EXHIBIT 4
___________________________________________________________
DEERE & COMPANY
▇▇▇▇ DEERE CAPITAL CORPORATION
______________________________
$2,000,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of February 23, 1999
______________________________
THE CHASE MANHATTAN BANK,
as Administrative Agent, as Auction Agent
and as a Managing Agent
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Documentation Agent and as a Managing Agent
DEUTSCHE BANK AG NEW YORK BRANCH,
as Syndication Agent and as a Managing Agent
THE TORONTO-DOMINION BANK,
as Canadian Administrative Agent and as a Managing Agent
_____________________
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
___________________________________________________________
TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 16
SECTION 2. THE COMMITTED RATE LOANS; THE BID LOANS;
THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS 17
2.1 The Committed Rate Loans 17
2.2 The Bid Loans; the Negotiated Rate Loans 18
2.3 Loan Accounts 22
2.4 Fees 22
2.5 Termination or Reduction of Commitments;
Cancellation of Capital Corporation as Borrower 23
2.6 Optional and Mandatory Prepayments 24
2.7 Minimum Amount of Certain Loans 25
2.8 Committed Rate Loan Interest Rate and
Payment Dates 25
2.9 Conversion and Continuation Options 25
2.10 Computation of Interest and Fees 26
2.11 Inability to Determine Interest Rate 27
2.12 Pro Rata Treatment and Payments 28
2.13 Requirements of Law 32
2.14 Indemnity 34
2.15 Non-Receipt of Funds by the Administrative Agent 35
2.16 Extension of Termination Date 35
2.17 Foreign Taxes 36
2.18 Confirmations 38
2.19 Replacement of Cancelled Banks 38
2.20 Certain Notices 38
2.21 Commitment Increases 39
SECTION 3. REPRESENTATIONS AND WARRANTIES 41
3.1 Financial Condition 41
3.2 Corporate Existence 41
3.3 Corporate Power; Authorization; Enforceable
Obligations 42
3.4 No Legal Bar 42
3.5 No Material Litigation 42
3.6 Taxes 42
3.7 Margin Regulations 42
3.8 Pari Passu Ranking 43
3.9 No Defaults 43
Page i
3.10 Use of Proceeds 43
3.11 Year 2000 Issues 43
SECTION 4. CONDITIONS PRECEDENT 43
4.1 Conditions to Initial Loan 43
4.2 Conditions to All Loans 44
SECTION 5. AFFIRMATIVE COVENANTS 45
5.1 Financial Statements 45
5.2 Certificates; Other Information 45
5.3 Company Indenture Documents 46
5.4 Capital Corporation Indenture Documents 46
5.5 Notice of Default 46
5.6 Ownership of Capital Corporation Stock 46
5.7 Employee Benefit Plans 46
SECTION 6. NEGATIVE COVENANTS OF THE COMPANY 46
6.1 Company May Consolidate, etc., Only on
Certain Terms 47
6.2 Limitation on Liens 47
6.3 Limitations on Sale and Lease-back Transactions 50
6.4 Consolidated Tangible Net Worth 51
SECTION 7. NEGATIVE COVENANTS OF THE CAPITAL CORPORATION 51
7.1 Fixed Charges Ratio 51
7.2 Consolidated Senior Debt to Consolidated
Capital Base 51
7.3 Limitation on Liens 51
7.4 Consolidation; Merger 53
SECTION 8. EVENTS OF DEFAULT 53
SECTION 9. THE AGENTS 56
9.1 Appointment 56
9.2 Delegation of Duties 56
9.3 Exculpatory Provisions 56
9.4 Reliance by Agents 57
9.5 Notice of Default 57
9.6 Non-Reliance on Agents and Other Banks 57
9.7 Indemnification 58
9.8 Agents in their Individual Capacities 58
9.9 Successor Agents 58
Page ii
SECTION 10. MISCELLANEOUS 58
10.1 Amendments and Waivers 58
10.2 Notices 59
10.3 No Waiver; Cumulative Remedies 61
10.4 Payment of Expenses and Taxes 61
10.5 Successors and Assigns; Participations;
Purchasing Banks 63
10.6 Adjustments 66
10.7 Confidentiality 67
10.8 Counterparts 67
10.9 GOVERNING LAW 68
10.10 Consent to Jurisdiction and Service of Process 68
10.11 Exiting Banks 68
SCHEDULES:
Schedule I Terms of Subordination
Schedule II Commitments
Schedule III Addresses for Notices
EXHIBITS:
Exhibit A Form of Borrowing Notice
Exhibit B Form of Bid Loan Request
Exhibit C Form of Bid Loan Offer
Exhibit D Form of Bid Loan Confirmation
Exhibit E Form of Loan Assignment
Exhibit F Form of Commitment Transfer Supplement
Exhibit G Form of Opinion of General Counsel to the Borrowers
Exhibit H Form of Opinion of Special New York Counsel to the
Borrowers
Exhibit I Form of Extension Request
Exhibit J Form of Form 1001 Tax Letter
Exhibit K Form of Form 4224 Tax Letter
Exhibit L Form of Agreement
Exhibit M Form of Bid Loan or Negotiated Rate Loan Note
Exhibit N Form of New Bank Supplement
Exhibit O Form of Commitment Increase Supplement
Page iii
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
February 23, 1999, among (a) DEERE & COMPANY, a Delaware
corporation (the "COMPANY"), (b) ▇▇▇▇ DEERE CAPITAL
CORPORATION, a Delaware corporation (the "CAPITAL
CORPORATION"), (c) the several financial institutions parties
hereto (collectively, the "BANKS", and individually, a
"BANK"), (d) THE CHASE MANHATTAN BANK, as administrative agent
hereunder (in such capacity, the "ADMINISTRATIVE AGENT") and
as auction agent hereunder (in such capacity, the "AUCTION
AGENT"), (e) BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as documentation agent hereunder (in such
capacity, the "DOCUMENTATION AGENT"), (f) DEUTSCHE BANK AG NEW
YORK BRANCH, as syndication agent hereunder (in such capacity,
the "SYNDICATION AGENT"), (g) THE TORONTO-DOMINION BANK, as
Canadian administrative agent hereunder (in such capacity, the
"CANADIAN ADMINISTRATIVE AGENT"), (h) THE CHASE MANHATTAN
BANK, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
DEUTSCHE BANK AG NEW YORK BRANCH and THE TORONTO-DOMINION
BANK, as managing agents (collectively, the "MANAGING
AGENTS"), and (i) the co-agents identified on the signature
pages hereof (collectively, the "CO-AGENTS").
W I T N E S S E T H :
WHEREAS, pursuant to the $1,500,000,000 Amended and
Restated Credit Agreement, dated as of February 24, 1998 (the
"EXISTING CREDIT AGREEMENT"), among the Borrowers, the Banks,
the Agents, the Managing Agents and the Co-Agents, the Banks
parties thereto have agreed to extend credit to the Borrowers;
WHEREAS, the Borrowers have requested that the
Existing Credit Agreement be amended and restated as
hereinafter provided; and
WHEREAS, the Banks, the Agents, the Managing Agents
and the Co-Agents are willing to agree to such amendment and
restatement;
NOW, THEREFORE, the parties hereto hereby agree that
on the Closing Date (as defined below) the Existing Credit
Agreement will be amended and restated in its entirety as
follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the
following terms have the following meanings:
"ABR": at any particular date, the higher of (a) the
rate of interest per annum publicly announced by Chase for
such date as its prime rate in effect at its principal office
in New York City and (b) .5% per annum above the rate set
forth for such date or, if such date is not a Business Day,
the next preceding Business Day, opposite the caption
"Federal Funds (Effective)" in the weekly statistical release
designated as "H.15(519)" (or any successor publication)
published by the Board of Governors of the Federal Reserve
System or, if such rate is not so published for such date, the
average of the quotations for such day on such transactions
received by the Administrative Agent from three Federal Funds
dealers of recognized standing selected by it. The prime rate
is not intended to be the lowest rate of interest charged by
Chase in connection with extensions of credit to debtors.
"ABR LOANS": Committed Rate Loans at such time as
they are made and/or being maintained at a rate of interest
based upon the ABR.
"ABSOLUTE RATE BID LOAN": any Bid Loan made pursuant
to an Absolute Rate Bid Loan Request.
"ABSOLUTE RATE BID LOAN REQUEST": any Bid Loan
Request requesting the Banks to offer to make Bid Loans at an
absolute rate (as opposed to a rate composed of the Applicable
Index Rate PLUS (or MINUS) a margin).
"ADMINISTRATIVE AGENT": as defined in the preamble
hereto.
"AFFILIATED LINKED LENDER": as to each Tranche B
Bank, the Linked Lender set forth opposite its name below:
TRANCHE B BANK LINKED LENDER
-------------- -------------
Royal Bank of Canada Royal Bank of Canada
Toronto Dominion The Toronto-Dominion Bank
(Texas), Inc.
This definition shall be deemed automatically amended
to include any new Tranche B Bank and its Affiliated Linked
Lender resulting from the replacement pursuant to subsection
2.19 of a Cancelled Bank which was a Tranche B Bank or from
any assignment of rights and obligations made pursuant to
subsection 10.5(d).
"AGENT": the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Auction Agent or the
Canadian Administrative Agent, as the context shall require;
together, the "AGENTS".
"AGREEMENT": this Amended and Restated Credit
Agreement, as amended, supplemented or modified from time to
time.
Page 2
"APPLICABLE INDEX RATE": in respect of any Bid Loan
requested pursuant to an Index Rate Bid Loan Request, the
Eurodollar Rate applicable to the Interest Period for such Bid
Loan.
"APPLICABLE MARGIN": for each Type of Committed Rate
Loan the rate per annum set forth below:
(a) for each day prior to the Closing Date:
ABR EURODOLLAR C/D RATE
LOANS LOANS LOANS
----- ---------- --------
0% .18% .31%
(b) for each day from and after the Closing Date:
ABR EURODOLLAR C/D RATE
LOANS LOANS LOANS
----- ---------- --------
0% .175% .305%
"ASSESSMENT RATE": with respect to each day during
each Interest Period for a C/D Rate Loan, the net annual
assessment rate in effect two Business Days prior to the first
day of such Interest Period which is payable by a member of
the Bank Insurance Fund classified as well capitalized and
within supervisory subgroup "A" (or a comparable successor
assessment risk classification) within the meaning of 12
C.F.R. Section 327.3(e) (or any successor provision) to the Federal
Deposit Insurance Corporation (or any successor) for such
Corporation's (or such successor's) insuring time deposits at
offices of such institution in the United States.
"ATTRIBUTABLE DEBT": as defined in subsection
6.2(b)(ii).
"AUCTION AGENT": as defined in the preamble hereto.
"BANK" and "BANKS": as defined in the preamble
hereto.
"BASE RATE": with respect to each day during each
Interest Period for a C/D Rate Loan, (a) the rate determined
by the Administrative Agent to be the rate set forth in
H.15(519) (published by the Federal Reserve Bank of New York)
for such Interest Period under the caption "CDs (Secondary
Market)", or, if on the first day of such Interest Period such
rate for such Interest Period is not yet published in
H.15(519), the rate for such Interest Period will be the rate
determined by the Administrative Agent to be the rate set
forth in Composite 3:30 P.M. Quotations for U.S. Government
Securities (published by the Federal Reserve Bank of New York)
for that day in respect of such Interest Period under the
caption "Certificates of Deposit" or (b), if on the first day
of
Page 3
such Interest Period, the appropriate rate for such Interest
Period is not yet published in either H.15(519) or Composite
3:30 P.M. Quotations for U.S. Government Securities, the rate
for such Interest Period will be the arithmetic average
(rounded upward to the nearest 1/100 of 1%) of the respective
rates notified to the Administrative Agent by the Reference
Banks as the rates per annum bid at 10:00 A.M. (New York City
time) (or as soon thereafter as practicable) on the first day
of such Interest Period by a total of three certificate of
deposit dealers located in New York City and of recognized
standing selected by each Reference Bank for the purchase at
face value from such Reference Bank of its certificates of
deposit in an amount comparable to the C/D Rate Loan of such
Reference Bank to which such Interest Period applies and
having a maturity comparable to such Interest Period; PROVIDED
that if such bids from such dealers are not available to such
Reference Bank, such Reference Bank shall notify the
Administrative Agent of a reasonably equivalent rate
determined by it on the basis of another source or sources
selected by it.
"BENEFITTED BANK": as defined in subsection 10.6.
"BID LOAN": each loan (other than Negotiated Rate
Loans) made pursuant to subsection 2.2; the aggregate amount
advanced by a Bid Loan Bank pursuant to subsection 2.2 on each
Borrowing Date shall constitute one Bid Loan, or more than one
Bid Loan if so specified by the relevant Loan Assignee in its
request for promissory notes pursuant to subsection 10.5(c).
"BID LOAN BANKS": the collective reference to each
Bank designated from time to time as a Bid Loan Bank by a
Borrower (for purposes of Bid Loans to such Borrower) by
written notice to the Auction Agent and the Administrative
Agent and which has not been removed as a Bid Loan Bank by
such Borrower by written notice to the Auction Agent and the
Administrative Agent (each of which notices the Auction Agent
shall transmit to each such affected Bank).
"BID LOAN CONFIRMATION": each confirmation by the
Company or the Capital Corporation of its acceptance of Bid
Loan Offers, which Bid Loan Confirmation shall be
substantially in the form of Exhibit D and shall be delivered
to the Auction Agent by facsimile transmission or by
telephone, immediately confirmed by facsimile transmission.
"BID LOAN OFFER": each offer by a Bid Loan Bank to
make Bid Loans pursuant to a Bid Loan Request, which Bid Loan
Offer shall contain the information specified in Exhibit C and
shall be delivered to the Auction Agent by facsimile
transmission or by telephone, immediately confirmed by
facsimile transmission.
"BID LOAN REQUEST": each request by a Borrower for
Bid Loan Banks to submit bids to make Bid Loans, which shall
contain the information in respect of such requested Bid Loans
specified in Exhibit B and shall be delivered to the Auction
Agent by facsimile transmission or by telephone, immediately
confirmed by facsimile transmission.
Page 4
"BORROWER": the Company or the Capital Corporation;
collectively, the "BORROWERS".
"BORROWING DATE": in respect of any Loan, the date
such Loan is made.
"BUSINESS DAY": a day other than a Saturday, Sunday
or other day on which commercial banks in New York City are
authorized or required by law to close.
"CANADIAN ADMINISTRATIVE AGENT": as defined in the
preamble hereto.
"CANADIAN DOLLARS" and "CDN.$": dollars in the lawful
currency of Canada.
"CANCELLED BANK": any Bank that has the whole or any
part of its Commitment cancelled under subsection 2.5(b),
subsection 2.13(a), (b) or (c), subsection 2.16(c) or
subsection 2.17(b) or the Commitment of which has expired
under subsection 2.16(a).
"CAPITAL Corporation": as defined in the preamble
hereto.
"C/D RATE": with respect to each day during the
Interest Period for a C/D Rate Loan, a rate per annum equal to
the following determined for such day:
Base Rate
------------------------- + Assessment Rate
1.00 - Reserve Percentage
"C/D RATE LOANS": Committed Rate Loans at such time
as they are made and/or being maintained at a rate of interest
based upon a C/D Rate.
"CHASE": The Chase Manhattan Bank, a New York banking
corporation.
"CLOSING DATE": the date on which each of the
conditions precedent specified in subsection 4.1 shall have
been satisfied (or compliance therewith shall have been waived
by the Majority Banks hereunder).
"CO-AGENTS": as defined in the preamble hereto.
"CODE": the Internal Revenue Code of 1986, as amended
from time to time.
"COMMITMENT": as to any Bank, the amount set opposite
such Bank's name on Schedule II, as such amount may be
modified as provided herein; collectively, as to all the
Banks, the "COMMITMENTS".
"COMMITMENT EXPIRATION DATE": as defined in
subsection 2.16(a).
"COMMITMENT INCREASE NOTICE": as defined in
subsection 2.21(a).
"COMMITMENT INCREASE SUPPLEMENT": as defined in
subsection 2.21(c).
Page 5
"COMMITMENT PERCENTAGE": as to any Bank at any time,
the percentage which such Bank's Commitment at such time
constitutes of all the Commitments at such time; collectively,
as to all the Banks, the "COMMITMENT PERCENTAGES".
"COMMITMENT PERIOD": the period from and including
the Closing Date to but not including the Termination Date or
such earlier date on which the Commitments shall terminate as
provided herein.
"COMMITMENT TRANSFER SUPPLEMENT": a Commitment
Transfer Supplement, substantially in the form of Exhibit F.
"COMMITTED GLOBAL EXPOSURE": as to any Bank, at a
particular time, an amount equal to the sum of (a) the
aggregate unpaid principal amount at such time of all
Committed Rate Loans made by such Bank, and (b) the Equivalent
Amount of the aggregate unpaid principal amount of all
Committed Linked Loans made by such Bank's Affiliated Linked
Lender.
"COMMITTED LINKED LOANS": Linked Loans other than
"Excluded Loans" under the Linked Agreement.
"COMMITTED RATE LOANS": each loan made pursuant to
subsection 2.1.
"COMMONLY CONTROLLED ENTITY": in relation to a
Borrower, an entity, whether or not incorporated, which is
under common control with such Borrower within the meaning of
Section 414(b) or (c) of the Code.
"COMPANY": as defined in the preamble hereto.
"CONSOLIDATED CAPITAL BASE": at a particular time for
the Capital Corporation and its consolidated Subsidiaries, the
sum of (a) the amount shown opposite the item "Total
stockholder's equity" on the consolidated balance sheet of the
Capital Corporation and its consolidated Subsidiaries PLUS (b)
the principal amounts outstanding under the 8-5/8%
Subordinated Debentures due 2019 of the Capital Corporation
(so long as the subordination terms thereof continue to be as
favorable to the Administrative Agent and the Banks as in
existence on the Closing Date) and all indebtedness of the
Capital Corporation and its consolidated Subsidiaries for
borrowed money subordinated (on terms no less favorable to the
Administrative Agent and the Banks than the terms of
subordination set forth on Schedule I) to the indebtedness
which may be incurred hereunder by the Capital Corporation,
PROVIDED that the sum of clauses (a) and (b) hereof as at the
end of a fiscal quarter of the Capital Corporation and its
consolidated Subsidiaries (including the last quarter of a
fiscal year of the Capital Corporation and its consolidated
Subsidiaries) shall be determined by reference to the publicly
available consolidated balance sheet of the Capital
Corporation and its consolidated Subsidiaries as
Page 6
at the end of such fiscal quarter and after such adjustments,
if any, as may be required so that the sum of the amounts
referred to in clauses (a) and (b) is determined in accordance
with GAAP.
"CONSOLIDATED NET WORTH": as defined in subsection
6.2(b)(ii).
"CONSOLIDATED SENIOR DEBT": at a particular time for
the Capital Corporation and its consolidated Subsidiaries,
indebtedness for borrowed money other than the 8-5/8%
Subordinated Debentures due 2019 of the Capital Corporation
(so long as the subordination terms thereof continue to be as
favorable to the Administrative Agent and the Banks as such
terms in existence on the Closing Date) and any such
indebtedness that is subordinated, on terms no less favorable
to the Administrative Agent and the Banks than the terms of
subordination set forth on Schedule I, to the indebtedness
which may be incurred hereunder by the Capital Corporation,
PROVIDED that the amount of such indebtedness for borrowed
money (other than such subordinated indebtedness) as at the
end of a fiscal quarter of the Capital Corporation and its
consolidated Subsidiaries (including the last quarter of a
fiscal year of the Capital Corporation and its consolidated
Subsidiaries) shall be determined by reference to the publicly
available consolidated balance sheet of the Capital
Corporation and its consolidated Subsidiaries as at the end of
such fiscal quarter and after such adjustments, if any, as may
be required so that such amount is determined in accordance
with GAAP.
"CONSOLIDATED TANGIBLE NET WORTH": at a particular
time for a Borrower and its consolidated Subsidiaries, the
excess of the amount shown opposite the item "Total
stockholder's equity" on the consolidated balance sheet of
such Borrower and its consolidated Subsidiaries over the
aggregate amount shown on such balance sheet for any
intangible assets, including, without limitation, goodwill,
franchises, licenses, patents, trademarks, trade-names,
copyrights, service marks and brand names, PROVIDED that such
excess amount shall be determined (a) with respect to the
Company and its consolidated Subsidiaries as at the end of any
of their fiscal quarters (including the last quarter of any of
their fiscal years), by reference to the publicly available
consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such fiscal quarter and (b) with
respect to the Capital Corporation and its consolidated
Subsidiaries as at the end of any of their fiscal quarters
(including the last quarter of any of their fiscal years), by
reference to the publicly available consolidated balance sheet
of the Capital Corporation and its consolidated Subsidiaries
as at the end of such fiscal quarter, in each such case after
such adjustments, if any, as may be required so that such
excess is determined in accordance with GAAP.
"CONTRACTUAL OBLIGATION": as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or undertaking to which such Person is a
party or by which it or any of its property is bound.
"DEBT": as defined in subsection 6.2.
Page 7
"DEFAULT": any of the events specified in Section 8
(other than Section 8(i)), whether or not any requirement for
the giving of notice, the lapse of time, or both, or any other
condition, event or act has been satisfied.
"DOCUMENTATION AGENT": as defined in the preamble
hereto.
"DOLLARS" and "$": dollars in lawful currency of the
United States of America.
"DOMESTIC DOLLAR LOANS": the collective reference to
C/D Rate Loans and ABR Loans.
"EQUIVALENT AMOUNT": on any date, the equivalent
amount in Dollars after giving effect to a conversion of a
specified amount of Canadian Dollars to Dollars at the
Exchange Rate on that date. The Equivalent Amount of any
stamping fee paid to any Linked Lender pursuant to subsection
6.1(b) of the Linked Agreement shall be determined as of the
date of such payment.
"ERISA": the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"EURODOLLAR LOANS": Committed Rate Loans at such time
as they are made and/or being maintained at a rate of interest
based upon a Eurodollar Rate.
"EURODOLLAR RATE": with respect to each day during
each Interest Period for a Eurodollar Loan and for each Index
Rate Bid Loan, (a) the rate determined by the Administrative
Agent to be the arithmetic mean of the offered rates for
deposits in Dollars for a period of such Interest Period which
appear on the Reuters Screen LIBO Page as of 11:00 a.m.,
London time, on the date that is two Working Days prior to the
beginning of such Interest Period or (b) if fewer than two
offered rates appear, the rate in respect of such Interest
Period will be the rate per annum equal to the average
(rounded upwards, if necessary, to the nearest whole multiple
of one sixteenth of one percent) of the respective rates
notified to the Administrative Agent by the Reference Banks as
the rate at which such Reference Bank is offered Dollar
deposits two Working Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in
respect of its Eurodollar Loans are customarily conducted at
or about 10:00 a.m., New York City time, for delivery on the
first day of such Interest Period for the number of days
comprised therein and in an amount (i) in the case of
Eurodollar Loans, comparable to the amount of the Eurodollar
Loan of such Reference Bank to be outstanding during such
Interest Period and (ii) in the case of an Index Rate Bid Loan
by any Bank, equal to the principal amount of all Index Rate
Bid Loans to which such Interest Period applies.
"EVENT OF DEFAULT": any of the events specified in
Section 8, PROVIDED that any requirement for the giving of
notice, the lapse of time, or both, or any other condition,
event or act has been satisfied.
Page 8
"EXCESS AMOUNT": as defined in subsection 2.6(b).
"EXCHANGE RATE": on any date, the rate of exchange on
that date for converting Canadian Dollars into Dollars quoted
as the offering rate for wholesale transactions by the
Canadian Administrative Agent at approximately noon (Toronto
time) on such date.
"EXISTING CREDIT AGREEMENT": as defined in the
recitals hereto.
"EXITING BANK": as defined in Section 10.11.
"EXPOSURE": (a) with respect to an Objecting Bank at
any time, the aggregate outstanding principal amount of its
Loans and (b) with respect to any other Bank at any time, the
Commitment of such Bank.
"EXTENSION REQUEST": each request by the Borrowers
made pursuant to subsection 2.16 for the Banks to extend this
Agreement, which shall contain the information in respect of
such extension specified in Exhibit I and shall be delivered
to the Administrative Agent in writing.
"FACILITY FEE RATE": (a) for each day prior to the
Closing Date, .045% and (b) for each day from and after the
Closing Date, .05%.
"FIXED CHARGES": for any particular period for the
Capital Corporation and its consolidated Subsidiaries, all of
the Capital Corporation's and its consolidated Subsidiaries'
consolidated interest on indebtedness for borrowed money,
amortization of discounts of indebtedness for borrowed money,
the portion of rentals under financing leases deemed to
represent interest and rentals under operating leases,
PROVIDED that such amounts for a fiscal quarter of the Capital
Corporation and its consolidated Subsidiaries (including the
last quarter of a fiscal year of the Capital Corporation and
its consolidated Subsidiaries) shall be determined by
reference to the publicly available consolidated statement of
income of the Capital Corporation and its consolidated
Subsidiaries for or covering such fiscal quarter and after
such adjustments, if any, as may be required so that such
amounts are determined in accordance with GAAP.
"FOREIGN TAXES": as defined in subsection 2.17(a).
"GAAP": generally accepted accounting principles in
the United States of America as applied in the preparation of
financial statements of the Company or the Capital
Corporation, respectively, as of the fiscal year ended October
31, 1998.
"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.
Page 9
"IMPORTANT PROPERTY": (a) any manufacturing plant,
including land, all buildings and other improvements thereon,
and all manufacturing machinery and equipment located therein,
owned and used by the Company or a Restricted Subsidiary
primarily for the manufacture of products to be sold by the
Company or such Restricted Subsidiary, (b) the executive
office and administrative building of the Company in Moline,
Illinois, and (c) research and development facilities,
including land and buildings and other improvements thereon
and research and development machinery and equipment located
therein, in each case, owned and used by the Company or a
Restricted Subsidiary; except in any case property of which
the aggregate fair value as determined by the Board of
Directors of the Company does not at the time exceed 1% of
Consolidated Net Worth, as shown on the audited consolidated
balance sheet contained in the latest annual report to
stockholders of the Company.
"INCREASING BANK": as defined in subsection 2.21(c).
"INDEX RATE BID LOAN": any Bid Loan made at an
interest rate based upon the Applicable Index Rate.
"INDEX RATE BID LOAN REQUEST": any Bid Loan Request
requesting the Banks to offer to make Index Rate Bid Loans at
an interest rate equal to the Applicable Index Rate PLUS (or
MINUS) a margin.
"INTEREST PAYMENT DATE": (a) as to any ABR Loan, the
last Business Day of each March, June, September and December,
commencing on the first of such days to occur after such ABR
Loan is made or a C/D Rate Loan or a Eurodollar Loan is
converted to an ABR Loan and (b) as to any Eurodollar Loan or
C/D Rate Loan, the last day of each Interest Period applicable
thereto, PROVIDED that as to any Eurodollar Loan in respect of
which a Borrower has selected an Interest Period of six months
and any C/D Rate Loan in respect of which a Borrower has
selected an Interest Period of 180 days, interest shall also
be paid on the day which is three months or 90 days, as the
case may be, after the beginning of such Interest Period.
"INTEREST PERIOD": (a) with respect to any Eurodollar
Loan, the period commencing on the Borrowing Date, the date
any ABR Loan or C/D Rate Loan is converted to a Eurodollar
Loan or the date any Eurodollar Loan is continued as a
Eurodollar Loan, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by a Borrower in its notice of
borrowing, conversion or continuance as provided in subsection
2.1(c) or 2.9;
(b) with respect to any C/D Rate Loan, the period
commencing on the Borrowing Date, the date any ABR Loan or
Eurodollar Loan is converted to a C/D Rate Loan or the date
any C/D Rate Loan is continued as a C/D Rate Loan, as the case
may be, with respect to such C/D Rate Loan and ending 30, 60,
90 or 180 days thereafter, as selected by a Borrower in its
notice of borrowing, conversion or continuance as provided in
subsection 2.1(c) or 2.9;
Page 10
(c) with respect to any Bid Loan, the period
commencing on the Borrowing Date with respect to such Bid Loan
and ending on the date not less than seven days nor more than
six months thereafter, as specified by a Borrower in its Bid
Loan Request as provided in subsection 2.2(b); and
(d) with respect to any Negotiated Rate Loan, the
period or periods commencing on the Borrowing Date with
respect to such Negotiated Rate Loan or the last day of any
Interest Period with respect thereto and ending on the dates
as shall be mutually agreed upon between the relevant Borrower
and the relevant Bank;
PROVIDED, that all of the foregoing provisions relating to
Interest Periods are subject to the following:
(i) if any Interest Period pertaining to a
Eurodollar Loan or an Index Rate Bid Loan would otherwise end
on a day which is not a Working Day, that Interest Period
shall be extended to the next succeeding Working Day unless
the result of such extension would be to carry such Interest
Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Working
Day;
(ii) if any Interest Period pertaining to a
Negotiated Rate Loan, a C/D Rate Loan or an Absolute Rate Bid
Loan would otherwise end on a day which is not a Business Day,
that Interest Period shall be extended to the next succeeding
Business Day;
(iii) any Interest Period pertaining to a
Eurodollar Loan having an Interest Period of one, two, three
or six months or an Index Rate Bid Loan having an Interest
Period of one, two, three, four, five or six months, that
begins on the last Working Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end
on the last Working Day of a calendar month;
(iv) Interest Periods shall be deemed available
only if the Required Banks shall not have advised the
Administrative Agent that the C/D Rate or the Eurodollar Rate,
as the case may be, determined by the Administrative Agent on
the basis of the applicable quotes will not adequately and
fairly reflect the cost to such Banks of maintaining or
funding their Committed Rate Loans bearing interest based on
the C/D Rate or the Eurodollar Rate, as the case may be,
determined for such Interest Period. The Administrative Agent
shall notify the Borrowers and each Bank promptly after having
been advised by the Required Banks that a C/D Rate or
Eurodollar Rate will not so adequately and fairly reflect such
Banks' costs as aforesaid. If a requested Interest Period
shall be unavailable in accordance with the foregoing
sentence, the proposed Borrower may (A) in accordance with the
provisions (including any requirements for notification) of
subsection 2.1 request, at its option, that the requested
Committed Rate Loans be
Page 11
made or maintained as C/D Rate Loans, if applicable,
or ABR Loans or (B) withdraw the request for such Committed
Rate Loans for which the Interest Period was unavailable by
giving notice of such election to the Administrative Agent in
accordance with subsection 2.11; PROVIDED, that if the
Administrative Agent does not receive any notice hereunder,
such Borrower shall be deemed to have requested ABR Loans;
(v) with respect to Loans made by an Objecting
Bank, no Interest Periods with respect to such Loans shall end
after the second anniversary of such Objecting Bank's
Commitment Expiration Date; and
(vi) no Interest Period shall end after the
second anniversary of the Termination Date.
"LINKED AGREEMENT": the U.S.$87,500,000 Loan
Agreement, dated as of April 5, 1995, between ▇▇▇▇ Deere
Limited, ▇▇▇▇ Deere Credit Inc. (formerly ▇▇▇▇ Deere Finance
Limited), certain Canadian chartered banks and The Toronto-
Dominion Bank, as agent, as amended to the date hereof and as
further amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof.
"LINKED BORROWERS": as defined in subsection 2.21(d).
"LINKED LENDER": each "Lender" (as defined in the
Linked Agreement) under the Linked Agreement.
"LINKED LOANS": the "Loans" (as defined in the Linked
Agreement) under the Linked Agreement.
"LOAN ACCOUNT": as defined in subsection 2.3;
collectively, the "LOAN ACCOUNTS".
"LOAN ASSIGNEES": as defined in subsection 10.5(c).
"LOAN ASSIGNMENT": a Loan Assignment, substantially
in the form of Exhibit E.
"LOANS": the collective reference to the Committed
Rate Loans, the Bid Loans and the Negotiated Rate Loans.
"MAJORITY BANKS": at any particular time, Banks
having Commitment Percentages aggregating more than fifty
percent; PROVIDED that (a) at any time after the termination
of all the Commitments, "Majority Banks" shall mean Banks
holding Loans aggregating more than fifty percent in principal
amount of all outstanding Loans and (b) at any time after the
Commitment Expiration Date with respect to any Objecting Bank
(but prior to the termination of all the Commitments),
"Majority Banks" shall mean Banks whose Exposure aggregates
more than fifty percent of the aggregate Exposure of all the
Banks.
Page 12
"MANAGING AGENTS": as defined in the preamble hereto.
"MARGIN STOCK": as defined in Regulation U of the
Board of Governors of the Federal Reserve System.
"MORTGAGE": as defined in subsection 6.2.
"NEGOTIATED RATE LOAN": each Loan made to a Borrower
by a Bank pursuant to a Negotiated Rate Loan Request in such
principal amount, for such number of Interest Periods (subject
to the proviso to the definition of "Interest Period" in this
subsection 1.1) and having such interest rate(s) and repayment
terms as shall, in each case, be mutually agreed upon between
such Borrower and such Bank.
"NEGOTIATED RATE LOAN REQUEST": each request by a
Borrower for a Bank to make Negotiated Rate Loans, which shall
be delivered to such Bank in writing, by facsimile
transmission, or by telephone, immediately confirmed in
writing, and which shall specify the amount to be borrowed and
the proposed Borrowing Date.
"NET EARNINGS AVAILABLE FOR FIXED CHARGES": for any
particular period for the Capital Corporation and its
consolidated Subsidiaries, consolidated net earnings of the
Capital Corporation and such Subsidiaries for such period
without deduction of Fixed Charges and without deduction of
federal, state or other income taxes, PROVIDED that such net
earnings for a fiscal quarter of the Capital Corporation and
its consolidated Subsidiaries (including the last quarter of a
fiscal year of the Capital Corporation and its consolidated
Subsidiaries) shall be determined by reference to the publicly
available statement of income of the Capital Corporation and
its consolidated Subsidiaries for or covering such fiscal
quarter and after such adjustments, if any, as may be required
so that such net earnings are determined in accordance with
GAAP, except that earned investment tax credits may be
included as revenue in the consolidated income statement of
the Capital Corporation and its consolidated Subsidiaries,
rather than as an offset against the provision for income
taxes.
"NEW BANK": as defined in subsection 2.21(b).
"NEW BANK SUPPLEMENT": as defined in subsection
2.21(b).
"OBJECTING BANKS": as defined in subsection 2.16(a).
"OFFERED INCREASE AMOUNT": as defined in subsection
2.21(a).
"PARTICIPANTS": as defined in subsection 10.5(b).
"PERSON": an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other
entity of whatever nature, PROVIDED that for purposes of
Section 8(h), Person shall
Page 13
also include two or more entities acting as a syndicate or any
other group for the purpose of acquiring, holding or disposing
of securities of the Company.
"PLAN": any pension plan which is covered by Title IV
of ERISA and in respect of which either Borrower or a Commonly
Controlled Entity is an "employer" as defined in Section 3(5)
of ERISA.
"PURCHASING BANKS": as defined in subsection 10.5(d).
"RE-ALLOCATION DATE": as defined in subsection
2.21(e).
"REDUCTION PERCENTAGE": 18%.
"REFERENCE BANKS": Chase, Bank of America National
Trust and Savings Association and Deutsche Bank AG New York
Branch.
"REGISTER": as defined in subsection 10.5(e).
"REPORT PERIOD": as defined in subsection 2.18.
"REPORTABLE EVENT": any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder.
"REQUIRED BANKS": at a particular time, Banks having
Commitment Percentages aggregating at least 66-2/3%; PROVIDED
that (a) at any time after the termination of all the
Commitments, "Required Banks" means Banks holding Loans
aggregating at least 66-2/3% in principal amount of all
outstanding Loans, (b) as used in subsection 2.16, "Required
Banks" means with respect to any Extension Request, at a
particular time after the Termination Date has been extended
pursuant to such subsection, Banks (i) which are not Objecting
Banks with respect to any previous Extension Request and (ii)
which have Commitment Percentages aggregating at least 66-2/3%
of the aggregate Commitment Percentages of such non-Objecting
Banks and (c) as used in any provision other than subsection
2.16 at any time after the Commitment Expiration Date with
respect to any Objecting Bank (but prior to the termination of
all the Commitments), "REQUIRED BANKS" means Banks whose
Exposure aggregates at least 66-2/3% of the aggregate Exposure
of all the Banks.
"REQUIREMENT OF LAW": as to any Person, the
Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person, and any
law, treaty, rule or regulation, or determination of an
arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is
subject.
"RESERVE PERCENTAGE": for any day during the Interest
Period for a C/D Rate Loan, that percentage (expressed as a
decimal) which is in effect on the first day of such Interest
Page 14
Period, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor), for determining the maximum
reserve requirement for a member bank of the Federal Reserve
System in New York City with deposits exceeding one billion
Dollars in respect of new non-personal time deposits in
Dollars in New York City having a maturity comparable to the
Interest Period for the relevant C/D Rate Loans and in an
amount of $100,000 or more.
"RESERVES": as defined in subsection 2.13(c).
"RESPONSIBLE OFFICER": of a Borrower, the Chairman,
the President, any Executive, Senior or other Vice President,
the Treasurer and any Assistant Treasurer of such Borrower.
"RESTRICTED MARGIN STOCK": any Margin Stock, the
sale, pledge or other disposition of which by the Company or
any of its Subsidiaries is in any way restricted by an
arrangement with any Bank or any affiliate thereof to the
extent that the value thereof (determined in accordance with
Regulation U of the Board of Governors of the Federal Reserve
System) does not exceed 25% of the value (determined in
accordance with such Regulation U) of all the assets subject
to such restriction.
"RESTRICTED SUBSIDIARY": any Subsidiary of the
Company incorporated in the United States of America or Canada
(a) which is engaged in, or whose principal assets consist of
property used by the Company or any Restricted Subsidiary in,
the manufacture of products within the United States of
America or Canada or in the sale of products principally to
customers located in the United States of America or Canada
except any corporation which is a retail dealer in which the
Company has, directly or indirectly, an investment, or (b)
which the Company shall designate as a Restricted Subsidiary
in an officers' certificate signed by two Responsible Officers
of the Company and delivered to the Administrative Agent.
"SALE AND LEASE-BACK TRANSACTION": as defined in
subsection 6.3.
"SIGNIFICANT SUBSIDIARY": of a Borrower, any
Subsidiary of such Borrower the assets, revenues or net worth
of which is, at the time of determination, equal to or greater
than ten percent of the assets, revenues or net worth,
respectively, of such Borrower at such time.
"SUBSIDIARY": of a Person, a corporation or other
entity of which securities or other ownership interests having
ordinary voting power (other than securities or other
ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board
of directors or other Persons performing similar functions are
at the time directly or indirectly owned by such Person or one
or more Subsidiaries of such Person, or by such Person and one
or more Subsidiaries of such Person.
"SYNDICATION AGENT": as defined in the preamble
hereto.
Page 15
"TERMINATION DATE": the date which is 364 days after
the date of this Agreement or such later date as shall be
determined pursuant to the provisions of subsection 2.16 with
respect to non-Objecting Banks.
"TRANCHE A BANK": each Bank listed in Part A of
Schedule II; collectively, the "TRANCHE A BANKS".
"TRANCHE B BANK": each Bank listed in Part B of
Schedule II; collectively, the "TRANCHE B BANKS".
"TRANSFEREES": as defined in subsection 10.5(g).
"TRANSFER EFFECTIVE DATE": as defined in each
Commitment Transfer Supplement and each Loan Assignment.
"TYPE": as to any Committed Rate Loan, its nature as
an ABR Loan, Eurodollar Loan or C/D Rate Loan.
"UTILIZED PERCENTAGE": as to any Bank at any time,
the ratio (expressed as a percentage) of (a) the Committed
Global Exposure of such Bank to (b) the amount of such Bank's
Commitment.
"WORKING DAY": any Business Day on which dealings in
foreign currencies and exchange between banks may be carried
on in London, England and New York, New York.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) All terms
defined in this Agreement shall have the defined meanings when
used in any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any certificate or other
document made or delivered pursuant hereto, accounting terms
relating to either Borrower and its Subsidiaries not defined
in subsection 1.1, and accounting terms partly defined in
subsection 1.1 to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder"
and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, subsection, Schedule
and Exhibit references are to this Agreement unless otherwise
specified.
(d) Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of the relevant
Borrower.
Page 16
SECTION 2. THE COMMITTED RATE LOANS; THE BID LOANS;
THE NEGOTIATED RATE LOANS; AMOUNT AND
TERMS
2.1 THE COMMITTED RATE LOANS. (a) During the
Commitment Period, subject to the terms and conditions hereof,
each Bank severally agrees to make loans (individually, a
"COMMITTED RATE LOAN") to either Borrower from time to time in
an aggregate principal amount for both Borrowers at any one
time outstanding not to exceed such Bank's Commitment;
PROVIDED, HOWEVER, that (i) the aggregate amount of the
Committed Global Exposure of any Bank, after giving effect to
any concurrent payment and/or borrowing under this Agreement
or the Linked Agreement, shall not at any time exceed the
amount of its Commitment and (ii) the aggregate outstanding
principal amount of Loans PLUS the aggregate Equivalent Amount
of all Linked Loans shall not at any time exceed the aggregate
amount of the Commitments. During the Commitment Period,
either Borrower may use the Commitments by borrowing, repaying
and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Committed Rate Loans may be either (i)
Eurodollar Loans, (ii) ABR Loans, (iii) C/D Rate Loans or (iv)
a combination thereof as determined by the relevant Borrower.
(c) Either Borrower may borrow Committed Rate Loans
on any Working Day, if the borrowing is of Eurodollar Loans,
or on any Business Day, if the borrowing is of C/D Rate Loans
or ABR Loans; PROVIDED, HOWEVER, that a Responsible Officer of
such Borrower shall give the Administrative Agent irrevocable
notice thereof (which notice must be received by the
Administrative Agent (i) prior to 12:00 Noon, New York City
time, three Working Days prior to the requested Borrowing
Date, in the case of Eurodollar Loans, (ii) prior to 12:00
Noon, New York City time, two Business Days prior to the
requested Borrowing Date in the case of C/D Rate Loans, (iii)
except as provided in clause (iv) hereof below, prior to 12:00
Noon, New York City time, one Business Day prior to the
requested Borrowing Date, in the case of ABR Loans and (iv)
prior to 11:00 A.M., New York City time, on the requested
Borrowing Date in the case of ABR Loans up to an aggregate
principal amount for both Borrowers not to exceed 25% of the
Commitments on such Borrowing Date). Each such notice shall be
given in writing or by facsimile transmission substantially in
the form of Exhibit A (with appropriate insertions) or shall
be given by telephone (specifying the information set forth in
Exhibit A) promptly confirmed by notice given in writing or by
facsimile transmission substantially in the form of Exhibit A
(with appropriate insertions). On the day of receipt of any
such notice from either Borrower, the Administrative Agent
shall promptly notify each Bank thereof. Subject to paragraph
(e) below, each Bank will make the amount of its share of each
borrowing available to the Administrative Agent for the
account of such Borrower at the office of the Administrative
Agent set forth in subsection 10.2 at 11:00 A.M. (or 2:00
P.M., in the case of ABR Loans requested pursuant to clause
(iv) above), New York City time, on the Borrowing Date
requested by such Borrower in funds immediately available to
the Administrative Agent as the Administrative Agent may
direct. The proceeds of all such Committed Rate Loans will be
made available promptly to such Borrower by the Administrative
Agent at the office of the Administrative Agent specified in
subsection 10.2 by crediting the account of such Borrower on
Page 17
the books of such office of the Administrative Agent with the
aggregate of the amount made available to the Administrative
Agent by the Banks and in like funds as received by the
Administrative Agent.
(d) All Committed Rate Loans made to each Borrower
shall be repaid in full by such Borrower on or before the
second anniversary of the Termination Date; PROVIDED, that
Committed Rate Loans made by Objecting Banks shall be repaid
as provided in subsection 2.16(b).
2.2 THE BID LOANS; THE NEGOTIATED RATE LOANS. (a)
Either Borrower may borrow Bid Loans or Negotiated Rate Loans
from time to time on any Business Day (in the case of Bid
Loans made pursuant to an Absolute Rate Bid Loan Request), any
Working Day (in the case of Bid Loans made pursuant to an
Index Rate Bid Loan Request) or, in the case of Negotiated
Rate Loans, on such days as shall be mutually agreed upon
between the relevant Borrower and the applicable Bank, in each
case during the Commitment Period and in the manner set forth
in this subsection 2.2 and in amounts such that the aggregate
principal amount of Loans at any time outstanding shall not
exceed the aggregate amount of the Commitments at such time.
Notwithstanding any other provision of this Agreement, the
aggregate principal amount of the outstanding Bid Loans and/or
Negotiated Rate Loans made by any Bank may at any time (but
shall not be required to) exceed the Commitment of such Bank
so long as the aggregate outstanding principal amount of all
Loans PLUS the aggregate Equivalent Amount of all Linked Loans
does not at any time exceed the aggregate amount of the
Commitments.
(b)(i) Either Borrower shall request Bid Loans or
Negotiated Rate Loans by delivering (A) in the case of an
Index Rate Bid Loan, a Bid Loan Request to the Auction Agent,
▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, not
later than 12:00 Noon (New York City time) four Working Days
prior to the proposed Borrowing Date, (B) in the case of an
Absolute Rate Bid Loan, a Bid Loan Request to the Auction
Agent at the address set forth in clause (A) of this
subsection 2.2(b)(i) not later than 10:00 A.M. (New York City
time) one Business Day prior to the proposed Borrowing Date or
(C) in the case of a Negotiated Rate Loan, a Negotiated Rate
Loan Request to any Bank at such time as the applicable
Borrower and the applicable Bank shall agree. Each Bid Loan
Request may solicit bids for Bid Loans in an aggregate
principal amount of $25,000,000 or an integral multiple of
$5,000,000 in excess thereof and for not more than three
alternative Interest Periods for such Bid Loans. The Auction
Agent shall promptly notify each Bid Loan Bank and the
Administrative Agent by facsimile transmission or by
telephone, immediately confirmed by facsimile transmission, of
the contents of each Bid Loan Request received by it.
(ii) In the case of an Index Rate Bid Loan Request,
upon receipt of notice from the Auction Agent of the contents
of such Bid Loan Request, any Bid Loan Bank that elects, in
its sole discretion, to do so, shall irrevocably offer to make
one or more Bid Loans at the Applicable Index Rate plus or
minus a margin for each such Bid Loan determined by such Bid
Loan Bank, in its sole discretion. Any such irrevocable offer
shall be made by delivering a Bid Loan Offer to the Auction
Agent at the address set forth in clause (i)(A) above before
10:30
Page 18
A.M. (New York City time) three Working Days before the
proposed Borrowing Date, setting forth the maximum amount of
Bid Loans for each Interest Period, and the aggregate maximum
amount for all Interest Periods, which such Bank would be
willing to make and the margin above or below the Applicable
Index Rate at which such Bid Loan Bank is willing to make each
such Bid Loan. The Auction Agent shall advise the relevant
Borrower before 11:00 A.M. (New York City time) three Working
Days before the proposed Borrowing Date of the contents of
each such Bid Loan Offer received by it. If the Auction Agent
in its capacity as a Bid Loan Bank shall, in its sole
discretion, elect to make any such offer, it shall advise such
Borrower of the contents of its Bid Loan Offer before 10:15
A.M. (New York City time) three Working Days before the
proposed Borrowing Date.
(iii) In the case of an Absolute Rate Bid Loan
Request, upon receipt of notice from the Auction Agent of the
contents of such Bid Loan Request, any Bid Loan Bank that
elects, in its sole discretion, to do so, shall irrevocably
offer to make one or more Bid Loans at a rate or rates of
interest for each such Bid Loan determined by such Bid Loan
Bank in its sole discretion. Any such irrevocable offer shall
be made by delivering a Bid Loan Offer to the Auction Agent at
the address set forth in clause (i)(A) of this subsection
2.2(b) before 9:30 A.M. (New York City time) on the proposed
Borrowing Date, setting forth the maximum amount of Bid Loans
for each Interest Period, and the aggregate maximum amount for
all Interest Periods, which such Bid Loan Bank would be
willing to make and the rate or rates of interest at which
such Bid Loan Bank is willing to make each such Bid Loan. The
Auction Agent shall advise the relevant Borrower before 10:00
A.M. (New York City time) on the proposed Borrowing Date of
the contents of each such Bid Loan Offer received by it. If
the Auction Agent in its capacity as a Bid Loan Bank shall, in
its sole discretion, elect to make any such offer, it shall
advise such Borrower of the contents of its Bid Loan Offer
before 9:15 A.M. (New York City time) on the proposed
Borrowing Date.
(iv) The relevant Borrower shall before 11:30 A.M.
(New York City time) three Working Days before the proposed
Borrowing Date (in the case of Bid Loans requested by an Index
Rate Bid Loan Request) and before 10:30 A.M. (New York City
time) on the proposed Borrowing Date (in the case of Bid Loans
requested by an Absolute Rate Bid Loan Request) either, in its
absolute discretion:
(A) cancel such Bid Loan Request by giving the
Auction Agent telephone notice to that effect, or
(B) accept one or more of the offers made by any
Bid Loan Bank or Bid Loan Banks pursuant to clause (ii) or
clause (iii) of this subsection 2.2(b), as the case may be, by
giving telephone notice to the Auction Agent (immediately
confirmed by delivery to the Auction Agent at the address set
forth in clause (i)(A) of this subsection 2.2(b) of a Bid Loan
Confirmation) of the amount of Bid Loans for each relevant
Interest Period to be made by each Bid Loan Bank (which amount
shall be equal to or less than the maximum amount for such
Interest Period specified in the Bid Loan Offer of such Bid
Loan Bank, and for all Interest Periods included in such Bid
Loan Offer shall be equal to or less than the aggregate
maximum amount specified in such Bid Loan Offer for all such
Page 19
Interest Periods) and reject any remaining offers made by Bid
Loan Banks pursuant to clause (ii) or clause (iii) above, as
the case may be; PROVIDED, HOWEVER, that (x) such Borrower may
not accept offers for Bid Loans for any Interest Period in an
aggregate principal amount in excess of the maximum principal
amount requested for such Interest Period in the related Bid
Loan Request, (y) if such Borrower accepts any such offers, it
must accept offers strictly based upon pricing for such
relevant Interest Period and upon no other criteria whatsoever
and (z) if two or more Bid Loan Banks submit offers for any
Interest Period at identical pricing and such Borrower accepts
any of such offers but does not wish to borrow the total
amount offered by such Bid Loan Banks with such identical
pricing, such Borrower shall accept offers from all of such
Bid Loan Banks in amounts allocated among them PRO RATA
according to the amounts offered by such Bid Loan Banks (or as
nearly PRO RATA as shall be practicable, after giving effect
to the requirement that Bid Loans made by a Bid Loan Bank on a
Borrowing Date for each relevant Interest Period shall be in a
principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof, it being agreed that to the
extent that it is not possible to make allocations in
accordance with the provisions of this clause (z) such
allocations shall be made in accordance with the instructions
of such Borrower, it being understood that in no event shall
any Bank be obligated to make any Bid Loan in a principal
amount less than $5,000,000).
(v) If such Borrower notifies the Auction Agent
that a Bid Loan Request is cancelled pursuant to clause
(iv)(A) of this subsection 2.2(b), the Auction Agent shall
give prompt telephone notice thereof to the Bid Loan Banks and
the Administrative Agent, and the Bid Loans requested thereby
shall not be made.
(vi) (A) If such Borrower accepts pursuant to
clause (iv)(B) of this subsection 2.2(b) one or more of the
offers made by any Bid Loan Bank or Bid Loan Banks pursuant to
a Bid Loan Request, the Auction Agent shall promptly notify by
telephone the Administrative Agent and each Bid Loan Bank
which has made such an offer of the aggregate amount of such
Bid Loans to be made on such Borrowing Date for each Interest
Period and of the acceptance or rejection of any offers to
make such Bid Loans made by such Bid Loan Bank. Each Bid Loan
Bank which is to make a Bid Loan pursuant to a Bid Loan
Request shall, before 12:00 Noon (New York City time) on the
Borrowing Date specified in the Bid Loan Request applicable
thereto, make available to the Administrative Agent at its
office set forth in subsection 10.2 the amount of Bid Loans to
be made by such Bid Loan Bank, in immediately available funds.
The Administrative Agent will make such funds available to
such Borrower as soon as practicable on such date at the
Administrative Agent's aforesaid address.
(B) If such Borrower and any Bank agree to
the terms of a Negotiated Rate Loan to be made on a Borrowing
Date pursuant to a Negotiated Rate Loan Request, such Borrower
and such Bank shall promptly notify by telephone the
Administrative Agent of the aggregate amount of Negotiated
Rate Loans to be made on such Borrowing Date and the
respective Interest Periods therefor. Each Bank which is to
make a Negotiated Rate Loan shall, at such time, on such
Borrowing Date and at such location as shall be mutually
agreed upon between such Borrower and such Bank, make
available to
Page 20
such Borrower the amount of Negotiated Rate Loans to be made
by such Bank, in immediately available funds.
(C) As soon as practicable after each
Borrowing Date for Bid Loans and Negotiated Rate Loans, the
Administrative Agent shall notify each Bank of the aggregate
amount of Bid Loans or Negotiated Rate Loans advanced pursuant
to a Bid Loan Request or Negotiated Rate Loan Request on such
Borrowing Date and the respective Interest Periods therefor.
(c) Within the limits and on the conditions set
forth in this subsection 2.2, each Borrower may from time to
time borrow under this subsection 2.2, repay pursuant to
paragraph (d) below, and reborrow under this subsection 2.2.
(d) Each Borrower shall repay to the Administrative
Agent for the account of each Bid Loan Bank (or the Loan
Assignee in respect thereof, as the case may be) which has
made a Bid Loan to such Borrower on the last day of the
Interest Period for each Bid Loan (such Interest Period being
that specified by such Borrower for repayment of such Bid Loan
in the related Bid Loan Request) the then unpaid principal
amount of such Bid Loan. Each Borrower shall repay to each
Bank which has made a Negotiated Rate Loan to such Borrower
(or the Loan Assignee in respect thereof, as the case may be)
the principal thereof as agreed by such Borrower and such
Bank.
(e) Each Borrower shall pay interest on the unpaid
principal amount of each Bid Loan and each Negotiated Rate
Loan borrowed by such Borrower from the applicable Borrowing
Date to the stated maturity date thereof, in the case of a Bid
Loan, at the rate of interest determined pursuant to paragraph
(b) of this subsection 2.2, and, in the case of a Negotiated
Rate Loan, as agreed by such Borrower and the relevant Bank
(calculated on the basis of a 360 day year for actual days
elapsed), payable on the interest payment date or dates (i)
specified by such Borrower for such Bid Loan in the related
Bid Loan Request and (ii) mutually agreed upon between such
Borrower and such Bank in the case of Negotiated Rate Loans,
PROVIDED that as to any Bid Loan in respect of which the
stated maturity date is more than three months after such
Borrowing Date, interest shall also be paid on the day which
occurs three months after such Borrowing Date. If all or a
portion of the principal amount of any Bid Loan shall not be
paid when due (whether at the stated maturity, by acceleration
or otherwise), such overdue principal amount shall, without
limiting any rights of any Bank under this Agreement, bear
interest from the date on which such payment was due at a rate
per annum which is 1% above the rate which would otherwise be
applicable to such Bid Loan until the scheduled maturity date
with respect thereto and for each day thereafter at a rate per
annum which is 1% above the ABR until paid in full (as well
after as before judgment). If all or any portion of the
principal amount of any Negotiated Rate Loan shall not be paid
when due (whether at the stated maturity, by acceleration or
otherwise), such overdue principal amount shall, without
limiting any rights of any Bank under this Agreement, bear
interest from the date on which such payment was due at a rate
per annum as shall be mutually agreed upon between the
relevant Borrower and the relevant Bank.
Page 21
(f) After the first Bid Loan Request has been given
hereunder, no Bid Loan Request or Negotiated Rate Loan Request
shall be given until at least one Business Day, in the case of
an Absolute Rate Bid Loan Request, or one Working Day, in the
case of an Index Rate Bid Loan Request, after the earliest to
occur of (i) the Borrowing Dates with respect to all prior Bid
Loan Requests made pursuant to subsection 2.2(b)(i), (ii) the
date on which all Bid Loan Banks have failed to submit Bid
Loan Offers with respect to any Bid Loan Requests within the
time specified in subsection 2.2(b)(ii) or (iii), as the case
may be, and (iii) the date on which the relevant Borrower has
cancelled all prior Bid Loan Requests pursuant to subsection
2.2(b)(iv).
2.3 LOAN ACCOUNTS. Each Bank, with respect to its
Committed Rate Loans, Bid Loans and Negotiated Rate Loans, and
the Administrative Agent, with respect to all Committed Rate
Loans and Bid Loans, shall open and maintain in the name of
each Borrower loan accounts (as to each Bank, its "LOAN
ACCOUNT" applicable to such Borrower) on its books and records
setting forth the amounts of principal, interest and other
sums paid and payable by such Borrower from time to time
hereunder in respect of such Loans, and the obligation of such
Borrower to pay or repay, as the case may be, such amounts to
such Bank shall be evidenced by such Bank's Loan Account. In
case of any dispute, action or proceeding relating to any
Committed Rate Loan, Bid Loan or Negotiated Rate Loan, the
entries in such records shall constitute PRIMA FACIE evidence
of the accuracy of the information set forth therein. In case
of discrepancy between the entries in the Administrative
Agent's books and records and any Bank's, the entries in the
Administrative Agent's books and records shall constitute
PRIMA FACIE evidence of the accuracy of the information set
forth therein.
2.4 FEES. (a) The Company and the Capital
Corporation jointly and severally agree to pay to the
Administrative Agent for the account of each Bank a facility
fee (i) from and including the Closing Date to but excluding
the date on which the Commitment of such Bank terminates
hereunder, computed at a per annum rate equal to the Facility
Fee Rate on the average daily amount of the Commitment of such
Bank in effect during the period for which payment is made and
(ii) thereafter until all Committed Rate Loans of such Bank
are paid in full, computed at a per annum rate equal to the
Facility Fee Rate on the average daily amount of such
Committed Rate Loans outstanding, in each case, payable
quarterly in arrears on the first Business Day of each
January, April, July and October of each year, on the
Termination Date or such earlier date on which the Commitments
shall terminate as provided herein, and on the second
anniversary of the Termination Date or such earlier date on
which the Loans are repaid in full, commencing in April, 1999;
PROVIDED that, for each quarter, any facility fee payable
hereunder to a Tranche B Bank shall be reduced (but not below
zero) by an amount equal to the Equivalent Amount of the
Reduction Percentage of any stamping fees previously paid to
such Tranche B Bank's Affiliated Linked Lender pursuant to
subsection 6.1(b) of the Linked Agreement and not theretofore
applied to reduce such facility fee.
(b) The Company and the Capital Corporation jointly
and severally agree to pay to the Administrative Agent for its
own account all fees set forth in the letter agreement dated
January 27, 1999 from Chase Securities Inc. and Chase to the
Borrowers.
Page 22
(c) The Company and the Capital Corporation jointly
and severally agree to pay to the Auction Agent for its own
account all fees payable to the Auction Agent as the Borrowers
and the Auction Agent shall mutually agree from time to time.
2.5 TERMINATION OR REDUCTION OF COMMITMENTS;
CANCELLATION OF CAPITAL CORPORATION AS BORROWER. (a) The
Borrowers, acting jointly, shall have the right, upon not less
than five Business Days' notice to the Administrative Agent,
to terminate the Commitments or, from time to time, reduce the
amount of the Commitments, PROVIDED that (i) any such
reduction shall be accompanied by prepayment of Committed Rate
Loans hereunder and/or Committed Linked Loans under the Linked
Agreement, together with accrued interest on the amount so
prepaid to the date of such prepayment, to the extent, if any,
that the aggregate outstanding principal amount of all Loans
plus the aggregate Equivalent Amount of all Linked Loans
exceeds the amount of the Commitments as then reduced, (ii)
any such reduction shall be accompanied by a reduction of the
"Commitments" of the Linked Lenders under the Linked Agreement
to the extent required to cause such "Commitments" not to
exceed the Commitments of the Tranche B Banks hereunder and
(iii) any such termination of the Commitments shall be
accompanied by termination of the "Commitments" of the Linked
Lenders under the Linked Agreement and prepayment in full of
the Loans then outstanding hereunder in accordance with
subsection 2.6, and any termination of a Bank's Commitment
pursuant to subsection 2.13, 2.16 or 2.17 shall, with respect
to each affected Loan, on the last day of the applicable
Interest Period therefor or, if earlier, on such earlier date
as shall be notified by the Borrowers, be accompanied by
prepayment in full of such Loan, together with, in each case,
accrued interest thereon to the date of such prepayment, the
payment of any unpaid facility fee then accrued hereunder, and
the payment of any amounts then payable pursuant to
subsections 2.13, 2.14, 2.15 and 2.17. Upon receipt of such
notice from the Borrowers the Administrative Agent shall
promptly notify each Bank thereof. Any reduction of the
Commitments pursuant to this subsection 2.5 shall be in an
amount not less than $25,000,000, and shall be an amount which
is a whole multiple of $5,000,000, and shall reduce
permanently the amount of the Commitments then in effect.
(b) Sections 4.3 and 5.4 and subsection 15.15(b) of
the Linked Agreement permit, under the circumstances therein
contemplated, the termination of the "Commitment" under the
Linked Agreement of a Tranche B Bank's Affiliated Linked
Lender. The Borrowers, acting jointly, may, upon giving at
least three Business Days' prior notice to the Administrative
Agent, cancel the Commitment hereunder of a Tranche B Bank
upon such termination of the "Commitment" under the Linked
Agreement of such Tranche B Bank's Affiliated Linked Lender.
Any such cancellation shall be accompanied by prepayment of
the Committed Rate Loans made hereunder by the relevant
Tranche B Bank in accordance with subsection 2.6, together
with accrued interest on the amount so prepaid to the date of
such prepayment.
(c) The Company may cancel the ability of the
Capital Corporation to borrow hereunder upon not less than
five Business Days' notice to the Administrative Agent. Upon
receipt of such notice from the Company the Administrative
Agent shall promptly notify each Bank thereof. On the first
day following receipt of such notice, on which all Loans to
the Capital Corporation and all interest thereon shall have
been paid in full, and notwithstanding any other provision of
this Agreement, (i) the Capital Corporation shall cease to be
a party hereto or to
Page 23
have any right or obligation hereunder, (ii) rights and
obligations expressed herein to be, in effect, of either the
Company or the Capital Corporation or of both of them, but not
any such rights and obligations expressed herein to be of the
Capital Corporation only, shall be deemed to be rights and
obligations of the Company only and (iii) the Banks shall
cease to have any right or obligation hereunder which depends
or is contingent upon any action, condition or performance, or
the absence thereof, whether past or present, of the Capital
Corporation other than any action, condition or performance,
or the absence thereof, of the Capital Corporation in its
capacity as a Subsidiary, Significant Subsidiary or Restricted
Subsidiary hereunder; PROVIDED, HOWEVER, that the obligation
of the Capital Corporation to make any payment pursuant to
subsection 2.13, 2.14, 2.15 or 2.17 which arises prior to the
cancellation of the ability of the Capital Corporation to
borrow hereunder shall survive the cancellation of the ability
of the Capital Corporation to borrow hereunder.
2.6 OPTIONAL AND MANDATORY PREPAYMENTS. (a) Either
Borrower may at any time and from time to time prepay its
Committed Rate Loans in whole or in part, without premium or
penalty, but subject to the provisions of subsection 2.14,
upon at least three Working Days' irrevocable notice, in the
case of Eurodollar Loans, two Business Days' irrevocable
notice in the case of C/D Rate Loans, or one Business Day's
irrevocable notice in the case of ABR Loans, in each case to
the Administrative Agent, specifying the date and amount of
prepayment and whether the prepayment is of its Eurodollar
Loans, ABR Loans, C/D Rate Loans, or a combination thereof,
and if of a combination thereof the amount of prepayment
allocable to each. Upon receipt of such notice the
Administrative Agent shall promptly notify each Bank thereof.
If such notice is given, the Borrower delivering such notice
shall make such prepayment, and the payment of the amount
specified in such notice shall be due and payable, on the date
specified therein, together with accrued interest to such date
on the amount prepaid and any amounts payable pursuant to
subsections 2.14 and 2.15. Except as provided in the
immediately following sentence, partial prepayments shall be
in an aggregate principal amount of $5,000,000, or a whole
multiple thereof; PROVIDED, HOWEVER, that after giving effect
thereto, the aggregate principal amount of all Committed Rate
Loans made on the same Borrowing Date shall not be less than
$25,000,000. Anything contained in this subsection 2.6 to the
contrary notwithstanding, partial prepayments of a Cancelled
Bank's Loans in connection with the termination under
subsection 2.13(a), (b) or (c), 2.16(c) or 2.17(b) of such
Cancelled Bank's Commitment (in whole or in part) shall be in
an amount equal to the principal amount of the Loans of such
Bank being prepaid, notwithstanding the amount thereof, and
shall be permitted notwithstanding the provisions of the
foregoing proviso. Either Borrower may prepay Negotiated Rate
Loans or Bid Loans on such terms as shall be mutually agreed
upon between the relevant Borrower and the relevant Bank.
(b) On the last Business Day of each March, June,
September and December, the Canadian Administrative Agent will
determine the Equivalent Amount of outstanding Linked Loans
and notify the Borrowers and the Administrative Agent of such
amount. If on the last day of any March, June, September and
December the aggregate (i) amount of outstanding Loans of the
Tranche B Banks and (ii) Equivalent Amount of outstanding
"Loans" under the Linked Agreement, exceeds the Commitments of
the Tranche B Banks (the "EXCESS AMOUNT"), the Borrowers shall
as soon as possible but, in any event, within 30 days of the
giving of such notice
Page 24
or such longer period of time as may be required in order that
Eurodollar Loans or C/D Rate Loans be paid on the last day of
an Interest Period, prepay Committed Rate Loans of the Tranche
B Banks hereunder to the extent of the Excess Amount.
Notwithstanding the preceding sentence, the Borrowers shall be
relieved of their obligation to make payment hereunder to the
extent that ▇▇▇▇ Deere Limited or ▇▇▇▇ Deere Finance Limited
have made a payment or prepayment of Linked Loans in
accordance with the Linked Agreement which has the effect of
reducing the Excess Amount.
2.7 MINIMUM AMOUNT OF CERTAIN LOANS. All
borrowings, conversions, continuations, payments and, except
as set forth in the penultimate sentence of subsection 2.6(a),
prepayments in respect of Committed Rate Loans shall be in
such amounts and be made pursuant to such elections that,
after giving effect thereto, (a) the aggregate principal
amount of Committed Rate Loans made on any Borrowing Date
shall not be less than $25,000,000 or a whole multiple of
$5,000,000 in excess thereof and (b) the aggregate principal
amount of Committed Rate Loans of any Type with the same
Interest Period shall not be less than $10,000,000 or a whole
multiple of $1,000,000 in excess thereof.
2.8 COMMITTED RATE LOAN INTEREST RATE AND PAYMENT
DATES. (a) The Eurodollar Loans shall bear interest for the
period from the date thereof until the stated maturity thereof
on the unpaid principal amount thereof at a rate per annum
equal to the Eurodollar Rate determined for the Interest
Period therefor plus the Applicable Margin.
(b) The ABR Loans shall bear interest for each day
during the period from the date thereof until the payment in
full thereof on the unpaid principal amount thereof at a
fluctuating rate per annum equal to the ABR for such day plus
the Applicable Margin.
(c) The C/D Rate Loans shall bear interest for the
period from the date thereof until the stated maturity thereof
on the unpaid principal amount thereof at a rate per annum
equal to the C/D Rate determined for the Interest Period
therefor plus the Applicable Margin.
(d) If all or a portion of the principal amount of
any of the Committed Rate Loans shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise)
such overdue principal amount of such Committed Rate Loan (i)
shall bear interest at a rate per annum which is 1% above the
rate which would otherwise be applicable pursuant to
subsection 2.8(a), (b) or (c), as the case may be, from the
date when such principal amount is due until the date on which
such amount is paid in full and (ii) shall, if such Committed
Rate Loan is a Eurodollar Loan or C/D Rate Loan, be converted
to an ABR Loan at the end of the Interest Period applicable
thereto.
(e) Interest shall be payable in arrears on each
Interest Payment Date.
2.9 CONVERSION AND CONTINUATION OPTIONS. (a) The
relevant Borrower may elect from time to time to convert
Committed Rate Loans of one Type into Committed Rate Loans of
another Type by giving to the Administrative Agent irrevocable
notice of such conversion by the earliest time that they would
have been required to give notice under
Page 25
subsection 2.1(c) if they had been borrowing Committed Rate
Loans of each such Type on the conversion date specified in
such notice, PROVIDED that any such conversion of Eurodollar
Loans or C/D Rate Loans may only be made on the last day of an
Interest Period with respect thereto. Any such notice of
conversion to Eurodollar Loans or C/D Rate Loans shall specify
the length of the initial Interest Period or Interest Periods
therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Bank thereof. If the last day
of the then current Interest Period with respect to C/D Rate
Loans that are to be converted to Eurodollar Loans is not a
Working Day, such conversion shall be made on the next
succeeding Working Day, and during the period from such last
day to such succeeding Working Day such Loans shall bear
interest as if they were ABR Loans. All or any part of
outstanding Eurodollar Loans, ABR Loans and C/D Rate Loans may
be converted as provided herein, PROVIDED that no Loan may be
converted into a Eurodollar Loan or a C/D Rate Loan after the
date that is one month or 30 days, respectively, prior to (i)
in the case of a Loan made by an Objecting Bank, the second
anniversary of such Objecting Bank's Commitment Expiration
Date, and (ii) in the case of all Loans, the second
anniversary of the Termination Date.
(b) Any Eurodollar Loans or C/D Rate Loans may be
continued as such upon the expiration of the then current
Interest Period with respect thereto by the relevant Borrower
giving notice to the Administrative Agent, such notice to be
given by the time it would have been required to give notice
under subsection 2.1(c) if it had been borrowing Eurodollar
Loans or C/D Rate Loans, as the case may be, on the last day
of the then expiring Interest Period therefor, of the length
of the next Interest Period to be applicable to such Loans,
PROVIDED that no Eurodollar Loan or C/D Rate Loan may be
continued as such after the date that is one month or 30 days,
respectively, prior to (i) in the case of a Loan made by an
Objecting Bank, the second anniversary of such Objecting
Bank's Commitment Expiration Date, and (ii) in the case of all
Loans, the second anniversary of the Termination Date. Upon
receipt of any such notice, the Administrative Agent shall
promptly notify each Bank thereof.
2.10 COMPUTATION OF INTEREST AND FEES. (a)
Facility fees and interest in respect of ABR Loans based upon
clause (a) of the definition of ABR shall be calculated on the
basis of a 365 (or 366 as the case may be) day year for the
actual days elapsed (including the first day and excluding the
last day). Interest in respect of Eurodollar Loans, C/D Rate
Loans, Bid Loans and ABR Loans based upon clause (b) of the
definition of ABR shall be calculated on the basis of a 360
day year for the actual days elapsed (including the first day
and excluding the last day). The Administrative Agent shall
promptly notify the Borrowers and the Banks of each
determination of a Eurodollar Rate and of a C/D Rate. Any
change in the interest rate on a Committed Rate Loan resulting
from a change in the ABR shall become effective as of the
opening of business on the day on which such change in the ABR
shall become effective. The Administrative Agent shall
promptly notify the Borrowers and the Banks of the effective
date and the amount of each such change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the Borrowers and
the Banks in the absence of manifest error. The Administrative
Agent shall, at the request of
Page 26
a Borrower, deliver to such Borrower a statement showing the
quotations given by the Reference Banks and the computations
used by the Administrative Agent in determining any interest
rate.
(c) If any Reference Bank's Commitment shall
terminate (otherwise than on termination of all the
Commitments) or, as the case may be, its Loans are assigned,
prepaid or repaid for any reason whatsoever, such Reference
Bank shall thereupon cease to be a Reference Bank, and the
Administrative Agent (after consultation with the Banks and
with the consent of the Borrowers) shall, by notice to the
Borrowers and the Banks, designate a sufficient number of
other Banks as Reference Banks so that there shall at all
times be at least three Reference Banks.
(d) Each Reference Bank shall use its best efforts
to furnish quotations of rates to the Administrative Agent as
contemplated hereby. If any of the Reference Banks shall be
unable or otherwise fails to supply such rates to the
Administrative Agent upon its request, the rate of interest
shall be determined on the basis of the quotations of the
remaining Reference Banks or Reference Bank.
2.11 INABILITY TO DETERMINE INTEREST RATE. (a) In
the event that the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the
Borrowers) that by reason of circumstances affecting the
interbank eurodollar market generally, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for
any requested Interest Period with respect to Committed Rate
Loans that a Borrower has requested be made as, continued as
or converted into Eurodollar Loans, the Administrative Agent
shall promptly give notice of such determination to such
Borrower and the Banks prior to the first day of the requested
Interest Period for such Eurodollar Loans. If such notice is
given, such Borrower may (i) in accordance with the provisions
of subsection 2.1 or 2.9, as the case may be (including any
requirements for notification), request that the affected
Loans be made as, continued as or converted into, as the case
may be, C/D Rate Loans or ABR Loans, or (ii) in the case of
Loans requested to be made on the first day of such Interest
Period, withdraw the notice given under subsections 2.1 or
2.9, as the case may be, by giving telephonic notice to the
Administrative Agent, no later than 10:00 A.M. (New York City
time) on the applicable Borrowing Date, confirmed in writing
no later than one Business Day after such telephonic notice is
given; PROVIDED that if the Administrative Agent does not
receive any notice permitted from the relevant Borrower
hereunder, such Borrower shall be deemed to have requested
that the affected Loans be made as, continued as or converted
into, as the case may be, ABR Loans. Until the notice given
pursuant to the first sentence of this paragraph has been
withdrawn by the Administrative Agent, no further Loans shall
be made as, continued as or converted into, as the case may
be, Eurodollar Loans.
(b) In the event that the Administrative Agent
shall have determined (which determination shall be conclusive
and binding upon the Borrowers) that by reason of
circumstances affecting the domestic certificate of deposit
market generally, adequate and reasonable means do not exist
for ascertaining the C/D Rate for any requested Interest
Period with respect to Committed Rate Loans that a Borrower
has requested be made as, continued as or converted into C/D
Rate Loans, the Administrative Agent shall promptly give
notice of such determination to such Borrower and the Banks on
or prior to the first day of the requested
Page 27
Interest Period for such C/D Rate Loans. If such notice is
given, such Borrower may (i) in accordance with the provisions
of subsection 2.1 or 2.9, as the case may be (including any
requirements for notification), request that the affected
Loans be made as, continued as or converted into, as the case
may be, ABR Loans, or (ii) in the case of Loans requested to
be made on the first day of such Interest Period, withdraw the
notice given under subsection 2.1 or 2.9, as the case may be,
by giving telephonic notice to the Administrative Agent, no
later than the later of 10:00 A.M. (New York City time) on the
applicable Borrowing Date and one hour after receipt by such
Borrower of the notice referred to in the preceding sentence,
confirmed in writing no later than one Business Day after such
telephonic notice is given; PROVIDED that if the
Administrative Agent does not receive any notice permitted
from the relevant Borrower hereunder, such Borrower shall be
deemed to have requested that the affected Loans be made as,
continued as or converted into, as the case may be, ABR Loans.
Until the notice given pursuant to the first sentence of this
paragraph has been withdrawn by the Administrative Agent, no
further Loans shall be made as, continued as or converted
into, as the case may be, C/D Rate Loans.
(c) In the event that the Auction Agent shall have
determined (which determination shall be conclusive and
binding upon the Borrowers) that by reason of circumstances
affecting the interbank eurodollar market, adequate and
reasonable means do not exist for ascertaining the Eurodollar
Rate for any Interest Period with respect to a proposed Bid
Loan to be made pursuant to an Index Rate Bid Loan Request,
the Auction Agent shall forthwith give notice of such
determination to the relevant Borrower and the Bid Loan Banks
at least two Business Days prior to the proposed Borrowing
Date, and such Bid Loans shall not be made on such Borrowing
Date. Until any such notice has been withdrawn by the Auction
Agent, no further Index Rate Bid Loan Requests shall be
submitted by either Borrower.
2.12 PRO RATA TREATMENT AND PAYMENTS. (a) All
payments (including prepayments), to be made by the Borrowers
on account of principal, interest and fees shall be made
without defense, set-off or counterclaim and shall be made, in
the case of fees and principal of, and interest on, Loans
(other than Negotiated Rate Loans) at the Administrative
Agent's office specified in subsection 10.2, in each case in
lawful money of the United States of America and in
immediately available funds not later than 11:00 A.M. (New
York City time) on the date due. The Administrative Agent
shall distribute such payments to the Banks entitled thereto
on the day of receipt in like funds as received, PROVIDED that
the Administrative Agent shall have received such payments not
later than 11:00 A.M. (New York City time). If the
Administrative Agent shall distribute such payments to the
Banks entitled thereto on a date after the date on which such
payments were received prior to 11:00 A.M. (New York City
time), the Administrative Agent shall pay to each such Bank on
demand an amount equal to the product of (i) the daily average
Federal funds rate during such period as quoted by the
Administrative Agent, TIMES (ii) the amount of such Bank's
share of such payment, TIMES (iii) a fraction the numerator of
which is the number of days that elapse from and including
such date of receipt of payment by the Administrative Agent to
but excluding the date on which such Bank's share of such
payment shall have become immediately available to such Bank
and the denominator of which is 360. All payments (including
prepayments) to be made by the Borrowers on account of
principal, interest and fees relating to Negotiated Rate Loans
shall be made to the Bank with respect thereto on such terms,
at such address and at such time as shall be mutually agreed
upon
Page 28
between the relevant Borrower and the relevant Bank in lawful
money of the United States of America on the date due.
(b) (i) Each borrowing by the Borrowers of
Committed Rate Loans and each payment of principal in respect
of Committed Rate Loans (subject to the provisions of
subsection 2.21(e)) shall be made in accordance with the
following requirements:
(A) All borrowings of Committed Rate Loans from
Tranche A Banks, and all principal payments in respect of such
Loans, shall be made PRO RATA according to the respective
Commitments of the Tranche A Banks.
(B) All borrowings of Committed Rate Loans from
Tranche B Banks, and all principal payments in respect of such
Loans, shall be made PRO RATA according to the respective
Commitments of the Tranche B Banks.
(C) If any borrowing is made in respect of
Committed Rate Loans on any day when, after giving effect to
any concurrent payment and/or borrowing under this Agreement
or the Linked Agreement, the respective Utilized Percentages
of the Tranche A Banks exceed the respective Utilized
Percentages of the Tranche B Banks, such borrowing in respect
of Committed Rate Loans shall be allocated FIRST to the
Tranche B Banks to the extent required to cause the respective
Utilized Percentages of all the Banks to be equal (to the
extent the amount of such borrowing is sufficient to yield
such result), and SECOND, any remaining amount of such
borrowing shall be allocated among all the Banks PRO RATA
according to the respective Commitment Percentages of the
Banks.
(D) Except as provided in subclause (G) below, if
any payment is made in respect of Committed Rate Loans on any
day when, after giving effect to any concurrent payment and/or
borrowing under this Agreement or the Linked Agreement, the
respective Utilized Percentages of the Tranche A Banks exceed
the respective Utilized Percentages of the Tranche B Banks,
such payment in respect of Committed Rate Loans shall be
allocated FIRST to the Tranche A Banks to the extent required
to cause the respective Utilized Percentages of all the Banks
to be equal (to the extent the amount of such payment is
sufficient to yield such result), and SECOND, such payment
shall be allocated among all the Banks PRO RATA according to
the respective Commitment Percentages of the Banks until
either (I) all of such payment has been so applied or (II) all
outstanding Committed Rate Loans owing to Tranche B Banks have
been paid in full, and after all outstanding Committed Rate
Loans owing to Tranche B Banks have been paid in full any
remaining amount of such payment shall be allocated to the
Tranche A Banks.
(E) If any borrowing is made in respect of
Committed Rate Loans on any day when, after giving effect to
any concurrent payment and/or borrowing under this Agreement
or the Linked Agreement, the respective Utilized Percentages
of the Tranche B Banks exceed the respective Utilized
Percentages of the Tranche A Banks, such borrowing in respect
of Committed Rate Loans shall be allocated FIRST to the
Tranche A Banks to the extent required to cause the respective
Utilized Percentages of all the Banks
Page 29
to be equal (to the extent the amount of such borrowing is
sufficient to yield such result), and SECOND, any remaining
amount of such borrowing shall be allocated among all the
Banks PRO RATA according to the respective Commitment
Percentages of the Banks.
(F) Except as provided in subclause (G) below, if
any payment is made in respect of Committed Rate Loans on any
day when, after giving effect to any concurrent payment and/or
borrowing under this Agreement or the Linked Agreement, the
respective Utilized Percentages of the Tranche B Banks exceed
the respective Utilized Percentages of the Tranche A Banks,
such payment in respect of Committed Rate Loans shall be
allocated FIRST to the Tranche B Banks to the extent required
to cause (I) the Committed Rate Loans owing to Tranche B Banks
to be repaid in full or (II) the respective Utilized
Percentages of all the Banks to be equal (in each case to the
extent the amount of such payment is sufficient to yield such
result), whichever shall first occur, and SECOND, such payment
shall be allocated among all the Banks PRO RATA according to
the respective Commitment Percentages of the Banks until
either (x) all of such payment has been so applied or (y) all
Committed Rate Loans owing to Tranche B Banks have been paid
in full, and after all Committed Rate Loans owing to Tranche B
Banks have been paid in full any remaining amount of such
payment shall be allocated to the Tranche A Banks.
(G) As provided in clause (b)(ii) below, if any
principal payment is made in respect of any Loans on any day
on which principal amounts are due and owing in respect of any
Loans, such principal payment shall be applied to the Banks
PRO RATA according to the respective amounts of principal due
and owing to the Banks in respect of Loans under this
Agreement. Payment of the Loans of the Tranche B Banks made in
accordance with subsection 2.6(b) shall be applied to the
Tranche B Banks PRO RATA according to the respective amounts
of Committed Rate Loans owing to the Tranche B Banks.
(ii) Except as provided in subsections 2.13, 2.16 and
2.17, each reduction of the Commitments shall be made PRO RATA
among the Banks according to their respective Commitment
Percentages. Each payment by the Borrowers under this
Agreement or of any Loan (other than Negotiated Rate Loans)
shall be applied, FIRST, to any fees then due and owing
pursuant to subsection 2.4, SECOND, to interest then due and
owing in respect of the Loans (other than Negotiated Rate
Loans) and THIRD, to principal then due and owing hereunder
(other than principal due and owing under Negotiated Rate
Loans) and under the Loans (other than Negotiated Rate Loans).
Each payment made by the Borrowers under this Agreement
relating to a Negotiated Rate Loan to the Bank with respect
thereto shall be applied, FIRST, to interest then due and
owing in respect of such Negotiated Rate Loan and SECOND, to
principal then due and owing hereunder with respect to such
Negotiated Rate Loan and under such Negotiated Rate Loan. Each
payment (other than voluntary prepayments made when no
principal payments are due and owing hereunder) by either
Borrower on account of principal of and interest on the Loans
shall be made for the account of each Bank PRO RATA according
to the respective amounts of principal and interest due and
owing to such Bank under this Agreement. Subject to the
requirements of clause (i) of this paragraph (b), each payment
by a Borrower on account of principal of the Loans (other than
Negotiated Rate Loans) shall be applied, FIRST, to such of its
Committed Rate Loan borrowings as such Borrower may designate,
PROVIDED, HOWEVER, that if
Page 30
any such payment is made after the Commitment Expiration Date
for any Objecting Banks to which Committed Rate Loans remain
outstanding, such Objecting Banks shall receive, PRO RATA, the
portion of such payment that bears the same ratio to the
aggregate outstanding principal amount of Committed Rate Loans
owing to all Objecting Banks as the portion of such prepayment
applied to the Committed Rate Loans of the other Banks bears
to the aggregate outstanding principal amount of Committed
Rate Loans owing to such other Banks, and, SECOND, after all
Committed Rate Loans shall have been paid in full, to all of
its Absolute Rate Bid Loans or Index Rate Bid Loans made on
the same Borrowing Date with the same Interest Period as such
Borrower may designate, PRO RATA according to the respective
amounts outstanding; PROVIDED, HOWEVER, that prepayments made
pursuant to subsection 2.13(a), (b) or (c), 2.16(c) or 2.17(b)
shall be applied in accordance with such subsection.
(c) If any payment hereunder (other than payments
on the Eurodollar Loans and Index Rate Bid Loans) becomes due
and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day. If any
payment on a Eurodollar Loan or Index Rate Bid Loan becomes
due and payable on a day other than a Working Day, the
maturity thereof shall be extended to the next succeeding
Working Day unless the result of such extension would be to
extend such payment into another calendar month in which event
such payment shall be made on the immediately preceding
Working Day. With respect to any extension of the payment of
principal pursuant to this subsection 2.12(c), interest
thereon shall be payable at the then applicable rate during
such extension.
(d) Unless the Administrative Agent shall have been
notified in writing by any Bank prior to the date of the
Committed Rate Loan, Committed Rate Loans, Bid Loan or Bid
Loans to be made by such Bank (which notice shall be effective
upon receipt) that such Bank will not make its PRO RATA share
of the amount of the requested borrowing on such date
available to the Administrative Agent, the Administrative
Agent may assume that such Bank has made such amount available
to it on such date and the Administrative Agent may, in
reliance upon such assumption, make available to the relevant
Borrower a corresponding amount. If a Bank shall make such
amount available to the Administrative Agent on a date after
such Borrowing Date, such Bank shall pay to the Administrative
Agent on demand an amount equal to the product of (i) the
daily average Federal funds rate during such period as quoted
by the Administrative Agent, TIMES (ii) the amount of such
Bank's PRO RATA share of such borrowing, TIMES (iii) a
fraction the numerator of which is the number of days that
elapse from and including such Borrowing Date to but excluding
the date on which such Bank's PRO RATA share of such borrowing
shall have become immediately available to the Administrative
Agent and the denominator of which is 360. A certificate of
the Administrative Agent submitted to any Bank with respect to
any amounts owing under this subsection 2.12(d) shall be
conclusive, absent manifest error. If such Bank's PRO RATA
share is not in fact made available to the Administrative
Agent by such Bank within three Business Days of such
Borrowing Date, the Administrative Agent shall be entitled to
recover such amount, on demand, from the relevant Borrower
with interest thereon at the rate equal to the product of (i)
during the period from and including such Borrowing Date to
the Business Day next following the date of such demand, the
daily average Federal funds rate as quoted by the
Administrative Agent, TIMES a fraction the numerator of which
is the number of days that elapse from and including such
Borrowing Date to but
Page 31
excluding the Business Day next following the date of such
demand and the denominator of which is 360 and (ii)
thereafter, the interest rate or rates applicable to the Loan
or Loans funded by the Administrative Agent on behalf of such
Bank on such Borrowing Date, TIMES a fraction the numerator of
which is the number of days which elapse from and including
the Business Day next following the date of such demand to but
excluding the date such amount is recovered by the
Administrative Agent from such Borrower and the denominator of
which is 360. In the event any Bank's PRO RATA share of a
borrowing is not made available to the Administrative Agent in
accordance with this paragraph within three Business Days of
the applicable Borrowing Date (i) such Bank shall, during the
period from such Borrowing Date to the date such Bank makes
its PRO RATA share of the applicable borrowing available, not
accrue and shall not be entitled to receive any facility fee
under subsection 2.4 and (ii) either Borrower may exercise or
pursue any other rights, remedies, powers and privileges
against such Bank as are provided by law or by contract.
2.13 REQUIREMENTS OF LAW. (a) If any Bank shall
determine that by reason of (i) the introduction after the
date hereof of any applicable law, regulation or guideline or
any change after the date hereof in any applicable law,
regulation or guideline (including the phasing-in of a
provision of any applicable law, regulation or guideline) or
in the interpretation thereof by any governmental or other
regulatory authority charged with the administration thereof
or any court of competent jurisdiction and/or (ii) compliance
by such Bank with any requirement adopted after the date
hereof of or directive adopted after the date hereof from any
central bank or other fiscal, monetary or other regulatory
authority (whether or not having the force of law), there
shall be any increase in the cost of such Bank of maintaining
or giving effect to its obligations with respect to Committed
Rate Loans under this Agreement or maintaining its Commitment
with respect to Committed Rate Loans or making or maintaining
any C/D Rate Loans or Eurodollar Loans or any reduction in any
amount receivable by such Bank in respect of C/D Rate Loans or
Eurodollar Loans under this Agreement, notwithstanding the
reasonable efforts (such reasonable efforts not to result in
the incurrence of additional costs or expenses) of such Bank
to mitigate such increase or reduction, then the relevant
Borrower shall from time to time on receipt (whenever
occurring) of a certificate from such Bank (which shall be
executed by an officer thereof and a copy of which shall be
delivered to the Administrative Agent) pay to such Bank such
amounts as are stated therein to be required to indemnify such
Bank against such increased costs or reduction; PROVIDED,
HOWEVER, that if such Borrower becomes obligated to pay any
Bank any additional amount pursuant to this subsection
2.13(a), such Borrower shall have the right, so long as no
Event of Default has occurred and is then continuing, upon
giving notice to the Administrative Agent and such Bank in
accordance with subsection 2.6, to prepay in full the Loans of
such Bank, together with accrued interest thereon, any amounts
payable to such Bank pursuant to subsections 2.13, 2.14, 2.15
and 2.17 and any accrued and unpaid facility fee or other
amount payable to such Bank hereunder and/or, upon giving not
less than three Business Days' notice to any such Bank and the
Administrative Agent, to cancel the whole or part of the
Commitment of any such Bank; PROVIDED, FURTHER, that such
Borrower shall not be obligated to pay any Bank any additional
amount pursuant to this subsection 2.13(a) (A) which
constitutes a present or future income, stamp or other tax,
levy, impost, duty, charge, fee, deduction or withholding
referred to in subsection 2.17(a) or (B) as a result of any
law, rule, guideline, regulation, request or directive
regarding capital adequacy referred to in subsection 2.13(b).
A certificate of such Bank as to the amount of such increased
Page 32
costs or reduction shall set forth in reasonable detail the
computation of such increased costs or reduction, and shall be
binding and conclusive in the absence of manifest error.
Amounts payable pursuant to this subsection 2.13(a) shall not
include amounts which the relevant Borrower is obligated to
pay pursuant to the definition of "C/D Rate" or subsection
2.13(c). A Bank which demands indemnification hereunder as a
result of an increased cost or reduction referred to herein
shall deliver the certificate referred to above to the
relevant Borrower demanding indemnification no later than the
later of (y) the thirtieth day immediately following each
payment or realization by such Bank of such increased cost or
reduction (and such certificate shall certify that the amounts
set forth therein were paid or realized within such thirty-day
period) and (z) the thirtieth day immediately following such
Bank's knowledge of the incurrence or realization by such Bank
of such increased cost or reduction (and such certificate
shall so certify).
(b) In the event that any Bank shall have
determined that the adoption after the date hereof of any law,
rule, guideline or regulation regarding capital adequacy, or
any change after the date hereof in any existing or future
law, rule, guideline or regulation regarding capital adequacy
(excluding, however, the phasing-in of any existing law, rule,
regulation or guideline regarding capital adequacy) or in the
interpretation or application thereof or compliance by such
Bank or any corporation controlling such Bank with any request
or directive made or adopted after the date hereof regarding
capital adequacy (whether or not having the force of law) from
any central bank or Governmental Authority, does or shall have
the effect of reducing the rate of return on such Bank's or
such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Bank or such
corporation could have achieved but for such adoption, change
or compliance (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to
time, within 30 days after receipt (whenever occurring) of a
certificate from such Bank (which shall be executed by an
officer thereof and a copy of which shall be delivered to the
Administrative Agent), the Borrowers jointly and severally
agree to pay to such Bank such additional amounts as are
stated therein to be required to compensate it for such
reduction; PROVIDED, HOWEVER, that if such Borrower becomes
obligated to pay any Bank any additional amount pursuant to
this subsection 2.13(b), such Borrower shall have the right,
so long as no Event of Default has occurred and is then
continuing, upon giving notice to the Administrative Agent and
such Bank in accordance with subsection 2.6, to prepay in full
the Loans of such Bank, together with accrued interest
thereon, any amounts payable pursuant to subsections 2.13,
2.14, 2.15 and 2.17 and any accrued and unpaid facility fee or
other amounts payable to it hereunder and/or, upon giving not
less than three Business Days' notice to any such Bank and the
Administrative Agent, to cancel the whole or part of the
Commitment of any such Bank. A certificate of such Bank as to
the amount of such reduction shall set forth in reasonable
detail the computation of such reduction, and shall be binding
and conclusive in the absence of manifest error. A Bank which
demands indemnification hereunder as a result of a reduction
referred to herein shall deliver the certificate referred to
above to the relevant Borrower demanding indemnification no
later than the later of (i) the thirtieth day immediately
following each realization by such Bank of such reduction (and
such certificate shall certify that the amounts set forth
therein were realized within such thirty-day period) and (ii)
the thirtieth day immediately following such Bank's knowledge
of the realization by such Bank of such reduction (and such
certificate shall so certify).
Page 33
(c) Each Borrower shall pay to each Bank that
delivers a certificate to such Borrower in accordance with the
second and third following sentences such amounts as shall be
necessary to reimburse such Bank for the costs (determined in
accordance with the immediately following sentence), if any,
incurred by such Bank, as a result of the application to such
Bank during any period on which there are outstanding
Eurodollar Loans advanced by such Bank to such Borrower of
basic, supplemental, marginal and emergency reserves under any
regulations of the Board of Governors of the Federal Reserve
System or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of such Board)
maintained by a member bank of such System (any such reserves
dealing with reserve requirements prescribed for eurocurrency
funding being referred to as "RESERVES"), such amount to be
set forth in a certificate of such Bank delivered to the
relevant Borrower; PROVIDED, HOWEVER, that if a Bank gives to
a Borrower the written notice contemplated by the proviso set
forth in the second following sentence, such Borrower shall
have the right, so long as no Event of Default has occurred
and is then continuing, upon giving notice to the
Administrative Agent and such Bank in accordance with
subsection 2.6, to prepay in full the Loans of such Bank,
together with accrued interest thereon, any amounts payable
pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any
accrued and unpaid facility fee or other amounts payable to it
hereunder and/or upon giving not less than three Working Days'
notice to such Bank and the Administrative Agent, to cancel
the whole or part of the Commitment of any such Bank. Amounts
certified by a Bank hereunder for any period shall represent
such Bank's calculation or, if an accurate calculation is
impracticable, reasonable estimate (using such reasonable
means of allocation as such Bank shall determine) of the
actual costs, if any, theretofore incurred by such Bank as a
result of the application of Reserves to Eurocurrency
liabilities (as referred to in Regulation D referred to above)
of such Bank in an amount equal to such Bank's Eurodollar
Loans during such period and in any event shall not exceed the
amount obtainable utilizing the maximum Reserves prescribed by
the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect
thereto for such period. Such payment shall be made within
fifteen days after receipt by the relevant Borrower of a
certificate, signed by an officer of the Bank delivering such
certificate, which certificate shall be binding and conclusive
in the absence of demonstrable error, specifying the period
(prior to the date of such certificate) during which the cost
set forth therein was incurred by such Bank and stating (i)
that such amount represents the actual cost, or, if an
accurate calculation of such cost is impracticable stating
that such amount represents such Bank's reasonable estimate of
the actual cost, incurred by such Bank during such period as a
result of the application of Reserves to Eurocurrency
liabilities of such Bank in an amount equal to such Bank's
Eurodollar Loans during such period and specified in such
certificate and (ii) that the amount set forth therein does
not in any event exceed the amount obtainable utilizing the
maximum Reserves prescribed for such period by the Board of
Governors of the Federal Reserve System or such other
Governmental Authority having jurisdiction with respect
thereto; PROVIDED that the obligation of the Borrowers to pay
any amounts pursuant to this subsection 2.13(c) shall apply
only in the case of those Banks that give to the relevant
Borrower and the Administrative Agent, no later than 3:00 P.M.
(New York City time) on the day that is two Working Days prior
to the applicable Borrowing Date therefor, a written notice
stating that such Bank intends to demand reimbursement
pursuant hereto. A Bank which demands reimbursement of Reserve
costs hereunder on account of a Eurodollar Loan
Page 34
made by such Bank shall deliver the certificate referred to in
the preceding sentence to the relevant Borrower setting forth
the items specified in clauses (i) and (ii) of the preceding
sentence no later than the thirtieth day immediately following
the last day of the Interest Period applicable to such
Eurodollar Loan.
(d) The obligations of the parties under this
subsection 2.13 shall survive termination of this Agreement
and payment of the Loans.
2.14 INDEMNITY. Each Borrower agrees to indemnify
each Bank and to hold each Bank harmless from any loss or
expense which such Bank may sustain or incur as a consequence
of (a) default by such Borrower in payment of the principal
amount of or interest on any Loan by such Bank, including, but
not limited to, any such loss or expense arising from interest
or fees payable by such Bank to lenders of funds obtained by
it in order to maintain its Loans hereunder, (b) default by
such Borrower in making a borrowing, conversion or continuance
after such Borrower has given a notice in accordance with
subsection 2.1, 2.2 or 2.9, (c) default by such Borrower in
making any prepayment after such Borrower has given a notice
in accordance with subsection 2.5 or 2.6 or (d) the making by
such Borrower of a prepayment of a Committed Rate Loan (other
than an ABR Loan), a Bid Loan or, to the extent agreed to by
the relevant Borrower and the relevant Bank with respect to a
Negotiated Rate Loan, a Negotiated Rate Loan on a day which is
not the last day of an Interest Period with respect thereto
(with respect to Committed Rate Loans) or the maturity date
therefor (with respect to Bid Loans) or any agreed date (with
respect to Negotiated Rate Loans), including, but not limited
to, any such loss or expense arising from interest or fees
payable by such Bank to lenders of funds obtained by it in
order to maintain its Loans hereunder. This covenant shall
survive termination of this Agreement and payment of the
outstanding Loans. A certificate as to any amount payable
pursuant to the foregoing shall be submitted by such Bank (and
executed by an officer thereof) to the relevant Borrower,
setting forth the computation of such amounts in reasonable
detail, and shall be conclusive in the absence of manifest
error.
2.15 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE
AGENT. With respect to all Loans except Negotiated Rate Loans,
unless the Administrative Agent shall have been notified by
the relevant Borrower prior to the date on which any payment
is due from it hereunder (which notice shall be effective upon
receipt) that such Borrower does not intend to make such
payment, the Administrative Agent may assume that such
Borrower has made such payment when due, and the
Administrative Agent may in reliance upon such assumption (but
shall not be required to) make available to each Bank on such
payment date an amount equal to the portion of such assumed
payment to which such Bank is entitled hereunder, and if such
Borrower has not in fact made such payment to the
Administrative Agent, such Bank shall, on demand, repay to the
Administrative Agent the amount made available to such Bank
together with interest thereon in respect of each day during
the period commencing on the date such amount was made
available to such Bank and ending on (but excluding) the date
such Bank repays such amount to the Administrative Agent, at a
rate per annum equal to the Administrative Agent's cost of
obtaining overnight funds in the federal funds market in New
York on each such day. A certificate of the Administrative
Agent submitted to the relevant Bank with respect to any
amount owing under this subsection 2.15 shall be conclusive
absent manifest error.
Page 35
2.16 EXTENSION OF TERMINATION DATE. (a) Not less
than 60 days and not more than 90 days prior to the
Termination Date then in effect, provided that no Event of
Default shall have occurred and be continuing, the Borrowers
may request an extension of such Termination Date by
submitting to the Administrative Agent an Extension Request
containing the information in respect of such extension
specified in Exhibit I, which the Administrative Agent shall
promptly furnish to each Bank. Each Bank shall, not less than
30 days and not more than 60 days prior to the Termination
Date then in effect, notify the Borrowers and the
Administrative Agent of its election to extend or not extend
the Termination Date as requested in such Extension Request.
Notwithstanding any provision of this Agreement to the
contrary, any notice by any Bank of its willingness to extend
the Termination Date shall be revocable by such Bank in its
sole and absolute discretion at any time prior to the date
which is 30 days prior to the Termination Date then in effect.
If the Required Banks shall approve in writing the extension
of the Termination Date requested in such Extension Request,
the Termination Date shall automatically and without any
further action by any Person be extended for the period
specified in such Extension Request; PROVIDED that (i) each
extension pursuant to this subsection 2.16 shall be for a
maximum of 364 days and (ii) the Commitment of any Bank which
does not consent in writing to such extension not less than 30
days and not more than 60 days prior to the Termination Date
then in effect (an "OBJECTING BANK") shall, unless earlier
terminated in accordance with this Agreement, expire on the
Termination Date in effect on the date of such Extension
Request (such Termination Date, if any, referred to as the
"COMMITMENT EXPIRATION DATE" with respect to such Objecting
Bank). If, not less than 30 days and not more than 60 days
prior to the Termination Date then in effect, the Required
Banks shall not approve in writing the extension of the
Termination Date requested in an Extension Request, the
Termination Date shall not be extended pursuant to such
Extension Request. The Administrative Agent shall promptly
notify (y) the Banks and the Borrowers of any extension of the
Termination Date pursuant to this subsection 2.16 and (z) the
Borrowers and any other Bank of any Bank which becomes an
Objecting Bank.
(b) Committed Rate Loans owing to any Objecting
Bank on the Commitment Expiration Date with respect to such
Bank shall be repaid in full on or before the date which is
two years after such Commitment Expiration Date.
(c) The Borrowers shall have the right, so long as
no Event of Default has occurred and is then continuing, upon
giving notice to the Administrative Agent and the Objecting
Banks in accordance with subsection 2.6, to prepay in full the
Committed Rate Loans of the Objecting Banks, together with
accrued interest thereon, any amounts payable pursuant to
subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and
unpaid facility fee or other amounts payable to it hereunder
and/or, upon giving not less than three Working Days' notice
to the Objecting Banks and the Administrative Agent, to cancel
the whole or part of the Commitments of the Objecting Banks.
2.17 FOREIGN TAXES. (a) All payments made under
this Agreement shall be made without set-off or counterclaim
and free and clear of, and without reduction for or on account
of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions,
withholdings or restrictions or conditions of any nature
whatsoever, now or hereafter imposed, levied, collected,
withheld or assessed by any country (or by any political
Page 36
subdivision or taxing authority thereof or therein) from or
through which any amount is paid under this Agreement
excluding, in the case of each Bank, (i) income and franchise
taxes (including, without limitation, branch taxes imposed by
the United States or similar taxes imposed by a political
subdivision or taxing authority thereof or therein but
excluding, in the case of any Bank not organized under the
laws of the United States, any taxes imposed by the United
States by means of withholding at the source), (ii) in the
case of any Bank not organized under the laws of the United
States, any taxes imposed by the United States by means of
withholding at the source unless such Bank has provided the
Company, the Capital Corporation and the Administrative Agent
with the documents it is required to provide to them under
subsection 2.17(c) and (iii) taxes that would not have been
imposed on such Bank but for the existence of a connection
between such Bank and the jurisdiction imposing such taxes
(other than a connection arising principally by virtue of this
Agreement) (such non-excluded taxes being called "FOREIGN
TAXES"). If any Foreign Taxes are required to be withheld from
any amounts so payable to any Bank hereunder, the amounts so
payable to such Bank shall be increased to the extent
necessary to yield to such Bank (after payment of all Foreign
Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement.
Whenever any Foreign Taxes are payable by the Company or the
Capital Corporation, as the case may be, as promptly as
possible thereafter the Company or the Capital Corporation, as
the case may be, shall send to the Administrative Agent, for
the account of the affected Bank, a certified copy of the
original official receipt, if any, received by the Company or
the Capital Corporation, as the case may be, showing payment
thereof. If the Company or the Capital Corporation, as the
case may be, fails to pay any Foreign Taxes when due to the
appropriate taxing authority or fails to remit to the
Administrative Agent, for the account of the affected Banks,
the required receipts or other required documentary evidence,
the Company or the Capital Corporation, as the case may be,
shall indemnify such Banks for any incremental taxes, interest
or penalties that may become payable by such Banks as a result
of any such failure.
(b) If a Borrower is required by this subsection
2.17 to make a payment to or in respect of any Bank, such
Borrower shall have the right, so long as no Event of Default
has occurred and is then continuing, upon giving notice to the
Administrative Agent and such Bank in accordance with
subsection 2.6, to prepay in full the Loans of such Bank,
together with accrued interest thereon, any amounts payable
pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any
accrued and unpaid facility fee or other amounts payable to it
hereunder and/or on giving not less than three Business Days'
notice to any such Bank and the Administrative Agent, to
cancel the whole or part of the Commitment of such Bank.
(c) At least two Business Days prior to the first
Borrowing Date or, if such date does not occur within thirty
days after the Closing Date, by the end of such thirty-day
period, each Bank agrees that it will deliver to each Borrower
and the Administrative Agent (i) either (A) a statement that
it is incorporated under the laws of the United States or a
state thereof or (B) if it is not so incorporated, a letter in
duplicate in the form of Exhibit J or Exhibit K, as
appropriate, and two duly completed copies of United States
Internal Revenue Service Form 4224 or 1001 or successor
applicable form, as the case may be, certifying in each case
that such Bank is entitled to receive payment under this
Agreement without deduction or withholding of any United
States Federal income taxes, and (ii) Internal Revenue Service
Form W-8 or W-9, or
Page 37
successor applicable form, as the case may be, to establish an
exemption from United States backup withholding tax. Each Bank
agrees (for the benefit of the Administrative Agent and the
Borrowers) to provide the Administrative Agent and the
Borrowers a new letter and Form 4224 or 1001 and Form W-8 or
W-9, or successor applicable form or other manner of
certification, on or before the date that any such letter or
form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent letter or form
previously delivered by it, certifying in the case of a Form
1001 or 4224 that such Bank is entitled to receive payments
under this Agreement without deduction or withholding of any
United States Federal income tax, and in the case of a Form W-
8 or W-9 establishing exemption from United States backup
withholding tax. The Administrative Agent shall not be
responsible for obtaining such documentation from any Bank
other than Chase.
(d) The Company and the Capital Corporation shall
not be required to make payments on account of United States
withholding taxes to any Bank under the second sentence of
subsection 2.17(a) to the extent that such taxes could have
been avoided had such Bank complied with a reasonable request
by the Company, the Capital Corporation or the Administrative
Agent for the forms or documents referred to in subsection
2.17(c).
(e) To the extent that, as determined by any Bank
in its sole discretion and without any obligation to disclose
its tax records, Foreign Taxes have been irrevocably utilized
by such Bank (either as credits or deductions) to reduce its
tax liabilities and such utilization is consistent with its
overall tax policies, such Bank shall pay to the Company or
the Capital Corporation, as the case may be, an amount equal
to such reduction obtained to the extent of such increased
amounts paid by the Company or the Capital Corporation to such
Bank as aforesaid.
(f) The obligations of the parties under this
subsection 2.17 shall survive termination of this Agreement
and payment of the Loans.
2.18 CONFIRMATIONS. The Administrative Agent shall,
within 15 days following the last day of each calendar quarter
(each such period being a "REPORT PERIOD"), furnish to the
Borrowers a written account with respect to all amounts
outstanding under the Loan Accounts as at the last day of such
Report Period, including an accounting setting forth, for such
Report Period the amounts of principal, interest and other
sums paid and payable hereunder. The Borrowers shall, within
15 days following receipt of such written account, notify the
Administrative Agent of any discrepancies between such written
account and the Borrowers' records or, if no such
discrepancies exist, furnish written confirmation to the
Administrative Agent of the accuracy of such written account.
Upon any Bank's request, the Administrative Agent shall
furnish to each Bank a copy of such written account together
with the Borrowers' response thereto.
2.19 REPLACEMENT OF CANCELLED BANKS. The Borrowers
may designate one or more financial institutions to act as a
Bank hereunder in place of any Cancelled Bank, and upon the
Borrowers, each such financial institution and the
Administrative Agent executing a writing substantially in the
form of Exhibit L, such financial institution shall become and
be a Bank hereunder with all the rights and obligations it
would have had if it had been named on the
Page 38
signature pages hereof, and having for all such financial
institutions an aggregate Commitment no greater than the
whole, or such cancelled part, of the Commitment of the
Cancelled Bank in place of which such financial institutions
were designated; PROVIDED, HOWEVER, that all rights and
obligations of such Cancelled Bank relating to the Loans made
by such Cancelled Bank that are outstanding on the date of
such cancellation shall be the rights and obligations of such
Cancelled Bank and not of any such financial institution; and
PROVIDED, FURTHER, that no such financial institution shall
become and be a Tranche B Bank hereunder in place of a
Cancelled Bank which was a Tranche B Bank unless concurrently
therewith such financial institution or an affiliate thereof
becomes a party to the Linked Agreement in accordance with its
terms with a "Commitment" under the Linked Agreement. The
Administrative Agent shall execute any such writing presented
to it and shall notify the Banks of the execution thereof, the
name of the financial institution executing such writing and
the amount of its Commitment.
2.20 CERTAIN NOTICES. Concurrently with the
delivery to the Administrative Agent or the Auction Agent
hereunder by either Borrower of a notice of borrowing, a
notice of prepayment, a notice of reduction or termination of
Commitments or a notice requesting extension of the
Termination Date, such Borrower will deliver a copy of such
notice to the Canadian Administrative Agent. The
Administrative Agent will promptly notify the Canadian
Administrative Agent of (a) each borrowing of Committed Rate
Loans to be made from the Tranche B Banks, (b) the principal
amount of Committed Rate Loans to be made by each Tranche B
Bank, (c) the principal amount of each payment in respect of
such Loans, (d) any termination or reduction of the
Commitments, (e) any extension of the Termination Date and (f)
any assignment of all or a portion of any Tranche B Bank's
Commitment. Concurrently with the delivery to the Canadian
Administrative Agent by either "Borrower" under (and as
defined in) the Linked Agreement of a notice of borrowing, a
notice of prepayment, a notice of reduction or termination of
commitments under the Linked Agreement or a notice requesting
extension of the Termination Date (as defined in the Linked
Agreement), the Borrowers will cause such "Borrower" to
deliver a copy of such notice to the Administrative Agent. The
Canadian Administrative Agent will promptly notify the
Administrative Agent of (i) each borrowing of Loans under (and
as defined in) the Linked Agreement, (ii) the principal amount
of such Loans, (iii) the amount of each principal payment in
respect of such Loans, (iv) any termination or reduction of
the commitments under the Linked Agreement, (v) any assignment
of all or a portion of any Linked Lender's rights or
obligations pursuant to Section 15.2 of the Linked Agreement
and (vi) the Equivalent Amount of the Reduction Percentage of
any stamping fee paid pursuant to subsection 6.1(b) of the
Linked Agreement, the period (including the applicable dates)
in respect of such stamping fee and the proportion of such
stamping fee paid to each Linked Lender.
2.21 COMMITMENT INCREASES. (a) At any time after
the Closing Date, PROVIDED that no Event of Default shall have
occurred and be continuing, the Borrowers may request an
increase of the aggregate Commitments by notice to the
Administrative Agent in writing of the amount (the "OFFERED
INCREASE AMOUNT") of such proposed increase (such notice, a
"COMMITMENT INCREASE NOTICE"). Any such Commitment Increase
Notice must offer each Bank the opportunity to subscribe for
its pro rata share of the increased Commitments; PROVIDED,
HOWEVER, the Borrowers may, with the consent of the
Administrative Agent (which consent shall
Page 39
not be unreasonably withheld or delayed), without offering to
each Bank the opportunity to subscribe for its pro rata share
of the increased Commitments, offer to any bank or other
financial institution that is not an existing Bank the
opportunity to provide a new Commitment pursuant to paragraph
(b) below if the aggregate amount of all Commitments made
hereunder pursuant to this proviso which will be in effect
when such new Commitment becomes effective does not exceed
$1,500,000,000 subject to subsection 2.21(f). If any portion
of the increased Commitments offered to the Banks as
contemplated in the immediately preceding sentence is not
subscribed for by the Banks, the Borrowers may, with the
consent of the Administrative Agent as to any bank or
financial institution that is not at such time a Bank (which
consent shall not be unreasonably withheld or delayed), offer
to any existing Bank or to one or more additional banks or
financial institutions the opportunity to provide all or a
portion of such unsubscribed portion of the increased
Commitments pursuant to paragraph (b) below.
(b) Any additional bank or financial institution
that the Borrowers select to offer the opportunity to provide
any portion of the increased Commitments, and that elects to
become a party to this Agreement and provide a Commitment,
shall execute a New Bank Supplement with the Borrowers and the
Administrative Agent, substantially in the form of Exhibit N
(a "NEW BANK SUPPLEMENT"), whereupon such bank or financial
institution (a "NEW BANK") shall become a Bank for all
purposes and to the same extent as if originally a party
hereto and shall be bound by and entitled to the benefits of
this Agreement, and Schedule II shall be deemed to be amended
to add the name and Commitment of such New Bank, PROVIDED that
the Commitment of any such New Bank shall be in an amount not
less than $10,000,000.
(c) Any Bank that accepts an offer to it by the
Borrowers to increase its Commitment pursuant to this
subsection 2.21 shall, in each case, execute a Commitment
Increase Supplement with the Borrowers and the Administrative
Agent, substantially in the form of Exhibit O (a "COMMITMENT
INCREASE SUPPLEMENT"), whereupon such Bank (an "INCREASING
BANK") shall be bound by and entitled to the benefits of this
Agreement with respect to the full amount of its Commitment as
so increased, and Schedule II shall be deemed to be amended to
so increase the Commitment of such Bank.
(d) The effectiveness of any New Bank Supplement or
Commitment Increase Supplement shall be contingent upon
receipt by the Administrative Agent of such corporate
resolutions of the Borrowers and legal opinions of counsel to
the Borrowers as the Administrative Agent shall reasonably
request with respect thereto and, if a New Bank Supplement
indicates that the relevant New Bank shall be a Tranche B Bank
or if the Increasing Bank is a Tranche B Bank, upon receipt by
the Canadian Administrative Agent of such corporate
resolutions of the Borrowers under the Linked Agreement (the
"LINKED BORROWERS") and legal opinions of counsel to the
Linked Borrowers as the Canadian Administrative Agent shall
reasonably request with respect thereto.
(e)(i) Except as otherwise provided in subparagraphs
(ii) and (iii) of this paragraph (e), if any bank or financial
institution becomes a New Bank pursuant to subsection 2.21(b)
or any Bank's Commitment is increased pursuant to subsection
2.21(c), additional Committed Rate Loans made on or after the
date of the effectiveness thereof (the "RE-ALLOCATION
Page 40
DATE") shall be made in accordance with the pro rata
provisions of subsection 2.12(b) based on the Commitment
Percentages in effect on and after such Re-Allocation Date
(except to the extent that any such pro rata borrowings would
result in any Bank making an aggregate principal amount of
Committed Rate Loans in excess of its Commitment, in which
case such excess amount will be allocated to, and made by, the
relevant New Banks and Increasing Banks to the extent of, and
in accordance with the pro rata provisions of subsection
2.12(b) based on, their respective Commitments). On each Re-
Allocation Date, the Administrative Agent shall deliver a
notice to each Bank of the adjusted Commitment Percentages
after giving effect to any increase in the aggregate
Commitments made pursuant to this subsection 2.21 on such Re-
Allocation Date.
(ii) In the event that on any such Re-Allocation
Date there is an unpaid principal amount of ABR Loans, the
applicable Borrower shall make prepayments thereof and one or
both Borrowers shall make borrowings of ABR Loans and/or
Eurodollar Loans, as the applicable Borrower shall determine,
so that, after giving effect thereto, the ABR Loans and
Eurodollar Loans outstanding are held as nearly as may be in
accordance with the pro rata provisions of subsection 2.12(b)
based on such new Commitment Percentages.
(iii) In the event that on any such Re-Allocation
Date there is an unpaid principal amount of Eurodollar Loans,
such Eurodollar Loans shall remain outstanding with the
respective holders thereof until the expiration of their
respective Interest Periods (unless the applicable Borrower
elects to prepay any thereof in accordance with the applicable
provisions of this Agreement), and on the last day of the
respective Interest Periods the applicable Borrower shall make
prepayments thereof and one or both Borrowers shall make
borrowings of ABR Loans and/or Eurodollar Loans so that, after
giving effect thereto, the ABR Loans and Eurodollar Loans
outstanding are held as nearly as may be in accordance with
the pro rata provisions of subsection 2.12(b) based on such
new Commitment Percentages.
(f) Notwithstanding anything to the contrary in
this subsection 2.21, (i) in no event shall any transaction
effected pursuant to this subsection 2.21 cause the aggregate
Commitments to exceed $3,500,000,000, (ii) the Commitment of
an individual Bank shall not, as a result of providing a new
Commitment or of increasing its existing Commitment pursuant
to this subsection 2.21, exceed 15% of the aggregate
Commitments on any Re-Allocation Date and (iii) no Bank shall
have any obligation to increase its Commitment unless it
agrees to do so in its sole discretion.
(g) The Borrowers, at their own expense, shall
execute and deliver to the Administrative Agent in exchange
for the surrendered Notes of any Bank, if any, new Notes to
the order of such Bank, if requested, in an amount equal to
the Commitment of such Bank after giving effect to any
increase in such Bank's Commitment.
Page 41
SECTION 3. REPRESENTATIONS AND WARRANTIES
Each Borrower hereby represents and warrants to the
Administrative Agent and to each Bank that:
3.1 FINANCIAL CONDITION. The consolidated balance
sheet of such Borrower and its consolidated Subsidiaries as at
October 31, 1998 and the related consolidated statements of
income and of cash flow for the fiscal year then ended
(including the related schedules and notes) reported on by
Deloitte & Touche LLP, copies of which have heretofore been
furnished to each Bank, fairly present the consolidated
financial condition of such Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of
their operations and changes in financial position for the
fiscal year then ended. All such financial statements,
including the related schedules and notes thereto, have been
prepared in accordance with generally accepted accounting
principles in the United States of America applied
consistently throughout the periods involved (except as
approved by such accountants or Responsible Officer, as the
case may be, and as disclosed therein).
3.2 CORPORATE EXISTENCE. Such Borrower is duly
organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has the
corporate power and authority to own its properties and to
conduct the business in which it is currently engaged.
3.3 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE
OBLIGATIONS. Such Borrower has the corporate power and
authority and the legal right to execute, deliver and perform
this Agreement and to borrow hereunder and has taken all
necessary corporate action to authorize its borrowings on the
terms and conditions of this Agreement and to authorize its
execution, delivery and performance of this Agreement. No
consent or authorization of, filing with, or other act by or
in respect of, any Governmental Authority, is required in
connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability
of this Agreement other than any such consents,
authorizations, filings or acts as have been obtained, taken
or made and are in full force and effect. This Agreement has
been duly executed and delivered on behalf of such Borrower,
and this Agreement constitutes a legal, valid and binding
obligation of such Borrower enforceable against such Borrower
in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equity principles
(whether enforcement is sought by proceedings in equity or at
law).
3.4 NO LEGAL BAR. The execution, delivery and
performance of this Agreement, the borrowings hereunder and
the use of the proceeds thereof, will not violate any
Requirement of Law or any Contractual Obligation of such
Borrower, and will not result in, or require, the creation or
imposition of any lien on any of its properties or revenues
pursuant to any Requirement of Law or Contractual Obligation.
Page 42
3.5 NO MATERIAL LITIGATION. No litigation,
investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of such
Borrower, threatened by or against such Borrower or any of its
Subsidiaries or against any of its or their respective
properties or revenues except actions, suits or proceedings
which will not materially adversely affect the ability of such
Borrower to perform its obligations hereunder. All of the
defaults, if any, of such Borrower or any of its Subsidiaries
with respect to any order of any Governmental Authority do
not, and will not collectively, have a material adverse effect
on the business, operations, property or financial or other
condition of such Borrower and its Subsidiaries taken as a
whole.
3.6 TAXES. Each of such Borrower and its
Subsidiaries has filed or caused to be filed all tax returns
which, to the knowledge of such Borrower, are required to be
filed (except where the failure to file such tax returns would
not have a material adverse effect on the business,
operations, property or financial or other condition of such
Borrower and its Subsidiaries taken as a whole), and has paid
all taxes shown to be due and payable on said returns or on
any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than
assessments, taxes, fees and other charges the amount or
validity of which is currently being contested in good faith
by appropriate proceedings and with respect to which reserves
in conformity with GAAP have been provided on the books of
such Borrower or its Subsidiaries, as the case may be).
3.7 MARGIN REGULATIONS. No part of the proceeds of
any Loan hereunder will be used for any purpose which violates
the provisions of Regulation U of the Board of Governors of
the Federal Reserve System as now and from time to time
hereafter in effect.
3.8 PARI PASSU RANKING. The indebtedness of such
Borrower under its Loans and all other amounts due hereunder
ranks at least pari passu with all present and future
unsecured senior indebtedness of such Borrower (other than
indebtedness preferred by law).
3.9 NO DEFAULTS. No "Event of Default" or similar
event, or event which, with the lapse of time or the giving of
notice, or both, would constitute such an Event of Default or
similar event, has occurred and is continuing hereunder or
under any material bond, debenture, note or other evidence of
indebtedness, or in any material mortgage, deed of trust,
indenture or loan agreement, of such Borrower.
3.10 USE OF PROCEEDS. The proceeds of the Loans
will be used by such Borrower for its general corporate
purposes, which shall include, but shall not be limited to,
any purchase or other acquisition of all or a portion of the
debt or stock or other evidences of ownership of such Borrower
or the assets or stock or other evidences of ownership of any
other Person or Persons.
3.11 YEAR 2000 ISSUES. The Borrowers have
established a global program to address the inability of
certain computer programs and infrastructure systems to
process dates in and following the year 2000. As of the date
hereof, all modifications and upgrades of each Borrower's
mission critical activities and systems (including a
contingency plan) are reasonably
Page 43
expected to be completed by October 31, 1999. As of the date
hereof, the cost to the Borrowers of such modifications and
upgrades as the case may be, and testing and of the reasonably
foreseeable consequences of year 2000 to the Borrowers will
not result in a Default or, in the good faith belief of the
Borrowers, have a reasonable possibility of affecting
materially and adversely the Borrowers' abilities to perform
their obligations under this Agreement.
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS TO INITIAL LOAN. The obligation of
each Bank to make its initial Loan hereunder is subject to the
satisfaction of the following conditions precedent:
(a) COUNTERPARTS. The Administrative Agent shall
have received counterparts hereof, executed by all of the
parties hereto.
(b) RESOLUTIONS. The Administrative Agent shall
have received, with a counterpart for each Bank, resolutions,
certified by the Secretary or an Assistant Secretary of each
Borrower, in form and substance satisfactory to the
Administrative Agent, adopted by the Board of Directors of
such Borrower authorizing the execution of this Agreement and
the performance of its obligations hereunder and any
borrowings hereunder from time to time.
(c) LEGAL OPINIONS. The Administrative Agent shall
have received, with a counterpart for each Bank, an opinion of
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., or his successor, as general counsel,
or an associate general counsel, for each of the Borrowers,
dated the Closing Date and addressed to the Agents and the
Banks, substantially in the form of Exhibit G, and an opinion
of Shearman & Sterling, special counsel to the Borrowers,
dated the Closing Date and addressed to the Agents and the
Banks, substantially in the form of Exhibit H. Such opinions
shall also cover such other matters incident to the
transactions contemplated by this Agreement as the
Administrative Agent shall reasonably require.
(d) INCUMBENCY CERTIFICATE. The Administrative
Agent shall have received, with a counterpart for each Bank, a
certificate of the Secretary or an Assistant Secretary of each
Borrower certifying the names and true signatures of the
officers of such Borrower authorized to sign this Agreement,
together with evidence of the incumbency of such Secretary or
Assistant Secretary.
(e) EXISTING CREDIT AGREEMENT. The Administrative
Agent shall have received evidence satisfactory to it that all
amounts payable under the Existing Credit Agreement to any
Exiting Bank shall have been paid in full.
(f) FEES. The Administrative Agent shall have
received, for the accounts of the Banks and the Administrative
Agent, and each Agent shall have received, for the
Page 44
account of such Agent, all accrued fees and expenses owing
hereunder or in connection herewith to the Banks and the
Agents to be received on the Closing Date.
(g) LINKED AGREEMENT. The Linked Agreement shall be
in full force and effect.
(h) ADDITIONAL MATTERS. All other documents which
the Administrative Agent may reasonably request in connection
with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to the
Administrative Agent and its counsel.
4.2 CONDITIONS TO ALL LOANS. The obligation of each
Bank to make any Loan (which shall include the initial Loan to
be made by it hereunder but shall not include any Loan made
pursuant to subsection 2.21(e)(ii) or (iii) if, after the
making of such Loan and the application of the proceeds
thereof, the aggregate outstanding principal amount of the
Committed Rate Loans would not be increased) to be made by it
hereunder is subject to the satisfaction of the following
conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the Borrowers herein or
which are contained in any certificate, document or financial
or other statement furnished by either Borrower at any time
hereunder or in connection herewith (other than any
representations and warranties which by the terms of such
certificate, document or financial or other statement do not
survive the execution of this Agreement) shall be correct on
and as of the date of such Loan as if made on and as of such
date except as such representations and warranties expressly
relate to an earlier date.
(b) NO DEFAULT OR EVENT OF DEFAULT. No Default or
Event of Default shall have occurred and be continuing on such
date or after giving effect to the Loans to be made on such
date and the application of the proceeds thereof.
(c) ADDITIONAL CONDITIONS TO BID LOANS. If such
Loan is made pursuant to subsection 2.2, all conditions set
forth in subsection 2.2(f) shall have been satisfied.
Each acceptance by either Borrower of a Loan shall
constitute a representation and warranty by the relevant
Borrower as of the date of such Loan that the applicable
conditions in clauses (a), (b) and (c) of this subsection 4.2
have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
Each of the Borrowers (except as otherwise specified)
hereby agrees that, so long as there is any obligation by any
Bank to make Loans to it hereunder, any Loan of such Borrower
remains outstanding and unpaid or any other amount is owing by
such Borrower to any Bank or any Agent hereunder (unless the
Majority Banks shall otherwise consent in writing):
5.1 FINANCIAL STATEMENTS. Such Borrower shall
furnish to each Bank:
Page 45
(a) as soon as available, but in any event within
120 days after the end of each fiscal year of such Borrower, a
copy of the consolidated balance sheet of such Borrower and
its consolidated Subsidiaries as at the end of such year and
the related consolidated statements of income and of cash flow
for such year, reported on by Deloitte & Touche or other
independent certified public accountants of nationally
recognized standing; and
(b) as soon as available, but in any event not
later than 60 days after the end of each of the first three
quarterly periods of each fiscal year of such Borrower, the
condensed unaudited consolidated balance sheet of such
Borrower and its consolidated Subsidiaries as at the end of
each such quarter and the related unaudited consolidated
statement of income of such Borrower and its consolidated
Subsidiaries for such quarterly period and the portion of the
fiscal year through such date, certified by a Responsible
Officer of such Borrower (subject to normal year-end audit
adjustments);
all such financial statements to present fairly the
consolidated financial condition and results of operations of
such Borrower and its consolidated Subsidiaries and to be
prepared in accordance with generally accepted accounting
principles in the United States of America applied
consistently throughout the periods reflected therein (except
as approved by such accountants or officer, as the case may
be, and disclosed therein).
5.2 CERTIFICATES; OTHER INFORMATION. Such Borrower
shall furnish to each Bank:
(a) concurrently with the delivery of the financial
statements referred to in subsections 5.1(a) and (b) above, a
certificate of a Responsible Officer of such Borrower stating
that (i) he has no knowledge of the occurrence and continuance
of any Default or Event of Default except as specified in such
certificate, in which case such certificate shall contain a
description thereof and a statement of the steps, if any,
which such Borrower is taking, or proposes to take, to cure
the same and (ii) the financial statements delivered pursuant
to subsection 5.1 would not be different if prepared in
accordance with GAAP except as specified in such certificate;
and
(b) promptly, such additional financial and other
information as any Bank may from time to time reasonably
request.
5.3 COMPANY INDENTURE DOCUMENTS. The Company shall,
contemporaneously with the delivery thereof to the Trustee,
furnish to each Bank a copy of any information, document or
report required to be filed with the Trustee pursuant to
Section 7.03 of the indenture dated July 1, 1994 between the
Company and The Chase Manhattan Bank (National Association),
as Trustee.
5.4 CAPITAL CORPORATION INDENTURE DOCUMENTS. The
Capital Corporation shall, contemporaneously with the delivery
thereof to the Trustee, furnish to each Bank a copy of any
information, document or report required to be filed with the
Trustee pursuant to Section 7.03 of the indenture dated
February 1, 1991, between the Capital Corporation and The Bank
of New York, as Trustee.
Page 46
5.5 NOTICE OF DEFAULT. Such Borrower shall promptly
give notice to the Administrative Agent of the occurrence of
any Default or Event of Default, which notice shall be given
in writing as soon as possible, and in any event within 10
days after a Responsible Officer of such Borrower obtains
knowledge of such occurrence, with a description of the steps
being taken to remedy the same (provided that such Borrower
shall not be obligated to give notice of any Default or Event
of Default which is remedied prior to or within 10 days after
a Responsible Officer of such Borrower first acquires such
knowledge). Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Bank thereof.
5.6 OWNERSHIP OF CAPITAL CORPORATION STOCK. The
Company shall continue to own, directly or through one or more
wholly-owned Subsidiaries, free and clear of any lien or other
encumbrance, 51% of the voting stock of the Capital
Corporation; PROVIDED, HOWEVER, that the Capital Corporation
may merge or consolidate with, or sell or convey substantially
all of its assets to, the Company as provided in subsection
7.4.
5.7 EMPLOYEE BENEFIT PLANS. The Company shall
maintain, and cause each of its Subsidiaries to maintain, each
Plan as to which it may have liability, in compliance with all
applicable requirements of law and regulations.
SECTION 6. NEGATIVE COVENANTS OF THE COMPANY
The Company hereby agrees that, so long as there is
any obligation by any Bank to make Loans hereunder, any Loan
remains outstanding and unpaid or any other amount is owing to
any Agent or any Bank hereunder, it shall not, nor in the case
of subsections 6.2 and 6.3 shall it permit any Restricted
Subsidiary to (unless the Majority Banks shall otherwise
consent in writing):
6.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS. Consolidate with or merge with or into any other
corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(a) either the Company shall be the continuing
corporation, or the corporation (if other than the Company)
formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an
entirety shall expressly assume, by an assumption agreement,
executed and delivered to the Administrative Agent, in form
satisfactory to the Majority Banks, the due and punctual
payment of the principal of and interest on the Loans to the
Company and the performance of every covenant of this
Agreement on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such
transaction, no Default or Event of Default, shall have
happened and be continuing;
Page 47
(c) if as a result thereof any property or assets
of the Company or a Restricted Subsidiary would become subject
to any Mortgage not permitted by (i) through (xii) of
subsection 6.2(a) or subsection 6.2(b), compliance shall be
effected with the first clause of subsection 6.2(a); and
(d) the Company and the successor Person have
delivered to the Administrative Agent an officers' certificate
signed by two Responsible Officers of the Company stating that
such consolidation, merger, conveyance or transfer and such
assumption agreement comply with this subsection 6.1 and that
all conditions precedent herein provided for relating to such
transaction have been complied with.
6.2 LIMITATION ON LIENS. (a) Issue, incur,
assume or guarantee any debt (hereinafter in this subsection
referred to as "DEBT") secured by any mortgage, security
interest, pledge, lien or other encumbrance (hereinafter
called "MORTGAGE" or "MORTGAGES") upon any Important Property,
or upon any shares of stock or indebtedness issued or incurred
by any Restricted Subsidiary (whether such Important Property,
shares of stock or indebtedness is now owned or hereafter
acquired) without in any such case effectively providing,
concurrently with the issuance, incurrence, assumption or
guaranty of any such Debt, that the Loans and all other
amounts hereunder (together with, if the Company shall so
determine, any other indebtedness of or guaranty by the
Company or such Restricted Subsidiary ranking equally with the
Loans then existing or thereafter created) shall be secured
equally and ratably with or prior to such Debt; PROVIDED,
HOWEVER, that the foregoing restrictions shall not apply to:
(i) Mortgages on any property acquired, constructed
or improved by the Company or any Restricted Subsidiary after
the date of this Agreement which are created or assumed
contemporaneously with, or within 120 days after, such
acquisition, construction or improvement to secure or provide
for the payment of all or any part of the purchase price of
such property or the cost of such construction or improvement
incurred after the date of this Agreement, or (in addition to
Mortgages contemplated by clauses (ii), (iii) and (iv) below)
Mortgages on any property existing at the time of acquisition
thereof; PROVIDED that such Mortgages shall not apply to any
Important Property theretofore owned by the Company or any
Restricted Subsidiary other than, in the case of any such
construction or improvement, any theretofore unimproved real
property on which the property so constructed, or the
improvement, is located;
(ii) Mortgages on any property, shares of stock, or
indebtedness existing at the time of acquisition thereof from
a corporation which is consolidated with or merged into, or
substantially all of the assets of which are acquired by, the
Company or a Restricted Subsidiary;
(iii) Mortgages on property of a corporation
existing at the time such corporation becomes a Restricted
Subsidiary;
(iv) Mortgages to secure Debt of a Restricted
Subsidiary to the Company or to another Restricted Subsidiary;
Page 48
(v) Mortgages in favor of the United States of
America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States
of America or any State thereof, to secure partial, progress,
advance or other payments pursuant to any contract or statute
or to secure any indebtedness incurred for the purpose of
financing all or any part of the purchase price or the cost of
constructing or improving the property subject to such
Mortgages and Mortgages given to secure indebtedness incurred
in connection with the financing of construction of pollution
control facilities, the interest on which indebtedness is
exempt from income taxes under the Code;
(vi) any deposit or pledge of assets (1) with any
surety company or clerk of any court, or in escrow, as
collateral in connection with, or in lieu of, any bond on
appeal from any judgment or decree against the Company or a
Restricted Subsidiary, or in connection with other proceedings
or actions at law or in equity by or against the Company or a
Restricted Subsidiary, or (2) as security for the performance
of any contract or undertaking not directly related to the
borrowing of money or the securing of indebtedness, if made in
the ordinary course of business, or (3) with any governmental
agency, which deposit or pledge is required or permitted to
qualify the Company or a Restricted Subsidiary to conduct
business, to maintain self-insurance, or to obtain the
benefits of any law pertaining to worker's compensation,
unemployment insurance, old age pensions, social security, or
similar matters, or (4) made in the ordinary course of
business to obtain the release of mechanics', workmen's,
repairmen's, warehousemen's or similar liens, or the release
of property in the possession of a common carrier;
(vii) Mortgages existing on property acquired by
the Company or a Restricted Subsidiary through the exercise of
rights arising out of defaults on receivables acquired in the
ordinary course of business;
(viii) judgment liens, so long as the finality of
such judgment is being contested in good faith and execution
thereon is stayed;
(ix) Mortgages for the sole purpose of extending,
renewing or replacing in whole or in part Debt secured by any
Mortgage referred to in the foregoing clauses (i) to (viii),
inclusive, or in this clause (ix), PROVIDED, HOWEVER, that the
principal amount of Debt secured thereby shall not exceed the
principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of
the property which secured the Mortgage so extended, renewed
or replaced (plus improvements on such property);
(x) liens for taxes or assessments or governmental
charges or levies not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being
contested in good faith by appropriate proceedings; landlord's
liens on property held under lease; and any other liens of a
nature similar to those hereinabove described in this clause
(x) which do not, in the opinion of the Company, materially
impair the use of such property in the operation of the
business of the Company or a Restricted Subsidiary or the
value of such property for the purposes of such business;
Page 49
(xi) Mortgages on Margin Stock owned by the Company
and its Restricted Subsidiaries to the extent such Margin
Stock so Mortgaged exceeds 25% of the fair market value of the
sum of the Important Property of the Company and the
Restricted Subsidiaries plus the shares of stock (including
Margin Stock) and indebtedness issued or incurred by the
Restricted Subsidiaries; and
(xii) Mortgages on any Important Property of, or
any shares of stock or indebtedness issued or incurred by, any
Restricted Subsidiary organized under the laws of Canada.
(b)(i) The provisions of subsection 6.2(a) shall
not apply to the issuance, incurrence, assumption or guarantee
by the Company or any Restricted Subsidiary of Debt secured by
a Mortgage which would otherwise be subject to the foregoing
restrictions up to an aggregate amount which, together with
the sum of (A) all other Debt issued or incurred by the
Company and its Restricted Subsidiaries secured by Mortgages
(other than Mortgages permitted by subsection 6.2(a)) which
would otherwise be subject to the foregoing restrictions and
(B) the Attributable Debt in respect of Sale and Lease-back
Transactions in existence at such time (other than Sale and
Lease-back Transactions which, if the Attributable Debt in
respect of such Sale and Lease-back had been a Mortgage, would
have been permitted by clause (i) of subsection 6.2(a) and
other than Sale and Lease-back Transactions the proceeds of
which have been applied in accordance with subsection 6.3(b))
does not at the time exceed 5% of Consolidated Net Worth, as
shown on the audited consolidated balance sheet contained in
the latest annual report to stockholders of the Company.
(ii) For purposes of subsection 6.2(b)(i), the term
"CONSOLIDATED NET WORTH" shall mean the aggregate of capital
and surplus of the Company and its consolidated Subsidiaries,
less minority interests in Subsidiaries, determined in
accordance with GAAP; and the term "ATTRIBUTABLE DEBT" shall
mean, as of any particular time, the present value, discounted
at a rate per annum equal to the interest rate set forth in
the Company's 8-1/2% Debentures Due 2022, compounded semi-
annually, of the obligation of a lessee for rental payments
during the remaining term of any lease (including any period
for which such lease has been extended or may, at the option
of the lessor, be extended); the net amount of rent required
to be paid for any such period shall be the total amount of
the rent payable by the lessee with respect to such period,
but may exclude amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges; and, in the case of any lease which
is terminable by the lessee upon the payment of a penalty,
such net amount shall also include the amount of such penalty,
but no rent shall be considered as required to be paid under
such lease subsequent to the first date upon which it may be
so terminated.
(c) If, upon any consolidation or merger of any
Restricted Subsidiary with or into any other corporation, or
upon any consolidation or merger of any other corporation with
or into the Company or any Restricted Subsidiary or upon any
sale or conveyance of the property of any Restricted
Subsidiary as an entirety or substantially as an entirety to
any other Person, or upon any acquisition by the Company or
any Restricted Subsidiary by purchase or otherwise of all or
any part of the property of any other Person, any Important
Property theretofore owned by
Page 50
the Company or such Restricted Subsidiary would thereupon
become subject to any Mortgage not permitted by the terms of
subsection (a) or (b) of this subsection 6.2, the Company,
prior to such consolidation, merger, sale or conveyance, or
acquisition, will, or will cause such Restricted Subsidiary
to, secure payment of the principal of and interest on the
Loans (equally and ratably with or prior to any other
indebtedness of the Company or such Subsidiary then entitled
thereto) by a direct lien on all such property prior to all
liens other than any liens theretofore existing thereon by an
assumption agreement or otherwise.
(d) If at any time the Company or any Restricted
Subsidiary shall issue, incur, assume or guarantee any Debt
secured by any Mortgage not permitted by this subsection 6.2,
to which the covenant in subsection 6.2(a) is applicable, the
Company will promptly deliver to the Administrative Agent
(with counterparts for each Bank):
(i) an officers' certificate signed by two
Responsible Officers of the Company stating that the covenant
of the Company contained in paragraph (a) or (c) of this
subsection 6.2 has been complied with; and
(ii) an opinion of counsel satisfactory to the
Administrative Agent to the effect that such covenant has been
complied with, and that any instruments executed by the
Company in the performance of such covenant comply with the
requirements of such covenant.
6.3 LIMITATIONS ON SALE AND LEASE-BACK
TRANSACTIONS. Enter into any arrangement with any Person
providing for the leasing to the Company or any Restricted
Subsidiary of any Important Property owned or hereafter
acquired by the Company or such Restricted Subsidiary (except
for temporary leases for a term, including any renewal
thereof, of not more than three years and except for leases
between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries), which Important Property has been or
is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person (herein referred to as a "SALE AND
LEASE-BACK TRANSACTION") unless the net proceeds of such sale
are at least equal to the fair value (as determined by the
Board of Directors of the Company or such Restricted
Subsidiary, as applicable) of such property and either (a) the
Company or such Restricted Subsidiary would be entitled,
pursuant to the provisions of (1) subsection 6.2(a)(i) or (2)
subsection 6.2(b), to incur Debt secured by a Mortgage on the
Important Property to be leased without equally and ratably
securing the Loans, or (b) the Company shall, and in any such
case the Company covenants that it will, within 120 days of
the effective date of any such arrangement, apply an amount
equal to the fair value (as so determined) of such property to
the reduction of the Commitments (to be accompanied by
prepayment of the Loans in accordance with subsection 2.6 to
the extent that the principal amount thereof outstanding prior
to such prepayment would exceed the Commitments as so reduced)
or to the payment or other retirement of funded debt for money
borrowed, incurred or assumed by the Company which ranks
senior to or PARI PASSU with the Loans or of funded debt for
money borrowed, incurred or assumed by any Restricted
Subsidiary (other than, in either case, funded debt owned by
the Company or any Restricted Subsidiary). For this purpose,
funded debt means any Debt which by its terms
Page 51
matures at or is extendable or renewable at the sole option of
the obligor without requiring the consent of the obligee to a
date more than twelve months after the date of the creation of
such Debt.
6.4 CONSOLIDATED TANGIBLE NET WORTH. Permit
Consolidated Tangible Net Worth as at the end of any fiscal
quarter of the Company and its consolidated Subsidiaries
(including the last quarter of any fiscal year of the Company
and its consolidated Subsidiaries) to be less than
$500,000,000.
SECTION 7. NEGATIVE COVENANTS OF THE CAPITAL
CORPORATION
The Capital Corporation hereby agrees that, so long as
there is any obligation by any Bank to make Loans to the
Capital Corporation hereunder, any Loan of the Capital
Corporation remains outstanding and unpaid or any other amount
is owing by the Capital Corporation to any Bank or any Agent
hereunder, the Capital Corporation shall not, nor in the case
of the agreements set forth in subsection 7.3 shall it permit
any of its Subsidiaries to, directly or indirectly (unless the
Majority Banks shall otherwise consent in writing):
7.1 FIXED CHARGES RATIO. Permit the ratio of Net
Earnings Available for Fixed Charges to Fixed Charges for any
fiscal quarter of the Capital Corporation and its consolidated
Subsidiaries (including the last quarter of any fiscal year of
the Capital Corporation and its consolidated Subsidiaries) to
be less than 1.05 to 1.
7.2 CONSOLIDATED SENIOR DEBT TO CONSOLIDATED
CAPITAL BASE. Permit the ratio of Consolidated Senior Debt to
Consolidated Capital Base as at the end of any fiscal quarter
of the Capital Corporation and its consolidated Subsidiaries
(including the end of any fiscal year of the Capital
Corporation and its consolidated Subsidiaries) to be more than
8 to 1.
7.3 LIMITATION ON LIENS. Issue, incur, assume or
guarantee any Debt secured by any Mortgage upon any of its
property or assets, or any of the property or assets of any of
its Subsidiaries (whether any such property or assets is now
owned or hereafter acquired) without in any such case
effectively providing, concurrently with the issuance,
incurrence, assumption or guaranty of any such Debt, that the
Loans and all other amounts hereunder (together with, if the
Capital Corporation shall so determine, any other indebtedness
of or guaranty by such Borrower or such Subsidiary ranking
equally with the Loans then existing or thereafter created)
shall be secured equally and ratably with or prior to such
Debt; PROVIDED, HOWEVER, that the foregoing restrictions shall
not apply to:
(a) Mortgages on fixed assets or other physical
properties hereafter acquired to secure all or part of the
purchase price thereof or the acquiring hereafter of such
assets or properties subject to any existing lien or charge
securing indebtedness (whether or not assumed);
Page 52
(b) easements, liens, franchises or other minor
encumbrances on or over any real property which do not
materially detract from the value of such property or its use
in the business of the Capital Corporation or a Subsidiary of
the Capital Corporation;
(c) any deposit or pledge of assets (i) with any
surety company or clerk of any court, or in escrow, as
collateral in connection with or in lieu of, any bond on
appeal from any judgment or decree against the Capital
Corporation or a Subsidiary of the Capital Corporation, or in
connection with other proceedings or actions at law or in
equity by or against the Capital Corporation or a Subsidiary
of the Capital Corporation or (ii) as security for the
performance of any contract or undertaking not directly or
indirectly related to the borrowing of money or the securing
of indebtedness, if made in the ordinary course of business,
or (iii) with any governmental agency, which deposit or pledge
is required or permitted to qualify the Capital Corporation or
a Subsidiary of the Capital Corporation to conduct business,
to maintain self-insurance, or to obtain the benefits of any
law pertaining to workmen's compensation, unemployment
insurance, old age pensions, social security, or similar
matters, or (iv) made in the ordinary course of business to
obtain the release of mechanics', workmen's, repairmen's,
warehousemen's or similar liens, or the release of property in
the possession of a common carrier;
(d) Mortgages by a Subsidiary as security for
indebtedness owed to the Capital Corporation;
(e) liens for taxes and governmental charges not
yet due or contested by appropriate proceedings in good faith;
(f) Mortgages existing on property acquired by the
Capital Corporation or a Subsidiary of the Capital Corporation
through the exercise of rights arising out of defaults on
receivables acquired in the ordinary course of business;
(g) judgment liens, so long as the finality of such
judgment is being contested in good faith and execution
thereon is stayed;
(h) any Mortgage (other than directly or indirectly
to secure borrowed money) if, after giving effect thereto, the
aggregate principal sums secured by pledges or liens otherwise
within the restrictions in clauses (a) through (h) of this
subsection 7.3 do not exceed $500,000;
(i) any transaction characterized as a sale of
receivables (retail or wholesale) but reflected as secured
indebtedness on a balance sheet in conformity with generally
accepted accounting principles in the United States of
America; and
(j) Mortgages on Margin Stock owned by the Capital
Corporation and its Subsidiaries to the extent such Margin
Stock exceeds 25% of the fair market value of property and
assets of the Capital Corporation and its Subsidiaries
(including Margin Stock).
7.4 CONSOLIDATION; MERGER. Merge or consolidate
with, or sell or convey (other than a conveyance by way of
lease) all or substantially all of its assets to, any other
Page 53
corporation, unless (a) the Capital Corporation shall be the
surviving corporation in the case of a merger or the
surviving, resulting or transferee corporation (the "SUCCESSOR
CORPORATION") shall be a corporation organized under the laws
of the United States or any State thereof or the District of
Columbia and shall expressly assume the due and punctual
performance of all of the agreements, covenants and
obligations of the Capital Corporation under this Agreement by
supplemental agreement satisfactory to the Administrative
Agent and executed and delivered to the Administrative Agent
by the successor corporation and (b) the Capital Corporation
or such successor corporation, as the case may be, shall not,
immediately after such merger, consolidation, sale or
conveyance, be in default in the performance of any such
agreements, covenants or obligations; PROVIDED, HOWEVER, that
the Capital Corporation may merge or consolidate with, or sell
or convey substantially all of its assets to, the Company, if
(i) the Company is the successor corporation (as defined
above) and (ii) subclause (b) above is complied with. Upon any
such merger, consolidation, sale or conveyance, the successor
corporation shall succeed to and be substituted for, and may
exercise every right and power of and shall be subject to all
the obligations of, the Capital Corporation under this
Agreement, with the same effect as if the successor
corporation had been named as the Capital Corporation herein
and therein.
SECTION 8. EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any
of the following events:
(a) Either Borrower shall fail to pay any principal
of any Loan when due in accordance with the terms hereof or to
pay any interest on any Loan, in each case within two Business
Days after any such amount becomes due in accordance with the
terms hereof or shall fail to pay any other amount payable
hereunder within five Business Days after any such other
amount becomes due in accordance with the terms thereof or
hereof; or
(b) Any representation or warranty made or pursuant
to subsection 4.2 deemed made by either Borrower herein or
which is contained in any material certificate, material
document or material financial statement or other material
statement furnished at any time under or in connection with
this Agreement shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) The Company shall default in the observance or
performance of any agreement contained in subsection 5.6, 6.1
or 6.4, or the Capital Corporation shall default in the
observance or performance of any agreement contained in
subsections 7.1, 7.2 or 7.4; or
(d) Either Borrower shall default in the observance
or performance of any agreement contained in this Agreement
(other than those agreements referred to above in this Section
8), and such default shall continue unremedied for a period of
30 days after written notice thereof shall have been given to
such Borrower by the Administrative Agent or any of the Banks
through the Administrative Agent; or
Page 54
(e) (i) Either Borrower or any of its Significant
Subsidiaries shall default in any payment of principal of or
interest on any indebtedness for borrowed money (other than
the Loans) in a principal amount in excess of $30,000,000 in
the aggregate, or any interest or premium thereon, when due
(whether at scheduled maturity or by required prepayment,
acceleration, demand or otherwise) and such failure shall
continue beyond the period of grace, if any, provided in the
instrument or agreement under which such indebtedness was
created; or (ii) any other default (other than any default
arising solely out of either Borrower's, or any of its
Significant Subsidiaries', violation of any arrangement with
any Bank, or any affiliate of any Bank, in any way restricting
such Borrower's, or such Significant Subsidiary's, right or
ability to sell, pledge or otherwise dispose of Margin Stock
other than Restricted Margin Stock), or any other event that
with notice or the lapse of time, or both, would constitute
such a default, under any agreement or instrument relating to
any such indebtedness for borrowed money (other than the
Loans), shall occur and shall continue after the applicable
grace period, if any, specified in such agreement or
instrument, if the effect of such default or event is to
accelerate the maturity of such indebtedness; or (iii) any
such indebtedness shall, by reason of default, be declared to
be due and payable, or required to be prepaid, prior to the
stated maturity thereof (unless such indebtedness is declared
due and payable, or required to be prepaid, solely by reason
of either Borrower's, or any of its Significant Subsidiaries',
violation of any arrangement with any Bank, or any affiliate
of any Bank, in any way restricting such Borrower's, or such
Significant Subsidiary's, right or ability to sell, pledge or
otherwise dispose of Margin Stock other than Restricted Margin
Stock); or
(f) (i) Either Borrower or any of its Significant
Subsidiaries shall commence any case, proceeding or other
action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its assets, or such
Borrower or any of its Significant Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii)
there shall be commenced against either Borrower or any of its
Significant Subsidiaries any case, proceeding or other action
of a nature referred to in clause (i) above which (A) results
in the entry of an order for relief or any such adjudication
or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 90 days; or
(g) Any action is undertaken to terminate any Plan
as to which either Borrower, or any Subsidiary of either
Borrower, may have liability, or any such Plan is terminated
or such Borrower or Subsidiary withdraws from such Plan, or
any Reportable Event as to any such Plan shall occur, and
there shall exist a deficiency in the assets available to
satisfy the benefits guaranteeable under ERISA with respect to
such Plan, in the aggregate for all such Plans with respect to
which any of the foregoing shall have
Page 55
occurred in the immediately preceding 12 consecutive months,
of more than 25% of the Consolidated Tangible Net Worth of
such Borrower; or
(h) Any Person shall own beneficially, directly or
indirectly, 30% or more of the common stock of the Company; or
any Person shall have the power, direct or indirect, to vote
securities having 30% or more of the ordinary voting power for
the election of directors of the Company or shall own
beneficially, directly or indirectly, securities having such
power, PROVIDED that there shall not be included among the
securities as to which any such Person has such power to vote
or which such Person so owns securities owned by such Person
as nominee for the direct or indirect beneficial owner thereof
or securities as to which such power to vote arises by virtue
of proxies solicited by the management of the Company; or
(i) In circumstances not covered by paragraph (e)
of this Section 8, amounts outstanding under the Linked
Agreement shall have been declared or become due and payable
by reason of the occurrence of an "Event of Default" under the
Linked Agreement, and such amounts shall not have been repaid
in full within 90 days after the date on which such amounts
were so declared or become due and payable;
then, and in any such event, (A) if such event is an Event of
Default specified in paragraph (f) above, automatically the
Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Loans shall
immediately become due and payable, and (B) (1) if such event
is any Event of Default specified in paragraph (a) or (e),
then with the consent of the Majority Banks, the
Administrative Agent may, or upon the request of the Majority
Banks, the Administrative Agent shall, or (2) if such Event is
an Event of Default specified in paragraph (b), (c), (d), (g),
(h) or (i), then with the consent of the Required Banks, the
Administrative Agent may, or upon the request of the Required
Banks, the Administrative Agent shall, take either or both of
the following actions: (i) by notice to the Borrowers,
declare the Commitments to be terminated forthwith, whereupon
the Commitments shall immediately terminate; and (ii) by
notice of default to the Borrowers, declare the Loans
hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable
forthwith, whereupon the same shall immediately become due and
payable. Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind
are hereby expressly waived with respect to this Agreement.
SECTION 9. THE AGENTS
9.1 APPOINTMENT. (a) Each Bank hereby
irrevocably designates and appoints Chase as the
Administrative Agent of such Bank under this Agreement, and
each Bank hereby irrevocably authorizes Chase as the
Administrative Agent for such Bank, to take such action on its
behalf under the provisions of this Agreement and to exercise
such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental
thereto.
Page 56
(b) Each Bank hereby irrevocably designates and
appoints Chase as the Auction Agent of such Bank under this
Agreement, and each Bank hereby irrevocably authorizes Chase,
as the Auction Agent for such Bank, to take such action on its
behalf under the provisions of this Agreement and to exercise
such powers and perform such duties as are expressly delegated
to the Auction Agent by the terms of this Agreement, together
with such other powers as are reasonably incidental thereto.
(c) Notwithstanding anything to the contrary
contained in this Agreement, the parties hereto hereby agree
that neither the Syndication Agent, the Documentation Agent,
any Managing Agent nor any Co-Agent shall have any rights,
duties or responsibilities in such respective capacity nor
shall any such Person have the authority to take any action
hereunder in its capacity as such.
(d) Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or
responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise
exist against any Agent.
9.2 DELEGATION OF DUTIES. Each Agent may execute
any of its duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Each Agent
shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable
care.
9.3 EXCULPATORY PROVISIONS. Neither any Agent nor
any of their respective officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable to
any Bank for any action lawfully taken or omitted to be taken
by it or such Person under or in connection with this
Agreement (except for its or such Person's own gross
negligence or wilful misconduct), or (ii) responsible in any
manner to any of the Banks for any recitals, statements,
representations or warranties made by the Borrowers or any
officer thereof contained in this Agreement or in any
certificate, report, statement or other document referred to
or provided for in, or received by any Agent under or in
connection with, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of
this Agreement or for any failure of the Borrowers to perform
their obligations hereunder. No Agent shall be under any
obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained
in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Borrowers.
9.4 RELIANCE BY AGENTS. Each Agent shall be
entitled to rely, and shall be fully protected in relying,
upon any Loan, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram,
facsimile, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the
Borrowers), independent accountants and other experts selected
by such Agent. Each Agent may deem and treat the payee of any
Loan as the owner thereof for all purposes except as provided
in subsections 10.5(c) and 10.5(d). Each
Page 57
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, or all of the Banks (if the consent of all
of the Banks is required), and such request and any action
taken or failure to act pursuant thereto shall be binding upon
all the Banks.
9.5 NOTICE OF DEFAULT. The Administrative Agent
shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the
Administrative Agent has received notice from a Bank or either
Borrower referring to this Agreement, describing such Default
or Event of Default and stating that such notice is a "notice
of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give
notice thereof to the Banks. The Administrative Agent shall
take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Majority Banks,
the Required Banks, or all Banks, as applicable; PROVIDED
that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of
the Banks.
9.6 NON-RELIANCE ON AGENTS AND OTHER BANKS. Each
Bank expressly acknowledges that neither any Agent nor any of
its respective officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations
or warranties to it and that no act by such Agent hereafter
taken, including any review of the affairs of the Borrowers,
shall be deemed to constitute any representation or warranty
by such Agent to any Bank. Each Bank represents to each Agent
that it has, independently and without reliance upon such
Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness
of each Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Bank also
represents that it will, independently and without reliance
upon each Agent or any other Bank, and based on such documents
and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement,
and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and
other condition and creditworthiness of the Borrowers. Except
for notices, reports and other documents expressly required to
be furnished to the Banks by any Agent hereunder, such Agent
shall not have any duty or responsibility to provide any Bank
with any credit or other information concerning the business,
operations, property, financial and other condition or
creditworthiness of either Borrower which may come into the
possession of such Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
9.7 INDEMNIFICATION. The Banks agree to indemnify
each Agent in its capacity as such (to the extent not
reimbursed by the Borrowers and without limiting the
obligation of the Borrowers to do so), ratably (as reasonably
determined by the Administrative Agent), from and
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against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the
payment of the Loans) be imposed on, incurred by or asserted
against such Agent in any way relating to or arising out of
this Agreement, or any documents contemplated by or referred
to herein or the transactions contemplated hereby or any
action taken or omitted by such Agent under or in connection
with any of the foregoing; PROVIDED that no Bank shall be
liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from
such Agent's gross negligence or wilful misconduct. The
agreements in this subsection 9.7 shall survive the payment of
the Loans and all other amounts payable hereunder.
9.8 AGENTS IN THEIR INDIVIDUAL CAPACITIES. Each
Agent and its respective affiliates may make loans to, accept
deposits from and generally engage in any kind of business
with the Borrowers as though such Agent were not an Agent
hereunder. With respect to its Loans made by it, each Agent
shall have the same rights and powers under this Agreement as
any Bank and may exercise the same as though it were not an
Agent, and the terms "Bank" and "Banks" shall include the
Administrative Agent and the Auction Agent in their respective
individual capacity.
9.9 SUCCESSOR AGENTS. Each Agent may resign as
Agent upon 30 days' notice thereof to the Borrowers and the
Banks. If any Agent shall resign as Agent under this
Agreement, then the Majority Banks shall appoint from among
the Banks a successor agent for the Banks which successor
agent shall be approved by the Borrowers, whereupon such
successor agent shall succeed to the rights, powers and duties
of the Administrative Agent, the Auction Agent or Canadian
Administrative Agent, as the case may be, and the term
"Administrative Agent", "Auction Agent" or "Canadian
Administrative Agent", as the case may be, shall mean such
successor agent effective upon its appointment, and the former
Agent's rights, powers and duties as Agent shall be
terminated, without any other or further act or deed on the
part of such former Agent or any of the parties to this
Agreement. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
SECTION 10. MISCELLANEOUS
10.1 AMENDMENTS AND WAIVERS. With the written
consent of the Majority Banks, the Administrative Agent and
the Borrowers may, from time to time, enter into written
amendments, supplements or modifications hereto for the
purpose of adding any provisions to this Agreement or changing
in any manner the rights of the Banks or of the Borrowers
hereunder, and with the consent of the Majority Banks the
Administrative Agent on behalf of the Banks may execute and
deliver to the Borrowers a written instrument waiving, on such
terms and conditions as the Administrative Agent may specify
in such instrument, any of the requirements of this Agreement
or any Default or Event of Default and its consequences;
PROVIDED, HOWEVER, that no such waiver, amendment, supplement
or modification shall (a) extend the maturity of any Loan, or
reduce the rate or extend the time of payment of interest
thereon, or reduce the principal
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amount thereof, or reduce the rate of any fee payable
hereunder or extend the time of payment thereof, in each case,
without the written consent of (i) with respect to any such
change to any Committed Rate Loan, each Bank and (ii) with
respect to any such change to any Bid Loan, the Bank which
made such Bid Loan, or (b) change the amount of any Bank's
Commitment or the terms of its obligation to make Loans
hereunder (other than in accordance with subsection 2.21) or
amend, modify or waive any provision of this subsection 10.1
or reduce the percentage specified in the definition of
Majority Banks or Required Banks, or consent to the assignment
or transfer by either Borrower of any of its rights and
obligations under this Agreement, in each case without the
written consent of each Bank, or (c) amend, modify or waive
any provision of Section 9 without the written consent of the
then Administrative Agent and Auction Agent and, if
applicable, any other Agent affected by such amendment,
modification or waiver, or (d) extend the Termination Date
with respect to any Bank without the written consent of such
Bank; and PROVIDED, FURTHER, HOWEVER, that no such waiver,
amendment, supplement or modification shall waive, amend,
supplement or otherwise modify subsection 2.16 or Section 8(B)
(2) without the written consent of the Required Banks. Any
such waiver and any such amendment, supplement or modification
shall apply equally to each of the Banks and shall be binding
upon the Borrowers, the Banks and the Agents. In the case of
any waiver, the Borrowers, the Banks and the Agents shall be
restored to their former position and rights hereunder, and
any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to
any subsequent or other Default or Event of Default, or impair
any right consequent thereon. Anything contained in the
foregoing to the contrary notwithstanding, the relevant
Borrower and the relevant Bank with respect to a Negotiated
Rate Loan may, from time to time, enter into amendments,
supplements or modifications for the purpose of adding any
provisions to such Negotiated Rate Loans or changing in any
manner the rights of such Bank and such Borrower thereunder
and such Bank may waive any of the requirements of such
Negotiated Rate Loan; PROVIDED, HOWEVER, that such Borrower
and such Bank shall notify the Administrative Agent in writing
of any extension of the maturity of such Negotiated Rate Loan
or reduction of the principal amount thereof; PROVIDED,
FURTHER, that such Borrower and such Bank shall not extend the
maturity of such Negotiated Rate Loan beyond the last day of
the Commitment Period.
10.2 NOTICES. All notices, requests and demands to
or upon the respective parties hereto to be effective shall be
in writing, by facsimile transmission, by telephone confirmed
in writing or by telegraph and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or
made when delivered by hand, or when deposited in the mail,
postage prepaid, or, in the case of facsimile transmission,
when received, or, in the case of telegraphic notice, when
delivered to the telegraph company or department, addressed as
follows in the case of the Borrowers, the Administrative
Agent, the Auction Agent and the Canadian Administrative Agent
and as set forth on Schedule III in the case of the other
parties hereto, or to such address or other address as may be
hereafter notified by the respective parties hereto:
Page 60
The Borrowers:
The Company: Deere & Company
Attention: Treasurer
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
The Capital
Corporation: ▇▇▇▇ Deere Capital Corporation
Attention: Manager
First ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: Deere & Company
Attention: Treasurer
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
The Administrative
Agent: The Chase Manhattan Bank
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 212-270-6041
with a copy to: The Chase Manhattan Bank
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
The Auction Agent: The Chase Manhattan Bank
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Page 61
The Canadian
Administrative Agent: The Toronto-Dominion Bank
Attention: Manager Agency
Agency Administration
Corporate and Investment Banking
Group
Toronto Dominion Center
Toronto Dominion Tower
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
PROVIDED that any notice, request or demand to or upon the
Administrative Agent, the Auction Agent or the Banks pursuant
to subsections 2.1, 2.2, 2.5, 2.6, 2.9, 2.11 and 9.9 shall not
be effective until received (including receipt by telephone if
permitted hereby).
10.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of either
Borrower, the Administrative Agent, the Auction Agent or any
Bank, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and
privileges provided by law.
10.4 PAYMENT OF EXPENSES AND TAXES. (a) The
Company agrees (i) to pay or reimburse the Administrative
Agent for all its out-of-pocket costs and expenses incurred in
connection with the preparation and execution of, and any
amendment, supplement or modification to, this Agreement and
any other documents prepared in connection herewith, and the
consummation of the transactions contemplated hereby and
thereby in such manner and in such amounts as shall be agreed
to in writing by the Company and the Administrative Agent,
(ii) to pay or reimburse the Administrative Agent for the
reasonable fees and disbursements of counsel to the
Administrative Agent incurred in connection with the
preparation and execution of, and any amendment, supplement,
modification to, this Agreement and other documents prepared
in connection herewith, and the consummation of the
transaction contemplated hereby and thereby, and (iii) to pay
or reimburse each Bank and each Agent for all its out-of-
pocket costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement
and any such other documents, including, without limitation,
fees and disbursements of counsel to each Agent and one
counsel representing the Banks.
(b) The Borrowers agree jointly and severally to
indemnify and hold harmless each Agent and each Bank against
any and all losses, claims, damages and liabilities (other
than in connection with actions, suits and proceedings by any
of the Banks against any of the other Banks), joint or
several, to which they or any of them may become subject
insofar as such losses, claims, damages and liabilities arise
out of, relate to or are based on this Agreement (including
Page 62
the responsibilities, duties and obligations of the Banks
hereunder and their agreement to make Loans hereunder) in
connection with any acquisition or proposed acquisition of any
securities or assets by a Borrower or any of its Subsidiaries,
and shall reimburse each such indemnified party for any legal
or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage or
liability, subject to the following paragraph. This indemnity
agreement shall be in addition to any liability which either
Borrower may otherwise have.
(c) Promptly after receipt by an indemnified party
under subsection 10.4(b) of written notice of any loss, claim,
damage or liability in respect of which indemnity may be
sought by it hereunder, such indemnified party will, if a
claim is to be made against the Borrowers, notify the
Borrowers thereof in writing; but the omission so to notify
the Borrowers will not relieve the Borrowers from any
liability (otherwise than under this subsection 10.4) which
they may have to any indemnified party except as may be
required or provided otherwise than under this subsection
10.4. Thereafter, the indemnified party and the Borrowers
shall consult, to the extent appropriate, with a view to
minimizing the cost to the Borrowers of their obligations
hereunder. In case any indemnified party receives written
notice of any loss, claim, damage or liability in respect of
which indemnity may be sought hereunder by it and it notifies
the Borrowers thereof, the Borrowers will be entitled to
participate therein and, to the extent that they may elect by
written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel reasonably
satisfactory at all times to such indemnified party; PROVIDED,
HOWEVER, that (i) if the parties against whom any loss, claim,
damage or liability arises include both the indemnified party
and a Borrower or any Subsidiary of a Borrower and the
indemnified party shall have reasonably concluded that there
may be legal defenses available to it or other indemnified
parties which are different from or additional to those
available to a Borrower or any Subsidiary of a Borrower and
may conflict therewith, the indemnified party or parties shall
have the right to select one separate counsel for such
indemnified party or parties to assume such legal defenses and
to otherwise participate in the defense of such loss, claim,
damage or liability on behalf of such indemnified party or
parties and (ii) if any loss, claim, damage or liability
arises out of actions brought by or for the benefit of a
Borrower or any Subsidiary of a Borrower, the indemnified
party or parties shall have the right to select their counsel
and to assume and direct the defense thereof and neither
Borrower shall be entitled to participate therein or assume
the defense thereof. Upon receipt of notice from the Borrowers
to such indemnified party of their election so to assume the
defense of such loss, claim, damage or liability and approval
by the indemnified party of counsel, the Borrowers shall not
be liable to such indemnified party under this subsection 10.4
for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed such
counsel in connection with the assumption of legal defenses in
accordance with the proviso to the next preceding sentence,
(ii) the Borrowers shall not have employed and continued to
employ counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the Borrowers
shall have authorized the employment of counsel for the
indemnified party at the expense of the Borrowers.
Page 63
(d) Notwithstanding any other provision contained
in this subsection 10.4, (i) the Borrowers shall not be liable
for any settlement, compromise or consent to the entry of any
order adjudicating or otherwise disposing of any loss, claim,
damage or liability effected without their consent and (ii)
after the Borrowers have assumed the defense of any loss,
claim, damage or liability under the preceding paragraph with
respect to any Bank, they will not settle, compromise or
consent to entry of any order adjudicating or otherwise
disposing thereof (1) if such settlement, compromise or order
involves the payment of money damages, except if the Borrowers
agree with such Bank to pay such money damages, and, if not
simultaneously paid, to furnish such Bank with satisfactory
evidence of their ability to pay such money damages, and (2)
if such settlement, compromise or order involves any relief
against such Bank, other than the payment of money damages,
except with the prior written consent of such Bank.
(e) The agreements in this subsection 10.4 shall
survive repayment of the Loans and all other amounts payable
hereunder.
10.5 SUCCESSORS AND ASSIGNS; PARTICIPATIONS;
PURCHASING BANKS. (a) This Agreement shall be binding upon
and inure to the benefit of the Borrowers, the Banks, the
Agents and their respective successors and assigns, EXCEPT
THAT the Borrowers may not assign or transfer any of their
rights or obligations under this Agreement without the prior
written consent of each Bank.
(b) Any Bank may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time sell to one or more banks or other financial
institutions ("PARTICIPANTS") participating interests in the
Loans, Commitments and other interests of such Bank hereunder.
In the event of any such sale by a Bank of participating
interests to a Participant, such Bank's obligations under this
Agreement to the other parties to this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the
performance thereof, such Bank shall remain the holder of any
such Loan for all purposes under this Agreement, and the
Borrowers, the Administrative Agent and the Auction Agent
shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this
Agreement.
(c) Any Bank may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time assign to one or more banks or other
financial institutions ("LOAN ASSIGNEES") any Bid Loan or
Negotiated Rate Loan or portion thereof owing to such Bank,
pursuant to a Loan Assignment executed by the assignor Bank
and the Loan Assignee. Upon such execution, from and after the
Transfer Effective Date specified in such Loan Assignment, the
Loan Assignee shall, to the extent of the assignment provided
for in such Loan Assignment and to the extent permitted by
applicable law, be deemed to have the same rights and benefits
with respect to such Bid Loans and Negotiated Rate Loans and
the same obligation to share pursuant to subsection 10.6 as it
would have had if it were a Bank hereunder; PROVIDED, that
unless such Loan Assignment shall otherwise specify and a copy
of such Loan Assignment shall have been delivered to the
Administrative Agent for its acceptance and recording in the
Register in accordance with subsection 10.5(f), the assignor
Bank shall act as collection agent for the Loan Assignee, and
in the case of Bid Loans, the Administrative Agent
Page 64
shall pay all amounts received from the relevant Borrower
which are allocable to the assigned Bid Loan directly to the
assignor Bank without any further liability to the relevant
Loan Assignee, and, in the case of Negotiated Rate Loans, the
relevant Borrower shall pay all amounts due under the assigned
Negotiated Rate Loan directly to the assignor Bank without any
further liability to the Loan Assignee. At the request of any
Loan Assignee, on or promptly after the Transfer Effective
Date specified in such Loan Assignment, the relevant Borrower,
at its own expense, shall execute and deliver to the Loan
Assignee a promissory note with respect to the Bid Loans or
Negotiated Rate Loans to the order of such Loan Assignee in an
amount equal to the Bid Loan or Negotiated Rate Loan assigned.
Such note shall be dated the Borrowing Date in respect of such
Bid Loan or Negotiated Rate Loan and shall otherwise be in the
form of Exhibit M; PROVIDED, HOWEVER, that such Borrower shall
not be required to execute and deliver more than an aggregate
of two notes with respect to the Bid Loans of any Bank with
the same Interest Period at any time outstanding. A Loan
Assignee shall not, by virtue of such Loan Assignment, become
a party to this Agreement or have any rights to consent to or
refrain from consenting to any amendment, waiver or other
modification of any provision of this Agreement or any related
document; PROVIDED, that (i) the assignor Bank and the Loan
Assignee may, in their discretion, agree between themselves
upon the manner in which the assignor Bank will exercise its
rights under this Agreement and any related document, and (ii)
if a copy of such Loan Assignment shall have been delivered to
the Administrative Agent for its acceptance and recording in
the Register in accordance with subsection 10.5(f), neither
the principal amount of, the interest rate on, nor the
maturity date of, any Bid Loan or Negotiated Rate Loan
assigned to a Loan Assignee will be modified without written
consent of such Loan Assignee.
(d) Any Bank may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, with the consent of the Borrowers, sell to any Bank or
any affiliate thereof and to one or more additional banks or
other financial institutions ("PURCHASING BANKS"), all or
portions (subject to the last sentence of this subsection
10.5(d)) of its rights (which rights may include such Bank's
rights in respect of Loans it has disbursed) and obligations
under this Agreement, pursuant to a Commitment Transfer
Supplement, executed by such Purchasing Bank and such
transferor Bank (and, in the case of a Purchasing Bank that is
not then a Bank or an affiliate thereof, by the Borrowers and
the Administrative Agent), and delivered to the Administrative
Agent for its acceptance and recording in the Register;
PROVIDED, that in any event any such sale by a Tranche B Bank
of any portion of its rights (which rights may include such
Bank's rights in respect of Loans it has disbursed) and
obligations hereunder to a Purchasing Bank must be accompanied
by a concurrent assignment by such Tranche B Bank's Affiliated
Linked Lender to such Purchasing Bank (or to an affiliate of
such Purchasing Bank) of an equal percentage of such
Affiliated Linked Lender's rights (which rights may include
such Bank's rights in respect of "Loans" disbursed thereunder)
and obligations under the Linked Agreement. Upon such
execution, delivery, acceptance and recording, from and after
the Transfer Effective Date specified in such Commitment
Transfer Supplement, (i) the Purchasing Bank thereunder shall
be a party hereto and, to the extent provided in such
Commitment Transfer Supplement, have the rights and
obligations of a Bank hereunder with a Commitment as set forth
therein, and (ii) the transferor Bank thereunder shall cease
to have rights and obligations under this Agreement to which
the Purchasing Bank has succeeded (and, in the case of a
Commitment Transfer Supplement covering all or the remaining
portion of a transferor Bank's rights and
Page 65
obligations under this Agreement, such transferor Bank shall
cease to be a party hereto). Such Commitment Transfer
Supplement shall be deemed to amend this Agreement to the
extent, and only to the extent, necessary to reflect the
addition of such Purchasing Bank and the resulting adjustment
of Commitments and Commitment Percentages arising from the
purchase by such Purchasing Bank of a portion of the rights
and obligations of such transferor Bank under this Agreement.
On or promptly after the Transfer Effective Date specified in
such Commitment Transfer Supplement, the Purchasing Bank and
the Administrative Agent, on behalf of such Purchasing Bank,
shall open and maintain in the name of each Borrower a Loan
Account with respect to such Purchasing Bank's Committed Rate
Loans and Bid Loans to such Borrower. Anything contained in
this Agreement to the contrary notwithstanding, no Bank may
sell any portion (less than 100%) of its rights and
obligations under this subsection 10.5(d) to any bank or
financial institution if after giving effect to such sale the
Commitment of either of the selling and purchasing
institutions would be less than $5,000,000.
(e) The Administrative Agent shall maintain at its
address referred to in subsection 10.2 a copy of each Loan
Assignment and each Commitment Transfer Supplement delivered
to it and a register (the "REGISTER") for the recordation of
(i) the names and addresses of the Banks and the Commitment
of, and principal amount of the Loans (other than Negotiated
Rate Loans) owing to, each Bank from time to time, and (ii)
with respect to each Loan Assignment delivered to the
Administrative Agent, the name and address of the Loan
Assignee and the principal amount of each Bid Loan owing to
such Loan Assignee. The entries in the Register shall
constitute PRIMA FACIE evidence of the accuracy of the
information so recorded, and the Borrowers, the Administrative
Agent and the Banks may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded
therein for all purposes of this Agreement. The Register shall
be available for inspection by the Company or any Bank or Loan
Assignee at any reasonable time and from time to time upon
reasonable prior notice.
(f) Upon its receipt of a Loan Assignment executed
by an assignor Bank and a Loan Assignee, together with payment
to the Administrative Agent (by the assignor Bank or the Loan
Assignee, as agreed between them) of a registration and
processing fee of $3,500, the Administrative Agent shall (i)
accept such Loan Assignment, (ii) record the information
contained therein in the Register and (iii) give prompt notice
of such acceptance and recordation to the assignor Bank, the
Loan Assignee and the Borrowers. Upon its receipt of a
Commitment Transfer Supplement executed by a transferor Bank
and a Purchasing Bank (and, in the case of a Purchasing Bank
that is not then a Bank or an affiliate thereof, by the
Borrowers and the Administrative Agent) together with payment
to the Administrative Agent (by the transferor Bank or the
Purchasing Bank, as agreed between them) of a registration and
processing fee of $3,500 for each Purchasing Bank listed in
such Commitment Transfer Supplement, the Administrative Agent
shall (A) accept such Commitment Transfer Supplement, (B)
record the information contained therein in the Register and
(C) give prompt notice of such acceptance and recordation to
the Banks and the Borrowers.
(g) The Company authorizes each Bank to disclose to
any Participant, Loan Assignee or Purchasing Bank (each, a
"TRANSFEREE") and any prospective Transferee any and all
financial information in such Bank's possession concerning the
Borrowers and their Subsidiaries
Page 66
which has been delivered to such Bank by or on behalf of the
Borrowers pursuant to this Agreement or in connection with
such Bank's credit evaluation of the Borrowers and their
Subsidiaries prior to becoming a party to this Agreement,
PROVIDED that with respect to confidential data or information
described in subsection 10.7, such confidential data may be
disclosed only to (i) a Purchasing Bank and/or (ii) any other
Transferee or prospective Transferee with the Borrowers' prior
written consent, which consent shall not be unreasonably
withheld with respect to prospective Participants,
Participants, prospective Loan Assignees and Loan Assignees;
PROVIDED, HOWEVER, that such Bank shall not disclose any such
confidential data or information pursuant to this subsection
10.5(g) unless (i) it has notified the Purchasing Bank or
other Transferee or potential Transferee that such data or
information are confidential, such notification to be in
writing if such data or information are disclosed in writing
and orally if such data or information are disclosed orally,
and (ii) such Purchasing Bank, Transferee or potential
Transferee has agreed in writing to be bound by the provisions
of subsection 10.7.
(h) If, pursuant to this subsection, any loan
participation or series of loan participations is sold or any
interest in this Agreement is transferred to any Transferee,
the transferor Bank shall cause such Transferee, concurrently
with the effectiveness of such transfer or the first transfer
to occur in a series of transfers between such transferor Bank
and such Transferee, (i) to represent to the transferor Bank
(for the benefit of the transferor Bank, the Administrative
Agent and the Borrowers) either (A) that it is incorporated
under the laws of the United States or a state thereof or (B)
that under applicable law and treaties no taxes will be
required to be withheld by the Administrative Agent, the
Borrowers or the transferor Bank with respect to any payments
to be made to such Transferee in respect of the Loans, (ii) to
furnish to the transferor Bank, the Administrative Agent and
the Borrowers (A) either (I) a statement that it is
incorporated under the laws of the United States or a state
thereof or (II) if it is not so incorporated, a letter in
duplicate in the form of Exhibit J or Exhibit K, as
appropriate, and two duly completed copies of United States
Internal Revenue Service Form 4224 or 1001 or successor
applicable form, as the case may be, certifying in each case
that such Transferee is entitled to receive payments under
this Agreement without deduction or withholding of any United
States federal income taxes, and (B) an Internal Revenue
Service Form W-8 or W-9, or successor applicable form, as the
case may be, to establish an exemption from United States
backup withholding tax, and (iii) to agree (for the benefit of
the transferor Bank, the Administrative Agent and the
Borrowers) to provide the transferor Bank, the Administrative
Agent and the Borrowers a new Form 4224 or 1001 and Form W-8
or W-9, or successor applicable form or other manner of
certification, on or before the date that any such letter or
form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent letter and
form previously delivered by it, certifying in the case of a
Form 1001 or 4224 that such Transferee is entitled to receive
payments under this Agreement without deduction or withholding
of any United States federal income tax, and in the case of a
Form W-8 or W-9 establishing exemption from United States
backup withholding tax. The Administrative Agent shall not be
responsible for obtaining such documentation except from its
own Transferees.
(i) Nothing in this subsection 10.5 shall prohibit
any Bank from pledging or assigning its Loans to any Federal
Reserve Bank in accordance with applicable law.
Page 67
10.6 ADJUSTMENTS. Except as provided in subsection
2.12, if any Bank (a "BENEFITTED BANK") shall at any time
receive any payment of all or part of its Committed Rate
Loans, or interest thereon or facility fee hereunder, or
receive any collateral in respect thereof (whether voluntarily
or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in clause (e) of Section
8, or otherwise) in a greater proportion than any such payment
to and collateral received by any other Bank, if any, in
respect of such other Bank's Committed Rate Loans, or interest
thereon, or facility fee hereunder, such benefitted Bank shall
purchase for cash from the other Banks such portion of each
such other Bank's Committed Rate Loans, or shall provide such
other Banks with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such
benefitted Bank to share the excess payment or benefits of
such collateral or proceeds ratably with each of such other
Banks; PROVIDED, HOWEVER, that if all or any portion of such
excess payment or benefits is thereafter recovered from such
benefitted Bank, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrowers agree that each
Bank so purchasing a portion of another Bank's Committed Rate
Loans may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as
fully as if such Bank were the direct holder of such portion.
10.7 CONFIDENTIALITY. (a) Each of the Agents and
the Banks shall, subject as hereinafter provided, keep
confidential from any third party any data or information
received by them from the Borrowers pursuant to this Agreement
which, if provided in writing, is designated in writing as
such, and if provided orally, is designated orally as such by
the Borrowers except:
(i) any such data or information as is or
becomes publicly available or generally known otherwise than
as a result of any breach of the provisions of this subsection
10.7;
(ii) as required by law, rule, regulation or
official direction;
(iii) as may be necessary to protect as against
the Borrowers or either of them the interests of the Banks or
any of them under this Agreement;
(iv) to the extent permitted under subsection
10.5; and
(v) to the attorneys, accountants and
regulators of such Banks, and to each other Bank.
(b) Each of the Agents and the Banks shall use
their reasonable efforts to ensure that any confidential data
or information received by them from the Borrowers pursuant to
this Agreement which is disclosed to employees of such Agent
or Bank (as the case may be) is so disclosed only to the
extent necessary for purpose of the administration of this
Agreement and, in all cases, on the condition that such
information and data shall be kept confidential except for
such purpose.
Page 68
(c) The provisions of this subsection 10.7 shall
survive the payment in full of all amounts payable hereunder
and the termination of this Agreement.
10.8 COUNTERPARTS. This Agreement may be executed
by one or more of the parties to this Agreement on any number
of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by
all the parties shall be lodged with the Borrowers and the
Administrative Agent.
10.9 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
10.10 CONSENT TO JURISDICTION AND SERVICE OF
PROCESS. All judicial proceedings brought against the
Borrowers with respect to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State
of New York, and, by execution and delivery of this Agreement,
the Borrowers accept, for themselves and in connection with
their properties, generally and unconditionally, the non-
exclusive jurisdiction of the aforesaid courts and irrevocably
agree to be bound by any final judgment rendered thereby in
connection with this Agreement from which no appeal has been
taken or is available. The Borrowers irrevocably agree that
all process in any such proceedings in any such court may be
effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage
prepaid, to them at their addresses set forth in subsection
10.2 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto, such service
being hereby acknowledged by the Borrowers to be effective and
binding service in every respect. Each of the Borrowers, the
Agents and the Banks irrevocably waives any objection,
including without limitation, any objection to the laying of
venue or based on the grounds of forum non conveniens which it
may now or hereafter have to the bringing of any such action
or proceeding in any such jurisdiction. Nothing herein shall
affect the right to serve process in any other manner
permitted by law or shall limit the right of any Agent or any
Bank to bring proceedings against the Borrowers in the courts
of any other jurisdiction.
10.11 EXITING BANKS. Each Bank which after the
Closing Date no longer holds a Commitment (an "EXITING BANK")
is executing this Agreement solely for the purpose of
acknowledging that its Commitment will terminate on the
Closing Date upon repayment in full of all amounts owing to it
under the Existing Credit Agreement on the Closing Date. The
modifications effected by this Agreement are being approved by
Banks holding 100% of the Commitments after giving effect to
termination of the Commitments of the Exiting Banks on the
Closing Date. On the Closing Date, the Borrowers shall effect
such borrowings and repayments among the Banks (which need not
be PRO RATA among the Banks) so that, after giving effect
thereto, the respective principal amounts of the Committed
Rate Loans held by the Banks shall be PRO RATA according to
their respective Commitment Percentages, as amended hereby,
the Borrowers being obligated to pay any amounts due pursuant
to subsection 2.14 of this Agreement in connection with such
prepayments.
Page 69
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their
proper and duly authorized officers as of the day and year
first above written.
DEERE & COMPANY
Attested by:
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------- ----------------------
Title: Assistant Secretary Title: Treasurer
▇▇▇▇ DEERE CAPITAL CORPORATION
Attested by:
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------- ----------------------
Title: Assistant Secretary Title: Treasurer
Page 70
THE CHASE MANHATTAN BANK,
as Administrative Agent, as
Auction Agent, as a Managing
Agent and as a Bank
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Vice President
BANK OF AMERICA NT&SA, as
Documentation Agent, as a
Managing Agent and as a Bank
By: /S/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: Managing Director
DEUTSCHE BANK AG NEW YORK BRANCH,
as Syndication Agent and as a Managing Agent
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: Assistant Vice President
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCHES,
as a Bank
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: Assistant Vice President
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President
Page 71
THE TORONTO-DOMINION BANK, as
Canadian Administrative Agent and as
a Managing Agent
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Title: Manager
Agency, Syndicated Loans
TORONTO DOMINION (TEXAS), INC.,
as a Bank
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as a Managing Agent and as a Bank
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Title: Senior Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: Vice President
ABN AMRO BANK N.V.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Group Vice President
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Title: Senior Vice President and
Managing Director
Page 72
THE BANK OF NEW YORK, as a Co-Agent
and as a Bank
By: /S/ ▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: Vice President
CREDIT AGRICOLE INDOSUEZ, as a
Co-Agent and as a Bank
By: /S/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Title: First Vice President
By: /S/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: First Vice President
ROYAL BANK OF CANADA, as a
Co-Agent and as a Bank
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Title: Senior Manager
SOCIETE GENERALE,
CHICAGO BRANCH, as a
Co-Agent and as a Bank
By: /S/ ▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------
Title: Director
THE BANK OF TOKYO-MITSUBISHI,
LTD., CHICAGO BRANCH
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Title: Deputy General Manager
Page 73
BANQUE NATIONALE DE PARIS
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ DU ▇▇▇▇▇▇
Title: Executive Vice President
and General Manager
COMMONWEALTH BANK OF AUSTRALIA
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as a Co-Agent
and as a Bank
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Title: Managing Director
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Vice President
MELLON BANK, N.A.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: First Vice President
WACHOVIA BANK, N.A.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Vice President
THE FUJI BANK, LIMITED
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Title: Joint General Manager
Page 74
CITIBANK N.A., as a Co-Agent and as a Bank
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: Vice President
SUNTRUST BANK, ATLANTA
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President
NATIONSBANK, N.A., as an Exiting Bank
By: /S/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: Managing Director
CANADIAN IMPERIAL BANK OF
COMMERCE, as an Exiting Bank
By: /S/ E. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Title: Executive Director
LONG TERM CREDIT BANK OF JAPAN,
LTD., as an Exiting Bank
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------
Title: Senior Vice President
Page 75
SCHEDULE I
TERMS OF SUBORDINATION
"SENIOR INDEBTEDNESS" means the principal of (and
premium, if any) and unpaid interest on (a) indebtedness of
▇▇▇▇ Deere Capital Corporation (the "Capital Corporation")
(including indebtedness of others guaranteed by the Capital
Corporation), other than the indebtedness evidenced by the
Securities [such term to be defined as the debt to be issued
under the indenture or agreement to which this Schedule
relates] and the 8-5/8% Subordinated Debentures due 2019 of
the Capital Corporation, whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed,
for money borrowed, unless in the instrument creating or
evidencing the same or pursuant to which the same is
outstanding it is provided that such indebtedness is not
senior or prior in right of payment to the Securities, and (b)
renewals, extensions, modifications and refundings of any such
indebtedness.
SUBORDINATION
Section 1. AGREEMENT TO SUBORDINATE.
The Capital Corporation, for itself, its successors
and assigns, covenants and agrees, and each holder of
Securities, by such holder's acceptance thereof, likewise
covenants and agrees, that the payment of the principal of
(and premium, if any) and interest on each and all of the
Securities is hereby expressly subordinated, to the extent and
in the manner hereinafter set forth, in right of payment to
the prior payment in full of all Senior Indebtedness.
Section 2. DISTRIBUTION ON DISSOLUTION, LIQUIDATION
AND REORGANIZATION; SUBROGATION OF
SECURITIES.
Upon any distribution of assets of the Capital
Corporation upon any dissolution, winding up, liquidation or
reorganization of the Capital Corporation, whether in
bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors
or any other marshalling of the assets and liabilities of the
Capital Corporation or otherwise (subject to the power of a
court of competent jurisdiction to make other equitable
provisions reflecting the rights conferred in this Agreement
upon the Senior Indebtedness and the holders thereof with
respect to the Securities by a lawful plan of reorganization
under applicable bankruptcy law),
(a) the holders of Senior Indebtedness shall be entitled
to receive payment in full of the principal thereof (and
premium if any) and the interest due on the Senior
Indebtedness before the holders of the Securities are entitled
to receive any payment upon the principal of (or premium, if
any) or interest on indebtedness evidenced by the Securities;
and
(b) any payment or distribution of assets of the Capital
Corporation of any kind or character, whether in cash,
property or securities, to which the holders of the Securities
or any trustee therefor would be entitled except for the
provisions of this Article shall be paid by the liquidating
trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of
Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness may
have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the principal of (and premium,
if any) and interest on the Senior Indebtedness held or
represented by each holder of Senior Indebtedness, to the
extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such
Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Capital Corporation
of any kind or character, whether in cash, property or
securities, shall be received by any trustee for the holders
of the Securities or the holders of the Securities before all
Senior Indebtedness is paid in full, such payment or
distribution shall be paid over, upon written notice to any
trustee for the holders of the Securities, to the holders of
Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness may
have been issued, ratably as aforesaid, for application to the
payment of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
holders of the Securities shall be subrogated to the rights of
the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Capital
Corporation applicable to Senior Indebtedness until the
principal of (and premium, if any) and interest on the
Securities shall be paid in full and no such payments or
distributions to the holders of the Securities of cash,
property or securities otherwise distributable to the holders
of Senior Indebtedness shall, as between the Capital
Corporation, its creditors other than the holders of Senior
Indebtedness, and the holders of the Securities, be deemed to
be a payment by the Capital Corporation to or on account of
the Securities. It is understood that the provisions of this
Article are, and are intended, solely for the purpose of
defining the relative rights of the holders of the Securities,
on the one hand, and the holders of Senior Indebtedness, on
the other hand. Nothing contained in this Article or elsewhere
in this Agreement or in the Securities is intended to or shall
impair, as between the Capital Corporation, its creditors
other than the holders of Senior Indebtedness, and the holders
of the Securities, the obligation of the Capital Corporation,
which is unconditional
Page 2
and absolute, to pay to the holders of the Securities the
principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable
in accordance with their terms, or to affect the relative
rights of the holders of the Securities and creditors of the
Capital Corporation other than the holders of Senior
Indebtedness, nor shall anything herein or in the instruments
or other evidence of the Securities prevent any trustee for
the holders of the Securities or the holder of any Securities
from exercising all remedies otherwise permitted by applicable
law upon default under this Agreement or such instrument or
other evidence, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness in respect of
cash, property or securities of the Capital Corporation
received upon the exercise of any such remedy.
Section 3. NO PAYMENT ON SECURITIES IN EVENT OF
NON-PAYMENT WHEN DUE OF SENIOR
INDEBTEDNESS.
No payment by the Capital Corporation on account of
principal (or premium, if any), sinking funds, or interest on
the Securities shall be made unless full payment of amounts
then due for principal, premium, if any, sinking funds and
interest on Senior Indebtedness has been made or duly provided
for in money or money's worth.
Page 3
SCHEDULE II
COMMITMENTS
BANK COMMITMENT
PART A:
The Chase Manhattan Bank $ 167,500,000
Bank of America National Trust and
Savings Association 117,500,000
Deutsche Bank AG New York and/or
Cayman Islands Branches 152,500,000
The First National Bank of Chicago 152,500,000
▇▇▇▇▇▇ Guaranty Trust Company of New York 37,500,000
ABN AMRO Bank N.V. 60,000,000
The Bank of New York 125,000,000
Credit Agricole Indosuez 125,000,000
Societe Generale, Chicago Branch 125,000,000
The Bank of Tokyo-Mitsubishi, Ltd.,
Chicago Branch 37,500,000
Banque Nationale de Paris 62,500,000
Commonwealth Bank of Australia 37,500,000
Credit Suisse First Boston 212,500,000
Mellon Bank, N.A. 62,500,000
Wachovia Bank, N.A. 62,500,000
The Fuji Bank, Limited 22,500,000
Citibank N.A. 125,000,000
SunTrust Bank, Atlanta 37,500,000
______________
Total $1,722,500,000
PART B:
Toronto Dominion (Texas), Inc. $ 152,500,000
Royal Bank of Canada 125,000,000
______________
Total $ 277,500,000
SCHEDULE III
ADDRESSES FOR NOTICES
The Chase Manhattan Bank
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of America NT & SA
Attention: ▇▇▇ ▇▇▇▇▇
Mail Code 4976
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Deutsche Bank AG New York and/or
Cayman Islands Branches
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Toronto Dominion (Texas), Inc.
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
TD Securities (USA) Inc.
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The First National Bank of Chicago
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Guaranty Trust Company
of New York
Attention: ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ABN AMRO Bank N.V.
Attention: Loan Administration
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of New York
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇/24
Credit Agricole Indosuez
Attention: W. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Page 2
Royal Bank of Canada
New York Branch
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
for all matters except those related
to Bid Loans and Negotiated Rate Loans:
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
for matters related to Bid Loans
and Negotiated Rate Loans:
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Royal Bank of Canada
Attention: ▇.▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Societe Generale, Chicago Branch
Attention: ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of Tokyo-Mitsubishi, Ltd.,
Chicago Branch
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇/4711
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Page 3
Banque Nationale de Paris
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Commonwealth Bank of Australia
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Credit Suisse First Boston
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Risk Management
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Mellon Bank, N.A.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
One ▇▇▇▇▇▇ Bank Center, Room 4530
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wachovia Bank, N.A.
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The Fuji Bank, Limited
Attention: ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Page 4
Citibank N.A.
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ 35
Mail Zone 1
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SunTrust Bank, Atlanta
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Mail Code 1905
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Page 5
EXHIBIT A
[FORM OF BORROWING NOTICE]
_____________, ______
The Chase Manhattan Bank,
as Administrative Agent under the
Credit Agreement referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Cousomer
Gentlemen:
Pursuant to subsection 2.1(c) of the $2,000,000,000 Amended
and Restated Credit Agreement, dated as of February 23, 1999,
among DEERE & COMPANY, ▇▇▇▇ DEERE CAPITAL CORPORATION, the
Banks parties thereto, THE CHASE MANHATTAN BANK, as
Administrative Agent and as Auction Agent, BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as Documentation
Agent, DEUTSCHE BANK AG NEW YORK BRANCH, as Syndication Agent,
THE TORONTO-DOMINION BANK, as Canadian Administrative Agent,
the Managing Agents named therein and the Co-Agents named
therein (as the same may be amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), the
undersigned hereby requests that the following Committed Rate
Loans be made on __________, as follows:
(1). Total Amount of Committed Rate
Loans.................................$____________
(2). Amount of (1) to be allocated to
Eurodollar Loans......................$____________
(3). Amount of (1) to be allocated to
C/D Rate Loans........................$____________
(4). Amount of (1) to be allocated to
ABR Loans.............................$____________
(5A). Interest Periods and amounts to be
allocated thereto in respect of
Eurodollar Loans (amounts must total (2)):
(i) one month................................$____________
(ii) two months...............................$____________
(iii) three months.............................$____________
(iv) six months...............................$____________
Total Eurodollar Loans..........................$____________
(5B). Interest Periods and amounts to
be allocated thereto in respect
of C/D Rate Loans (amounts must
total (3)):
(i) 30 days..................................$____________
(ii) 60 days..................................$____________
(iii) 90 days..................................$____________
(iv) 180 days.................................$____________
Total C/D Rate Loans......................$____________
NOTE: THE AMOUNT APPEARING IN LINE (1) ABOVE
MUST BE AT LEAST EQUAL TO $25,000,000 AND
IN A WHOLE MULTIPLE OF $5,000,000 AND THE
AMOUNTS APPEARING IN EACH OTHER LINE ABOVE
MUST BE AT LEAST EQUAL TO $10,000,000 AND IN
A WHOLE MULTIPLE OF $1,000,000.
Terms defined in the Credit Agreement shall have the
same meanings when used herein.
Very truly yours,
[DEERE & COMPANY]
[▇▇▇▇ DEERE CAPITAL CORPORATION]
By: ____________________________
Title:
Page A-2
EXHIBIT B
[FORM OF BID LOAN REQUEST]
_________________, _________
The Chase Manhattan Bank,
as Auction Agent under the Credit
Agreement referred to below
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Cousomer
Dear Sirs:
Reference is made to the $2,000,000,000 Amended and
Restated Credit Agreement, dated as of February 23, 1999,
among DEERE & COMPANY, ▇▇▇▇ DEERE CAPITAL CORPORATION, the
Banks parties thereto, THE CHASE MANHATTAN BANK, as
Administrative Agent and as Auction Agent, BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as Documentation
Agent, DEUTSCHE BANK AG NEW YORK BRANCH, as Syndication Agent,
THE TORONTO-DOMINION BANK, as Canadian Administrative Agent,
the Managing Agents named therein and the Co-Agents named
therein (as the same may be amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"). Terms
defined in the Credit Agreement are used herein as therein
defined.
This is an [Index Rate] [Absolute Rate] Bid Loan
Request pursuant to subsection 2.2 of the Credit Agreement
requesting quotes for the following Bid Loans:
Aggregate Principal Amount $__________ $__________ $__________
Borrowing Date $__________ $__________ $__________
Interest Period $__________ $__________ $__________
Maturity Period $__________ $__________ $__________
Interest Payment Dates $__________ $__________ $__________
______________________________________________________________
Interest Rate Basis 360 day year
NOTE: THE AGGREGATE PRINCIPAL AMOUNTS APPEARING ABOVE
MUST BE IN THE AGGREGATE AT LEAST EQUAL TO
$25,000,000 AND IN A WHOLE MULTIPLE OF
$5,000,000.
Very truly yours,
[DEERE & COMPANY]
[▇▇▇▇ DEERE CAPITAL CORPORATION]
By: _____________________________
Title:
____________
Note: Pursuant to the Credit Agreement, a Bid Loan Request
may be transmitted by facsimile transmission, or by
telephone, immediately confirmed by facsimile
transmission. In any case, a Bid Loan Request shall
contain the information specified in the second
paragraph of this form.
Page B-2
EXHIBIT C
[FORM OF BID LOAN OFFER]
________________, _____
The Chase Manhattan Bank, as Auction
Agent under the Credit Agreement
referred to below
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention ▇▇▇▇▇ Cousomer
Dear Sirs:
Reference is made to the $2,000,000,000 Amended and
Restated Credit Agreement, dated as of February 23, 1999,
among DEERE & COMPANY, ▇▇▇▇ DEERE CAPITAL CORPORATION, the
Banks parties thereto, THE CHASE MANHATTAN BANK, as
Administrative Agent and as Auction Agent, BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as Documentation
Agent, DEUTSCHE BANK AG NEW YORK BRANCH, as Syndication Agent,
THE TORONTO-DOMINION BANK, as Canadian Administrative Agent,
the Managing Agents named therein and the Co-Agents named
therein (as the same may be amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"). Terms
defined in the Credit Agreement are used herein as therein
defined.
In accordance with subsection 2.2 of the Credit
Agreement, the undersigned Bid Loan Bank offers to make Bid
Loans thereunder in the following amounts with the following
maturity dates:
Borrowing Date: _______________________, _____
Aggregate Maximum Amount: $____________
MATURITY DATE 1:____:
Maximum Amount $______
Rate*______ Amount $______
Rate*______ Amount $______
MATURITY DATE 2:____:
Maximum Amount $______
Rate*______ Amount $______
Rate*______ Amount $______
MATURITY DATE 3:____:
Maximum Amount $______
Rate*______ Amount $______
Rate*______ Amount $______
Very truly yours,
[NAME OF BID LOAN BANK]
By:_____________________________
Name:
Title:
Telephone:
Facsimile:
* If Index Rate Bid Loan, insert percentage above or below
Eurodollar Rate.
Page C-2
EXHIBIT D
[FORM OF BID LOAN CONFIRMATION]
__________________, _____
The Chase Manhattan Bank, as Auction Agent
under the Credit Agreement referred
to below
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Cousomer
Dear Sirs:
Reference is made to the $2,000,000,000 Amended and
Restated Credit Agreement, dated as of February 23, 1999,
among DEERE & COMPANY, ▇▇▇▇ DEERE CAPITAL CORPORATION, the
Banks parties thereto, THE CHASE MANHATTAN BANK, as
Administrative Agent and as Auction Agent, BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as Documentation
Agent, DEUTSCHE BANK AG NEW YORK BRANCH, as Syndication Agent,
THE TORONTO-DOMINION BANK, as Canadian Administrative Agent,
the Managing Agents named therein and the Co-Agents named
therein (as the same may be amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"). Terms
defined in the Credit Agreement are used herein as therein
defined.
In accordance with subsection 2.2 of the Credit
Agreement, the undersigned accepts and confirms the offers by
Bid Loan Bank(s) to make Bid Loans to the undersigned on
_______________, ______ [Borrowing Date] under said subsection
2.2 in the (respective) amount(s) set forth on the attached
list of Bid Loans offered.
Very truly yours,
[DEERE & COMPANY]
[▇▇▇▇ DEERE CAPITAL CORPORATION]
By:_____________________________
Title:
[Borrower to attach Bid Loan Offer list prepared by Auction
Agent with accepted amount entered by the Borrower to right of
each Bid Loan Offer].
Page D-2
EXHIBIT E
[FORM OF LOAN ASSIGNMENT]
LOAN ASSIGNMENT
LOAN ASSIGNMENT, dated as of the date set forth in
Item 1 of Schedule I hereto, among the Assignor Bank set forth
in Item 2 of Schedule I hereto (the "ASSIGNOR BANK"), the Loan
Assignee set forth in Item 3 of Schedule I hereto (the "LOAN
ASSIGNEE"), and THE CHASE MANHATTAN BANK, as administrative
agent for the Banks under the Credit Agreement described below
(in such capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H :
WHEREAS, this Loan Assignment is being executed and
delivered in accordance with subsection of the $2,000,000,000
Amended and Restated Credit Agreement, dated as of February
23, 1999 among DEERE & COMPANY (the "COMPANY"), ▇▇▇▇ DEERE
CAPITAL CORPORATION (the "CAPITAL CORPORATION"), the Assignor
Bank and the other Banks party thereto, the Administrative
Agent, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Documentation Agent, DEUTSCHE BANK AG NEW YORK BRANCH, as
Syndication Agent, THE TORONTO-DOMINION BANK, as Canadian
Administrative Agent, the Managing Agents named therein and
the Co-Agents named therein (as from time to time amended,
supplemented or otherwise modified in accordance with the
terms thereof, the "CREDIT AGREEMENT"; terms defined therein
being used herein as therein defined); and
WHEREAS, the Assignor Bank has advanced to [the
Company] [the Capital Corporation] the Bid Loan or Negotiated
Rate Loan or portion thereof described in Item 5 of Schedule I
hereto (the "LOAN"), and the Assignor Bank is assigning the
Loan to the Loan Assignee pursuant to this Loan Assignment;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
1. The Assignor Bank acknowledges receipt from the
Loan Assignee of an amount equal to the purchase price, as
agreed between the Assignor Bank and the Loan Assignee, of the
outstanding principal amount of, and accrued interest on, the
Loan. The Assignor Bank hereby irrevocably sells, assigns and
transfers to the Loan Assignee without recourse,
representation or warranty, and the Loan Assignee hereby
irrevocably purchases, takes
and acquires from the Assignor Bank, the Loan, together with
all instruments, documents and collateral security pertaining
thereto.
2. (a) From and after the date set forth in Item 4
of Schedule I hereto (the "TRANSFER EFFECTIVE DATE"),
principal and interest that would otherwise be payable to or
for the account of the Assignor Bank pursuant to the Loan
shall, instead, be payable to or for the account of the Loan
Assignee.
(b) If Item 6 of Schedule I hereto contains payment
instructions for the Loan Assignee and if the Loan Assignee
delivers a copy of this Loan Assignment to the Administrative
Agent in accordance with subsection 10.5(f) of the Credit
Agreement at least 5 Business Days prior to the due date of
any payment to the Loan Assignee, the Loan Assignee hereby
instructs the Administrative Agent to pay all such amounts
payable to it pursuant to the provision of subparagraph (a) of
this paragraph 2 in accordance with such payment instructions.
If Item 6 of Schedule I hereto does not contain payment
instructions for the Loan Assignee (or a copy hereof is not
delivered to the Administrative Agent as aforesaid), the
Assignor Bank and the Loan Assignee agree that,
notwithstanding the provisions of subparagraph (a) of this
paragraph 2, the Assignor Bank is hereby appointed by the Loan
Assignee as its collection agent to receive from the
Administrative Agent, for and on behalf of and for the account
of the Loan Assignee, all amounts payable to or for the
account of the Loan Assignee under the Loan; the Assignor Bank
will immediately pay over to the Loan Assignee any such
amounts received by it, in like funds as received.
3. Each of the parties to this Loan Assignment agrees
that at any time and from time to time upon the written
request of any other party, it will execute and deliver such
further documents and do such further acts and things as such
other party may reasonably request in order to effect the
purposes of this Loan Assignment.
4. By executing and delivering this Loan Assignment,
the Assignor Bank and the Loan Assignee confirm to and agree
with each other and the Administrative Agent and the Banks as
follows: (i) other than the representation and warranty that
it is the legal and beneficial owner of the interest being
assigned hereby free and clear of any adverse claim, the
Assignor Bank makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties
or representations made in or in connection with the Credit
Agreement or any other instrument or document furnished
pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the
Credit Agreement or any other instrument or document furnished
pursuant thereto; (ii) the Assignor Bank makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or the
Capital Corporation or the performance or observance by the
Company or the Capital Corporation of any of its obligations
under the Credit Agreement or any other instrument or document
furnished pursuant thereto; (iii) the Loan Assignee confirms
that it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in
subsection 3.1 of the Credit Agreement (unless financial
statements referred to in subsection 5.1(a) of the Credit
Agreement have become available), the financial statements
delivered
Page E-2
pursuant to subsection 5.1 of the Credit Agreement, if any,
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to
enter into this Loan Assignment; (iv) the Loan Assignee will,
independently and without reliance upon the Administrative
Agent, the Assignor Bank or any other Bank and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in respect of
the Credit Agreement; and (v) the Loan Assignee appoints and
authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under the
Credit Agreement as are delegated to the Administrative Agent
by the terms thereof, together with such powers as are
reasonably incidental thereto, all in accordance with Section
9 of the Credit Agreement.
5. If the Loan Assignee is organized under the laws
of any jurisdiction other than the United States or any State
thereof, the Loan Assignee (i) represents to the Assignor Bank
(for the benefit of the Assignor Bank, the Administrative
Agent and [the Company] [the Capital Corporation]) that under
applicable law and treaties no taxes will be required to be
withheld by the Administrative Agent, [the Company] [the
Capital Corporation] or the Assignor Bank with respect to any
payments to be made to the Loan Assignee in respect of the
Loan, (ii) will furnish to the Assignor Bank, the
Administrative Agent and [the Company] [the Capital
Corporation], on or prior to the Transfer Effective Date, a
letter in duplicate in the form of Exhibit J or Exhibit K, as
appropriate, to the Credit Agreement and two duly completed
copies of either U.S. Internal Revenue Service Form 4224 or
U.S. Internal Revenue Service Form 1001 (wherein the Loan
Assignee claims entitlement to complete exemption from U.S.
federal withholding tax on all interest payments under the
Loan), (iii) will furnish to the Assignor Bank, the
Administrative Agent and [the Company] [the Capital
Corporation], on or prior to the Transfer Effective Date
either U.S. Internal Revenue Service Form W-8 or U.S. Internal
Revenue Service Form W-9 (wherein the Loan Assignee claims
entitlement to complete exemption from U.S. federal backup
withholding tax on all interest payments under the Loan) and
(iv) agrees (for the benefit of the Assignor Bank, the
Administrative Agent and [the Company] [the Capital
Corporation]) to provide the Assignor Bank, the Administrative
Agent and [the Company] [the Capital Corporation] a new Form
4224 or Form 1001 and Form W-8 or W-9 or successor applicable
form or other manner of certification on or before the
expiration or obsolescence of, or after the occurrence of any
event requiring a change in, any previously delivered letter
or form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly
executed and completed by the Loan Assignee, and comply from
time to time with all applicable U.S. laws and regulations
with regard to such withholding tax exemption and such backup
withholding tax exemption.
6. The Loan Assignee agrees to be bound by subsection
10.7 of the Credit Agreement relating to confidentiality.
7. This Loan Assignment shall be governed by, and
construed and interpreted in accordance with, the law of the
State of New York.
Page E-3
IN WITNESS WHEREOF, the parties hereto have caused
this Loan Assignment to be executed by their respective duly
authorized officers on Schedule I hereto as of the date set
forth in Item 1 of Schedule I hereto.
Page E-4
SCHEDULE I
TO LOAN
ASSIGNMENT
Item 1 (Date of Loan Assignment): [Insert date of Loan
Assignment]
Item 2 (Assignor Bank): [Insert name of Assignor
Bank]
Item 3 (Loan Assignee): [Insert name, address,
telephone and telex
numbers and name of
contact party of Loan
Assignee]
Item 4 (Transfer Effective Date): [Insert Transfer Effective
Date] [To be a date not
less than five Business
Days after date of Loan
Assignment]
Item 5 (Description of Loan):
a. Borrowing Date and Maturity Date of Bid Loan or
Negotiated Rate Loan:
b. Principal Amount of Loan:
Item 6 (Payment Instructions): [Complete only if payments
are to be made by
Administrative Agent to
Loan Assignee rather than
to Assignor Bank as
collection agent for Loan
Assignee; leave blank if
Assignor Bank is to act as
such collection agent]
Item 7 (Signatures):
_____________________________, as
Assignor Bank
By: _____________________________
Title:
_____________________________, as
Loan Assignee
By: _____________________________
Title:
ACCEPTED FOR RECORDATION
IN REGISTER:
THE CHASE MANHATTAN BANK, as Administrative
Agent
By: _____________________________
Title:
Page 2
EXHIBIT F
[FORM OF COMMITMENT TRANSFER SUPPLEMENT]
COMMITMENT TRANSFER SUPPLEMENT
COMMITMENT TRANSFER SUPPLEMENT, dated as of the date
set forth in Item 1 of Schedule I hereto, among the Transferor
Bank set forth in Item 2 of Schedule I hereto (the "TRANSFEROR
BANK"), each Purchasing Bank set forth in Item 3 of Schedule I
hereto (each, a "PURCHASING BANK"), DEERE & COMPANY, a
Delaware corporation (the "COMPANY"), ▇▇▇▇ DEERE CAPITAL
CORPORATION, a Delaware corporation (the "CAPITAL
CORPORATION"), and THE CHASE MANHATTAN BANK, as administrative
agent for the Banks under the Credit Agreement described below
(in such capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H :
WHEREAS, this Commitment Transfer Supplement is being
executed and delivered in accordance with subsection 10.5(d)
of the $2,000,000,000 Amended and Restated Credit Agreement,
dated as of February 23, 1999, among the Company, the Capital
Corporation, the Transferor Bank and the other Banks party
thereto, the Administrative Agent, Bank of America National
Trust and Savings Association, as Documentation Agent,
Deutsche Bank AG New York Branch, as Syndication Agent, The
Toronto-Dominion Bank, as Canadian Administrative Agent, the
Managing Agents named therein and the Co-Agents named therein
(as from time to time amended, supplemented or otherwise
modified in accordance with the terms thereof, the "CREDIT
AGREEMENT"; terms defined therein being used herein as therein
defined);
WHEREAS, each Purchasing Bank (if it is not already a
Bank party to the Credit Agreement) wishes to become a Bank
party to the Credit Agreement; and
WHEREAS, the Transferor Bank is selling and assigning
to each Purchasing Bank, rights, obligations and commitments
under the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
1. From and after the Transfer Effective Date set
forth in Item 4 of Schedule I hereto (the "TRANSFER EFFECTIVE
DATE"), each Purchasing Bank shall be a Bank party to the
Credit Agreement for all purposes thereof.
2. The Transferor Bank acknowledges receipt from each
Purchasing Bank of an amount equal to the purchase price, as
agreed between the Transferor Bank and such Purchasing Bank
(the "PURCHASE PRICE"), of the portion being purchased by such
Purchasing Bank (such Purchasing Bank's "PURCHASED
PERCENTAGE") of the outstanding Committed Rate Loans and other
amounts owing to the Transferor Bank under the Credit
Agreement (other than any Bid Loans and Negotiated Rate Loans
owing to the Transferor Bank). The Transferor Bank hereby
irrevocably sells, assigns and transfers to each Purchasing
Bank, without recourse, representation or warranty, and each
Purchasing Bank hereby irrevocably purchases, takes and
assumes from the Transferor Bank, such Purchasing Bank's
Purchased Percentage of the Commitments and the presently
outstanding Committed Rate Loans and other amounts owing to
the Transferor Bank under the Credit Agreement (other than any
Bid Loans and Negotiated Rate Loans owing to the Transferor
Bank) together with all instruments, documents and collateral
security pertaining thereto.
3. The Transferor Bank has made arrangements with
each Purchasing Bank with respect to (i) the portion, if any,
to be paid, and the date or dates for payment, by the
Transferor Bank to such Purchasing Bank of any fees heretofore
received by the Transferor Bank pursuant to the Credit
Agreement prior to the Transfer Effective Date and (ii) the
portion, if any, to be paid, and the date or dates for
payment, by such Purchasing Bank to the Transferor Bank of
fees or interest received by such Purchasing Bank pursuant to
the Credit Agreement from and after the Transfer Effective
Date.
4. (a) From and after the Transfer Effective Date,
principal, interest, fees and other amounts that would
otherwise be payable to or for the account of the Transferor
Bank pursuant to the Credit Agreement and the Committed Rate
Loans (other than any Bid Loans and Negotiated Rate Loans
owing to the Transferor Bank) shall, instead, be payable to or
for the account of the Transferor Bank and the Purchasing
Banks, as the case may be, in accordance with their respective
interests as reflected in this Commitment Transfer Supplement,
whether such amounts have accrued prior to the Transfer
Effective Date or accrue subsequent to the Transfer Effective
Date.
(b) The Transferor Bank and each Purchasing Bank
hereby agree and instruct the Administrative Agent that,
notwithstanding the provisions of subparagraph (a) of this
paragraph 4, on each date hereafter on which interest or fees
are payable under the Credit Agreement and the Committed Rate
Loans in respect of any period (an "ACCRUAL PERIOD") ending on
or prior to the Transfer Effective Date, any such interest or
fees payable to the Purchasing Bank on account of such Accrual
Period in respect of its interests as reflected in this
Commitment Transfer Supplement shall be paid over to the
Transferor Bank (and, if such interest or fees are not paid in
full when due, the payment over to the Transferor Bank shall
be ratable), and the Transferor Bank and such Purchasing Bank
will make appropriate arrangements for the payment to such
Page F-2
Purchasing Bank of the portion thereof owing to it to reflect
the amount, if any, included in the Purchase Price for
interest and fees in respect of any Accrual Period.
5. On or promptly after the Transfer Effective Date
specified in this Commitment Transfer Supplement, the
Purchasing Bank and the Administrative Agent, on behalf of
such Purchasing Bank, shall open and maintain in the name of
each Borrower a Loan Account with respect to such Purchasing
Bank's Committed Rate Loans and Bid Loans to such Borrower.
6. Concurrently with the execution and delivery
hereof, the Administrative Agent will, at the expense of the
Transferor Bank, provide to each Purchasing Bank (if it is not
already a Bank party to the Credit Agreement) conformed copies
of all documents delivered to the Administrative Agent on the
Closing Date in satisfaction of the conditions precedent set
forth in the Credit Agreement.
7. Each of the parties to this Commitment Transfer
Supplement agrees that at any time and from time to time upon
the written request of any other party, it will execute and
deliver such further documents and do such further acts and
things as such other party may reasonably request in order to
effect the purposes of this Commitment Transfer Supplement.
8. By executing and delivering this Commitment
Transfer Supplement, the Transferor Bank and each Purchasing
Bank confirm to and agree with each other and the
Administrative Agent and the Banks as follows: (i) other than
the representation and warranty that it is the legal and
beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, the Transferor Bank makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made
in or in connection with the Credit Agreement or any other
instrument or document furnished pursuant thereto or the
execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, the Committed
Rate Loans or any other instrument or document furnished
pursuant thereto; (ii) the Transferor Bank makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or the
Capital Corporation or the performance or observance by the
Company or the Capital Corporation of any of its obligations
under the Credit Agreement or any other instrument or document
furnished pursuant thereto; (iii) each Purchasing Bank
confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to
in subsection 3.1 of the Credit Agreement, the financial
statements delivered pursuant to subsection 5.1 of the Credit
Agreement, if any, and such other documents and information as
it has deemed appropriate to make its own credit analysis and
decision to enter into this Commitment Transfer Supplement;
(iv) each Purchasing Bank will, independently and without
reliance upon the Administrative Agent, the Transferor Bank or
any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the
Credit Agreement; (v) each Purchasing Bank appoints and
authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under the
Credit Agreement as are delegated to the Administrative Agent
by the terms thereof,
Page F-3
together with such powers as are reasonably incidental
thereto, all in accordance with Section 9 of the Credit
Agreement; and (vi) each Purchasing Bank agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement are required to be
performed by it as a Bank.
9. The Purchasing Bank represents that it is
organized under the laws of ___________________. If the
Purchasing Bank is organized under the laws of any
jurisdiction other than the United States or any State
thereof, the Purchasing Bank (i) represents to the Transferor
Bank (for the benefit of the Transferor Bank, the
Administrative Agent and the Borrowers) that under applicable
law and treaties no taxes will be required to be withheld by
the Administrative Agent, the Borrowers or the Transferor Bank
with respect to any payments to be made to the Purchasing Bank
in respect of the Loans, (ii) will furnish to the Transferor
Bank, the Administrative Agent and the Borrowers, on or prior
to the Transfer Effective Date, a letter in duplicate in the
form of Exhibit J or Exhibit K, as appropriate, to the Credit
Agreement and two duly completed copies of either U.S.
Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein the Purchasing Bank claims
entitlement to complete exemption from U.S. federal
withholding tax on all interest payments in respect of the
Loans), (iii) will furnish to the Transferor Bank, the
Administrative Agent and the Borrowers, on or prior to the
Transfer Effective Date either U.S. Internal Revenue Service
Form W-8 or U.S. Internal Revenue Service Form W-9 (wherein
the Purchasing Bank claims entitlement to complete exemption
from U.S. federal backup withholding tax on all interest
payments under the Loan) and (iv) agrees (for the benefit of
the Transferor Bank, the Administrative Agent and the
Borrowers), to provide the Transferor Bank, the Administrative
Agent and the Borrowers a new Form 4224 or Form 1001 and Form
W-8 or W-9 or successor applicable form or other manner of
certification on or before the expiration or obsolescence of,
or after the occurrence of any event requiring a change in,
any previously delivered letter or form and comparable
statements in accordance with applicable U.S. laws and
regulations and amendments duly executed and completed by the
Purchasing Bank, and comply from time to time with all
applicable U.S. laws and regulations with regard to such
withholding tax exemption and such backup withholding tax
exemption.
10. The Purchasing Bank agrees to be bound by
subsection 10.7 of the Credit Agreement relating to
confidentiality.
11. Schedule II hereto sets forth the revised
Commitments and Commitment Percentages of the Transferor Bank
and each Purchasing Bank as well as administrative information
with respect to each Purchasing Bank.
12. This Commitment Transfer Supplement shall be
governed by, and construed and interpreted in accordance with,
the law of the State of New York.
Page F-4
IN WITNESS WHEREOF, the parties hereto have caused
this Commitment Transfer Supplement to be executed by their
respective duly authorized officers on Schedule I hereto as of
the date set forth in Item 1 of Schedule I hereto.
Page F-5
SCHEDULE I
TO
COMMITMENT
TRANSFER
SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR COMMITMENT
TRANSFER SUPPLEMENT
Item 1 (Date of Commitment [Insert date of Commitment
Transfer Supplement): Transfer Supplement]
Item 2 (Transferor Bank): [Insert name of Transferor
Bank]
Item 3 (Purchasing Bank[s]): [Insert name[s] of
Purchasing Bank[s]]
Item 4 (Transfer Effective Date): [Insert Transfer Effective
Date:]
[To be a date not less than
five Business Days after
date of Commitment Transfer
Supplement]
Item 5 (Signatures of Parties
to Commitment Transfer
Supplement):
_____________________________,
as Transferor Bank
_____________________________
Title:
_____________________________,
as a Purchasing Bank
By:_____________________________
Title:
_____________________________,
as a Purchasing Bank
By: ___________________________
Title:
CONSENTED TO AND ACKNOWLEDGED:
DEERE & COMPANY
By: _____________________________________
Title:
▇▇▇▇ DEERE CAPITAL CORPORATION
By: _____________________________________
Title:
ACCEPTED FOR RECORDATION
IN REGISTER:
THE CHASE MANHATTAN BANK, as Administrative
Agent
By: _____________________________________
Title:
Page 2
SCHEDULE II
TO COMMITMENT
TRANSFER
SUPPLEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
[Name of Transferor Bank]
REVISED COMMITMENT AMOUNT: $_______________
REVISED COMMITMENT PERCENTAGE: ____________
[Name of Purchasing Bank]
NEW COMMITMENT AMOUNT: $_______________
NEW COMMITMENT PERCENTAGE: _______________
ADDRESS FOR NOTICES:
_____________________
_____________________
_____________________
Attn: ____________________
Telephone: ____________________
Facsimile: ____________________
[Name of Purchasing Bank]
NEW COMMITMENT AMOUNT: $_______________
NEW COMMITMENT PERCENTAGE: ________________
ADDRESS FOR NOTICES:
____________________
____________________
____________________
Attn: ____________________
Telephone: ____________________
Facsimile: __________________
EXHIBIT G
[FORM OF OPINION OF GENERAL COUNSEL
TO THE BORROWERS]
[Closing Date]
To each of the Banks parties to
the Credit Agreement referred to
below and to The Chase Manhattan
Bank, as Administrative Agent
DEERE & COMPANY AND
▇▇▇▇ DEERE CAPITAL CORPORATION
Gentlemen:
This opinion is furnished to you pursuant to
subsection 4.1(c) of the $2,000,000,000 Amended and Restated
Credit Agreement dated as of February 23, 1999 (the "Credit
Agreement") among Deere & Company (the "Company"), ▇▇▇▇ Deere
Capital Corporation (the "Capital Corporation", the Company
and the Capital Corporation being referred to herein
individually as a "Borrower" and collectively as the
"Borrowers"), the Banks parties thereto, The Chase Manhattan
Bank, as Administrative Agent and as Auction Agent, Bank of
America National Trust and Savings Association, as
Documentation Agent, Deutsche Bank AG New York Branch, as
Syndication Agent, The Toronto-Dominion Bank, as Canadian
Administrative Agent, the Managing Agents named therein and
the Co-Agents named therein for said Banks. Terms defined in
the Credit Agreement are used herein as therein defined.
I am General Counsel of the Company and have acted as
counsel for the Capital Corporation in this matter. I am
familiar with the corporate history and organization of each
Borrower and of its Subsidiaries and the proceedings relating
to the authorization, execution and delivery by each Borrower
of the Credit Agreement. In that connection I have examined
or caused to have examined:
1. The Credit Agreement;
2. The documents furnished by each of the Borrowers
pursuant to Section 4 of the Credit Agreement;
3. The Certificates of Incorporation of the
Borrowers and all amendments thereto (the
"Charters");
4. The bylaws of the Borrowers and all amendments
thereto (the "Bylaws"); and
5. Certificates of the Secretary of State of
Delaware, each dated a recent date, attesting to
the continued corporate existence and good
standing of the Borrowers in that State.
In addition, I have reviewed or caused to have
reviewed such of the corporate proceedings of the Borrowers,
and have examined such documents, corporate records, and other
instruments relating to the organization of the Borrowers and
their respective Subsidiaries and such other agreements and
instruments to which the Borrowers and their respective
Subsidiaries are parties, as I consider necessary as a basis
for the opinions hereinafter expressed. I have assumed the
due execution and delivery, pursuant to due authorization, of
the Credit Agreement by the Banks, the Administrative Agent,
the Syndication Agent, the Documentation Agent, the Auction
Agent, the Canadian Administrative Agent, the Managing Agents
and the Co-Agents, and the authenticity of all documents
submitted to me as originals and the conformity to the
original documents of all documents submitted to me as
certified, conformed or photostatic copies.
I am qualified to practice law in the State of
Illinois and do not purport to be an expert on, and do not
express any opinion herein concerning, any laws other than the
laws of the State of Illinois, the General Corporation Law of
the State of Delaware and the Federal laws of the United
States.
Based upon the foregoing and upon such investigation
as I have deemed necessary, I am of the following opinion:
1. Each Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware and has the corporate power and authority to
carry on its business as now being conducted and to own its
properties.
2. The execution, delivery and performance by each
Borrower of the Credit Agreement are within such Borrower's
corporate powers, have been duly authorized by all necessary
corporate action, and (i) do not contravene, or constitute a
default under the Charter or the Bylaws of such Borrower, any
judgment, law, rule or regulation applicable to such Borrower,
or any Contractual Obligation by which such Borrower is bound
or (ii) result in the creation of any lien, charge or
encumbrance upon any of its property or assets. The Credit
Agreement has been duly executed and delivered on behalf of
each Borrower.
Page G-2
3. No authorization, approval, or other action by,
and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery
and performance by each Borrower of the Credit Agreement.
4. There is no pending or, to the best of my
knowledge, threatened action or proceeding against either
Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator which is likely to have a
materially adverse effect upon the financial condition or
operations of such Borrower and its Subsidiaries taken as a
whole.
I am aware that Shearman & Sterling will rely upon the
opinions set forth in paragraphs 1, 2, and 3 of this opinion
in rendering their opinion furnished pursuant to subsection
4.1(c) of the Credit Agreement and consent thereto.
Very truly yours,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Page G-3
EXHIBIT H
[FORM OF OPINION OF SPECIAL NEW YORK COUNSEL
TO THE BORROWERS]
[Closing Date]
To each of the Banks parties to the
Credit Agreement referred to below,
to The Chase Manhattan Bank, as
Administrative Agent and as Auction
Agent, Bank of America National Trust
and Savings Association, as
Documentation Agent, Deutsche Bank
AG New York Branch, as Syndication
Agent, and The Toronto-Dominion
Bank, as Canadian Administrative Agent
DEERE & COMPANY
▇▇▇▇ DEERE CAPITAL CORPORATION
Ladies and Gentlemen:
This opinion is furnished to you pursuant to
subsection 4.1(c) of the $2,000,000,000 Amended and Restated
Credit Agreement, dated as of February 23, 1999 (the "Credit
Agreement"), among Deere & Company (the "Company"), ▇▇▇▇ Deere
Capital Corporation (the "Capital Corporation", the Company
and the Capital Corporation being referred to herein
individually as a "Borrower" and collectively as the
"Borrowers"), the Banks parties thereto, The Chase Manhattan
Bank, as Administrative Agent and as Auction Agent, Bank of
America National Trust and Savings Association, as
Documentation Agent, Deutsche Bank AG New York Branch, as
Syndication Agent, The Toronto-Dominion Bank, as Canadian
Administrative Agent, the Managing Agents named therein and
the Co-Agents named therein. Terms defined in the Credit
Agreement are used herein as therein defined.
We have acted as special New York counsel for the
Borrowers in connection with the preparation, execution and
delivery of the Credit Agreement.
In that connection we have examined:
(1) the Credit Agreement; and
(2) the documents furnished by each of the
Borrowers pursuant to Section 4.1 of the Credit Agreement.
We have assumed the due execution and delivery,
pursuant to due authorization, of the Credit Agreement by the
Banks and the Agents, the authenticity of all documents
submitted to us as originals and the conformity to the
original documents of all documents submitted to us as
certified, conformed or photostatic copies. We have also
assumed that the Banks and the Agents will perform the Credit
Agreement reasonably and in good faith and will act reasonably
and in good faith in taking action, exercising discretion and
making determinations thereunder. We have also assumed that
no Bid Loan or Negotiated Rate Loan made in an amount of less
than $2,500,000 will bear interest at a rate greater than 25%
per annum.
We are qualified to practice law in the State of New
York. We do not express any opinion herein concerning any
laws other than the laws of the State of New York and the
Federal laws of the United States. To the extent our opinions
expressed below involve conclusions as to matters set forth in
paragraph 1, 2 or 3 of the opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
General Counsel to the Borrowers, a copy of which is being
delivered to you today pursuant to Section 4.1(c) of the
Credit Agreement, we have, with your permission, relied on
such opinion.
Based upon the foregoing and upon such investigation
as we have deemed necessary, we are of the opinion that the
Credit Agreement constitutes the legal, valid and binding
obligation of each Borrower enforceable against such Borrower
in accordance with its terms, subject to (a) the effect of any
applicable bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers,
reorganization and moratorium) or similar law affecting
creditors' rights generally and (b) the effect of general
principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or
at law).
Very truly yours,
SHEARMAN & STERLING
Page H-2
EXHIBIT I
[FORM OF EXTENSION REQUEST]
____________________, ____
The Chase Manhattan Bank, as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: _________________________
Dear Sirs:
Reference is made to the $2,000,000,000 Amended and
Restated Credit Agreement, dated as of February 23, 1999 among
Deere & Company, ▇▇▇▇ Deere Capital Corporation, the Banks
parties thereto, The Chase Manhattan Bank, as Administrative
Agent and as Auction Agent, Bank of America National Trust and
Savings Association, as Documentation Agent, Deutsche Bank AG
New York Branch, as Syndication Agent, The Toronto-Dominion
Bank, as Canadian Administrative Agent, the Managing Agents
named therein and the Co-Agents named therein (as the same may
be amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein as therein defined.
This is an Extension Request pursuant to subsection
2.16 of the Credit Agreement requesting an extension of the
Termination Date to [INSERT REQUESTED TERMINATION DATE].
Please transmit a copy of this Extension Request to each of
the Banks.
Very truly yours,
DEERE & COMPANY
By:__________________________
Title:
▇▇▇▇ DEERE CAPITAL CORPORATION
By:__________________________
Title:
Page I-2
EXHIBIT J
[FORM OF TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form 1001 of
the Internal Revenue Service]
[Bank's Letterhead]
______________________, ______
Deere & Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
▇▇▇▇ Deere Capital Corporation
First ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager
Re: $2,000,000,000 Amended and Restated
Credit Agreement dated as of
February 23, 1999 with Deere & Company
AND ▇▇▇▇ DEERE CAPITAL CORPORATION
Dear Sirs:
In connection with the $2,000,000,000 Amended and
Restated Credit Agreement, dated as of February 23, 1999,
among Deere & Company, ▇▇▇▇ Deere Capital Corporation, the
Banks parties thereto, The Chase Manhattan Bank, as
Administrative Agent and as Auction Agent, Bank of America
National Trust and Savings Association, as Documentation
Agent, Deutsche Bank AG New York Branch, as Syndication Agent,
The Toronto-Dominion Bank, as
Canadian Administrative Agent, the Managing Agents named
therein and the Co-Agents named therein, we hereby represent
and warrant that [name of Bank, address] is a [name of
Country] corporation and is currently exempt from any U.S.
federal withholding tax on payments to it from U.S. sources by
virtue of compliance with the provisions of the Income Tax
Convention between the United States and [name of Country]
signed [date], [as amended]. Our fiscal year is the twelve
months ending [__________________________].
The undersigned (a) is a corporation organized under the laws
of [__________________] whose registered business is managed
or controlled in [________________], (b) [does not have a
permanent establishment or fixed base in the United States]
[does have a permanent establishment or fixed base in the
United States but the above Agreement is not effectively
connected with such permanent establishment or fixed base],
(c) is not exempt from tax on the income in [_____________]
and (d) is the beneficial owner of the income.
We enclose herewith two copies of Form 1001 of the U.S.
Internal Revenue Service.
Yours faithfully,
[NAME OF BANK]
By: _________________________
Title:
cc: The Chase Manhattan Bank, as Administrative Agent
Page J-2
EXHIBIT K
[FORM OF TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form 4224 of
the Internal Revenue Service]
[Bank's Letterhead]
_________________________, ____
Deere & Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
▇▇▇▇ Deere Capital Corporation
First ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager
Re: $2,000,000,000 Amended and Restated
Credit Agreement dated as of
February 23, 1999 with Deere & Company
AND ▇▇▇▇ DEERE CAPITAL CORPORATION
Dear Sirs:
In connection with the above $2,000,000,000 Amended
and Restated Credit Agreement, dated as of February 23, 1999
among Deere & Company, ▇▇▇▇ Deere Capital Corporation, the
Banks parties thereto, The Chase Manhattan Bank, as
Administrative Agent and as Auction Agent, Bank of America
National Trust and Savings Association, as Documentation
Agent, Deutsche Bank AG New York Branch, as Syndication Agent,
The Toronto-Dominion
Bank, as Canadian Administrative Agent, the Managing Agents
named therein and the Co-Agents named therein, we hereby
represent and warrant that [name of Bank, address] is a
corporation and is entitled to exemption from U.S. federal
withholding tax on payments to it under the Agreement by
virtue of Section 1441(c)(1) of the Internal Revenue Code of
the United States of America and Treasury Regulation Section
1.1441-4(a) thereunder.
We enclose herewith two copies of Form 4224 of the
U.S. Internal Revenue Service.
Yours faithfully,
[NAME OF BANK]
By _________________________
Title:
cc: The Chase Manhattan Bank, as Administrative Agent
Page K-2
EXHIBIT L
[FORM OF AGREEMENT]
THIS AGREEMENT, dated as of ________________,_____
("AGREEMENT"), among Deere & Company (the "COMPANY"), ▇▇▇▇
Deere Capital Corporation (the "CAPITAL CORPORATION"),
____________ ("NEW BANK") and The Chase Manhattan Bank, as
Administrative Agent for the Existing Banks referred to below.
W I T N E S S E T H :
WHEREAS, the Company, the Capital Corporation, the
several financial institutions parties thereto (the "EXISTING
BANKS"), The Chase Manhattan Bank, as Administrative Agent and
as Auction Agent, Bank of America National Trust and Savings
Association, as Documentation Agent, Deutsche Bank AG New York
Branch, as Syndication Agent, The Toronto-Dominion Bank, as
Canadian Administrative Agent, the Managing Agents named
therein and the Co-Agents named therein are parties to a
$2,000,000,000 Amended and Restated Credit Agreement, dated as
of February 23, 1999 (as the same may have been or may
hereafter be amended, supplemented or otherwise modified, the
"CREDIT AGREEMENT"; terms defined therein being used herein as
therein defined);
WHEREAS, subsection 2.19 of the Credit Agreement
provides that one or more financial institutions (which may be
Existing Banks) may be added as a "Bank" or "Banks" for
purposes of the Credit Agreement upon the cancellation of all
or a portion of the Commitments pursuant to subsection
2.13(a), (b) or (c), 2.16(c) or 2.17(b) of the Credit
Agreement or the expiration of all or a portion of the
Commitments pursuant to subsection 2.16(b) of the Credit
Agreement and the execution of an agreement in substantially
the form of this Agreement;
WHEREAS, the Borrowers have cancelled or there have
expired an aggregate principal amount of Commitments equal to
$______________ which have not heretofore been replaced (the
"CANCELLED COMMITMENTS"; the Banks that are maintaining or
have maintained the Cancelled Commitments being collectively
referred to as "CANCELLED BANKS"); such Cancelled Commitments
being on the date hereof, or on the date of notice of
cancellation hereof having been, utilized as follows:
PRINCIPAL AMOUNT LAST DAY OF
INTEREST PERIOD
I. UNUSED PORTION N/A
PRINCIPAL AMOUNT LAST DAY OF
INTEREST PERIOD
II. COMMITTED RATE LOANS
C/D Rate Loans
1
2
3
Eurodollar Loans
1
2
3
ABR Loans N/A
Page L-2
PRINCIPAL AMOUNT LAST DAY OF
INTEREST PERIOD
III. BID LOANS
1
2
3
IV. NEGOTIATED RATE LOANS NEGOTIATED RATE LOANS
1
2
3
WHEREAS, the cancellation of the Cancelled Commitments
is effective in accordance with the Credit Agreement; and
WHEREAS, [the Borrowers desire the New Bank to become,
and the New Bank is agreeable, to becoming, a "Bank" for
purposes of the Credit Agreement] [the New Bank is an Existing
Bank and the Borrowers desire the New Bank to increase, and
the New Bank is agreeable to increasing, its Commitment]* on
the terms contained herein.
_________________________
* As appropriate for New or Existing Banks.
Page L-3
NOW, THEREFORE, in consideration of the premises and
mutual covenants contained herein, the parties hereto agree as
follows:
1. BENEFITS OF AGREEMENT. The Borrowers, the
Administrative Agent and the New Bank hereby [agree that on
and as of the date hereof the New Bank shall be] [confirm that
the New Bank is] a "Bank" for all purposes and shall [continue
to] be bound by and entitled to the benefits of the Credit
Agreement [as if the New Bank had been named on the signature
pages thereof], PROVIDED that the New Bank shall not assume
and shall, except as herein provided, have no obligations in
respect of any Loans outstanding on the date hereof and made
by any [Existing Bank.] [Cancelled Bank.]*
2. COMMITMENT OF NEW BANK. The Borrowers, the
Administrative Agent and the New Bank hereby agree that on and
as of the dates set forth below the New Bank shall replace, as
specified herein,____% (such percentage being referred to as
the New Bank's "Percentage") of each utilization of the
Cancelled Commitments [set forth in the third recital hereof]
[set forth under the caption "Committed Rate Loans"] and that
the aggregate Commitment of the New Bank shall on and as of
the date hereof be $_____________**. In connection therewith,
the Borrowers, the Administrative Agent and the New Bank
hereby agree as follows***:
(i) for purposes of determining such New Bank's pro
rata share of each Committed Rate Loan borrowing advanced on
or after the date hereof such Bank's Commitment shall be equal
to $[SAME AS ABOVE];
(ii) the unused and available portion of such New
Bank's Commitment shall be deemed utilized by its Percentage
of the Committed Rate Loans made by the Cancelled Banks and
listed in the third recital hereof. In furtherance thereof,
the unused and available portion of such New Bank's Commitment
shall, on the earlier of (x) the last day of each Interest
Period specified for each outstanding Committed Rate Loan in
the third recital hereof (and the payment in full to the
Cancelled Banks of the principal thereof and accrued interest
thereon) and (y) the prepayment of the principal of such Loans
together with accrued interest thereon, automatically and
without any further action by any party increase by an amount
equal to the New Bank's Percentage of such Loan; and
(iii) [(A)] [concurrently with the execution hereof
the New Bank shall disburse to each Borrower in immediately
available funds such amount as shall be necessary so that the
ratio which each Bank's outstanding ABR Loans bears to all of
the outstanding ABR Loans equals the ratio which each Bank's
Commitment (determined, for the New Bank, in accordance with
clause (i) above) bears to all of the Commitments (determined,
for the New Bank, in accordance with the immediately foregoing
parenthetical);]
[(B)] [on the last day of each Interest Period for
each outstanding Eurodollar Loan and C/D Rate Loan,
automatically and without any further action by either
Borrower, the New
_________________________
* As appropriate for New or Existing Banks.
** Insert amount equal to sum of New Bank's existing
Commitment, if any, plus New Bank's Percentage of Cancelled
Commitments.
*** The following clauses (ii)-(iii) may be altered to
reflect the agreements among the Cancelled Bank, the New Bank
and the Borrowers provided such agreements do not adversely
affect any Existing Bank or the Administrative Agent.
Page L-4
Bank shall disburse to each Borrower in immediately available
funds such amounts as shall be necessary so that the ratio
which each Bank's outstanding Eurodollar Loans and C/D Rate
Loans, bears to all of the outstanding Eurodollar Loans and
C/D Rate Loans, respectively, equals the ratio which each
Bank's Commitment (determined, for the New Bank, in accordance
with clause (i) hereof) bears to all of the Commitments
(determined, for the New Bank, in accordance with the
immediately foregoing parenthetical);]
[(C)] [Funding of outstanding Bid Loans of Cancelled
Banks]*
[(D)] [Funding of outstanding Negotiated Rate Loans of
Cancelled Banks].*
3. REPRESENTATION AND WARRANTY OF BORROWERS. The
Borrowers hereby represent and warrant that after giving
effect to the provisions of paragraph 2 hereof the aggregate
principal amount of the Commitments of all Banks (including,
without limitation, the Commitment of the New Bank but
excluding the cancelled or expired portion of the Commitments
of the Cancelled Banks) under the Credit Agreement do not
exceed the aggregate principal amount of the Commitments in
effect immediately prior to the cancellation referred to in
the third recital hereof.
4. CONFIDENTIALITY. The New Bank agrees to [continue
to] be bound by the provisions of subsection 10.7 of the
Credit Agreement.
[5. TAXES. The New Bank (i) represents to the
Administrative Agent and the Borrowers that [it is
incorporated under the laws of the United States or a state
thereof][under applicable law and treaties no taxes will be
required to be withheld by the Administrative Agent or the
Borrowers with respect to any payments to be made to such New
Bank in respect of the Loans], (ii) represents that it has
furnished to the Administrative Agent and the Borrowers (A) [a
statement that it is incorporated under the laws of the United
States or a state thereof][a letter in duplicate in the form
of Exhibit [J][K] to the Credit Agreement and two duly
completed copies of United States Internal Revenue Service
Form [4224][1001][successor applicable form], certifying that
such New Bank is entitled to receive payments under the Credit
Agreement without deduction or withholding of any United
States federal income taxes], and (B) [an Internal Revenue
Service Form [W-8][W-9]] [successor applicable form] to
establish an exemption from United States backup withholding
tax, and (iii) agrees to provide the Administrative Agent and
the Borrowers a new Form [4224][1001] and Form [W-8][W-9], or
successor applicable form or other manner of certification, on
or before the date that any such letter or form expires or
becomes obsolete or after the occurrence of any event
requiring a change in the most recent letter and form
previously delivered by it, certifying in the case of a Form
[1001][4224] that it is entitled to receive payments under the
Credit Agreement without deduction or withholding of any
United States federal income tax, and in the case
_________________________
* To be completed upon agreement of Borrowers and New Bank.
Page L-5
of a Form [W-8][W-9] establishing exemption from United States
backup withholding tax.]*
[5][6]. MISCELLANEOUS. (a) This Agreement may be
executed by the parties hereto in separate counterparts and
all of the counterparts taken together shall constitute one
and the same instrument and shall be effective only upon
receipt by the Administrative Agent of all of the
counterparts.
(b) This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the
State of New York.
_________________________
* Use for non-Existing Banks.
Page L-6
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered as of the day and year
first above written.
DEERE & COMPANY
By: __________________________
Title:
▇▇▇▇ DEERE CAPITAL CORPORATION
By: __________________________
Title:
[NAME OF NEW BANK]
By: __________________________
Title:
[Address]
Telephone:
Facsimile:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By: __________________________
Title:
Page L-7
EXHIBIT M
[FORM OF BID LOAN OR NEGOTIATED RATE LOAN NOTE]
PROMISSORY NOTE
$__________ New York, New York
___________ __, ____
FOR VALUE RECEIVED, the undersigned, [DEERE & COMPANY]
[▇▇▇▇ DEERE CAPITAL CORPORATION], a Delaware corporation (the
"BORROWER"), hereby promises to pay on [insert maturity date
or dates] to the order of ________________ (the "BANK") at the
office of [The Chase Manhattan Bank located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ -- for Bid Loan Note] [Name
and address of Bank -- for Negotiated Rate Loan Note], in
lawful money of the United States of America and in
immediately available funds, the principal sum of
______________DOLLARS ($____________). The undersigned
further agrees to pay interest in like money at such office on
the unpaid principal amount hereof from time to time from the
date hereof [at the rate of ___% per annum -- for Bid Loan
Note] [specify rate for Negotiated Rate Loan Note] (calculated
on the basis of a year of 360 days and actual days elapsed)
until the due date hereof (whether at the stated maturity, by
acceleration, or otherwise) and thereafter at the rates
determined or agreed in accordance with subsection 2.2(e) of
the $2,000,000,000 Amended and Restated Credit Agreement,
dated as of February 23, 1999 (the "CREDIT AGREEMENT"), among
the Borrower, [Deere & Company] [▇▇▇▇ Deere Capital
Corporation], the Bank, the other financial institutions
parties thereto, The Chase Manhattan Bank, as Administrative
Agent and as Auction Agent, Bank of America National Trust and
Savings Association, as Documentation Agent, Deutsche Bank AG
New York Branch, as Syndication Agent, The Toronto-Dominion
Bank, as Canadian Administrative Agent, the Managing Agents
named therein and the Co-Agents named therein. Interest shall
be payable on _______________. This Note may be prepaid
pursuant to the provisions of subsection 2.6 of the Credit
Agreement.
This Note is one of the [Bid] [Negotiated Rate Loan]
Notes referred to in, is subject to and is entitled to the
benefits of, the Credit Agreement, which Credit Agreement,
among other things, contains provisions for acceleration of
the maturity hereof upon the occurrence of any one or more of
the Events of Default specified in the Credit Agreement.
Terms defined in the Credit Agreement are used herein
with their defined meanings unless otherwise defined herein.
This Note shall be governed by, and construed and interpreted
in accordance with, the law of the State of New York.
[DEERE & COMPANY]
[▇▇▇▇ DEERE CAPITAL CORPORATION]
By:_____________________________
Title:
Page M-2
EXHIBIT N
FORM OF
NEW BANK SUPPLEMENT
SUPPLEMENT, dated _______ __, to the $2,000,000,000
Amended and Restated Credit Agreement (as in effect on the
date hereof, the "Credit Agreement") dated as of February 23,
1999, among Deere & Company (the "Company"), ▇▇▇▇ Deere
Capital Corporation, the banks and other financial
institutions from time to time party thereto (each a "Bank,"
and together, the "Banks"), The Chase Manhattan Bank, as
Administrative Agent (in such capacity, the "Administrative
Agent") and as Auction Agent (in such capacity, the "Auction
Agent") for the Banks, Bank of America National Trust and
Savings Association, as Documentation Agent, Deutsche Bank AG
New York Branch, as Syndication Agent, The Toronto-Dominion
Bank, as Canadian Administrative Agent, the Managing Agents
named therein and the Co-Agents named therein. Unless the
context otherwise requires, all capitalized terms used herein
without definition shall have the meanings ascribed to them in
the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Credit Agreement provides in subsection
2.21 thereof that any bank or financial institution, although
not originally a party thereto, may become a party to the
Credit Agreement in accordance with the terms thereof by
executing and delivering to the Borrowers and the
Administrative Agent a supplement to the Credit Agreement in
substantially the form of this Supplement; and
WHEREAS, the undersigned was not an original party to
the Credit Agreement but now desires to become a party
thereto;
NOW, THEREFORE, the undersigned hereby agrees as
follows:
1. The undersigned agrees to be bound by the
provisions of the Credit Agreement and agrees that it shall,
on the date this Supplement is accepted by the Borrowers and
the Administrative Agent, become a Tranche [A] [B] Bank for
all purposes of the Credit Agreement to the same extent as if
originally a party thereto, with a Commitment of
$__________________.
2. The undersigned (a) represents and warrants that it
is legally authorized to enter into this Supplement; (b)
confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements delivered
pursuant to Section 5.1 thereof and such other documents and
information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Supplement;
(c) agrees that it has made and will, independently and
without reliance upon any Agent, Managing Agent or Co-Agent or
any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the
Credit Agreement or any instrument or document furnished
pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as administrative
agent on its behalf and to exercise such powers and discretion
under the Credit Agreement or any instrument or document
furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; (e) appoints and authorizes
the Auction Agent to take such action as auction agent on its
behalf and to exercise such powers and discretion under the
Credit Agreement or any instrument or document furnished
pursuant hereto or thereto as are delegated to the Auction
Agent by the terms thereof, together with such powers as are
incidental thereto; and (f) agrees that it will be bound by
the provisions of the Credit Agreement and will perform in
accordance with its terms all the obligations which by the
terms of the Credit Agreement are required to be performed by
it as a Bank including, without limitation, its obligation
pursuant to subsection 2.17(c) of the Credit Agreement.
3. The undersigned's address for notices for the
purposes of the Credit Agreement is as follows:
_________________________
Attention:_______________
_________________________
_________________________
Fax:_____________________
IN WITNESS WHEREOF, the undersigned has caused this
Supplement to be executed and delivered by a duly authorized
officer on the date first above written.
[NAME OF NEW BANK]
By:_________________________
Title:
Accepted this _____ day of
______________, ____
DEERE & COMPANY
By:_________________________
Title:
Page N-2
▇▇▇▇ DEERE CAPITAL CORPORATION
By:_________________________
Title:
Accepted this _____ day of
______________, ____
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:_________________________
Title:
Page N-3
EXHIBIT O
FORM OF
COMMITMENT INCREASE SUPPLEMENT
SUPPLEMENT, dated _______ __, to the $2,000,000,000
Amended and Restated Credit Agreement (as in effect on the
date hereof, the "Credit Agreement") dated as of February 23,
1999, among Deere & Company (the "Company"), ▇▇▇▇ Deere
Capital Corporation, the banks and other financial
institutions from time to time party thereto (each a "Bank,"
and together, the "Banks"), The Chase Manhattan Bank, as
Administrative Agent (in such capacity, the "Administrative
Agent") and as Auction Agent (in such capacity, the "Auction
Agent") for the Banks, Bank of America National Trust and
Savings Association, as Documentation Agent, Deutsche Bank AG
New York Branch, as Syndication Agent, The Toronto-Dominion
Bank, as Canadian Administrative Agent, the Managing Agents
named therein and the Co-Agents named therein. Unless the
context otherwise requires, all capitalized terms used herein
without definition shall have the meanings ascribed to them in
the Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the provisions of subsection 2.21
of the Credit Agreement, the undersigned may increase the
amount of its Commitment in accordance with the terms thereof
by executing and delivering to the Borrowers and the
Administrative Agent a supplement to the Credit Agreement in
substantially the form of this Supplement; and
WHEREAS, the undersigned now desires to increase the
amount of its Commitment under the Credit Agreement;
NOW THEREFORE, the undersigned hereby agrees as
follows:
1. The undersigned agrees, subject to the terms and
conditions of the Credit Agreement, that on the date this
Supplement is accepted by the Borrowers and the Administrative
Agent it shall have its Commitment increased by
$______________, thereby making the amount of its Commitment
$______________.
IN WITNESS WHEREOF, the undersigned has caused this
Supplement to be executed and delivered by a duly authorized
officer on the date first above written.
[NAME OF BANK]
By:_________________________
Title:
Accepted this _____ day of
______________, ____
DEERE & COMPANY
By:_________________________
Title:
▇▇▇▇ DEERE CAPITAL CORPORATION
By:_________________________
Title:
Accepted this _____ day of
______________, ____
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:_________________________
Title:
Page O-2