for such quarterly period and the portion of
the fiscal year through such date, certified by a
Responsible Officer of such Borrower (subject to normal
year-end audit adjustments);
all such financial statements to present fairly the consolidated
financial condition and results of operations of such Borrower
and its consolidated Subsidiaries and to be prepared in
accordance with generally accepted accounting principles in the
United States of America applied consistently throughout the
periods reflected therein (except as approved by such accountants
or officer, as the case may be, and disclosed therein).
5.2 Certificates; Other Information. Such Borrower
shall furnish to each Bank:
(a) concurrently with the delivery of the financial
statements referred to in subsections 5.1(a) and (b) above,
a certificate of a Responsible Officer of such Borrower
stating that (i) he has no knowledge of the occurrence and
continuance of any Default or Event of Default except as
specified in such certificate, in which case such
certificate shall contain a description thereof and a
statement of the steps, if any, which such Borrower is
taking, or proposes to take, to cure the same and (ii) the
financial statements delivered pursuant to subsection 5.1
would not be different if prepared in accordance with GAAP
except as specified in such certificate; and
(b) promptly, such additional financial and other
information as any Bank may from time to time reasonably
request.
5.3 Company Indenture Documents. The Company shall,
contemporaneously with the delivery thereof to the Trustee,
furnish to each Bank a copy of any information, document or
report required to be filed with the Trustee pursuant to Section
7.03 of the indenture dated July 1, 1994 between the Company and
The Chase Manhattan Bank (National Association), as Trustee.
5.4 Capital Corporation Indenture Documents. The
Capital Corporation shall, contemporaneously with the delivery
thereof to the Trustee, furnish to each Bank a copy of any
information, document or report required to be filed with the
Trustee pursuant to Section 7.03 of the indenture dated February
1, 1991, between the Capital Corporation and The Bank of New
York, as Trustee.
5.5 Notice of Default. Such Borrower shall promptly
give notice to the Administrative Agent of the occurrence of any
Default or Event of Default, which notice shall be given in
writing as soon as possible, and in any event within 10 days
after a Responsible Officer of such Borrower obtains knowledge of
such occurrence, with a description of the steps being taken to
remedy the same (provided that such Borrower shall not be
obligated to give notice of any Default or Event of Default which
is remedied prior to or within 10 days after a Responsible
Officer of such Borrower first acquires such knowledge). Upon
receipt of any such notice, the Administrative Agent shall
promptly notify each Bank thereof.
5.6 Ownership of Capital Corporation Stock. The
Company shall continue to own, directly or through one or more
wholly-owned Subsidiaries, free and clear of any lien or other
encumbrance, 51% of the voting stock of the Capital Corporation;
provided, however, that the Capital Corporation may merge or
consolidate with, or sell or convey substantially all of its
assets to, the Company as provided in subsection 7.4.
5.7 Employee Benefit Plans. The Company shall
maintain, and cause each of its Subsidiaries to maintain, each
Plan as to which it may have liability, in compliance with all
applicable requirements of law and regulations.
SECTION 6. NEGATIVE COVENANTS OF THE COMPANY
The Company hereby agrees that, so long as there is any
obligation by any Bank to make Loans hereunder, any Loan remains
outstanding and unpaid or any other amount is owing to any Agent
or any Bank hereunder, it shall not, nor in the case of
subsections 6.2 and 6.3 shall it permit any Restricted Subsidiary
to (unless the Required Banks shall otherwise consent in
writing):
6.1 Company May Consolidate, etc., Only on Certain
Terms. Consolidate with or merge with or into any other
corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(a) either the Company shall be the continuing
corporation, or the corporation (if other than the Company)
formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company
substantially as an entirety shall expressly assume, by an
assumption agreement, executed and delivered to the
Administrative Agent, in form satisfactory to the Required
Banks, the due and punctual payment of the principal of and
interest on the Loans to the Company and the performance of
every covenant of this Agreement on the part of the Company
to be performed or observed;
(b) immediately after giving effect to such
transaction, no Default or Event of Default, shall have
happened and be continuing;
(c) if as a result thereof any property or assets of
the Company or a Restricted Subsidiary would become subject
to any Mortgage not permitted by (i) through (xii) of
subsection 6.2(a) or subsection 6.2(b), compliance shall be
effected with the first clause of subsection 6.2(a); and
(d) the Company and the successor Person have
delivered to the Administrative Agent an officers'
certificate signed by two Responsible Officers of the
Company stating that such consolidation, merger, conveyance
or transfer and such assumption agreement comply with this
subsection 6.1 and that all conditions precedent herein
provided for relating to such transaction have been complied
with.
6.2 Limitation on Liens. (a) Issue, incur, assume or
guarantee any debt (hereinafter in this subsection referred to as
"Debt") secured by any mortgage, security interest, pledge, lien
or other encumbrance (hereinafter called "Mortgage" or
"Mortgages") upon any Important Property, or upon any shares of
stock or indebtedness issued or incurred by any Restricted
Subsidiary (whether such Important Property, shares of stock or
indebtedness is now owned or hereafter acquired) without in any
such case effectively providing, concurrently with the issuance,
incurrence, assumption or guaranty of any such Debt, that the
Loans and all other amounts hereunder (together with, if the
Company shall so determine, any other indebtedness of or guaranty
by the Company or such Restricted Subsidiary ranking equally with
the Loans then existing or thereafter created) shall be secured
equally and ratably with or prior to such Debt; provided,
however, that the foregoing restrictions shall not apply to:
(i) Mortgages on any property acquired, constructed or
improved by the Company or any Restricted Subsidiary after
the date of this Agreement which are created or assumed
contemporaneously with, or within 120 days after, such
acquisition, construction or improvement to secure or
provide for the payment of all or any part of the purchase
price of such property or the cost of such construction or
improvement incurred after the date of this Agreement, or
(in addition to Mortgages contemplated by clauses (ii),
(iii) and (iv) below) Mortgages on any property existing at
the time of acquisition thereof; provided that such
Mortgages shall not apply to any Important Property
theretofore owned by the Company or any Restricted
Subsidiary other than, in the case of any such construction
or improvement, any theretofore unimproved real property on
which the property so constructed, or the improvement, is
located;
(ii) Mortgages on any property, shares of stock,
or
indebtedness existing at the time of acquisition thereof
from a corporation which is consolidated with or merged
into, or substantially all of the assets of which are
acquired by, the Company or a Restricted Subsidiary;
(iii) Mortgages on property of a corporation
existing at
the time such corporation becomes a Restricted Subsidiary;
(iv) Mortgages to secure Debt of a Restricted
Subsidiary to the Company or to another Restricted
Subsidiary;
(v) Mortgages in favor of the United States of America
or any State thereof, or any department, agency or
instrumentality or political subdivision of the United
States of America or any State thereof, to secure partial,
progress, advance or other payments pursuant to any contract
or statute or to secure any indebtedness incurred for the
purpose of financing all or any part of the purchase price
or the cost of constructing or improving the property
subject to such Mortgages and Mortgages given to secure
indebtedness incurred in connection with the financing of
construction of pollution control facilities, the interest
on which indebtedness is exempt from income taxes under the
Code;
(vi) any deposit or pledge of assets (1) with any
surety company or clerk of any court, or in escrow, as
collateral in connection with, or in lieu of, any bond on
appeal from any judgment or decree against the Company or a
Restricted Subsidiary, or in connection with other
proceedings or actions at law or in equity by or against the
Company or a Restricted Subsidiary, or (2) as security for
the performance of any contract or undertaking not directly
related to the borrowing of money or the securing of
indebtedness, if made in the ordinary course of business, or
(3) with any governmental agency, which deposit or pledge is
required or permitted to qualify the Company or a Restricted
Subsidiary to conduct business, to maintain self-insurance,
or to obtain the benefits of any law pertaining to worker's
compensation, unemployment insurance, old age pensions,
social security, or similar matters, or (4) made in the
ordinary course of business to obtain the release of
mechanics', workmen's, repairmen's, warehousemen's or
similar liens, or the release of property in the possession
of a common carrier;
(vii) Mortgages existing on property acquired by
the
Company or a Restricted Subsidiary through the exercise of
rights arising out of defaults on receivables acquired in
the ordinary course of business;
(viii) judgment liens, so long as the finality of
such
judgment is being contested in good faith and execution
thereon is stayed;
(ix) Mortgages for the sole purpose of extending,
renewing or replacing in whole or in part Debt secured by
any Mortgage referred to in the foregoing clauses (i) to
(viii), inclusive, or in this clause (ix), provided,
however, that the principal amount of Debt secured thereby
shall not exceed the principal amount of Debt so secured at
the time of such extension, renewal or replacement, and that
such extension, renewal or replacement shall be limited to
all or a part of the property which secured the Mortgage so
extended, renewed or replaced (plus improvements on such
property);
(x) liens for taxes or assessments or governmental
charges or levies not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being
contested in good faith by appropriate proceedings;
landlord's liens on property held under lease; and any other
liens of a nature similar to those hereinabove described in
this clause (x) which do not, in the opinion of the Company,
materially impair the use of such property in the operation
of the business of the Company or a Restricted Subsidiary or
the value of such property for the purposes of such
business;
(xi) Mortgages on Margin Stock owned by the
Company and
its Restricted Subsidiaries to the extent such Margin Stock
so Mortgaged exceeds 25% of the fair market value of the sum
of the Important Property of the Company and the Restricted
Subsidiaries plus the shares of stock (including Margin
Stock) and indebtedness issued or incurred by the Restricted
Subsidiaries; and
(xii) Mortgages on any Important Property of, or
any
shares of stock or indebtedness issued or incurred by, any
Restricted Subsidiary organized under the laws of Canada.
(b) (i) The provisions of subsection 6.2(a) shall not
apply to the issuance, incurrence, assumption or guarantee by the
Company or any Restricted Subsidiary of Debt secured by a
Mortgage which would otherwise be subject to the foregoing
restrictions up to an aggregate amount which, together with the
sum of (A) all other Debt issued or incurred by the Company and
its Restricted Subsidiaries secured by Mortgages (other than
Mortgages permitted by subsection 6.2(a)) which would otherwise
be subject to the foregoing restrictions and (B) the Attributable
Debt in respect of Sale and Lease-back Transactions in existence
at such time (other than Sale and Lease-back Transactions which,
if the Attributable Debt in respect of such Sale and Lease-back
had been a Mortgage, would have been permitted by clause (i) of
subsection 6.2(a) and other than Sale and Lease-back Transactions
the proceeds of which have been applied in accordance with
subsection 6.3(b)) does not at the time exceed 5% of Consolidated
Net Worth, as shown on the audited consolidated balance sheet
contained in the latest annual report to stockholders of the
Company.
(ii) For purposes of subsection 6.2(b)(i), the
term
"Consolidated Net Worth" shall mean the aggregate of capital and
surplus of the Company and its consolidated Subsidiaries, less
minority interests in Subsidiaries, determined in accordance with
GAAP; and the term "Attributable Debt" shall mean, as of any
particular time, the present value, discounted at a rate per
annum equal to the interest rate set forth in the Company's 8-
1/2% Debentures Due 2022, compounded semi-annually, of the
obligation of a lessee for rental payments during the remaining
term of any lease (including any period for which such lease has
been extended or may, at the option of the lessor, be extended);
the net amount of rent required to be paid for any such period
shall be the total amount of the rent payable by the lessee with
respect to such period, but may exclude amounts required to be
paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges; and, in the case of
any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may
be so terminated.
(c) If, upon any consolidation or merger of any
Restricted Subsidiary with or into any other corporation, or upon
any consolidation or merger of any other corporation with or into
the Company or any Restricted Subsidiary or upon any sale or
conveyance of the property of any Restricted Subsidiary as an
entirety or substantially as an entirety to any other Person, or
upon any acquisition by the Company or any Restricted Subsidiary
by purchase or otherwise of all or any part of the property of
any other Person, any Important Property theretofore owned by the
Company or such Restricted Subsidiary would thereupon become
subject to any Mortgage not permitted by the terms of subsection
(a) or (b) of this subsection 6.2, the Company, prior to such
consolidation, merger, sale or conveyance, or acquisition, will,
or will cause such Restricted Subsidiary to, secure payment of
the principal of and interest on the Loans (equally and ratably
with or prior to any other indebtedness of the Company or such
Subsidiary then entitled thereto) by a direct lien on all such
property prior to all liens other than any liens theretofore
existing thereon by an assumption agreement or otherwise.
(d) If at any time the Company or any Restricted
Subsidiary shall issue, incur, assume or guarantee any Debt
secured by any Mortgage not permitted by this subsection 6.2, to
which the covenant in subsection 6.2(a) is applicable, the
Company will promptly deliver to the Administrative Agent (with
counterparts for each Bank):
(i) an officers' certificate signed by two Responsible
Officers of the Company stating that the covenant of the
Company contained in paragraph (a) or (c) of this subsection
6.2 has been complied with; and
(ii) an opinion of counsel satisfactory to the
Administrative Agent to the effect that such covenant has
been complied with, and that any instruments executed by the
Company in the performance of such covenant comply with the
requirements of such covenant.
6.3 Limitations on Sale and Lease-back Transactions.
Enter into any arrangement with any Person providing for the
leasing to the Company or any Restricted Subsidiary of any
Important Property owned or hereafter acquired by the Company or
such Restricted Subsidiary (except for temporary leases for a
term, including any renewal thereof, of not more than three years
and except for leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries), which Important
Property has been or is to be sold or transferred by the Company
or such Restricted Subsidiary to such Person (herein referred to
as a "Sale and Lease-back Transaction") unless the net proceeds
of such sale are at least equal to the fair value (as determined
by the Board of Directors of the Company or such Restricted
Subsidiary, as applicable) of such property and either (a) the
Company or such Restricted Subsidiary would be entitled, pursuant
to the provisions of (1) subsection 6.2(a)(i) or (2) subsection
6.2(b), to incur Debt secured by a Mortgage on the Important
Property to be leased without equally and ratably securing the
Loans, or (b) the Company shall, and in any such case the Company
covenants that it will, within 120 days of the effective date of
any such arrangement, apply an amount equal to the fair value (as
so determined) of such property to the reduction of the
Commitments (to be accompanied by prepayment of the Loans in
accordance with subsection 2.6 to the extent that the principal
amount thereof outstanding prior to such prepayment would exceed
the Commitments as so reduced) or to the payment or other
retirement of funded debt for money borrowed, incurred or assumed
by the Company which ranks senior to or pari passu with the Loans
or of funded debt for money borrowed, incurred or assumed by any
Restricted Subsidiary (other than, in either case, funded debt
owned by the Company or any Restricted Subsidiary). For this
purpose, funded debt means any Debt which by its terms matures at
or is extendable or renewable at the sole option of the obligor
without requiring the consent of the obligee to a date more than
twelve months after the date of the creation of such Debt.
6.4 Consolidated Tangible Net Worth. Permit
Consolidated Tangible Net Worth as at the end of any fiscal
quarter of the Company and its consolidated Subsidiaries
(including the last quarter of any fiscal year of the Company and
its consolidated Subsidiaries) to be less than $500,000,000.
SECTION 7. NEGATIVE COVENANTS OF THE CAPITAL
CORPORATION
The Capital Corporation hereby agrees that, so long as
there is any obligation by any Bank to make Loans to the Capital
Corporation hereunder, any Loan of the Capital Corporation
remains outstanding and unpaid or any other amount is owing by
the Capital Corporation to any Bank or any Agent hereunder, the
Capital Corporation shall not, nor in the case of the agreements
set forth in subsection 7.3 shall it permit any of its
Subsidiaries to, directly or indirectly (unless the Required
Banks shall otherwise consent in writing):
7.1 Fixed Charges Ratio. Permit the ratio of Net
Earnings Available for Fixed Charges to Fixed Charges for any
fiscal quarter of the Capital Corporation and its consolidated
Subsidiaries (including the last quarter of any fiscal year of
the Capital Corporation and its consolidated Subsidiaries) to be
less than 1.05 to 1.
7.2 Consolidated Senior Debt to Consolidated
Capital Base. Permit the ratio of Consolidated Senior Debt to
Consolidated Capital Base as at the end of any fiscal quarter of
the Capital Corporation and its consolidated Subsidiaries
(including the end of any fiscal year of the Capital Corporation
and its consolidated Subsidiaries) to be more than 8 to 1.
7.3 Limitation on Liens. Issue, incur, assume or
guarantee any Debt secured by any Mortgage upon any of its
property or assets, or any of the property or assets of any of
its Subsidiaries (whether any such property or assets is now
owned or hereafter acquired) without in any such case effectively
providing, concurrently with the issuance, incurrence, assumption
or guaranty of any such Debt, that the Loans and all other
amounts hereunder (together with, if the Capital Corporation
shall so determine, any other indebtedness of or guaranty by such
Borrower or such Subsidiary ranking equally with the Loans then
existing or thereafter created) shall be secured equally and
ratably with or prior to such Debt; provided, however, that the
foregoing restrictions shall not apply to:
(a) Mortgages on fixed assets or other physical
properties hereafter acquired to secure all or part of the
purchase price thereof or the acquiring hereafter of such assets
or properties subject to any existing lien or charge securing
indebtedness (whether or not assumed);
(b) easements, liens, franchises or other minor
encumbrances on or over any real property which do not materially
detract from the value of such property or its use in the
business of the Capital Corporation or a Subsidiary of the
Capital Corporation;
(c) any deposit or pledge of assets (i) with any
surety company or clerk of any court, or in escrow, as collateral
in connection with or in lieu of, any bond on appeal from any
judgment or decree against the Capital Corporation or a
Subsidiary of the Capital Corporation, or in connection with
other proceedings or actions at law or in equity by or against
the Capital Corporation or a Subsidiary of the Capital
Corporation or (ii) as security for the performance of any
contract or undertaking not directly or indirectly related to the
borrowing of money or the securing of indebtedness, if made in
the ordinary course of business, or (iii) with any governmental
agency, which deposit or pledge is required or permitted to
qualify the Capital Corporation or a Subsidiary of the Capital
Corporation to conduct business, to maintain self-insurance, or
to obtain the benefits of any law pertaining to workmen's
compensation, unemployment insurance, old age pensions, social
security, or similar matters, or (iv) made in the ordinary course
of business to obtain the release of mechanics', workmen's,
repairmen's, warehousemen's or similar liens, or the release of
property in the possession of a common carrier;
(d) Mortgages by a Subsidiary as security for
indebtedness owed to the Capital Corporation;
(e) liens for taxes and governmental charges not yet
due or contested by appropriate proceedings in good faith;
(f) Mortgages existing on property acquired by the
Capital Corporation or a Subsidiary of the Capital Corporation
through the exercise of rights arising out of defaults on
receivables acquired in the ordinary course of business;
(g) judgment liens, so long as the finality of such
judgment is being contested in good faith and execution thereon
is stayed;
(h) any Mortgage (other than directly or indirectly to
secure borrowed money) if, after giving effect thereto, the
aggregate principal sums secured by pledges or liens otherwise
within the restrictions in clauses (a) through (h) of this
subsection 7.3 do not exceed $500,000;
(i) any transaction characterized as a sale of
receivables (retail or wholesale) but reflected as secured
indebtedness on a balance sheet in conformity with generally
accepted accounting principles in the United States of America;
and
(j) Mortgages on Margin Stock owned by the Capital
Corporation and its Subsidiaries to the extent such Margin Stock
exceeds 25% of the fair market value of property and assets of
the Capital Corporation and its Subsidiaries (including Margin
Stock).
7.4 Consolidation; Merger. Merge or consolidate with,
or sell or convey (other than a conveyance by way of lease) all
or substantially all of its assets to, any other corporation,
unless (a) the Capital Corporation shall be the surviving
corporation in the case of a merger or the surviving, resulting
or transferee corporation (the "successor corporation") shall be
a corporation organized under the laws of the United States or
any State thereof or the District of Columbia and shall expressly
assume the due and punctual performance of all of the agreements,
covenants and obligations of the Capital Corporation under this
Agreement by supplemental agreement satisfactory to the
Administrative Agent and executed and delivered to the
Administrative Agent by the successor corporation and (b) the
Capital Corporation or such successor corporation, as the case
may be, shall not, immediately after such merger, consolidation,
sale or conveyance, be in default in the performance of any such
agreements, covenants or obligations; provided, however, that the
Capital Corporation may merge or consolidate with, or sell or
convey substantially all of its assets to, the Company, if (i)
the Company is the successor corporation (as defined above) and
(ii) subclause (b) above is complied with. Upon any such merger,
consolidation, sale or conveyance, the successor corporation
shall succeed to and be substituted for, and may exercise every
right and power of and shall be subject to all the obligations
of, the Capital Corporation under this Agreement, with the same
effect as if the successor corporation had been named as the
Capital Corporation herein and therein.
SECTION 8. EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any
of the following events:
(a) Either Borrower shall fail to pay any principal of
any Loan when due in accordance with the terms hereof or to
pay any interest on any Loan, in each case within two
Business Days after any such amount becomes due in
accordance with the terms hereof or shall fail to pay any
other amount payable hereunder within five Business Days
after any such other amount becomes due in accordance with
the terms thereof or hereof; or
(b) Any representation or warranty made or pursuant to
subsection 4.2 deemed made by either Borrower herein or
which is contained in any material certificate, material
document or material financial statement or other material
statement furnished at any time under or in connection with
this Agreement shall prove to have been incorrect in any
material respect on or as of the date made or deemed made;
or
(c) The Company shall default in the observance or
performance of any agreement contained in subsection 5.6,
6.1 or 6.4, or the Capital Corporation shall default in the
observance or performance of any agreement contained in
subsections 7.1, 7.2 or 7.4; or
(d) Either Borrower shall default in the observance or
performance of any agreement contained in this Agreement
(other than those agreements referred to above in this
Section 8), and such default shall continue unremedied for a
period of 30 days after written notice thereof shall have
been given to such Borrower by the Administrative Agent or
any of the Banks through the Administrative Agent; or
(e) (i) Either Borrower or any of its Significant
Subsidiaries shall default in any payment of principal of or
interest on any indebtedness for borrowed money (other than
the Loans) in a principal amount in excess of $30,000,000 in
the aggregate, or any interest or premium thereon, when due
(whether at scheduled maturity or by required prepayment,
acceleration, demand or otherwise) and such failure shall
continue beyond the period of grace, if any, provided in the
instrument or agreement under which such indebtedness was
created; or (ii) any other default (other than any default
arising solely out of either Borrower's, or any of its
Significant Subsidiaries', violation of any arrangement with
any Bank, or any affiliate of any Bank, in any way
restricting such Borrower's, or such Significant
Subsidiary's, right or ability to sell, pledge or otherwise
dispose of Margin Stock other than Restricted Margin Stock),
or any other event that with notice or the lapse of time, or
both, would constitute such a default, under any agreement
or instrument relating to any such indebtedness for borrowed
money (other than the Loans), shall occur and shall continue
after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such default or
event is to accelerate the maturity of such indebtedness; or
(iii) any such indebtedness shall, by reason of default, be
declared to be due and payable, or required to be prepaid,
prior to the stated maturity thereof (unless such
indebtedness is declared due and payable, or required to be
prepaid, solely by reason of either Borrower's, or any of
its Significant Subsidiaries', violation of any arrangement
with any Bank, or any affiliate of any Bank, in any way
restricting such Borrower's, or such Significant
Subsidiary's, right or ability to sell, pledge or otherwise
dispose of Margin Stock other than Restricted Margin Stock);
or
(f) (i) Either Borrower or any of its Significant
Subsidiaries shall commence any case, proceeding or other
action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for
it or for all or any substantial part of its assets, or such
Borrower or any of its Significant Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii)
there shall be commenced against either Borrower or any of
its Significant Subsidiaries any case, proceeding or other
action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 90 days; or
(g) Any action is undertaken to terminate any Plan as
to which either Borrower, or any Subsidiary of either
Borrower, may have liability, or any such Plan is terminated
or such Borrower or Subsidiary withdraws from such Plan, or
any Reportable Event as to any such Plan shall occur, and
there shall exist a deficiency in the assets available to
satisfy the benefits guaranteeable under ERISA with respect
to such Plan, in the aggregate for all such Plans with
respect to which any of the foregoing shall have occurred in
the immediately preceding 12 consecutive months, of more
than 25% of the Consolidated Tangible Net Worth of such
Borrower; or
(h) Any Person shall own beneficially, directly or
indirectly, 30% or more of the common stock of the Company;
or any Person shall have the power, direct or indirect, to
vote securities having 30% or more of the ordinary voting
power for the election of directors of the Company or shall
own beneficially, directly or indirectly, securities having
such power, provided that there shall not be included among
the securities as to which any such Person has such power to
vote or which such Person so owns securities owned by such
Person as nominee for the direct or indirect beneficial
owner thereof or securities as to which such power to vote
arises by virtue of proxies solicited by the management of
the Company; or
(i) In circumstances not covered by paragraph (e) of
this Section 8, amounts outstanding under the Linked
Agreement shall have been declared or become due and payable
by reason of the occurrence of an "Event of Default" under
the Linked Agreement, and such amounts shall not have been
repaid in full within 90 days after the date on which such
amounts were so declared or become due and payable;
then, and in any such event, (a) if such event is an Event of
Default specified in paragraph (f) above, automatically the
Commitments shall immediately terminate and the Loans hereunder
(with accrued interest thereon) and all other amounts owing under
this Agreement and the Loans shall immediately become due and
payable, and (b) if such event is any Event of Default specified
in paragraph (a) or (e), then with the consent of the Majority
Banks, the Administrative Agent may, or upon the request of the
Majority Banks, the Administrative Agent shall, or if such Event
is an Event of Default specified in paragraph (b), (c), (d), (g),
(h) or (i), then with the consent of the Required Banks, the
Administrative Agent may, or upon the request of the Required
Banks, the Administrative Agent shall, take either or both of the
following actions: (i) by notice to the Borrowers, declare the
Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (ii) by notice of default to the
Borrowers, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement to be
due and payable forthwith, whereupon the same shall immediately
become due and payable. Except as expressly provided above in
this Section, presentment, demand, protest and all other notices
of any kind are hereby expressly waived with respect to this
Agreement.
SECTION 9. THE AGENTS
9.1 Appointment. (a) Each Bank hereby irrevocably
designates and appoints Chemical as the Administrative Agent of
such Bank under this Agreement, and each Bank hereby irrevocably
authorizes Chemical as the Administrative Agent for such Bank, to
take such action on its behalf under the provisions of this
Agreement and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent by the terms
of this Agreement, together with such other powers as are
reasonably incidental thereto.
(b) Each Bank hereby irrevocably designates and
appoints Deutsche Bank AG as the Auction Agent of such Bank under
this Agreement, and each Bank hereby irrevocably authorizes
Deutsche Bank AG, as the Auction Agent for such Bank, to take
such action on its behalf under the provisions of this Agreement
and to exercise such powers and perform such duties as are
expressly delegated to the Auction Agent by the terms of this
Agreement, together with such other powers as are reasonably
incidental thereto.
(c) Notwithstanding anything to the contrary contained
in this Agreement, the parties hereto hereby agree that neither
the Syndication Agent, the Documentation Agent, any Managing
Agent nor any Co-Agent shall have any rights, duties or
responsibilities in such respective capacity nor shall any such
Person have the authority to take any action hereunder in its
capacity as such.
(d) Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or
responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or otherwise exist against any
Agent.
9.2 Delegation of Duties. Each Agent may execute any
of its duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Each Agent
shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any
of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable to any Bank
for any action lawfully taken or omitted to be taken by it or
such Person under or in connection with this Agreement (except
for its or such Person's own gross negligence or wilful
misconduct), or (ii) responsible in any manner to any of the
Banks for any recitals, statements, representations or warranties
made by the Borrowers or any officer thereof contained in this
Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by any Agent
under or in connection with, this Agreement or for the value,
validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or for any failure of the Borrowers
to perform their obligations hereunder. No Agent shall be under
any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in,
or conditions of, this Agreement, or to inspect the properties,
books or records of the Borrowers.
9.4 Reliance by Agents. Each Agent shall be entitled
to rely, and shall be fully protected in relying, upon any Loan,
writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, facsimile, telex or teletype
message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation,
counsel to the Borrowers), independent accountants and other
experts selected by such Agent. Each Agent may deem and treat
the payee of any Loan as the owner thereof for all purposes
except as provided in subsections 10.5(c) and 10.5(d). Each
Agent shall be fully justified in failing or refusing to take any
discretionary action under this Agreement unless it shall first
receive such advice or concurrence of the Required Banks as it
deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting,
under this Agreement in accordance with a request of the Required
Banks, or all of the Banks (if the consent of all of the Banks is
required), and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Banks.
9.5 Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default unless the Administrative Agent
has received notice from a Bank or either Borrower referring to
this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event
that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Banks. The
Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by
the Majority Banks, the Required Banks, or all Banks, as
applicable; provided that, unless and until the Administrative
Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests
of the Banks.
9.6 Non-Reliance on Agents and Other Banks. Each Bank
expressly acknowledges that neither any Agent nor any of its
respective officers, directors, employees, agents, attorneys-in-
fact or affiliates has made any representations or warranties to
it and that no act by such Agent hereafter taken, including any
review of the affairs of the Borrowers, shall be deemed to
constitute any representation or warranty by such Agent to any
Bank. Each Bank represents to each Agent that it has,
independently and without reliance upon such Agent or any other
Bank, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation
into the business, operations, property, financial and other
condition and creditworthiness of each Borrower and made its own
decision to make its Loans hereunder and enter into this
Agreement. Each Bank also represents that it will, independently
and without reliance upon each Agent or any other Bank, and based
on such documents and information as it shall deem appropriate at
the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this
Agreement, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the
Borrowers. Except for notices, reports and other documents
expressly required to be furnished to the Banks by any Agent
hereunder, such Agent shall not have any duty or responsibility
to provide any Bank with any credit or other information
concerning the business, operations, property, financial and
other condition or creditworthiness of either Borrower which may
come into the possession of such Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
9.7 Indemnification. The Banks agree to indemnify
each Agent in its capacity as such (to the extent not reimbursed
by the Borrowers and without limiting the obligation of the
Borrowers to do so), ratably (as reasonably determined by the
Administrative Agent), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever
which may at any time (including without limitation at any time
following the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out
of this Agreement, or any documents contemplated by or referred
to herein or the transactions contemplated hereby or any action
taken or omitted by such Agent under or in connection with any of
the foregoing; provided that no Bank shall be liable for the
payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from such Agent's gross negligence
or wilful misconduct. The agreements in this subsection 9.7
shall survive the payment of the Loans and all other amounts
payable hereunder.
9.8 Agents in their Individual Capacities. Each Agent
and its respective affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the
Borrowers as though such Agent were not an Agent hereunder. With
respect to its Loans made by it, each Agent shall have the same
rights and powers under this Agreement as any Bank and may
exercise the same as though it were not an Agent, and the terms
"Bank" and "Banks" shall include the Administrative Agent and the
Auction Agent in their respective individual capacity.
9.9 Successor Agents. Each Agent may resign as Agent
upon 30 days' notice thereof to the Borrowers and the Banks. If
any Agent shall resign as Agent under this Agreement, then the
Required Banks shall appoint from among the Banks a successor
agent for the Banks which successor agent shall be approved by
the Borrowers, whereupon such successor agent shall succeed to
the rights, powers and duties of the Administrative Agent, the
Auction Agent or Canadian Administrative Agent, as the case may
be, and the term "Administrative Agent", "Auction Agent" or
"Canadian Administrative Agent", as the case may be, shall mean
such successor agent effective upon its appointment, and the
former Agent's rights, powers and duties as Agent shall be
terminated, without any other or further act or deed on the part
of such former Agent or any of the parties to this Agreement.
After any retiring Agent's resignation hereunder as Agent, the
provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent
under this Agreement.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. With the written consent
of the Required Banks, the Administrative Agent and the Borrowers
may, from time to time, enter into written amendments,
supplements or modifications hereto for the purpose of adding any
provisions to this Agreement or changing in any manner the rights
of the Banks or of the Borrowers hereunder, and with the consent
of the Required Banks the Administrative Agent on behalf of the
Banks may execute and deliver to the Borrowers a written
instrument waiving, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the
requirements of this Agreement or any Default or Event of Default
and its consequences; provided, however, that no such waiver,
amendment, supplement or modification shall (a) extend the
maturity of any Loan, or reduce the rate or extend the time of
payment of interest thereon, or reduce the principal amount
thereof, or reduce the rate of any fee payable hereunder or
extend the time of payment thereof, in each case, without the
written consent of (i) with respect to any such change to any
Committed Rate Loan, each Bank and (ii) with respect to any such
change to any Bid Loan, the Bank which made such Bid Loan, or (b)
change the amount of any Bank's Commitment or the terms of its
obligation to make Loans hereunder or amend, modify or waive any
provision of this subsection 10.1 or reduce the percentage
specified in the definition of Majority Banks or Required Banks,
or consent to the assignment or transfer by either Borrower of
any of its rights and obligations under this Agreement, in each
case without the written consent of each Bank, or (c) amend,
modify or waive any provision of Section 9 without the written
consent of the then Administrative Agent and Auction Agent and,
if applicable, any other Agent affected by such amendment,
modification or waiver, or (d) extend the Termination Date with
respect to any Bank without the written consent of such Bank.
Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Banks and shall
be binding upon the Borrowers, the Banks and the Agents. In the
case of any waiver, the Borrowers, the Banks and the Agents shall
be restored to their former position and rights hereunder, and
any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any
right consequent thereon. Anything contained in the foregoing to
the contrary notwithstanding, the relevant Borrower and the
relevant Bank with respect to a Negotiated Rate Loan may, from
time to time, enter into amendments, supplements or modifications
for the purpose of adding any provisions to such Negotiated Rate
Loans or changing in any manner the rights of such Bank and such
Borrower thereunder and such Bank may waive any of the
requirements of such Negotiated Rate Loan; provided, however,
that such Borrower and such Bank shall notify the Administrative
Agent in writing of any extension of the maturity of such
Negotiated Rate Loan or reduction of the principal amount
thereof; provided, further, that such Borrower and such Bank
shall not extend the maturity of such Negotiated Rate Loan beyond
the last day of the Commitment Period.
10.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in
writing, by facsimile transmission, by telephone confirmed in
writing or by telegraph and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when
delivered by hand, or when deposited in the mail, postage
prepaid, or, in the case of facsimile transmission, when
received, or, in the case of telegraphic notice, when delivered
to the telegraph company or department, addressed as follows in
the case of the Borrowers, the Administrative Agent, the Auction
Agent and the Canadian Administrative Agent and as set forth on
Schedule III in the case of the other parties hereto, or to such
address or other address as may be hereafter notified by the
respective parties hereto:
The Borrowers:
The Company: Deere & Company
Attention: Treasurer
John Deere Road
Moline, Illinois 61265
Telephone: 309-765-4405
Facsimile: 309-765-5021
The Capital
Corporation: John Deere Capital Corporation
Attention: Manager
First National Bank Building
1 East First Street
Reno, Nevada 89501
Telephone: 702-786-5527
Facsimile: 702-786-4145
with a copy to: Deere & Company
Attention: Treasurer
John Deere Road
Moline, Illinois 61265
Facsimile: 309-765-5021
The Administrative
Agent: Chemical Bank
Attention: Theodore Swimmer
270 Park Avenue
New York, New York 10017
Telephone: 212-270-5720
Facsimile: 212-270-2112
The Auction Agent: Deutsche Bank AG Chicago Branch
c/o Deutsche Bank AG New York Branch
Attention: Loan Syndications
31 West 52nd Street
New York, New York 10019
Telephone: 212-474-7041
Facsimile: 212-474-7048
The Canadian
Administrative Agent: The Toronto-Dominion Bank
Attention: Manager Agency
Agency Administration
Corporate and Investment Banking
Group
Toronto Dominion Center
Toronto Dominion Tower
55 King Street West, 7th Floor
Toronto, Ontario
Canada M5K 1A2
Telephone: 416-982-3706
Facsimile: 416-982-5535
provided that any notice, request or demand to or upon the
Administrative Agent, the Auction Agent or the Banks pursuant to
subsections 2.1, 2.2, 2.5, 2.6, 2.9, 2.11 and 9.9 shall not be
effective until received (including receipt by telephone if
permitted hereby).
10.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of either
Borrower, the Administrative Agent, the Auction Agent or any
Bank, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4 Payment of Expenses and Taxes. (a) The Company
agrees (i) to pay or reimburse the Administrative Agent for all
its out-of-pocket costs and expenses incurred in connection with
the preparation and execution of, and any amendment, supplement
or modification to, this Agreement and any other documents
prepared in connection herewith, and the consummation of the
transactions contemplated hereby and thereby in such manner and
in such amounts as shall be agreed to in writing by the Company
and the Administrative Agent, (ii) to pay or reimburse the
Administrative Agent for the reasonable fees and disbursements of
counsel to the Administrative Agent incurred in connection with
the preparation and execution of, and any amendment, supplement,
modification to, this Agreement and other documents prepared in
connection herewith, and the consummation of the transaction
contemplated hereby and thereby, and (iii) to pay or reimburse
each Bank and each Agent for all its out-of-pocket costs and
expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement and any such
other documents, including, without limitation, fees and
disbursements of counsel to each Agent and one counsel
representing the Banks.
(b) The Borrowers agree jointly and severally to
indemnify and hold harmless each Agent and each Bank against any
and all losses, claims, damages and liabilities (other than in
connection with actions, suits and proceedings by any of the
Banks against any of the other Banks), joint or several, to which
they or any of them may become subject insofar as such losses,
claims, damages and liabilities arise out of, relate to or are
based on this Agreement (including the responsibilities, duties
and obligations of the Banks hereunder and their agreement to
make Loans hereunder) in connection with any acquisition or
proposed acquisition of any securities or assets by a Borrower or
any of its Subsidiaries, and shall reimburse each such
indemnified party for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any
such loss, claim, damage or liability, subject to the following
paragraph. This indemnity agreement shall be in addition to any
liability which either Borrower may otherwise have.
(c) Promptly after receipt by an indemnified party
under subsection 10.4(b) of written notice of any loss, claim,
damage or liability in respect of which indemnity may be sought
by it hereunder, such indemnified party will, if a claim is to be
made against the Borrowers, notify the Borrowers thereof in
writing; but the omission so to notify the Borrowers will not
relieve the Borrowers from any liability (otherwise than under
this subsection 10.4) which they may have to any indemnified
party except as may be required or provided otherwise than under
this subsection 10.4. Thereafter, the indemnified party and the
Borrowers shall consult, to the extent appropriate, with a view
to minimizing the cost to the Borrowers of their obligations
hereunder. In case any indemnified party receives written notice
of any loss, claim, damage or liability in respect of which
indemnity may be sought hereunder by it and it notifies the
Borrowers thereof, the Borrowers will be entitled to participate
therein and, to the extent that they may elect by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory at all
times to such indemnified party; provided, however, that (i) if
the parties against whom any loss, claim, damage or liability
arises include both the indemnified party and a Borrower or any
Subsidiary of a Borrower and the indemnified party shall have
reasonably concluded that there may be legal defenses available
to it or other indemnified parties which are different from or
additional to those available to a Borrower or any Subsidiary of
a Borrower and may conflict therewith, the indemnified party or
parties shall have the right to select one separate counsel for
such indemnified party or parties to assume such legal defenses
and to otherwise participate in the defense of such loss, claim,
damage or liability on behalf of such indemnified party or
parties and (ii) if any loss, claim, damage or liability arises
out of actions brought by or for the benefit of a Borrower or any
Subsidiary of a Borrower, the indemnified party or parties shall
have the right to select their counsel and to assume and direct
the defense thereof and neither Borrower shall be entitled to
participate therein or assume the defense thereof. Upon receipt
of notice from the Borrowers to such indemnified party of their
election so to assume the defense of such loss, claim, damage or
liability and approval by the indemnified party of counsel, the
Borrowers shall not be liable to such indemnified party under
this subsection 10.4 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such
counsel in connection with the assumption of legal defenses in
accordance with the proviso to the next preceding sentence, (ii)
the Borrowers shall not have employed and continued to employ
counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
commencement of the action or (iii) the Borrowers shall have
authorized the employment of counsel for the indemnified party at
the expense of the Borrowers.
(d) Notwithstanding any other provision contained in
this subsection 10.4, (i) the Borrowers shall not be liable for
any settlement, compromise or consent to the entry of any order
adjudicating or otherwise disposing of any loss, claim, damage or
liability effected without their consent and (ii) after the
Borrowers have assumed the defense of any loss, claim, damage or
liability under the preceding paragraph with respect to any Bank,
they will not settle, compromise or consent to entry of any order
adjudicating or otherwise disposing thereof (1) if such
settlement, compromise or order involves the payment of money
damages, except if the Borrowers agree with such Bank to pay such
money damages, and, if not simultaneously paid, to furnish such
Bank with satisfactory evidence of their ability to pay such
money damages, and (2) if such settlement, compromise or order
involves any relief against such Bank, other than the payment of
money damages, except with the prior written consent of such
Bank.
(e) The agreements in this subsection 10.4 shall
survive repayment of the Loans and all other amounts payable
hereunder.
10.5 Successors and Assigns; Participations;
Purchasing Banks. (a) This Agreement shall be binding upon and
inure to the benefit of the Borrowers, the Banks, the Agents and
their respective successors and assigns, except that the
Borrowers may not assign or transfer any of their rights or
obligations under this Agreement without the prior written
consent of each Bank.
(b) Any Bank may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time sell to one or more banks or other financial
institutions ("Participants") participating interests in the
Loans, Commitments and other interests of such Bank hereunder.
In the event of any such sale by a Bank of participating
interests to a Participant, such Bank's obligations under this
Agreement to the other parties to this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the
performance thereof, such Bank shall remain the holder of any
such Loan for all purposes under this Agreement, and the
Borrowers, the Administrative Agent and the Auction Agent shall
continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement.
(c) Any Bank may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time assign to one or more banks or other financial
institutions ("Loan Assignees") any Bid Loan or Negotiated Rate
Loan or portion thereof owing to such Bank, pursuant to a Loan
Assignment executed by the assignor Bank and the Loan Assignee.
Upon such execution, from and after the Transfer Effective Date
specified in such Loan Assignment, the Loan Assignee shall, to
the extent of the assignment provided for in such Loan Assignment
and to the extent permitted by applicable law, be deemed to have
the same rights and benefits with respect to such Bid Loans and
Negotiated Rate Loans and the same obligation to share pursuant
to subsection 10.6 as it would have had if it were a Bank
hereunder; provided, that unless such Loan Assignment shall
otherwise specify and a copy of such Loan Assignment shall have
been delivered to the Administrative Agent for its acceptance and
recording in the Register in accordance with subsection 10.5(f),
the assignor Bank shall act as collection agent for the Loan
Assignee, and in the case of Bid Loans, the Administrative Agent
shall pay all amounts received from the relevant Borrower which
are allocable to the assigned Bid Loan directly to the assignor
Bank without any further liability to the relevant Loan Assignee,
and, in the case of Negotiated Rate Loans, the relevant Borrower
shall pay all amounts due under the assigned Negotiated Rate Loan
directly to the assignor Bank without any further liability to
the Loan Assignee. At the request of any Loan Assignee, on or
promptly after the Transfer Effective Date specified in such Loan
Assignment, the relevant Borrower, at its own expense, shall
execute and deliver to the Loan Assignee a promissory note with
respect to the Bid Loans or Negotiated Rate Loans to the order of
such Loan Assignee in an amount equal to the Bid Loan or
Negotiated Rate Loan assigned. Such note shall be dated the
Borrowing Date in respect of such Bid Loan or Negotiated Rate
Loan and shall otherwise be in the form of Exhibit M; provided,
however, that such Borrower shall not be required to execute and
deliver more than an aggregate of two notes with respect to the
Bid Loans of any Bank with the same Interest Period at any time
outstanding. A Loan Assignee shall not, by virtue of such Loan
Assignment, become a party to this Agreement or have any rights
to consent to or refrain from consenting to any amendment, waiver
or other modification of any provision of this Agreement or any
related document; provided, that (i) the assignor Bank and the
Loan Assignee may, in their discretion, agree between themselves
upon the manner in which the assignor Bank will exercise its
rights under this Agreement and any related document, and (ii) if
a copy of such Loan Assignment shall have been delivered to the
Administrative Agent for its acceptance and recording in the
Register in accordance with subsection 10.5(f), neither the
principal amount of, the interest rate on, nor the maturity date
of, any Bid Loan or Negotiated Rate Loan assigned to a Loan
Assignee will be modified without written consent of such Loan
Assignee.
(d) Any Bank may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, with the consent of the Borrowers, sell to any Bank or any
affiliate thereof and to one or more additional banks or other
financial institutions ("Purchasing Banks"), portions (subject to
the last sentence of this subsection 10.5(d)) of its rights
(which rights may include such Bank's rights in respect of Loans
it has disbursed) and obligations under this Agreement, pursuant
to a Commitment Transfer Supplement, executed by such Purchasing
Bank and such transferor Bank (and, in the case of a Purchasing
Bank that is not then a Bank or an affiliate thereof, by the
Borrowers and the Administrative Agent), and delivered to the
Administrative Agent for its acceptance and recording in the
Register; provided, that in any event any such sale by a Tranche
B Bank of any portion of its rights (which rights may include
such Bank's rights in respect of Loans it has disbursed) and
obligations hereunder to a Purchasing Bank must be accompanied by
a concurrent assignment by such Tranche B Bank's Affiliated
Linked Lender to such Purchasing Bank (or to an affiliate of such
Purchasing Bank) of an equal percentage of such Affiliated Linked
Lender's rights (which rights may include such Bank's rights in
respect of "Loans" disbursed thereunder) and obligations under
the Linked Agreement. Upon such execution, delivery, acceptance
and recording, from and after the Transfer Effective Date
specified in such Commitment Transfer Supplement, (i) the
Purchasing Bank thereunder shall be a party hereto and, to the
extent provided in such Commitment Transfer Supplement, have the
rights and obligations of a Bank hereunder with a Commitment as
set forth therein, and (ii) the transferor Bank thereunder shall
cease to have rights and obligations under this Agreement to
which the Purchasing Bank has succeeded (and, in the case of a
Commitment Transfer Supplement covering all or the remaining
portion of a transferor Bank's rights and obligations under this
Agreement, such transferor Bank shall cease to be a party
hereto). Such Commitment Transfer Supplement shall be deemed to
amend this Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Purchasing Bank and the
resulting adjustment of Commitments and Commitment Percentages
arising from the purchase by such Purchasing Bank of a portion of
the rights and obligations of such transferor Bank under this
Agreement. On or promptly after the Transfer Effective Date
specified in such Commitment Transfer Supplement, the Purchasing
Bank and the Administrative Agent, on behalf of such Purchasing
Bank, shall open and maintain in the name of each Borrower a Loan
Account with respect to such Purchasing Bank's Committed Rate
Loans and Bid Loans to such Borrower. Anything contained in this
Agreement to the contrary notwithstanding, no Bank may sell any
portion of its rights and obligations under this subsection
10.5(d) to any bank or financial institution if after giving
effect to such sale the Commitment of either of the selling and
purchasing institutions would be less than $5,000,000.
(e) The Administrative Agent shall maintain at its
address referred to in subsection 10.2 a copy of each Loan
Assignment and each Commitment Transfer Supplement delivered to
it and a register (the "Register") for the recordation of (i) the
names and addresses of the Banks and the Commitment of, and
principal amount of the Loans (other than Negotiated Rate Loans)
owing to, each Bank from time to time, and (ii) with respect to
each Loan Assignment delivered to the Administrative Agent, the
name and address of the Loan Assignee and the principal amount of
each Bid Loan owing to such Loan Assignee. The entries in the
Register shall constitute prima facie evidence of the accuracy of
the information so recorded, and the Borrowers, the
Administrative Agent and the Banks may treat each Person whose
name is recorded in the Register as the owner of the Loan
recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by the Company or any
Bank or Loan Assignee at any reasonable time and from time to
time upon reasonable prior notice.
(f) Upon its receipt of a Loan Assignment executed by
an assignor Bank and a Loan Assignee, together with payment to
the Administrative Agent (by the assignor Bank or the Loan
Assignee, as agreed between them) of a registration and
processing fee of $2,500, the Administrative Agent shall (i)
accept such Loan Assignment, (ii) record the information
contained therein in the Register and (iii) give prompt notice of
such acceptance and recordation to the assignor Bank, the Loan
Assignee and the Borrowers. Upon its receipt of a Commitment
Transfer Supplement executed by a transferor Bank and a
Purchasing Bank (and, in the case of a Purchasing Bank that is
not then a Bank or an affiliate thereof, by the Borrowers and the
Administrative Agent) together with payment to the Administrative
Agent (by the transferor Bank or the Purchasing Bank, as agreed
between them) of a registration and processing fee of $2,500 for
each Purchasing Bank listed in such Commitment Transfer
Supplement, the Administrative Agent shall (A) accept such
Commitment Transfer Supplement, (B) record the information
contained therein in the Register and (C) give prompt notice of
such acceptance and recordation to the Banks and the Borrowers.
(g) The Company authorizes each Bank to disclose to
any Participant, Loan Assignee or Purchasing Bank (each, a
"Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning the
Borrowers and their Subsidiaries which has been delivered to such
Bank by or on behalf of the Borrowers pursuant to this Agreement
or in connection with such Bank's credit evaluation of the
Borrowers and their Subsidiaries prior to becoming a party to
this Agreement, provided that with respect to confidential data
or information described in subsection 10.7, such confidential
data may be disclosed only to (i) a Purchasing Bank and/or (ii)
any other Transferee or prospective Transferee with the
Borrowers' prior written consent, which consent shall not be
unreasonably withheld with respect to prospective Participants,
Participants, prospective Loan Assignees and Loan Assignees;
provided, however, that such Bank shall not disclose any such
confidential data or information pursuant to this subsection
10.5(g) unless (i) it has notified the Purchasing Bank or other
Transferee or potential Transferee that such data or information
are confidential, such notification to be in writing if such data
or information are disclosed in writing and orally if such data
or information are disclosed orally, and (ii) such Purchasing
Bank, Transferee or potential Transferee has agreed in writing to
be bound by the provisions of subsection 10.7.
(h) If, pursuant to this subsection, any loan
participation or series of loan participations is sold or any
interest in this Agreement is transferred to any Transferee, the
transferor Bank shall cause such Transferee, concurrently with
the effectiveness of such transfer or the first transfer to occur
in a series of transfers between such transferor Bank and such
Transferee, (i) to represent to the transferor Bank (for the
benefit of the transferor Bank, the Administrative Agent and the
Borrowers) either (A) that it is incorporated under the laws of
the United States or a state thereof or (B) that under applicable
law and treaties no taxes will be required to be withheld by the
Administrative Agent, the Borrowers or the transferor Bank with
respect to any payments to be made to such Transferee in respect
of the Loans, (ii) to furnish to the transferor Bank, the
Administrative Agent and the Borrowers (A) either (I) a statement
that it is incorporated under the laws of the United States or a
state thereof or (II) if it is not so incorporated, a letter in
duplicate in the form of Exhibit J or Exhibit K, as appropriate,
and two duly completed copies of United States Internal Revenue
Service Form 4224 or 1001 or successor applicable form, as the
case may be, certifying in each case that such Transferee is
entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes, and (B) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be, to establish an
exemption from United States backup withholding tax, and (iii) to
agree (for the benefit of the transferor Bank, the Administrative
Agent and the Borrowers) to provide the transferor Bank, the
Administrative Agent and the Borrowers a new Form 4224 or 1001
and Form W-8 or W-9, or successor applicable form or other manner
of certification, on or before the date that any such letter or
form expires or becomes obsolete or after the occurrence of any
event requiring a change in the most recent letter and form
previously delivered by it, certifying in the case of a Form 1001
or 4224 that such Transferee is entitled to receive payments
under this Agreement without deduction or withholding of any
United States federal income tax, and in the case of a Form W-8
or W-9 establishing exemption from United States backup
withholding tax. The Administrative Agent shall not be
responsible for obtaining such documentation except from its own
Transferees.
(i) Nothing in this subsection 10.5 shall prohibit any
Bank from pledging or assigning its Loans to any Federal Reserve
Bank in accordance with applicable law.
10.6 Adjustments. Except as provided in subsection
2.12, if any Bank (a "benefitted Bank") shall at any time receive
any payment of all or part of its Committed Rate Loans, or
interest thereon or facility fee hereunder, or receive any
collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in clause (e) of Section 8, or otherwise)
in a greater proportion than any such payment to and collateral
received by any other Bank, if any, in respect of such other
Bank's Committed Rate Loans, or interest thereon, or facility fee
hereunder, such benefitted Bank shall purchase for cash from the
other Banks such portion of each such other Bank's Committed Rate
Loans, or shall provide such other Banks with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary
to cause such benefitted Bank to share the excess payment or
benefits of such collateral or proceeds ratably with each of such
other Banks; provided, however, that if all or any portion of
such excess payment or benefits is thereafter recovered from such
benefitted Bank, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrowers agree that each
Bank so purchasing a portion of another Bank's Committed Rate
Loans may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as
fully as if such Bank were the direct holder of such portion.
10.7 Confidentiality. (a) Each of the Agents and the
Banks shall, subject as hereinafter provided, keep confidential
from any third party any data or information received by them
from the Borrowers pursuant to this Agreement which, if provided
in writing, is designated in writing as such, and if provided
orally, is designated orally as such by the Borrowers except:
(i) any such data or information as is or becomes
publicly available or generally known otherwise than as a
result of any breach of the provisions of this subsection
10.7;
(ii) as required by law, rule, regulation or
official
direction;
(iii) as may be necessary to protect as against the
Borrowers or either of them the interests of the Banks or
any of them under this Agreement;
(iv) to the extent permitted under subsection
10.5; and
(v) to the attorneys, accountants and regulators of
such Banks, and to each other Bank.
(b) Each of the Agents and the Banks shall use their
reasonable efforts to ensure that any confidential data or
information received by them from the Borrowers pursuant to this
Agreement which is disclosed to employees of such Agent or Bank
(as the case may be) is so disclosed only to the extent necessary
for purpose of the administration of this Agreement and, in all
cases, on the condition that such information and data shall be
kept confidential except for such purpose.
(c) The provisions of this subsection 10.7 shall
survive the payment in full of all amounts payable hereunder and
the termination of this Agreement.
10.8 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of
separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall
be lodged with the Borrowers and the Administrative Agent.
10.9 Governing Law. This Agreement and the rights and
obligations of the parties under this Agreement shall be governed
by, and construed and interpreted in accordance with, the law of
the State of New York.
10.10 Waiver with Respect to Existing Credit
Facilities. The Banks parties to the Credit Agreements referred
to in subsection 4.1(e)(i) and (ii) hereby waive compliance by
the Borrowers with the provisions of subsection 2.5 of each such
Credit Agreement to the extent necessary to allow the Borrowers,
acting jointly, upon delivery to the Administrative Agent
thereunder of a notice of termination, to terminate the
"Commitments" thereunder immediately upon such delivery.
<PAGE>
10.11 Consent to Jurisdiction and Service of Process.
All judicial proceedings brought against the Borrowers with
respect to this Agreement may be brought in any state or federal
court of competent jurisdiction in the State of New York, and, by
execution and delivery of this Agreement, the Borrowers accept,
for themselves and in connection with their properties, generally
and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and irrevocably agree to be bound by any final
judgment rendered thereby in connection with this Agreement from
which no appeal has been taken or is available. The Borrowers
irrevocably agree that all process in any such proceedings in any
such court may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form
of mail), postage prepaid, to them at their addresses set forth
in subsection 10.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto,
such service being hereby acknowledged by the Borrowers to be
effective and binding service in every respect. Each of the
Borrowers, the Agents and the Banks irrevocably waives any
objection, including without limitation, any objection to the
laying of venue or based on the grounds of forum non conveniens
which it may now or hereafter have to the bringing of any such
action or proceeding in any such jurisdiction. Nothing herein
shall affect the right to serve process in any other manner
permitted by law or shall limit the right of any Agent or any
Bank to bring proceedings against the Borrowers in the courts of
any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
DEERE & COMPANY
Attested by:
/s/ Michael A. Harring By:/s/ Nathan J. Jones
Title: Assistant Secretary Title: Treasurer
JOHN DEERE CAPITAL CORPORATION
Attested by:
/s/ Michael A. Harring By:/s/ Nathan J. Jones
Title: Assistant Secretary Title: Treasurer
CHEMICAL BANK, as Administrative
Agent, as a Managing Agent and as
a Bank
By:/s/ Robert Gaynor
Title: Vice President
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as
Syndication Agent, as a Managing
Agent and as a Bank
By:/s/ Patricia B. Bril
Title: Managing Director
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as
Documentation Agent, as a
Managing Agent and as a Bank
By:/s/ Patricia Del Grande
Title: Vice President
DEUTSCHE BANK AG CHICAGO BRANCH, as
Auction Agent and as a Managing
Agent
By:/s/ David S. Berger
Title: Assistant Vice President
By:/s/ Pamela J. Neal
Title: Assistant Vice President
DEUTSCHE BANK AG CHICAGO AND/OR
CAYMAN ISLANDS BRANCHES, as a
Managing Agent and as a Bank
By:/s/ David S. Berger
Title: Assistant Vice President
By:/s/ Pamela J. Neal
Title: Assistant Vice President
THE TORONTO-DOMINION BANK,
as Canadian Administrative Agent
and as a Managing Agent
By:/s/ Bruce Chambers
Title: Manager
TORONTO DOMINION (TEXAS), INC., as
a Bank
By:/s/ Lisa Allison
Title: Vice President
THE BANK OF NEW YORK, as a Co-Agent
and as a Bank
By:/s/ Charlotte Sohn
Title: Assistant Vice President
BANQUE NATIONALE DE PARIS, CHICAGO
BRANCH, as a Co-Agent and as a
Bank
By:/s/ Patricia J. Doyle
Title: Senior Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Co-Agent and as a Bank
By:/s/ John W. Kunkle
Title: Authorized Signatory
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as a Co-Agent and as a
Bank
By:/s/ Patricia Merritt
Title: Vice President
NATIONSBANK OF TEXAS, N.A., as a
Co-Agent and as a Bank
By:/s/ Perry B. Stephenson
Title: Senior Vice President
ROYAL BANK OF CANADA, as a Co-Agent
and as a Bank
By:/s/ Preston D. Jones
Title: Senior Manager
Corporate Banking
SOCIETE GENERALE, as a Co-Agent and
as a Bank
By:/s/ Eric E.O. Siebert
Title: Vice President
UNION BANK OF SWITZERLAND, as a Co-
Agent and as a Bank
By:/s/ Douglas R. Elliott
Title: Vice President
Corporate Banking
By:/s/ Michelle A. Moreno
Title: Vice President
THE BANK OF TOKYO, LTD.
CHICAGO BRANCH
By:/s/ Joseph P. Howard
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT,
GRAND CAYMAN BRANCH
By:/s/ Mark D. Monson
Title: Assistant Vice President
By:/s/ Joachim G. Fuchs
Title: Executive Vice President
CREDIT SUISSE
By:/s/ Harry R. Olsen
Title: Member of Senior
Mangement
By:/s/ Kristinn R. Kristinsson
Title: Associate
THE FIRST NATIONAL BANK OF CHICAGO
By:/s/ Michael W. McCorkle
Title: Attorney-in-fact
THE FUJI BANK, LIMITED
By:/s/ Peter L. Chinnici
Title: Joint General Manager
THE LONG TERM CREDIT BANK OF JAPAN,
LTD. CHICAGO BRANCH
By:/s/ Armund J. Schoen, Jr.
Title: Vice President and
Deputy General Manager
MELLON BANK N.A.
By:/s/ Gary Gegick
Title: Vice President
NBD BANK
By:/s/ Timothy M. Monohan
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By:/s/ J.P. Peyton
Title: Senior Vice President and
Group Executive
<PAGE>
SCHEDULE I
TERMS OF SUBORDINATION
"Senior Indebtedness" means the principal of (and
premium, if any) and unpaid interest on (a) indebtedness of John
Deere Capital Corporation (the "Capital Corporation") (including
indebtedness of others guaranteed by the Capital Corporation),
other than the indebtedness evidenced by the Securities [such
term to be defined as the debt to be issued under the indenture
or agreement to which this Schedule relates], the 8-5/8%
Subordinated Debentures due 2019 and the 9-5/8% Subordinated
Notes due 1998 of the Capital Corporation, whether outstanding on
the date hereof or hereafter created, incurred, assumed or
guaranteed, for money borrowed, unless in the instrument creating
or evidencing the same or pursuant to which the same is
outstanding it is provided that such indebtedness is not senior
or prior in right of payment to the Securities, and (b) renewals,
extensions, modifications and refundings of any such
indebtedness.
SUBORDINATION
Section 1. Agreement to Subordinate.
The Capital Corporation, for itself, its successors and
assigns, covenants and agrees, and each holder of Securities, by
such holder's acceptance thereof, likewise covenants and agrees,
that the payment of the principal of (and premium, if any) and
interest on each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all
Senior Indebtedness.
Section 2. Distribution on Dissolution, Liquidation
and Reorganization; Subrogation of Securities.
Upon any distribution of assets of the Capital
Corporation upon any dissolution, winding up, liquidation or
reorganization of the Capital Corporation, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling
of the assets and liabilities of the Capital Corporation or
otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provisions reflecting the
rights conferred in this Agreement upon the Senior Indebtedness
and the holders thereof with respect to the Securities by a
lawful plan of reorganization under applicable bankruptcy law),
(a) the holders of Senior Indebtedness shall be
entitled to receive payment in full of the principal thereof
(and premium if any) and the interest due on the Senior
Indebtedness before the holders of the Securities are
entitled to receive any payment upon the principal of (or
premium, if any) or interest on indebtedness evidenced by
the Securities; and
(b) any payment or distribution of assets of the
Capital Corporation of any kind or character, whether in
cash, property or securities, to which the holders of the
Securities or any trustee therefor would be entitled except
for the provisions of this Article shall be paid by the
liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to
the holders of Senior Indebtedness or their representative
or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according
to the aggregate amounts remaining unpaid on account of the
principal of (and premium, if any) and interest on the
Senior Indebtedness held or represented by each holder of
Senior Indebtedness, to the extent necessary to make payment
in full of all Senior Indebtedness remaining unpaid, after
giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing,
any payment or distribution of assets of the Capital
Corporation of any kind or character, whether in cash,
property or securities, shall be received by any trustee for
the holders of the Securities or the holders of the
Securities before all Senior Indebtedness is paid in full,
such payment or distribution shall be paid over, upon
written notice to any trustee for the holders of the
Securities, to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or
trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the payment
of all Senior Indebtedness remaining unpaid until all such
Senior Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
holders of the Securities shall be subrogated to the rights of
the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Capital
Corporation applicable to Senior Indebtedness until the principal
of (and premium, if any) and interest on the Securities shall be
paid in full and no such payments or distributions to the holders
of the Securities of cash, property or securities otherwise
distributable to the holders of Senior Indebtedness shall, as
between the Capital Corporation, its creditors other than the
holders of Senior Indebtedness, and the holders of the
Securities, be deemed to be a payment by the Capital Corporation
to or on account of the Securities. It is understood that the
provisions of this Article are, and are intended, solely for the
purpose of defining the relative rights of the holders of the
Securities, on the one hand, and the holders of Senior
Indebtedness, on the other hand. Nothing contained in this
Article or elsewhere in this Agreement or in the Securities is
intended to or shall impair, as between the Capital Corporation,
its creditors other than the holders of Senior Indebtedness, and
the holders of the Securities, the obligation of the Capital
Corporation, which is unconditional and absolute, to pay to the
holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become
due and payable in accordance with their terms, or to affect the
relative rights of the holders of the Securities and creditors of
the Capital Corporation other than the holders of Senior
Indebtedness, nor shall anything herein or in the instruments or
other evidence of the Securities prevent any trustee for the
holders of the Securities or the holder of any Securities from
exercising all remedies otherwise permitted by applicable law
upon default under this Agreement or such instrument or other
evidence, subject to the rights, if any, under this Article of
the holders of Senior Indebtedness in respect of cash, property
or securities of the Capital Corporation received upon the
exercise of any such remedy.
Section 3. No Payment on Securities in Event of Non-
Payment When Due of Senior Indebtedness.
No payment by the Capital Corporation on account of
principal (or premium, if any), sinking funds, or interest on the
Securities shall be made unless full payment of amounts then due
for principal, premium, if any, sinking funds and interest on
Senior Indebtedness has been made or duly provided for in money
or money's worth.
<PAGE>
SCHEDULE II
COMMITMENTS
Bank
Commitment
PART A:
Chemical Bank
$37,500,000
Bank of America National Trust and
$37,500,000
Savings Association
The Chase Manhattan Bank (National Association)
$37,500,000
Deutsche Bank AG Chicago and/or
$37,500,000
Cayman Islands Branches
The Bank of New York
$25,000,000
Banque Nationale de Paris, Chicago Branch
$25,000,000
Morgan Guaranty Trust Company of New York
$25,000,000
NationsBank of Texas, N.A.
$25,000,000
Societe Generale
$25,000,000
Union Bank of Switzerland
$25,000,000
The Bank of Tokyo, Ltd., Chicago Branch
$12,500,000
Commerzbank Aktiengesellschaft,
$12,500,000
Grand Cayman Branch
Credit Suisse
$12,500,000
The First National Bank of Chicago
$12,500,000
The Fuji Bank, Limited
$12,500,000
The Long Term Credit Bank of Japan, Ltd.
$12,500,000
Chicago Branch
Mellon Bank, N.A.
$12,500,000
NBD Bank
$12,500,000
Wachovia Bank of Georgia, N.A.
$12,500,000
Total
$412,500,000
Part B:
Toronto Dominion (Texas), Inc.
$37,500,000
Canadian Imperial Bank of Commerce
$25,000,000
Royal Bank of Canada
$25,000,000
Total
$87,500,000
<PAGE>
SCHEDULE III
ADDRESSES FOR NOTICES
Chemical Bank
Attention: Theodore Swimmer
270 Park Avenue
New York, New York 10017
Telephone: (212) 270-5720
Facsimile: (212) 270-2112
The Chase Manhattan Bank
(National Association)
Attention: Patricia Bril
Asset Management Group
One Chase Manhattan Plaza, 5th Floor
New York, New York 10081
Telephone: (212) 552-6233
Facsimile: (212) 552-7075
Bank of America National Trust
and Savings Association
Attention: Patricia Del Grande
231 South LaSalle Street
Chicago, Illinois 60697
Telephone: (312) 828-3122
Facsimile: (312) 765-2080
Deutsche Bank AG Chicago and/or
Cayman Islands Branches
Attention: Christine Cierpinski
Suite 4350
227 West Monroe Street
Chicago, Illinois 60606
Telephone: (312) 578-4107
Facsimile: (312) 578-4111
Toronto Dominion (Texas), Inc.
Attention: Lisa Allison
909 Fannin, Suite 1700
Houston, Texas 77010
Telephone: (713) 653-8231
Facsimile: (713) 951-9921
with a copy to:
The Toronto-Dominion Bank
Attention: Dylan T. MacKenzie
Suite 5430
70 West Madison Street
Chicago, Illinois 60602
Telephone: (312) 977-2119
Facsimile: (312) 782-6337
The Bank of New York
Attention: Charlotte Sohn
One Wall Street
Central Division - 19th Floor
New York, New York 10286
Telephone: (212) 635-1147
Facsimile: (212) 635-1208
Banque Nationale de Paris,
Chicago Branch
Attention: Christine Howatt
209 South LaSalle Street
Chicago, Illinois 60604
Telephone: (312) 977-1383
Facsimile: (312) 977-1380
Canadian Imperial Bank of Commerce
Attention: John W. Kunkle
200 West Madison
Suite 2300
Chicago, Illinois 60606
Telephone: (312) 750-8732
Facsimile: (312) 726-8884
Morgan Guaranty Trust Company
of New York
Attention: Patricia Merritt
60 Wall Street
22nd Floor
New York, New York 10260
Telephone: (212) 648-6744
Facsimile: (212) 648-5336
NationsBank of Texas, N.A.
Attention: Perry B. Stephenson
901 Main Street
67th Floor
P.O. Box 831000
Dallas, Texas 75283
Telephone: (214) 508-0913
Facsimile: (214) 508-0980
Royal Bank of Canada
New York Branch
Attention: Manager, Loans Administration
Financial Square
23rd Floor
New York, New York 10005
Telephone: (212) 428-6311
Facsimile: (212) 428-2372
with a copy to:
Royal Bank of Canada
Attention: Preston D. Jones
One North Franklin Street
Suite 700
Chicago, Illinois 60606
Telephone: (312) 551-1618
Facsimile: (312) 551-0805
Societe Generale
Attention: Eric E.O. Siebert, Jr.
181 West Madison Street
Suite 3400
Chicago, Illinois 60602
Telephone: (312) 578-5003
Facsimile: (312) 578-5099
Union Bank of Switzerland
Attention: Douglas R. Elliott
30 South Wacker Drive
Chicago, Illinois 60606
Telephone: (312) 993-5468
Facsimile: (312) 993-5530
The Bank of Tokyo, Ltd.
Chicago Branch
Attention: Jennifer Nelson
69 West Washington Street
9th Floor
Chicago, Illinois 60602
Telephone: (312) 236-3132
Facsimile: (312) 236-8268
Commerzbank Aktiengesellschaft,
Grand Cayman Branch
Attention: Mark Monson
311 South Wacker Drive
Suite 5800
Chicago, Illinois 60606
Telephone: (312) 408-6920
Facsimile: (312) 435-1486
Credit Suisse
Attention: Hazel Leslie
12 East 49th Street
41st Floor
New York, New York 10017
Telephone: (212) 238-5218
Facsimile: (212) 238-5246
The First National Bank
of Chicago
Attention: Michael W. McCorkle
One First National Plaza
Suite 0324
Chicago, Illinois 60670
Telephone: (312) 732-3568
Facsimile: (312) 732-1712
The Fuji Bank, Limited
Attention: Richard J. Dunning
225 West Wacker Drive
Suite 2000
Chicago, Illinois 60606
Telephone: (312) 621-9485
Facsimile: (312) 621-0539
The Long Term Credit Bank of Japan, Ltd.
Chicago Branch
Attention: John Carley
190 South LaSalle Street
Suite 800
Chicago, Illinois 60603
Telephone: (312) 853-9516
Facsimile: (312) 704-8505
Mellon Bank N.A.
Attention: Jeffrey M. Anderson
55 West Monroe
Suite 2600
Chicago, Illinois 60603
Telephone: (312) 357-3405
Facsimile: (312) 357-3414
NBD Bank
Attention: Timothy M. Monahan
611 Woodward Avenue
Detroit, Michigan 48226
Telephone: (313) 225-2762
Facsimile: (313) 225-3269
Wachovia Bank of Georgia, N.A.
Attention: Shedrick La-Vern Cleveland
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Telephone: (404) 332-1197
Facsimile: (404) 332-6898
<PAGE>
EXHIBIT A
[FORM OF BORROWING NOTICE]
,
Chemical Bank
as Administrative Agent under the
Credit Agreement referred to below
270 Park Avenue
New York, New York 10017
Gentlemen:
Pursuant to subsection 2.1(c) of the $500,000,000 Credit
Agreement, dated as of April 5, 1995, among DEERE & COMPANY, JOHN
DEERE CAPITAL CORPORATION, the Banks parties thereto, CHEMICAL
BANK, as Administrative Agent, THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as Syndication Agent, BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Documentation Agent, DEUTSCHE
BANK AG CHICAGO BRANCH, as Auction Agent, THE TORONTO-DOMINION
BANK, as Canadian Administrative Agent, the Managing Agents named
therein and the Co-Agents named therein (as the same may be
amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), the undersigned hereby requests that the
following Committed Rate Loans be made on __________, as
follows:
(1). Total Amount of Committed Rate
Loans.......................... $
(2). Amount of (1) to be allocated to
Eurodollar Loans............... $
(3). Amount of (1) to be allocated to
C/D Rate Loans................. $
(4). Amount of (1) to be allocated to
ABR Loans..................... $
(5A). Interest Periods and amounts to be
allocated thereto in respect of
Eurodollar Loans (amounts must total (2)):
(i) one month................ $
(ii) two months............... $
(iii) three months............. $
(iv) six months............... $
Total Eurodollar Loans.......... $
(5B). Interest Periods and amounts to
be allocated thereto in respect
of C/D Rate Loans (amounts must
total (3)):
(i) 30 days.................. $
(ii) 60 days.................. $
(iii) 90 days.................. $
(iv) 180 days................. $
Total C/D Rate Loans........... $
NOTE: THE AMOUNT APPEARING IN LINE (1) ABOVE
MUST BE AT LEAST EQUAL TO $25,000,000 AND
IN A WHOLE MULTIPLE OF $5,000,000 AND THE
AMOUNTS APPEARING IN EACH OTHER LINE ABOVE
MUST BE AT LEAST EQUAL TO $10,000,000 AND IN
A WHOLE MULTIPLE OF $1,000,000.
Terms defined in the Credit Agreement shall have the same
meanings when used herein.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
<PAGE>
EXHIBIT B
[FORM OF BID LOAN REQUEST]
,
Deutsche Bank AG Chicago Branch,
as Auction Agent under the Credit
Agreement referred to below
c/o Deutsche Bank AG New York Branch
31 West 52nd Street
New York, New York 10019
Dear Sirs:
Reference is made to the $500,000,000 Credit Agreement,
dated as of April 5, 1995, among DEERE & COMPANY, JOHN DEERE
CAPITAL CORPORATION, the Banks parties thereto, CHEMICAL BANK, as
Administrative Agent, THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as Syndication Agent, BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Documentation Agent, DEUTSCHE
BANK AG CHICAGO BRANCH, as Auction Agent, THE TORONTO-DOMINION
BANK, as Canadian Administrative Agent, the Managing Agents named
therein and the Co-Agents named therein (as the same may be
amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement
are used herein as therein defined.
This is an [Index Rate] [Absolute Rate] Bid Loan Request
pursuant to subsection 2.2 of the Credit Agreement requesting
quotes for the following Bid Loans:
Aggregate Principal Amount $ $ $
Borrowing Date
Interest Period
Maturity Date
Interest Payment Dates
Interest Rate Basis 360 day year
NOTE: THE AGGREGATE PRINCIPAL AMOUNTS APPEARING ABOVE
MUST BE IN THE AGGREGATE AT LEAST EQUAL TO
$25,000,000 AND IN A WHOLE MULTIPLE OF
$5,000,000.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
Note: Pursuant to the Credit Agreement, a Bid Loan Request may
be transmitted by facsimile transmission, or by
telephone, immediately confirmed by facsimile
transmission. In any case, a Bid Loan Request shall
contain the information specified in the second paragraph
of this form.
<PAGE>
EXHIBIT C
[FORM OF BID LOAN OFFER]
,
Deutsche Bank AG Chicago Branch, as Auction
Agent under the Credit Agreement
referred to below
c/o Deutsche Bank AG New York Branch
31 West 52nd Street
New York, New York 10019
Dear Sirs:
Reference is made to the $500,000,000 Credit
Agreement,
dated as of April 5, 1995, among DEERE & COMPANY, JOHN DEERE
CAPITAL CORPORATION, the Banks parties thereto, CHEMICAL BANK,
as
Administrative Agent, THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), as Syndication Agent, BANK OF AMERICA NATIONAL
TRUST
AND SAVINGS ASSOCIATION, as Documentation Agent, DEUTSCHE BANK
AG
CHICAGO BRANCH, as Auction Agent, THE TORONTO-DOMINION BANK, as
Canadian Administrative Agent, the Managing Agents named
therein
and the Co-Agents named therein (as the same may be amended,
supplemented or otherwise modified from time to time, the
"Credit
Agreement"). Terms defined in the Credit Agreement are used
herein as therein defined.
In accordance with subsection 2.2 of the Credit Agreement,
the undersigned Bid Loan Bank offers to make Bid Loans
thereunder
in the following amounts with the following maturity dates:
Borrowing Date: ,
Aggregate Maximum Amount: $
<PAGE>
Maturity Date 1: : Maturity Date 2: : Maturity Date 3: :
Maximum Amount $ Maximum Amount $ Maximum Amount $
Rate* Amount $ Rate* Amount $ Rate* Amount $
Rate* Amount $ Rate* Amount $ Rate* Amount $
Very truly yours,
[NAME OF BID LOAN BANK]
By:
Name:
Title:
Telephone:
Facsimile:
* If Index Rate Bid Loan, insert percentage above or below
Eurodollar Rate.
<PAGE>
EXHIBIT D
[FORM OF BID LOAN CONFIRMATION]
,
Deutsche Bank AG Chicago Branch, as Auction Agent
under the Credit Agreement referred
to below
c/o Deutsche Bank AG New York Branch
31 West 52nd Street
New York, New York 10019
Dear Sirs:
Reference is made to the $500,000,000 Credit
Agreement, dated as of April 5, 1995, among DEERE & COMPANY,
JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto,
CHEMICAL BANK, as Administrative Agent, THE CHASE MANHATTAN
BANK (NATIONAL ASSOCIATION), as Syndication Agent, BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Documentation Agent, DEUTSCHE BANK AG CHICAGO BRANCH, as
Auction Agent, THE TORONTO-DOMINION BANK, as Canadian
Administrative Agent, the Managing Agents named therein and
the Co-Agents named therein (as the same may be amended,
supplemented or otherwise modified from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement
are used herein as therein defined.
In accordance with subsection 2.2 of the Credit
Agreement, the undersigned accepts and confirms the offers by
Bid Loan Bank(s) to make Bid Loans to the undersigned on
, ____ [Borrowing Date] under said subsection 2.2 in
the (respective) amount(s) set forth on the attached list of
Bid Loans offered.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
[Borrower to attach Bid Loan Offer list prepared by Auction
Agent with accepted amount entered by the Borrower to right
of each Bid Loan Offer].
<PAGE>
EXHIBIT E
[FORM OF LOAN ASSIGNMENT]
LOAN ASSIGNMENT
LOAN ASSIGNMENT, dated as of the date set forth in
Item 1 of Schedule I hereto, among the Assignor Bank set
forth in Item 2 of Schedule I hereto (the "Assignor Bank"),
the Loan Assignee set forth in Item 3 of Schedule I hereto
(the "Loan Assignee"), and CHEMICAL BANK, as administrative
agent for the Banks under the Credit Agreement described
below (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, this Loan Assignment is being executed and
delivered in accordance with subsection 10.5(c) of the
$500,000,000 Credit Agreement, dated as of April 5, 1995
among DEERE & COMPANY (the "Company"), JOHN DEERE CAPITAL
CORPORATION (the "Capital Corporation"), the Assignor Bank
and the other Banks party thereto, the Administrative Agent,
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), as
Syndication Agent, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Documentation Agent, DEUTSCHE BANK AG CHICAGO
BRANCH, as Auction Agent, THE TORONTO-DOMINION BANK, as
Canadian Administrative Agent, the Managing Agents named
therein and the Co-Agents named therein (as from time to time
amended, supplemented or otherwise modified in accordance
with the terms thereof, the "Credit Agreement"; terms defined
therein being used herein as therein defined); and
WHEREAS, the Assignor Bank has advanced to [the
Company] [the Capital Corporation] the Bid Loan or Negotiated
Rate Loan or portion thereof described in Item 5 of Schedule
I hereto (the "Loan"), and the Assignor Bank is assigning the
Loan to the Loan Assignee pursuant to this Loan Assignment;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
1. The Assignor Bank acknowledges receipt from the
Loan Assignee of an amount equal to the purchase price, as
agreed between the Assignor Bank and the Loan Assignee, of
the outstanding principal amount of, and accrued interest on,
the Loan. The Assignor Bank hereby irrevocably sells,
assigns and transfers to the Loan Assignee without recourse,
representation or warranty, and the Loan Assignee hereby
irrevocably purchases, takes and acquires from the Assignor
Bank, the Loan, together with all instruments, documents and
collateral security pertaining thereto.
2. (a) From and after the date set forth in Item
4 of Schedule I hereto (the "Transfer Effective Date"),
principal and interest that would otherwise be payable to or
for the account of the Assignor Bank pursuant to the Loan
shall, instead, be payable to or for the account of the Loan
Assignee.
(b) If Item 6 of Schedule I hereto contains
payment instructions for the Loan Assignee and if the Loan
Assignee delivers a copy of this Loan Assignment to the
Administrative Agent in accordance with subsection 10.5(f) of
the Credit Agreement at least 5 Business Days prior to the
due date of any payment to the Loan Assignee, the Loan
Assignee hereby instructs the Administrative Agent to pay all
such amounts payable to it pursuant to the provision of
subparagraph (a) of this paragraph 2 in accordance with such
payment instructions. If Item 6 of Schedule I hereto does
not contain payment instructions for the Loan Assignee (or a
copy hereof is not delivered to the Administrative Agent as
aforesaid), the Assignor Bank and the Loan Assignee agree
that, notwithstanding the provisions of subparagraph (a) of
this paragraph 2, the Assignor Bank is hereby appointed by
the Loan Assignee as its collection agent to receive from the
Administrative Agent, for and on behalf of and for the
account of the Loan Assignee, all amounts payable to or for
the account of the Loan Assignee under the Loan; the Assignor
Bank will immediately pay over to the Loan Assignee any such
amounts received by it, in like funds as received.
3. Each of the parties to this Loan Assignment
agrees that at any time and from time to time upon the
written request of any other party, it will execute and
deliver such further documents and do such further acts and
things as such other party may reasonably request in order to
effect the purposes of this Loan Assignment.
4. By executing and delivering this Loan
Assignment, the Assignor Bank and the Loan Assignee confirm
to and agree with each other and the Administrative Agent and
the Banks as follows: (i) other than the representation and
warranty that it is the legal and beneficial owner of the
interest being assigned hereby free and clear of any adverse
claim, the Assignor Bank makes no representation or warranty
and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with
the Credit Agreement or any other instrument or document
furnished pursuant thereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document
furnished pursuant thereto; (ii) the Assignor Bank makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or the
Capital Corporation or the performance or observance by the
Company or the Capital Corporation of any of its obligations
under the Credit Agreement or any other instrument or
document furnished pursuant thereto; (iii) the Loan Assignee
confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to
in subsection 3.1 of the Credit Agreement (unless financial
statements referred to in subsection 5.1(a) of the Credit
Agreement have become available), the financial statements
delivered pursuant to subsection 5.1 of the Credit Agreement,
if any, and such other documents and information as it has
deemed appropriate to make its own credit analysis and
decision to enter into this Loan Assignment; (iv) the Loan
Assignee will, independently and without reliance upon the
Administrative Agent, the Assignor Bank or any other Bank and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in respect of the Credit Agreement; and (v) the
Loan Assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental
thereto, all in accordance with Section 9 of the Credit
Agreement.
5. The Loan Assignee represents that it is
organized under the laws of . If the Loan
Assignee is organized under the laws of any jurisdiction
other than the United States or any State thereof, the Loan
Assignee (i) represents to the Assignor Bank (for the benefit
of the Assignor Bank, the Administrative Agent and [the
Company] [the Capital Corporation]) that under applicable law
and treaties no taxes will be required to be withheld by the
Administrative Agent, [the Company] [the Capital Corporation]
or the Assignor Bank with respect to any payments to be made
to the Loan Assignee in respect of the Loan, (ii) will
furnish to the Assignor Bank, the Administrative Agent and
[the Company] [the Capital Corporation], on or prior to the
Transfer Effective Date, a letter in duplicate in the form of
Exhibit J or Exhibit K, as appropriate, to the Credit
Agreement and two duly completed copies of either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein the Loan Assignee claims
entitlement to complete exemption from U.S. federal
withholding tax on all interest payments under the Loan),
(iii) will furnish to the Assignor Bank, the Administrative
Agent and [the Company] [the Capital Corporation], on or
prior to the Transfer Effective Date either U.S. Internal
Revenue Service Form W-8 or U.S. Internal Revenue Service
Form W-9 (wherein the Loan Assignee claims entitlement to
complete exemption from U.S. federal backup withholding tax
on all interest payments under the Loan) and (iv) agrees (for
the benefit of the Assignor Bank, the Administrative Agent
and [the Company] [the Capital Corporation]) to provide the
Assignor Bank, the Administrative Agent and [the Company]
[the Capital Corporation] a new Form 4224 or Form 1001 and
Form W-8 or W-9 or successor applicable form or other manner
of certification on or before the expiration or obsolescence
of, or after the occurrence of any event requiring a change
in, any previously delivered letter or form and comparable
statements in accordance with applicable U.S. laws and
regulations and amendments duly executed and completed by the
Loan Assignee, and comply from time to time with all
applicable U.S. laws and regulations with regard to such
withholding tax exemption and such backup withholding tax
exemption.
6. The Loan Assignee agrees to be bound by
subsection 10.7 of the Credit Agreement relating to
confidentiality.
7. This Loan Assignment shall be governed by, and
construed and interpreted in accordance with, the law of the
State of New York.
IN WITNESS WHEREOF, the parties hereto have caused
this Loan Assignment to be executed by their respective duly
authorized officers on Schedule I hereto as of the date set
forth in Item 1 of Schedule I hereto.
<PAGE>
SCHEDULE I
TO LOAN
ASSIGNMENT
Item 1 (Date of Loan
Assignment): [Insert date of Loan
Assignment]
Item 2 (Assignor Bank): [Insert name of Assignor
Bank]
Item 3 (Loan Assignee): [Insert name, address,
telephone and telex
numbers and name of
contact party of Loan
Assignee]
Item 4 (Transfer Effective
Date): [Insert Transfer Effective
Date] [To be a date not
less than five Business
Days after date of Loan
Assignment]
Item 5 (Description of Loan):
a. Borrowing Date and Maturity Date of Bid
Loan or Negotiated Rate Loan:
b. Principal Amount of Loan:
Item 6 (Payment Instructions): [Complete only if payments
are to be made by
Administrative Agent to
Loan Assignee rather than
to Assignor Bank as
collection agent for Loan
Assignee; leave blank if
Assignor Bank is to act as
such collection agent]
Item 7 (Signatures):
, as
Assignor Bank
By:
Title:
, as
Loan Assignee
By:
Title:
ACCEPTED FOR RECORDATION
IN REGISTER:
CHEMICAL BANK, as Administrative
Agent
By:
Title:
<PAGE>
EXHIBIT F
[FORM OF COMMITMENT TRANSFER SUPPLEMENT]
COMMITMENT TRANSFER SUPPLEMENT
COMMITMENT TRANSFER SUPPLEMENT, dated as of the
date set forth in Item 1 of Schedule I hereto, among the
Transferor Bank set forth in Item 2 of Schedule I hereto (the
"Transferor Bank"), each Purchasing Bank set forth in Item 3
of Schedule I hereto (each, a "Purchasing Bank"), DEERE &
COMPANY, a Delaware corporation (the "Company"), JOHN DEERE
CAPITAL CORPORATION, a Delaware corporation (the "Capital
Corporation"), and CHEMICAL BANK, as administrative agent for
the Banks under the Credit Agreement described below (in such
capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, this Commitment Transfer Supplement is
being executed and delivered in accordance with subsection
10.5(d) of the $500,000,000 Credit Agreement, dated as of
April 5, 1995, among the Company, the Capital Corporation,
the Transferor Bank and the other Banks party thereto, the
Administrative Agent, The Chase Manhattan Bank (National
Association), as Syndication Agent, Bank of America National
Trust and Savings Association, as Documentation Agent,
Deutsche Bank AG Chicago Branch, as Auction Agent, The
Toronto-Dominion Bank, as Canadian Administrative Agent, the
Managing Agents named therein and the Co-Agents named therein
(as from time to time amended, supplemented or otherwise
modified in accordance with the terms thereof, the "Credit
Agreement"; terms defined therein being used herein as
therein defined);
WHEREAS, each Purchasing Bank (if it is not already
a Bank party to the Credit Agreement) wishes to become a Bank
party to the Credit Agreement; and
WHEREAS, the Transferor Bank is selling and
assigning to each Purchasing Bank, rights, obligations and
commitments under the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
1. From and after the Transfer Effective Date set
forth in Item 4 of Schedule I hereto (the "Transfer Effective
Date"), each Purchasing Bank shall be a Bank party to the
Credit Agreement for all purposes thereof.
2. The Transferor Bank acknowledges receipt from
each Purchasing Bank of an amount equal to the purchase
price, as agreed between the Transferor Bank and such
Purchasing Bank (the "Purchase Price"), of the portion being
purchased by such Purchasing Bank (such Purchasing Bank's
"Purchased Percentage") of the outstanding Committed Rate
Loans and other amounts owing to the Transferor Bank under
the Credit Agreement (other than any Bid Loans and Negotiated
Rate Loans owing to the Transferor Bank). The Transferor
Bank hereby irrevocably sells, assigns and transfers to each
Purchasing Bank, without recourse, representation or
warranty, and each Purchasing Bank hereby irrevocably
purchases, takes and assumes from the Transferor Bank, such
Purchasing Bank's Purchased Percentage of the Commitments and
the presently outstanding Committed Rate Loans and other
amounts owing to the Transferor Bank under the Credit
Agreement (other than any Bid Loans and Negotiated Rate Loans
owing to the Transferor Bank) together with all instruments,
documents and collateral security pertaining thereto.
3. The Transferor Bank has made arrangements with
each Purchasing Bank with respect to (i) the portion, if any,
to be paid, and the date or dates for payment, by the
Transferor Bank to such Purchasing Bank of any fees
heretofore received by the Transferor Bank pursuant to the
Credit Agreement prior to the Transfer Effective Date and
(ii) the portion, if any, to be paid, and the date or dates
for payment, by such Purchasing Bank to the Transferor Bank
of fees or interest received by such Purchasing Bank pursuant
to the Credit Agreement from and after the Transfer Effective
Date.
4. (a) From and after the Transfer Effective
Date, principal, interest, fees and other amounts that would
otherwise be payable to or for the account of the Transferor
Bank pursuant to the Credit Agreement and the Committed Rate
Loans (other than any Bid Loans and Negotiated Rate Loans
owing to the Transferor Bank) shall, instead, be payable to
or for the account of the Transferor Bank and the Purchasing
Banks, as the case may be, in accordance with their
respective interests as reflected in this Commitment Transfer
Supplement, whether such amounts have accrued prior to the
Transfer Effective Date or accrue subsequent to the Transfer
Effective Date.
(b) The Transferor Bank and each Purchasing Bank
hereby agree and instruct the Administrative Agent that,
notwithstanding the provisions of subparagraph (a) of this
paragraph 4, on each date hereafter on which interest or fees
are payable under the Credit Agreement and the Committed Rate
Loans in respect of any period (an "Accrual Period") ending
on or prior to the Transfer Effective Date, any such interest
or fees payable to the Purchasing Bank on account of such
Accrual Period in respect of its interests as reflected in
this Commitment Transfer Supplement shall be paid over to the
Transferor Bank (and, if such interest or fees are not paid
in full when due, the payment over to the Transferor Bank
shall be ratable), and the Transferor Bank and such
Purchasing Bank will make appropriate arrangements for the
payment to such Purchasing Bank of the portion thereof owing
to it to reflect the amount, if any, included in the Purchase
Price for interest and fees in respect of any Accrual Period.
5. On or promptly after the Transfer Effective
Date specified in this Commitment Transfer Supplement, the
Purchasing Bank and the Administrative Agent, on behalf of
such Purchasing Bank, shall open and maintain in the name of
each Borrower a Loan Account with respect to such Purchasing
Bank's Committed Rate Loans and Bid Loans to such Borrower.
6. Concurrently with the execution and delivery
hereof, the Administrative Agent will, at the expense of the
Transferor Bank, provide to each Purchasing Bank (if it is
not already a Bank party to the Credit Agreement) conformed
copies of all documents delivered to the Administrative Agent
on the Closing Date in satisfaction of the conditions
precedent set forth in the Credit Agreement.
7. Each of the parties to this Commitment Transfer
Supplement agrees that at any time and from time to time upon
the written request of any other party, it will execute and
deliver such further documents and do such further acts and
things as such other party may reasonably request in order to
effect the purposes of this Commitment Transfer Supplement.
8. By executing and delivering this Commitment
Transfer Supplement, the Transferor Bank and each Purchasing
Bank confirm to and agree with each other and the
Administrative Agent and the Banks as follows: (i) other
than the representation and warranty that it is the legal and
beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, the Transferor Bank makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made
in or in connection with the Credit Agreement or any other
instrument or document furnished pursuant thereto or the
execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, the Committed
Rate Loans or any other instrument or document furnished
pursuant thereto; (ii) the Transferor Bank makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or the
Capital Corporation or the performance or observance by the
Company or the Capital Corporation of any of its obligations
under the Credit Agreement or any other instrument or
document furnished pursuant thereto; (iii) each Purchasing
Bank confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements
referred to in subsection 3.1 of the Credit Agreement, the
financial statements delivered pursuant to subsection 5.1 of
the Credit Agreement, if any, and such other documents and
information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Commitment
Transfer Supplement; (iv) each Purchasing Bank will,
independently and without reliance upon the Administrative
Agent, the Transferor Bank or any other Bank and based on
such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (v)
each Purchasing Bank appoints and authorizes the
Administrative Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement
as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably
incidental thereto, all in accordance with Section 9 of the
Credit Agreement; and (vi) each Purchasing Bank agrees that
it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are
required to be performed by it as a Bank.
9. The Purchasing Bank represents that it is
organized under the laws of . If the Purchasing
Bank is organized under the laws of any jurisdiction other
than the United States or any State thereof, the Purchasing
Bank (i) represents to the Transferor Bank (for the benefit
of the Transferor Bank, the Administrative Agent and the
Borrowers) that under applicable law and treaties no taxes
will be required to be withheld by the Administrative Agent,
the Borrowers or the Transferor Bank with respect to any
payments to be made to the Purchasing Bank in respect of the
Loans, (ii) will furnish to the Transferor Bank, the
Administrative Agent and the Borrowers, on or prior to the
Transfer Effective Date, a letter in duplicate in the form of
Exhibit J or Exhibit K, as appropriate, to the Credit
Agreement and two duly completed copies of either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein the Purchasing Bank claims
entitlement to complete exemption from U.S. federal
withholding tax on all interest payments in respect of the
Loans), (iii) will furnish to the Transferor Bank, the
Administrative Agent and the Borrowers, on or prior to the
Transfer Effective Date either U.S. Internal Revenue Service
Form W-8 or U.S. Internal Revenue Service Form W-9 (wherein
the Purchasing Bank claims entitlement to complete exemption
from U.S. federal backup withholding tax on all interest
payments under the Loan) and (iv) agrees (for the benefit of
the Transferor Bank, the Administrative Agent and the
Borrowers), to provide the Transferor Bank, the
Administrative Agent and the Borrowers a new Form 4224 or
Form 1001 and Form W-8 or W-9 or successor applicable form or
other manner of certification on or before the expiration or
obsolescence of, or after the occurrence of any event
requiring a change in, any previously delivered letter or
form and comparable statements in accordance with applicable
U.S. laws and regulations and amendments duly executed and
completed by the Purchasing Bank, and comply from time to
time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption and such backup
withholding tax exemption.
10. The Purchasing Bank agrees to be bound by
subsection 10.7 of the Credit Agreement relating to
confidentiality.
11. Schedule II hereto sets forth the revised
Commitments and Commitment Percentages of the Transferor Bank
and each Purchasing Bank as well as administrative
information with respect to each Purchasing Bank.
12. This Commitment Transfer Supplement shall be
governed by, and construed and interpreted in accordance
with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused
this Commitment Transfer Supplement to be executed by their
respective duly authorized officers on Schedule I hereto as
of the date set forth in Item 1 of Schedule I hereto.
<PAGE>
SCHEDULE I
TO
COMMITMENT
TRANSFER
SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR COMMITMENT
TRANSFER SUPPLEMENT
Item 1 (Date of Commitment [Insert date of Commitment
Transfer Supplement): Transfer Supplement]
Item 2 (Transferor Bank): [Insert name of Transferor
Bank]
Item 3 (Purchasing Bank[s]): [Insert name[s] of
Purchasing Bank[s]]
Item 4 (Transfer Effective [Insert Transfer Effective
Date): Date] [To be a date not
less than five Business
Days after date of
Commitment Transfer
Supplement]
Item 5 (Signatures of Parties
to Commitment Transfer
Supplement):
,
as Transferor Bank
By:
Title:
,
as a Purchasing Bank
By:
Title:
,
as a Purchasing Bank
By:
Title:
CONSENTED TO AND ACKNOWLEDGED:
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
ACCEPTED FOR RECORDATION
IN REGISTER:
CHEMICAL BANK, as Administrative
Agent
By:
Title:
<PAGE>
SCHEDULE II
TO COMMITMENT
TRANSFER
SUPPLEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
[Name of Transferor Bank] Revised Commitment Amount: $
Revised Commitment Percentage:
[Name of Purchasing Bank] New Commitment Amount: $
Address for Notices:
New Commitment Percentage:
Attn:
Telephone:
Facsimile:
[Name of Purchasing Bank] New Commitment Amount: $
Address for Notices:
New Commitment Percentage:
Attn:
Telephone:
Facsimile:
<PAGE>
EXHIBIT G
[FORM OF OPINION OF GENERAL COUNSEL
TO THE BORROWERS]
To each of the Banks parties to
the Credit Agreement referred
to below, to Chemical Bank,
as Administrative Agent, The
Chase Manhattan Bank (National
Association), as Syndication
Agent, Bank of America National
Trust and Savings Association,
as Documentation Agent, Deutsche
Bank AG Chicago Branch, as
Auction Agent, and The Toronto-
Dominion Bank, as Canadian
Administrative Agent
Deere & Company and
John Deere Capital Corporation
Gentlemen:
This opinion is furnished to you pursuant to
subsection 4.1(c) of the $500,000,000 Credit Agreement dated
as of April 5, 1995 (the "Credit Agreement") among Deere &
Company (the "Company"), John Deere Capital Corporation (the
"Capital Corporation", the Company and the Capital
Corporation being referred to herein individually as a
"Borrower" and collectively as the "Borrowers"), the Banks
parties thereto, Chemical Bank, as Administrative Agent, The
Chase Manhattan Bank (National Association), as Syndication
Agent, Bank of America National Trust and Savings
Association, as Documentation Agent, Deutsche Bank AG Chicago
Branch, as Auction Agent, The Toronto-Dominion Bank, as
Canadian Administrative Agent, the Managing Agents named
therein and the Co-Agents named therein for said Banks.
Terms defined in the Credit Agreement are used herein as
therein defined.
I am General Counsel of the Company and have acted
as counsel for the Capital Corporation in this matter. I am
familiar with the corporate history and organization of each
Borrower and of its Subsidiaries and the proceedings relating
to the authorization, execution and delivery by each Borrower
of the Credit Agreement. In that connection I have examined
or caused to have examined:
1. The Credit Agreement;
2. The documents furnished by each of the
Borrowers pursuant to Section 4 of the Credit
Agreement;
3. The Certificates of Incorporation of the
Borrowers and all amendments thereto (the
"Charters");
4. The bylaws of the Borrowers and all amendments
thereto (the "Bylaws"); and
5. Certificates of the Secretary of State of
Delaware, each dated a recent date, attesting
to the continued corporate existence and good
standing of the Borrowers in that State.
In addition, I have reviewed or caused to have
reviewed such of the corporate proceedings of the Borrowers,
and have examined such documents, corporate records, and
other instruments relating to the organization of the
Borrowers and their respective Subsidiaries and such other
agreements and instruments to which the Borrowers and their
respective Subsidiaries are parties, as I consider necessary
as a basis for the opinions hereinafter expressed. I have
assumed the due execution and delivery, pursuant to due
authorization, of the Credit Agreement by the Banks, the
Administrative Agent, the Syndication Agent, the
Documentation Agent, the Auction Agent, the Canadian
Administrative Agent, the Managing Agents and the Co-Agents,
and the authenticity of all documents submitted to me as
originals and the conformity to the original documents of all
documents submitted to me as certified, conformed or
photostatic copies.
I am qualified to practice law in the State of
Illinois and do not purport to be an expert on, and do not
express any opinion herein concerning, any laws other than
the laws of the State of Illinois, the General Corporation
Law of the State of Delaware and the Federal laws of the
United States.
Based upon the foregoing and upon such
investigation as I have deemed necessary, I am of the
following opinion:
1. Each Borrower is a corporation duly organized,
validly existing and in good standing under
the laws of the State of Delaware and has the
corporate power and authority to carry on its
business as now being conducted and to own its
properties.
2. The execution, delivery and performance by
each Borrower of the Credit Agreement are
within such Borrower's corporate powers, have
been duly authorized by all necessary
corporate action, and (i) do not contravene,
or constitute a default under the Charter or
the Bylaws of such Borrower, any judgment,
law, rule or regulation applicable to such
Borrower, or any Contractual Obligation by
which such Borrower is bound or (ii) result in
the creation of any lien, charge or
encumbrance upon any of its property or
assets. The Credit Agreement has been duly
executed and delivered on behalf of each
Borrower.
3. No authorization, approval, or other action
by, and no notice to or filing with, any
governmental authority or regulatory body is
required for the due execution, delivery and
performance by each Borrower of the Credit
Agreement.
4. There is no pending or, to the best of my
knowledge, threatened action or proceeding
against either Borrower or any of its
Subsidiaries before any court, governmental
agency or arbitrator which is likely to have a
materially adverse effect upon the financial
condition or operations of such Borrower and
its Subsidiaries taken as a whole.
I am aware that Shearman & Sterling will rely upon
the opinions set forth in paragraphs 1, 2, and 3 of this
opinion in rendering their opinion furnished pursuant to
subsection 4.1(c) of the Credit Agreement and consent
thereto.
Very truly yours,
Frank S. Cottrell
<PAGE>
EXHIBIT H
[FORM OF OPINION OF SPECIAL NEW YORK COUNSEL
TO THE BORROWERS]
To each of the Banks parties to the
Credit Agreement referred to below, to
Chemical Bank, as Administrative
Agent, The Chase Manhattan Bank
(National Association), as Syndication
Agent, Bank of America National Trust
and Savings Association, as
Documentation Agent, Deutsche Bank
AG Chicago Branch, as Auction Agent,
and The Toronto-Dominion Bank, as
Canadian Administrative Agent
Deere & Company
John Deere Capital Corporation
Ladies and Gentlemen:
This opinion is furnished to you pursuant to
subsection 4.1(c) of the $500,000,000 Credit Agreement, dated
as of April 5, 1995 (the "Credit Agreement"), among Deere &
Company (the "Company"), John Deere Capital Corporation (the
"Capital Corporation", the Company and the Capital
Corporation being referred to herein individually as a
"Borrower" and collectively as the "Borrowers"), the Banks
parties thereto, Chemical Bank, as Administrative Agent, The
Chase Manhattan Bank (National Association), as Syndication
Agent, Bank of America National Trust and Savings
Association, as Documentation Agent, Deutsche Bank AG Chicago
Branch, as Auction Agent, The Toronto-Dominion Bank, as
Canadian Administrative Agent, the Managing Agents named
therein and the Co-Agents named therein. Terms defined in
the Credit Agreement are used herein as therein defined.
We have acted as special New York counsel for the
Borrowers in connection with the preparation, execution and
delivery of the Credit Agreement.
In that connection we have examined:
(1) the Credit Agreement; and
(2) the documents furnished by each of the
Borrowers pursuant to Section 4 of the Credit Agreement.
We have assumed the due execution and delivery,
pursuant to due authorization, of the Credit Agreement by the
Banks and the Agents, the authenticity of all documents
submitted to us as originals and the conformity to the
original documents of all documents submitted to us as
certified, conformed or photostatic copies. We have also
assumed that the Banks and the Agents will perform the Credit
Agreement reasonably and in good faith and will act
reasonably and in good faith in taking action, exercising
discretion and making determinations thereunder. We have
also assumed that no Bid Loan or Negotiated Rate Loan made in
an amount of less than $2,500,000 will bear interest at a
rate greater than 25% per annum.
We are qualified to practice law in the State of
New York. We do not express any opinion herein concerning
any laws other than the laws of the State of New York and the
Federal laws of the United States. To the extent our
opinions expressed below involve conclusions as to matters
set forth in paragraph 1, 2 or 3 of the opinion of Frank S.
Cottrell, General Counsel to the Borrowers, a copy of which
is attached hereto, we have, with your permission, relied on
such opinion.
Based upon the foregoing and upon such
investigation as we have deemed necessary, we are of the
opinion that the Credit Agreement constitutes the legal,
valid and binding obligation of each Borrower enforceable
against such Borrower in accordance with its terms, subject
to (a) the effect of any applicable bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers, reorganization and moratorium) or
similar law affecting creditors' rights generally and (b) the
effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
Very truly yours,
SHEARMAN & STERLING
<PAGE>
EXHIBIT I
[FORM OF EXTENSION REQUEST]
_______________, ____
Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Attention:
Dear Sirs:
Reference is made to the $500,000,000 Credit
Agreement, dated as of April 5, 1995 among Deere & Company,
John Deere Capital Corporation, the Banks parties thereto,
Chemical Bank, as Administrative Agent, The Chase Manhattan
Bank (National Association), as Syndication Agent, Bank of
America National Trust and Savings Association, as
Documentation Agent, Deutsche Bank AG Chicago Branch, as
Auction Agent, The Toronto-Dominion Bank, as Canadian
Administrative Agent, the Managing Agents named therein and
the Co-Agents named therein (as the same may be amended,
supplemented or otherwise modified from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement
are used herein as therein defined.
This is an Extension Request pursuant to subsection
2.16 of the Credit Agreement requesting an extension of the
Termination Date to [INSERT REQUESTED TERMINATION DATE].
Please transmit a copy of this Extension Request to each of
the Banks.
Very truly yours,
DEERE & COMPANY
By:_____________________
Title:
JOHN DEERE CAPITAL CORPORATION
By:_____________________
Title:
<PAGE>
EXHIBIT J
[FORM OF TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form 1001 of
the Internal Revenue Service]
[Bank's Letterhead]
,
Deere & Company
John Deere Road
Moline, Illinois 61265
Attention: Treasurer
John Deere Capital Corporation
First National Bank Building
1 East First Street
Reno, Nevada 89501
Attention: Manager
Re: $500,000,000 Credit Agreement dated
as of April 5, 1995 with Deere & Company
and John Deere Capital Corporation
Dear Sirs:
In connection with the $500,000,000 Credit
Agreement, dated as of April 5, 1995, among Deere & Company,
John Deere Capital Corporation, the Banks parties thereto,
Chemical Bank, as Administrative Agent, The Chase Manhattan
Bank (National Association), as Syndication Agent, Bank of
America National Trust and Savings Association, as
Documentation Agent, Deutsche Bank AG Chicago Branch, as
Auction Agent, The Toronto-Dominion Bank, as Canadian
Administrative Agent, the Managing Agents named therein and
the Co-Agents named therein, we hereby represent and warrant
that [name of Bank, address] is a [name of Country]
corporation and is currently exempt from any U.S. federal
withholding tax on payments to it from U.S. sources by virtue
of compliance with the provisions of the Income Tax
Convention between the United States and [name of Country]
signed [date], [as amended]. Our fiscal year is the twelve
months ending [ ].
The undersigned (a) is a corporation organized
under the laws of [ ] whose registered business
is managed or controlled in [ ], (b) [does not
have a permanent establishment or fixed base in the United
States] [does have a permanent establishment or fixed base in
the United States but the above Agreement is not effectively
connected with such permanent establishment or fixed base],
(c) is not exempt from tax on the income in [ ]
and (d) is the beneficial owner of the income.
We enclose herewith two copies of Form 1001 of the
U.S. Internal Revenue Service.
Yours faithfully,
[NAME OF BANK]
By:
Title:
cc: Chemical Bank, as Administrative Agent
<PAGE>
EXHIBIT K
[FORM OF TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form 4224 of
the Internal Revenue Service]
[Bank's Letterhead]
____________, ____
Deere & Company
John Deere Road
Moline, Illinois 61265
Attention: Treasurer
John Deere Capital Corporation
First National Bank Building
1 East First Street
Reno, Nevada 89501
Attention: Manager
Re: $500,000,000 Credit Agreement dated
as of April 5, 1995 with Deere & Company
and John Deere Capital Corporation
Dear Sirs:
In connection with the above $500,000,000 Credit
Agreement, dated as of April 5, 1995, among Deere & Company,
John Deere Capital Corporation, the Banks parties thereto,
Chemical Bank, as Administrative Agent, The Chase Manhattan
Bank (National Association), as Syndication Agent, Bank of
America National Trust and Savings Association, as
Documentation Agent, Deutsche Bank AG Chicago Branch, as
Auction Agent, The Toronto-Dominion Bank, as Canadian
Administrative Agent, the Managing Agents named therein and
the Co-Agents named therein, we hereby represent and warrant
that [name of Bank, address] is a corporation and is entitled
to exemption from U.S. federal withholding tax on payments to
it under the Agreement by virtue of Section 1441(c)(1) of the
Internal Revenue Code of the United States of America and
Treasury Regulation Section 1.1441-4(a) thereunder.
We enclose herewith two copies of Form 4224 of the
U.S. Internal Revenue Service.
Yours faithfully,
[NAME OF BANK]
By
Title:
cc: Chemical Bank, as Administrative Agent
<PAGE>
EXHIBIT
L
[FORM OF AGREEMENT]
THIS AGREEMENT, dated as of ,
("Agreement"), among Deere & Company (the "Company"), John
Deere Capital Corporation (the "Capital Corporation"),
____________ ("New Bank") and Chemical Bank, as
Administrative Agent for the Existing Banks referred to
below.
W I T N E S S E T H :
WHEREAS, the Company, the Capital Corporation, the
several financial institutions parties thereto (the "Existing
Banks") Chemical Bank, as Administrative Agent, The Chase
Manhattan Bank (National Association), as Syndication Agent,
Bank of America National Trust and Savings Association, as
Documentation Agent, Deutsche Bank AG Chicago Branch, as
Auction Agent, The Toronto-Dominion Bank, as Canadian
Administrative Agent, the Managing Agents named therein and
the Co-Agents named therein are parties to a $500,000,000
Credit Agreement, dated as of April 5, 1995 (as the same may
have been or may hereafter be amended, supplemented or
otherwise modified, the "Credit Agreement"; terms defined
therein being used herein as therein defined);
WHEREAS, subsection 2.19 of the Credit Agreement
provides that one or more financial institutions (which may
be Existing Banks) may be added as a "Bank" or "Banks" for
purposes of the Credit Agreement upon the cancellation of all
or a portion of the Commitments pursuant to subsection
2.13(a), (b) or (c), 2.16(c) or 2.17(b) of the Credit
Agreement or the expiration of all or a portion of the
Commitments pursuant to subsection 2.16(b) of the Credit
Agreement and the execution of an agreement in substantially
the form of this Agreement;
WHEREAS, the Borrowers have cancelled or there have
expired an aggregate principal amount of Commitments equal to
$ which have not heretofore been replaced (the
"Cancelled Commitments"; the Banks that are maintaining or
have maintained the Cancelled Commitments being collectively
referred to as "Cancelled Banks"); such Cancelled Commitments
being on the date hereof, or on the date of notice of
cancellation hereof having been, utilized as follows:
Last day of
Principal Amount Interest Period
I Unused Portion N/A
II Committed Rate Loans
C/D Rate Loans
1
2
3
Eurodollar Loans
1
2
3
ABR Loans N/A
III Bid Loans
1
2
3
IV Negotiated Rate Loans
1
2
3
WHEREAS, the cancellation of the Cancelled
Commitments is effective in accordance with the Credit
Agreement; and
WHEREAS, [the Borrowers desire the New Bank to
become, and the New Bank is agreeable, to becoming, a "Bank"
for purposes of the Credit Agreement] [the New Bank is an
Existing Bank and the Borrowers desire the New Bank to
increase, and the New Bank is agreeable to increasing, its
Commitment] on the terms contained herein.
NOW, THEREFORE, in consideration of the premises
and mutual covenants contained herein, the parties hereto
agree as follows:
1. Benefits of Agreement. The Borrowers, the
Administrative Agent and the New Bank hereby [agree that on
and as of the date hereof the New Bank shall be] [confirm
that the New Bank is] a "Bank" for all purposes and shall
[continue to] be bound by and entitled to the benefits of the
Credit Agreement [as if the New Bank had been named on the
signature pages thereof], provided that the New Bank shall
not assume and shall, except as herein provided, have no
obligations in respect of any Loans outstanding on the date
hereof and made by any [Existing Bank.] [Cancelled Bank.]*
2. Commitment of New Bank. The Borrowers, the
Administrative Agent and the New Bank hereby agree that on
and as of the dates set forth below the New Bank shall
replace, as specified herein, % (such percentage being
referred to as the New Bank's "Percentage") of each
utilization of the Cancelled Commitments [set forth in the
third recital hereof] [set forth under the caption "Committed
Rate Loans"] and that the aggregate Commitment of the New
Bank shall on and as of the date hereof be $ **. In
connection therewith, the Borrowers, the Administrative Agent
and the New Bank hereby agree as follows***:
(i) for purposes of determining such New Bank's
pro rata share of each Committed Rate Loan borrowing
advanced on or after the date hereof such Bank's
Commitment shall be equal to $[same as above];
(ii) the unused and available portion of such New
Bank's Commitment shall be deemed utilized by its
Percentage of the Committed Rate Loans made by the
Cancelled Banks and listed in the third recital hereof.
In furtherance thereof, the unused and available portion
of such New Bank's Commitment shall, on the earlier of
(x) the last day of each Interest Period specified for
each outstanding Committed Rate Loan in the third
recital hereof (and the payment in full to the Cancelled
Banks of the principal thereof and accrued interest
thereon) and (y) the prepayment of the principal of such
Loans together with accrued interest thereon,
automatically and without any further action by any
party increase by an amount equal to the New Bank's
Percentage of such Loan; and
(iii) [(A)] [concurrently with the execution
hereof the New Bank shall disburse to each Borrower in
immediately available funds such amount as shall be
necessary so that the ratio which each Bank's
outstanding ABR Loans bears to all of the outstanding
ABR Loans equals the ratio which each Bank's Commitment
(determined, for the New Bank, in accordance with clause
(i) above) bears to all of the Commitments (determined,
for the New Bank, in accordance with the immediately
foregoing parenthetical);]
[(B)] [on the last day of each Interest Period for
each outstanding Eurodollar Loan and C/D Rate Loan,
automatically and without any further action by either
Borrower, the New Bank shall disburse to each Borrower in
immediately available funds such amounts as shall be
necessary so that the ratio which each Bank's outstanding
Eurodollar Loans and C/D Rate Loans, bears to all of the
outstanding Eurodollar Loans and C/D Rate Loans,
respectively, equals the ratio which each Bank's Commitment
(determined, for the New Bank, in accordance with clause (i)
hereof) bears to all of the Commitments (determined, for the
New Bank, in accordance with the immediately foregoing
parenthetical);]
[(C)] [Funding of outstanding Bid Loans of
Cancelled Banks]
[(D)] [Funding of outstanding Negotiated Rate Loans
of Cancelled Banks].*
3. Representation and Warranty of Borrowers. The
Borrowers hereby represent and warrant that after giving
effect to the provisions of paragraph 2 hereof the aggregate
principal amount of the Commitments of all Banks (including,
without limitation, the Commitment of the New Bank but
excluding the cancelled or expired portion of the Commitments
of the Cancelled Banks) under the Credit Agreement do not
exceed the aggregate principal amount of the Commitments in
effect immediately prior to the cancellation referred to in
the third recital hereof.
4. Confidentiality. The New Bank agrees to
[continue to] be bound by the provisions of subsection 10.7
of the Credit Agreement.
[5. Taxes. The New Bank (i) represents to the
Administrative Agent and the Borrowers that [it is
incorporated under the laws of the United States or a state
thereof][under applicable law and treaties no taxes will be
required to be withheld by the Administrative Agent or the
Borrowers with respect to any payments to be made to such New
Bank in respect of the Loans], (ii) represents that it has
furnished to the Administrative Agent and the Borrowers (A)
[a statement that it is incorporated under the laws of the
United States or a state thereof][a letter in duplicate in
the form of Exhibit [J][K] to the Credit Agreement and two
duly completed copies of United States Internal Revenue
Service Form [4224][1001][successor applicable form],
certifying that such New Bank is entitled to receive payments
under the Credit Agreement without deduction or withholding
of any United States federal income taxes], and (B) [an
Internal Revenue Service Form [W-8][W-9]] [successor
applicable form] to establish an exemption from United States
backup withholding tax, and (iii) agrees to provide the
Administrative Agent and the Borrowers a new Form
[4224][1001] and Form [W-8][W-9], or successor applicable
form or other manner of certification, on or before the date
that any such letter or form expires or becomes obsolete or
after the occurrence of any event requiring a change in the
most recent letter and form previously delivered by it,
certifying in the case of a Form [1001][4224] that it is
entitled to receive payments under the Credit Agreement
without deduction or withholding of any United States federal
income tax, and in the case of a Form [W-8][W-9] establishing
exemption from United States backup withholding tax.]
[5][6]. Miscellaneous. (a) This Agreement may be
executed by the parties hereto in separate counterparts and
all of the counterparts taken together shall constitute one
and the same instrument and shall be effective only upon
receipt by the Administrative Agent of all of the
counterparts.
(b) This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the
State of New York.<PAGE>
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered as of the day and year
first above written.
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
[NAME OF NEW BANK]
By:
Title:
[Address]
Telephone:
Facsimile:
CHEMICAL BANK, as
Administrative Agent
By:
Title:
<PAGE>
EXHIBIT M
[FORM OF BID LOAN OR NEGOTIATED RATE LOAN NOTE]
PROMISSORY NOTE
$__________ New York,
New York
___________
__, ____
FOR VALUE RECEIVED, the undersigned, [DEERE &
COMPANY] [JOHN DEERE CAPITAL CORPORATION], a Delaware
corporation (the "Borrower"), hereby promises to pay on
[insert maturity date or dates] to the order of
________________ (the "Bank") at the office of [Chemical Bank
located at 270 Park Avenue, New York, New York 10017 -- for
Bid Loan Note] [Name and address of Bank -- for Negotiated
Rate Loan Note], in lawful money of the United States of
America and in immediately available funds, the principal sum
of ______________DOLLARS ($____________). The undersigned
further agrees to pay interest in like money at such office
on the unpaid principal amount hereof from time to time from
the date hereof [at the rate of ___% per annum -- for Bid
Loan Note] [specify rate for Negotiated Rate Loan Note]
(calculated on the basis of a year of 360 days and actual
days elapsed) until the due date hereof (whether at the
stated maturity, by acceleration, or otherwise) and
thereafter at the rates determined or agreed in accordance
with subsection 2.2(e) of the $500,000,000 Credit Agreement,
dated as of April 5, 1995 (the "Credit Agreement"), among the
Borrower, [Deere & Company] [John Deere Capital Corporation],
the Bank, the other financial institutions parties thereto,
Chemical Bank, as Administrative Agent, The Chase Manhattan
Bank (National Association), as Syndication Agent, Bank of
America National Trust and Savings Association, as
Documentation Agent, Deutsche Bank AG Chicago Branch, as
Auction Agent, The Toronto-Dominion Bank, as Canadian
Administrative Agent, the Managing Agents named therein and
the Co-Agents named therein. Interest shall be payable on
_______________. This Note may be prepaid pursuant to the
provisions of subsection 2.6 of the Credit Agreement.
This Note is one of the [Bid] [Negotiated Rate
Loan] Notes referred to in, is subject to and is entitled to
the benefits of, the Credit Agreement, which Credit
Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the occurrence of
any one or more of the Events of Default specified in the
Credit Agreement.
Terms defined in the Credit Agreement are used
herein with their defined meanings unless otherwise defined
herein. This Note shall be governed by, and construed and
interpreted in accordance with, the law of the State of
New York.
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:_________________________
Title:
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . .
. . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . .
. . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . .
. . . . 16
SECTION 2. THE COMMITTED RATE LOANS; THE BID
LOANS; THE NEGOTIATED RATE LOANS;
AMOUNT AND TERMS . . . . . . . . . . . . . . . . .
. . . . 17
2.1 The Committed Rate Loans. . . . . . . . . . . . . .
. . . . 17
2.2 The Bid Loans; the Negotiated Rate Loans. . . . . .
. . . . 18
2.3 Loan Accounts . . . . . . . . . . . . . . . . . . .
. . . . 23
2.4 Fees. . . . . . . . . . . . . . . . . . . . . . . .
. . . . 23
2.5 Termination or Reduction of Commitments;
Cancellation of Capital Corporation
as Borrower . . . . . . . . . . . . . . . . . . .
. . . . 24
2.6 Optional and Mandatory Prepayments. . . . . . . . .
. . . . 26
2.7 Minimum Amount of Certain Loans . . . . . . . . . .
. . . . 27
2.8 Committed Rate Loan Interest Rate and Payment
Dates . . . . . . . . . . . . . . . . . . . . . .
. . . . 27
2.9 Conversion and Continuation Options . . . . . . . .
. . . . 28
2.10 Computation of Interest and Fees. . . . . . . . . .
. . . . 28
2.11 Inability to Determine Interest Rate. . . . . . . .
. . . . 29
2.12 Pro Rata Treatment and Payments . . . . . . . . . .
. . . . 31
2.13 Requirements of Law . . . . . . . . . . . . . . . .
. . . . 35
2.14 Indemnity . . . . . . . . . . . . . . . . . . . . .
. . . . 39
2.15 Non-Receipt of Funds by the Administrative
Agent . . . . . . . . . . . . . . . . . . . . . .
. . . . 39
2.16 Extension of Termination Date . . . . . . . . . . .
. . . . 40
2.17 Foreign Taxes . . . . . . . . . . . . . . . . . . .
. . . . 41
2.18 Confirmations . . . . . . . . . . . . . . . . . . .
. . . . 43
2.19 Replacement of Cancelled Banks. . . . . . . . . . .
. . . . 43
2.20 Certain Notices . . . . . . . . . . . . . . . . . .
. . . . 44
SECTION 3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . .
. . . . 44
3.1 Financial Condition . . . . . . . . . . . . . . . .
. . . . 45
3.2 Corporate Existence . . . . . . . . . . . . . . . .
. . . . 45
3.3 Corporate Power; Authorization; Enforceable
Obligations . . . . . . . . . . . . . . . . . . .
. . . . 45
3.4 No Legal Bar. . . . . . . . . . . . . . . . . . . .
. . . . 46
3.5 No Material Litigation. . . . . . . . . . . . . . .
. . . . 46
3.6 Taxes . . . . . . . . . . . . . . . . . . . . . . .
. . . . 46
3.7 Margin Regulations. . . . . . . . . . . . . . . . .
. . . . 46
3.8 Pari Passu Ranking. . . . . . . . . . . . . . . . .
. . . . 46
3.9 No Defaults . . . . . . . . . . . . . . . . . . . .
. . . . 47
3.10 Use of Proceeds . . . . . . . . . . . . . . . . . .
. . . . 47
SECTION 4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . .
. . . . 47
4.1 Conditions to Initial Loan. . . . . . . . . . . . .
. . . . 47
4.2 Conditions to All Loans . . . . . . . . . . . . . .
. . . . 48
SECTION 5. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . .
. . . . 49
5.1 Financial Statements. . . . . . . . . . . . . . . .
. . . . 49
5.2 Certificates; Other Information . . . . . . . . . .
. . . . 50
5.3 Company Indenture Documents . . . . . . . . . . . .
. . . . 50
5.4 Capital Corporation Indenture Documents . . . . . .
. . . . 50
5.5 Notice of Default . . . . . . . . . . . . . . . . .
. . . . 50
5.6 Ownership of Capital Corporation Stock. . . . . . .
. . . . 51
5.7 Employee Benefit Plans. . . . . . . . . . . . . . .
. . . . 51
SECTION 6. NEGATIVE COVENANTS OF THE COMPANY. . . . . . . . . .
. . . . 51
6.1 Company May Consolidate, etc., Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . . .
. . . . 51
6.2 Limitation on Liens . . . . . . . . . . . . . . . .
. . . . 52
6.3 Limitations on Sale and Lease-back
Transactions. . . . . . . . . . . . . . . . . . .
. . . . 56
6.4 Consolidated Tangible Net Worth . . . . . . . . . .
. . . . 56
SECTION 7. NEGATIVE COVENANTS OF THE CAPITAL
CORPORATION. . . . . . . . . . . . . . . . . . . .
. . . . 56
7.1 Fixed Charges Ratio . . . . . . . . . . . . . . . .
. . . . 57
7.2 Consolidated Senior Debt to Consolidated
Capital Base. . . . . . . . . . . . . . . . . . .
. . . . 57
7.3 Limitation on Liens . . . . . . . . . . . . . . . .
. . . . 57
7.4 Consolidation; Merger . . . . . . . . . . . . . . .
. . . . 58
SECTION 8. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . .
. . . . 59
SECTION 9. THE AGENTS . . . . . . . . . . . . . . . . . . . . .
. . . . 62
9.1 Appointment . . . . . . . . . . . . . . . . . . . .
. . . . 62
9.2 Delegation of Duties. . . . . . . . . . . . . . . .
. . . . 62
9.3 Exculpatory Provisions. . . . . . . . . . . . . . .
. . . . 63
9.4 Reliance by Agents. . . . . . . . . . . . . . . . .
. . . . 63
9.5 Notice of Default . . . . . . . . . . . . . . . . .
. . . . 63
9.6 Non-Reliance on Agents and Other Banks. . . . . . .
. . . . 64
9.7 Indemnification . . . . . . . . . . . . . . . . . .
. . . . 64
9.8 Agents in their Individual Capacities . . . . . . .
. . . . 65
9.9 Successor Agents. . . . . . . . . . . . . . . . . .
. . . . 65
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . .
. . . . 65
10.1 Amendments and Waivers . . . . . . . . . . . . . .
. . . . 65
10.2 Notices. . . . . . . . . . . . . . . . . . . . . .
. . . . 66
10.3 No Waiver; Cumulative Remedies . . . . . . . . . .
. . . . 68
10.4 Payment of Expenses and Taxes. . . . . . . . . . .
. . . . 68
10.5 Successors and Assigns; Participations;
Purchasing Banks. . . . . . . . . . . . . . . . .
. . . . 70
10.6 Adjustments. . . . . . . . . . . . . . . . . . . .
. . . . 75
10.7 Confidentiality. . . . . . . . . . . . . . . . . .
. . . . 75
10.8 Counterparts . . . . . . . . . . . . . . . . . . .
. . . . 76
10.9 Governing Law. . . . . . . . . . . . . . . . . . .
. . . . 76
10.10 Waiver with Respect to Existing Credit
Facilities. . . . . . . . . . . . . . . . . . . .
. . . . 76
10.11 Consent to Jurisdiction and Service of
Process . . . . . . . . . . . . . . . . . . . . .
. . . . 77
SCHEDULES:
Schedule I Terms of Subordination
Schedule II Commitments
Schedule III Addresses for Notices
EXHIBITS:
Exhibit A Form of Borrowing Notice
Exhibit B Form of Bid Loan Request
Exhibit C Form of Bid Loan Offer
Exhibit D Form of Bid Loan Confirmation
Exhibit E Form of Loan Assignment
Exhibit F Form of Commitment Transfer Supplement
Exhibit G Form of Opinion of General Counsel to the
Borrowers
Exhibit H Form of Opinion of Special New York Counsel
to the Borrowers
Exhibit I Form of Extension Request
Exhibit J Form of Form 1001 Tax Letter
Exhibit K Form of Form 4224 Tax Letter
Exhibit L Form of Agreement
Exhibit M Form of Promissory Note
<PAGE>
[CONFORMED COPY]
DEERE & COMPANY
JOHN DEERE CAPITAL CORPORATION
$500,000,000
CREDIT AGREEMENT
Dated as of April 5, 1995
CHEMICAL BANK,
as Administrative Agent and as a Managing Agent
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION),
as Syndication Agent and as a Managing Agent
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
as Documentation Agent and as a Managing Agent
DEUTSCHE BANK AG CHICAGO BRANCH,
as Auction Agent and as a Managing Agent
THE TORONTO-DOMINION BANK,
as Canadian Administrative Agent and as a Managing Agent
EXHIBIT 4.2
U.S. $612,500,000
LOAN AGREEMENT
between
JOHN DEERE LIMITED
- and -
JOHN DEERE FINANCE LIMITED
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
ROYAL BANK OF CANADA
THE TORONTO-DOMINION BANK
- and -
THE TORONTO-DOMINION BANK as Agent
Dated as of April 5, 1995
<PAGE>
TABLE OF CONTENTS
1. INTERPRETATION
1.1 Definitions . .. . . . . . . . . . . . . . . . . 2
1.2 Computation of Time Period. . . . . . . . . . 19
1.3 General Interpretation. . . . . . . . . . . . 19
1.4 Generally Accepted Accounting Principles. . . 19
1.5 Actions on Days Other than Banking Days . . . 19
1.6 Headings and Table of Contents. .. . . . . . . 20
1.7 Dollars . . . . . . . . . . . . . . . . . . . 20
1.8 Effective Date or Time. . . . . . . . . . . . 20
2. CREDIT FACILITY
2.1 Establishment . . .. . . . . . . . . . . . . . 20
2.2 Purposes. . . . .. . . . . . . . . . . . . . . 20
2.3 Manner of Borrowing . . . . . . . . . . . . . 20
2.4 Drawdown, Conversion and Rollover
Restrictions . . . . .. . . . . . . . . . . . 20
2.5 Drawdown Notice .. . . . . . . . . . . . . . . 21
2.6 Irrevocability. . .. . . . . . . . . . . . . . 22
2.7 Cancellation or Reduction of Credit Facility
or Commitments . . . . . . . . . . . . . . . . 22
2.8 (a) Fixed Rate Loans. . . . . . . . . . . . . . . 22
(b) Operating Facility Loan . . . . . . . . . . . 23
2.9 Failure of a Borrower to Give Notice. .. . . . 24
2.10 Rollover of LIBOR Loans . . . . . . . . . . . 25
2.11 Conversion Options. . . . . . . . . . . . . . 25
2.12 Prepayment of Excess over Loan Facility .. . . 25
2.13 Optional Payments of Principal. . . . . . . . 26
2.14 Mandatory Payments of Principal . . .. . . . . 27
2.15 Loan Accounts . . . . . . .. . . . . . . . . . 28
3. INTEREST
3.1 Payment of Interest . . . . . . . . . . . . . 28
3.2 Other Arrears . . . . . . . . . . . . . . . . 29
3.3 Compounding of Interest . . . . . . . . . . . 30
4. CHANGES IN CIRCUMSTANCES
4.1 Increase in Costs . . . . . . . . . . . . . . 30
4.2 Conversion. . . . . . . . . . . . . . . . . . 33
4.3 Repayment . . . . . . .. . . . . . . . . . . . 33
<PAGE>
5. IMPOSSIBILITY OF MAKING LIBOR LOANS
5.1 Mandatory Conversion. . . .. . . . . . . . . . 35
5.2 Termination of Facility for LIBOR Loans .. . . 35
5.3 Lender Covenants. . . . . . . . . . . . . . . 36
5.4 Repayment . . . . . . . . . . . . . . . . . . 36
6. BANKERS' ACCEPTANCE
6.1 Bankers' Acceptance . . . . . . . . . . . . . 36
7. PAYMENTS
7.1 Place and Manner of Payments. . . .. . . . . . 39
7.2 Indemnity . . . . . . . . . . . . . . . . . . 39
8. REPRESENTATIONS AND WARRANTIES
8.1 Due Incorporation . . . . . . . . . . . . . . 40
8.2 Power and Authority to Own Assets and to
Carry on Business. . .. . .. . . . . . . . . . 41
8.3 Power and Authority to Enter into this
Agreement. .. . . . . . . . . . . . . . . . . 41
8.4 Licences. . . . . . . . . . . . . . . . . . . 41
8.5 Litigation. . . . . . . . . . . . . . . . . . 41
8.6 Burdensome Provisions . . . . . . . . . . . . 42
8.7 Financial Statements. . . . . .. . . . . . . . 42
8.8 Full Disclosure . . . . . . . . . . . . . . . 42
8.9 No Breach because of Agreement. . . . . . . . . 42
8.10 Ownership of Assets . . . . . . . . . . . . . 42
8.11 Consents. . . . . . . . . . . .. . . . . . . . 43
8.12 Credit Policies . . . . . . . . . . . . . . . 43
9. CONDITIONS PRECEDENT
9.1 Closing . . . . . . . . . . .. . . . . . . . . 44
9.2 Conditions Precedent to Establishment of
Credit Facility. . . . . . . . . . . . . . . 44
9.3 Conditions Precedent to Drawdowns . . . . . . 45
10. POSITIVE COVENANTS
10.1 Corporate Existence . . . . . . . .. . . . . . 46
10.2 Financial, Monthly and Other Statements . . . 46
10.3 Payment . . . . . . . . . . . .. . . . . . . . 46
10.4 Ownership . . . . . . . . . . . . . . . . . . 47
10.5 Certificates.. . . . . . . . . . . . . . . . . 47
10.6 Information about Litigation.. . . . . . . . . 47
10.7 Insurance . . . . . . . . . . . . . . . . . . 47
10.8 Notice of Default . . . . . . . . . . . . . . 47
10.9 Licences. . . . . .. . . . . . . . . . . . . . 47
10.10 Information and Inspection . . . . . . . 48
10.11 Change of Auditors . . . .. . . . . . . . 48
10.12 Ratios . . . . . . . . . . . . . . . . . 48
10.13 Sale of Eligible Retail Receivables
etc. . . . . . . . . . . . . . . . . . . . . . 49
11. NEGATIVE COVENANTS
11.1 Reorganization. . . . . . . . . .. . . . . . . 49
11.2 Negative Pledge . . . . . . . . . . . . . . . 50
11.3 Subordination Agreement . . . . . . . . . . . 50
12. LIMITATIONS ON PAYMENTS
12.1 Payments in General . . . .. . . . . . . . . . 51
12.2 Permitted Payments. .. . . . . . . . . . . . . 51
13. DEFAULT AND ENFORCEMENT
13.1 Events of Default .. . . . . . . . . . . . . . 52
13.2 Remedies on Default . .. . . . . . . . . . . . 56
13.3 Remedies Cumulative . . . . . . .. . . . . . . 57
14. THE AGENT AND THE ADMINISTRATION OF THE LOANS
14.1 Authorization . . . . . . . . . . . . . . . . 57
14.2 Dealings by Borrowers with Agent. . . . . . . 57
14.3 Duties and Obligations of Agent .. . . . . . . 58
14.4 Agent's Authority to Deal with Borrowers . . . 59
14.5 Indemnification . . . . . . . .. . . . . . . . 59
14.6 Successor Agent . . . . . . . . . . . . . . . 60
14.7 Procedure for Loans Other than Bankers'
Acceptance . . .. . . . . . . . . . . . . .. . 60
14.8 Procedure for Bankers' Acceptances. . . . . . 62
14.9 Failure of Lender to Advance Loan .. . . . . . 64
14.10 Payments in respect of Loans. . . . . . . 64
14.11 Redistribution of Payments . . . . . . . 65
14.12 Other Payments . . . . . .. . . . . . . . 67
14.13 Action by and Consent of Lenders:
Waiver and Amendments. . . . . . . . . . 67
14.14 Enforcement. . . . . . . .. . . . . . . . 69
14.15 Set-off. . . . . . . . . . . . . . . . . 70
14.16 Independent Appraisal. .. . . . . . . . . 70
14.17 Liability of Lenders inter se. . . . . . 71
14.18 Several Liability. . . .. . . . . . . . . 71
14.19 Agency Fees. . . . . . . . . . . . . . . 71
15. GENERAL
15.1 Payment of Expenses . . . . . . . . . . . . . 72
15.2 Binding Effect and Assignment .. . . . . . . . 72
15.3 Benefit of Agreement. . . . . . . . . . . . . 73
15.4 Entire Agreement. . . . . . .. . . . . . . . . 74
15.5 Amendment . . . . . . . . . . . . . . . . . . 74
15.6 Waiver. . .. . . . . . . . . . . . . . . . . . 74
15.7 Communication . . . .. . . . . . . . . . . . . 74
15.8 Confidentiality . . . . . . . . . . . . . . . 76
15.9 Survival of Representations, Warranties and
Covenants. . . . . .. . . . . . . . . . . . . . 76
15.10 Further Assurances . . . . . . . .. . . . 77
15.11 Severability . . . . . . . . . . . . . . 77
15.12 Time of the Essence. . . . . . . . . . . 77
15.13 Governing Law. . .. . . . . . . . . . . . 77
15.14 Currency of Judgment or Payment. . . . . 77
15.15 Foreign Taxes. . . . . . .. . . . . . . . 77
15.16 Consent to Jurisdiction and Service of
Process. . . . . . . . . . . . . . . . .. . . 78
15.17 Interconnection to USD Agreement . . . . 79
15.18 Environmental Matters. . .. . . . . . . . 79
15.19 Execution in Counterparts. . . . . . . . 80
SCHEDULE A . . . . . . . . . . . . . . . . . . . . . . .
.CONVERSION NOTICE
SCHEDULE B . . . . . . . . . . . . . . . . . . . . . . . .
.DRAWDOWN NOTICE
SCHEDULE C . . . . . . . . . . . . . . . . . . . . . . . . . . .
.GUARANTEE
SCHEDULE D . . . . . . . . . . . . . . . . . . . . . . . .
REPAYMENT NOTICE
SCHEDULE E . . . . . . . . . . . . . . . . . . . . . . . .
.ROLLOVER NOTICE
SCHEDULE F . . . . . . . . . . . . . . . . . . . . .SUBORDINATION
AGREEMENT
SCHEDULE G . . . . . . . . . . . . . . OUTSTANDING LITIGATION -
SECTION 8.5
SCHEDULE H . . . . . . . . . . . . . . . OPINION OF FASKEN
CAMPBELL GODFREY
SCHEDULE I . . . . . . . . . . . . . . . . . . . OPINION OF DEERE
& COMPANY
SCHEDULE J . . . . . . . . . .OPINION OF TORY TORY DESLAURIERS &
BINNINGTON
SCHEDULE K . . . . . . . . . . . .FORM OF MONTHLY REPORTS -
SECTION 10.2(C)<PAGE>
THIS LOAN AGREEMENT made as of the 5th day of April,
1995
B E T W E E N :
JOHN DEERE LIMITED, a corporation
incorporated under the laws of Canada,
("Deere Canada")
OF THE FIRST PART;
- and -
JOHN DEERE FINANCE LIMITED, a
corporation incorporated under the
laws of Canada,
("Deere Finance")
OF THE SECOND PART;
(the parties of the First and Second Parts being
herein called the "Borrowers")
- and -
CANADIAN IMPERIAL BANK OF COMMERCE, ROYAL BANK OF
CANADA, AND THE TORONTO-DOMINION BANK,
(collectively the "Lenders")
OF THE THIRD PART;
- and -
THE TORONTO-DOMINION BANK,
(the "Agent")
OF THE FOURTH PART.
<PAGE>
WHEREAS the Lenders have agreed with the Borrowers to
make available to the Borrowers financing by way of a committed
revolving loan facility in the aggregate principal amount of up
to U.S. $612,500,000, upon and subject to the terms and
conditions of this agreement; and
WHEREAS all necessary resolutions have been passed by
the board of directors of each of the Borrowers and all other
proceedings have been taken and all conditions have been complied
with to authorize the execution and delivery of this agreement
and to make the same valid and binding upon each of the
Borrowers;
NOW THEREFORE in consideration of the premises, the
parties hereto hereby covenant and agree as follows:
1. INTERPRETATION
1.1 Definitions. In this agreement and the schedules
hereto,
"Agreement", "this Agreement", "the Agreement,
"hereto", "hereof", "herein", "hereby", "hereunder" and similar
expressions mean or refer to the whole of this Agreement as
amended or restated from time to time and any agreement or
instrument supplemental or ancillary hereto or in implementation
hereof;
"Affiliate" means "affiliate" within the meaning of the
Business Corporations Act (Ontario) as in force on the effective
date hereof;
"All-in Bankers' Acceptances" and "All-in Bankers'
Acceptance Rate" shall have the meanings attributed thereto in
subsection 6.1(c) below;
"Affiliated USD Bank" means as to each Lender, the USD
Bank set forth opposite its name below:
Lender <PAGE>
Affiliated USD Bank<PAGE>
Canadian Imperial Bank of
Commerce
Royal Bank of Canada
The Toronto-Dominion Bank
<PAGE>
Canadian Imperial Bank of
Commerce
Royal Bank of Canada
Toronto Dominion (Texas), Inc.
<PAGE>
"BA Branch" means the branch or office designated from
time to time in writing to the Agent by each Lender with the
consent of the Borrowers (which consent shall not be unreasonably
withheld) as the branch or office at which it will accept the
Bankers' Acceptances (other than, for greater certainty, All-in
Bankers' Acceptances) which it is required to accept hereunder;
"Banking Day" means any day on which the main branch of
the Agent is open for domestic and foreign exchange business in
Toronto, Canada, and, in the case of any determination or payment
to be made in respect of a LIBOR Loan, in each of London, England
and New York, New York, U.S.A., and, in the case of any
determination or payment to be made in respect of a USBR Loan, in
New York, New York, U.S.A.;
"Bankers' Acceptances" means drafts of a Borrower drawn
in Canadian Dollars and accepted by the Lenders in accordance
with the provisions of Article 6 including, for greater
certainty, All-in Bankers' Acceptances;
"Borrower" means each of the Borrowers or either of
them, as the context requires, and, when pluralized, means both
Borrowers and for greater certainty includes any Person which
becomes a Borrower hereunder pursuant to a Permitted
Reorganization;
"CEFC" means Canadian Equipment Finance Corporation, a
corporation incorporated under the laws of Canada;
"Canadian Dollars", "Cdn. Dollars" and "Cdn. $" means
lawful currency of Canada;
"Canadian LIBOR" means, in respect of any Interest
Period, the rate of interest per annum (calculated on the basis
of a 360 day year), as determined by The Toronto-Dominion Bank,
rounded upward, if necessary, to the nearest 1/16th of 1%, quoted
at approximately 11:00 a.m. (Toronto time) on the day which is
two Banking Days prior to the first day of that Interest Period,
at which it may make deposits available to prime lending banks in
freely exchangeable currencies, including Canadian Dollars and
U.S. Dollars, in an amount substantially equal to the amount of
the Canadian LIBOR Loan made by the Lenders to which such
Interest Period applies in the London Interbank Eurodollar market
for a period equal to such Interest Period; provided that if
quotes for deposits for currencies other than Canadian Dollars
are obtained, Canadian LIBOR shall be determined by adding to the
quote the sum of the cost of converting the quoted currency into
Canadian Dollars and fully hedging the principal amount of such
deposits and all interest thereon for the applicable Interest
Period.
"Canadian LIBOR Loan" means at any particular time any
loan on which interest is then calculated by reference to
Canadian LIBOR;
"Capital Lease" means any lease of property, real or
personal (other than any lease of business premises), in respect
of which the present value of the minimum rental commitment is
required, in accordance with Historical GAAP, to be capitalized
in the balance sheet of the lessee;
"Committed USD Loan" means a "Committed Rate Loan"
under the USD Agreement;
"Commitment" in the case of each Lender hereunder
means, at any time, the amount, from time to time, of the
"Commitment" of such Lender's Affiliated USD Bank under the USD
Agreement, as reduced pursuant to Section 2.7, Section 4.3,
Section 5.4 or Section 15.15 below;
"Commitment Ratio" in the case of each Lender hereunder
means, from time to time, the ratio obtained when that Lender's
Commitment is divided by the Credit Facility Amount;
"Committed Global Exposure" means, with respect to any
Lender, at any particular time, an amount equal to the sum of (a)
the aggregate unpaid principal amount at such time of all
Committed USD Loans made by such Lender's Affiliated USD Bank,
and (b) the Equivalent Amount in U.S. Dollars of the aggregate
unpaid principal amount of all Loans made by such Lender (other
than Operating Facility Loans and Excluded Loans made by such
Lender);
"Conversion" means a conversion of a Loan under
Section 2.11;
"Conversion Date" means the date notified to the Agent
by the Borrower in accordance with Section 2.11 as being the date
on which the Borrower has elected to convert one type of Loan
into another type of Loan and which shall be a Banking Day;
"Conversion Notice" means a notice substantially in the
form of Schedule A hereto to be given to the Agent by the
Borrower pursuant to Section 2.11;
"Credit Facility" means the credit facility in the
maximum principal amount of U.S. $612,500,000 which is being
extended by the Lenders to the Borrowers hereunder;
"Credit Facility Amount" means at any time the
aggregate amount of the Commitments at such time but not in
excess of U.S. $612,500,000;
"Deere Capital" means John Deere Capital Corporation, a
corporation incorporated pursuant to the laws of the State of
Delaware, U.S.A., and its successors and assigns which are
permitted under the USD Agreement;
"Deere Group" means (i) Deere Canada and (ii) Deere
Finance and (iii) any Subsidiary of Deere U.S. provided that such
Subsidiary: (A) is incorporated under the laws of Canada or a
Province thereof, (B) carries on a business which is, in the
opinion of the Borrowers acting reasonably, substantially similar
to the business, or a significant part thereof, carried on at the
date hereof by Deere U.S., Deere Canada or Deere Finance or their
respective Affiliates, (C) carries on and will carry on its
business substantially in Canada, and (D) has become a Guarantor;
provided that no Person shall become a member of the Deere Group
if, immediately after such Person became a member of the Deere
Group, a Default or Event of Default would exist hereunder;
provided, further, that a member of the Deere Group which is
party to a Permitted Reorganization shall continue to be such a
member; and, provided, however, that for greater certainty there
shall be excluded from the Deere Group any Guarantor specified in
the proviso to Section 13.1 hereof and any Guarantor with respect
to which a notice has been given pursuant to the proviso in the
definition of "Guarantor";
"Deere U.S." means Deere & Company, a corporation
incorporated pursuant to the laws of the State of Delaware,
U.S.A., and its successors and assigns which are permitted under
the USD Agreement;
"Default" means an event which, with the giving of
notice or lapse of time or both, would constitute an Event of
Default;
"Designated Branch" means the branch or office of the
Agent designated from time to time by the Agent with the consent
of the Borrowers (which consent shall not be unreasonably
withheld) as the branch or office at which it will make funds
available to the Borrowers pursuant to subsection 14.7(c) or such
other branch or branches or office or offices of the Agent as the
Borrowers and the Agent may agree to;
"Drawdown" means a drawdown of a Prime Rate Loan, LIBOR
Loan or USBR Loan or the acceptance of a Bankers' Acceptance
(other than an All-in Bankers' Acceptance) under the Credit
Facility;
"Drawdown Date" means the date on which a Drawdown is
made by a Borrower pursuant to the provisions of Article 2 and
which shall be a Banking Day;
"Drawdown Notice" means a notice substantially in the
form of Schedule B hereto to be given to the Agent by the
Borrower pursuant to Section 2.5;
"Eligible Inventory" means, at any particular time, the
value of the respective inventories owned by any member of the
Deere Group of finished goods, work-in-process and raw materials,
existing at that time and determined in accordance with
Historical GAAP, provided, however, that none of the following
categories of inventory shall be taken into account in
determining Eligible Inventory:
(i) any inventory which is consigned to a member of
the Deere Group by any Person other than a member
of the Deere Group;
(ii) any inventory which is subject to a title
retention agreement in favour of the vendor
thereof if not a member of the Deere Group;
(iii) any inventory situate outside Canada other
than inventory consigned by a member of the
Deere Group to an Affiliate of such member of
the Deere Group in the United States;
(iv) any inventory which is subject to any Mortgage;
and
(v) any inventory referred to in the proviso to
clause 12.1(b)(i);
provided that, for greater certainty, no inventory shall be
included above if the proceeds of sale, rental or lease thereof
are included in Eligible Retail Receivables or Eligible Wholesale
Receivables;
"Eligible Retail Receivables" means, at any particular
time, the aggregate outstanding balances, net of deferred finance
income and allowance for credit losses, of all retail receivables
owned by any member of the Deere Group representing unconditional
obligations to pay, arising from sales, rentals or leases by a
dealer or other Person in the ordinary course of its business
and, from and after the time a Person becomes a member of the
Deere Group, in accordance in all material respects with the
established credit policies of the Deere Group as they exist at
the effective time of this agreement, except as such policies may
be amended in any material respect by the Deere Group with the
written consent of the Majority Lenders, not to be unreasonably
withheld (provided that any Lender which fails to disapprove in
writing any such amendment within 30 days after having received
written notice from the Borrowers of such amendment shall be
deemed to have consented to any such amendment), as such
receivables exist at that time and as determined in accordance
with Historical GAAP, provided, however, that in no event shall
the outstanding balance of any receivable be taken into account
in determining Eligible Retail Receivables if:
(i) at that time any amount owing pursuant to the
relevant receivable is overdue by more than 90
days or, if at any time in the past any amount
owing thereon was overdue by more than 90 days,
the receivable has at no time since that time been
made current;
(ii) at any time the receivable has been extended or
refinanced if and to the extent that the aggregate
outstanding balance of all such receivables so
extended or refinanced outstanding at that time
exceeds Cdn. $10,000,000;
(iii) the sale, rental or lease represented by the
receivable was to a debtor, renter or lessee
outside of Canada (other than a debtor,
renter or lessee resident in the United
States which purchases, rents or leases from
a Canadian dealer in the ordinary course of
the dealer's business) or is denominated in a
currency other than Canadian currency;
(iv) the receivable is subject to any Mortgage or is or
has been part, and in any manner remains subject
to the provisions, of a transaction described in
clause (xv) of the definition of "Permitted
Encumbrances"; and
(v) the receivable is of the type referred to in the
proviso to clause 12.1(b)(i);
"Eligible Wholesale Receivables" means, at any
particular time, the aggregate outstanding balances, net of
deferred finance income and allowance for credit losses, of all
wholesale receivables owned by any member of the Deere Group
representing unconditional obligations to pay, arising out of
sales, rentals or leases by a member of the Deere Group to
dealers or other Persons in the ordinary course of its business,
existing at that time and as determined in accordance with
Historical GAAP, subject to the exclusions set forth in
clauses (i), (iii), (iv) and (v) of the immediately preceding
definition and provided that no amount included in the definition
of Eligible Retail Receivables shall be included hereunder;
"Equivalent Amount" means, on any date, the equivalent
amount in Canadian Dollars or U.S. Dollars, as the case may be,
after giving effect to a conversion of a specified amount of
Canadian Dollars to U.S. Dollars or of U.S. Dollars to Canadian
Dollars, as the case may be, at the Exchange Rate on that date;
"Event of Default" has the meaning set out in
Article 13 hereof;
"Excess" has the meaning set out in Section 2.12;
"Exchange Rate" on any date means the rate of exchange
on that date for converting Canadian Dollars into U.S. Dollars or
U.S. Dollars into Canadian Dollars, as the case may be, quoted as
the offering rate for wholesale transactions by the Agent at
approximately noon (Toronto time) on such date;
"Excluded Loan" with respect to any Lender means a
Fixed Rate Loan or an All-in Bankers' Acceptance made by such
Lender which such Lender has, pursuant to section 2.8(a)(ii) or
6.1(c), as the case may be, elected to exclude for the purpose of
calculating usage of such Lender's Commitment;
"Federal Funds Rate" means, for any day, the rate on
that day for federal funds or, if such date is not a Banking Day,
the next preceding Banking Day, opposite the caption "Federal
Funds (Effective)" in the weekly statistical release designated
as "H.15 (519)" (or any successor publication) published by the
Board of Governors of the Federal Reserve System or if such rate
is not so published for such date, the average of the quotations
for such day on such transactions received by the Agent from
three Federal Funds dealers of recognized standing selected by
it;
"Financial Statements" means with respect to
Deere U.S., the financial statements for each fiscal period of
Deere U.S. prepared in accordance with generally accepted
accounting principles applied on a consistent basis (unless
otherwise noted); with respect to each member of the Deere Group,
the financial statements for each fiscal period of such member
prepared in accordance with generally accepted accounting
principles applied on a consistent basis (unless otherwise
noted); and with respect to the Deere Group, a consolidated
income statement and balance sheet as at the end of each fiscal
period which, in the case of the balance sheet, combines on a
line by line basis the assets, liabilities and shareholders'
equity of each member of the Deere Group, as determined from the
balance sheets contained in the financial statements of each
member of the Deere Group prepared as at the end of such fiscal
period, after elimination of any accounts pertaining to an
investment in any Person which is not a member of the Deere Group
and of any inter-corporate accounts existing as at such date
between any members of the Deere Group but including the accounts
pertaining to an investment in any Person not a member of the
Deere Group, eliminated as aforesaid, by way of investment only;
provided that such financial statements, except in the case of
the Deere Group, shall be comprised of a balance sheet as at the
end of such fiscal period, a statement of operations and a
statement of changes in financial position for such fiscal period
then ended, and shall in the case of any financial statements for
a fiscal year (other than with respect to the Deere Group), be
audited, and shall in the case of any income statement and
balance sheet for a fiscal year for the Deere Group be unaudited
and accompanied by a reconciliation statement and, if requested
by the Majority Lenders, also accompanied by a review of such
income statement, balance sheet and reconciliation statement by
the auditors of Deere Canada;
"Fixed Rate Loan" means a loan which bears a rate of
interest fixed in accordance with subsection 2.8(a);
"Guarantees" means guarantees, substantially in the
form of Schedule C hereto, in favour of the Lenders, whereby the
repayment of all amounts owing pursuant to this agreement by each
Borrower to the Lenders is guaranteed by the other Borrower and
by the Guarantors and, if any such guarantee is amended and/or
confirmed, means such guarantee as so amended and/or confirmed;
"Guarantor" means a Subsidiary of Deere U.S. which
meets the requirements of clauses (A) to (C) inclusive of the
definition of the Deere Group and which has provided to the
Lenders a Guarantee together with an opinion of Fasken Campbell
Godfrey or other counsel acceptable to the Agent, applicable to
such Subsidiary, in respect of the matters set out in
Sections 8.1 to 8.4, inclusive and Section 10.4 (insofar as that
Section requires that each member of the Deere Group be directly
or indirectly wholly owned by Deere U.S.); provided, however,
that Deere Canada may at any time and from time to time change
the status of a Guarantor (other than Deere Canada and Deere
Finance) to a Person not a member of the Deere Group, if Deere
Canada gives written notice of such change in status to the Agent
as soon as is reasonably possible given the particular
circumstances and if (i) some or all of the shares of such
Guarantor are, or will be sold to a Person who is not, directly
or indirectly, a Subsidiary or an Affiliate of Deere U.S., and
(ii) such change in status would not immediately thereafter
result in, or give rise to, the occurrence of a Default or an
Event of Default resulting solely pursuant to Section 10.12
hereof, and, thereafter, upon the date which is the date of
completion of the transaction contemplated by clause (i) above,
such Guarantor shall cease to be a Guarantor and a member of the
Deere Group for all purposes of this Agreement and the Guarantee
of such Guarantor shall be terminated; and "Guarantors" means all
such Persons. For greater certainty, the term Guarantor shall
include a Person which becomes a Guarantor pursuant to a
Permitted Reorganization;
"Historical GAAP" means the generally accepted
accounting principles set out in the first sentence of
Section 1.4 hereof as of October 31, 1994;
"Indebtedness" of the Deere Group means, at any
particular time, the aggregate amount of all indebtedness and
liabilities of the Deere Group which would, in accordance with
Historical GAAP, be reflected on the balance sheet of the Deere
Group if the Financial Statements of the Deere Group were
prepared at that time, together with, without duplication:
(i) all indebtedness guaranteed, directly or
indirectly, in any manner by any member of the
Deere Group or endorsed (otherwise than for
collection or deposit in the ordinary course of
business) or discounted with recourse but only to
the extent of the amount of recourse if such
recourse is limited in amount;
(ii) all indebtedness in effect guaranteed, directly or
indirectly, by any member of the Deere Group
through an agreement contingent or otherwise
(A) to purchase such indebtedness or to advance
or supply funds for the payment or purchase
of such indebtedness, or
(B) to purchase, sell or lease (as lessee or
lessor) property, products, materials or
supplies, or to purchase or sell
transportation or services, primarily for the
purpose of enabling the debtor to make
payment of such indebtedness or to assure the
owner of such indebtedness against loss,
regardless of the delivery or non-delivery
for any reason of the property, products,
materials or supplies or the furnishing or
non-furnishing for any reason of the
transportation or services, or
(C) to make any loan, advance, capital
contribution to or other investment in the
debtor for the purpose of assuring a minimum
equity, asset base, working capital or other
balance sheet condition or to provide funds
for the payment of any liability, dividend or
stock liquidation payment, or otherwise to
supply funds to or in any manner invest in
the debtor;
(iii) all indebtedness incurred by any joint
venture, partnership or similar Person for
which any member of the Deere Group is liable
but only to the extent of the amount of such
liability if such liability is limited;
(iv) all indebtedness, including financing lease
obligations of any member of the Deere Group
created or arising under any conditional sales
agreement or other title retention agreement or
under any Capital Lease, provided that if the
rights and remedies of the seller or lender or
lessor under such agreement or lease in the event
of the default are limited to repossession or sale
of property, such indebtedness shall be deemed to
be in an amount equal to the lesser of (A) the
amount of such indebtedness and (B) the book value
of such property; and
(v) all indebtedness secured by any mortgage, lien,
pledge, charge, security interest or other
encumbrance upon or in property owned by any
member of the Deere Group, even though such member
of the Deere Group has not assumed or become
liable for the payment of such indebtedness,
provided that, if such member of the Deere Group
has not made such assumption or so become liable,
such indebtedness shall be deemed to be an amount
equal to the lesser of (A) the amount of such
indebtedness and (B) the book value of such
property;
including, for greater certainty, the aggregate principal amount
of Loans outstanding hereunder, but, for greater certainty, after
elimination of any such indebtedness or liabilities existing
between members of the Deere Group. In computing the
Indebtedness of any members of the Deere Group, there shall be
excluded any particular indebtedness if, upon or prior to the
maturity thereof, there shall have been irrevocably deposited
with the proper depository in trust the necessary funds (or
evidences of other indebtedness, or other securities, if
permitted by the instrument creating such indebtedness) for the
payment, redemption or satisfaction of such indebtedness, and
such funds and evidences of indebtedness or other securities so
deposited shall not be included in any computation of the assets
of such member of the Deere Group made for purposes of this
agreement;
"Initial Borrowing Date" means the date on which the
first Loan is made by the Lenders hereunder;
"Interest Payment Date" means,
(i) with respect to each Prime Rate Loan or USBR Loan,
the twenty-first day of each calendar month during
each Interest Period (or, if such twenty-first day
is not a Banking Day, the Banking Day next
following such twenty-first day) and the last day
of each Interest Period, and
(ii) with respect to each LIBOR Loan, the last day of
each Interest Period and, if any Interest Period
is longer than three months, also means the last
Banking Day of each three month period during such
Interest Period.
"Interest Period" means,
(i) with respect to each Prime Rate Loan or USBR Loan,
the period commencing on the Drawdown Date or
Conversion Date of such Loan and terminating on
the date selected by the Borrower hereunder for
the Conversion of such Loan into another type of
Loan or the repayment of such Loan,
(ii) with respect to each Bankers' Acceptance other
than an All-in Bankers' Acceptance, the period
selected by the Borrower hereunder and being of a
duration of not less than 30 and not more than 365
days, commencing on the Drawdown Date, Rollover
Date or Conversion Date of such Loan, and
(iii) with respect to each LIBOR Loan, the period
selected by the Borrower and being of a
duration of not less than 30 days and not
more than three years, or such other period
as the Lenders may agree to in writing from
time to time, subject in all cases where
duration is in excess of six months to the
Majority Lenders being able to provide funds
on that basis;
provided that in all cases the last day of each Interest Period
shall be also the first day of the next Interest Period and
further provided that the last day of each Interest Period shall
be a Banking Day and if the last day of an Interest Period
selected by the Borrower is not a Banking Day, the Borrower shall
be deemed to have selected an Interest Period the last day of
which is the Banking Day next following the last day of the
Interest Period otherwise selected unless, in the case of LIBOR
Loans only, such next following Banking Day falls in the next
calendar month in which event the Borrower shall be deemed to
have selected an Interest Period the last day of which is the
Banking Day next preceding the last day of the Interest Period
otherwise selected;
"Lenders" means the banks which are signatories hereto,
so long as there is any indebtedness owed to them, or they have
any obligation, hereunder, and any financial institution which
becomes a party hereto as a "Lender" and "Lender" means any one
of them;
"LIBOR Loan" means a Canadian LIBOR Loan or a
U.S. LIBOR Loan;
"Loan" means a Prime Rate Loan, USBR Loan, Bankers'
Acceptance, LIBOR Loan, Fixed Rate Loan or Operating Facility
Loan made pursuant to the Credit Facility and which, when used in
the context of principal amount of Loans, shall include the
principal amount of outstanding Loans other than Bankers'
Acceptances and the aggregate face amount of all outstanding
Bankers' Acceptances;
"Loan Termination Date" means in the case of each
Lender hereunder the "Termination Date" under the USD Agreement
applicable to such Lender's Affiliated USD Bank, as the same may
be amended, extended or abridged from time to time pursuant to
the USD Agreement or, in the event such Lender's Affiliated USD
Bank becomes an "Objecting Bank" within the meaning of the USD
Agreement the "Commitment Expiration Date" applicable to such
Affiliated USD Bank;
"Majority Lenders" means, at any time, Lenders the
Commitments of which are in the aggregate at least 55% of the
Credit Facility Amount at that time;
"Mortgage" means any mortgage, hypothec, title
retention, charge, security interest, pledge, lien or other
encumbrance;
"Net Worth" of the Deere Group means, subject to the
provisions of Section 13.1, at any particular time, the aggregate
of the (i) issued capital, (ii) retained earnings, (iii) surplus
(earned or contributed) and (iv) Subordinated Indebtedness less
(v) deficit, all of which would, in accordance with Historical
GAAP, be reflected on the balance sheet of the Deere Group if
Financial Statements of the Deere Group were prepared at that
time, after deducting all amounts which would be reflected on
such balance sheet on account of (vi) minority interests,
(vii) goodwill and (viii) intangible assets, but eliminating any
duplication in the calculation thereof resulting from
intercompany accounts;
"Operating Facility Loan" means a loan made pursuant to
subsection 2.8(b);
"Permitted Encumbrances" means:
(i) Mortgages in existence on the date hereof;
(ii) Mortgages on any property acquired, constructed or
improved by a Borrower or a Guarantor after the
date of this Agreement which are created or
assumed contemporaneously with, or within 120 days
after, such acquisition, construction or
improvement to secure or provide for the payment
of all or any part of the cost incurred for the
acquisition, construction or improvement after the
date of this agreement, or (in addition to
Mortgages contemplated by clauses (iii), (iv) and
(v) below) Mortgages on any property existing at
the time of acquisition thereof; provided that
such Mortgages shall not apply to any property
theretofore owned by a Borrower or a Guarantor
other than, in the case of any such construction
or improvement, any theretofore unimproved real
property on which the property so constructed, or
the improvement, is located;
(iii) Mortgages on the property of a corporation at
the time of its amalgamation with a Borrower
or a Guarantor or on the assets of a Person
substantially all of the assets of which are
acquired by a Borrower or a Guarantor;
(iv) Mortgages on property of a corporation existing at
the time such corporation becomes a Guarantor;
(v) Mortgages to secure Indebtedness of a Guarantor to
a Borrower or to another Guarantor;
(vi) Mortgages in favour of any Canadian federal,
provincial or municipal government, or any
department, agency or instrumentality or political
subdivision of any such Canadian federal,
provincial or municipal government, to secure
partial, progress, advance or other payments
pursuant to any contract or statute;
(vii) Mortgages given on fixed assets or other
physical properties hereafter acquired to
secure all or part of the purchase or lease
price thereof (including, for greater
certainty, Capital Leases) or the acquiring
hereafter of such assets or properties
subject to any existing Mortgage securing
Indebtedness (whether or not assumed);
(viii) easements, liens, franchises or other minor
encumbrances on or over any real property
which do not materially detract from the
value of such property or its use in the
business of the Deere Group;
(ix) any deposit or pledge of assets (A) with any
surety company or clerk of any court, or in
escrow, as collateral in connection with, or in
lieu of, any bond on appeal from any judgment or
decree against a Borrower or a Guarantor, or in
connection with other proceedings or actions at
law or in equity by or against a Borrower or a
Guarantor, or (B) as security for the performance
of any contract or undertaking not directly or
indirectly related to the borrowing of money or
the securing of Indebtedness, if made in the
ordinary course of business, or (C) with any
governmental agency, which deposit or pledge is
required or permitted to qualify a Borrower or a
Guarantor to conduct business, to maintain
self-insurance, or to obtain the benefits of any
law pertaining to worker's compensation,
unemployment insurance, old age pensions, social
security or similar matters, or (D) made in the
ordinary course of business to obtain the release
of mechanics', workmen's, repairmen's,
warehousemen's or similar liens, or the release of
property in the possession of a common carrier;
(x) liens for taxes and governmental charges not yet
due or contested by appropriate proceedings in
good faith; landlord's liens on property held
under lease; and any other liens of a nature
similar to those hereinabove described in this
clause (x) which do not, in the opinion of the
relevant Borrower or Guarantor, materially impair
the use of such property in the operation of the
business of such relevant Borrower or Guarantor or
its Subsidiaries or the value of such property for
the purposes of such business;
(xi) Mortgages existing on property acquired by a
Borrower or a Guarantor through the exercise of
rights arising out of defaults on receivables
acquired in the ordinary course of business;
(xii) judgment liens, so long as the finality of
such judgment is being contested in good
faith and execution thereon is stayed;
(xiii) Mortgages which in the aggregate do not
exceed 5% of the Net Worth of the Deere
Group;
(xiv) any deposit or pledge of monies (or evidence
of other indebtedness or securities) with the
proper depository for the payment, redemption
or satisfaction of Indebtedness of a Borrower
or a Guarantor prior to the maturity of such
Indebtedness so as to satisfy and discharge
such Indebtedness to the extent of such
deposit or pledge;
(xv) any transaction characterized as a sale of
receivables (retail or wholesale) but reflected as
secured Indebtedness on a balance sheet in
conformity with generally accepted accounting
principles; and
(xvi) Mortgages for the purpose of extending,
renewing or replacing in whole or in part
Indebtedness secured by any Mortgage referred
to in the foregoing clauses (i) to (xv),
inclusive, or in this clause (xvi), provided,
however, that the principal amount of
Indebtedness secured thereby shall not exceed
the principal amount of Indebtedness so
secured at the time of such extension,
renewal or replacement, and that such
extension, renewal or replacement shall be
limited to all or part of the property which
secured the Mortgage so extended, renewed or
replaced (plus improvements on such
property);
"Permitted Reorganization" means a transaction
permitted pursuant to the provisions of Section 11.1 hereof;
"Person" means an individual, a partnership, a firm, a
corporation, a trust, an unincorporated organization or a
government or any agency or political subdivision thereof;
"Prime Rate" means the greater of: (i) prime lending
rate of interest expressed as a rate per annum which the Agent
establishes from time to time at its principal office in Toronto,
Ontario as the reference rate of interest in order to determine
the interest rate it will charge for loans in Canadian Dollars to
its Canadian customers and (ii) the 30 day bankers' acceptance
rate of the Agent as quoted on the Reuters screen, Canadian
dollar CDOR page, determined as of 10:00 a.m. Toronto time on the
relevant day, plus 1/2 of 1%;
"Prime Rate Loan" means a loan with respect to which
the rate of interest is determined by reference to the Prime
Rate;
"Pro Rata" means, in respect of any particular Lender
at any particular time:
(i) in the case of Drawdowns (including, as provided
in the proviso to this definition, any Drawdowns
which are deemed thereby to have occurred for the
purposes of this definition only on a Conversion
or Rollover), and for the purposes of
Section 14.12, subject, with respect to Bankers'
Acceptances to the rounding provided in
subsection 6.1(d), the proportion that the
Unutilized Commitment of that Lender at that time
is of the total Unutilized Commitments of all
Lenders at that time;
(ii) in the case of any repayment or prepayment
(including, as provided in the proviso to this
definition, any repayment which is deemed thereby
to have occurred for the purposes of this
definition only on a Conversion or Rollover), the
proportion that:
(A) in the case of Prime Rate Loans and USBR
Loans, the total amount of Prime Rate Loans
or USBR Loans, as the case may be, of that
Lender at that time is of the total Prime
Rate Loans or USBR Loans, as the case may be,
of all Lenders at that time; and
(B) in the case of Canadian LIBOR Loans, U.S.
LIBOR Loans and Bankers' Acceptances, the
total amount of Canadian LIBOR Loans, U.S.
LIBOR Loans or Bankers' Acceptances, as the
case may be, of equivalent Interest Periods
and maturing on a particular repayment date
of that Lender is of the total such Canadian
LIBOR Loans, U.S. LIBOR Loans or Bankers'
Acceptances, as the case may be, of all
Lenders at that time (excluding, in the case
of Bankers' Acceptances, All-in Bankers'
Acceptances);
provided that (I) in applying this definition to a Conversion or
a Rollover, there shall, in all cases, be deemed for the purposes
of this definition only to be a repayment of the outstanding Loan
followed by a Drawdown of the Loan into which such outstanding
Loan is being converted or rolled over and (II) the aforesaid
formula shall not apply in respect of the repayment of Bankers'
Acceptances prior to their maturity as hereinafter in
Section 2.13 provided and in which circumstances Pro Rata shall
mean repayment of the entire face amount of the relevant Bankers'
Acceptances of each Lender;
"Repayment Notice" means a notice substantially in the
form of Schedule D hereto to be given to the Agent by a Borrower
pursuant to Section 2.13;
"Rollover" means a rollover of a Loan pursuant to
Section 2.10 or Section 6.1;
"Rollover Date" means the date of commencement of a new
Interest Period applicable to a Loan which has been rolled over
pursuant to Section 2.10 or Section 6.1;
"Rollover Notice" means a notice substantially in the
form of Schedule E hereto to be given to the Agent by a Borrower
pursuant to Section 2.10 or 6.1;
"Subordinated Indebtedness" means Indebtedness of the
Deere Group excluding, for greater certainty, indebtedness or
liabilities existing between members of the Deere Group, which,
in the case of Indebtedness to Deere U.S. is governed by the
Subordination Agreement and in the case of all other Indebtedness
is governed by an agreement that by its terms prohibits payment
of the principal thereof, interest thereon and any other amount
in respect thereof (including any payment upon any distribution
of assets of such member of the Deere Group in the event of any
winding-up or liquidation or dissolution thereof, whether in
bankruptcy, insolvency or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling
of the assets and liabilities thereof or otherwise), until all
amounts owing in respect of the Credit Facility have been paid in
full and all obligations of the Lenders hereunder have been
terminated, except such payments as occur other than at a time
(i) when a Default involving a breach of Section 10.12 or of any
covenant pertaining to reporting in respect of Section 10.12 or
which would, with the passage of time, become an Event of Default
pursuant to subsections 13.1(a), (b), (f) or (i) hereof, or an
Event of Default, exists hereunder, or (ii) when, after giving
effect to such payment, such a Default or an Event of Default
would exist hereunder; provided, however, that such agreement may
provide that any such payment may be made notwithstanding such a
Default if it has been in existence for more than six months
without the Agent having notified the Borrowers thereof pursuant
to subsection 13.1(d) and notwithstanding an Event of Default
which has been in existence for more than six months without the
Lenders having taken any action pursuant to Section 13.2 in
respect thereof; provided, further, that such agreement may
provide that any such payment may be made notwithstanding the
existence of such a Default or a resulting Event of Default for
more than six months after the occurrence of such Default unless
within such six-month period the Agent has notified the Borrowers
as aforesaid and the Lenders have taken action pursuant to
Section 13.2 in respect of such Event of Default;
"Subordination Agreement" means the agreement between
Deere U.S. and the Lenders substantially in the form of
Schedule F hereto and if such agreement is amended and/or
confirmed means such agreement as amended and/or confirmed;
"Subsidiary" means subsidiary as that term is used
within the meaning of the Business Corporations Act (Ontario), as
in force on the effective date hereof;
"USBR" means, at any time, the greater of:
(a) the annual rate of interest which the Agent establishes
at its principal office in Toronto as the reference
rate of interest in order to determine interest rates
it will charge at such time for demand loans in U.S.
Dollars made to its customers in Canada; and
(b) the Federal Funds Rate quoted from time to time plus 1/2%
per annum,
such rate to be adjusted automatically and without necessity of
notice to the Borrowers upon each change to such rate;
"USBR Loan" means any loan on which interest is then
calculated by reference to USBR;
"U.S. Dollars" and "U.S. $" means such coin or currency
of the United States of America as at the time of payment or
determination shall be legal tender therein for the payment of
public or private debts;
"USD Agent" means Chemical Bank and its successors and
assigns as the administrative agent of the USD Banks under the
USD Agreement;
"USD Agreement" means the U.S. $3,500,000,000 Credit
Agreement dated as of April 5, 1995 among the USD Borrowers,
certain financial institutions, the USD Agent and other agents,
as in effect from time to time;
"USD Bank" means each "Bank" (as defined in the USD
Agreement) under the USD Agreement;
"USD Borrowers" means Deere U.S. and Deere Capital
under the USD Agreement;
"USD Loan" means each "Loan" (as defined in the USD
Agreement) under the USD Agreement made by an Affiliated USD
Bank;
"U.S. LIBOR" means, in respect of any Interest Period,
the rate of interest per annum (calculated on the basis of a 360
day year), as determined by The Toronto-Dominion Bank, rounded
upward, if necessary, to the nearest 1/16th of 1%, quoted at
approximately 11:00 a.m. (Toronto time) on the day which is two
Banking Days prior to the commencement of that Interest Period,
at which it may make deposits available to prime lending banks in
U.S. Dollars in an amount substantially equal to the amount of
the U.S. LIBOR Loan made by the Lenders to which such Interest
Period applies in the London Interbank Eurodollar Market for a
period equal to such Interest Period;
"U.S. LIBOR Loan" means any loan on which interest is
then calculated by reference to U.S. LIBOR;
"Unutilized Commitment" in respect of any Lender at any
particular time means the positive amount, if any, obtained when
there is subtracted from the amount of that Lender's Commitment
the total of: (i) the Equivalent Amount of the principal amount
outstanding of Loans made by such Lender hereunder other than
Operating Facility Loans and Excluded Loans made by such Lender;
and (ii) the total amount of Committed USD Loans made by the
Affiliated USD Bank of such Lender under the USD Agreement;
1.2 Computation of Time Period. Except to the extent
otherwise expressly provided, in the computation of a period of
time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
1.3 General Interpretation. Unless the context otherwise
requires, words importing the singular shall include the plural
and vice versa and words importing gender shall include
masculine, feminine and neuter genders.
1.4 Generally Accepted Accounting Principles. Except to
the extent otherwise expressly provided, references to "generally
accepted accounting principles" mean, for all principles stated
from time to time in the Handbook of the Canadian Institute of
Chartered Accountants, such principles so stated. It is hereby
otherwise expressly provided that "generally accepted accounting
principles" in respect of Deere U.S. mean generally accepted
accounting principles in the United States of America.
1.5 Actions on Days Other than Banking Days. Except to the
extent otherwise expressly provided, where any payment is
required to be made or any other action is required to be taken
on a particular day and such day is not a Banking Day and, as a
result, such payment cannot be made or action cannot be taken on
such day, then this Agreement shall be deemed to provide that
payment shall be made or such action shall be taken on the first
Banking Day after such day. If the payment of any amount is
deferred for any period under this Section 1.5, then such period
shall, unless otherwise provided herein, be included for purposes
of the computation of any interest payable hereunder.
1.6 Headings and Table of Contents. The division of this
agreement into Articles and Sections and the insertion of
headings and a table of contents are for the convenience of
reference only and shall not affect the interpretation of this
agreement.
1.7 Dollars. Unless otherwise indicated, all dollar
amounts set out herein are in Canadian Dollars.
1.8 Effective Date or Time. For all purposes hereof,
unless expressly otherwise indicated, the effective time or date
of this Agreement shall be April 5, 1995 and, for greater
certainty, the word "future" shall be defined by reference to
such date.
2. CREDIT FACILITY
2.1 Establishment. The Lenders hereby establish for the
Borrowers on the terms and conditions set forth herein the Credit
Facility, in the maximum aggregate principal amount of U.S.
$612,500,000, to be advanced by way of Loans. The Borrowers may
borrow, prepay (in whole or in part), reborrow or repay in such
proportions between them as they may determine and the Lenders
may lend to either Borrower as hereinafter provided without the
concurrence of or notice to the other Borrower.
2.2 Purposes. The Credit Facility is being made available
to the Borrowers to enable them to finance their or their
Subsidiaries' respective retail, lease and wholesale receivables
and inventory and to support their or their Subsidiaries'
respective commercial paper programs and for general corporate
purposes (including financing the acquisition of shares and/or
assets of corporations and other Persons otherwise permitted
hereunder but excluding any such acquisition which constitutes a
takeover bid within the meaning of the Securities Act (Ontario)
if such bid is opposed by the board of directors of the Person to
be acquired).
2.3 Manner of Borrowing. Subject to the terms and
conditions hereof, each of the Borrowers may in Canadian Dollars
make Drawdowns under the Credit Facility of Prime Rate Loans,
Canadian LIBOR Loans, Fixed Rate Loans, Operating Facility Loans
and Bankers' Acceptances and may in U.S. Dollars make Drawdowns
under the Credit Facility of U.S. LIBOR Loans, USBR Loans, Fixed
Rate Loans and Operating Facility Loans. Each of the Borrowers
shall have the option, subject to the terms and conditions
hereof, to determine which types of Loans shall be drawn down and
in which combinations or proportions.
2.4 Drawdown, Conversion and Rollover Restrictions.
Drawdowns, Conversions and Rollovers, and other actions taken,
under the Credit Facility shall be subject to the following
restrictions:
(a) each Drawdown shall be in a minimum principal amount of
Cdn. $5,000,000 or U.S. $5,000,000, as the case may be,
and Drawdowns in excess thereof shall be in integral
multiples of Cdn. $1,000,000 or U.S. $1,000,000, as the
case may be;
(b) in the case of a LIBOR Loan, Drawdowns, Conversions and
Rollovers may only be made upon the Lenders' prior
favourable determination with respect to the matters
referred to in Article 5;
(c) except as otherwise provided herein, no Interest Period
applicable to a Lender shall extend beyond the Loan
Termination Date for such Lender;
(d) in no event shall any Drawdown be made or other action
taken hereunder which causes:
(i) the amount of the Committed Global Exposure of any
Lender, after giving effect to any concurrent
payment and/or borrowing under this Agreement or
the USD Agreement to exceed such Lender's
Commitment; or
(ii) the aggregate outstanding principal amount of USD
Loans under the USD Agreement plus the aggregate
Equivalent Amount in U.S. Dollars of all Loans
hereunder to exceed the Credit Facility Amount;
and
(e) in the case of LIBOR Loans, after giving effect to any
Drawdown, Conversion or Rollover, there shall not be at
any one time more than six different Interest Periods
applicable to outstanding LIBOR Loans hereunder.
2.5 Drawdown Notice. A Borrower may at any time and from
time to time make a Drawdown under the Credit Facility, subject
to the terms and conditions hereof, upon delivering a Drawdown
Notice with respect to a specified type or types of Loan to the
Agent:
(a) in the case of any Prime Rate Loan, USBR Loan or
Bankers' Acceptance (other than an All-in Banker's
Acceptance), not later than 10:00 a.m. (Toronto time)
on the Banking Day which is two Banking Days prior to
the day on which the Loan is to be advanced; and
(b) in the case of a LIBOR Loan, not later than 3:00 p.m.
(Toronto time) on the Banking Day which is three
Banking Days prior to the Banking Day on which the Loan
is to be advanced.
2.6 Irrevocability. The giving of a Drawdown Notice,
Rollover Notice or Conversion Notice by a Borrower hereunder
shall, except as hereinafter provided, be irrevocable. In the
event that the Borrower wishes to revoke any such Notice, the
Lenders may at their sole option accept such revocation and
require the Borrower to pay to the Lenders such additional amount
as is specified in and in accordance with Section 7.2.
2.7 Cancellation or Reduction of Credit Facility or
Commitments. The Borrowers acting together may at any time, upon
giving at least three Banking Days prior notice to the Agent,
cancel in full the Credit Facility or, from time to time, reduce
the Credit Facility Amount and, if the Credit Facility Amount is
so reduced, the Commitments of each of the Lenders shall be
reduced pro rata based upon the respective Commitment Ratios of
the Lenders provided, however, that in no event shall the Credit
Facility Amount be reduced below the Equivalent Amount in U.S.
Dollars of the aggregate principal amount of the Loans
outstanding hereunder.
2.8 (a) Fixed Rate Loans.
(i) Subject to the Lender's availability of funds, as
to which the Lender's decision shall be final and conclusive, and
to the proposed term not causing the relevant repayment date to
occur after the Loan Termination Date (unless otherwise agreed by
the Lender), any Borrower may request any Lender, upon at least
five Banking Days' prior written notice, to make available a
Fixed Rate Loan in either Canadian or U.S. Dollars. Such notice
shall set forth the desired currency, the proposed drawdown date,
the proposed term of such Loan and the proposed Loan amount
(which shall in no event be less than Cdn. $1,000,000 or the
Equivalent Amount). Any Fixed Rate Loan shall be made available
at the sole and absolute discretion of the Lender, upon terms
(including the rate of interest, interest payment dates,
repayment schedule and prepayment privileges) acceptable to such
Lender and as agreed to by such Borrower. Notwithstanding that
Lenders are in no way committed to make Fixed Rate Loans
hereunder, it is intended that, when requested to do so, a Lender
will use reasonable efforts to quote terms for such a Loan based
on the costs and charges to such Lender in raising offsetting
deposits in an amount substantially equal to and for the term of
the proposed Fixed Rate Loan together with all other costs and
charges (excluding internal costs and charges) incidental thereto
including, without limitation, primary, secondary or other
reserves, withholding taxes, stamp taxes and the costs of
establishing any hedging contracts considered necessary by the
Lender. Any such borrowing shall not be subject to the
provisions of Article 14 hereof which require that Loans be made
by all Lenders on the pro rata basis specified therein. Notice
of any such proposed loan and the actual making thereof shall be
given by the Borrower to the Agent in writing as soon after the
making thereof as reasonably possible. Upon receipt by the Agent
of such notice, the loan shall be deemed to be a Fixed Rate Loan
hereunder, unless upon request by the Agent the relevant Lender
fails to confirm that such loan is a Fixed Rate Loan in which
event the loan made shall not be a Fixed Rate Loan hereunder and
shall not be governed by the provisions hereof. The Lender
shall, upon receipt of the Borrower's written request aforesaid,
indicate to the Borrower in writing whether it will make a Fixed
Rate Loan and, if so, at what rate, such written indication to be
provided to the Borrower prior to 1:00 p.m. (Toronto time) on the
Banking Day following receipt by the Lender of the Borrower's
request. The Borrower shall indicate in writing to the Lender,
prior to 5:00 p.m. (Toronto time) on the day on which the
Borrower receives the Lender's notice aforesaid, if it wishes to
draw said Fixed Rate Loan, and, if the Borrower so indicates, the
Lender shall advance the said Fixed Rate Loan. If the Borrower
fails to give such written indication, the Borrower shall be
deemed to have chosen not to draw such Fixed Rate Loan.
Notwithstanding the preceding three sentences, if the Borrower
and the Lender agree as to the terms of a Fixed Rate Loan to be
made pursuant to this subsection 2.8(a), such Fixed Rate Loan
shall be made despite any failure by either the Borrower or the
Lender to comply with the time or notice provisions set forth in
such preceding three sentences for the making of such Fixed Rate
Loan. Interest at the specified rate shall be payable thereon as
well after as before maturity, default and judgment, with
interest on overdue interest at the same rate. For greater
certainty, interest rate swap transactions shall not be included
within the definition of Fixed Rate Loans as specified above nor
subject to the provisions of this Section 2.8.
(ii) Any Lender who makes a Fixed Rate Loan hereunder,
shall at such time elect whether such Fixed Rate Loan shall or
shall not be excluded for the purpose of determining such
Lender's Unutilized Commitment. Such Lender shall as soon as
reasonably possible following such election, give notice thereof
to the Borrowers and the Agent. For greater certainty and
notwithstanding anything to the contrary in this Agreement, a
Lender may make one or more Fixed Rate Loans hereunder in an
amount which causes the Equivalent Amount in U.S. Dollars of the
aggregate principal amount of Loans made by it hereunder to
exceed its Commitment.
(b) Operating Facility Loan. The Borrower may at any time
and from time to time request any one or more of The
Toronto-Dominion Bank, Canadian Imperial Bank of Commerce or
Royal Bank of Canada to make a Loan to it, herein called an
"Operating Facility Loan", in either Canadian or U.S. Dollars,
and such Operating Facility Loan shall be made by any such
requested Lender, on compliance by the Borrower with all
conditions precedent herein contained applicable to the advance
of a Prime Rate Loan or a USBR Loan, as the case may be, in the
same principal amount, other than the notice requirements set out
in subsection 2.5(a) and other than the monetary limits on
Drawdowns set out in subsection 2.4(a). The Toronto-Dominion
Bank agrees that it shall act as Agent for the other two Lenders,
and such other Lenders agree that The Toronto-Dominion Bank may
so act for the purposes of receiving and conveying to such other
two Lenders any such request for an Operating Facility Loan from
one or more of such other Lenders. The monies advanced by each
Lender shall be made available to the Borrower in an account, to
be designated in writing by the Borrower, which it maintains at
such Lender or, if possible, the account specified in
subsection 14.7(c) in the manner therein set out, in any event on
the same day requested, provided that the Borrower shall deliver
to such Lender such request prior to 11:00 a.m. (Toronto time) on
the day of such request. The aggregate principal amount of such
Operating Facility Loans outstanding at any time in respect of
any one such Lender shall at no time exceed U.S. $20,000,000.
Such Operating Facility Loan or Loans shall, with respect to
repayment thereof, be governed exclusively by the provisions of
Section 14.7 hereof (and shall not, therefore, be subject to the
Pro Rata payment provisions otherwise applicable to Loans by
virtue of Article 14), and shall bear interest at the rate herein
provided in respect of Prime Rate Loans, in the case of Canadian
Dollar, and USBR Loans, in the case of U.S. Dollar, Operating
Facility Loans, such interest to be payable to the Lender at the
times provided for herein in respect of Prime Rate Loans or USBR
Loans, as the case may be. Whenever in this Agreement it is
necessary to ascertain the principal amount of Loans outstanding
for determining the amount of any further Loans to be made or
whether any further Loans can be made, any Operating Facility
Loans shall be deemed to be made or outstanding, as the case may
be, as Prime Rate Loans and/or USBR Loans, as the case may be, in
the same respective principal amounts per Lender as would be the
case if such Operating Facility Loans had been drawn down
pursuant to a Drawdown Notice as Prime Rate and/or USBR Loans
pursuant to Section 14.7.
2.9 Failure of a Borrower to Give Notice.
(a) If the Borrower fails to give the Agent a Drawdown
Notice with respect to a Prime Rate Loan or USBR Loan in
accordance with the time periods set out in Section 2.5 hereof,
or a Conversion Notice into either such Loans in accordance with
Section 2.11 hereof, the Lenders shall have the right, at their
option, to waive any such failure in connection with the giving
of such Drawdown Notice or Conversion Notice, to make such Loan
as if such notice had been given on a timely basis and to require
the Borrower to pay to the Lenders such additional amount as is
required to cover any costs incurred by the Lenders in making any
such Loan which are caused by the failure of the Borrower to give
such notice as is specified in and in accordance with
Section 7.2.
(b) If the Borrower fails to give the Agent a Drawdown
Notice with respect to a LIBOR Loan in accordance with the time
periods set out in Section 2.5 hereof, or a Rollover Notice or
Conversion Notice into any such Loan in accordance with
Section 2.10 and Section 2.11, respectively, below, the Lenders
shall have the right, at their option, to waive any such failure
to give a Drawdown Notice, Rollover Notice or Conversion Notice,
to make such Loan as if such notice had been given on a timely
basis and to require the Borrower to pay to the Lenders such
additional amount as is required to cover any costs incurred by
the Lenders in making any such Loan which are caused by the
failure of the Borrower to give such notice as is specified in
and in accordance with Section 7.2.
2.10 Rollover of LIBOR Loans. At or before 3:00 p.m.
(Toronto time) three Banking Days prior to the expiration of each
Interest Period of each LIBOR Loan, the Borrower which is liable
on such Loan shall, unless it has delivered a Conversion Notice
pursuant to Section 2.11 or a Repayment Notice pursuant to
Section 2.13 with respect to such Loan, deliver a Rollover Notice
to the Agent selecting the next Interest Period applicable to
such LIBOR Loan, which new Interest Period shall commence on and
include the last day of such prior Interest Period. If such
Borrower fails to deliver a Rollover Notice as herein provided,
such Borrower shall be deemed to have given a Rollover Notice to
the Agent pursuant to this Section 2.10 electing to roll over
such LIBOR Loan into a LIBOR Loan of the same currency with a 30
day Interest Period.
2.11 Conversion Options. Subject to Sections 2.3, 2.4 and
2.5, the Borrower may, at, if applicable, the Exchange Rate,
convert:
(a) a Prime Rate Loan or USBR Loan or a portion thereof
into any other type of Loan (other than a Fixed Rate
Loan, Operating Facility Loan or an All-in Bankers'
Acceptance) on the last day of the applicable Interest
Period;
(b) the amount of a Bankers' Acceptance (other than an
All-in Bankers' Acceptance) or a portion thereof into
any other type of Loan (other than a Fixed Rate Loan,
Operating Facility Loan or an All-in Bankers'
Acceptance) on the last day of the applicable Interest
Period; and
(c) a Canadian LIBOR Loan or a U.S. LIBOR Loan or a portion
thereof into any other type of Loan (other than a Fixed
Rate Loan, Operating Facility Loan or an All-in
Bankers' Acceptance) on the last day of the applicable
Interest Period;
by giving the Agent a Conversion Notice prior to the date of
Conversion in the same manner as if such Conversion Notice were a
Drawdown Notice being given in respect of the Loan into which
such Loan is being converted. The obligation of each of the
Lenders to convert into a LIBOR Loan is contingent upon the
Lenders' prior favourable determination with respect to the
matters referred to in Article 5.
2.12 Prepayment of Excess over Loan Facility. As of the
last Banking Days of March, June, September and December in each
year, the Agent shall determine the aggregate of the Equivalent
Amounts in U.S. Dollars of the principal of all Loans outstanding
under this Agreement plus the principal amount of all USD Loans
outstanding under the USD Agreement. In the event that such
aggregate amount exceeds the Credit Facility Amount, the Agent
shall notify the Borrowers of the amount of such excess (the
"Excess") and, subject to the following sentence, each Borrower
shall as soon as possible but, in any event, within 30 days of
the giving of such notice or such longer period of time as may be
required in order that LIBOR Loans be paid on the last day of an
Interest Period, pay to each of the Lenders its portion of the
Excess in U.S. Dollars or the Equivalent Amount of
Canadian Dollars, or some combination thereof, as the case may
be, applied, to the extent required (and to the extent of) the
outstanding Loans in the order following, to repayment of Prime
Rate Loans, USBR Loans, Canadian LIBOR Loans and U.S. LIBOR
Loans, together with, in the case of each such Loan, accrued
interest thereon to the date of such payment. Notwithstanding
the preceding sentence, the Borrowers shall be relieved of their
obligation to make payment in respect of a notification received
hereunder from the Agent to the extent that Deere U.S. or Deere
Capital has, after such notification required by the preceding
sentence, made a payment or prepayment of USD Loans in accordance
with the USD Agreement which has the effect of reducing the
Excess.
2.13 Optional Payments of Principal.
(a) A Borrower may at any time (except that Bankers'
Acceptances may only be prepaid in accordance with and subject to
the terms and conditions of subsection 2.13(b) below and subject
to the provisions of subsection 2.13(c) below) pay without
penalty to the Lenders any Prime Rate Loan, USBR Loan, LIBOR
Loan, Operating Facility Loan (but in accordance with
clause 14.7(a)(ii)) or, unless such Loan by its terms provides
otherwise, Fixed Rate Loan, in whole or, from time to time, in
part, together with accrued interest thereon to the date of such
payment, and any other amounts specified in and in accordance
with Section 7.2 hereof, without prejudice to the Borrower's
right to redraw all or part of such repaid amount subject to the
terms and conditions hereof; provided, however, that:
(i) such Borrower shall give a Repayment Notice to the
Agent prior to such time prior to the repayment
date as would have been applicable hereunder were
a Drawdown Notice being given in respect of the
Loan being repaid; and
(ii) each such repayment shall be in a minimum
principal amount of the lesser of
(A) Cdn. $5,000,000 or U.S. $5,000,000, as the
case may be, and (B) the principal amount of all
Loans in respect of which such payment is made
outstanding immediately prior to such repayment;
and any such repayment in excess of
Cdn. $5,000,000 or U.S. $5,000,000, as the case
may be, shall be either (C) in integral multiples
of Cdn. $1,000,000 or U.S. $1,000,000, as the case
may be or (D) in an amount equal to the principal
amount of all Loans in respect of which such
payment is made outstanding immediately prior to
such repayment.
(b) A Borrower may at any time and from time to time
satisfy its obligations under this Agreement with respect to any
LIBOR Loan, Fixed Rate Loan, Operating Facility Loan, or Bankers'
Acceptance (including, for greater certainty, an All-in Bankers'
Acceptance) outstanding hereunder if it irrevocably deposits
monies in trust with the Agent (or in the case of any Fixed Rate
Loan, All-in Bankers' Acceptance or Operating Facility Loan, with
the relevant Lender making such Loan or All-in Bankers'
Acceptance) in an amount which shall be sufficient to pay the
outstanding principal amount of such Loan and any interest due on
such LIBOR Loan, Fixed Rate Loan or Operating Facility Loan on
the last day of the Interest Period relating to such LIBOR Loan
or on the date of deposit in the case of such Fixed Rate Loan or
Operating Facility Loan, as the case may be, and in the case of
such Fixed Rate Loan, any prepayment premium or other amount
payable in connection with the prepayment thereof. Such amount
shall be deposited in an account with the Agent or such relevant
Lender, as the case may be, which bears interest at the
applicable market rates of the Agent or such Lender and such
market rate of interest shall, after the application of the
principal of such Loan or Bankers' Acceptance and any interest on
such Loan referred to above on the last day of the relevant
Interest Period, be paid to such Borrower, together with any
amounts so deposited which are in excess of the amount of such
principal and interest due on such Loan or Bankers' Acceptance on
such last day of the Interest Period.
(c) Notwithstanding the foregoing, at any time when a
Default or an Event of Default exists hereunder, or when the
prepayment or satisfaction hereinafter referred to would result
in the occurrence of a Default or Event of Default hereunder:
(i) if there are Loans outstanding (other than Fixed Rate Loans
or All-in Bankers' Acceptances), no Fixed Rate Loan shall be
prepaid or otherwise satisfied, in accordance with
subsections 2.13(a) and 2.13(b) above, and no All-in Bankers'
Acceptance shall be satisfied, in accordance with
subsection 2.13(b) above, or (ii) if there are no Loans
outstanding other than Fixed Rate Loans and All-in Bankers'
Acceptances, any prepayment or other satisfaction thereof as
aforesaid shall be made only on a basis whereby each Lender who
has outstanding a Fixed Rate Loan and/or All-in Bankers'
Acceptance is prepaid or otherwise satisfied as aforesaid pro
rata based upon the aggregate principal amount of that Lender's
Fixed Rate Loans and All-in Bankers' Acceptances as compared to
the aggregate principal amount of all Fixed Rate Loans and All-in
Bankers' Acceptances then outstanding.
2.14 Mandatory Payments of Principal. The principal amount
of all Loans of any Lender (other than Fixed Rate Loans and
All-in Bankers' Acceptances) which are outstanding on the Loan
Termination Date for such Lender shall be due and payable by the
Borrowers to such Lender, together with all accrued interest
thereon and all other amounts owing hereunder, on the Loan
Termination Date for such Lender. In addition, to the extent
that, on any date on which the Commitment of any Lender is
reduced, the sum of (i) the principal amount of all Loans of such
Lender (other than Excluded Loans of such Lender), and (ii) the
principal amount of all Committed USD Loans of such Lender's
Affiliated USD Bank, exceed the Commitment of such Lender, each
Borrower shall pay to such Lender its portion of such excess,
applied to the extent required (and to the extent of) the
outstanding Loans in the order following, to repayment of Prime
Rate Loans, USBR Loans, Canadian LIBOR Loans and U.S. LIBOR
Loans, together with, in the case of each such Loan, accrued
interest thereon to the date of such payment together with all
other amounts related thereto owing hereunder. Notwithstanding
the preceding sentence, the Borrowers shall be relieved of their
obligations to make any payment hereunder to the extent that
Deere U.S. or Deere Capital has made a payment or repayment of
USD Loans in accordance with the USD Agreement so that the sum of
clauses (i) and (ii) above no longer exceeds such Lender's
Commitment. The principal amount of each Fixed Rate Loan and
All-in Bankers' Acceptance shall be due and payable by the
relevant Borrower to the relevant Lender on the maturity thereof
together with accrued interest thereon and all other amounts
owing thereunder.
2.15 Loan Accounts. Each Lender shall open and maintain on
its books in accordance with the customary practices of such
Lender loan accounts in the name of the Borrower in respect of
the Prime Rate Loans, USBR Loans, LIBOR Loans, Fixed Rate Loans
and Operating Facility Loans made by the Lender to the Borrower
and forming part of the Lenders' Loans hereunder. The Lender
shall debit to the appropriate loan account the amount of each
Drawdown or borrowing under the relevant Loan and the interest
and other charges accrued in respect thereof from time to time
and the Lender shall credit to the appropriate loan account the
amount of each payment, repayment and prepayment by the Borrower
of the principal amount thereof and interest and other charges in
respect thereof. In the absence of manifest error, the entries
made by the Lender in such loan accounts shall be conclusive
evidence of the making of each such Loan and each payment,
repayment and prepayment thereof, as the case may be.
3. INTEREST
3.1 Payment of Interest. The Borrower shall pay to the
Lenders interest on the Prime Rate Loans, USBR Loans and LIBOR
Loans in the manner and at the rates per annum determined in
accordance with this Section 3.1. Interest payable hereunder
shall be payable both before and after maturity, default and/or
judgment, if any, until payment in full thereof, and interest
shall accrue on overdue interest, if any, at the same rate.
(a) Interest on Prime Rate and USBR Loans. The Borrower
shall pay interest on each Prime Rate Loan and USBR Loan made to
it during each Interest Period applicable thereto in Canadian
Dollars, in the case of Prime Rate Loans and U.S. Dollars, in the
case of USBR Loans, at a rate per annum equal to the Prime Rate,
in the case of Prime Rate Loans, or USBR, in the case of USBR
Loans, in effect from time to time during such Interest Period.
The determination by the Agent of the Prime Rate or USBR, as the
case may be, applicable from time to time during an Interest
Period shall, in the absence of manifest error, be binding upon
the Borrower. Such interest shall be calculated and payable in
arrears on each Interest Payment Date for such Loan for the
period from and including the Drawdown Date or the preceding
Rollover Date, Conversion Date or Interest Payment Date, as the
case may be, for such Loan to and including the day preceding
such Interest Payment Date and shall be calculated on the
principal amount of the Prime Rate Loan or USBR Loan, as the case
may be, outstanding during such period and on the basis of the
actual number of days elapsed in a year of 365 days or 366 days,
as the case may be. Changes in the Prime Rate or USBR shall be
immediately reflected in the interest rate payable on each Prime
Rate Loan and USBR Loan, respectively, without the necessity of
any prior notice to the Borrowers; provided, however, that the
Agent shall use its best efforts to give notice to the Borrowers
of a change in Prime Rate or USBR, if not otherwise publicly
announced, but shall have no liability for its failure to do so.
(b) Interest on LIBOR Loans. The Borrower shall pay
interest on each LIBOR Loan during each Interest Period
applicable thereto in Canadian Dollars, in the case of Canadian
LIBOR Loans, and U.S. Dollars, in the case of U.S. LIBOR Loans,
at a rate per annum, expressed on the basis of a 360 day year,
equal to the Canadian LIBOR, in the case of Canadian LIBOR Loans
and the U.S. LIBOR, in the case of U.S. LIBOR Loans, determined
by the Agent with respect to such Interest Period, plus, in each
case, 0.155% per annum. Each determination by the Agent of the
Canadian LIBOR or U.S. LIBOR, as the case may be, applicable to
an Interest Period shall, in the absence of manifest error, be
binding upon the Borrower. Upon determination of the Canadian
LIBOR or U.S. LIBOR, as the case may be, applicable to an
Interest Period, the Agent shall notify the Borrower of such
rate. Such interest shall be payable in arrears on each Interest
Payment Date for such Loan for the period from and including the
Drawdown Date or the preceding Rollover Date, Conversion Date or
Interest Payment Date, as the case may be, for such Loan to and
including the day preceding such Interest Payment Date and shall
be calculated on the principal amount of the LIBOR Loan
outstanding during such period and on the basis of the actual
number of days elapsed divided by 360. For the purposes of this
Agreement, whenever interest is calculated on the basis of a year
of 360 days, each rate of interest determined pursuant to such
calculation expressed as an annual rate for the purposes of the
Interest Act (Canada) is equivalent to such rate as so determined
multiplied by the actual number of days in the calendar year in
which the same is to be ascertained, whether 365 or 366, as the
case may be, and divided by 360.
3.2 Other Arrears. If the Borrower fails to pay any amount
payable by it hereunder, other than the principal amount of a
Loan or any interest payable thereon, on the due date therefor,
the Borrower shall, if such overdue amount is not paid within the
first five Banking Days following the due date therefor, on
demand by the Agent from time to time (unless the failure to pay
such amount is the fault of the Lenders or the Agent) pay
interest on such overdue amount, from the due date up to the date
of actual payment as well after as before judgment, until paid,
at a rate per annum equal to, in the case of an amount due
denominated in Canadian Dollars, the Prime Rate, and in the case
of an amount due denominated in U.S. Dollars, the USBR, plus, in
each case, 1% per annum. Notwithstanding the foregoing, if the
obligation of the Borrower to pay any interest provided for by
this Section 3.3 or any portion thereof is unenforceable as being
contrary to law or for any other reason, the interest payable
shall be the portion of such additional interest which the
Borrower has an enforceable obligation to pay.
3.3 Compounding of Interest. Interest on all overdue
amounts under this Agreement shall be compounded on the last
Banking Day of each month during the period of arrears.
4. CHANGES IN CIRCUMSTANCES
4.1 Increase in Costs. (a) If at any time the Lenders or
any of them determine in good faith (which determination shall be
conclusive) and provide the Agent, which shall so provide the
Borrower, with a certificate in accordance with this Section 4.1
stating that, in respect of any LIBOR Loan or Bankers' Acceptance
(except as provided below):
(i) any future law, regulation, rule, treaty or
official directive (whether or not having the
force of law), or any change in any present or
future law, regulation, rule, treaty or official
directive or in the interpretation or application
thereof by any authority charged with the
administration thereof or by any court of
competent jurisdiction:
(A) that subjects the Lenders or any of them to
any tax with respect to payments of principal
of or interest on or other fees in respect of
any such Loan or Bankers' Acceptance (other
than tax levied or imposed on the overall net
income of the Lenders or any of them or a tax
in lieu of a tax on the overall net income of
the Lenders or any of them or a franchise tax
or other tax imposed for the privilege of
doing business by any jurisdiction wherein
the Lenders or any of them are incorporated
or organized or now or hereafter carry on
business); or
(B) that changes the basis of taxation of
payments to the Lenders or any of them of
principal of or interest on or other fees in
respect of any such Loan or Bankers'
Acceptance (other than a change in the rate
of tax levied or imposed on the overall net
income of the Lenders or any of them by any
jurisdiction wherein the Lenders or any of
them are incorporated or organized or now or
hereafter carry on business); or
(C) that imposes, modifies or applies any reserve
and/or special deposit requirements against
assets held by or deposits in or for the
account of, or such Loans or Bankers'
Acceptances by, the Lenders or any of them;
or
(D) that directly affects the cost to the Lenders
or any of them of making, funding or
maintaining any such Loan or Bankers'
Acceptance or any Commitment in respect
thereof or otherwise imposes on the Lenders
or any of them any other condition affecting
this agreement or any such Loan or Bankers'
Acceptance or any Commitment in respect
thereof; or
(ii) compliance by the Lenders or any of them with any
future request, law, regulation, directive or
interpretation, or change in any present or future
law, regulation, directive or interpretation, of
any applicable monetary, fiscal or other
governmental agency or authority (whether or not
having the force of law);
has the effect of
(I) increasing the cost to the Lenders or any of them
of making, maintaining or funding such Loans or
Bankers' Acceptances;
(II) reducing the amount of principal or interest or
other fees with respect to such LIBOR Loan or
Bankers' Acceptance received or receivable by the
Lenders or any of them hereunder with respect to
such LIBOR Loan or Bankers' Acceptance or the
effective return to the Lenders or any of them on
or calculated by reference to the gross amount of
any sum received or receivable by them from the
Borrower hereunder with respect to such LIBOR Loan
or Bankers' Acceptance; or
(III) causing the Lenders or any of them to make
any payment or to forego any interest or
other return on or calculated by reference to
the gross amount of any sum received or
receivable by the Lenders or any of them
hereunder;
by or in an amount which the Lenders or any of them, acting
reasonably, consider material, and also stating that such Lender
will, as its general practice if the loan and other similar
agreement to which it is a party permit it to do so, be requiring
other borrowers to make payments to it of the general type herein
provided, then within fifteen Banking Days from the receipt by
the Borrower of the aforesaid certificate, the Borrower shall,
subject to the provisions of subsection 4.1(b), pay to the Agent
such amount as shall reimburse such Lenders for such additional
cost, reduction, payment, foregone interest or other return.
Notwithstanding the foregoing, no reimbursement of any additional
cost, reduction, payment, foregone interest or other return which
results from the occurrence of an event described in clause
4.1(a)(i) or 4.1(a)(ii) shall be made pursuant to this
Section 4.1 with respect to any All-in Bankers' Acceptance which
is accepted by a Lender following the determination in good faith
by such Lender that such event has occurred and has resulted in
such additional cost, reduction, payment, foregone interest or
other return. The certificate shall be delivered by such Lenders
to the Agent and by the Agent to the Borrower not later than five
days after such Lenders, acting reasonably, have been able to
determine such amount, provided that any delay of such Lenders or
the Agent, as the case may be, in delivering such certificate
beyond such five day period shall not, except as provided in
subsection 4.1(b), affect the rights of such Lenders under this
Section 4.1. The certificate of such Lenders as to any amount
payable pursuant to this Section 4.1 shall be signed by a duly
authorized officer thereof and shall set out, in reasonable
detail, the costs, reduction, payment or foregone interest or
other return incurred by such Lenders, the calculation thereof
and the reasons therefor and shall, in the absence of manifest
error, be conclusive evidence of the facts set out therein.
(b) Notwithstanding the foregoing, no amount shall be
payable to a Lender pursuant to subsection 4.1(a) if:
(i) the Lender failed to use its reasonable best
efforts to avoid or reduce such costs, reduction,
payment or foregone interest or other return, as
the case may be, in respect of which such amount
is claimed; or
(ii) for any period prior to the time the Lender gives
notice to the Agent and to the Borrowers of any
event which may give or gives rise to any rights
of such Lender under this Section 4.1 and that
such Lender intends to claim any amount under this
Section 4.1 as a result of such event, unless such
notice is given within ten days after the Lender
has incurred such cost, reduction, payment,
foregone interest or other return, and in the case
where such notice is given within ten days of such
incurrence, for the period from the date of such
incurrence.
(c) In the event that any Lender shall have determined that
the adoption after the date hereof of any law, rule, guideline or
regulation regarding capital adequacy, or any change after the
date hereof in any existing or future law, rule, guideline or
regulation regarding capital adequacy (excluding, however, the
phasing-in of any existing law, rule, regulation or guideline
regarding capital adequacy) or in the interpretation or
application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive
made or adopted after the date hereof regarding capital adequacy
(whether or not having the force of law) from any authority
charged with the administration thereof or by any court of
competent jurisdiction, does or shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital
as a consequence of its obligations hereunder to a level below
that which such Lender or such corporation could have achieved
but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time, within 30 days after
receipt (whenever occurring) of a certificate from such Lender
(which shall be executed by an officer thereof and a copy of
which shall be delivered to the Agent), the Borrowers jointly and
severally agree to pay to such Lender such additional amounts as
are stated therein to be required to compensate it for such
reduction. The certificate of such Lender as to the amount of
such reduction shall set forth in reasonable detail the
computation of such reduction and shall be binding and conclusive
in the absence of manifest error. A Lender which demands
indemnification hereunder as a result of a reduction referred to
herein shall deliver the certificate referred to above to the
Borrowers demanding indemnification no later than the later of
(i) the thirtieth day immediately following each realization by
such Lender of such reduction (and such certificate shall certify
that the amounts set forth therein were realized within such
30 day period) and (ii) the thirtieth day immediately following
such Lender's knowledge of the realization by such Lender of such
reduction (and such certificate shall so certify).
4.2 Conversion. In the event of the Lenders or any of them
providing a Borrower with a certificate pursuant to Section 4.1
hereof with respect to a LIBOR Loan, the Borrower, at its option,
shall have the right to require the Lenders, for a period of
three Banking Days after receipt of such certificate by the
Borrower, to effect a Conversion to a Prime Rate Loan or a USBR
Loan as it shall select.
4.3 Repayment. In the event that: (a) a demand for a
payment from the Borrower is made by a Lender pursuant to
Section 4.1(a), the Borrower receives from a Lender a notice
pursuant to subsection 4.1(b) or the Borrower receives a
certificate from a Lender pursuant to Subsection 4.1(c), the
Borrower may, in its discretion, provided no Default or Event of
Default has occurred which is then continuing or (b) the
"Commitment" (as defined in the USD Agreement) of the Affiliated
USD Bank of a Lender is being terminated as contemplated by
Section 2.16(c) thereof, the Borrower shall be obligated to, in
each case subject to the provisions of the Bank Act (Canada)
restricting the activities of Canadian chartered banks and their
participations in loan syndications, repay to such Lender all
(but not less than all) of its Loans hereunder (provided it also
pays at such time all accrued and unpaid interest, fees and other
amounts payable hereunder to such Lender) and terminate all
obligations of such Lender (the "Terminated Lender") herein, on
the following terms and conditions:
(i) until the Terminated Lender's obligations are
terminated, as contemplated herein, the Borrower
shall continue to pay the increased costs or
additional amounts in accordance with the
provisions of Section 4.1;
(ii) the Borrower shall have given written notice to
the Agent of the exercise of its rights pursuant
to the provisions of this Section 4.3;
(iii) if pursuant to subsection 2.19 of the USD
Agreement the Affiliated USD Bank of a Lender
is replaced thereunder by a financial
institution as a "Tranche B Bank" under the
USD Agreement, the remaining parties to this
Agreement will take such action as may
reasonably be required to permit such
financial institution or an affiliate thereof
(provided such financial institution or its
affiliate is a Canadian chartered bank or, if
it is not, another Canadian financial
institution acceptable to the Majority
Lenders (which acceptance shall not be
unreasonably withheld)) to become a party
hereto as a Lender with a Commitment not in
excess of the Commitment of the Lender of the
Affiliated USD Bank which was so replaced;
and;
(iv) notwithstanding any other provision of this
Section 4.3 to the contrary, where a Terminated
Lender has purchased an All-in Bankers' Acceptance
or made a Fixed Rate Loan, on its termination as a
Lender hereunder the Borrower shall not repay such
All-in Bankers' Acceptance or such Fixed Rate Loan
and the Borrower, Deere U.S. and the Terminated
Lender, acting reasonably shall enter into such
documentation as may be necessary in order to make
the All-in Bankers' Acceptance or Fixed Rate Loan
a standalone loan outside of the terms of the
Credit Facility but otherwise incorporating such
of the provisions of this Agreement and the
documentation entered into pursuant hereto as may
be necessary in order to ensure the integrity of
such All-in Bankers' Acceptance or Fixed Rate Loan
including, without limitation, the representations
and warranties, covenants, events of default and
remedies contained within this Agreement and
subordination and guarantee arrangements in
respect of such All-in Bankers' Acceptance and
such Fixed Rate Loans substantially in the form of
the Subordination Agreement and the Guarantees.
Upon the Borrower and the Terminated Lender
entering into such documentation, the indebtedness
owing by the Borrower to the Terminated Lender
pursuant to such All-in Bankers' Acceptance or
such Fixed Rate Loans shall be governed entirely
by such separate documentation and shall not form
part of the Credit Facility pursuant hereto.
5. IMPOSSIBILITY OF MAKING LIBOR LOANS
5.1 Mandatory Conversion.
(a) Notwithstanding anything herein contained, but subject
to Section 5.3, if at any time while any LIBOR Loan remains
outstanding, the Lenders or any of them determine in good faith
(which determination shall be conclusive) and notify the Agent,
which shall forthwith notify the Borrower, that any future law,
regulation, treaty or official directive, or any change in any
present or future law, regulation, treaty or official directive,
or in the interpretation or application thereof, by any authority
charged with the administration thereof or by any court of
competent jurisdiction, has made it unlawful or impossible for
the Lenders or any of them to make, to maintain or to fund such
LIBOR Loan or to give effect to any of their related obligations
as contemplated hereby, the Agent by such notice shall require
that the Borrower shall, and the Borrower, after receipt of such
notice shall, at the end of the then current Interest Period for
such LIBOR Loan or at such earlier date as may be required by any
such law, regulation, treaty or official directive, effect a
Conversion to a Prime Rate Loan, or a USBR Loan, as it shall
select.
(b) Notwithstanding any other provision of this Agreement,
the Borrower shall give notice to the Lenders of any Conversion
required under this Section 5.1, but may do so without regard to
the time period contained in Section 2.11.
5.2 Termination of Facility for LIBOR Loans.
Notwithstanding anything herein contained, but subject to
Section 5.3, the Borrower agrees with the Lenders that if at any
time prior to the commencement of an Interest Period the Lenders
or any of them shall have determined in good faith (which
determination shall be conclusive) and give notice to the Agent,
which shall forthwith notify the Borrower, (a) that it has become
unlawful or impossible for the Lenders or any of them to make, to
maintain or to fund any part of a LIBOR Loan or (b) that the
ability of the Lenders or any of them to make, to maintain or to
fund such LIBOR Loan or part thereof has been materially
adversely affected because (in the case of subsection (b) of this
Section 5.2 restricted to clauses (i) and (ii) below):
(i) of circumstances affecting the London Interbank
Market generally which the Majority Lenders have
determined have resulted in there not existing
adequate and fair means for ascertaining the rate
of interest applicable to such LIBOR Loan during
such Interest Period;
(ii) deposits in Canadian Dollars or U.S. Dollars, as
the case may be, are not available to Lenders
which constitute Majority Lenders in the relevant
London Interbank Market in sufficient amounts in
the ordinary course of business; or
(iii) of any change in applicable law or regulation
or regulatory requirement or in the
interpretation thereof or in currency
exchange rates or exchange controls;
then, from and after the date of such determination for so long
as such conditions shall continue to exist, the Borrower shall
not have the right to obtain or maintain a LIBOR Loan hereunder.
When the Lenders or any of them, or the Majority
Lenders, as the case may be, have made any such determination,
the Borrower shall effect a Conversion to a Prime Rate Loan or to
a USBR Loan, as it shall select, in respect of all outstanding
LIBOR Loans at the end of the Interest Periods thereof. The
provisions of subsection 5.1(b) shall apply mutatis mutandis to
any such Conversion.
5.3 Lender Covenants. The Lenders shall, with respect to
the events set out in Sections 5.1 and 5.2 above, use their
reasonable best efforts to avoid the application thereof
(including, for greater certainty, the changing of lending
offices) and shall, acting reasonably, give notice to the Agent
and to the Borrowers of any such potential application, but shall
be under no liability for their failure so to do.
5.4 Repayment. The provisions of subsection 4.3(a) shall
apply, mutatis mutandis, in respect of any Lender which gives the
notice, and requires the Borrower to take the action,
contemplated by Section 5.1 or Section 5.2 above.
6. BANKERS' ACCEPTANCE
6.1 Bankers' Acceptance. The Borrower may, pursuant to
Section 2.5 or Section 2.11, and in accordance with the
provisions of this Section 6.1, give the Agent notice that
Bankers' Acceptances will be outstanding under the Credit
Facility. In addition to the other restrictions on maturity
dates hereafter set out, no Bankers' Acceptance (other than an
All-in Bankers' Acceptance which the relevant Lender has
consented to extending beyond the Loan Termination Date) shall
have a maturity which extends beyond the Loan Termination Date of
the applicable Lender. Acceptances by Lenders of drafts
presented to the Lenders shall be subject to the terms,
conditions and proceedings set out below:
(a) Borrower Drafts. All drafts presented by a Borrower
for acceptance by the Lenders shall be drawn on the
appropriate form of the relevant Lender and shall
mature on a day on which the relevant Lender is open
for business at the place where the acceptance is
payable, which day shall not be less than 30 days nor
more than 365 days after the date of issuance of the
draft presented for acceptance. The Borrower shall not
claim any days of grace for the payment at maturity of
any of its drafts presented to and accepted by a Lender
pursuant hereto.
(b) Stamping Fee. In respect of each draft presented to
and accepted by a Lender, the Borrower shall pay the
relevant Lender a fee calculated on the basis of a 365
day or 366 day year, as the case may be, at the rate
per annum equal to 0.25% per annum of the face amount
of such draft for its term being the actual number of
days in the period commencing on and including the date
the Lender accepts the Borrower's draft and ending on
but excluding the day of maturity of the Bankers'
Acceptance, such fee to be paid upon acceptance by the
Lender of such draft without any reduction by reason of
such payment being in advance.
(c) All-in Options. A Borrower may request any one or more
Lenders to purchase its drafts at an all-in acceptance
rate (the "All-in Bankers' Acceptance Rate") advised by
such Lender or Lenders (any such draft which is so
accepted at the All-in Bankers' Acceptance Rate being
called an "All-in Bankers' Acceptance"). For the
purposes of this subsection (c), a Lender's All-in
Bankers' Acceptance Rate for a particular draft is the
rate at which such Lender would be willing to purchase
such Canadian Dollar draft (which may or may not be
accepted by the Lender) which rate shall include the
Lender's stamping fee. Notice of any All-in Bankers'
Acceptance and the basic terms thereof shall be given
by the Borrower to the Agent in writing as soon after
the making thereof as reasonably possible. Upon
receipt of such notice, the All-in Bankers' Acceptance
shall be governed by the provisions hereof, unless upon
request by the Agent the relevant Lender shall fail to
confirm that such Bankers' Acceptance is an All-in
Bankers' Acceptance for the purposes hereof, in which
case such acceptance shall not be an All-in Bankers'
Acceptance hereunder and shall not be governed by the
provisions hereof. Any Lender who purchases an All-in
Bankers' Acceptance hereunder, shall at such time elect
whether such All-in Bankers' Acceptance shall or shall
not be excluded for the purpose of determining such
Lender's Unutilized Commitment. Such Lender shall, as
soon as reasonably possible following such election,
give notice thereof to the Borrowers and the Agent.
For greater certainty, notwithstanding anything to the
contrary in this Agreement, a Lender may purchase one
or more All-in Bankers' Acceptances hereunder in an
amount which causes the Equivalent Amount in U.S.
Dollars of the aggregate principal amount of Loans made
by it hereunder to exceed its Commitment. None of the
provisions of this Section 6.1, except the provisions
of this subsection (c), and none of the provisions of
Article 14 relating to the acceptance of Bankers'
Acceptances on a Pro Rata basis, shall apply to All-in
Bankers' Acceptances.
(d) General Mechanics.
(i) Concurrently with the delivery by a Borrower to
the Lenders of a Drawdown Notice, Rollover Notice
or Conversion Notice requesting the acceptance of
a Bankers' Acceptance, such Borrower shall deliver
to each of the Lenders at its BA Branch drafts
drawn by such Borrower upon such Lender in an
aggregate principal amount at maturity equal to
such Lender's Pro Rata share (rounded in such
manner as the Agent deems equitable so that the
share of each Lender shall be Cdn.$100,000 or an
integral multiple thereof) of each proposed
Bankers' Acceptance before 10:00 a.m. (Toronto
time) on the Drawdown Date, Rollover Date or
Conversion Date specified by such Borrower in its
Drawdown Notice, Rollover Notice or Conversion
Notice and, at the same time, such Borrower shall
advise the Lenders of the acceptance date and term
to maturity for such Bankers' Acceptance which
term to maturity shall be the same for all
Lenders. Such draft shall be properly drawn and
executed by such Borrower on such Lender's
standard form in effect at the time, subject as
follows:
(A) each draft of a Bankers' Acceptance delivered
to a Lender shall mature on the last day of
the Interest Period with respect thereto; and
(B) the provisions of this Agreement, and not the
provisions contained in any Lender's standard
form agreement relating to Bankers'
Acceptances, shall govern the relationship
between the Borrower and the Lenders.
(ii) In anticipation of the maturity of a Bankers'
Acceptance, the issuing Borrower shall either:
(A) deliver to the Agent a Rollover Notice that
such Borrower intends to draw and present for
acceptance on the maturity date drafts of the
Borrower to be issued as new Bankers'
Acceptances (in which case the provisions of
subsection 14.8(e) below shall govern);
(B) deliver to the Agent a Conversion Notice
pursuant to Section 2.11 (in which case the
provisions of subsection 14.8(g) below shall
govern); or
(C) on the maturity date of the maturing Bankers'
Acceptance, pay to the Agent for payment to
the relevant Lender an amount equal to the
face amount of such Bankers' Acceptance.
If the issuing Borrower fails to so notify the Agent or
make such payment, each Lender shall effect a
Conversion into a Prime Rate Loan as if a Conversion
Notice pursuant to subclause 6.1(d)(i)(B) above had
been given by such Borrower to the Agent.
(iii) To facilitate the acceptance of Bankers'
Acceptances as aforesaid, each Borrower
shall, upon execution of this Agreement and
from time to time as required, provide to
each Lender at its BA Branch drafts drawn in
blank by such Borrower upon such Lender in
quantities sufficient for each Lender to
fulfil its obligations hereunder. No Lender
shall be responsible or liable for its
failure to accept a Bankers' Acceptance as
required hereunder if the cause of such
failure is, in whole or in part, due to the
failure of such Borrower to provide such
instruments to such Lender on a timely basis.
7. PAYMENTS
7.1 Place and Manner of Payments. All payments to be made
by the Borrower hereunder shall be made in Canadian Dollars (in
the case of Prime Rate Loans, Bankers' Acceptances, Canadian
LIBOR Loans, Fixed Rate Loans and Operating Facility Loans made
in Canadian Dollars) and U.S. Dollars (in the case of USBR Loans,
U.S. LIBOR Loans, Fixed Rate Loans and Operating Facility Loans
made in U.S. Dollars) in immediately available funds received by
the Agent at the Designated Branch.
7.2 Indemnity. Each Borrower agrees to indemnify each
Lender that delivers a certificate in accordance with this
Section 7.2 and to hold such Lender harmless for any cost or
expense which such Lender may reasonably sustain or incur as a
consequence of (a) default by such Borrower in payment of the
principal amount of any LIBOR Loan of such Lender, including but
not limited to, any such cost or expense arising from interest or
fees payable by such Lender to lenders of funds obtained by it in
order to maintain its LIBOR Loans hereunder provided that any
such cost or expense owing by such Borrower shall be credited
against any interest due on overdue interest with respect to such
Loan, (b) failure by such Borrower in making a Drawdown, Rollover
or Conversion with respect to a LIBOR Loan after such Borrower
has given a notice in accordance with Section 2.5, 2.10 or 2.11,
as the case may be, unless such failure is as a result of the
circumstances referred to in either Section 5.1 or 5.2, (c) the
Lenders making any Drawdown, Conversion or Rollover pursuant to
Section 2.9, or (d) a prepayment of a LIBOR Loan pursuant to
Section 2.13 (except for prepayments pursuant to
subsection 2.13(b)) or Conversion of a LIBOR Loan pursuant to
Section 2.11, in each case on a day which is not the last day of
an Interest Period with respect thereto, including in all cases
where applicable but not limited to, any such cost or expense
arising from interest or fees payable by such Lender to lenders
of funds obtained by it in order to maintain such LIBOR Loans
hereunder. Each Lender shall use its best efforts (as do not
result in the incurrence of additional costs or expenses or of
additional credit exposure) to mitigate such cost or expense and
no amount shall be payable to such Lender pursuant to this
Section 7.2 if such Lender failed to use such best efforts. A
certificate as to any amount payable pursuant to this Section 7.2
shall be submitted within a reasonable time after the incurrence
of such cost or expense so claimed by each such Lender (and shall
be executed by a duly authorized officer thereof) to the relevant
Borrower and the Agent, setting forth the amount so claimed and
the computation of such amount in reasonable detail, and shall be
conclusive in the absence of a manifest error. The amount of
such cost or expense shall (unless the amount thereof is being
disputed in good faith by the Borrower on the basis of manifest
error, in which event the undisputed amount of such cost or
expense) be payable by the Borrower to the Agent within fifteen
Banking Days after the receipt by the Borrower of such
certificate.
8. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to establish the Credit Facility,
the Borrower represents and warrants to the Lenders, upon each of
which representations and warranties the Lenders specifically
rely, as set out below in this Article 8. For all purposes of
this Article 8, when a representation and warranty is made with
respect to a Guarantor, it shall be made only from and after the
date upon which such Person becomes a Guarantor, and only so long
as such Person continues as a Guarantor, in accordance with the
provisions hereof.
8.1 Due Incorporation. Each of the Borrowers, the
Guarantors and Deere U.S. is duly incorporated and is validly
subsisting under the laws of the jurisdiction of its
incorporation. As at the date hereof, Deere U.S. owns all of the
issued and outstanding shares of Deere Canada, Deere Canada is
the owner of all of the issued and outstanding shares of each of
Deere Finance, Homelite Canada Limited and John Deere Insurance
Company of Canada, and Deere Finance is the owner of all of the
issued and outstanding shares of CEFC, in each case free and
clear of any and all liens, charges, hypothecs, security
interests or other encumbrances or restrictions of any nature
whatsoever other than as arise by virtue of any such Person being
a "private company" within the meaning of the Securities Act
(Ontario). As at the effective date hereof, except as aforesaid,
there are no Subsidiaries of Deere Canada.
8.2 Power and Authority to Own Assets and to Carry on
Business. Each of the Borrowers and the Guarantors has the
corporate power and authority to own the assets owned by it, and
to carry on its business as presently carried on by it, and is
duly qualified to do business in each jurisdiction where the
nature of any assets owned by it that are material to the
financial condition of the Deere Group and any business carried
on by it in such jurisdiction that is material to the financial
condition of the Deere Group make such qualification necessary.
8.3 Power and Authority to Enter into this Agreement. The
Borrower has the corporate power and authority to execute, to
deliver and to perform its obligations under this Agreement, the
Guarantee which is to be delivered by it and all other agreements
required hereunder to be executed by it, each Guarantor has said
power and authority with respect to its Guarantee and Deere U.S.
has said power and authority with respect to the Subordination
Agreement, and this Agreement, each such Guarantee and other
agreements and the Subordination Agreement have been duly
authorized by all necessary corporate action of, and have been
duly executed and delivered by, the Borrower, each Guarantor or
Deere U.S., as the case may be, and constitute legal, valid and
binding obligations of the Borrower, each Guarantor or Deere
U.S., as the case may be, enforceable (except to the extent of
the application of laws affecting creditors rights generally,
general equitable principles and the Currency Act (Canada)) in
accordance with their respective terms.
8.4 Licences. Except as disclosed in writing to the Agent
for delivery to the Lenders prior to the effective date hereof,
each of the Borrowers and the Guarantors has obtained all
required licences, permits and approvals from any and all
governments, governmental commissions, boards or other agencies
which are material to the financial condition of the Deere Group.
8.5 Litigation. Except as set forth in Schedule G hereto,
there are no actions, suits or proceedings, of which the Borrower
has knowledge, pending, or specifically threatened in writing to
a senior officer of the Borrower or a Guarantor, against or
affecting the Borrower or any one or more Guarantors at law or in
equity or before or by any governmental department, commission,
board, bureau or agency, domestic or foreign, or before any
arbitrator, which would, in the reasonable opinion of the
Borrower, result in any material adverse change in the financial
condition of the Deere Group, or the collective ability of the
Deere Group to perform the collective obligations of the Deere
Group under or pursuant to this Agreement and the Guarantees, and
neither the Borrower nor any Guarantor is in default with respect
to any judgment, order, writ, injunction, award, rule or
regulation of any court of competent jurisdiction, arbitrator or
governmental department, commission, board, bureau or agency,
domestic or foreign, which, either separately or in the
aggregate, would result, in the reasonable opinion of the
Borrower, in any such material adverse change.
8.6 Burdensome Provisions. Neither the Borrower nor any
Guarantor is a party to any agreement or instrument, or subject
to any corporate restriction or any judgment, order, writ,
injunction, award, rule or regulation, which materially and
adversely affects or, so far as the Borrower may reasonably
foresee, in the future may materially and adversely affect, the
financial condition of the Deere Group.
8.7 Financial Statements. The Borrower has furnished to
the Lenders the most recent annual Financial Statements being, at
the effective date of this Agreement, for the fiscal year ended
October 31, 1994. Such Financial Statements have been prepared
in accordance with generally accepted accounting principles
consistently applied, except as stated therein or in the notes
thereto. Such Financial Statements present fairly the financial
position and results for such fiscal year of the relevant Person
or Persons in connection with which such Financial Statements
have been prepared.
8.8 Full Disclosure. None of the Financial Statements
referred to in Section 8.7 hereof or the following financial
statements and other financial documents furnished by the
Borrowers to the Lenders in connection herewith: 1994 Financial
Statements for each Borrower; Deere Finance Form 29 for the year
ended October 31, 1994 as filed with Ontario Securities
Commission; Statement of Loss Experience of Borrowers'
receivables for the five year period ended October 31, 1994,
contained, as of the time such statements and other financial
documents were so furnished (except to the extent that, prior to
the effective date of this Agreement, the Borrower has given
corrective notice in writing to the contrary to the Agent for
delivery to the Lenders), any untrue statement of a material
fact.
8.9 No Breach because of Agreement. Neither the execution
nor the delivery of this Agreement, the Guarantees, the
Subordination Agreement or any other documents contemplated
hereby or to be furnished pursuant hereto or the consummation of
the transactions herein or therein contemplated, nor compliance
with the terms, conditions and provisions hereof or thereof
conflicts with or will conflict with, or results or will result
in any material breach of, or constitutes or will constitute a
material default under, any of the provisions of the charter
documents or by-laws of the Borrower, any Guarantor or Deere
U.S., as the case may be, or of any agreement or instrument to
which any of them is a party or by which any of them is bound,
and which is material to the financial condition of the Deere
Group, or results or will result in the creation or imposition of
any material Mortgage (other than Permitted Encumbrances) upon
any of their assets.
8.10 Ownership of Assets. Each of the Borrowers and the
Guarantors is the owner of such of its respective assets as are
material to the financial condition of the Deere Group subject to
no Mortgage except for Permitted Encumbrances. The amount of
Indebtedness secured or which may be secured by the Mortgages
referred to in clause (i) of the definition of Permitted
Encumbrances does not at the date of this Agreement exceed Cdn.
$6,000,000.
8.11 Consents. No consents, approvals, authorizations,
exemptions, registrations, filings or declarations of any
government or governmental authority or any other Person are
required to be obtained or made on the part of the Borrower, any
Guarantor or Deere U.S. in connection with the execution,
delivery and performance of obligations under this Agreement or
the Guarantee by the Borrower or of obligations under the
Guarantees by any Guarantor or the Subordination Agreement by
Deere U.S. and except as have been obtained or made and copies of
which have been delivered to the Lenders prior to the execution
hereof (in the case of the Borrowers and Deere U.S.) or of its
Guarantee (in the case of a Guarantor).
8.12 Credit Policies. The established credit policies of
the Deere Group as they exist as at the date of this Agreement
with respect to retail receivables are designed to avoid the
creation of, among others, the following types of retail
receivables:
(i) receivables arising out of the sale, rental or
lease of equipment which are not subject to a duly
perfected security interest or duly registered
retention of title in favour of a member of the
Deere Group ranking, to the extent permitted by
law, in priority to all security interests, liens
and other encumbrances of any kind;
(ii) receivables from debtors, renters or lessees who
did not deal at arms' length with a member of the
Deere Group;
(iii) receivables which are subject to any
deduction or set-off for any amounts payable
to a debtor, renter or lessee whether related
to the receivable or otherwise; and
(iv) receivables which may not be collected until a
member of the Deere Group performs or causes to be
performed any additional service for, or performs
or incurs any additional obligation for, a debtor,
renter or lessee;
and such credit policies are otherwise in accordance in all
material respects with the description thereof contained in the
Ontario Securities Act Form 29 of Deere Finance for its fiscal
year ended October 31, 1994, a copy of which has been provided to
the Lenders.
9. CONDITIONS PRECEDENT
9.1 Closing. The closing of the transactions contemplated
herein shall take place at 2:00 p.m. (Toronto time) on April 5,
1995 at the offices of Tory Tory DesLauriers & Binnington, Aetna
Tower, Toronto-Dominion Centre, Toronto, Ontario or at such other
place as the Agent may direct.
9.2 Conditions Precedent to Establishment of Credit
Facility. The obligation of the Lenders to establish the Credit
Facility is subject to the fulfilment of the following conditions
precedent to the satisfaction of the Lenders on or prior to April
5, 1995:
(a) All proceedings to be taken in connection with the
transactions contemplated by this Agreement and all
documents incidental thereto shall be satisfactory in
form and substance to the Lenders, and the Lenders
shall have received certified copies (or actual
certificates where appropriate) of all documents which
they may reasonably request in connection with such
transactions and of the records of all corporate
proceedings in connection therewith, including:
(i) resolutions of the boards of directors of the
Borrowers authorizing the entering into of this
Agreement and the Guarantee and, in the case of
Deere Canada, the Subordination Agreement;
(ii) resolution of the board of directors of Deere U.S.
authorizing the entering into of the Subordination
Agreement;
(iii) the Certificates of Incorporation of each of
the Borrowers and Deere U.S. and all
amendments thereto;
(iv) the by-laws of each of the Borrowers and Deere
U.S.;
(v) certificates of compliance, status or good
standing, as the case may be, of each of the
Borrowers and Deere U.S. from the appropriate
federal, provincial and state government
departments; and
(vi) certificates of incumbency of each of the
Borrowers and Deere U.S.
(b) The Lenders shall have received the opinions of Fasken
Campbell Godfrey, special counsel to the Borrowers, of
Frank S. Cottrell or his successor as general counsel
to Deere U.S., and of Tory Tory DesLauriers &
Binnington, special counsel to the Lenders, dated April
5, 1995, in the forms of Schedules H, I and J hereto,
respectively.
(c) The Lenders shall have received the executed Guarantees
and Subordination Agreement.
(d) Except as otherwise disclosed in writing to the Lenders
prior to the date of this Agreement, on and as of the
date of this Agreement, there shall have been no change
in the financial condition of the Borrowers as shown on
the most recent fiscal year-end Financial Statements
furnished to the Lenders which, in the aggregate, is
material and adverse to the Deere Group.
(e) The USD Agreement shall have been executed and
delivered by the parties to the USD Agreement and all
conditions to the effectiveness of the USD Agreement
shall have been satisfied.
(f) All principal, interest and other amounts owing under
or pursuant to the credit facility established in
favour of the Borrowers pursuant to the loan agreement
made as of the 26th day of March, 1993 between the
Borrowers, certain banks and The Toronto-Dominion Bank,
as agent (the "Existing Loan Agreement"), shall have
been repaid in full and all obligations of the lenders
and banks under the Existing Loan Agreement shall have
been terminated.
9.3 Conditions Precedent to Drawdowns. The obligation of
the Lenders to make the initial and any subsequent Drawdown is
subject, in addition to the other provisions hereof, to all
representations and warranties contained in Article 8 hereof
(except as affected by transactions contemplated by this
Agreement) being true and correct in all respects on the date of
the Drawdown (limited, in respect of Sections 8.1 and 8.12, to
the date of the Initial Borrowing Date) and to no event having
occurred and continuing at the date of the Drawdown which
constitutes a Default or an Event of Default hereunder, and the
Borrower shall be deemed to have made a representation to this
effect to the Lenders on and as of the date of each Drawdown and
shall, if required by the Agent, provide a certificate of a
senior officer to this effect.
10. POSITIVE COVENANTS
Each of the Borrowers covenants with the Lenders that
so long as any one or more of the Lenders has any obligation
under the Credit Facility or so long as any indebtedness
hereunder remains outstanding, subject to the covenants below
applying to a Guarantor only from and after the date upon which
it becomes a Guarantor, and only so long as it continues to be a
Guarantor, in accordance with the provisions hereof:
10.1 Corporate Existence. It will, and will cause each
Guarantor to, except as occurs pursuant to a Permitted
Reorganization, carry on its business in a proper and efficient
manner consistent with sound business practices, keep or cause to
be kept proper books of account in relation to its business and,
subject to the other provisions of this Agreement, do or cause to
be done all things necessary to preserve and to keep in full
force and effect its corporate existence and that of its
Subsidiaries.
10.2 Financial, Monthly and Other Statements. Deere Canada
will forward to the Agent for delivery to the Lenders:
(a) Financial Statements for each of the first three
quarters of the fiscal year so soon as is reasonably
practicable after such Financial Statements are
available and, in any event, not later than 60 days
after the end of each such quarter;
(b) Financial Statements for each fiscal year so soon as is
reasonably practicable after such Financial Statements
are available and, in any event, not later than 120
days after the end of the fiscal year, accompanied by a
report of the auditors, without liability, indicating
that they are familiar with the provisions of this
Agreement and aware of the Events of Default herein set
out and either have or have not, in their audit of such
Financial Statements, but without having made any
special examination in this regard, become aware of any
such Event of Default having occurred and be
continuing, and the nature of any such Event of Default
of which they have become aware; and
(c) monthly reports, in the form of Schedule K hereto, for
each month during each fiscal year, certified by a
financial officer of the Borrower as being true and
correct in all material respects on and as of the
relevant month-end, as soon as available and in any
event not later than 30 days after the end of each such
month, showing the amount of Eligible Retail
Receivables, Eligible Wholesale Receivables and
Eligible Inventory as at the end of that month, a
reconciliation, if required, of the information therein
contained to generally accepted accounting principles,
the amounts of Net Worth, Subordinated Indebtedness,
Indebtedness and Indebtedness for borrowed money of the
Deere Group as of the end of the month, a
reconciliation, in the case of quarterly month-ends, of
the immediately preceding financial information to, if
required, generally accepted accounting principles, and
to the Financial Statements, and such other information
relating thereto as the Lenders may reasonably require.
10.3 Payment. It shall duly and punctually pay or cause to
be paid to the Lenders all principal and interest payable by it
hereunder and all other amounts payable hereunder on the dates,
at the places and in the manner set forth herein.
10.4 Ownership. Deere U.S. shall at all times be the owner,
directly or indirectly, of all issued and outstanding shares of
Deere Canada and Deere Finance, and Deere U.S. shall, either
directly or indirectly, at all times be the owner of all issued
and outstanding shares of each other member of the Deere Group.
10.5 Certificates. On the day or days in each year on which
Deere Canada forwards to the Lenders the Financial Statements
pursuant to subsection 10.2(a), the Borrower shall furnish to the
Lenders a certificate of the Borrower signed by a senior officer
of the Borrower stating that no condition, event or matter has
occurred and is continuing which constitutes a Default or an
Event of Default or, if the senior officer is unable to so
certify, the details in this regard.
10.6 Information about Litigation. It shall at any time and
from time to time forthwith upon obtaining any knowledge or
information relating to any actions, suits or proceedings against
the Borrower or a Guarantor which have been commenced, or which
it is reasonable to conclude will be commenced and of which a
senior officer of either the Borrower or a Guarantor has received
written notice, where such actions, suits or proceedings either
separately or in the aggregate are, or may be expected to be, in
the reasonable opinion of the Borrower, materially adverse to the
financial condition of the Deere Group or materially adverse to
the collective ability of the Deere Group to perform their
collective obligations hereunder or pursuant hereto or to the
Guarantees, as the case may be, provide to the Agent for
disclosure to the Lenders notice of such actions, suits or
proceedings.
10.7 Insurance. It will maintain and will cause each
Guarantor to maintain, with responsible insurers, insurance with
respect to its property and assets and its business against such
casualties, risks and contingencies and in such types and amounts
as are customarily, in accordance in all material respects with
Deere U.S. general business practices, maintained or caused to be
maintained and which is, in the opinion of the Borrower,
reasonable and prudent in the circumstances.
10.8 Notice of Default. It shall notify the Agent, for
disclosure to the Lenders, of any Default (provided that no such
notice need be made in respect of a Default if it is cured within
ten days after the occurrence thereof or before it becomes an
Event of Default, whichever period of time is shorter) or Event
of Default within ten Banking Days of the day on which an officer
of the Borrower becomes aware thereof.
10.9 Licences. Except as disclosed in writing to the Agent
prior to the execution hereof, it shall, and shall cause each
Guarantor to, maintain and preserve in good standing all required
licences, permits and approvals from any and all governments,
governmental commissions, boards or other agencies which are
material to the financial condition of the Deere Group.
10.10 Information and Inspection.
(a) It shall, and shall cause each Guarantor to, provide,
or afford the Agent the right to obtain, such information
pertaining to or affecting the Credit Facility to the extent that
the same is possessed or can be acquired without unreasonable
effort or expense, as the Agent, acting reasonably, deems
necessary or desirable.
(b) The Lenders or any of them shall have the right, at
reasonable times and without undue interference with the normal
operation of the relevant business and at the expense of such
Lenders (or, in the event that a Default or an Event of Default
shall have occurred and be continuing, at the expense of the
Borrower), to visit and to inspect any of the properties of the
Borrower or any Guarantor, to examine the books of account and
records of the Borrower or any such Guarantor, to make copies and
extracts therefrom, to discuss the affairs, finances and accounts
of the Borrower or any such Guarantor with, and to be advised as
to the same by, their respective officers, employees and
auditors.
10.11 Change of Auditors. It shall not make any change
in its auditors except to a nationally recognized firm of
Canadian chartered accountants at the time of such change.
10.12 Ratios. It shall cause the following ratios to be
maintained at all times:
(a) (i) 90% of the amount of Eligible Retail Receivables
plus (A) 60% of the aggregate amount of Eligible
Wholesale Receivables and Eligible Inventory; or
(B) Cdn.$200,000,000, whichever is lesser,
to
(ii) the principal amount of all Loans hereunder and
all other Indebtedness of the Deere Group for
borrowed money, other than Subordinated
Indebtedness,
to be 1:1 or more; and
(b) (i) Net Worth of the Deere Group less the amount of
aggregate principal amount of loans outstanding
pursuant to subsection 12.2(b) hereof
to
(ii) Indebtedness of the Deere Group less Subordinated
Indebtedness of the Deere Group
to be 0.20:1 or more.
10.13 Sale of Eligible Retail Receivables etc. It shall
utilize the proceeds, or necessary portion thereof, as the case
may be, of any sale of Eligible Retail Receivables and/or
Wholesale Receivables to prepay the Loans in accordance with
Section 2.13 (as if that Section made reference to a mandatory
repayment), if:
(i) such proceeds arise from a transaction or series
of related transactions and exceed Cdn.$5,000,000
or the Equivalent Amount in U.S. Dollars; and
(ii) such sale together with any Eligible Retail
Receivables and/or Eligible Wholesale Receivables
not included in the relevant monthly calculation
referred to in the balance of this Section 10.13,
if factored into the then most recent monthly
calculation of the ratio set out in subsection
10.12(a) on a retroactive basis, would cause
subsection 10.12(a) to have been breached,
in the order specified in Section 2.12 hereof, in an amount
which, if applied on a retroactive basis, would avoid the
aforesaid breach of covenant. For all purposes of this Section
10.13, a transaction described in clause (xv) of the definition
of "Permitted Encumbrances" shall be a sale of the relevant
Eligible Retail Receivables or Eligible Wholesale Receivables, as
the case may be.
11. NEGATIVE COVENANTS
Each of the Borrowers covenants with the Lenders that
so long as any one or more of the Lenders has any obligation
under the Credit Facility or so long as any indebtedness
hereunder remains outstanding, without the prior written consent
of the Lenders, subject to the covenants below applying to a
Guarantor only from and after the date upon which it becomes a
Guarantor, and only so long as it continues to be a Guarantor, in
accordance with the provisions hereof:
11.1 Reorganization. It shall not, and shall procure that
no Guarantor shall, enter into any corporate transaction (whether
by way of reconstruction, reorganization, consolidation,
amalgamation, arrangement, merger, dissolution, liquidation,
winding-up, sale or otherwise) whereby the jurisdiction governing
the Borrower or any Guarantor is changed or all or substantially
all of the undertaking, property and assets of the Borrower or
any Guarantor would become the property of any other Person or
the property of the continuing corporation resulting from any
such corporate transaction unless:
(a) if the transaction involves, directly or indirectly, a
surviving Person (i) which is to be a Borrower
hereunder, such surviving Person meets (as if they
applied to it), or (ii) which is to be a member of the
Deere Group, such surviving Person meets, in both such
cases, the requirements of clauses (i), (ii) and (iii)
of the definition of Deere Group;
(b) each surviving Person which is to be a Borrower
hereunder shall expressly assume the due and punctual
payment of the principal of and interest on the Loans,
the performance of all obligations pursuant to the
Borrower's Guarantee and the performance of every
covenant of this Agreement on the part of the Borrower
to be performed or observed (including, in the case of
Deere Canada, pursuant to the Subordination Agreement)
and each surviving Person which is to be a Guarantor
shall have assumed the performance of all obligations
pursuant to the Guarantee of that Person, in each case
by an assumption agreement, executed and delivered to
the Agent, in form reasonably satisfactory to the
Majority Lenders, and the Agent shall have received all
such opinions, in form reasonably satisfactory to the
Majority Lenders, with respect to the surviving Person
if it is to become a Borrower or a Guarantor as it was
entitled to receive hereunder at the inception of the
Credit Facility or at the time the Guarantor became a
Guarantor, as the case may be;
(c) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be
continuing; and
(d) the Borrower shall cause to be delivered to the Agent
an officers' certificate signed by two officers of the
Borrower stating that the transaction complies with
this Section 11.1 and that all conditions precedent
herein provided for relating to such transaction have
been complied with.
11.2 Negative Pledge. It shall not, and it shall procure
that no Guarantor shall, create, assume, incur or suffer to be
created, assumed or incurred or to exist, directly or indirectly,
any Mortgage on any of its assets to secure any Indebtedness,
other than Permitted Encumbrances.
11.3 Subordination Agreement. It shall not, and it shall
procure that no Guarantor shall, make any payment, or take any
other action, which would result in a breach of the terms and
conditions of the Subordination Agreement or of any other
Subordinated Indebtedness.
12. LIMITATIONS ON PAYMENTS
12.1 Payments in General. Except to the extent provided to
the contrary in this Article 12 or as otherwise required or
permitted hereunder, or except as consented to in writing by the
Majority Lenders, each of the Borrowers shall not, and each of
them shall ensure that no Guarantor shall, in any fiscal year of
the Borrower or the Guarantor, as the case may be, make any
payments of any sort whatsoever:
(a) to Deere U.S. or to any Affiliate of Deere U.S. which
is not a member of the Deere Group; or
(b) for the acquisition, other than by way of share
purchase or purchase by a Subsidiary, in any one
transaction or series of related transactions, of a
business: (i) if, after giving effect to such
acquisition, the acquiring company, if a Borrower,
would fail to meet (as if they applied to it), or, if
another member of the Deere Group, would fail to meet,
the requirements of clauses (i), (ii) and (iii) of the
definition of Deere Group, provided that this
prohibition shall not apply if the Borrowers provide
written notice to the Agent that the receivables and
inventory of the business so acquired shall not be
included in the definitions of Eligible Retail
Receivables, Eligible Wholesale Receivables and
Eligible Inventory and such receivables and inventory
are not so included by the Borrowers; or (ii) the
assets of which are not located substantially in
Canada.
Any Lender which fails to indicate in writing that it will not
consent to any such transaction within ten Banking Days after
having received written notice from the Borrower of a request for
consent shall be deemed to have consented to the transaction.
For purposes of this Article 12, "payments" means any payments or
dispositions of assets, including, without limitation, loans,
repayments of loans, contribution of surplus, equity investment,
distributions of earnings or capital, gifts, payments of
operating expenses, capital expenditures or transfers of assets.
12.2 Permitted Payments. Nothing hereinbefore in this
Article 12 contained shall prohibit at any time or from time to
time any of the following payments:
(a) dividend payments by Deere Canada and other
members of the Deere Group to Deere U.S. or any
Affiliate of Deere U.S. in amounts which, in the
aggregate, including all dividend payments made
from and after the Initial Borrowing Date to and
including the date of dividend payment, do not
exceed the amount which is 60% of the aggregate
net profits of the Deere Group for that period of
time as shown on or derived from their respective
statements of profit and loss forming part of the
Financial Statements covering all or a portion of
that period, and any amounts in excess of said
amount at any time when the ratio set out in
subsection 10.12(b) is 0.33:1 or more and will not
be reduced to less than 0.33:1 as a result of such
dividend payment;
(b) loan advances by Deere Canada to Deere U.S. so
long as the total aggregate principal amount
thereof outstanding does not at any time exceed
the amount of Subordinated Indebtedness owing by
Deere Canada to Deere U.S.;
(c) payments of principal and interest of and on
Subordinated Indebtedness to Deere U.S. by Deere
Canada effected without breaching the terms and
conditions of the Subordination Agreement and so
long as after any such payment of principal the
amount of Subordinated Indebtedness outstanding is
not less than the amount of loans by Deere Canada
to Deere U.S. referred to in subsection (b) above;
and
(d) payments for products, goods and services which
are in the ordinary course of business of the
Borrower or a Guarantor and which are made on
arm's length and commercially reasonable terms.
13. DEFAULT AND ENFORCEMENT
13.1 Events of Default. For the purposes of this
Article 13, the following events shall be applicable to a
Guarantor only from and after the date upon which it becomes a
Guarantor, and only so long as it continues to be a Guarantor, in
accordance with the provisions hereof. In this Agreement, "Event
of Default" shall mean any one of the following events:
(a) if the Borrower shall fail to pay, within two Banking
Days after the date upon which it is due, any portion
of the principal amount of any Loan in accordance with
its terms other than any portion of the principal
amount of an Operating Facility Loan because of the
failure of one or more Lenders to make Loans pursuant
to subsection 14.7(b);
(b) if the Borrower shall fail to pay, within five Banking
Days after the date upon which it is due, any interest
on any Loan or any other amount due in respect of any
such Loan, or any other amount payable to the Lenders
under this Agreement;
(c) if the Borrower shall default in the performance of or
compliance with any of the provisions of Articles 11 or
12 hereof; provided that: (i) after the occurrence of
any such default, the Lenders shall not exercise any of
the remedies set forth in Section 13.2 hereof, but may
terminate the Borrowers' rights to obtain any further
Drawdown or any Conversion or Rollover into Bankers'
Acceptances or LIBOR Loans with an Interest Period in
excess of 30 days until the default is cured or waived,
if, within a period of five Banking Days after the
occurrence of such default, the Borrower provides the
Agent with a certificate of a senior officer of the
Borrower stating that such default occurred
inadvertently and the Borrower also provides a written
undertaking to diligently cure the same; and (ii) if
subclause (i) is applicable and such default is
remedied within 30 days thereafter, no Event of Default
shall occur or be deemed to have occurred hereunder;
(d) if the Borrower shall fail to remedy, within 30 Banking
Days after notice from the Agent or such longer period
(if any) to which the Lenders may agree, any failure to
perform or to comply with any other covenant or
obligation hereunder, including pursuant to
Section 4.3, 5.4 or 15.15, other than those referred to
in subsections (a), (b) and (c) above;
(e) if any representation or warranty in Article 8 made or
deemed to have been made on behalf of the Borrower
(i) herein or (ii) in any certificate delivered to the
Lender pursuant to this agreement (A) which is
expressed in terms of a material adverse change in the
financial condition of the Deere Group or the ability
of the Deere Group to perform the collective
obligations of the Deere Group under or pursuant to
this Agreement and the Guarantees or in terms of being
material to the financial condition of the Deere Group,
shall be untrue or incorrect in any respect on and as
of the date made or (B) which is not so expressed shall
be untrue or incorrect in any respect on and as of the
date made which is material and adverse to the
financial condition of the Deere Group or the ability
of the Deere Group to perform such collective
obligations, or if any information contained in any
other certificate or in any Financial Statements
hereafter delivered by the Borrower to the Lenders by
virtue of a requirement contained in this Agreement
shall be untrue or incorrect in any material respect,
on and as of the date made; provided that no Default or
Event of Default shall occur or be deemed to occur as a
result thereof if the untruth or error therein was
unintentional and if the correct or true information in
such certificate or in such Financial Statements would
not have disclosed a Default;
(f) if any of the Borrowers or Guarantors admits in writing
its inability to pay its debts generally as they become
due or otherwise acknowledges its insolvency;
(g) if any of the Borrowers or Guarantors institutes any
proceeding or takes any corporate action or executes
any agreement to authorize its participation in or
commencement of any proceeding:
(i) seeking to adjudicate it a bankrupt or insolvent,
or
(ii) seeking liquidation, dissolution, winding up,
reorganization, arrangement, protection, relief or
composition of it or any of its property or debt
or making a proposal with respect to it under any
law relating to bankruptcy, insolvency,
reorganization or compromise of debts or other
similar laws (including, without limitation, any
application under the Companies' Creditors
Arrangement Act (Canada), the Bankruptcy and
Insolvency Act (Canada) or any reorganization,
arrangement or compromise of debt under the laws
of its jurisdiction of incorporation) except as
part of a reorganization which is permitted
pursuant to Section 11.1 hereof;
(h) if an order of a court having jurisdiction in the
premises is entered with respect to any of the
Borrowers or Guarantors:
(i) adjudicating it a bankrupt or insolvent;
(ii) ordering liquidation, dissolution, winding up,
reorganization, arrangement, protection, relief or
composition of it or any of its property or debt
or making a proposal with respect to it under any
law relating to bankruptcy, insolvency,
reorganization or compromise of debts or other
similar laws (including, without limitation, any
application under the Companies' Creditors
Arrangement Act (Canada), the Bankruptcy and
Insolvency Act (Canada) or any reorganization,
arrangement or compromise of debt under the laws
of its jurisdiction of incorporation); or
(iii) ordering or ratifying the appointment of a
receiver, trustee, agent, custodian or other
similar official for it or for any
substantial part of its properties and
assets;
and such order is not being contested in good faith by
appropriate proceedings and is not in any event stayed
or vacated within 90 days of its making, but provided
further that during such period the Lenders may
terminate the Borrowers' rights to obtain any further
Drawdown or any Conversion or Rollover into Bankers'
Acceptance or LIBOR Loans with an Interest Period in
excess of 30 days until the order is so stayed or
vacated;
(i) any creditor of any of the Borrowers or Guarantors or
any other Person privately appoints a receiver, trustee
or similar official for any substantial part of such
Borrower's or Guarantor's properties and assets and
such appointment is not being contested in good faith
by appropriate proceedings;
(j) if any encumbrancer takes possession of all the
property of any of the Borrowers or Guarantors or any
part thereof which is, in the reasonable opinion of the
Lenders, a substantial part thereof or if a distress or
execution or any similar process involving an amount in
excess of Cdn. $10,000,000 or the Equivalent Amount or
more be levied or enforced thereagainst and such levy
or enforcement is not stayed by reason of a pending
appeal or otherwise and remains unsatisfied for such
period as would permit such property or such part
thereof to be sold thereunder;
(k) (i) if any of the Borrowers or Guarantors makes default
beyond any period of grace provided with respect
thereto in payment of the principal of or interest or
premium on any Indebtedness in respect of which it is
obligated to make such payment (other than Indebtedness
owing hereunder, payables, or taxes (provided that it
is contesting the validity thereof in good faith by
appropriate proceedings timely instituted) incurred in
the ordinary course of business) in the amount that, in
the case of the Deere Group, when combined with similar
amounts owing by the others of such Persons, then
exceeds Cdn. $10,000,000 or the Equivalent Amount, or
in the performance or observance of any term, agreement
or condition in respect of such Indebtedness, where
such default gives the Person to whom such Indebtedness
is owed the right to cause such obligation to become
due prior to the date of its stated maturity, and
either such acceleration has commenced or proper notice
of it has been given, or (ii) if Deere U.S. and/or any
of its Affiliates makes any default which results in
acceleration of or proper notice of acceleration having
been given pursuant to any of the USD Agreement, the
U.S. $500,000,000 Credit Agreement dated as of April 5,
1995 among the USD Borrowers, certain financial
institutions and the USD Agent, as in effect from time
to time, or any agreement renewing, implementing or
refinancing the same, or in any other credit agreement
of Deere U.S. which provides a loan facility greater
than U.S. $750,000,000, provided that, except in the
case of the USD Agreement, during the period of five
Banking Days after the occurrence of any such default
hereunder, the Lenders shall not exercise any of the
remedies set forth in Section 13.2 hereof, except that
the Lenders may at their option terminate the
Borrowers' rights to obtain any further Drawdown or any
Conversion or Rollover into Bankers' Acceptances or
LIBOR Loans with an Interest Period in excess of 30
days until the default is cured or waived, and provided
further that, if within such five Banking Day period,
the default is cured or is waived by the holders of the
obligation concerned then the default under this
Section 13.1(k) shall be deemed not to have occurred
and shall not be an Event of Default;
(l) if any of the terms of a Guarantee or the Subordination
Agreement shall be breached in any material respect by
a Borrower, a Guarantor or Deere U.S.;
provided that no such Event of Default shall be deemed to have
occurred in respect of any Guarantor (other than Deere Canada and
Deere Finance) if the change in status of that Guarantor to a
Person not a member of the Deere Group would not result in or
give rise to the occurrence of any Default or Event of Default
resulting solely pursuant to Section 10.12 hereunder and, if such
is the case, (A) such Guarantor shall thereafter cease to be a
Guarantor and a member of the Deere Group for all purposes
hereof, (B) such former Guarantor shall be released from its
Guarantee hereunder, (C) no amount shall be attributable to the
former Guarantor in calculating the "Net Worth" of the Deere
Group, and (D) such former Guarantor shall not thereafter again
become a Guarantor and member of the Deere Group without the
consent of the Majority Lenders.
13.2 Remedies on Default. Upon the occurrence of any one or
more Events of Default, the Lenders may, at their option and
without limiting or restricting their rights and remedies
hereunder or at law or in equity but, for greater certainty, in
accordance with Section 14.14 hereof, by giving notice to the
Borrowers elect one or more of the following remedies with
respect to the Loans:
(a) not permitting any Drawdowns (although Rollovers and
Conversions with Interest Periods of 30 days or less
will be permitted hereunder unless and until the
Lenders make an election under subsection (b) below);
and
(b) declaring the principal amounts of all Loans
outstanding, all accrued and unpaid interest thereon
and all other amounts payable at any time by the
Borrowers to the Lenders hereunder to be immediately
due and payable;
each without presentment, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower. The
Lenders may, in connection with any action taken pursuant to
subsection (b) above, in their discretion, make Prime Rate Loans
in an aggregate principal amount not exceeding the aggregate face
amount of all outstanding Bankers' Acceptances (even if such
Loans result in the principal amount of the Loans exceeding the
Credit Facility Amount) and hold the proceeds of such Loans as
security for the obligations of the Borrower to the Lenders in
respect of such Bankers' Acceptances presented to them on the
maturity date thereof. Notwithstanding anything herein
contained, such Prime Rate Loans shall be interest free until the
aforementioned maturity dates of such Bankers' Acceptances and
the application of the proceeds of such Loans to pay the face
amount of such maturing Bankers' Acceptances.
13.3 Remedies Cumulative. The rights and remedies of the
Lenders hereunder are cumulative and are in addition to and not
in substitution for any other rights or remedies provided by law.
14. THE AGENT AND THE ADMINISTRATION OF THE LOANS
14.1 Authorization.
(a) Each Lender hereby irrevocably appoints and authorizes
the Agent to be its attorney in its name and on its behalf, to
exercise such rights or powers granted to such Lender under this
Agreement, the Guarantees and the Subordination Agreement,
including without limitation, the right to consent in writing to
matters requiring consent of the Lenders, to amend this Agreement
and to waive any Default hereunder or Event of Default hereunder,
all in accordance with Section 14.13 hereof, together with any
such powers as are reasonably incidental thereto.
(b) As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement thereof),
the Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Lenders, and
such instructions shall be binding upon all Lenders; provided,
however, that except as herein provided the Agent shall not be
required to take any action which exposes the Agent to liability
in such capacity, which could result in the Agent's incurring any
costs and expenses or which is contrary to this Agreement or
applicable law.
14.2 Dealings by Borrowers with Agent.
(a) Except as herein expressly provided, the Borrower shall
deal with the Agent in lieu of the Lenders for all purposes of
this Agreement.
(b) The Borrower may rely, and shall be fully protected in
so relying, without any obligation to inquire into the
correctness thereof, upon any action taken, notice, direction,
waiver, consent, determination, communication or agreement by the
Agent purporting to be on behalf of the Lenders hereunder, any of
which shall, as regards the Borrower, be deemed to be an action,
notice, direction, waiver, consent, determination, communication
or agreement of the Lenders.
(c) Where under this Agreement the Borrower is required to
deliver any documents to the Agent for forwarding to the Lenders,
the Borrower shall deliver a number of copies sufficient for such
forwarding.
14.3 Duties and Obligations of Agent. Neither the Agent
acting in such capacity nor any of its directors, officers,
agents or employees shall be liable to the Lenders for any action
taken or omitted to be taken by it or them under or in connection
with this Agreement, the Guarantees or the Subordination
Agreement except for its or their own gross negligence or wilful
misconduct. Without limiting the generality of the foregoing,
the Agent:
(a) may assume that there has been no assignment or
transfer by any of the Lenders of their rights
hereunder unless and until the Agent receives written
notice of the assignment thereof from such Lender and
the Agent receives the written agreement of the
assignee that such assignee is bound hereby as it would
have been if it had been an original party hereto in
lieu of such Lender (to the extent of such assignment)
in each case in form and substance satisfactory to the
Agent;
(b) may consult with legal counsel (including counsel for
the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it
in accordance with the advice of such counsel,
accountants or experts;
(c) shall incur no liability to the Lenders under or in
respect of this Agreement, the Guarantees or the
Subordination Agreement by acting upon any notice,
consent, certificate or other instrument or writing
(which may be by telegram, cable, telecopier or telex)
believed by it to be genuine and signed or sent by the
proper party or parties or by acting upon any
representation or warranty of the Borrower made or
deemed to be made hereunder;
(d) may assume that no Default or Event of Default has
occurred unless it has actual knowledge or actual
notice to the contrary;
(e) may rely as to any matters of fact which might
reasonably be expected to be within the knowledge of
any Person upon a certificate signed by or on behalf of
such Person;
(f) does not make any warranty or representation to any
Lender nor shall it be responsible to any Lender for
the accuracy or completeness of the data made available
to the Lenders in connection with the negotiation of
this Agreement or for any statements, warranties or
representations (whether written or oral) made in or in
connection therewith;
(g) shall not have any duty to ascertain or to enquire as
to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part
of the Borrower or to inspect the property (including
the books and records) of the Borrower or the
Guarantors;
(h) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement,
the Guarantees, the Subordination Agreement or any
instrument or document furnished pursuant hereto or
thereto; and
(i) shall not be responsible to any Lender for disclosing
to the Lenders information which it receives from the
Borrowers or the Guarantors other than in its capacity
as Agent hereunder.
14.4 Agent's Authority to Deal with Borrowers. With respect
to the portion of the Credit Facility established by it under
this Agreement, in its capacity as Lender, the Agent shall have
the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not the Agent. Subject as
herein provided, the Agent may accept deposits from, lend money
to, act as trustee under indentures of, and generally engage in
any kind of business with the Borrower, the Guarantors, any
Affiliate of Deere U.S. and any Person which may do business with
the Borrower, the Guarantors, Deere U.S. or any Affiliate of
Deere U.S. all as if the Agent were not the Agent hereunder and
without any duties to account therefor to the Lenders.
14.5 Indemnification. Each of the Lenders hereby agrees
with the Agent (solely in its capacity as Agent and Lender) to
indemnify the Agent (to the extent not reimbursed by the
Borrower), on a pro rata basis based on Commitment Ratios, from
and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent in any way
relating to or arising out of this Agreement, the Guarantees, the
Subordination Agreement or action taken or omitted by the Agent
hereunder or thereunder or in respect hereof or thereof provided
that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from
the Agent's gross negligence or wilful misconduct. Without
limiting the generality of the foregoing, each of the Lenders
agrees with the Agent to reimburse the Agent promptly upon demand
for its pro rata share (determined as aforesaid) of any
out-of-pocket expense (including counsel fees) incurred by the
Agent in connection with the preservation of any rights of the
Agent or the Lenders under, or the enforcement of, or legal
advice in respect of rights or responsibilities under, this
Agreement, the Guarantees and the Subordination Agreement to the
extent that the Agent is not reimbursed for such expenses by the
Borrower and each of the Lenders hereby agrees with the Agent to
reimburse the Agent for any amount paid to such Lender as its pro
rata share (determined as aforesaid) of payments required to be
made by the Borrower to the Lenders hereunder if and to the
extent that such Lender is notified by the Agent that the
Borrower has failed to make the payment to which such share is
referable as and when required, forthwith upon receipt of such
notice from the Agent.
14.6 Successor Agent. The Agent may, as hereinafter
provided, resign at any time by giving written notice thereof to
the Lenders and the Borrowers. The Borrowers shall have the
right to appoint a successor agent who shall be one of the
Lenders who is acceptable to the Majority Lenders, acting
reasonably (the "Successor Agent"). If no Successor Agent shall
have been so appointed and shall have accepted such appointment
within 30 days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may appoint a Successor
Agent acceptable to the Borrowers acting reasonably and shall
give immediate notice to the Lenders and the Borrowers after
having done so. Notwithstanding any such appointment, the
Majority Lenders shall have the right to appoint another
Successor Agent who shall be one of the Lenders and who is
acceptable to the Borrowers, acting reasonably. Upon the
acceptance of any appointment as Agent hereunder by a Successor
Agent, such Successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from
its further duties and obligations as Agent under this agreement.
After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article 14 shall enure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent
hereunder.
14.7 Procedure for Loans Other than Bankers' Acceptance. In
the case of borrowing by way of Loans other than Bankers'
Acceptances:
(a) (i) The Borrower shall, with respect to each Loan
other than a Fixed Rate Loan or an Operating
Facility Loan (in connection with which the
Borrower shall deal directly with the relevant
Lender (in the case of a Fixed Rate Loan) or the
Agent (in the case of an Operating Facility Loan),
make all Drawdowns, Conversions and Rollovers on a
Pro Rata basis. The Borrower shall give the
appropriate notices hereinbefore specified to the
Agent which notice shall state the principal
amount of the Loan and all relevant particulars
thereof and shall otherwise be given as required
by, and in accordance with, Article 2 hereof.
Forthwith upon the receipt of such notice, the
Agent shall give notice to each of the other
Lenders of the principal amount of the relevant
Drawdown, Conversion or Rollover and the Pro Rata
share of such Lender thereof and all other
relevant particulars thereof.
(ii) Operating Facility Loans may, subject as
hereinafter provided, be paid at any time by the
Borrower upon written notice given to the Lender
on the proposed date of repayment. Operating
Facility Loans outstanding at the opening of
business on the last Banking Day of any week shall
not be paid by the Borrower except on the second
Business Day of the following week when such Loans
shall be paid by the drawdown of Prime Rate Loans
or USBR Loans, as the case may be, as hereinafter
provided. On the last Banking Day of each week,
the Agent shall ascertain the then existing
aggregate amounts of Operating Facility Loans (The
Toronto-Dominion Bank, Royal Bank of Canada and
Canadian Imperial Bank of Commerce agreeing to
provide all required information in this regard)
and shall provide to the Lenders the same notice
or notices contemplated by the last sentence of
clause 14.7(a)(i) immediately preceding as it
would have given if each relevant Borrower had
given, on that day, a Drawdown Notice for a Prime
Rate Loan or USBR Loan in respect of each
outstanding Canadian Dollar Operating Facility
Loan and U.S. Dollar Operating Facility Loan,
respectively. Thereafter, the other provisions of
this Section 14.7 shall govern as if such
respective Drawdown Notices had been given, save
that (A) each Lender to whom such Operating
Facility Loans are owing need only remit funds to
the extent the remittance to be made would exceed
the principal of such Operating Facility Loans
owing to such Lender, (B) the amounts remitted by
the Lenders shall be disbursed by the Agent to
repay to the Lenders to whom such Operating
Facility Loans are owing the appropriate portions
of the principal of such Operating Facility Loans,
and (C) the unpaid principal balance of such
Operating Facility Loans owing to each Lender
shall be deemed to have been repaid by the advance
on that day by such Lender of a Prime Rate Loan or
USBR Loan, as the case may be, in the amount of
such unpaid principal balance. Notwithstanding
anything else contained in this Agreement, and
regardless of whether a Default or an Event of
Default has occurred hereunder, all Lenders shall
be unconditionally obligated to advance monies to
the Agent for the account of Operating Facility
Loan Lenders in the circumstances provided for in
this clause (ii).
(b) Each Lender will, in the case of Drawdowns, remit the
amount required to be advanced by it to the Agent no
later than 11:00 a.m. (Toronto time) on the date on
which the Drawdown is to occur addressed to, until
notified otherwise, The Toronto-Dominion Bank,
International Centre, Toronto, if in Canadian Dollars,
and The Toronto-Dominion Bank, New York Branch, for
credit to International Centre, Toronto, Agency
Administration, if in U.S. Dollars, by way of same-day
funds under telex advice payable to The
Toronto-Dominion International Centre, Toronto, for
credit Agency Administration Service Account #2131891,
if in Canadian Dollars and #2173698, if in
U.S. Dollars, to the attention of the Manager, Agency
Administration (or as otherwise instructed by notice
from the Agent), stating "Re: John Deere Limited".
(c) The Agent will make the funds remitted to it in
accordance with subsection 14.7(b) hereof available to
the Borrower on the date on which the Drawdown is to
occur by crediting the Borrower's account maintained
with the Agent at the Designated Branch of the Agent
(or causing such account to be credited) with like
same-day funds in the aggregate amount of such funds so
remitted to it, in like currency. To facilitate the
transactions contemplated hereunder, the Borrower shall
maintain accounts with the Agent at the Designated
Branch of the Agent as long as this Agreement remains
in force.
(d) In the case of Conversions or Rollovers, the Agent
shall forthwith notify each Lender of its obligation,
if any, to advance funds, each Lender shall cause the
Conversion or Rollover, as the case may be, requested
aforesaid to occur on the appropriate date with respect
to its Pro Rata share of the principal amounts of the
relevant Loans in respect of which said Conversion or
Rollover, as the case may be, is occurring, any Lender
required to advance additional funds as a result
thereof shall forthwith do so in accordance with
subsection 14.7(b) above and the Agent shall forthwith
remit such funds to the Lenders entitled to receive the
same.
14.8 Procedure for Bankers' Acceptances. In the case of a
borrowing by way of Bankers' Acceptances (other than All-in
Bankers' Acceptances (in connection with which the Borrower shall
deal directly and solely with the accepting Lender)):
(a) The Borrower and each Lender shall follow the
procedures specified in subsection 6.1(d) above;
(b) Each Lender shall, in the case of Drawdowns by way of
Bankers' Acceptance, make such Bankers' Acceptances
available at the BA Branch on the relevant date of
acceptance to such Person as the Agent specifies (in
accordance with the instructions contained in the
request of the Borrower in respect of such borrowing)
upon receipt from such Person of immediately available
Canadian Dollars in an amount which is equal to the
face amount of the Bankers' Acceptance less the amount
of discount applicable thereto;
(c) Each Lender shall, immediately after receiving the
funds referred to in subsection (b) above, pay in
same-day Canadian Dollars by way of Canadian Dollar
wire transfer to the Agent for credit to the Borrower's
account maintained at the Designated Branch such amount
as is referred to in subsection (b) above less the
amount of the Bankers' Acceptance fee due to it, as
calculated in accordance with Section 6.1;
(d) The Agent will make such funds as are paid to the
Designated Branch pursuant to subsection (c) above
available to the Borrower on the relevant date of
acceptance by crediting the Borrower's account
maintained with the Agent at the Designated Branch (or
causing such account to be credited) with like funds,
by way of same-day funds, in the aggregate amount of
such funds;
(e) In the case of a Rollover of a Bankers' Acceptance,
each Lender accepting a new Bankers' Acceptance shall
do so in accordance with the procedure set out in
subsections (a) and (b) above and shall comply with
subsections (c) and (d) above only in respect of the
excess of the face amount of the new Bankers'
Acceptance to be issued over the face amount of the
maturing Bankers' Acceptance; otherwise, instead of
then complying with subsections (c) and (d) above, each
Lender shall, in order to satisfy the continuing
liability of the issuing Borrower to the Lender for the
face amount or portion thereof, as the case may be, of
the maturing Bankers' Acceptance, receive for its own
account the proceeds of such new Bankers' Acceptance,
or portion thereof, as the case may be, net of the
Bankers' Acceptance fee or portion thereof, as the case
may be, due to it, as calculated in accordance with
Section 6.1, and the issuing Borrower shall on the
maturity date of the maturing Bankers' Acceptance pay
directly to such Lender an amount equal to the positive
difference, if any, between the face amount of the
maturing Bankers' Acceptance or portion thereof, as the
case may be, and the net proceeds from the new Bankers'
Acceptance or portion thereof, as the case may be, as
aforesaid;
(f) In the case of a Conversion into a Bankers' Acceptance,
each Lender accepting a Bankers' Acceptance shall do so
in accordance with subsections (a) and (b) above and
shall comply with subsections (c) and (d) above only in
respect of the excess of the face amount of the
Bankers' Acceptance to be issued over the principal
amount of Loan being converted; otherwise, instead of
complying with subsections (c) and (d), each Lender
shall, in order to satisfy the continuing liability of
the issuing Borrower to such Lender for the amount of
the converted Loan, receive for its own account the
proceeds of the Bankers' Acceptance, or portion
thereof, as the case may be, net of the Bankers'
Acceptance fee due to it, as calculated in accordance
with Section 6.1, and the Borrower shall on the
Conversion Date pay to such Lender the positive
difference, if any, between the principal amount, or
portion thereof, as the case may be, of the Loan and
the net proceeds of the Bankers' Acceptance, or portion
thereof, as the case may be, as aforesaid; and
(g) In the case of a Conversion of a Bankers' Acceptance
into another type of Loan, each Lender shall advance to
the Agent, as specified in Section 14.7 above, the
amount of its Loan and shall record the obligation of
such Borrower to such Lender by way of Loan of the type
into which the obligation has been converted and the
Agent shall disburse the monies to satisfy the face
amounts of maturing Bankers' Acceptances or, if the
Borrower has paid such amounts, in accordance with
subsection 14.7(c) above.
14.9 Failure of Lender to Advance Loan. Unless the Agent
has been notified by a particular Lender within one Banking Day
after such Lender receives notice of the Drawdown from the Agent
that such Lender will not make available to the Agent the Loan or
Loans to be made available by such Lender, the Agent may assume
that such Lender has made such Loan or Loans available to the
Agent on the date on which the Drawdown is to occur in accordance
with the provisions hereof and the Agent may, in reliance upon
such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent such Lender shall not
have so made such Loan or Loans available to the Agent, such
Lender agrees with the Agent to pay to the Agent forthwith on
demand the principal amount of such Loan or Loans and such Lender
agrees with the Agent to pay all reasonable costs, charges and
expenses (including borrowing costs) incurred by the Agent in
connection therewith. If such Lender shall fail to pay such
principal for five Banking Days after such demand, the Borrower
shall repay such principal to the Agent forthwith on demand. The
Agent shall, if requested by such Lender, set out the amount
payable to the Agent pursuant to this Section 14.9, together with
appropriate details of the calculation thereof, in a certificate
delivered by the Agent to the Borrower or such Lender and any
such certificate shall be conclusive and binding, for all
purposes, absent manifest error. If such Lender makes the
payment to the Agent required herein within such five Banking
Days, the amount (otherwise than in respect of such costs,
charges and expenses of the Agent) so paid shall constitute such
Lender's Loan or Loans. In the event such Lender does not make
such payment to the Agent in accordance with this Section 14.9
within five Banking Days of the applicable Drawdown, the
Borrowers may exercise or pursue any other rights, remedies,
powers and privileges against such Lender as are provided by law
or by contract, including, without limitation, the right to
replace such Lender.
14.10 Payments in respect of Loans.
(a) Except as otherwise provided in this Agreement,
including in Section 14.14 in the situation therein specified,
and subject, with respect to Fixed Rate Loans and All-in Bankers'
Acceptances, to subsection 14.10(b), the Borrower shall make any
prepayments and repayments (which shall, for this purpose,
include the deposit of any monies pursuant to subsection 2.13(b))
of each of the Loans together with payments of interest in
respect thereto, on a Pro Rata basis. The Borrower shall make
all such payments to the Agent on behalf of the Lenders. The
Borrower shall give notice to the Agent of all prepayments and
repayments of Loans that it intends to make as required by and in
accordance with the provisions of this Agreement. Forthwith upon
the receipt of such notice, the Agent shall give notice to each
of the other Lenders of the amount of such prepayments or
repayments (forming part of such aggregate) to be made to it on
such day and all other relevant particulars of such prepayments
or repayments.
(b) Any repayment by the Borrower, on maturity, of a Fixed
Rate Loan, and any payment made by the Borrower to satisfy the
amount owing pursuant to an All-in Bankers' Acceptance on the
maturity thereof, at any time prior to a declaration pursuant to
subsection 13.2(b), shall be made in accordance with the terms
and conditions of the Fixed Rate Loan or All-in Bankers'
Acceptance, as the case may be. After a declaration pursuant to
subsection 13.2(b) occurs, the provisions of Section 14.14 shall
apply to the repayment of Fixed Rate Loans and All-in Bankers'
Acceptances.
(c) Forthwith after receipt of any payment or prepayment of
any Loans or any payment of interest in respect thereof, the
Agent shall, except as otherwise provided in this Agreement,
remit to each Lender its Pro Rata share of such payment or
prepayment. If and to the extent that the Agent remits any
amount to the Lenders on the assumption that the Borrower will
make or has made any payment or prepayment of any Loans or any
payment of interest in respect thereof to the Agent when such
payment or prepayment is due (which assumption the Lenders agree
that the Agent shall be entitled to make) and the Borrower does
not make or has not made such payment or prepayment, each Lender
shall pay to the Agent forthwith on demand its Pro Rata share of
the amount of such payment or prepayment and the Borrower agrees
with the Agent to pay to the Agent forthwith on demand all
reasonable costs, charges and expenses (including borrowing
costs) incurred by the Agent in connection with such payment or
prepayment or which the Agent would have incurred if it had
borrowed the amount of such payment or prepayment.
(d) The Agent and the Lenders agree that any monies
deposited with the Agent pursuant to the provisions of
subsection 2.13(b) shall be dealt with by the Agent in the manner
which all Lenders agree is equitable in the circumstances.
14.11 Redistribution of Payments.
(a) If at any time any Lender (an "Overpaid Lender") has
received or recovered any amount (an "Excess Amount") in payment
on account of the obligations of the Borrower to such Overpaid
Lender in respect of any Loan other than an Excluded Loan or
Operating Facility Loan (whether by means of a voluntary or
involuntary payment by the Borrower, through the exercise of a
right of set-off or otherwise) in excess of the Pro Rata share of
such Overpaid Lender of the aggregate of all payments on account
of the obligations of the Borrower to the Lenders in respect of
such Loan under this Agreement, then:
(i) such Overpaid Lender shall pay to the Agent an
amount equal to the Excess Amount;
(ii) subject to the proviso at the end of this
subsection 14.11(a), the Agent shall treat such
payment as a payment made to it by the Borrower in
respect of this Agreement pursuant to such Loan to
Lenders other than such Overpaid Lender and shall
distribute such payment among the Lenders other
than such Overpaid Lender on a Pro Rata basis;
(iii) subject to the proviso at the end of this
subsection 14.11(a), as between the Borrower
and such Overpaid Lender, such Excess Amount
shall be deemed not to have been paid;
(iv) subject to the proviso at the end of this
subsection 14.11(a), as between the Borrower and
each Lender other than such Overpaid Lender, the
portion of such Excess Amount received by such
Lender shall be deemed to have been paid by the
Borrower to such Lender in respect of such Loan on
the day of the original receipt thereof by the
Overpaid Lender; and
(v) the Agent shall give notice to the Borrower of all
relevant particulars of the payment to the Agent
of such Excess Amount and the redistribution by
the Agent of such payment;
provided that if such Overpaid Lender is subsequently required
(whether by order of a court or otherwise) to repay any portion
of such Excess Amount to or for the account of the Borrower, each
Lender other than such Overpaid Lender shall forthwith pay its
Pro Rata share of such portion to the Agent for the account of
such Overpaid Lender pursuant to such Loan. For the purposes of
the proviso to this Section 14.11, the Pro Rata share of any
Lender other than an Overpaid Lender shall be calculated without
inclusion of any amounts in respect of an Overpaid Lender in the
amounts payable to or by the Lenders.
(b) The amount of any prepayment made of a Fixed Rate Loan
or All-in Bankers' Acceptance in contravention of
subsection 2.13(c) or of any repayment made of a Fixed Rate Loan
or All-in Bankers' Acceptance in contravention of
subsection 14.10(b) shall, subject to the other provisions of
this Agreement, forthwith after receipt by the relevant Lender of
written notice from the Agent in this regard, be returned to the
Borrower and the Borrower shall be obligated to pay interest
thereon at the rates which otherwise would have applied had such
contravention not occurred but only from the date of return of
the amount to the Borrower.
14.12 Other Payments. The Borrower shall make all
payments to be made by it under this Agreement with respect to
each Loan other than the payments referred to before in this
Article 14 and any amount payable (a "cost reimbursement") by the
Borrower to any Lender in respect of any cost or expense incurred
by such Lender, to the Agent, who shall distribute such payments,
other than any cost reimbursement, on a Pro Rata basis in respect
of each Loan and who shall distribute any cost reimbursement to
the Lender that incurred the cost or expense giving rise to the
entitlement thereto.
14.13 Action by and Consent of Lenders: Waiver and
Amendments.
(a) Where the terms of this Agreement, the Guarantees or
the Subordination Agreement refer to any action to be taken
hereunder by the Lenders or to any such action that requires the
consent or other determination of the Lenders, the action taken
by and the consent or other determination given by the Majority
Lenders shall, except to the extent that this Agreement expressly
provides to the contrary, constitute the action or consent herein
or therein referred to and the Agent may exercise its powers
under Section 14.1 hereof based upon such action, consent or
other determination; and, without limitation, for greater
certainty any election under Section 13.2 of this Agreement, the
Guarantees or the Subordination Agreement and any demand for
payment under this Agreement, the Guarantees or the Subordination
Agreement shall be made or taken only with the consent of the
Majority Lenders and any action so taken shall be binding on all
the Lenders and all the Lenders shall cooperate in all ways
necessary or desirable to implement and effect any action so
taken or otherwise taken hereunder with the consent of or on the
instructions of the Majority Lenders.
(b) Any provision of this Agreement may be amended only if,
and shall be amended if, the Borrowers and the Majority Lenders
so agree in writing (unless otherwise provided herein that such
consent may be deemed to have been given) and any Default or
Event of Default may be waived or consented to before or after it
occurs only if the Majority Lenders so agree in writing except
that:
(i) an amendment or waiver (other than a consequential
amendment resulting from action taken in
accordance with other provisions of this
agreement) which changes or relates to:
(A) the forgiving of, or maturity date of, any
Loan (other than Fixed Rate Loans) under this
Agreement owing by the Borrower to any
Lender, other than an extension of time for
payment of up to 180 days;
(B) the rates or dates of payment of interest
payable with respect to any Loan (other than
Fixed Rate Loans) payable under this
Agreement;
(C) the definition of Majority Lenders hereunder;
(D) Section 14.10 - Payments in Respect of Loans;
(E) this Section 14.13(b) - Action by and Consent
of Lenders: Waiver and Amendments;
(F) Section 14.12 - Other Payments;
(G) Section 14.14 - Enforcement;
(H) Section 15.5 - Amendment;
(I) the Subordination Agreement;
(J) the Guarantees; or
(K) an increase in the amount of the Credit
Facility
shall (notwithstanding subsection 14.13(a) hereof)
require the agreement of all the Lenders;
(ii) an amendment or waiver which changes or relates to
the rights or obligations of the Agent, save and
except for removal of the Agent under
Section 14.6, shall (notwithstanding
subsection 14.13(a) hereof) also require the
agreement of the Agent thereto;
(iii) an amendment or other agreement which
increases the amount of the Credit Facility
shall (notwithstanding subsection 14.3(a)
hereof) also require the agreement of all of
the USD Banks; and
(iv) any amendment which has the effect of increasing
the Commitment of any Lender shall require the
agreement of that Lender.
(c) Any such waiver and any consent by the Agent or any
Lender or the Majority Lenders or all of the Lenders, as the case
may be, may be given subject to any conditions thought fit by the
Person giving that waiver or consent. Any waiver or consent
shall be effective only in the instance and for the purpose for
which it is given. No failure on the part of the Agent or any of
the Lenders in exercising any right or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or remedy preclude any
other right or remedy in law, by statute, equity or otherwise
conferred.
14.14 Enforcement.
(a) Each Lender hereby acknowledges that the remedies
hereinafter referred to are provided in respect of each Loan.
Notwithstanding the preceding sentence, to the extent permitted
by applicable law each remedy provided hereunder, under the
Guarantees and the Subordination Agreement shall be exercised not
severally in respect of each Loan, but collectively in respect of
all Loans (although not all remedies must be exercised,
collectively or otherwise), upon the decision of the Majority
Lenders; accordingly, subject only to subsection (b) below, each
of the Lenders hereby covenants and agrees that it shall not be
entitled to take any action hereunder or thereunder including,
without limitation, any election of remedies in respect of an
Event of Default hereunder but that any such action shall be
taken only with the prior written agreement of the Majority
Lenders; each of the Lenders hereby further covenants and agrees
that upon any such written consent being given by the Majority
Lenders, it shall cooperate fully with the other Lenders to the
extent required in the collective exercise of such rights; and
each of the Lenders and the Borrower further covenants and agrees
that all proceeds from the exercise of such rights, to the extent
permitted by applicable law, are held for the benefit of all of
the Lenders and shall be shared among the Lenders in accordance
with this Section 14.14(a) and each of the Lenders acknowledges
that all costs of the exercise of such rights shall be shared pro
rata based upon the respective aggregate principal amounts of
Loans which each Lender has outstanding at the time or times of
payment of such costs and that all proceeds received from any
exercise of such rights (including, without limitation, all
amounts for which the Agent is required to be indemnified under
the provisions hereof) shall be shared among the Lenders pro rata
based upon the respective aggregate principal amounts of Loans
which each Lender has outstanding at the relevant time or times
of sharing.
To the extent any Lender receives or is entitled to receive,
after a declaration in accordance with subsection 13.2(b), any
amount hereunder in excess of the amount of indebtedness owed to
it hereunder, it shall hold such excess in trust on behalf of and
for the benefit of the other Lenders entitled thereto.
Notwithstanding subsection 14.13(a) hereof and the foregoing
provisions of this Section 14.14(a), but subject to subsection
(b) below, in the event that the Lenders have the right to sell,
to release or otherwise to dispose of any assets of the Borrower
(including, without limitation, any assets in which the Lenders
have taken any security interest of any kind), no such assets
shall be sold, released or otherwise disposed of except with the
consent of all the Lenders.
(b) Notwithstanding subsection (a) above, the Lenders agree
that if the Borrowers have not, on or before the Loan Termination
Date in respect of any Lender, repaid such Lender in accordance
with section 2.14 of this Agreement, such Lender (an "Exercising
Lender") shall be entitled to exercise any or all remedies
available to it hereunder or by applicable law, notwithstanding
that there has not been a decision of the Majority Lenders in
accordance with subsection (a) above. Each of the Lenders hereby
covenants that it will cooperate fully with an Exercising Lender
to the extent required for such Exercising Lender to exercise its
rights and remedies, provided that such cooperation shall not
require the expenditure of funds by the other Lenders; and
provided that all proceeds from the exercise by an Exercising
Lender of its rights hereunder and at law shall be held by it for
its own account only and not subject to the pro rata sharing set
out in subsection (a) above.
(c) The Lenders agree that, if an Event of Default shall
occur, each Lender shall promptly inform the Agent, which shall
thereupon inform each other Lender, forthwith after it becomes
aware thereof and the Lenders acting through the Agent shall use
their best efforts to arrange a vote of the Lenders on taking
action (whether enforcement, waiver or other action) in respect
thereof so soon as is reasonably practicable, and in any event
not later than 30 days, after the Lenders become aware thereof.
14.15 Set-off. Each of the Lenders agrees with each of
the other Lenders that if any right of set-off shall be exercised
by it in connection with any obligations of the Borrower to any
of the Lenders hereunder or under the Guarantees or otherwise in
respect hereof, as the case may be, then it shall promptly so
advise the Agent which shall thereupon advise each of the other
Lenders and, if and to the extent permitted by applicable law,
the Lenders shall share all such set-offs in accordance with the
provisions of Section 14.14 hereof, provided that none of the
Lenders shall be liable hereunder to any of the other Lenders by
reason of failure to exercise any right of set-off or to exercise
validly any right of set-off or by reason of any restriction upon
any such sharing.
14.16 Independent Appraisal.
(a) Each of the Lenders acknowledges to and agrees with
each of the other Lenders and the Agent that:
(i) it has satisfied itself, and has not in any way
relied upon any other Lender or the Agent, as to
this Agreement, the matters referred to therein
and the enquiries and information leading to the
entering into of this Agreement;
(ii) it has not relied, and will not hereafter rely, on
any other Lender or the Agent in connection with
the transactions contemplated hereby, the
extension of credit hereunder, or the exercise of
any rights hereunder, under the Guarantees or the
Subordination Agreement; and
(iii) it has been, and will continue to be, solely
responsible for making its own independent
appraisal of and investigation into the
financial condition, creditworthiness,
condition, affairs, status and nature of the
Borrowers.
(b) Without limiting the generality of subsection 14.16(a)
hereof, each Lender confirms to the Agent that it has not relied,
and will not hereafter rely, on the Agent:
(i) to check or to enquire on its behalf into the
adequacy, accuracy or completeness of any
information provided by the Borrower or any other
Person under or in connection with this Agreement
or the transactions herein contemplated (whether
or not such information has been or is hereafter
distributed to such Lender by the Agent); or
(ii) to assess or to keep under review on its behalf
the financial condition, creditworthiness,
condition, affairs, status or nature of the
Borrowers.
14.17 Liability of Lenders inter se. Each of the
Lenders hereby agrees with each of the other Lenders that, except
as otherwise herein expressly provided, none of the Lenders has
or shall have any duty or obligation, or shall in any way be
liable to any of the other Lenders, in connection with this
Agreement or any action taken or omitted to be taken in, under or
in connection herewith.
14.18 Several Liability. The obligations of each Lender
under this Agreement are several and any failure of a Lender to
perform its obligations under this Agreement shall in no way
relieve any of the other Lenders from its obligations under this
Agreement nor require any of the other Lenders to perform the
obligations of such defaulting Lender.
14.19 Agency Fees. The Borrowers shall pay to the Agent
for its services as such hereunder from time to time such fees as
the Borrowers and the Agent shall agree to. Notwithstanding the
payment by the Borrowers of the Agent's fees, the Agent shall at
all times be acting exclusively as the agent of Lenders and not
of the Borrowers.
15. GENERAL
15.1 Payment of Expenses. Whether or not the transactions
contemplated by this Agreement shall be consummated, the
Borrowers shall, in the manner agreed by them, failing which
agreement the obligation shall be joint and several, pay all
reasonable out-of-pocket expenses of the Agent, including the
reasonable fees and disbursements of any lawyers retained by the
Agent incurred in connection with the preparation of this
Agreement or any amendment or modification hereof or thereof or
any waiver of any of the provisions hereof or thereof, and also
shall pay all reasonable out-of-pocket expenses of the Lenders in
connection with the protection and enforcement of the rights of
the Lenders provided for herein, including in connection with the
collection of all amounts owing hereunder and under any
instrument issued pursuant hereto.
15.2 Binding Effect and Assignment. This Agreement shall be
binding upon and shall enure to the benefit of the parties hereto
and their respective successors and assigns permitted by this
Section 15.2 but, except as specifically provided herein, none of
the foregoing nor the benefit thereof may be assigned by the
Borrowers or any of them. No Lender shall, except on the terms
hereinafter in this Section 15.2 set out or as otherwise provided
by this Agreement including, without limitation, Sections 4.3,
5.4 and 15.15, grant a participation in or assign those things
enuring to its benefit as herein provided to any other Person
before or after an Event of Default.
Any Lender may grant a participation in or assign the
whole or any part of any Loans made by it hereunder or its
Unutilized Commitment to one or more Persons provided that:
(i) such Person or Persons is or are not non-residents
of Canada within the meaning of the Income Tax Act
(Canada);
(ii) any such assignment occurs concurrently with the
related assignment by the Lender's Affiliated USD
Bank to the assignee's Affiliated USD Bank under
subsection 10.5(d) of the USD Agreement and in the
percentage there contemplated; and
(iii) the assigning Lender pays to the Agent a
registration and processing fee of Cdn.
$2,500.
In respect of such assignment or participation, the
granting or assigning Lender shall remain responsible for the
performance of such Lender's obligations under this Agreement
unless, in the case of an assignment:
(A) the Borrower has, in its sole discretion,
consented in writing to such assignment; and
(B) the assignee enters into an agreement with the
Borrowers and the Lenders under which such
assignee assumes such obligations and agrees to be
bound by all the terms and conditions of this
Agreement as if such assignee had been an original
party hereto.
If the requirements enumerated in (A) and (B) have been
satisfied in respect of any assignment, the assigning Lender
shall be released from its obligations hereunder to the Borrowers
and the other Lenders and the Borrower and the other Lenders
shall be released from their respective obligations hereunder to
the assigning Lender to the extent of such assignment and
assumption. Notice of the Borrower's consent or lack thereof
shall be given by the Borrower within one Banking Day after
request therefor has been received from the Lender, failing which
notice the Borrower shall be deemed to have consented.
The Lender granting a participation or assigning an
interest pursuant to this Section 15.2 may, subject to the
requirement that such participant or assignee enter into an
agreement with the Borrowers and the Agent to the effect set
forth in Section 15.8, provide any participant or assignee with
the Financial Statements and all other information provided or to
be provided to it in connection with this Agreement.
The Lender granting a participation or assigning an
interest in its Unutilized Commitment or Loans outstanding to it
may, subject to the restrictions with respect to confidentiality
set out in Section 15.8, provide any participant or assignee with
the Financial Statements and all other information provided or to
be provided to it in connection with this Agreement.
Each such assignment shall be made without recourse to
such assigning Lender and without any representation or warranty,
express or implied, by such assigning Lender, except customary
representations and warranties as to the legal and beneficial
ownership by such assigning Lender of the rights so assigned and
as to the validity of such assignment by such assigning Lender.
15.3 Benefit of Agreement. Notwithstanding the repayment of
all Loans required to be paid on the Loan Termination Date, in
accordance with Section 2.14, and except as specifically
otherwise provided in clause (iv) of Section 4.3, the terms and
conditions hereof shall continue to govern all other Loans,
including Fixed Rate Loans, All-in Bankers' Acceptances and any
other Loans to which the Lenders have consented in accordance
with subsection 2.4(c) above, until repayment in full thereof.
15.4 Entire Agreement. Except for any other instrument
delivered hereunder or in connection herewith, including the
Guarantees and any agreement contemplated thereunder, and for the
USD Agreement, this Agreement constitutes the entire agreement
between the Lenders and the Borrower with respect to the subject
matter hereof. For greater certainty, this Agreement supersedes
and replaces in all respects the commitment letter dated March 2,
1995 (and accepted by the Borrowers on March 15, 1995) provided
by the Agent to the Borrowers and any and all other commitment
letters provided to or by other Lenders with respect to this
Agreement.
15.5 Amendment. This Agreement may not be amended or
modified in any respect except in accordance with
subsection 14.13(b) hereof.
15.6 Waiver. No failure or delay on the part of the Agent
or Lenders in exercising any right or privilege shall operate as
a waiver thereof by the Agent or Lenders unless made by
instrument in writing and signed by a senior officer of the
Agent. Any waiver or consent by the Agent will not preclude the
further or other exercise by the Agent or, subject to
subsection 14.1(a), the Lenders of any right, power or privilege
hereunder which is the subject of such waiver or consent.
15.7 Communication. Subject to the express provisions
herein to the contrary, all notices and other communications
provided for or permitted hereunder shall be in writing,
personally delivered to an officer or other responsible employee
of the addressee or sent by telecopy or other like means of
electronic transmission of written messages to the applicable
address set forth below or to such other address as any party
hereto may from time to time designate to the other in such
manner.
Any notice or other communication so personally
delivered shall be deemed to have been validly and effectively
given on the date of such delivery. Any notice or other
communication so sent by telecopy or other like means of
electronic transmission of written messages shall be deemed to
have been validly and effectively given on the Banking Day next
following the day on which it is sent.
Notwithstanding the foregoing, any notice to be given
by the Borrower under Sections 2.5, 2.7, 2.8, 2.10, 2.11, 2.13,
4.2, 5.1, 6.1, 13.1(c), 14.7, 14.8 or 15.2 hereof may be given by
telephone provided that, in the case of each Section other than
Section 15.2, the Borrower delivers or sends to the Agent or the
relevant Lender a written confirmation thereof in accordance with
the provisions of this Section 15.7 not later than two Banking
Days after the day on which such notice is given by telephone.
With respect to any notice to the Borrowers, one copy
of such notice only need be given in respect of all Borrowers,
delivered to the address specified below.
Communications shall be addressed as follows:
(i) if to the Borrowers or the Guarantors:
John Deere Limited
P.O. Box 1000
Grimsby, Ontario
L3M 4H5
Attention: R.W. Hoffman
Vice-President and Treasurer
Telephone: (416) 945-9281
Telecopier: (416) 945-0341
with a copy to:
Deere & Company
John Deere Road
Moline, Illinois
U.S.A.
61265
Attention: Treasurer
Telecopier: (309) 765-5021
(ii) if to the Agent:
The Toronto-Dominion Bank
Agency Administration
Corporate & Investment Banking Group
55 King Street West and Bay Street
7th Floor
P.O. Box 1
Toronto Dominion Centre
Toronto, Ontario
M5K 1A2
Attention: Manager Agency
Telephone: (416) 982-3706
Telecopier: (416) 982-5535
(iii) if to the Lenders, at the addresses set out
below their names on the signature pages
hereof.
15.8 Confidentiality. The Agent and the Lenders shall,
subject as hereinafter provided, keep confidential from any third
party any data or information received by them from the Borrower
pursuant to this Agreement which is confidential or which is
designated in writing as such by the Borrower except to the
extent that such information was not confidential when received
by the Agent, except as required by law, rule, regulation or
official direction or as may be necessary to protect as against
the Borrowers the interests of the Lenders or any of them under
this Agreement. Notwithstanding the foregoing, the Agent and
Lenders shall use their best efforts and take all reasonable
steps to provide that any confidential data or information
received by them from the Borrower pursuant to this Agreement
which is disclosed to employees of the Agent or the Lenders or
for such other permitted purposes or otherwise as a result of the
aforesaid exceptions and that such data or information is so
disclosed, in the first two instances, only to the extent
necessary for purposes of the administration of the Loans and, in
all cases, on the condition that such information and data shall
be kept confidential except for such purposes. Notwithstanding
any other provision of this Section 15.8, the Agent and the
Lenders may make available any confidential data or information
received by them pursuant to this Agreement to:
(i) any Person to which such Lender has granted a
participation or assigned an interest in its
Commitment and outstanding Loans in accordance
with Section 15.2 and which has entered into an
agreement with the Borrowers and the Agent to the
effect set forth in this Section 15.8;
(ii) any Lender or USD Bank or the Canadian
Administrative Agent (as defined in the USD
Agreement) or the Agent or USD Agent; or
(iii) as may be necessary in connection with the
enforcement of this Agreement, a Guarantee or
the Subordination Agreement.
The provisions of this Section 15.8 shall survive the payment in
full of the Loans and all amounts payable hereunder or under the
Guarantees and the termination of this Agreement.
15.9 Survival of Representations, Warranties and Covenants.
All agreements, representations, warranties and covenants made by
or on behalf of the Borrower or herein or in any certificate or
document delivered by or on behalf of the Borrower or pursuant to
the provisions hereof shall be considered to have been relied
upon by the Lenders and shall survive the execution and delivery
of this Agreement and any investigation made at any time by or on
behalf of the Lenders.
15.10 Further Assurances. The Borrower agrees that it
will do, execute and deliver or will cause to be done, executed
and delivered, all such further acts, documents and things as the
Agent may reasonably request for the purpose of giving effect to
this Agreement.
15.11 Severability. Any provision in this Agreement
which is 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 or affecting the validity or
enforceability of such provision in any other jurisdiction.
15.12 Time of the Essence. Time shall be of the essence
of this Agreement.
15.13 Governing Law. This Agreement and all
certificates and other documents delivered to the Agent or the
Lenders shall be governed by and construed in accordance with the
laws of Ontario and the laws of Canada applicable therein.
15.14 Currency of Judgment or Payment. If, pursuant to
the judgment or order of any court or in accordance with the
provisions of applicable law, any amount due or payable hereunder
in U.S. Dollars or any other currency (the "Original Currency")
is paid in Canadian Dollars or any other currency (the "Second
Currency"), such payment in the Second Currency shall discharge
or satisfy the obligation of the Borrower to pay such amount in
the Original Currency only to the extent of the amount of the
Original Currency that the Lenders or any of them, in accordance
with normal banking procedures, can purchase in the Toronto
foreign exchange market on the date of such payment with the
amount of such payment in the Second Currency (translated at the
spot rate of exchange for wholesale transactions at which each
Lender in accordance with normal banking procedures is able to
purchase the Original Currency with the Second Currency on the
date of such payment after payment of any premium or costs of
exchange payable in connection with such purchase). The Borrower
shall, as a separate and independent obligation, which shall not
be merged in any such judgment or order or extinguished by any
such payment in the Second Currency, pay or cause to be paid such
obligation in respect of the Original Currency not so discharged
and satisfied in accordance with the foregoing and indemnify and
save each such Lender harmless against any reasonable loss or
damages arising as a result of any such amount being paid in the
Second Currency.
15.15 Foreign Taxes.
(a) All payments made under this Agreement shall be made
without set-off or counterclaim and free and clear of, and
without reduction for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges,
fees, deductions, withholdings or restrictions or conditions of
any nature whatsoever, now or hereafter imposed, levied,
collected, withheld or assessed by any country other than Canada
(or by any political subdivision or taxing authority of any
country other than Canada) from or through which any amount is
paid under this Agreement excluding, in the case of each Lender:
(i) income and franchise taxes; and
(ii) taxes that would not have been imposed on such
Lender but for the existence of a connection
between such Lender and the jurisdiction imposing
such taxes (other than a connection arising
principally by virtue of this Agreement) ,
such non-excluded taxes being called "Foreign Taxes".
If any Foreign Taxes are required to be withheld from any amounts
so payable to any Lender hereunder, the amounts so payable to
such Lender shall be increased to the extent necessary to yield
to such Lender (after payment of all Foreign Taxes) interest or
any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement. Whenever any Foreign Taxes
are payable by the Borrower as promptly as possible thereafter
the Borrower shall send to the Agent, for the account of such
Borrower, a certified copy of the original official receipt, if
any, received by the Borrower, showing payment thereof. If the
Borrower fails to pay any Foreign Taxes when due to the
appropriate taxing authority or fails to remit to the Agent, for
the account of the Lender, the required receipts or other
required documentary evidence, the Borrower shall indemnify the
Lender for any incremental taxes, interest or penalties that may
become payable by the Lender as a result of any such failure.
(b) The provisions of subsection 4.3(a) shall apply,
mutatis mutandis, in respect of any Lender which gives the notice
and requires the Borrower to take the action contemplated by
subsection 15.15(a) above.
(c) The provisions of this Section 15.15 shall survive the
payment in full of all amounts payable hereunder and the
termination of this Agreement.
15.16 Consent to Jurisdiction and Service of Process.
All judicial proceedings brought against the Borrowers with
respect to this Agreement may be brought in any provincial or
federal court of competent jurisdiction in the Province of
Ontario, and, by execution and delivery of this Agreement, the
Borrowers accept, for themselves and in connection with their
properties, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and irrevocably agree to be
bound by any final judgment rendered thereby in connection with
this Agreement from which no appeal has been take nor is
available. The Borrowers irrevocably agree that all process in
any such proceedings in any such court may be effected by mailing
a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to them at
their addresses set forth in Section 15.7 or at such other
address of which the Agent shall have been notified pursuant
thereto, such service being hereby acknowledged by the Borrowers
to be effective and binding service in every respect. Each of
the Borrowers, the Agent and the Lenders irrevocably waives any
objection, including without limitation, any objection to the
laying of venue or based on the grounds of forum non conveniens
which it may now or hereafter have to the bringing of any such
action or proceeding in any such jurisdiction. Nothing herein
shall affect the right to serve process in any other manner
permitted by law or shall limit the right of the Lenders or the
Agent to bring proceedings against the Borrowers in the court of
any other jurisdiction.
15.17 Interconnection to USD Agreement. The Borrowers
and the Lenders acknowledge that this Agreement is inextricably
linked with the USD Agreement and that only a Lender whose
Affiliated USD Lender is a party to the USD Agreement is entitled
to be a Lender hereunder. It is further acknowledged that usage
of the Credit Facility will, on and subject to the terms hereof,
reduce the availability of the facility created under the USD
Agreement and vice versa.
15.18 Environmental Matters.
(a) In this Section 15.18:
(i) "Hazardous Materials" means (A) any oil, flammable
substances, explosives, radioactive materials,
hazardous wastes or substances, toxic wastes or
substances or any other materials or pollutants
which cause the Borrowers or Guarantors or any of
their assets to be in violation of any Hazardous
Materials Laws; (B) asbestos in any form which is
or could become friable, urea formaldehyde foam
insulation and polychlorinated biphenyls; and
(C) any other chemical, contaminant, pollutant,
hazardous, toxic or dangerous material or
substance as such terms are used in or defined in
Hazardous Materials Laws; and
(ii) "Hazardous Materials Laws" means any present
or
future federal, state, provincial, municipal
or
local laws, statutes, by-laws, ordinances,
regulations and policies and orders,
directives and decisions rendered by any ministry, department or
administrative or regulatory agency which any duly diligent
Person in the normal course of business would comply with
relating to the environment, health and safety, any Hazardous
Materials (including, without limitation, the manufacture,
processing, distribution,treatment, use, handling,
transportation, production, disposal or discharge or storage
thereof) or to industrial hygiene or the environmentalconditions
on, under or about the assets of theBorrowers or the Guarantors,
including, withoutlimitation, soil and ground water conditions.
(b) The Borrowers hereby agree to protect, indemnify and
hold the Lenders, their directors, officers, employees and
agents, harmless from and against any and all actual or potential
claims, proceedings, lawsuits, liabilities, damages, losses,
fines, penalties, judgments, awards, costs and expenses
(including, without limitation, legal fees and costs and expenses
of investigation) which arise out of or relate in any way to any
use, handling, manufacture, processing, generation, distribution,
treatment, production, transportation, disposal, discharge or
storage of any Hazardous Materials in, on, under the assets of
the Borrowers or the Guarantors whether by any Borrower, any
Guarantor or any other Person including, without limitation,
(i) all foreseeable and unforeseeable consequential damages
directly or indirectly arising out of the use, handling,
manufacture, processing, generation, distribution, treatment,
production, transportation or disposal, discharge or storage of
Hazardous Materials by any Borrower or any Guarantor or any other
Person and (ii) the costs of any required or necessary repair,
cleanup or detoxification of the assets of the Borrowers or the
Guarantors and the preparation of any closure, decommissioning or
other required plans. In addition, the Borrowers agree that in
the event any Hazardous Material is caused to be removed from the
assets of the Borrowers or the Guarantors by any Borrower or
Guarantor or any other Person, the Borrowers shall, as between
the Borrowers and the Lenders, assume any and all liability for
such removed Hazardous Material. All such costs, damages, and
expenses referred to in this Subsection 15.18(d) are hereinafter
referred to as "Expenses". In addition, the Borrowers agree that
any Expenses paid by the Lenders shall form part of the
obligations of the Borrowers hereunder and shall bear interest at
the Prime Rate, calculated in accordance with this Agreement.
15.19 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together
shall constitute but one and the same Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed
this agreement as of the 5th day of April, 1995.
JOHN DEERE LIMITED
Per:
Title: Vice-President and Treasurer
Per:
Title: Comptroller
JOHN DEERE FINANCE LIMITED
Per:
Title: President
Per:
Title: Vice-President, Finance and
Administration
<PAGE>
THE TORONTO-DOMINION BANK
(as Agent)
Per:
Title: Manager
Per:
Title: Vice-President
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE
Per:
Title: Director
Per:
Title: Managing Director
Address:
Corporate Group
Commerce Court West
7th Floor
Toronto, Ontario
M5J 1A2
Attn:
Tel: (416) 980-3005
Fax: (416) 980-8384
<PAGE>
ROYAL BANK OF CANADA
Per:
Title: Senior Account Manager
Address:
Grand Cayman (North America No. 1) Branch
c/o New York Operations Center
Financial Square
23rd Floor
New York, New York
10005-3531
Attn: Manager, Loan Administration
Tel: (212) 428-6311
Fax: (212) 428-2372
with a copy to:
One North Franklin Street
Suite 700
Chicago, Illinois
60606
Attn: Preston D. Jones
Tel: (312) 551-1618
Fax: (312) 551-0805
<PAGE>
THE TORONTO-DOMINION BANK
(as a Lender)
Per:
Title: Associate Vice-President
Per:
Title: Manager
Address:
Executive Vice-President
Corporate & Investment Banking
Group
The Toronto-Dominion Bank
55 King Street West
8th Floor
Toronto Dominion Centre
Toronto, Ontario
M5K 1A2
Attn: Manager, Corporate &
Investment Banking Group
Tel: (416) 944-5824
Fax: (416) 944-5630
<PAGE>
SCHEDULE A
CONVERSION NOTICE
TO: THE TORONTO-DOMINION BANK
FROM: [Name of Borrower]
DATE:
1. This Conversion Notice is delivered to you pursuant to
Section 2.11 of the loan agreement (the "Loan Agreement") made as
of March 26, 1993. All defined terms set forth in this
Conversion Notice shall have the respective meanings set forth in
the Loan Agreement.
2. We hereby request a Conversion as follows:
(a) Date of Conversion:
(b) Maturing Loan Type:
(c) Maturing Principal Amount:
(d) Conversion Loan Type:
(e) Interest Period (not applicable if for a Prime Rate or
USBR Loan):
(f) Payment Instructions (if any):
Yours very truly,
[Name of Borrower]
Per:
Title:
<PAGE>
SCHEDULE B
DRAWDOWN NOTICE
TO: THE TORONTO-DOMINION BANK
FROM: [Name of Borrower]
DATE:
1. This Drawdown Notice is delivered to you pursuant to
Section 2.5 of the loan agreement (the "Loan Agreement") made as
of March 26, 1993. All defined terms set forth in this Drawdown
Notice shall have the respective meanings set forth in the Loan
Agreement.
2. We hereby request a Drawdown as follows:
(a) Date of Drawdown:
(b) Amount of Drawdown:
(c) Type of Loan:
(d) Interest Period (not applicable if for a Prime Rate or
USBR Loan:)
(e) Payment Instructions (if any):
3. All of the representations and warranties of the
Borrowers contained in Article 8 of the Loan Agreement are true
and correct on and as of the date hereof as though made on and as
of the date hereof.
4. All of the covenants of the Borrowers contained in
Article Ten and Eleven of the Loan Agreement together with all of
the conditions precedent to a Drawdown and all other terms and
conditions contained in the Loan Agreement to be complied with by
the Borrowers have been fully complied with.
5. No Default or Event of Default has occurred and remains
outstanding nor will any Default or Event of Default occur as a
result of the aforementioned Drawdown.
Yours very truly,
[Name of Borrower]
Per:
Title:
<PAGE>
SCHEDULE C
GUARANTEE
THIS GUARANTEE made as of the 26th day of March, 1993
IN FAVOUR OF:
BANK OF AMERICA CANADA, THE BANK OF NOVA SCOTIA,
CANADIAN IMPERIAL BANK OF COMMERCE, CHEMICAL BANK OF
CANADA, CREDIT SUISSE CANADA, DEUTSCHE BANK (CANADA),
MELLON BANK CANADA, NBD BANK CANADA, ROYAL BANK OF
CANADA, SOCIETE GENERALE (CANADA), THE TORONTO-DOMINION
BANK AND UNION BANK OF SWITZERLAND (CANADA),
(hereinafter collectively referred to as the "Lenders"
and individually as a "Lender"),
by
corporation incorporated under the laws of
(hereinafter referred to as the "Guarantor")
WHEREAS (hereinafter referred to as the "Borrower")
desires to borrow or continue to borrow certain funds from the
Lenders and the Lenders have agreed to lend such funds to the
Borrower in accordance with, and for the purposes set out in, the
Loan Agreement (as herein defined);
AND WHEREAS the respective undertakings and businesses
of the Borrower and the Guarantor are carried on in cooperation;
AND WHEREAS it is a condition of the obligations of the
Lenders under the Loan Agreement that this Agreement be entered
into by the Guarantor;
NOW THEREFORE in consideration of the premises, the
mutual covenants, agreements and conditions herein contained and
other good and valuable consideration (the receipt and
sufficiency of which by each party hereto is hereby
acknowledged), it is hereby covenanted, agreed and declared as
follows:
ARTICLE I
INTERPRETATION
1.1 Definitions. In this Guarantee, unless there is
something in the context or subject-matter inconsistent
therewith, the following words and expressions shall have the
following meanings:
(a) "Agreement" or "Guarantee" means this Agreement
entitled "Guarantee" and all instruments supplemental
hereto or in amendment or confirmation hereof;
(b) "Loan Agreement" means the agreement made the 26th day
of March, 1993 between, among others, the Borrower and
the Lenders, pursuant to which the Lenders have agreed
to advance Loans upon and subject to the terms and
conditions therein contained, as such agreement may be
amended from time to time.
1.2 Certain Defined Terms. Except to the extent otherwise
defined herein, all terms which are defined in the Loan Agreement
and used in this Agreement shall have the respective meanings
assigned to them in the Loan Agreement, unless the context
otherwise requires.
1.3 Interpretation Not Affected by Headings, etc. The
division of this Agreement into articles, sections and paragraphs
and subparagraphs and the insertion of headings are for
convenience of reference only and shall not affect the
construction or interpretation of this Agreement. The terms
"this Agreement", this "Guarantee", "hereof", "herein",
"hereunder" and similar expressions refer to this Agreement and
not to any particular article, section or other portion hereof.
1.4 Number, etc. Words importing the singular number only
shall include the plural and vice versa; words importing the use
of any gender shall include all genders; and words importing
persons shall include firms and corporations and vice versa.
1.5 Severability. In the event that one or more provisions
contained in this Agreement or any agreement or other
documentation required hereunder to be delivered to the Lenders
or any of them, shall be invalid, illegal or unenforceable in any
respect under any applicable law, the invalidity, illegality or
unenforceability of such provision shall not affect or impair the
validity, legality and enforceability of the remaining provisions
hereof and any such invalid, illegal or unenforceable provision
shall be deemed to be severable.
1.6 Governing Law and Jurisdiction. This Agreement shall
be governed by and construed in accordance with the laws of the
Province of Ontario and the laws of Canada applicable therein.
1.7 Loan Agreement. This Guarantee is entered into
pursuant to the Loan Agreement. The dealings of the Lenders
inter se, and the manner in which they shall act hereunder, shall
be governed by the provisions of the Loan Agreement and the
Guarantor hereby agrees therewith.
ARTICLE II
GUARANTEE
2.1 Guarantee. The Guarantor hereby unconditionally and
irrevocably guarantees the due and punctual payment of the
principal of, and interest (including, to the extent permitted by
applicable law, interest on overdue interest) on, and all other
sums payable with respect to, the Loans from time to time owing
to the Lenders or any of them under, by virtue of or otherwise in
connection with the Loan Agreement.
2.2 Guarantor to Perform Certain Obligations of the
Borrower. If the Borrower shall make default in payment of any
of the principal of, interest (including, to the extent permitted
by applicable law, interest on overdue interest) or any other
sums from time to time owing to the Lenders or any of them under
the Loan Agreement and any period during which the Borrower is
permitted to cure such default has expired, the Guarantor shall,
so often as any such default happens, forthwith upon its receipt
of written demand of the Agent on behalf of the Lenders,
specifying the event or events of default, pay to the Lenders
such principal and/or interest and/or other sums in default. No
Lender shall be bound to exercise or to exhaust any recourse
against the Borrower or its property or any other guarantor or
its property before being entitled to the fulfilment by the
Guarantor of any of the Borrower's obligations as aforesaid. The
Guarantor hereby waives demand (except as aforesaid),
presentment, protest and notice (except as aforesaid) of any
kind, any requirement of diligence on the part of the Lenders or
the Agent and renounces all benefits of discussion and division.
2.3 Lenders May Proceed Against Guarantor. If the Borrower
shall make default as aforesaid and if the Guarantor shall fail
forthwith on demand to make good or to cause to be made good such
default in the manner hereinbefore provided, then so often as any
such default and failure shall occur and be continuing, the
Lenders shall have the right in their discretion to proceed in
their names against the Guarantor by any remedy provided by law
and to recover from the Guarantor such sums as the Guarantor may
be liable to pay hereunder.
2.4 Waiver of Borrower's Default. If the default of the
Borrower in respect of which any Guarantor would otherwise be or
become liable pursuant to the provisions hereof shall have been
waived or consented to by the Lenders, the Guarantor shall not be
deemed to be in default pursuant hereto with respect to such
default but any such waiver or consent shall relate only to such
default and shall not constitute a waiver or consent with respect
to any other or subsequent default of the Borrower.
2.5 Continuing Guarantee. The guarantee of the Guarantor
herein provided shall be a continuing, absolute and unconditional
guarantee and a fresh cause of action hereunder shall arise in
respect of each default hereunder. This Guarantee shall remain
in full force and effect (and the Guarantor shall not be entitled
to any declaration of relief from further liability therefor)
until the Borrower shall have fully and satisfactorily discharged
all its obligations under the Loan Agreement with respect to the
payment of any monetary amount and all obligations of the Lenders
thereunder shall have terminated.
2.6 Guarantee Unconditional. Subject to the provisions of
section 2.4 hereof, the obligations and liabilities of the
Guarantor hereunder are unconditional and except as otherwise
provided herein, shall be enforceable by any person entitled to
enforce the same without the necessity of any action or recourse
whatsoever against the Borrower and/or any other guarantor, and
the Guarantor hereby agrees that neither it nor any such
liability or obligation shall be released, discharged or in any
way affected:
(a) by, in whole or in part, any extension of time,
renewal, waiver or release of the duty to pay moneys by
the Borrower;
(b) by any modification of any obligations of the Borrower;
(c) by any forbearance whatsoever, whether as to time,
performance or otherwise;
(d) by the release of any other guarantor or by the taking
of security for the obligations guaranteed hereby or
the release, discharge, loss of, alteration of or other
dealing with any such security;
(e) by anything done, suffered or permitted by the Lenders
or any of them under the provisions of the Loan
Agreement or with respect to the Loans or any of them;
(f) by any other act or proceedings in relation to the
obligations of the Borrower or any security therefor
whereby such Guarantor might otherwise be released or
exonerated;
(g) by any irregularity, invalidity or unenforceability of
any term of this Agreement or the Loan Agreement; or
(h) any change in the name, capital, constitution,
ownership or control of any Borrower or any
amalgamation or other form of reorganization or change
with respect to any Borrower.
2.7 Acknowledgement of Guarantor. The Guarantor
acknowledges that it is familiar with and has examined the terms
and conditions of the Loan Agreement.
ARTICLE III
FURTHER PROVISIONS
3.1 Liability. This Guarantee shall not be considered as
wholly or partially satisfied by the payment or liquidation at
any time or times of any sum or sums of money for the time being
due or remaining unpaid to the Lenders, and until the Lenders
shall have received payment in full of all monetary amounts
payable under the Loan Agreement and all the obligations of the
Lenders thereunder shall have terminated, (i) all dividends,
compositions, proceeds of securities valued and payments received
by the Lenders from any Borrower or from others in respect of the
principal of, interest on, and all other sums payable under the
Loan Agreement shall be regarded for all purposes as payments to
the Lenders on account of the principal of, interest on, and all
other sums payable under the Loan Agreement without any right on
the part of the Guarantor to claim the benefits thereof in
reduction of the liability under this Guarantee and (ii) the
Guarantor shall have no right to be subrogated in any rights of
the Lenders.
3.2 Additional Security. This Guarantee is in addition to
and not in substitution for any other guarantee or security of
any kind now or hereafter held by the Lenders.
3.3 Accounts Settled. The Guarantor shall be bound by any
account settled between the Lenders and the Borrower, and if no
such account has been so settled immediately before demand of
payment under this Guarantee any account stated by the Lenders
shall, in the absence of manifest error, be accepted by the
Guarantor as conclusive evidence of the amount which at the date
of the account so stated is due by the Borrower to the Lenders or
remains unpaid by the Borrower to the Lenders.
ARTICLE IV
MISCELLANEOUS
4.1 Costs and Expenses of Collection. All costs and
expenses of collection of all amounts owing hereunder which are
reasonably incurred by the Lenders or any of them shall be for
the account of the Guarantor.
4.2 Non-Merger. All agreements and covenants of the
Guarantor made herein with respect to this Agreement and the
transactions contemplated hereby are material, shall be deemed to
have been relied upon by each of the Lenders and shall survive
the execution of this Agreement and the making of the Loans until
repayment in full thereof and of all other amounts owing
hereunder.
4.3 Assignment. This Agreement shall enure to the benefit
of each of the Lenders and their respective successors and
assigns to whom all or part of the rights and obligations of a
Lender under the Loan Agreement have been assigned pursuant to
the provisions of the Loan Agreement, including Section 15.2
thereof, but none of the foregoing nor the benefit thereof may be
assigned by the Guarantor without the prior written consent of
the Lenders.
4.4 Waivers. The Lenders may waive compliance by the
Guarantor with any term and condition hereof relating to the
Loans or any of them but no such waiver shall be construed as a
waiver of any term or condition other than that specifically so
waived and in such event the Guarantor shall be deemed never to
have been in default hereunder in respect of which such
compliance shall have been so waived.
4.5 Notice. Any consent, waiver, approval, notice, request
or demand or other communication (hereinafter called a "notice")
required or permitted to be given hereunder shall be in writing
and shall be given in accordance with the provisions of
Section 15.7 of the Loan Agreement.
4.6 Entire Agreement. This instrument embodies all
agreements between the parties hereto relative to this Guarantee
and none of the parties shall be bound by any representation or
promise made by any person relative thereto which is not embodied
herein.
4.7 Time. Time shall be of the essence hereof.
IN WITNESS WHEREOF the Guarantor has executed this
Agreement as of the day and year first above written.
Per:
Per:
<PAGE>
SCHEDULE D
REPAYMENT NOTICE
TO: THE TORONTO-DOMINION BANK
FROM: [Name of Borrower]
DATE:
1. This Repayment Notice is delivered to you pursuant to
Section 2.13 of the loan agreement (the "Loan Agreement") made as
of March 26, 1993. All defined terms set forth in this Repayment
Notice shall have the respective meanings set forth in the Loan
Agreement.
2. We hereby give notice of a repayment as follows:
(a) Date of Repayment:
(b) Loan Type:
(c) Principal Amount:
Yours very truly,
[Name of Borrower]
Per:
Title:
<PAGE>
SCHEDULE E
ROLLOVER NOTICE
TO: THE TORONTO-DOMINION BANK
FROM: [Name of Borrower]
DATE:
1. This Rollover Notice is delivered to you pursuant to
Section 2.10 of the loan agreement (the "Loan Agreement") made as
of March 26, 1993. All defined terms set forth in this Rollover
Notice shall have the respective meanings set forth in the Loan
Agreement.
2. We hereby request a Rollover as follows:
(a) Date of Rollover:
(b) Amount of Rollover:
(c) Loan Type:
(d) Interest Period (not applicable if for a Prime Rate or
USBR Loan:
(e) Payment Instructions (if any):
Yours very truly,
[Name of Borrower]
Per:
Title:
<PAGE>
SCHEDULE F
SUBORDINATION AGREEMENT
THIS AGREEMENT made the 26th day of March, 1993
B E T W E E N :
DEERE & COMPANY,
(hereinafter called the "Creditor")
- and -
JOHN DEERE LIMITED,
(hereinafter called the "Company")
- and -
BANK OF AMERICA CANADA, THE BANK OF NOVA SCOTIA,
CANADIAN IMPERIAL BANK OF COMMERCE, CHEMICAL BANK OF
CANADA, CREDIT SUISSE CANADA, DEUTSCHE BANK (CANADA),
MELLON BANK CANADA, NBD BANK CANADA, ROYAL BANK OF
CANADA, SOCIETE GENERALE (CANADA), THE TORONTO-DOMINION
BANK AND UNION BANK OF SWITZERLAND (CANADA),
(hereinafter collectively called the "Lenders")
WHEREAS the Company has entered into certain loan
arrangements with the Lenders pursuant to the provision of a loan
agreement (the "Loan Agreement") dated as of March 26, 1993; and
WHEREAS as at February 28, 1993 the Company was
indebted to the Creditor in the sum of Cdn.$29,127,000 together
with interest thereon at the rates specified in respect of such
indebtedness (hereinafter called the "existing indebtedness") the
whole of which amount is owing by the Company to the Creditor,
and is not at the date hereof otherwise assigned, pledged or
hypothecated by the Creditor and the Company is not otherwise
indebted to the Creditor at the present time; ;and
WHEREAS it is a condition in the Loan Agreement to the
advance of monies thereunder by the Lenders that the Creditor
provide this Agreement in favour of the Lenders and each of them.
NOW THEREFORE in consideration of the Lenders and each
of them entering into the Loan Agreement with the Company and
advancing monies thereunder and of such further banking
accommodation as the Lenders or any of them may from time to time
furnish to the Company, the Creditor and the Company hereby
covenant and agree with the Lenders and each of them that no
payment shall be made by the Company to the Creditor in respect
of the principal of, interest on or any other amount owing in
respect of indebtedness, both present and future, of the Company
to the Creditor, including without limiting the generality of the
foregoing the existing indebtedness.
The Company acknowledges that the existing indebtedness
is owing by it to the Creditor and agrees that the existing
indebtedness is not the subject of nor will it (or any present
indebtedness or future indebtedness of any nature or kind of the
Company to the Creditor) hereafter without the consent of the
Lenders be made the subject of any set-off or counter-claim by
the Company and the Company and the Creditor represent to the
Lenders and each of them that the Creditor holds no security for
the existing indebtedness or any part thereof (or for any present
or future indebtedness of any nature or kind of the Company to
the Creditor). The Company and the Creditor hereby agree with
the Lenders and each of them that no satisfaction, consideration
or security will be given to or accepted by the Creditor for any
debt, liability or obligation, present or future, including the
existing indebtedness owing by the Company to the Creditor,
without the written consent of the Lenders first had and
obtained. Any monies or other consideration received by the
Creditor as a result or by way of satisfaction, consideration or
security aforesaid without the prior written consent of the
Lenders shall be received in trust for the Lenders and upon
receipt shall be paid to the Lenders.
In the event of any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or
other similar proceedings relative to the Company, or to its
property or assets, or in the event of any proceedings for
voluntary liquidation, dissolution or other winding-up of the
Company whether or not involving insolvency or bankruptcy, or in
the event of the winding-up of the Company or any distribution of
the assets or any of the assets of the Company or proceeds
thereof among its creditors in any manner whatsoever, the Lenders
and each of them shall receive payment in full of all present and
future debts, liabilities and obligations of the Company, direct
or indirect, absolute or contingent, matured or not, at any time
and from time to time existing or arising under or by virtue of
or otherwise in connection with the Loan Agreement, including
without in any way limiting the generality of the foregoing all
principal thereof, interest thereon and all costs, charges,
expenses and other amounts related thereto and including interest
accruing after the filing of a petition in any proceeding
referred to above (the "Superior Debt") prior to the Creditor
receiving any amount in respect of its then indebtedness from the
Company and the Lenders and each of them may, unless prohibited
by law, prove in respect of the said sums hereby subordinated as
a debt owing to them and each of them by the Company and the
Lenders and each of them shall be entitled to receive the
dividends payable in respect thereof, such dividends to be
applied on such part or parts of the Superior Debt as the Lenders
shall see fit until the whole thereof has been paid in full and
the obligations of the Lenders under the Loan Agreement have been
terminated and thereafter the Creditor shall be entitled to such
dividends.
Upon payment in full of the Superior Debt and of all
bills, notes and other instruments representing the same and the
termination of all obligations of the Lenders and each of them
pursuant to the Loan Agreement, the Lenders will release to the
Creditor all the Lenders' claims under this agreement in respect
of the claims hereby subordinated.
It is declared and agreed that the Lenders shall not,
as a result of execution hereof, be bound to continue their legal
arrangements with the Company other than in accordance with the
provisions of the Loan Agreement.
Notwithstanding the foregoing, it is agreed that the
Creditor may accept payments or repayments from the Company so
long as the following conditions are met:
(a) no Default or Event of Default, as defined in the Loan
Agreement, then exists; and
(b) no such Default or Event of Default will arise from or
as a result of such repayment.
The Lenders shall not be prejudiced in any way in the
right to enforce the provisions hereof by any act or omission on
the part of the Company. The Lenders may, at any time and from
time to time, without any consent of or notice to the Creditor
hereunder: (i) change the manner, place or terms of payment or
change or extend the time of payment of, or renew or alter, the
Superior Debt (including any change in the rate of interest
thereon), or amend, modify or supplement the Loan Agreement or
any other agreement or document whether or not related thereto;
(ii) take or refrain from taking or give up or release any
security for the Superior Debt; (iii) sell, exchange, release,
not perfect and otherwise deal with any property at any time
pledged, assigned or mortgaged to secure the Superior Debt;
(iv) release anyone liable in any manner under or in respect of
the Superior Debt; (v) exercise or refrain from exercising any
rights against the Company, any guarantor of the Superior Debt or
other person; and (vi) apply or not any sums from time to time
received to the Superior Debt; provided, however, that no
amendment or addition or supplement to the Superior Debt or any
instrument or agreement relating thereto shall be effective to
change the extent or the terms of the subordination effected
hereby without the consent of the Creditor.
The Creditor agrees not to assign or transfer any
indebtedness (or interest therein) owing to it by the Company
unless the assignee or transferee and the Company shall first
have entered into an agreement in favour of the Lenders and each
of them containing substantially the same terms and provisions as
are set out herein.
This Agreement shall be binding upon and shall enure to
the benefit of the successors and assigns of the respective
parties hereto, including permitted assignees of the Lenders or
any of them pursuant to the Loan Agreement.
<PAGE>
This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws
of Canada applicable therein.
IN WITNESS WHEREOF each of the parties hereto have
caused this Agreement to be duly executed by their proper
officers.
DEERE & COMPANY
By:
c/s
Nathan T. Jones
Assistant Treasurer
Michael A. Harring
Assistant Secretary
JOHN DEERE LIMITED
By:
c/s
R. W. Hoffman
Vice-President and Treasurer
D. A. Kirk
Comptroller
THE TORONTO-DOMINION BANK
(as Agent)
Per:
Authorized Officer
Per:
Authorized Officer
BANK OF AMERICA CANADA
Per:
Authorized Officer
Per:
Authorized Officer
THE BANK OF NOVA SCOTIA
Per:
Authorized Officer
Per:
Authorized Officer
CANADIAN IMPERIAL BANK OF COMMERCE
Per:
Authorized Officer
Per:
Authorized Officer
CHEMICAL BANK OF CANADA
Per:
Authorized Officer
Per:
Authorized Officer
CREDIT SUISSE CANADA
Per:
Authorized Officer
Per:
Authorized Officer
DEUTSCHE BANK (CANADA)
Per:
Authorized Officer
Per:
Authorized Officer
MELLON BANK CANADA
Per:
Authorized Officer
Per:
Authorized Officer
NBD BANK CANADA
Per:
Authorized Officer
Per:
Authorized Officer
ROYAL BANK OF CANADA
Per:
Authorized Officer
Per:
Authorized Officer
SOCIETE GENERALE (CANADA)
Per:
Authorized Officer
Per:
Authorized Officer
THE TORONTO-DOMINION BANK
(as a Lender)
Per:
Authorized Officer
Per:
Authorized Officer
UNION BANK OF SWITZERLAND (CANADA)
Per:
Authorized Officer
Per:
Authorized Officer
<PAGE>
SCHEDULE G
[OUTSTANDING LITIGATION - SECTION 8.5]
<PAGE>
SCHEDULE H
[OPINION OF FASKEN CAMPBELL GODFREY]
March 26, 1993
Bank of America Canada
The Bank of Nova Scotia
Canadian Imperial Bank of Commerce
Chemical Bank of Canada
Credit Suisse Canada
Deutsche Bank (Canada)
Mellon Bank Canada
NBD Bank (Canada)
Royal Bank of Canada
Societe Generale (Canada)
The Toronto-Dominion Bank
Union Bank of Switzerland (Canada)
c/o The Toronto-Dominion Bank
as agent
Toronto-Dominion Centre
Toronto, Ontario
Dear Sirs:
Re: Loan Agreement made March 26, 1993 between John Deere
Limited and John Deere Finance Limited as Borrowers, Bank of
America Canada, The Bank of Nova Scotia, Canadian Imperial
Bank of Commerce, Chemical Bank of Canada, Credit Suisse
Canada, Deutsche Bank (Canada), Mellon Bank Canada, NBD Bank
(Canada), Royal Bank of Canada, Societe Generale (Canada),
The Toronto-Dominion Bank and Union Bank of Switzerland
(Canada) as Lenders, and The Toronto-Dominion Bank as Agent
We have acted as special counsel to John Deere Limited
("JDL") and John Deere Finance Limited ("JD Finance") in
connection with the loan agreement (the "Loan Agreement") made
March 26, 1993 between JDL and JD Finance as Borrower, each of
you as Lenders and The Toronto Dominion Bank as Agent.
We have participated in the preparation of the Loan
Agreement. We have also participated in the preparation of: (i)
the guarantee dated March 26, 1993 (the "JDL Guarantee") executed
by JDL pursuant to which JDL has guaranteed payment to the
Lenders of all amounts owing by JD Finance to the Lenders
pursuant to the Loan Agreement; (ii) the guarantee dated March
26, 1993 (the "JD Finance Guarantee") executed by JD Finance
pursuant to which JD Finance has guaranteed payment to the
Lenders of all of the amounts owing by JDL to the Lenders
pursuant to the Loan Agreement; and (iii) the Subordination
Agreement.
In this opinion, all capitalized terms used but not
defined herein shall have the respective meanings specified in
the Loan Agreement.
We have examined and relied upon originals or copies
certified or identified to our satisfaction of the constating
documents and by-laws of JDL and JD Finance, certificates of
public officials with respect to JDL and JD Finance and
certificates of officers of JDL and JD Finance as to certain
factual matters. We have also examined such other documents and
records and considered such questions of law as we have
considered appropriate for the purposes of the opinions expressed
below.
In connection with the opinion expressed in paragraph
5, we have relied upon an examination of extra-provincial
licences issued to JDL or JD Finance and on our general
understanding of applicable laws of each of the provinces of
Canada, but have made no further or other investigation of JDL's
and JD Finance's status as an extra-provincial or foreign
corporation.
In connection with the opinion expressed in paragraphs
9 and 10, we have relied upon the certificate of the treasurer of
each of JDL and JD Finance attached hereto as Exhibits A and B,
respectively.
We have assumed the due incorporation and existence of
each of you and your respective powers to enter into the Loan
Agreement and the due authorization, execution and delivery of
the Loan Agreement by each of you. We have also assumed the
genuineness of all signatures on and the authenticity of all
documents submitted to us as original documents, the conformity
to the original documents of all documents submitted to us as
true, certified, conformed or photostatic copies thereof and the
genuineness of all signatures on and the authenticity and
completeness of the originals of such copies.
Based upon and subject to the foregoing, we are of the
opinion that:
1. Each of JDL and JD Finance is a corporation duly
incorporated under the Canada Business Corporations Act which has
not been discontinued or dissolved under that Act and each of JDL
and JD Finance has sent to the Director appointed under that Act
the annual returns and financial statements required to be sent
to him under such Act.
2. At the date hereof:
(a) Deere & Company is shown on the securities register
maintained by JDL as the registered holder of all the
issued and outstanding shares of JDL; and
(b) JDL is shown on the securities register maintained by
JD Finance as the registered holder of all the issued
and outstanding shares of JD Finance.
Because liens, charges, hypothecs, security interests or other
encumbrances or restrictions pertaining to the shares of JDL and
JD Finance may not be of public record, we have carried out no
investigation and express no opinion in respect thereof.
3. JDL has the corporate capacity to own the assets owned
by it in connection with its business of the manufacture of
agricultural equipment and the distribution of agricultural and
industrial equipment and consumer products and JD Finance has the
corporate capacity to own the assets owned by it in connection
with its business of financing sales of such equipment and
products.
4. JDL has the corporate capacity to carry on the business
of the manufacture of agricultural equipment and the distribution
of agricultural and industrial equipment and consumer products
and JD Finance has the corporate capacity to carry on the
business of financing sales of such equipment and products.
5. JDL is duly qualified as an extra-provincial or foreign
corporation under the laws of each of the provinces of Canada
other than the Province of Quebec. JD Finance is duly qualified
as an extra-provincial or foreign corporation under the laws of
each of the provinces of Canada other than the Province of
Quebec.
6. JDL has the corporate capacity to execute and to
deliver the Loan Agreement, the JDL Guarantee, the Subordination
Agreement and all other agreements required under the Loan
Agreement to be executed by it and to perform its obligations
under the Loan Agreement, the JDL Guarantee, the Subordination
Agreement and all such other agreements; each of the Loan
Agreement, the JDL Guarantee and the Subordination Agreement has
been duly executed and delivered by JDL; and each of the Loan
Agreement, the JDL Guarantee and the Subordination Agreement is a
valid and legally binding obligation of JDL, enforceable against
JDL in accordance with its terms.
7. JD Finance has the corporate capacity to execute and to
deliver the Loan Agreement, the JD Finance Guarantee and all
other agreements required under the Loan Agreement to be executed
by it and to perform its obligations under the Loan Agreement,
the JD Finance Guarantee and all such other agreements; each of
the Loan Agreement and the JD Finance Guarantee has been duly
executed and delivered by JD Finance; and each of the Loan
Agreement and the JD Finance Guarantee is a valid and legally
binding obligation of JD Finance, enforceable against JD Finance
in accordance with its terms.
8. The Minister of Finance of Canada has granted exemption
from the application of the provisions of the Investment
Companies Act (Canada) to JD Finance pursuant to the extent
provided in subsection 3(2) of the Act and the Minister has not
revoked the exemption.
9. Neither the execution and delivery of the Loan
Agreement, the JDL Guarantee or the Subordination Agreement, nor
compliance with the terms, conditions and provisions of the Loan
Agreement, the JDL Guarantee or the Subordination Agreement
conflicts with or will conflict with, or results or will result
in any breach of, or constitutes or will constitute a default
under, any of the provisions of the constating documents or by-
laws of JDL, or of any of the agreements listed in Exhibit A
hereto or results or will result in the creation or imposition of
any material Mortgage upon any assets of JDL under or pursuant to
the agreements listed in Exhibit A hereto other than Permitted
Encumbrances.
10. Neither the execution and delivery of the Loan
Agreement or the JD Finance Guarantee, nor compliance with the
terms, conditions and provisions of the Loan Agreement or the JD
Finance Guarantee conflicts with or will conflict with, or
results or will result in any breach of, or constitutes or will
constitute a default under, any of the provisions of the
constating documents or by-laws of JD Finance, or of any of the
agreements listed in Exhibit B hereto or results or will result
in the creation or imposition of any material Mortgage upon any
assets of JD Finance under or pursuant to the agreements listed
in Exhibit B hereto other than Permitted Encumbrances.
11. No consents, approvals, authorizations, exemptions,
registrations, filings or declarations of or with any government
or governmental authority, the lack of which would be material to
the financial condition of the Deere Group, are required to be
obtained or made on the part of JDL in connection with the
execution and delivery of, and the performance of obligations
under, the Loan Agreement, the JDL Guarantee or the Subordination
Agreement except as have been obtained or made.
12. No consents, approvals, authorizations, exemptions,
registrations, filings or declarations of or with any government
or governmental authority, the lack of which would be material to
the financial condition of the Deere Group, are required to be
obtained or made on the part of JD Finance in connection with the
execution and delivery of, and the performance of obligations
under, the Loan Agreement or the JD Finance Guarantee by JD
Finance except as have been obtained or made.
The foregoing opinions are subject to the following
qualifications:
(a) Enforceability of the terms of the Loan Agreement, the
JDL Guarantee, the JD Finance Guarantee and the
Subordination Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws
relating to or affecting the enforcement of creditors'
rights generally and by general equitable principles.
(b) The Currency Act (Canada) provides that any statement
as to money or money value in any legal proceeding
shall be stated in the currency of Canada.
Accordingly, in any proceeding brought in any court in
Canada, any claim relating to the Loan Agreement for
any amount expressed in any currency other than
Canadian currency must be converted into Canadian
currency. Under the laws of the Province of Ontario,
the appropriate date for such conversion will depend on
the circumstances of the case.
(c) While we understand that the Borrowers intend to make
all payments in respect of USBR Loans, U.S. LIBOR Loans
and U.S. Dollar denominated Fixed Rate Loans and
Operating Facility Loans pursuant to the Loan Agreement
in U.S. Dollars, obligations governed by Ontario law to
make payment may be satisfied by payment in the
currency which constitutes legal tender at the place of
payment.
(d) The costs of and incidental to all proceedings
authorized to be taken in a court or before a judge are
in the discretion of the court or judge and the court
or judge has full power to determine by whom and to
what extent the costs shall be paid.
Yours very truly,
<PAGE>
SCHEDULE I
[OPINION OF DEERE & COMPANY]
March 26, 1993
Bank of America Canada
The Bank of Nova Scotia
Canadian Imperial Bank of Commerce
Chemical Bank of Canada
Credit Suisse Canada
Deutsche Bank (Canada)
Mellon Bank Canada
NBD Bank (Canada)
Royal Bank of Canada
Societe Generale (Canada)
The Toronto-Dominion Bank
Union Bank of Switzerland (Canada)
c/o The Toronto-Dominion Bank
as Agent
Toronto-Dominion Centre
Toronto, Ontario
Dear Sirs:
Re: Loan Agreement made as of March 26, 1993 between John Deere
Limited and John Deere Finance Limited as Borrowers, Bank of
America Canada, The Bank of Nova Scotia, Canadian Imperial
Bank of Commerce, Chemical Bank of Canada, Credit Suisse
Canada, Deutsche Bank (Canada), Mellon Bank Canada, NBD Bank
(Canada), Royal Bank of Canada, Societe Generale (Canada),
The Toronto-Dominion Bank and Union Bank of Switzerland
(Canada) as Lenders, and The Toronto-Dominion Bank as Agent
This opinion is furnished to you pursuant to
Section 9.2 of the Loan uAgreement dated as of March 26, 1993
(the "Loan Agreement") between John Deere Limited, John Deere
Finance Limited, the Lenders parties thereto and The
Toronto-Dominion Bank, as Agent for said Lenders. Terms defined
in the Loan Agreement are used herein as therein defined.
As General Counsel to Deere & Company, I am familiar
with its corporate history and organization and the proceedings
relating to the authorization, execution and delivery of the
Subordination Agreement constituting Schedule F to the Loan
Agreement. In that connection, I have examined:
1. The Loan Agreement;
2. The Certificate of Incorporation of Deere & Company and
all amendments thereto (the "Charter"); and
3. The bylaws of Deere & Company and all amendments
thereto (the "Bylaws").
In addition, I have reviewed such of the corporate
proceedings of Deere & Company, and have examined such documents,
corporate records, and other instruments relating to the
organization of Deere & Company and its respective Subsidiaries
and such other agreements and instruments to which Deere &
Company and its Subsidiaries are parties, as I have deemed
necessary for the purpose of this opinion. I have assumed the
due execution and delivery, pursuant to due authorization, of the
Loan Agreement by the Banks and the Agent, and the authenticity
of all documents submitted to me as originals and the conformity
to the original documents of all documents submitted to me as
certified, conformed or photostatic copies.
I am qualified to practise law in the State of Illinois
and do not purport to be an expert on, and do not express any
opinion herein concerning, any laws other than the laws of the
State of Illinois, the General Corporation Law of the State of
Delaware and the Federal laws of the United States.
Based upon the foregoing and upon such investigation as
I have deemed necessary, I am of the following opinion:
1. Deere & Company is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware and has the corporate power and authority to carry on
its business as now being conducted and to own its properties.
2. The execution, delivery and performance by Deere &
Company of the Subordination Agreement is within its corporate
powers, has been duly authorized by all necessary corporate
action, and (i) does not contravene or constitute a default under
its Charter or Bylaws, any judgment, law, rule or regulation
applicable to Deere & Company, or any contractual obligation by
which it is bound or (ii) will not result in the creation of any
lien, charge or encumbrance upon any of its property or assets.
The Subordination Agreement has been duly executed and delivered
on behalf of Deere & Company and constitutes a legal, valid and
binding obligation of Deere & Company, enforceable in accordance
with its terms except as limited by any applicable bankruptcy,
insolvency or similar laws affecting the enforcement of
creditors' rights generally and except as enforcement thereof may
be subject to general equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
3. No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by Deere & Company of the Subordination Agreement.
Very truly yours,
<PAGE>
SCHEDULE J
[OPINION OF TORY TORY DESLAURIERS & BINNINGTON]
March 26, 1993
Bank of America Canada
The Bank of Nova Scotia
Canadian Imperial Bank of Commerce
Chemical Bank of Canada
Credit Suisse Canada
Deutsche Bank (Canada)
Mellon Bank Canada
NBD Bank (Canada)
Royal Bank of Canada
Societe Generale (Canada)
The Toronto-Dominion Bank
Union Bank of Switzerland (Canada)
c/o The Toronto-Dominion Bank
as Agent
Toronto-Dominion Centre
Toronto, Ontario
Dear Sirs:
Re: Loan Agreement made as of March 26, 1993 between John Deere
Limited and John Deere Finance Limited as Borrowers, Bank of
America Canada, The Bank of Nova Scotia, Canadian Imperial
Bank of Commerce, Chemical Bank of Canada, Credit Suisse
Canada, Deutsche Bank (Canada), Mellon Bank Canada, NBD Bank
(Canada), Royal Bank of Canada, Societe Generale (Canada),
The Toronto-Dominion Bank and Union Bank of Switzerland
(Canada) as Lenders, and The Toronto-Dominion Bank as Agent
We have acted as your counsel in connection with the
loan agreement (the "Loan Agreement") made as of March 26, 1993
between John Deere Limited ("JDL") and John Deere Finance Limited
("JD Finance") as Borrowers, each of you as Lenders and The
Toronto-Dominion Bank as Agent. In this connection, we have
participated in the preparation of the Loan Agreement.
In providing the opinion below, we have assumed the due
incorporation and existence of each of you and your respective
powers to enter into the Loan Agreement and the due
authorization, execution and delivery of the Loan Agreement by
each of you. We have also relied exclusively on paragraphs 1, 6
and 7 of the opinion of Fasken Campbell Godfrey dated the date
hereof and delivered to you with respect to the incorporation of
each of JDL and JD Finance, their respective corporate power and
authority in relation to the Loan Agreement and their respective
due execution and delivery thereof.
Based upon and subject to the foregoing, we are of the
opinion that the Loan Agreement is a valid and legally binding
obligation of each of JDL and JD Finance enforceable against each
of them in accordance with its terms.
The foregoing opinion is subject to the following
qualifications:
(1) Enforceability of the terms of the Loan Agreement may
be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting the enforcement of creditors'
rights generally and by general equitable principles.
(2) The Currency Act (Canada) provides that any statement
as to money or money value in any legal proceeding shall be
stated in the currency of Canada. Accordingly, in any proceeding
brought in any court in Canada, any claim relating to the Loan
Agreement for an amount expressed in any currency other than
Canadian currency must be converted into Canadian currency.
Under the laws of the Province of Ontario, the appropriate date
for such conversion will depend on the circumstances of the case.
(3) While we understand that the Borrowers intend to make
all payments in respect of USBR Loans, U.S. LIBOR Loans and U.S.
Dollar denominated Fixed Rate Loans and Operating Facility Loans
pursuant to the Loan Agreement in U.S. Dollars, obligations
governed by Ontario law to make a payment may be satisfied by
payment in the currency which constitutes legal tender at the
place of payment.
(4) The costs of and incidental to all proceedings
authorized to be taken in a court or before a judge are in the
discretion of the court or judge and the court or judge has full
power to determine by whom and to what extent the costs shall be
paid.
Yours truly,
<PAGE>
SCHEDULE K
[FORM OF MONTHLY REPORTS - SECTION 10.2(C)]
<PAGE>
U.S. $87,500,000
LOAN AGREEMENT
between
JOHN DEERE LIMITED
- and -
JOHN DEERE FINANCE LIMITED
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
ROYAL BANK OF CANADA
THE TORONTO-DOMINION BANK
- and -
THE TORONTO-DOMINION BANK as Agent
Dated as of April 5, 1995
<PAGE>
TABLE OF CONTENTS
1. INTERPRETATION
1.1 Definitions . . . . . . . . . . . . . . .. . . . 2
1.2 Computation of Time Period. . . . . . . . . . 19
1.3 General Interpretation. . . . . . . . . .. . . 19
1.4 Generally Accepted Accounting Principles. . . 19
1.5 Actions on Days Other than Banking Days . . . 19
1.6 Headings and Table of Contents. . . . . .. . . 20
1.7 Dollars . . . . . . . . . . . . . . . . .. . . 20
1.8 Effective Date or Time. . . . . . . . . .. . . 20
2. CREDIT FACILITY
2.1 Establishment . . . . . . . . . . . . . . . . 20
2.2 Purposes. . . . . . . . . . . . . . . . .. . . 20
2.3 Manner of Borrowing . . . . . . . . . . .. . . 20
2.4 Drawdown, Conversion and Rollover
Restrictions . . . . . . . . . . . . . . . . . . . 20
2.5 Drawdown Notice . . . . . . . . . . . . .. . . 21
2.6 Irrevocability. . . . . . . . . . . . . .. . . 22
2.7 Cancellation or Reduction of Credit Facility
or Commitments . . . . . . . . . . . . . . . . . . . . .. . 22
2.8 Fixed Rate Loans. . . . . . . . . . . . .. . . 22
2.9 Failure of a Borrower to Give Notice. . .. . . 23
2.10 Rollover of LIBOR Loans . . . . . . . . .. . . 24
2.11 Conversion Options. . . . . . . . . . . .. . . 24
2.12 Prepayment of Excess over Loan Facility .. . . 24
2.13 Optional Payments of Principal. . . . . .. . . 25
2.14 Mandatory Payments of Principal . . . . .. . . 26
2.15 Loan Accounts . . . . . . . . . . . . . . .. . 27
3. INTEREST
3.1 Payment of Interest . . . . . . . . . . .. . . 27
3.2 Other Arrears . . . . . . . . . . . . . .. . . 28
3.3 Compounding of Interest . . . . . . . . .. . . 29
4. CHANGES IN CIRCUMSTANCES
4.1 Increase in Costs . . . . . . . . . . . .. . . 29
4.2 Conversion. . . . . . . . . . . . . . . .. . . 32
4.3 Repayment . . . . . . . . . . . . . . . .. . . 32
5. IMPOSSIBILITY OF MAKING LIBOR LOANS
5.1 Mandatory Conversion. . . . . . . . . . .. . . 34
5.2 Termination of Facility for LIBOR Loans .. . . 34
5.3 Lender Covenants. . . . . . . . . . . . .. . . 35
5.4 Repayment . . . . . . . . . . . . . . . .. . . 35
6. BANKERS' ACCEPTANCE
6.1 Bankers' Acceptance . . . . . . . . . . .. . . 35
7. PAYMENTS
7.1 Place and Manner of Payments. . . . . . .. . . 38
7.2 Indemnity . . . . . . . . . . . . . . . .. . . 38
8. REPRESENTATIONS AND WARRANTIES
8.1 Due Incorporation . . . . . . . . . . . .. . . 39
8.2 Power and Authority to Own Assets and to
Carry on Business. . . . . . . . . . . . . . .. . . 39
8.3 Power and Authority to Enter into this
Agreement. . . . . . . . . . . . . . . . . . .. . . 40
8.4 Licences. . . . . . . . . . . . . . . . .. . . 40
8.5 Litigation. . . . . . . . . . . . . . . .. . . 40
8.6 Burdensome Provisions . . . . . . . . . .. . . 40
8.7 Financial Statements. . . . . . . . . . .. . . 41
8.8 Full Disclosure . . . . . . . . . . . . .. . . 41
8.9 No Breach because of Agreement. . . . . .. . . 41
8.10 Ownership of Assets . . . . . . . . . . .. . . 41
8.11 Consents. . . . . . . . . . . . . . . . .. . . 41
8.12 Credit Policies . . . . . . . . . . . . .. . . 42
9. CONDITIONS PRECEDENT
9.1 Closing . . . . . . . . . . . . . . . . .. . . 42
9.2 Conditions Precedent to Establishment of
Credit Facility. . . . . . . . . . . . . . . .. . . 43
9.3 Conditions Precedent to Drawdowns . . . .. . . 44
10. POSITIVE COVENANTS
10.1 Corporate Existence . . . . . . . . . . .. . . 44
10.2 Financial, Monthly and Other Statements .. . . 45
10.3 Payment . . . . . . . . . . . . . . . . .. . . 45
10.4 Ownership . . . . . . . . . . . . . . . .. . . 45
10.5 Certificates. . . . . . . . . . . . . . .. . . 45
10.6 Information about Litigation. . . . . . .. . . 46
10.7 Insurance . . . . . . . . . . . . . . . .. . . 46
10.8 Notice of Default . . . . . . . . . . . .. . . 46
10.9 Licences. . . . . . . . . . . . . . . . .. . . 46
10.10 Information and Inspection . . . . .. . . 46
10.11 Change of Auditors . . . . . . . . .. . . 47
10.12 Ratios . . . . . . . . . . . . . . .. . . 47
10.13 Sale of Eligible Retail Receivables
etc. . . . . . . . . . . . . . . . . . . . . .. . . 47
11. NEGATIVE COVENANTS
11.1 Reorganization. . . . . . . . . . . . . .. . . 48
11.2 Negative Pledge . . . . . . . . . . . . .. . . 49
11.3 Subordination Agreement . . . . . . . . .. . . 49
12. LIMITATIONS ON PAYMENTS
12.1 Payments in General . . . . . . . . . . .. . . 49
12.2 Permitted Payments. . . . . . . . . . . .. . . 50
13. DEFAULT AND ENFORCEMENT
13.1 Events of Default . . . . . . . . . . . .. . . 51
13.2 Remedies on Default . . . . . . . . . . .. . . 55
13.3 Remedies Cumulative . . . . . . . . . . .. . . 55
14. THE AGENT AND THE ADMINISTRATION OF THE LOANS
14.1 Authorization . . . . . . . . . . . . . .. . . 56
14.2 Dealings by Borrowers with Agent. . . . .. . . 56
14.3 Duties and Obligations of Agent . . . . .. . . 56
14.4 Agent's Authority to Deal with Borrowers.. . . 58
14.5 Indemnification . . . . . . . . . . . . .. . . 58
14.6 Successor Agent . . . . . . . . . . . . .. . . 59
14.7 Procedure for Loans Other than Bankers'
Acceptance . . . . . . . . . . . . . . . . . .. . . 59
14.8 Procedure for Bankers' Acceptances. . . .. . . 60
14.9 Failure of Lender to Advance Loan . . . .. . . 62
14.10 Payments in respect of Loans . . . .. . . 62
14.11 Redistribution of Payments . . . . .. . . 63
14.12 Other Payments . . . . . . . . . . .. . . 64
14.13 Action by and Consent of Lenders:
Waiver and Amendments. . . . . . . .. . . 65
14.14 Enforcement. . . . . . . . . . . . .. . . 67
14.15 Set-off. . . . . . . . . . . . . . .. . . 68
14.16 Independent Appraisal. . . . . . . .. . . 68
14.17 Liability of Lenders inter se. . . .. . . 69
14.18 Several Liability. . . . . . . . . .. . . 69
14.19 Agency Fees. . . . . . . . . . . . .. . . 69
15. GENERAL
15.1 Payment of Expenses . . . . . . . . . . .. . . 69
15.2 Binding Effect and Assignment . . . . . .. . . 70
15.3 Benefit of Agreement. . . . . . . . . . .. . . 71
15.4 Entire Agreement. . . . . . . . . . . . .. . . 71
15.5 Amendment . . . . . . . . . . . . . . . .. . . 71
15.6 Waiver. . . . . . . . . . . . . . . . . .. . . 71
15.7 Communication . . . . . . . . . . . . . .. . . 72
15.8 Confidentiality . . . . . . . . . . . . .. . . 73
15.9 Survival of Representations, Warranties and
Covenants. . . . . . . . . . . . . . . . . . .. . . 74
15.10 Further Assurances . . . . . . . . .. . . 74
15.11 Severability . . . . . . . . . . . .. . . 74
15.12 Time of the Essence. . . . . . . . .. . . 74
15.13 Governing Law. . . . . . . . . . . .. . . 75
15.14 Currency of Judgment or Payment. . . . . 75
15.15 Foreign Taxes. . . . . . . . . . . .. . . 75
15.16 Consent to Jurisdiction and Service of
Process. . . . . . . . . . . . . . . . . . . .. . . 76
15.17 Interconnection to USD Agreement . .. . . 77
15.18 Environmental Matters. . . . . . . .. . . 77
15.19 Execution in Counterparts. . . . . .. . . 78
SCHEDULE A . . . . . . . . . . . . . . . . . . . . . . .
.CONVERSION NOTICE
SCHEDULE B . . . . . . . . . . . . . . . . . . . . . . . .
.DRAWDOWN NOTICE
SCHEDULE C . . . . . . . . . . . . . . . . . . . . . . . . . . .
.GUARANTEE
SCHEDULE D . . . . . . . . . . . . . . . . . . . . . . . .
REPAYMENT NOTICE
SCHEDULE E . . . . . . . . . . . . . . . . . . . . . . . .
.ROLLOVER NOTICE
SCHEDULE F . . . . . . . . . . . . . . . . . . . . .SUBORDINATION
AGREEMENT
SCHEDULE G . . . . . . . . . . . . . . OUTSTANDING LITIGATION -
SECTION 8.5
SCHEDULE H . . . . . . . . . . . . . . . OPINION OF FASKEN
CAMPBELL GODFREY
SCHEDULE I . . . . . . . . . . . . . . . . . . . OPINION OF DEERE
& COMPANY
SCHEDULE J . . . . . . . . . .OPINION OF TORY TORY DESLAURIERS &
BINNINGTON
SCHEDULE K . . . . . . . . . . . .FORM OF MONTHLY REPORTS -
SECTION 10.2(C)
<PAGE>
THIS LOAN AGREEMENT made as of the 5th day of April,
1995
B E T W E E N :
JOHN DEERE LIMITED, a corporation
incorporated under the laws of Canada,
("Deere Canada")
OF THE FIRST PART;
- and -
JOHN DEERE FINANCE LIMITED, a
corporation incorporated under the
laws of Canada,
("Deere Finance")
OF THE SECOND PART;
(the parties of the First and Second Parts being
herein called the "Borrowers")
- and -
CANADIAN IMPERIAL BANK OF COMMERCE, ROYAL BANK OF
CANADA, AND THE TORONTO-DOMINION BANK,
(collectively the "Lenders")
OF THE THIRD PART;
- and -
THE TORONTO-DOMINION BANK,
(the "Agent")
OF THE FOURTH PART.
<PAGE>
WHEREAS the Lenders have agreed with the Borrowers to
make available to the Borrowers financing by way of a committed
revolving loan facility in the aggregate principal amount of up
to U.S. $87,500,000, upon and subject to the terms and conditions
of this agreement; and
WHEREAS all necessary resolutions have been passed by
the board of directors of each of the Borrowers and all other
proceedings have been taken and all conditions have been complied
with to authorize the execution and delivery of this agreement
and to make the same valid and binding upon each of the
Borrowers;
NOW THEREFORE in consideration of the premises, the
parties hereto hereby covenant and agree as follows:
1. INTERPRETATION
1.1 Definitions. In this agreement and the schedules
hereto,
"Agreement", "this Agreement", "the Agreement,
"hereto", "hereof", "herein", "hereby", "hereunder" and similar
expressions mean or refer to the whole of this Agreement as
amended or restated from time to time and any agreement or
instrument supplemental or ancillary hereto or in implementation
hereof;
"Affiliate" means "affiliate" within the meaning of the
Business Corporations Act (Ontario) as in force on the effective
date hereof;
"All-in Bankers' Acceptances" and "All-in Bankers'
Acceptance Rate" shall have the meanings attributed thereto in
subsection 6.1(c) below;
"Affiliated USD Bank" means as to each Lender, the USD
Bank set forth opposite its name below:
Lender
<PAGE>
Affiliated USD Bank<PAGE>
Canadian Imperial Bank of
Commerce
Royal Bank of Canada
The Toronto-Dominion Bank<PAGE>
Canadian Imperial Bank of
Commerce
Royal Bank of Canada
Toronto Dominion (Texas), Inc.
<PAGE>
"BA Branch" means the branch or office designated from
time to time in writing to the Agent by each Lender with the
consent of the Borrowers (which consent shall not be unreasonably
withheld) as the branch or office at which it will accept the
Bankers' Acceptances (other than, for greater certainty, All-in
Bankers' Acceptances) which it is required to accept hereunder;
"Banking Day" means any day on which the main branch of
the Agent is open for domestic and foreign exchange business in
Toronto, Canada, and, in the case of any determination or payment
to be made in respect of a LIBOR Loan, in each of London, England
and New York, New York, U.S.A., and, in the case of any
determination or payment to be made in respect of a USBR Loan, in
New York, New York, U.S.A.;
"Bankers' Acceptances" means drafts of a Borrower drawn
in Canadian Dollars and accepted by the Lenders in accordance
with the provisions of Article 6 including, for greater
certainty, All-in Bankers' Acceptances;
"Borrower" means each of the Borrowers or either of
them, as the context requires, and, when pluralized, means both
Borrowers and for greater certainty includes any Person which
becomes a Borrower hereunder pursuant to a Permitted
Reorganization;
"CEFC" means Canadian Equipment Finance Corporation, a
corporation incorporated under the laws of Canada;
"Canadian Dollars", "Cdn. Dollars" and "Cdn. $" means
lawful currency of Canada;
"Canadian LIBOR" means, in respect of any Interest
Period, the rate of interest per annum (calculated on the basis
of a 360 day year), as determined by The Toronto-Dominion Bank,
rounded upward, if necessary, to the nearest 1/16th of 1%, quoted
at approximately 11:00 a.m. (Toronto time) on the day which is
two Banking Days prior to the first day of that Interest Period,
at which it may make deposits available to prime lending banks in
freely exchangeable currencies, including Canadian Dollars and
U.S. Dollars, in an amount substantially equal to the amount of
the Canadian LIBOR Loan made by the Lenders to which such
Interest Period applies in the London Interbank Eurodollar market
for a period equal to such Interest Period; provided that if
quotes for deposits for currencies other than Canadian Dollars
are obtained, Canadian LIBOR shall be determined by adding to the
quote the sum of the cost of converting the quoted currency into
Canadian Dollars and fully hedging the principal amount of such
deposits and all interest thereon for the applicable Interest
Period.
"Canadian LIBOR Loan" means at any particular time any
loan on which interest is then calculated by reference to
Canadian LIBOR;
"Capital Lease" means any lease of property, real or
personal (other than any lease of business premises), in respect
of which the present value of the minimum rental commitment is
required, in accordance with Historical GAAP, to be capitalized
in the balance sheet of the lessee;
"Committed USD Loan" means a "Committed Rate Loan"
under the USD Agreement;
"Commitment" in the case of each Lender hereunder
means, at any time, the amount, from time to time, of the
"Commitment" of such Lender's Affiliated USD Bank under the USD
Agreement, as reduced, pursuant to Section 2.7, Section 4.3,
Section 5.4 or Section 15.15 below;
"Commitment Ratio" in the case of each Lender hereunder
means, from time to time, the ratio obtained when that Lender's
Commitment is divided by the Credit Facility Amount;
"Committed Global Exposure" means, with respect to any
Lender, at any particular time, an amount equal to the sum of (a)
the aggregate unpaid principal amount at such time of all
Committed USD Loans made by such Lender's Affiliated USD Bank,
and (b) the Equivalent Amount in U.S. Dollars of the aggregate
unpaid principal amount of all Loans made by such Lender (other
than Excluded Loans made by such Lender);
"Conversion" means a conversion of a Loan under
Section 2.11;
"Conversion Date" means the date notified to the Agent
by the Borrower in accordance with Section 2.11 as being the date
on which the Borrower has elected to convert one type of Loan
into another type of Loan and which shall be a Banking Day;
"Conversion Notice" means a notice substantially in the
form of Schedule A hereto to be given to the Agent by the
Borrower pursuant to Section 2.11;
"Credit Facility" means the credit facility in the
maximum principal amount of U.S. $87,500,000 which is being
extended by the Lenders to the Borrowers hereunder;
"Credit Facility Amount" means at any time the
aggregate amount of the Commitments at such time but not in
excess of U.S. $87,500,000;
"Deere Capital" means John Deere Capital Corporation, a
corporation incorporated pursuant to the laws of the State of
Delaware, U.S.A., and its successors and assigns which are
permitted under the USD Agreement;
"Deere Group" means (i) Deere Canada and (ii) Deere
Finance and (iii) any Subsidiary of Deere U.S., provided that
such Subsidiary: (A) is incorporated under the laws of Canada or
a Province thereof, (B) carries on a business which is, in the
opinion of the Borrowers acting reasonably, substantially similar
to the business, or a significant part thereof, carried on at the
date hereof by Deere U.S., Deere Canada or Deere Finance or their
respective Affiliates, (C) carries on and will carry on its
business substantially in Canada, and (D) has become a Guarantor;
provided that no Person shall become a member of the Deere Group
if, immediately after such Person became a member of the Deere
Group, a Default or Event of Default would exist hereunder;
provided, further, that a member of the Deere Group which is
party to a Permitted Reorganization shall continue to be such a
member; and, provided, however, that for greater certainty there
shall be excluded from the Deere Group any Guarantor specified in
the proviso to Section 13.1 hereof and any Guarantor with respect
to which a notice has been given pursuant to the proviso in the
definition of "Guarantor";
"Deere U.S." means Deere & Company, a corporation
incorporated pursuant to the laws of the State of Delaware,
U.S.A., and its successors and assigns which are permitted under
the USD Agreement;
"Default" means an event which, with the giving of
notice or lapse of time or both, would constitute an Event of
Default;
"Designated Branch" means the branch or office of the
Agent designated from time to time by the Agent with the consent
of the Borrowers (which consent shall not be unreasonably
withheld) as the branch or office at which it will make funds
available to the Borrowers pursuant to subsection 14.7(c) or such
other branch or branches or office or offices of the Agent as the
Borrowers and the Agent may agree to;
"Drawdown" means a drawdown of a Prime Rate Loan, LIBOR
Loan or USBR Loan or the acceptance of a Bankers' Acceptance
(other than an All-in Bankers' Acceptance) under the Credit
Facility;
"Drawdown Date" means the date on which a Drawdown is
made by a Borrower pursuant to the provisions of Article 2 and
which shall be a Banking Day;
"Drawdown Notice" means a notice substantially in the
form of Schedule B hereto to be given to the Agent by the
Borrower pursuant to Section 2.5;
"Eligible Inventory" means, at any particular time, the
value of the respective inventories owned by any member of the
Deere Group of finished goods, work-in-process and raw materials,
existing at that time and determined in accordance with
Historical GAAP, provided, however, that none of the following
categories of inventory shall be taken into account in
determining Eligible Inventory:
(i) any inventory which is consigned to a member of
the Deere Group by any Person other than a member
of the Deere Group;
(ii) any inventory which is subject to a title
retention agreement in favour of the vendor
thereof if not a member of the Deere Group;
(iii) any inventory situate outside Canada other
than inventory consigned by a member of the
Deere Group to an Affiliate of such member of
the Deere Group in the United States;
(iv) any inventory which is subject to any Mortgage;
and
(v) any inventory referred to in the proviso to
clause 12.1(b)(i);
provided that, for greater certainty, no inventory shall be
included above if the proceeds of sale, rental or lease thereof
are included in Eligible Retail Receivables or Eligible Wholesale
Receivables;
"Eligible Retail Receivables" means, at any particular
time, the aggregate outstanding balances, net of deferred finance
income and allowance for credit losses, of all retail receivables
owned by any member of the Deere Group representing unconditional
obligations to pay, arising from sales, rentals or leases by a
dealer or other Person in the ordinary course of its business
and, from and after the time a Person becomes a member of the
Deere Group, in accordance in all material respects with the
established credit policies of the Deere Group as they exist at
the effective time of this agreement, except as such policies may
be amended in any material respect by the Deere Group with the
written consent of the Majority Lenders, not to be unreasonably
withheld (provided that any Lender which fails to disapprove in
writing any such amendment within 30 days after having received
written notice from the Borrowers of such amendment shall be
deemed to have consented to any such amendment), as such
receivables exist at that time and as determined in accordance
with Historical GAAP, provided, however, that in no event shall
the outstanding balance of any receivable be taken into account
in determining Eligible Retail Receivables if:
(i) at that time any amount owing pursuant to the
relevant receivable is overdue by more than 90
days or, if at any time in the past any amount
owing thereon was overdue by more than 90 days,
the receivable has at no time since that time been
made current;
(ii) at any time the receivable has been extended or
refinanced if and to the extent that the aggregate
outstanding balance of all such receivables so
extended or refinanced outstanding at that time
exceeds Cdn. $10,000,000;
(iii) the sale, rental or lease represented by the
receivable was to a debtor, renter or lessee
outside of Canada (other than a debtor,
renter or lessee resident in the United
States which purchases, rents or leases from
a Canadian dealer in the ordinary course of
the dealer's business) or is denominated in a
currency other than Canadian currency;
(iv) the receivable is subject to any Mortgage or is or
has been part, and in any manner remains subject
to the provisions, of a transaction described in
clause (xv) of the definition of "Permitted
Encumbrances"; and
(v) the receivable is of the type referred to in the
proviso to clause 12.1(b)(i);
"Eligible Wholesale Receivables" means, at any
particular time, the aggregate outstanding balances, net of
deferred finance income and allowance for credit losses, of all
wholesale receivables owned by any member of the Deere Group
representing unconditional obligations to pay, arising out of
sales, rentals or leases by a member of the Deere Group to
dealers or other Persons in the ordinary course of its business,
existing at that time and as determined in accordance with
Historical GAAP, subject to the exclusions set forth in
clauses (i), (iii), (iv) and (v) of the immediately preceding
definition and provided that no amount included in the definition
of Eligible Retail Receivables shall be included hereunder;
"Equivalent Amount" means, on any date, the equivalent
amount in Canadian Dollars or U.S. Dollars, as the case may be,
after giving effect to a conversion of a specified amount of
Canadian Dollars to U.S. Dollars or of U.S. Dollars to Canadian
Dollars, as the case may be, at the Exchange Rate on that date;
"Event of Default" has the meaning set out in
Article 13 hereof;
"Excess" has the meaning set out in Section 2.12;
"Exchange Rate" on any date means the rate of exchange
on that date for converting Canadian Dollars into U.S. Dollars or
U.S. Dollars into Canadian Dollars, as the case may be, quoted as
the offering rate for wholesale transactions by the Agent at
approximately noon (Toronto time) on such date;
"Excluded Loan" with respect to any Lender means a
Fixed Rate Loan or an All-in Bankers' Acceptance made by such
Lender which such Lender has, pursuant to section 2.8(b) or
6.1(c), as the case may be, elected to exclude for the purpose of
calculating usage of such Lender's Commitment;
"Federal Funds Rate" means, for any day, the rate on
that day for federal funds or, if such date is not a Banking Day,
the next preceding Banking Day, opposite the caption "Federal
Funds (Effective)" in the weekly statistical release designated
as "H.15 (519)" (or any successor publication) published by the
Board of Governors of the Federal Reserve System or if such rate
is not so published for such date, the average of the quotations
for such day on such transactions received by the Agent from
three Federal Funds dealers of recognized standing selected by
it;
"Financial Statements" means with respect to
Deere U.S., the financial statements for each fiscal period of
Deere U.S. prepared in accordance with generally accepted
accounting principles applied on a consistent basis (unless
otherwise noted); with respect to each member of the Deere Group,
the financial statements for each fiscal period of such member
prepared in accordance with generally accepted accounting
principles applied on a consistent basis (unless otherwise
noted); and with respect to the Deere Group, a consolidated
income statement and balance sheet as at the end of each fiscal
period which, in the case of the balance sheet, combines on a
line by line basis the assets, liabilities and shareholders'
equity of each member of the Deere Group, as determined from the
balance sheets contained in the financial statements of each
member of the Deere Group prepared as at the end of such fiscal
period, after elimination of any accounts pertaining to an
investment in any Person which is not a member of the Deere Group
and of any inter-corporate accounts existing as at such date
between any members of the Deere Group but including the accounts
pertaining to an investment in any Person not a member of the
Deere Group, eliminated as aforesaid, by way of investment only;
provided that such financial statements, except in the case of
the Deere Group, shall be comprised of a balance sheet as at the
end of such fiscal period, a statement of operations and a
statement of changes in financial position for such fiscal period
then ended, and shall in the case of any financial statements for
a fiscal year (other than with respect to the Deere Group), be
audited, and shall in the case of any income statement and
balance sheet for a fiscal year for the Deere Group be unaudited
and accompanied by a reconciliation statement and, if requested
by the Majority Lenders, also accompanied by a review of such
income statement, balance sheet and reconciliation statement by
the auditors of Deere Canada;
<PAGE>
"Fixed Rate Loan" means a loan which bears a rate of
interest fixed in accordance with subsection 2.8(a);
"Guarantees" means guarantees, substantially in the
form of Schedule C hereto, in favour of the Lenders, whereby the
repayment of all amounts owing pursuant to this agreement by each
Borrower to the Lenders is guaranteed by the other Borrower and
by the Guarantors and, if any such guarantee is amended and/or
confirmed, means such guarantee as so amended and/or confirmed;
"Guarantor" means a Subsidiary of Deere U.S. which
meets the requirements of clauses (A) to (C) inclusive of the
definition of the Deere Group and which has provided to the
Lenders a Guarantee together with an opinion of Fasken Campbell
Godfrey or other counsel acceptable to the Agent, applicable to
such Subsidiary, in respect of the matters set out in
Sections 8.1 to 8.4, inclusive and Section 10.4 (insofar as that
Section requires that each member of the Deere Group be directly
or indirectly wholly owned by Deere U.S.); provided, however,
that Deere Canada may at any time and from time to time change
the status of a Guarantor (other than Deere Canada and Deere
Finance) to a Person not a member of the Deere Group, if Deere
Canada gives written notice of such change in status to the Agent
as soon as is reasonably possible given the particular
circumstances and if (i) some or all of the shares of such
Guarantor are, or will be sold to a Person who is not, directly
or indirectly, a Subsidiary or an Affiliate of Deere U.S., and
(ii) such change in status would not immediately thereafter
result in, or give rise to, the occurrence of a Default or an
Event of Default resulting solely pursuant to Section 10.12
hereof, and, thereafter, upon the date which is the date of
completion of the transaction contemplated by clause (i) above,
such Guarantor shall cease to be a Guarantor and a member of the
Deere Group for all purposes of this Agreement and the Guarantee
of such Guarantor shall be terminated; and "Guarantors" means all
such Persons. For greater certainty, the term Guarantor shall
include a Person which becomes a Guarantor pursuant to a
Permitted Reorganization;
"Historical GAAP" means the generally accepted
accounting principles set out in the first sentence of
Section 1.4 hereof as of October 31, 1994;
"Indebtedness" of the Deere Group means, at any
particular time, the aggregate amount of all indebtedness and
liabilities of the Deere Group which would, in accordance with
Historical GAAP, be reflected on the balance sheet of the Deere
Group if the Financial Statements of the Deere Group were
prepared at that time, together with, without duplication:
(i) all indebtedness guaranteed, directly or
indirectly, in any manner by any member of the
Deere Group or endorsed (otherwise than for
collection or deposit in the ordinary course of
business) or discounted with recourse but only to
the extent of the amount of recourse if such
recourse is limited in amount;
(ii) all indebtedness in effect guaranteed, directly or
indirectly, by any member of the Deere Group
through an agreement contingent or otherwise
(A) to purchase such indebtedness or to advance
or supply funds for the payment or purchase
of such indebtedness, or
(B) to purchase, sell or lease (as lessee or
lessor) property, products, materials or
supplies, or to purchase or sell
transportation or services, primarily for the
purpose of enabling the debtor to make
payment of such indebtedness or to assure the
owner of such indebtedness against loss,
regardless of the delivery or non-delivery
for any reason of the property, products,
materials or supplies or the furnishing or
non-furnishing for any reason of the
transportation or services, or
(C) to make any loan, advance, capital
contribution to or other investment in the
debtor for the purpose of assuring a minimum
equity, asset base, working capital or other
balance sheet condition or to provide funds
for the payment of any liability, dividend or
stock liquidation payment, or otherwise to
supply funds to or in any manner invest in
the debtor;
(iii) all indebtedness incurred by any joint
venture, partnership or similar Person for
which any member of the Deere Group is liable
but only to the extent of the amount of such
liability if such liability is limited;
(iv) all indebtedness, including financing lease
obligations of any member of the Deere Group
created or arising under any conditional sales
agreement or other title retention agreement or
under any Capital Lease, provided that if the
rights and remedies of the seller or lender or
lessor under such agreement or lease in the event
of the default are limited to repossession or sale
of property, such indebtedness shall be deemed to
be in an amount equal to the lesser of (A) the
amount of such indebtedness and (B) the book value
of such property; and
(v) all indebtedness secured by any mortgage, lien,
pledge, charge, security interest or other
encumbrance upon or in property owned by any
member of the Deere Group, even though such member
of the Deere Group has not assumed or become
liable for the payment of such indebtedness,
provided that, if such member of the Deere Group
has not made such assumption or so become liable,
such indebtedness shall be deemed to be an amount
equal to the lesser of (A) the amount of such
indebtedness and (B) the book value of such
property;
including, for greater certainty, the aggregate principal amount
of Loans outstanding hereunder, but, for greater certainty, after
elimination of any such indebtedness or liabilities existing
between members of the Deere Group. In computing the
Indebtedness of any members of the Deere Group, there shall be
excluded any particular indebtedness if, upon or prior to the
maturity thereof, there shall have been irrevocably deposited
with the proper depository in trust the necessary funds (or
evidences of other indebtedness, or other securities, if
permitted by the instrument creating such indebtedness) for the
payment, redemption or satisfaction of such indebtedness, and
such funds and evidences of indebtedness or other securities so
deposited shall not be included in any computation of the assets
of such member of the Deere Group made for purposes of this
agreement;
"Initial Borrowing Date" means the date on which the
first Loan is made by the Lenders hereunder;
"Interest Payment Date" means,
(i) with respect to each Prime Rate Loan or USBR Loan,
the twenty-first day of each calendar month during
each Interest Period (or, if such twenty-first day
is not a Banking Day, the Banking Day next
following such twenty-first day) and the last day
of each Interest Period, and
(ii) with respect to each LIBOR Loan, the last day of
each Interest Period and, if any Interest Period
is longer than three months, also means the last
Banking Day of each three month period during such
Interest Period.
"Interest Period" means,
(i) with respect to each Prime Rate Loan or USBR Loan,
the period commencing on the Drawdown Date or
Conversion Date of such Loan and terminating on
the date selected by the Borrower hereunder for
the Conversion of such Loan into another type of
Loan or the repayment of such Loan,
(ii) with respect to each Bankers' Acceptance other
than an All-in Bankers' Acceptance, the period
selected by the Borrower hereunder and being of a
duration of not less than 30 and not more than 365
days, commencing on the Drawdown Date, Rollover
Date or Conversion Date of such Loan, and
(iii) with respect to each LIBOR Loan, the period
selected by the Borrower and being of a
duration of not less than 30 days and not
more than three years, or such other period
as the Lenders may agree to in writing from
time to time, subject in all cases where
duration is in excess of six months to the
Majority Lenders being able to provide funds
on that basis;
provided that in all cases the last day of each Interest Period
shall be also the first day of the next Interest Period and
further provided that the last day of each Interest Period shall
be a Banking Day and if the last day of an Interest Period
selected by the Borrower is not a Banking Day, the Borrower shall
be deemed to have selected an Interest Period the last day of
which is the Banking Day next following the last day of the
Interest Period otherwise selected unless, in the case of LIBOR
Loans only, such next following Banking Day falls in the next
calendar month in which event the Borrower shall be deemed to
have selected an Interest Period the last day of which is the
Banking Day next preceding the last day of the Interest Period
otherwise selected;
"Lenders" means the banks which are signatories hereto,
so long as there is any indebtedness owed to them, or they have
any obligation, hereunder, and any financial institution which
becomes a party hereto as a "Lender" and "Lender" means any one
of them;
"LIBOR Loan" means a Canadian LIBOR Loan or a
U.S. LIBOR Loan;
"Loan" means a Prime Rate Loan, USBR Loan, Bankers'
Acceptance, LIBOR Loan or Fixed Rate Loan made pursuant to the
Credit Facility and which, when used in the context of principal
amount of Loans, shall include the principal amount of
outstanding Loans other than Bankers' Acceptances and the
aggregate face amount of all outstanding Bankers' Acceptances;
"Loan Termination Date" means in the case of each
Lender hereunder the "Termination Date" under the USD Agreement
applicable to such Lender's Affiliated USD Bank, as the same may
be amended, extended or abridged from time to time pursuant to
the USD Agreement or, in the event such Lender's Affiliated USD
Bank becomes an "Objecting Bank" within the meaning of the USD
Agreement the "Commitment Expiration Date" applicable to such
Affiliated USD Bank;
"Majority Lenders" means, at any time, Lenders the
Commitments of which are in the aggregate at least 55% of the
Credit Facility Amount at that time;
"Mortgage" means any mortgage, hypothec, title
retention, charge, security interest, pledge, lien or other
encumbrance;
"Net Worth" of the Deere Group means, subject to the
provisions of Section 13.1, at any particular time, the aggregate
of the (i) issued capital, (ii) retained earnings, (iii) surplus
(earned or contributed) and (iv) Subordinated Indebtedness less
(v) deficit, all of which would, in accordance with Historical
GAAP, be reflected on the balance sheet of the Deere Group if
Financial Statements of the Deere Group were prepared at that
time, after deducting all amounts which would be reflected on
such balance sheet on account of (vi) minority interests,
(vii) goodwill and (viii) intangible assets, but eliminating any
duplication in the calculation thereof resulting from
intercompany accounts;
"Permitted Encumbrances" means:
(i) Mortgages in existence on the date hereof;
(ii) Mortgages on any property acquired, constructed or
improved by a Borrower or a Guarantor after the
date of this Agreement which are created or
assumed contemporaneously with, or within 120 days
after, such acquisition, construction or
improvement to secure or provide for the payment
of all or any part of the cost incurred for the
acquisition, construction or improvement after the
date of this agreement, or (in addition to
Mortgages contemplated by clauses (iii), (iv) and
(v) below) Mortgages on any property existing at
the time of acquisition thereof; provided that
such Mortgages shall not apply to any property
theretofore owned by a Borrower or a Guarantor
other than, in the case of any such construction
or improvement, any theretofore unimproved real
property on which the property so constructed, or
the improvement, is located;
(iii) Mortgages on the property of a corporation at
the time of its amalgamation with a Borrower
or a Guarantor or on the assets of a Person
substantially all of the assets of which are
acquired by a Borrower or a Guarantor;
(iv) Mortgages on property of a corporation existing at
the time such corporation becomes a Guarantor;
(v) Mortgages to secure Indebtedness of a Guarantor to
a Borrower or to another Guarantor;
(vi) Mortgages in favour of any Canadian federal,
provincial or municipal government, or any
department, agency or instrumentality or political
subdivision of any such Canadian federal,
provincial or municipal government, to secure
partial, progress, advance or other payments
pursuant to any contract or statute;
(vii) Mortgages given on fixed assets or other
physical properties hereafter acquired to
secure all or part of the purchase or lease
price thereof (including, for greater
certainty, Capital Leases) or the acquiring
hereafter of such assets or properties
subject to any existing Mortgage securing
Indebtedness (whether or not assumed);
(viii) easements, liens, franchises or other minor
encumbrances on or over any real property
which do not materially detract from the
value of such property or its use in the
business of the Deere Group;
(ix) any deposit or pledge of assets (A) with any
surety company or clerk of any court, or in
escrow, as collateral in connection with, or in
lieu of, any bond on appeal from any judgment or
decree against a Borrower or a Guarantor, or in
connection with other proceedings or actions at
law or in equity by or against a Borrower or a
Guarantor, or (B) as security for the performance
of any contract or undertaking not directly or
indirectly related to the borrowing of money or
the securing of Indebtedness, if made in the
ordinary course of business, or (C) with any
governmental agency, which deposit or pledge is
required or permitted to qualify a Borrower or a
Guarantor to conduct business, to maintain
self-insurance, or to obtain the benefits of any
law pertaining to worker's compensation,
unemployment insurance, old age pensions, social
security or similar matters, or (D) made in the
ordinary course of business to obtain the release
of mechanics', workmen's, repairmen's,
warehousemen's or similar liens, or the release of
property in the possession of a common carrier;
(x) liens for taxes and governmental charges not yet
due or contested by appropriate proceedings in
good faith; landlord's liens on property held
under lease; and any other liens of a nature
similar to those hereinabove described in this
clause (x) which do not, in the opinion of the
relevant Borrower or Guarantor, materially impair
the use of such property in the operation of the
business of such relevant Borrower or Guarantor or
its Subsidiaries or the value of such property for
the purposes of such business;
(xi) Mortgages existing on property acquired by a
Borrower or a Guarantor through the exercise of
rights arising out of defaults on receivables
acquired in the ordinary course of business;
(xii) judgment liens, so long as the finality of
such judgment is being contested in good
faith and execution thereon is stayed;
(xiii) Mortgages which in the aggregate do not
exceed 5% of the Net Worth of the Deere
Group;
(xiv) any deposit or pledge of monies (or evidence
of other indebtedness or securities) with the
proper depository for the payment, redemption
or satisfaction of Indebtedness of a Borrower
or a Guarantor prior to the maturity of such
Indebtedness so as to satisfy and discharge
such Indebtedness to the extent of such
deposit or pledge;
(xv) any transaction characterized as a sale of
receivables (retail or wholesale) but reflected as
secured Indebtedness on a balance sheet in
conformity with generally accepted accounting
principles; and
(xvi) Mortgages for the purpose of extending,
renewing or replacing in whole or in part
Indebtedness secured by any Mortgage referred
to in the foregoing clauses (i) to (xv),
inclusive, or in this clause (xvi), provided,
however, that the principal amount of
Indebtedness secured thereby shall not exceed
the principal amount of Indebtedness so
secured at the time of such extension,
renewal or replacement, and that such
extension, renewal or replacement shall be
limited to all or part of the property which
secured the Mortgage so extended, renewed or
replaced (plus improvements on such
property);
"Permitted Reorganization" means a transaction
permitted pursuant to the provisions of Section 11.1 hereof;
"Person" means an individual, a partnership, a firm, a
corporation, a trust, an unincorporated organization or a
government or any agency or political subdivision thereof;
"Prime Rate" means the greater of: (i) prime lending
rate of interest expressed as a rate per annum which the Agent
establishes from time to time at its principal office in Toronto,
Ontario as the reference rate of interest in order to determine
the interest rate it will charge for loans in Canadian Dollars to
its Canadian customers and (ii) the 30 day bankers' acceptance
rate of the Agent as quoted on the Reuters screen, Canadian
dollar CDOR page, determined as of 10:00 a.m. Toronto time on the
relevant day, plus 1/2 of 1%;
"Prime Rate Loan" means a loan with respect to which
the rate of interest is determined by reference to the Prime
Rate;
"Pro Rata" means, in respect of any particular Lender
at any particular time:
(i) in the case of Drawdowns (including, as provided
in the proviso to this definition, any Drawdowns
which are deemed thereby to have occurred for the
purposes of this definition only on a Conversion
or Rollover), and for the purposes of
Section 14.12, subject, with respect to Bankers'
Acceptances to the rounding provided in
subsection 6.1(d), the proportion that the
Unutilized Commitment of that Lender at that time
is of the total Unutilized Commitments of all
Lenders at that time;
(ii) in the case of any repayment or prepayment
(including, as provided in the proviso to this
definition, any repayment which is deemed thereby
to have occurred for the purposes of this
definition only on a Conversion or Rollover), the
proportion that:
(A) in the case of Prime Rate Loans and USBR
Loans, the total amount of Prime Rate Loans
or USBR Loans, as the case may be, of that
Lender at that time is of the total Prime
Rate Loans or USBR Loans, as the case may be,
of all Lenders at that time; and
(B) in the case of Canadian LIBOR Loans, U.S.
LIBOR Loans and Bankers' Acceptances, the
total amount of Canadian LIBOR Loans, U.S.
LIBOR Loans or Bankers' Acceptances, as the
case may be, of equivalent Interest Periods
and maturing on a particular repayment date
of that Lender is of the total such Canadian
LIBOR Loans, U.S. LIBOR Loans or Bankers'
Acceptances, as the case may be, of all
Lenders at that time (excluding, in the case
of Bankers' Acceptances, All-in Bankers'
Acceptances);
provided that (I) in applying this definition to a Conversion or
a Rollover, there shall, in all cases, be deemed for the purposes
of this definition only to be a repayment of the outstanding Loan
followed by a Drawdown of the Loan into which such outstanding
Loan is being converted or rolled over and (II) the aforesaid
formula shall not apply in respect of the repayment of Bankers'
Acceptances prior to their maturity as hereinafter in
Section 2.13 provided and in which circumstances Pro Rata shall
mean repayment of the entire face amount of the relevant Bankers'
Acceptances of each Lender;
"Repayment Notice" means a notice substantially in the
form of Schedule D hereto to be given to the Agent by a Borrower
pursuant to Section 2.13;
"Rollover" means a rollover of a Loan pursuant to
Section 2.10 or Section 6.1;
"Rollover Date" means the date of commencement of a new
Interest Period applicable to a Loan which has been rolled over
pursuant to Section 2.10 or Section 6.1;
"Rollover Notice" means a notice substantially in the
form of Schedule E hereto to be given to the Agent by a Borrower
pursuant to Section 2.10 or 6.1;
"Subordinated Indebtedness" means Indebtedness of the
Deere Group excluding, for greater certainty, indebtedness or
liabilities existing between members of the Deere Group, which,
in the case of Indebtedness to Deere U.S. is governed by the
Subordination Agreement and in the case of all other Indebtedness
is governed by an agreement that by its terms prohibits payment
of the principal thereof, interest thereon and any other amount
in respect thereof (including any payment upon any distribution
of assets of such member of the Deere Group in the event of any
winding-up or liquidation or dissolution thereof, whether in
bankruptcy, insolvency or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling
of the assets and liabilities thereof or otherwise), until all
amounts owing in respect of the Credit Facility have been paid in
full and all obligations of the Lenders hereunder have been
terminated, except such payments as occur other than at a time
(i) when a Default involving a breach of Section 10.12 or of any
covenant pertaining to reporting in respect of Section 10.12 or
which would, with the passage of time, become an Event of Default
pursuant to subsections 13.1(a), (b), (f) or (i) hereof, or an
Event of Default, exists hereunder, or (ii) when, after giving
effect to such payment, such a Default or an Event of Default
would exist hereunder; provided, however, that such agreement may
provide that any such payment may be made notwithstanding such a
Default if it has been in existence for more than six months
without the Agent having notified the Borrowers thereof pursuant
to subsection 13.1(d) and notwithstanding an Event of Default
which has been in existence for more than six months without the
Lenders having taken any action pursuant to Section 13.2 in
respect thereof; provided, further, that such agreement may
provide that any such payment may be made notwithstanding the
existence of such a Default or a resulting Event of Default for
more than six months after the occurrence of such Default unless
within such six-month period the Agent has notified the Borrowers
as aforesaid and the Lenders have taken action pursuant to
Section 13.2 in respect of such Event of Default;
"Subordination Agreement" means the agreement between
Deere U.S. and the Lenders substantially in the form of
Schedule F hereto and if such agreement is amended and/or
confirmed means such agreement as amended and/or confirmed;
"Subsidiary" means subsidiary as that term is used
within the meaning of the Business Corporations Act (Ontario), as
in force on the effective date hereof;
"USBR" means, at any time, the greater of:
(a) the annual rate of interest which the Agent establishes
at its principal office in Toronto as the reference
rate of interest in order to determine interest rates
it will charge at such time for demand loans in U.S.
Dollars made to its customers in Canada; and
(b) the Federal Funds Rate quoted from time to time plus 1/2%
per annum,
such rate to be adjusted automatically and without necessity of
notice to the Borrowers upon each change to such rate;
"USBR Loan" means any loan on which interest is then
calculated by reference to USBR;
"U.S. Dollars" and "U.S. $" means such coin or currency
of the United States of America as at the time of payment or
determination shall be legal tender therein for the payment of
public or private debts;
"USD Agent" means Chemical Bank and its successors and
assigns as the administrative agent of the USD Banks under the
USD Agreement;
"USD Agreement" means the U.S. $500,000,000 Credit
Agreement dated as of April 5, 1995 among the USD Borrowers,
certain financial institutions, the USD Agent and other agents,
as in effect from time to time;
"USD Bank" means each "Bank" (as defined in the USD
Agreement) under the USD Agreement;
"USD Borrowers" means Deere U.S. and Deere Capital
under the USD Agreement;
"USD Loan" means each "Loan" (as defined in the USD
Agreement) under the USD Agreement made by an Affiliated USD
Bank;
"U.S. LIBOR" means, in respect of any Interest Period,
the rate of interest per annum (calculated on the basis of a 360
day year) determined by The Toronto-Dominion Bank, rounded
upward, if necessary, to the nearest 1/16th of 1%, quoted at
approximately 11:00 a.m. (Toronto time) on the day which is two
Banking Days prior to the commencement of that Interest Period,
at which it may make deposits available to prime lending banks in
U.S. Dollars in an amount substantially equal to the amount of
the U.S. LIBOR Loan made by the Lenders to which such Interest
Period applies in the London Interbank Eurodollar Market for a
period equal to such Interest Period;
"U.S. LIBOR Loan" means any loan on which interest is
then calculated by reference to U.S. LIBOR;
"Unutilized Commitment" in respect of any Lender at any
particular time means the positive amount, if any, obtained when
there is subtracted from the amount of that Lender's Commitment
the total of: (i) the Equivalent Amount of the principal amount
outstanding of Loans made by such Lender hereunder other than
Excluded Loans made by such Lender; and (ii) the total amount of
Committed USD Loans made by the Affiliated USD Bank of such
Lender under the USD Agreement;
1.2 Computation of Time Period. Except to the extent
otherwise expressly provided, in the computation of a period of
time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
1.3 General Interpretation. Unless the context otherwise
requires, words importing the singular shall include the plural
and vice versa and words importing gender shall include
masculine, feminine and neuter genders.
1.4 Generally Accepted Accounting Principles. Except to
the extent otherwise expressly provided, references to "generally
accepted accounting principles" mean, for all principles stated
from time to time in the Handbook of the Canadian Institute of
Chartered Accountants, such principles so stated. It is hereby
otherwise expressly provided that "generally accepted accounting
principles" in respect of Deere U.S. mean generally accepted
accounting principles in the United States of America.
1.5 Actions on Days Other than Banking Days. Except to the
extent otherwise expressly provided, where any payment is
required to be made or any other action is required to be taken
on a particular day and such day is not a Banking Day and, as a
result, such payment cannot be made or action cannot be taken on
such day, then this Agreement shall be deemed to provide that
payment shall be made or such action shall be taken on the first
Banking Day after such day. If the payment of any amount is
deferred for any period under this Section 1.5, then such period
shall, unless otherwise provided herein, be included for purposes
of the computation of any interest payable hereunder.
1.6 Headings and Table of Contents. The division of this
agreement into Articles and Sections and the insertion of
headings and a table of contents are for the convenience of
reference only and shall not affect the interpretation of this
agreement.
1.7 Dollars. Unless otherwise indicated, all dollar
amounts set out herein are in Canadian Dollars.
1.8 Effective Date or Time. For all purposes hereof,
unless expressly otherwise indicated, the effective time or date
of this Agreement shall be April 5, 1995 and, for greater
certainty, the word "future" shall be defined by reference to
such date.
2. CREDIT FACILITY
2.1 Establishment. The Lenders hereby establish for the
Borrowers on the terms and conditions set forth herein the Credit
Facility, in the maximum aggregate principal amount of U.S.
$87,500,000, to be advanced by way of Loans. The Borrowers may
borrow, prepay (in whole or in part), reborrow or repay in such
proportions between them as they may determine and the Lenders
may lend to either Borrower as hereinafter provided without the
concurrence of or notice to the other Borrower.
2.2 Purposes. The Credit Facility is being made available
to the Borrowers to enable them to finance their or their
Subsidiaries' respective retail, lease and wholesale receivables
and inventory and to support their or their Subsidiaries'
respective commercial paper programs and for general corporate
purposes (including financing the acquisition of shares and/or
assets of corporations and other Persons otherwise permitted
hereunder but excluding any such acquisition which constitutes a
takeover bid within the meaning of the Securities Act (Ontario)
if such bid is opposed by the board of directors of the Person to
be acquired).
2.3 Manner of Borrowing. Subject to the terms and
conditions hereof, each of the Borrowers may in Canadian Dollars
make Drawdowns under the Credit Facility of Prime Rate Loans,
Canadian LIBOR Loans, Fixed Rate Loans and Bankers' Acceptances
and may in U.S. Dollars make Drawdowns under the Credit Facility
of U.S. LIBOR Loans, USBR Loans and Fixed Rate Loans. Each of
the Borrowers shall have the option, subject to the terms and
conditions hereof, to determine which types of Loans shall be
drawn down and in which combinations or proportions.
2.4 Drawdown, Conversion and Rollover Restrictions.
Drawdowns, Conversions and Rollovers, and other actions taken,
under the Credit Facility shall be subject to the following
restrictions:
(a) each Drawdown shall be in a minimum principal amount of
Cdn. $5,000,000 or U.S. $5,000,000, as the case may be,
and Drawdowns in excess thereof shall be in integral
multiples of Cdn. $1,000,000 or U.S. $1,000,000, as the
case may be;
(b) in the case of a LIBOR Loan, Drawdowns, Conversions and
Rollovers may only be made upon the Lenders' prior
favourable determination with respect to the matters
referred to in Article 5;
(c) except as otherwise provided herein, no Interest Period
applicable to a Lender shall extend beyond the second
anniversary of the Loan Termination Date for such
Lender;
(d) in no event shall any Drawdown be made or other action
taken hereunder which causes:
(i) the amount of the Committed Global Exposure of any
Lender, after giving effect to any concurrent
payment and/or borrowing under this Agreement or
the USD Agreement to exceed such Lender's
Commitment; or
(ii) the aggregate outstanding principal amount of USD
Loans under the USD Agreement plus the aggregate
Equivalent Amount in U.S. Dollars of all Loans
hereunder to exceed the Credit Facility Amount;
and
(e) in the case of LIBOR Loans, after giving effect to any
Drawdown, Conversion or Rollover, there shall not be at
any one time more than six different Interest Periods
applicable to outstanding LIBOR Loans hereunder.
2.5 Drawdown Notice. A Borrower may at any time and from
time to time make a Drawdown under the Credit Facility, subject
to the terms and conditions hereof, upon delivering a Drawdown
Notice with respect to a specified type or types of Loan to the
Agent:
(a) in the case of any Prime Rate Loan, USBR Loan or
Bankers' Acceptance (other than an All-in Banker's
Acceptance), not later than 10:00 a.m. (Toronto time)
on the Banking Day which is two Banking Days prior to
the day on which the Loan is to be advanced; and
(b) in the case of a LIBOR Loan, not later than 3:00 p.m.
(Toronto time) on the Banking Day which is three
Banking Days prior to the Banking Day on which the Loan
is to be advanced.
2.6 Irrevocability. The giving of a Drawdown Notice,
Rollover Notice or Conversion Notice by a Borrower hereunder
shall, except as hereinafter provided, be irrevocable. In the
event that the Borrower wishes to revoke any such Notice, the
Lenders may at their sole option accept such revocation and
require the Borrower to pay to the Lenders such additional amount
as is specified in and in accordance with Section 7.2.
2.7 Cancellation or Reduction of Credit Facility or
Commitments. The Borrowers acting together may at any time, upon
giving at least three Banking Days prior notice to the Agent,
cancel in full the Credit Facility or, from time to time, reduce
the Credit Facility Amount and, if the Credit Facility Amount is
so reduced, the Commitments of each of the Lenders shall be
reduced pro rata based upon the respective Commitment Ratios of
the Lenders provided, however, that in no event shall the Credit
Facility Amount be reduced below the Equivalent Amount in U.S.
Dollars of the aggregate principal amount of the Loans
outstanding hereunder.
2.8 Fixed Rate Loans.
(a) Subject to the Lender's availability of funds, as to
which the Lender's decision shall be final and conclusive, and to
the proposed term not causing the relevant repayment date to
occur after the Loan Termination Date (unless otherwise agreed by
the Lender), any Borrower may request any Lender, upon at least
five Banking Days' prior written notice, to make available a
Fixed Rate Loan in either Canadian or U.S. Dollars. Such notice
shall set forth the desired currency, the proposed drawdown date,
the proposed term of such Loan and the proposed Loan amount
(which shall in no event be less than Cdn. $1,000,000 or the
Equivalent Amount). Any Fixed Rate Loan shall be made available
at the sole and absolute discretion of the Lender, upon terms
(including the rate of interest, interest payment dates,
repayment schedule and prepayment privileges) acceptable to such
Lender and as agreed to by such Borrower. Notwithstanding that
Lenders are in no way committed to make Fixed Rate Loans
hereunder, it is intended that, when requested to do so, a Lender
will use reasonable efforts to quote terms for such a Loan based
on the costs and charges to such Lender in raising offsetting
deposits in an amount substantially equal to and for the term of
the proposed Fixed Rate Loan together with all other costs and
charges (excluding internal costs and charges) incidental thereto
including, without limitation, primary, secondary or other
reserves, withholding taxes, stamp taxes and the costs of
establishing any hedging contracts considered necessary by the
Lender. Any such borrowing shall not be subject to the
provisions of Article 14 hereof which require that Loans be made
by all Lenders on the pro rata basis specified therein. Notice
of any such proposed loan and the actual making thereof shall be
given by the Borrower to the Agent in writing as soon after the
making thereof as reasonably possible. Upon receipt by the Agent
of such notice, the loan shall be deemed to be a Fixed Rate Loan
hereunder, unless upon request by the Agent the relevant Lender
fails to confirm that such loan is a Fixed Rate Loan in which
event the loan made shall not be a Fixed Rate Loan hereunder and
shall not be governed by the provisions hereof. The Lender
shall, upon receipt of the Borrower's written request aforesaid,
indicate to the Borrower in writing whether it will make a Fixed
Rate Loan and, if so, at what rate, such written indication to be
provided to the Borrower prior to 1:00 p.m. (Toronto time) on the
Banking Day following receipt by the Lender of the Borrower's
request. The Borrower shall indicate in writing to the Lender,
prior to 5:00 p.m. (Toronto time) on the day on which the
Borrower receives the Lender's notice aforesaid, if it wishes to
draw said Fixed Rate Loan, and, if the Borrower so indicates, the
Lender shall advance the said Fixed Rate Loan. If the Borrower
fails to give such written indication, the Borrower shall be
deemed to have chosen not to draw such Fixed Rate Loan.
Notwithstanding the preceding three sentences, if the Borrower
and the Lender agree as to the terms of a Fixed Rate Loan to be
made pursuant to this subsection 2.8(a), such Fixed Rate Loan
shall be made despite any failure by either the Borrower or the
Lender to comply with the time or notice provisions set forth in
such preceding three sentences for the making of such Fixed Rate
Loan. Interest at the specified rate shall be payable thereon as
well after as before maturity, default and judgment, with
interest on overdue interest at the same rate. For greater
certainty, interest rate swap transactions shall not be included
within the definition of Fixed Rate Loans as specified above nor
subject to the provisions of this Section 2.8.
(b) Any Lender who makes a Fixed Rate Loan hereunder, shall
at such time elect whether such Fixed Rate Loan shall or shall
not be excluded for the purpose of determining such Lender's
Unutilized Commitment. Such Lender shall, as soon as reasonably
possible following such election, give notice thereof to the
Borrowers and the Agent. For greater certainty and
notwithstanding anything to the contrary in this Agreement, a
Lender may make one or more Fixed Rate Loans hereunder in an
amount which causes the Equivalent Amount in U.S. Dollars of the
aggregate principal amount of Loans made by it hereunder to
exceed its Commitment.
2.9 Failure of a Borrower to Give Notice.
(a) If the Borrower fails to give the Agent a Drawdown
Notice with respect to a Prime Rate Loan or USBR Loan in
accordance with the time periods set out in Section 2.5 hereof,
or a Conversion Notice into either such Loans in accordance with
Section 2.11 hereof, the Lenders shall have the right, at their
option, to waive any such failure in connection with the giving
of such Drawdown Notice or Conversion Notice, to make such Loan
as if such notice had been given on a timely basis and to require
the Borrower to pay to the Lenders such additional amount as is
required to cover any costs incurred by the Lenders in making any
such Loan which are caused by the failure of the Borrower to give
such notice as is specified in and in accordance with
Section 7.2.
(b) If the Borrower fails to give the Agent a Drawdown
Notice with respect to a LIBOR Loan in accordance with the time
periods set out in Section 2.5 hereof, or a Rollover Notice or
Conversion Notice into any such Loan in accordance with
Section 2.10 and Section 2.11, respectively, below, the Lenders
shall have the right, at their option, to waive any such failure
to give a Drawdown Notice, Rollover Notice or Conversion Notice,
to make such Loan as if such notice had been given on a timely
basis and to require the Borrower to pay to the Lenders such
additional amount as is required to cover any costs incurred by
the Lenders in making any such Loan which are caused by the
failure of the Borrower to give such notice as is specified in
and in accordance with Section 7.2.
2.10 Rollover of LIBOR Loans. At or before 3:00 p.m.
(Toronto time) three Banking Days prior to the expiration of each
Interest Period of each LIBOR Loan, the Borrower which is liable
on such Loan shall, unless it has delivered a Conversion Notice
pursuant to Section 2.11 or a Repayment Notice pursuant to
Section 2.13 with respect to such Loan, deliver a Rollover Notice
to the Agent selecting the next Interest Period applicable to
such LIBOR Loan, which new Interest Period shall commence on and
include the last day of such prior Interest Period. If such
Borrower fails to deliver a Rollover Notice as herein provided,
such Borrower shall be deemed to have given a Rollover Notice to
the Agent pursuant to this Section 2.10 electing to roll over
such LIBOR Loan into a LIBOR Loan of the same currency with a 30
day Interest Period.
2.11 Conversion Options. Subject to Sections 2.3, 2.4 and
2.5, the Borrower may, at, if applicable, the Exchange Rate,
convert:
(a) a Prime Rate Loan or USBR Loan or a portion thereof
into any other type of Loan (other than a Fixed Rate
Loan or an All-in Bankers' Acceptance) on the last day
of the applicable Interest Period;
(b) the amount of a Bankers' Acceptance (other than an
All-in Bankers' Acceptance) or a portion thereof into
any other type of Loan (other than a Fixed Rate Loan or
an All-in Bankers' Acceptance) on the last day of the
applicable Interest Period; and
(c) a Canadian LIBOR Loan or a U.S. LIBOR Loan or a portion
thereof into any other type of Loan (other than a Fixed
Rate Loan or an All-in Bankers' Acceptance) on the last
day of the applicable Interest Period;
by giving the Agent a Conversion Notice prior to the date of
Conversion in the same manner as if such Conversion Notice were a
Drawdown Notice being given in respect of the Loan into which
such Loan is being converted. The obligation of each of the
Lenders to convert into a LIBOR Loan is contingent upon the
Lenders' prior favourable determination with respect to the
matters referred to in Article 5.
2.12 Prepayment of Excess over Loan Facility. As of the
last Banking Days of March, June, September and December in each
year, the Agent shall determine the aggregate of the Equivalent
Amounts in U.S. Dollars of the principal of all Loans then
outstanding under this Agreement plus the principal amount of all
USD Loans outstanding under the USD Agreement. In the event that
such aggregate amount exceeds the Credit Facility Amount, the
Agent shall notify the Borrowers of the amount of such excess
(the "Excess") and, subject to the following sentence, each
Borrower shall as soon as possible but, in any event, within 30
days of the giving of such notice or such longer period of time
as may be required in order that LIBOR Loans be paid on the last
day of an Interest Period, pay to each of the Lenders its portion
of the Excess in U.S. Dollars or the Equivalent Amount of
Canadian Dollars, or some combination thereof, as the case may
be, applied, to the extent required (and to the extent of) the
outstanding Loans in the order following, to repayment of Prime
Rate Loans, USBR Loans, Canadian LIBOR Loans and U.S. LIBOR
Loans, together with, in the case of each such Loan, accrued
interest thereon to the date of such payment. Notwithstanding
the preceding sentence, the Borrowers shall be relieved of their
obligation to make payment in respect of a notification received
hereunder from the Agent to the extent that Deere U.S. or Deere
Capital has, after such notification required by the preceding
sentence, made a payment or prepayment of USD Loans in accordance
with the USD Agreement which has the effect of reducing the
Excess.
2.13 Optional Payments of Principal.
(a) A Borrower may at any time (except that Bankers'
Acceptances may only be prepaid in accordance with and subject to
the terms and conditions of subsection 2.13(b) below and subject
to the provisions of subsection 2.13(c) below) pay without
penalty to the Lenders any Prime Rate Loan, USBR Loan or LIBOR
Loan (but in accordance with clause 14.7(a)(ii)) or, unless such
Loan by its terms provides otherwise, Fixed Rate Loan, in whole
or, from time to time, in part, together with accrued interest
thereon to the date of such payment, and any other amounts
specified in and in accordance with Section 7.2 hereof, without
prejudice to the Borrower's right to redraw all or part of such
repaid amount subject to the terms and conditions hereof;
provided, however, that:
(i) such Borrower shall give a Repayment Notice to the
Agent prior to such time prior to the repayment
date as would have been applicable hereunder were
a Drawdown Notice being given in respect of the
Loan being repaid; and
(ii) each such repayment shall be in a minimum
principal amount of the lesser of
(A) Cdn. $5,000,000 or U.S. $5,000,000, as the
case may be, and (B) the principal amount of all
Loans in respect of which such payment is made
outstanding immediately prior to such repayment;
and any such repayment in excess of
Cdn. $5,000,000 or U.S. $5,000,000, as the case
may be, shall be either (C) in integral multiples
of Cdn. $1,000,000 or U.S. $1,000,000, as the case
may be or (D) in an amount equal to the principal
amount of all Loans in respect of which such
payment is made outstanding immediately prior to
such repayment.
(b) A Borrower may at any time and from time to time
satisfy its obligations under this Agreement with respect to any
LIBOR Loan, Fixed Rate Loan or Bankers' Acceptance (including,
for greater certainty, an All-in Bankers' Acceptance) outstanding
hereunder if it irrevocably deposits monies in trust with the
Agent (or in the case of any Fixed Rate Loan or All-in Bankers'
Acceptance, with the relevant Lender making such Loan or All-in
Bankers' Acceptance) in an amount which shall be sufficient to
pay the outstanding principal amount of such Loan and any
interest due on such LIBOR Loan or Fixed Rate Loan on the last
day of the Interest Period relating to such LIBOR Loan or on the
date of deposit in the case of such Fixed Rate Loan, as the case
may be, and in the case of such Fixed Rate Loan, any prepayment
premium or other amount payable in connection with the prepayment
thereof. Such amount shall be deposited in an account with the
Agent or such relevant Lender, as the case may be, which bears
interest at the applicable market rates of the Agent or such
Lender and such market rate of interest shall, after the
application of the principal of such Loan or Bankers' Acceptance
and any interest on such Loan referred to above on the last day
of the relevant Interest Period, be paid to such Borrower,
together with any amounts so deposited which are in excess of the
amount of such principal and interest due on such Loan or
Bankers' Acceptance on such last day of the Interest Period.
(c) Notwithstanding the foregoing, at any time when a
Default or an Event of Default exists hereunder, or when the
prepayment or satisfaction hereinafter referred to would result
in the occurrence of a Default or Event of Default hereunder:
(i) if there are Loans outstanding (other than Fixed Rate Loans
or All-in Bankers' Acceptances), no Fixed Rate Loan shall be
prepaid or otherwise satisfied, in accordance with
subsections 2.13(a) and 2.13(b) above, and no All-in Bankers'
Acceptance shall be satisfied, in accordance with
subsection 2.13(b) above, or (ii) if there are no Loans
outstanding other than Fixed Rate Loans and All-in Bankers'
Acceptances, any prepayment or other satisfaction thereof as
aforesaid shall be made only on a basis whereby each Lender who
has outstanding a Fixed Rate Loan and/or All-in Bankers'
Acceptance is prepaid or otherwise satisfied as aforesaid pro
rata based upon the aggregate principal amount of that Lender's
Fixed Rate Loans and All-in Bankers' Acceptances as compared to
the aggregate principal amount of all Fixed Rate Loans and All-in
Bankers' Acceptances then outstanding.
2.14 Mandatory Payments of Principal. The principal amount
of all Loans of any Lender (other than Fixed Rate Loans and
All-in Bankers' Acceptances) which are outstanding on the second
anniversary of the Loan Termination Date for such Lender shall be
due and payable by the Borrowers to such Lender, together with
all accrued interest thereon and all other amounts owing
hereunder, on the second anniversary of the Loan Termination Date
for such Lender. In addition, to the extent that, on any date on
which the Commitment of any Lender is reduced, the sum of (i) the
principal amount of all Loans of such Lender (other than Excluded
Loans of such Lender), and (ii) the principal amount of all
Committed USD Loans of such Lender's Affiliated USD Bank, exceed
the Commitment of such Lender, each Borrower shall pay to such
Lender its portion of such excess, applied to the extent required
(and to the extent of) the outstanding Loans in the order
following, to repayment of Prime Rate Loans, USBR Loans, Canadian
LIBOR Loans and U.S. LIBOR Loans, together with, in the case of
each such Loan, accrued interest thereon to the date of such
payment together with all other amounts related thereto owing
hereunder. Notwithstanding the preceding sentence, the Borrowers
shall be relieved of their obligations to make any payment
hereunder to the extent that Deere U.S. or Deere Capital has made
a payment or repayment of USD Loans in accordance with the USD
Agreement so that the sum of clauses (i) and (ii) above no longer
exceeds such Lender's Commitment. The principal amount of each
Fixed Rate Loan and All-in Bankers' Acceptance shall be due and
payable by the relevant Borrower to the relevant Lender on the
maturity thereof together with accrued interest thereon and all
other amounts owing thereunder.
2.15 Loan Accounts. Each Lender shall open and maintain on
its books in accordance with the customary practices of such
Lender loan accounts in the name of the Borrower in respect of
the Prime Rate Loans, USBR Loans, LIBOR Loans and Fixed Rate
Loans made by the Lender to the Borrower and forming part of the
Lenders' Loans hereunder. The Lender shall debit to the
appropriate loan account the amount of each Drawdown or borrowing
under the relevant Loan and the interest and other charges
accrued in respect thereof from time to time and the Lender shall
credit to the appropriate loan account the amount of each
payment, repayment and prepayment by the Borrower of the
principal amount thereof and interest and other charges in
respect thereof. In the absence of manifest error, the entries
made by the Lender in such loan accounts shall be conclusive
evidence of the making of each such Loan and each payment,
repayment and prepayment thereof, as the case may be.
3. INTEREST
3.1 Payment of Interest. The Borrower shall pay to the
Lenders interest on the Prime Rate Loans, USBR Loans and LIBOR
Loans in the manner and at the rates per annum determined in
accordance with this Section 3.1. Interest payable hereunder
shall be payable both before and after maturity, default and/or
judgment, if any, until payment in full thereof, and interest
shall accrue on overdue interest, if any, at the same rate.
(a) Interest on Prime Rate and USBR Loans. The Borrower
shall pay interest on each Prime Rate Loan and USBR Loan made to
it during each Interest Period applicable thereto in Canadian
Dollars, in the case of Prime Rate Loans and U.S. Dollars, in the
case of USBR Loans, at a rate per annum equal to the Prime Rate,
in the case of Prime Rate Loans, or USBR, in the case of USBR
Loans, in effect from time to time during such Interest Period.
The determination by the Agent of the Prime Rate or USBR, as the
case may be, applicable from time to time during an Interest
Period shall, in the absence of manifest error, be binding upon
the Borrower. Such interest shall be calculated and payable in
arrears on each Interest Payment Date for such Loan for the
period from and including the Drawdown Date or the preceding
Rollover Date, Conversion Date or Interest Payment Date, as the
case may be, for such Loan to and including the day preceding
such Interest Payment Date and shall be calculated on the
principal amount of the Prime Rate Loan or USBR Loan, as the case
may be, outstanding during such period and on the basis of the
actual number of days elapsed in a year of 365 days or 366 days,
as the case may be. Changes in the Prime Rate or USBR shall be
immediately reflected in the interest rate payable on each Prime
Rate Loan and USBR Loan, respectively, without the necessity of
any prior notice to the Borrowers; provided, however, that the
Agent shall use its best efforts to give notice to the Borrowers
of a change in Prime Rate or USBR, if not otherwise publicly
announced, but shall have no liability for its failure to do so.
(b) Interest on LIBOR Loans. The Borrower shall pay
interest on each LIBOR Loan during each Interest Period
applicable thereto in Canadian Dollars, in the case of Canadian
LIBOR Loans, and U.S. Dollars, in the case of U.S. LIBOR Loans,
at a rate per annum, expressed on the basis of a 360 day year,
equal to the Canadian LIBOR, in the case of Canadian LIBOR Loans
and the U.S. LIBOR, in the case of U.S. LIBOR Loans, determined
by the Agent with respect to such Interest Period, plus, in each
case, 0.185% per annum. Each determination by the Agent of the
Canadian LIBOR or U.S. LIBOR, as the case may be, applicable to
an Interest Period shall, in the absence of manifest error, be
binding upon the Borrower. Upon determination of the Canadian
LIBOR or U.S. LIBOR, as the case may be, applicable to an
Interest Period, the Agent shall notify the Borrower of such
rate. Such interest shall be payable in arrears on each Interest
Payment Date for such Loan for the period from and including the
Drawdown Date or the preceding Rollover Date, Conversion Date or
Interest Payment Date, as the case may be, for such Loan to and
including the day preceding such Interest Payment Date and shall
be calculated on the principal amount of the LIBOR Loan
outstanding during such period and on the basis of the actual
number of days elapsed divided by 360. For the purposes of this
Agreement, whenever interest is calculated on the basis of a year
of 360 days, each rate of interest determined pursuant to such
calculation expressed as an annual rate for the purposes of the
Interest Act (Canada) is equivalent to such rate as so determined
multiplied by the actual number of days in the calendar year in
which the same is to be ascertained, whether 365 or 366, as the
case may be, and divided by 360.
3.2 Other Arrears. If the Borrower fails to pay any amount
payable by it hereunder, other than the principal amount of a
Loan or any interest payable thereon, on the due date therefor,
the Borrower shall, if such overdue amount is not paid within the
first five Banking Days following the due date therefor, on
demand by the Agent from time to time (unless the failure to pay
such amount is the fault of the Lenders or the Agent) pay
interest on such overdue amount, from the due date up to the date
of actual payment as well after as before judgment, until paid,
at a rate per annum equal to, in the case of an amount due
denominated in Canadian Dollars, the Prime Rate, and in the case
of an amount due denominated in U.S. Dollars, the USBR, plus, in
each case, 1% per annum. Notwithstanding the foregoing, if the
obligation of the Borrower to pay any interest provided for by
this Section 3.3 or any portion thereof is unenforceable as being
contrary to law or for any other reason, the interest payable
shall be the portion of such additional interest which the
Borrower has an enforceable obligation to pay.
3.3 Compounding of Interest. Interest on all overdue
amounts under this Agreement shall be compounded on the last
Banking Day of each month during the period of arrears.
4. CHANGES IN CIRCUMSTANCES
4.1 Increase in Costs. (a) If at any time the Lenders or
any of them determine in good faith (which determination shall be
conclusive) and provide the Agent, which shall so provide the
Borrower, with a certificate in accordance with this Section 4.1
stating that, in respect of any LIBOR Loan or Bankers' Acceptance
(except as provided below):
(i) any future law, regulation, rule, treaty or
official directive (whether or not having the
force of law), or any change in any present or
future law, regulation, rule, treaty or official
directive or in the interpretation or application
thereof by any authority charged with the
administration thereof or by any court of
competent jurisdiction:
(A) that subjects the Lenders or any of them to
any tax with respect to payments of principal
of or interest on or other fees in respect of
any such Loan or Bankers' Acceptance (other
than tax levied or imposed on the overall net
income of the Lenders or any of them or a tax
in lieu of a tax on the overall net income of
the Lenders or any of them or a franchise tax
or other tax imposed for the privilege of
doing business by any jurisdiction wherein
the Lenders or any of them are incorporated
or organized or now or hereafter carry on
business); or
(B) that changes the basis of taxation of
payments to the Lenders or any of them of
principal of or interest on or other fees in
respect of any such Loan or Bankers'
Acceptance (other than a change in the rate
of tax levied or imposed on the overall net
income of the Lenders or any of them by any
jurisdiction wherein the Lenders or any of
them are incorporated or organized or now or
hereafter carry on business); or
(C) that imposes, modifies or applies any reserve
and/or special deposit requirements against
assets held by or deposits in or for the
account of, or such Loans or Bankers'
Acceptances by, the Lenders or any of them;
or
(D) that directly affects the cost to the Lenders
or any of them of making, funding or
maintaining any such Loan or Bankers'
Acceptance or any Commitment in respect
thereof or otherwise imposes on the Lenders
or any of them any other condition affecting
this agreement or any such Loan or Bankers'
Acceptance or any Commitment in respect
thereof; or
(ii) compliance by the Lenders or any of them with any
future request, law, regulation, directive or
interpretation, or change in any present or future
law, regulation, directive or interpretation, of
any applicable monetary, fiscal or other
governmental agency or authority (whether or not
having the force of law);
has the effect of
(I) increasing the cost to the Lenders or any of them
of making, maintaining or funding such Loans or
Bankers' Acceptances;
(II) reducing the amount of principal or interest or
other fees with respect to such LIBOR Loan or
Bankers' Acceptance received or receivable by the
Lenders or any of them hereunder with respect to
such LIBOR Loan or Bankers' Acceptance or the
effective return to the Lenders or any of them on
or calculated by reference to the gross amount of
any sum received or receivable by them from the
Borrower hereunder with respect to such LIBOR Loan
or Bankers' Acceptance; or
(III) causing the Lenders or any of them to make
any payment or to forego any interest or
other return on or calculated by reference to
the gross amount of any sum received or
receivable by the Lenders or any of them
hereunder;
by or in an amount which the Lenders or any of them, acting
reasonably, consider material, and also stating that such Lender
will, as its general practice if the loan and other similar
agreement to which it is a party permit it to do so, be requiring
other borrowers to make payments to it of the general type herein
provided, then within fifteen Banking Days from the receipt by
the Borrower of the aforesaid certificate, the Borrower shall,
subject to the provisions of subsection 4.1(b), pay to the Agent
such amount as shall reimburse such Lenders for such additional
cost, reduction, payment, foregone interest or other return.
Notwithstanding the foregoing, no reimbursement of any additional
cost, reduction, payment, foregone interest or other return which
results from the occurrence of an event described in clause
4.1(a)(i) or 4.1(a)(ii) shall be made pursuant to this
Section 4.1 with respect to any All-in Bankers' Acceptance which
is accepted by a Lender following the determination in good faith
by such Lender that such event has occurred and has resulted in
such additional cost, reduction, payment, foregone interest or
other return. The certificate shall be delivered by such Lenders
to the Agent and by the Agent to the Borrower not later than five
days after such Lenders, acting reasonably, have been able to
determine such amount, provided that any delay of such Lenders or
the Agent, as the case may be, in delivering such certificate
beyond such five day period shall not, except as provided in
subsection 4.1(b), affect the rights of such Lenders under this
Section 4.1. The certificate of such Lenders as to any amount
payable pursuant to this Section 4.1 shall be signed by a duly
authorized officer thereof and shall set out, in reasonable
detail, the costs, reduction, payment or foregone interest or
other return incurred by such Lenders, the calculation thereof
and the reasons therefor and shall, in the absence of manifest
error, be conclusive evidence of the facts set out therein.
(b) Notwithstanding the foregoing, no amount shall be
payable to a Lender pursuant to subsection 4.1(a) if:
(i) the Lender failed to use its reasonable best
efforts to avoid or reduce such costs, reduction,
payment or foregone interest or other return, as
the case may be, in respect of which such amount
is claimed; or
(ii) for any period prior to the time the Lender gives
notice to the Agent and to the Borrowers of any
event which may give or gives rise to any rights
of such Lender under this Section 4.1 and that
such Lender intends to claim any amount under this
Section 4.1 as a result of such event, unless such
notice is given within ten days after the Lender
has incurred such cost, reduction, payment,
foregone interest or other return, and in the case
where such notice is given within ten days of such
incurrence, for the period from the date of such
incurrence.
(c) In the event that any Lender shall have determined that
the adoption after the date hereof of any law, rule, guideline or
regulation regarding capital adequacy, or any change after the
date hereof in any existing or future law, rule, guideline or
regulation regarding capital adequacy (excluding, however, the
phasing-in of any existing law, rule, regulation or guideline
regarding capital adequacy) or in the interpretation or
application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive
made or adopted after the date hereof regarding capital adequacy
(whether or not having the force of law) from any authority
charged with the administration thereof or by any court of
competent jurisdiction, does or shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital
as a consequence of its obligations hereunder to a level below
that which such Lender or such corporation could have achieved
but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time, within 30 days after
receipt (whenever occurring) of a certificate from such Lender
(which shall be executed by an officer thereof and a copy of
which shall be delivered to the Agent), the Borrowers jointly and
severally agree to pay to such Lender such additional amounts as
are stated therein to be required to compensate it for such
reduction. The certificate of such Lender as to the amount of
such reduction shall set forth in reasonable detail the
computation of such reduction and shall be binding and conclusive
in the absence of manifest error. A Lender which demands
indemnification hereunder as a result of a reduction referred to
herein shall deliver the certificate referred to above to the
Borrowers demanding indemnification no later than the later of
(i) the thirtieth day immediately following each realization by
such Lender of such reduction (and such certificate shall certify
that the amounts set forth therein were realized within such
30 day period) and (ii) the thirtieth day immediately following
such Lender's knowledge of the realization by such Lender of such
reduction (and such certificate shall so certify).
4.2 Conversion. In the event of the Lenders or any of them
providing a Borrower with a certificate pursuant to Section 4.1
hereof with respect to a LIBOR Loan, the Borrower, at its option,
shall have the right to require the Lenders, for a period of
three Banking Days after receipt of such certificate by the
Borrower, to effect a Conversion to a Prime Rate Loan or a USBR
Loan as it shall select.
4.3 Repayment. In the event that: (a) a demand for a
payment from the Borrower is made by a Lender pursuant to
Section 4.1(a), the Borrower receives from a Lender a notice
pursuant to subsection 4.1(b) or the Borrower receives a
certificate from a Lender pursuant to Subsection 4.1(c), the
Borrower may, in its discretion, provided no Default or Event of
Default has occurred which is then continuing or (b) the
"Commitment" (as defined in the USD Agreement) of the Affiliated
USD Bank of a Lender is being terminated as contemplated by
Section 2.16(c) thereof, the Borrower shall be obligated to, in
each case subject to the provisions of the Bank Act (Canada)
restricting the activities of Canadian chartered banks and their
participations in loan syndications, repay to such Lender all
(but not less than all) of its Loans hereunder (provided it also
pays at such time all accrued and unpaid interest, fees and other
amounts payable hereunder to such Lender) and terminate all
obligations of such Lender (the "Terminated Lender") herein, on
the following terms and conditions:
(i) until the Terminated Lender's obligations are
terminated, as contemplated herein, the Borrower
shall continue to pay the increased costs or
additional amounts in accordance with the
provisions of Section 4.1;
(ii) the Borrower shall have given written notice to
the Agent of the exercise of its rights pursuant
to the provisions of this Section 4.3;
(iii) if pursuant to subsection 2.19 of the USD
Agreement the Affiliated USD Bank of a Lender
is replaced thereunder by a financial
institution as a "Tranche B Bank" under the
USD Agreement, the remaining parties to this
Agreement will take such action as may
reasonably be required to permit such
financial institution or an affiliate thereof
(provided such financial institution or its
affiliate is a Canadian chartered bank or, if
it is not, another Canadian financial
institution acceptable to the Majority
Lenders (which acceptance shall not be
unreasonably withheld)) to become a party
hereto as a Lender with a Commitment not in
excess of the Commitment of the Lender of the
Affiliated USD Bank which was so replaced;
and
(iv) notwithstanding any other provision of this
Section 4.3 to the contrary, where a Terminated
Lender has purchased an All-in Bankers' Acceptance
or made a Fixed Rate Loan, on its termination as a
Lender hereunder the Borrower shall not repay such
All-in Bankers' Acceptance or such Fixed Rate Loan
and the Borrower, Deere U.S. and the Terminated
Lender, acting reasonably shall enter into such
documentation as may be necessary in order to make
the All-in Bankers' Acceptance or Fixed Rate Loan
a standalone loan outside of the terms of the
Credit Facility but otherwise incorporating such
of the provisions of this Agreement and the
documentation entered into pursuant hereto as may
be necessary in order to ensure the integrity of
such All-in Bankers' Acceptance or Fixed Rate Loan
including, without limitation, the representations
and warranties, covenants, events of default and
remedies contained within this Agreement and
subordination and guarantee arrangements in
respect of such All-in Bankers' Acceptance and
such Fixed Rate Loans substantially in the form of
the Subordination Agreement and the Guarantees.
Upon the Borrower and the Terminated Lender
entering into such documentation, the indebtedness
owing by the Borrower to the Terminated Lender
pursuant to such All-in Bankers' Acceptance or
such Fixed Rate Loans shall be governed entirely
by such separate documentation and shall not form
part of the Credit Facility pursuant hereto.
5. IMPOSSIBILITY OF MAKING LIBOR LOANS
5.1 Mandatory Conversion.
(a) Notwithstanding anything herein contained, but subject
to Section 5.3, if at any time while any LIBOR Loan remains
outstanding, the Lenders or any of them determine in good faith
(which determination shall be conclusive) and notify the Agent,
which shall forthwith notify the Borrower, that any future law,
regulation, treaty or official directive, or any change in any
present or future law, regulation, treaty or official directive,
or in the interpretation or application thereof, by any authority
charged with the administration thereof or by any court of
competent jurisdiction, has made it unlawful or impossible for
the Lenders or any of them to make, to maintain or to fund such
LIBOR Loan or to give effect to any of their related obligations
as contemplated hereby, the Agent by such notice shall require
that the Borrower shall, and the Borrower, after receipt of such
notice shall, at the end of the then current Interest Period for
such LIBOR Loan or at such earlier date as may be required by any
such law, regulation, treaty or official directive, effect a
Conversion to a Prime Rate Loan, or a USBR Loan, as it shall
select.
(b) Notwithstanding any other provision of this Agreement,
the Borrower shall give notice to the Lenders of any Conversion
required under this Section 5.1, but may do so without regard to
the time period contained in Section 2.11.
5.2 Termination of Facility for LIBOR Loans.
Notwithstanding anything herein contained, but subject to
Section 5.3, the Borrower agrees with the Lenders that if at any
time prior to the commencement of an Interest Period the Lenders
or any of them shall have determined in good faith (which
determination shall be conclusive) and give notice to the Agent,
which shall forthwith notify the Borrower, (a) that it has become
unlawful or impossible for the Lenders or any of them to make, to
maintain or to fund any part of a LIBOR Loan or (b) that the
ability of the Lenders or any of them to make, to maintain or to
fund such LIBOR Loan or part thereof has been materially
adversely affected because (in the case of subsection (b) of this
Section 5.2 restricted to clauses (i) and (ii) below):
(i) of circumstances affecting the London Interbank
Market generally which the Majority Lenders have
determined have resulted in there not existing
adequate and fair means for ascertaining the rate
of interest applicable to such LIBOR Loan during
such Interest Period;
(ii) deposits in Canadian Dollars or U.S. Dollars, as
the case may be, are not available to Lenders
which constitute Majority Lenders in the relevant
London Interbank Market in sufficient amounts in
the ordinary course of business; or
(iii) of any change in applicable law or regulation
or regulatory requirement or in the
interpretation thereof or in currency
exchange rates or exchange controls;
then, from and after the date of such determination for so long
as such conditions shall continue to exist, the Borrower shall
not have the right to obtain or maintain a LIBOR Loan hereunder.
When the Lenders or any of them, or the Majority
Lenders, as the case may be, have made any such determination,
the Borrower shall effect a Conversion to a Prime Rate Loan or to
a USBR Loan, as it shall select, in respect of all outstanding
LIBOR Loans at the end of the Interest Periods thereof. The
provisions of subsection 5.1(b) shall apply mutatis mutandis to
any such Conversion.
5.3 Lender Covenants. The Lenders shall, with respect to
the events set out in Sections 5.1 and 5.2 above, use their
reasonable best efforts to avoid the application thereof
(including, for greater certainty, the changing of lending
offices) and shall, acting reasonably, give notice to the Agent
and to the Borrowers of any such potential application, but shall
be under no liability for their failure so to do.
5.4 Repayment. The provisions of subsection 4.3(a) shall
apply, mutatis mutandis, in respect of any Lender which gives the
notice, and requires the Borrower to take the action,
contemplated by Section 5.1 or Section 5.2 above.
6. BANKERS' ACCEPTANCE
6.1 Bankers' Acceptance. The Borrower may, pursuant to
Section 2.5 or Section 2.11, and in accordance with the
provisions of this Section 6.1, give the Agent notice that
Bankers' Acceptances will be outstanding under the Credit
Facility. In addition to the other restrictions on maturity
dates hereafter set out, no Bankers' Acceptance (other than an
All-in Bankers' Acceptance which the relevant Lender has
consented to extending beyond the Loan Termination Date) shall
have a maturity which extends beyond the Loan Termination Date of
the applicable Lender. Acceptances by Lenders of drafts
presented to the Lenders shall be subject to the terms,
conditions and proceedings set out below:
(a) Borrower Drafts. All drafts presented by a Borrower
for acceptance by the Lenders shall be drawn on the
appropriate form of the relevant Lender and shall
mature on a day on which the relevant Lender is open
for business at the place where the acceptance is
payable, which day shall not be less than 30 days nor
more than 365 days after the date of issuance of the
draft presented for acceptance. The Borrower shall not
claim any days of grace for the payment at maturity of
any of its drafts presented to and accepted by a Lender
pursuant hereto.
(b) Stamping Fee. In respect of each draft presented to
and accepted by a Lender, the Borrower shall pay the
relevant Lender a fee calculated on the basis of a 365
day or 366 day year, as the case may be, at the rate
per annum equal to 0.25% per annum of the face amount
of such draft for its term being the actual number of
days in the period commencing on and including the date
the Lender accepts the Borrower's draft and ending on
but excluding the day of maturity of the Bankers'
Acceptance, such fee to be paid upon acceptance by the
Lender of such draft without any reduction by reason of
such payment being in advance.
(c) All-in Options. A Borrower may request any one or more
Lenders to purchase its drafts at an all-in acceptance
rate (the "All-in Bankers' Acceptance Rate") advised by
such Lender or Lenders (any such draft which is so
accepted at the All-in Bankers' Acceptance Rate being
called an "All-in Bankers' Acceptance"). For the
purposes of this subsection (c), a Lender's All-in
Bankers' Acceptance Rate for a particular draft is the
rate at which such Lender would be willing to purchase
such Canadian Dollar draft (which may or may not be
accepted by the Lender) which rate shall include the
Lender's stamping fee. Notice of any All-in Bankers'
Acceptance and the basic terms thereof shall be given
by the Borrower to the Agent in writing as soon after
the making thereof as reasonably possible. Upon
receipt of such notice, the All-in Bankers' Acceptance
shall be governed by the provisions hereof, unless upon
request by the Agent the relevant Lender shall fail to
confirm that such Bankers' Acceptance is an All-in
Bankers' Acceptance for the purposes hereof, in which
case such acceptance shall not be an All-in Bankers'
Acceptance hereunder and shall not be governed by the
provisions hereof. Any Lender who purchases an All-in
Bankers' Acceptance hereunder, shall at such time elect
whether such All-in Bankers' Acceptance shall or shall
not be excluded for the purpose of determining such
Lender's Unutilized Commitment. Such Lender shall, as
soon as reasonably possible following such election,
give notice thereof to the Borrowers and the Agent.
For greater certainty and notwithstanding anything to
the contrary in this Agreement, a Lender may purchase
one or more All-in Bankers' Acceptances hereunder in an
amount which causes the Equivalent Amount in U.S.
Dollars of the aggregate principal amount of Loans made
by it hereunder to exceed its Commitment. None of the
provisions of this Section 6.1, except the provisions
of this subsection (c), and none of the provisions of
Article 14 relating to the acceptance of Bankers'
Acceptances on a Pro Rata basis, shall apply to All-in
Bankers' Acceptances.
(d) General Mechanics.
(i) Concurrently with the delivery by a Borrower to
the Lenders of a Drawdown Notice, Rollover Notice
or Conversion Notice requesting the acceptance of
a Bankers' Acceptance, such Borrower shall deliver
to each of the Lenders at its BA Branch drafts
drawn by such Borrower upon such Lender in an
aggregate principal amount at maturity equal to
such Lender's Pro Rata share (rounded in such
manner as the Agent deems equitable so that the
share of each Lender shall be Cdn.$100,000 or an
integral multiple thereof) of each proposed
Bankers' Acceptance before 10:00 a.m. (Toronto
time) on the Drawdown Date, Rollover Date or
Conversion Date specified by such Borrower in its
Drawdown Notice, Rollover Notice or Conversion
Notice and, at the same time, such Borrower shall
advise the Lenders of the acceptance date and term
to maturity for such Bankers' Acceptance which
term to maturity shall be the same for all
Lenders. Such draft shall be properly drawn and
executed by such Borrower on such Lender's
standard form in effect at the time, subject as
follows:
(A) each draft of a Bankers' Acceptance delivered
to a Lender shall mature on the last day of
the Interest Period with respect thereto; and
(B) the provisions of this Agreement, and not the
provisions contained in any Lender's standard
form agreement relating to Bankers'
Acceptances, shall govern the relationship
between the Borrower and the Lenders.
(ii) In anticipation of the maturity of a Bankers'
Acceptance, the issuing Borrower shall either:
(A) deliver to the Agent a Rollover Notice that
such Borrower intends to draw and present for
acceptance on the maturity date drafts of the
Borrower to be issued as new Bankers'
Acceptances (in which case the provisions of
subsection 14.8(e) below shall govern);
(B) deliver to the Agent a Conversion Notice
pursuant to Section 2.11 (in which case the
provisions of subsection 14.8(g) below shall
govern); or
(C) on the maturity date of the maturing Bankers'
Acceptance, pay to the Agent for payment to
the relevant Lender an amount equal to the
face amount of such Bankers' Acceptance.
If the issuing Borrower fails to so notify the Agent or
make such payment, each Lender shall effect a
Conversion into a Prime Rate Loan as if a Conversion
Notice pursuant to subclause 6.1(d)(i)(B) above had
been given by such Borrower to the Agent.
(iii) To facilitate the acceptance of Bankers'
Acceptances as aforesaid, each Borrower
shall, upon execution of this Agreement and
from time to time as required, provide to
each Lender at its BA Branch drafts drawn in
blank by such Borrower upon such Lender in
quantities sufficient for each Lender to
fulfil its obligations hereunder. No Lender
shall be responsible or liable for its
failure to accept a Bankers' Acceptance as
required hereunder if the cause of such
failure is, in whole or in part, due to the
failure of such Borrower to provide such
instruments to such Lender on a timely basis.
7. PAYMENTS
7.1 Place and Manner of Payments. All payments to be made
by the Borrower hereunder shall be made in Canadian Dollars (in
the case of Prime Rate Loans, Bankers' Acceptances, Canadian
LIBOR Loans and Fixed Rate Loans made in Canadian Dollars) and
U.S. Dollars (in the case of USBR Loans, U.S. LIBOR Loans and
Fixed Rate Loans made in U.S. Dollars) in immediately available
funds received by the Agent at the Designated Branch.
7.2 Indemnity. Each Borrower agrees to indemnify each
Lender that delivers a certificate in accordance with this
Section 7.2 and to hold such Lender harmless for any cost or
expense which such Lender may reasonably sustain or incur as a
consequence of (a) default by such Borrower in payment of the
principal amount of any LIBOR Loan of such Lender, including but
not limited to, any such cost or expense arising from interest or
fees payable by such Lender to lenders of funds obtained by it in
order to maintain its LIBOR Loans hereunder provided that any
such cost or expense owing by such Borrower shall be credited
against any interest due on overdue interest with respect to such
Loan, (b) failure by such Borrower in making a Drawdown, Rollover
or Conversion with respect to a LIBOR Loan after such Borrower
has given a notice in accordance with Section 2.5, 2.10 or 2.11,
as the case may be, unless such failure is as a result of the
circumstances referred to in either Section 5.1 or 5.2, (c) the
Lenders making any Drawdown, Conversion or Rollover pursuant to
Section 2.9, or (d) a prepayment of a LIBOR Loan pursuant to
Section 2.13 (except for prepayments pursuant to
subsection 2.13(b)) or Conversion of a LIBOR Loan pursuant to
Section 2.11, in each case on a day which is not the last day of
an Interest Period with respect thereto, including in all cases
where applicable but not limited to, any such cost or expense
arising from interest or fees payable by such Lender to lenders
of funds obtained by it in order to maintain such LIBOR Loans
hereunder. Each Lender shall use its best efforts (as do not
result in the incurrence of additional costs or expenses or of
additional credit exposure) to mitigate such cost or expense and
no amount shall be payable to such Lender pursuant to this
Section 7.2 if such Lender failed to use such best efforts. A
certificate as to any amount payable pursuant to this Section 7.2
shall be submitted within a reasonable time after the incurrence
of such cost or expense so claimed by each such Lender (and shall
be executed by a duly authorized officer thereof) to the relevant
Borrower and the Agent, setting forth the amount so claimed and
the computation of such amount in reasonable detail, and shall be
conclusive in the absence of a manifest error. The amount of
such cost or expense shall (unless the amount thereof is being
disputed in good faith by the Borrower on the basis of manifest
error, in which event the undisputed amount of such cost or
expense) be payable by the Borrower to the Agent within fifteen
Banking Days after the receipt by the Borrower of such
certificate.
8. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to establish the Credit Facility,
the Borrower represents and warrants to the Lenders, upon each of
which representations and warranties the Lenders specifically
rely, as set out below in this Article 8. For all purposes of
this Article 8, when a representation and warranty is made with
respect to a Guarantor, it shall be made only from and after the
date upon which such Person becomes a Guarantor, and only so long
as such Person continues as a Guarantor, in accordance with the
provisions hereof.
8.1 Due Incorporation. Each of the Borrowers, the
Guarantors and Deere U.S. is duly incorporated and is validly
subsisting under the laws of the jurisdiction of its
incorporation. As at the date hereof, Deere U.S. owns all of the
issued and outstanding shares of Deere Canada, Deere Canada is
the owner of all of the issued and outstanding shares of each of
Deere Finance, Homelite Canada Limited and John Deere Insurance
Company of Canada, and Deere Finance is the owner of all of the
issued and outstanding shares of CEFC, in each case free and
clear of any and all liens, charges, hypothecs, security
interests or other encumbrances or restrictions of any nature
whatsoever other than as arise by virtue of any such Person being
a "private company" within the meaning of the Securities Act
(Ontario). As at the effective date hereof, except as aforesaid,
there are no Subsidiaries of Deere Canada.
8.2 Power and Authority to Own Assets and to Carry on
Business. Each of the Borrowers and the Guarantors has the
corporate power and authority to own the assets owned by it, and
to carry on its business as presently carried on by it, and is
duly qualified to do business in each jurisdiction where the
nature of any assets owned by it that are material to the
financial condition of the Deere Group and any business carried
on by it in such jurisdiction that is material to the financial
condition of the Deere Group make such qualification necessary.
8.3 Power and Authority to Enter into this Agreement. The
Borrower has the corporate power and authority to execute, to
deliver and to perform its obligations under this Agreement, the
Guarantee which is to be delivered by it and all other agreements
required hereunder to be executed by it, each Guarantor has said
power and authority with respect to its Guarantee and Deere U.S.
has said power and authority with respect to the Subordination
Agreement, and this Agreement, each such Guarantee and other
agreements and the Subordination Agreement have been duly
authorized by all necessary corporate action of, and have been
duly executed and delivered by, the Borrower, each Guarantor or
Deere U.S., as the case may be, and constitute legal, valid and
binding obligations of the Borrower, each Guarantor or Deere
U.S., as the case may be, enforceable (except to the extent of
the application of laws affecting creditors rights generally,
general equitable principles and the Currency Act (Canada)) in
accordance with their respective terms.
8.4 Licences. Except as disclosed in writing to the Agent
for delivery to the Lenders prior to the effective date hereof,
each of the Borrowers and the Guarantors has obtained all
required licences, permits and approvals from any and all
governments, governmental commissions, boards or other agencies
which are material to the financial condition of the Deere Group.
8.5 Litigation. Except as set forth in Schedule G hereto,
there are no actions, suits or proceedings, of which the Borrower
has knowledge, pending, or specifically threatened in writing to
a senior officer of the Borrower or a Guarantor, against or
affecting the Borrower or any one or more Guarantors at law or in
equity or before or by any governmental department, commission,
board, bureau or agency, domestic or foreign, or before any
arbitrator, which would, in the reasonable opinion of the
Borrower, result in any material adverse change in the financial
condition of the Deere Group, or the collective ability of the
Deere Group to perform the collective obligations of the Deere
Group under or pursuant to this Agreement and the Guarantees, and
neither the Borrower nor any Guarantor is in default with respect
to any judgment, order, writ, injunction, award, rule or
regulation of any court of competent jurisdiction, arbitrator or
governmental department, commission, board, bureau or agency,
domestic or foreign, which, either separately or in the
aggregate, would result, in the reasonable opinion of the
Borrower, in any such material adverse change.
8.6 Burdensome Provisions. Neither the Borrower nor any
Guarantor is a party to any agreement or instrument, or subject
to any corporate restriction or any judgment, order, writ,
injunction, award, rule or regulation, which materially and
adversely affects or, so far as the Borrower may reasonably
foresee, in the future may materially and adversely affect, the
financial condition of the Deere Group.
8.7 Financial Statements. The Borrower has furnished to
the Lenders the most recent annual Financial Statements being, at
the effective date of this Agreement, for the fiscal year ended
October 31, 1994. Such Financial Statements have been prepared
in accordance with generally accepted accounting principles
consistently applied, except as stated therein or in the notes
thereto. Such Financial Statements present fairly the financial
position and results for such fiscal year of the relevant Person
or Persons in connection with which such Financial Statements
have been prepared.
8.8 Full Disclosure. None of the Financial Statements
referred to in Section 8.7 hereof or the following financial
statements and other financial documents furnished by the
Borrowers to the Lenders in connection herewith: 1994 Financial
Statements for each Borrower; Deere Finance Form 29 for the year
ended October 31, 1994 as filed with Ontario Securities
Commission; Statement of Loss Experience of Borrowers'
receivables for the five year period ended October 31, 1994,
contained, as of the time such statements and other financial
documents were so furnished (except to the extent that, prior to
the effective date of this Agreement, the Borrower has given
corrective notice in writing to the contrary to the Agent for
delivery to the Lenders), any untrue statement of a material
fact.
8.9 No Breach because of Agreement. Neither the execution
nor the delivery of this Agreement, the Guarantees, the
Subordination Agreement or any other documents contemplated
hereby or to be furnished pursuant hereto or the consummation of
the transactions herein or therein contemplated, nor compliance
with the terms, conditions and provisions hereof or thereof
conflicts with or will conflict with, or results or will result
in any material breach of, or constitutes or will constitute a
material default under, any of the provisions of the charter
documents or by-laws of the Borrower, any Guarantor or Deere
U.S., as the case may be, or of any agreement or instrument to
which any of them is a party or by which any of them is bound,
and which is material to the financial condition of the Deere
Group, or results or will result in the creation or imposition of
any material Mortgage (other than Permitted Encumbrances) upon
any of their assets.
8.10 Ownership of Assets. Each of the Borrowers and the
Guarantors is the owner of such of its respective assets as are
material to the financial condition of the Deere Group subject to
no Mortgage except for Permitted Encumbrances. The amount of
Indebtedness secured or which may be secured by the Mortgages
referred to in clause (i) of the definition of Permitted
Encumbrances does not at the date of this Agreement exceed Cdn.
$6,000,000.
8.11 Consents. No consents, approvals, authorizations,
exemptions, registrations, filings or declarations of any
government or governmental authority or any other Person are
required to be obtained or made on the part of the Borrower, any
Guarantor or Deere U.S. in connection with the execution,
delivery and performance of obligations under this Agreement or
the Guarantee by the Borrower or of obligations under the
Guarantees by any Guarantor or the Subordination Agreement by
Deere U.S. and except as have been obtained or made and copies of
which have been delivered to the Lenders prior to the execution
hereof (in the case of the Borrowers and Deere U.S.) or of its
Guarantee (in the case of a Guarantor).
8.12 Credit Policies. The established credit policies of
the Deere Group as they exist as at the date of this Agreement
with respect to retail receivables are designed to avoid the
creation of, among others, the following types of retail
receivables:
(i) receivables arising out of the sale, rental or
lease of equipment which are not subject to a duly
perfected security interest or duly registered
retention of title in favour of a member of the
Deere Group ranking, to the extent permitted by
law, in priority to all security interests, liens
and other encumbrances of any kind;
(ii) receivables from debtors, renters or lessees who
did not deal at arms' length with a member of the
Deere Group;
(iii) receivables which are subject to any
deduction or set-off for any amounts payable
to a debtor, renter or lessee whether related
to the receivable or otherwise; and
(iv) receivables which may not be collected until a
member of the Deere Group performs or causes to be
performed any additional service for, or performs
or incurs any additional obligation for, a debtor,
renter or lessee;
and such credit policies are otherwise in accordance in all
material respects with the description thereof contained in the
Ontario Securities Act Form 29 of Deere Finance for its fiscal
year ended October 31, 1994, a copy of which has been provided to
the Lenders.
9. CONDITIONS PRECEDENT
9.1 Closing. The closing of the transactions contemplated
herein shall take place at 2:00 p.m. (Toronto time) on April 5,
1995 at the offices of Tory Tory DesLauriers & Binnington, Aetna
Tower, Toronto-Dominion Centre, Toronto, Ontario or at such other
place as the Agent may direct.
9.2 Conditions Precedent to Establishment of Credit
Facility. The obligation of the Lenders to establish the Credit
Facility is subject to the fulfilment of the following conditions
precedent to the satisfaction of the Lenders on or prior to April
5, 1995:
(a) All proceedings to be taken in connection with the
transactions contemplated by this Agreement and all
documents incidental thereto shall be satisfactory in
form and substance to the Lenders, and the Lenders
shall have received certified copies (or actual
certificates where appropriate) of all documents which
they may reasonably request in connection with such
transactions and of the records of all corporate
proceedings in connection therewith, including:
(i) resolutions of the boards of directors of the
Borrowers authorizing the entering into of this
Agreement and the Guarantee and, in the case of
Deere Canada, the Subordination Agreement;
(ii) resolution of the board of directors of Deere U.S.
authorizing the entering into of the Subordination
Agreement;
(iii) the Certificates of Incorporation of each of
the Borrowers and Deere U.S. and all
amendments thereto;
(iv) the by-laws of each of the Borrowers and Deere
U.S.;
(v) certificates of compliance, status or good
standing, as the case may be, of each of the
Borrowers and Deere U.S. from the appropriate
federal, provincial and state government
departments; and
(vi) certificates of incumbency of each of the
Borrowers and Deere U.S.
(b) The Lenders shall have received the opinions of Fasken
Campbell Godfrey, special counsel to the Borrowers, of
Frank S. Cottrell or his successor as general counsel
to Deere U.S., and of Tory Tory DesLauriers &
Binnington, special counsel to the Lenders, dated April
5, 1995, in the forms of Schedules H, I and J hereto,
respectively.
(c) The Lenders shall have received the executed Guarantees
and Subordination Agreement.
(d) Except as otherwise disclosed in writing to the Lenders
prior to the date of this Agreement, on and as of the
date of this Agreement, there shall have been no change
in the financial condition of the Borrowers as shown on
the most recent fiscal year-end Financial Statements
furnished to the Lenders which, in the aggregate, is
material and adverse to the Deere Group.
(e) The USD Agreement shall have been executed and
delivered by the parties to the USD Agreement and all
conditions to the effectiveness of the USD Agreement
shall have been satisfied.
(f) All principal, interest and other amounts owing under
or pursuant to the credit facility established in
favour of the Borrowers pursuant to the loan agreement
made as of the 26th day of March, 1993 between the
Borrowers, certain banks and The Toronto-Dominion Bank,
as agent (the "Existing Loan Agreement"), shall have
been repaid in full and all obligations of the lenders
and banks under the Existing Loan Agreement shall have
been terminated.
9.3 Conditions Precedent to Drawdowns. The obligation of
the Lenders to make the initial and any subsequent Drawdown is
subject, in addition to the other provisions hereof, to all
representations and warranties contained in Article 8 hereof
(except as affected by transactions contemplated by this
Agreement) being true and correct in all respects on the date of
the Drawdown (limited, in respect of Sections 8.1 and 8.12, to
the date of the Initial Borrowing Date) and to no event having
occurred and continuing at the date of the Drawdown which
constitutes a Default or an Event of Default hereunder, and the
Borrower shall be deemed to have made a representation to this
effect to the Lenders on and as of the date of each Drawdown and
shall, if required by the Agent, provide a certificate of a
senior officer to this effect.
10. POSITIVE COVENANTS
Each of the Borrowers covenants with the Lenders that
so long as any one or more of the Lenders has any obligation
under the Credit Facility or so long as any indebtedness
hereunder remains outstanding, subject to the covenants below
applying to a Guarantor only from and after the date upon which
it becomes a Guarantor, and only so long as it continues to be a
Guarantor, in accordance with the provisions hereof:
10.1 Corporate Existence. It will, and will cause each
Guarantor to, except as occurs pursuant to a Permitted
Reorganization, carry on its business in a proper and efficient
manner consistent with sound business practices, keep or cause to
be kept proper books of account in relation to its business and,
subject to the other provisions of this Agreement, do or cause to
be done all things necessary to preserve and to keep in full
force and effect its corporate existence and that of its
Subsidiaries.
10.2 Financial, Monthly and Other Statements. Deere Canada
will forward to the Agent for delivery to the Lenders:
(a) Financial Statements for each of the first three
quarters of the fiscal year so soon as is reasonably
practicable after such Financial Statements are
available and, in any event, not later than 60 days
after the end of each such quarter;
(b) Financial Statements for each fiscal year so soon as is
reasonably practicable after such Financial Statements
are available and, in any event, not later than 120
days after the end of the fiscal year, accompanied by a
report of the auditors, without liability, indicating
that they are familiar with the provisions of this
Agreement and aware of the Events of Default herein set
out and either have or have not, in their audit of such
Financial Statements, but without having made any
special examination in this regard, become aware of any
such Event of Default having occurred and be
continuing, and the nature of any such Event of Default
of which they have become aware; and
(c) monthly reports, in the form of Schedule K hereto, for
each month during each fiscal year, certified by a
financial officer of the Borrower as being true and
correct in all material respects on and as of the
relevant month-end, as soon as available and in any
event not later than 30 days after the end of each such
month, showing the amount of Eligible Retail
Receivables, Eligible Wholesale Receivables and
Eligible Inventory as at the end of that month, a
reconciliation, if required, of the information therein
contained to generally accepted accounting principles,
the amounts of Net Worth, Subordinated Indebtedness,
Indebtedness and Indebtedness for borrowed money of the
Deere Group as of the end of the month, a
reconciliation, in the case of quarterly month-ends, of
the immediately preceding financial information to, if
required, generally accepted accounting principles, and
to the Financial Statements, and such other information
relating thereto as the Lenders may reasonably require.
10.3 Payment. It shall duly and punctually pay or cause to
be paid to the Lenders all principal and interest payable by it
hereunder and all other amounts payable hereunder on the dates,
at the places and in the manner set forth herein.
10.4 Ownership. Deere U.S. shall at all times be the owner,
directly or indirectly, of all issued and outstanding shares of
Deere Canada and Deere Finance, and Deere U.S. shall, either
directly or indirectly, at all times be the owner of all issued
and outstanding shares of each other member of the Deere Group.
10.5 Certificates. On the day or days in each year on which
Deere Canada forwards to the Lenders the Financial Statements
pursuant to subsection 10.2(a), the Borrower shall furnish to the
Lenders a certificate of the Borrower signed by a senior officer
of the Borrower stating that no condition, event or matter has
occurred and is continuing which constitutes a Default or an
Event of Default or, if the senior officer is unable to so
certify, the details in this regard.
10.6 Information about Litigation. It shall at any time and
from time to time forthwith upon obtaining any knowledge or
information relating to any actions, suits or proceedings against
the Borrower or a Guarantor which have been commenced, or which
it is reasonable to conclude will be commenced and of which a
senior officer of either the Borrower or a Guarantor has received
written notice, where such actions, suits or proceedings either
separately or in the aggregate are, or may be expected to be, in
the reasonable opinion of the Borrower, materially adverse to the
financial condition of the Deere Group or materially adverse to
the collective ability of the Deere Group to perform their
collective obligations hereunder or pursuant hereto or to the
Guarantees, as the case may be, provide to the Agent for
disclosure to the Lenders notice of such actions, suits or
proceedings.
10.7 Insurance. It will maintain and will cause each
Guarantor to maintain, with responsible insurers, insurance with
respect to its property and assets and its business against such
casualties, risks and contingencies and in such types and amounts
as are customarily, in accordance in all material respects with
Deere U.S. general business practices, maintained or caused to be
maintained and which is, in the opinion of the Borrower,
reasonable and prudent in the circumstances.
10.8 Notice of Default. It shall notify the Agent, for
disclosure to the Lenders, of any Default (provided that no such
notice need be made in respect of a Default if it is cured within
ten days after the occurrence thereof or before it becomes an
Event of Default, whichever period of time is shorter) or Event
of Default within ten Banking Days of the day on which an officer
of the Borrower becomes aware thereof.
10.9 Licences. Except as disclosed in writing to the Agent
prior to the execution hereof, it shall, and shall cause each
Guarantor to, maintain and preserve in good standing all required
licences, permits and approvals from any and all governments,
governmental commissions, boards or other agencies which are
material to the financial condition of the Deere Group.
10.10 Information and Inspection.
(a) It shall, and shall cause each Guarantor to, provide,
or afford the Agent the right to obtain, such information
pertaining to or affecting the Credit Facility to the extent that
the same is possessed or can be acquired without unreasonable
effort or expense, as the Agent, acting reasonably, deems
necessary or desirable.
(b) The Lenders or any of them shall have the right, at
reasonable times and without undue interference with the normal
operation of the relevant business and at the expense of such
Lenders (or, in the event that a Default or an Event of Default
shall have occurred and be continuing, at the expense of the
Borrower), to visit and to inspect any of the properties of the
Borrower or any Guarantor, to examine the books of account and
records of the Borrower or any such Guarantor, to make copies and
extracts therefrom, to discuss the affairs, finances and accounts
of the Borrower or any such Guarantor with, and to be advised as
to the same by, their respective officers, employees and
auditors.
10.11 Change of Auditors. It shall not make any change
in its auditors except to a nationally recognized firm of
Canadian chartered accountants at the time of such change.
10.12 Ratios. It shall cause the following ratios to be
maintained at all times:
(a) (i) 90% of the amount of Eligible Retail Receivables
plus (A) 60% of the aggregate amount of Eligible
Wholesale Receivables and Eligible Inventory; or
(B) Cdn.$200,000,000, whichever is lesser,
to
(ii) the principal amount of all Loans hereunder and
all other Indebtedness of the Deere Group for
borrowed money, other than Subordinated
Indebtedness,
to be 1:1 or more; and
(b) (i) Net Worth of the Deere Group less the amount of
aggregate principal amount of loans outstanding
pursuant to subsection 12.2(b) hereof
to
(ii) Indebtedness of the Deere Group less Subordinated
Indebtedness of the Deere Group
to be 0.20:1 or more.
10.13 Sale of Eligible Retail Receivables etc. It shall
utilize the proceeds, or necessary portion thereof, as the case
may be, of any sale of Eligible Retail Receivables and/or
Wholesale Receivables to prepay the Loans in accordance with
Section 2.13 (as if that Section made reference to a mandatory
repayment), if:
(i) such proceeds arise from a transaction or series
of related transactions and exceed Cdn.$5,000,000
or the Equivalent Amount in U.S. Dollars; and
(ii) such sale together with any Eligible Retail
Receivables and/or Eligible Wholesale Receivables
not included in the relevant monthly calculation
referred to in the balance of this Section 10.13,
if factored into the then most recent monthly
calculation of the ratio set out in subsection
10.12(a) on a retroactive basis, would cause
subsection 10.12(a) to have been breached,
in the order specified in Section 2.12 hereof, in an amount
which, if applied on a retroactive basis, would avoid the
aforesaid breach of covenant. For all purposes of this Section
10.13, a transaction described in clause (xv) of the definition
of "Permitted Encumbrances" shall be a sale of the relevant
Eligible Retail Receivables or Eligible Wholesale Receivables, as
the case may be.
11. NEGATIVE COVENANTS
Each of the Borrowers covenants with the Lenders that
so long as any one or more of the Lenders has any obligation
under the Credit Facility or so long as any indebtedness
hereunder remains outstanding, without the prior written consent
of the Lenders, subject to the covenants below applying to a
Guarantor only from and after the date upon which it becomes a
Guarantor, and only so long as it continues to be a Guarantor, in
accordance with the provisions hereof:
11.1 Reorganization. It shall not, and shall procure that
no Guarantor shall, enter into any corporate transaction (whether
by way of reconstruction, reorganization, consolidation,
amalgamation, arrangement, merger, dissolution, liquidation,
winding-up, sale or otherwise) whereby the jurisdiction governing
the Borrower or any Guarantor is changed or all or substantially
all of the undertaking, property and assets of the Borrower or
any Guarantor would become the property of any other Person or
the property of the continuing corporation resulting from any
such corporate transaction unless:
(a) if the transaction involves, directly or indirectly, a
surviving Person (i) which is to be a Borrower
hereunder, such surviving Person meets (as if they
applied to it), or (ii) which is to be a member of the
Deere Group, such surviving Person meets, in both such
cases, the requirements of clauses (i), (ii) and (iii)
of the definition of Deere Group;
(b) each surviving Person which is to be a Borrower
hereunder shall expressly assume the due and punctual
payment of the principal of and interest on the Loans,
the performance of all obligations pursuant to the
Borrower's Guarantee and the performance of every
covenant of this Agreement on the part of the Borrower
to be performed or observed (including, in the case of
Deere Canada, pursuant to the Subordination Agreement)
and each surviving Person which is to be a Guarantor
shall have assumed the performance of all obligations
pursuant to the Guarantee of that Person, in each case
by an assumption agreement, executed and delivered to
the Agent, in form reasonably satisfactory to the
Majority Lenders, and the Agent shall have received all
such opinions, in form reasonably satisfactory to the
Majority Lenders, with respect to the surviving Person
if it is to become a Borrower or a Guarantor as it was
entitled to receive hereunder at the inception of the
Credit Facility or at the time the Guarantor became a
Guarantor, as the case may be;
(c) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be
continuing; and
(d) the Borrower shall cause to be delivered to the Agent
an officers' certificate signed by two officers of the
Borrower stating that the transaction complies with
this Section 11.1 and that all conditions precedent
herein provided for relating to such transaction have
been complied with.
11.2 Negative Pledge. It shall not, and it shall procure
that no Guarantor shall, create, assume, incur or suffer to be
created, assumed or incurred or to exist, directly or indirectly,
any Mortgage on any of its assets to secure any Indebtedness,
other than Permitted Encumbrances.
11.3 Subordination Agreement. It shall not, and it shall
procure that no Guarantor shall, make any payment, or take any
other action, which would result in a breach of the terms and
conditions of the Subordination Agreement or of any other
Subordinated Indebtedness.
12. LIMITATIONS ON PAYMENTS
12.1 Payments in General. Except to the extent provided to
the contrary in this Article 12 or as otherwise required or
permitted hereunder, or except as consented to in writing by the
Majority Lenders, each of the Borrowers shall not, and each of
them shall ensure that no Guarantor shall, in any fiscal year of
the Borrower or the Guarantor, as the case may be, make any
payments of any sort whatsoever:
(a) to Deere U.S. or to any Affiliate of Deere U.S. which
is not a member of the Deere Group; or
(b) for the acquisition, other than by way of share
purchase or purchase by a Subsidiary, in any one
transaction or series of related transactions, of a
business: (i) if, after giving effect to such
acquisition, the acquiring company, if a Borrower,
would fail to meet (as if they applied to it), or, if
another member of the Deere Group, would fail to meet,
the requirements of clauses (i), (ii) and (iii) of the
definition of Deere Group, provided that this
prohibition shall not apply if the Borrowers provide
written notice to the Agent that the receivables and
inventory of the business so acquired shall not be
included in the definitions of Eligible Retail
Receivables, Eligible Wholesale Receivables and
Eligible Inventory and such receivables and inventory
are not so included by the Borrowers; or (ii) the
assets of which are not located substantially in
Canada.
Any Lender which fails to indicate in writing that it will not
consent to any such transaction within ten Banking Days after
having received written notice from the Borrower of a request for
consent shall be deemed to have consented to the transaction.
For purposes of this Article 12, "payments" means any payments or
dispositions of assets, including, without limitation, loans,
repayments of loans, contribution of surplus, equity investment,
distributions of earnings or capital, gifts, payments of
operating expenses, capital expenditures or transfers of assets.
12.2 Permitted Payments. Nothing hereinbefore in this
Article 12 contained shall prohibit at any time or from time to
time any of the following payments:
(a) dividend payments by Deere Canada and other
members of the Deere Group to Deere U.S. or any
Affiliate of Deere U.S. in amounts which, in the
aggregate, including all dividend payments made
from and after the Initial Borrowing Date to and
including the date of dividend payment, do not
exceed the amount which is 60% of the aggregate
net profits of the Deere Group for that period of
time as shown on or derived from their respective
statements of profit and loss forming part of the
Financial Statements covering all or a portion of
that period, and any amounts in excess of said
amount at any time when the ratio set out in
subsection 10.12(b) is 0.33:1 or more and will not
be reduced to less than 0.33:1 as a result of such
dividend payment;
(b) loan advances by Deere Canada to Deere U.S. so
long as the total aggregate principal amount
thereof outstanding does not at any time exceed
the amount of Subordinated Indebtedness owing by
Deere Canada to Deere U.S.;
(c) payments of principal and interest of and on
Subordinated Indebtedness to Deere U.S. by Deere
Canada effected without breaching the terms and
conditions of the Subordination Agreement and so
long as after any such payment of principal the
amount of Subordinated Indebtedness outstanding is
not less than the amount of loans by Deere Canada
to Deere U.S. referred to in subsection (b) above;
and
(d) payments for products, goods and services which
are in the ordinary course of business of the
Borrower or a Guarantor and which are made on
arm's length and commercially reasonable terms.
13. DEFAULT AND ENFORCEMENT
13.1 Events of Default. For the purposes of this
Article 13, the following events shall be applicable to a
Guarantor only from and after the date upon which it becomes a
Guarantor, and only so long as it continues to be a Guarantor, in
accordance with the provisions hereof. In this Agreement, "Event
of Default" shall mean any one of the following events:
(a) if the Borrower shall fail to pay, within two Banking
Days after the date upon which it is due, any portion
of the principal amount of any Loan in accordance with
its terms;
(b) if the Borrower shall fail to pay, within five Banking
Days after the date upon which it is due, any interest
on any Loan or any other amount due in respect of any
such Loan, or any other amount payable to the Lenders
under this Agreement;
(c) if the Borrower shall default in the performance of or
compliance with any of the provisions of Articles 11 or
12 hereof; provided that: (i) after the occurrence of
any such default, the Lenders shall not exercise any of
the remedies set forth in Section 13.2 hereof, but may
terminate the Borrowers' rights to obtain any further
Drawdown or any Conversion or Rollover into Bankers'
Acceptances or LIBOR Loans with an Interest Period in
excess of 30 days until the default is cured or waived,
if, within a period of five Banking Days after the
occurrence of such default, the Borrower provides the
Agent with a certificate of a senior officer of the
Borrower stating that such default occurred
inadvertently and the Borrower also provides a written
undertaking to diligently cure the same; and (ii) if
subclause (i) is applicable and such default is
remedied within 30 days thereafter, no Event of Default
shall occur or be deemed to have occurred hereunder;
(d) if the Borrower shall fail to remedy, within 30 Banking
Days after notice from the Agent or such longer period
(if any) to which the Lenders may agree, any failure to
perform or to comply with any other covenant or
obligation hereunder, including pursuant to
Section 4.3, 5.4 or 15.15, other than those referred to
in subsections (a), (b) and (c) above;
(e) if any representation or warranty in Article 8 made or
deemed to have been made on behalf of the Borrower
(i) herein or (ii) in any certificate delivered to the
Lender pursuant to this agreement (A) which is
expressed in terms of a material adverse change in the
financial condition of the Deere Group or the ability
of the Deere Group to perform the collective
obligations of the Deere Group under or pursuant to
this Agreement and the Guarantees or in terms of being
material to the financial condition of the Deere Group,
shall be untrue or incorrect in any respect on and as
of the date made or (B) which is not so expressed shall
be untrue or incorrect in any respect on and as of the
date made which is material and adverse to the
financial condition of the Deere Group or the ability
of the Deere Group to perform such collective
obligations, or if any information contained in any
other certificate or in any Financial Statements
hereafter delivered by the Borrower to the Lenders by
virtue of a requirement contained in this Agreement
shall be untrue or incorrect in any material respect,
on and as of the date made; provided that no Default or
Event of Default shall occur or be deemed to occur as a
result thereof if the untruth or error therein was
unintentional and if the correct or true information in
such certificate or in such Financial Statements would
not have disclosed a Default;
(f) if any of the Borrowers or Guarantors admits in writing
its inability to pay its debts generally as they become
due or otherwise acknowledges its insolvency;
(g) if any of the Borrowers or Guarantors institutes any
proceeding or takes any corporate action or executes
any agreement to authorize its participation in or
commencement of any proceeding:
(i) seeking to adjudicate it a bankrupt or insolvent,
or
(ii) seeking liquidation, dissolution, winding up,
reorganization, arrangement, protection, relief or
composition of it or any of its property or debt
or making a proposal with respect to it under any
law relating to bankruptcy, insolvency,
reorganization or compromise of debts or other
similar laws (including, without limitation, any
application under the Companies' Creditors
Arrangement Act (Canada), the Bankruptcy and
Insolvency Act (Canada) or any reorganization,
arrangement or compromise of debt under the laws
of its jurisdiction of incorporation) except as
part of a reorganization which is permitted
pursuant to section 11.1 hereof;
(h) if an order of a court having jurisdiction in the
premises is entered with respect to any of the
Borrowers or Guarantors:
(i) adjudicating it a bankrupt or insolvent;
(ii) ordering liquidation, dissolution, winding up,
reorganization, arrangement, protection, relief or
composition of it or any of its property or debt
or making a proposal with respect to it under any
law relating to bankruptcy, insolvency,
reorganization or compromise of debts or other
similar laws (including, without limitation, any
application under the Companies' Creditors
Arrangement Act (Canada), the Bankruptcy and
Insolvency Act (Canada) or any reorganization,
arrangement or compromise of debt under the laws
of its jurisdiction of incorporation); or
(iii) ordering or ratifying the appointment of a
receiver, trustee, agent, custodian or other
similar official for it or for any
substantial part of its properties and
assets;
and such order is not being contested in good faith by
appropriate proceedings and is not in any event stayed
or vacated within 90 days of its making, but provided
further than during such period the Lenders may
terminate the Borrowers' rights to obtain any further
Drawdown or any Conversion or Rollover into Bankers'
Acceptance or LIBOR Loans with an Interest Period in
excess of 30 days until the order is so stayed or
vacated;
(i) any creditor of any of the Borrowers or Guarantors or
any other Person shall privately appoint a receiver,
trustee or similar official for any substantial part of
such Borrower's or Guarantor's properties and assets
and such appointment is not being contested in good
faith by appropriate proceedings;
(j) if any encumbrancer takes possession of all the
property of any of the Borrowers or Guarantors or any
part thereof which is, in the reasonable opinion of the
Lenders, a substantial part thereof or if a distress or
execution or any similar process involving an amount in
excess of Cdn. $10,000,000 or the Equivalent Amount or
more be levied or enforced thereagainst and such levy
or enforcement is not stayed by reason of a pending
appeal or otherwise and remains unsatisfied for such
period as would permit such property or such part
thereof to be sold thereunder;
(k) (i) if any of the Borrowers or Guarantors makes default
beyond any period of grace provided with respect
thereto in payment of the principal of or interest or
premium on any Indebtedness in respect of which it is
obligated to make such payment (other than Indebtedness
owing hereunder, payables, or taxes (provided that it
is contesting the validity thereof in good faith by
appropriate proceedings timely instituted) incurred in
the ordinary course of business) in the amount that, in
the case of the Deere Group, when combined with similar
amounts owing by the others of such Persons, then
exceeds Cdn. $10,000,000 or the Equivalent Amount, or
in the performance or observance of any term, agreement
or condition in respect of such Indebtedness, where
such default gives the Person to whom such Indebtedness
is owed the right to cause such obligation to become
due prior to the date of its stated maturity, and
either such acceleration has commenced or proper notice
of it has been given, or (ii) if Deere U.S. and/or any
of its Affiliates makes any default which results in
acceleration of or proper notice of acceleration having
been given pursuant to any of the USD Agreement, the
U.S. $3,500,000,000 Credit Agreement dated as of April
5, 1995 among the USD Borrowers, certain financial
institutions and the USD Agent, as in effect from time
to time, or any agreement renewing, implementing or
refinancing the same, or in any other credit agreement
of Deere U.S. which provides a loan facility greater
than U.S. $750,000,000, provided that, except in the
case of the USD Agreement, during the period of five
Banking Days after the occurrence of any such default
hereunder, the Lenders shall not exercise any of the
remedies set forth in Section 13.2 hereof, except that
the Lenders may at their option terminate the
Borrowers' rights to obtain any further Drawdown or any
Conversion or Rollover into Bankers' Acceptances or
LIBOR Loans with an Interest Period in excess of 30
days until the default is cured or waived, and provided
further that, if within such five Banking Day period,
the default is cured or is waived by the holders of the
obligation concerned then the default under this
Section 13.1(k) shall be deemed not to have occurred
and shall not be an Event of Default;
(l) if any of the terms of a Guarantee or the Subordination
Agreement shall be breached in any material respect by
a Borrower, a Guarantor or Deere U.S.;
provided that no such Event of Default shall be deemed to have
occurred in respect of any Guarantor (other than Deere Canada and
Deere Finance) if the change in status of that Guarantor to a
Person not a member of the Deere Group would not result in or
give rise to the occurrence of any Default or Event of Default
resulting solely pursuant to Section 10.12 hereunder and, if such
is the case, (A) such Guarantor shall thereafter cease to be a
Guarantor and a member of the Deere Group for all purposes
hereof, (B) such former Guarantor shall be released from its
Guarantee hereunder, (C) no amount shall be attributable to the
former Guarantor in calculating the "Net Worth" of the Deere
Group, and (D) such former Guarantor shall not thereafter again
become a Guarantor and member of the Deere Group without the
consent of the Majority Lenders.
13.2 Remedies on Default. Upon the occurrence of any one or
more Events of Default, the Lenders may, at their option and
without limiting or restricting their rights and remedies
hereunder or at law or in equity but, for greater certainty, in
accordance with Section 14.14 hereof, by giving notice to the
Borrowers elect one or more of the following remedies with
respect to the Loans:
(a) not permitting any Drawdowns (although Rollovers
and Conversions with Interest Periods of 30 days
or less will be permitted hereunder unless and
until the Lenders make an election under
subsection (b) below); and
(b) declaring the principal amounts of all Loans
outstanding, all accrued and unpaid interest
thereon and all other amounts payable at any time
by the Borrowers to the Lenders hereunder to be
immediately due and payable;
each without presentment, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower. The
Lenders may, in connection with any action taken pursuant to
subsection (b) above, in their discretion, make Prime Rate Loans
in an aggregate principal amount not exceeding the aggregate face
amount of all outstanding Bankers' Acceptances (even if such
Loans result in the principal amount of the Loans exceeding the
Credit Facility Amount) and hold the proceeds of such Loans as
security for the obligations of the Borrower to the Lenders in
respect of such Bankers' Acceptances presented to them on the
maturity date thereof. Notwithstanding anything herein
contained, such Prime Rate Loans shall be interest free until the
aforementioned maturity dates of such Bankers' Acceptances and
the application of the proceeds of such Loans to pay the face
amount of such maturing Bankers' Acceptances.
13.3 Remedies Cumulative. The rights and remedies of the
Lenders hereunder are cumulative and are in addition to and not
in substitution for any other rights or remedies provided by law.
14. THE AGENT AND THE ADMINISTRATION OF THE LOANS
14.1 Authorization.
(a) Each Lender hereby irrevocably appoints and authorizes
the Agent to be its attorney in its name and on its behalf, to
exercise such rights or powers granted to such Lender under this
Agreement, the Guarantees and the Subordination Agreement,
including without limitation, the right to consent in writing to
matters requiring consent of the Lenders, to amend this Agreement
and to waive any Default hereunder or Event of Default hereunder,
all in accordance with Section 14.13 hereof, together with any
such powers as are reasonably incidental thereto.
(b) As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement thereof),
the Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Lenders, and
such instructions shall be binding upon all Lenders; provided,
however, that except as herein provided the Agent shall not be
required to take any action which exposes the Agent to liability
in such capacity, which could result in the Agent's incurring any
costs and expenses or which is contrary to this Agreement or
applicable law.
14.2 Dealings by Borrowers with Agent.
(a) Except as herein expressly provided, the Borrower shall
deal with the Agent in lieu of the Lenders for all purposes of
this Agreement.
(b) The Borrower may rely, and shall be fully protected in
so relying, without any obligation to inquire into the
correctness thereof, upon any action taken, notice, direction,
waiver, consent, determination, communication or agreement by the
Agent purporting to be on behalf of the Lenders hereunder, any of
which shall, as regards the Borrower, be deemed to be an action,
notice, direction, waiver, consent, determination, communication
or agreement of the Lenders.
(c) Where under this Agreement the Borrower is required to
deliver any documents to the Agent for forwarding to the Lenders,
the Borrower shall deliver a number of copies sufficient for such
forwarding.
14.3 Duties and Obligations of Agent. Neither the Agent
acting in such capacity nor any of its directors, officers,
agents or employees shall be liable to the Lenders for any action
taken or omitted to be taken by it or them under or in connection
with this Agreement, the Guarantees or the Subordination
Agreement except for its or their own gross negligence or wilful
misconduct. Without limiting the generality of the foregoing,
the Agent:
(a) may assume that there has been no assignment or
transfer by any of the Lenders of their rights
hereunder unless and until the Agent receives written
notice of the assignment thereof from such Lender and
the Agent receives the written agreement of the
assignee that such assignee is bound hereby as it would
have been if it had been an original party hereto in
lieu of such Lender (to the extent of such assignment)
in each case in form and substance satisfactory to the
Agent;
(b) may consult with legal counsel (including counsel for
the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it
in accordance with the advice of such counsel,
accountants or experts;
(c) shall incur no liability to the Lenders under or in
respect of this Agreement, the Guarantees or the
Subordination Agreement by acting upon any notice,
consent, certificate or other instrument or writing
(which may be by telegram, cable, telecopier or telex)
believed by it to be genuine and signed or sent by the
proper party or parties or by acting upon any
representation or warranty of the Borrower made or
deemed to be made hereunder;
(d) may assume that no Default or Event of Default has
occurred unless it has actual knowledge or actual
notice to the contrary;
(e) may rely as to any matters of fact which might
reasonably be expected to be within the knowledge of
any Person upon a certificate signed by or on behalf of
such Person;
(f) does not make any warranty or representation to any
Lender nor shall it be responsible to any Lender for
the accuracy or completeness of the data made available
to the Lenders in connection with the negotiation of
this Agreement or for any statements, warranties or
representations (whether written or oral) made in or in
connection therewith;
(g) shall not have any duty to ascertain or to enquire as
to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part
of the Borrower or to inspect the property (including
the books and records) of the Borrower or the
Guarantors;
(h) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement,
the Guarantees, the Subordination Agreement or any
instrument or document furnished pursuant hereto or
thereto; and
(i) shall not be responsible to any Lender for disclosing
to the Lenders information which it receives from the
Borrowers or the Guarantors other than in its capacity
as Agent hereunder.
14.4 Agent's Authority to Deal with Borrowers. With respect
to the portion of the Credit Facility established by it under
this Agreement, in its capacity as Lender, the Agent shall have
the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not the Agent. Subject as
herein provided, the Agent may accept deposits from, lend money
to, act as trustee under indentures of, and generally engage in
any kind of business with the Borrower, the Guarantors, any
Affiliate of Deere U.S. and any Person which may do business with
the Borrower, the Guarantors, Deere U.S. or any Affiliate of
Deere U.S. all as if the Agent were not the Agent hereunder and
without any duties to account therefor to the Lenders.
14.5 Indemnification. Each of the Lenders hereby agrees
with the Agent (solely in its capacity as Agent and Lender) to
indemnify the Agent (to the extent not reimbursed by the
Borrower), on a pro rata basis based on Commitment Ratios, from
and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent in any way
relating to or arising out of this Agreement, the Guarantees, the
Subordination Agreement or action taken or omitted by the Agent
hereunder or thereunder or in respect hereof or thereof provided
that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from
the Agent's gross negligence or wilful misconduct. Without
limiting the generality of the foregoing, each of the Lenders
agrees with the Agent to reimburse the Agent promptly upon demand
for its pro rata share (determined as aforesaid) of any
out-of-pocket expense (including counsel fees) incurred by the
Agent in connection with the preservation of any rights of the
Agent or the Lenders under, or the enforcement of, or legal
advice in respect of rights or responsibilities under, this
Agreement, the Guarantees and the Subordination Agreement to the
extent that the Agent is not reimbursed for such expenses by the
Borrower and each of the Lenders hereby agrees with the Agent to
reimburse the Agent for any amount paid to such Lender as its pro
rata share (determined as aforesaid) of payments required to be
made by the Borrower to the Lenders hereunder if and to the
extent that such Lender is notified by the Agent that the
Borrower has failed to make the payment to which such share is
referable as and when required, forthwith upon receipt of such
notice from the Agent.
14.6 Successor Agent. The Agent may, as hereinafter
provided, resign at any time by giving written notice thereof to
the Lenders and the Borrowers. The Borrowers shall have the
right to appoint a successor agent who shall be one of the
Lenders who is acceptable to the Majority Lenders, acting
reasonably (the "Successor Agent"). If no Successor Agent shall
have been so appointed and shall have accepted such appointment
within 30 days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may appoint a Successor
Agent acceptable to the Borrowers acting reasonably and shall
give immediate notice to the Lenders and the Borrowers after
having done so. Notwithstanding any such appointment, the
Majority Lenders shall have the right to appoint another
Successor Agent who shall be one of the Lenders and who is
acceptable to the Borrowers, acting reasonably. Upon the
acceptance of any appointment as Agent hereunder by a Successor
Agent, such Successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from
its further duties and obligations as Agent under this agreement.
After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article 14 shall enure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent
hereunder.
14.7 Procedure for Loans Other than Bankers' Acceptance. In
the case of borrowing by way of Loans other than Bankers'
Acceptances:
(a) The Borrower shall, with respect to each Loan other
than a Fixed Rate Loan (in connection with which the
Borrower shall deal directly with the relevant Lender),
make all Drawdowns, Conversions and Rollovers on a Pro
Rata basis. The Borrower shall give the appropriate
notices hereinbefore specified to the Agent which
notice shall state the principal amount of the Loan and
all relevant particulars thereof and shall otherwise be
given as required by, and in accordance with, Article 2
hereof. Forthwith upon the receipt of such notice, the
Agent shall give notice to each of the other Lenders of
the principal amount of the relevant Drawdown,
Conversion or Rollover and the Pro Rata share of such
Lender thereof and all other relevant particulars
thereof.
(b) Each Lender will, in the case of Drawdowns, remit the
amount required to be advanced by it to the Agent no
later than 11:00 a.m. (Toronto time) on the date on
which the Drawdown is to occur addressed to, until
notified otherwise, The Toronto-Dominion Bank,
International Centre, Toronto, if in Canadian Dollars,
and The Toronto-Dominion Bank, New York Branch, for
credit to International Centre, Toronto, Agency
Administration, if in U.S. Dollars, by way of same-day
funds under telex advice payable to The
Toronto-Dominion International Centre, Toronto, for
credit Agency Administration Service Account #2131891,
if in Canadian Dollars and #2173698, if in
U.S. Dollars, to the attention of the Manager, Agency
Administration (or as otherwise instructed by notice
from the Agent), stating "Re: John Deere Limited".
(c) The Agent will make the funds remitted to it in
accordance with subsection 14.7(b) hereof available to
the Borrower on the date on which the Drawdown is to
occur by crediting the Borrower's account maintained
with the Agent at the Designated Branch of the Agent
(or causing such account to be credited) with like
same-day funds in the aggregate amount of such funds so
remitted to it, in like currency. To facilitate the
transactions contemplated hereunder, the Borrower shall
maintain accounts with the Agent at the Designated
Branch of the Agent as long as this Agreement remains
in force.
(d) In the case of Conversions or Rollovers, the Agent
shall forthwith notify each Lender of its obligation,
if any, to advance funds, each Lender shall cause the
Conversion or Rollover, as the case may be, requested
aforesaid to occur on the appropriate date with respect
to its Pro Rata share of the principal amounts of the
relevant Loans in respect of which said Conversion or
Rollover, as the case may be, is occurring, any Lender
required to advance additional funds as a result
thereof shall forthwith do so in accordance with
subsection 14.7(b) above and the Agent shall forthwith
remit such funds to the Lenders entitled to receive the
same.
14.8 Procedure for Bankers' Acceptances. In the case of a
borrowing by way of Bankers' Acceptances (other than All-in
Bankers' Acceptances (in connection with which the Borrower shall
deal directly and solely with the accepting Lender)):
(a) The Borrower and each Lender shall follow the
procedures specified in subsection 6.1(d) above;
(b) Each Lender shall, in the case of Drawdowns by way of
Bankers' Acceptance, make such Bankers' Acceptances
available at the BA Branch on the relevant date of
acceptance to such Person as the Agent specifies (in
accordance with the instructions contained in the
request of the Borrower in respect of such borrowing)
upon receipt from such Person of immediately available
Canadian Dollars in an amount which is equal to the
face amount of the Bankers' Acceptance less the amount
of discount applicable thereto;
(c) Each Lender shall, immediately after receiving the
funds referred to in subsection (b) above, pay in
same-day Canadian Dollars by way of Canadian Dollar
wire transfer to the Agent for credit to the Borrower's
account maintained at the Designated Branch such amount
as is referred to in subsection (b) above less the
amount of the Bankers' Acceptance fee due to it, as
calculated in accordance with Section 6.1;
(d) The Agent will make such funds as are paid to the
Designated Branch pursuant to subsection (c) above
available to the Borrower on the relevant date of
acceptance by crediting the Borrower's account
maintained with the Agent at the Designated Branch (or
causing such account to be credited) with like funds,
by way of same-day funds, in the aggregate amount of
such funds;
(e) In the case of a Rollover of a Bankers' Acceptance,
each Lender accepting a new Bankers' Acceptance shall
do so in accordance with the procedure set out in
subsections (a) and (b) above and shall comply with
subsections (c) and (d) above only in respect of the
excess of the face amount of the new Bankers'
Acceptance to be issued over the face amount of the
maturing Bankers' Acceptance; otherwise, instead of
then complying with subsections (c) and (d) above, each
Lender shall, in order to satisfy the continuing
liability of the issuing Borrower to the Lender for the
face amount or portion thereof, as the case may be, of
the maturing Bankers' Acceptance, receive for its own
account the proceeds of such new Bankers' Acceptance,
or portion thereof, as the case may be, net of the
Bankers' Acceptance fee or portion thereof, as the case
may be, due to it, as calculated in accordance with
Section 6.1, and the issuing Borrower shall on the
maturity date of the maturing Bankers' Acceptance pay
directly to such Lender an amount equal to the positive
difference, if any, between the face amount of the
maturing Bankers' Acceptance or portion thereof, as the
case may be, and the net proceeds from the new Bankers'
Acceptance or portion thereof, as the case may be, as
aforesaid;
(f) In the case of a Conversion into a Bankers' Acceptance,
each Lender accepting a Bankers' Acceptance shall do so
in accordance with subsections (a) and (b) above and
shall comply with subsections (c) and (d) above only in
respect of the excess of the face amount of the
Bankers' Acceptance to be issued over the principal
amount of Loan being converted; otherwise, instead of
complying with subsections (c) and (d), each Lender
shall, in order to satisfy the continuing liability of
the issuing Borrower to such Lender for the amount of
the converted Loan, receive for its own account the
proceeds of the Bankers' Acceptance, or portion
thereof, as the case may be, net of the Bankers'
Acceptance fee due to it, as calculated in accordance
with Section 6.1, and the Borrower shall on the
Conversion Date pay to such Lender the positive
difference, if any, between the principal amount, or
portion thereof, as the case may be, of the Loan and
the net proceeds of the Bankers' Acceptance, or portion
thereof, as the case may be, as aforesaid; and
(g) In the case of a Conversion of a Bankers' Acceptance
into another type of Loan, each Lender shall advance to
the Agent, as specified in Section 14.7 above, the
amount of its Loan and shall record the obligation of
such Borrower to such Lender by way of Loan of the type
into which the obligation has been converted and the
Agent shall disburse the monies to satisfy the face
amounts of maturing Bankers' Acceptances or, if the
Borrower has paid such amounts, in accordance with
subsection 14.7(c) above.
14.9 Failure of Lender to Advance Loan. Unless the Agent
has been notified by a particular Lender within one Banking Day
after such Lender receives notice of the Drawdown from the Agent
that such Lender will not make available to the Agent the Loan or
Loans to be made available by such Lender, the Agent may assume
that such Lender has made such Loan or Loans available to the
Agent on the date on which the Drawdown is to occur in accordance
with the provisions hereof and the Agent may, in reliance upon
such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent such Lender shall not
have so made such Loan or Loans available to the Agent, such
Lender agrees with the Agent to pay to the Agent forthwith on
demand the principal amount of such Loan or Loans and such Lender
agrees with the Agent to pay all reasonable costs, charges and
expenses (including borrowing costs) incurred by the Agent in
connection therewith. If such Lender shall fail to pay such
principal for five Banking Days after such demand, the Borrower
shall repay such principal to the Agent forthwith on demand. The
Agent shall, if requested by such Lender, set out the amount
payable to the Agent pursuant to this Section 14.9, together with
appropriate details of the calculation thereof, in a certificate
delivered by the Agent to the Borrower or such Lender and any
such certificate shall be conclusive and binding, for all
purposes, absent manifest error. If such Lender makes the
payment to the Agent required herein within such five Banking
Days, the amount (otherwise than in respect of such costs,
charges and expenses of the Agent) so paid shall constitute such
Lender's Loan or Loans. In the event such Lender does not make
such payment to the Agent in accordance with this Section 14.9
within five Banking Days of the applicable Drawdown, the
Borrowers may exercise or pursue any other rights, remedies,
powers and privileges against such Lender as are provided by law
or by contract, including, without limitation, the right to
replace such Lender.
14.10 Payments in respect of Loans.
(a) Except as otherwise provided in this Agreement,
including in Section 14.14 in the situation therein specified,
and subject, with respect to Fixed Rate Loans and All-in Bankers'
Acceptances, to subsection 14.10(b), the Borrower shall make any
prepayments and repayments (which shall, for this purpose,
include the deposit of any monies pursuant to subsection 2.13(b))
of each of the Loans together with payments of interest in
respect thereto, on a Pro Rata basis. The Borrower shall make
all such payments to the Agent on behalf of the Lenders. The
Borrower shall give notice to the Agent of all prepayments and
repayments of Loans that it intends to make as required by and in
accordance with the provisions of this Agreement. Forthwith upon
the receipt of such notice, the Agent shall give notice to each
of the other Lenders of the amount of such prepayments or
repayments (forming part of such aggregate) to be made to it on
such day and all other relevant particulars of such prepayments
or repayments.
(b) Any repayment by the Borrower, on maturity, of a Fixed
Rate Loan, and any payment made by the Borrower to satisfy the
amount owing pursuant to an All-in Bankers' Acceptance on the
maturity thereof, at any time prior to a declaration pursuant to
subsection 13.2(b), shall be made in accordance with the terms
and conditions of the Fixed Rate Loan or All-in Bankers'
Acceptance, as the case may be. After a declaration pursuant to
subsection 13.2(b) occurs, the provisions of Section 14.14 shall
apply to the repayment of Fixed Rate Loans and All-in Bankers'
Acceptances.
(c) Forthwith after receipt of any payment or prepayment of
any Loans or any payment of interest in respect thereof, the
Agent shall, except as otherwise provided in this Agreement,
remit to each Lender its Pro Rata share of such payment or
prepayment. If and to the extent that the Agent remits any
amount to the Lenders on the assumption that the Borrower will
make or has made any payment or prepayment of any Loans or any
payment of interest in respect thereof to the Agent when such
payment or prepayment is due (which assumption the Lenders agree
that the Agent shall be entitled to make) and the Borrower does
not make or has not made such payment or prepayment, each Lender
shall pay to the Agent forthwith on demand its Pro Rata share of
the amount of such payment or prepayment and the Borrower agrees
with the Agent to pay to the Agent forthwith on demand all
reasonable costs, charges and expenses (including borrowing
costs) incurred by the Agent in connection with such payment or
prepayment or which the Agent would have incurred if it had
borrowed the amount of such payment or prepayment.
(d) The Agent and the Lenders agree that any monies
deposited with the Agent pursuant to the provisions of
subsection 2.13(b) shall be dealt with by the Agent in the manner
which all Lenders agree is equitable in the circumstances.
14.11 Redistribution of Payments.
(a) If at any time any Lender (an "Overpaid Lender") has
received or recovered any amount (an "Excess Amount") in payment
on account of the obligations of the Borrower to such Overpaid
Lender in respect of any Loan other than an Excluded Loan
(whether by means of a voluntary or involuntary payment by the
Borrower, through the exercise of a right of set-off or
otherwise) in excess of the Pro Rata share of such Overpaid
Lender of the aggregate of all payments on account of the
obligations of the Borrower to the Lenders in respect of such
Loan under this Agreement, then:
(i) such Overpaid Lender shall pay to the Agent an
amount equal to the Excess Amount;
(ii) subject to the proviso at the end of this
subsection 14.11(a), the Agent shall treat such
payment as a payment made to it by the Borrower in
respect of this Agreement pursuant to such Loan to
Lenders other than such Overpaid Lender and shall
distribute such payment among the Lenders other
than such Overpaid Lender on a Pro Rata basis;
(iii) subject to the proviso at the end of this
subsection 14.11(a), as between the Borrower
and such Overpaid Lender, such Excess Amount
shall be deemed not to have been paid;
(iv) subject to the proviso at the end of this
subsection 14.11(a), as between the Borrower and
each Lender other than such Overpaid Lender, the
portion of such Excess Amount received by such
Lender shall be deemed to have been paid by the
Borrower to such Lender in respect of such Loan on
the day of the original receipt thereof by the
Overpaid Lender; and
(v) the Agent shall give notice to the Borrower of all
relevant particulars of the payment to the Agent
of such Excess Amount and the redistribution by
the Agent of such payment;
provided that if such Overpaid Lender is subsequently required
(whether by order of a court or otherwise) to repay any portion
of such Excess Amount to or for the account of the Borrower, each
Lender other than such Overpaid Lender shall forthwith pay its
Pro Rata share of such portion to the Agent for the account of
such Overpaid Lender pursuant to such Loan. For the purposes of
the proviso to this Section 14.11, the Pro Rata share of any
Lender other than an Overpaid Lender shall be calculated without
inclusion of any amounts in respect of an Overpaid Lender in the
amounts payable to or by the Lenders.
(b) The amount of any prepayment made of a Fixed Rate Loan
or All-in Bankers' Acceptance in contravention of
subsection 2.13(c) or of any repayment made of a Fixed Rate Loan
or All-in Bankers' Acceptance in contravention of
subsection 14.10(b) shall, subject to the other provisions of
this Agreement, forthwith after receipt by the relevant Lender of
written notice from the Agent in this regard, be returned to the
Borrower and the Borrower shall be obligated to pay interest
thereon at the rates which otherwise would have applied had such
contravention not occurred but only from the date of return of
the amount to the Borrower.
14.12 Other Payments. The Borrower shall make all
payments to be made by it under this Agreement with respect to
each Loan other than the payments referred to before in this
Article 14 and any amount payable (a "cost reimbursement") by the
Borrower to any Lender in respect of any cost or expense incurred
by such Lender, to the Agent, who shall distribute such payments,
other than any cost reimbursement, on a Pro Rata basis in respect
of each Loan and who shall distribute any cost reimbursement to
the Lender that incurred the cost or expense giving rise to the
entitlement thereto.
14.13 Action by and Consent of Lenders: Waiver and
Amendments.
(a) Where the terms of this Agreement, the Guarantees or
the Subordination Agreement refer to any action to be taken
hereunder by the Lenders or to any such action that requires the
consent or other determination of the Lenders, the action taken
by and the consent or other determination given by the Majority
Lenders shall, except to the extent that this Agreement expressly
provides to the contrary, constitute the action or consent herein
or therein referred to and the Agent may exercise its powers
under Section 14.1 hereof based upon such action, consent or
other determination; and, without limitation, for greater
certainty any election under Section 13.2 of this Agreement, the
Guarantees or the Subordination Agreement and any demand for
payment under this Agreement, the Guarantees or the Subordination
Agreement shall be made or taken only with the consent of the
Majority Lenders and any action so taken shall be binding on all
the Lenders and all the Lenders shall cooperate in all ways
necessary or desirable to implement and effect any action so
taken or otherwise taken hereunder with the consent of or on the
instructions of the Majority Lenders.
(b) Any provision of this Agreement may be amended only if,
and shall be amended if, the Borrowers and the Majority Lenders
so agree in writing (unless otherwise provided herein that such
consent may be deemed to have been given) and any Default or
Event of Default may be waived or consented to before or after it
occurs only if the Majority Lenders so agree in writing except
that:
(i) an amendment or waiver (other than a consequential
amendment resulting from action taken in
accordance with other provisions of this
agreement) which changes or relates to:
(A) the forgiving of, or maturity date of, any
Loan (other than Fixed Rate Loans) under this
Agreement owing by the Borrower to any
Lender, other than an extension of time for
payment of up to 180 days;
(B) the rates or dates of payment of interest
payable with respect to any Loan (other than
Fixed Rate Loans) payable under this
Agreement;
(C) the definition of Majority Lenders hereunder;
(D) Section 14.10 - Payments in Respect of Loans;
(E) this Section 14.13(b) - Action by and Consent
of Lenders: Waiver and Amendments;
(F) Section 14.12 - Other Payments;
(G) Section 14.14 - Enforcement;
(H) Section 15.5 - Amendment;
(I) the Subordination Agreement;
(J) the Guarantees; or
(K) an increase in the amount of the Credit
Facility
shall (notwithstanding subsection 14.13(a) hereof)
require the agreement of all the Lenders;
(ii) an amendment or waiver which changes or relates to
the rights or obligations of the Agent, save and
except for removal of the Agent under
Section 14.6, shall (notwithstanding
subsection 14.13(a) hereof) also require the
agreement of the Agent thereto;
(iii) an amendment or other agreement which
increases the amount of the Credit Facility
shall (notwithstanding subsection 14.3(a)
hereof) also require the agreement of all of
the USD Banks; and
(iv) any amendment which has the effect of increasing
the Commitment of any Lender shall require the
agreement of that Lender.
(c) Any such waiver and any consent by the Agent or any
Lender or the Majority Lenders or all of the Lenders, as the case
may be, may be given subject to any conditions thought fit by the
Person giving that waiver or consent. Any waiver or consent
shall be effective only in the instance and for the purpose for
which it is given. No failure on the part of the Agent or any of
the Lenders in exercising any right or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or remedy preclude any
other right or remedy in law, by statute, equity or otherwise
conferred.
14.14 Enforcement.
(a) Each Lender hereby acknowledges that the remedies
hereinafter referred to are provided in respect of each Loan.
Notwithstanding the preceding sentence, to the extent permitted
by applicable law each remedy provided hereunder, under the
Guarantees and the Subordination Agreement shall be exercised not
severally in respect of each Loan, but collectively in respect of
all Loans (although not all remedies must be exercised,
collectively or otherwise), upon the decision of the Majority
Lenders; accordingly, subject only to subsection (b) below, each
of the Lenders hereby covenants and agrees that it shall not be
entitled to take any action hereunder or thereunder including,
without limitation, any election of remedies in respect of an
Event of Default hereunder but that any such action shall be
taken only with the prior written agreement of the Majority
Lenders; each of the Lenders hereby further covenants and agrees
that upon any such written consent being given by the Majority
Lenders, it shall cooperate fully with the other Lenders to the
extent required in the collective exercise of such rights; and
each of the Lenders and the Borrower further covenants and agrees
that all proceeds from the exercise of such rights, to the extent
permitted by applicable law, are held for the benefit of all of
the Lenders and shall be shared among the Lenders in accordance
with this Section 14.14(a) and each of the Lenders acknowledges
that all costs of the exercise of such rights shall be shared pro
rata based upon the respective aggregate principal amounts of
Loans which each Lender has outstanding at the time or times of
payment of such costs and that all proceeds received from any
exercise of such rights (including, without limitation, all
amounts for which the Agent is required to be indemnified under
the provisions hereof) shall be shared among the Lenders pro rata
based upon the respective aggregate principal amounts of Loans
which each Lender has outstanding at the relevant time or times
of sharing.
To the extent any Lender receives or is entitled to receive,
after a declaration in accordance with subsection 13.2(b), any
amount hereunder in excess of the amount of indebtedness owed to
it hereunder, it shall hold such excess in trust on behalf of and
for the benefit of the other Lenders entitled thereto.
Notwithstanding subsection 14.13(a) hereof and the foregoing
provisions of this Section 14.14(a), but subject to subsection
(b) below, in the event that the Lenders have the right to sell,
to release or otherwise to dispose of any assets of the Borrower
(including, without limitation, any assets in which the Lenders
have taken any security interest of any kind), no such assets
shall be sold, released or otherwise disposed of except with the
consent of all the Lenders.
(b) Notwithstanding subsection (a) above, the Lenders agree
that if the Borrowers have not, on or before the second
anniversary of the Loan Termination Date in respect of any
Lender, repaid such Lender in accordance with Section 2.14 of
this Agreement, such Lender (an "Exercising Lender") shall be
entitled to exercise any or all remedies available to it
hereunder or by applicable law, notwithstanding that there has
not been a decision of the Majority Lenders in accordance with
subsection (a) above. Each of the Lenders hereby covenants that
it will cooperate fully with an Exercising Lender to the extent
required for such Exercising Lender to exercise its rights and
remedies, provided that such cooperation shall not require the
expenditure of funds by the other Lenders; and provided that all
proceeds from the exercise by an Exercising lender of its rights
hereunder and at law shall be held by it for its own account only
and not subject to the pro rata sharing set out in subsection (a)
above.
(c) The Lenders agree that, if an Event of Default shall
occur, each Lender shall promptly inform the Agent, which shall
thereupon inform each other Lender, forthwith after it becomes
aware thereof and the Lenders acting through the Agent shall use
their best efforts to arrange a vote of the Lenders on taking
action (whether enforcement, waiver or other action) in respect
thereof so soon as is reasonably practicable, and in any event
not later than 30 days, after the Lenders become aware thereof.
14.15 Set-off. Each of the Lenders agrees with each of
the other Lenders that if any right of set-off shall be exercised
by it in connection with any obligations of the Borrower to any
of the Lenders hereunder or under the Guarantees or otherwise in
respect hereof, as the case may be, then it shall promptly so
advise the Agent which shall thereupon advise each of the other
Lenders and, if and to the extent permitted by applicable law,
the Lenders shall share all such set-offs in accordance with the
provisions of Section 14.14 hereof, provided that none of the
Lenders shall be liable hereunder to any of the other Lenders by
reason of failure to exercise any right of set-off or to exercise
validly any right of set-off or by reason of any restriction upon
any such sharing.
14.16 Independent Appraisal.
(a) Each of the Lenders acknowledges to and agrees with
each of the other Lenders and the Agent that:
(i) it has satisfied itself, and has not in any way
relied upon any other Lender or the Agent, as to
this Agreement, the matters referred to therein
and the enquiries and information leading to the
entering into of this Agreement;
(ii) it has not relied, and will not hereafter rely, on
any other Lender or the Agent in connection with
the transactions contemplated hereby, the
extension of credit hereunder, or the exercise of
any rights hereunder, under the Guarantees or the
Subordination Agreement; and
(iii) it has been, and will continue to be, solely
responsible for making its own independent
appraisal of and investigation into the
financial condition, creditworthiness,
condition, affairs, status and nature of the
Borrowers.
(b) Without limiting the generality of subsection 14.16(a)
hereof, each Lender confirms to the Agent that it has not relied,
and will not hereafter rely, on the Agent:
(i) to check or to enquire on its behalf into the
adequacy, accuracy or completeness of any
information provided by the Borrower or any other
Person under or in connection with this Agreement
or the transactions herein contemplated (whether
or not such information has been or is hereafter
distributed to such Lender by the Agent); or
(ii) to assess or to keep under review on its behalf
the financial condition, creditworthiness,
condition, affairs, status or nature of the
Borrowers.
14.17 Liability of Lenders inter se. Each of the
Lenders hereby agrees with each of the other Lenders that, except
as otherwise herein expressly provided, none of the Lenders has
or shall have any duty or obligation, or shall in any way be
liable to any of the other Lenders, in connection with this
Agreement or any action taken or omitted to be taken in, under or
in connection herewith.
14.18 Several Liability. The obligations of each Lender
under this Agreement are several and any failure of a Lender to
perform its obligations under this Agreement shall in no way
relieve any of the other Lenders from its obligations under this
Agreement nor require any of the other Lenders to perform the
obligations of such defaulting Lender.
14.19 Agency Fees. The Borrowers shall pay to the Agent
for its services as such hereunder from time to time such fees as
the Borrowers and the Agent shall agree to. Notwithstanding the
payment by the Borrowers of the Agent's fees, the Agent shall at
all times be acting exclusively as the agent of Lenders and not
of the Borrowers.
15. GENERAL
15.1 Payment of Expenses. Whether or not the transactions
contemplated by this Agreement shall be consummated, the
Borrowers shall, in the manner agreed by them, failing which
agreement the obligation shall be joint and several, pay all
reasonable out-of-pocket expenses of the Agent, including the
reasonable fees and disbursements of any lawyers retained by the
Agent incurred in connection with the preparation of this
Agreement or any amendment or modification hereof or thereof or
any waiver of any of the provisions hereof or thereof, and also
shall pay all reasonable out-of-pocket expenses of the Lenders in
connection with the protection and enforcement of the rights of
the Lenders provided for herein, including in connection with the
collection of all amounts owing hereunder and under any
instrument issued pursuant hereto.
15.2 Binding Effect and Assignment. This Agreement shall be
binding upon and shall enure to the benefit of the parties hereto
and their respective successors and assigns permitted by this
Section 15.2 but, except as specifically provided herein, none of
the foregoing nor the benefit thereof may be assigned by the
Borrowers or any of them. No Lender shall, except on the terms
hereinafter in this Section 15.2 set out or as otherwise provided
by this Agreement including, without limitation, Sections 4.3,
5.4 and 15.15, grant a participation in or assign those things
enuring to its benefit as herein provided to any other Person
before or after an Event of Default.
Any Lender may grant a participation in or assign the
whole or any part of any Loans made by it hereunder or its
Unutilized Commitment to one or more Persons provided that:
(i) such Person or Persons is or are not non-residents
of Canada within the meaning of the Income Tax Act
(Canada);
(ii) any such assignment occurs concurrently with the
related assignment by the Lender's Affiliated USD
Bank to the assignee's Affiliated USD Bank under
subsection 10.5(d) of the USD Agreement and in the
percentage there contemplated; and
(iii) the assigning Lender pays to the Agent a
registration and processing fee of Cdn.
$2,500.
In respect of such assignment or participation, the
granting or assigning Lender shall remain responsible for the
performance of such Lender's obligations under this Agreement
unless, in the case of an assignment:
(A) the Borrower has, in its sole discretion,
consented in writing to such assignment; and
(B) the assignee enters into an agreement with the
Borrowers and the Lenders under which such
assignee assumes such obligations and agrees to be
bound by all the terms and conditions of this
Agreement as if such assignee had been an original
party hereto.
If the requirements enumerated in (A) and (B) have been
satisfied in respect of any assignment, the assigning Lender
shall be released from its obligations hereunder to the Borrowers
and the other Lenders and the Borrower and the other Lenders
shall be released from their respective obligations hereunder to
the assigning Lender to the extent of such assignment and
assumption. Notice of the Borrower's consent or lack thereof
shall be given by the Borrower within one Banking Day after
request therefor has been received from the Lender, failing which
notice the Borrower shall be deemed to have consented.
The Lender granting a participation or assigning an
interest pursuant to this Section 15.2 may, subject to the
requirement that such participant or assignee enter into an
agreement with the Borrowers and the Agent to the effect set
forth in Section 15.8, provide any participant or assignee with
the Financial Statements and all other information provided or to
be provided to it in connection with this Agreement.
Each such assignment shall be made without recourse to
such assigning Lender and without any representation or warranty,
express or implied, by such assigning Lender, except customary
representations and warranties as to the legal and beneficial
ownership by such assigning Lender of the rights so assigned and
as to the validity of such assignment by such assigning Lender.
15.3 Benefit of Agreement. Notwithstanding the repayment of
all Loans required to be paid on the Loan Termination Date, in
accordance with Section 2.14, and except as specifically
otherwise provided in clause (iv) of Section 4.3, the terms and
conditions hereof shall continue to govern all other Loans,
including Fixed Rate Loans, All-in Bankers' Acceptances and any
other Loans to which the Lenders have consented in accordance
with subsection 2.4(c) above, until repayment in full thereof.
15.4 Entire Agreement. Except for any other instrument
delivered hereunder or in connection herewith, including the
Guarantees and any agreement contemplated thereunder, and for the
USD Agreement, this Agreement constitutes the entire agreement
between the Lenders and the Borrower with respect to the subject
matter hereof. For greater certainty, this Agreement supersedes
and replaces in all respects the commitment letter dated March 2,
1995 (and accepted by the Borrowers on March 15, 1995) provided
by the Agent to the Borrowers and any and all other commitment
letters provided to or by other Lenders with respect to this
Agreement.
15.5 Amendment. This Agreement may not be amended or
modified in any respect except in accordance with
subsection 14.13(b) hereof.
15.6 Waiver. No failure or delay on the part of the Agent
or Lenders in exercising any right or privilege shall operate as
a waiver thereof by the Agent or Lenders unless made by
instrument in writing and signed by a senior officer of the
Agent. Any waiver or consent by the Agent will not preclude the
further or other exercise by the Agent or, subject to
subsection 14.1(a), the Lenders of any right, power or privilege
hereunder which is the subject of such waiver or consent.
15.7 Communication. Subject to the express provisions
herein to the contrary, all notices and other communications
provided for or permitted hereunder shall be in writing,
personally delivered to an officer or other responsible employee
of the addressee or sent by telecopy or other like means of
electronic transmission of written messages to the applicable
address set forth below or to such other address as any party
hereto may from time to time designate to the other in such
manner.
Any notice or other communication so personally
delivered shall be deemed to have been validly and effectively
given on the date of such delivery. Any notice or other
communication so sent by telecopy or other like means of
electronic transmission of written messages shall be deemed to
have been validly and effectively given on the Banking Day next
following the day on which it is sent.
Notwithstanding the foregoing, any notice to be given
by the Borrower under Sections 2.5, 2.7, 2.8, 2.10, 2.11, 2.13,
4.2, 5.1, 6.1, 13.1(c), 14.7, 14.8 or 15.2 hereof may be given by
telephone provided that, in the case of each Section other than
Section 15.2, the Borrower delivers or sends to the Agent or the
relevant Lender a written confirmation thereof in accordance with
the provisions of this Section 15.7 not later than two Banking
Days after the day on which such notice is given by telephone.
With respect to any notice to the Borrowers, one copy
of such notice only need be given in respect of all Borrowers,
delivered to the address specified below.
Communications shall be addressed as follows:
(i) if to the Borrowers or the Guarantors:
John Deere Limited
P.O. Box 1000
Grimsby, Ontario
L3M 4H5
Attention: R.W. Hoffman
Vice-President and Treasurer
Telephone: (416) 945-9281
Telecopier: (416) 945-0341
with a copy to:
Deere & Company
John Deere Road
Moline, Illinois
U.S.A.
61265
Attention: Treasurer
Telecopier: (309) 765-5021
(ii) if to the Agent:
The Toronto-Dominion Bank
Agency Administration
Corporate & Investment Banking Group
55 King Street West and Bay Street
7th Floor
P.O. Box 1
Toronto Dominion Centre
Toronto, Ontario
M5K 1A2
Attention: Manager Agency
Telephone: (416) 982-3706
Telecopier: (416) 982-5535
(iii) if to the Lenders, at the addresses set out
below their names on the signature pages
hereof.
15.8 Confidentiality. The Agent and the Lenders shall,
subject as hereinafter provided, keep confidential from any third
party any data or information received by them from the Borrower
pursuant to this Agreement which is confidential or which is
designated in writing as such by the Borrower except to the
extent that such information was not confidential when received
by the Agent, except as required by law, rule, regulation or
official direction or as may be necessary to protect as against
the Borrowers the interests of the Lenders or any of them under
this Agreement. Notwithstanding the foregoing, the Agent and
Lenders shall use their best efforts and take all reasonable
steps to provide that any confidential data or information
received by them from the Borrower pursuant to this Agreement
which is disclosed to employees of the Agent or the Lenders or
for such other permitted purposes or otherwise as a result of the
aforesaid exceptions and that such data or information is so
disclosed, in the first two instances, only to the extent
necessary for purposes of the administration of the Loans and, in
all cases, on the condition that such information and data shall
be kept confidential except for such purposes. Notwithstanding
any other provision of this Section 15.8, the Agent and the
Lenders may make available any confidential data or information
received by them pursuant to this Agreement to:
(i) any Person to which such Lender has granted a
participation or assigned an interest in its
Commitment and outstanding Loans in accordance
with Section 15.2 and which has entered into an
agreement with the Borrowers and the Agent to the
effect set forth in this Section 15.8;
(ii) any Lender or USD Bank or the Canadian
Administrative Agent (as defined in the USD
Agreement) or the Agent or USD Agent; or
(iii) as may be necessary in connection with the
enforcement of this Agreement, a Guarantee or
the Subordination Agreement.
The provisions of this Section 15.8 shall survive the payment in
full of the Loans and all amounts payable hereunder or under the
Guarantees and the termination of this Agreement.
15.9 Survival of Representations, Warranties and Covenants.
All agreements, representations, warranties and covenants made by
or on behalf of the Borrower or herein or in any certificate or
document delivered by or on behalf of the Borrower or pursuant to
the provisions hereof shall be considered to have been relied
upon by the Lenders and shall survive the execution and delivery
of this Agreement and any investigation made at any time by or on
behalf of the Lenders.
15.10 Further Assurances. The Borrower agrees that it
will do, execute and deliver or will cause to be done, executed
and delivered, all such further acts, documents and things as the
Agent may reasonably request for the purpose of giving effect to
this Agreement.
15.11 Severability. Any provision in this Agreement
which is 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 or affecting the validity or
enforceability of such provision in any other jurisdiction.
15.12 Time of the Essence. Time shall be of the essence
of this Agreement.
15.13 Governing Law. This Agreement and all
certificates and other documents delivered to the Agent or the
Lenders shall be governed by and construed in accordance with the
laws of Ontario and the laws of Canada applicable therein.
15.14 Currency of Judgment or Payment. If, pursuant to
the judgment or order of any court or in accordance with the
provisions of applicable law, any amount due or payable hereunder
in U.S. Dollars or any other currency (the "Original Currency")
is paid in Canadian Dollars or any other currency (the "Second
Currency"), such payment in the Second Currency shall discharge
or satisfy the obligation of the Borrower to pay such amount in
the Original Currency only to the extent of the amount of the
Original Currency that the Lenders or any of them, in accordance
with normal banking procedures, can purchase in the Toronto
foreign exchange market on the date of such payment with the
amount of such payment in the Second Currency (translated at the
spot rate of exchange for wholesale transactions at which each
Lender in accordance with normal banking procedures is able to
purchase the Original Currency with the Second Currency on the
date of such payment after payment of any premium or costs of
exchange payable in connection with such purchase). The Borrower
shall, as a separate and independent obligation, which shall not
be merged in any such judgment or order or extinguished by any
such payment in the Second Currency, pay or cause to be paid such
obligation in respect of the Original Currency not so discharged
and satisfied in accordance with the foregoing and indemnify and
save each such Lender harmless against any reasonable loss or
damages arising as a result of any such amount being paid in the
Second Currency.
15.15 Foreign Taxes.
(a) All payments made under this Agreement shall be made
without set-off or counterclaim and free and clear of, and
without reduction for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges,
fees, deductions, withholdings or restrictions or conditions of
any nature whatsoever, now or hereafter imposed, levied,
collected, withheld or assessed by any country other than Canada
(or by any political subdivision or taxing authority of any
country other than Canada) from or through which any amount is
paid under this Agreement excluding, in the case of each Lender:
(i) income and franchise taxes; and
(ii) taxes that would not have been imposed on such
Lender but for the existence of a connection
between such Lender and the jurisdiction imposing
such taxes (other than a connection arising
principally by virtue of this Agreement) ,
such non-excluded taxes being called "Foreign Taxes".
If any Foreign Taxes are required to be withheld from any amounts
so payable to any Lender hereunder, the amounts so payable to
such Lender shall be increased to the extent necessary to yield
to such Lender (after payment of all Foreign Taxes) interest or
any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement. Whenever any Foreign Taxes
are payable by the Borrower as promptly as possible thereafter
the Borrower shall send to the Agent, for the account of such
Borrower, a certified copy of the original official receipt, if
any, received by the Borrower, showing payment thereof. If the
Borrower fails to pay any Foreign Taxes when due to the
appropriate taxing authority or fails to remit to the Agent, for
the account of the Lender, the required receipts or other
required documentary evidence, the Borrower shall indemnify the
Lender for any incremental taxes, interest or penalties that may
become payable by the Lender as a result of any such failure.
(b) The provisions of subsection 4.3(a) shall apply,
mutatis mutandis, in respect of any Lender which gives the notice
and requires the Borrower to take the action contemplated by
subsection 15.15(a) above.
(c) The provisions of this Section 15.15 shall survive the
payment in full of all amounts payable hereunder and the
termination of this Agreement.
15.16 Consent to Jurisdiction and Service of Process.
All judicial proceedings brought against the Borrowers with
respect to this Agreement may be brought in any provincial or
federal court of competent jurisdiction in the Province of
Ontario, and, by execution and delivery of this Agreement, the
Borrowers accept, for themselves and in connection with their
properties, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and irrevocably agree to be
bound by any final judgment rendered thereby in connection with
this Agreement from which no appeal has been take nor is
available. The Borrowers irrevocably agree that all process in
any such proceedings in any such court may be effected by mailing
a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to them at
their addresses set forth in Section 15.7 or at such other
address of which the Agent shall have been notified pursuant
thereto, such service being hereby acknowledged by the Borrowers
to be effective and binding service in every respect. Each of
the Borrowers, the Agent and the Lenders irrevocably waives any
objection, including without limitation, any objection to the
laying of venue or based on the grounds of forum non conveniens
which it may now or hereafter have to the bringing of any such
action or proceeding in any such jurisdiction. Nothing herein
shall affect the right to serve process in any other manner
permitted by law or shall limit the right of the Lenders or the
Agent to bring proceedings against the Borrowers in the court of
any other jurisdiction.
15.17 Interconnection to USD Agreement. The Borrowers
and the Lenders acknowledge that this Agreement is inextricably
linked with the USD Agreement and that only a Lender whose
Affiliated USD Lender is a party to the USD Agreement is entitled
to be a Lender hereunder. It is further acknowledged that usage
of the Credit Facility will, on and subject to the terms hereof,
reduce the availability of the facility created under the USD
Agreement and vice versa.
15.18 Environmental Matters.
(a) In this Section 15.18:
(i) "Hazardous Materials" means (A) any oil, flammable
substances, explosives, radioactive materials,
hazardous wastes or substances, toxic wastes or
substances or any other materials or pollutants
which cause the Borrowers or Guarantors or any of
their assets to be in violation of any Hazardous
Materials Laws; (B) asbestos in any form which is
or could become friable, urea formaldehyde foam
insulation and polychlorinated biphenyls; and
(C) any other chemical, contaminant, pollutant,
hazardous, toxic or dangerous material or
substance as such terms are used in or defined in
Hazardous Materials Laws; and
(ii) "Hazardous Materials Laws" means any present
or
future federal, state, provincial, municipal
or
local laws, statutes, by-laws, ordinances,
regulations and policies and orders,
directives
and decisions rendered by any ministry,
department
or administrative or regulatory agency which
any
duly diligent Person in the normal course of
business would comply with relating to the
environment, health and safety, any Hazardous
Materials (including, without limitation, the
manufacture, processing, distribution,
treatment,
use, handling, transportation, production,
disposal or discharge or storage thereof) or
to
industrial hygiene or the environmental
conditions
on, under or about the assets of the
Borrowers or
the Guarantors, including, without
limitation,
soil and ground water conditions.
(b) The Borrowers hereby agree to protect, indemnify and
hold the Lenders, their directors, officers, employees and
agents, harmless from and against any and all actual or potential
claims, proceedings, lawsuits, liabilities, damages, losses,
fines, penalties, judgments, awards, costs and expenses
(including, without limitation, legal fees and costs and expenses
of investigation) which arise out of or relate in any way to any
use, handling, manufacture, processing, generation, distribution,
treatment, production, transportation, disposal, discharge or
storage of any Hazardous Materials in, on, under the assets of
the Borrowers or the Guarantors whether by any Borrower, any
Guarantor or any other Person including, without limitation,
(i) all foreseeable and unforeseeable consequential damages
directly or indirectly arising out of the use, handling,
manufacture, processing, generation, distribution, treatment,
production, transportation or disposal, discharge or storage of
Hazardous Materials by any Borrower or any Guarantor or any other
Person and (ii) the costs of any required or necessary repair,
cleanup or detoxification of the assets of the Borrowers or the
Guarantors and the preparation of any closure, decommissioning or
other required plans. In addition, the Borrowers agree that in
the event any Hazardous Material is caused to be removed from the
assets of the Borrowers or the Guarantors by any Borrower or
Guarantor or any other Person, the Borrowers shall, as between
the Borrowers and the Lenders, assume any and all liability for
such removed Hazardous Material. All such costs, damages, and
expenses referred to in this Subsection 15.18(d) are hereinafter
referred to as "Expenses". In addition, the Borrowers agree that
any Expenses paid by the Lenders shall form part of the
obligations of the Borrowers hereunder and shall bear interest at
the Prime Rate, calculated in accordance with this Agreement.
15.19 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together
shall constitute but one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed
this agreement as of the 5th day of April, 1995.
JOHN DEERE LIMITED
Per:
Title: Vice-President and Treasurer
Per:
Title: Comptroller
<PAGE>
JOHN DEERE FINANCE LIMITED
Per:
Title: President
Per:
Title: Vice-President,
Finance and Administration
<PAGE>
THE TORONTO-DOMINION BANK
(as Agent)
Per:
Title: Manager
Per:
Title: Vice-President
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE
Per:
Title: Director
Per:
Title: Managing Director
Address:
Corporate Group
Commerce Court West
7th Floor
Toronto, Ontario
M5J 1A2
Attn:
Tel: (416) 980-3005
Fax: (416) 980-8384
<PAGE>
ROYAL BANK OF CANADA
Per:
Title: Senior Account
Manager
Address:
New York Branch
Financial Square
23rd Floor
New York, New York
10005-3531
Attn: Manager, Loans
Administration
Tel: (212) 428-6311
Fax: (212) 428-2372
with a copy to:
One North Franklin Street
Suite 700
Chicago, Illinois
60606
Attn: Preston D. Jones
Tel: (312) 551-1618
Fax: (312) 551-0805
<PAGE>
THE TORONTO-DOMINION BANK
(as a Lender)
Per:
Title: Associate Vice-President
Per:
Title: Manager
Address:
Executive Vice-President
Corporate & Investment Banking
Group
The Toronto-Dominion Bank
55 King Street West
8th Floor
Toronto Dominion Centre
Toronto, Ontario
M5K 1A2
Attn: Manager, Corporate &
Investment Banking Group
Tel: (416) 944-5824
Fax: (416) 944-5630
<PAGE>
SCHEDULE A
CONVERSION NOTICE
TO: THE TORONTO-DOMINION BANK
FROM: [Name of Borrower]
DATE:
1. This Conversion Notice is delivered to you pursuant to
Section 2.11 of the loan agreement (the "Loan Agreement") made as
of March 26, 1993. All defined terms set forth in this
Conversion Notice shall have the respective meanings set forth in
the Loan Agreement.
2. We hereby request a Conversion as follows:
(a) Date of Conversion:
(b) Maturing Loan Type:
(c) Maturing Principal Amount:
(d) Conversion Loan Type:
(e) Interest Period (not applicable if for a Prime Rate or
USBR Loan):
(f) Payment Instructions (if any):
Yours very truly,
[Name of Borrower]
Per:
Title:
<PAGE>
SCHEDULE B
DRAWDOWN NOTICE
TO: THE TORONTO-DOMINION BANK
FROM: [Name of Borrower]
DATE:
1. This Drawdown Notice is delivered to you pursuant to
Section 2.5 of the loan agreement (the "Loan Agreement") made as
of March 26, 1993. All defined terms set forth in this Drawdown
Notice shall have the respective meanings set forth in the Loan
Agreement.
2. We hereby request a Drawdown as follows:
(a) Date of Drawdown:
(b) Amount of Drawdown:
(c) Type of Loan:
(d) Interest Period (not applicable if for a Prime Rate or
USBR Loan:)
(e) Payment Instructions (if any):
3. All of the representations and warranties of the
Borrowers contained in Article 8 of the Loan Agreement are true
and correct on and as of the date hereof as though made on and as
of the date hereof.
4. All of the covenants of the Borrowers contained in
Article Ten and Eleven of the Loan Agreement together with all of
the conditions precedent to a Drawdown and all other terms and
conditions contained in the Loan Agreement to be complied with by
the Borrowers have been fully complied with.
5. No Default or Event of Default has occurred and remains
outstanding nor will any Default or Event of Default occur as a
result of the aforementioned Drawdown.
Yours very truly,
[Name of Borrower]
Per:
Title:
<PAGE>
SCHEDULE C
GUARANTEE
THIS GUARANTEE made as of the 26th day of March, 1993
IN FAVOUR OF:
BANK OF AMERICA CANADA, THE BANK OF NOVA SCOTIA,
CANADIAN IMPERIAL BANK OF COMMERCE, CHEMICAL BANK OF
CANADA, CREDIT SUISSE CANADA, DEUTSCHE BANK (CANADA),
MELLON BANK CANADA, NBD BANK CANADA, ROYAL BANK OF
CANADA, SOCIETE GENERALE (CANADA), THE TORONTO-DOMINION
BANK AND UNION BANK OF SWITZERLAND (CANADA),
(hereinafter collectively referred to as the "Lenders"
and individually as a "Lender"),
by
corporation incorporated under the laws of
(hereinafter referred to as the "Guarantor")
WHEREAS (hereinafter referred to as the "Borrower")
desires to borrow or continue to borrow certain funds from the
Lenders and the Lenders have agreed to lend such funds to the
Borrower in accordance with, and for the purposes set out in, the
Loan Agreement (as herein defined);
AND WHEREAS the respective undertakings and businesses
of the Borrower and the Guarantor are carried on in cooperation;
AND WHEREAS it is a condition of the obligations of the
Lenders under the Loan Agreement that this Agreement be entered
into by the Guarantor;
NOW THEREFORE in consideration of the premises, the
mutual covenants, agreements and conditions herein contained and
other good and valuable consideration (the receipt and
sufficiency of which by each party hereto is hereby
acknowledged), it is hereby covenanted, agreed and declared as
follows:
ARTICLE I
INTERPRETATION
1.1 Definitions. In this Guarantee, unless there is
something in the context or subject-matter inconsistent
therewith, the following words and expressions shall have the
following meanings:
(a) "Agreement" or "Guarantee" means this Agreement
entitled "Guarantee" and all instruments supplemental
hereto or in amendment or confirmation hereof;
(b) "Loan Agreement" means the agreement made the 26th day
of March, 1993 between, among others, the Borrower and
the Lenders, pursuant to which the Lenders have agreed
to advance Loans upon and subject to the terms and
conditions therein contained, as such agreement may be
amended from time to time.
1.2 Certain Defined Terms. Except to the extent otherwise
defined herein, all terms which are defined in the Loan Agreement
and used in this Agreement shall have the respective meanings
assigned to them in the Loan Agreement, unless the context
otherwise requires.
1.3 Interpretation Not Affected by Headings, etc. The
division of this Agreement into articles, sections and paragraphs
and subparagraphs and the insertion of headings are for
convenience of reference only and shall not affect the
construction or interpretation of this Agreement. The terms
"this Agreement", this "Guarantee", "hereof", "herein",
"hereunder" and similar expressions refer to this Agreement and
not to any particular article, section or other portion hereof.
1.4 Number, etc. Words importing the singular number only
shall include the plural and vice versa; words importing the use
of any gender shall include all genders; and words importing
persons shall include firms and corporations and vice versa.
1.5 Severability. In the event that one or more provisions
contained in this Agreement or any agreement or other
documentation required hereunder to be delivered to the Lenders
or any of them, shall be invalid, illegal or unenforceable in any
respect under any applicable law, the invalidity, illegality or
unenforceability of such provision shall not affect or impair the
validity, legality and enforceability of the remaining provisions
hereof and any such invalid, illegal or unenforceable provision
shall be deemed to be severable.
1.6 Governing Law and Jurisdiction. This Agreement shall
be governed by and construed in accordance with the laws of the
Province of Ontario and the laws of Canada applicable therein.
1.7 Loan Agreement. This Guarantee is entered into
pursuant to the Loan Agreement. The dealings of the Lenders
inter se, and the manner in which they shall act hereunder, shall
be governed by the provisions of the Loan Agreement and the
Guarantor hereby agrees therewith.
ARTICLE II
GUARANTEE
2.1 Guarantee. The Guarantor hereby unconditionally and
irrevocably guarantees the due and punctual payment of the
principal of, and interest (including, to the extent permitted by
applicable law, interest on overdue interest) on, and all other
sums payable with respect to, the Loans from time to time owing
to the Lenders or any of them under, by virtue of or otherwise in
connection with the Loan Agreement.
2.2 Guarantor to Perform Certain Obligations of the
Borrower. If the Borrower shall make default in payment of any
of the principal of, interest (including, to the extent permitted
by applicable law, interest on overdue interest) or any other
sums from time to time owing to the Lenders or any of them under
the Loan Agreement and any period during which the Borrower is
permitted to cure such default has expired, the Guarantor shall,
so often as any such default happens, forthwith upon its receipt
of written demand of the Agent on behalf of the Lenders,
specifying the event or events of default, pay to the Lenders
such principal and/or interest and/or other sums in default. No
Lender shall be bound to exercise or to exhaust any recourse
against the Borrower or its property or any other guarantor or
its property before being entitled to the fulfilment by the
Guarantor of any of the Borrower's obligations as aforesaid. The
Guarantor hereby waives demand (except as aforesaid),
presentment, protest and notice (except as aforesaid) of any
kind, any requirement of diligence on the part of the Lenders or
the Agent and renounces all benefits of discussion and division.
2.3 Lenders May Proceed Against Guarantor. If the Borrower
shall make default as aforesaid and if the Guarantor shall fail
forthwith on demand to make good or to cause to be made good such
default in the manner hereinbefore provided, then so often as any
such default and failure shall occur and be continuing, the
Lenders shall have the right in their discretion to proceed in
their names against the Guarantor by any remedy provided by law
and to recover from the Guarantor such sums as the Guarantor may
be liable to pay hereunder.
2.4 Waiver of Borrower's Default. If the default of the
Borrower in respect of which any Guarantor would otherwise be or
become liable pursuant to the provisions hereof shall have been
waived or consented to by the Lenders, the Guarantor shall not be
deemed to be in default pursuant hereto with respect to such
default but any such waiver or consent shall relate only to such
default and shall not constitute a waiver or consent with respect
to any other or subsequent default of the Borrower.
2.5 Continuing Guarantee. The guarantee of the Guarantor
herein provided shall be a continuing, absolute and unconditional
guarantee and a fresh cause of action hereunder shall arise in
respect of each default hereunder. This Guarantee shall remain
in full force and effect (and the Guarantor shall not be entitled
to any declaration of relief from further liability therefor)
until the Borrower shall have fully and satisfactorily discharged
all its obligations under the Loan Agreement with respect to the
payment of any monetary amount and all obligations of the Lenders
thereunder shall have terminated.
2.6 Guarantee Unconditional. Subject to the provisions of
section 2.4 hereof, the obligations and liabilities of the
Guarantor hereunder are unconditional and except as otherwise
provided herein, shall be enforceable by any person entitled to
enforce the same without the necessity of any action or recourse
whatsoever against the Borrower and/or any other guarantor, and
the Guarantor hereby agrees that neither it nor any such
liability or obligation shall be released, discharged or in any
way affected:
(a) by, in whole or in part, any extension of time,
renewal, waiver or release of the duty to pay moneys by
the Borrower;
(b) by any modification of any obligations of the Borrower;
(c) by any forbearance whatsoever, whether as to time,
performance or otherwise;
(d) by the release of any other guarantor or by the taking
of security for the obligations guaranteed hereby or
the release, discharge, loss of, alteration of or other
dealing with any such security;
(e) by anything done, suffered or permitted by the Lenders
or any of them under the provisions of the Loan
Agreement or with respect to the Loans or any of them;
(f) by any other act or proceedings in relation to the
obligations of the Borrower or any security therefor
whereby such Guarantor might otherwise be released or
exonerated;
(g) by any irregularity, invalidity or unenforceability of
any term of this Agreement or the Loan Agreement; or
(h) any change in the name, capital, constitution,
ownership or control of any Borrower or any
amalgamation or other form of reorganization or change
with respect to any Borrower.
2.7 Acknowledgement of Guarantor. The Guarantor
acknowledges that it is familiar with and has examined the terms
and conditions of the Loan Agreement.
ARTICLE III
FURTHER PROVISIONS
3.1 Liability. This Guarantee shall not be considered as
wholly or partially satisfied by the payment or liquidation at
any time or times of any sum or sums of money for the time being
due or remaining unpaid to the Lenders, and until the Lenders
shall have received payment in full of all monetary amounts
payable under the Loan Agreement and all the obligations of the
Lenders thereunder shall have terminated, (i) all dividends,
compositions, proceeds of securities valued and payments received
by the Lenders from any Borrower or from others in respect of the
principal of, interest on, and all other sums payable under the
Loan Agreement shall be regarded for all purposes as payments to
the Lenders on account of the principal of, interest on, and all
other sums payable under the Loan Agreement without any right on
the part of the Guarantor to claim the benefits thereof in
reduction of the liability under this Guarantee and (ii) the
Guarantor shall have no right to be subrogated in any rights of
the Lenders.
3.2 Additional Security. This Guarantee is in addition to
and not in substitution for any other guarantee or security of
any kind now or hereafter held by the Lenders.
3.3 Accounts Settled. The Guarantor shall be bound by any
account settled between the Lenders and the Borrower, and if no
such account has been so settled immediately before demand of
payment under this Guarantee any account stated by the Lenders
shall, in the absence of manifest error, be accepted by the
Guarantor as conclusive evidence of the amount which at the date
of the account so stated is due by the Borrower to the Lenders or
remains unpaid by the Borrower to the Lenders.
ARTICLE IV
MISCELLANEOUS
4.1 Costs and Expenses of Collection. All costs and
expenses of collection of all amounts owing hereunder which are
reasonably incurred by the Lenders or any of them shall be for
the account of the Guarantor.
4.2 Non-Merger. All agreements and covenants of the
Guarantor made herein with respect to this Agreement and the
transactions contemplated hereby are material, shall be deemed to
have been relied upon by each of the Lenders and shall survive
the execution of this Agreement and the making of the Loans until
repayment in full thereof and of all other amounts owing
hereunder.
4.3 Assignment. This Agreement shall enure to the benefit
of each of the Lenders and their respective successors and
assigns to whom all or part of the rights and obligations of a
Lender under the Loan Agreement have been assigned pursuant to
the provisions of the Loan Agreement, including Section 15.2
thereof, but none of the foregoing nor the benefit thereof may be
assigned by the Guarantor without the prior written consent of
the Lenders.
4.4 Waivers. The Lenders may waive compliance by the
Guarantor with any term and condition hereof relating to the
Loans or any of them but no such waiver shall be construed as a
waiver of any term or condition other than that specifically so
waived and in such event the Guarantor shall be deemed never to
have been in default hereunder in respect of which such
compliance shall have been so waived.
4.5 Notice. Any consent, waiver, approval, notice, request
or demand or other communication (hereinafter called a "notice")
required or permitted to be given hereunder shall be in writing
and shall be given in accordance with the provisions of
Section 15.7 of the Loan Agreement.
4.6 Entire Agreement. This instrument embodies all
agreements between the parties hereto relative to this Guarantee
and none of the parties shall be bound by any representation or
promise made by any person relative thereto which is not embodied
herein.
4.7 Time. Time shall be of the essence hereof.
IN WITNESS WHEREOF the Guarantor has executed this
Agreement as of the day and year first above written.
Per:
Per:
<PAGE>
SCHEDULE D
REPAYMENT NOTICE
TO: THE TORONTO-DOMINION BANK
FROM: [Name of Borrower]
DATE:
1. This Repayment Notice is delivered to you pursuant to
Section 2.13 of the loan agreement (the "Loan Agreement") made as
of March 26, 1993. All defined terms set forth in this Repayment
Notice shall have the respective meanings set forth in the Loan
Agreement.
2. We hereby give notice of a repayment as follows:
(a) Date of Repayment:
(b) Loan Type:
(c) Principal Amount:
Yours very truly,
[Name of Borrower]
Per:
Title:
<PAGE>
SCHEDULE E
ROLLOVER NOTICE
TO: THE TORONTO-DOMINION BANK
FROM: [Name of Borrower]
DATE:
1. This Rollover Notice is delivered to you pursuant to
Section 2.10 of the loan agreement (the "Loan Agreement") made as
of March 26, 1993. All defined terms set forth in this Rollover
Notice shall have the respective meanings set forth in the Loan
Agreement.
2. We hereby request a Rollover as follows:
(a) Date of Rollover:
(b) Amount of Rollover:
(c) Loan Type:
(d) Interest Period (not applicable if for a Prime Rate or
USBR Loan:
(e) Payment Instructions (if any):
Yours very truly,
[Name of Borrower]
Per:
Title:
<PAGE>
SCHEDULE F
SUBORDINATION AGREEMENT
THIS AGREEMENT made the 26th day of March, 1993
B E T W E E N :
DEERE & COMPANY,
(hereinafter called the "Creditor")
- and -
JOHN DEERE LIMITED,
(hereinafter called the "Company")
- and -
BANK OF AMERICA CANADA, THE BANK OF NOVA SCOTIA,
CANADIAN IMPERIAL BANK OF COMMERCE, CHEMICAL BANK OF
CANADA, CREDIT SUISSE CANADA, DEUTSCHE BANK (CANADA),
MELLON BANK CANADA, NBD BANK CANADA, ROYAL BANK OF
CANADA, SOCIETE GENERALE (CANADA), THE TORONTO-DOMINION
BANK AND UNION BANK OF SWITZERLAND (CANADA),
(hereinafter collectively called the "Lenders")
WHEREAS the Company has entered into certain loan
arrangements with the Lenders pursuant to the provision of a loan
agreement (the "Loan Agreement") dated as of March 26, 1993; and
WHEREAS as at February 28, 1993 the Company was
indebted to the Creditor in the sum of Cdn.$29,127,000 together
with interest thereon at the rates specified in respect of such
indebtedness (hereinafter called the "existing indebtedness") the
whole of which amount is owing by the Company to the Creditor,
and is not at the date hereof otherwise assigned, pledged or
hypothecated by the Creditor and the Company is not otherwise
indebted to the Creditor at the present time; ;and
WHEREAS it is a condition in the Loan Agreement to the
advance of monies thereunder by the Lenders that the Creditor
provide this Agreement in favour of the Lenders and each of them.
NOW THEREFORE in consideration of the Lenders and each
of them entering into the Loan Agreement with the Company and
advancing monies thereunder and of such further banking
accommodation as the Lenders or any of them may from time to time
furnish to the Company, the Creditor and the Company hereby
covenant and agree with the Lenders and each of them that no
payment shall be made by the Company to the Creditor in respect
of the principal of, interest on or any other amount owing in
respect of indebtedness, both present and future, of the Company
to the Creditor, including without limiting the generality of the
foregoing the existing indebtedness.
The Company acknowledges that the existing indebtedness
is owing by it to the Creditor and agrees that the existing
indebtedness is not the subject of nor will it (or any present
indebtedness or future indebtedness of any nature or kind of the
Company to the Creditor) hereafter without the consent of the
Lenders be made the subject of any set-off or counter-claim by
the Company and the Company and the Creditor represent to the
Lenders and each of them that the Creditor holds no security for
the existing indebtedness or any part thereof (or for any present
or future indebtedness of any nature or kind of the Company to
the Creditor). The Company and the Creditor hereby agree with
the Lenders and each of them that no satisfaction, consideration
or security will be given to or accepted by the Creditor for any
debt, liability or obligation, present or future, including the
existing indebtedness owing by the Company to the Creditor,
without the written consent of the Lenders first had and
obtained. Any monies or other consideration received by the
Creditor as a result or by way of satisfaction, consideration or
security aforesaid without the prior written consent of the
Lenders shall be received in trust for the Lenders and upon
receipt shall be paid to the Lenders.
In the event of any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or
other similar proceedings relative to the Company, or to its
property or assets, or in the event of any proceedings for
voluntary liquidation, dissolution or other winding-up of the
Company whether or not involving insolvency or bankruptcy, or in
the event of the winding-up of the Company or any distribution of
the assets or any of the assets of the Company or proceeds
thereof among its creditors in any manner whatsoever, the Lenders
and each of them shall receive payment in full of all present and
future debts, liabilities and obligations of the Company, direct
or indirect, absolute or contingent, matured or not, at any time
and from time to time existing or arising under or by virtue of
or otherwise in connection with the Loan Agreement, including
without in any way limiting the generality of the foregoing all
principal thereof, interest thereon and all costs, charges,
expenses and other amounts related thereto and including interest
accruing after the filing of a petition in any proceeding
referred to above (the "Superior Debt") prior to the Creditor
receiving any amount in respect of its then indebtedness from the
Company and the Lenders and each of them may, unless prohibited
by law, prove in respect of the said sums hereby subordinated as
a debt owing to them and each of them by the Company and the
Lenders and each of them shall be entitled to receive the
dividends payable in respect thereof, such dividends to be
applied on such part or parts of the Superior Debt as the Lenders
shall see fit until the whole thereof has been paid in full and
the obligations of the Lenders under the Loan Agreement have been
terminated and thereafter the Creditor shall be entitled to such
dividends.
Upon payment in full of the Superior Debt and of all
bills, notes and other instruments representing the same and the
termination of all obligations of the Lenders and each of them
pursuant to the Loan Agreement, the Lenders will release to the
Creditor all the Lenders' claims under this agreement in respect
of the claims hereby subordinated.
It is declared and agreed that the Lenders shall not,
as a result of execution hereof, be bound to continue their legal
arrangements with the Company other than in accordance with the
provisions of the Loan Agreement.
Notwithstanding the foregoing, it is agreed that the
Creditor may accept payments or repayments from the Company so
long as the following conditions are met:
(a) no Default or Event of Default, as defined in the Loan
Agreement, then exists; and
(b) no such Default or Event of Default will arise from or
as a result of such repayment.
The Lenders shall not be prejudiced in any way in the
right to enforce the provisions hereof by any act or omission on
the part of the Company. The Lenders may, at any time and from
time to time, without any consent of or notice to the Creditor
hereunder: (i) change the manner, place or terms of payment or
change or extend the time of payment of, or renew or alter, the
Superior Debt (including any change in the rate of interest
thereon), or amend, modify or supplement the Loan Agreement or
any other agreement or document whether or not related thereto;
(ii) take or refrain from taking or give up or release any
security for the Superior Debt; (iii) sell, exchange, release,
not perfect and otherwise deal with any property at any time
pledged, assigned or mortgaged to secure the Superior Debt;
(iv) release anyone liable in any manner under or in respect of
the Superior Debt; (v) exercise or refrain from exercising any
rights against the Company, any guarantor of the Superior Debt or
other person; and (vi) apply or not any sums from time to time
received to the Superior Debt; provided, however, that no
amendment or addition or supplement to the Superior Debt or any
instrument or agreement relating thereto shall be effective to
change the extent or the terms of the subordination effected
hereby without the consent of the Creditor.
The Creditor agrees not to assign or transfer any
indebtedness (or interest therein) owing to it by the Company
unless the assignee or transferee and the Company shall first
have entered into an agreement in favour of the Lenders and each
of them containing substantially the same terms and provisions as
are set out herein.
This Agreement shall be binding upon and shall enure to
the benefit of the successors and assigns of the respective
parties hereto, including permitted assignees of the Lenders or
any of them pursuant to the Loan Agreement.
<PAGE>
This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the laws
of Canada applicable therein.
IN WITNESS WHEREOF each of the parties hereto have
caused this Agreement to be duly executed by their proper
officers.
DEERE & COMPANY
By:
c/s
Nathan T. Jones
Assistant Treasurer
Michael A. Harring
Assistant Secretary
JOHN DEERE LIMITED
By:
c/s
R. W. Hoffman
Vice-President and Treasurer
D. A. Kirk
Comptroller
THE TORONTO-DOMINION BANK
(as Agent)
Per:
Authorized Officer
Per:
Authorized Officer
BANK OF AMERICA CANADA
Per:
Authorized Officer
Per:
Authorized Officer
THE BANK OF NOVA SCOTIA
Per:
Authorized Officer
Per:
Authorized Officer
CANADIAN IMPERIAL BANK OF COMMERCE
Per:
Authorized Officer
Per:
Authorized Officer
CHEMICAL BANK OF CANADA
Per:
Authorized Officer
Per:
Authorized Officer
CREDIT SUISSE CANADA
Per:
Authorized Officer
Per:
Authorized Officer
DEUTSCHE BANK (CANADA)
Per:
Authorized Officer
Per:
Authorized Officer
MELLON BANK CANADA
Per:
Authorized Officer
Per:
Authorized Officer
NBD BANK CANADA
Per:
Authorized Officer
Per:
Authorized Officer
ROYAL BANK OF CANADA
Per:
Authorized Officer
Per:
Authorized Officer
SOCIETE GENERALE (CANADA)
Per:
Authorized Officer
Per:
Authorized Officer
THE TORONTO-DOMINION BANK
(as a Lender)
Per:
Authorized Officer
Per:
Authorized Officer
UNION BANK OF SWITZERLAND (CANADA)
Per:
Authorized Officer
Per:
Authorized Officer
<PAGE>
SCHEDULE G
[OUTSTANDING LITIGATION - SECTION 8.5]
<PAGE>
SCHEDULE H
[OPINION OF FASKEN CAMPBELL GODFREY]
March 26, 1993
Bank of America Canada
The Bank of Nova Scotia
Canadian Imperial Bank of Commerce
Chemical Bank of Canada
Credit Suisse Canada
Deutsche Bank (Canada)
Mellon Bank Canada
NBD Bank (Canada)
Royal Bank of Canada
Societe Generale (Canada)
The Toronto-Dominion Bank
Union Bank of Switzerland (Canada)
c/o The Toronto-Dominion Bank
as agent
Toronto-Dominion Centre
Toronto, Ontario
Dear Sirs:
Re: Loan Agreement made March 26, 1993 between John Deere
Limited and John Deere Finance Limited as Borrowers, Bank of
America Canada, The Bank of Nova Scotia, Canadian Imperial
Bank of Commerce, Chemical Bank of Canada, Credit Suisse
Canada, Deutsche Bank (Canada), Mellon Bank Canada, NBD Bank
(Canada), Royal Bank of Canada, Societe Generale (Canada),
The Toronto-Dominion Bank and Union Bank of Switzerland
(Canada) as Lenders, and The Toronto-Dominion Bank as Agent
We have acted as special counsel to John Deere Limited
("JDL") and John Deere Finance Limited ("JD Finance") in
connection with the loan agreement (the "Loan Agreement") made
March 26, 1993 between JDL and JD Finance as Borrower, each of
you as Lenders and The Toronto Dominion Bank as Agent.
We have participated in the preparation of the Loan
Agreement. We have also participated in the preparation of: (i)
the guarantee dated March 26, 1993 (the "JDL Guarantee") executed
by JDL pursuant to which JDL has guaranteed payment to the
Lenders of all amounts owing by JD Finance to the Lenders
pursuant to the Loan Agreement; (ii) the guarantee dated March
26, 1993 (the "JD Finance Guarantee") executed by JD Finance
pursuant to which JD Finance has guaranteed payment to the
Lenders of all of the amounts owing by JDL to the Lenders
pursuant to the Loan Agreement; and (iii) the Subordination
Agreement.
In this opinion, all capitalized terms used but not
defined herein shall have the respective meanings specified in
the Loan Agreement.
We have examined and relied upon originals or copies
certified or identified to our satisfaction of the constating
documents and by-laws of JDL and JD Finance, certificates of
public officials with respect to JDL and JD Finance and
certificates of officers of JDL and JD Finance as to certain
factual matters. We have also examined such other documents and
records and considered such questions of law as we have
considered appropriate for the purposes of the opinions expressed
below.
In connection with the opinion expressed in paragraph
5, we have relied upon an examination of extra-provincial
licences issued to JDL or JD Finance and on our general
understanding of applicable laws of each of the provinces of
Canada, but have made no further or other investigation of JDL's
and JD Finance's status as an extra-provincial or foreign
corporation.
In connection with the opinion expressed in paragraphs
9 and 10, we have relied upon the certificate of the treasurer of
each of JDL and JD Finance attached hereto as Exhibits A and B,
respectively.
We have assumed the due incorporation and existence of
each of you and your respective powers to enter into the Loan
Agreement and the due authorization, execution and delivery of
the Loan Agreement by each of you. We have also assumed the
genuineness of all signatures on and the authenticity of all
documents submitted to us as original documents, the conformity
to the original documents of all documents submitted to us as
true, certified, conformed or photostatic copies thereof and the
genuineness of all signatures on and the authenticity and
completeness of the originals of such copies.
Based upon and subject to the foregoing, we are of the
opinion that:
1. Each of JDL and JD Finance is a corporation duly
incorporated under the Canada Business Corporations Act which has
not been discontinued or dissolved under that Act and each of JDL
and JD Finance has sent to the Director appointed under that Act
the annual returns and financial statements required to be sent
to him under such Act.
2. At the date hereof:
(a) Deere & Company is shown on the securities register
maintained by JDL as the registered holder of all the
issued and outstanding shares of JDL; and
(b) JDL is shown on the securities register maintained by
JD Finance as the registered holder of all the issued
and outstanding shares of JD Finance.
Because liens, charges, hypothecs, security interests or other
encumbrances or restrictions pertaining to the shares of JDL and
JD Finance may not be of public record, we have carried out no
investigation and express no opinion in respect thereof.
3. JDL has the corporate capacity to own the assets owned
by it in connection with its business of the manufacture of
agricultural equipment and the distribution of agricultural and
industrial equipment and consumer products and JD Finance has the
corporate capacity to own the assets owned by it in connection
with its business of financing sales of such equipment and
products.
4. JDL has the corporate capacity to carry on the business
of the manufacture of agricultural equipment and the distribution
of agricultural and industrial equipment and consumer products
and JD Finance has the corporate capacity to carry on the
business of financing sales of such equipment and products.
5. JDL is duly qualified as an extra-provincial or foreign
corporation under the laws of each of the provinces of Canada
other than the Province of Quebec. JD Finance is duly qualified
as an extra-provincial or foreign corporation under the laws of
each of the provinces of Canada other than the Province of
Quebec.
6. JDL has the corporate capacity to execute and to
deliver the Loan Agreement, the JDL Guarantee, the Subordination
Agreement and all other agreements required under the Loan
Agreement to be executed by it and to perform its obligations
under the Loan Agreement, the JDL Guarantee, the Subordination
Agreement and all such other agreements; each of the Loan
Agreement, the JDL Guarantee and the Subordination Agreement has
been duly executed and delivered by JDL; and each of the Loan
Agreement, the JDL Guarantee and the Subordination Agreement is a
valid and legally binding obligation of JDL, enforceable against
JDL in accordance with its terms.
7. JD Finance has the corporate capacity to execute and to
deliver the Loan Agreement, the JD Finance Guarantee and all
other agreements required under the Loan Agreement to be executed
by it and to perform its obligations under the Loan Agreement,
the JD Finance Guarantee and all such other agreements; each of
the Loan Agreement and the JD Finance Guarantee has been duly
executed and delivered by JD Finance; and each of the Loan
Agreement and the JD Finance Guarantee is a valid and legally
binding obligation of JD Finance, enforceable against JD Finance
in accordance with its terms.
8. The Minister of Finance of Canada has granted exemption
from the application of the provisions of the Investment
Companies Act (Canada) to JD Finance pursuant to the extent
provided in subsection 3(2) of the Act and the Minister has not
revoked the exemption.
9. Neither the execution and delivery of the Loan
Agreement, the JDL Guarantee or the Subordination Agreement, nor
compliance with the terms, conditions and provisions of the Loan
Agreement, the JDL Guarantee or the Subordination Agreement
conflicts with or will conflict with, or results or will result
in any breach of, or constitutes or will constitute a default
under, any of the provisions of the constating documents or by-
laws of JDL, or of any of the agreements listed in Exhibit A
hereto or results or will result in the creation or imposition of
any material Mortgage upon any assets of JDL under or pursuant to
the agreements listed in Exhibit A hereto other than Permitted
Encumbrances.
10. Neither the execution and delivery of the Loan
Agreement or the JD Finance Guarantee, nor compliance with the
terms, conditions and provisions of the Loan Agreement or the JD
Finance Guarantee conflicts with or will conflict with, or
results or will result in any breach of, or constitutes or will
constitute a default under, any of the provisions of the
constating documents or by-laws of JD Finance, or of any of the
agreements listed in Exhibit B hereto or results or will result
in the creation or imposition of any material Mortgage upon any
assets of JD Finance under or pursuant to the agreements listed
in Exhibit B hereto other than Permitted Encumbrances.
11. No consents, approvals, authorizations, exemptions,
registrations, filings or declarations of or with any government
or governmental authority, the lack of which would be material to
the financial condition of the Deere Group, are required to be
obtained or made on the part of JDL in connection with the
execution and delivery of, and the performance of obligations
under, the Loan Agreement, the JDL Guarantee or the Subordination
Agreement except as have been obtained or made.
12. No consents, approvals, authorizations, exemptions,
registrations, filings or declarations of or with any government
or governmental authority, the lack of which would be material to
the financial condition of the Deere Group, are required to be
obtained or made on the part of JD Finance in connection with the
execution and delivery of, and the performance of obligations
under, the Loan Agreement or the JD Finance Guarantee by JD
Finance except as have been obtained or made.
The foregoing opinions are subject to the following
qualifications:
(a) Enforceability of the terms of the Loan Agreement, the
JDL Guarantee, the JD Finance Guarantee and the
Subordination Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws
relating to or affecting the enforcement of creditors'
rights generally and by general equitable principles.
(b) The Currency Act (Canada) provides that any statement
as to money or money value in any legal proceeding
shall be stated in the currency of Canada.
Accordingly, in any proceeding brought in any court in
Canada, any claim relating to the Loan Agreement for
any amount expressed in any currency other than
Canadian currency must be converted into Canadian
currency. Under the laws of the Province of Ontario,
the appropriate date for such conversion will depend on
the circumstances of the case.
(c) While we understand that the Borrowers intend to make
all payments in respect of USBR Loans, U.S. LIBOR Loans
and U.S. Dollar denominated Fixed Rate Loans and
Operating Facility Loans pursuant to the Loan Agreement
in U.S. Dollars, obligations governed by Ontario law to
make payment may be satisfied by payment in the
currency which constitutes legal tender at the place of
payment.
(d) The costs of and incidental to all proceedings
authorized to be taken in a court or before a judge are
in the discretion of the court or judge and the court
or judge has full power to determine by whom and to
what extent the costs shall be paid.
Yours very truly,
<PAGE>
SCHEDULE I
[OPINION OF DEERE & COMPANY]
March 26, 1993
Bank of America Canada
The Bank of Nova Scotia
Canadian Imperial Bank of Commerce
Chemical Bank of Canada
Credit Suisse Canada
Deutsche Bank (Canada)
Mellon Bank Canada
NBD Bank (Canada)
Royal Bank of Canada
Societe Generale (Canada)
The Toronto-Dominion Bank
Union Bank of Switzerland (Canada)
c/o The Toronto-Dominion Bank
as Agent
Toronto-Dominion Centre
Toronto, Ontario
Dear Sirs:
Re: Loan Agreement made as of March 26, 1993 between John Deere
Limited and John Deere Finance Limited as Borrowers, Bank of
America Canada, The Bank of Nova Scotia, Canadian Imperial
Bank of Commerce, Chemical Bank of Canada, Credit Suisse
Canada, Deutsche Bank (Canada), Mellon Bank Canada, NBD Bank
(Canada), Royal Bank of Canada, Societe Generale (Canada),
The Toronto-Dominion Bank and Union Bank of Switzerland
(Canada) as Lenders, and The Toronto-Dominion Bank as Agent
This opinion is furnished to you pursuant to
Section 9.2 of the Loan uAgreement dated as of March 26, 1993
(the "Loan Agreement") between John Deere Limited, John Deere
Finance Limited, the Lenders parties thereto and The
Toronto-Dominion Bank, as Agent for said Lenders. Terms defined
in the Loan Agreement are used herein as therein defined.
As General Counsel to Deere & Company, I am familiar
with its corporate history and organization and the proceedings
relating to the authorization, execution and delivery of the
Subordination Agreement constituting Schedule F to the Loan
Agreement. In that connection, I have examined:
1. The Loan Agreement;
2. The Certificate of Incorporation of Deere & Company and
all amendments thereto (the "Charter"); and
3. The bylaws of Deere & Company and all amendments
thereto (the "Bylaws").
In addition, I have reviewed such of the corporate
proceedings of Deere & Company, and have examined such documents,
corporate records, and other instruments relating to the
organization of Deere & Company and its respective Subsidiaries
and such other agreements and instruments to which Deere &
Company and its Subsidiaries are parties, as I have deemed
necessary for the purpose of this opinion. I have assumed the
due execution and delivery, pursuant to due authorization, of the
Loan Agreement by the Banks and the Agent, and the authenticity
of all documents submitted to me as originals and the conformity
to the original documents of all documents submitted to me as
certified, conformed or photostatic copies.
I am qualified to practise law in the State of Illinois
and do not purport to be an expert on, and do not express any
opinion herein concerning, any laws other than the laws of the
State of Illinois, the General Corporation Law of the State of
Delaware and the Federal laws of the United States.
Based upon the foregoing and upon such investigation as
I have deemed necessary, I am of the following opinion:
1. Deere & Company is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware and has the corporate power and authority to carry on
its business as now being conducted and to own its properties.
2. The execution, delivery and performance by Deere &
Company of the Subordination Agreement is within its corporate
powers, has been duly authorized by all necessary corporate
action, and (i) does not contravene or constitute a default under
its Charter or Bylaws, any judgment, law, rule or regulation
applicable to Deere & Company, or any contractual obligation by
which it is bound or (ii) will not result in the creation of any
lien, charge or encumbrance upon any of its property or assets.
The Subordination Agreement has been duly executed and delivered
on behalf of Deere & Company and constitutes a legal, valid and
binding obligation of Deere & Company, enforceable in accordance
with its terms except as limited by any applicable bankruptcy,
insolvency or similar laws affecting the enforcement of
creditors' rights generally and except as enforcement thereof may
be subject to general equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
3. No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by Deere & Company of the Subordination Agreement.
Very truly yours,
<PAGE>
SCHEDULE J
[OPINION OF TORY TORY DESLAURIERS & BINNINGTON]
March 26, 1993
Bank of America Canada
The Bank of Nova Scotia
Canadian Imperial Bank of Commerce
Chemical Bank of Canada
Credit Suisse Canada
Deutsche Bank (Canada)
Mellon Bank Canada
NBD Bank (Canada)
Royal Bank of Canada
Societe Generale (Canada)
The Toronto-Dominion Bank
Union Bank of Switzerland (Canada)
c/o The Toronto-Dominion Bank
as Agent
Toronto-Dominion Centre
Toronto, Ontario
Dear Sirs:
Re: Loan Agreement made as of March 26, 1993 between John Deere
Limited and John Deere Finance Limited as Borrowers, Bank of
America Canada, The Bank of Nova Scotia, Canadian Imperial
Bank of Commerce, Chemical Bank of Canada, Credit Suisse
Canada, Deutsche Bank (Canada), Mellon Bank Canada, NBD Bank
(Canada), Royal Bank of Canada, Societe Generale (Canada),
The Toronto-Dominion Bank and Union Bank of Switzerland
(Canada) as Lenders, and The Toronto-Dominion Bank as Agent
We have acted as your counsel in connection with the
loan agreement (the "Loan Agreement") made as of March 26, 1993
between John Deere Limited ("JDL") and John Deere Finance Limited
("JD Finance") as Borrowers, each of you as Lenders and The
Toronto-Dominion Bank as Agent. In this connection, we have
participated in the preparation of the Loan Agreement.
In providing the opinion below, we have assumed the due
incorporation and existence of each of you and your respective
powers to enter into the Loan Agreement and the due
authorization, execution and delivery of the Loan Agreement by
each of you. We have also relied exclusively on paragraphs 1, 6
and 7 of the opinion of Fasken Campbell Godfrey dated the date
hereof and delivered to you with respect to the incorporation of
each of JDL and JD Finance, their respective corporate power and
authority in relation to the Loan Agreement and their respective
due execution and delivery thereof.
Based upon and subject to the foregoing, we are of the
opinion that the Loan Agreement is a valid and legally binding
obligation of each of JDL and JD Finance enforceable against each
of them in accordance with its terms.
The foregoing opinion is subject to the following
qualifications:
(1) Enforceability of the terms of the Loan Agreement may
be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting the enforcement of creditors'
rights generally and by general equitable principles.
(2) The Currency Act (Canada) provides that any statement
as to money or money value in any legal proceeding shall be
stated in the currency of Canada. Accordingly, in any proceeding
brought in any court in Canada, any claim relating to the Loan
Agreement for an amount expressed in any currency other than
Canadian currency must be converted into Canadian currency.
Under the laws of the Province of Ontario, the appropriate date
for such conversion will depend on the circumstances of the case.
(3) While we understand that the Borrowers intend to make
all payments in respect of USBR Loans, U.S. LIBOR Loans and U.S.
Dollar denominated Fixed Rate Loans and Operating Facility Loans
pursuant to the Loan Agreement in U.S. Dollars, obligations
governed by Ontario law to make a payment may be satisfied by
payment in the currency which constitutes legal tender at the
place of payment.
(4) The costs of and incidental to all proceedings
authorized to be taken in a court or before a judge are in the
discretion of the court or judge and the court or judge has full
power to determine by whom and to what extent the costs shall be
paid.
Yours truly,
<PAGE>
SCHEDULE K
[FORM OF MONTHLY REPORTS - SECTION 10.2(C)]
Exhibit 11
DEERE & COMPANY AND CONSOLIDATED SUBSIDIARIES
COMPUTATION OF NET INCOME PER SHARE
(Shares and dollars in thousands except per share
amounts)
For the Six Months Ended
April 30
1995 1994
1. Net income ............................... $375,457 $276,265
2. Adjustment - Interest expense, after tax
benefit, applicable to convertible
debentures outstanding.................. 11 22
3. Net income applicable to common stock -
before interest applicable to
convertible debentures.................. $375,468 $276,287
PRIMARY NET INCOME PER COMMON SHARE:
Shares:
4. Weighted average number of common
shares outstanding.................... 86,505 85,867
5. Incremental shares:
Dilutive common stock options......... 731 916
Dilutive stock appreciation rights.... 18 57
Total incremental shares............ 749 973
6. Primary net income per common share
(1 divided by 4)........................ $ 4.34* $3.22*
FULLY DILUTED NET INCOME PER COMMON SHARE:
Shares:
7. Weighted average number of common
shares outstanding.................... 86,505 85,867
8. Incremental shares:
Dilutive common stock options......... 803 916
Dilutive stock appreciation rights.... 21 57
9. Common equivalent shares from assumed
conversion of convertible debentures:
5-1/2% debentures due 2001.......... 19 28
10. Total............................... 87,348 86,868
11. Fully diluted net income per common
share (3 divided by 10).............. $ 4.34* $3.22*
____________
* Net income per common share outstanding was used in the
designated
calculations since the dilutive effects of common stock
options,
stock appreciation rights and assumed conversion of
convertible
debentures were immaterial.
EXHIBIT 12
DEERE & COMPANY AND CONSOLIDATED SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
Six Months Ended
April 30 Year Ended October 31
1995 1994 1994 1993
(In thousands of dollars)
Earnings:
Income (loss) of consolidated
group before income taxes and
changes in accounting $592,296 $428,527 $ 920,920 $272,345
Dividends received from
less than fifty percent
owned affiliates 1,399 782 2,329 1,706
Fixed charges net of
capitalized interest 194,434 145,586 310,047 375,238
Total earnings $788,129 $574,895 $1,233,296 $649,289
Fixed charges:
Interest expense of con-
solidated group (includes
capitalized interest) $190,943 $142,522 $ 303,080 $369,325
Portion of rental charges
deemed to be interest 3,504 3,064 7,008 6,127
Total fixed charges $194,447 $145,586 $ 310,088 $375,452
Ratio of earnings to
fixed charges ** 4.05 3.95 3.98 1.73
<PAGE>
The computation of the ratio of earnings to fixed charges is based on
applicable amounts
of
the Company and its consolidated subsidiaries plus dividends received from
less-than fifty
percent owned affiliates. "Earnings" consist of income before income taxes, the
cumulative
effect of changes in accounting and fixed charges excluding capitalized
interest. "Fixed
charges" consist of interest on indebtedness, amortization of debt discount
and expense,
an
estimated amount of rental expense which is deemed to be representative of
the interest
factor, and capitalized interest.
* For the year ended October 31, 1991, earnings available for fixed charges
coverage were
$22 million less than the amount required for a ratio of earnings to fixed
charges of 1.0.
** The Company has not issued preferred stock. Therefore, the ratios of
earnings to
combined
fixed charges and preferred stock dividends are the same as the ratios
presented above.
<PAGE>
EXHIBIT 12
DEERE & COMPANY AND CONSOLIDATED SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
Year Ended October 31
1992 1991 1990
(In thousands of dollars)
Earnings:
Income (loss) of consolidated
group before income taxes and
changes in accounting $ 43,488 $(26,176) $ 587,528
Dividends received from
less than fifty percent
owned affiliates 2,325 6,229 7,775
Fixed charges net of
capitalized interest 420,133 454,092 439,200
Total earnings $465,946 $434,145 $1,034,503
Fixed charges:
Interest expense of con-
solidated group (includes
capitalized interest) $415,205 $451,936 $ 435,217
Portion of rental charges
deemed to be interest 6,720 4,088 3,983
Total fixed charges $421,925 $456,024 $ 439,200
Ratio of earnings to
fixed charges ** 1.10 * 2.36
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted
from
Form 10-Q and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<CIK> 0000315189
<NAME> DEERE & COMPANY
<MULTIPLIER> 1,000,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> OCT-31-1995
<PERIOD-START> NOV-01-1994
<PERIOD-END> APR-30-1995
<EXCHANGE-RATE> 1
<CASH> 521
<SECURITIES> 1,135
<RECEIVABLES> 8,489
<ALLOWANCES> 105
<INVENTORY> 996
<CURRENT-ASSETS> 0
<PP&E> 4,211
<DEPRECIATION> 2,918
<TOTAL-ASSETS> 13,891
<CURRENT-LIABILITIES> 0
<BONDS> 2,341
<COMMON> 1,503
0
0
<OTHER-SE> 1,354
<TOTAL-LIABILITY-AND-EQUITY> 13,891
<SALES> 4,183
<TOTAL-REVENUES> 4,946
<CGS> 3,207
<TOTAL-COSTS> 3,688
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 17
<INTEREST-EXPENSE> 191
<INCOME-PRETAX> 592
<INCOME-TAX> 220
<INCOME-CONTINUING> 375
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 375
<EPS-PRIMARY> 4.34
<EPS-DILUTED> 4.34
</TABLE>
