Exhibit 10.1
EXECUTION VERSION
DEERE & COMPANY
JOHN DEERE CAPITAL CORPORATION
JOHN DEERE BANK S.A.
________________________________________
$5,000,000,000
364-DAY
CREDIT AGREEMENT
Dated as of March 27, 2023
________________________________________
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
BANK OF AMERICA, N.A.
and
CITIBANK, N.A.,
as Co-Syndication Agents
J.P. MORGAN SECURITIES LLC,
as
Sustainability Structuring Agent
________________________________________
JPMORGAN CHASE BANK, N.A.,
BOFA SECURITIES, INC.
and
CITIGROUP GLOBAL MARKETS INC.,
as Lead Arrangers and Bookrunners
Page
SECTION 1.DEFINITIONS1
1.1Defined Terms1
1.2Other Definitional Provisions30
1.3Currency Conversion30
1.4Interest Rates30
SECTION 2.THE COMMITTED RATE LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS31
2.1The Committed Rate Loans31
2.2The Negotiated Rate Loans32
2.3Loan Accounts33
2.4Fees33
2.5Termination or Reduction of Commitments; Cancellation of Capital Corporation or JD Luxembourg as Borrower34
2.6Prepayments35
2.7Minimum Amount of Certain Loans35
2.8Committed Rate Loan Interest Rate and Payment Dates36
2.9Conversion and Continuation Options36
2.10Computation of Interest and Fees.37
2.11Inability to Determine Interest Rate37
2.12Pro Rata Treatment and Payments40
2.13Requirements of Law42
2.14Indemnity46
2.15Non-Receipt of Funds by the Administrative Agent46
2.16Extension of Termination Date47
2.17Indemnified Taxes47
2.18Confirmations50
2.19Replacement of Cancelled Banks51
2.20Commitment Increases51
2.21[Reserved]53
2.22[Reserved]53
2.23Defaulting Banks53
2.24Judgment Currency53
2.25Foreign Currency Exchange Rate54
2.26[Reserved].54
2.27Capital Corporation Guaranty54
2.28Sustainability Adjustments56
SECTION 3.REPRESENTATIONS AND WARRANTIES58
3.1Financial Condition58
3.2Corporate Existence58
3.3Corporate Power; Authorization; Enforceable Obligations58
3.4No Legal Bar58
3.5No Material Litigation58
3.6Taxes59
3.7Margin Regulations59
3.8Use of Proceeds59
i
3.9Sanctions Laws and Regulations59
3.10Beneficial Ownership Certification59
SECTION 4.CONDITIONS PRECEDENT59
4.1Conditions to Initial Loan59
4.2Conditions to All Loans61
SECTION 5.AFFIRMATIVE COVENANTS61
5.1Financial Statements61
5.2Certificates; Other Information62
5.3Company Indenture Documents63
5.4Capital Corporation Indenture Documents63
5.5Notice of Default63
5.6Ownership of Capital Corporation and JD Luxembourg Stock63
5.7Employee Benefit Plans63
5.8Compliance63
SECTION 6.NEGATIVE COVENANTS OF THE COMPANY64
6.1Company May Consolidate, etc., Only on Certain Terms64
6.2Limitation on Liens64
6.3Limitations on Sale and Lease-back Transactions67
6.4Equipment Operations Debt67
SECTION 7.NEGATIVE COVENANTS OF THE CAPITAL CORPORATION67
7.1Fixed Charges Ratio68
7.2Consolidated Senior Debt to Consolidated Capital Base68
7.3Limitation on Liens68
7.4Consolidation; Merger69
SECTION 8.EVENTS OF DEFAULT69
SECTION 9.THE AGENTS72
9.1Appointment72
9.2Delegation of Duties72
9.3Exculpatory Provisions72
9.4Reliance by Agents72
9.5Notice of Default74
9.6Non-Reliance on Agents and Other Banks74
9.7Indemnification74
9.8Agents in their Individual Capacities75
9.9Successor Agents75
9.10Calculations.75
9.11Sustainability Matters.75
SECTION 10.MISCELLANEOUS76
10.1Amendments and Waivers76
10.2Notices77
10.3No Waiver; Cumulative Remedies78
10.4Payment of Expenses78
10.5Successors and Assigns; Participations; Purchasing Banks80
10.6Adjustments83
ii
10.7Confidentiality83
10.8Counterparts84
10.9GOVERNING LAW85
10.10Consent to Jurisdiction and Service of Process85
10.11WAIVERS OF JURY TRIAL86
10.12USA Patriot Act86
10.13No Fiduciary Duty86
10.14Headings86
10.15Acknowledgment and Consent to Bail-In of Affected Financial Institutions86
10.16Bank ERISA Representations87
10.17Sustainability Targets88
SCHEDULES:
Schedule ITerms of Subordination
Schedule IICommitments
Schedule IIISustainability Table
EXHIBITS:
Exhibit AForm of Borrowing Notice
Exhibit BForm of Assignment and Assumption
Exhibit CForm of Opinion of General Counsel to the Company
Exhibit DForm of Opinion of Special New York Counsel to the Borrowers
Exhibit EForm of Extension Request
Exhibit FForm of Form W-8BEN-E Tax Letter
Exhibit GForm of Form W-8ECI Tax Letter
Exhibit HForm of Replacement Bank Agreement
Exhibit IForm of Promissory Note
Exhibit JForm of New Bank Supplement
Exhibit KForm of Commitment Increase Supplement
Exhibit LForm of Certificate of Non-Bank Status
Exhibit MForm of Pricing Certificate
iii
1
CREDIT AGREEMENT, dated as of March 27, 2023, 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) BANK OF AMERICA, N.A. and CITIBANK, N.A., as co-syndication agents hereunder (in such capacity, the “Co-Syndication Agents”), and (g) J.P. MORGAN SECURITIES LLC, as sustainability structuring agent hereunder (in such capacity, the “Sustainability Structuring 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 Adjusted Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities Business Days prior to 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 Adjusted Term SOFR Rate for any date shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology)). Any change in ABR due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR 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.
“Act”: as defined in subsection 10.12.
“Adjusted Daily Simple SOFR”: an interest rate per annum equal to (a) Daily Simple SOFR, plus (b) 0.10%; provided that if Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“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 the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted Term SOFR Rate”: with respect to any Term Benchmark Borrowing denominated in Dollars for any Interest Period, an interest rate per annum equal to (a) the Term SOFR Rate for such Interest Period, plus (b) 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
2
“Administrative Agent”: as defined in the preamble hereto.
“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 Syndication Agent, or the Sustainability Structuring Agent, as the context shall require; together, the “Agents”.
“Agreement”: this Credit Agreement as 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 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, (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, (c) with respect to Term Benchmark Loans and Daily Simple SOFR Loans, the rate per annum set forth below for Term Benchmark Loans and Daily Simple SOFR Loans in the column corresponding to the Prevailing Rating of the Company and (d) 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% |
Term Benchmark Loans and Daily Simple SOFR Loans | 0.625% | 0.75% | 0.875% | 1.00% | 1.25% |
SONIA Loans | 0.625% | 0.75% | 0.875% | 1.00% | 1.25% |
3
It is hereby understood and agreed that the Applicable Margin with respect to ABR Loans, Eurocurrency Loans, Term Benchmark Loans, Daily Simple SOFR Loans and SONIA Loans shall be adjusted from time to time based upon the Sustainability Rate Adjustment (to be calculated and applied as set forth in subsection 2.28); provided that in no event shall the Applicable Margin be less than zero.
“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.
“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 (e) 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 any (i) SONIA Loan, Adjusted Daily Simple SONIA, (ii) Daily Simple SOFR Loan, Adjusted Daily Simple SOFR or (iii) Term Benchmark Loan or Eurocurrency Loan, the Relevant Rate for such Currency; provided that if a Benchmark Transition Event and the related Benchmark Replacement Date have occurred with respect to the applicable 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) of subsection 2.11.
“Benchmark Replacement”: for any Available Tenor, 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 (2) below:
(1)in the case of any Loan denominated in Dollars, the Adjusted Daily Simple SOFR;
4
(2)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.
If the Benchmark Replacement as determined pursuant to the 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, 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.
“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 “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of 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); provided that, notwithstanding anything herein to the contrary, no “Benchmark Replacement Conforming Changes” shall result in any material effect on the timing or amount of payments or borrowings without the consent of the Company.
“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:
5
(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); or
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
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 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, the CME Term SOFR Administrator, the central bank for the Currency applicable to such Benchmark, 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, or as of a specified future date will no longer be, representative.
6
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.
“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 or Chicago are authorized or required by law to close; provided, that (a) when used in connection with a Foreign Currency Loan, (in each case, other than in connection with any calculation or determination of interest rate in respect of a SONIA Loan or a Loan denominated in Euros), the term “Business Day” shall also exclude any day on which banks are authorized or required by law to be closed in the principal financial center for that currency, (b) in relation to any calculation or determination of interest rate in respect of a SONIA Loan, “Business Day” shall mean a SONIA Business Day, (c) in relation to any calculation or determination of interest rate in respect of any Loan denominated in Euros and in relation to the calculation or computation of the Eurocurrency Rate in respect thereof, “Business Day” shall mean any day which is a TARGET Day and (d) in relation to any calculation or determination of interest rate in respect of any Daily Simple SOFR Loan, “Business Day” shall mean any day which is a U.S. Government Securities Business Day.
“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 or Daily Simple SOFR 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”.
7
“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 rate equal to the greater of (i) (A) for any Loan denominated in (a) 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, (b) Euros, one of the following three rates as may be selected by the Administrative Agent in its reasonable discretion (provided, that the Administrative Agent shall have generally selected such rate for similarly situated borrowers): (1) the fixed rate for the main refinancing operations of the European Central Bank (or any successor thereto), or, if that rate is not published, the minimum bid rate for the main refinancing operations of the European Central Bank (or any successor thereto), each as published by the European Central Bank (or any successor thereto) from time to time, (2) the rate for the marginal lending facility of the European Central Bank (or any successor thereto), as published by the European Central Bank (or any successor thereto) from time to time or (3) the rate for the deposit facility of the central banking system of the Participating Member States, as published by the European Central Bank (or any successor thereto) from time to time, and (c) any other Foreign Currency, a central bank rate as determined by the Administrative Agent in its reasonable discretion (provided, that the Administrative Agent shall have generally selected such rate for similarly situated borrowers), plus (B) the applicable Central Bank Rate Adjustment and (ii) the Floor.
“Central Bank Rate Adjustment”: for any day, for any Loan denominated in (a) Euros, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of the Eurocurrency Rate for Loans denominated in Euros for the five most recent Business Days preceding such day for which the EURIBOR Screen Rate was available (excluding, from such averaging, the highest and the lowest Eurocurrency Rate applicable during such period of five Business Days) minus (ii) the Central Bank Rate in respect of Euros in effect on the last Business Day in such period, (b) 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 Loans in Pounds Sterling 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 such 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, and (c) any other Foreign Currency, a Central Bank Rate Adjustment as determined by the Administrative Agent in its reasonable discretion (provided, that the Administrative Agent shall have generally selected such rate for similarly situated borrowers). For purposes of this definition, (x) the term Central Bank Rate shall be determined disregarding clause (B) of the definition of such term and (y) the Eurocurrency Rate in respect of Loans denominated in Euros on any day shall be
8
based on the EURIBOR Screen Rate on such day at approximately the time referred to in the definition of such term for deposits in Euros for a maturity of one month.
“Certificate of Non-Bank Status”: a certificate substantially in the form and substance of Exhibit L.
“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).
“CME Term SOFR Administrator”: CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
“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).
“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% |
It is hereby understood and agreed that the Commitment Fee Rate shall be adjusted from time to time based upon the Sustainability Facility Fee Adjustment (to be calculated and applied as set forth in subsection 2.28).
“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.
9
“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 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.
10
“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 (a “SOFR Rate Day”), a rate per annum equal to (a) SOFR for the day (such day “SOFR Determination Date”) that is five U.S. Government Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website or (b) if SOFR is not available for the SOFR Determination Date determined pursuant to clause (a) above, by 5:00 p.m., New York City time, on any day of determination of Daily Simple SOFR, then Daily Simple SOFR for such day will be SOFR as published in respect of the first preceding U.S. Government Securities Business Day prior to the SOFR Determination Date for which SOFR was published on the SOFR Administrator’s Website; provided that Daily Simple SOFR determined pursuant to this clause (b) shall be utilized for purposes of calculation of Daily Simple SOFR for no more than three consecutive SOFR Rate Days and thereafter subsection 2.11(a) shall govern. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
“Daily Simple SOFR Loan”: a Loan that bears interest at a rate based on the Adjusted Daily Simple SOFR.
“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 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.
11
“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
(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.
12
“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.
“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.
“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.
“Engaged Acres”: the number of unique acres with at least one operation pass documented in the Company’s proprietary online farm management system in the 12 months prior to the end of the fiscal year.
“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.
13
“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.
“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.
“EURIBOR Screen Rate”: as defined in the definition of Eurocurrency Rate.
“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 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.
(b) 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
14
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).
(c) 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).
(d) 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 the Floor.
“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.
15
���
“Existing Pricing Certificate”: as defined in the definition of Pricing Certificate.
“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 E 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”: for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“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.
“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 operating leases; provided, that, notwithstanding the foregoing, (i) consolidated interest on Securitization Indebtedness and amortization of Securitization Indebtedness shall be deemed not included in Fixed Charges and (ii) any unrealized gains or losses in respect of any Hedging Transaction entered into for the purpose of hedging interest rate risk 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) of the Capital Corporation and its consolidated Subsidiaries shall be determined by reference to the publicly available consolidated statements of income of the Capital Corporation and its consolidated Subsidiaries for or covering such period 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 Term SOFR Rate, Adjusted Daily Simple SOFR, Adjusted Daily Simple SONIA or the Central Bank Rate, as applicable. For the avoidance of doubt, the
16
initial Floor for each of the Central Bank Rate, Eurocurrency Rate, Adjusted Term SOFR Rate, Adjusted Daily Simple SOFR and Adjusted Daily Simple SONIA shall be 0.0%.
“Foreign Bank”: any Bank that is not a Domestic Bank.
“Foreign Currency”: (a) Euros, Pounds Sterling, Australian Dollars and Canadian Dollars, (b) upon (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) confirmation by Sumitomo Mitsui Banking Corporation to the Administrative Agent that it (or a branch or affiliate thereof) can fund in New Zealand Dollars (provided, that, such confirmation from either Deutsche Bank AG, New York Branch or Sumitomo Mitsui Banking Corporation shall not be required if such Bank ceases 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 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 October 30, 2022, 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.
“GHG Protocol”: the internationally recognized standard for greenhouse gas accounting of companies, defining the methodologies for calculating direct and indirect emissions according to the World Resources Institute (WRI) and World Business Council for Sustainable Development (WBCSD) Greenhouse Gas Protocol Corporate Accounting and Reporting Standard, as such GHG Protocol may be revised, amended or supplemented from time to time. For the avoidance of doubt, in the event an updated version of the GHG Protocol is published, the Borrowers may elect at their sole discretion and option to apply such revised version for the purposes of calculating Scope 1 Emissions and Scope 2 Emissions.
“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, 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.
17
“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.
“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 or Term Benchmark Loan is converted to an ABR Loan, (b) as to any Eurocurrency Loan or Term Benchmark Loan, the last day of each Interest Period applicable thereto, provided that as to any Eurocurrency Loan or Term Benchmark 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, (c) as to any SONIA Loan or Daily Simple SOFR 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 or Term Benchmark Loan, the period commencing on the Borrowing Date, the date any ABR Loan is converted to a Eurocurrency Loan or Term Benchmark Loan, as applicable or the date any Eurocurrency Loan or Term Benchmark Loan, as applicable is continued as a Eurocurrency Loan or Term Benchmark, as applicable, as the case may be, with respect to such Eurocurrency Loan or Term Benchmark Loan, as applicable and ending one, three or six months thereafter in the case of any Eurocurrency Loan or Term Benchmark 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) (in each case, subject to the availability for the Benchmark applicable to the relevant Loan or Commitment), or one or three months 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; and
(b) 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:
18
“IRS”: as defined in subsection 2.17(c).
“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.
19
“KPI 1”: for any fiscal year, the sum of the Scope 1 Emissions and the Scope 2 Emissions (on a market basis) for such fiscal year.
“KPI 1 Applicable Rate Adjustment Amount”: with respect to any period between Sustainability Pricing Adjustment Dates, (a) positive 0.025%, if the KPI 1 for such period as set forth in the KPI Metrics Report is more than the KPI 1 Threshold A for such period, (b) 0.000%, if the KPI 1 for such period as set forth in the KPI Metrics Report is less than or equal to the KPI 1 Threshold A for such period but more than the KPI 1 Target A for such period and (c) negative 0.025%, if the KPI 1 for such period as set forth in the KPI Metrics Report is less than or equal to KPI 1 Target A for such period.
“KPI 1 Commitment Fee Adjustment Amount”: with respect to any period between Sustainability Pricing Adjustment Dates, (a) positive 0.005%, if the KPI 1 for such period as set forth in the KPI Metrics Report is more than the KPI 1 Threshold A for such period, (b) 0.000%, if the KPI 1 for such period as set forth in the KPI Metrics Report is less than or equal to the KPI 1 Threshold A for such period but more than the KPI 1 Target A for such period and (c) negative 0.005%, if the KPI 1 for such period as set forth in the KPI Metrics Report is less than or equal to KPI 1 Target A for such period.
“KPI 1 Target A”: with respect to any fiscal year, the KPI 1 Target A for such fiscal year as set forth in the Sustainability Table.
“KPI 1 Threshold A”: with respect to any fiscal year, the KPI 1 Threshold A for such fiscal year as set forth in the Sustainability Table.
“KPI 2”: for any fiscal year, the number of Engaged Acres for such fiscal year.
“KPI 2 Applicable Rate Adjustment Amount”: with respect to any period between Sustainability Pricing Adjustment Dates, (a) positive 0.025%, if the KPI 2 for such period as set forth in the KPI Metrics Report is less than the KPI 2 Threshold B for such period, (b) 0.000%, if the KPI 2 for such period as set forth in the KPI Metrics Report is more than or equal to the KPI 2 Threshold B for such period but less than the KPI 2 Target B for such period and (c) negative 0.025%, if the KPI 2 for such period as set forth in the KPI Metrics Report is more than or equal to KPI 2 Target B for such period.
“KPI 2 Commitment Fee Adjustment Amount”: with respect to any period between Sustainability Pricing Adjustment Dates, (a) positive 0.005%, if the KPI 2 for such period as set forth in the KPI Metrics Report is less than the KPI 2 Threshold B for such period, (b) 0.000%, if the KPI 2 for such period as set forth in the KPI Metrics Report is more than or equal to the KPI 2 Threshold B for such period but less than the KPI 2 Target B for such period and (c) negative 0.005%, if the KPI 2 for such period as set forth in the KPI Metrics Report is more than or equal to KPI 2 Target B for such period.
“KPI 2 Target B”: with respect to any fiscal year, the KPI 2 Target B for such fiscal year as set forth in the Sustainability Table.
“KPI 2 Threshold B”: with respect to any fiscal year, the KPI 2 Threshold B for such fiscal year as set forth in the Sustainability Table.
“KPI Metrics”: collectively, KPI 1 and KPI 2 (each, a “KPI Metric”).
“KPI Metrics Report”: an annual report (it being understood that this annual report may take the form of the annual Sustainability Report) attached to the Pricing Certificate that sets forth the calculations for each KPI Metric for a specific fiscal year.
20
“KPI Targets”: collectively, each KPI 1 Target A and each KPI 2 Target B.
“KPI Thresholds”: collectively, each KPI 1 Threshold A and each KPI 2 Threshold B.
“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.
“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 B.
“Loan Documents”: this Agreement, including schedules and exhibits hereto, and the Notes.
“Loans”: the collective reference to the Committed Rate 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.
“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
21
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 of the Capital Corporation and its consolidated Subsidiaries shall be determined by reference to the publicly available statements of income of the Capital Corporation and its consolidated Subsidiaries for or covering such period and after such adjustments, if any, as may be required so that such net earnings are determined in accordance with GAAP, except that earned investment tax credits may be included as revenue in the consolidated income statement of the Capital Corporation and its consolidated Subsidiaries, rather than as an offset against the provision for income taxes; provided, further, that such consolidated net earnings of the Capital Corporation and its Consolidated Subsidiaries for such period shall not include any unrealized gains or losses in respect of any Hedging Transaction entered into for the purpose of hedging interest rate risk 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.
22
“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.
“NYFRB’s Website”: the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“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 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.
23
“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.
“Pricing Certificate”: a certificate substantially in the form of Exhibit M executed by a Responsible Officer of each of the Borrowers and attaching (a) true and correct copies of the KPI Metrics Report for the most recently ended fiscal year and setting forth the Sustainability Rate Adjustment and the Sustainability Commitment Fee Adjustment, in each case for the period covered thereby and computations in reasonable detail in respect thereof and (b) a limited assurance verification statement of the Sustainability Assurance Provider confirming that the Sustainability Assurance Provider is not aware of any modifications that should be made to the KPI Metrics in order for them to be presented in all material respects in conformity with the Standard for Sustainability Reporting (it being understood that any Pricing Certificate delivered under the Existing Credit Agreement for the most recently ended fiscal year of the Borrowers in accordance with the requirements thereunder (an “Existing Pricing Certificate”) shall be deemed to be a Pricing Certificate delivered in respect of such fiscal year hereunder).
“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 Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two Business Days preceding the date of such setting, (2) if such Benchmark is the Eurocurrency Rate in respect of Loans denominated in Euros, 11:00 a.m. Brussels time two TARGET Days preceding the date of such setting, (3) if such Benchmark is SONIA, then four SONIA Business Days prior to such setting, (4) if such Benchmark is Daily Simple SOFR, then four Business Days prior to such setting and (5) otherwise, the time determined by the Administrative Agent in its reasonable discretion.
“Register”: as defined in subsection 10.5(e).
24
“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, the CME Term SOFR Administrator, as applicable, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto, (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, (c) with respect to a Benchmark Replacement in respect of Loans denominated in Euros, the European Central Bank, or a committee officially endorsed or convened by the European Central Bank or, in each case, any successor thereto and (d) with respect to a Benchmark Replacement in respect of Loans denominated in any Foreign Currency (other than Pounds Sterling or Euros), (i) the central bank 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 Term Benchmark Borrowing denominated in Dollars, the Adjusted Term SOFR Rate, (ii) any Eurocurrency Loan denominated in any Currency, the Eurocurrency Rate applicable thereto, (iii) any Loan denominated in Pounds Sterling, Adjusted Daily Simple SONIA and (iv) any Daily Simple SOFR Loan, Adjusted Daily Simple SOFR.
“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
25
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 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.
“Scope 1 Emissions”: the direct greenhouse gas emissions or equivalent CO2 emissions as measured in absolute terms attributable to sources that are controlled by the Borrowers and their Subsidiaries in the operation of their business, which are determined by the Borrowers in good faith in accordance with the GHG Protocol.
“Scope 2 Emissions”: the indirect greenhouse gas emissions or equivalent CO2 emissions as measured in absolute terms occurring from the generation of purchased and imported energy (including electricity and steam) consumed by the Borrowers and their Subsidiaries in the operation of their business, which are determined by the Borrowers in good faith in accordance with the GHG Protocol using the market-based method.
“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
26
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.
“SLL Principles”: Sustainability Linked Loan Principles, as published in March 2022, and as may be updated, revised or amended from time to time by the Loan Market Association and the Loan Syndications & Trading Association.
“SOFR”: a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“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.
“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”.
“Standard for Sustainability Reporting”: the applicable standards established by the Sustainability Accounting Standards Board for greenhouse gas emissions reporting, as may be amended from time to time.
27
“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.
“Sustainability Assurance Provider”: any qualified external reviewer, independent of the Borrowers and their Subsidiaries, with relevant expertise, such as an auditor, environmental consultant and/or independent ratings agency of recognized national standing. As of the date hereof, the term Sustainability Assurance Provider means, collectively, Deloitte & Touche LLP and Apex Companies, LLC; provided that a replacement sustainability assurance provider may be designated from time to time by the Borrowers if any such replacement Sustainability Assurance Provider (a) shall be (i) a qualified external reviewer, independent of the Borrowers and their Subsidiaries, with relevant expertise, such as an auditor, environmental consultant and/or independent ratings agency of recognized national standing or (ii) another firm designated by the Borrowers and approved by the Sustainability Structuring Agent and (b) shall apply substantially the same assurance standards and methodology used in the prior KPI Metrics Report for the previous fiscal year, except for any changes to such standards and/or methodology that (i) are consistent with then generally accepted industry standards or (ii) if not so consistent, are proposed by the Borrowers and approved by the Majority Banks.
“Sustainability Facility Fee Adjustment”: with respect to any KPI Metrics Report, for any period between Sustainability Pricing Adjustment Dates, an amount (whether positive, negative or zero), expressed as a percentage, equal to the sum of (a) the KPI 1 Commitment Fee Adjustment Amount (whether positive, negative or zero), plus (b) the KPI 2 Commitment Fee Adjustment Amount (whether positive, negative or zero), in each case for such period.
“Sustainability Pricing Adjustment Date”: has the meaning specified in subsection 2.28(a).
“Sustainability Pricing Provisions”: any provisions relating to the KPI Metrics, the Sustainability Targets, and any proposed incentives and penalties for compliance and noncompliance, respectively, with the Sustainability Targets, including any adjustments to the Applicable Margin and/or Commitment Fee Rate.
“Sustainability Rate Adjustment”: with respect to any KPI Metrics Report, for any period between Sustainability Pricing Adjustment Dates, an amount (whether positive, negative or zero), expressed as a percentage, equal to the sum of (a) the KPI 1 Applicable Rate Adjustment Amount (whether positive, negative or zero), plus (b) the KPI 2 Applicable Rate Adjustment Amount (whether positive, negative or zero), in each case for such period.
“Sustainability Recalculation Event”: the occurrence of any significant or structural changes in the Company (including acquisitions, divestitures, mergers, insourcing or outsourcing or a series of related transactions of such type), changes in methodology in respect of the KPI Metrics, or changes in data reported due to improved calculation methodologies or better data accessibility, as determined in good faith by the Company, evidenced by a certificate of a Responsible Officer of the Company.
28
“Sustainability Report”: the annual non-financial disclosure report prepared in accordance with the Standard for Sustainability Reporting publicly reported by the Borrowers and published on an Internet or intranet website to which each Bank and the Administrative Agent have been granted access free of charge (or at the expense of the Borrowers).
“Sustainability Structuring Agent”: as defined in the preamble hereto.
“Sustainability Table”: the Sustainability Table set forth on Schedule III.
“Sustainability Targets”: collectively, the KPI Targets and KPI Thresholds.
“Syndication Agent”: as defined in the preamble hereto.
“TARGET2”: the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
“TARGET Day”: any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“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 Benchmark”: when used in reference to any Loan or Borrowing, refers to Loans, or the Loans comprising such Borrowing, bearing interest at a rate determined by reference to the Adjusted Term SOFR Rate.
“Term SOFR Determination Day”: has the meaning assigned to it under the definition of Term SOFR Reference Rate.
“Term SOFR Rate”: with respect to any Term Benchmark Borrowing in Dollars and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
“Term SOFR Reference Rate”: for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Borrowing denominated in Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum determined by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding Business Day is not more than five (5) Business Days prior to such Term SOFR Determination Day.
29
“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, Term Benchmark Loan, Daily Simple SOFR 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.
“U.S. Government Securities Business Day”: any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“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 powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom,
30
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.
31
economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate 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 any interest rate used in this Agreement or 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 any interest rate used in this Agreement, 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 NEGOTIATED RATE LOANS; AMOUNT AND TERMS |
32
33
34
35
(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.
36
(d) The Term Benchmark Loans shall bear interest for each Interest Period in effect for such Term Benchmark Loans from the date thereof until the stated maturity thereof on the unpaid principal amount thereof at a rate per annum equal to the Adjusted Term SOFR Rate determined for the Interest Period therefor plus the Applicable Margin.
(e) The Daily Simple SOFR Loans shall bear interest for each day during the period from the date thereof until the payment in full thereof on the unpaid principal amount thereof at a fluctuating rate per annum equal to Adjusted Daily Simple SOFR for such day plus the Applicable Margin.
(f) If all or a portion of the principal amount of any of the Committed Rate Loans shall not be paid when due (whether at the stated maturity, by acceleration or otherwise) such overdue principal amount of such Committed Rate Loan (i) shall bear interest at a rate per annum which is 1% above the rate which would otherwise be applicable pursuant to subsection 2.8(a), (b), (c), (d) or (e) 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 Term Benchmark Loan denominated in Dollars, be converted to an ABR Loan at the end of the Interest Period applicable thereto.
(g) Interest shall be payable in arrears on each Interest Payment Date.
37
38
circumstances affect Term Benchmark Loans, any request for the making of, or continuation or conversion of a Loan into a Term Benchmark Loan shall be deemed to be a request for the making of or continuation or conversion into Daily Simple SOFR Loans (so long as Adjusted Daily Simple SOFR is not also the subject of subsection 2.11(a)(i)) or ABR Loans (if Adjusted Daily Simple SOFR is also the subject to subsection 2.11(a)(i)), (B) to the extent such circumstances affect Daily Simple SOFR Loans, any request for the making of or conversion into a Daily Simple SOFR Loan shall be deemed to be a request for the making of or conversion into an ABR Loan and (C) to the extent such circumstances affect Eurocurrency Loans denominated in any Currency or SONIA Loans, as applicable, any request for a Eurocurrency Loan in such Currency or a SONIA Loan, as applicable, shall be ineffective; provided that if the circumstances giving rise to such notice affect only one Type of Loan, then all other Types of Loans shall be permitted. Furthermore, if any Eurocurrency Loan, Daily Simple SOFR Loan or SONIA Loan is outstanding on the date of the applicable Borrower’s receipt of the notice from the Administrative Agent referred to in this subsection 2.11(a) with respect to a Relevant Rate applicable to such Eurocurrency Loan, Daily Simple SOFR Loan or SONIA Loan, then until (x) the Administrative Agent notifies the Borrowers and the Banks that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the applicable Borrower delivers a new notice to convert or continue the applicable Loans in accordance with subsection 2.9 or a new borrowing request in accordance with subsection 2.1, (A) any such Daily Simple SOFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan, (B) any Eurocurrency Loan shall on the last day of the then-current Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day) bear interest at the Central Bank Rate for the applicable Currency plus the CBR Spread and (C) any SONIA Loan shall bear interest at the Central Bank Rate for Pounds Sterling plus the CBR Spread; provided that, in the cases of the foregoing clauses (B) and (C), if the Administrative Agent, provides notice to the Company of its determination (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Currency cannot be determined, any outstanding affected Eurocurrency Loans or SONIA Loans, as applicable, at the applicable Borrower’s election, shall either (A) be converted into ABR Loans denominated in Dollars at the applicable exchange rate immediately or (B) be prepaid in full immediately.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark 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 (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” with respect to Dollars for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark 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 is determined in accordance with clause (2) of the definition of “Benchmark Replacement” with respect to any Currency 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) 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
39
Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Company and the Banks of (i) any occurrence of a Benchmark Transition Event 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 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.
(e) 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 the Term SOFR Rate 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.
(f) Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Relevant Rate applicable to any Type of Loan, a Borrower may revoke any request for a Eurocurrency Loan, Term Benchmark Loan, SONIA Loan or Daily Simple SOFR Loan, as applicable, to be made, converted or continued during such Benchmark Unavailability Period, and, failing that, (x) to the extent such Benchmark Unavailability Period affects Term SOFR Loans, the applicable Borrower will be deemed to have converted any request for a Term Benchmark Loan into a request for a borrowing or conversion to (A) a Daily Simple SOFR Loan so long as Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Loan if Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, (y) to the extent such Benchmark Unavailability Period affects Daily Simple SOFR Loans, the applicable Borrower will be deemed to have converted any request for a Daily Simple SOFR Borrowing into a request for a borrowing or conversion to an ABR Loan and (z) to the extent such Benchmark Unavailability Period affects Eurocurrency Loans in a Foreign Currency or any SONIA Loans, any request for a Eurocurrency Loan denominated in such Currency or a SONIA Loan, as applicable, 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, Term Benchmark Loan, Daily Simple SOFR Loan 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, Term Benchmark Loan, Daily Simple SOFR Loan or SONIA
40
Loan, as applicable, then until such time as a Benchmark Replacement for such Currency or Type of Loan is implemented pursuant to this subsection 2.11, (i) to the extent such Benchmark Unavailability Period affects Term SOFR Loans, any Term Benchmark 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), be converted by the Administrative Agent to, and shall constitute, (x) a Daily Simple SOFR Loan so long as Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day, (ii) to the extent such Benchmark Unavailability Period affects Daily Simple SOFR Loans, any Daily Simple SOFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an, ABR Loan and (iii) to the extent such Benchmark Unavailability Period affects Eurocurrency Loans such Currency or any SONIA Loan, as applicable, any Eurocurrency Loan denominated in such Currency or SONIA Loan, as applicable, shall bear interest at the Central Bank Rate for the applicable Currency plus the CBR Spread; provided that, if the Administrative Agent provides written notice to the Company of its determination (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Currency cannot be determined, any outstanding affected Loans denominated in such Foreign Currency, 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 such Foreign Currency) immediately or (B) be prepaid in full immediately.
41
42
43
period) and (z) the thirtieth day immediately following such Bank’s knowledge of the incurrence or realization by such Bank of such increased cost or reduction (and such certificate shall so certify).
44
45
(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 Term Benchmark 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 Term Benchmark 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.
46
47
48
limitation, branch taxes) imposed by the United States or similar taxes imposed by a political subdivision or taxing authority thereof or therein, (ii) in the case of any Foreign Bank, any taxes imposed by the United States by means of withholding at the source unless such Bank has provided the Borrowers and the Administrative Agent with the documents it is required to provide to them under subsection 2.17(c) or such tax is imposed by reason of a change in United States law (other than FATCA described in clause (vi)) after the date the Bank becomes a party to this Agreement, (iii) taxes that would not have been imposed on such Bank but for the existence of a connection between such Bank and the jurisdiction imposing such taxes (other than a connection arising principally by virtue of such Bank having executed, delivered or performed its obligations or received a payment under, or enforced this Agreement), (iv) taxes that are attributable to such Bank’s failure to comply with the requirements of subsection 2.17(c), subsection 2.17(d) or subsection 2.17(f), (v) any taxes imposed upon a Non-Qualifying Bank (as defined in subsection 2.17(e)) pursuant to the Luxembourg laws of 21 June, 2005 implementing the European Union Savings Directive (Council Directive 2003/48/EC) and several agreements concluded with certain dependent or associated territories, providing for the possible application of a withholding tax, as in effect as of the date hereof, other than any taxes which can be avoided pursuant to an exchange of information and for which such information is available to the Borrower, and (vi) any withholding imposed pursuant to FATCA (such non-excluded taxes being called “Indemnified Taxes”). If any Indemnified Taxes are required to be withheld from any amounts so payable to the Administrative Agent or any Bank hereunder, as determined in good faith by the applicable Withholding Agent, (i) such amounts shall be paid to the relevant Government Authority in accordance with applicable law and (ii) the amounts so payable by the applicable Borrower shall be increased to the extent necessary to yield to such Bank (after payment of all Indemnified Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement as if such withholding or deduction had not been made. Whenever any Indemnified Taxes are payable by any Borrower, as the case may be, as promptly as possible thereafter such Borrower, as the case may be, shall send to the Administrative Agent, for its own account, or for the account of the affected Bank, a certified copy of the original official receipt, if any, or other documentary evidence received by such Borrower showing payment thereof. If (i) such Borrower fails to pay any Indemnified Taxes when due to the appropriate taxing authority, (ii) such Borrower fails to remit to the Administrative Agent the required receipts or other required documentary evidence, or (iii) as a result of a failure listed in (i) directly above, any Indemnified Taxes are imposed directly upon the Administrative Agent or any Bank, such Borrower shall indemnify the Administrative Agent or such Bank, as the case may be, for any Indemnified Taxes and interest or penalties with respect thereto that may become payable by the Administrative Agent or such Banks, as the case may be, as a result of any such failure, in the case of (i) or (ii), or any such direct imposition, in the case of (iii).
49
50
The obligations of the parties under this subsection 2.17 shall survive termination of this Agreement and payment of the Loans.
51
Report Period, including an accounting setting forth, for such Report Period the amounts of principal, interest and other sums paid and payable hereunder. The Borrowers shall, within 15 days following receipt of such written account, notify the Administrative Agent of any discrepancies between such written account and the Borrowers’ records or, if no such discrepancies exist, furnish written confirmation to the Administrative Agent of the accuracy of such written account. Upon any Bank’s request, the Administrative Agent shall furnish to each Bank a copy of such written account together with the Borrowers’ response thereto.
52
53
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.
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.
54
which, in accordance with normal banking procedures in the relevant jurisdiction, the first currency could be purchased with such other currency on the Business Day immediately preceding the day on which final judgment is given.
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
55
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 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
56
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.
57
58
(f)Upon the occurrence of any Sustainability Recalculation Event, upon the written request of the Borrowers or the Majority Banks, the Majority Banks and the Borrowers shall negotiate in good faith to amend the KPI Metric or KPI Metrics implicated by such Sustainability Recalculation Event; provided that (i) until such amendment shall become effective, the KPI Metrics and Sustainability Targets shall remain in place as unamended and (ii) if any such amendment to any the KPI Metrics and Sustainability Targets would immediately cause a downward adjustment in the Applicable Margin or Commitment Fee Rate, the consent of the Company and each Bank affected thereby shall be required.
| SECTION 3. | REPRESENTATIONS AND WARRANTIES |
Each Borrower hereby represents and warrants to the Administrative Agent and to each Bank that:
59
revenues except actions, suits or proceedings which will not materially adversely affect the ability of such Borrower to perform its obligations hereunder. All of the defaults, if any, of such Borrower or any of its Subsidiaries with respect to any order of any Governmental Authority do not, and will not collectively, have a material adverse effect on the business, operations, property or financial condition of such Borrower and its Subsidiaries taken as a whole.
| SECTION 4. | CONDITIONS PRECEDENT |
60
61
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) and (b) of this subsection 4.2 have been satisfied.
| SECTION 5. | AFFIRMATIVE COVENANTS |
Each of the Borrowers (except as otherwise specified) hereby agrees that, so long as there is any obligation by any Bank to make Loans to it hereunder, any Loan of such Borrower remains outstanding and unpaid or any other amount is owing by such Borrower to any Bank or any Agent hereunder (unless the Majority Banks shall otherwise consent in writing):
62
(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.
63
64
with which would reasonably be expected to materially adversely affect (i) the financial condition or operations of such Borrower and its consolidated Subsidiaries taken as a whole or (ii) the ability of such Borrower to perform its obligations under this Agreement.
| 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):
65
66
67
| 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
68
subsection 7.3 shall it permit any of its Subsidiaries to, directly or indirectly (unless the Majority Banks shall otherwise consent in writing):
69
| SECTION 8. | EVENTS OF DEFAULT |
Upon the occurrence and during the continuance of any of the following events:
70
71
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.
72
| SECTION 9. | THE AGENTS |
73
Person or Persons (including, for the avoidance of doubt, in connection with the Administrative Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page) and upon advice and statements of legal counsel (including, without limitation, counsel to the Borrowers), independent accountants and other experts selected by such Agent. Each Agent may deem and treat the payee of any Loan as the owner thereof for all purposes except as provided in subsections 10.5(c) and 10.5(d). Each Agent shall be fully justified in failing or refusing to take any discretionary action under this Agreement unless it shall first receive such advice or concurrence of the Majority Banks as it deems appropriate or it shall first be indemnified to its satisfaction by the Banks against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with a request of the 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 return 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
74
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.
75
disbursements resulting from such Agent’s gross negligence or willful misconduct. The agreements in this subsection 9.7 shall survive the payment of the Loans and all other amounts payable hereunder.
(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.
(a) Each party hereto hereby agrees that neither the Administrative Agent nor the Sustainability Structuring Agent shall have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by the Borrowers of any Sustainability Facility Fee Adjustment or any Sustainability Rate Adjustment (or any of the data or computations that are part of or related to any such calculation) set forth in any Pricing Certificate (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry).
(b) Each Bank and each Issuing Bank (a) acknowledges and agrees that none of the Administrative Agent, any Syndication Agent, the Lead Arrangers, the Bookrunners on the cover of this Agreement nor the Sustainability Structuring Agent acting in such capacities have made any assurances as
76
to (i) whether the revolving credit facility hereunder meets such Bank’s or Issuing Bank’s criteria or expectations with regard to environmental impact and sustainability performance, (ii) whether any characteristics of the revolving credit facility hereunder, including the characteristics of the relevant key performance indicators to which the Borrowers will link a potential margin step-up or step-down, including their environmental and sustainability criteria, meet any industry standards for sustainability-linked credit facilities and (b) has performed its own independent investigation and analysis of the revolving credit facility hereunder and whether such revolving credit facility meets its own criteria or expectations with regard to environmental impact and/or sustainability performance.
| SECTION 10. | MISCELLANEOUS |
77
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 |
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. 500 Stanton Christiana Rd NCC5 / 1st Floor Newark, DE 19713-2107 Attention: Loan & Agency Services Group Phone No: +1-302-552-6226 Email: christopher.draper@chase.com |
78
with a copy to: | JPMorgan Chase Bank, N.A. Middle Market Servicing 10 South Dearborn, Floor L2 Suite IL1-0480 Chicago, IL, 60603-2300 Attention: Commercial Banking Group Fax No: (844) 490-5663 Email: jpm.agency.cri@jpmorgan.com jpm.agency.servicing.1@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).
79
80
81
82
83
84
from the Borrowers pursuant to this Agreement which, if provided in writing, is designated in writing as confidential, and if provided orally, is designated orally as confidential by the Borrowers except:
85
reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, (i) to the extent the Administrative Agent has agreed to accept any Electronic Signature, the Administrative Agent and each of the Banks shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of the Borrowers without further verification thereof and without any obligation to review the appearance or form of any such Electronic Signature and (ii) upon the request of the Administrative Agent or any Bank, any Electronic Signature shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, the Borrowers hereby (i) agree that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Banks, and the Borrowers, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement, 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.
86
based on the grounds of forum non conveniens which it may now or hereafter have to the bringing of any such action or proceeding in any such jurisdiction. Nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right of any Agent or any Bank to bring proceedings against the Borrowers in the courts of any other jurisdiction. JD Luxembourg irrevocably appoints the Company as its agent to receive process with respect to this Agreement.
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.
87
liability is unsecured, may be subject to the Write-Down and Conversion Powers of a Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(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 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
88
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 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:/s/ Andrew M. Recker |
| JOHN DEERE CAPITAL CORPORATION By:/s/ Andrew M. Recker |
| JOHN DEERE BANK S.A. By:/s/ Nathalie Prevost |
By:/s/ Jeffrey Trahan
Name: Jeffrey Trahan
Title: Member of the Board
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| JPMORGAN CHASE BANK, N.A., By: /s/ Jonathan Bennett |
| |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| BANK OF AMERICA, N.A., as Co-Syndication Agent and as a Bank By: /s/ Brian Lukehart |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| CITIBANK, N.A., as Co-Syndication Agent and as a Bank By: /s/ Carolyn Kee |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| J.P. MORGAN SECURITIES LLC, as Sustainability Structuring Agent By: /s/ Ana Silva |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| BARCLAYS BANK PLC, as a Bank By: /s/ Charlene Saldanha Title: Vice President |
| |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| HSBC BANK USA, N.A., as a Bank By: /s/ Matthew McLaurin Title: Director |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| MUFG BANK, LTD., as a Bank By: /s/ Victor Pierzchalski Title: Managing Director |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| Royal Bank of Canada, as a Bank By: /s/ Benjamin Lennon Title: Authorized Signatory |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| The Toronto-Dominion Bank, New York Branch, as a Bank By: /s/ David Perlman Title: Authorized Signatory |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Bank By: /s/ Jill Wong Title: Director By: /s/ Andrew Sidford Title: Managing Director |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| DEUTSCHE BANK AG NEW YORK BRANCH, as a Bank By: /s/ Ming K. Chu Title: Director By: /s/ Douglas Darman Title: Director |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| GOLDMAN SACHS BANK USA, as a Bank By: /s/ Jonathan Dworkin Title: Authorized Signatory |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| BNP Paribas, as a Bank By: /s/ Tony Baratta Title: Managing Director By: /s/ Michael Hoffman Title: Managing Director |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| Commerzbank AG, New York Branch, as a Bank By: /s/ Mathew Ward Title: Managing Director By: /s/ Robert Sullivan Title: Vice President |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| Bank of China, Chicago Branch, as a Bank By: /s/ Xu Yang Title: SVP |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| SUMITOMO MITSUI BANKING CORPORATION, as a Bank By: /s/ Jun Ashley Title: Director |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| WELLS FARGO BANK, NATIONAL ASSOCIATION By: /s/ Bryan Girouard Title: Vice President |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH, as a Bank By: /s/ Brian Crowley Title: Managing Director By: /s/ Armen Semizian Title: Executive Director |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| BANCO SANTANDER, S.A., NEW YORK BRANCH, as a Bank By: /s/ Andres Barbosa Title: Managing Director By: /s/ Rita Walz-Cuccioli Title: Executive Director |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| THE BANK OF NEW YORK MELLON, as a Bank By: /s/ Thomas J. Tarasovich, Jr. Title: Vice President |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| THE BANK OF NOVA SCOTIA, as a Bank By: /s/ Frans Braniotis Title: Managing Director |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| U.S. Bank National Association, as a Bank By: /s/ Mary Ann Hawley Title: Vice President |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| PNC Bank, National Association, as a Bank By: /s/ Debra Hoffenkamp Title: Assistant Vice President |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| STANDARD CHARTERED BANK, as a Bank By: /s/ Kristopher Tracy Title: Director, Financing Solutions |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| Agricultural Bank of China New York Branch, as a Bank By: /s/ Nelson Chou Title: Senior Vice President & Head of Corporate Banking Department |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| ING Bank N.V., Dublin Branch, as a Bank By: /s/ Cormac Langford Title: Director By: /s/ Sean Hassett Title: Director |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| Lloyds Bank plc, as a Bank By: /s/ Blair Daly Title: Associate Director |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| Nordea Bank ABP, New York Branch as a Bank By: /s/ Ola Anderssen Title: First Vice President By: /s/ Anders Holmgaard Title: Managing Director |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| SOCIETE GENERALE, as a Bank By: /s/ Kimberly Metzger Title: Director |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| TRUIST BANK, as a Bank By: /s/ Jason Hembree Title: Vice President |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
| ICICI Bank Ltd, New York Branch, as a Bank By: /s/ Nitin Gupta Title: Head-GIC, Corporate USA |
[Signature Page to the 2023 364-Day Deere & Company Credit Agreement]
