Exhibit 10.15
EXECUTION VERSION
This First Amendment, dated as of October 15, 2021 (this “Amendment”), to the 364-Day Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”), among (a) DEERE & COMPANY, a Delaware corporation (the “Company”), (b) JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “Capital Corporation”), (c) JOHN DEERE BANK S.A., a Luxembourg société anonyme (“JD Luxembourg”, together with the Company and the Capital Corporation, the “Borrowers”), (d) the several financial institutions parties thereto (the “Banks”), (e) JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, together with its successors and permitted assigns, the “Administrative Agent”), (f) CITIBANK, N.A., as documentation agent and (g) BANK OF AMERICA, N.A., as syndication agent.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Banks and the Administrative Agent are parties to the Existing Credit Agreement and the Borrowers have requested that the Existing Credit Agreement be amended as set forth herein (the Existing Credit Agreement, as so amended, the “Credit Agreement”);
WHEREAS, an Early Opt-in Election in respect of Pounds Sterling has occurred as a result of (i) a determination by the Company that at least five currently outstanding syndicated credit facilities documented in Pounds Sterling contain a new benchmark interest rate to replace the Relevant Rate in respect of Pounds Sterling and (ii) the joint election by the Administrative Agent and the Company to declare that an Early Opt-in Election has occurred with respect to Loans denominated in Pounds Sterling and the provision by the Administrative Agent and the Company of written notice of such election to the Banks;
WHEREAS, the Company and the Administrative Agent desire to amend the Existing Credit Agreement to reflect the Benchmark Replacement with respect to Loans denominated in Pounds Sterling, in accordance with clause (3) of the definition of “Benchmark Replacement”;
NOW, THEREFORE, in consideration of the premises contained herein, the parties hereto agree as follows:
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
| DEERE & COMPANY By:/s/ Andrew M. Recker |
| JOHN DEERE CAPITAL CORPORATION By:/s/ Andrew M. Recker |
| JOHN DEERE BANK S.A. By:/s/ Andrew Traeger |
By:/s/ Jeffrey A Trahan
Name: Jeffrey A Trahan
Title: VP & Treasurer
[Signature Page to First Amendment to Deere 364-Day Credit Agreement]
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:/s/ Sean Bodkin
Name: Sean Bodkin
Title: Vice President
[Signature Page to First Amendment to Deere 364-Day Credit Agreement]
Exhibit A
AMENDED CREDIT AGREEMENT
[See attached]
DEERE & COMPANY
JOHN DEERE CAPITAL CORPORATION
JOHN DEERE BANK S.A.
________________________________________
$3,000,000,000
364-DAY
CREDIT AGREEMENT1
Dated as of March 29, 2021
________________________________________
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
CITIBANK, N.A.,
as Documentation Agent
BANK OF AMERICA, N.A.,
as Syndication Agent
________________________________________
JPMORGAN CHASE BANK, N.A. and BOFA SECURITIES, INC.,
as Lead Arrangers and Bookrunners
1 Conformed version reflects the First Amendment dated as of October 15, 2021.
Page
SECTION 1.DEFINITIONS1
1.1Defined Terms1
1.2Other Definitional Provisions26
1.3Currency Conversion26
1.4Interest Rates; LIBOR Notification26
SECTION 2.THE COMMITTED RATE LOANS; THE BID LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS27
2.1The Committed Rate Loans27
2.2The Bid Loans; the Negotiated Rate Loans28
2.3Loan Accounts32
2.4Fees32
2.5Termination or Reduction of Commitments; Cancellation of Capital Corporation or JD Luxembourg as Borrower32
2.6Prepayments33
2.7Minimum Amount of Certain Loans34
2.8Committed Rate Loan Interest Rate and Payment Dates34
2.9Conversion and Continuation Options35
2.10Computation of Interest and Fees35
2.11Inability to Determine Interest Rate35
2.12Pro Rata Treatment and Payments38
2.13Requirements of Law40
2.14Indemnity44
2.15Non-Receipt of Funds by the Administrative Agent44
2.16Extension of Termination Date45
2.17Indemnified Taxes46
2.18Confirmations49
2.19Replacement of Cancelled Banks49
2.20Commitment Increases49
2.21[Reserved]51
2.22[Reserved]51
2.23Defaulting Banks51
2.24Judgment Currency52
2.25Foreign Currency Exchange Rate52
2.26[Reserved].52
2.27Capital Corporation Guaranty52
SECTION 3.REPRESENTATIONS AND WARRANTIES54
3.1Financial Condition54
3.2Corporate Existence54
3.3Corporate Power; Authorization; Enforceable Obligations54
3.4No Legal Bar55
3.5No Material Litigation55
3.6Taxes55
3.7Margin Regulations55
3.8Use of Proceeds55
3.9Sanctions Laws and Regulations55
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3.10Beneficial Ownership Certification55
SECTION 4.CONDITIONS PRECEDENT56
4.1Conditions to Initial Loan56
4.2Conditions to All Loans57
SECTION 5.AFFIRMATIVE COVENANTS57
5.1Financial Statements58
5.2Certificates; Other Information58
5.3Company Indenture Documents59
5.4Capital Corporation Indenture Documents59
5.5Notice of Default59
5.6Ownership of Capital Corporation and JD Luxembourg Stock59
5.7Employee Benefit Plans59
5.8Compliance59
SECTION 6.NEGATIVE COVENANTS OF THE COMPANY60
6.1Company May Consolidate, etc., Only on Certain Terms60
6.2Limitation on Liens60
6.3Limitations on Sale and Lease-back Transactions63
6.4Equipment Operations Debt63
SECTION 7.NEGATIVE COVENANTS OF THE CAPITAL CORPORATION63
7.1Fixed Charges Ratio64
7.2Consolidated Senior Debt to Consolidated Capital Base64
7.3Limitation on Liens64
7.4Consolidation; Merger65
SECTION 8.EVENTS OF DEFAULT65
SECTION 9.THE AGENTS67
9.1Appointment67
9.2Delegation of Duties68
9.3Exculpatory Provisions68
9.4Reliance by Agents68
9.5Notice of Default70
9.6Non-Reliance on Agents and Other Banks70
9.7Indemnification70
9.8Agents in their Individual Capacities71
9.9Successor Agents71
SECTION 10.MISCELLANEOUS71
10.1Amendments and Waivers71
10.2Notices72
10.3No Waiver; Cumulative Remedies73
10.4Payment of Expenses74
10.5Successors and Assigns; Participations; Purchasing Banks75
10.6Adjustments79
10.7Confidentiality79
10.8Counterparts80
10.9GOVERNING LAW81
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10.10Consent to Jurisdiction and Service of Process81
10.11WAIVERS OF JURY TRIAL81
10.12USA Patriot Act81
10.13No Fiduciary Duty82
10.14Headings82
10.15Acknowledgment and Consent to Bail-In of Affected Financial Institutions82
10.16Bank ERISA Representations83
SCHEDULES:
Schedule ITerms of Subordination
Schedule IICommitments
EXHIBITS:
Exhibit AForm of Borrowing Notice
Exhibit BForm of Bid Loan Request
Exhibit CForm of Bid Loan Offer
Exhibit DForm of Bid Loan Confirmation
Exhibit EForm of Assignment and Assumption
Exhibit F[Reserved]
Exhibit GForm of Opinion of General Counsel to the Company
Exhibit HForm of Opinion of Special New York Counsel to the Borrowers
Exhibit IForm of Extension Request
Exhibit JForm of Form W-8BEN-E Tax Letter
Exhibit KForm of Form W-8ECI Tax Letter
Exhibit LForm of Replacement Bank Agreement
Exhibit MForm of Promissory Note
Exhibit NForm of New Bank Supplement
Exhibit OForm of Commitment Increase Supplement
Exhibit PForm of Certificate of Non-Bank Status
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CREDIT AGREEMENT, dated as of March 29, 2021, among (a) DEERE & COMPANY, a Delaware corporation (the “Company”), (b) JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “Capital Corporation”), (c) JOHN DEERE BANK S.A., a Luxembourg société anonyme (“JD Luxembourg”), (d) the several financial institutions parties hereto (collectively, the “Banks”, and individually, a “Bank”), (e) JPMORGAN CHASE BANK, N.A., as administrative agent hereunder (in such capacity, together with its successors and permitted assigns, the “Administrative Agent”), (f) CITIBANK, N.A., as documentation agent hereunder (in such capacity, the “Documentation Agent”), and (g) BANK OF AMERICA, N.A., as syndication agent hereunder (in such capacity, the “Syndication Agent”).
The parties hereto hereby agree as follows:
SECTION 1. | DEFINITIONS |
“ABR”: at any particular date, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) 0.5% per annum above the NYFRB Rate and (c) the Eurocurrency Rate for a Eurocurrency Loan denominated in Dollars with one-month Interest Period commencing on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1% (provided that, for the avoidance of doubt, such Eurocurrency Rate for any date shall be based on the LIBOR Screen Rate (or if the LIBOR Screen Rate is not available for such one-month Interest Period, the LIBOR Interpolated Rate)). Any change in ABR due to a change in the Prime Rate, the NYFRB Rate or the Eurocurrency Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Eurocurrency Rate, respectively. If the ABR is being used as an alternate rate of interest pursuant to subsection 2.11 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to subsection 2.11(b)), then the ABR shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
“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).
“Act”: as defined in subsection 10.12.
“Adjusted Daily Simple SONIA”: an interest rate per annum equal to (a) Daily Simple SONIA, plus (b) 0.0326%; provided that if Adjusted Daily Simple SONIA as so determined would be less than 0.0%, such rate shall be deemed to be equal to 0.0% for the purposes of this Agreement.
“Administrative Agent”: as defined in the preamble hereto. It is understood that matters concerning the Foreign Currency Loans will be administered by the Foreign Currency Agent as agent for the Administrative Agent.
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“Administrative Questionnaire”: an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Foreign Currency”: as defined in subsection 2.11(a).
“Agent”: the Administrative Agent, the Foreign Currency Agent, the Syndication Agent, or the Documentation Agent, as the context shall require; together, the “Agents”.
“Agreement”: this Credit Agreement, as amended by the First Amendment and as further amended, supplemented or modified from time to time.
“Agreement Currency”: as defined in subsection 2.24(b).
“Ancillary Document”: as defined in subsection 10.8.
“Anti-Corruption Laws”: all laws, rules and regulations of any jurisdiction applicable to the Borrowers and their Subsidiaries from time to time concerning or relating to bribery or corruption.
“Applicable Creditor”: as defined in subsection 2.24(b).
“Applicable Index Rate”: in respect of any Bid Loan requested pursuant to an Index Rate Bid Loan Request, the Eurocurrency Rate applicable to the Interest Period for such Bid Loan.
“Applicable Margin”: (a) with respect to ABR Loans, the rate per annum set forth below for ABR Loans in the column corresponding to the Prevailing Rating of the Company and, (b) with respect to Eurocurrency Loans, the rate per annum set forth below for Eurocurrency Loans in the column corresponding to the Prevailing Rating of the Company and (c) with respect to SONIA Loans, the rate per annum set forth below for SONIA Loans in the column corresponding to the Prevailing Rating of the Company:
| | | | | |
| Level I Rating | Level II Rating | Level III Rating | Level IV Rating | Level V Rating |
ABR Loans | 0.00% | 0.00% | 0.00% | 0.00% | 0.25% |
Eurocurrency Loans | 0.625% | 0.75% | 0.875% | 1.00% | 1.25% |
0.625% | 0.75% | 0.875% | 1.00% | 1.25% |
“Attributable Debt”: as defined in subsection 6.2(b)(ii).
“Australian Dollars”: the lawful currency of Australia.
“Available Commitment”: as to any Bank at any time, an amount equal to the excess, if any, of (a) such Bank’s Commitment then in effect over (b) such Bank’s Loans then outstanding.
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“Available Tenor”: as of any date of determination and with respect to the then-current Benchmark in respect of Loans denominated in such Currency, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period with respect to Loans denominated in the applicable Currency pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (f) of subsection 2.11.
“Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation”: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank” and “Banks”: as defined in the preamble hereto.
“Benchmark”: initially, with respect to aany (i) SONIA Loan, Adjusted Daily Simple SONIA or (ii) Eurocurrency Loan denominated in any Currency, the Relevant Rate for such Currency; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to the Relevant Rate or the then-current Benchmark with respect to Loans denominated in such Currency, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) or clause (c) of subsection 2.11.
“Benchmark Replacement”: for any Available Tenor with respect to Loans denominated in any Currency, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in a Foreign Currency, “Benchmark Replacement” shall mean the alternative set forth in (3) below:
(1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;
(2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;
(3) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Company as the replacement for the then-current Benchmark for the applicable Corresponding Tenor with respect to Loans denominated in such Currency giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body and/or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated in the applicable Currency at such time and (b) the related Benchmark Replacement Adjustment;
provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen
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or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; provided further that, solely with respect to a Loan denominated in Dollars, notwithstanding anything to the contrary in this Agreement or in any other Loan Document, to the extent that a Term SOFR Transition Event has occurred, and a Term SOFR Notice has been delivered, on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).
If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment”: with respect to any replacement of the then-current Benchmark with respect to Loans denominated in any Currency with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
(1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:
(a) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor; and
(b) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and
(2) for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Company for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Currency at such time;
provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.
“Benchmark Replacement Conforming Changes”: with respect to any Benchmark Replacement in respect of Loans denominated in any Currency, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “SONIA Business Day,” the definition of “Interest Period,” timing and frequency of
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determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides in its reasonable discretion (in consultation with the Company) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides in its reasonable discretion that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent reasonably determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent determines (in consultation with the Company) is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date”: with respect to the Benchmark for any Loan denominated in any Currency, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein; or
(3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Banks and the Company pursuant to Section 2.11(c); or
(4) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Banks, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Banks, written notice of objection to such Early Opt-in Election from Banks comprising the Majority Banks.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event”: with respect to the Benchmark for any Loan denominated in any Currency, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or
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publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period”: with respect to the Benchmark for any Loan denominated in any Currency, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with subsection 2.11 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with subsection 2.11.
“Beneficial Ownership Certification”: a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230.
“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 the Company or the Capital Corporation (for purposes of Bid Loans to such Borrower) by written notice to the Administrative Agent and which has not been removed as a Bid Loan Bank by such Borrower by written notice to the Administrative Agent (each of which notices the Administrative Agent shall transmit to each such affected Bank).
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“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 Administrative 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 Administrative Agent by facsimile transmission or by telephone, immediately confirmed by facsimile transmission.
“Bid Loan Request”: each request by the Company or the Capital Corporation 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 Administrative Agent by facsimile transmission or by telephone, immediately confirmed by facsimile transmission.
“Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Borrower”: the Company, the Capital Corporation or JD Luxembourg; 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; provided, that (a) with respect to notices and determinations in connection with, and payments of principal and interest on, Eurocurrency Loans, such day is also a day for trading by and between banks in Dollar deposits in the interbank eurocurrency market in London, (b) when used in connection with a Foreign Currency Loan, a SONIA Loan or any other dealings in Pounds Sterling (in each case, other than in connection with any calculation or determination of interest rate in respect of a SONIA Loan), the term “Business Day” shall also exclude any day on which commercial banks in London are authorized or required by law to close and any day on which banks are authorized or required by law to be closed in the principal financial center for that currency and, (c) in relation to any calculation or determination of interest rate in respect of a SONIA Loan, “Business Day” shall mean a SONIA Business Day and (d) when used in connection with Eurocurrency Loans denominated in Euros, the term “Business Day” shall also exclude any day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer System (TARGET) (or, if such clearing system ceases to be operative, such other clearing system (if any) determined by the Foreign Currency Agent to be a suitable replacement) is not open for settlement of payment in Euros.
“Calculation Date”: with respect to each Foreign Currency, the last day of each calendar quarter (or, if such day is not a Business Day, the next succeeding Business Day) and such other days from time to time as the Administrative Agent shall reasonably designate as a “Calculation Date”; provided, that the second Business Day preceding each Borrowing Date with respect to, and preceding each date of any borrowing, conversion or continuation of, any Foreign Currency Loan shall also be a “Calculation Date” with respect to the relevant Foreign Currency.; provided further that with respect to any SONIA Loan, each date that is on the numerically corresponding day in each calendar month that is one month after the borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month) shall also be a “Calculation Date”.
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“Calendar Quarter”: a three-month period consisting of (i) each January, February and March, (ii) each April, May and June, (iii) each July, August and September or (iv) each October, November and December.
“Canadian Dollars”: the lawful currency of Canada.
“Cancelled Bank”: (i) any Bank that has the whole or any part of its Commitment cancelled under 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) and (ii) any Defaulting Bank that the Company designates in writing to such Bank and the Administrative Agent as a Cancelled Bank.
“Capital Corporation”: as defined in the preamble hereto.
“CBR Loan”: a Loan that bears interest at a rate determined by reference to the Central Bank Rate.
“CBR Spread”: the Applicable Margin, applicable to such Loan that is replaced by a CBR Loan.
“Central Bank Rate”: (a) the greater of (i) for any Loan denominated in Pounds Sterling, the Bank of England (or any successor thereto)’s “Bank Rate” as published by the Bank of England (or any successor thereto) from time to time and (ii) 0.00%; plus (b) the applicable Central Bank Rate Adjustment.
“Central Bank Rate Adjustment”: for any day, for any Loan denominated in Pounds Sterling, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of Adjusted Daily Simple SONIA for the five most recent SONIA Business Days preceding such day for which SONIA was available (excluding, from such averaging, the highest and the lowest Adjusted Daily Simple SONIA applicable during such period of five SONIA Business Days) minus (ii) the Central Bank Rate in respect of Pounds Sterling in effect on the last SONIA Business Day in such period. For purposes of this definition, the term Central Bank Rate shall be determined disregarding clause (b) of the definition of such term.
“Certificate of Non-Bank Status”: a certificate substantially in the form and substance of Exhibit P.
“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 Majority Banks hereunder).
“Code”: the Internal Revenue Code of 1986, as amended from time to time.
“Code of Conduct”: as defined in subsection 3.9.
“Commitment”: as to any Bank, the amount set opposite such Bank’s name on Schedule II or in any assignment pursuant to which such Bank becomes a party hereto with respect to any interest purchased therein, as such amount may be modified as provided herein; collectively, as to all Banks, the “Commitments”.
“Commitment Expiration Date”: as defined in subsection 2.16(a).
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“Commitment Fee Rate”: the rate per annum set forth below in the column corresponding to the Prevailing Rating of the Company:
Level I Rating | Level II Rating | Level III Rating | Level IV Rating | Level V Rating |
0.03% | 0.035% | 0.04% | 0.06% | 0.10% |
“Commitment Increase Notice”: as defined in subsection 2.20(a).
“Commitment Increase Supplement”: as defined in subsection 2.20(c).
“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 or, at any time after the Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Bank’s Loans then outstanding constitutes of the aggregate principal amount of all Loans then outstanding; collectively, as to all the Banks, the “Commitment Percentages”; provided that when a Defaulting Bank shall exist, “Commitment Percentage” shall mean, when appropriate as determined by the Administrative Agent in order to provide ratable treatment at any time a Defaulting Bank exists (and without increasing the Commitment of any Bank), the percentage of the total Commitments (disregarding any Defaulting Bank’s Commitment) represented by such Bank’s Commitment.
“Commitment Period”: as to any Bank at any time, the period from and including the Closing Date to but not including the Termination Date of such Bank or such earlier date on which the Commitments shall terminate as provided herein.
“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 Stockholders’ Equity” on the consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries plus (b) 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. Notwithstanding the foregoing, for purposes of determining compliance with subsection 7.2, adjustments resulting from any accumulated other comprehensive income as reflected on the most recent publicly available consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries as at the end of any fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of any
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fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be deemed not to be included in Consolidated Capital Base.
“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 any indebtedness for borrowed money 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. Notwithstanding the foregoing, for purposes of determining compliance with subsection 7.2, indebtedness for borrowed money in respect of any Securitization Indebtedness shall be deemed not included in Consolidated Senior Debt.
“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.
“Corresponding Tenor”: with respect to any Available Tenor, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Credit Rating”: as of any date, (a) as to any Person, the rating assigned to the relevant long term senior unsecured (and non-credit enhanced) Debt obligations of such Person by Moody’s, S&P or Fitch, in each case as of the close of business on such date and (b) if no rating for such Debt described in clause (a) is available, the corporate credit rating of such Person as announced by Moody’s, S&P or Fitch, in each case as of the close of business on such date.
“Currency”: any Dollars and any Foreign Currency.
“Daily Simple SOFR”: for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided that, if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Daily Simple SONIA”: for any day (a “SONIA Interest Day”), an interest rate per annum equal to (a) SONIA for the day that is five SONIA Business Days (such fifth SONIA Business Day determined pursuant to each of subclauses (i) and (ii), the “SONIA Lookback Day”) prior to (i) if such SONIA Interest Day is a SONIA Business Day, such SONIA Interest Day or (ii) if such SONIA Interest Day is not a SONIA Business Day, the SONIA Business Day immediately preceding such SONIA Interest Day or (b) if SONIA is not available for the SONIA Lookback Day determined pursuant to clause (a) above, by 5:00 p.m., London time on any day of determination of Daily Simple SONIA, then Daily Simple SONIA for such day will be SONIA as published in respect of the first preceding SONIA Business Day prior to the SONIA Lookback Day for which SONIA was published on the SONIA
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Administrator’s Website; provided that Daily Simple SONIA determined pursuant to this clause (b) shall be utilized for purposes of calculation of Daily Simple SONIA for no more than three consecutive SONIA Interest Days and thereafter subsection 2.11(a) shall govern. Any change in Daily Simple SONIA due to a change in SONIA shall be effective from and including the effective date of such change in SONIA without notice to the Borrower.
“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, 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.
“Defaulting Bank”: any Bank that has (a) failed to fund any portion of its Loans within two Business Days of the date required to be funded by it hereunder, unless such Bank has notified the Administrative Agent and the Borrower that such failure is the result of such Bank’s good faith determination that one or more conditions precedent to funding has not been satisfied; (b) notified the Company, the Administrative Agent, any Bank in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or generally under other agreements in which it commits to extend credit; (c) failed, within three Business Days after written request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans; provided that such Bank shall cease to be a Defaulting Bank pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower; (d) otherwise failed to pay over to the Administrative Agent or any other Bank any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute; or (e) (i) become or is insolvent or has a parent company that has become or is insolvent, (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or (iii) become or has a parent company that has become the subject of a Bail-In Action; provided that a Bank shall not be a Defaulting Bank solely by virtue of the ownership or acquisition of any equity interest in that Bank or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Bank with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Bank (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Bank. If any Bank shall become a Defaulting Bank, the Company shall have the right, so long as no Event of Default has occurred and is then continuing, upon giving written notice to the Administrative Agent and such Bank in accordance with subsection 2.6, notwithstanding subsection 2.12(b), 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 commitment fee or other amount payable to such Bank hereunder and/or, upon giving not less than three Business Days’ notice to such Bank and the Administrative Agent, to cancel the whole or part of the Commitment of any such Bank.
“Designated Person”: a Person
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(i) listed in the annex to, or otherwise the subject of the provisions of, any Executive Order;
(ii) named as a “Specially Designated National and Blocked Person” on the most current list published by OFAC at its official website or any replacement website or other replacement official publication of such list (each, an “SDN”), or is otherwise the subject of any Sanctions Laws and Regulations; or
(iii) in which an SDN has a controlling interest of 50% or greater ownership interest.
“Dividing Person”: as defined in the definition of Division.
“Division”: the statutory division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement) pursuant to Section 18-217 of the Delaware Limited Liability Company Act, which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Division Successor”: any person that, upon the consummation of a Division of a Dividing Person, holds all or substantially all of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division.
“Documentation Agent”: as defined in the preamble hereto.
“Dollar Equivalent”: at any time as to any amount denominated in a Foreign Currency, the equivalent amount in Dollars as reasonably determined by the Administrative Agent at such time on the basis of the Exchange Rate for the purchase of Dollars with such Foreign Currency on (a) in the case of a determination made pursuant to subsection 2.11(g), the date of such conversion and (b) in the case of any other determination, the most recent Calculation Date for such Foreign Currency.
“Dollar Loan”: any Committed Rate Loan denominated in Dollars.
“Dollars” and “$”: dollars in lawful currency of the United States of America.
“Domestic Bank”: any Bank organized under the laws of the United States of America, any State thereof or the District of Columbia.
“Early Opt-in Election”:
(a) in the case of Loans denominated in Dollars, the occurrence of:
(1) a notification by the Administrative Agent to (or the request by the Company to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2) the joint election by the Administrative Agent and the Company to trigger a fallback from the Eurocurrency Rate for Loans denominated in Dollars and the provision by the Administrative Agent of written notice of such election to the Banks; and
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(b) in the case of Loans denominated in any Foreign Currency, the occurrence of:
(1) (i) a determination by the Administrative Agent or the Company (as notified to the Administrative Agent) or (ii) a notification by the Majority Banks to the Administrative Agent (with a copy to the Borrowers) that the Majority Banks have determined that at least five currently outstanding syndicated credit facilities denominated in the applicable Foreign Currency at such time contain (as a result of an amendment or as originally executed) a new benchmark interest rate to replace the Relevant Rate (and such syndicated credit facilities are identified in such notice and are publicly available for review); and
(2) (i) the joint election by the Administrative Agent and the Company or (ii) the election by the Majority Banks to declare that an Early Opt-in Election has occurred with respect to Loans denominated in such applicable Foreign Currency and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrowers and the Banks, by the Company of written notice of such election to the Administrative Agent or by the Majority Banks of written notice of such election to the Administrative Agent.
“EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”: any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Signature”: an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“EMU”: the Economic and Monetary Union as contemplated in the Treaty.
“Equipment Operations”: those business segments of the Company and its consolidated Subsidiaries that are primarily engaged in the manufacture and distribution of equipment, parts and related attachments.
“Equipment Operations Debt”: at a particular time, the sum of short-term and long-term indebtedness for borrowed money that is or would be shown on a balance sheet of Equipment Operations (with Financial Services reflected only on an equity basis), which balance sheet was or would be prepared on the basis of the most recent publicly available consolidated balance sheet of the Company and its consolidated Subsidiaries 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).
“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time.
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“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Euro”: the single currency of Participating Member States of the EMU introduced in accordance with the provisions of Article 123 of the Treaty and, in respect of all payments to be made under this Agreement in Euro, means immediately available, freely transferable funds in such currency.
“Eurocurrency Loans”: Committed Rate Loans at such time as they are made and/or being maintained at a rate of interest based upon a Eurocurrency Rate.
“Eurocurrency Rate”: (a) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan and for each Index Rate Bid Loan, denominated in Dollars or any relevant Foreign Currency, other than Canadian Dollars, Australian Dollars, New Zealand Dollars and, Euros and Pounds Sterling, the London interbank offered rate as administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for such Currency for a tenor equal in length to such Interest Period as displayed on page LIBOR01 or LIBOR02 of the Reuters Screen (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in consultation with the Borrowers; in each case, the “LIBOR Screen Rate”) at approximately 11:00 A.M., Local Time, two Business Days prior to the beginning of such Interest Period (or, in the case of any Eurocurrency Loan denominated in Pounds Sterling, on the first day of such Interest Period); provided that, if the LIBOR Screen Rate shall not be available at such time for such Interest Period (a “LIBOR Impacted Interest Period”) with respect to the relevant Currency, then the Eurocurrency Rate shall be the LIBOR Interpolated Rate at such time. “LIBOR Interpolated Rate” means, at any time, the rate per annum determined by the Administrative Agent to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBOR Screen Rate for the longest period (for which that LIBOR Screen Rate is available in the relevant Currency) that is shorter than the LIBOR Impacted Interest Period and (b) the LIBOR Screen Rate for the shortest period (for which that LIBOR Screen Rate is available for the relevant Currency) that exceeds the LIBOR Impacted Interest Period, in each case, at such time.
(b) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in Canadian Dollars, the rate per annum equal to the average rate for bankers acceptances as administered by Thomson Reuters Benchmark Services Limited (or any other Person that takes over the administration of such rate) for a tenor equal in length to such Interest Period as displayed on page CDOR of the Reuters Screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “CDOR Screen Rate”) at approximately 11:00 A.M., Local Time, on the first day of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent); provided, that, if the CDOR Screen Rate shall not be available at such time for such Interest Period (a “CDOR Impacted Interest Period”) with respect to Canadian Dollars, then the Eurocurrency Rate for Canadian Dollars shall be the CDOR Interpolated Rate at such time. “CDOR Interpolated Rate” means, at any time, the rate per annum determined by the Administrative Agent to be equal to the rate that results from interpolating on a linear basis between: (a) the CDOR Screen Rate for the longest period (for which that CDOR Screen Rate is available in Canadian Dollars) that is shorter than the CDOR Impacted Interest Period and (b) the CDOR Screen Rate for the shortest period (for which that CDOR Screen Rate is available for Canadian Dollars) that exceeds the CDOR Impacted Interest Period, in each case, at such time.
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(c) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in Australian Dollars, the rate per annum equal to the average bid reference rate as administered by the Australian Financial Markets Association (or any other Person that takes over the administration of that rate) for Australian Dollar bills of exchange with a tenor equal in length to such Interest Period (or as close to such Interest Period as possible), displayed on page BBSY of the Reuters Screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “BBSY Screen Rate”) at approximately 11:00 A.M., Local Time, two Business Days prior to the beginning of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent); provided, that, if the BBSY Screen Rate shall not be available at such time for such Interest Period, the Administrative Agent may substitute for such rate with an alternative published interest rate reasonably acceptable to the applicable Borrower (or other rate basis agreed by the applicable Borrower and the Administrative Agent, including interpolation in a manner consistent with paragraphs (a) and (b) above).
(d) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in New Zealand Dollars, the rate per annum equal to the average bid reference rate as administered by the New Zealand Financial Markets Association (or any other Person that takes over the administration of that rate) for New Zealand Dollar bills of exchange with a tenor equal in length to such Interest Period (or as close to such Interest Period as possible), displayed on page BKBM of the Reuters Screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “BKBM Screen Rate”) at approximately 11:00 A.M., Local Time, on the first day of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent); provided, that, if the BKBM Screen Rate shall not be available at such time for such Interest Period, the Administrative Agent may substitute such rate with an alternative published interest rate reasonably acceptable to the applicable Borrower (or other rate basis agreed by the applicable Borrower and the Administrative Agent, including interpolation in a manner consistent with paragraphs (a) and (b) above).
(e) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in Euros, the rate per annum equal to the interbank offered rate administered by the European Money Markets Institute (or any other Person that takes over the administration of such rate) for a tenor equal in length to such Interest Period as displayed on page on Reuters Page EURIBOR01 (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “EURIBOR Screen Rate”) at approximately 11:00 a.m., Local Time, two Business Days prior to the beginning of such Interest Period; provided, that, if the EURIBOR Screen Rate shall not be available at such time for such Interest Period, the Administrative Agent may substitute such rate with an alternative published interest rate reasonably acceptable to the applicable Borrower (or other rate basis agreed by the applicable Borrower and the Administrative Agent, including interpolation in a manner consistent with paragraphs (a) and (b) above).
Notwithstanding the above, in no event shall the Eurocurrency Rate be less than zero.
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“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.
“Exchange Rate”: on any day, the rate at which the starting Currency may be exchanged into the other relevant Currency, as set forth at approximately 10:00 A.M., Local Time, on such date on the Reuters World Spots page for such starting Currency. In the event that such rate does not appear on any Reuters World Spots page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates reasonably selected by the Administrative Agent.
“Exposure”: (a) with respect to an Objecting Bank at any time, the aggregate amount of such Bank’s Loans then outstanding and (b) with respect to any other Bank at any time, the Commitment of such Bank then in effect or, if the Commitments have been terminated, the amount of such Bank’s Loans then outstanding.
“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.
“FATCA”: Sections 1471 through 1474 of the Code (and any comparable successor provisions), any effective regulations published thereunder or official interpretations thereof issued by any Governmental Authority charged with the administration thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any applicable intergovernmental agreements with respect thereto, and any treaty, law, regulations, or other official guidance enacted in any other jurisdiction relating to such intergovernmental agreement.
“Federal Funds Effective Rate”: on any particular date, 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 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; provided that in no event shall the Federal Funds Effective Rate be less than zero.
“Federal Reserve Board”: the Board of Governors of the Federal Reserve System of the United States of America.
“Financial Services”: the businesses of the Company (including the credit businesses) that are not primarily engaged in Equipment Operations.
“First Amendment”: the First Amendment to this Agreement, dated as of the First Amendment Effective Date.
“First Amendment Effective Date”: October 26, 2021.
“Fitch”: Fitch Ratings Inc.
“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
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operating leases; provided, that, notwithstanding the foregoing, consolidated interest on Securitization Indebtedness and amortization of Securitization Indebtedness shall be deemed not included in Fixed Charges; provided, further, that such amounts (but not any amounts constituting consolidated interest on, or amortization of, Securitization Indebtedness) 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.
“Floor” the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Eurocurrency Rate, Adjusted Daily Simple SONIA or the Central Bank Rate, as applicable.
“Foreign Bank”: any Bank that is not a Domestic Bank.
“Foreign Currency”: (a) Euros, Pounds Sterling, Australian Dollars and Canadian Dollars, (b) upon the earlier of (i) confirmation by Deutsche Bank AG, New York Branch to the Administrative Agent that it (or a branch or affiliate thereof) can fund in New Zealand Dollars and (ii) Deutsche Bank AG, New York Branch ceasing to be a Bank hereunder, New Zealand Dollars and (c) as agreed by the Administrative Agent, any other Currency which is freely traded and convertible into Dollars in the London interbank market and for which the Dollar Equivalent thereof can be calculated from time to time.
“Foreign Currency Agent”: J.P. Morgan AG, or any successor appointed pursuant to this Agreement.
“Foreign Currency Equivalent”: at the time of determination or conversion thereof, as applicable, as to any amount denominated or expressed in Dollars, the equivalent amount in the applicable Foreign Currency as reasonably determined by the Administrative Agent at such time on the basis of the Exchange Rate for the purchase of such Foreign Currency with Dollars on such date.
“Foreign Currency Loan”: each Loan denominated in a Foreign Currency.
“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 November 1, 2020, except with respect to capital lease obligations, in which case the 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 January 1, 2015 shall apply.
“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.
“Hedging Transaction”: any swap transaction, interest rate protection agreement (including any interest rate swap, interest “cap” or “collar” or any other interest rate hedging device entered into by the Capital Corporation or one or more of its Subsidiaries), option agreement, short or long position in equity or debt instruments, commodities, futures and forward transactions,
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outperformance agreement or other similar transaction, agreement or arrangement entered into by the Capital Corporation or one or more of its Subsidiaries.
“IBA”: has the meaning assigned to such term in subsection 1.4.
“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.
“Increasing Bank”: as defined in subsection 2.20(c).
“Indemnified Person”: as defined in subsection 10.4(b).
“Indemnified Taxes”: as defined in subsection 2.17(a).
“Index Debt”: any senior, unsecured, non-credit enhanced long-term debt issued by 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 Eurocurrency Loan is converted to an ABR Loan, (b) as to any Eurocurrency Loan, the last day of each Interest Period applicable thereto, provided that as to any Eurocurrency Loan in respect of which a Borrower has selected an Interest Period of greater than three months, interest shall also be paid on the day which is three months after the beginning of such Interest Period and, (c) as to any SONIA Loan, each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing Date of such Loan (or if there is no numerically corresponding day in such later month, then the last day of such month) and (d) the Termination Date.
“Interest Period”: (a) with respect to any Eurocurrency Loan, the period commencing on the Borrowing Date, the date any ABR Loan is converted to a Eurocurrency Loan or the date any Eurocurrency Loan is continued as a Eurocurrency Loan, as the case may be, with respect to such Eurocurrency Loan and ending one, two (so long as a two-month Interest Period is published and available), three or six months thereafter in the case of any Eurocurrency Loan denominated in any Currency other than Canadian Dollars (or, with the consent of all relevant Banks, twelve months thereafter, or a period of less than one month thereafter if all relevant Banks consent to such period), or thirty, sixty, or ninety days thereafter in the case of any Eurocurrency Loan denominated in Canadian Dollars, as selected by a Borrower in its notice of borrowing, conversion or continuance as provided in subsection 2.1(c) or 2.9;
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(b) 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
(c) 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:
“IRS”: as defined in subsection 2.17(c).
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“ISDA Definitions”: the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“JD Luxembourg”: as defined in the preamble hereto.
“JPMorgan Chase Bank, N.A.”: JPMorgan Chase Bank, N.A., a national association.
“Judgment Currency”: as defined in subsection 2.24.
“Level”: Level I Rating, Level II Rating, Level III Rating, Level IV Rating or Level V Rating, as the context shall require.
“Level I Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is Aa3 or higher by Moody’s, AA- or higher by S&P and AA- or higher by Fitch.
“Level II Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is A1 by Moody’s, A+ by S&P and A+ by Fitch.
“Level III Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is A2 by Moody’s, A by S&P and A by Fitch.
“Level IV Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is A3 by Moody’s, A- by S&P and A- by Fitch.
“Level V Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is below A3 by Moody’s, below A- by S&P and below A- by Fitch.
“LIBOR Screen Rate”: as defined in the definition of Eurocurrency Rate.
“Loan Account”: as defined in subsection 2.3; collectively, the “Loan Accounts”.
“Loan Assignees”: as defined in subsection 10.5(c).
“Loan Assignment”: an Assignment and Assumption, substantially in the form of Exhibit E.
“Loan Documents”: this Agreement, including schedules and exhibits hereto, and the Notes.
“Loans”: the collective reference to the Committed Rate Loans, the Bid Loans and the Negotiated Rate Loans.
“Local Time”: (a) in the case of Foreign Currency Loans denominated in Canadian Dollars, Toronto, Ontario time, (b) in the case of Foreign Currency Loans denominated in Australian Dollars, Sydney, Australia time, (c) in the case of Foreign Currency Loans denominated in New Zealand Dollars, Wellington, New Zealand time, (d) in the case of Foreign Currency Loans denominated in Euros, Brussels time, (e) in the case of all other Foreign Currency Loans, London time and (f) in all other cases, New York time.
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“Losses”: as defined in subsection 10.4(b).
“Luxembourg Obligations”: the collective reference to the unpaid principal of and interest on the Loans made to JD Luxembourg and all other obligations and liabilities of JD Luxembourg (including, without limitation, interest accruing at the then applicable rate provided herein after the maturity of such Loans and interest accruing at the then applicable rate provided herein after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to JD Luxembourg, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) to the Administrative Agent or any Bank, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement or any other document made, delivered or given in connection with any of the foregoing, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Administrative Agent or to the Banks that are required to be paid by JD Luxembourg pursuant to the terms of any of the foregoing agreements).
“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.
“Margin Stock”: as defined in Regulation U of the Board.
“Moody’s”: Moody’s Investor Service, Inc.
“Mortgage”: as defined in subsection 6.2.
“Negotiated Rate Loan”: each Loan made to the Company or the Capital Corporation 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 the Company or the Capital Corporation 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, the sum of (i) 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
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Subsidiaries, rather than as an offset against the provision for income taxes and (ii) Support Payments received by the Capital Corporation in or in respect of such period.
“New Bank”: as defined in subsection 2.20(b).
“New Bank Supplement”: as defined in subsection 2.20(b).
“New Zealand Dollars”: the lawful currency of New Zealand.
“Non-Qualifying Bank”: as defined in subsection 2.17(e).
“Notes”: the collective reference to any promissory note evidencing Loans.
“NYFRB”: the Federal Reserve Bank of New York.
“NYFRB Rate”: for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Objecting Banks”: as defined in subsection 2.16(a).
“Offered Increase Amount”: as defined in subsection 2.20(a).
“Overnight Bank Funding Rate”: for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Overnight Rate”: for any day, (a) with respect to any amount denominated in Dollars, the Federal Funds Effective Rate, and (b) with respect to any amount denominated in a Foreign Currency, at a rate reasonably determined by the Administrative Agent to be the cost to it of funding such amounts.
“Participant Register”: as defined in subsection 10.5(b).
“Participants”: as defined in subsection 10.5(b).
“Participating Member State”: any member state of the European Community that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.
“Payment”: as defined in subsection 9.4(b).
“Payment Notice”: as defined in subsection 9.4(b).
“Person”: an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever
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nature, provided that for purposes of subsection 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.
“Pounds” or “£” or “Pounds Sterling”: the lawful currency of the United Kingdom.
“Prevailing Rating”: at any date of determination, the Level then applicable; provided that for purposes of determining the applicable Level when the assigned Credit Ratings of the Company by all three Ratings Agencies do not fall within the same Level: (i) if the Credit Ratings of the Company assigned by S&P and Moody’s fall within the same Level, the Prevailing Rating shall be such Level, (ii) if the Credit Ratings of the Company assigned by S&P and Moody’s do not fall within the same Level and the ratings differential is one Level, the Prevailing Rating shall be determined solely by reference to the higher of (x) the Credit Rating of the Company assigned by S&P and (y) the Credit Rating of the Company assigned by Moody’s and (iii) if the Credit Ratings of the Company assigned by S&P and Moody’s do not fall within the same Level and the ratings differential is more than one Level, the Prevailing Rating shall be the Level one notch lower than the Level determined solely by reference to the higher of (x) the Credit Rating of the Company assigned by S&P and (y) the Credit Rating of the Company assigned by Moody’s.
“Prime Rate”: the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Purchasing Banks”: as defined in subsection 10.5(d).
“Ratings Agencies”: S&P, Moody’s and Fitch.
“Re-Allocation Date”: as defined in subsection 2.20(e).
“Reference Time”: with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Eurocurrency Rate with respect to Loans denominated in Dollars or Pounds Sterling, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is SONIA, then four SONIA Business Days prior to such setting and (3) otherwise, the time determined by the Administrative Agent in its reasonable discretion.
“Register”: as defined in subsection 10.5(e).
“Relevant Governmental Body”: (a) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto and, (b) with respect to a Benchmark Replacement in respect of Loans denominated in Pounds Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto and (c) with respect to a Benchmark Replacement in respect of Loans denominated in any Foreign Currency (other than Pounds Sterling), (i) the central bank
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for the Foreign Currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (ii) any working group or committee officially endorsed or convened by (1) the central bank for the Foreign Currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board or any part thereof.
“Relevant Rate”: with respect to (i) any Eurocurrency Loan denominated in any Currency, the Eurocurrency Rate applicable thereto and (ii) any Loan denominated in Pounds Sterling, Adjusted Daily Simple SONIA.
“Report Period”: as defined in subsection 2.18.
“Reportable Event”: any of the events set forth in Section 4043(c) 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) 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.
“Reserves”: as defined in subsection 2.13(c).
“Resolution Authority”: an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”: of a Borrower, the Chairman, the President, any Executive, Senior or other Vice President, the Treasurer, any Assistant Secretary 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) 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
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officers’ certificate signed by two Responsible Officers of the Company and delivered to the Administrative Agent.
“S&P”: Standard and Poor’s Financial Services LLC.
“Sale and Lease-back Transaction”: as defined in subsection 6.3.
“Sanctions Laws and Regulations”:
(i) any sanctions, prohibitions or requirements imposed by any executive order (an “Executive Order”) or by any sanctions program administered by the U.S. Department of the Treasury Office of Foreign Assets Control (“OFAC”), the U.S. State Department Directorate of Defense Trade Controls or the U.S. Department of Commerce Bureau of Industry and Security; and
(ii) any sanctions measures imposed by the United Nations Security Council, the European Union or the United Kingdom.
“Screen Rate”: the LIBOR Screen Rate, the CDOR Screen Rate, the EURIBOR Screen Rate, the BBSY Screen Rate and/or the BKBM Screen Rate, as applicable.
“Securitization Indebtedness”: the aggregate outstanding indebtedness for borrowed money, owner trust certificates (however classified) or credit enhancements incurred in connection with transactions involving (i) the sale, transfer or other disposition of receivables or leases (retail or wholesale) by the Capital Corporation or any of its Subsidiaries and (ii) the issuance of commercial paper, medium term notes or any other form of financing by any structured bankruptcy-remote Subsidiary of the Capital Corporation or any related conduit lender (such transactions, “Securitizations”), provided, that the aggregate outstanding credit enhancements in the form of cash or letter(s) of credit provided by the Capital Corporation or any of its Subsidiaries (other than any structured bankruptcy-remote Subsidiary) in excess of 10% of the aggregate outstanding indebtedness for borrowed money and owner trust certificates (however classified) incurred in connection with such Securitizations shall not be deemed for the purposes of this Agreement to be Securitization Indebtedness, but shall be deemed for purposes of subsection 7.2 to be Consolidated Senior Debt.
“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.
“SOFR”: with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website at approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day.
“SOFR Administrator”: the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website”: the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
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“SONIA”: with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the SONIA Administrator on the SONIA Administrator’s Website on the immediately succeeding Business Day.
“SONIA Administrator”: the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA Administrator’s Website”: the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
“SONIA Borrowing”: as to any borrowing, the SONIA Loans comprising such borrowing.
“SONIA Business Day”: for any Loan denominated in Pounds Sterling, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London.
“SONIA Interest Day”: has the meaning specified in the definition of “Daily Simple SONIA”.
“SONIA Loan”: a Loan that bears interest at a rate based on Adjusted Daily Simple SONIA.
“SONIA Lookback Day”: has the meaning specified in the definition of “Daily Simple SONIA”.
“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.
“Support Payments”: payments from the Company to the Capital Corporation made pursuant to that certain Support Agreement, dated as October 15, 1996, by and between the Company and the Capital Corporation, as amended by the First Amended Agreement, dated as of November 1, 2003, between the Company and the Capital Corporation.
“Syndication Agent”: as defined in the preamble hereto.
“Termination Date”: the date which is 364 days after the Closing Date or such later date as shall be determined pursuant to the provisions of subsection 2.16 with respect to non-Objecting Banks.
“Term Out Option”: as defined in subsection 2.1(d).
“Term SOFR”: for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term SOFR Notice”: a notification by the Administrative Agent to the Banks and the Borrowers of the occurrence of a Term SOFR Transition Event.
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“Term SOFR Transition Event”: the determination by the Administrative Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event has previously occurred resulting in a Benchmark Replacement in accordance with subsection 2.11 that is not Term SOFR.
“Total Commitments”: at any time, the aggregate amount of the Commitments then in effect.
“Total Stockholders’ Equity”: at a particular time, the total stockholders’ equity, exclusive of adjustments resulting from any accumulated other comprehensive income of the Company and its consolidated Subsidiaries as at the end of any fiscal quarter (including the last quarter of any fiscal year) as determined in accordance with GAAP.
“Transferees”: as defined in subsection 10.5(g).
“Transfer Effective Date”: the effective date of an assignment of Loans or Commitments under a Loan Assignment.
“Treaty”: the Treaty establishing the European Economic Community, being the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1987, the Maastricht Treaty (which was signed at Maastricht on February 7, 1992 and came into force on November 1, 1993), the Amsterdam Treaty (which was signed at Amsterdam on October 2, 1997 and came into force on May 1, 1999) and the Nice Treaty (which was signed on February 26, 2001), each as amended from time to time and as referred to in legislative measures of the European Union for the introduction of, changeover to or operating of the Euro in one or more member states.
“Type”: as to any Committed Rate Loan, its nature as an ABR Loan, SONIA Loan or Eurocurrency Loan.
“UK Financial Institution”: any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority”: the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement”: the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Withholding Agent”: any Borrower or the Administrative Agent, as the case may be.
“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.
“Write-Down and Conversion Powers”: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion
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powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurocurrency Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. Upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-In Election with respect to any applicable Currency, subsection 2.11(b) and (c) provide a mechanism for determining an alternative rate of interest. The Administrative Agent will promptly notify the Borrower, pursuant to subsection 2.11(e), of any change to the reference rate upon which the interest rate on Eurocurrency Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to Daily Simple SONIA, the London interbank offered rate or other rates in the definition of “Eurocurrency Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to subsection 2.11(b) or (c), whether upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes pursuant to subsection 2.11(d)), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate for any Currency will be similar to, or produce the same value or economic equivalence of, Adjusted Daily Simple SONIA, the Eurocurrency Rate or applicable Screen Rate for Loans denominated in such Currency or have the same volume or liquidity as did the London interbank offered rate (or the euro interbank offered rate, as applicable) prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of Adjusted Daily Simple SONIA, any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrowers. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain SONIA or Daily Simple SONIA, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrowers, any Bank or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
SECTION 2. | THE COMMITTED RATE LOANS; THE BID LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS |
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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 Dollar Equivalent of 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 Dollar Equivalent of the aggregate outstanding principal amount of all Loans does not at any time exceed the aggregate amount of the Commitments.
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time, reduce the amount of the Commitments, provided that (i) any such reduction shall be accompanied by prepayment of Committed Rate Loans hereunder, together with accrued interest on the amount so prepaid to the date of such prepayment, to the extent, if any, that the Dollar Equivalent of the aggregate outstanding principal amount of all Loans exceeds the amount of the Commitments as then reduced and (ii) any such termination of the Commitments shall be accompanied by prepayment in full of the Loans then outstanding hereunder in accordance with subsection 2.6 together with accrued fees and interest thereon 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 commitment 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.
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(b) If, on any Calculation Date, the aggregate principal amount of Loans outstanding on such date exceed the Total Commitments, on such date, the Borrowers shall, without notice or demand, within five Business Days (i) repay Loans in an aggregate principal amount such that, after giving effect thereto, the aggregate principal amount of Loans outstanding shall be equal to or less than the Total Commitments and (ii) pay interest and fees accrued to the date of such payment, prepayment or reduction on the principal so prepaid or reduced and any amounts payable under subsection 2.14 in connection therewith.
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(c)(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) or, (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 Eurocurrency Loan denominated in Dollars, be converted to an ABR Loan at the end of the Interest Period applicable thereto.
(d)(e) Interest shall be payable in arrears on each Interest Payment Date.
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for actual days elapsed. The Administrative Agent shall promptly notify the Borrowers and the Banks of each determination of a Eurocurrency Rate and/or Daily Simple SONIA. Any change in the interest rate on a Committed Rate Loan resulting from a change in ABR shall become effective as of the opening of business on the day on which such change in ABR shall become effective. The Administrative Agent or the Foreign Currency Agent, as applicable, shall promptly notify the Borrowers and the Banks of the effective date and the amount of each such change.
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Eurocurrency Loans denominated in Dollars (in the case of clause (i) above) or Eurocurrency Loans or SONIA Loans, in each case in an Affected Foreign Currency, shall be made or, with respect to such Eurocurrency Loans, continued as such, nor shall the Borrower have the right to convert ABR Loans to Eurocurrency Loans.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark with respect to a Loan denominated in any Currency, then (x) if a Benchmark Replacement for a Loan denominated in such Currency is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for a Loan denominated in such Currency for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement for a Loan denominated in such Currency is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Banks without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Banks comprising the Majority Banks.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, solely with respect to a Loan denominated in Dollars, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (c) shall not be effective unless the Administrative Agent has delivered to the Banks and the Company a Term SOFR Notice.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent, in consultation with the Company, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Company and the Banks of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Bank (or group of Banks) pursuant to this subsection 2.11, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be
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made in its or their sole discretion and without consent from any other party hereto or any other Loan Document, except, in each case, as expressly required pursuant to this subsection 2.11.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or Eurocurrency Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Relevant Rate applicable to any Eurocurrency Loan, and or SONIA Loan, as applicable, and, with respect to such Eurocurrency Loans, during the continuance thereof (in each case below, to the extent such Benchmark Unavailability Period is in respect of the Relevant Rate applicable to such Eurocurrency Loan or such SONIA Loan, as applicable), (i) a Borrower may revoke any request for a Eurocurrency Loan or SONIA Loan to be made during such Benchmark Unavailability Period, and, failing that, the applicable Borrower will be deemed to have converted such request for a Eurocurrency Loan denominated in Dollars into a request for an ABR Loan and (ii) any request for a Eurocurrency Loan denominated in a Foreign Currency or a SONIA Loan shall be ineffective. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any Eurocurrency Loan in any Currency or SONIA Loan is outstanding on the date of the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Relevant Rate applicable to such Eurocurrency Loan or SONIA Loan, as applicable, then (i) if such Eurocurrency Loan is denominated in Dollars, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars on such day or, (ii) if such Eurocurrency Loan is denominated in any Foreign Currency, such Loan shall, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), at the applicable Borrower’s election prior to such day: (A) be prepaid by the applicable Borrower on such day or (B) be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars (in an amount equal to the Dollar Equivalent of the amount of such Eurocurrency Loan on such day (it being understood and agreed that if the applicable Borrower does not so prepay such Loan on such day by 12:00 noon, Local Time, the Administrative Agent is authorized to effect such conversion of such Eurocurrency Loan into an ABR Loan denominated in Dollars)); provided that, in the case of this subclause (B), upon any subsequent implementation of a Benchmark Replacement in respect of such Foreign Currency pursuant to this subsection 2.11, such ABR Loan denominated in Dollars shall then be converted by the Administrative Agent to, and shall constitute, a Eurocurrency Loan denominated in the original Foreign Currency applicable to such Loan (in an amount equal to the Foreign Currency Equivalent of the amount of such ABR Loan) on the day of, and after giving effect to, such implementation. or (iii) such SONIA Loan shall bear interest at the Central Bank Rate for Pounds Sterling plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall
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be conclusive and binding absent manifest error) that the Central Bank Rate for Pounds Sterling cannot be determined, any outstanding affected SONIA Loans, at the Company’s election, shall either (A) be converted into ABR Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of Pounds Sterling) immediately or (B) be prepaid in full immediately.
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(i)such Bank or Banks may declare that Foreign Currency Loans (in the affected Currency or Currencies) will not thereafter (for the duration of such unlawfulness) be made by such Bank or Banks hereunder (or be continued for additional Interest Periods), whereupon any request for a Foreign Currency Loan (in the affected Currency or Currencies) or to continue a Foreign Currency Loan (in the affected Currency or Currencies, as the case may be, for an additional Interest Period) shall, as to such Bank or Banks only, be of no force and effect, unless such declaration shall be subsequently withdrawn; and
(ii)such Bank may require that all outstanding Foreign Currency Loans (in the affected Currency or Currencies), made by it be converted to ABR Loans or Eurocurrency Loans denominated in Dollars, as the case may be (unless repaid by the Borrowers), in which event all such Foreign Currency Loans (in the affected Currency or Currencies) shall be converted to ABR Loans or Eurocurrency Loans denominated in Dollars, as the case may be, as of the effective date of such notice as provided in paragraph (f) below and at the Exchange Rate on the date of such conversion or, at the option of the Borrower, repaid on the last day of the then current Interest Period with respect thereto or, if earlier, the date on which the applicable notice becomes effective.
In the event any Bank shall exercise its rights under (i) or (ii) above, all payments and prepayments of principal that would otherwise have been applied to repay the converted Foreign Currency Loans of such Bank shall instead be applied to repay the ABR Loans or Loans denominated in Dollars, as the case may be, made by such Bank resulting from such conversion.
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(b) With respect to SONIA Loans, 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 (i) 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, (ii) default by such Borrower in making a borrowing after such Borrower has given a notice in accordance with subsection 2.1, 2.2 or 2.9, (iii) 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 (iv) the making by such Borrower of a prepayment of a SONIA Loan on a day which is not the payment date with respect thereto, 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 SONIA 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.
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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 applicable Overnight Rate. 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.
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The obligations of the parties under this subsection 2.17 shall survive termination of this Agreement and payment of the Loans.
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Commitments pursuant to paragraph (b) below. No Bank has an obligation to increase its Commitment pursuant to this subsection 2.20 except in its sole discretion.
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The rights and remedies against a Defaulting Bank under this subsection 2.23 are in addition to other rights and remedies that the Borrowers may have against such Defaulting Bank.
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In the event and on the date that the Administrative Agent and the Company each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then such Bank shall purchase at par such of the Loans of the other Banks (other than Negotiated Rate Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Commitment Percentage and such Bank shall no longer be a Defaulting Bank; provided, that subject to subsection 10.15, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, including any claim of a Non-Defaulting Bank as a result of such Non-Defaulting Bank’s increased exposure following such reallocation.
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Administrative Agent, for the ratable benefit of the Banks and their respective successors, indorsees, transferees and assigns, the prompt and complete payment by JD Luxembourg when due (whether at the stated maturity, by acceleration or otherwise) of the Luxembourg Obligations.
The Capital Corporation waives promptness, diligence, presentment to, demand of payment from and protest to JD Luxembourg of any Luxembourg Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of the Capital Corporation hereunder shall be absolute and unconditional and not be affected by (a) the failure of any Bank or the Administrative Agent to assert any claim or demand or to enforce any right or remedy against JD Luxembourg under the provisions of this Agreement or otherwise; (b) any rescission, waiver, amendment or modification of any of the terms or provisions of this Agreement or any other agreement; (c) the failure of any Bank to exercise any right or remedy against JD Luxembourg; (d) the invalidity or unenforceability of this Agreement; or (e) any other circumstance which might otherwise constitute a defense available to or discharge of JD Luxembourg (other than payment).
The Capital Corporation further agrees that its agreement hereunder constitutes a promise of payment when due and not of collection, and waives any right to require that any resort be had by any Bank to any balance of any deposit account or credit on the books of any Bank in favor of JD Luxembourg or any other Person.
The obligations of the Capital Corporation hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of the Luxembourg Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Capital Corporation hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any Bank to assert any claim or demand or to enforce any remedy under this Agreement or any other agreement, by any waiver or modification in respect of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Luxembourg Obligations, or by any other act or omission which may or might in any manner or to any extent vary the risk of the Capital Corporation or otherwise operate as a discharge of the Capital Corporation as a matter of law or equity.
The Capital Corporation further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Luxembourg Obligation is rescinded or must otherwise be restored by the Administrative Agent or any Bank upon the bankruptcy or reorganization of JD Luxembourg or otherwise.
In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent or any Bank may have at law or in equity against the Capital Corporation by virtue hereof, upon the failure of JD Luxembourg to pay any Luxembourg Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the Capital Corporation hereby promises to and will, upon receipt of written demand by the Administrative Agent, forthwith pay, or cause to be paid, in cash the amount of such unpaid Luxembourg Obligation. In the event that, by reason of the bankruptcy of JD Luxembourg, (i) acceleration of Loans made to JD Luxembourg is prevented and (ii) the Capital Corporation shall not have prepaid the outstanding Loans and other amounts due hereunder owed by JD Luxembourg, the Capital Corporation will forthwith purchase such Loans at a price equal to the principal amount thereof plus accrued interest thereon and any other amounts due hereunder with respect thereto. The Capital Corporation further agrees that if payment in respect of any Luxembourg Obligation shall be due in a currency other than Dollars and/or at a place of payment other than New York and if, by reason of any change in law, disruption of currency or foreign
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exchange markets, war or civil disturbance or similar event, payment of such Luxembourg Obligation in such currency or such place of payment shall be impossible or, in the reasonable judgment of any applicable Bank, not consistent with the protection of its rights or interests, then, at the election of any applicable Bank, the Capital Corporation shall make payment of such Luxembourg Obligation in Dollars (based upon the applicable Exchange Rate in effect on the date of payment) and/or in New York.
Notwithstanding any payment made by the Capital Corporation hereunder or any set-off or application of funds of the Capital Corporation by the Administrative Agent or any Bank, the Capital Corporation shall not be entitled to be subrogated to any of the rights of the Administrative Agent or any Bank against JD Luxembourg or any guarantee or right of offset held by the Administrative Agent or any Bank for the payment of the Luxembourg Obligations, until all amounts owing to the Administrative Agent and the Banks by JD Luxembourg on account of the Luxembourg Obligations are paid in full in cash. If any amount shall be paid to the Capital Corporation on account of such subrogation rights at any time when all of the Luxembourg Obligations shall not have been paid in full in cash, such amount shall be held by the Capital Corporation in trust for the Administrative Agent and the Banks, segregated from its other funds, and shall, forthwith upon receipt by it, be turned over to the Administrative Agent in the exact form received by it (duly indorsed by it to the Administrative Agent, if required), to be applied against the Luxembourg Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine.
SECTION 3. | REPRESENTATIONS AND WARRANTIES |
Each Borrower hereby represents and warrants to the Administrative Agent and to each Bank that:
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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).
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SECTION 4. | CONDITIONS PRECEDENT |
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Each acceptance by any 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.
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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 Majority Banks shall otherwise consent in writing):
(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 (i) in the case of the Company and the Capital Corporation, Deloitte & Touche LLP or other independent certified public accountants of nationally recognized standing in the United States and (ii) in the case of JD Luxembourg, Deloitte & Touche LLP or other independent certified public accountants of recognized standing in Luxembourg or the European Union; 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 described in clause (a) or (b) above shall present fairly the consolidated financial condition and results of operations of such Borrower and its consolidated Subsidiaries and be prepared in accordance with generally accepted accounting principles in the United States of America (or, in the case of any such financial statements furnished by JD Luxembourg, international financial reporting standards in effect from time to time as applicable to JD Luxembourg, or such other accounting standards required by any applicable Luxembourg Governmental Authority) applied consistently throughout the periods reflected therein (except as approved by such accountants or officer, as the case may be, and disclosed therein). The Company and the Capital Corporation shall be deemed to have furnished such financial statements to each Bank when they are filed with the Securities and Exchange Commission and posted on its EDGAR system, and JD Luxembourg shall be deemed to have furnished such financial statements to each Bank when they are delivered to the Administrative Agent via electronic mail or other electronic transmission.
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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 Majority Banks shall otherwise consent in writing):
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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 Majority Banks shall otherwise consent in writing):
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SECTION 8. | EVENTS OF DEFAULT |
Upon the occurrence and during the continuance of any of the following events:
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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)(1) if such event is an 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 (2) if such event is an Event of Default specified in paragraph (b), (c), (d), (g) or (h), 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 by the Borrowers.
SECTION 9. | THE AGENTS |
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of the Majority Banks, the Required Banks or all of the Banks (if the consent of the Majority Banks, the Required Banks or all of the Banks, respectively, is required), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Banks.
(ii) Each Bank hereby further agrees that if it receives a Payment from the Administrative Agent or any of its affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Bank shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Bank to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(iii) The Borrowers hereby agree that (x) in the event that the returning of an erroneous Payment (or portion thereof) made with funds of the Administrative Agent or an affiliate thereof has been demanded by the Administrative Agent pursuant to this subsection 9.4(b) and has not been recovered from any Bank that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Bank with respect to such amount unless and until such amounts are recovered by the Administrative Agent and (y) an erroneous Payment made by the Administrative Agent or an affiliate thereof shall not pay, prepay, repay, discharge or otherwise satisfy any Loans owed by the Borrowers.
(iv) Each Bank’s and each Issuing Bank’s obligations under this subsection 9.4(b) shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Bank, the termination of the Commitments, the payment in full of all amounts payable hereunder and the termination of this Agreement.
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(b) Each Bank shall indemnify the Administrative Agent for the full amount of any taxes, levies, imposts, duties, fees, deductions, withholdings or similar charges imposed by any Governmental Authority that are attributable to such Bank and that are payable or paid by the Administrative Agent, together with all interest, penalties, reasonable costs and expenses arising therefrom or with respect thereto, as determined by the Administrative Agent in good faith. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error.
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SECTION 10. | MISCELLANEOUS |
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amend, modify or waive any provision of Section 9 without the written consent of the then Administrative 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; provided, further, however, that no such waiver, amendment, supplement or modification shall waive, amend, supplement or otherwise modify subsections 2.16 without the written consent of the Required Banks, or (e) so long as any Luxembourg Obligations remain outstanding or JD Luxembourg is a party to this Agreement, release Capital Corporation from its guarantee obligations under subsection 2.27 without the written consent of each Bank; and provided, further, that notwithstanding the foregoing, the Administrative Agent may act pursuant to subsection 2.11(b) to establish, in conjunction with the Borrowers, an alternate rate of interest. 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.
The Borrowers:
The Company: | Deere & Company |
The Capital Corporation: | John Deere Capital Corporation |
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JD Luxembourg: | John Deere Bank S.A. L-1855 Luxembourg Grand Duchy of Luxembourg |
with a copy to: | Deere & Company Telephone: 309-765-9259 |
The Administrative Agent: | JPMorgan Chase Bank, N.A. Telephone: 302-634-9770 Email: harmeet.kaur@chase.com |
with a copy to: | JPMorgan Chase Bank, N.A. Bldg B, Floor 06 Email: sean.bodkin@chase.com |
The Foreign Currency Agent: | J.P. Morgan AG 25 Bank Street +44 207 7421911 Email: loan_and_agency_london@jpmorgan.com |
To any other Bank: | To it at its address (or facsimile number) set forth in its Administrative Questionnaire |
provided that any notice, request or demand to or upon the Administrative Agent or the Banks pursuant to subsections 2.1, 2.2, 2.5, 2.6, 2.9, 2.11, 2.20 and 9.9 shall not be effective until received (including receipt by telephone if permitted hereby).
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herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
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any other Loan Document and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, (ii) the Administrative Agent and each of the Banks may, at its option, create one or more copies of this Agreement, any other Loan Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record), (iii) waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Loan Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (iv) waives any claim against any Indemnified Person for any Losses arising solely from the Administrative Agent’s and/or any Bank’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page, including any Losses arising as a result of the failure of a Borrower to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
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Each Bank hereby notifies the Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of the Borrowers and other information that will allow such Bank to identify the Borrowers in accordance with the Act. The Borrowers shall promptly provide such information upon request by any Bank.
(i)the application of any Write-Down and Conversion Powers by a Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(ii)the effects of any Bail-In Action on any such liability, including, if applicable:
(x)a reduction in full or in part or cancellation of any such liability;
(y)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or
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other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(z)the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any Resolution Authority.
(b)Each party hereto agrees that it will notify the Company and the Administrative Agent, as soon as practicable, of such party becoming the subject of a Bail-In Action, unless such notification is prohibited by law, regulation or order.
(i) such Bank is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans (defined below) in connection with the Loans or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to, and all of the conditions of which are and will continue to be satisfied in connection with, such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(iii) (A) such Bank is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Bank to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Bank, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Bank.
(b)In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Bank or (2) a Bank has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Bank further (x) represents and warrants, as of the date such Person became a Bank party hereto, and (y) covenants, from the date such Person became a Bank party hereto to the date such Person ceases being a Bank party hereto, for the benefit of, the Administrative Agent and each lead arranger, and not, for the avoidance of doubt, to or for the benefit of the Borrowers, that the Administrative Agent is not a fiduciary with respect
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to the assets of such Bank involved in such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement or any documents related hereto or thereto).
As used in this Section, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code, to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
[Remainder of page left intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
| DEERE & COMPANY By: |
| JOHN DEERE CAPITAL CORPORATION By: |
| JOHN DEERE BANK S.A. By: |
By:
Name:
Title:
[Signature Page to the 2021 364-Day Deere & Company Credit Agreement]
| JPMORGAN CHASE BANK, N.A., By: __________________________________ |
| |
[Signature Page to the 2021 364-Day Deere & Company Credit Agreement]
| BANK OF AMERICA, N.A., as Syndication Agent and as a Bank By: __________________________________ |
[Signature Page to the 2021 364-Day Deere & Company Credit Agreement]
| CITIBANK, N.A., as Documentation Agent and as a Bank By: __________________________________ Title: |
[Signature Page to the 2021 364-Day Deere & Company Credit Agreement]
| [BANK], as a Bank By: __________________________________ Title: |
[Signature Page to the 2021 364-Day Deere & Company Credit Agreement]
SCHEDULE I
TERMS OF SUBORDINATION
“Senior Indebtedness” means the principal of (and premium, if any) and unpaid interest and commitment fees on (a) indebtedness (including matured and contingent reimbursement obligations in respect of letters of credit) 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] and [specify any other indebtedness of the Capital Corporation (including indebtedness of others guaranteed by the Capital Corporation)], provided that indebtedness of the Capital Corporation under the credit agreement to which these Terms of Subordination are attached may not be so specified, 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 and commitment fees 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
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principal of (and premium, if any) and interest, commitment fees and letter of credit fees 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 and letter of credit fees and commitment fees on Senior Indebtedness has been made or duly provided for in money or money’s worth.
SCHEDULE II
COMMITMENTS
Bank | Commitment |
JPMorgan Chase Bank, N.A. | $253,125,000 |
Bank of America, N.A. | $253,125,000 |
Citibank, N.A. | $253,125,000 |
Barclays Bank PLC | $210,937,500 |
HSBC Bank USA, N.A. | $210,937,500 |
MUFG Bank, Ltd. | $210,937,500 |
Royal Bank of Canada | $210,937,500 |
The Toronto-Dominion Bank, New York Branch | $187,500,000 |
Credit Agricole Corporate and Investment Bank | $168,750,000 |
Deutsche Bank AG, New York Branch | $168,750,000 |
Goldman Sachs Bank USA | $168,750,000 |
BNP Paribas | $112,500,000 |
Commerzbank AG New York Branch | $112,500,000 |
Banco Bilbao Vizcaya Argentaria, S.A. New York Branch | $46,875,000 |
Banco Santander, S.A., New York Branch | $46,875,000 |
The Bank of New York Mellon | $46,875,000 |
The Bank of Nova Scotia | $46,875,000 |
PNC Bank, National Association | $46,875,000 |
Sumitomo Mitsui Banking Corporation | $46,875,000 |
Standard Chartered Bank | $46,875,000 |
U.S. Bank National Association | $46,875,000 |
Wells Fargo Bank, National Association | $46,875,000 |
Bank of China, Chicago Branch | $18,750,000 |
ICICI Bank Limited New York Branch | $18,750,000 |
Nordea Bank Abp, New York Branch | $18,750,000 |
| |
| |
| |
TOTAL | $3,000,000,000 |
EXHIBIT A
[FORM OF BORROWING NOTICE]
_________, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent under the
Credit Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Pursuant to subsection 2.1(c) of the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (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 __________, 20__ as follows:
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 (OR THE FOREIGN
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CURRENCY EQUIVALENT IN THE CASE OF FOREIGN CURRENCY LOANS) 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 (OR THE FOREIGN CURRENCY EQUIVALENT IN THE CASE OF FOREIGN CURRENCY LOANS).
Terms defined in the Credit Agreement shall have the same meanings when used herein.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
[JOHN DEERE BANK S.A.]
By:
Title:
EXHIBIT B
[FORM OF BID LOAN REQUEST]
_______, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent under the Credit
Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (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 Period | _____________ | ____________ | ____________ |
Interest Payment Dates | _____________ | ____________ | ____________ |
Interest Rate Basis | 360 day year |
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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. |
EXHIBIT C
[FORM OF BID LOAN OFFER]
_______, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent
under the Credit Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (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: _________________, 20__
Aggregate Maximum Amount: $________
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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 Eurocurrency Rate.
EXHIBIT D
[FORM OF BID LOAN CONFIRMATION]
_______, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent
under the Credit Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (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 ______________, 20__ [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 Administrative Agent with accepted amount entered by the Borrower to right of each Bid Loan Offer].
EXHIBIT E
[FORM OF ASSIGNMENT AND ASSUMPTION]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the date set forth below (the “Effective Date”) and is entered into between the Assignor named below (the “Assignor”) and the Assignee named below (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent below (i) all of the Assignor’s rights and obligations in its capacity as a Bank under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any letters of credit and guarantees included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Bank) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
1.Assignor:______________________________
2.Assignee:______________________________
[and is an affiliate/Approved Fund of [identify Bank]1]
3.Borrower(s):______________________________
4.Administrative Agent:JPMorgan Chase Bank, N.A., as administrative agent under the Credit Agreement
5.Credit Agreement:The $3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021 among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and the
1 Select as applicable.
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other agents parties thereto
6. Assigned Interest:
Aggregate Amount of Commitment/Loans for all Banks | Amount of Commitment/Loans Assigned | Percentage Assigned of Commitment/Loans2 |
$ | $ | % |
$ | $ | % |
$ | $ | % |
Effective Date: ______________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The Assignee expressly confirms that it [can/cannot] exempt the Administrative Agent and the Foreign Currency Agent from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law as provided for in subsection 9.1(d) of the Credit Agreement. The Assignee agrees to deliver to the Administrative Agent a completed administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrowers and their affiliates or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
_________________________________
NAME OF ASSIGNOR
By:______________________________
Title:
ASSIGNEE
_________________________________
NAME OF ASSIGNEE
By:______________________________
Title:
2 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Banks.
[Consented to and]1 Accepted:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By_________________________________
Title:
[Consented to:]2
DEERE & COMPANY
By________________________________
Title:
1 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
2 To be added only if the consent of the Borrower and/or other parties is required by the terms of the Credit Agreement.
ANNEX 1
$3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021 (the “Credit Agreement”) among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and the other agents parties thereto
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, (iii) the financial condition of the Borrowers, any of their respective Subsidiaries or affiliates or any other Person obligated in respect of the Credit Agreement or (iv) the performance or observance by each Borrower, any of their Subsidiaries or affiliates or any other Person of any of their respective obligations under the Credit Agreement.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Bank under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Bank, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Bank thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Bank thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.1 thereof, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Bank and (v) if it is a Non-U.S. Bank, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor 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 and (ii) 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.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and
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Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by email or telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
EXHIBIT F
[RESERVED]
EXHIBIT G
[FORM OF OPINION OF GENERAL COUNSEL TO THE COMPANY]
[Closing Date]
To each of the Banks parties to
the Credit Agreement referred to
below and to JPMorgan Chase
Bank, N.A., as Administrative Agent
Deere & Company and
John Deere Capital Corporation
364-Day Credit Agreement
Ladies and Gentlemen:
This opinion is furnished to you pursuant to subsection 4.1(c) of the $3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021 (the “Credit Agreement”) among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation” and, together with the Company, the “U.S. Borrowers”) and John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Terms defined in the Credit Agreement and not otherwise defined in this opinion are used herein as defined in the Credit Agreement.
I am General Counsel of the Company and have also acted as counsel for the Capital Corporation in this matter. I am familiar with the corporate history and organization of each U.S. Borrower and of its Subsidiaries and the proceedings relating to the authorization, execution and delivery by each U.S. 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 U.S. Borrowers pursuant to Section 4 of the Credit Agreement; |
3. | The Certificates of Incorporation of the U.S. Borrowers and all amendments thereto (the “Charters”); |
4. | The bylaws of the U.S. 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 U.S. Borrowers in that State. |
In addition, I have reviewed or caused to have reviewed such of the corporate proceedings of the U.S. Borrowers, and have examined or caused to have examined such documents, corporate records, and other instruments relating to the organization of the U.S. Borrowers and their respective Subsidiaries and such other agreements and instruments to which the U.S. Borrowers and their respective Subsidiaries are parties, as I consider necessary as a basis for the opinions hereinafter
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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, and the Documentation 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 or electronic copies.
I am qualified to practice law in the State of Illinois and the State of Iowa 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 and the State of Iowa, 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 of the Company and the Capital Corporation 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 U.S. Borrower of the Credit Agreement are within such U.S. Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not (i) contravene, or constitute a default under the Charter or the Bylaws of such U.S. Borrower, any judgment, law, rule or regulation applicable to such U.S. Borrower, or any Contractual Obligation by which such U.S. 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 U.S. 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 U.S. Borrower of the Credit Agreement. |
4. | There is no pending or, to the best of my knowledge, threatened action or proceeding against either U.S. 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 U.S. Borrower and its Subsidiaries taken as a whole. |
A copy of this opinion letter may be delivered by any of you to any person that becomes a Bank in accordance with the provisions of the Credit Agreement. Any such person may rely on the opinions expressed above as if this opinion letter were addressed and delivered to such person on the date hereof.
This opinion letter is rendered to you in connection with the transactions contemplated by the Credit Agreement. This opinion letter may not be relied upon by you or any person entitled to rely on this opinion pursuant to the preceding paragraph for any other purpose without my prior written consent.
This opinion letter speaks only as of the date hereof. I expressly disclaim any responsibility to advise you of any development or circumstance of any kind, including any change of law or fact, that may occur after the date of this opinion letter even though such development or circumstance
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may affect the legal analysis, a legal conclusion or any other matter set forth in or relating to this opinion letter.
Very truly yours,
Mary K.W. Jones
EXHIBIT H
[FORM OF ENFORCEABILITY OPINION OF SPECIAL NEW YORK COUNSEL
TO THE BORROWERS]
[Closing Date]
To the Agent
and each of the Banks under the
Credit Agreement (referred to below)
on the date hereof:
Re: | $3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021, by and among Deere & Company, a Delaware corporation (the “Company”), John Deere Capital Corporation, a Delaware corporation (the “Capital Corporation”), John Deere Bank S.A., a public limited company organized under the laws of Luxembourg (“JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), the financial institutions from time to time party thereto as lenders (the “Lenders”), JPMorgan Chase Bank, N.A., as the Administrative Agent for the Banks (in such capacity, the “Agent”) and the other parties thereto (such credit agreement herein referred to as the “Credit Agreement”) |
Ladies and Gentlemen:
We are issuing this opinion letter in our capacity as counsel to and at the request of the Borrowers in respect of the Credit Agreement.
The opinions expressed herein are being provided pursuant to Section 4.1(c) of the Credit Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement (with references herein to the Credit Agreement and each document defined therein meaning the Credit Agreement and each such document as executed and delivered on the date hereof). The Banks and the Agent are sometimes referred to in this opinion letter as “you”.
In connection with the preparation of this letter, we have, among other things, reviewed executed counterparts of the Credit Agreement.
Subject to the assumptions, qualifications, exclusions and other limitations which are identified in this opinion letter, we advise you, and with respect to each legal issue addressed in this opinion letter, it is our opinion, that (a) the Credit Agreement is a valid and binding obligation of each Borrower that is a party thereto and is enforceable against such Borrower in accordance with its terms and (b) the guarantee by the Capital Corporation pursuant to Section 2.27 of the Credit Agreement is a valid and binding obligation of the Capital Corporation and is enforceable against the Capital Corporation in accordance with its terms.
With your consent, we have assumed for purposes of this letter and the opinions herein:
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(a) that each document we have reviewed for purposes of this letter is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each such document are genuine, and that all natural persons who have signed any document have the legal capacity to do so;
(b) that the Credit Agreement and every other agreement we have examined for purposes of this letter has been duly authorized, executed and delivered by the parties thereto and constitutes a valid and binding obligation of each party to that document, enforceable against each such party in accordance with its respective terms and that each such party has satisfied all legal requirements that are applicable to such party to the extent necessary to entitle such party to enforce such agreement and that each party to the Credit Agreement is in good standing and duly incorporated or organized under the laws of its jurisdiction of organization except we do not assume in this paragraph (b) that the Credit Agreement is a valid and binding obligation enforceable in accordance with its terms against the Borrowers;
(c) there are no agreements or understandings among the parties, written or oral (other than the Credit Agreement), and there is no usage of trade or course of prior dealing among the parties that would, in either case define, supplement or qualify the terms of the Credit Agreement; and
(d) that the status of the Credit Agreement as legally valid and binding obligations of the parties is not affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders, or (iii) failures to obtain required consents, approvals or authorizations from, or make required registrations, declarations or filings with, governmental authorities.
In preparing this letter, we have relied without any independent verification upon: (i) information contained in certificates obtained from governmental authorities; (ii) factual information represented to be true in the Credit Agreement; (iii) factual information provided to us in a support certificate signed by each of the Borrowers; and (iv) factual information we have obtained from such other sources as we have deemed reasonable; and we have examined the originals or copies certified to our satisfaction, of the Credit Agreement and other corporate records of the Borrowers as we deem necessary for or relevant to our opinions. We have assumed without investigation that the information upon which we have relied is accurate and does not omit disclosures necessary to prevent such information from being misleading.
The terms “knowledge,” “actual knowledge” and “aware” whenever used in this letter with respect to our firm mean conscious awareness at the time this letter is delivered on the date it bears by the lawyers with Kirkland & Ellis LLP at that time who spent substantial time representing the Borrower in connection with the Credit Agreement (herein called our “Designated Transaction Lawyers”).
Our opinion (an “enforceability opinion”) in this letter that any particular contract is a valid and binding obligation or is enforceable in accordance with its terms is subject to: (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and judicially developed doctrines in this area such as substantive consolidation and equitable subordination; (ii) the effect of general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity); (iii) an
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implied covenant of good faith and fair dealing; and (iv) other commonly recognized statutory and judicial constraints on enforceability including statutes of limitations. “General principles of equity” include but are not limited to: principles limiting the availability of specific performance and injunctive relief; principles which limit the availability of a remedy under certain circumstances where another remedy has been elected; principles requiring reasonableness, good faith and fair dealing in the performance and enforcement of an agreement by the party seeking enforcement; principles which may permit a party to cure a material failure to perform its obligations; and principles affording equitable defenses such as waiver, laches and estoppel.
Our enforceability opinion is also subject to the qualification that certain provisions of the Credit Agreement may not be enforceable in whole or in part, although the inclusion of such provisions does not render the Credit Agreement invalid, and the Credit Agreement and the law of the State of New York contain adequate remedial provisions for the practical realization of the rights and benefits afforded thereby.
Our enforceability opinion is further subject to the effect of rules of law that may render guaranties or other similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Agreement (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between you and the Borrowers which is substantially and materially different from that presently contemplated by the Credit Agreement, (ii) release the primary obligor, or (iii) impair the guarantor’s recourse against the primary obligor.
We also express no opinion regarding the enforceability of any so-called “fraudulent conveyance” or “fraudulent transfer savings” clauses and any similar provisions in the Credit Agreement to the extent such provisions purport to limit the amount of the obligations of any party or the right to contribution of any other party with respect to such obligations.
We render no opinion regarding the validity, binding effect or enforceability of the Credit Agreement with respect to any Borrower to the extent the Credit Agreement involves any obligation (including any guaranty) of such Borrower with respect to any “swap” (as such term is defined in the Commodity Exchange Act) if such Borrower is not an “eligible contract participant” (as such term is defined in the Commodity Exchange Act) at the time such obligation is incurred by such Borrower.
We render no opinion with regard to usury or other laws limiting or regulating the maximum amount of interest that may be charged, collected, received or contracted for other than the internal laws of the State of New York, and without limiting the foregoing, we expressly disclaim any opinion as to the usury or other such laws of any other jurisdiction (including laws of other states made applicable through principles of Federal preemption or otherwise) which may be applicable to the transactions contemplated by the Credit Agreement.
Nothing contained in this letter covers or otherwise addresses any of the following types of provisions which may be contained in the Credit Agreement:
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(i) provisions mandating contribution towards judgments or settlements among various parties;
(ii) waivers of benefits and rights to the extent they cannot be waived under applicable law;
(iii) provisions providing for penalties, liquidated damages, acceleration of future amounts due (other than principal) without appropriate discount to present value, late charges, prepayment charges, interest upon interest, or increased interest rates upon default;
(iv) provisions which might require indemnification or contribution in violation of general principles of equity or public policy, including, without limitation, indemnification or contribution obligations which arise out of the failure to comply with applicable state or federal securities laws;
(v) agreements to submit to the jurisdiction of any particular court or other governmental authority (either as to personal or subject matter jurisdiction); provisions restricting access to courts; waiver of service of process requirements which would otherwise be applicable; waiver of the right to a jury trial and provisions otherwise purporting to affect the jurisdiction and venue of courts;
(vi) choice-of-law provisions;
(vii) provisions regarding arbitration;
(viii) covenants not to compete;
(ix) provisions that authorize you to set off and apply any deposits at any time held, and any other indebtedness at any time owing, by you to or for the account of the Borrowers, or
(x) requirements in the Credit Agreement specifying that provisions thereof may only be waived in writing.
Except as expressly otherwise set forth in this letter, our advice on every legal issue addressed in this letter is based exclusively on the internal laws of the State of New York or the Federal law of the United States which, in each case, in our experience is generally applicable both to general business organizations which are not engaged in regulated business activities and to transactions of the type contemplated in the Credit Agreement, on the one hand, and you, on the other hand (but without our having made any special investigation as to any other laws), except that we express no opinion or advice as to any law or legal issue (a) which might be violated by any misrepresentation or omission or a fraudulent act, or (b) to which any Borrower may be subject as a result of your legal or regulatory status, your sale or transfer of the Loans or interests therein or your involvement in the transactions contemplated by the Credit Agreement.
None of the opinions or other advice contained in this letter considers or covers: (i) any federal or state securities (or “blue sky”) laws or regulations or Federal Reserve Board margin
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regulations or (ii) federal or state antitrust and unfair competition laws and regulations, pension and employee benefit laws and regulations, compliance with fiduciary duty requirements, federal and state environmental, land use and subdivision, tax, racketeering (e.g., RICO), health and safety (e.g., OSHA), and labor laws and regulations, federal and state laws, regulations and policies concerning national and local emergency, possible judicial deference to acts of sovereign states and criminal and civil forfeiture laws, and other federal and state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes).
We also express no opinion regarding any laws relating to terrorism or money laundering, including Executive Order No. 13224, 66 Fed. Reg. 49079 (published September 25, 2001) (the “Terrorism Executive Order”) or any related enabling legislation or any other similar executive order (collectively with the Terrorism Executive Order, the “Executive Orders”), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56, the “Patriot Act”), any sanctions and regulations promulgated under authority granted by the Trading with the Enemy Act, 50 U.S.C. App. 1-44, as amended from time to time, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, as amended from time to time, the Iraqi Sanctions Act, Publ. L. No. 101-513; United Nations Participation Act, 22 U.S.C. § 287c, as amended from time to time, the International Security and Development Cooperation Act, 22 U.S.C. § 2349 aa-9, as amended from time to time, The Cuban Democracy Act, 22 U.S.C. §§ 6001-10, as amended from time to time, The Cuban Liberty and Democratic Solidarity Act, 18 U.S.C. §§ 2332d and 2339b, as amended from time to time, and The Foreign Narcotics Kingpin Designation Act, Publ. L. No. 106-120, as amended from time to time.
We express no opinion as to what law might be applied by any other courts to resolve any issue addressed in this letter. We advise you that issues addressed by this letter may be governed in whole or in part by other laws, but we express no opinion as to whether any relevant difference exists between the laws upon which our opinions are based and any other laws which may actually govern.
This opinion letter speaks as of the time of its delivery on the date it bears. We do not assume any obligation to provide you with any subsequent opinion or advice by reason of any fact about which our Designated Transaction Lawyers did not have actual knowledge at that time, by reason of any change subsequent to that time in any law covered by any of our opinions, or for any other reason.
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You may rely upon this letter only for the purpose served by the provision in the Credit Agreement cited in the second paragraph of this opinion letter in response to which it has been delivered. Without our written consent: (i) no person other than you may rely on this opinion letter for any purpose; (ii) this opinion letter may not be cited or quoted in any financial statement, prospectus, private placement memorandum or other similar document; (iii) this opinion letter may not be cited or quoted in any other document or communication which might encourage reliance upon this opinion letter by any person or for any purpose excluded by the restrictions in this paragraph; and (iv) copies of this opinion letter may not be furnished to anyone for purposes of encouraging such reliance. Notwithstanding the foregoing, financial institutions which subsequently become Banks in accordance with the terms of Section 10.5 of the Credit Agreement may rely on this opinion letter as of the time of its delivery on the date hereof as if this letter were addressed to them.
Sincerely,
KIRKLAND & ELLIS LLP
EXHIBIT I
[FORM OF EXTENSION REQUEST]
____________________, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021, among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent (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:
JOHN DEERE BANK S.A.
By:
Title:
EXHIBIT J
[FORM OF W-8BEN-E TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form W-8BEN-E of
the Internal Revenue Service]
[Bank’s Letterhead]
________________, 20__
Deere & Company
One John Deere Place
Moline, Illinois 61265
Attention: Treasurer
John Deere Capital Corporation
First National Bank Building
1 East First Street
Reno, Nevada 89501
Attention: Manager
[John Deere Bank S.A.
43, avenue John F. Kennedy
L-1855 Luxembourg
Grand Duchy of Luxembourg
Attention: ]
Re: | $3,000,000,000 364-Day Credit Agreement |
Ladies and Gentlemen:
In connection with the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021, among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent, 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.
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We enclose herewith two copies of Form W-8BEN-E of the U.S. Internal Revenue Service.
Yours faithfully,
[NAME OF BANK]
By:
Title:
cc:JPMorgan Chase Bank, N.A., as Administrative Agent
EXHIBIT K
[FORM OF W-8ECI TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form W-8ECI of
the Internal Revenue Service]
[Bank’s Letterhead]
______________, 20__
Deere & Company
One John Deere Place
Moline, Illinois 61265
Attention: Treasurer
John Deere Capital Corporation
First National Bank Building
1 East First Street
Reno, Nevada 89501
Attention: Manager
[John Deere Bank S.A.
43, avenue John F. Kennedy
L-1855 Luxembourg
Grand Duchy of Luxembourg
Attention: ]
Re: | $3,000,000,000 364-Day Credit Agreement |
Ladies and Gentlemen:
In connection with the above $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021, among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent, 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.
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We enclose herewith two copies of Form W-8ECI of the U.S. Internal Revenue Service.
Yours faithfully,
[NAME OF BANK]
By:
Title:
cc:JPMorgan Chase Bank, N.A., as Administrative Agent
EXHIBIT L
[FORM OF REPLACEMENT BANK AGREEMENT]
THIS AGREEMENT, dated as of _____, 20__ (“Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”) ____________ (“New Bank”) and JPMorgan Chase Bank, N.A., 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, JD Luxembourg, the several financial institutions parties thereto (the “Existing Banks”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent are parties to the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021 (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 or upon a Defaulting Bank becoming a Cancelled Bank 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:
Principal Amount | Last day of | |
I | Unused Portion | N/A |
II | Committed Rate Loans | |
Eurocurrency Loans 1 | | |
| ABR Loans | N/A |
III | Bid Loans | |
1 | | |
IV | Negotiated Rate Loans | |
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1 | |
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]*1 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 $_____2. In connection therewith, the Borrowers, the Administrative Agent and the New Bank hereby agree as follows3:
(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
* | As appropriate for New or Existing Banks. |
** | Insert amount equal to sum of New Bank’s existing Commitment, if any, plus New Bank’s Percentage of Cancelled Commitments. |
*** | The following clauses (ii)-(iii) may be altered to reflect the agreements among the Cancelled Bank, the New Bank and the Borrowers provided such agreements do not adversely affect any Existing Bank or the Administrative Agent. |
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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 (x) the ratio which each Bank’s outstanding ABR Loans bears to all of the outstanding ABR Loans and (y) the ratio which each Bank’s outstanding SONIA Loans bears to all of the outstanding SONIA Loans, in each case 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 Eurocurrency 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 Eurocurrency Loans, bears to all of the outstanding Eurocurrency Loans, 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].*4
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 [W-8BEN-E] [W-8ECI] [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-8BEN-E] [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 [W-8BEN-E] and Form [W-8ECI], 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
* | To be completed upon agreement of Borrowers and New Bank. |
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previously delivered by it, certifying in the case of a Form [W-8BEN-E] [W-8ECI] 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-8BEN-E] establishing exemption from United States backup withholding tax.]5
[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.
* | Use for non-Existing Banks. |
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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:
JOHN DEERE BANK S.A.
By:
Title:
[NAME OF NEW BANK]
By:
Title:
[Address]
Telephone:
Facsimile:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By:
Title:
EXHIBIT M
[FORM OF BID LOAN OR NEGOTIATED RATE LOAN NOTE]
PROMISSORY NOTE
$__________New York, New York___________ __, 20__
FOR VALUE RECEIVED, the undersigned, [DEERE & COMPANY] [JOHN DEERE CAPITAL CORPORATION], a Delaware corporation (the “Borrower”), hereby promises to pay on [insert maturity date or dates] to ________________ or registered assigns (the “Bank”) at the office of [JPMorgan Chase Bank, N.A. located at 383 Madison Avenue, New York, New York 10179 -- for Bid Loan Note] [Name and address of Bank -- for Negotiated Rate Loan Note], in lawful money of [the United States of America] and in immediately available funds, the principal sum of ______________[DOLLARS ($____________)]. 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 $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021 (the “Credit Agreement”), among the Borrower, [Deere & Company] [John Deere Capital Corporation], John Deere Bank S.A., the Bank, the other financial institutions parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. 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:
EXHIBIT N
FORM OF
NEW BANK SUPPLEMENT
SUPPLEMENT, dated _______ __, to the $3,000,000,000 364-Day Credit Agreement (as in effect on the date hereof, the “Credit Agreement”) dated as of March 29, 2021, among Deere & Company (the “Company”), John Deere Capital Corporation, John Deere Bank S.A., the banks and other financial institutions from time to time party thereto (each a “Bank,” and together, the “Banks”), JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”) for the Banks, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Unless the context otherwise requires, all capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Credit Agreement provides in subsection 2.20 thereof that any bank or financial institution, although not originally a party thereto, may become a party to the Credit Agreement in accordance with the terms thereof by executing and delivering to the Borrowers and the Administrative Agent a supplement to the Credit Agreement in substantially the form of this New Bank Supplement; and
WHEREAS, the undersigned was not an original party to the Credit Agreement but now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
The undersigned agrees to be bound by the provisions of the Credit Agreement and agrees that it shall, on the date this New Bank Supplement is accepted by the Borrowers and the Administrative Agent, become a Bank for all purposes of the Credit Agreement to the same extent as if originally a party thereto, with a Commitment of $__________________.
The undersigned (a) represents and warrants that it is legally authorized to enter into this New Bank Supplement; (b) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements delivered pursuant to Section 5.1 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this New Bank Supplement; (c) agrees that it has made and will, independently and without reliance upon any 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 decisions in taking or not taking action under the Credit Agreement or any instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes the Administrative Agent to take such action as administrative agent on its behalf and to exercise such powers and discretion under the Credit Agreement or any instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms thereof, together with such powers as are incidental thereto; and (e) agrees that it will be bound by the provisions of the Credit Agreement and will perform in accordance with its terms all the obligations which by the terms of the Credit Agreement are required to be performed by it as a Bank including, without limitation, its obligation pursuant to subsection 2.17(c), subsection 2.17(d) and subsection 2.17(e) of the Credit Agreement.
N-2
The undersigned’s address for notices for the purposes of the Credit Agreement is as follows:
_______________________
Attention:_______________
_______________________
_______________________
Fax:____________________
N-3
IN WITNESS WHEREOF, the undersigned has caused this New Bank Supplement to be executed and delivered by a duly authorized officer on the date first above written.
[NAME OF NEW BANK]
By:
Title:
Accepted this _____ day of
______________, 20__
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
JOHN DEERE BANK S.A.
By:
Title:
Accepted this _____ day of
______________, 20__
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:
Title:
EXHIBIT O
FORM OF
COMMITMENT INCREASE SUPPLEMENT
SUPPLEMENT, dated _______ 20__, to the $3,000,000,000 364-Day Credit Agreement (as in effect on the date hereof, the “Credit Agreement”) dated as of March 29, 2021, among Deere & Company (the “Company”), John Deere Capital Corporation, John Deere Bank S.A., the banks and other financial institutions from time to time party thereto (each a “Bank,” and together, the “Banks”), JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”), Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Unless the context otherwise requires, all capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the provisions of subsection 2.20 of the Credit Agreement, the undersigned may increase the amount of its Commitment in accordance with the terms thereof by executing and delivering to the Borrowers and the Administrative Agent a supplement to the Credit Agreement in substantially the form of this Supplement; and
WHEREAS, the undersigned now desires to increase the amount of its Commitment under the Credit Agreement;
NOW THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and conditions of the Credit Agreement, that on the date this Supplement is accepted by the Borrowers and the Administrative Agent it shall have its Commitment increased by $______________, thereby making the amount of its Commitment $______________.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be executed and delivered by a duly authorized officer on the date first above written.
[NAME OF BANK]
By:
Title:
Accepted this _____ day of
______________, 20__
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
JOHN DEERE BANK S.A.
By:
Title:
Accepted this _____ day of
______________, 20__
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:
Title:
EXHIBIT P-1
FORM OF
Certificate of Non-Bank Status
(For Foreign Banks that Are not Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code and (v) the interest payments in question are not effectively connected with the undersigned’s conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrowers with a certificate of its non-U.S. Person status on IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF BANK]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
EXHIBIT P-2
FORM OF
Certificate of Non-Bank Status
(For Foreign Banks that Are Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Agreement, neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively connected with the undersigned’s or its partners/members’ conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrowers with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF BANK]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
EXHIBIT P-3
FORM OF
Certificate of Non-Bank Status
(For Non-U.S. Participants that Are not Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (v) the interest payments in question are not effectively connected with the undersigned’s conduct of a U.S. trade or business.
The undersigned has furnished its participating Bank with a certificate of its non-U.S. Person status on IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Bank in writing and (2) the undersigned shall have at all times furnished such Bank with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF PARTICIPANT]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
EXHIBIT P-4
FORM OF
Certificate of Non-Bank Status
(For Non-U.S. Participants that Are Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively connected with the undersigned’s or its partners/members’ conduct of a U.S. trade or business.
The undersigned has furnished its participating Bank with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or Form W-8BEN-E from each of its partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Bank and (2) the undersigned shall have at all times furnished such Bank with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF PARTICIPANT]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]