\nSection 5. AFFIRMATIVE COVENANTS………………………………. 36
\n 5.1 Financial Statements……………………………….. 36
\n 5.2 Certificates; Other Information……………………… 36
\n 5.3 Company Indenture Documents…………………………. 37
\n 5.4 Capital Corporation Indenture Documents………………. 37
\n 5.5 Notice of Default………………………………….. 37
\n 5.6 Ownership of Capital Corporation Stock……………….. 37
\n 5.7 Employee Benefit Plans……………………………… 37 <\/p>\nSection 6. NEGATIVE COVENANTS OF THE COMPANY……………………. 37
\n 6.1 Company May Consolidate, etc………………………… 37
\n 6.2 Limitation on Liens………………………………… 38
\n 6.3 Limitations on Sale and Lease-back Transactions……….. 41
\n 6.4 Consolidated Tangible Net Worth……………………… 42 <\/p>\n
Section 7. NEGATIVE COVENANTS OF THE CAPITAL CORPORATION…………. 42
\n 7.1 Fixed Charges Ratio………………………………… 42
\n 7.2 Consolidated Senior Debt to Consolidated Capital Base….. 42
\n 7.3 Limitation on Liens………………………………… 42
\n 7.4 Consolidation; Merger………………………………. 43 <\/p>\n
Section 8. EVENTS OF DEFAULT………………………………….. 44<\/p>\n
Section 9. THE AGENTS………………………………………… 46
\n 9.1 Appointment……………………………………….. 46
\n 9.2 Delegation of Duties……………………………….. 46
\n 9.3 Exculpatory Provisions……………………………… 46
\n 9.4 Reliance by Agents…………………………………. 47
\n 9.5 Notice of Default………………………………….. 47
\n 9.6 Non-Reliance on Agents and Other Banks……………….. 47
\n 9.7 Indemnification……………………………………. 48
\n 9.8 Agents in their Individual Capacities………………… 48
\n 9.9 Successor Agents…………………………………… 48 <\/p>\n
Section 10. MISCELLANEOUS……………………………………… 48
\n 10.1 Amendments and Waivers……………………………… 48
\n 10.2 Notices…………………………………………… 49
\n 10.3 No Waiver; Cumulative Remedies………………………. 50
\n 10.4 Payment of Expenses and Taxes……………………….. 51
\n 10.5 Successors and Assigns; Participations; Purchasing Banks.. 52
\n 10.6 Adjustments……………………………………….. 56
\n 10.7 Confidentiality……………………………………. 57
\n 10.8 Counterparts………………………………………. 57
\n 10.9 GOVERNING LAW……………………………………… 57
\n 10.10 Consent to Jurisdiction and Service of Process………… 58
\n<\/c><\/s><\/table>\n
ii<\/p>\n
SCHEDULES:<\/p>\n
Schedule I Terms of Subordination
\nSchedule II Commitments
\nSchedule III Addresses for Notices<\/p>\n
EXHIBITS:<\/p>\n
Exhibit A Form of Borrowing Notice
\nExhibit B Form of Bid Loan Request
\nExhibit C Form of Bid Loan Offer
\nExhibit D Form of Bid Loan Confirmation
\nExhibit E Form of Loan Assignment
\nExhibit F Form of Commitment Transfer Supplement
\nExhibit G Form of Opinion of General Counsel to the Company
\nExhibit H Form of Opinion of Special New York Counsel to the Borrowers
\nExhibit I Form of Extension Request
\nExhibit J Form of Form 1001 Tax Letter
\nExhibit K Form of Form 4224 Tax Letter
\nExhibit L Form of Agreement
\nExhibit M Form of Promissory Note
\nExhibit N Form of New Bank Supplement
\nExhibit O Form of Commitment Increase Supplement<\/p>\n
iii<\/p>\n
CREDIT AGREEMENT, dated as of February 20, 2001, among (a) DEERE & COMPANY, a Delaware corporation (the “Company”), (b) JOHN DEERE CAPITAL
\n ——-
\nCORPORATION, a Delaware corporation (the “Capital Corporation”), (c) the
\n ——————-
\nseveral financial institutions parties hereto (collectively, the “Banks”, and
\n —–
\nindividually, a “Bank”), (d) THE CHASE MANHATTAN BANK, as administrative agent
\n —-
\nhereunder (in such capacity, the “Administrative Agent”), (e) BANK OF AMERICA,
\n ——————–
\nN.A. and BANK ONE, NA, as documentation agents hereunder (in such capacity, the <\/p>\n
“Documentation Agents”), (f) DEUTSCHE BANK AG NEW YORK BRANCH, as syndication
\n ——————–
\nagent hereunder (in such capacity, the “Syndication Agent”), (g) the managing
\n —————–
\nagents identified on the signature pages hereof (collectively, the “Managing
\n ——–
\nAgents”) and (h) the co-agents identified on the signature pages hereof
\n——
\n(collectively, the “Co-Agents”).
\n ——— <\/p>\n
The parties hereto hereby agree as follows:<\/p>\n
Section 1. DEFINITIONS
\n ———–<\/p>\n
1.1 Defined Terms. As used in this Agreement, the following
\n ————-
\nterms have the following meanings:<\/p>\n
“ABR”: at any particular date, the higher of (a) the rate of
\n —
\n interest per annum publicly announced by Chase for such date as its prime
\n rate in effect at its principal office in New York City and (b) 0.5% per
\n annum above the rate set forth for such date or, if such date is not a
\n Business Day, the next preceding Business Day, opposite the caption
\n “Federal Funds (Effective)” in the weekly statistical release designated as
\n “H.15(519)” (or any successor publication) published by the Board of
\n Governors of the Federal Reserve System or, if such rate is not so
\n published for such date, the average of the quotations for such day on such
\n transactions received by the Administrative Agent from three Federal Funds
\n dealers of recognized standing selected by it. The prime rate is not
\n intended to be the lowest rate of interest charged by Chase in connection
\n with extensions of credit to debtors.<\/p>\n
“ABR Loans”: Committed Rate Loans at such time as they are made
\n ———
\n and\/or being maintained at a rate of interest based upon the ABR.<\/p>\n
“Absolute Rate Bid Loan”: any Bid Loan made pursuant to an
\n ———————-
\n Absolute Rate Bid Loan Request.<\/p>\n
“Absolute Rate Bid Loan Request”: any Bid Loan Request requesting
\n ——————————
\n the Banks to offer to make Bid Loans at an absolute rate (as opposed to a
\n rate composed of the Applicable Index Rate plus (or minus) a margin).
\n —- —– <\/p>\n
“Administrative Agent”: as defined in the preamble hereto.
\n ——————– <\/p>\n
“Agent”: the Administrative Agent, the Syndication Agent or any
\n —–
\n Documentation Agent, as the context shall require; together, the “Agents”.
\n —— <\/p>\n
2<\/p>\n
“Agreement”: this Credit Agreement, as amended, supplemented or
\n ———
\n modified from time to time.<\/p>\n
“Applicable Index Rate”: in respect of any Bid Loan requested
\n ———————
\n pursuant to an Index Rate Bid Loan Request, the Eurodollar Rate applicable
\n to the Interest Period for such Bid Loan.<\/p>\n
“Applicable Margin”: for each Type of Committed Rate Loan the rate
\n —————–
\n per annum set forth below:<\/p>\n
ABR Loans Eurodollar Loans
\n ——— —————-<\/p>\n
0% 0.175%<\/p>\n
“Attributable Debt”: as defined in subsection 6.2(b)(ii).
\n —————– <\/p>\n
“Bank” and “Banks”: as defined in the preamble hereto.
\n —- —– <\/p>\n
“Benefitted Bank”: as defined in subsection 10.6.
\n —————- <\/p>\n
“Bid Loan”: each loan (other than Negotiated Rate Loans) made
\n ——–
\n pursuant to subsection 2.2; the aggregate amount advanced by a Bid Loan
\n Bank pursuant to subsection 2.2 on each Borrowing Date shall constitute one
\n Bid Loan, or more than one Bid Loan if so specified by the relevant Loan
\n Assignee in its request for promissory notes pursuant to subsection
\n 10.5(c).<\/p>\n
“Bid Loan Banks”: the collective reference to each Bank designated
\n ————–
\n from time to time as a Bid Loan Bank by a Borrower (for purposes of Bid
\n Loans to such Borrower) by written notice to the Administrative Agent and
\n which has not been removed as a Bid Loan Bank by such Borrower by written
\n notice to the Administrative Agent (each of which notices the
\n Administrative Agent shall transmit to each such affected Bank).<\/p>\n
“Bid Loan Confirmation”: each confirmation by the Company or the
\n ———————
\n Capital Corporation of its acceptance of Bid Loan Offers, which Bid Loan
\n Confirmation shall be substantially in the form of Exhibit D and shall be
\n delivered to the Administrative Agent by facsimile transmission or by
\n telephone, immediately confirmed by facsimile transmission.<\/p>\n
“Bid Loan Offer”: each offer by a Bid Loan Bank to make Bid Loans
\n ————–
\n pursuant to a Bid Loan Request, which Bid Loan Offer shall contain the
\n information specified in Exhibit C and shall be delivered to the
\n Administrative Agent by facsimile transmission or by telephone, immediately
\n confirmed by facsimile transmission.<\/p>\n
“Bid Loan Request”: each request by a Borrower for Bid Loan Banks
\n —————-
\n to submit bids to make Bid Loans, which shall contain the information in
\n respect of such requested Bid Loans specified in Exhibit B and shall be
\n delivered to the Administrative Agent by facsimile transmission or by
\n telephone, immediately confirmed by facsimile transmission.<\/p>\n
3<\/p>\n
“Borrower”: the Company or the Capital Corporation; collectively,
\n ——–
\n the “Borrowers”.
\n ———- <\/p>\n
“Borrowing Date”: in respect of any Loan, the date such Loan is
\n ————–
\n made.<\/p>\n
“Business Day”: a day other than a Saturday, Sunday or other day on
\n ————
\n which commercial banks in New York City are authorized or required by law
\n to close.<\/p>\n
“Cancelled Bank”: any Bank that has the whole or any part of its
\n ————–
\n Commitment cancelled under subsection 2.13(a), (b) or (c), subsection
\n 2.16(c) or subsection 2.17(b) or the Commitment of which has expired under
\n subsection 2.16(a).<\/p>\n
“Capital Corporation”: as defined in the preamble hereto.
\n ——————- <\/p>\n
“Chase”: The Chase Manhattan Bank, a New York banking corporation.
\n —– <\/p>\n
“Closing Date”: the date on which each of the conditions precedent
\n ————
\n specified in subsection 4.1 shall have been satisfied (or compliance
\n therewith shall have been waived by the Majority Banks hereunder).<\/p>\n
“Co-Agents”: as defined in the preamble hereto.
\n ——— <\/p>\n
“Code”: the Internal Revenue Code of 1986, as amended from time to
\n —-
\n time. <\/p>\n
“Commitment”: as to any Bank, the amount set opposite such Bank’s
\n ———-
\n name on Schedule II, as such amount may be modified as provided herein;
\n collectively, as to all the Banks, the “Commitments”.
\n ———– <\/p>\n
“Commitment Expiration Date”: as defined in subsection 2.16(a).
\n ————————– <\/p>\n
“Commitment Increase Notice”: as defined in subsection 2.20(a).
\n ————————– <\/p>\n
“Commitment Increase Supplement”: as defined in subsection 2.20(c).
\n —————————— <\/p>\n
“Commitment Percentage”: as to any Bank at any time, the percentage
\n ———————
\n which such Bank’s Commitment at such time constitutes of all the
\n Commitments at such time; collectively, as to all the Banks, the
\n “Commitment Percentages”.
\n ———————- <\/p>\n
“Commitment Period”: the period from and including the Closing Date
\n —————–
\n to but not including the Termination Date or such earlier date on which the
\n Commitments shall terminate as provided herein.<\/p>\n
“Commitment Transfer Supplement”: a Commitment Transfer Supplement,
\n ——————————
\n substantially in the form of Exhibit F.<\/p>\n
“Committed Rate Loans” each loan made pursuant to subsection 2.1.
\n ——————– <\/p>\n
4<\/p>\n
“Commonly Controlled Entity”: in relation to a Borrower, an entity,
\n ————————–
\n whether or not incorporated, which is under common control with such
\n Borrower within the meaning of Section 414(b) or (c) of the Code.<\/p>\n
“Company”: as defined in the preamble hereto.
\n ——- <\/p>\n
“Consolidated Capital Base”: at a particular time for the Capital
\n ————————-
\n Corporation and its consolidated Subsidiaries, the sum of (a) the amount
\n shown opposite the item “Total stockholder’s equity” on the consolidated
\n balance sheet of the Capital Corporation and its consolidated Subsidiaries
\n plus (b) the principal amounts outstanding under the 8-5\/8% Subordinated
\n —-
\n Debentures due 2019 of the Capital Corporation (so long as the
\n subordination terms thereof continue to be as favorable to the
\n Administrative Agent and the Banks as in existence on the Closing Date) and
\n all indebtedness of the Capital Corporation and its consolidated
\n Subsidiaries for borrowed money subordinated (on terms no less favorable to
\n the Administrative Agent and the Banks than the terms of subordination set
\n forth on Schedule I) to the indebtedness which may be incurred hereunder by
\n the Capital Corporation, provided that the sum of clauses (a) and (b)
\n ——–
\n hereof as at the end of a fiscal quarter of the Capital Corporation and its
\n consolidated Subsidiaries (including the last quarter of a fiscal year of
\n the Capital Corporation and its consolidated Subsidiaries) shall be
\n determined by reference to the publicly available consolidated balance
\n sheet of the Capital Corporation and its consolidated Subsidiaries as at
\n the end of such fiscal quarter and after such adjustments, if any, as may
\n be required so that the sum of the amounts referred to in clauses (a) and
\n (b) is determined in accordance with GAAP.<\/p>\n
“Consolidated Net Worth”: as defined in subsection 6.2(b)(ii).
\n ———————- <\/p>\n
“Consolidated Senior Debt”: at a particular time for the Capital
\n ————————
\n Corporation and its consolidated Subsidiaries, indebtedness for borrowed
\n money other than the 8-5\/8% Subordinated Debentures due 2019 of the Capital
\n Corporation (so long as the subordination terms thereof continue to be as
\n favorable to the Administrative Agent and the Banks as such terms in
\n existence on the Closing Date) and any such indebtedness that is
\n subordinated, on terms no less favorable to the Administrative Agent and
\n the Banks than the terms of subordination set forth on Schedule I, to the
\n indebtedness which may be incurred hereunder by the Capital Corporation,
\n provided that the amount of such indebtedness for borrowed money (other
\n ——–
\n than such subordinated indebtedness) as at the end of a fiscal quarter of
\n the Capital Corporation and its consolidated Subsidiaries (including the
\n last quarter of a fiscal year of the Capital Corporation and its
\n consolidated Subsidiaries) shall be determined by reference to the publicly
\n available consolidated balance sheet of the Capital Corporation and its
\n consolidated Subsidiaries as at the end of such fiscal quarter and after
\n such adjustments, if any, as may be required so that such amount is
\n determined in accordance with GAAP.<\/p>\n
“Consolidated Tangible Net Worth”: at a particular time for a
\n ——————————-
\n Borrower and its consolidated Subsidiaries, the excess of the amount shown
\n opposite the item “Total stockholder’s equity” on the consolidated balance
\n sheet of such Borrower and its consolidated Subsidiaries over the aggregate
\n amount shown on such balance sheet for any <\/p>\n
5<\/p>\n
intangible assets, including, without limitation, goodwill, franchises,
\n licenses, patents, trademarks, trade-names, copyrights, service marks and
\n brand names, provided that such excess amount shall be determined (a) with
\n ——–
\n respect to the Company and its consolidated Subsidiaries as at the end of
\n any of their fiscal quarters (including the last quarter of any of their
\n fiscal years), by reference to the publicly available consolidated balance
\n sheet of the Company and its consolidated Subsidiaries as at the end of
\n such fiscal quarter and (b) with respect to the Capital Corporation and its
\n consolidated Subsidiaries as at the end of any of their fiscal quarters
\n (including the last quarter of any of their fiscal years), by reference to
\n the publicly available consolidated balance sheet of the Capital
\n Corporation and its consolidated Subsidiaries as at the end of such fiscal
\n quarter, in each such case after such adjustments, if any, as may be
\n required so that such excess is determined in accordance with GAAP.<\/p>\n
“Contractual Obligation”: as to any Person, any provision of any
\n ———————-
\n security issued by such Person or of any agreement, instrument or
\n undertaking to which such Person is a party or by which it or any of its
\n property is bound.<\/p>\n
“Deal Year”: as defined in subsection 2.16(c).
\n ——— <\/p>\n
“Debt”: as defined in subsection 6.2.
\n —- <\/p>\n
“Default”: any of the events specified in Section 8, whether or not
\n ——-
\n any requirement for the giving of notice, the lapse of time, or both, or
\n any other condition, event or act has been satisfied.<\/p>\n
“Documentation Agents”: as defined in the preamble hereto.
\n ——————– <\/p>\n
“Dollars” and “$”: dollars in lawful currency of the United States
\n ——- –
\n of America.<\/p>\n
“ERISA”: the Employee Retirement Income Security Act of 1974, as
\n —–
\n amended from time to time.<\/p>\n
“Eurodollar Loans”: Committed Rate Loans at such time as they are
\n —————-
\n made and\/or being maintained at a rate of interest based upon a Eurodollar
\n Rate.<\/p>\n
“Eurodollar Rate”: with respect to each day during each Interest
\n —————
\n Period for a Eurodollar Loan and for each Index Rate Bid Loan, (a) the rate
\n determined by the Administrative Agent to be the arithmetic mean of the
\n offered rates for deposits in Dollars for a period of such Interest Period
\n which appear on the Reuters Screen LIBO Page as of 11:00 a.m., London time,
\n on the date that is two Working Days prior to the beginning of such
\n Interest Period or (b) if fewer than two offered rates appear, the rate in
\n respect of such Interest Period will be the rate per annum equal to the
\n average (rounded upwards, if necessary, to the nearest whole multiple of
\n one sixteenth of one percent) of the respective rates notified to the
\n Administrative Agent by the Reference Banks as the rate at which such
\n Reference Bank is offered Dollar deposits two Working Days prior to the
\n beginning of such Interest Period in the interbank eurodollar market where
\n the eurodollar and foreign currency and exchange operations in respect of
\n its Eurodollar Loans are customarily conducted at or about 10:00 a.m., New
\n York City time, for <\/p>\n
6<\/p>\n
delivery on the first day of such Interest Period for the number of days
\n comprised therein and in an amount (i) in the case of Eurodollar Loans,
\n comparable to the amount of the Eurodollar Loan of such Reference Bank to
\n be outstanding during such Interest Period and (ii) in the case of an Index
\n Rate Bid Loan by any Bank, equal to the principal amount of all Index Rate
\n Bid Loans to which such Interest Period applies.<\/p>\n
“Event of Default”: any of the events specified in Section 8,
\n —————-
\n provided that any requirement for the giving of notice, the lapse of time,
\n ——–
\n or both, or any other condition, event or act has been satisfied.<\/p>\n
“Extension Request”: each request by the Borrowers made pursuant to
\n —————–
\n subsection 2.16 for the Banks to extend this Agreement, which shall contain
\n the information in respect of such extension specified in Exhibit I and
\n shall be delivered to the Administrative Agent in writing.<\/p>\n
“Facility Fee Rate”: 0.075%.
\n —————– <\/p>\n
“Fixed Charges”: for any particular period for the Capital
\n ————-
\n Corporation and its consolidated Subsidiaries, all of the Capital
\n Corporation’s and its consolidated Subsidiaries’ consolidated interest on
\n indebtedness for borrowed money, amortization of discounts of indebtedness
\n for borrowed money, the portion of rentals under financing leases deemed to
\n represent interest and rentals under operating leases, provided that such
\n ——–
\n amounts for a fiscal quarter of the Capital Corporation and its
\n consolidated Subsidiaries (including the last quarter of a fiscal year of
\n the Capital Corporation and its consolidated Subsidiaries) shall be
\n determined by reference to the publicly available consolidated statement of
\n income of the Capital Corporation and its consolidated Subsidiaries for or
\n covering such fiscal quarter and after such adjustments, if any, as may be
\n required so that such amounts are determined in accordance with GAAP.<\/p>\n
“Foreign Taxes”: as defined in subsection 2.17(a).
\n ————- <\/p>\n
“GAAP”: generally accepted accounting principles in the United
\n —-
\n States of America as applied in the preparation of financial statements of
\n the Company or the Capital Corporation, respectively, as of the fiscal year
\n ended October 31, 1998.<\/p>\n
“Governmental Authority”: any nation or government, any state or
\n ———————-
\n other political subdivision thereof, and any entity exercising executive,
\n legislative, judicial, regulatory or administrative functions of or
\n pertaining to government.<\/p>\n
“Important Property”: (a) any manufacturing plant, including land,
\n ——————
\n all buildings and other improvements thereon, and all manufacturing
\n machinery and equipment located therein, owned and used by the Company or a
\n Restricted Subsidiary primarily for the manufacture of products to be sold
\n by the Company or such Restricted Subsidiary, (b) the executive office and
\n administrative building of the Company in Moline, Illinois, and (c)
\n research and development facilities, including land and buildings and other
\n improvements thereon and research and development machinery and equipment
\n located therein, in each case, owned and used by the Company or a
\n Restricted Subsidiary; except in any case property of which the aggregate
\n fair value as determined by the Board of <\/p>\n
7<\/p>\n
Directors of the Company does not at the time exceed 1% of Consolidated Net
\n Worth, as shown on the audited consolidated balance sheet contained in the
\n latest annual report to stockholders of the Company.<\/p>\n
“Increasing Bank”: as defined in subsection 2.20(c).
\n ————— <\/p>\n
“Index Rate Bid Loan”: any Bid Loan made at an interest rate based
\n ——————-
\n upon the Applicable Index Rate.<\/p>\n
“Index Rate Bid Loan Request”: any Bid Loan Request requesting the
\n —————————
\n Banks to offer to make Index Rate Bid Loans at an interest rate equal to
\n the Applicable Index Rate plus (or minus) a margin.
\n —- —– <\/p>\n
“Interest Payment Date”: (a) as to any ABR Loan, the last Business
\n ———————
\n Day of each March, June, September and December, commencing on the first of
\n such days to occur after such ABR Loan is made or a Eurodollar Loan is
\n converted to an ABR Loan and (b) as to any Eurodollar Loan, the last day of
\n each Interest Period applicable thereto, provided that as to any Eurodollar
\n ——–
\n Loan in respect of which a Borrower has selected an Interest Period of six
\n months, interest shall also be paid on the day which is three months after
\n the beginning of such Interest Period.<\/p>\n
“Interest Period”: (a) with respect to any Eurodollar Loan, the
\n —————
\n period commencing on the Borrowing Date, the date any ABR Loan is converted
\n to a Eurodollar Loan or the date any Eurodollar Loan is continued as a
\n Eurodollar Loan, as the case may be, with respect to such Eurodollar Loan
\n and ending one, two, three or six months thereafter, as selected by a
\n Borrower in its notice of borrowing, conversion or continuance as provided
\n in subsection 2.1(c) or 2.9;<\/p>\n
(b) with respect to any Bid Loan, the period commencing on the
\n Borrowing Date with respect to such Bid Loan and ending on the date not
\n less than seven days nor more than six months thereafter, as specified by a
\n Borrower in its Bid Loan Request as provided in subsection 2.2(b); and<\/p>\n
(c) with respect to any Negotiated Rate Loan, the period or periods
\n commencing on the Borrowing Date with respect to such Negotiated Rate Loan
\n or the last day of any Interest Period with respect thereto and ending on
\n the dates as shall be mutually agreed upon between the relevant Borrower
\n and the relevant Bank;<\/p>\n
provided, that all of the foregoing provisions relating to Interest Periods
\n ——–
\n are subject to the following:<\/p>\n
(i) if any Interest Period pertaining to a Eurodollar Loan or
\n an Index Rate Bid Loan would otherwise end on a day which is not a
\n Working Day, that Interest Period shall be extended to the next
\n succeeding Working Day unless the result of such extension would be
\n to carry such Interest Period into another calendar month in which
\n event such Interest Period shall end on the immediately preceding
\n Working Day;<\/p>\n
8<\/p>\n
(ii) if any Interest Period pertaining to a Negotiated Rate
\n Loan or an Absolute Rate Bid Loan would otherwise end on a day which
\n is not a Business Day, that Interest Period shall be extended to the
\n next succeeding Business Day;<\/p>\n
(iii) any Interest Period pertaining to a Eurodollar Loan
\n having an Interest Period of one, two, three or six months or an
\n Index Rate Bid Loan having an Interest Period of one, two, three,
\n four, five or six months, that begins on the last Working Day of a
\n calendar month (or on a day for which there is no numerically
\n corresponding day in the calendar month at the end of such Interest
\n Period) shall end on the last Working Day of a calendar month;<\/p>\n
(iv) Interest Periods shall be deemed available only if the
\n Required Banks shall not have advised the Administrative Agent that
\n the Eurodollar Rate determined by the Administrative Agent on the
\n basis of the applicable quotes will not adequately and fairly
\n reflect the cost to such Banks of maintaining or funding their
\n Committed Rate Loans bearing interest based on the Eurodollar Rate
\n determined for such Interest Period. The Administrative Agent shall
\n notify the Borrowers and each Bank promptly after having been
\n advised by the Required Banks that a Eurodollar Rate will not so
\n adequately and fairly reflect such Banks’ costs as aforesaid. If a
\n requested Interest Period shall be unavailable in accordance with
\n the foregoing sentence, the proposed Borrower may (A) in accordance
\n with the provisions (including any requirements for notification) of
\n subsection 2.1 request, at its option, that the requested Committed
\n Rate Loans be made or maintained as ABR Loans or (B) withdraw the
\n request for such Committed Rate Loans for which the Interest Period
\n was unavailable by giving notice of such election to the
\n Administrative Agent in accordance with subsection 2.11; provided,
\n ——–
\n that if the Administrative Agent does not receive any notice
\n hereunder, such Borrower shall be deemed to have requested ABR
\n Loans;<\/p>\n
(v) with respect to Loans made by an Objecting Bank, no
\n Interest Periods with respect to such Loans shall end after such
\n Objecting Bank’s Commitment Expiration Date; and<\/p>\n
(vi) no Interest Period shall end after the Termination Date.<\/p>\n
“Loan Account”: as defined in subsection 2.3; collectively, the
\n ————
\n “Loan Accounts”.
\n ————- <\/p>\n
“Loan Assignees”: as defined in subsection 10.5(c).
\n ————– <\/p>\n
“Loan Assignment”: a Loan Assignment, substantially in the form of
\n —————
\n Exhibit E. <\/p>\n
“Loans”: the collective reference to the Committed Rate Loans, the
\n —–
\n Bid Loans and the Negotiated Rate Loans.<\/p>\n
“Majority Banks”: at any particular time, Banks having Commitment
\n ————–
\n Percentages aggregating more than fifty percent; provided, that at any time
\n ——–
\n after the termination of all the Commitments, “Majority Banks” shall mean
\n Banks holding Loans aggregating more than fifty percent in principal amount
\n of all outstanding Loans.<\/p>\n
9<\/p>\n
“Managing Agents”: as defined in the preamble hereto.
\n ————— <\/p>\n
“Margin Stock”: as defined in Regulation U of the Board of
\n ————
\n Governors of the Federal Reserve System.<\/p>\n
“Mortgage”: as defined in subsection 6.2.
\n ——– <\/p>\n
“Negotiated Rate Loan”: each Loan made to a Borrower by a Bank
\n ——————–
\n pursuant to a Negotiated Rate Loan Request in such principal amount, for
\n such number of Interest Periods (subject to the proviso to the definition
\n of “Interest Period” in this subsection 1.1) and having such interest
\n rate(s) and repayment terms as shall, in each case, be mutually agreed upon
\n between such Borrower and such Bank.<\/p>\n
“Negotiated Rate Loan Request”: each request by a Borrower for a
\n —————————-
\n Bank to make Negotiated Rate Loans, which shall be delivered to such Bank
\n in writing, by facsimile transmission, or by telephone, immediately
\n confirmed in writing, and which shall specify the amount to be borrowed and
\n the proposed Borrowing Date.<\/p>\n
“Net Earnings Available for Fixed Charges”: for any particular
\n —————————————-
\n period for the Capital Corporation and its consolidated Subsidiaries,
\n consolidated net earnings of the Capital Corporation and such Subsidiaries
\n for such period without deduction of Fixed Charges and without deduction of
\n federal, state or other income taxes, provided that such net earnings for a
\n ——–
\n fiscal quarter of the Capital Corporation and its consolidated Subsidiaries
\n (including the last quarter of a fiscal year of the Capital Corporation and
\n its consolidated Subsidiaries) shall be determined by reference to the
\n publicly available statement of income of the Capital Corporation and its
\n consolidated Subsidiaries for or covering such fiscal quarter and after
\n such adjustments, if any, as may be required so that such net earnings are
\n determined in accordance with GAAP, except that earned investment tax
\n credits may be included as revenue in the consolidated income statement of
\n the Capital Corporation and its consolidated Subsidiaries, rather than as
\n an offset against the provision for income taxes.<\/p>\n
“New Bank”: as defined in subsection 2.20(b).
\n ——– <\/p>\n
“New Bank Supplement”: as defined in subsection 2.20(b).
\n ——————- <\/p>\n
“Notes”: the collective reference to any promissory note evidencing
\n —–
\n Loans.<\/p>\n
“Objecting Banks”: as defined in subsection 2.16(a).
\n ————— <\/p>\n
“Offered Increase Amount”: as defined in subsection 2.20(a).
\n ———————– <\/p>\n
“Participants”: as defined in subsection 10.5(b).
\n ———— <\/p>\n
“Person”: an individual, partnership, corporation, business trust,
\n ——
\n joint stock company, trust, unincorporated association, joint venture,
\n Governmental Authority or other entity of whatever nature, provided that
\n ——–
\n for purposes of Section 8(h), Person shall <\/p>\n
10<\/p>\n
also include two or more entities acting as a syndicate or any other group
\n for the purpose of acquiring, holding or disposing of securities of the
\n Company.<\/p>\n
“Plan”: any pension plan which is covered by Title IV of ERISA and
\n —-
\n in respect of which either Borrower or a Commonly Controlled Entity is an
\n “employer” as defined in Section 3(5) of ERISA.<\/p>\n
“Purchasing Banks”: as defined in subsection 10.5(d).
\n —————- <\/p>\n
“Re-Allocation Date”: as defined in subsection 2.20(e).
\n —————— <\/p>\n
“Reference Banks”: Chase, Bank of America, N.A., Bank One, NA and
\n —————
\n Deutsche Bank AG New York Branch.<\/p>\n
“Register”: as defined in subsection 10.5(e).
\n ——– <\/p>\n
“Report Period”: as defined in subsection 2.18.
\n ————- <\/p>\n
“Reportable Event”: any of the events set forth in Section 4043(b)
\n —————-
\n of ERISA or the regulations thereunder.<\/p>\n
“Required Banks”: at a particular time, Banks having Commitment
\n ————–
\n Percentages aggregating at least 66-2\/3%; provided that (a) at any time
\n ——–
\n after the termination of all the Commitments, “Required Banks” means Banks
\n holding Loans aggregating at least 66-2\/3% in principal amount of all
\n outstanding Loans and (b) as used in subsection 2.16, “Required Banks”
\n means with respect to any Extension Request, at a particular time after the
\n Termination Date has been extended pursuant to such subsection, Banks (i)
\n which are not Objecting Banks with respect to any previous Extension
\n Request and (ii) which have Commitment Percentages aggregating at least 66-
\n 2\/3% of the aggregate Commitment Percentages of such non-Objecting Banks.<\/p>\n
“Requirement of Law”: as to any Person, the Certificate of
\n ——————
\n Incorporation and By-Laws or other organizational or governing documents of
\n such Person, and any law, treaty, rule or regulation, or determination of
\n an arbitrator or a court or other Governmental Authority, in each case
\n applicable to or binding upon such Person or any of its property or to
\n which such Person or any of its property is subject.<\/p>\n
“Reserves”: as defined in subsection 2.13(c).
\n ——– <\/p>\n
“Responsible Officer”: of a Borrower, the Chairman, the President,
\n ——————-
\n any Executive, Senior or other Vice President, the Treasurer and any
\n Assistant Treasurer of such Borrower.<\/p>\n
“Restricted Margin Stock”: any Margin Stock, the sale, pledge or
\n ———————–
\n other disposition of which by the Company or any of its Subsidiaries is in
\n any way restricted by an arrangement with any Bank or any affiliate thereof
\n to the extent that the value thereof (determined in accordance with
\n Regulation U of the Board of Governors of the Federal <\/p>\n
11<\/p>\n
Reserve System) does not exceed 25% of the value (determined in accordance
\n with such Regulation U) of all the assets subject to such restriction.<\/p>\n
“Restricted Subsidiary”: any Subsidiary of the Company incorporated
\n ———————
\n in the United States of America or Canada (a) which is engaged in, or whose
\n principal assets consist of property used by the Company or any Restricted
\n Subsidiary in, the manufacture of products within the United States of
\n America or Canada or in the sale of products principally to customers
\n located in the United States of America or Canada except any corporation
\n which is a retail dealer in which the Company has, directly or indirectly,
\n an investment, or (b) which the Company shall designate as a Restricted
\n Subsidiary in an officers’ certificate signed by two Responsible Officers
\n of the Company and delivered to the Administrative Agent.<\/p>\n
“Sale and Lease-back Transaction”: as defined in subsection 6.3.
\n ——————————- <\/p>\n
“Significant Subsidiary”: of a Borrower, any Subsidiary of such
\n ———————-
\n Borrower the assets, revenues or net worth of which is, at the time of
\n determination, equal to or greater than ten percent of the assets, revenues
\n or net worth, respectively, of such Borrower at such time.<\/p>\n
“Subsidiary”: of a Person, a corporation or other entity of which
\n ———-
\n securities or other ownership interests having ordinary voting power (other
\n than securities or other ownership interests having such power only by
\n reason of the happening of a contingency) to elect a majority of the board
\n of directors or other Persons performing similar functions are at the time
\n directly or indirectly owned by such Person or one or more Subsidiaries of
\n such Person, or by such Person and one or more Subsidiaries of such Person.<\/p>\n
“Syndication Agent”: as defined in the preamble hereto.
\n —————– <\/p>\n
“Termination Date”: the fifth anniversary of the Closing Date or
\n —————-
\n such later date as shall be determined pursuant to the provisions of
\n subsection 2.16 with respect to non-Objecting Banks.<\/p>\n
“Transferees”: as defined in subsection 10.5(g).
\n ———– <\/p>\n
“Transfer Effective Date”: as defined in each Commitment Transfer
\n ———————–
\n Supplement and each Loan Assignment.<\/p>\n
“Type”: as to any Committed Rate Loan, its nature as an ABR Loan or
\n —-
\n Eurodollar Loan.<\/p>\n
“Working Day”: any Business Day on which dealings in foreign
\n ———–
\n currencies and exchange between banks may be carried on in London, England
\n and New York, New York.<\/p>\n
1.2 Other Definitional Provisions. (a) All terms defined in this
\n —————————–
\nAgreement shall have the defined meanings when used in any certificate or other
\ndocument made or delivered pursuant hereto.<\/p>\n
12<\/p>\n
(b) As used herein and in any certificate or other document made
\nor delivered pursuant hereto, accounting terms relating to either Borrower and
\nits Subsidiaries not defined in subsection 1.1, and accounting terms partly
\ndefined in subsection 1.1 to the extent not defined, shall have the respective
\nmeanings given to them under GAAP.<\/p>\n
(c) The words “hereof”, “herein” and “hereunder” and words of
\nsimilar import when used in this Agreement shall refer to this Agreement as a
\nwhole and not to any particular provision of this Agreement, and Section,
\nsubsection, Schedule and Exhibit references are to this Agreement unless
\notherwise specified.<\/p>\n
(d) Unless otherwise qualified, all references to a “Subsidiary”
\nor to “Subsidiaries” in this Agreement shall refer to a Subsidiary or
\nSubsidiaries of the relevant Borrower.<\/p>\n
Section 2. THE COMMITTED RATE LOANS; THE BID LOANS; THE NEGOTIATED RATE
\n ————————————————————
\n LOANS; AMOUNT AND TERMS
\n ———————–<\/p>\n
2.1 The Committed Rate Loans. (a) During the Commitment Period,
\n ————————
\nsubject to the terms and conditions hereof, each Bank severally agrees to make
\nloans (individually, a “Committed Rate Loan”) to either Borrower from time to
\ntime in an aggregate principal amount for both Borrowers at any one time
\noutstanding not to exceed such Bank’s Commitment. During the Commitment Period,
\neither Borrower may use the Commitments by borrowing, repaying and reborrowing,
\nall in accordance with the terms and conditions hereof.<\/p>\n
(b) The Committed Rate Loans may be either (i) Eurodollar Loans,
\n(ii) ABR Loans or (iii) a combination thereof as determined by the relevant
\nBorrower.<\/p>\n
(c) Either Borrower may borrow Committed Rate Loans on any
\nWorking Day, if the borrowing is of Eurodollar Loans, or on any Business Day, if
\nthe borrowing is of ABR Loans; provided, however, that a Responsible Officer of
\n ——– ——-
\nsuch Borrower shall give the Administrative Agent irrevocable notice thereof
\n(which notice must be received by the Administrative Agent (i) prior to 12:00
\nNoon, New York City time, three Working Days prior to the requested Borrowing
\nDate, in the case of Eurodollar Loans, (ii) except as provided in clause (iii)
\nhereof below, prior to 12:00 Noon, New York City time, one Business Day prior to
\nthe requested Borrowing Date, in the case of ABR Loans and (iii) prior to 11:00
\nA.M., New York City time, on the requested Borrowing Date in the case of ABR
\nLoans up to an aggregate principal amount for both Borrowers not to exceed 25%
\nof the Commitments on such Borrowing Date). Each such notice shall be given in
\nwriting or by facsimile transmission substantially in the form of Exhibit A
\n(with appropriate insertions) or shall be given by telephone (specifying the
\ninformation set forth in Exhibit A) promptly confirmed by notice given in
\nwriting or by facsimile transmission substantially in the form of Exhibit A
\n(with appropriate insertions). On the day of receipt of any such notice from
\neither Borrower, the Administrative Agent shall promptly notify each Bank
\nthereof. Each Bank will make the amount of its share of each borrowing available
\nto the Administrative Agent for the account of such Borrower at the office of
\nthe Administrative Agent set forth in subsection 10.2 at 11:00 A.M. (or 2:00
\nP.M., in the case of ABR Loans requested pursuant to clause (iii) above), New
\nYork City time, on the Borrowing Date requested by such Borrower in funds
\nimmediately available to the Administrative Agent as the <\/p>\n
13<\/p>\n
Administrative Agent may direct. The proceeds of all such Committed Rate Loans
\nwill be made available promptly to such Borrower by the Administrative Agent at
\nthe office of the Administrative Agent specified in subsection 10.2 by crediting
\nthe account of such Borrower on the books of such office of the Administrative
\nAgent with the aggregate of the amount made available to the Administrative
\nAgent by the Banks and in like funds as received by the Administrative Agent.<\/p>\n
(d) All Committed Rate Loans made to each Borrower shall be
\nrepaid in full by such Borrower on or before the Termination Date.<\/p>\n
2.2 The Bid Loans; the Negotiated Rate Loans. (a) Either
\n —————————————-
\nBorrower may borrow Bid Loans or Negotiated Rate Loans from time to time on any
\nBusiness Day (in the case of Bid Loans made pursuant to an Absolute Rate Bid
\nLoan Request), any Working Day (in the case of Bid Loans made pursuant to an
\nIndex Rate Bid Loan Request) or, in the case of Negotiated Rate Loans, on such
\ndays as shall be mutually agreed upon between the relevant Borrower and the
\napplicable Bank, in each case during the Commitment Period and in the manner set
\nforth in this subsection 2.2 and in amounts such that the aggregate principal
\namount of Loans at any time outstanding shall not exceed the aggregate amount of
\nthe Commitments at such time. Notwithstanding any other provision of this
\nAgreement, the aggregate principal amount of the outstanding Bid Loans and\/or
\nNegotiated Rate Loans made by any Bank may at any time (but shall not be
\nrequired to) exceed the Commitment of such Bank so long as the aggregate
\noutstanding principal amount of all Loans does not at any time exceed the
\naggregate amount of the Commitments.<\/p>\n
(b) (i) Either Borrower shall request Bid Loans or Negotiated
\nRate Loans by delivering (A) in the case of an Index Rate Bid Loan, a Bid Loan
\nRequest to the Administrative Agent, c\/o The Chase Manhattan Bank, One Chase
\nManhattan Plaza, 8th Floor, New York, New York 10081, Attention: Chris Consomer,
\nTelephone: (212) 552-7259, Facsimile: (212) 552-5627, not later than 12:00 Noon
\n(New York City time) four Working Days prior to the proposed Borrowing Date, (B)
\nin the case of an Absolute Rate Bid Loan, a Bid Loan Request to the
\nAdministrative Agent at the address set forth in clause (A) of this subsection
\n2.2(b)(i) not later than 10:00 A.M. (New York City time) one Business Day prior
\nto the proposed Borrowing Date or (C) in the case of a Negotiated Rate Loan, a
\nNegotiated Rate Loan Request to any Bank at such time as the applicable Borrower
\nand the applicable Bank shall agree. Each Bid Loan Request may solicit bids for
\nBid Loans in an aggregate principal amount of $25,000,000 or an integral
\nmultiple of $5,000,000 in excess thereof and for not more than three alternative
\nInterest Periods for such Bid Loans. The Administrative Agent shall promptly
\nnotify each Bid Loan Bank by facsimile transmission or by telephone, immediately
\nconfirmed by facsimile transmission, of the contents of each Bid Loan Request
\nreceived by it.<\/p>\n
(ii) In the case of an Index Rate Bid Loan Request, upon receipt
\nof notice from the Administrative Agent of the contents of such Bid Loan
\nRequest, any Bid Loan Bank that elects, in its sole discretion, to do so, shall
\nirrevocably offer to make one or more Bid Loans at the Applicable Index Rate
\nplus or minus a margin for each such Bid Loan determined by such Bid Loan Bank,
\nin its sole discretion. Any such irrevocable offer shall be made by delivering a
\nBid Loan Offer to the Administrative Agent at the address set forth in clause
\n(i)(A) above before 10:30 A.M. (New York City time) three Working Days before
\nthe proposed Borrowing Date, <\/p>\n
14<\/p>\n
setting forth the maximum amount of Bid Loans for each Interest Period, and the
\naggregate maximum amount for all Interest Periods, which such Bank would be
\nwilling to make and the margin above or below the Applicable Index Rate at which
\nsuch Bid Loan Bank is willing to make each such Bid Loan. The Administrative
\nAgent shall advise the relevant Borrower before 11:00 A.M. (New York City time)
\nthree Working Days before the proposed Borrowing Date of the contents of each
\nsuch Bid Loan Offer received by it. If the Administrative Agent in its capacity
\nas a Bid Loan Bank shall, in its sole discretion, elect to make any such offer,
\nit shall advise such Borrower of the contents of its Bid Loan Offer before 10:15
\nA.M. (New York City time) three Working Days before the proposed Borrowing Date.<\/p>\n
(iii) In the case of an Absolute Rate Bid Loan Request, upon
\nreceipt of notice from the Administrative Agent of the contents of such Bid Loan
\nRequest, any Bid Loan Bank that elects, in its sole discretion, to do so, shall
\nirrevocably offer to make one or more Bid Loans at a rate or rates of interest
\nfor each such Bid Loan determined by such Bid Loan Bank in its sole discretion.
\nAny such irrevocable offer shall be made by delivering a Bid Loan Offer to the
\nAdministrative Agent at the address set forth in clause (i)(A) of this
\nsubsection 2.2(b) before 9:30 A.M. (New York City time) on the proposed
\nBorrowing Date, setting forth the maximum amount of Bid Loans for each Interest
\nPeriod, and the aggregate maximum amount for all Interest Periods, which such
\nBid Loan Bank would be willing to make and the rate or rates of interest at
\nwhich such Bid Loan Bank is willing to make each such Bid Loan. The
\nAdministrative Agent shall advise the relevant Borrower before 10:00 A.M. (New
\nYork City time) on the proposed Borrowing Date of the contents of each such Bid
\nLoan Offer received by it. If the Administrative Agent in its capacity as a Bid
\nLoan Bank shall, in its sole discretion, elect to make any such offer, it shall
\nadvise such Borrower of the contents of its Bid Loan Offer before 9:15 A.M. (New
\nYork City time) on the proposed Borrowing Date.<\/p>\n
(iv) The relevant Borrower shall before 11:30 A.M. (New York
\nCity time) three Working Days before the proposed Borrowing Date (in the case of
\nBid Loans requested by an Index Rate Bid Loan Request) and before 10:30 A.M.
\n(New York City time) on the proposed Borrowing Date (in the case of Bid Loans
\nrequested by an Absolute Rate Bid Loan Request) either, in its absolute
\ndiscretion:<\/p>\n
(A) cancel such Bid Loan Request by giving the Administrative
\n Agent telephone notice to that effect, or<\/p>\n
(B) accept one or more of the offers made by any Bid Loan Bank
\n or Bid Loan Banks pursuant to clause (ii) or clause (iii) of this
\n subsection 2.2(b), as the case may be, by giving telephone notice to the
\n Administrative Agent (immediately confirmed by delivery to the
\n Administrative Agent at the address set forth in clause (i)(A) of this
\n subsection 2.2(b) of a Bid Loan Confirmation) of the amount of Bid Loans
\n for each relevant Interest Period to be made by each Bid Loan Bank (which
\n amount shall be equal to or less than the maximum amount for such Interest
\n Period specified in the Bid Loan Offer of such Bid Loan Bank, and for all
\n Interest Periods included in such Bid Loan Offer shall be equal to or less
\n than the aggregate maximum amount specified in such Bid Loan Offer for all
\n such Interest Periods) and reject any remaining offers made by Bid Loan
\n Banks pursuant to clause (ii) or clause (iii) above, as the case may be;
\n provided, however, that (x) such Borrower may not accept offers for Bid
\n ——– ——-
\n Loans for any Interest <\/p>\n
15<\/p>\n
Period in an aggregate principal amount in excess of the maximum principal
\n amount requested for such Interest Period in the related Bid Loan Request,
\n (y) if such Borrower accepts any such offers, it must accept offers
\n strictly based upon pricing for such relevant Interest Period and upon no
\n other criteria whatsoever and (z) if two or more Bid Loan Banks submit
\n offers for any Interest Period at identical pricing and such Borrower
\n accepts any of such offers but does not wish to borrow the total amount
\n offered by such Bid Loan Banks with such identical pricing, such Borrower
\n shall accept offers from all of such Bid Loan Banks in amounts allocated
\n among them pro rata according to the amounts offered by such Bid Loan Banks
\n — —-
\n (or as nearly pro rata as shall be practicable, after giving effect to the
\n — —-
\n requirement that Bid Loans made by a Bid Loan Bank on a Borrowing Date for
\n each relevant Interest Period shall be in a principal amount of $5,000,000
\n or an integral multiple of $1,000,000 in excess thereof, it being agreed
\n that to the extent that it is not possible to make allocations in
\n accordance with the provisions of this clause (z) such allocations shall be
\n made in accordance with the instructions of such Borrower, it being
\n understood that in no event shall any Bank be obligated to make any Bid
\n Loan in a principal amount less than $5,000,000).<\/p>\n
(v) If such Borrower notifies the Administrative Agent that a
\nBid Loan Request is cancelled pursuant to clause (iv)(A) of this subsection
\n2.2(b), the Administrative Agent shall give prompt telephone notice thereof to
\nthe Bid Loan Banks, and the Bid Loans requested thereby shall not be made.<\/p>\n
(vi) (A) If such Borrower accepts pursuant to clause (iv)(B) of
\nthis subsection 2.2(b) one or more of the offers made by any Bid Loan Bank or
\nBid Loan Banks pursuant to a Bid Loan Request, the Administrative Agent shall
\npromptly notify by telephone each Bid Loan Bank which has made such an offer of
\nthe aggregate amount of such Bid Loans to be made on such Borrowing Date for
\neach Interest Period and of the acceptance or rejection of any offers to make
\nsuch Bid Loans made by such Bid Loan Bank. Each Bid Loan Bank which is to make a
\nBid Loan pursuant to a Bid Loan Request shall, before 12:00 Noon (New York City
\ntime) on the Borrowing Date specified in the Bid Loan Request applicable
\nthereto, make available to the Administrative Agent at its office set forth in
\nsubsection 10.2 the amount of Bid Loans to be made by such Bid Loan Bank, in
\nimmediately available funds. The Administrative Agent will make such funds
\navailable to such Borrower as soon as practicable on such date at the
\nAdministrative Agent’s aforesaid address.<\/p>\n
(B) If such Borrower and any Bank agree to the terms of a
\n Negotiated Rate Loan to be made on a Borrowing Date pursuant to a
\n Negotiated Rate Loan Request, such Borrower and such Bank shall promptly
\n notify by telephone the Administrative Agent of the aggregate amount of
\n Negotiated Rate Loans to be made on such Borrowing Date and the respective
\n Interest Periods therefor. Each Bank which is to make a Negotiated Rate
\n Loan shall, at such time, on such Borrowing Date and at such location as
\n shall be mutually agreed upon between such Borrower and such Bank, make
\n available to such Borrower the amount of Negotiated Rate Loans to be made
\n by such Bank, in immediately available funds.<\/p>\n
(C) As soon as practicable after each Borrowing Date for Bid
\n Loans and Negotiated Rate Loans, the Administrative Agent shall notify each
\n Bank of the aggregate <\/p>\n
16<\/p>\n
amount of Bid Loans or Negotiated Rate Loans advanced pursuant to a Bid
\n Loan Request or Negotiated Rate Loan Request on such Borrowing Date and the
\n respective Interest Periods therefor.<\/p>\n
(c) Within the limits and on the conditions set forth in this
\nsubsection 2.2, each Borrower may from time to time borrow under this subsection
\n2.2, repay pursuant to paragraph (d) below, and reborrow under this subsection
\n2.2.<\/p>\n
(d) Each Borrower shall repay to the Administrative Agent for
\nthe account of each Bid Loan Bank (or the Loan Assignee in respect thereof, as
\nthe case may be) which has made a Bid Loan to such Borrower on the last day of
\nthe Interest Period for each Bid Loan (such Interest Period being that specified
\nby such Borrower for repayment of such Bid Loan in the related Bid Loan Request)
\nthe then unpaid principal amount of such Bid Loan. Each Borrower shall repay to
\neach Bank which has made a Negotiated Rate Loan to such Borrower (or the Loan
\nAssignee in respect thereof, as the case may be) the principal thereof as agreed
\nby such Borrower and such Bank.<\/p>\n
(e) Each Borrower shall pay interest on the unpaid principal
\namount of each Bid Loan and each Negotiated Rate Loan borrowed by such Borrower
\nfrom the applicable Borrowing Date to the stated maturity date thereof, in the
\ncase of a Bid Loan, at the rate of interest determined pursuant to paragraph (b)
\nof this subsection 2.2, and, in the case of a Negotiated Rate Loan, as agreed by
\nsuch Borrower and the relevant Bank (calculated on the basis of a 360 day year
\nfor actual days elapsed), payable on the interest payment date or dates (i)
\nspecified by such Borrower for such Bid Loan in the related Bid Loan Request and
\n(ii) mutually agreed upon between such Borrower and such Bank in the case of
\nNegotiated Rate Loans, provided that as to any Bid Loan in respect of which the
\n ——–
\nstated maturity date is more than three months after such Borrowing Date,
\ninterest shall also be paid on the day which occurs three months after such
\nBorrowing Date. If all or a portion of the principal amount of any Bid Loan
\nshall not be paid when due (whether at the stated maturity, by acceleration or
\notherwise), such overdue principal amount shall, without limiting any rights of
\nany Bank under this Agreement, bear interest from the date on which such payment
\nwas due at a rate per annum which is 1% above the rate which would otherwise be
\napplicable to such Bid Loan until the scheduled maturity date with respect
\nthereto and for each day thereafter at a rate per annum which is 1% above the
\nABR until paid in full (as well after as before judgment). If all or any portion
\nof the principal amount of any Negotiated Rate Loan shall not be paid when due
\n(whether at the stated maturity, by acceleration or otherwise), such overdue
\nprincipal amount shall, without limiting any rights of any Bank under this
\nAgreement, bear interest from the date on which such payment was due at a rate
\nper annum as shall be mutually agreed upon between the relevant Borrower and the
\nrelevant Bank.<\/p>\n
(f) After the first Bid Loan Request has been given hereunder,
\nno Bid Loan Request or Negotiated Rate Loan Request shall be given until at
\nleast one Business Day, in the case of an Absolute Rate Bid Loan Request, or one
\nWorking Day, in the case of an Index Rate Bid Loan Request, after the earliest
\nto occur of (i) the Borrowing Dates with respect to all prior Bid Loan Requests
\nmade pursuant to subsection 2.2(b)(i), (ii) the date on which all Bid Loan Banks
\nhave failed to submit Bid Loan Offers with respect to any Bid Loan Requests
\nwithin the<\/p>\n
17<\/p>\n
time specified in subsection 2.2(b)(ii) or iii), as the case may be, and (iii)
\nthe date on which the relevant Borrower has cancelled all prior Bid Loan
\nRequests pursuant to subsection 2.2(b)(iv).<\/p>\n
2.3 Loan Accounts. Each Bank, with respect to its Committed
\n ————-
\nRate Loans, Bid Loans and Negotiated Rate Loans, and the Administrative Agent,
\nwith respect to all Committed Rate Loans and Bid Loans, shall open and maintain
\nin the name of each Borrower loan accounts (as to each Bank, its “Loan Account”
\napplicable to such Borrower) on its books and records setting forth the amounts
\nof principal, interest and other sums paid and payable by such Borrower from
\ntime to time hereunder in respect of such Loans, and the obligation of such
\nBorrower to pay or repay, as the case may be, such amounts to such Bank shall be
\nevidenced by such Bank’s Loan Account. In case of any dispute, action or
\nproceeding relating to any Committed Rate Loan, Bid Loan or Negotiated Rate
\nLoan, the entries in such records shall constitute prima facie evidence of the
\naccuracy of the information set forth therein. In case of discrepancy between
\nthe entries in the Administrative Agent’s books and records and any Bank’s, the
\nentries in the Administrative Agent”s books and records shall constitute prima
\nfacie evidence of the accuracy of the information set forth therein.<\/p>\n
2.4 Fees. (a) The Company and the Capital Corporation jointly
\n —-
\nand severally agree to pay to the Administrative Agent for the account of each
\nBank a facility fee from and including the Closing Date to but excluding the
\nlast day of the Commitment Period, computed at a per annum rate equal to the
\nFacility Fee Rate on the average daily amount of the Commitment of such Bank in
\neffect during the period for which payment is made, payable quarterly in arrears
\non the first Business Day of each January, April, July and October of each year
\nand on the Termination Date or such earlier date on which the Commitments shall
\nterminate as provided herein, commencing in April, 2001.<\/p>\n
(b) The Company and the Capital Corporation jointly and
\nseverally agree to pay to the Administrative Agent for its own account all fees
\nset forth in the letter agreement dated January 23, 2001 from JP Morgan, a
\ndivision of Chase Securities Inc., and Chase to the Borrowers.<\/p>\n
(c) The Company and the Capital Corporation jointly and
\nseverally agree to pay to the Administrative Agent for its own account all other
\nfees payable to the Administrative Agent as the Borrowers and the Administrative
\nAgent shall mutually agree from time to time.<\/p>\n
2.5 Termination or Reduction of Commitments; Cancellation of
\n ——————————————————–
\nCapital Corporation as Borrower. (a) The Borrowers, acting jointly, shall have
\n——————————-
\nthe right, upon not less than five Business Days’ notice to the Administrative
\nAgent, to terminate the Commitments or, from time to time, reduce the amount of
\nthe Commitments, provided that (i) any such reduction shall be accompanied by
\nprepayment of Committed Rate Loans hereunder, together with accrued interest on
\nthe amount so prepaid to the date of such prepayment, to the extent, if any,
\nthat the aggregate outstanding principal amount of all Loans exceeds the amount
\nof the Commitments as then reduced and (ii) any such termination of the
\nCommitments shall be accompanied by prepayment in full of the Loans then
\noutstanding hereunder in accordance with subsection 2.6, and any termination of
\na Bank”s Commitment pursuant to subsection 2.13, 2.16 or 2.17 shall, with
\nrespect to each affected Loan, on the last day of the applicable Interest Period
\ntherefor or, if earlier, on such earlier date as shall be notified by the
\nBorrowers, be accompanied <\/p>\n
18<\/p>\n
by prepayment in full of such Loan, together with, in each case, accrued
\ninterest thereon to the date of such prepayment, the payment of any unpaid
\nfacility fee then accrued hereunder, and the payment of any amounts then payable
\npursuant to subsections 2.13, 2.14, 2.15 and 2.17. Upon receipt of such notice
\nfrom the Borrowers the Administrative Agent shall promptly notify each Bank
\nthereof. Any reduction of the Commitments pursuant to this subsection 2.5 shall
\nbe in an amount not less than $25,000,000, and shall be an amount which is a
\nwhole multiple of $5,000,000, and shall reduce permanently the amount of the
\nCommitments then in effect.<\/p>\n
(b) The Company may cancel the ability of the Capital
\nCorporation to borrow hereunder upon not less than five Business Days”‘notice to
\nthe Administrative Agent. Upon receipt of such notice from the Company the
\nAdministrative Agent shall promptly notify each Bank thereof. On the first day
\nfollowing receipt of such notice, on which all Loans to the Capital Corporation
\nand all interest thereon shall have been paid in full, and notwithstanding any
\nother provision of this Agreement, (i) the Capital Corporation shall cease to be
\na party hereto or to have any right or obligation hereunder, (ii) rights and
\nobligations expressed herein to be, in effect, of either the Company or the
\nCapital Corporation or of both of them, but not any such rights and obligations
\nexpressed herein to be of the Capital Corporation only, shall be deemed to be
\nrights and obligations of the Company only and (iii) the Banks shall cease to
\nhave any right or obligation hereunder which depends or is contingent upon any
\naction, condition or performance, or the absence thereof, whether past or
\npresent, of the Capital Corporation other than any action, condition or
\nperformance, or the absence thereof, of the Capital Corporation in its capacity
\nas a Subsidiary, Significant Subsidiary or Restricted Subsidiary hereunder;
\nprovided, however, that the obligation of the Capital Corporation to make any
\n——– ——-
\npayment pursuant to subsection 2.13, 2.14, 2.15 or 2.17 which arises prior to
\nthe cancellation of the ability of the Capital Corporation to borrow hereunder
\nshall survive the cancellation of the ability of the Capital Corporation to
\nborrow hereunder.<\/p>\n
2.6 Optional Prepayments. Either Borrower may at any time and
\n ———————
\nfrom time to time prepay its Committed Rate Loans in whole or in part, without
\npremium or penalty, but subject to the provisions of subsection 2.14, upon at
\nleast three Working Days’ irrevocable notice, in the case of Eurodollar Loans,
\nor one Business Day”s irrevocable notice in the case of ABR Loans, in each case
\nto the Administrative Agent, specifying the date and amount of prepayment and
\nwhether the prepayment is of its Eurodollar Loans, ABR Loans, or a combination
\nthereof, and if of a combination thereof, the amount of prepayment allocable to
\neach. Upon receipt of such notice the Administrative Agent shall promptly notify
\neach Bank thereof. If such notice is given, the Borrower delivering such notice
\nshall make such prepayment, and the payment of the amount specified in such
\nnotice shall be due and payable, on the date specified therein, together with
\naccrued interest to such date on the amount prepaid and any amounts payable
\npursuant to subsections 2.14 and 2.15. Except as provided in the immediately
\nfollowing sentence, partial prepayments shall be in an aggregate principal
\namount of $5,000,000, or a whole multiple thereof; provided, however, that after
\ngiving effect thereto, the aggregate principal amount of all Committed Rate
\nLoans made on the same Borrowing Date shall not be less than $25,000,000.
\nAnything contained in this subsection 2.6 to the contrary notwithstanding,
\npartial prepayments of a Cancelled Bank”s Loans in connection with the
\ntermination under subsection 2.13(a), (b) or (c), 2.16(c) or 2.17(b) of such
\nCancelled Bank’s Commitment (in whole or in part) shall be in an amount equal to
\nthe principal amount of the Loans of such Bank being prepaid, notwithstanding
\nthe amount thereof, and shall be permitted <\/p>\n
19<\/p>\n
notwithstanding the provisions of the foregoing proviso. Either Borrower may
\nprepay Negotiated Rate Loans or Bid Loans on such terms as shall be mutually
\nagreed upon between the relevant Borrower and the relevant Bank.<\/p>\n
2.7 Minimum Amount of Certain Loans. All borrowings,
\n ——————————-
\nconversions, continuations, payments and, except as set forth in the penultimate
\nsentence of subsection 2.6(a), prepayments in respect of Committed Rate Loans
\nshall be in such amounts and be made pursuant to such elections that, after
\ngiving effect thereto, (a) the aggregate principal amount of Committed Rate
\nLoans made on any Borrowing Date shall not be less than $25,000,000 or a whole
\nmultiple of $5,000,000 in excess thereof and (b) the aggregate principal amount
\nof Committed Rate Loans of any Type with the same Interest Period shall not be
\nless than $10,000,000 or a whole multiple of $1,000,000 in excess thereof.<\/p>\n
2.8 Committed Rate Loan Interest Rate and Payment Dates. (a)
\n —————————————————
\nThe Eurodollar Loans shall bear interest for the period from the date thereof
\nuntil the stated maturity thereof on the unpaid principal amount thereof at a
\nrate per annum equal to the Eurodollar Rate determined for the Interest Period
\ntherefor plus the Applicable Margin.<\/p>\n
(b) The ABR Loans shall bear interest for each day during the
\nperiod from the date thereof until the payment in full thereof on the unpaid
\nprincipal amount thereof at a fluctuating rate per annum equal to the ABR for
\nsuch day plus the Applicable Margin.<\/p>\n
(c) If all or a portion of the principal amount of any of the
\nCommitted Rate Loans shall not be paid when due (whether at the stated maturity,
\nby acceleration or otherwise) such overdue principal amount of such Committed
\nRate Loan (i) shall bear interest at a rate per annum which is 1% above the rate
\nwhich would otherwise be applicable pursuant to subsection 2.8(a) or (b) as the
\ncase may be, from the date when such principal amount is due until the date on
\nwhich such amount is paid in full and (ii) shall, if such Committed Rate Loan is
\na Eurodollar Loan, be converted to an ABR Loan at the end of the Interest Period
\napplicable thereto.<\/p>\n
(d) Interest shall be payable in arrears on each Interest
\nPayment Date.<\/p>\n
2.9 Conversion and Continuation Options. (a) The relevant
\n ———————————–
\nBorrower may elect from time to time to convert Committed Rate Loans of one Type
\ninto Committed Rate Loans of another Type by giving to the Administrative Agent
\nirrevocable notice of such conversion by the earliest time that they would have
\nbeen required to give notice under subsection 2.1(c) if they had been borrowing
\nCommitted Rate Loans of each such Type on the conversion date specified in such
\nnotice, provided that any such conversion of Eurodollar Loans may only be made
\non the last day of an Interest Period with respect thereto. Any such notice of
\nconversion to Eurodollar Loans shall specify the length of the initial Interest
\nPeriod or Interest Periods therefor. Upon receipt of any such notice the
\nAdministrative Agent shall promptly notify each Bank thereof. All or any part of
\noutstanding Eurodollar Loans and ABR Loans may be converted as provided herein,
\nprovided that no Loan may be converted into a Eurodollar Loan after the date
\nthat is one month prior to (i) in the case of a Loan made by an Objecting Bank,
\nsuch Objecting Bank”s Commitment Expiration Date, and (ii) in the case of all
\nLoans, the Termination Date.<\/p>\n
20<\/p>\n
(b) Any Eurodollar Loans may be continued as such upon the
\nexpiration of the then current Interest Period with respect thereto by the
\nrelevant Borrower giving notice to the Administrative Agent, such notice to be
\ngiven by the time it would have been required to give notice under subsection
\n2.1(c) if it had been borrowing Eurodollar Loans on the last day of the then
\nexpiring Interest Period therefor, of the length of the next Interest Period to
\nbe applicable to such Loans, provided that no Eurodollar Loan may be continued
\n ——–
\nas such after the date that is one month prior to (i) in the case of a Loan made
\nby an Objecting Bank, such Objecting Bank”s Commitment Expiration Date, and (ii)
\nin the case of all Loans, the Termination Date. Upon receipt of any such notice,
\nthe Administrative Agent shall promptly notify each Bank thereof.<\/p>\n
2.10 Computation of Interest and Fees. (a) Facility fees and
\n ——————————–
\ninterest in respect of ABR Loans based upon clause (a) of the definition of ABR
\nshall be calculated on the basis of a 365- (or 366-as the case may be) day year
\nfor the actual days elapsed (including the first day and excluding the last
\nday). Interest in respect of Eurodollar Loans, Bid Loans and ABR Loans based
\nupon clause (b) of the definition of ABR shall be calculated on the basis of a
\n360-day year for the actual days elapsed (including the first day and excluding
\nthe last day). The Administrative Agent shall promptly notify the Borrowers and
\nthe Banks of each determination of a Eurodollar Rate. Any change in the interest
\nrate on a Committed Rate Loan resulting from a change in the ABR shall become
\neffective as of the opening of business on the day on which such change in the
\nABR shall become effective. The Administrative Agent shall promptly notify the
\nBorrowers and the Banks of the effective date and the amount of each such
\nchange.<\/p>\n
(b) Each determination of an interest rate by the Administrative
\nAgent pursuant to any provision of this Agreement shall be conclusive and
\nbinding on the Borrowers and the Banks in the absence of manifest error. The
\nAdministrative Agent shall, at the request of a Borrower, deliver to such
\nBorrower a statement showing the quotations given by the Reference Banks and the
\ncomputations used by the Administrative Agent in determining any interest rate.<\/p>\n
(c) If any Reference Bank”s Commitment shall terminate
\n(otherwise than on termination of all the Commitments) or, as the case may be,
\nits Loans are assigned, prepaid or repaid for any reason whatsoever, such
\nReference Bank shall thereupon cease to be a Reference Bank, and the
\nAdministrative Agent (after consultation with the Banks and with the consent of
\nthe Borrowers) shall, by notice to the Borrowers and the Banks, designate a
\nsufficient number of other Banks as Reference Banks so that there shall at all
\ntimes be at least three Reference Banks.<\/p>\n
(d) Each Reference Bank shall use its best efforts to furnish
\nquotations of rates to the Administrative Agent as contemplated hereby. If any
\nof the Reference Banks shall be unable or otherwise fails to supply such rates
\nto the Administrative Agent upon its request, the rate of interest shall be
\ndetermined on the basis of the quotations of the remaining Reference Banks or
\nReference Bank.<\/p>\n
2.11 Inability to Determine Interest Rate. (a) In the event
\n ————————————
\nthat the Administrative Agent shall have determined (which determination shall
\nbe conclusive and binding upon the Borrowers) that by reason of circumstances
\naffecting the interbank eurodollar market generally, adequate and reasonable
\nmeans do not exist for ascertaining the Eurodollar Rate for any requested
\nInterest Period with respect to Committed Rate Loans that a Borrower has
\nrequested be made as, continued as or converted into Eurodollar Loans, the
\nAdministrative<\/p>\n
21<\/p>\n
Agent shall promptly give notice of such determination to such Borrower and the
\nBanks prior to the first day of the requested Interest Period for such
\nEurodollar Loans. If such notice is given, such Borrower may (i) in accordance
\nwith the provisions of subsection 2.1 or 2.9, as the case may be (including any
\nrequirements for notification), request that the affected Loans be made as,
\ncontinued as or converted into, as the case may be, ABR Loans, or (ii) in the
\ncase of Loans requested to be made on the first day of such Interest Period,
\nwithdraw the notice given under subsections 2.1 or 2.9, as the case may be, by
\ngiving telephonic notice to the Administrative Agent, no later than 10:00 A.M.
\n(New York City time) on the applicable Borrowing Date, confirmed in writing no
\nlater than one Business Day after such telephonic notice is given; provided that
\nif the Administrative Agent does not receive any notice permitted from the
\nrelevant Borrower hereunder, such Borrower shall be deemed to have requested
\nthat the affected Loans be made as, continued as or converted into, as the case
\nmay be, ABR Loans. Until the notice given pursuant to the first sentence of this
\nparagraph has been withdrawn by the Administrative Agent, no further Loans shall
\nbe made as, continued as or converted into, as the case may be, Eurodollar
\nLoans.<\/p>\n
(b) In the event that the Administrative Agent shall have determined
\n(which determination shall be conclusive and binding upon the Borrowers) that by
\nreason of circumstances affecting the interbank eurodollar market, adequate and
\nreasonable means do not exist for ascertaining the Eurodollar Rate for any
\nInterest Period with respect to a proposed Bid Loan to be made pursuant to an
\nIndex Rate Bid Loan Request, the Administrative Agent shall forthwith give
\nnotice of such determination to the relevant Borrower and the Bid Loan Banks at
\nleast two Business Days prior to the proposed Borrowing Date, and such Bid Loans
\nshall not be made on such Borrowing Date. Until any such notice has been
\nwithdrawn by the Administrative Agent, no further Index Rate Bid Loan Requests
\nshall be submitted by either Borrower.<\/p>\n
2.12 Pro Rata Treatment and Payments. (a) All payments (including
\n ——————————-
\nprepayments), to be made by the Borrowers on account of principal, interest and
\nfees shall be made without defense, set-off or counterclaim and shall be made,
\nin the case of fees and principal of, and interest on, Loans (other than
\nNegotiated Rate Loans) at the Administrative Agent’s office specified in
\nsubsection 10.2, in each case in lawful money of the United States of America
\nand in immediately available funds not later than 11:00 A.M. (New York City
\ntime) on the date due. The Administrative Agent shall distribute such payments
\nto the Banks entitled thereto on the day of receipt in like funds as received,
\nprovided that the Administrative Agent shall have received such payments not
\nlater than 11:00 A.M. (New York City time). If the Administrative Agent shall
\ndistribute such payments to the Banks entitled thereto on a date after the date
\non which such payments were received prior to 11:00 A.M. (New York City time),
\nthe Administrative Agent shall pay to each such Bank on demand an amount equal
\nto the product of (i) the daily average Federal funds rate during such period as
\nquoted by the Administrative Agent, times (ii the amount of such Bank’s share
\nof such payment, times (iii) a fraction, the numerator of which is the number of
\ndays that elapse from and including such date of receipt of payment by the
\nAdministrative Agent to but excluding the date on which such Bank’s share of
\nsuch payment shall have become immediately available to such Bank and the
\ndenominator of which is 360. All payments (including prepayments) to be made by
\nthe Borrowers on account of principal, interest and fees relating to Negotiated
\nRate Loans shall be made to the Bank with respect thereto on such terms, at such
\naddress and at such time as shall be mutually agreed upon <\/p>\n
22<\/p>\n
between the relevant Borrower and the relevant Bank in lawful money of the
\nUnited States of America on the date due.<\/p>\n
(b) (i) Each borrowing by the Borrowers of Committed Rate Loans and
\n each payment of principal in respect of Committed Rate Loans (subject to
\n the provisions of subsection 2.20(e)) shall be made in accordance with the
\n following requirements:<\/p>\n
(A) All borrowings of Committed Rate Loans and all principal payments
\n in respect of such Loans, shall be made pro rata according to the
\n — —-
\n respective Commitments of the Banks.<\/p>\n
(B) As provided in clause (b)(ii) below, if any principal payment is
\n made in respect of any Loans (other than Negotiated Rate Loans) on any day
\n on which principal amounts are due and owing in respect of any Loans (other
\n than Negotiated Rate Loans), such principal payment shall be applied to the
\n Banks pro rata according to the respective amounts of principal due and
\n — —-
\n owing to the Banks in respect of Loans (other than Negotiated Rate Loans)
\n under this Agreement.<\/p>\n
(ii) Except as provided in subsections 2.13, 2.16 and 2.17, each
\nreduction of the Commitments shall be made pro rata among the Banks according to
\n — —-
\ntheir respective Commitment Percentages. Each payment by the Borrowers under
\nthis Agreement or of any Loan (other than Negotiated Rate Loans) shall be
\napplied, first, to any fees then due and owing pursuant to subsection 2.4,
\n —–
\nsecond, to interest then due and owing in respect of the Loans (other than
\n——
\nNegotiated Rate Loans) and third, to principal then due and owing hereunder
\n —–
\n(other than principal due and owing under Negotiated Rate Loans) and under the
\nLoans (other than Negotiated Rate Loans). Each payment made by the Borrowers
\nunder this Agreement relating to a Negotiated Rate Loan to the Bank with respect
\nthereto shall be applied, first, to interest then due and owing in respect of
\n —–
\nsuch Negotiated Rate Loan and second, to principal then due and owing hereunder
\n ——
\nwith respect to such Negotiated Rate Loan and under such Negotiated Rate Loan.
\nEach payment (other than voluntary prepayments made when no principal payments
\nare due and owing hereunder) by either Borrower on account of principal of and
\ninterest on the Loans (other than Negotiated Rate Loans) shall be made for the
\naccount of each Bank pro rata according to the respective amounts of principal
\n — —-
\nand interest due and owing to such Bank under this Agreement. Subject to the
\nrequirements of clause (i) of this paragraph (b), each payment by a Borrower on
\naccount of principal of the Loans (other than Negotiated Rate Loans) shall be
\napplied, first, to such of its Committed Rate Loan borrowings as such Borrower
\n —–
\nmay designate, and, second, after all Committed Rate Loans shall have been paid
\n ——
\nin full, to all of its Absolute Rate Bid Loans or Index Rate Bid Loans made on
\nthe same Borrowing Date with the same Interest Period as such Borrower may
\ndesignate, pro rata according to the respective amounts outstanding; provided,
\n — —- ——–
\nhowever, that prepayments made pursuant to subsection 2.13(a), (b) or (c),
\n——-
\n2.16(c) or 2.17(b) shall be applied in accordance with such subsection .<\/p>\n
(c) If any payment hereunder (other than payments on the Eurodollar Loans
\nand Index Rate Bid Loans) becomes due and payable on a day other than a Business
\nDay, such payment shall be extended to the next succeeding Business Day. If any
\npayment on a Eurodollar Loan or Index Rate Bid Loan becomes due and payable on a
\nday other than a Working Day, the maturity thereof shall be extended to the next
\nsucceeding Working Day unless the result of such <\/p>\n
23<\/p>\n
extension would be to extend such payment into another calendar month in which
\nevent such payment shall be made on the immediately preceding Working Day. With
\nrespect to any extension of the payment of principal pursuant to this subsection
\n2.12(c), interest thereon shall be payable at the then applicable rate during
\nsuch extension.<\/p>\n
(d) Unless the Administrative Agent shall have been notified in writing by
\nany Bank prior to the date of the Committed Rate Loan, Committed Rate Loans, Bid
\nLoan or Bid Loans to be made by such Bank (which notice shall be effective upon
\nreceipt) that such Bank will not make its pro rata share of the amount of the
\n — —-
\nrequested borrowing on such date available to the Administrative Agent, the
\nAdministrative Agent may assume that such Bank has made such amount available to
\nit on such date and the Administrative Agent may, in reliance upon such
\nassumption, make available to the relevant Borrower a corresponding amount. If a
\nBank shall make such amount available to the Administrative Agent on a date
\nafter such Borrowing Date, such Bank shall pay to the Administrative Agent on
\ndemand an amount equal to the product of (i) the daily average Federal funds
\nrate during such period as quoted by the Administrative Agent, times (ii) the
\n —–
\namount of such Bank’s pro rata share of such borrowing, times (iii) a fraction,
\n — —- —–
\nthe numerator of which is the number of days that elapse from and including such
\nBorrowing Date to but excluding the date on which such Bank’s pro rata share of
\n — —-
\nsuch borrowing shall have become immediately available to the Administrative
\nAgent and the denominator of which is 360. A certificate of the Administrative
\nAgent submitted to any Bank with respect to any amounts owing under this
\nsubsection 2.12(d) shall be conclusive, absent manifest error. If such Bank’s
\npro rata share is not in fact made available to the Administrative Agent by such
\n— —-
\nBank within three Business Days of such Borrowing Date, the Administrative Agent
\nshall be entitled to recover such amount, on demand, from the relevant Borrower
\nwith interest thereon at the rate equal to the product of (i) during the period
\nfrom and including such Borrowing Date to the Business Day next following the
\ndate of such demand, the daily average Federal funds rate as quoted by the
\nAdministrative Agent, times a fraction, the numerator of which is the number of
\n —–
\ndays that elapse from and including such Borrowing Date to but excluding the
\nBusiness Day next following the date of such demand and the denominator of which
\nis 360 and (ii) thereafter, the interest rate or rates applicable to the Loan or
\nLoans funded by the Administrative Agent on behalf of such Bank on such
\nBorrowing Date, times a fraction, the numerator of which is the number of days
\n —–
\nwhich elapse from and including the Business Day next following the date of such
\ndemand to but excluding the date such amount is recovered by the Administrative
\nAgent from such Borrower and the denominator of which is 360. In the event any
\nBank’s pro rata share of a borrowing is not made available to the Administrative
\n — —-
\nAgent in accordance with this paragraph within three Business Days of the
\napplicable Borrowing Date (i) such Bank shall, during the period from such
\nBorrowing Date to the date such Bank makes its pro rata share of the applicable
\n — —-
\nborrowing available, not accrue and shall not be entitled to receive any
\nfacility fee under subsection 2.4 and (ii) either Borrower may exercise or
\npursue any other rights, remedies, powers and privileges against such Bank as
\nare provided by law or by contract.<\/p>\n
2.13 Requirements of Law. (a) If any Bank shall determine that by
\n ——————-
\nreason of (i) the introduction after the date hereof of any applicable law,
\nregulation or guideline or any change after the date hereof in any applicable
\nlaw, regulation or guideline (including the phasing-in of a provision of any
\napplicable law, regulation or guideline) or in the interpretation thereof by any
\ngovernmental or other regulatory authority charged with the administration<\/p>\n
24<\/p>\n
thereof or any court of competent jurisdiction and\/or (ii) compliance by such
\nBank with any requirement adopted after the date hereof of or directive adopted
\nafter the date hereof from any central bank or other fiscal, monetary or other
\nregulatory authority (whether or not having the force of law), there shall be
\nany increase in the cost of such Bank of maintaining or giving effect to its
\nobligations with respect to Committed Rate Loans under this Agreement or
\nmaintaining its Commitment with respect to Committed Rate Loans or making or
\nmaintaining any Eurodollar Loans or any reduction in any amount receivable by
\nsuch Bank in respect of Eurodollar Loans under this Agreement, notwithstanding
\nthe reasonable efforts (such reasonable efforts not to result in the incurrence
\nof additional costs or expenses) of such Bank to mitigate such increase or
\nreduction, then the relevant Borrower shall from time to time on receipt
\n(whenever occurring) of a certificate from such Bank (which shall be executed by
\nan officer thereof and a copy of which shall be delivered to the Administrative
\nAgent) pay to such Bank such amounts as are stated therein to be required to
\nindemnify such Bank against such increased costs or reduction; provided,
\nhowever, that if such Borrower becomes obligated to pay any Bank any additional
\namount pursuant to this subsection 2.13(a), such Borrower shall have the right,
\nso long as no Event of Default has occurred and is then continuing, upon giving
\nnotice to the Administrative Agent and such Bank in accordance with subsection
\n2.6, to prepay in full the Loans of such Bank, together with accrued interest
\nthereon, any amounts payable to such Bank pursuant to subsections 2.13, 2.14,
\n2.15 and 2.17 and any accrued and unpaid facility fee or other amount payable to
\nsuch Bank hereunder and\/or, upon giving not less than three Business Days’
\nnotice to any such Bank and the Administrative Agent, to cancel the whole or
\npart of the Commitment of any such Bank; provided, further, that such Borrower
\nshall not be obligated to pay any Bank any additional amount pursuant to this
\nsubsection 2.13(a) (A) which constitutes a present or future income, stamp or
\nother tax, levy, impost, duty, charge, fee, deduction or withholding referred to
\nin subsection 2.17(a) or (B) as a result of any law, rule, guideline,
\nregulation, request or directive regarding capital adequacy referred to in
\nsubsection 2.13(b). A certificate of such Bank as to the amount of such
\nincreased costs or reduction shall set forth in reasonable detail the
\ncomputation of such increased costs or reduction, and shall be binding and
\nconclusive in the absence of manifest error. A Bank which demands
\nindemnification hereunder as a result of an increased cost or reduction referred
\nto herein shall deliver the certificate referred to above to the relevant
\nBorrower demanding indemnification no later than the later of (y) the thirtieth
\nday immediately following each payment or realization by such Bank of such
\nincreased cost or reduction (and such certificate shall certify that the amounts
\nset forth therein were paid or realized within such thirty-day period) and (z)
\nthe thirtieth day immediately following such Bank’s knowledge of the incurrence
\nor realization by such Bank of such increased cost or reduction (and such
\ncertificate shall so certify).<\/p>\n
(b) In the event that any Bank shall have determined that the
\nadoption after the date hereof of any law, rule, guideline or regulation
\nregarding capital adequacy, or any change after the date hereof in any existing
\nor future law, rule, guideline or regulation regarding capital adequacy
\n(excluding, however, the phasing-in of any existing law, rule, regulation or
\nguideline regarding capital adequacy) or in the interpretation or application
\nthereof or compliance by such Bank or any corporation controlling such Bank with
\nany request or directive made or adopted after the date hereof regarding capital
\nadequacy (whether or not having the force of law) from any central bank or
\nGovernmental Authority, does or shall have the effect of reducing the rate of
\nreturn on such Bank’s or such corporation’s capital as a consequence of its
\nobligations hereunder to a level below that which such Bank or such corporation
\ncould have<\/p>\n
25<\/p>\n
achieved but for such adoption, change or compliance (taking into consideration
\nsuch Bank’s or such corporation’s policies with respect to capital adequacy) by
\nan amount deemed by such Bank to be material, then from time to time, within 30
\ndays after receipt (whenever occurring) of a certificate from such Bank (which
\nshall be executed by an officer thereof and a copy of which shall be delivered
\nto the Administrative Agent), the Borrowers jointly and severally agree to pay
\nto such Bank such additional amounts as are stated therein to be required to
\ncompensate it for such reduction; provided, however, that if such Borrower
\n ——– ——-
\nbecomes obligated to pay any Bank any additional amount pursuant to this
\nsubsection 2.13(b), such Borrower shall have the right, so long as no Event of
\nDefault has occurred and is then continuing, upon giving notice to the
\nAdministrative Agent and such Bank in accordance with subsection 2.6, to prepay
\nin full the Loans of such Bank, together with accrued interest thereon, any
\namounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any
\naccrued and unpaid facility fee or other amounts payable to it hereunder and\/or,
\nupon giving not less than three Business Days’ notice to any such Bank and the
\nAdministrative Agent, to cancel the whole or part of the Commitment of any such
\nBank. A certificate of such Bank as to the amount of such reduction shall set
\nforth in reasonable detail the computation of such reduction, and shall be
\nbinding and conclusive in the absence of manifest error. A Bank which demands
\nindemnification hereunder as a result of a reduction referred to herein shall
\ndeliver the certificate referred to above to the relevant Borrower demanding
\nindemnification no later than the later of (i) the thirtieth day immediately
\nfollowing each realization by such Bank of such reduction (and such certificate
\nshall certify that the amounts set forth therein were realized within such
\nthirty-day period) and (ii) the thirtieth day immediately following such Bank’s
\nknowledge of the realization by such Bank of such reduction (and such
\ncertificate shall so certify).<\/p>\n
(c) Each Borrower shall pay to each Bank that delivers a certificate
\nto such Borrower in accordance with the second and third following sentences
\nsuch amounts as shall be necessary to reimburse such Bank for the costs
\n(determined in accordance with the immediately following sentence), if any,
\nincurred by such Bank, as a result of the application to such Bank during any
\nperiod on which there are outstanding Eurodollar Loans advanced by such Bank to
\nsuch Borrower of basic, supplemental, marginal and emergency reserves under any
\nregulations of the Board of Governors of the Federal Reserve System or other
\nGovernmental Authority having jurisdiction with respect thereto dealing with
\nreserve requirements prescribed for eurocurrency funding (currently referred to
\nas “Eurocurrency liabilities” in Regulation D of such Board) maintained by a
\nmember bank of such System (any such reserves dealing with reserve requirements
\nprescribed for eurocurrency funding being referred to as “Reserves”), such
\n ——–
\namount to be set forth in a certificate of such Bank delivered to the relevant
\nBorrower; provided, however, that if a Bank gives to a Borrower the written
\n ——– ——-
\nnotice contemplated by the proviso set forth in the second following sentence,
\nsuch Borrower shall have the right, so long as no Event of Default has occurred
\nand is then continuing, upon giving notice to the Administrative Agent and such
\nBank in accordance with subsection 2.6, to prepay in full the Loans of such
\nBank, together with accrued interest thereon, any amounts payable pursuant to
\nsubsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility fee or
\nother amounts payable to it hereunder and\/or upon giving not less than three
\nWorking Days’ notice to such Bank and the Administrative Agent, to cancel the
\nwhole or part of the Commitment of any such Bank. Amounts certified by a Bank
\nhereunder for any period shall represent such Bank’s calculation or, if an
\naccurate calculation is impracticable, reasonable estimate (using such
\nreasonable means of allocation as such Bank shall determine) of the actual
\ncosts, if any, theretofore incurred by such <\/p>\n
26<\/p>\n
Bank as a result of the application of Reserves to Eurocurrency liabilities (as
\nreferred to in Regulation D referred to above) of such Bank in an amount equal
\nto such Bank’s Eurodollar Loans during such period and in any event shall not
\nexceed the amount obtainable utilizing the maximum Reserves prescribed by the
\nBoard of Governors of the Federal Reserve System or other Governmental Authority
\nhaving jurisdiction with respect thereto for such period. Such payment shall be
\nmade within fifteen days after receipt by the relevant Borrower of a
\ncertificate, signed by an officer of the Bank delivering such certificate, which
\ncertificate shall be binding and conclusive in the absence of demonstrable
\nerror, specifying the period (prior to the date of such certificate) during
\nwhich the cost set forth therein was incurred by such Bank and stating (i) that
\nsuch amount represents the actual cost, or, if an accurate calculation of such
\ncost is impracticable stating that such amount represents such Bank’s reasonable
\nestimate of the actual cost, incurred by such Bank during such period as a
\nresult of the application of Reserves to Eurocurrency liabilities of such Bank
\nin an amount equal to such Bank’s Eurodollar Loans during such period and
\nspecified in such certificate and (ii) that the amount set forth therein does
\nnot in any event exceed the amount obtainable utilizing the maximum Reserves
\nprescribed for such period by the Board of Governors of the Federal Reserve
\nSystem or such other Governmental Authority having jurisdiction with respect
\nthereto; provided that the obligation of the Borrowers to pay any amounts
\n ——–
\npursuant to this subsection 2.13(c) shall apply only in the case of those Banks
\nthat give to the relevant Borrower and the Administrative Agent, no later than
\n3:00 P.M. (New York City time) on the day that is two Working Days prior to the
\napplicable Borrowing Date therefor, a written notice stating that such Bank
\nintends to demand reimbursement pursuant hereto. A Bank which demands
\nreimbursement of Reserve costs hereunder on account of a Eurodollar Loan made by
\nsuch Bank shall deliver the certificate referred to in the preceding sentence to
\nthe relevant Borrower setting forth the items specified in clauses (i) and (ii)
\nof the preceding sentence no later than the thirtieth day immediately following
\nthe last day of the Interest Period applicable to such Eurodollar Loan.<\/p>\n
(d) The obligations of the parties under this subsection 2.13 shall
\nsurvive termination of this Agreement and payment of the Loans.<\/p>\n
2.14 Indemnity. Each Borrower agrees to indemnify each Bank and to
\n ———
\nhold each Bank harmless from any loss or expense which such Bank may sustain or
\nincur as a consequence of (a) default by such Borrower in payment of the
\nprincipal amount of or interest on any Loan by such Bank, including, but not
\nlimited to, any such loss or expense arising from interest or fees payable by
\nsuch Bank to lenders of funds obtained by it in order to maintain its Loans
\nhereunder, (b) default by such Borrower in making a borrowing, conversion or
\ncontinuance after such Borrower has given a notice in accordance with subsection
\n2.1, 2.2 or 2.9, (c) default by such Borrower in making any prepayment after
\nsuch Borrower has given a notice in accordance with subsection 2.5 or 2.6 or (d)
\nthe making by such Borrower of a prepayment of a Committed Rate Loan (other than
\nan ABR Loan), a Bid Loan or, to the extent agreed to by the relevant Borrower
\nand the relevant Bank with respect to a Negotiated Rate Loan, a Negotiated Rate
\nLoan on a day which is not the last day of an Interest Period with respect
\nthereto (with respect to Committed Rate Loans) or the maturity date therefor
\n(with respect to Bid Loans) or any agreed date (with respect to Negotiated Rate
\nLoans), including, but not limited to, any such loss or expense arising from
\ninterest or fees payable by such Bank to lenders of funds obtained by it in
\norder to maintain its Loans hereunder. This covenant shall survive termination
\nof this Agreement and payment of the outstanding Loans. A certificate as to <\/p>\n
27<\/p>\n
any amount payable pursuant to the foregoing shall be submitted by such Bank
\n(and executed by an officer thereof) to the relevant Borrower, setting forth the
\ncomputation of such amounts in reasonable detail, and shall be conclusive in the
\nabsence of manifest error.<\/p>\n
2.15 Non-Receipt of Funds by the Administrative Agent. With respect
\n ————————————————
\nto all Loans except Negotiated Rate Loans, unless the Administrative Agent shall
\nhave been notified by the relevant Borrower prior to the date on which any
\npayment is due from it hereunder (which notice shall be effective upon receipt)
\nthat such Borrower does not intend to make such payment, the Administrative
\nAgent may assume that such Borrower has made such payment when due, and the
\nAdministrative Agent may in reliance upon such assumption (but shall not be
\nrequired to) make available to each Bank on such payment date an amount equal to
\nthe portion of such assumed payment to which such Bank is entitled hereunder,
\nand if such Borrower has not in fact made such payment to the Administrative
\nAgent, such Bank shall, on demand, repay to the Administrative Agent the amount
\nmade available to such Bank together with interest thereon in respect of each
\nday during the period commencing on the date such amount was made available to
\nsuch Bank and ending on (but excluding) the date such Bank repays such amount to
\nthe Administrative Agent, at a rate per annum equal to the Administrative
\nAgent’s cost of obtaining overnight funds in the federal funds market in New
\nYork on each such day. A certificate of the Administrative Agent submitted to
\nthe relevant Bank with respect to any amount owing under this subsection 2.15
\nshall be conclusive absent manifest error.<\/p>\n
2.16 Extension of Termination Date. (a) No later than one year prior
\n —————————–
\nto the Termination Date then in effect, provided that no Event of Default shall
\nhave occurred and be continuing, the Borrowers may request an extension of such
\nTermination Date by submitting to the Administrative Agent an Extension Request
\ncontaining the information in respect of such extension specified in Exhibit I,
\nwhich the Administrative Agent shall promptly furnish to each Bank. If, within
\n30 days of their receipt of an Extension Request, the Required Banks shall
\napprove in writing the extension of the Termination Date requested in such
\nExtension Request, the Termination Date shall automatically and without any
\nfurther action by any Person be extended for the period specified in such
\nExtension Request; provided that (i) each extension pursuant to this subsection
\n2.16 shall be for a maximum of one year, (ii) after giving effect to any
\nextension, the Termination Date shall not be more than five years after the date
\nsuch extension is approved by the Required Banks and (iii) the Commitment of any
\nBank which does not consent in writing to such extension within 30 days of its
\nreceipt of such Extension Request (an “Objecting Bank”) shall, unless earlier
\nterminated in accordance with this Agreement, expire on the Termination Date in
\neffect on the date of such Extension Request (such Termination Date, if any,
\nreferred to as the “Commitment Expiration Date” with respect to such Objecting
\nBank). If, within 30 days of their receipt of an Extension Request, the Required
\nBanks shall not approve in writing the extension of the Termination Date
\nrequested in an Extension Request, the Termination Date shall not be extended
\npursuant to such Extension Request. The Administrative Agent shall promptly
\nnotify (y) the Banks and the Borrowers of any extension of the Termination Date
\npursuant to this subsection 2.16 and (z) the Borrowers and any other Bank of any
\nBank which becomes an Objecting Bank.<\/p>\n
(b) Any Objecting Bank the Commitment of which shall expire prior to
\nany extended Termination Date shall, subject to subsection 2.16(c), have its
\nCommitted Rate Loans prepaid in full by the applicable Borrower(s) on such
\nexpiration date, together with accrued <\/p>\n
28<\/p>\n
interest thereon, and shall have any accrued and unpaid facility fee or other
\namount payable to it hereunder paid on the first date to occur following such
\nexpiration date on which the fees referred to in subsection 2.4(a) are payable
\nto the non-Objecting Banks or, if such fees shall be so payable on such
\nexpiration date, such unpaid facility fee and other amount shall be paid on such
\nexpiration date.<\/p>\n
(c) The Borrowers shall have the right, so long as no Event of
\nDefault has occurred and is then continuing, upon giving notice to the
\nAdministrative Agent and the Objecting Banks in accordance with subsection 2.6,
\nto prepay in full the Committed Rate Loans of the Objecting Banks, together with
\naccrued interest thereon, any amounts payable pursuant to subsections 2.13,
\n2.14, 2.15 and 2.17 and any accrued and unpaid facility fee or other amounts
\npayable to it hereunder and\/or, upon giving not less than three Working Days’
\nnotice to the Objecting Banks and the Administrative Agent, to cancel the whole
\nor part of the Commitments of the Objecting Banks, provided that during the
\n ——–
\nperiod from the Closing Date through February 19, 2002 and, commencing February
\n20, 2002, during each one-year period thereafter to and including the
\nTermination Date (each, a “Deal Year”), the aggregate Commitments of Banks which
\n ———
\nare terminated pursuant to this subsection 2.16(c) and are not replaced during
\nsuch Deal Year pursuant to subsection 2.19 shall not exceed 33-1\/3% of the
\naggregate Commitments in effect on the first day of such Deal Year of Banks
\nwhich were not Objecting Banks on such first day.<\/p>\n
2.17 Foreign Taxes. (a) All payments made under this Agreement shall
\n ————-
\nbe made without set-off or counterclaim and free and clear of, and without
\nreduction for or on account of, any present or future income, stamp or other
\ntaxes, levies, imposts, duties, charges, fees, deductions, withholdings or
\nrestrictions or conditions of any nature whatsoever, now or hereafter imposed,
\nlevied, collected, withheld or assessed by any country (or by any political
\nsubdivision or taxing authority thereof or therein) from or through which any
\namount is paid under this Agreement excluding, in the case of each Bank, (i)
\nincome and franchise taxes (including, without limitation, branch taxes imposed
\nby the United States or similar taxes imposed by a political subdivision or
\ntaxing authority thereof or therein but excluding, in the case of any Bank not
\norganized under the laws of the United States, any taxes imposed by the United
\nStates by means of withholding at the source), (ii) in the case of any Bank not
\norganized under the laws of the United States, any taxes imposed by the United
\nStates by means of withholding at the source unless such Bank has provided the
\nCompany, the Capital Corporation and the Administrative Agent with the documents
\nit is required to provide to them under subsection 2.17(c) and (iii) taxes that
\nwould not have been imposed on such Bank but for the existence of a connection
\nbetween such Bank and the jurisdiction imposing such taxes (other than a
\nconnection arising principally by virtue of this Agreement) (such non-excluded
\ntaxes being called “Foreign Taxes”). If any Foreign Taxes are required to be
\nwithheld from any amounts so payable to any Bank hereunder, the amounts so
\npayable to such Bank shall be increased to the extent necessary to yield to such
\nBank (after payment of all Foreign Taxes) interest or any such other amounts
\npayable hereunder at the rates or in the amounts specified in this Agreement.
\nWhenever any Foreign Taxes are payable by the Company or the Capital
\nCorporation, as the case may be, as promptly as possible thereafter the Company
\nor the Capital Corporation, as the case may be, shall send to the Administrative
\nAgent, for the account of the affected Bank, a certified copy of the original
\nofficial receipt, if any, received by the Company or the Capital Corporation, as
\nthe case may be, showing payment thereof. If the Company or <\/p>\n
29<\/p>\n
the Capital Corporation, as the case may be, fails to pay any Foreign Taxes when
\ndue to the appropriate taxing authority or fails to remit to the Administrative
\nAgent, for the account of the affected Banks, the required receipts or other
\nrequired documentary evidence, the Company or the Capital Corporation, as the
\ncase may be, shall indemnify such Banks for any incremental taxes, interest or
\npenalties that may become payable by such Banks as a result of any such failure.<\/p>\n
(b) If a Borrower is required by this subsection 2.17 to make a
\npayment to or in respect of any Bank, such Borrower shall have the right, so
\nlong as no Event of Default has occurred and is then continuing, upon giving
\nnotice to the Administrative Agent and such Bank in accordance with subsection
\n2.6, to prepay in full the Loans of such Bank, together with accrued interest
\nthereon, any amounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17
\nand any accrued and unpaid facility fee or other amounts payable to it hereunder
\nand\/or on giving not less than three Business Days’ notice to any such Bank and
\nthe Administrative Agent, to cancel the whole or part of the Commitment of such
\nBank.<\/p>\n
(c) At least two Business Days prior to the first Borrowing Date or,
\nif such date does not occur within thirty days after the Closing Date, by the
\nend of such thirty-day period, each Bank agrees that it will deliver to each
\nBorrower and the Administrative Agent (i) either (A) a statement that it is
\nincorporated under the laws of the United States or a state thereof or (B) if it
\nis not so incorporated, a letter in duplicate in the form of Exhibit J or
\nExhibit K, as appropriate, and two duly completed copies of United States
\nInternal Revenue Service Form 4224 or 1001 or successor applicable form, as the
\ncase may be, certifying in each case that such Bank is entitled to receive
\npayment under this Agreement without deduction or withholding of any United
\nStates Federal income taxes, and (ii) Internal Revenue Service Form W-8 or W-9,
\nor successor applicable form, as the case may be, to establish an exemption from
\nUnited States backup withholding tax. Each Bank agrees (for the benefit of the
\nAdministrative Agent and the Borrowers) to provide the Administrative Agent and
\nthe Borrowers a new letter and Form 4224 or 1001 and Form W-8 or W-9, or
\nsuccessor applicable form or other manner of certification, on or before the
\ndate that any such letter or form expires or becomes obsolete or after the
\noccurrence of any event requiring a change in the most recent letter or form
\npreviously delivered by it, certifying in the case of a Form 1001 or 4224 that
\nsuch Bank is entitled to receive payments under this Agreement without deduction
\nor withholding of any United States Federal income tax, and in the case of a
\nForm W-8 or W-9 establishing exemption from United States backup withholding
\ntax. The Administrative Agent shall not be responsible for obtaining such
\ndocumentation from any Bank other than Chase.<\/p>\n
(d) The Company and the Capital Corporation shall not be required to
\nmake payments on account of United States withholding taxes to any Bank under
\nthe second sentence of subsection 2.17(a) to the extent that such taxes could
\nhave been avoided had such Bank complied with a reasonable request by the
\nCompany, the Capital Corporation or the Administrative Agent for the forms or
\ndocuments referred to in subsection 2.17(c).<\/p>\n
(e) To the extent that, as determined by any Bank in its sole
\ndiscretion and without any obligation to disclose its tax records, Foreign Taxes
\nhave been irrevocably utilized by such Bank (either as credits or deductions) to
\nreduce its tax liabilities and such utilization is consistent with its overall
\ntax policies, such Bank shall pay to the Company or the Capital <\/p>\n
30<\/p>\n
Corporation, as the case may be, an amount equal to such reduction obtained to
\nthe extent of such increased amounts paid by the Company or the Capital
\nCorporation to such Bank as aforesaid.<\/p>\n
(f) The obligations of the parties under this subsection 2.17 shall
\nsurvive termination of this Agreement and payment of the Loans.<\/p>\n
2.18 Confirmations. The Administrative Agent shall, within 15 days
\n ————-
\nfollowing the last day of each calendar quarter (each such period being a
\n“Report Period”), furnish to the Borrowers a written account with respect to all
\namounts outstanding under the Loan Accounts as at the last day of such Report
\nPeriod, including an accounting setting forth, for such Report Period the
\namounts of principal, interest and other sums paid and payable hereunder. The
\nBorrowers shall, within 15 days following receipt of such written account,
\nnotify the Administrative Agent of any discrepancies between such written
\naccount and the Borrowers’ records or, if no such discrepancies exist, furnish
\nwritten confirmation to the Administrative Agent of the accuracy of such written
\naccount. Upon any Bank’s request, the Administrative Agent shall furnish to each
\nBank a copy of such written account together with the Borrowers’ response
\nthereto.<\/p>\n
2.19 Replacement of Cancelled Banks. The Borrowers may designate one
\n ——————————
\nor more financial institutions to act as a Bank hereunder in place of any
\nCancelled Bank, and upon the Borrowers, each such financial institution and the
\nAdministrative Agent executing a writing substantially in the form of Exhibit L,
\nsuch financial institution shall become and be a Bank hereunder with all the
\nrights and obligations it would have had if it had been named on the signature
\npages hereof, and having for all such financial institutions an aggregate
\nCommitment no greater than the whole, or such cancelled part, of the Commitment
\nof the Cancelled Bank in place of which such financial institutions were
\ndesignated; provided, however, that all rights and obligations of such Cancelled
\nBank relating to the Loans made by such Cancelled Bank that are outstanding on
\nthe date of such cancellation shall be the rights and obligations of such
\nCancelled Bank and not of any such financial institution. The Administrative
\nAgent shall execute any such writing presented to it and shall notify the Banks
\nof the execution thereof, the name of the financial institution executing such
\nwriting and the amount of its Commitment.<\/p>\n
2.20 Commitment Increases. (a) At any time after the Closing Date,
\n ——————–
\nprovided that no Event of Default shall have occurred and be continuing, the
\nBorrowers may request an increase of the aggregate Commitments by notice to the
\nAdministrative Agent in writing of the amount (the “Offered Increase Amount”) of
\nsuch proposed increase (such notice, a “Commitment Increase Notice”). Any such
\nCommitment Increase Notice must offer each Bank the opportunity to subscribe for
\nits pro rata share of the increased Commitments; provided, however, the
\nBorrowers may, with the consent of the Administrative Agent (which consent shall
\nnot be unreasonably withheld or delayed), without offering to each Bank the
\nopportunity to subscribe for its pro rata share of the increased Commitments,
\noffer to any bank or other financial institution that is not an existing Bank
\nthe opportunity to provide a new Commitment pursuant to paragraph (b) below if
\nthe aggregate amount of all Commitments made hereunder pursuant to this proviso
\nwhich will be in effect when such new Commitment becomes effective does not
\nexceed $750,000,000 subject to subsection 2.20(f). If any portion of the
\nincreased Commitments offered to the Banks as contemplated in the immediately
\npreceding sentence is <\/p>\n
31<\/p>\n
not subscribed for by the Banks, the Borrowers may, with the consent of the
\nAdministrative Agent as to any bank or financial institution that is not at such
\ntime a Bank (which consent shall not be unreasonably withheld or delayed), offer
\nto any existing Bank or to one or more additional banks or financial
\ninstitutions the opportunity to provide all or a portion of such unsubscribed
\nportion of the increased Commitments pursuant to paragraph (b) below.<\/p>\n
(b) Any additional bank or financial institution that the
\nBorrowers select to offer the opportunity to provide any portion of the
\nincreased Commitments, and that elects to become a party to this Agreement and
\nprovide a Commitment, shall execute a New Bank Supplement with the Borrowers and
\nthe Administrative Agent, substantially in the form of Exhibit N (a “New Bank
\n ——–
\nSupplement”), whereupon such bank or financial institution (a “New Bank”) shall
\n———- ——–
\nbecome a Bank for all purposes and to the same extent as if originally a party
\nhereto and shall be bound by and entitled to the benefits of this Agreement, and
\nSchedule II shall be deemed to be amended to add the name and Commitment of such
\nNew Bank, provided that the Commitment of any such New Bank shall be in an
\n ——–
\namount not less than $10,000,000.<\/p>\n
(c) Any Bank that accepts an offer to it by the Borrowers to
\nincrease its Commitment pursuant to this subsection 2.20 shall, in each case,
\nexecute a Commitment Increase Supplement with the Borrowers and the
\nAdministrative Agent, substantially in the form of Exhibit O (a “Commitment
\n ———-
\nIncrease Supplement”), whereupon such Bank (an “Increasing Bank”) shall be bound
\n——————- —————
\nby and entitled to the benefits of this Agreement with respect to the full
\namount of its Commitment as so increased, and Schedule II shall be deemed to be
\namended to so increase the Commitment of such Bank.<\/p>\n
(d) The effectiveness of any New Bank Supplement or Commitment
\nIncrease Supplement shall be contingent upon receipt by the Administrative Agent
\nof such corporate resolutions of the Borrowers and legal opinions of counsel to
\nthe Borrowers as the Administrative Agent shall reasonably request with respect
\nthereto.<\/p>\n
(e) (i) Except as otherwise provided in subparagraphs (ii) and
\n(iii) of this paragraph (e), if any bank or financial institution becomes a New
\nBank pursuant to subsection 2.20(b) or any Bank’s Commitment is increased
\npursuant to subsection 2.20(c), additional Committed Rate Loans made on or after
\nthe date of the effectiveness thereof (the “Re-Allocation Date”) shall be made
\n ——————
\nin accordance with the pro rata provisions of subsection 2.12(b) based on the
\nCommitment Percentages in effect on and after such Re-Allocation Date (except to
\nthe extent that any such pro rata borrowings would result in any Bank making an
\naggregate principal amount of Committed Rate Loans in excess of its Commitment,
\nin which case such excess amount will be allocated to, and made by, the relevant
\nNew Banks and Increasing Banks to the extent of, and in accordance with the pro
\nrata provisions of subsection 2.12(b) based on, their respective Commitments).
\nOn each Re-Allocation Date, the Administrative Agent shall deliver a notice to
\neach Bank of the adjusted Commitment Percentages after giving effect to any
\nincrease in the aggregate Commitments made pursuant to this subsection 2.20 on
\nsuch Re-Allocation Date.<\/p>\n
(ii) In the event that on any such Re-Allocation Date there is an
\nunpaid principal amount of ABR Loans, the applicable Borrower shall make
\nprepayments thereof and one or both Borrowers shall make borrowings of ABR Loans
\nand\/or Eurodollar Loans, as the <\/p>\n
32<\/p>\n
applicable Borrower shall determine, so that, after giving effect thereto, the
\nABR Loans and Eurodollar Loans outstanding are held as nearly as may be in
\naccordance with the pro rata provisions of subsection 2.12(b) based on such new
\nCommitment Percentages.<\/p>\n
(iii) In the event that on any such Re-Allocation Date there is an
\nunpaid principal amount of Eurodollar Loans, such Eurodollar Loans shall remain
\noutstanding with the respective holders thereof until the expiration of their
\nrespective Interest Periods (unless the applicable Borrower elects to prepay any
\nthereof in accordance with the applicable provisions of this Agreement), and on
\nthe last day of the respective Interest Periods the applicable Borrower shall
\nmake prepayments thereof and one or both Borrowers shall make borrowings of ABR
\nLoans and\/or Eurodollar Loans so that, after giving effect thereto, the ABR
\nLoans and Eurodollar Loans outstanding are held as nearly as may be in
\naccordance with the pro rata provisions of subsection 2.12(b) based on such new
\nCommitment Percentages.<\/p>\n
(f) Notwithstanding anything to the contrary in this subsection
\n2.20, (i) in no event shall any transaction effected pursuant to this subsection
\n2.20 cause the aggregate Commitments to exceed $3,000,000,000, (ii) the
\nCommitment of an individual Bank shall not, as a result of providing a new
\nCommitment or of increasing its existing Commitment pursuant to this subsection
\n2.20, exceed 15% of the aggregate Commitments on any Re-Allocation Date and
\n(iii) no Bank shall have any obligation to increase its Commitment unless it
\nagrees to do so in its sole discretion.<\/p>\n
(g) The Borrowers, at their own expense, shall execute and deliver
\nto the Administrative Agent in exchange for the surrendered Notes of any Bank,
\nif any, new Notes to the order of such Bank, if requested, in an amount equal to
\nthe Commitment of such Bank after giving effect to any increase in such Bank’s
\nCommitment.<\/p>\n
Section 3. REPRESENTATIONS AND WARRANTIES
\n ——————————<\/p>\n
Each Borrower hereby represents and warrants to the Administrative
\nAgent and to each Bank that:<\/p>\n
3.1 Financial Condition. The consolidated balance sheet of such
\n ——————-
\nBorrower and its consolidated Subsidiaries as at October 31, 2000 and the
\nrelated consolidated statements of income and of cash flow for the fiscal year
\nthen ended (including the related schedules and notes) reported on by Deloitte & Touche LLP, copies of which have heretofore been furnished to each Bank, fairly
\npresent the consolidated financial condition of such Borrower and its
\nconsolidated Subsidiaries as at such date, and the consolidated results of their
\noperations and changes in financial position for the fiscal year then ended. All
\nsuch financial statements, including the related schedules and notes thereto,
\nhave been prepared in accordance with generally accepted accounting principles
\nin the United States of America applied consistently throughout the periods
\ninvolved (except as approved by such accountants or Responsible Officer, as the
\ncase may be, and as disclosed therein).<\/p>\n
3.2 Corporate Existence. Such Borrower is duly organized, validly
\n ——————-
\nexisting and in good standing under the laws of the jurisdiction of its
\nincorporation and has the corporate <\/p>\n
33<\/p>\n
power and authority to own its properties and to conduct the business in which
\nit is currently engaged.<\/p>\n
3.3 Corporate Power; Authorization; Enforceable Obligations. Such
\n ——————————————————-
\nBorrower has the corporate power and authority and the legal right to execute,
\ndeliver and perform this Agreement and to borrow hereunder and has taken all
\nnecessary corporate action to authorize its borrowings on the terms and
\nconditions of this Agreement and to authorize its execution, delivery and
\nperformance of this Agreement. No consent or authorization of, filing with, or
\nother act by or in respect of, any Governmental Authority, is required in
\nconnection with the borrowings hereunder or with the execution, delivery,
\nperformance, validity or enforceability of this Agreement other than any such
\nconsents, authorizations, filings or acts as have been obtained, taken or made
\nand are in full force and effect. This Agreement has been duly executed and
\ndelivered on behalf of such Borrower, and this Agreement constitutes a legal,
\nvalid and binding obligation of such Borrower enforceable against such Borrower
\nin accordance with its terms, except as enforceability may be limited by
\napplicable bankruptcy, insolvency, reorganization, moratorium or similar laws
\naffecting the enforcement of creditors’ rights generally and by general equity
\nprinciples (whether enforcement is sought by proceedings in equity or at law).<\/p>\n
3.4 No Legal Bar. The execution, delivery and performance of this
\n ————
\nAgreement, the borrowings hereunder and the use of the proceeds thereof, will
\nnot violate any Requirement of Law or any Contractual Obligation of such
\nBorrower, and will not result in, or require, the creation or imposition of any
\nlien on any of its properties or revenues pursuant to any Requirement of Law or
\nContractual Obligation.<\/p>\n
3.5 No Material Litigation. No litigation, investigation or
\n ———————-
\nproceeding of or before any arbitrator or Governmental Authority is pending or,
\nto the knowledge of such Borrower, threatened by or against such Borrower or any
\nof its Subsidiaries or against any of its or their respective properties or
\nrevenues except actions, suits or proceedings which will not materially
\nadversely affect the ability of such Borrower to perform its obligations
\nhereunder. All of the defaults, if any, of such Borrower or any of its
\nSubsidiaries with respect to any order of any Governmental Authority do not, and
\nwill not collectively, have a material adverse effect on the business,
\noperations, property or financial or other condition of such Borrower and its
\nSubsidiaries taken as a whole.<\/p>\n
3.6 Taxes. Each of such Borrower and its Subsidiaries has filed
\n —–
\nor caused to be filed all tax returns which, to the knowledge of such Borrower,
\nare required to be filed (except where the failure to file such tax returns
\nwould not have a material adverse effect on the business, operations, property
\nor financial or other condition of such Borrower and its Subsidiaries taken as a
\nwhole), and has paid all taxes shown to be due and payable on said returns or on
\nany assessments made against it or any of its property and all other taxes, fees
\nor other charges imposed on it or any of its property by any Governmental
\nAuthority (other than assessments, taxes, fees and other charges the amount or
\nvalidity of which is currently being contested in good faith by appropriate
\nproceedings and with respect to which reserves in conformity with GAAP have been
\nprovided on the books of such Borrower or its Subsidiaries, as the case may be).<\/p>\n
34<\/p>\n
3.7 Margin Regulations. No part of the proceeds of any Loan
\n ——————
\nhereunder will be used for any purpose which violates the provisions of
\nRegulation U of the Board of Governors of the Federal Reserve System as now and
\nfrom time to time hereafter in effect.<\/p>\n
3.8 Pari Passu Ranking. The indebtedness of such Borrower under
\n ——————
\nits Loans and all other amounts due hereunder ranks at least pari passu with all
\npresent and future unsecured senior indebtedness of such Borrower (other than
\nindebtedness preferred by law).<\/p>\n
3.9 No Defaults. No “Event of Default” or similar event, or event
\n ———–
\nwhich, with the lapse of time or the giving of notice, or both, would constitute
\nsuch an Event of Default or similar event, has occurred and is continuing
\nhereunder or under any material bond, debenture, note or other evidence of
\nindebtedness, or in any material mortgage, deed of trust, indenture or loan
\nagreement, of such Borrower.<\/p>\n
3.10 Use of Proceeds. The proceeds of the Loans will be used by
\n —————
\nsuch Borrower for its general corporate purposes, which shall include, but shall
\nnot be limited to, any purchase or other acquisition of all or a portion of the
\ndebt or stock or other evidences of ownership of such Borrower or the assets or
\nstock or other evidences of ownership of any other Person or Persons.<\/p>\n
Section 4. CONDITIONS PRECEDENT
\n ——————–<\/p>\n
4.1 Conditions to Initial Loan. The obligation of each Bank to
\n ————————–
\nmake its initial Loan hereunder is subject to the satisfaction of the following
\nconditions precedent:<\/p>\n
(a) Counterparts. The Administrative Agent shall have received
\n ————
\ncounterparts hereof, executed by all of the parties hereto.<\/p>\n
(b) Resolutions. The Administrative Agent shall have received,
\n ———–
\nwith a counterpart for each Bank, resolutions, certified by the Secretary or an
\nAssistant Secretary of each Borrower, in form and substance satisfactory to the
\nAdministrative Agent, adopted by the Board of Directors of such Borrower
\nauthorizing the execution of this Agreement and the performance of its
\nobligations hereunder and any borrowings hereunder from time to time.<\/p>\n
(c) Legal Opinions. The Administrative Agent shall have received,
\n ————–
\nwith a counterpart for each Bank, an opinion of James R. Jenkins, Esq., or his
\nsuccessor as General Counsel of the Company, or an associate general counsel of
\nthe Company, dated the Closing Date and addressed to the Agents and the Banks,
\nsubstantially in the form of Exhibit G, and an opinion of Shearman & Sterling,
\nspecial counsel to the Borrowers, dated the Closing Date and addressed to the
\nAgents and the Banks, substantially in the form of Exhibit H. Such opinions
\nshall also cover such other matters incident to the transactions contemplated by
\nthis Agreement as the Administrative Agent shall reasonably require.<\/p>\n
(d) Incumbency Certificate. The Administrative Agent shall have
\n ———————-
\nreceived, with a counterpart for each Bank, a certificate of the Secretary or an
\nAssistant Secretary of each Borrower certifying the names and true signatures of
\nthe officers of such Borrower authorized to sign this Agreement, together with
\nevidence of the incumbency of such Secretary or Assistant Secretary.<\/p>\n
35<\/p>\n
(e) Termination of Existing Credit Agreements. The Administrative
\n —————————————–
\nAgent shall have received evidence satisfactory to it that the commitment of
\neach financial institution to make loans pursuant to (i) the $2,250,000,000 364-
\nDay Credit Agreement, dated as of February 22, 2000, as supplemented, among the
\nBorrowers, the lenders parties thereto, The Chase Manhattan Bank, as
\nAdministrative Agent, Bank of America, N.A. and Bank One, NA, as Documentation
\nAgents, Deutsche Bank AG New York Branch, as Syndication Agent, and the Managing
\nAgents and the Co-Agents named therein, and (ii) the $2,250,000,000 Five-Year
\nCredit Agreement, dated as of February 22, 2000, as supplemented, among the
\nBorrowers, the lenders parties thereto, The Chase Manhattan Bank, as
\nAdministrative Agent, Bank of America, N.A. and Bank One, NA, as Documentation
\nAgents, Deutsche Bank AG New York Branch, as Syndication Agent, and the Managing
\nAgents and the Co-Agents named therein, shall have been terminated in full and
\nthe outstanding principal amount of the indebtedness thereunder and all other
\namounts owing to any bank thereunder shall have been repaid or paid by the
\nBorrowers.<\/p>\n
(f) Fees. The Administrative Agent shall have received, for the
\n —-
\naccounts of the Banks and the Administrative Agent, and each Agent shall have
\nreceived, for the account of such Agent, all accrued fees and expenses owing
\nhereunder or in connection herewith to the Banks and the Agents to be received
\non the Closing Date.<\/p>\n
(g) Additional Matters. All other documents which the
\n ——————
\nAdministrative Agent may reasonably request in connection with the transactions
\ncontemplated by this Agreement shall be reasonably satisfactory in form and
\nsubstance to the Administrative Agent and its counsel.<\/p>\n
4.2 Conditions to All Loans. The obligation of each Bank to make
\n ———————–
\nany Loan (which shall include the initial Loan to be made by it hereunder but
\nshall not include any Loan made pursuant to subsection 2.20(e)(ii) or (iii) if,
\nafter the making of such Loan and the application of the proceeds thereof, the
\naggregate outstanding principal amount of the Committed Rate Loans would not be
\nincreased) to be made by it hereunder is subject to the satisfaction of the
\nfollowing conditions precedent:<\/p>\n
(a) Representations and Warranties. The representations and
\n ——————————
\nwarranties made by the Borrowers herein or which are contained in any
\ncertificate, document or financial or other statement furnished by either
\nBorrower at any time hereunder or in connection herewith (other than any
\nrepresentations and warranties which by the terms of such certificate, document
\nor financial or other statement do not survive the execution of this Agreement)
\nshall be correct on and as of the date of such Loan as if made on and as of such
\ndate except as such representations and warranties expressly relate to an
\nearlier date.<\/p>\n
(b) No Default or Event of Default. No Default or Event of
\n ——————————
\nDefault shall have occurred and be continuing on such date or after giving
\neffect to the Loans to be made on such date and the application of the proceeds
\nthereof.<\/p>\n
(c) Additional Conditions to Bid Loans. If such Loan is made
\n ———————————-
\npursuant to subsection 2.2, all conditions set forth in subsection 2.2(f) shall
\nhave been satisfied.<\/p>\n
36<\/p>\n
Each acceptance by either Borrower of a Loan shall constitute a
\nrepresentation and warranty by the relevant Borrower as of the date of such Loan
\nthat the applicable conditions in clauses (a), (b) and (c) of this subsection
\n4.2 have been satisfied.<\/p>\n
Section 5. AFFIRMATIVE COVENANTS
\n ———————<\/p>\n
Each of the Borrowers (except as otherwise specified) hereby agrees
\nthat, so long as there is any obligation by any Bank to make Loans to it
\nhereunder, any Loan of such Borrower remains outstanding and unpaid or any other
\namount is owing by such Borrower to any Bank or any Agent hereunder (unless the
\nMajority Banks shall otherwise consent in writing):<\/p>\n
5.1 Financial Statements. Such Borrower shall furnish to each
\n ——————–
\nBank:<\/p>\n
(a) as soon as available, but in any event within 120 days after
\nthe end of each fiscal year of such Borrower, a copy of the consolidated balance
\nsheet of such Borrower and its consolidated Subsidiaries as at the end of such
\nyear and the related consolidated statements of income and of cash flow for such
\nyear, reported on by Deloitte & Touche LLP or other independent certified public
\naccountants of nationally recognized standing; and<\/p>\n
(b) as soon as available, but in any event not later than 60 days
\nafter the end of each of the first three quarterly periods of each fiscal year
\nof such Borrower, the condensed unaudited consolidated balance sheet of such
\nBorrower and its consolidated Subsidiaries as at the end of each such quarter
\nand the related unaudited consolidated statement of income of such Borrower and
\nits consolidated Subsidiaries for such quarterly period and the portion of the
\nfiscal year through such date, certified by a Responsible Officer of such
\nBorrower (subject to normal year-end audit adjustments);<\/p>\n
all such financial statements to present fairly the consolidated financial
\ncondition and results of operations of such Borrower and its consolidated
\nSubsidiaries and to be prepared in accordance with generally accepted accounting
\nprinciples in the United States of America applied consistently throughout the
\nperiods reflected therein (except as approved by such accountants or officer, as
\nthe case may be, and disclosed therein).<\/p>\n
5.2 Certificates; Other Information. Such Borrower shall furnish
\n ——————————-
\nto each Bank:<\/p>\n
(a) concurrently with the delivery of the financial statements
\nreferred to in subsections 5.1(a) and (b) above, a certificate of a Responsible
\nOfficer of such Borrower stating that (i) he has no knowledge of the occurrence
\nand continuance of any Default or Event of Default except as specified in such
\ncertificate, in which case such certificate shall contain a description thereof
\nand a statement of the steps, if any, which such Borrower is taking, or proposes
\nto take, to cure the same and (ii) the financial statements delivered pursuant
\nto subsection 5.1 would not be different if prepared in accordance with GAAP
\nexcept as specified in such certificate; and<\/p>\n
(b) promptly, such additional financial and other information as
\nany Bank may from time to time reasonably request.<\/p>\n
37<\/p>\n
5.3 Company Indenture Documents. The Company shall,
\n —————————
\ncontemporaneously with the delivery thereof to the Trustee, furnish to each Bank
\na copy of any information, document or report required to be filed with the
\nTrustee pursuant to Section 7.03 of the indenture dated October 1, 1998 between
\nthe Company and The Chase Manhattan Bank (National Association), as trustee.<\/p>\n
5.4 Capital Corporation Indenture Documents. The Capital
\n —————————————
\nCorporation shall, contemporaneously with the delivery thereof to the trustee,
\nfurnish to each Bank a copy of any information, document or report required to
\nbe filed with the Trustee pursuant to Section 7.03 of the indenture dated March
\n15, 1997, between the Capital Corporation and The Bank of New York, as trustee.<\/p>\n
5.5 Notice of Default. Such Borrower shall promptly give notice
\n —————–
\nto the Administrative Agent of the occurrence of any Default or Event of
\nDefault, which notice shall be given in writing as soon as possible, and in any
\nevent within 10 days after a Responsible Officer of such Borrower obtains
\nknowledge of such occurrence, with a description of the steps being taken to
\nremedy the same (provided that such Borrower shall not be obligated to give
\nnotice of any Default or Event of Default which is remedied prior to or within
\n10 days after a Responsible Officer of such Borrower first acquires such
\nknowledge). Upon receipt of any such notice, the Administrative Agent shall
\npromptly notify each Bank thereof.<\/p>\n
5.6 Ownership of Capital Corporation Stock. The Company shall
\n ————————————–
\ncontinue to own, directly or through one or more wholly-owned Subsidiaries, free
\nand clear of any lien or other encumbrance, 51% of the voting stock of the
\nCapital Corporation; provided, however, that the Capital Corporation may merge
\nor consolidate with, or sell or convey substantially all of its assets to, the
\nCompany as provided in subsection 7.4.<\/p>\n
5.7 Employee Benefit Plans. The Company shall maintain, and cause
\n ———————-
\neach of its Subsidiaries to maintain, each Plan as to which it may have
\nliability, in compliance with all applicable requirements of law and
\nregulations.<\/p>\n
Section 6. NEGATIVE COVENANTS OF THE COMPANY
\n ———————————<\/p>\n
The Company hereby agrees that, so long as there is any obligation
\nby any Bank to make Loans hereunder, any Loan remains outstanding and unpaid or
\nany other amount is owing to any Agent or any Bank hereunder, it shall not, nor
\nin the case of subsections 6.2 and 6.3 shall it permit any Restricted Subsidiary
\nto (unless the Majority Banks shall otherwise consent in writing):<\/p>\n
6.1 Company May Consolidate, etc. Only on Certain Terms.
\n —————————-
\nConsolidate with or merge with or into any other corporation or convey or
\ntransfer its properties and assets substantially as an entirety to any Person,
\nunless:<\/p>\n
(a) either the Company shall be the continuing corporation, or the
\ncorporation (if other than the Company) formed by such consolidation or into
\nwhich the Company is merged or the Person which acquires by conveyance or
\ntransfer the properties and assets of the Company substantially as an entirety
\nshall expressly assume, by an assumption agreement, executed and delivered to
\nthe Administrative Agent, in form satisfactory to the Majority Banks, the due
\nand <\/p>\n
38<\/p>\n
punctual payment of the principal of and interest on the Loans to the Company
\nand the performance of every covenant of this Agreement on the part of the
\nCompany to be performed or observed;<\/p>\n
(b) immediately after giving effect to such transaction, no
\nDefault or Event of Default, shall have happened and be continuing;<\/p>\n
(c) if as a result thereof any property or assets of the Company
\nor a Restricted Subsidiary would become subject to any Mortgage not permitted by
\n(i) through (xii) of subsection 6.2(a) or subsection 6.2(b), compliance shall be
\neffected with the first clause of subsection 6.2(a); and<\/p>\n
(d) the Company and the successor Person have delivered to the
\nAdministrative Agent an officers’ certificate signed by two Responsible Officers
\nof the Company stating that such consolidation, merger, conveyance or transfer
\nand such assumption agreement comply with this subsection 6.1 and that all
\nconditions precedent herein provided for relating to such transaction have been
\ncomplied with.<\/p>\n
6.2 Limitation on Liens. (a) Issue, incur, assume or guarantee
\n ——————-
\nany debt (hereinafter in this subsection referred to as “Debt”) secured by any
\nmortgage, security interest, pledge, lien or other encumbrance (hereinafter
\ncalled “Mortgage” or “Mortgages”) upon any Important Property, or upon any
\nshares of stock or indebtedness issued or incurred by any Restricted Subsidiary
\n(whether such Important Property, shares of stock or indebtedness is now owned
\nor hereafter acquired) without in any such case effectively providing,
\nconcurrently with the issuance, incurrence, assumption or guaranty of any such
\nDebt, that the Loans and all other amounts hereunder (together with, if the
\nCompany shall so determine, any other indebtedness of or guaranty by the Company
\nor such Restricted Subsidiary ranking equally with the Loans then existing or
\nthereafter created) shall be secured equally and ratably with or prior to such
\nDebt; provided, however, that the foregoing restrictions shall not apply to:<\/p>\n
(i) Mortgages on any property acquired, constructed or improved by
\nthe Company or any Restricted Subsidiary after the date of this Agreement which
\nare created or assumed contemporaneously with, or within 120 days after, such
\nacquisition, construction or improvement to secure or provide for the payment of
\nall or any part of the purchase price of such property or the cost of such
\nconstruction or improvement incurred after the date of this Agreement, or (in
\naddition to Mortgages contemplated by clauses (ii), (iii) and (iv) below)
\nMortgages on any property existing at the time of acquisition thereof; provided
\n ——–
\nthat such Mortgages shall not apply to any Important Property theretofore owned
\nby the Company or any Restricted Subsidiary other than, in the case of any such
\nconstruction or improvement, any theretofore unimproved real property on which
\nthe property so constructed, or the improvement, is located;<\/p>\n
(ii) Mortgages on any property, shares of stock, or indebtedness
\nexisting at the time of acquisition thereof from a corporation which is
\nconsolidated with or merged into, or substantially all of the assets of which
\nare acquired by, the Company or a Restricted Subsidiary;<\/p>\n
39<\/p>\n
(iii) Mortgages on property of a corporation existing at the time
\nsuch corporation becomes a Restricted Subsidiary;<\/p>\n
(iv) Mortgages to secure Debt of a Restricted Subsidiary to the
\nCompany or to another Restricted Subsidiary;<\/p>\n
(v) Mortgages in favor of the United States of America or any
\nState thereof, or any department, agency or instrumentality or political
\nsubdivision of the United States of America or any State thereof, to secure
\npartial, progress, advance or other payments pursuant to any contract or statute
\nor to secure any indebtedness incurred for the purpose of financing all or any
\npart of the purchase price or the cost of constructing or improving the property
\nsubject to such Mortgages and Mortgages given to secure indebtedness incurred in
\nconnection with the financing of construction of pollution control facilities,
\nthe interest on which indebtedness is exempt from income taxes under the Code;<\/p>\n
(vi) any deposit or pledge of assets (1) with any surety company
\nor clerk of any court, or in escrow, as collateral in connection with, or in
\nlieu of, any bond on appeal from any judgment or decree against the Company or a
\nRestricted Subsidiary, or in connection with other proceedings or actions at law
\nor in equity by or against the Company or a Restricted Subsidiary, or (2) as
\nsecurity for the performance of any contract or undertaking not directly related
\nto the borrowing of money or the securing of indebtedness, if made in the
\nordinary course of business, or (3) with any governmental agency, which deposit
\nor pledge is required or permitted to qualify the Company or a Restricted
\nSubsidiary to conduct business, to maintain self-insurance, or to obtain the
\nbenefits of any law pertaining to worker’s compensation, unemployment insurance,
\nold age pensions, social security, or similar matters, or (4) made in the
\nordinary course of business to obtain the release of mechanics’, workmen’s,
\nrepairmen’s, warehousemen’s or similar liens, or the release of property in the
\npossession of a common carrier;<\/p>\n
(vii) Mortgages existing on property acquired by the Company or a
\nRestricted Subsidiary through the exercise of rights arising out of defaults on
\nreceivables acquired in the ordinary course of business;<\/p>\n
(viii) judgment liens, so long as the finality of such judgment is
\nbeing contested in good faith and execution thereon is stayed;<\/p>\n
(ix) Mortgages for the sole purpose of extending, renewing or
\nreplacing in whole or in part Debt secured by any Mortgage referred to in the
\nforegoing clauses (i) to (viii), inclusive, or in this clause (ix), provided,
\n ——–
\nhowever, that the principal amount of Debt secured thereby shall not exceed the
\n——-
\nprincipal amount of Debt so secured at the time of such extension, renewal or
\nreplacement, and that such extension, renewal or replacement shall be limited to
\nall or a part of the property which secured the Mortgage so extended, renewed or
\nreplaced (plus improvements on such property);<\/p>\n
(x) liens for taxes or assessments or governmental charges or
\nlevies not yet due or delinquent, or which can thereafter be paid without
\npenalty, or which are being contested in good faith by appropriate proceedings;
\nlandlord’s liens on property held under lease; and any <\/p>\n
40<\/p>\n
other liens of a nature similar to those hereinabove described in this clause
\n(x) which do not, in the opinion of the Company, materially impair the use of
\nsuch property in the operation of the business of the Company or a Restricted
\nSubsidiary or the value of such property for the purposes of such business;<\/p>\n
(xi) Mortgages on Margin Stock owned by the Company and its
\nRestricted Subsidiaries to the extent such Margin Stock so Mortgaged exceeds 25%
\nof the fair market value of the sum of the Important Property of the Company and
\nthe Restricted Subsidiaries plus the shares of stock (including Margin Stock)
\nand indebtedness issued or incurred by the Restricted Subsidiaries; and<\/p>\n
(xii) Mortgages on any Important Property of, or any shares of
\nstock or indebtedness issued or incurred by, any Restricted Subsidiary organized
\nunder the laws of Canada.<\/p>\n
(b) (i) The provisions of subsection 6.2(a) shall not apply to
\nthe issuance, incurrence, assumption or guarantee by the Company or any
\nRestricted Subsidiary of Debt secured by a Mortgage which would otherwise be
\nsubject to the foregoing restrictions up to an aggregate amount which, together
\nwith the sum of (A) all other Debt issued or incurred by the Company and its
\nRestricted Subsidiaries secured by Mortgages (other than Mortgages permitted by
\nsubsection 6.2(a)) which would otherwise be subject to the foregoing
\nrestrictions and (B) the Attributable Debt in respect of Sale and Lease-back
\nTransactions in existence at such time (other than Sale and Lease-back
\nTransactions which, if the Attributable Debt in respect of such Sale and Lease-
\nback had been a Mortgage, would have been permitted by clause (i) of subsection
\n6.2(a) and other than Sale and Lease-back Transactions the proceeds of which
\nhave been applied in accordance with subsection 6.3(b)) does not at the time
\nexceed 5% of Consolidated Net Worth, as shown on the audited consolidated
\nbalance sheet contained in the latest annual report to stockholders of the
\nCompany.<\/p>\n
(ii) For purposes of subsection 6.2(b)(i), the term “Consolidated
\n ————
\nNet Worth” shall mean the aggregate of capital and surplus of the Company and
\n———
\nits consolidated Subsidiaries, less minority interests in Subsidiaries,
\ndetermined in accordance with GAAP; and the term “Attributable Debt” shall
\n —————–
\nmean, as of any particular time, the present value, discounted at a rate per
\nannum equal to the interest rate set forth in the Company’s 8-1\/2% Debentures
\nDue 2022, compounded semi-annually, of the obligation of a lessee for rental
\npayments during the remaining term of any lease (including any period for which
\nsuch lease has been extended or may, at the option of the lessor, be extended);
\nthe net amount of rent required to be paid for any such period shall be the
\ntotal amount of the rent payable by the lessee with respect to such period, but
\nmay exclude amounts required to be paid on account of maintenance and repairs,
\ninsurance, taxes, assessments, water rates and similar charges; and, in the case
\nof any lease which is terminable by the lessee upon the payment of a penalty,
\nsuch net amount shall also include the amount of such penalty, but no rent shall
\nbe considered as required to be paid under such lease subsequent to the first
\ndate upon which it may be so terminated.<\/p>\n
(c) If, upon any consolidation or merger of any Restricted
\nSubsidiary with or into any other corporation, or upon any consolidation or
\nmerger of any other corporation with or into the Company or any Restricted
\nSubsidiary or upon any sale or conveyance of the property of <\/p>\n
41<\/p>\n
any Restricted Subsidiary as an entirety or substantially as an entirety to any
\nother Person, or upon any acquisition by the Company or any Restricted
\nSubsidiary by purchase or otherwise of all or any part of the property of any
\nother Person, any Important Property theretofore owned by the Company or such
\nRestricted Subsidiary would thereupon become subject to any Mortgage not
\npermitted by the terms of subsection (a) or (b) of this subsection 6.2, the
\nCompany, prior to such consolidation, merger, sale or conveyance, or
\nacquisition, will, or will cause such Restricted Subsidiary to, secure payment
\nof the principal of and interest on the Loans (equally and ratably with or prior
\nto any other indebtedness of the Company or such Subsidiary then entitled
\nthereto) by a direct lien on all such property prior to all liens other than any
\nliens theretofore existing thereon by an assumption agreement or otherwise.<\/p>\n
(d) If at any time the Company or any Restricted Subsidiary
\nshall issue, incur, assume or guarantee any Debt secured by any Mortgage not
\npermitted by this subsection 6.2, to which the covenant in subsection 6.2(a) is
\napplicable, the Company will promptly deliver to the Administrative Agent (with
\ncounterparts for each Bank):<\/p>\n
(i) an officers’ certificate signed by two Responsible Officers
\nof the Company stating that the covenant of the Company contained in paragraph
\n(a) or (c) of this subsection 6.2 has been complied with; and<\/p>\n
(ii) an opinion of counsel satisfactory to the Administrative
\nAgent to the effect that such covenant has been complied with, and that any
\ninstruments executed by the Company in the performance of such covenant comply
\nwith the requirements of such covenant.<\/p>\n
6.3 Limitations on Sale and Lease-back Transactions. Enter into
\n ———————————————–
\nany arrangement with any Person providing for the leasing to the Company or any
\nRestricted Subsidiary of any Important Property owned or hereafter acquired by
\nthe Company or such Restricted Subsidiary (except for temporary leases for a
\nterm, including any renewal thereof, of not more than three years and except for
\nleases between the Company and a Restricted Subsidiary or between Restricted
\nSubsidiaries), which Important Property has been or is to be sold or transferred
\nby the Company or such Restricted Subsidiary to such Person (herein referred to
\nas a “Sale and Lease-back Transaction”) unless the net proceeds of such sale are
\nat least equal to the fair value (as determined by the Board of Directors of the
\nCompany or such Restricted Subsidiary, as applicable) of such property and
\neither (a) the Company or such Restricted Subsidiary would be entitled, pursuant
\nto the provisions of (1) subsection 6.2(a)(i) or (2) subsection 6.2(b), to incur
\nDebt secured by a Mortgage on the Important Property to be leased without
\nequally and ratably securing the Loans, or (b) the Company shall, and in any
\nsuch case the Company covenants that it will, within 120 days of the effective
\ndate of any such arrangement, apply an amount equal to the fair value (as so
\ndetermined) of such property to the reduction of the Commitments (to be
\naccompanied by prepayment of the Loans in accordance with subsection 2.6 to the
\nextent that the principal amount thereof outstanding prior to such prepayment
\nwould exceed the Commitments as so reduced) or to the payment or other
\nretirement of funded debt for money borrowed, incurred or assumed by the Company
\nwhich ranks senior to or pari passu with the Loans or of funded debt for money
\nborrowed, incurred or assumed by any Restricted Subsidiary (other than, in
\neither case, funded debt owned by the Company or any Restricted Subsidiary). For
\nthis purpose, funded debt means any Debt which by its terms matures at or is
\nextendable or renewable at the sole option of the obligor without <\/p>\n
42<\/p>\n
requiring the consent of the obligee to a date more than twelve months after the
\ndate of the creation of such Debt.<\/p>\n
6.4 Consolidated Tangible Net Worth. Permit Consolidated Tangible
\n ——————————-
\nNet Worth as at the end of any fiscal quarter of the Company and its
\nconsolidated Subsidiaries (including the last quarter of any fiscal year of the
\nCompany and its consolidated Subsidiaries) to be less than $500,000,000.<\/p>\n
Section 7. NEGATIVE COVENANTS OF THE CAPITAL CORPORATION
\n ———————————————<\/p>\n
The Capital Corporation hereby agrees that, so long as there is any
\nobligation by any Bank to make Loans to the Capital Corporation hereunder, any
\nLoan of the Capital Corporation remains outstanding and unpaid or any other
\namount is owing by the Capital Corporation to any Bank or any Agent hereunder,
\nthe Capital Corporation shall not, nor in the case of the agreements set forth
\nin subsection 7.3 shall it permit any of its Subsidiaries to, directly or
\nindirectly (unless the Majority Banks shall otherwise consent in writing):<\/p>\n
7.1 Fixed Charges Ratio. Permit the ratio of Net Earnings
\n ——————-
\nAvailable for Fixed Charges to Fixed Charges for any fiscal quarter of the
\nCapital Corporation and its consolidated Subsidiaries (including the last
\nquarter of any fiscal year of the Capital Corporation and its consolidated
\nSubsidiaries) to be less than 1.05 to 1.<\/p>\n
7.2 Consolidated Senior Debt to Consolidated Capital Base. Permit
\n —————————————————–
\nthe ratio of Consolidated Senior Debt to Consolidated Capital Base as at the end
\nof any fiscal quarter of the Capital Corporation and its consolidated
\nSubsidiaries (including the end of any fiscal year of the Capital Corporation
\nand its consolidated Subsidiaries) to be more than 8 to 1.<\/p>\n
7.3 Limitation on Liens. Issue, incur, assume or guarantee any
\n ——————-
\nDebt secured by any Mortgage upon any of its property or assets, or any of the
\nproperty or assets of any of its Subsidiaries (whether any such property or
\nassets is now owned or hereafter acquired) without in any such case effectively
\nproviding, concurrently with the issuance, incurrence, assumption or guaranty of
\nany such Debt, that the Loans and all other amounts hereunder (together with, if
\nthe Capital Corporation shall so determine, any other indebtedness of or
\nguaranty by such Borrower or such Subsidiary ranking equally with the Loans then
\nexisting or thereafter created) shall be secured equally and ratably with or
\nprior to such Debt; provided, however, that the foregoing restrictions shall not
\napply to:<\/p>\n
(a) Mortgages on fixed assets or other physical properties
\nhereafter acquired to secure all or part of the purchase price thereof or the
\nacquiring hereafter of such assets or properties subject to any existing lien or
\ncharge securing indebtedness (whether or not assumed);<\/p>\n
(b) easements, liens, franchises or other minor encumbrances on or
\nover any real property which do not materially detract from the value of such
\nproperty or its use in the business of the Capital Corporation or a Subsidiary
\nof the Capital Corporation;<\/p>\n
(c) any deposit or pledge of assets (i) with any surety company or
\nclerk of any court, or in escrow, as collateral in connection with or in lieu
\nof, any bond on appeal from any judgment or decree against the Capital
\nCorporation or a Subsidiary of the Capital Corporation, or <\/p>\n
43<\/p>\n
in connection with other proceedings or actions at law or in equity by or
\nagainst the Capital Corporation or a Subsidiary of the Capital Corporation or
\n(ii) as security for the performance of any contract or undertaking not directly
\nor indirectly related to the borrowing of money or the securing of indebtedness,
\nif made in the ordinary course of business, or (iii) with any governmental
\nagency, which deposit or pledge is required or permitted to qualify the Capital
\nCorporation or a Subsidiary of the Capital Corporation to conduct business, to
\nmaintain self-insurance, or to obtain the benefits of any law pertaining to
\nworkmen’s compensation, unemployment insurance, old age pensions, social
\nsecurity, or similar matters, or (iv) made in the ordinary course of business to
\nobtain the release of mechanics’, workmen’s, repairmen’s, warehousemen’s or
\nsimilar liens, or the release of property in the possession of a common carrier;<\/p>\n
(d) Mortgages by a Subsidiary as security for indebtedness owed to
\nthe Capital Corporation;<\/p>\n
(e) liens for taxes and governmental charges not yet due or
\ncontested by appropriate proceedings in good faith;<\/p>\n
(f) Mortgages existing on property acquired by the Capital
\nCorporation or a Subsidiary of the Capital Corporation through the exercise of
\nrights arising out of defaults on receivables acquired in the ordinary course of
\nbusiness;<\/p>\n
(g) judgment liens, so long as the finality of such judgment is
\nbeing contested in good faith and execution thereon is stayed;<\/p>\n
(h) any Mortgage (other than directly or indirectly to secure
\nborrowed money) if, after giving effect thereto, the aggregate principal sums
\nsecured by pledges or liens otherwise within the restrictions in clauses (a)
\nthrough (h) of this subsection 7.3 do not exceed $500,000;<\/p>\n
(i) any transaction characterized as a sale of receivables (retail
\nor wholesale) but reflected as secured indebtedness on a balance sheet in
\nconformity with generally accepted accounting principles in the United States of
\nAmerica; and<\/p>\n
(j) Mortgages on Margin Stock owned by the Capital Corporation and
\nits Subsidiaries to the extent such Margin Stock exceeds 25% of the fair market
\nvalue of property and assets of the Capital Corporation and its Subsidiaries
\n(including Margin Stock).<\/p>\n
7.4 Consolidation; Merger. Merge or consolidate with, or sell or
\n ———————
\nconvey (other than a conveyance by way of lease) all or substantially all of its
\nassets to, any other corporation, unless (a) the Capital Corporation shall be
\nthe surviving corporation in the case of a merger or the surviving, resulting or
\ntransferee corporation (the “successor corporation”) shall be a corporation
\norganized under the laws of the United States or any State thereof or the
\nDistrict of Columbia and shall expressly assume the due and punctual performance
\nof all of the agreements, covenants and obligations of the Capital Corporation
\nunder this Agreement by supplemental agreement satisfactory to the
\nAdministrative Agent and executed and delivered to the Administrative Agent by
\nthe successor corporation and (b) the Capital Corporation or such successor
\ncorporation, as the case may be, shall not, immediately after such merger,
\nconsolidation, sale or conveyance, be in default in the performance of any such
\nagreements, <\/p>\n
44<\/p>\n
covenants or obligations; provided, however, that the Capital Corporation may
\nmerge or consolidate with, or sell or convey substantially all of its assets to,
\nthe Company, if (i) the Company is the successor corporation (as defined above)
\nand (ii) subclause (b) above is complied with. Upon any such merger,
\nconsolidation, sale or conveyance, the successor corporation shall succeed to
\nand be substituted for, and may exercise every right and power of and shall be
\nsubject to all the obligations of, the Capital Corporation under this Agreement,
\nwith the same effect as if the successor corporation had been named as the
\nCapital Corporation herein and therein.<\/p>\n
Section 8. EVENTS OF DEFAULT
\n —————–<\/p>\n
Upon the occurrence and during the continuance of any of the
\nfollowing events:<\/p>\n
(a) Either Borrower shall fail to pay any principal of any Loan
\nwhen due in accordance with the terms hereof or to pay any interest on any Loan,
\nin each case within two Business Days after any such amount becomes due in
\naccordance with the terms hereof or shall fail to pay any other amount payable
\nhereunder within five Business Days after any such other amount becomes due in
\naccordance with the terms thereof or hereof; or<\/p>\n
(b) Any representation or warranty made or pursuant to subsection
\n4.2 deemed made by either Borrower herein or which is contained in any material
\ncertificate, material document or material financial statement or other material
\nstatement furnished at any time under or in connection with this Agreement shall
\nprove to have been incorrect in any material respect on or as of the date made
\nor deemed made; or<\/p>\n
(c) The Company shall default in the observance or performance of
\nany agreement contained in subsection 5.6, 6.1 or 6.4, or the Capital
\nCorporation shall default in the observance or performance of any agreement
\ncontained in subsections 7.1, 7.2 or 7.4; or<\/p>\n
(d) Either Borrower shall default in the observance or performance
\nof any agreement contained in this Agreement (other than those agreements
\nreferred to above in this Section 8), and such default shall continue unremedied
\nfor a period of 30 days after written notice thereof shall have been given to
\nsuch Borrower by the Administrative Agent or any of the Banks through the
\nAdministrative Agent; or<\/p>\n
(e) (i) Either Borrower or any of its Significant Subsidiaries
\nshall default in any payment of principal of or interest on any indebtedness for
\nborrowed money (other than the Loans) in a principal amount in excess of
\n$30,000,000 in the aggregate, or any interest or premium thereon, when due
\n(whether at scheduled maturity or by required prepayment, acceleration, demand
\nor otherwise) and such failure shall continue beyond the period of grace, if
\nany, provided in the instrument or agreement under which such indebtedness was
\ncreated; or (ii) any other default (other than any default arising solely out of
\neither Borrower’s, or any of its Significant Subsidiaries’, violation of any
\narrangement with any Bank, or any affiliate of any Bank, in any way restricting
\nsuch Borrower’s, or such Significant Subsidiary’s, right or ability to sell,
\npledge or otherwise dispose of Margin Stock other than Restricted Margin Stock),
\nor any other event that with notice or the lapse of time, or both, would
\nconstitute such a default, under any agreement or instrument relating to any
\nsuch indebtedness for borrowed money (other than <\/p>\n
45<\/p>\n
the Loans), shall occur and shall continue after the applicable grace period, if
\nany, specified in such agreement or instrument, if the effect of such default or
\nevent is to accelerate the maturity of such indebtedness; or (iii) any such
\nindebtedness shall, by reason of default, be declared to be due and payable, or
\nrequired to be prepaid, prior to the stated maturity thereof (unless such
\nindebtedness is declared due and payable, or required to be prepaid, solely by
\nreason of either Borrower’s, or any of its Significant Subsidiaries’, violation
\nof any arrangement with any Bank, or any affiliate of any Bank, in any way
\nrestricting such Borrower’s, or such Significant Subsidiary’s, right or ability
\nto sell, pledge or otherwise dispose of Margin Stock other than Restricted
\nMargin Stock); or<\/p>\n
(f) (i) Either Borrower or any of its Significant Subsidiaries
\nshall commence any case, proceeding or other action (A) under any existing or
\nfuture law of any jurisdiction, domestic or foreign, relating to bankruptcy,
\ninsolvency, reorganization or relief of debtors, seeking to have an order for
\nrelief entered with respect to it, or seeking to adjudicate it a bankrupt or
\ninsolvent, or seeking reorganization, arrangement, adjustment, winding-up,
\nliquidation, dissolution, composition or other relief with respect to it or its
\ndebts, or (B) seeking appointment of a receiver, trustee, custodian or other
\nsimilar official for it or for all or any substantial part of its assets, or
\nsuch Borrower or any of its Significant Subsidiaries shall make a general
\nassignment for the benefit of its creditors; or (ii) there shall be commenced
\nagainst either Borrower or any of its Significant Subsidiaries any case,
\nproceeding or other action of a nature referred to in clause (i) above which (A)
\nresults in the entry of an order for relief or any such adjudication or
\nappointment or (B) remains undismissed, undischarged or unbonded for a period of
\n90 days; or<\/p>\n
(g) Any action is undertaken to terminate any Plan as to which
\neither Borrower, or any Subsidiary of either Borrower, may have liability, or
\nany such Plan is terminated or such Borrower or Subsidiary withdraws from such
\nPlan, or any Reportable Event as to any such Plan shall occur, and there shall
\nexist a deficiency in the assets available to satisfy the benefits guaranteeable
\nunder ERISA with respect to such Plan, in the aggregate for all such Plans with
\nrespect to which any of the foregoing shall have occurred in the immediately
\npreceding 12 consecutive months, of more than 25% of the Consolidated Tangible
\nNet Worth of such Borrower; or<\/p>\n
(h) Any Person shall own beneficially, directly or indirectly, 30%
\nor more of the common stock of the Company; or any Person shall have the power,
\ndirect or indirect, to vote securities having 30% or more of the ordinary voting
\npower for the election of directors of the Company or shall own beneficially,
\ndirectly or indirectly, securities having such power, provided that there shall
\n ——–
\nnot be included among the securities as to which any such Person has such power
\nto vote or which such Person so owns securities owned by such Person as nominee
\nfor the direct or indirect beneficial owner thereof or securities as to which
\nsuch power to vote arises by virtue of proxies solicited by the management of
\nthe Company;<\/p>\n
then, and in any such event, (A) if such event is an Event of Default specified
\nin paragraph (f) above, automatically the Commitments shall immediately
\nterminate and the Loans hereunder (with accrued interest thereon) and all other
\namounts owing under this Agreement and the Loans shall immediately become due
\nand payable, and (B)(1) if such event is any Event of Default specified in
\nparagraph (a) or (e), then with the consent of the Majority Banks, the
\nAdministrative <\/p>\n
46<\/p>\n
Agent may, or upon the request of the Majority Banks, the Administrative Agent
\nshall, or (2) if such Event is an Event of Default specified in paragraph (b),
\n(c), (d), (g) or (h), then with the consent of the Required Banks, the
\nAdministrative Agent may, or upon the request of the Required Banks, the
\nAdministrative Agent shall, take either or both of the following actions: (i) by
\nnotice to the Borrowers, declare the Commitments to be terminated forthwith,
\nwhereupon the Commitments shall immediately terminate; and (ii) by notice of
\ndefault to the Borrowers, declare the Loans hereunder (with accrued interest
\nthereon) and all other amounts owing under this Agreement to be due and payable
\nforthwith, whereupon the same shall immediately become due and payable. Except
\nas expressly provided above in this Section, presentment, demand, protest and
\nall other notices of any kind are hereby expressly waived with respect to this
\nAgreement.<\/p>\n
Section 9. THE AGENTS
\n ———-<\/p>\n
9.1 Appointment. (a) Each Bank hereby irrevocably designates and
\n ———–
\nappoints Chase as the Administrative Agent of such Bank under this Agreement,
\nand each Bank hereby irrevocably authorizes Chase as the Administrative Agent
\nfor such Bank, to take such action on its behalf under the provisions of this
\nAgreement and to exercise such powers and perform such duties as are expressly
\ndelegated to the Administrative Agent by the terms of this Agreement, together
\nwith such other powers as are reasonably incidental thereto.<\/p>\n
(b) Notwithstanding anything to the contrary contained in this
\nAgreement, the parties hereto hereby agree that neither the Syndication Agent,
\nthe Documentation Agents, any Managing Agent nor any Co-Agent shall have any
\nrights, duties or responsibilities in such respective capacity nor shall any
\nsuch Person have the authority to take any action hereunder in its capacity as
\nsuch.<\/p>\n
(c) Notwithstanding any provision to the contrary elsewhere in
\nthis Agreement, no Agent shall have any duties or responsibilities, except those
\nexpressly set forth herein, or any fiduciary relationship with any Bank, and no
\nimplied covenants, functions, responsibilities, duties, obligations or
\nliabilities shall be read into this Agreement or otherwise exist against any
\nAgent.<\/p>\n
9.2 Delegation of Duties. Each Agent may execute any of its
\n ——————–
\nduties under this Agreement by or through agents or attorneys-in-fact and shall
\nbe entitled to advice of counsel concerning all matters pertaining to such
\nduties. Each Agent shall not be responsible for the negligence or misconduct of
\nany agents or attorneys-in-fact selected by it with reasonable care.<\/p>\n
9.3 Exculpatory Provisions. Neither any Agent nor any of their
\n ———————-
\nrespective officers, directors, employees, agents, attorneys-in-fact or
\naffiliates shall be (i) liable to any Bank for any action lawfully taken or
\nomitted to be taken by it or such Person under or in connection with this
\nAgreement (except for its or such Person’s own gross negligence or wilful
\nmisconduct), or (ii) responsible in any manner to any of the Banks for any
\nrecitals, statements, representations or warranties made by the Borrowers or any
\nofficer thereof contained in this Agreement or in any certificate, report,
\nstatement or other document referred to or provided for in, or received by any
\nAgent under or in connection with, this Agreement or for the value, validity,
\neffectiveness, genuineness, enforceability or sufficiency of this Agreement or
\nfor any failure of the Borrowers to perform their obligations hereunder. No
\nAgent shall be under any <\/p>\n
47<\/p>\n
obligation to any Bank to ascertain or to inquire as to the observance or
\nperformance of any of the agreements contained in, or conditions of, this
\nAgreement, or to inspect the properties, books or records of the Borrowers.<\/p>\n
9.4 Reliance by Agents. Each Agent shall be entitled to rely, and
\n ——————
\nshall be fully protected in relying, upon any Loan, writing, resolution, notice,
\nconsent, certificate, affidavit, letter, cablegram, telegram, facsimile, telex
\nor teletype message, statement, order or other document or conversation believed
\nby it to be genuine and correct and to have been signed, sent or made by the
\nproper Person or Persons and upon advice and statements of legal counsel
\n(including, without limitation, counsel to the Borrowers), independent
\naccountants and other experts selected by such Agent. Each Agent may deem and
\ntreat the payee of any Loan as the owner thereof for all purposes except as
\nprovided in subsections 10.5(c) and 10.5(d). Each Agent shall be fully justified
\nin failing or refusing to take any discretionary action under this Agreement
\nunless it shall first receive such advice or concurrence of the Majority Banks
\nas it deems appropriate or it shall first be indemnified to its satisfaction by
\nthe Banks against any and all liability and expense which may be incurred by it
\nby reason of taking or continuing to take any such action. Each Agent shall in
\nall cases be fully protected in acting, or in refraining from acting, under this
\nAgreement in accordance with a request of the Majority Banks, or all of the
\nBanks (if the consent of all of the Banks is required), and such request and any
\naction taken or failure to act pursuant thereto shall be binding upon all the
\nBanks.<\/p>\n
9.5 Notice of Default. The Administrative Agent shall not be
\n —————–
\ndeemed to have knowledge or notice of the occurrence of any Default or Event of
\nDefault unless the Administrative Agent has received notice from a Bank or
\neither Borrower referring to this Agreement, describing such Default or Event of
\nDefault and stating that such notice is a “notice of default”. In the event that
\nthe Administrative Agent receives such a notice, the Administrative Agent shall
\ngive notice thereof to the Banks. The Administrative Agent shall take such
\naction with respect to such Default or Event of Default as shall be reasonably
\ndirected by the Majority Banks, the Required Banks, or all Banks, as applicable;
\nprovided that, unless and until the Administrative Agent shall have received
\nsuch directions, the Administrative Agent may (but shall not be obligated to)
\ntake such action, or refrain from taking such action, with respect to such
\nDefault or Event of Default as it shall deem advisable in the best interests of
\nthe Banks.<\/p>\n
9.6 Non-Reliance on Agents and Other Banks. Each Bank expressly
\n ————————————–
\nacknowledges that neither any Agent nor any of its respective officers,
\ndirectors, employees, agents, attorneys-in-fact or affiliates has made any
\nrepresentations or warranties to it and that no act by such Agent hereafter
\ntaken, including any review of the affairs of the Borrowers, shall be deemed to
\nconstitute any representation or warranty by such Agent to any Bank. Each Bank
\nrepresents to each Agent that it has, independently and without reliance upon
\nsuch Agent or any other Bank, and based on such documents and information as it
\nhas deemed appropriate, made its own appraisal of and investigation into the
\nbusiness, operations, property, financial and other condition and
\ncreditworthiness of each Borrower and made its own decision to make its Loans
\nhereunder and enter into this Agreement. Each Bank also represents that it will,
\nindependently and without reliance upon each Agent or any other Bank, and based
\non such documents and information as it shall deem appropriate at the time,
\ncontinue to make its own credit analysis, appraisals and decisions in taking or
\nnot taking action under this Agreement, and to make such <\/p>\n
48<\/p>\n
investigation as it deems necessary to inform itself as to the business,
\noperations, property, financial and other condition and creditworthiness of the
\nBorrowers. Except for notices, reports and other documents expressly required to
\nbe furnished to the Banks by any Agent hereunder, such Agent shall not have any
\nduty or responsibility to provide any Bank with any credit or other information
\nconcerning the business, operations, property, financial and other condition or
\ncreditworthiness of either Borrower which may come into the possession of such
\nAgent or any of its officers, directors, employees, agents, attorneys-in-fact or
\naffiliates.<\/p>\n
9.7 Indemnification. The Banks agree to indemnify each Agent in
\n —————
\nits capacity as such (to the extent not reimbursed by the Borrowers and without
\nlimiting the obligation of the Borrowers to do so), ratably (as reasonably
\ndetermined by the Administrative Agent), from and against any and all
\nliabilities, obligations, losses, damages, penalties, actions, judgments, suits,
\ncosts, expenses or disbursements of any kind whatsoever which may at any time
\n(including without limitation at any time following the payment of the Loans) be
\nimposed on, incurred by or asserted against such Agent in any way relating to or
\narising out of this Agreement, or any documents contemplated by or referred to
\nherein or the transactions contemplated hereby or any action taken or omitted by
\nsuch Agent under or in connection with any of the foregoing; provided that no
\nBank shall be liable for the payment of any portion of such liabilities,
\nobligations, losses, damages, penalties, actions, judgments, suits, costs,
\nexpenses or disbursements resulting from such Agent’s gross negligence or wilful
\nmisconduct. The agreements in this subsection 9.7 shall survive the payment of
\nthe Loans and all other amounts payable hereunder.<\/p>\n
9.8 Agents in their Individual Capacities. Each Agent and its
\n ————————————-
\nrespective affiliates may make loans to, accept deposits from and generally
\nengage in any kind of business with the Borrowers as though such Agent were not
\nan Agent hereunder. With respect to its Loans made by it, each Agent shall have
\nthe same rights and powers under this Agreement as any Bank and may exercise the
\nsame as though it were not an Agent, and the terms “Bank” and “Banks” shall
\ninclude the Administrative Agent in its individual capacity.<\/p>\n
9.9 Successor Agents. Each Agent may resign as Agent upon 30
\n —————-
\ndays’ notice thereof to the Borrowers and the Banks. If any Agent shall resign
\nas Agent under this Agreement, then the Majority Banks shall appoint from among
\nthe Banks a successor agent for the Banks which successor agent shall be
\napproved by the Borrowers, whereupon such successor agent shall succeed to the
\nrights, powers and duties of the Administrative Agent and the term
\n“Administrative Agent” shall mean such successor agent effective upon its
\nappointment, and the former Agent’s rights, powers and duties as Agent shall be
\nterminated, without any other or further act or deed on the part of such former
\nAgent or any of the parties to this Agreement. After any retiring Agent’s
\nresignation hereunder as Agent, the provisions of this Section 9 shall inure to
\nits benefit as to any actions taken or omitted to be taken by it while it was
\nAgent under this Agreement.<\/p>\n
Section 10. MISCELLANEOUS
\n ————-<\/p>\n
10.1 Amendment and Waivers. With the written consent of the
\n ———————
\nMajority Banks, the Administrative Agent and the Borrowers may, from time to
\ntime, enter into written amendments, supplements or modifications hereto for the
\npurpose of adding any provisions to <\/p>\n
49<\/p>\n
this Agreement or changing in any manner the rights of the Banks or of the
\nBorrowers hereunder, and with the consent of the Majority Banks the
\nAdministrative Agent on behalf of the Banks may execute and deliver to the
\nBorrowers a written instrument waiving, on such terms and conditions as the
\nAdministrative Agent may specify in such instrument, any of the requirements of
\nthis Agreement or any Default or Event of Default and its consequences;
\nprovided, however, that no such waiver, amendment, supplement or modification
\nshall (a) extend the maturity of any Loan, or reduce the rate or extend the time
\nof payment of interest thereon, or reduce the principal amount thereof, or
\nreduce the rate of any fee payable hereunder or extend the time of payment
\nthereof, in each case, without the written consent of (i) with respect to any
\nsuch change to any Committed Rate Loan, each Bank and (ii) with respect to any
\nsuch change to any Bid Loan, the Bank which made such Bid Loan, or (b) change
\nthe amount of any Bank’s Commitment or the terms of its obligation to make Loans
\nhereunder (other than in accordance with subsection 2.20) or amend, modify or
\nwaive any provision of this subsection 10.1 or reduce the percentage specified
\nin the definition of Majority Banks or Required Banks, or consent to the
\nassignment or transfer by either Borrower of any of its rights and obligations
\nunder this Agreement, in each case without the written consent of each Bank, or
\n(c) amend, modify or waive any provision of Section 9 without the written
\nconsent of the then Administrative Agent and, if applicable, any other Agent
\naffected by such amendment, modification or waiver, or (d) extend the
\nTermination Date with respect to any Bank without the written consent of such
\nBank; and provided, further, however, that no such waiver, amendment, supplement
\nor modification shall waive, amend, supplement or otherwise modify subsection
\n2.16 or Section 8(B)(2) without the written consent of the Required Banks. Any
\nsuch waiver and any such amendment, supplement or modification shall apply
\nequally to each of the Banks and shall be binding upon the Borrowers, the Banks
\nand the Agents. In the case of any waiver, the Borrowers, the Banks and the
\nAgents shall be restored to their former position and rights hereunder, and any
\nDefault or Event of Default waived shall be deemed to be cured and not
\ncontinuing; but no such waiver shall extend to any subsequent or other Default
\nor Event of Default, or impair any right consequent thereon. Anything contained
\nin the foregoing to the contrary notwithstanding, the relevant Borrower and the
\nrelevant Bank with respect to a Negotiated Rate Loan may, from time to time,
\nenter into amendments, supplements or modifications for the purpose of adding
\nany provisions to such Negotiated Rate Loans or changing in any manner the
\nrights of such Bank and such Borrower thereunder and such Bank may waive any of
\nthe requirements of such Negotiated Rate Loan; provided, however, that such
\nBorrower and such Bank shall notify the Administrative Agent in writing of any
\nextension of the maturity of such Negotiated Rate Loan or reduction of the
\nprincipal amount thereof; provided, further, that such Borrower and such Bank
\nshall not extend the maturity of such Negotiated Rate Loan beyond the last day
\nof the Commitment Period.<\/p>\n
10.2 Notices. All notices, requests and demands to or upon the
\n ——-
\nrespective parties hereto to be effective shall be in writing, by facsimile
\ntransmission, by telephone confirmed in writing or by telegraph and, unless
\notherwise expressly provided herein, shall be deemed to have been duly given or
\nmade when delivered by hand, or when deposited in the mail, postage prepaid, or,
\nin the case of facsimile transmission, when received, or, in the case of
\ntelegraphic notice, when delivered to the telegraph company or department,
\naddressed as follows in the case of the Borrowers, the Administrative Agent and
\nas set forth on Schedule III in the case of the other parties hereto, or to such
\naddress or other address as may be hereafter notified by the respective parties
\nhereto:<\/p>\n
50<\/p>\n
The Borrowers:<\/p>\n
The Company: Deere & Company
\n Attention: Treasurer
\n One John Deere Place
\n Moline, Illinois 61265
\n Telephone: 309-765-4162
\n Facsimile: 309-765-5021<\/p>\n
The Capital Corporation: John Deere Capital Corporation
\n Attention: Manager
\n First National Bank Building
\n 1 East First Street
\n Reno, Nevada 89501
\n Telephone: 702-786-5527
\n Facsimile: 702-786-4145<\/p>\n
with a copy to: Deere & Company
\n Attention: Treasurer
\n One John Deere Place
\n Moline, Illinois 61265
\n Facsimile: 309-765-5021<\/p>\n
The Administrative Agent: The Chase Manhattan Bank
\n Attention: Randolph Cates
\n 270 Park Avenue
\n New York, New York 10017
\n Telephone: 212-270-8997
\n Facsimile: 212-270-6041<\/p>\n
with a copy to: The Chase Manhattan Bank
\n Attention: Victor Quinones
\n One Chase Manhattan Plaza
\n New York, New York 10081
\n Telephone: 212-552-4025
\n Facsimile: 212-552-7500<\/p>\n
provided that any notice, request or demand to or upon the Administrative Agent
\n——–
\nor the Banks pursuant to subsections 2.1, 2.2, 2.5, 2.6, 2.9, 2.11, 2.20 and 9.9
\nshall not be effective until received (including receipt by telephone if
\npermitted hereby).<\/p>\n
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
\n ——————————
\ndelay in exercising, on the part of either Borrower, the Administrative Agent or
\nany Bank, any right, remedy, power or privilege hereunder shall operate as a
\nwaiver thereof; nor shall any single or partial exercise of any right, remedy,
\npower or privilege hereunder preclude any other or further exercise thereof or
\nthe exercise of any other right, remedy, power or privilege. The rights,<\/p>\n
51<\/p>\n
remedies, powers and privileges herein provided are cumulative and not exclusive
\nof any rights, remedies, powers and privileges provided by law.<\/p>\n
10.4 Payment of Expenses and Taxes. (a) The Company agrees (i) to
\n —————————–
\npay or reimburse the Administrative Agent for all its out-of-pocket costs and
\nexpenses incurred in connection with the preparation and execution of, and any
\namendment, supplement or modification to, this Agreement and any other documents
\nprepared in connection herewith, and the consummation of the transactions
\ncontemplated hereby and thereby in such manner and in such amounts as shall be
\nagreed to in writing by the Company and the Administrative Agent, (ii) to pay or
\nreimburse the Administrative Agent for the reasonable fees and disbursements of
\ncounsel to the Administrative Agent incurred in connection with the preparation
\nand execution of, and any amendment, supplement, modification to, this Agreement
\nand other documents prepared in connection herewith, and the consummation of the
\ntransaction contemplated hereby and thereby, and (iii) to pay or reimburse each
\nBank and each Agent for all its out-of-pocket costs and expenses incurred in
\nconnection with the enforcement or preservation of any rights under this
\nAgreement and any such other documents, including, without limitation, fees and
\ndisbursements of counsel to each Agent and one counsel representing the Banks.<\/p>\n
(b) The Borrowers agree jointly and severally to indemnify and
\nhold harmless each Agent and each Bank against any and all losses, claims,
\ndamages and liabilities (other than in connection with actions, suits and
\nproceedings by any of the Banks against any of the other Banks), joint or
\nseveral, to which they or any of them may become subject insofar as such losses,
\nclaims, damages and liabilities arise out of, relate to or are based on this
\nAgreement (including the responsibilities, duties and obligations of the Banks
\nhereunder and their agreement to make Loans hereunder) in connection with any
\nacquisition or proposed acquisition of any securities or assets by a Borrower or
\nany of its Subsidiaries, and shall reimburse each such indemnified party for any
\nlegal or other expenses reasonably incurred by it in connection with
\ninvestigating or defending any such loss, claim, damage or liability, subject to
\nthe following paragraph. This indemnity agreement shall be in addition to any
\nliability which either Borrower may otherwise have.<\/p>\n
(c) Promptly after receipt by an indemnified party under
\nsubsection 10.4(b) of written notice of any loss, claim, damage or liability in
\nrespect of which indemnity may be sought by it hereunder, such indemnified party
\nwill, if a claim is to be made against the Borrowers, notify the Borrowers
\nthereof in writing; but the omission so to notify the Borrowers will not relieve
\nthe Borrowers from any liability (otherwise than under this subsection 10.4)
\nwhich they may have to any indemnified party except as may be required or
\nprovided otherwise than under this subsection 10.4. Thereafter, the indemnified
\nparty and the Borrowers shall consult, to the extent appropriate, with a view to
\nminimizing the cost to the Borrowers of their obligations hereunder. In case any
\nindemnified party receives written notice of any loss, claim, damage or
\nliability in respect of which indemnity may be sought hereunder by it and it
\nnotifies the Borrowers thereof, the Borrowers will be entitled to participate
\ntherein and, to the extent that they may elect by written notice delivered to
\nthe indemnified party promptly after receiving the aforesaid notice from such
\nindemnified party, to assume the defense thereof, with counsel reasonably
\nsatisfactory at all times to such indemnified party; provided, however, that (i)
\n ——– ——-
\nif the parties against whom any loss, claim, damage or liability arises include
\nboth the indemnified party and a Borrower or any Subsidiary of a Borrower and
\nthe indemnified party shall have <\/p>\n
52<\/p>\n
reasonably concluded that there may be legal defenses available to it or other
\nindemnified parties which are different from or additional to those available to
\na Borrower or any Subsidiary of a Borrower and may conflict therewith, the
\nindemnified party or parties shall have the right to select one separate counsel
\nfor such indemnified party or parties to assume such legal defenses and to
\notherwise participate in the defense of such loss, claim, damage or liability on
\nbehalf of such indemnified party or parties and (ii) if any loss, claim, damage
\nor liability arises out of actions brought by or for the benefit of a Borrower
\nor any Subsidiary of a Borrower, the indemnified party or parties shall have the
\nright to select their counsel and to assume and direct the defense thereof and
\nneither Borrower shall be entitled to participate therein or assume the defense
\nthereof. Upon receipt of notice from the Borrowers to such indemnified party of
\ntheir election so to assume the defense of such loss, claim, damage or liability
\nand approval by the indemnified party of counsel, the Borrowers shall not be
\nliable to such indemnified party under this subsection 10.4 for any legal or
\nother expenses subsequently incurred by such indemnified party in connection
\nwith the defense thereof unless (i) the indemnified party shall have employed
\nsuch counsel in connection with the assumption of legal defenses in accordance
\nwith the proviso to the next preceding sentence, (ii) the Borrowers shall not
\nhave employed and continued to employ counsel satisfactory to the indemnified
\nparty to represent the indemnified party within a reasonable time after notice
\nof commencement of the action or (iii) the Borrowers shall have authorized the
\nemployment of counsel for the indemnified party at the expense of the Borrowers.<\/p>\n
(d) Notwithstanding any other provision contained in this
\nsubsection 10.4, (i) the Borrowers shall not be liable for any settlement,
\ncompromise or consent to the entry of any order adjudicating or otherwise
\ndisposing of any loss, claim, damage or liability effected without their consent
\nand (ii) after the Borrowers have assumed the defense of any loss, claim, damage
\nor liability under the preceding paragraph with respect to any Bank, they will
\nnot settle, compromise or consent to entry of any order adjudicating or
\notherwise disposing thereof (1) if such settlement, compromise or order involves
\nthe payment of money damages, except if the Borrowers agree with such Bank to
\npay such money damages, and, if not simultaneously paid, to furnish such Bank
\nwith satisfactory evidence of their ability to pay such money damages, and (2)
\nif such settlement, compromise or order involves any relief against such Bank,
\nother than the payment of money damages, except with the prior written consent
\nof such Bank.<\/p>\n
(e) The agreements in this subsection 10.4 shall survive repayment
\nof the Loans and all other amounts payable hereunder.<\/p>\n
10.5 Successors and Assigns; Participants; Purchasing Banks. (a)
\n ——————————————————-
\nThis Agreement shall be binding upon and inure to the benefit of the Borrowers,
\nthe Banks, the Agents and their respective successors and assigns, except that
\nthe Borrowers may not assign or transfer any of their rights or obligations
\nunder this Agreement without the prior written consent of each Bank.<\/p>\n
(b) Any Bank may, in the ordinary course of its commercial banking
\nbusiness and in accordance with applicable law, at any time sell to one or more
\nbanks or other financial institutions (“Participants”) participating interests
\n ————
\nin the Loans, Commitments and other interests of such Bank hereunder. In the
\nevent of any such sale by a Bank of participating interests to a Participant,
\nsuch Bank’s obligations under this Agreement to the other parties to this
\nAgreement shall remain unchanged, such Bank shall remain solely responsible for
\nthe performance thereof, <\/p>\n
53<\/p>\n
such Bank shall remain the holder of any such Loan for all purposes under this
\nAgreement, and the Borrowers and the Administrative Agent shall continue to deal
\nsolely and directly with such Bank in connection with such Bank’s rights and
\nobligations under this Agreement.<\/p>\n
(c) Any Bank may, in the ordinary course of its commercial banking
\nbusiness and in accordance with applicable law, at any time assign to one or
\nmore banks or other financial institutions (“Loan Assignees”) any Bid Loan or
\n ————–
\nNegotiated Rate Loan or portion thereof owing to such Bank, pursuant to a Loan
\nAssignment executed by the assignor Bank and the Loan Assignee. Upon such
\nexecution, from and after the Transfer Effective Date specified in such Loan
\nAssignment, the Loan Assignee shall, to the extent of the assignment provided
\nfor in such Loan Assignment and to the extent permitted by applicable law, be
\ndeemed to have the same rights and benefits with respect to such Bid Loans and
\nNegotiated Rate Loans and the same obligation to share pursuant to subsection
\n10.6 as it would have had if it were a Bank hereunder; provided, that unless
\n ——–
\nsuch Loan Assignment shall otherwise specify and a copy of such Loan Assignment
\nshall have been delivered to the Administrative Agent for its acceptance and
\nrecording in the Register in accordance with subsection 10.5(f), the assignor
\nBank shall act as collection agent for the Loan Assignee, and in the case of Bid
\nLoans, the Administrative Agent shall pay all amounts received from the relevant
\nBorrower which are allocable to the assigned Bid Loan directly to the assignor
\nBank without any further liability to the relevant Loan Assignee, and, in the
\ncase of Negotiated Rate Loans, the relevant Borrower shall pay all amounts due
\nunder the assigned Negotiated Rate Loan directly to the assignor Bank without
\nany further liability to the Loan Assignee. At the request of any Loan Assignee,
\non or promptly after the Transfer Effective Date specified in such Loan
\nAssignment, the relevant Borrower, at its own expense, shall execute and deliver
\nto the Loan Assignee a promissory note with respect to the Bid Loans or
\nNegotiated Rate Loans to the order of such Loan Assignee in an amount equal to
\nthe Bid Loan or Negotiated Rate Loan assigned. Such note shall be dated the
\nBorrowing Date in respect of such Bid Loan or Negotiated Rate Loan and shall
\notherwise be in the form of Exhibit M; provided, however, that such Borrower
\n ——– ——-
\nshall not be required to execute and deliver more than an aggregate of two notes
\nwith respect to the Bid Loans of any Bank with the same Interest Period at any
\ntime outstanding. A Loan Assignee shall not, by virtue of such Loan Assignment,
\nbecome a party to this Agreement or have any rights to consent to or refrain
\nfrom consenting to any amendment, waiver or other modification of any provision
\nof this Agreement or any related document; provided, that (i) the assignor Bank
\n ——–
\nand the Loan Assignee may, in their discretion, agree between themselves upon
\nthe manner in which the assignor Bank will exercise its rights under this
\nAgreement and any related document, and (ii) if a copy of such Loan Assignment
\nshall have been delivered to the Administrative Agent for its acceptance and
\nrecording in the Register in accordance with subsection 10.5(f), neither the
\nprincipal amount of, the interest rate on, nor the maturity date of, any Bid
\nLoan or Negotiated Rate Loan assigned to a Loan Assignee will be modified
\nwithout written consent of such Loan Assignee.<\/p>\n
(d) Any Bank may, in the ordinary course of its commercial banking
\nbusiness and in accordance with applicable law, with the consent of the
\nBorrowers, sell to any Bank or any affiliate thereof and to one or more
\nadditional banks or other financial institutions (“Purchasing Banks”), all or
\n —————-
\nportions (subject to the last sentence of this subsection 10.5(d)) of its rights
\n(which rights may include such Bank’s rights in respect of Loans it has
\ndisbursed) and obligations under this Agreement, pursuant to a Commitment
\nTransfer Supplement, executed by such Purchasing Bank and such transferor Bank
\n(and, in the case of a Purchasing Bank that is not<\/p>\n
54<\/p>\n
then a Bank or an affiliate thereof, by the Borrowers and the Administrative
\nAgent), and delivered to the Administrative Agent for its acceptance and
\nrecording in the Register. Upon such execution, delivery, acceptance and
\nrecording, from and after the Transfer Effective Date specified in such
\nCommitment Transfer Supplement, (i) the Purchasing Bank thereunder shall be a
\nparty hereto and, to the extent provided in such Commitment Transfer Supplement,
\nhave the rights and obligations of a Bank hereunder with a Commitment as set
\nforth therein, and (ii) the transferor Bank thereunder shall cease to have those
\nrights and obligations under this Agreement to which the Purchasing Bank has
\nsucceeded (and, in the case of a Commitment Transfer Supplement covering all or
\nthe remaining portion of a transferor Bank’s rights and obligations under this
\nAgreement, such transferor Bank shall cease to be a party hereto). Such
\nCommitment Transfer Supplement shall be deemed to amend this Agreement to the
\nextent, and only to the extent, necessary to reflect the addition of such
\nPurchasing Bank and the resulting adjustment of Commitments and Commitment
\nPercentages arising from the purchase by such Purchasing Bank of a portion of
\nthe rights and obligations of such transferor Bank under this Agreement. On or
\npromptly after the Transfer Effective Date specified in such Commitment Transfer
\nSupplement, the Purchasing Bank and the Administrative Agent, on behalf of such
\nPurchasing Bank, shall open and maintain in the name of each Borrower a Loan
\nAccount with respect to such Purchasing Bank’s Committed Rate Loans and Bid
\nLoans to such Borrower. Anything contained in this Agreement to the contrary
\nnotwithstanding, no Bank may sell any portion (less than 100%) of its rights and
\nobligations under this subsection 10.5(d) to any bank or financial institution
\nif after giving effect to such sale the Commitment of either of the selling and
\npurchasing institutions would be less than $5,000,000.<\/p>\n
(e) The Administrative Agent shall maintain at its address
\nreferred to in subsection 10.2 a copy of each Loan Assignment and each
\nCommitment Transfer Supplement delivered to it and a register (the “Register”)
\n ——–
\nfor the recordation of (i) the names and addresses of the Banks and the
\nCommitment of, and principal amount of the Loans (other than Negotiated Rate
\nLoans) owing to, each Bank from time to time, and (ii) with respect to each Loan
\nAssignment delivered to the Administrative Agent, the name and address of the
\nLoan Assignee and the principal amount of each Bid Loan owing to such Loan
\nAssignee. The entries in the Register shall constitute prima facie evidence of
\n —– —–
\nthe accuracy of the information so recorded, and the Borrowers, the
\nAdministrative Agent and the Banks may treat each Person whose name is recorded
\nin the Register as the owner of the Loan recorded therein for all purposes of
\nthis Agreement. The Register shall be available for inspection by the Company or
\nany Bank or Loan Assignee at any reasonable time and from time to time upon
\nreasonable prior notice.<\/p>\n
(f) Upon its receipt of a Loan Assignment executed by an assignor
\nBank and a Loan Assignee, together with payment to the Administrative Agent (by
\nthe assignor Bank or the Loan Assignee, as agreed between them) of a
\nregistration and processing fee of $3,500, the Administrative Agent shall (i)
\naccept such Loan Assignment, (ii) record the information contained therein in
\nthe Register and (iii) give prompt notice of such acceptance and recordation to
\nthe assignor Bank, the Loan Assignee and the Borrowers. Upon its receipt of a
\nCommitment Transfer Supplement executed by a transferor Bank and a Purchasing
\nBank (and, in the case of a Purchasing Bank that is not then a Bank or an
\naffiliate thereof, by the Borrowers and the Administrative Agent) together with
\npayment to the Administrative Agent (by the transferor Bank or the Purchasing
\nBank, as agreed between them) of a registration and processing fee of $3,500 for
\neach Purchasing Bank listed in such Commitment Transfer Supplement, the<\/p>\n
55<\/p>\n
Administrative Agent shall (A) accept such Commitment Transfer Supplement, (B)
\nrecord the information contained therein in the Register and (C) give prompt
\nnotice of such acceptance and recordation to the Banks and the Borrowers.<\/p>\n
(g) The Company authorizes each Bank to disclose to any
\nParticipant, Loan Assignee or Purchasing Bank (each, a “Transferee”) and any
\n ———-
\nprospective Transferee any and all financial information in such Bank’s
\npossession concerning the Borrowers and their Subsidiaries which has been
\ndelivered to such Bank by or on behalf of the Borrowers pursuant to this
\nAgreement or in connection with such Bank’s credit evaluation of the Borrowers
\nand their Subsidiaries prior to becoming a party to this Agreement, provided
\n ——–
\nthat with respect to confidential data or information described in subsection
\n10.7, such confidential data may be disclosed only to (i) a Purchasing Bank
\nand\/or (ii) any other Transferee or prospective Transferee with the Borrowers’
\nprior written consent, which consent shall not be unreasonably withheld with
\nrespect to prospective Participants, Participants, prospective Loan Assignees
\nand Loan Assignees; provided, however, that such Bank shall not disclose any
\n ——– ——-
\nsuch confidential data or information pursuant to this subsection 10.5(g) unless
\n(i) it has notified the Purchasing Bank or other Transferee or potential
\nTransferee that such data or information are confidential, such notification to
\nbe in writing if such data or information are disclosed in writing and orally if
\nsuch data or information are disclosed orally, and (ii) such Purchasing Bank,
\nTransferee or potential Transferee has agreed in writing to be bound by the
\nprovisions of subsection 10.7.<\/p>\n
(h) If, pursuant to this subsection, any loan participation or
\nseries of loan participations is sold or any interest in this Agreement is
\ntransferred to any Transferee, the transferor Bank shall cause such Transferee,
\nconcurrently with the effectiveness of such transfer or the first transfer to
\noccur in a series of transfers between such transferor Bank and such Transferee,
\n(i) to represent to the transferor Bank (for the benefit of the transferor Bank,
\nthe Administrative Agent and the Borrowers) either (A) that it is incorporated
\nunder the laws of the United States or a state thereof or (B) that under
\napplicable law and treaties no taxes will be required to be withheld by the
\nAdministrative Agent, the Borrowers or the transferor Bank with respect to any
\npayments to be made to such Transferee in respect of the Loans, (ii) to furnish
\nto the transferor Bank, the Administrative Agent and the Borrowers (A) either
\n(I) a statement that it is incorporated under the laws of the United States or a
\nstate thereof or (II) if it is not so incorporated, a letter in duplicate in the
\nform of Exhibit J or Exhibit K, as appropriate, and two duly completed copies of
\nUnited States Internal Revenue Service Form 4224 or 1001 or successor applicable
\nform, as the case may be, certifying in each case that such Transferee is
\nentitled to receive payments under this Agreement without deduction or
\nwithholding of any United States federal income taxes, and (B) an Internal
\nRevenue Service Form W-8 or W-9, or successor applicable form, as the case may
\nbe, to establish an exemption from United States backup withholding tax, and
\n(iii) to agree (for the benefit of the transferor Bank, the Administrative Agent
\nand the Borrowers) to provide the transferor Bank, the Administrative Agent and
\nthe Borrowers a new Form 4224 or 1001 and Form W-8 or W-9, or successor
\napplicable form or other manner of certification, on or before the date that any
\nsuch letter or form expires or becomes obsolete or after the occurrence of any
\nevent requiring a change in the most recent letter and form previously delivered
\nby it, certifying in the case of a Form 1001 or 4224 that such Transferee is
\nentitled to receive payments under this Agreement without deduction or
\nwithholding of any United States federal income tax, and in the case of a Form
\nW-8 or W-9 <\/p>\n
56<\/p>\n
establishing exemption from United States backup withholding tax. The
\nAdministrative Agent shall not be responsible for obtaining such documentation
\nexcept from its own Transferees.<\/p>\n
(i) Nothing in this subsection 10.5 shall prohibit any Bank from
\npledging or assigning its Loans to any Federal Reserve Bank in accordance with
\napplicable law.<\/p>\n
(j) The Borrowers, upon receipt of written notice from the
\nrelevant Bank, agree to issue Notes to any Bank requiring Notes to facilitate
\ntransactions of the type described in paragraph (i) above.<\/p>\n
(k) Notwithstanding anything to the contrary contained herein, any
\nBank (a “Granting Bank”) may grant to a special purpose funding vehicle (an
\n ————-
\n“SPC”), identified as such in writing from time to time by the Granting Bank to
\n —
\nthe Administrative Agent and the Company, the option to provide to the Borrowers
\nall or any part of any Loan that such Granting Bank would otherwise be obligated
\nto make to the Borrowers pursuant to this Agreement; provided that (i) nothing
\n ——–
\nherein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC
\nelects not to exercise such option or otherwise fails to provide all or any part
\nof such Loan, the Granting Bank shall be obligated to make such Loan pursuant to
\nthe terms hereof. The making of a Loan by an SPC hereunder shall utilize the
\nCommitment of the Granting Bank to the same extent, and as if, such Loan were
\nmade by such Granting Bank. Each party hereto hereby agrees that no SPC shall be
\nliable for any indemnity or similar payment obligation under this Agreement (all
\nliability for which shall remain with the Granting Bank). In furtherance of the
\nforegoing, each party hereto hereby agrees (which agreement shall survive the
\ntermination of this Agreement) that, prior to the date that is one year and one
\nday after the payment in full of all outstanding commercial paper or other
\nsenior indebtedness of any SPC, it will not institute against, or join any other
\nperson in instituting against, such SPC any bankruptcy, reorganization,
\narrangement, insolvency or liquidation proceedings under the laws of the United
\nStates or any State thereof. In addition, notwithstanding anything to the
\ncontrary contained in this subsection 10.5(k) any SPC may (i) with notice to,
\nbut without the prior written consent of, the Company and the Administrative
\nAgent and without paying any processing fee therefor, assign all or a portion of
\nits interests in any Loans to the Granting Bank or to any financial institutions
\n(consented to by the Company and Administrative Agent) providing liquidity
\nand\/or credit support to or for the account of such SPC to support the funding
\nor maintenance of Loans and (ii) disclose on a confidential basis any non-public
\ninformation relating to its Loans to any rating agency, commercial paper dealer
\nor provider of any surety, guarantee or credit or liquidity enhancement to such
\nSPC. This subsection 10.5(k) may not be amended without the written consent of
\nthe SPC.<\/p>\n
10.6 Adjustments. Except as provided in subsection 2.12, if any
\n ———–
\nBank (a “benefitted Bank”) shall at any time receive any payment of all or part
\nof its Committed Rate Loans, or interest thereon or facility fee hereunder, or
\nreceive any collateral in respect thereof (whether voluntarily or involuntarily,
\nby set-off, pursuant to events or proceedings of the nature referred to in
\nclause (e) of Section 8, or otherwise) in a greater proportion than any such
\npayment to and collateral received by any other Bank, if any, in respect of such
\nother Bank’s Committed Rate Loans, or interest thereon, or facility fee
\nhereunder, such benefitted Bank shall purchase for cash from the other Banks
\nsuch portion of each such other Bank’s Committed Rate Loans, or shall provide
\nsuch other Banks with the benefits of any such collateral, or the <\/p>\n
57<\/p>\n
proceeds thereof, as shall be necessary to cause such benefitted Bank to share
\nthe excess payment or benefits of such collateral or proceeds ratably with each
\nof such other Banks; provided, however, that if all or any portion of such
\nexcess payment or benefits is thereafter recovered from such benefitted Bank,
\nsuch purchase shall be rescinded, and the purchase price and benefits returned,
\nto the extent of such recovery, but without interest. The Borrowers agree that
\neach Bank so purchasing a portion of another Bank’s Committed Rate Loans may
\nexercise all rights of payment (including, without limitation, rights of set-
\noff) with respect to such portion as fully as if such Bank were the direct
\nholder of such portion.<\/p>\n
10.7 Confidentiality. (a) Each of the Agents and the Banks shall,
\n —————
\nsubject as hereinafter provided, keep confidential from any third party any data
\nor information received by them from the Borrowers pursuant to this Agreement
\nwhich, if provided in writing, is designated in writing as such, and if provided
\norally, is designated orally as such by the Borrowers except:<\/p>\n
(i) any such data or information as is or becomes publicly
\navailable or generally known otherwise than as a result of any breach of the
\nprovisions of this subsection 10.7;<\/p>\n
(ii) as required by law, rule, regulation or official direction;<\/p>\n
(iii) as may be necessary to protect as against the Borrowers or
\neither of them the interests of the Banks or any of them under this Agreement;<\/p>\n
(iv) to the extent permitted under subsection 10.5; and<\/p>\n
(v) to the attorneys, accountants and regulators of such Banks,
\nand to each other Bank.<\/p>\n
(b) Each of the Agents and the Banks shall use their reasonable
\nefforts to ensure that any confidential data or information received by them
\nfrom the Borrowers pursuant to this Agreement which is disclosed to employees of
\nsuch Agent or Bank (as the case may be) is so disclosed only to the extent
\nnecessary for purpose of the administration of this Agreement and, in all cases,
\non the condition that such information and data shall be kept confidential
\nexcept for such purpose.<\/p>\n
(c) The provisions of this subsection 10.7 shall survive the
\npayment in full of all amounts payable hereunder and the termination of this
\nAgreement.<\/p>\n
10.8 Counterparts. This Agreement may be executed by one or more
\n ————
\nof the parties to this Agreement on any number of separate counterparts and all
\nof said counterparts taken together shall be deemed to constitute one and the
\nsame instrument. A set of the copies of this Agreement signed by all the parties
\nshall be lodged with the Borrowers and the Administrative Agent.<\/p>\n
10.9 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
\n ————-
\nOF THE PARTIES UNDER THIS AGREEMENT SHALL BE <\/p>\n
58<\/p>\n
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
\nSTATE OF NEW YORK.<\/p>\n
10.10 Consent to Jurisdiction and Service of Process. All judicial
\n ———————————————-
\nproceedings brought against the Borrowers with respect to this Agreement may be
\nbrought in any state or federal court of competent jurisdiction in the State of
\nNew York, and, by execution and delivery of this Agreement, the Borrowers
\naccept, for themselves and in connection with their properties, generally and
\nunconditionally, the non-exclusive jurisdiction of the aforesaid courts and
\nirrevocably agree to be bound by any final judgment rendered thereby in
\nconnection with this Agreement from which no appeal has been taken or is
\navailable. The Borrowers irrevocably agree that all process in any such
\nproceedings in any such court may be effected by mailing a copy thereof by
\nregistered or certified mail (or any substantially similar form of mail),
\npostage prepaid, to them at their addresses set forth in subsection 10.2 or at
\nsuch other address of which the Administrative Agent shall have been notified
\npursuant thereto, such service being hereby acknowledged by the Borrowers to be
\neffective and binding service in every respect. Each of the Borrowers, the
\nAgents and the Banks irrevocably waives any objection, including without
\nlimitation, any objection to the laying of venue or based on the grounds of
\nforum non conveniens which it may now or hereafter have to the bringing of any
\nsuch action or proceeding in any such jurisdiction. Nothing herein shall affect
\nthe right to serve process in any other manner permitted by law or shall limit
\nthe right of any Agent or any Bank to bring proceedings against the Borrowers in
\nthe courts of any other jurisdiction.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
\nduly executed and delivered by their respective proper and duly authorized
\nofficers as of the day and year first above written.<\/p>\n
DEERE & COMPANY
\nAttested by: <\/p>\n
\/s\/ Sonja J. Sterling By: \/s\/ James R. Jabanoski
\n—————————— ————————————–
\nTitle: Assistant Secretary Title: Vice President and Treasurer<\/p>\n
JOHN DEERE CAPITAL CORPORATION
\nAttested by: <\/p>\n
\/s\/ Susan E. Karlix By: \/s\/ James R. Jabanoski
\n—————————— ————————————–
\nTitle: Assistant Secretary Title: Treasurer<\/p>\n
THE CHASE MANHATTAN BANK,
\n as Administrative Agent and as a Bank<\/p>\n
By:
\n Title:<\/p>\n
BANK OF AMERICA, N.A., as a
\n Documentation Agent and as a Bank<\/p>\n
By: \/s\/ Lynn Durning
\n Title: Managing Director<\/p>\n
BANK ONE, NA, as a Documentation Agent
\n and as a Bank<\/p>\n
By: \/s\/ Richard R. Howard
\n Title: Vice President<\/p>\n
DEUTSCHE BANK AG NEW YORK BRANCH
\n AND\/OR CAYMAN ISLANDS BRANCH,
\n as Syndication Agent and as a Bank<\/p>\n
By: \/s\/ Chris Howe
\n Title: Director<\/p>\n
By: \/s\/ Andreas Rohde
\n Title: Director<\/p>\n
THE BANK OF NEW YORK,
\n as a Managing Agent and as a Bank<\/p>\n
By: \/s\/ Robert J. Joyce
\n Title: Vice President<\/p>\n
CITIBANK, N.A.,
\n as a Managing Agent and as a Bank<\/p>\n
By:
\n Title:<\/p>\n
CREDIT AGRICOLE INDOSUEZ,
\n as a Managing Agent and as a Bank<\/p>\n
By: \/s\/ Bradley C. Peterson
\n Title: Vice President, Manager<\/p>\n
By: \/s\/ Alan I. Schmelzer
\n Title: Vice President
\n Senior Relationship
\n Manager<\/p>\n
CREDIT SUISSE FIRST BOSTON,
\n as a Managing Agent and as a Bank<\/p>\n
By: \/s\/ Jay Chall
\n Title: Jay Chall, Director<\/p>\n
By: \/s\/ James Moran
\n Title: James Moran, Director<\/p>\n
ROYAL BANK OF CANADA,
\n as a Managing Agent and as a Bank<\/p>\n
By: \/s\/ Gordon C. MacArthur
\n Title: Senior Manager<\/p>\n
TORONTO DOMINION (TEXAS), INC.,
\n as a Managing Agent and as a Bank<\/p>\n
By:
\n Title:<\/p>\n
MELLON BANK, N.A.,
\n as a Managing Agent and as a Bank<\/p>\n
By: \/s\/ Louis E. Flori
\n ————————————–
\n Title: Louis E. Flori, Vice President<\/p>\n
BNP PARIBAS,
\n as a Co-Agent and as a Bank<\/p>\n
By: \/s\/ Frederick H. Moryl, Jr.
\n Title: Director<\/p>\n
By: \/s\/ Richard L. Sted
\n Title: Managing Director – Central Region Mgr.<\/p>\n
THE FUJI BANK, LIMITED,
\n as a Co-Agent and as a Bank<\/p>\n
By: \/s\/ Peter L. Chinnici
\n Title: Senior Vice President & Group Head<\/p>\n
BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO
\n BRANCH, as a Bank<\/p>\n
By: \/s\/ Hisashi Miyashiro
\n Title: Deputy General Manager<\/p>\n
BANCA DI ROMA-CHICAGO BRANCH,
\n as a Bank<\/p>\n
By:
\n Title:<\/p>\n
By:
\n Title:<\/p>\n
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.,
\n as a Bank<\/p>\n
By: \/s\/ Alberto Conde
\n Title: Vice President
\n Corporate Banking<\/p>\n
By: \/s\/ Manuel Sanchez
\n Title: Senior Vice President & Branch Manager
\n Global Corporate Banking<\/p>\n
BANCA COMMERCIALE ITALIANA, CHICAGO
\n BRANCH,
\n as a Bank<\/p>\n
By: \/s\/ Charles Dougherty
\n Title: C. Dougherty, VP <\/p>\n
By: \/s\/ Frank Maffei
\n Title: Vice President<\/p>\n
MERRILL LYNCH BANK USA,
\n as a Bank<\/p>\n
By: \/s\/ Raymond J. Dardano
\n Title: Senior Credit Officer<\/p>\n
WACHOVIA BANK, N.A.,
\n as a Bank<\/p>\n
By:
\n Title:<\/p>\n
MERITA BANK PLC,
\n as a Bank<\/p>\n
By: \/s\/ Thomas P. Hickey
\n Title: Vice President<\/p>\n
By: \/s\/ John F. Kehnle
\n Title: Vice President<\/p>\n
SCHEDULE I
\n ———-<\/p>\n
TERMS OF SUBORDINATION<\/p>\n
“Senior Indebtedness” means the principal of (and premium, if any) and
\n ——————-
\nunpaid interest on (a) indebtedness of John Deere Capital Corporation (the
\n“Capital Corporation”) (including indebtedness of others guaranteed by the
\nCapital Corporation), other than the indebtedness evidenced by the Securities
\n[such term to be defined as the debt to be issued under the indenture or
\nagreement to which this Schedule relates] and the 8-5\/8% Subordinated Debentures
\ndue 2019 of the Capital Corporation, whether outstanding on the date hereof or
\nhereafter created, incurred, assumed or guaranteed, for money borrowed, unless
\nin the instrument creating or evidencing the same or pursuant to which the same
\nis outstanding it is provided that such indebtedness is not senior or prior in
\nright of payment to the Securities, and (b) renewals, extensions, modifications
\nand refundings of any such indebtedness.<\/p>\n
SUBORDINATION<\/p>\n
Section 1. Agreement to Subordinate.<\/p>\n
The Capital Corporation, for itself, its successors and assigns,
\ncovenants and agrees, and each holder of Securities, by such holder’s acceptance
\nthereof, likewise covenants and agrees, that the payment of the principal of
\n(and premium, if any) and interest on each and all of the Securities is hereby
\nexpressly subordinated, to the extent and in the manner hereinafter set forth,
\nin right of payment to the prior payment in full of all Senior Indebtedness.<\/p>\n
Section 2. Distribution on Dissolution, Liquidation and
\n ——————————————–
\nReorganization; Subrogation of Securities.
\n—————————————– <\/p>\n
Upon any distribution of assets of the Capital Corporation upon any
\ndissolution, winding up, liquidation or reorganization of the Capital
\nCorporation, whether in bankruptcy, insolvency, reorganization or receivership
\nproceedings or upon an assignment for the benefit of creditors or any other
\nmarshalling of the assets and liabilities of the Capital Corporation or
\notherwise (subject to the power of a court of competent jurisdiction to make
\nother equitable provisions reflecting the rights conferred in this Agreement
\nupon the Senior Indebtedness and the holders thereof with respect to the
\nSecurities by a lawful plan of reorganization under applicable bankruptcy law),<\/p>\n
(a) the holders of Senior Indebtedness shall be entitled to receive
\n payment in full of the principal thereof (and premium if any) and the
\n interest due on the Senior Indebtedness before the holders of the
\n Securities are entitled to receive any payment upon the principal of (or
\n premium, if any) or interest on indebtedness evidenced by the Securities;
\n and<\/p>\n
(b) any payment or distribution of assets of the Capital Corporation
\n of any kind or character, whether in cash, property or securities, to which
\n the holders of the Securities or any trustee therefor would be entitled
\n except for the provisions of this Article shall be paid by the liquidating
\n trustee or agent or other person making such payment or distribution,
\n whether a trustee in bankruptcy, a receiver or liquidating trustee<\/p>\n
I-2<\/p>\n
or otherwise, directly to the holders of Senior Indebtedness or their
\n representative or representatives or to the trustee or trustees under any
\n indenture under which any instruments evidencing any of such Senior
\n Indebtedness may have been issued, ratably according to the aggregate
\n amounts remaining unpaid on account of the principal of (and premium, if
\n any) and interest on the Senior Indebtedness held or represented by each
\n holder of Senior Indebtedness, to the extent necessary to make payment in
\n full of all Senior Indebtedness remaining unpaid, after giving effect to
\n any concurrent payment or distribution to the holders of such Senior
\n Indebtedness; and<\/p>\n
(c) in the event that, notwithstanding the foregoing, any payment or
\n distribution of assets of the Capital Corporation of any kind or character,
\n whether in cash, property or securities, shall be received by any trustee
\n for the holders of the Securities or the holders of the Securities before
\n all Senior Indebtedness is paid in full, such payment or distribution shall
\n be paid over, upon written notice to any trustee for the holders of the
\n Securities, to the holders of Senior Indebtedness or their representative
\n or representatives or to the trustee or trustees under any indenture under
\n which any instruments evidencing any of such Senior Indebtedness may have
\n been issued, ratably as aforesaid, for application to the payment of all
\n Senior Indebtedness remaining unpaid until all such Senior Indebtedness
\n shall have been paid in full, after giving effect to any concurrent payment
\n or distribution to the holders of such Senior Indebtedness.<\/p>\n
Subject to the payment in full of all Senior Indebtedness, the holders of the
\nSecurities shall be subrogated to the rights of the holders of Senior
\nIndebtedness to receive payments or distributions of cash, property or
\nsecurities of the Capital Corporation applicable to Senior Indebtedness until
\nthe principal of (and premium, if any) and interest on the Securities shall be
\npaid in full and no such payments or distributions to the holders of the
\nSecurities of cash, property or securities otherwise distributable to the
\nholders of Senior Indebtedness shall, as between the Capital Corporation, its
\ncreditors other than the holders of Senior Indebtedness, and the holders of the
\nSecurities, be deemed to be a payment by the Capital Corporation to or on
\naccount of the Securities. It is understood that the provisions of this Article
\nare, and are intended, solely for the purpose of defining the relative rights of
\nthe holders of the Securities, on the one hand, and the holders of Senior
\nIndebtedness, on the other hand. Nothing contained in this Article or elsewhere
\nin this Agreement or in the Securities is intended to or shall impair, as
\nbetween the Capital Corporation, its creditors other than the holders of Senior
\nIndebtedness, and the holders of the Securities, the obligation of the Capital
\nCorporation, which is unconditional and absolute, to pay to the holders of the
\nSecurities the principal of (and premium, if any) and interest on the Securities
\nas and when the same shall become due and payable in accordance with their
\nterms, or to affect the relative rights of the holders of the Securities and
\ncreditors of the Capital Corporation other than the holders of Senior
\nIndebtedness, nor shall anything herein or in the instruments or other evidence
\nof the Securities prevent any trustee for the holders of the Securities or the
\nholder of any Securities from exercising all remedies otherwise permitted by
\napplicable law upon default under this Agreement or such instrument or other
\nevidence, subject to the rights, if any, under this Article of the holders of
\nSenior Indebtedness in respect of cash, property or securities of the Capital
\nCorporation received upon the exercise of any such remedy.<\/p>\n
Section 3. No Payment on Securities in Event of Non-Payment When Due
\n ———————————————————
\nof Senior Indebtedness.
\n———————- <\/p>\n
No payment by the Capital Corporation on account of principal (or
\npremium, if any), sinking funds, or interest on the Securities shall be made
\nunless full payment of amounts then due for principal, premium, if any, sinking
\nfunds and interest on Senior Indebtedness has been made or duly provided for in
\nmoney or money’s worth.<\/p>\n
SCHEDULE II
\n ———–<\/p>\n
COMMITMENTS<\/p>\n
\n\nBank Commitment
\n—- ———-
\n
\nThe Chase Manhattan Bank $ 275,000,000
\nBank of America, N.A. 180,000,000
\nDeutsche Bank AG New York Branch and\/or Cayman Islands Branch 180,000,000
\nBank One, NA 180,000,000
\nCredit Suisse First Boston 130,000,000
\nRoyal Bank of Canada 130,000,000
\nCitibank, N.A. 130,000,000
\nToronto Dominion (Texas), Inc. 130,000,000
\nThe Bank of New York 112,500,000
\nCredit Agricole Indosuez 112,500,000
\nMellon Bank, N.A. 100,000,000
\nBNP Paribas 70,000,000
\nThe Fuji Bank, Limited 70,000,000
\nMerrill Lynch Bank USA 50,000,000
\nWachovia Bank, N.A. 37,500,000
\nBanca Commerciale Italiana, Chicago Branch 37,500,000
\nBanca di Roma Chicago Branch 37,500,000
\nBanca Bilbao Vizcaya Argentaria, S.A. 37,500,000
\nBank of Tokyo-Mitsubishi, Ltd., Chicago Branch 37,500,000
\nMerita Bank PLC 37,500,000<\/p>\n ————–
\n TOTAL $2,075,000,000
\n<\/c><\/s><\/caption>\n<\/table>\n
SCHEDULE III
\n ————<\/p>\n
ADDRESSES FOR NOTICES<\/p>\n
The Chase Manhattan Bank
\nAttention: Randolph Cates
\n270 Park Avenue – 47th Floor
\nNew York, New York 10017
\nTelephone: (212) 270-8997
\nFacsimile: (212) 270-6041<\/p>\n
Bank of America, N.A.
\nAttention: Leonar Manhard
\nBank of America, N.A.
\n901 Main Street
\nDallas, Texas 75202
\nTelephone: (214) 209-9262
\nFacsimile: (214) 290-9430<\/p>\n
Bank One, NA
\nAttention: Rick Howard
\n1 Bank One Plaza
\nIll-0888
\nChicago, Illinois 60670
\nTelephone: (312) 732-3179
\nFacsimile: (312) 732-1117<\/p>\n
Deutsche Bank AG New York Branch and\/or Cayman Islands Branch
\nAttention: Christopher Howe
\n31 West 52\/nd\/ Street
\nNew York, New York 10019
\nTelephone: (212) 469-8111
\nFacsimile: (212) 469-8115<\/p>\n
Citibank, N.A.
\nAttention: John Coons
\n500 West Madison Street
\n7\/th\/ Floor, Zone 1
\nChicago, Illinois 60661
\nTelephone: (312) 627-3970
\nFacsimile: (312) 627-3990<\/p>\n
Credit Agricole Indosuez
\nAttention: Ted Tice
\nSuite 4700
\n55 East Monroe Street
\nChicago, Illinois 60603-5702
\nTelephone: (312) 917-7463
\nFacsimile: (312) 372-3455<\/p>\n
Credit Suisse First Boston
\nAttention: Ron Davis
\n5 World Trade Center
\n8th Floor
\nNew York, New York 10048-0928
\nTelephone: (212) 322-1865
\nFacsimile: (212) 335-0593<\/p>\n
Royal Bank of Canada
\nGrand Cayman (No. America #1) Branch
\nc\/o New York Branch
\nAttention: Manager, Loans Admin.
\nOne Liberty Plaza, 3rd Floor
\nNew York, New York 10006-1404
\nTelephone: (212) 428-6322
\nFacsimile: (212) 428-2372<\/p>\n
with a copy to:<\/p>\n
Royal Bank of Canada
\nAttention: G. MacArthur
\nOne Liberty Plaza, 4\/th\/ Floor
\nNew York, New York 10006-1404
\nTelephone: (212) 428-2324
\nFacsimile: (212) 428-6459<\/p>\n
The Bank of New York
\nAttention: Janeth Lopez, Loan Administration
\nOne Wall Street, 22\/nd\/ Floor
\nNew York, New York 10286
\nTelephone: (212) 635-6761
\nFacsimile: (212) 635-6397<\/p>\n
The Toronto-Dominion Bank
\nAttention: Jim Britwell
\n909 Fannin Street, 17\/th\/ Floor
\nHouston, Texas 77010
\nTelephone: (713) 653-8265
\nFacsimile: (713) 951-9221<\/p>\n
III-3<\/p>\n
BNP Paribas
\nAttention: Frederick H. Moryl, Jr.
\n209 South LaSalle Street, Suite 500
\nChicago, Illinois 60604
\nTelephone: (312) 977-2211
\nFacsimile: (312) 977-1380<\/p>\n
Mellon Bank, N.A.
\nAttention: Richard Bouchard – Loan Administrator
\nThree Mellon Bank Center
\nRoom 1203
\nPittsburgh, Pennsylvania 15259-0003
\nTelephone: (412) 234-5767
\nFacsimile: (412) 209-6117<\/p>\n
Wachovia Bank, N.A.
\nAttention: Susan Holmes
\n191 Peachtree Street, Northeast
\nAtlanta, Georgia 30303
\nTelephone: (404) 332-4277
\nFacsimile: (404) 332-5016<\/p>\n
Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch
\nAttention: Diane Tkach
\n227 W. Monroe Street Suite 2300
\nChicago, Illinois 60606
\nTelephone: (312) 696-4663
\nFacsimile: (312) 696-4535<\/p>\n
Banca di Roma-Chicago Branch
\nAttention: James Semonchik
\n225 West Washington
\nSuite 1200
\nChicago, Illinois 60606
\nTelephone: (312) 704-2629
\nFacsimile: (312) 726-3058<\/p>\n
Banco Bilbao Vizcaya Argentaria, S.A.
\nAttention: Alejandro Lorca
\n1345 Avenue of the Americas, 45th Floor
\nNew York, New York 10105
\nTelephone: (212) 728-1634
\nFacsimile: (212) 333-2904<\/p>\n
III-4<\/p>\n
Banca Commerciale Italiana, Chicago Branch
\nAttention: Charles Dougherty, Vice President
\nOne William Street
\nNew York, New York 10004
\nTelephone: (212) 607-3656
\nFacsimile: (212) 809-2124<\/p>\n
The Fuji Bank, Limited
\nAttention: James S. Bell
\n225 W. Wacker Drive Suite 2000
\nChicago, Illinois 60606
\nTelephone: (312) 621-0526
\nFacsimile: (312) 621-3386<\/p>\n
Merita Bank PLC
\nAttention: Thomas Hickey
\n437 Madison Ave., 21st Floor
\nNew York, New York 10022
\nTelephone: (212) 318-9306
\nFacsimile: (212) 318-9318<\/p>\n
Merrill Lynch Bank USA
\nAttention: Butch Alder
\n15 W. South Temple, Suite 300
\nSalt Lake City, Utah 84101
\nTelephone: (801) 526-8324
\nFacsimile: (801) 521-6466<\/p>\n
EXHIBIT A
\n ———<\/p>\n
[FORM OF BORROWING NOTICE]<\/p>\n
_________, 200_<\/p>\n
The Chase Manhattan Bank,
\n as Administrative Agent under the
\n Credit Agreement referred to below
\nOne Chase Manhattan Plaza
\nNew York, New York 10081
\nAttention: Victor Quinones<\/p>\n
Ladies and Gentlemen:<\/p>\n
Pursuant to subsection 2.1(c) of the $2,075,000,000 Five-Year Credit
\nAgreement, dated as of February 20, 2001, among DEERE & COMPANY, JOHN DEERE
\nCAPITAL CORPORATION, the Banks parties thereto, THE CHASE MANHATTAN BANK, as
\nAdministrative Agent, BANK OF AMERICA, N.A. and BANK ONE, NA, as Documentation
\nAgents, DEUTSCHE BANK AG NEW YORK BRANCH, as Syndication Agent, the Managing
\nAgents named therein and the Co-Agents named therein (as the same may be
\namended, supplemented or otherwise modified from time to time, the “Credit
\n ——
\nAgreement”), the undersigned hereby requests that the following Committed Rate
\n———
\nLoans be made on __________, 200_ as follows:<\/p>\n
(1) Total Amount of Committed Rate Loans $____________<\/p>\n
(2) Amount of (1) to be allocated to Eurodollar Loans $____________<\/p>\n
(3) Amount of (1) to be allocated to ABR Loans $____________<\/p>\n
(4) Interest Periods and amounts to be allocated
\n thereto in respect of Eurodollar Loans (amounts
\n must total (2)):<\/p>\n
(i) one month $____________<\/p>\n
(ii) two months $____________<\/p>\n
(iii) three months $____________<\/p>\n
(iv) six months $____________<\/p>\n
Total Eurodollar Loans $____________<\/p>\n
NOTE: THE AMOUNT APPEARING IN LINE (1) ABOVE MUST BE AT LEAST EQUAL TO
\n $25,000,000 AND IN A WHOLE MULTIPLE OF $5,000,000 AND THE AMOUNTS
\n APPEARING IN EACH OTHER LINE ABOVE MUST BE AT LEAST EQUAL TO $10,000,000
\n AND IN A WHOLE MULTIPLE OF $1,000,000.<\/p>\n
A-2<\/p>\n
Terms defined in the Credit Agreement shall have the same meanings
\nwhen used herein.<\/p>\n
Very truly yours,
\n [DEERE & COMPANY]
\n [JOHN DEERE CAPITAL CORPORATION]<\/p>\n
By: ________________________________________
\n Title:<\/p>\n
EXHIBIT B
\n ———<\/p>\n
[FORM OF BID LOAN REQUEST]<\/p>\n
_______, 200_<\/p>\n
The Chase Manhattan Bank,
\nas Administrative Agent under the Credit
\nAgreement referred to below
\nOne Chase Manhattan Plaza, 8\/th\/ Floor
\nNew York, New York 10081
\nAttention: Chris Consomer<\/p>\n
Ladies and Gentlemen:<\/p>\n
Reference is made to the $2,075,000,000 Five-Year Credit Agreement,
\ndated as of February 20, 2001, among DEERE & COMPANY, JOHN DEERE CAPITAL
\nCORPORATION, the Banks parties thereto, THE CHASE MANHATTAN BANK, as
\nAdministrative Agent, BANK OF AMERICA, N.A. and BANK ONE, NA, as Documentation
\nAgents, DEUTSCHE BANK AG NEW YORK BRANCH, as Syndication Agent, the Managing
\nAgents named therein and the Co-Agents named therein (as the same may be
\namended, supplemented or otherwise modified from time to time, the “Credit
\n ——
\nAgreement”). Terms defined in the Credit Agreement are used herein as therein
\n———
\ndefined.<\/p>\n
This is an [Index Rate] [Absolute Rate] Bid Loan Request pursuant to
\nsubsection 2.2 of the Credit Agreement requesting quotes for the following Bid
\nLoans:<\/p>\n
\n
\nAggregate Principal Amount $_____________ $____________ $____________
\nBorrowing Date _____________ ____________ ____________
\nInterest Period _____________ ____________ ____________
\nMaturity Period _____________ ____________ ____________
\nInterest Payment Dates _____________ ____________ ____________
\nInterest Rate Basis 360 day year
\n<\/c><\/c><\/c><\/s><\/table>\n B-2<\/p>\n
NOTE: THE AGGREGATE PRINCIPAL AMOUNTS APPEARING ABOVE MUST BE IN THE AGGREGATE
\nAT LEAST EQUAL TO $25,000,000 AND IN A WHOLE MULTIPLE OF $5,000,000.<\/p>\n
Very truly yours,
\n [DEERE & COMPANY]
\n [JOHN DEERE CAPITAL CORPORATION]<\/p>\n
By: _________________________________________
\n Title:<\/p>\n
__________
\nNote: Pursuant to the Credit Agreement, a Bid Loan Request may be transmitted
\n by facsimile transmission, or by telephone, immediately confirmed by
\n facsimile transmission. In any case, a Bid Loan Request shall contain the
\n information specified in the second paragraph of this form.<\/p>\n
EXHIBIT C
\n ———<\/p>\n
[FORM OF BID LOAN OFFER]<\/p>\n
_______, 200_<\/p>\n
The Chase Manhattan Bank, as Administrative
\n Agent under the Credit Agreement referred to below
\nOne Chase Manhattan Plaza, 8\/th\/ Floor
\nNew York, New York 10081
\nAttention: Chris Consomer<\/p>\n
Ladies and Gentlemen:<\/p>\n
Reference is made to the $2,075,000,000 Five-Year Credit Agreement,
\ndated as of February 20, 2001, among DEERE & COMPANY, JOHN DEERE CAPITAL
\nCORPORATION, the Banks parties thereto, THE CHASE MANHATTAN BANK, as
\nAdministrative Agent, BANK OF AMERICA, N.A. and BANK ONE, NA, as Documentation
\nAgents, DEUTSCHE BANK AG NEW YORK BRANCH, as Syndication Agent, the Managing
\nAgents named therein and the Co-Agents named therein (as the same may be
\namended, supplemented or otherwise modified from time to time, the “Credit
\n ——
\nAgreement”). Terms defined in the Credit Agreement are used herein as therein
\n———
\ndefined.<\/p>\n
In accordance with subsection 2.2 of the Credit Agreement, the
\nundersigned Bid Loan Bank offers to make Bid Loans thereunder in the following
\namounts with the following maturity dates:<\/p>\n
Borrowing Date: _________________, 200_<\/p>\n
Aggregate Maximum Amount: $________<\/p>\n
C-2<\/p>\n
\n\nMaturity Date 1: Maturity Date 2: Maturity Date 3:
\n—————- —————- —————-
\n
\nMaximum Amount $_____ Maximum Amount $_______ Maximum Amount $______<\/p>\nRate* ____Amount $______ Rate* ____Amount $______ Rate* ___Amount $_______<\/p>\n
Rate* ____Amount $______ Rate* ____Amount $______ Rate* ___Amount $_______
\n<\/c><\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
Very truly yours,<\/p>\n
[NAME OF BID LOAN BANK]<\/p>\n
By: ________________________________________
\n Name:
\n Title:
\n Telephone:
\n Facsimile:<\/p>\n
* If Index Rate Bid Loan, insert percentage above or below Eurodollar Rate.<\/p>\n
EXHIBIT D
\n ———<\/p>\n
[FORM OF BID LOAN CONFIRMATION]<\/p>\n
_______, 200_<\/p>\n
The Chase Manhattan Bank, as Administrative Agent
\n under the Credit Agreement referred to below
\nOne Chase Manhattan Plaza, 8\/th\/ Floor
\nNew York, New York 10081
\nAttention: Chris Consomer<\/p>\n
Ladies and Gentlemen:<\/p>\n
Reference is made to the $2,075,000,000 Five-Year Credit Agreement,
\ndated as of February 20, 2001, among DEERE & COMPANY, JOHN DEERE CAPITAL
\nCORPORATION, the Banks parties thereto, THE CHASE MANHATTAN BANK, as
\nAdministrative Agent, BANK OF AMERICA, N.A. and BANK ONE, NA, as Documentation
\nAgents, DEUTSCHE BANK AG NEW YORK BRANCH, as Syndication Agent, the Managing
\nAgents named therein and the Co-Agents named therein (as the same may be
\namended, supplemented or otherwise modified from time to time, the “Credit
\n ——
\nAgreement”). Terms defined in the Credit Agreement are used herein as therein
\n———
\ndefined.<\/p>\n
In accordance with subsection 2.2 of the Credit Agreement, the
\nundersigned accepts and confirms the offers by Bid Loan Bank(s) to make Bid
\nLoans to the undersigned on ______________, 200_ [Borrowing Date] under said
\nsubsection 2.2 in the (respective) amount(s) set forth on the attached list of
\nBid Loans offered.<\/p>\n
Very truly yours,
\n [DEERE & COMPANY]
\n [JOHN DEERE CAPITAL CORPORATION]<\/p>\n
By: ________________________________________
\n Title:<\/p>\n
[Borrower to attach Bid Loan Offer list prepared by Administrative Agent with
\naccepted amount entered by the Borrower to right of each Bid Loan Offer].<\/p>\n
EXHIBIT E
\n ———<\/p>\n
[FORM OF LOAN ASSIGNMENT]<\/p>\n
LOAN ASSIGNMENT<\/p>\n
LOAN ASSIGNMENT, dated as of the date set forth in Item 1 of Schedule
\nI hereto, among the Assignor Bank set forth in Item 2 of Schedule I hereto (the
\n“Assignor Bank”), the Loan Assignee set forth in Item 3 of Schedule I hereto
\n ————-
\n(the “Loan Assignee”), and THE CHASE MANHATTAN BANK, as administrative agent for
\n ————-
\nthe Banks under the Credit Agreement described below (in such capacity, the
\n“Administrative Agent”).
\n ——————– <\/p>\n
W I T N E S S E T H :
\n – – – – – – – – – – <\/p>\n
WHEREAS, this Loan Assignment is being executed and delivered in
\naccordance with subsection 10.5(c) of the $2,075,000,000 Five-Year Credit
\nAgreement, dated as of February 20, 2001 among DEERE & COMPANY (the “Company”),
\nJOHN DEERE CAPITAL CORPORATION (the “Capital Corporation”), the Banks parties
\nthereto, THE CHASE MANHATTAN BANK, as Administrative Agent, BANK OF AMERICA,
\nN.A. and BANK ONE, NA, as Documentation Agents, DEUTSCHE BANK AG NEW YORK
\nBRANCH, as Syndication Agent, the Managing Agents named therein and the Co-
\nAgents named therein (as from time to time amended, supplemented or otherwise
\nmodified in accordance with the terms thereof, the “Credit Agreement”; terms
\ndefined therein being used herein as therein defined); and<\/p>\n
WHEREAS, the Assignor Bank has advanced to [the Company] [the Capital
\nCorporation] the Bid Loan or Negotiated Rate Loan or portion thereof described
\nin Item 5 of Schedule I hereto (the “Loan”), and the Assignor Bank is assigning
\nthe Loan to the Loan Assignee pursuant to this Loan Assignment;<\/p>\n
NOW, THEREFORE, the parties hereto hereby agree as follows:<\/p>\n
1. The Assignor Bank acknowledges receipt from the Loan Assignee of
\nan amount equal to the purchase price, as agreed between the Assignor Bank and
\nthe Loan Assignee, of the outstanding principal amount of, and accrued interest
\non, the Loan. The Assignor Bank hereby irrevocably sells, assigns and transfers
\nto the Loan Assignee without recourse, representation or warranty, and the Loan
\nAssignee hereby irrevocably purchases, takes and acquires from the Assignor
\nBank, the Loan, together with all instruments, documents and collateral security
\npertaining thereto.<\/p>\n
2. (a) From and after the date set forth in Item 4 of Schedule I
\nhereto (the “Transfer Effective Date”), principal and interest that would
\n ———————–
\notherwise be payable to or for the account of the Assignor Bank pursuant to the
\nLoan shall, instead, be payable to or for the account of the Loan Assignee.<\/p>\n
(b) If Item 6 of Schedule I hereto contains payment instructions for
\nthe Loan Assignee and if the Loan Assignee delivers a copy of this Loan
\nAssignment to the Administrative Agent in accordance with subsection 10.5(f) of
\nthe Credit Agreement at least 5 Business Days prior to the due date of any
\npayment to the Loan Assignee, the Loan Assignee<\/p>\n
E-2<\/p>\n
hereby instructs the Administrative Agent to pay all such amounts payable to it
\npursuant to the provision of subparagraph (a) of this paragraph 2 in accordance
\nwith such payment instructions. If Item 6 of Schedule I hereto does not contain
\npayment instructions for the Loan Assignee (or a copy hereof is not delivered to
\nthe Administrative Agent as aforesaid), the Assignor Bank and the Loan Assignee
\nagree that, notwithstanding the provisions of subparagraph (a) of this paragraph
\n2, the Assignor Bank is hereby appointed by the Loan Assignee as its collection
\nagent to receive from the Administrative Agent, for and on behalf of and for the
\naccount of the Loan Assignee, all amounts payable to or for the account of the
\nLoan Assignee under the Loan; the Assignor Bank will immediately pay over to the
\nLoan Assignee any such amounts received by it, in like funds as received.<\/p>\n
3. Each of the parties to this Loan Assignment agrees that at any
\ntime and from time to time upon the written request of any other party, it will
\nexecute and deliver such further documents and do such further acts and things
\nas such other party may reasonably request in order to effect the purposes of
\nthis Loan Assignment.<\/p>\n
4. By executing and delivering this Loan Assignment, the Assignor
\nBank and the Loan Assignee confirm to and agree with each other and the
\nAdministrative Agent and the Banks as follows: (i) other than the representation
\nand warranty that it is the legal and beneficial owner of the interest being
\nassigned hereby free and clear of any adverse claim, the Assignor Bank makes no
\nrepresentation or warranty and assumes no responsibility with respect to any
\nstatements, warranties or representations made in or in connection with the
\nCredit Agreement or any other instrument or document furnished pursuant thereto
\nor the execution, legality, validity, enforceability, genuineness, sufficiency
\nor value of the Credit Agreement or any other instrument or document furnished
\npursuant thereto; (ii) the Assignor Bank makes no representation or warranty and
\nassumes no responsibility with respect to the financial condition of the Company
\nor the Capital Corporation or the performance or observance by the Company or
\nthe Capital Corporation of any of its obligations under the Credit Agreement or
\nany other instrument or document furnished pursuant thereto; (iii) the Loan
\nAssignee confirms that it has received a copy of the Credit Agreement, together
\nwith copies of the financial statements referred to in subsection 3.1 of the
\nCredit Agreement (unless financial statements referred to in subsection 5.1(a)
\nof the Credit Agreement have become available), the financial statements
\ndelivered pursuant to subsection 5.1 of the Credit Agreement, if any, and such
\nother documents and information as it has deemed appropriate to make its own
\ncredit analysis and decision to enter into this Loan Assignment; (iv) the Loan
\nAssignee will, independently and without reliance upon the Administrative Agent,
\nthe Assignor Bank or any other Bank and based on such documents and information
\nas it shall deem appropriate at the time, continue to make its own credit
\ndecisions in respect of the Credit Agreement; and (v) the Loan Assignee appoints
\nand authorizes the Administrative Agent to take such action as agent on its
\nbehalf and to exercise such powers under the Credit Agreement as are delegated
\nto the Administrative Agent by the terms thereof, together with such powers as
\nare reasonably incidental thereto, all in accordance with Section 9 of the
\nCredit Agreement.<\/p>\n
5. If the Loan Assignee is organized under the laws of any
\njurisdiction other than the United States or any State thereof, the Loan
\nAssignee (i) represents to the Assignor Bank (for the benefit of the Assignor
\nBank, the Administrative Agent and [the Company] [the Capital Corporation]) that
\nunder applicable law and treaties no taxes will be required to be withheld by<\/p>\n
E-3<\/p>\n
the Administrative Agent, [the Company] [the Capital Corporation] or the
\nAssignor Bank with respect to any payments to be made to the Loan Assignee in
\nrespect of the Loan, (ii) will furnish to the Assignor Bank, the Administrative
\nAgent and [the Company] [the Capital Corporation], on or prior to the Transfer
\nEffective Date, a letter in duplicate in the form of Exhibit J or Exhibit K, as
\nappropriate, to the Credit Agreement and two duly completed copies of either
\nU.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form
\n1001 (wherein the Loan Assignee claims entitlement to complete exemption from
\nU.S. federal withholding tax on all interest payments under the Loan), (iii)
\nwill furnish to the Assignor Bank, the Administrative Agent and [the Company]
\n[the Capital Corporation], on or prior to the Transfer Effective Date either
\nU.S. Internal Revenue Service Form W-8 or U.S. Internal Revenue Service Form W-9
\n(wherein the Loan Assignee claims entitlement to complete exemption from U.S.
\nfederal backup withholding tax on all interest payments under the Loan) and (iv)
\nagrees (for the benefit of the Assignor Bank, the Administrative Agent and [the
\nCompany] [the Capital Corporation]) to provide the Assignor Bank, the
\nAdministrative Agent and [the Company] [the Capital Corporation] a new Form 4224
\nor Form 1001 and Form W-8 or W-9 or successor applicable form or other manner of
\ncertification on or before the expiration or obsolescence of, or after the
\noccurrence of any event requiring a change in, any previously delivered letter
\nor form and comparable statements in accordance with applicable U.S. laws and
\nregulations and amendments duly executed and completed by the Loan Assignee, and
\ncomply from time to time with all applicable U.S. laws and regulations with
\nregard to such withholding tax exemption and such backup withholding tax
\nexemption.<\/p>\n
6. The Loan Assignee agrees to be bound by subsection 10.7 of the
\nCredit Agreement relating to confidentiality.<\/p>\n
7. This Loan Assignment shall be governed by, and construed and
\ninterpreted in accordance with, the law of the State of New York. <\/p>\n
IN WITNESS WH EREOF, the parties hereto have caused this Loan
\nAssignment to be executed by their respective duly authorized officers on
\nSchedule I hereto as of the date set forth in Item 1 of Schedule I hereto.<\/p>\n
SCHEDULE I
\n ———-
\n TO LOAN
\n ——-
\n ASSIGNMENT
\n ———-<\/p>\n
Item 1 (Date of Loan Assignment): [Insert date of Loan Assignment]<\/p>\n
Item 2 (Assignor Bank): [Insert name of Assignor Bank]<\/p>\n
Item 3 (Loan Assignee): [Insert name, address, telephone and
\n telex numbers and name of contact party
\n of Loan Assignee]<\/p>\n
Item 4 (Transfer Effective Date): [Insert Transfer Effective Date] [To be a
\n date not less than five Business Days
\n after date of Loan Assignment]<\/p>\n
Item 5 (Description of Loan): a. Borrowing Date and Maturity Date of
\n Bid Loan or Negotiated Rate Loan:<\/p>\n
b. Principal Amount of Loan:<\/p>\n
Item 6 (Payment Instructions): [Complete only if payments are to be made
\n by Administrative Agent to Loan Assignee
\n rather than to Assignor Bank as
\n collection agent for Loan Assignee; leave
\n blank if Assignor Bank is to act as such
\n collection agent]<\/p>\n
Item 7 (Signatures):<\/p>\n
_____________________________, as
\n Assignor Bank<\/p>\n
By: _____________________________
\n Title:<\/p>\n
____________________________, as
\n Loan Assignee<\/p>\n
By: ____________________________
\n Title:<\/p>\n
I-2<\/p>\n
ACCEPTED FOR RECORDATION
\n IN REGISTER:<\/p>\n
THE CHASE MANHATTAN BANK,
\n as Administrative Agent<\/p>\n
By:__________________________
\n Title:<\/p>\n
EXHIBIT F
\n ———<\/p>\n
[FORM OF COMMITMENT TRANSFER SUPPLEMENT]<\/p>\n
COMMITMENT TRANSFER SUPPLEMENT
\n ——————————<\/p>\n
COMMITMENT TRANSFER SUPPLEMENT, dated as of the date set forth in Item
\n1 of Schedule I hereto, among the Transferor Bank set forth in Item 2 of
\nSchedule I hereto (the “Transferor Bank”), each Purchasing Bank set forth in
\n —————
\nItem 3 of Schedule I hereto (each, a “Purchasing Bank”), DEERE & COMPANY, a
\n —————
\nDelaware corporation (the “Company”), JOHN DEERE CAPITAL CORPORATION, a Delaware
\n ——-
\ncorporation (the “Capital Corporation”), and THE CHASE MANHATTAN BANK, as
\n ——————-
\nadministrative agent for the Banks under the Credit Agreement described below
\n(in such capacity, the “Administrative Agent”).
\n ——————– <\/p>\n
W I T N E S S E T H :
\n – – – – – – – – – – <\/p>\n
WHEREAS, this Commitment Transfer Supplement is being executed and
\ndelivered in accordance with subsection 10.5(d) of the $2,075,000,000 Five-Year
\nCredit Agreement, dated as of February 20, 2001, among the Company, the Capital
\nCorporation, the Transferor Bank and the other Banks party thereto, The Chase
\nManhattan Bank, as Administrative Agent, Bank of America, N.A. and Bank One, NA,
\nas Documentation Agents, Deutsche Bank AG New York Branch, as Syndication Agent,
\nthe Managing Agents named therein and the Co-Agents named therein (as from time
\nto time amended, supplemented or otherwise modified in accordance with the terms
\nthereof, the “Credit Agreement”; terms defined therein being used herein as
\n —————-
\ntherein defined);<\/p>\n
WHEREAS, each Purchasing Bank (if it is not already a Bank party to
\nthe Credit Agreement) wishes to become a Bank party to the Credit Agreement; and<\/p>\n
WHEREAS, the Transferor Bank is selling and assigning to each
\nPurchasing Bank, rights, obligations and commitments under the Credit Agreement;<\/p>\n
NOW, THEREFORE, the parties hereto hereby agree as follows:<\/p>\n
1. From and after the Transfer Effective Date set forth in Item 4 of
\nSchedule I hereto (the “Transfer Effective Date”), each Purchasing Bank shall be
\n ———————–
\na Bank party to the Credit Agreement for all purposes thereof.<\/p>\n
2. The Transferor Bank acknowledges receipt from each Purchasing
\nBank of an amount equal to the purchase price, as agreed between the Transferor
\nBank and such Purchasing Bank (the “Purchase Price”), of the portion being
\n ————–
\npurchased by such Purchasing Bank (such Purchasing Bank’s “Purchased
\n ———
\nPercentage”) of the outstanding Commitment of such Transferor Bank and\/or
\n———-
\nCommitted Rate Loans and other amounts owing to the Transferor Bank under the
\nCredit Agreement (other than any Bid Loans and Negotiated Rate Loans owing to
\nthe Transferor Bank). The Transferor Bank hereby irrevocably sells, assigns and
\ntransfers to each Purchasing Bank, without recourse, representation or warranty,
\nand each Purchasing Bank hereby irrevocably purchases, takes and assumes from
\nthe Transferor Bank, such Purchasing Bank’s Purchased Percentage of the
\nCommitments and the presently outstanding Committed Rate Loans <\/p>\n
F-2<\/p>\n
and other amounts owing to the Transferor Bank under the Credit Agreement (other
\nthan any Bid Loans and Negotiated Rate Loans owing to the Transferor Bank)
\ntogether with all instruments, documents and collateral security pertaining
\nthereto.<\/p>\n
3. The Transferor Bank has made arrangements with each Purchasing
\nBank with respect to (i) the portion, if any, to be paid, and the date or dates
\nfor payment, by the Transferor Bank to such Purchasing Bank of any fees
\nheretofore received by the Transferor Bank pursuant to the Credit Agreement
\nprior to the Transfer Effective Date and (ii) the portion, if any, to be paid,
\nand the date or dates for payment, by such Purchasing Bank to the Transferor
\nBank of fees or interest received by such Purchasing Bank pursuant to the Credit
\nAgreement from and after the Transfer Effective Date.<\/p>\n
4. (a) From and after the Transfer Effective Date, principal,
\ninterest, fees and other amounts that would otherwise be payable to or for the
\naccount of the Transferor Bank pursuant to the Credit Agreement and the
\nCommitted Rate Loans (other than any Bid Loans and Negotiated Rate Loans owing
\nto the Transferor Bank) shall, instead, be payable to or for the account of the
\nTransferor Bank and the Purchasing Banks, as the case may be, in accordance with
\ntheir respective interests as reflected in this Commitment Transfer Supplement,
\nwhether such amounts have accrued prior to the Transfer Effective Date or accrue
\nsubsequent to the Transfer Effective Date.<\/p>\n
(b) The Transferor Bank and each Purchasing Bank hereby agree and
\ninstruct the Administrative Agent that, notwithstanding the provisions of
\nsubparagraph (a) of this paragraph 4, on each date hereafter on which interest
\nor fees are payable under the Credit Agreement and the Committed Rate Loans in
\nrespect of any period (an “Accrual Period”) ending on or prior to the Transfer
\n ————–
\nEffective Date, any such interest or fees payable to the Purchasing Bank on
\naccount of such Accrual Period in respect of its interests as reflected in this
\nCommitment Transfer Supplement shall be paid over to the Transferor Bank (and,
\nif such interest or fees are not paid in full when due, the payment over to the
\nTransferor Bank shall be ratable), and the Transferor Bank and such Purchasing
\nBank will make appropriate arrangements for the payment to such Purchasing Bank
\nof the portion thereof owing to it to reflect the amount, if any, included in
\nthe Purchase Price for interest and fees in respect of any Accrual Period.<\/p>\n
5. On or promptly after the Transfer Effective Date specified in
\nthis Commitment Transfer Supplement, the Purchasing Bank and the Administrative
\nAgent, on behalf of such Purchasing Bank, shall open and maintain in the name of
\neach Borrower a Loan Account with respect to such Purchasing Bank’s Committed
\nRate Loans and Bid Loans to such Borrower.<\/p>\n
6. Concurrently with the execution and delivery hereof, the
\nAdministrative Agent will, at the expense of the Transferor Bank, provide to
\neach Purchasing Bank (if it is not already a Bank party to the Credit Agreement)
\nconformed copies of all documents delivered to the Administrative Agent on the
\nClosing Date in satisfaction of the conditions precedent set forth in the Credit
\nAgreement.<\/p>\n
7. Each of the parties to this Commitment Transfer Supplement agrees
\nthat at any time and from time to time upon the written request of any other
\nparty, it will execute and deliver <\/p>\n
F-3<\/p>\n
such further documents and do such further acts and things as such other party
\nmay reasonably request in order to effect the purposes of this Commitment
\nTransfer Supplement.<\/p>\n
8. By executing and delivering this Commitment Transfer Supplement,
\nthe Transferor Bank and each Purchasing Bank confirm to and agree with each
\nother and the Administrative Agent and the Banks as follows: (i) other than the
\nrepresentation and warranty that it is the legal and beneficial owner of the
\ninterest being assigned hereby free and clear of any adverse claim, the
\nTransferor Bank makes no representation or warranty and assumes no
\nresponsibility with respect to any statements, warranties or representations
\nmade in or in connection with the Credit Agreement or any other instrument or
\ndocument furnished pursuant thereto or the execution, legality, validity,
\nenforceability, genuineness, sufficiency or value of the Credit Agreement, the
\nCommitted Rate Loans or any other instrument or document furnished pursuant
\nthereto; (ii) the Transferor Bank makes no representation or warranty and
\nassumes no responsibility with respect to the financial condition of the Company
\nor the Capital Corporation or the performance or observance by the Company or
\nthe Capital Corporation of any of its obligations under the Credit Agreement or
\nany other instrument or document furnished pursuant thereto; (iii) each
\nPurchasing Bank confirms that it has received a copy of the Credit Agreement,
\ntogether with copies of the financial statements referred to in subsection 3.1
\nof the Credit Agreement, the financial statements delivered pursuant to
\nsubsection 5.1 of the Credit Agreement, if any, and such other documents and
\ninformation as it has deemed appropriate to make its own credit analysis and
\ndecision to enter into this Commitment Transfer Supplement; (iv) each Purchasing
\nBank will, independently and without reliance upon the Administrative Agent, the
\nTransferor Bank or any other Bank and based on such documents and information as
\nit shall deem appropriate at the time, continue to make its own credit decisions
\nin taking or not taking action under the Credit Agreement; (v) each Purchasing
\nBank appoints and authorizes the Administrative Agent to take such action as
\nagent on its behalf and to exercise such powers under the Credit Agreement as
\nare delegated to the Administrative Agent by the terms thereof, together with
\nsuch powers as are reasonably incidental thereto, all in accordance with Section
\n9 of the Credit Agreement; and (vi) each Purchasing Bank agrees that it will
\nperform in accordance with their terms all of the obligations which by the terms
\nof the Credit Agreement are required to be performed by it as a Bank.<\/p>\n
9. If the Purchasing Bank is organized under the laws of any
\njurisdiction other than the United States or any State thereof, the Purchasing
\nBank (i) represents to the Transferor Bank (for the benefit of the Transferor
\nBank, the Administrative Agent and the Borrowers) that under applicable law and
\ntreaties no taxes will be required to be withheld by the Administrative Agent,
\nthe Borrowers or the Transferor Bank with respect to any payments to be made to
\nthe Purchasing Bank in respect of the Loans, (ii) will furnish to the Transferor
\nBank, the Administrative Agent and the Borrowers, on or prior to the Transfer
\nEffective Date, a letter in duplicate in the form of Exhibit J or Exhibit K, as
\nappropriate, to the Credit Agreement and two duly completed copies of either
\nU.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form
\n1001 (wherein the Purchasing Bank claims entitlement to complete exemption from
\nU.S. federal withholding tax on all interest payments in respect of the Loans),
\n(iii) will furnish to the Transferor Bank, the Administrative Agent and the
\nBorrowers, on or prior to the Transfer Effective Date either U.S. Internal
\nRevenue Service Form W-8 or U.S. Internal Revenue Service Form W-9 (wherein the
\nPurchasing Bank claims entitlement to complete exemption from U.S. federal
\nbackup withholding tax on all interest payments under the Loan)<\/p>\n
F-4<\/p>\n
and (iv) agrees (for the benefit of the Transferor Bank, the Administrative
\nAgent and the Borrowers), to provide the Transferor Bank, the Administrative
\nAgent and the Borrowers a new Form 4224 or Form 1001 and Form W-8 or W-9 or
\nsuccessor applicable form or other manner of certification on or before the
\nexpiration or obsolescence of, or after the occurrence of any event requiring a
\nchange in, any previously delivered letter or form and comparable statements in
\naccordance with applicable U.S. laws and regulations and amendments duly
\nexecuted and completed by the Purchasing Bank, and comply from time to time with
\nall applicable U.S. laws and regulations with regard to such withholding tax
\nexemption and such backup withholding tax exemption.<\/p>\n
10. The Purchasing Bank agrees to be bound by subsection 10.7 of the
\nCredit Agreement relating to confidentiality.<\/p>\n
11. Schedule II hereto sets forth the revised Commitments and
\nCommitment Percentages of the Transferor Bank and each Purchasing Bank as well
\nas administrative information with respect to each Purchasing Bank.<\/p>\n
12. This Commitment Transfer Supplement shall be governed by, and
\nconstrued and interpreted in accordance with, the law of the State of New York.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Commitment
\nTransfer Supplement to be executed by their respective duly authorized officers
\non Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.<\/p>\n
SCHEDULE I
\n ———-
\n TO
\n —
\n COMMITMENT
\n ———-
\n TRANSFER
\n ——–
\n SUPPLEMENT
\n ———-<\/p>\n
COMPLETION OF INFORMATION AND
\n SIGNATURES FOR COMMITMENT
\n TRANSFER SUPPLEMENT
\n ——————-<\/p>\n
Item 1 (Date of Commitment): [Insert date of Commitment Transfer
\n Supplement]<\/p>\n
Item 2 (Transferor Bank): [Insert name of Transferor Bank]<\/p>\n
Item 3 (Purchasing Bank[s]): [Insert name[s] of Purchasing Bank[s]]<\/p>\n
Item 4 (Transfer Effective Date): [Insert Transfer Effective Date:] [To be
\n a date not less than five Business Days
\n after date of Commitment Transfer
\n Supplement]<\/p>\n
Item 5 (Signatures of Parties to
\n Commitment Transfer
\n Supplement):<\/p>\n
____________________________, as
\n Transferor Bank<\/p>\n
By: ____________________________
\n Title:<\/p>\n
____________________________, as
\n a Purchasing Bank<\/p>\n
By: ____________________________
\n Title:<\/p>\n
____________________________, as
\n a Purchasing Bank<\/p>\n
By: ____________________________
\n Title:<\/p>\n
I-2<\/p>\n
CONSENTED TO AND ACKNOWLEDGED:<\/p>\n
DEERE & COMPANY<\/p>\n
By: _______________________________
\n Title:<\/p>\n
JOHN DEERE CAPITAL CORPORATION<\/p>\n
By: _________________________________
\n Title:<\/p>\n
ACCEPTED FOR RECORDATION
\n IN REGISTER:<\/p>\n
THE CHASE MANHATTAN BANK,
\n as Administrative Agent<\/p>\n
By: ________________________________
\n Title:<\/p>\n
SCHEDULE II
\n ———–
\n TO COMMITMENT
\n ————-
\n TRANSFER
\n ——–
\n SUPPLEMENT
\n ———–<\/p>\n
LIST OF LENDING OFFICES, ADDRESSES
\n FOR NOTICES AND COMMITMENT AMOUNTS
\n ———————————–<\/p>\n
\n
\n[Name of Transferor Bank] Revised Commitment Amount: $_____________
\n ————————————<\/p>\n Revised Commitment Percentage: ______________
\n ————————————<\/p>\n
[Name of Purchasing Bank] New Commitment Amount: _____________$
\n ————————————<\/p>\n
Address for Notices: New Commitment Percentage: ______________
\n————————————- ————————————
\n_____________________________________
\n_____________________________________
\n_____________________________________
\nAttn: ______________________________
\nTelephone: _________________________
\nFacsimile: _________________________
\n[Name of Purchasing Bank] New Commitment Amount: $_____________
\n ————————————<\/p>\n
Address for Notices: New Commitment Percentage: ______________
\n————————————- ————————————
\n_____________________________________
\n_____________________________________
\n_____________________________________
\nAttn: ______________________________
\nTelephone: _________________________
\nFacsimile: _________________________
\n<\/c><\/c><\/s><\/table>\n
EXHIBIT G
\n ———<\/p>\n
[FORM OF OPINION OF GENERAL COUNSEL
\n TO THE COMPANY]<\/p>\n
[Closing Date]<\/p>\n
To each of the Banks parties to
\nthe Credit Agreement referred to
\nbelow and to The Chase Manhattan
\nBank, as Administrative Agent<\/p>\n
Deere & Company and
\n John Deere Capital Corporation<\/p>\n
Ladies and Gentlemen:<\/p>\n
This opinion is furnished to you pursuant to subsection 4.1(c) of the
\n$2,075,000,000 Five-Year Credit Agreement dated as of February 20, 2001 (the
\n“Credit Agreement”) among Deere & Company (the “Company”), John Deere Capital
\nCorporation (the “Capital Corporation”, the Company and the Capital Corporation
\nbeing referred to herein individually as a “Borrower” and collectively as the
\n“Borrowers”), the Banks parties thereto, The Chase Manhattan Bank, as
\nAdministrative Agent, Bank of America, N.A. and Bank One, NA, as Documentation
\nAgents, Deutsche Bank AG New York Branch, as Syndication Agent, the Managing
\nAgents named therein and the Co-Agents named therein for said Banks. Terms
\ndefined in the Credit Agreement are used herein as therein defined.<\/p>\n
I am General Counsel of the Company and have acted as counsel for the
\nCapital Corporation in this matter. I am familiar with the corporate history and
\norganization of each Borrower and of its Subsidiaries and the proceedings
\nrelating to the authorization, execution and delivery by each Borrower of the
\nCredit Agreement. In that connection I have examined or caused to have examined:<\/p>\n
1. The Credit Agreement;<\/p>\n
2. The documents furnished by each of the Borrowers pursuant to
\n Section 4 of the Credit Agreement;<\/p>\n
3. The Certificates of Incorporation of the Borrowers and all
\n amendments thereto (the “Charters”);<\/p>\n
4. The bylaws of the Borrowers and all amendments thereto (the
\n “Bylaws”); and<\/p>\n
5. Certificates of the Secretary of State of Delaware, each dated a
\n recent date, attesting to the continued corporate existence and
\n good standing of the Borrowers in that State.<\/p>\n
G-2<\/p>\n
In addition, I have reviewed or caused to have reviewed such of the
\ncorporate proceedings of the Borrowers, and have examined or caused to have
\nexamined such documents, corporate records, and other instruments relating to
\nthe organization of the Borrowers and their respective Subsidiaries and such
\nother agreements and instruments to which the Borrowers and their respective
\nSubsidiaries are parties, as I consider necessary as a basis for the opinions
\nhereinafter expressed. I have assumed the due execution and delivery, pursuant
\nto due authorization, of the Credit Agreement by the Banks, the Administrative
\nAgent, the Syndication Agent, the Documentation Agents, the Managing Agents and
\nthe Co-Agents, and the authenticity of all documents submitted to me as
\noriginals and the conformity to the original documents of all documents
\nsubmitted to me as certified, conformed or photostatic copies.<\/p>\n
I am qualified to practice law in the State of Illinois and the State
\nof Michigan and do not purport to be an expert on, and do not express any
\nopinion herein concerning, any laws other than the laws of the State of Illinois
\nand the State of Michigan, the General Corporation Law of the State of Delaware
\nand the Federal laws of the United States.<\/p>\n
Based upon the foregoing and upon such investigation as I have deemed
\nnecessary, I am of the following opinion:<\/p>\n
1. Each Borrower is a corporation duly organized, validly existing
\n and in good standing under the laws of the State of Delaware and
\n has the corporate power and authority to carry on its business as
\n now being conducted and to own its properties.<\/p>\n
2. The execution, delivery and performance by each Borrower of the
\n Credit Agreement are within such Borrower’s corporate powers,
\n have been duly authorized by all necessary corporate action, and
\n (i) do not contravene, or constitute a default under the Charter
\n or the Bylaws of such Borrower, any judgment, law, rule or
\n regulation applicable to such Borrower, or any Contractual
\n Obligation by which such Borrower is bound or (ii) result in the
\n creation of any lien, charge or encumbrance upon any of its
\n property or assets. The Credit Agreement has been duly executed
\n and delivered on behalf of each Borrower.<\/p>\n
3. No authorization, approval, or other action by, and no notice to
\n or filing with, any governmental authority or regulatory body is
\n required for the due execution, delivery and performance by each
\n Borrower of the Credit Agreement.<\/p>\n
4. There is no pending or, to the best of my knowledge, threatened
\n action or proceeding against either Borrower or any of its
\n Subsidiaries before any court, governmental agency or arbitrator
\n which is likely to have a materially adverse effect upon the
\n financial condition or operations of such Borrower and its
\n Subsidiaries taken as a whole.<\/p>\n
G-3<\/p>\n
I am aware that Shearman & Sterling will rely upon the opinions set
\nforth in paragraphs 1, 2, and 3 of this opinion in rendering their opinion
\nfurnished pursuant to subsection 4.1(c) of the Credit Agreement and consent
\nthereto.<\/p>\n
Very truly yours,<\/p>\n
James R. Jenkins<\/p>\n
EXHIBIT H
\n ———<\/p>\n
[FORM OF OPINION OF SPECIAL NEW YORK COUNSEL
\n TO THE BORROWERS]<\/p>\n
[Closing Date]<\/p>\n
To each of the Banks parties to the
\nCredit Agreement referred to below and
\nto The Chase Manhattan Bank, as
\nAdministrative Agent<\/p>\n
Deere & Company
\n —————
\n John Deere Capital Corporation
\n ——————————<\/p>\n
Ladies and Gentlemen:<\/p>\n
This opinion is furnished to you pursuant to subsection 4.1(c) of the
\n$2,075,000,000 Five-Year Credit Agreement, dated as of February 20, 2001 (the
\n“Credit Agreement”), among Deere & Company (the “Company”), John Deere Capital
\nCorporation (the “Capital Corporation”, the Company and the Capital Corporation
\nbeing referred to herein individually as a “Borrower” and collectively as the
\n“Borrowers”), the Banks parties thereto, The Chase Manhattan Bank, as
\nAdministrative Agent, Bank of America, N.A. and Bank One, NA, as Documentation
\nAgents, Deutsche Bank AG New York Branch, as Syndication Agent, the Managing
\nAgents named therein and the Co-Agents named therein. Terms defined in the
\nCredit Agreement are used herein as therein defined.<\/p>\n
We have acted as special New York counsel for the Borrowers in
\nconnection with the preparation, execution and delivery of the Credit Agreement.<\/p>\n
In that connection we have examined:<\/p>\n
(1) the Credit Agreement; and<\/p>\n
(2) the documents furnished by each of the Borrowers pursuant to
\nSection 4.1 of the Credit Agreement.<\/p>\n
We have assumed the due execution and delivery, pursuant to due
\nauthorization, of the Credit Agreement by the Banks and the Agents, the
\nauthenticity of all documents submitted to us as originals and the conformity to
\nthe original documents of all documents submitted to us as certified, conformed
\nor photostatic copies. We have also assumed that the Banks and the Agents will
\nperform the Credit Agreement reasonably and in good faith and will act
\nreasonably and in good faith in taking action, exercising discretion and making
\ndeterminations thereunder. We have also assumed that no Bid Loan or Negotiated
\nRate Loan made in an amount of less than $2,500,000 will bear interest at a rate
\ngreater than 25% per annum.<\/p>\n
H-2<\/p>\n
We are qualified to practice law in the State of New York. We do not
\nexpress any opinion herein concerning any laws other than the laws of the State
\nof New York and the Federal laws of the United States. To the extent our
\nopinions expressed below involve conclusions as to matters set forth in
\nparagraph 1, 2 or 3 of the opinion of James R. Jenkins, General Counsel of the
\nCompany, a copy of which is being delivered to you today pursuant to Section
\n4.1(c) of the Credit Agreement, we have, with your permission, relied on such
\nopinion.<\/p>\n
Based upon the foregoing and upon such investigation as we have deemed
\nnecessary, we are of the opinion that the Credit Agreement constitutes the
\nlegal, valid and binding obligation of each Borrower enforceable against such
\nBorrower in accordance with its terms, subject to (a) the effect of any
\napplicable bankruptcy, insolvency (including, without limitation, all laws
\nrelating to fraudulent transfers, reorganization and moratorium) or similar law
\naffecting creditors’ rights generally and (b) the effect of general principles
\nof equity, including, without limitation, concepts of materiality,
\nreasonableness, good faith and fair dealing (regardless of whether considered in
\na proceeding in equity or at law).<\/p>\n
Very truly yours,<\/p>\n
SHEARMAN & STERLING<\/p>\n
EXHIBIT I
\n ———<\/p>\n
[FORM OF EXTENSION REQUEST]<\/p>\n
____________________, 200_<\/p>\n
The Chase Manhattan Bank,
\nas Administrative Agent
\nOne Chase Manhattan Plaza
\nNew York, New York 10081
\nAttention: ______________________<\/p>\n
Ladies and Gentlemen:<\/p>\n
Reference is made to the $2,075,000,000 Five-Year Credit Agreement,
\ndated as of February 20, 2001 among Deere & Company, John Deere Capital
\nCorporation, the Banks parties thereto, The Chase Manhattan Bank, as
\nAdministrative Agent, Bank of America, N.A. and Bank One, NA, as Documentation
\nAgents, Deutsche Bank AG New York Branch, as Syndication Agent, the Managing
\nAgents named therein and the Co-Agents named therein (as the same may be
\namended, supplemented or otherwise modified from time to time, the “Credit
\nAgreement”). Terms defined in the Credit Agreement are used herein as therein
\ndefined.<\/p>\n
I-2<\/p>\n
This is an Extension Request pursuant to subsection 2.16 of the Credit
\nAgreement requesting an extension of the Termination Date to [INSERT REQUESTED
\nTERMINATION DATE]. Please transmit a copy of this Extension Request to each of
\nthe Banks.<\/p>\n
Very truly yours,<\/p>\n
DEERE & COMPANY<\/p>\n
By: __________________________________
\n Title:<\/p>\n
JOHN DEERE CAPITAL CORPORATION<\/p>\n
By: __________________________________
\n Title:<\/p>\n
EXHIBIT J
\n ———<\/p>\n
[FORM OF TAX LETTER]<\/p>\n
[To be sent in DUPLICATE and accompanied
\n by TWO executed copies of Form 1001 of
\n the Internal Revenue Service]<\/p>\n
[Bank’s Letterhead]<\/p>\n
________________, 200_<\/p>\n
Deere & Company
\nOne John Deere Place
\nMoline, Illinois 61265
\nAttention: Treasurer
\nJohn Deere Capital Corporation
\nFirst National Bank Building
\n1 East First Street
\nReno, Nevada 89501
\nAttention: Manager<\/p>\n
Re: $2,075,000,000 Five-Year Credit Agreement
\n dated as of February 20, 2001 with Deere & Company and John Deere Capital Corporation
\n ——————————————<\/p>\n
Ladies and Gentlemen:<\/p>\n
In connection with the $2,075,000,000 Five-Year Credit Agreement,
\ndated as of February 20, 2001, among Deere & Company, John Deere Capital
\nCorporation, the Banks parties thereto, The Chase Manhattan Bank, as
\nAdministrative Agent, Bank of America, N.A. and Bank One, NA, as Documentation
\nAgents, Deutsche Bank AG New York Branch, as Syndication Agent, the Managing
\nAgents named therein and the Co-Agents named therein, we hereby represent and
\nwarrant that [name of Bank, address] is a [name of Country] corporation and is
\ncurrently exempt from any U.S. federal withholding tax on payments to it from
\nU.S. sources by virtue of compliance with the provisions of the Income Tax
\nConvention between the United States and [name of Country] signed [date], [as
\namended]. Our fiscal year is the twelve months ending [________________].<\/p>\n
The undersigned (a) is a corporation organized under the laws of
\n[_______] whose registered business is managed or controlled in [_______], (b)
\n[does not have a permanent establishment or fixed base in the United States]
\n[does have a permanent establishment or fixed base in the United States but the
\nabove Agreement is not effectively connected with such permanent establishment
\nor fixed base], (c) is not exempt from tax on the income in [_______] and (d) is
\nthe beneficial owner of the income.<\/p>\n
We enclose herewith two copies of Form 1001 of the U.S. Internal
\nRevenue Service.<\/p>\n
J-2<\/p>\n
Yours faithfully,<\/p>\n
[NAME OF BANK]<\/p>\n
By: ______________________________________
\n Title:<\/p>\n
cc: The Chase Manhattan Bank, as Administrative Agent<\/p>\n
EXHIBIT K
\n ———<\/p>\n
[FORM OF TAX LETTER]<\/p>\n
[To be sent in DUPLICATE and accompanied
\n by TWO executed copies of Form 4224 of
\n the Internal Revenue Service]<\/p>\n
[Bank’s Letterhead]<\/p>\n
______________, 200_<\/p>\n
Deere & Company
\nOne John Deere Place
\nMoline, Illinois 61265
\nAttention: Treasurer
\nJohn Deere Capital Corporation
\nFirst National Bank Building
\n1 East First Street
\nReno, Nevada 89501
\nAttention: Manager<\/p>\n
Re: $2,075,000,000 Five-Year Credit Agreement
\n dated as of February 20, 2001 with Deere & Company and John Deere Capital Corporation
\n ——————————————<\/p>\n
Ladies and Gentlemen:<\/p>\n
In connection with the above $2,075,000,000 Five-Year Credit Agreement,
\ndated as of February 20, 2001 among Deere & Company, John Deere Capital
\nCorporation, the Banks parties thereto, The Chase Manhattan Bank, as
\nAdministrative Agent, Bank of America, N.A. and Bank One, NA, as Documentation
\nAgents, Deutsche Bank AG New York Branch, as Syndication Agent, the Managing
\nAgents named therein and the Co-Agents named therein, we hereby represent and
\nwarrant that [name of Bank, address] is a corporation and is entitled to
\nexemption from U.S. federal withholding tax on payments to it under the
\nAgreement by virtue of Section 1441(c)(1) of the Internal Revenue Code of the
\nUnited States of America and Treasury Regulation Section 1.1441-4(a) thereunder.<\/p>\n
K-2<\/p>\n
We enclose herewith two copies of Form 4224 of the U.S. Internal Revenue
\nService.<\/p>\n
Yours faithfully,<\/p>\n
[NAME OF BANK]<\/p>\n
By:____________________________
\n Title:<\/p>\n
cc: The Chase Manhattan Bank, as Administrative Agent<\/p>\n
EXHIBIT L
\n ———<\/p>\n
[FORM OF AGREEMENT]<\/p>\n
THIS AGREEMENT, dated as of _____, 200_ (“Agreement”), among Deere & ———
\nCompany (the “Company”), John Deere Capital Corporation (the “Capital
\n ——- ——-
\nCorporation”), ____________ (“New Bank”) and The Chase Manhattan Bank, as
\n———– ——–
\nAdministrative Agent for the Existing Banks referred to below.<\/p>\n
W I T N E S S E T H :
\n – – – – – – – – – – <\/p>\n
WHEREAS, the Company, the Capital Corporation, the several financial
\ninstitutions parties thereto (the “Existing Banks”), The Chase Manhattan Bank,
\n ————–
\nas Administrative Agent, Bank of America, N.A. and Bank One, NA, as
\nDocumentation Agents, Deutsche Bank AG New York Branch, as Syndication Agent,
\nthe Managing Agents named therein and the Co-Agents named therein are parties to
\nthe $2,075,000,000 Five-Year Credit Agreement, dated as of February 20, 2001 (as
\nthe same may have been or may hereafter be amended, supplemented or otherwise
\nmodified, the “Credit Agreement”; terms defined therein being used herein as
\n —————-
\ntherein defined);<\/p>\n
WHEREAS, subsection 2.19 of the Credit Agreement provides that one or more
\nfinancial institutions (which may be Existing Banks) may be added as a “Bank” or
\n“Banks” for purposes of the Credit Agreement upon the cancellation of all or a
\nportion of the Commitments pursuant to subsection 2.13(a), (b) or (c), 2.16(c)
\nor 2.17(b) of the Credit Agreement or the expiration of all or a portion of the
\nCommitments pursuant to subsection 2.16(b) of the Credit Agreement and the
\nexecution of an agreement in substantially the form of this Agreement;<\/p>\n
WHEREAS, the Borrowers have cancelled or there have expired an aggregate
\nprincipal amount of Commitments equal to $______which have not heretofore been
\nreplaced (the “Cancelled Commitments”; the Banks that are maintaining or have
\n ———————
\nmaintained the Cancelled Commitments being collectively referred to as
\n“Cancelled Banks”); such Cancelled Commitments being on the date hereof, or on
\n —————
\nthe date of notice of cancellation hereof having been, utilized as follows:<\/p>\n
Principal Amount Period Last Day of Interest
\n ———————– ——————–<\/p>\n
I Unused Portion N\/A
\n ————–<\/p>\n
II Committed Rate Loans
\n ——————–<\/p>\n
Eurodollar Loans<\/p>\n
1
\n 2
\n 3<\/p>\n
ABR Loans N\/A<\/p>\n
III Bid Loans
\n ———<\/p>\n
L-2<\/p>\n
1
\n 2
\n 3<\/p>\n
IV Negotiated Rate Loans
\n ———————<\/p>\n
WHEREAS, the cancellation of the Cancelled Commitments is effective in
\naccordance with the Credit Agreement; and<\/p>\n
WHEREAS, [the Borrowers desire the New Bank to become, and the New Bank is
\nagreeable, to becoming, a “Bank” for purposes of the Credit Agreement] [the New
\nBank is an Existing Bank and the Borrowers desire the New Bank to increase, and
\nthe New Bank is agreeable to increasing, its Commitment]1 on the terms contained
\nherein.<\/p>\n
NOW, THEREFORE, in consideration of the premises and mutual covenants
\ncontained herein, the parties hereto agree as follows:<\/p>\n
1. Benefits of Agreement. The Borrowers, the Administrative Agent and the
\n ———————
\nNew Bank hereby [agree that on and as of the date hereof the New Bank shall be]
\n[confirm that the New Bank is] a “Bank” for all purposes and shall [continue to]
\nbe bound by and entitled to the benefits of the Credit Agreement [as if the New
\nBank had been named on the signature pages thereof], provided that the New Bank
\n ——–
\nshall not assume and shall, except as herein provided, have no obligations in
\nrespect of any Loans outstanding on the date hereof and made by any [Existing
\nBank.] [Cancelled Bank.]*<\/p>\n
2. Commitment of New Bank. The Borrowers, the Administrative Agent and the
\n ———————-
\nNew Bank hereby agree that on and as of the dates set forth below the New Bank
\nshall replace, as specified herein, _% (such percentage being referred to as the
\nNew Bank’s “Percentage”) of each utilization of the Cancelled Commitments [set
\nforth in the third recital hereof] [set forth under the caption “Committed Rate
\nLoans”] and that the aggregate Commitment of the New Bank shall on and as of the
\ndate hereof be $_____**. In connection therewith, the Borrowers, the
\nAdministrative Agent and the New Bank hereby agree as follows***:<\/p>\n
(i) for purposes of determining such New Bank’s pro rata share of each
\nCommitted Rate Loan borrowing advanced on or after the date hereof such Bank’s
\nCommitment shall be equal to $[same as above];
\n ————- <\/p>\n
(ii) the unused and available portion of such New Bank’s Commitment shall
\nbe deemed utilized by its Percentage of the Committed Rate Loans made by the
\nCancelled Banks and listed in the third recital hereof. In furtherance thereof,
\nthe unused and available portion of
\n_______________________<\/p>\n
1 * As appropriate for New or Existing Banks.
\n ** Insert amount equal to sum of New Bank’s existing Commitment, if any, plus
\n New Bank’s Percentage of Cancelled Commitments.
\n*** The following clauses (ii)-(iii) may be altered to reflect the agreements
\n among the Cancelled Bank, the New Bank and the Borrowers provided such
\n agreements do not adversely affect any Existing Bank or the Administrative
\n Agent.<\/p>\n
L-3<\/p>\n
such New Bank’s Commitment shall, on the earlier of (x) the last day of each
\nInterest Period specified for each outstanding Committed Rate Loan in the third
\nrecital hereof (and the payment in full to the Cancelled Banks of the principal
\nthereof and accrued interest thereon) and (y) the prepayment of the principal of
\nsuch Loans together with accrued interest thereon, automatically and without any
\nfurther action by any party increase by an amount equal to the New Bank’s
\nPercentage of such Loan; and<\/p>\n
(iii) [(A)] [concurrently with the execution hereof the New Bank shall
\ndisburse to each Borrower in immediately available funds such amount as shall be
\nnecessary so that the ratio which each Bank’s outstanding ABR Loans bears to all
\nof the outstanding ABR Loans equals the ratio which each Bank’s Commitment
\n(determined, for the New Bank, in accordance with clause (i) above) bears to all
\nof the Commitments (determined, for the New Bank, in accordance with the
\nimmediately foregoing parenthetical);]<\/p>\n
[(B)] [on the last day of each Interest Period for each outstanding
\nEurodollar Loan, automatically and without any further action by either
\nBorrower, the New Bank shall disburse to each Borrower in immediately available
\nfunds such amounts as shall be necessary so that the ratio which each Bank’s
\noutstanding Eurodollar Loans, bears to all of the outstanding Eurodollar Loans,
\nequals the ratio which each Bank’s Commitment (determined, for the New Bank, in
\naccordance with clause (i) hereof) bears to all of the Commitments (determined,
\nfor the New Bank, in accordance with the immediately foregoing parenthetical);]<\/p>\n
[(C)] [Funding of outstanding Bid Loans of Cancelled Banks]1<\/p>\n
[(D)] [Funding of outstanding Negotiated Rate Loans of Cancelled Banks].*<\/p>\n
3. Representation and Warranty of Borrowers. The Borrowers hereby
\n —————————————-
\nrepresent and warrant that after giving effect to the provisions of paragraph 2
\nhereof the aggregate principal amount of the Commitments of all Banks
\n(including, without limitation, the Commitment of the New Bank but excluding the
\ncancelled or expired portion of the Commitments of the Cancelled Banks) under
\nthe Credit Agreement do not exceed the aggregate principal amount of the
\nCommitments in effect immediately prior to the cancellation referred to in the
\nthird recital hereof.<\/p>\n
4. Confidentiality. The New Bank agrees to [continue to] be bound by the
\n —————
\nprovisions of subsection 10.7 of the Credit Agreement.<\/p>\n
[5. Taxes. The New Bank (i) represents to the Administrative Agent and the
\n —–
\nBorrowers that [it is incorporated under the laws of the United States or a
\nstate thereof][under applicable law and treaties no taxes will be required to be
\nwithheld by the Administrative Agent or the Borrowers with respect to any
\npayments to be made to such New Bank in respect of the Loans], (ii) represents
\nthat it has furnished to the Administrative Agent and the Borrowers (A) [a
\nstatement that it is incorporated under the laws of the United States or a state
\nthereof][a letter in duplicate in the form of Exhibit [J][K] to the Credit
\nAgreement and two duly completed copies of United States Internal Revenue
\nService Form [4224][1001][successor applicable form], <\/p>\n
___________________
\n1 To be completed upon agreement of Borrowers and New Bank.<\/p>\n
L-4<\/p>\n
certifying that such New Bank is entitled to receive payments under the Credit
\nAgreement without deduction or withholding of any United States federal income
\ntaxes], and (B) [an Internal Revenue Service Form [W-8][W-9]] [successor
\napplicable form] to establish an exemption from United States backup withholding
\ntax, and (iii) agrees to provide the Administrative Agent and the Borrowers a
\nnew Form [4224][1001] and Form [W-8][W-9], or successor applicable form or other
\nmanner of certification, on or before the date that any such letter or form
\nexpires or becomes obsolete or after the occurrence of any event requiring a
\nchange in the most recent letter and form previously delivered by it, certifying
\nin the case of a Form [1001][4224] that it is entitled to receive payments under
\nthe Credit Agreement without deduction or withholding of any United States
\nfederal income tax, and in the case of a Form [W-8][W-9] establishing exemption
\nfrom United States backup withholding tax.]1<\/p>\n
[5][6]. Miscellaneous. (a) This Agreement may be executed by the parties
\n ————-
\nhereto in separate counterparts and all of the counterparts taken together shall
\nconstitute one and the same instrument and shall be effective only upon receipt
\nby the Administrative Agent of all of the counterparts.<\/p>\n
(b) This Agreement shall be governed by, and construed and interpreted in
\naccordance with, the law of the State of New York.<\/p>\n
_____________________
\n1 Use for non-Existing Banks.<\/p>\n
L-5<\/p>\n
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
\nand delivered as of the day and year first above written.<\/p>\n
DEERE & COMPANY<\/p>\n
By: _________________________________
\n Title:<\/p>\n
JOHN DEERE CAPITAL CORPORATION<\/p>\n
By: _________________________________
\n Title:<\/p>\n
[NAME OF NEW BANK]<\/p>\n
By: _________________________________
\n Title:
\n [Address]
\n Telephone:
\n Facsimile:<\/p>\n
THE CHASE MANHATTAN BANK, as
\n Administrative Agent<\/p>\n
By: _________________________________
\n Title:<\/p>\n
EXHIBIT M
\n ———<\/p>\n
[FORM OF BID LOAN OR NEGOTIATED RATE LOAN NOTE]<\/p>\n
PROMISSORY NOTE<\/p>\n
$__________ New York, New York
\n ___________ __, 200_<\/p>\n
FOR VALUE RECEIVED, the undersigned, [DEERE & COMPANY] [JOHN DEERE CAPITAL
\nCORPORATION], a Delaware corporation (the “Borrower”), hereby promises to pay on
\n ——–
\n[insert maturity date or dates] to the order of ________________ (the “Bank”) at
\n —-
\nthe office of [The Chase Manhattan Bank located at 270 Park Avenue, New York,
\nNew York 10017 — for Bid Loan Note] [Name and address of Bank — for Negotiated
\nRate Loan Note], in lawful money of the United States of America and in
\nimmediately available funds, the principal sum of ______________DOLLARS
\n($____________). The undersigned further agrees to pay interest in like money
\nat such office on the unpaid principal amount hereof from time to time from the
\ndate hereof [at the rate of ___% per annum — for Bid Loan Note] [specify rate
\nfor Negotiated Rate Loan Note] (calculated on the basis of a year of 360 days
\nand actual days elapsed) until the due date hereof (whether at the stated
\nmaturity, by acceleration, or otherwise) and thereafter at the rates determined
\nor agreed in accordance with subsection 2.2(e) of the $2,075,000,000 Five-Year
\nCredit Agreement, dated as of February 20, 2001 (the “Credit Agreement”), among
\n —————-
\nthe Borrower, [Deere & Company] [John Deere Capital Corporation], the Bank, the
\nother financial institutions parties thereto, The Chase Manhattan Bank, as
\nAdministrative Agent, Bank of America, N.A. and Bank One, NA, as Documentation
\nAgents, Deutsche Bank AG New York Branch, as Syndication Agent, the Managing
\nAgents named therein and the Co-Agents named therein. Interest shall be payable
\non _______________. This Note may be prepaid pursuant to the provisions of
\nsubsection 2.6 of the Credit Agreement.<\/p>\n
This Note is one of the [Bid] [Negotiated Rate Loan] Notes referred to in,
\nis subject to and is entitled to the benefits of, the Credit Agreement, which
\nCredit Agreement, among other things, contains provisions for acceleration of
\nthe maturity hereof upon the occurrence of any one or more of the Events of
\nDefault specified in the Credit Agreement.<\/p>\n
Terms defined in the Credit Agreement are used herein with their defined
\nmeanings unless otherwise defined herein. This Note shall be governed by, and
\nconstrued and interpreted in accordance with, the law of the State of New York.<\/p>\n
[DEERE & COMPANY]
\n [JOHN DEERE CAPITAL CORPORATION]<\/p>\n
By: _________________________________
\n Title:<\/p>\n
EXHIBIT N
\n ———<\/p>\n
FORM OF
\n NEW BANK SUPPLEMENT<\/p>\n
SUPPLEMENT, dated _______ __, to the $2,075,000,000 Five-Year Credit
\nAgreement (as in effect on the date hereof, the “Credit Agreement”) dated as of
\nFebruary 20, 2001, among Deere & Company (the “Company”), John Deere Capital
\nCorporation, the banks and other financial institutions from time to time party
\nthereto (each a “Bank,” and together, the “Banks”), The Chase Manhattan Bank, as
\nAdministrative Agent (in such capacity, the “Administrative Agent”) for the
\nBanks, Bank of America, N.A. and Bank One, NA, as Documentation Agents, Deutsche
\nBank AG New York Branch, as Syndication Agent, the Managing Agents named therein
\nand the Co-Agents named therein. Unless the context otherwise requires, all
\ncapitalized terms used herein without definition shall have the meanings
\nascribed to them in the Credit Agreement.<\/p>\n
W I T N E S S E T H:
\n – – – – – – – – – – <\/p>\n
WHEREAS, the Credit Agreement provides in subsection 2.20 thereof that any
\nbank or financial institution, although not originally a party thereto, may
\nbecome a party to the Credit Agreement in accordance with the terms thereof by
\nexecuting and delivering to the Borrowers and the Administrative Agent a
\nsupplement to the Credit Agreement in substantially the form of this Supplement;
\nand<\/p>\n
WHEREAS, the undersigned was not an original party to the Credit Agreement
\nbut now desires to become a party thereto;<\/p>\n
NOW, THEREFORE, the undersigned hereby agrees as follows:<\/p>\n
The undersigned agrees to be bound by the provisions of the Credit
\nAgreement and agrees that it shall, on the date this Supplement is accepted by
\nthe Borrowers and the Administrative Agent, become a Bank for all purposes of
\nthe Credit Agreement to the same extent as if originally a party thereto, with a
\nCommitment of $__________________.<\/p>\n
The undersigned (a) represents and warrants that it is legally authorized
\nto enter into this Supplement; (b) confirms that it has received a copy of the
\nCredit Agreement, together with copies of the financial statements delivered
\npursuant to Section 5.1 thereof and such other documents and information as it
\nhas deemed appropriate to make its own credit analysis and decision to enter
\ninto this Supplement; (c) agrees that it has made and will, independently and
\nwithout reliance upon any Agent, Managing Agent or Co-Agent or any other Bank
\nand based on such documents and information as it shall deem appropriate at the
\ntime, continue to make its own credit decisions in taking or not taking action
\nunder the Credit Agreement or any instrument or document furnished pursuant
\nhereto or thereto; (d) appoints and authorizes the Administrative Agent to take
\nsuch action as administrative agent on its behalf and to exercise such powers
\nand discretion under the Credit Agreement or any instrument or document
\nfurnished pursuant hereto or thereto as are delegated to the Administrative
\nAgent by the terms thereof, together with such powers as are incidental thereto;
\nand (e) agrees that it will be bound by the provisions of the Credit Agreement
\nand will perform in accordance with its terms all the obligations which by the<\/p>\n
N-2<\/p>\n
terms of the Credit Agreement are required to be performed by it as a Bank
\nincluding, without limitation, its obligation pursuant to subsection 2.17(c) of
\nthe Credit Agreement.<\/p>\n
The undersigned’s address for notices for the purposes of the Credit
\nAgreement is as follows:<\/p>\n
_________________________<\/p>\n
Attention:_______________<\/p>\n
_________________________<\/p>\n
_________________________<\/p>\n
Fax:_____________________<\/p>\n
N-3<\/p>\n
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
\nexecuted and delivered by a duly authorized officer on the date first above
\nwritten.<\/p>\n
[NAME OF NEW BANK]<\/p>\n
By: _________________________________
\n Title:<\/p>\n
Accepted this _____ day of
\n______________, 200_<\/p>\n
DEERE & COMPANY<\/p>\n
By: _________________________________
\n Title:<\/p>\n
JOHN DEERE CAPITAL CORPORATION<\/p>\n
By: _________________________________
\n Title:<\/p>\n
Accepted this _____ day of
\n______________, 200_<\/p>\n
THE CHASE MANHATTAN BANK,
\n as Administrative Agent<\/p>\n
By: _________________________________
\n Title:<\/p>\n
EXHIBIT O
\n ———<\/p>\n
FORM OF
\n COMMITMENT INCREASE SUPPLEMENT<\/p>\n
SUPPLEMENT, dated _______ 200_, to the $2,075,000,000 Five-Year Credit
\nAgreement (as in effect on the date hereof, the “Credit Agreement”) dated as of
\nFebruary 20, 2001, among Deere & Company (the “Company”), John Deere Capital
\nCorporation, the banks and other financial institutions from time to time party
\nthereto (each a “Bank,” and together, the “Banks”), The Chase Manhattan Bank, as
\nAdministrative Agent (in such capacity, the “Administrative Agent”), Bank of
\nAmerica, N.A. and Bank One, NA, as Documentation Agents, Deutsche Bank AG New
\nYork Branch, as Syndication Agent, the Managing Agents named therein and the Co-
\nAgents named therein. Unless the context otherwise requires, all capitalized
\nterms used herein without definition shall have the meanings ascribed to them in
\nthe Credit Agreement.<\/p>\n
W I T N E S S E T H:
\n – – – – – – – – – – <\/p>\n
WHEREAS, pursuant to the provisions of subsection 2.20 of the Credit
\nAgreement, the undersigned may increase the amount of its Commitment in
\naccordance with the terms thereof by executing and delivering to the Borrowers
\nand the Administrative Agent a supplement to the Credit Agreement in
\nsubstantially the form of this Supplement; and<\/p>\n
WHEREAS, the undersigned now desires to increase the amount of its
\nCommitment under the Credit Agreement;<\/p>\n
NOW THEREFORE, the undersigned hereby agrees as follows:<\/p>\n
1. The undersigned agrees, subject to the terms and conditions of the
\nCredit Agreement, that on the date this Supplement is accepted by the Borrowers
\nand the Administrative Agent it shall have its Commitment increased by
\n$______________, thereby making the amount of its Commitment $______________.<\/p>\n
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
\nexecuted and delivered by a duly authorized officer on the date first above
\nwritten.<\/p>\n
[NAME OF BANK]<\/p>\n
By: _________________________________
\n Title:<\/p>\n
Accepted this _____ day of
\n______________, 200_<\/p>\n
DEERE & COMPANY<\/p>\n
By: _________________________________
\n Title:<\/p>\n
JOHN DEERE CAPITAL CORPORATION<\/p>\n
By: _________________________________
\n Title:<\/p>\n
Accepted this _____ day of
\n______________, 200_<\/p>\n
THE CHASE MANHATTAN BANK,
\n as Administrative Agent<\/p>\n
By: _________________________________
\n Title:<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6846,6850,7282],"corporate_contracts_industries":[9415,9454],"corporate_contracts_types":[9561,9560],"class_list":["post-41024","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-bank-one-corp","corporate_contracts_companies-deere---co","corporate_contracts_industries-financial__banks","corporate_contracts_industries-manufacturing__industrial","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41024","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41024"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41024"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41024"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41024"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}