UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(Mark one)
☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended October 31, 2021
or
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ____ to ____
Commission file number 1-6458
JOHN DEERE CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware |
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36-2386361 |
(State of incorporation) |
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(IRS Employer Identification No.) |
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10587 Double R Boulevard, Suite 100 Reno, Nevada |
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89521 |
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(775) 786-5527 |
(Address of principal executive offices) |
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(Zip Code) |
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(Telephone number) |
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
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Title of each class |
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Trading symbol |
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Name of each exchange on which registered |
2.75% Senior Notes Due 2022 |
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JDCC/22 |
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New York Stock Exchange |
2.00% Senior Notes Due 2031 |
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JDCC 31 |
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New York Stock Exchange |
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: NONE
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
Yes ☒ No ☐
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.
Yes ☐ No ☒
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer ☐ |
Accelerated filer ☐ |
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Non-accelerated filer ☒ |
Smaller reporting company ☐ |
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Emerging growth company ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ☐ No ☒
At November 28, 2021, 2,500 shares of common stock, without par value, of the registrant were outstanding, all of which were owned by John Deere Financial Services, Inc.
The registrant meets the conditions set forth in General Instruction I(1)(a) and (b) of Form 10-K and is therefore filing this Annual Report on Form 10-K with certain reduced disclosures as permitted by Instruction I(2).
Table of Contents
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Page |
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2 |
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13 |
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22 |
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22 |
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22 |
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22 |
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22 |
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22 |
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Management’s Discussion and Analysis of Financial Condition and Results of Operations |
23 |
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32 |
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33 |
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Changes in and Disagreements with Accountants on Accounting and Financial Disclosure |
33 |
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33 |
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33 |
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Disclosure Regarding Foreign Jurisdictions That Prevent Inspections |
33 |
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34 |
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34 |
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Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
34 |
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Certain Relationships and Related Transactions, and Director Independence |
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34 |
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35 |
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35 |
1
PART I
Item 1. Business.
This Annual Report on Form 10-K contains forward-looking statements that are subject to risks and uncertainties. All statements other than statements of historical fact included in this Annual Report on Form 10-K are forward-looking statements. Forward-looking statements provide our current expectations and projections relating to our financial condition, results of operations, plans, objectives, future performance, and business. All forward-looking statements are subject to risks and uncertainties that may cause actual results to differ materially from those that we expected. Important factors that could cause actual results to differ materially from our expectations, or cautionary statements, and other important information about forward-looking statements are disclosed under Item 1A, “Risk Factors” and Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations–Safe Harbor Statement” in this Annual Report on Form 10-K.
The Company
John Deere Capital Corporation (Capital Corporation) and its subsidiaries are collectively called the Company. John Deere Financial Services, Inc. (JDFS), a wholly-owned finance holding subsidiary of Deere & Company, owns all of the outstanding common stock of Capital Corporation. See “Relationships of the Company with John Deere” for additional information regarding agreements between the Company and Deere & Company. The Company conducts business in Australia, New Zealand, the United States (U.S.), and in several countries in Africa, Asia, Europe, and Latin America, including Argentina and Mexico. Capital Corporation was incorporated under the laws of Delaware and commenced operations in 1958.
The Company provides and administers financing for retail purchases of new equipment manufactured by Deere & Company’s production and precision agriculture operations, small agriculture and turf operations, and construction and forestry operations and used equipment taken in trade for this equipment. References to “agriculture and turf” include both production and precision agriculture and small agriculture and turf. The Company generally purchases retail installment sales and loan contracts (retail notes) from Deere & Company and its wholly-owned subsidiaries (collectively called John Deere). John Deere generally acquires these retail notes through John Deere retail dealers. The Company also purchases and finances a limited amount of non-John Deere retail notes. The Company also finances and services revolving charge accounts, in most cases acquired from and offered through merchants in the agriculture and turf and construction and forestry markets (revolving charge accounts). Additionally, the Company provides wholesale financing to dealers of John Deere agriculture and turf equipment and construction and forestry equipment (wholesale receivables), primarily to finance inventories of equipment for those dealers. In addition, the Company leases John Deere equipment and a limited amount of non-John Deere equipment to retail customers (financing and operating leases). The Company also offers credit enhanced international export financing to select customers and dealers, which primarily involves John Deere products. Retail notes, revolving charge accounts, and financing leases are collectively called “Customer Receivables.” Customer Receivables and wholesale receivables are collectively called “Receivables.” Receivables and equipment on operating leases are collectively called “Receivables and Leases.”
John Deere’s internet address is http://www.deere.com. The information contained on John Deere’s website is not included in, nor incorporated by reference into, this Annual Report on Form 10-K.
Business of John Deere
In fiscal year 2021, John Deere implemented a new operating model and reporting structure. With this change, John Deere’s agriculture and turf operations were divided into two new segments: production and precision agriculture and small agriculture and turf. There were no reporting changes for the construction and forestry and financial services segments. As a result, John Deere’s operations are now categorized into four major business segments:
The production and precision agriculture segment defines, develops, and delivers global equipment and technology solutions to unlock customer value for production-scale growers of large grains, small grains, cotton, and sugar.
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The segment’s main products include large and certain mid-size tractors, combines, cotton pickers, sugarcane harvesters and loaders, and soil preparation, seeding, application, and crop care equipment.
The small agriculture and turf segment defines, develops, and delivers global equipment and technology solutions to unlock customer value for dairy and livestock producers, high-value crop producers, and turf and utility customers. The segment’s primary products include certain mid-size and small tractors, as well as hay and forage equipment, riding and commercial lawn equipment, golf course equipment, and utility vehicles.
The construction and forestry segment defines, develops, and delivers a broad range of machines and technology solutions organized along the earthmoving, forestry, and roadbuilding production systems. The segment’s primary products include crawler dozers and loaders, four-wheel-drive loaders, excavators, skid-steer loaders, milling machines, and log harvesters.
The products and services produced by the segments above are marketed primarily through independent retail dealer networks and major retail outlets, and, as it relates to roadbuilding products in certain markets outside the U.S. and Canada, primarily through John Deere-owned sales and service subsidiaries.
The financial services segment includes the operations of the Company (described herein), and additional operations in the U.S., Canada, Brazil, China, India, Russia, and Thailand. The segment primarily finances sales and leases by John Deere dealers of new and used production and precision agriculture, small agriculture and turf, and construction and forestry equipment. In addition, the financial services segment provides wholesale financing to dealers of the foregoing equipment, finances retail revolving charge accounts, and offers extended equipment warranties.
John Deere’s worldwide production and precision agriculture operations, small agriculture and turf operations, and construction and forestry operations are sometimes collectively referred to as the “equipment operations.” The financial services segment is sometimes referred to as the “financial services operations.” While the implementation of John Deere’s new operating model in fiscal year 2021 resulted in new operating segments for John Deere, Receivables and Leases managed by the Company continue to be evaluated by market (agriculture and turf or construction and forestry).
For fiscal 2021, worldwide net income attributable to Deere & Company was $5.963 billion, or $18.99 per share, compared with $2.751 billion, or $8.69 per share, in fiscal 2020.
Deere and Company’s consolidated net sales and revenues increased 24 percent to $44.024 billion in 2021, compared with $35.540 billion in 2020. Net sales of the equipment operations increased in fiscal 2021 to $39.737 billion, compared with $31.272 billion last year.
Production and precision agriculture, small agriculture and turf, and construction and forestry sales increased during 2021 due to higher shipment volumes and price realization.
The financial services operations reported net income of $881 million for fiscal 2021 compared with $566 million in fiscal 2020. The increase was mainly due to improvements on operating lease residual values, a lower provision for credit losses, more favorable financing spreads, and income earned on a higher average portfolio.
Market Conditions
Agriculture and Turf. Industry sales of large agricultural machinery in the U.S. and Canada are forecasted to increase approximately 15 percent compared to 2021. Industry sales of small agricultural and turf equipment in the U.S. and Canada are expected to be flat in 2022. Industry sales of agricultural machinery in Europe are forecasted to be about 5 percent higher, while South American industry sales of tractors and combines are forecasted to be roughly 5 percent higher in 2022. Asia industry sales are forecasted to be nearly the same in 2022 as in 2021.
Construction and Forestry. On an industry basis, North American construction equipment and compact construction equipment sales are both expected to be 5 to 10 percent higher in 2022. Global forestry industry sales are projected to increase 10 to 15 percent.
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Financial Services, including the Company. Results for the full-year fiscal 2022 are expected to be slightly lower due to a higher provision for credit losses, lower gains on operating lease residual values, and higher selling, general, and administrative expenses. These factors are expected to be partially offset by income earned on a higher average portfolio.
Relationships of the Company with John Deere
The results of operations of the Company are affected by its relationships with John Deere, including, among other items, the terms on which the Company acquires Receivables and Leases and borrows funds from John Deere, the reimbursement for interest waiver and low-rate finance programs from John Deere, the compensation paid by John Deere in connection with the Company’s purchase of trade receivables from John Deere, and the payment to John Deere for various expenses applicable to the Company’s operations. In addition, John Deere and the Company have joint access to certain lines of credit.
The Company’s acquisition volume of Receivables and Leases is largely dependent upon the level of retail sales and leases of John Deere products. The level of John Deere retail sales and leases is responsive to a variety of economic, financial, climatic, legislative, and other factors that influence demand for its products. The majority of the Company’s businesses are affected by changes in interest rates, demand for credit, and competition.
The Company bears substantially all of the credit risk (net of recovery from withholdings from certain John Deere dealers and merchants) associated with its holding of Receivables and Leases. A small portion of the Receivables and Leases held (less than 5 percent) is guaranteed by certain subsidiaries of Deere & Company. The Company also performs substantially all servicing and collection functions. Servicing and collection functions for a small portion of the Receivables and Leases held (less than 5 percent) are provided by John Deere. John Deere is reimbursed for staff and other administrative services at estimated cost and for credit lines provided to the Company based on utilization of those lines.
The terms and the basis on which the Company acquires retail notes and certain wholesale receivables from John Deere are governed by agreements with John Deere, generally terminable by either John Deere or the Company on 30 days notice. As provided in these agreements, the Company agrees to the terms and conditions for purchasing the retail notes and wholesale receivables from John Deere. Under these agreements, John Deere is not obligated to sell notes to the Company, and the Company is obligated to purchase notes from John Deere only if the notes comply with the terms and conditions set by the Company.
The basis on which John Deere acquires retail notes and wholesale receivables from John Deere dealers is governed by agreements with those dealers, which may be terminated in accordance with their terms and applicable law. In acquiring these notes from dealers, the terms and conditions, as set forth in agreements with the dealers, conform with the terms and conditions adopted by the Company in determining the acceptability of retail and certain wholesale notes to be purchased from John Deere. The dealers are not obligated to sell these notes to John Deere and John Deere is not obligated to accept these notes from the dealers. In practice, retail and wholesale notes are acquired from dealers only if the terms of these notes and the creditworthiness of the customers are acceptable to the Company. The Company acts on behalf of both itself and John Deere in determining the acceptability of the notes and in acquiring acceptable notes from dealers.
The basis on which the Company enters into leases with retail customers through John Deere dealers is governed by agreements between dealers and the Company. Leases are accepted based on the terms and conditions, the lessees’ creditworthiness, the anticipated residual values of the equipment, and the intended use of the equipment.
Deere & Company has an agreement with Capital Corporation pursuant to which it has agreed to continue to own, directly or through one or more wholly-owned subsidiaries, at least 51 percent of the voting shares of capital stock of Capital Corporation and to maintain the Company’s consolidated tangible net worth at not less than $50.0 million. This agreement also obligates Deere & Company to make payments to Capital Corporation such that its consolidated ratio of earnings to fixed charges is not less than 1.05 to 1 for each fiscal quarter. Deere & Company’s obligations to make payments to Capital Corporation under the agreement are independent of whether the Company is in default on its indebtedness, obligations, or other liabilities. Further, Deere & Company’s obligations under the agreement are not measured by the amount of the Company’s indebtedness, obligations, or other liabilities. Deere & Company’s obligations to make payments under this agreement are expressly stated not to be a guaranty of any specific indebtedness, obligation, or liability of the Company and are enforceable only by or in the name of Capital Corporation. No payments were required
4
under this agreement during the periods included in the consolidated financial statements. At October 31, 2021, Deere & Company indirectly owned 100 percent of the voting shares of Capital Corporation’s capital stock and Capital Corporation’s consolidated tangible net worth was $4,524.4 million.
The Company purchases certain wholesale trade receivables from John Deere. These trade receivables arise from John Deere’s sales of goods to independent dealers. Under the terms of the sales to dealers, interest is primarily charged to dealers on outstanding balances, from the earlier of the date when goods are sold to retail customers by the dealer or the expiration of certain interest-free periods granted at the time of the sale to the dealer, until payment is received by the Company. Dealers cannot cancel purchases after John Deere recognizes a sale and are responsible for payment even if the equipment is not sold to retail customers. The interest-free periods are determined based on the type of equipment sold and the time of year of the sale. These periods range from one to twelve months for most equipment. Interest-free periods may not be extended. Interest charged may not be forgiven and the past due interest rates exceed market rates. The Company receives compensation from John Deere at approximate market interest rates for these interest-free periods. The Company computes the compensation from John Deere for interest-free periods based on the Company’s estimated funding costs, administrative and operating expenses, credit losses, and required return on equity.
Description of Receivables and Leases
Receivables and Leases arise mainly from retail and wholesale sales and leases of John Deere products and used equipment accepted in trade for them, and from retail sales of equipment of unrelated manufacturers. Receivables and Leases also include revolving charge accounts receivable. At October 31, 2021 and November 1, 2020, at least 90 percent of the Receivables and Leases administered by the Company were for financing that facilitated the purchase or lease of John Deere products.
John Deere Financial, f.s.b. (Thrift) is a wholly-owned subsidiary of Capital Corporation. It holds a federal thrift charter and is regulated by the Office of the Comptroller of the Currency (OCC). The U.S. Federal Reserve Board has oversight of the Company, as the owner of the Thrift. The Thrift is headquartered in Madison, Wisconsin and offers revolving charge products including John Deere Financial Multi-Use Account, PowerPlanâ, and John Deere Financial Revolving Plan throughout the U.S. The John Deere Financial Multi-Use Account is used by farmers and ranchers to finance their purchases of production inputs from agribusiness merchants, including seed, fertilizer, and crop protection. The John Deere Financial Multi-Use Account is also used by agriculture and turf customers to finance the purchase of parts and service from John Deere dealers. PowerPlanâ is primarily used by construction and forestry customers to finance the purchase of equipment parts, equipment rentals, and service work performed at John Deere construction and forestry dealers. The John Deere Financial Revolving Plan is used primarily by retail customers of John Deere dealers to finance purchases of turf and utility equipment. See Note 4 to the Consolidated Financial Statements under “Revolving Charge Accounts Receivable.”
The Company provides wholesale financing to John Deere dealers, primarily to finance agriculture and turf and construction and forestry equipment inventories. A large portion of the wholesale financing is provided by the Company to dealers from whom it also purchases agriculture and turf and construction and forestry retail notes. See Note 4 to the Consolidated Financial Statements under “Wholesale Receivables.”
The Company generally requires that theft and physical damage insurance be carried on all goods leased or securing retail notes and wholesale receivables. In certain markets, the customer may, at the customer’s own expense, have the Company or the seller of the goods purchase this insurance or obtain it from other sources. Insurance is not required for goods purchased under revolving charge accounts.
Receivables and Leases are eligible for acceptance if they conform to prescribed finance and lease plan terms. Guidelines relating to down payments and contract terms on retail notes and leases are described in Note 4 and Note 7 to the Consolidated Financial Statements.
In limited circumstances, Receivables and Leases may be accepted and acquired even though they do not conform in all respects to the established guidelines. The Company determines whether Receivables and Leases should be accepted and how they should be serviced. Acceptance of these Receivables and Leases is dependent on having one or more risk mitigation enhancements that may include the pledge of additional collateral as security, the assignment of specific earnings to the Company, or the acceptance of accelerated payment schedules. Officers of the Company are responsible
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for establishing policies and reviewing the performance of the Company in accepting and collecting Receivables and Leases. The Company performs substantially all of its own routine collections, settlements, and repossessions on Receivables and Leases.
John Deere retail notes and wholesale receivables are generally supported by perfected security interests in goods financed under laws such as the Uniform Commercial Code (UCC), certain federal statutes, and state motor vehicle laws in the U.S. and by security in goods or other security under applicable laws in other countries and jurisdictions. UCC financing statements are also prepared and filed on leases; however, these filings for operating leases are made for informational purposes only.
Finance Rates on Retail Notes
As of October 31, 2021 and November 1, 2020, over 95 percent of the retail notes held by the Company bore a fixed finance rate. A portion of the finance income earned by the Company arises from reimbursements from John Deere in connection with financing the retail sales of John Deere equipment on which finance charges are waived or reduced by John Deere for a period from the date of sale to a specified subsequent date. See Note 4 to the Consolidated Financial Statements for additional information.
Average Original Term and Average Actual Life of Retail Notes and Leases
Due to prepayments (often from trade-ins and refinancing), the average actual life of retail notes and leases is considerably shorter than the average original term. The following table shows the average original term for retail notes and leases acquired during the year and the average actual life for retail notes and leases liquidated during the year (in months):
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Average Original Term |
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Average Actual Life |
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2021 |
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2020 |
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2021 |
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2020 |
Retail notes: |
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57 |
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57 |
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36 |
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38 |
New equipment: |
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Agriculture and turf |
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58 |
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58 |
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34 |
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36 |
Construction and forestry |
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50 |
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49 |
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34 |
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37 |
Used equipment: |
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Agriculture and turf |
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61 |
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60 |
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39 |
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42 |
Construction and forestry |
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50 |
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49 |
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30 |
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31 |
Financing leases |
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32 |
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35 |
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30 |
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31 |
Equipment on operating leases |
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46 |
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43 |
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35 |
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35 |
Maturities
The following table presents the contractual maturities of Receivables and Leases owned by the Company at October 31, 2021 (in millions of dollars), and a summary of Receivables and Leases owned by the Company at the end of the last five years (in millions of dollars):
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One year |
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or less |
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One to five years |
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Over five years |
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Total |
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Fixed |
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Variable |
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Fixed |
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Variable |
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rate |
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rate |
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rate |
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rate |
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2021 |
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2020 |
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2019 |
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2018 |
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2017 |
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Retail notes: |
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Agriculture and turf |
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$ |
6,374.5 |
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$ |
14,216.5 |
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$ |
315.6 |
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$ |
609.7 |
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$ |
2.6 |
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$ |
21,518.9 |
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$ |
18,031.0 |
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$ |
16,185.9 |
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$ |
15,179.2 |
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$ |
14,642.9 |
Construction and forestry |
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1,750.1 |
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2,727.0 |
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1.0 |
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8.9 |
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4,487.0 |
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3,816.2 |
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3,314.2 |
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2,931.7 |
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2,571.7 |
Total retail notes |
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$ |
8,124.6 |
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$ |
16,943.5 |
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$ |
316.6 |
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$ |
618.6 |
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$ |
2.6 |
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26,005.9 |
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21,847.2 |
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19,500.1 |
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18,110.9 |
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17,214.6 |
Revolving charge accounts |
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3,740.1 |
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3,827.4 |
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3,863.0 |
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3,797.6 |
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3,572.6 |
Wholesale receivables |
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5,951.3 |
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7,093.3 |
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8,706.8 |
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7,967.6 |
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6,894.3 |
Financing leases |
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972.3 |
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789.4 |
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751.6 |
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770.6 |
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714.2 |
Equipment on operating leases |
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4,947.6 |
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5,297.8 |
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5,530.5 |
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5,102.5 |
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4,718.3 |
Total Receivables and Leases |
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$ |
41,617.2 |
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$ |
38,855.1 |
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$ |
38,352.0 |
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$ |
35,749.2 |
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$ |
33,114.0 |
6
Total Receivables and Leases by geographic area are as follows (in millions of dollars):
Receivables and Leases have significant concentrations of credit risk in the agriculture and turf and construction and forestry markets.
Delinquencies
Past due balances of Receivables still accruing finance income, which represent the total balance held (principal plus accrued interest) with any payment amounts 30 days or more past the contractual payment due date, are as follows (in millions of dollars):
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2021 |
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2020 |
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2019 |
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2018 |
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2017 |
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U.S. |
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$ |
294.7 |
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$ |
243.5 |
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$ |
285.2 |
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$ |
424.6 |
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$ |
373.5 |
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Outside the U.S. |
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46.1 |
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68.4 |
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67.6 |
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58.6 |
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28.5 |
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Total |
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$ |
340.8 |
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$ |
311.9 |
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$ |
352.8 |
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$ |
483.2 |
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$ |
402.0 |
|
Total non-performing Receivables, which represent Receivables for which the Company has ceased accruing finance income, are as follows (in millions of dollars):
Due to the economic effects of the COVID-19 pandemic (COVID), the Company provided short-term payment relief to dealers and retail customers during 2020, and to a much lesser extent in 2021. The delinquency status of Receivables granted relief due to COVID is based on the modified payment schedule (see Note 5). During the first quarter of 2019, the Company amended the timing in which finance income and lease revenue is generally suspended on retail notes, revolving charge accounts, and finance lease accounts from 120 days delinquent to 90 days delinquent. This change in estimate was made on a prospective basis and did not have a significant effect on the Company’s consolidated financial statements. Management’s methodology to determine the collectability of delinquent accounts was not affected by the change.
7
Write-offs and Recoveries
Total write-offs and recoveries, by product, were as follows (in millions of dollars):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
|
2019 |
|
2018 |
|
2017 |
|
|||||
Allowance for credit losses, beginning of year |
|
$ |
129.1 |
|
$ |
100.6 |
|
$ |
106.7 |
|
$ |
113.8 |
|
$ |
111.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ASU No. 2016-13 adoption (see Note 3) |
|
|
19.7 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision (credit) for credit losses * |
|
|
(2.7) |
|
|
89.4 |
|
|
45.4 |
|
|
47.2 |
|
|
70.3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Write-offs: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Retail notes and financing leases: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Agriculture and turf |
|
|
(18.6) |
|
|
(15.2) |
|
|
(9.9) |
|
|
(9.8) |
|
|
(21.9) |
|
Construction and forestry |
|
|
(18.1) |
|
|
(33.9) |
|
|
(21.2) |
|
|
(16.2) |
|
|
(22.0) |
|
Total retail notes and financing leases |
|
|
(36.7) |
|
|
(49.1) |
|
|
(31.1) |
|
|
(26.0) |
|
|
(43.9) |
|
Revolving charge accounts |
|
|
(27.8) |
|
|
(51.6) |
|
|
(56.9) |
|
|
(54.1) |
|
|
(52.2) |
|
Wholesale receivables |
|
|
(.3) |
|
|
(.9) |
|
|
(.3) |
|
|
(1.1) |
|
|
(.2) |
|
Total write-offs |
|
|
(64.8) |
|
|
(101.6) |
|
|
(88.3) |
|
|
(81.2) |
|
|
(96.3) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Recoveries: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Retail notes and financing leases: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Agriculture and turf |
|
|
9.2 |
|
|
4.6 |
|
|
6.1 |
|
|
5.0 |
|
|
6.1 |
|
Construction and forestry |
|
|
2.4 |
|
|
1.8 |
|
|
1.5 |
|
|
2.2 |
|
|
2.0 |
|
Total retail notes and financing leases |
|
|
11.6 |
|
|
6.4 |
|
|
7.6 |
|
|
7.2 |
|
|
8.1 |
|
Revolving charge accounts |
|
|
35.5 |
|
|
29.5 |
|
|
25.3 |
|
|
20.0 |
|
|
19.9 |
|
Wholesale receivables |
|
|
|
|
|
1.3 |
|
|
4.1 |
|
|
.2 |
|
|
|
|
Total recoveries |
|
|
47.1 |
|
|
37.2 |
|
|
37.0 |
|
|
27.4 |
|
|
28.0 |
|
Total net write-offs |
|
|
(17.7) |
|
|
(64.4) |
|
|
(51.3) |
|
|
(53.8) |
|
|
(68.3) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Translation adjustments |
|
|
.6 |
|
|
3.5 |
|
|
(.2) |
|
|
(.5) |
|
|
.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allowance for credit losses, end of year |
|
$ |
129.0 |
|
$ |
129.1 |
|
$ |
100.6 |
|
$ |
106.7 |
|
$ |
113.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net write-offs as a percentage of average Receivables |
|
|
.05 |
% |
|
.20 |
% |
|
.16 |
% |
|
.18 |
% |
|
.25 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allowance as a percentage of total Receivables, end of year |
|
|
.35 |
% |
|
.38 |
% |
|
.31 |
% |
|
.35 |
% |
|
.40 |
% |
* Excludes provision for credit losses on unfunded commitments of $1.8 million for 2021.
8
Total write-offs and recoveries from outside the U.S. were as follows (in millions of dollars):
* Excludes provision for credit losses on unfunded commitments of $.1 million for 2021.
Allowance for Credit Losses
The allowance for credit losses is an estimate of the credit losses expected over the life of the Receivable portfolio. The allowance is measured on a collective basis when similar risk characteristics exist. Risk characteristics considered by the Company include product category, market, geography, credit risk, and remaining duration. Receivables that do not share risk characteristics with other receivables in the portfolio are evaluated on an individual basis. The Company utilizes loss forecast models, which are selected based on the size and credit risk of the underlying pool of receivables, to estimate expected credit losses. Transition matrix models are used for large and complex Customer Receivable pools, while weighted average remaining maturity models are used for smaller and less complex Customer Receivable pools. Expected credit losses on wholesale receivables are based on historical loss rates, with consideration of current economic conditions and dealer financial risk. The modeled expected credit losses are adjusted based on reasonable and supportable forecasts, which may include economic indicators such as commodity prices, industry equipment sales, unemployment rates, and housing starts. Management reviews each model’s output quarterly, and qualitative adjustments are incorporated as necessary. Receivables are written off to the allowance when the account is considered uncollectible. See Note 5 to the Consolidated Financial Statements for further information.
9
The total allowance for credit losses, by product, at October 31, 2021, November 1, 2020, November 3, 2019, October 28, 2018, and October 29, 2017 (in millions of dollars), and the portfolio, by product, as a percent of total portfolio are presented below:
As a result of the adoption of ASU No. 2016-13, the allowance for credit losses increased $19.7 million at the beginning of 2021. Subsequent to the adoption of ASU No. 2016-13, the allowance decreased $19.8 million, primarily due to a reduction in the allowance on construction and forestry retail notes and financing leases and a lower allowance on revolving charge accounts. The allowance on construction and forestry retail notes and financing leases decreased due to improving market conditions and better than expected performance of accounts granted payment relief due to the economic effects of COVID, while the allowance on revolving charge accounts was favorably impacted by strong payment performance due to continued improvements in the agriculture and turf market. These decreases were partially offset by growth in the retail notes and financing leases portfolio. See Note 5 to the Consolidated Financial Statements for additional information.
The total allowance for credit losses, by geographic area, at October 31, 2021, November 1, 2020, November 3, 2019, October 28, 2018, and October 29, 2017 (in millions of dollars), and the portfolio, by geographic area, as a percent of total portfolio, are presented below:
Competition
The businesses in which the Company is engaged are highly competitive. The Company primarily competes for customers with commercial banks and finance and leasing companies based upon its service, finance rates charged, and other finance terms. In addition, the competitive landscape is evolving as technology is unlocking new capabilities for traditional competitors and enabling new digital entrants that could be either technology partners or potential competitors. The proportion of John Deere equipment retail sales and leases financed by the Company is influenced by conditions prevailing in the agriculture and turf equipment and construction and forestry equipment industries, in the financial markets, and in business generally. The Company financed a significant portion of John Deere equipment retail sales and leases in many of the countries in which the Company operated during 2021 and 2020.
The Company emphasizes convenient service to customers and endeavors to offer terms desired in its specialized markets, such as seasonal schedules of repayment and rentals. The Company’s retail finance rates and lease rates are generally believed to be in the range offered by other sales finance and leasing companies, although not as low as those of some banks and other lenders and lessors.
Regulation
In several U.S. states, state law limits the maximum finance rate on receivables. The present state limitations have not, thus far, significantly limited variable-rate finance charges or the fixed-rate finance charges established by the
10
Company. However, if interest rate levels should increase significantly, maximum state rates could affect the Company by preventing the variable rates on outstanding variable-rate retail notes from increasing above the maximum state rate and by limiting the fixed rates on new notes. In some states, the Company may be able to qualify new retail notes for a higher maximum rate limit by using retail installment sales contracts (rather than loan contracts) or by using fixed-rate rather than variable-rate contracts.
In addition to rate regulation, various U.S. state and federal laws and regulations apply to some Receivables and Leases, principally retail notes for goods sold for personal, family, or household use and John Deere Financial Revolving Plan, John Deere Financial Multi-Use Account, and PowerPlanâ accounts receivable. To date, these laws and regulations have not had a significant adverse effect on the Company.
The Thrift holds a federal thrift charter and is subject to regulation and examination by the OCC. The U.S. Federal Reserve Board has oversight of the Company, as the owner of the Thrift.
The manner in which the Company offers financing outside the U.S. is affected by a variety of country specific laws, regulations, and customs, including those governing property rights and debtor obligations, that are subject to change and that may introduce greater risk to the Company.
In fiscal year 2021, compliance with the regulations applicable to the Company did not have a material effect on capital expenditures, earnings, or competitive position. The Company does not expect to incur material capital expenditures related to compliance with regulations during fiscal year 2022. Additional information about the impact of government regulations on the Company's business is included in Item 1A, “Risk Factors” under the headings Geopolitical Uncertainties; Data Security and Privacy Risks; Environmental, Climate and Weather Risks; and Legal and Regulatory Risks.
Human Capital
Higher Purpose
As a wholly-owned subsidiary of Deere & Company, the Company’s employees, its human capital, are guided by John Deere’s higher purpose: We run so life can leap forward. Employees are further guided by John Deere’s code of business conduct (Code), which helps them to uphold and strengthen the standards of honor and integrity that have defined John Deere since its founding. Our world and business may change, but our core values—integrity, quality, commitment and innovation—are a constant in everything we do. Our values have shaped and guided John Deere’s vision since 1837.
Employees
At October 31, 2021, the Company had 1,470 full-time and part-time employees. The Company also retains consultants, independent contractors, and temporary workers.
Code of Business Conduct
John Deere and the Company are committed to conducting business in accordance with the highest ethical standards. This means how we conduct ourselves and our global work is more than just a matter of policy and law; it's a reflection of our core values. The Code, refreshed in 2021, provides specific guidance to all John Deere employees, outlining how we can and must uphold and strengthen the integrity that has defined John Deere since its founding. All employees must complete Code training and, where permitted by law, must also certify each year that they will comply with the Code. The Company maintains a global compliance hotline to allow for concerns to be brought forward.
Health and Safety
John Deere and the Company have taken and continue to take extraordinary measures to protect their workforce in response to COVID. Safety protocols continue to be in place for employees who work onsite, including enhanced cleaning and sanitation. Where possible, the Company has supported flexible work arrangements for employees throughout the pandemic, including by deploying new technologies to strengthen virtual connectivity. The Company also provided financial support for employees who struggled to provide childcare during the pandemic. The Company continues to strive
11
to be agile in addressing employee needs in the quickly evolving environment while also being transparent across the workforce.
Diversity, Equity, and Inclusion (DEI)
In order to ensure that each of our employees can bring their full selves to work, John Deere and the Company strive to foster a diverse, equitable, and inclusive workplace where all voices are heard and included. John Deere continues to champion policies, practices, and behaviors that amplify innovation on behalf of people, community, and planet. Diversity, equity, and inclusion are critical to our success as an organization. Incorporating DEI into our business practices enhances innovation and enables our best talent to thrive in an environment where diverse perspectives are celebrated. This requires deliberate intention and action on the part of every employee and leader. We will continue to push forward on the path to a more diverse, equitable, and inclusive culture with our colleagues, customers, and dealers. In doing so, experience tells us we will be more engaged, innovative, and successful.
The Company’s leadership sets a consistent and transparent tone on diversity and inclusion. Leadership training focuses on building an inclusive environment and driving positive behavioral change. To help managers with development and team building, we measure inclusiveness as part of our employee experience survey. We are working to further weave DEI into all aspects of how we lead and do business. In addition to regional councils, we have formed a global diversity and inclusion council with senior leaders who own our DEI journey. This journey is a collective effort that involves every level of our organization. As part of the annual sustainability report available on John Deere’s website, John Deere has publicly disclosed the number of women and minorities in leadership positions throughout the organization, which includes the Company, and continues to launch initiatives to increase representation of minorities in the workforce.
John Deere and the Company proudly partner with several professional organizations to support our diversity recruitment strategy, including the National Black MBA Association, Inc., the Society of Women Engineers, the Thurgood Marshall College Fund Leadership Institute, the Society of Hispanic Professional Engineers, and Minorities in Agriculture, Natural Resources, and Related Sciences.
John Deere-sponsored employee resource groups (ERGs), in which Company employees participate, are employee-run organizations formed around a common dimension of diversity, interest, or experience that affects the workplace. ERGs bring together individuals with shared interests while serving as resources to our business. The efforts of our ERGs address three key focus areas – employee development, community involvement, and business alignment. John Deere has 12 ERGs and the Company has approximately 700 employees engaged in these ERGs globally.
Compensation and Benefits
To attract and retain talent, the Company offers competitive compensation and non-financial benefits everywhere we operate. These benefits are tailored to the specific markets in which our employees are located. The non-compensation benefits we offer focus on all aspects of employee well-being, including physical, social, community, and career. We conduct regular surveys of the market rates for jobs to ensure our compensation is competitive. We offer a variety of working arrangements, including flexible schedules, telecommuting, and job sharing, to help employees manage home and work-life situations.
Training and Development
The Company provides training and development opportunities for employees at all stages of their careers to empower them to reach their full potential. Employees are critical to the long-term success of the Company’s business. We encourage employees to identify the paths that can build the skills, experience, knowledge, and competencies needed for career advancement. The Company supports employees by creating purpose-driven work opportunities, comprehensive performance reviews and development plans, mentoring opportunities, and professional and personal development opportunities. The Company provided approximately 20.3 training hours per full-time equivalent administrative/professional employee globally in fiscal year 2021. The Company’s training programs, which are tailored to different geographic regions and job functions, include among other topics: relationships with customers and dealers, the Company’s culture and values, compliance with the Code, compliance with anti-bribery/corruption laws and policies, compliance with management of private data and cybersecurity, compliance with conflicts of interest, discrimination and workplace harassment policies, and sexual harassment policies.
12
Human Rights
The Company honors human rights and respects the individual dignity of all persons globally. Our commitment to human rights requires that we understand and carry out our responsibilities consistent with Company values and practices. We strive to ensure that human rights are upheld for our employees and employees of John Deere dealers. Our commitment to human rights is defined in the Code, the John Deere dealer code of conduct, and related policies and practices, which establish clear guidelines for our employees and John Deere dealers while helping to inform our business decisions. We do not tolerate human rights abuses, such as forced labor, unlawful child labor, or human trafficking. We are proud to contribute to the places where we work and support the residents of these places.
Item 1A. Risk Factors.
The Company is a subsidiary of JDFS, a wholly-owned finance holding subsidiary of Deere & Company. The results of operations of the Company are affected by its relationships with John Deere. See “Relationships of the Company with John Deere” on page 4 for additional information regarding the relationship between the Company and John Deere.
The following risks are considered material to the Company’s business based upon current knowledge, information, and assumptions. This discussion of risk factors should be considered closely in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” beginning on page 23, including the risks and uncertainties described in the “Safe Harbor Statement” on pages 30-32, the Notes to Consolidated Financial Statements beginning on page 44, and the risk factors of Deere & Company included in Exhibit 99 to this Annual Report on Form 10-K and incorporated herein by reference. These risk factors and other forward-looking statements that relate to future events, expectations, trends, and operating periods involve certain factors that are subject to change, and important risks and uncertainties that could cause actual results to differ materially. Some of these risks and uncertainties could affect particular portions of the business, while others could affect all of the Company’s business. Although the risks are organized by headings, and each risk is discussed separately, many are interrelated. The Company, except as required by law, undertakes no obligation to update or revise this risk factors discussion, whether as a result of new developments or otherwise. The risks described in this Annual Report on Form 10-K and the “Safe Harbor Statement” in this report are not the only risks faced by the Company.
Risks Related to the COVID Pandemic
The COVID pandemic resulted in additional risks that could materially adversely affect the Company’s business, financial condition, results of operations and/or cash flows.
The virus causing COVID was identified in late 2019 and spread globally (COVID pandemic). Efforts to combat the virus have been complicated by viral variants and uneven access to, and acceptance and effectiveness of, vaccines globally. The pandemic resulted in governments and other authorities implementing numerous measures to try to contain the virus, such as travel bans and restrictions, quarantines, shelter in place orders and business closures. These measures have impacted and may continue to impact all or portions of the Company’s workforce and operations and the operations of customers and dealers. Although certain restrictions related to the COVID pandemic have eased, uncertainty continues to exist regarding such measures and potential future measures. Current material and component shortages have limited and could continue to limit John Deere’s ability to meet customer demand, which could have a material adverse effect on John Deere’s and the Company’s financial condition, cash flows, and results of operations.
The COVID pandemic caused a global recession and the sustainability of the economic recovery observed in 2021 remains unclear. The COVID pandemic has also significantly increased economic and demand uncertainty, has caused inflationary pressure in the U.S. and elsewhere, and has led to disruption and volatility in the global capital markets. Economic uncertainties could continue to affect demand for John Deere’s products, the value of the equipment financed or leased, the demand for financing, and the financial condition and credit risk of John Deere dealers and customers.
Continued uncertainties related to the magnitude, duration, and persistent effects of the COVID pandemic may significantly adversely affect John Deere’s and the Company’s business and outlook. These uncertainties include, among other things: the duration and impact of the resurgence in COVID cases in any country, state, or region; the emergence, contagiousness, and threat of new and different strains of virus; the availability, acceptance, and effectiveness of vaccines;
13
additional closures or other actions as mandated or otherwise made necessary by governmental authorities, including employee vaccine mandates; disruptions in the supply chain, including those caused by industry capacity constraints, material availability, and global logistics delays and constraints arising from, among other things, the transportation capacity of ocean shipping containers and a prolonged delay in resumption of operations by one or more of John Deere’s key suppliers, or the failure of any key supplier; an increasingly competitive labor market due to a sustained labor shortage or increased turnover caused by the COVID pandemic; additional operating costs due to continued remote working arrangements, adherence to social distancing guidelines, and other COVID-related challenges; increased risk of cyberattacks on network connections used in remote working arrangements; increased privacy-related risks due to processing health-related personal information; legal claims related to alleged exposure to COVID on Company premises; absence of employees due to illness; and the impact of the pandemic on the Company’s customers and John Deere dealers. These factors, and others that are currently unknown or considered immaterial, could materially and adversely affect the Company’s business, liquidity, results of operations and financial position.
Geopolitical Uncertainties
International, national and regional trade laws, regulations, and policies (particularly those related to or restricting global trade), and government farm programs and policies could significantly impair John Deere’s profitability and growth prospects. As the Company’s acquisition volume of Receivables and Leases is largely dependent upon the level of retail sales and leases of John Deere products, these geopolitical uncertainties could also negatively impact the Company's profitability and growth prospects.
International, national, and regional laws, regulations, and policies directly or indirectly related to or restricting the import and export of John Deere’s products, services, and technology, or those of its customers, including protectionist policies in particular jurisdictions or for the benefit of favored industries or sectors, could harm John Deere’s global business. John Deere’s profitability and growth prospects are tied directly to the global marketplace. Restricted access to global markets impairs John Deere’s ability to export goods and services from its various manufacturing locations around the world and limits the ability to access raw materials and high quality parts and components at competitive prices on a timely basis. Trade restrictions, including withdrawal from or modification of existing trade agreements, negotiation of new trade agreements, non-tariff trade barriers, local content requirements, and imposition of new or retaliatory tariffs against certain countries or covering certain products, including developments in U.S.-China trade relations, could limit John Deere’s ability to capitalize on current and future growth opportunities in international markets and impair John Deere’s ability to expand the business by offering new technologies, products, and services. These trade restrictions, and changes in or uncertainty surrounding global trade policies, may affect John Deere’s competitive position. Furthermore, market access and the ability to export agricultural and forestry commodities is critical to John Deere’s agricultural and forestry customers. Policies impacting exchange rates and commodity prices or those limiting the export or import of commodities could have a material adverse effect on the international flow of agricultural and other commodities that may result in a corresponding negative effect on the demand for agricultural and forestry equipment in many areas of the world. John Deere’s agricultural equipment sales could be especially harmed by such policies because farm income strongly influences sales of agricultural equipment around the world. Furthermore, trade restrictions could impede those in developing countries from achieving a higher standard of living, which could negatively impact John Deere’s future growth opportunities arising from increasing global demand for food, fuel, and infrastructure. Additionally, changes in government farm programs and policies, including direct payment and other subsidies, can significantly influence demand for agricultural equipment as well as create unequal competition for multinational companies relative to domestic companies.
Embargoes, sanctions and export controls imposed by the U.S. and other governments restricting or prohibiting transactions with certain persons or entities, including financial institutions, to certain countries or regions, or involving certain products, limit the sales of John Deere products. Embargoes, sanctions, and export control laws are changing rapidly for certain geographies, including with respect to China, Russia, Myanmar (Burma), and Belarus. In particular, changing U.S. export controls and sanctions on China, as well as other restrictions affecting transactions involving China and Chinese parties, could affect John Deere’s ability to collect receivables, provide aftermarket and warranty support for John Deere equipment, and sell products, and otherwise impact John Deere’s reputation and business. Although John Deere and the Company have a compliance program in place designed to reduce the likelihood of potential violations of import and export laws and sanctions, violations of these laws or sanctions could harm John Deere’s and the Company’s
14
reputation and business, and may subject John Deere or the Company to civil and criminal sanctions, any of which could have a material adverse effect on John Deere’s or the Company’s results of operations and financial condition.
Greater political, economic, and social uncertainty and the evolving globalization of businesses could significantly change the dynamics of John Deere’s and the Company’s competition, customer base, and product offerings and impact John Deere’s and the Company’s growth opportunities globally.
John Deere’s efforts to grow its businesses depend in part upon access to additional geographic markets, including, but not limited to, Argentina, Brazil, China, India, Russia, and South Africa, and its success in developing market share and operating profitably in such markets. In some cases, these countries have greater political and economic volatility, greater vulnerability to infrastructure and labor disruptions, and differing local customer product preferences and requirements than John Deere’s other markets. Negative market conditions resulting from economic and political uncertainties in these and other countries could reduce customer confidence, resulting in declines in demand and increases in delinquencies and default rates, which could affect write-offs and provisions for credit losses. Operating and seeking to expand business in a number of different regions and countries exposes John Deere and the Company to multiple and potentially conflicting cultural practices, business practices, and legal and regulatory requirements that are subject to change and are often complex and difficult to navigate, including those related to tariffs and trade barriers, investments, property ownership rights, taxation, sanctions and export control requirements, repatriation of earnings, and advanced technologies. The agricultural equipment industry continues to undergo significant changes and is becoming even more competitive through the emergence and expanding global capability of many competitors. Expanding business operations globally also increases exposure to currency fluctuations, which can materially affect John Deere’s and the Company’s financial results. While John Deere maintains a positive corporate image and its brands are widely recognized and valued in its traditional markets, the brands are less well known in some emerging markets, which could impede John Deere’s efforts to successfully compete in these markets. Although John Deere is taking measures to adapt to these changing circumstances, John Deere’s and the Company’s reputation and/or business results could be negatively affected should these efforts prove unsuccessful.
Uncertain Economic Conditions
Negative economic conditions and outlook can materially weaken demand for John Deere’s equipment and services, limit access to funding, and result in higher funding costs for John Deere and the Company.
The demand for the Company’s and John Deere’s products and services can be significantly reduced in an economic environment characterized by high unemployment, cautious consumer spending, lower corporate earnings, U.S. budget issues, and lower business investment. Negative or uncertain economic conditions that cause John Deere’s customers to lack confidence in the general economic outlook can significantly reduce their likelihood of purchasing John Deere’s equipment. As discussed under Risks Related to the COVID Pandemic–The COVID pandemic resulted in additional risks that could materially adversely affect the Company’s business, financial condition, results of operations, and/or cash flows, the COVID pandemic caused a global recession and significantly increased economic and demand uncertainty. Sustained negative economic conditions and outlook affect housing starts, energy demand, and other construction, which dampens demand for certain construction equipment. John Deere’s turf operations and its construction and forestry business are dependent on construction activity and general economic conditions. Decreases in construction activity and housing starts could have a material adverse effect on John Deere’s and the Company’s results of operations. If negative economic conditions affect the overall farm economy, there could be a similar effect on John Deere’s agricultural equipment sales. In addition, uncertain or negative outlook with respect to pervasive U.S. fiscal issues as well as general economic conditions and outlook can cause significant changes in market liquidity conditions. Such changes could impact access to funding and associated funding costs, which could reduce the Company’s earnings and cash flows. Additionally, John Deere’s and the Company’s investment management activities could be adversely affected by changes in the equity and bond markets, which would negatively affect earnings.
In addition, demand for John Deere’s and the Company’s products and services can be significantly reduced by concerns regarding the diverse economic and political circumstances of the individual countries in the eurozone, the debt burden of certain eurozone countries and their ability to meet future financial obligations, the risk that one or more other European Union countries could come under increasing pressure to leave the European Union, or the long-term stability of the euro as a single common currency. Persistent disparity with respect to the widely varying economic conditions
15
within the individual countries in the eurozone, and its implications for the euro as well as market perceptions concerning these and related issues, could adversely affect the value of John Deere’s and the Company’s euro-denominated assets and obligations, have an adverse effect on demand for John Deere’s and the Company’s products and services in the eurozone, and have an adverse effect on financial markets in Europe and globally. More specifically, it could affect the ability of John Deere’s and the Company’s customers, suppliers, and lenders to finance their respective businesses and access liquidity at acceptable financing costs, if at all, as well as the availability of supplies and materials and the demand for John Deere’s products.
Financial Risks
Because the Company is subject to interest rate risks, changes in interest rates can reduce demand for equipment, adversely affect interest margins, and limit access to capital markets while increasing borrowing costs.
Rising interest rates could have a dampening effect on overall economic activity and/or the financial condition of the Company’s customers, either or both of which could negatively affect customer demand for John Deere equipment and customers’ ability to repay obligations to the Company. In addition, credit market dislocations could have an impact on funding costs, which are very important to the Company because such costs affect the Company’s ability to offer customers competitive financing rates. While the Company strives to match the interest rate characteristics of its financial assets and liabilities, changing interest rates could have an adverse effect on the Company’s net interest rate margin—the difference between the yield the Company earns on its assets and the interest rates the Company pays for funding, which could in turn affect the Company’s net interest income and earnings. Actions by credit rating agencies, such as downgrades or negative changes to ratings outlooks, can affect the availability and cost of funding for the Company and can increase the Company’s cost of capital and hurt its competitive position.
Changes in government banking, monetary, and fiscal policies could have a negative effect on the Company.
Policies of the U.S. and other governments regarding banking, monetary, and fiscal policies intended to promote or maintain liquidity, stabilize financial markets, and/or address local deficit or structural economic issues may not be effective and could have a material impact on the Company’s customers and markets. Failure of the U.S. federal government to pass a 2022 budget resolution could lead to a U.S. default under its sovereign debt, the consequences of which could have significant and unpredictable effects on global financial markets, which could in turn negatively affect John Deere’s and the Company’s operating results, cash flows, and financial condition. The Company’s operations and results could also be affected by financial regulatory reform that could have an adverse effect on the Company and its customers by limiting their ability to enter into hedging transactions or to finance purchases of John Deere products. Government policies on spending can also affect John Deere, especially the construction and forestry segment, due to the impact of government spending on infrastructure development. The Company’s and John Deere’s operations, including those outside of the United States, may also be affected by non-U.S. regulatory reforms being implemented to further regulate non-U.S. financial institutions and markets.
Changes in tax rates, tax legislation, or exposure to additional tax liabilities could have a negative effect on John Deere and the Company.
John Deere and the Company are subject to income taxes in the U.S. and numerous foreign jurisdictions. John Deere’s domestic and international tax liabilities are dependent upon the location of earnings among these different jurisdictions. Tax rates in various jurisdictions may be subject to significant change. John Deere’s and the Company’s effective tax rates could be affected by changes in the mix of earnings in countries with differing statutory tax rates, changes in the valuation of deferred tax assets and liabilities, or changes in tax laws or their interpretations. If John Deere’s and the Company’s effective tax rates were to increase, or if the ultimate determination of its taxes owed is for an amount in excess of amounts previously accrued, John Deere’s and the Company’s operating results, cash flows, and financial condition could be adversely affected.
The Company’s consolidated financial results are reported in U.S. dollars while certain assets and other reported items are denominated in the currencies of other countries, creating currency exchange and translation risk.
The Company operates in many areas of the world, involving transactions denominated in a variety of currencies. The Company is subject to currency exchange risk to the extent that its costs are denominated in currencies other than
16
those in which it earns revenues. Additionally, the reporting currency for the Company’s consolidated financial statements is the U.S. dollar. Certain of the Company’s assets, liabilities, expenses, and revenues are denominated in other countries’ currencies. Those assets, liabilities, expenses, and revenues are translated into U.S. dollars at the applicable exchange rates to prepare the Company’s consolidated financial statements. Therefore, increases or decreases in exchange rates between the U.S. dollar and those other currencies affect the value of those items as reflected in the Company’s consolidated financial statements, even if their value remains unchanged in their original currencies. Substantial fluctuations in the value of the U.S. dollar could have a significant impact on the Company’s results.
Because the Company is a financing company, negative economic conditions in the financial industry could materially impact the Company’s operations and financial results.
Negative economic conditions can have an adverse effect on the financial industry in which the Company operates. The Company provides financing for a significant portion of John Deere’s sales in many of the countries in which the Company operates. The Company is exposed to the risk that customers and others will default on contractual obligations and may experience credit losses that exceed its expectations and adversely affect its financial condition and results of operations. The Company’s inability to access funds at cost-effective rates to support its financing activities could have a material adverse effect on the Company’s business. The Company’s liquidity and ongoing profitability depend largely on timely access to capital in order to meet future cash flow requirements, and to fund operations and costs associated with engaging in diversified funding activities. Additionally, negative market conditions could reduce customer confidence levels, resulting in declines in credit applications and increases in delinquencies and default rates, which could materially impact the Company’s write-offs and provision for credit losses.
The Company’s results could be adversely affected by a decrease in the value or higher than estimated returns of equipment on operating lease.
The Company estimates the end-of-lease term residual value at the inception of the operating leases based on a number of factors, including lease term, expected hours of usage, historical wholesale sale prices, return experience, intended use of the equipment, market dynamics and trends, and third-party residual guarantees. Used equipment values may decrease as a result of any one or a combination of factors including market conditions, supply of and demand for used equipment, and technological advancements in new equipment. Lower residual value estimates could result in increasing operating lease depreciation, impairment losses, and losses on the sale of matured operating lease inventory, which would decrease the Company’s earnings.
The transition away from the London Interbank Offered Rate (“LIBOR”) and the adoption of alternative reference rates could adversely affect the Company’s business and results of operations.
The Company is exposed to LIBOR-based financial instruments, primarily relating to debt, derivative, and receivables transactions, that have been entered into previously and remain outstanding. The LIBOR benchmark has been subject of national, international, and other regulatory guidance and proposals for reform. In July 2017, the U.K. Financial Conduct Authority announced that it intends to stop persuading or compelling banks to submit rates for calculation of LIBOR after 2021. In November 2020, the Intercontinental Exchange announced that it intends to cease publication of certain LIBOR settings by the end of 2021 while continuing to publish overnight and one-, three-, six-, and twelve-month U.S. dollar LIBOR rates through June 30, 2023. However, in early 2021, the United States Federal Reserve Board and other regulatory bodies issued guidance encouraging banks and other financial market participants to cease entering into new contracts that use U.S. dollar LIBOR as a reference rate as soon as practicable and in any event no later than December 31, 2021. These actions may cause LIBOR to perform differently than in the past and LIBOR will likely ultimately cease to exist.
To facilitate an orderly transition from LIBOR to alternative benchmark rate(s), John Deere and the Company established an initiative led by internal subject matter experts to assess and mitigate risks associated with the discontinuation of LIBOR. As part of this initiative, several alternative benchmark rates have been, and continue to be, evaluated. At this time, however, the effects of the phase out of LIBOR and the adoption of alternative benchmark rates have not been fully determined. Any new benchmark rate will likely not replicate LIBOR exactly, which could affect the Company’s contracts that mature after a LIBOR cessation date. In addition, there is uncertainty about how applicable laws, the courts, or the Company will address the replacement of LIBOR with alternative rates on variable-rate contracts that do
17
not include, or contain unclear, alternative rate fallback provisions. A failure to properly transition away from LIBOR could expose the Company to various financial, operational, and regulatory risks, which could affect the Company’s results of operations and cash flows. Uncertainty as to the nature of such potential changes may also adversely affect the trading market for the Company’s securities.
Market Conditions
John Deere’s ability to adapt in highly competitive markets could affect its business, results of operations, and financial condition.
John Deere operates in a variety of highly competitive global and regional markets. John Deere competes worldwide with a number of other manufacturers and distributors that produce and sell similar products. John Deere competes on the basis of product performance, innovation and quality, distribution, customer service, and price. Aggressive pricing or other strategies pursued by competitors, unanticipated product or manufacturing delays, or John Deere’s failure to price its products competitively could adversely affect John Deere’s business, results of operations, and financial condition, which could have a negative effect on the Company’s results.
John Deere’s ability to understand its customers’ specific preferences and requirements, and to develop, manufacture, and market products that meet customer demand, could significantly affect its business results.
John Deere’s ability to match new product offerings to diverse global customers’ anticipated preferences for different types and sizes of equipment and various equipment features and functionality, at affordable prices, is critical to its success. This requires a thorough understanding of John Deere’s existing and potential customers on a global basis. Failure to deliver quality products that meet customer needs at competitive prices ahead of competitors could have a significant adverse effect on John Deere’s business, which could have a negative effect on the Company’s results.
Changing worldwide demand for food and different forms of bio-energy could affect the price of farm commodities and consequently the demand for certain John Deere equipment and could also result in higher research and development costs related to changing machine fuel requirements.
Changing worldwide demand for farm outputs to meet the world’s growing food and bio-energy demands, driven in part by government policies, including those related to climate change, and a growing world population, are likely to result in fluctuating agricultural commodity prices, which directly affect sales of agricultural equipment. Lower agricultural commodity prices directly affect farm incomes, which could negatively affect sales of agricultural equipment and result in higher credit losses. While higher commodity prices benefit John Deere’s crop-producing agricultural equipment customers, higher commodity prices also could result in greater feed costs for livestock and poultry producers, which in turn may result in lower levels of equipment purchased by these customers. Furthermore, changing bio-energy demands may cause farmers to change the types or quantities of the crops they raise, with corresponding changes in equipment demands. Finally, changes in governmental policies regulating bio-fuel utilization could affect commodity demand and commodity prices, demand for John Deere’s diesel-fueled equipment, and result in higher research and development costs for John Deere related to equipment fuel standards. These changes could have a negative effect on the Company’s results.
Data Security and Privacy Risks
Security breaches and other disruptions to the Company’s information technology infrastructure could interfere with the Company’s operations and could compromise the information of the Company as well as its customers and/or John Deere dealers, exposing the Company to liability that could cause the Company’s business and reputation to suffer.
In the ordinary course of business, the Company relies upon information technology networks and systems, some of which are managed by third parties, to process, transmit, and store electronic information and to manage or support a variety of business processes and activities, including loan application and collection of payments from dealers and other purchasers of John Deere equipment. The Company uses information technology systems to record, process, and summarize financial information and results of operations for internal reporting purposes and to comply with regulatory financial reporting, legal, and tax requirements. Additionally, the Company collects and stores sensitive data, including intellectual property, proprietary business information, and the proprietary business information of the Company’s
18
customers and John Deere dealers, as well as personally identifiable information of the Company’s customers and employees, in data centers, which are often owned by third parties, and on information technology networks. The secure operation of these information technology networks and the processing and maintenance of this information is critical to the Company’s business operations and strategy. Despite security measures, including a vulnerability disclosure program, and business continuity plans, the Company’s information technology networks and infrastructure have been and may be vulnerable to damage, disruptions, or shutdowns due to attacks by cyber criminals or breaches due to employee, supplier, or dealer error or malfeasance or other disruptions during the process of upgrading or replacing computer software or hardware, power outages, computer viruses, telecommunication or utility failures, terrorist acts, natural disasters, or other catastrophic events. Although the Company has not suffered any significant cyber incidents that resulted in a material business impact, it has from time to time been the target of malicious cyber threat actors. The occurrence of any significant event could compromise the Company’s networks, and the information stored there could be accessed, publicly disclosed, lost or stolen. Any such access, disclosure, or other loss of information could result in legal claims or proceedings, liability, or regulatory penalties under laws protecting the privacy of personal information, disruption to the Company’s operations, and damage the Company’s reputation, which could adversely affect the Company’s business, results of operations, and financial condition. In addition, as security threats continue to evolve and increase in frequency and sophistication, the Company may need to invest additional resources to protect the security of its systems.
The Company is subject to governmental laws, regulations, and other legal obligations related to privacy and data protection and any inability or perceived inability of the Company to address these requirements could adversely affect our business.
The legislative and regulatory framework for privacy and data protection issues worldwide is rapidly evolving and is likely to remain uncertain for the foreseeable future. The Company collects personal information and other data as integral parts of its business processes and activities. This data is subject to a variety of U.S. and foreign laws and regulations, including oversight by various regulatory and other governmental bodies. Many foreign countries and governmental bodies, including the European Union and other relevant jurisdictions where the Company conducts business, have laws and regulations concerning the collection and use of personal information and other data obtained from their residents or by businesses operating within their jurisdictions. The European Union General Data Protection Regulation and the California Consumer Privacy Act, among others, impose stringent data protection requirements and provide significant penalties for noncompliance. New privacy laws will continue to come into effect around the world in the future. Any inability or perceived inability to adequately address privacy and data protection concerns, even if unfounded, or comply with applicable laws, regulations, policies, industry standards, contractual obligations, or other legal obligations could result in additional cost and liability to the Company or Company officials, damage our reputation, inhibit sales, and otherwise adversely affect our business.
Human Capital Risks
The Company’s ability to attract, develop, engage, and retain qualified employees could affect its ability to execute its strategy.
The Company’s continued success depends, in part, on its ability to identify and attract qualified candidates with the requisite education, background, and experience as well as its ability to develop, engage, and retain qualified employees. Failure to attract, develop, engage and retain qualified employees, whether as a result of an insufficient number of qualified applicants, difficulty in recruiting new employees, or inadequate resources to train, integrate, and retain qualified employees, could impair the Company’s ability to execute its business strategy, and could adversely affect the Company’s business. In addition, while the Company strives to reduce the impact of the departure of employees, the Company’s operations or ability to execute its business strategy and meet its business objectives may be affected by the loss of employees, particularly when departures involve larger numbers of employees, such as those the Company could experience if a surge occurs in the number of employees voluntarily leaving their jobs similar to that experienced by other employers and industries since 2020. Higher rates of employee separations may adversely affect the Company through decreased employee morale, the loss of knowledge of departing employees, and the devotion of resources to recruiting and onboarding new employees.
19
Disputes with labor unions have adversely affected John Deere’s ability to operate its facilities as well as its financial results.
Many of John Deere’s production and maintenance employees are represented by labor unions under various collective bargaining agreements with different expiration dates. The failure of John Deere to successfully renegotiate labor agreements as they expire has from time to time led, and could in the future lead, to work stoppages or other disputes with labor unions. Disruptions to John Deere’s manufacturing and parts-distribution facilities, through various forms of labor disputes, adversely affect John Deere and the Company. On October 14, 2021, after employees represented by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) failed to approve a new collective bargaining agreement between John Deere and the UAW, the UAW initiated a labor strike affecting more than 10,000 workers at 14 John Deere facilities across the U.S., which adversely affected John Deere’s operations in the fourth quarter of fiscal 2021. The strike ended after a new collective bargaining agreement was approved on November 17, 2021. The UAW strike is expected to have an adverse effect on John Deere’s results of operations for the three months ending January 30, 2022 as a result of reduced production and shipments. Any strike, work stoppage, or other dispute with a labor union distracts management from operating the business, may displace employees from ordinary job positions to fill in vacant positions, may affect John Deere’s reputation, and could materially adversely affect John Deere’s business, which could have a negative effect on the Company.
Environmental, Climate, and Weather Risks
Unfavorable weather conditions or natural calamities that reduce agricultural production and demand for agriculture and turf equipment could directly and indirectly affect John Deere’s and the Company’s business.
Poor or unusual weather conditions, particularly during the planting and early growing season, can significantly affect the purchasing decisions of John Deere’s customers, particularly the purchasers of agriculture and turf equipment. The timing and quantity of rainfall are two of the most important factors in agricultural production. Insufficient levels of rain prevent farmers from planting new crops and may cause growing crops to die or result in lower yields. Excessive rain or flooding can prevent planting from occurring at optimal times and may cause crop loss through increased disease or mold growth. Temperatures outside normal ranges can also cause crop failure or decreased yields, and may also affect disease incidence. Temperature affects the rate of growth, maturity, and quality of crops. Natural calamities such as regional floods, hurricanes or other storms, droughts, diseases, and pests can have significant negative effects on agricultural and livestock production. The resulting negative impact on farm income can strongly affect demand for agricultural equipment and the financial condition and credit risk of our customers and John Deere’s dealers. Adverse weather conditions in a particular geographic region, particularly during the important spring selling season, may adversely affect sales of some turf equipment. Drought conditions can adversely affect sales of certain mowing equipment and unusually rainy weather can similarly cause lower sales volumes.
Increasingly rigorous environmental, health, and safety laws and regulations of federal, state, and local authorities in the U.S. and various regulatory authorities in other jurisdictions apply to John Deere’s and the Company’s operations, suppliers, and customers, and enforcement actions or civil litigation related to those requirements could adversely affect John Deere’s and the Company’s business results.
Enforcement actions arising from violations of environmental, health, and safety laws or regulations can lead to investigations and legal costs and result in significant fines or penalties. In addition, new or more stringent requirements of governmental authorities, including with respect to disclosure relating to climate change risks, could prevent or restrict John Deere’s operations, or those of John Deere’s suppliers and customers, require significant expenditures to achieve compliance, and/or give rise to civil or criminal liability. Further, civil litigation on these subjects continues to increase, primarily in the U.S. There can be no assurance that violations of such laws and/or regulations, civil claims for damages to property or personal injury arising from the environmental, health, or safety impacts of John Deere’s or the Company’s operations, or those of John Deere’s suppliers and customers, or other civil claims in which John Deere or the Company becomes a party, would not have consequences that result in a material adverse effect on John Deere’s and the Company’s business, results of operations, or financial condition.
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Governmental actions designed to address climate change and the emergence of new technologies and business models in connection with the transition to a lower-carbon economy could adversely affect John Deere and its customers. The physical effects attributed to climate change could further impact John Deere’s facilities, suppliers, and customers.
There is global scientific consensus that emissions of greenhouse gases (GHG) continue to alter the composition of Earth’s atmosphere in ways that are affecting and are expected to continue to affect the global climate. These considerations may lead to new international, national, regional, or local legislative or regulatory responses. Various stakeholders, including legislators and regulators, shareholders, and non-governmental organizations, as well as companies in many business sectors, including John Deere and the Company, are continuing to look for ways to reduce GHG emissions. The regulation of GHG emissions from certain stationary or mobile sources or the imposition of carbon pricing mechanisms could result in additional costs to John Deere and the Company in the form of taxes or emission allowances, facilities improvements, and energy costs, which would increase John Deere’s and the Company’s operating costs through higher utility, transportation, and materials costs. Increased input costs, such as fuel and fertilizer, and compliance-related costs could also affect customer operations and demand for John Deere equipment. Because the impact of any future climate change-related legislative, regulatory, or product standard requirements on John Deere’s and the Company’s global businesses and products is dependent on the timing and design of mandates or standards, the Company is unable to predict their potential impact at this time.
Customer preferences in the markets served by John Deere could change as these markets transition to less carbon-intensive business models. Demand for electric agricultural, turf, and construction equipment could rise. The development of alternative farming techniques, carbon sequestration technologies, and new low-carbon biofuels could change farmers’ business models and equipment needs. If John Deere fails to properly develop or invest in new technologies to meet changing customer demands, John Deere will be at risk of losing potential sources of revenue, which could affect the Company’s future financial results.
The potential physical impacts of climate change on John Deere’s facilities, suppliers, and customers and therefore on John Deere’s and the Company’s operations are highly uncertain and will be particular to the circumstances developing in various geographic regions. These may include extreme weather events and long-term changes in temperature levels and water availability. These potential physical effects may adversely affect the demand for John Deere’s products and the financial performance of John Deere’s and the Company’s operations.
Legal and Regulatory Risks
The Company’s global operations are subject to complex and changing laws and regulations, the violation of which could expose the Company to potential liabilities, increased costs, and other adverse effects.
The Company’s global operations are subject to numerous international, federal, state, and local laws and regulations, many of which are complex, frequently changing, and subject to varying interpretations. These laws and regulations cover a broad spectrum of subject areas, including advertising; anti–money laundering; antitrust; consumer finance; environmental, health, and safety, including proper handling of electronic waste, recycling, and climate change; foreign exchange controls and cash repatriation restrictions; foreign ownership and investment; human rights, labor, and employment; and data privacy. These laws may vary substantially within the different markets in which the Company operates. Compliance with these laws and regulations is costly and may further increase the cost of conducting the Company’s global operations. In addition, the Company must comply with the U.S. Foreign Corrupt Practices Act and all applicable foreign anti-corruption laws, including the U.K. Bribery Act, which generally prohibit companies and their intermediaries from making improper payments or providing anything of value to improperly influence government officials or private individuals for the purpose of obtaining or retaining a business advantage, regardless of whether those practices are legal or culturally expected in a particular jurisdiction. Although the Company has a compliance program in place designed to reduce the likelihood of potential violations of such laws and regulations, there can be no assurance that the Company’s employees, contractors, or agents will not violate such laws and regulations or the Company’s policies and procedures. Violations of these laws and regulations could result in criminal or civil sanctions and have a materially adverse effect on the Company’s reputation, business, results of operations, and financial condition.
Changes to existing laws and regulations or changes to how they are interpreted or the implementation of new, more stringent laws or regulations could adversely affect the Company’s business by increasing compliance costs, limiting
21
the Company’s ability to offer a product or service, requiring changes to the Company’s business practices, or otherwise making the Company’s products and services less attractive to customers. Legislative and regulatory changes and other actions that could potentially affect the Company’s business may be announced with little or no advance notice and the Company may not be able to effectively mitigate all adverse effects from such measures.
Strategic Performance Risks
The Company may not realize all of the anticipated benefits of its business strategies or these benefits may take longer to realize than expected.
The Company may not realize all anticipated benefits of its recent reorganization and the implementation of its operating model within the anticipated timeframe or at all. Factors that could affect these benefits include the adoption of new job types within the Company, changing job responsibilities of employees, the number of layers of management, the ability of employees to embrace change, anxiety within the workforce, and temporary inefficiencies. Further, the ability of John Deere to execute its business strategies in production systems, precision technologies, and aftermarket support could affect John Deere’s and the Company’s results of operations and financial condition.
Item 1B. Unresolved Staff Comments.
None.
Item 2. Properties.
The Company owns office buildings in Johnston, Iowa and Madison, Wisconsin; and leased office space in Reno, Nevada; Rosario, Argentina; Brisbane, Australia; Gloucester, England; Langar, England; Ormes, France; Walldorf, Germany; Milan, Italy; Luxembourg City, Luxembourg; Monterrey, Mexico; Poznan, Poland; and Parla, Spain. We believe our properties are adequate and suitable for our business as presently conducted and are adequately maintained.
Item 3. Legal Proceedings.
The Company is subject to various unresolved legal actions that arise in the normal course of its business, the most prevalent of which relate to retail credit matters. The Company believes the reasonably possible range of losses for these unresolved legal actions would not have a material effect on its consolidated financial statements.
Item 4. Mine Safety Disclosures.
Not applicable.
PART II
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters, and Issuer Purchases of Equity Securities.
(a) | All of Capital Corporation’s common stock is owned by JDFS, a finance holding company that is wholly-owned by Deere & Company. In 2021 and 2020, Capital Corporation declared and paid cash dividends of $485.0 million and $275.0 million, respectively, to JDFS. In turn, JDFS declared and paid comparable dividends to Deere & Company. |
(b) | Not applicable. |
(c) | Not applicable. |
Item 6. [Reserved]
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Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
The following Management's Discussion and Analysis of Financial Condition and Results of Operations (MD&A) is intended to promote understanding of the financial condition and results of operations. The MD&A is provided as a supplement to, and should be read in conjunction with, the consolidated financial statements and the accompanying Notes to Consolidated Financial Statements (Part II, Item 8 of this Form 10-K).
Results of Operations
Overview
Organization
The Company primarily generates revenues and cash by financing John Deere dealers’ sales and leases of new and used production and precision agriculture, small agriculture and turf, and construction and forestry equipment. In addition, the Company also provides wholesale financing to dealers of the foregoing equipment and finances retail revolving charge accounts.
Trends and Economic Conditions
The Company’s acquisition volume of Receivables and Leases is largely dependent upon the level of retail sales and leases of John Deere products. The level of John Deere retail sales and leases is responsive to a variety of economic, financial, climatic, legislative, and other factors that influence demand for its products.
John Deere’s production and precision agriculture equipment and small agriculture and turf equipment sales both increased 27 percent in 2021. Industry sales of large agricultural machinery in the U.S. and Canada for 2022 are forecasted to increase approximately 15 percent compared to 2021. Industry sales of small agricultural and turf equipment in the U.S. and Canada are expected to be flat in 2022. Industry sales of agricultural machinery in Europe are forecasted to be about 5 percent higher. South American industry sales of tractors and combines are forecasted to be roughly 5 percent higher in 2022. Asia industry sales are forecasted to be nearly the same in 2022 as in 2021. John Deere’s construction and forestry sales increased 27 percent in 2021. On an industry basis, North American construction equipment and compact construction equipment sales are both expected to be 5 to 10 percent higher in 2022. Global forestry industry sales are projected to increase 10 to 15 percent. Results for the full-year fiscal 2022 for financial services, including the Company, are expected to be slightly lower due to a higher provision for credit losses, lower gains on operating lease residual values, and higher selling, general, and administrative expenses. These factors are expected to be partially offset by income earned on a higher average portfolio.
Items of concern that could affect the Company’s results of operations and liquidity and capital resources include uncertainty of the effectiveness of governmental and private sector actions to address COVID, trade agreements, the uncertainty of the results of monetary and fiscal policies, the impact of elevated levels of sovereign and state debt, capital market disruptions, changes in demand and pricing for new and used equipment, geopolitical events, and the other items discussed in the “Safe Harbor Statement” below. Significant fluctuations in foreign currency exchange rates and volatility in the price of many commodities could also impact John Deere’s and the Company’s results. The future financial effects of COVID continue to be unknown due to many factors. As a result of these uncertainties, predicting the Company’s forecasted financial performance is subject to many assumptions.
John Deere’s 2021 full-year performance reflects strong end-market demand and the ability of John Deere’s dedicated employees, dealers, and suppliers throughout the world, who have helped safely maintain operations, manage supply-chain challenges, and continue to serve customers throughout the COVID pandemic. Demand for farm and construction equipment is expected to continue to benefit from positive fundamentals, including favorable crop prices, economic growth, and increased investment in infrastructure. While supply-chain pressures are expected to persist into at least the early part of fiscal year 2022, John Deere is working closely with key suppliers to secure the parts and components that customers need in order to deliver essential food and infrastructure more profitably and sustainably.
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COVID Effects and Actions
During 2020 and to a lesser extent in 2021, the effects of COVID and the related actions of governments and other authorities to contain COVID affected and continue to affect the Company’s operations, results, cash flows, and forecasts.
The Company’s first priority in addressing the effects of COVID continues to be the health, safety, and overall welfare of its employees. The Company effectively activated previously established business continuity plans and proactively implemented health and safety measures at its operations around the world.
The Company continued to work closely with its customers, including John Deere dealers and retail customers, in 2021 in connection with short-term payment relief on obligations owed to the Company. Receivables and Leases granted relief since the beginning of the pandemic that remained outstanding at October 31, 2021 represented approximately 2 percent of the Receivable and Lease portfolio (see Notes 5 and 7).
2021 Compared with 2020
The total revenues and net income attributable to the Company were as follows (in millions of dollars):
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2021 |
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2020 |
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Total revenues |
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$ |
2,688.0 |
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$ |
2,807.6 |
Net income attributable to the Company |
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|
710.6 |
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|
425.0 |
Total revenues decreased in 2021 primarily due to lower average financing rates, partially offset by a higher average portfolio and net gains on operating lease dispositions in the current year. Net income in 2021 was higher than in 2020 due to improvements on operating lease residual values, a lower provision for credit losses, favorable financing spreads, and income earned on a higher average portfolio. 2020 results also included impairments on lease residual values (see Note 7).
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Revenues
The finance income and lease revenues earned by the Company were as follows (in millions of dollars):
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2021 |
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2020 |
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% Change |
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Finance income earned from: |
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Retail notes |
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$ |
946.6 |
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$ |
941.4 |
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|
1 |
% |
Revolving charge accounts |
|
|
298.1 |
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333.8 |
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|
(11) |
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Wholesale receivables |
|
|
299.8 |
|
|
385.0 |
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|
(22) |
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Lease revenues |
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|
1,022.0 |
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|
1,088.9 |
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|
(6) |
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Other income |
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|
121.5 |
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|
58.5 |
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|
108 |
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Finance income on retail notes increased slightly in 2021 due to a higher average portfolio, partially offset by lower average financing rates. Finance income on revolving charge accounts and wholesale receivables decreased in 2021 primarily due to lower average financing rates and lower average portfolios. Lease revenues decreased primarily due to lower average portfolio balances.
Revenues earned from John Deere totaled $613.7 million in 2021, compared with $669.5 million in 2020. The decrease was primarily the result of lower compensation paid by John Deere for waived or reduced finance charges on wholesale receivables due to lower average financing rates and a lower average portfolio. Revenues earned from John Deere are included in the revenue amounts discussed above and in other income.
Other income increased in 2021 primarily due to net gains on operating lease residual values, which had been revised downward over the term of the leases. Better than expected conditions in the agriculture and turf and the construction and forestry markets led to favorable results when the matured lease equipment was sold. The Company recognized net losses on operating lease dispositions in 2020, which were recorded in administrative and operating expenses. In addition, 2021 benefited from freestanding credit enhancement recoveries (see Note 5), partially offset by lower interest income.
Expenses
Significant expenses incurred by the Company were as follows (in millions of dollars):
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2021 |
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2020 |
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% Change |
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Interest expense |
|
$ |
472.9 |
|
$ |
743.9 |
|
|
(36) |
% |
Depreciation of equipment on operating leases |
|
|
733.4 |
|
|
845.1 |
|
|
(13) |
|
Administrative and operating expenses |
|
|
406.0 |
|
|
470.6 |
|
|
(14) |
|
Fees paid to John Deere |
|
|
168.3 |
|
|
101.6 |
|
|
66 |
|
Provision (credit) for credit losses |
|
|
(.9) |
|
|
89.4 |
|
|
|
|
Provision for income taxes |
|
|
200.5 |
|
|
134.1 |
|
|
50 |
|
The decrease in interest expense was primarily due to lower average borrowing rates.
The depreciation of equipment on operating leases decreased primarily due to updated depreciation estimates and lower average balances of equipment on operating leases.
The decrease in administrative and operating expenses was primarily due to losses and impairments on operating lease residual values recorded in 2020 (see Note 7). In 2021, the Company recognized net gains on the sale of operating lease equipment in other income. 2020 was also impacted by employee-separation expenses (see Note 22).
Fees paid to John Deere increased in 2021 primarily due to higher interest on intercompany borrowings from John Deere as a result of higher average borrowings and higher interest rates in certain international markets, in addition to higher corporate support fees.
The provision (credit) for credit losses decreased in 2021 compared to 2020 primarily due to lower expected losses on retail notes and financing leases caused by improving conditions in the construction and forestry market and better than expected performance of accounts granted payment relief due to the economic effects of COVID. The provision
25
(credit) for credit losses also decreased on revolving charge accounts in 2021, reflecting strong payment performance due to continued improvements in the agriculture and turf market. In addition to the factors noted above, the 2020 provision also included an increase in the allowance for credit losses related to the negative economic effects of COVID and other macroeconomic issues. The provision for credit losses, as a percentage of the total average balance of Receivables financed, was zero for 2021 and .27 percent for 2020.
The higher provision for income taxes in 2021 was primarily related to higher pretax income in the current year, partially offset by a lower effective tax rate. See Note 15 to the Consolidated Financial Statements for additional information.
Receivables and Leases Acquired and Held
For the fiscal years ended October 31, 2021 and November 1, 2020, Receivable and Lease (excluding wholesale) acquisition volumes and balances held were as follows (in millions of dollars):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal Year Volumes |
|
|
Fiscal Year End Balances |
|
||||||||||||
|
|
|
|
|
|
|
|
% |
|
|
|
|
|
|
|
|
% |
|
|
|
2021 |
|
2020 |
|
Change |
|
|
2021 |
|
2020 |
|
Change |
|
||||
Retail notes: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Agriculture and turf |
|
$ |
12,085.1 |
|
$ |
9,581.7 |
|
26 |
% |
|
$ |
21,518.9 |
|
$ |
18,031.0 |
|
19 |
% |
Construction and forestry |
|
|
2,812.2 |
|
|
2,175.1 |
|
29 |
|
|
|
4,487.0 |
|
|
3,816.2 |
|
18 |
|
Total retail notes |
|
|
14,897.3 |
|
|
11,756.8 |
|
27 |
|
|
|
26,005.9 |
|
|
21,847.2 |
|
19 |
|
Revolving charge accounts |
|
|
6,886.0 |
|
|
6,833.4 |
|
1 |
|
|
|
3,740.1 |
|
|
3,827.4 |
|
(2) |
|
Financing leases |
|
|
655.4 |
|
|
490.6 |
|
34 |
|
|
|
972.3 |
|
|
789.4 |
|
23 |
|
Equipment on operating leases |
|
|
1,832.5 |
|
|
1,911.8 |
|
(4) |
|
|
|
4,947.6 |
|
|
5,297.8 |
|
(7) |
|
Total Receivables and Leases (excluding wholesale) |
|
$ |
24,271.2 |
|
$ |
20,992.6 |
|
16 |
|
|
$ |
35,665.9 |
|
$ |
31,761.8 |
|
12 |
|
Retail notes bearing fixed finance rates totaled over 95 percent of the total retail note portfolio at October 31, 2021 and November 1, 2020.
Total Receivables 30 days or more past due, non-performing Receivables, and the allowance for credit losses were as follows (in millions of dollars and as a percentage of the Receivables balance):
* The delinquency status of Receivables granted relief due to COVID is based on the modified payment schedule (see Note 5).
Receivables 30 days or more past due continue to accrue finance income. The Company ceases to accrue finance income once Receivables are considered non-performing. An allowance for credit losses is recorded for the estimated credit losses expected over the life of the Receivable portfolio. The Company measures expected credit losses on a collective basis when similar risk characteristics exist. Risk characteristics considered by the Company include product category, market, geography, credit risk, and remaining duration. Receivables that do not share risk characteristics with other receivables in the portfolio are evaluated on an individual basis. While the Company believes its allowance is sufficient to provide for losses over the life of its existing Receivable portfolio, different assumptions or changes in economic conditions would result in changes to the allowance for credit losses and the provision for credit losses. See Note 5 for additional information related to the allowance for credit losses.
26
Deposits withheld from dealers and merchants amounted to $131.8 million at October 31, 2021, compared with $114.8 million at November 1, 2020. These balances primarily represent the aggregate dealer retail note and lease withholding accounts from individual John Deere dealers to which losses from retail notes and leases originating from the respective dealers can be charged. Upon the adoption of ASU No. 2016-13, recoveries from dealer deposits are recognized in other income when the dealer’s withholding account is charged.
During 2021, $14.3 million was recorded in other income related to recoveries from dealer deposits and other freestanding credit enhancements. Prior to the adoption of ASU No. 2016-13, the benefit of credit losses recovered from freestanding credit enhancements, such as dealer deposits, was recognized in the provision for credit losses based on estimated recoveries.
2020 Compared with 2019
The comparison of the 2020 results with 2019 can be found under the heading “2020 Compared with 2019” in the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section of the Company’s 2020 Form 10-K.
Capital Resources and Liquidity
The cash provided by operating and financing activities was used primarily to fund Receivables and Leases. Cash provided by operating activities was $1,365.9 million in 2021. Cash provided by financing activities totaled $2,026.2 million, resulting primarily from a net increase in total external borrowings of $2,152.1 million and a net increase in notes payables to John Deere of $392.8 million, partially offset by dividends paid of $485.0 million. Cash used for investing activities totaled $3,391.7 million in 2021, primarily due to the cost of Receivables acquired (excluding wholesale) exceeding the collections of Receivables (excluding wholesale) by $4,290.6 million, and the cost of equipment on operating leases acquired exceeding the proceeds from sales of equipment on operating leases by $276.6 million, partially offset by a decrease in net wholesale receivables of $1,197.1 million. Cash, cash equivalents, and restricted cash increased $3.4 million during 2021.
Over the last three years, operating activities have provided $4,576.2 million in cash. In addition, an increase in total borrowings of $5,178.6 million provided cash inflows. These amounts have been used mainly to fund Receivable and Lease acquisitions, which exceeded collections of Receivables and proceeds from sale of equipment on operating leases by $8,212.2 million, and to pay $1,090.0 million in dividends. Cash, cash equivalents, and restricted cash increased $61.0 million over the three-year period.
The Company relies on its ability to raise substantial amounts of funds to finance its Receivable and Lease portfolios. The Company has access to most global markets at reasonable costs and expects to have sufficient sources of global funding and liquidity to meet its funding needs in the short term and long term. The Company’s ability to meet its debt obligations is supported in several ways. The assets of the Company are self-liquidating in nature. A solid equity position is available to absorb unusual losses on these assets and all commercial paper is backed by unsecured, committed borrowing lines from various banks. Liquidity is also provided by the Company’s ability to securitize these assets and through the issuance of term debt. Additionally, liquidity may be provided through loans from John Deere. The Company’s commercial paper outstanding at October 31, 2021 and November 1, 2020 was $662.9 million and $125.0 million, respectively, while the total cash, cash equivalents, and marketable securities position was $679.1 million and $676.8 million, respectively. The amount of cash, cash equivalents, and marketable securities held by foreign subsidiaries was $158.0 million and $163.7 million at October 31, 2021 and November 1, 2020, respectively.
The Company has a revolving credit agreement to utilize bank conduit facilities to securitize retail notes (see Note 6). At October 31, 2021, the revolving credit agreement had a total capacity, or “financing limit,” of $2,000.0 million of secured financings at any time. $1,572.3 million of short-term securitization borrowings were outstanding under the agreement at October 31, 2021. At the end of the contractual revolving period, unless the banks and the Company agree to renew, the Company would liquidate the secured borrowings over time as payments on the retail notes are collected. The agreement was renewed in November 2021 with an expiration in November 2022 and a capacity of $1,000.0 million. As a result of the reduced capacity, $511.1 million of outstanding short-term securitization borrowings were repurchased by the Company in November 2021, in addition to the normal monthly liquidations as a result of payments collected on the retail notes.
27
During 2021, the Company issued $7,418.3 million and retired $5,710.4 million of long-term external borrowings, which primarily consisted of medium-term notes. During 2021, the Company also issued $2,800.8 million and retired $2,861.5 million of retail note securitization borrowings and maintained an average commercial paper balance of $902.1 million. At October 31, 2021, the Company’s funding profile included $678.9 million of commercial paper and other notes payable, $4,595.2 million of securitization borrowings, $5,619.4 million of notes payable to John Deere, $26,426.4 million of unsecured term debt, and $4,526.2 million of equity capital. The Company’s funding profile may be altered to reflect such factors as relative costs of funding sources, assets available for securitizations, and capital market accessibility.
Total interest-bearing indebtedness amounted to $37,319.9 million at October 31, 2021, compared with $35,145.9 million at November 1, 2020. Total external short-term indebtedness amounted to $11,093.2 million at October 31, 2021, compared with $10,585.3 million at November 1, 2020. Total external long-term indebtedness amounted to $20,607.3 million at October 31, 2021, compared with $19,311.1 million at November 1, 2020. Total notes payable to John Deere amounted to $5,619.4 million at October 31, 2021, compared with $5,249.5 million at November 1, 2020. The ratio of total interest-bearing debt, including securitization indebtedness, to stockholder’s equity was 8.2 to 1 at October 31, 2021 and November 1, 2020.
Stockholder’s equity was $4,526.2 million at October 31, 2021, compared with $4,298.2 million at November 1, 2020. The increase in 2021 was primarily due to net income attributable to the Company of $710.6 million, a change in the cumulative translation adjustment of $15.0 million, and unrealized gains on derivatives of $13.5 million, partially offset by dividend payments of $485.0 million and reductions resulting from the adoption of ASU No. 2016-13 of $26.2 million.
Capital Corporation declared and paid cash dividends to JDFS of $485.0 million in 2021 and $275.0 million in 2020. In turn, JDFS paid comparable dividends to Deere & Company.
Contractual Obligations and Cash Requirements
The Company’s material contractual cash obligations relate to borrowings, including securitization borrowings. As of October 31, 2021, the Company had $14,081.3 million of principal payments on borrowings and securitization borrowings payable in the next year, along with interest payments of $428.0 million. The securitization borrowing payments are based on the expected liquidation of the related retail notes securitized as well as the repurchase due to the reduced facility capacity (see Note 25). The Company’s borrowings will likely be replaced with new borrowings to finance the Receivables and Leases portfolio. See Notes 8, 9, and 10 for further detail regarding future contractual payments on intercompany borrowings, securitization borrowings, and long-term external borrowings.
Lines of Credit
The Company has access to bank lines of credit with various banks throughout the world. Some of the lines are available to both the Company and Deere & Company. Worldwide lines of credit totaled $8,016.0 million at October 31, 2021, $5,770.3 million of which were unused. For the purpose of computing the unused credit lines, commercial paper and short-term bank borrowings, excluding secured borrowings and the current portion of long-term external borrowings, of the Company and John Deere were considered to constitute utilization. Included in the total credit lines at October 31, 2021 was a 364-day credit facility agreement of $3,000.0 million, expiring in fiscal April 2022. In addition, total credit lines included long-term credit facility agreements of $2,500.0 million, expiring in fiscal April 2025, and $2,500.0 million, expiring in fiscal March 2026. The agreements are mutually extendable and the annual facility fees are not significant. These credit agreements require the Company to maintain its consolidated ratio of earnings to fixed charges at not less than 1.05 to 1 for each fiscal quarter and its ratio of senior debt, excluding securitization indebtedness, to capital base (total subordinated debt and stockholder’s equity excluding accumulated other comprehensive income (loss)) at not more than 11 to 1 at the end of any fiscal quarter. All of the requirements of the credit agreements have been met during the periods included in the consolidated financial statements.
28
Debt Ratings
The Company’s ability to obtain funding is affected by its debt ratings, which are closely related to the outlook for and the financial condition of John Deere, and the nature and availability of support facilities, such as its lines of credit and the support agreement with Deere & Company.
To access public debt capital markets, the Company relies on credit rating agencies to assign short-term and long-term credit ratings to the Company’s securities as an indicator of credit quality for fixed income investors. A securities rating is not a recommendation by the rating agency to buy, sell, or hold the Company’s securities. A credit rating agency may change or withdraw Company ratings based on its assessment of the Company’s current and future ability to meet interest and principal repayment obligations. Each agency’s rating should be evaluated independently of any other rating. Lower credit ratings generally result in higher borrowing costs, including costs of derivative transactions, and reduced access to debt capital markets.
The senior long-term and short-term debt ratings and outlook currently assigned to unsecured Company debt securities by the rating agencies engaged by the Company are the same as those for John Deere. Those ratings are as follows:
|
|
|
|
|
|
|
|
|
Senior Long-Term |
|
Short-Term |
|
Outlook |
Fitch Ratings |
|
A |
|
F1 |
|
Stable |
Moody’s Investors Service, Inc. |
|
A2 |
|
Prime-1 |
|
Stable |
Standard & Poor’s |
|
A |
|
A-1 |
|
Stable |
Critical Accounting Estimates
The preparation of the Company’s consolidated financial statements in conformity with accounting principles generally accepted in the U.S. requires management to make estimates and assumptions that affect reported amounts of assets, liabilities, revenues, and expenses. Changes in these estimates and assumptions could have a significant effect on the financial statements. The accounting policies below are those management believes are the most critical to the preparation of the Company’s financial statements and require the most difficult, subjective, or complex judgments. The Company’s other accounting policies are described in the Notes to the Consolidated Financial Statements.
Allowance for Credit Losses
The allowance for credit losses is an estimate of the credit losses expected over the life of the Company’s Receivable portfolio. The allowance is measured on a collective basis when similar risk characteristics exist. Risk characteristics considered by the Company include product category, market, geography, credit risk, and remaining duration. Receivables that do not share risk characteristics with other receivables in the portfolio are evaluated on an individual basis. Non-performing Receivables are included in the estimate of expected credit losses.
The Company utilizes loss forecast models, which are selected based on the size and credit risk of the underlying pool of receivables, to estimate expected credit losses. Transition matrix models are used for large and complex Customer Receivable pools, while weighted-average remaining maturity models are used for smaller and less complex Customer Receivable pools. Expected credit losses on wholesale receivables are based on historical loss rates, with consideration of current economic conditions and dealer financial risk. The modeled expected credit losses are adjusted based on reasonable and supportable forecasts, which may include economic indicators such as commodity prices, industry equipment sales, unemployment rates, and housing starts. Management reviews each model’s output quarterly, and qualitative adjustments are incorporated as necessary. See Note 5 to the Consolidated Financial Statements for further information.
In 2021, the Company adopted ASU No. 2016-13, which revised the measurement of credit losses from an incurred loss to an expected loss methodology. Upon adoption, the Company’s allowance for credit losses increased $19.7 million with an offset to retained earnings (see Note 3). The allowance for credit losses at November 1, 2020 and November 3, 2019 were not restated under the expected loss methodology. The total allowance for credit losses at October 31, 2021, November 1, 2020, and November 3, 2019 was $129.0 million, $129.1 million, and $100.6 million, respectively. Subsequent to the adoption of ASU No. 2016-13, the allowance decreased $19.8 million during 2021, primarily due to lower expected losses in the construction and forestry market, continued improvement in the agriculture
29
and turf market, and better than expected performance of accounts granted payment relief due to the economic effects of COVID. These decreases were partially offset by growth in the retail notes and financing leases portfolio (see Note 5). The allowance increase in 2020 was primarily due to the negative economic effects related to COVID and other macroeconomic issues, which significantly affected certain retail borrowers, particularly of construction equipment.
The assumptions used in evaluating the Company’s exposure to credit losses involve estimates and significant judgment. While the Company believes its allowance is sufficient to provide for losses over the life of its existing Receivables portfolio, different assumptions or changes in economic conditions would result in changes to the allowance for credit losses. Historically, changes in economic conditions have had limited impact on credit losses within the Company’s wholesale receivable portfolio. Within the Customer Receivables portfolio, credit loss estimates are dependent on a number of factors, including historical portfolio performance, current delinquency levels, and estimated recoveries on defaulted accounts. The Company’s transition matrix models, which are utilized to estimate credit losses for more than 90 percent of Customer Receivables, use historical portfolio performance and current delinquency levels to forecast future defaults. Estimated recovery rates are applied to the estimated default balance to calculate the expected credit losses. Holding all other factors constant, a 10 percent increase in the transition matrix models’ forecasted defaults as a result of elevated levels of delinquencies, deteriorating roll rates, or otherwise, and a simultaneous 10 percent decrease in recovery rates would have resulted in an increase to the allowance for credit losses of approximately $30 million at October 31, 2021.
Operating Lease Residual Values
The carrying value of equipment on operating leases is affected by the estimated fair values of the equipment at the end of the lease (residual values). Upon termination of the lease, the equipment is either purchased by the lessee or sold to a third party, in which case the Company may record a gain or a loss for the difference between the estimated residual value and the sale price. The Company estimates residual values at the inception of the lease based on several factors, including lease term, expected hours of usage, historical wholesale sale prices, return experience, intended use of the equipment, market dynamics and trends, and third-party residual guarantees. The Company reviews residual value estimates during the lease term and tests the carrying value of its operating lease assets for impairment when events or circumstances necessitate. Changes in residual value assumptions would affect the amount of depreciation expense and the amount of investment in equipment on operating leases. Depreciation is adjusted prospectively on a straight-line basis over the remaining lease term if residual value estimates are revised. The total operating lease residual values at October 31, 2021, November 1, 2020, and November 3, 2019 were $3,547.6 million, and $3,826.3 million, and $3,876.5 million, respectively. The decrease in 2021 was primarily due to a lower operating lease portfolio.
Estimates used in determining end-of-lease market values for equipment on operating leases significantly impact the amount and timing of depreciation expense. Hypothetically, if future market values for this equipment were to decrease 10 percent from the Company’s present estimates and all the equipment on operating leases were returned to the Company for remarketing at the end of the lease term, the total impact would be to increase the Company’s annual depreciation for equipment on operating leases by approximately $75 million, after consideration of dealer residual value guarantees.
Safe Harbor Statement
Safe Harbor Statement under the Private Securities Litigation Reform Act of 1995: Statements under “Business” (including under “Market Conditions”), “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” (including under “Overview” and “Trends and Economic Conditions”), and other forward-looking statements herein that relate to future events, expectations, and trends involve factors that are subject to change, and risks and uncertainties that could cause actual results to differ materially.
Factors that could materially affect the Company’s operations, access to capital, expenses, and results include changes in, uncertainty surrounding, and the impact of governmental trade, banking, monetary, and fiscal policies, including financial regulatory reform and its effects on the consumer finance industry, derivatives, funding costs, and other areas. Actions by central banks and financial and securities regulators may affect the costs and expenses of financing the Company and the financing rates it is able to offer. The Company’s business is affected by general economic conditions in the global markets in which the Company operates because deteriorating economic conditions and political instability can result in decreased customer confidence, lower demand for equipment, higher credit losses, and greater currency risk.
30
The Company’s business is also affected by changes in demand and pricing for used equipment and resulting impacts on lease residual values; actions of banks, financing and leasing companies, and other lenders that compete with the Company for customers; capital market disruptions; significant changes in capital market liquidity and associated funding costs; interest rates (including the availability of IBOR reference rates) and foreign currency exchange rates and their volatility; changes to accounting standards; changes in tax rates, estimates, laws, and regulations and Company actions related thereto; changes to and compliance with privacy, banking, and other regulations; changes to and compliance with economic sanctions and export controls laws and regulations; compliance with U.S. and foreign laws when expanding to new markets and otherwise; actions by other regulatory bodies; governmental programs, policies, and tariffs for the benefit of certain industries or sectors; sanctions in particular jurisdictions; retaliatory actions to such changes in trade, banking, monetary, and fiscal policies; the potential default of the U.S. federal government if Congress fails to pass a 2022 budget resolution; the political and social stability of the global markets in which the Company operates; changes in weather and climate patterns; the effects of, or response to, terrorism and security threats; wars and other conflicts; natural disasters; the spread of major epidemics or pandemics (including the COVID pandemic) and government and industry responses to epidemics or pandemics, such as travel restrictions and extended shut downs of businesses; events that damage the Company’s reputation or brand; significant investigations, claims, lawsuits or other legal proceedings; success of business strategies; labor relations and contracts, including work stoppages and other disruptions; changes in the ability to attract, develop, engage, and retain qualified personnel; the implementation of the smart industrial operating model and other organizational changes; the failure to realize anticipated savings or benefits of cost reduction, productivity, or efficiency efforts; difficulties related to the conversion and implementation of the Company’s information technology systems; and security breaches, cybersecurity attacks, technology failures and other disruptions to the information technology infrastructure of the Company and John Deere dealers.
Continued uncertainties related to the magnitude, duration, and persistent effects of the COVID pandemic may significantly adversely affect John Deere’s and the Company’s business and outlook. These uncertainties include, among other things: the duration and impact of the resurgence in COVID cases in any country, state, or region; the emergence, contagiousness, and threat of new and different strains of virus; the availability, acceptance, and effectiveness of vaccines; additional closures as mandated or otherwise made necessary by governmental authorities; disruptions in the supply chain, including those caused by industry capacity constraints, material availability, and global logistics delays and constraints arising from, among other things, the transportation capacity of ocean shipping containers and a prolonged delay in resumption of operations by one or more of John Deere’s key suppliers, or the failure of any key suppliers; an increasingly competitive labor market due to a sustained labor shortage or increased turnover caused by the COVID pandemic; additional operating costs due to continued remote working arrangements, adherence to social distancing guidelines, and other COVID-related challenges; increased risk of cyberattacks on network connections used in remote working arrangements; increased privacy-related risks due to processing health-related personal information; legal claims related to alleged exposure to COVID on Company premises; absence of employees due to illness; and the impact of the pandemic on the Company’s customers and on John Deere dealers. The sustainability of the economic recovery observed in 2021 remains unclear and significant volatility could continue for a prolonged period. These factors, and others that are currently unknown or considered immaterial, could materially and adversely affect the Company’s business, liquidity, results of operations, and financial position.
Significant changes in market liquidity conditions, changes in the Company’s credit ratings, and any failure to comply with financial covenants in credit agreements could impact access to funding and funding costs, which could reduce the Company’s earnings and cash flows. Financial market conditions could also negatively impact customer access to capital for purchases of John Deere’s products and customer confidence and purchase decisions, financing and repayment practices, and the number and size of customer delinquencies and defaults. A debt crisis in Europe, Latin America, or elsewhere could negatively impact currencies, global financial markets, social and political stability, funding sources and costs, asset and obligation values, customers, and Company operations and results. The Company’s operations could be impaired by changes in the equity, bond, and other financial markets, which would negatively affect earnings.
Continued effects of the withdrawal of the United Kingdom from the European Union could adversely affect business activity, political stability, and economic conditions in the United Kingdom, the European Union, and elsewhere. The economic conditions and outlook could be further adversely affected by (i) uncertainty regarding any new or modified trade arrangements between the United Kingdom and the European Union and/or other countries, (ii) the risk that one or more other European Union countries could come under increasing pressure to leave the European Union, or (iii) the risk
31
that the euro as the single currency of the eurozone could cease to exist. Any of these developments could affect the Company’s businesses, liquidity, results of operations, and financial position.
The liquidity and ongoing profitability of the Company depend largely on timely access to capital in order to meet future cash flow requirements, and to fund operations, costs, and purchases of John Deere’s products. If general economic conditions deteriorate or capital markets become more volatile, funding could be unavailable or insufficient. Additionally, customer confidence levels may result in declines in credit applications and increases in delinquencies and default rates, which could materially impact the Company’s write-offs and provision for credit losses.
The Company’s forward-looking statements are based upon assumptions relating to the factors described above, which are sometimes based upon estimates and data prepared by government agencies. Such estimates and data are often revised. The Company, except as required by law, undertakes no obligation to update or revise its forward-looking statements, whether as a result of new developments or otherwise. In addition, the Company’s business is closely related to John Deere’s business. Further information, including factors that could materially affect the Company’s and John Deere’s financial results, is included in the most recent Deere & Company Annual Report on Form 10-K (including, but not limited to, the factors discussed in Item 1A, Risk Factors of the Annual Report on Form 10-K) and other Deere & Company and Capital Corporation quarterly and other filings with the SEC.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
Financial Instrument Market Risk Information
The Company is naturally exposed to various interest rate and foreign currency risks. As a result, the Company enters into derivative transactions to manage certain of these exposures that arise in the normal course of business and not for the purpose of creating speculative positions or trading. The Company manages the relationships of the types and amounts of its funding sources to its Receivable and Lease portfolios in an effort to diminish risk due to interest rate and foreign currency fluctuations, while responding to favorable financing opportunities. Accordingly, from time to time, the Company enters into interest rate swap agreements to manage its interest rate exposure. The Company also has foreign currency exposures at some of its foreign and domestic operations related to financing in currencies other than the functional currencies. The Company has entered into agreements related to the management of these foreign currency transaction risks.
Interest Rate Risk
Quarterly, the Company uses a combination of cash flow models to assess the sensitivity of its financial instruments with interest rate exposure to changes in market interest rates. The models calculate the effect of adjusting interest rates as follows. Cash flows for Receivables are discounted at the current prevailing rate for each Receivable portfolio. Cash flows for unsecured borrowings are discounted at the applicable benchmark yield curve plus market credit spreads for similarly rated borrowers. Cash flows for securitized borrowings are discounted at the swap yield curve plus a market credit spread for similarly rated borrowers. Cash flows for interest rate swaps are projected and discounted using forward rates from the swap yield curve at the repricing dates. The net loss in these financial instruments’ fair values, which would be caused by increasing the interest rates by 10 percent from the market rates at October 31, 2021 and November 1, 2020, would have been approximately $101.9 million and $126.7 million, respectively.
Foreign Currency Risk
The Company’s policy is to manage foreign currency risk through hedging strategies if the currency of the borrowings does not match the currency of the Receivable portfolio. As a result, a hypothetical 10 percent adverse change in the value of the U.S. dollar relative to all other foreign currencies would not have a material effect on the Company’s cash flows.
32
Item 8. Financial Statements and Supplementary Data.
See accompanying table of contents of financial statements on page 36.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.
Not applicable.
Item 9A. Controls and Procedures.
Disclosure Controls and Procedures
The Company’s principal executive officer and its principal financial officer have concluded that the Company’s disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Securities Exchange Act of 1934, as amended (the Exchange Act)) were effective as of October 31, 2021, based on the evaluation of these controls and procedures required by Rule 13a-15(b) or 15d-15(b) of the Exchange Act.
Management’s Report on Internal Control Over Financial Reporting
The Company’s management is responsible for establishing and maintaining adequate internal control over financial reporting. The Company’s internal control system was designed to provide reasonable assurance regarding the preparation and fair presentation of published financial statements in accordance with generally accepted accounting principles.
All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation in accordance with generally accepted accounting principles.
Management assessed the effectiveness of the Company’s internal control over financial reporting as of October 31, 2021, using the criteria set forth in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on that assessment, management believes that, as of October 31, 2021, the Company’s internal control over financial reporting was effective.
This Annual Report on Form 10-K does not include an attestation report of the Company’s independent registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by the Company’s independent registered public accounting firm pursuant to rules of the Securities and Exchange Commission that permit the Company to provide only management’s report in this Annual Report on Form 10-K.
Changes in Internal Control Over Financial Reporting
During the fourth quarter, there were no changes that have materially affected or are reasonably likely to materially affect the Company’s internal control over financial reporting.
Item 9B. Other Information.
Not applicable.
Item 9C. Disclosure Regarding Foreign Jurisdictions That Prevent Inspections.
Not applicable.
33
PART III
Item 10. Directors, Executive Officers, and Corporate Governance.
Omitted pursuant to Instruction I(2).
Item 11. Executive Compensation.
Omitted pursuant to Instruction I(2).
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
Omitted pursuant to Instruction I(2).
Item 13. Certain Relationships and Related Transactions, and Director Independence.
Omitted pursuant to Instruction I(2).
Item 14. Principal Accountant Fees and Services.
For the years ended October 31, 2021 and November 1, 2020, professional services were performed by Deloitte & Touche LLP, the member firms of Deloitte Touche Tohmatsu, and their respective affiliates (collectively called Deloitte & Touche).
Audit Fees
The aggregate fees billed include amounts for the audit of the Company’s annual financial statements, the reviews of the financial statements included in the Company’s Quarterly Reports on Form 10-Q, including services related thereto such as comfort letters, statutory audits, attest services, consents, and assistance with and review of documents filed with the SEC and other regulatory bodies. Audit fees for the fiscal years ended October 31, 2021 and November 1, 2020, were $3.2 million and $3.4 million, respectively.
Audit-Related Fees
During the last two fiscal years, Deloitte & Touche has provided the Company with assurance and related services that are reasonably related to the performance of the audit of the Company’s financial statements. The aggregate fees billed for such audit-related services for each of the fiscal years ended October 31, 2021 and November 1, 2020 were $.2 million. These services included various attest services.
Tax Fees
There were no fees billed for professional services provided by Deloitte & Touche in connection with tax advice and tax planning services for the fiscal years ended October 31, 2021 and November 1, 2020.
All Other Fees
There were no fees billed by Deloitte & Touche for services not included above for the fiscal years ended October 31, 2021 and November 1, 2020.
Pre-approval of Services by the Independent Registered Public Accounting Firm
As a wholly-owned subsidiary of Deere & Company, audit and non-audit services provided by the Company’s independent registered public accounting firm are subject to Deere & Company’s Audit Review Committee pre-approval policies and procedures as described in the Deere & Company 2021 proxy statement. During the fiscal year ended October 31, 2021, all services provided by the independent registered public accounting firm were pre-approved by Deere & Company’s Audit Review Committee in accordance with such policy.
34
PART IV
Item 15. Exhibits and Financial Statement Schedules.
(1) Financial Statements
See the table of contents to financial statements on page 36.
(2) Financial Statement Schedules
None.
(3) Exhibits
See the index to exhibits on page 75.
Item 16. Form 10-K Summary.
None.
35
Table of Contents
|
|
|
Page |
Financial Statements: |
|
|
|
John Deere Capital Corporation and Subsidiaries: |
|
|
|
37 |
|
|
|
39 |
|
|
|
40 |
|
|
|
Consolidated Balance Sheet
|
41 |
|
|
42 |
|
|
|
43 |
|
|
|
44 |
Schedules Omitted
The following schedules are omitted because of the absence of conditions under which they are required or because the required information is included in the Notes to the Consolidated Financial Statements:
I, II, III, IV, and V.
36
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the stockholders and the Board of Directors of John Deere Capital Corporation:
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of John Deere Capital Corporation and subsidiaries (the “Company”) as of October 31, 2021 and November 1, 2020, and the related statements of consolidated income, consolidated comprehensive income, changes in consolidated stockholder’s equity, and consolidated cash flows for each of the three years in the period ended October 31, 2021, and the related notes (collectively referred to as the "financial statements"). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of October 31, 2021 and November 1, 2020, and the results of its operations and its cash flows for each of the three years in the period ended October 31, 2021, in conformity with accounting principles generally accepted in the United States of America.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current-period audit of the financial statements that was communicated or required to be communicated to the audit committee and that (1) relates to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
Allowance for Credit Losses – Refer to Notes 2 and 5 to the financial statements
Critical Audit Matter Description
The allowance for credit losses as of October 31, 2021 was $129 million. The allowance for credit losses is an estimate of the credit losses expected over the life of the Company’s receivable portfolio. The Company measures expected credit losses on a collective basis when similar risk characteristics exist. Risk characteristics considered by the Company include product category, market, geography, credit risk, and remaining duration. The Company utilizes loss forecast models, which are selected based on the size and credit risk of the underlying pool of receivables, to estimate expected credit losses. Transition matrix models, which are used for the majority of the customer receivables, use historical
37
delinquency and default information to assign probabilities that a receivable will pay as contractually scheduled or become delinquent and advance through the various delinquency stages. The modeled expected credit losses are adjusted based on reasonable and supportable forecasts, which may include economic indicators such as commodity prices, industry equipment sales, unemployment rates, and housing starts. Management reviews each model’s output quarterly, and qualitative adjustments are incorporated as necessary.
We identified the allowance for credit losses as a critical audit matter because determining the appropriate methodology and assumptions used in the estimate requires significant judgment by management. Given the subjective nature and judgment applied by management to determine the allowance for credit losses, auditing the methodology and assumptions requires a high degree of auditor judgment and an increased extent of effort, including the need to involve credit specialists.
How the Critical Audit Matter Was Addressed in the Audit
Our audit procedures related to testing the Company’s allowance for credit losses included the following, among others:
● | We tested the effectiveness of management’s controls over the methodology, data and assumptions used to estimate the allowance for credit losses. |
● | We tested the accuracy and evaluated the relevance of the underlying historical data used in the Company’s model. |
● | With the assistance of our credit specialists, we evaluated the reasonableness and accuracy of the models used to estimate the allowance for credit losses, including model assumptions and the selection and application of relevant risk characteristics and use of qualitative adjustments. |
● | We evaluated qualitative adjustments to the model estimate. Our evaluation included: |
o | Comparison of qualitative factors used by the Company to source data provided by the Company and/or to externally available data |
o | Consideration and evaluation of contradictory evidence |
● | We evaluated management’s ability to accurately forecast credit losses by performing a retrospective review, which involved comparing actual credit losses to historical estimates. |
/s/ DELOITTE & TOUCHE LLP
Chicago, Illinois
December 16, 2021
We have served as the Company’s auditor since 1959.
38
John Deere Capital Corporation and Subsidiaries
Statement of Consolidated Income
For the Years Ended October 31, 2021, November 1, 2020, and November 3, 2019
(in millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
|
2019 |
|
|||
Revenues |
|
|
|
|
|
|
|
|
|
|
Finance income earned on retail notes |
|
$ |
946.6 |
|
$ |
941.4 |
|
$ |
919.3 |
|
Lease revenues |
|
|
1,022.0 |
|
|
1,088.9 |
|
|
1,009.8 |
|
Revolving charge account income |
|
|
298.1 |
|
|
333.8 |
|
|
346.2 |
|
Finance income earned on wholesale receivables |
|
|
299.8 |
|
|
385.0 |
|
|
535.4 |
|
Other income |
|
|
121.5 |
|
|
58.5 |
|
|
79.6 |
|
Total revenues |
|
|
2,688.0 |
|
|
2,807.6 |
|
|
2,890.3 |
|
Expenses |
|
|
|
|
|
|
|
|
|
|
Interest expense |
|
|
472.9 |
|
|
743.9 |
|
|
987.8 |
|
Operating expenses: |
|
|
|
|
|
|
|
|
|
|
Depreciation of equipment on operating leases |
|
|
733.4 |
|
|
845.1 |
|
|
743.6 |
|
Administrative and operating expenses |
|
|
406.0 |
|
|
470.6 |
|
|
533.0 |
|
Fees paid to John Deere |
|
|
168.3 |
|
|
101.6 |
|
|
67.5 |
|
Provision (credit) for credit losses |
|
|
(.9) |
|
|
89.4 |
|
|
45.4 |
|
Total operating expenses |
|
|
1,306.8 |
|
|
1,506.7 |
|
|
1,389.5 |
|
Total expenses |
|
|
1,779.7 |
|
|
2,250.6 |
|
|
2,377.3 |
|
Income of consolidated group before income taxes |
|
|
908.3 |
|
|
557.0 |
|
|
513.0 |
|
Provision for income taxes |
|
|
200.5 |
|
|
134.1 |
|
|
95.5 |
|
Income of consolidated group |
|
|
707.8 |
|
|
422.9 |
|
|
417.5 |
|
Equity in income of unconsolidated affiliate |
|
|
3.0 |
|
|
2.2 |
|
|
1.8 |
|
Net income |
|
|
710.8 |
|
|
425.1 |
|
|
419.3 |
|
Less: Net income attributable to noncontrolling interests |
|
|
.2 |
|
|
.1 |
|
|
.1 |
|
Net income attributable to the Company |
|
$ |
710.6 |
|
$ |
425.0 |
|
$ |
419.2 |
|
The accompanying Notes to Consolidated Financial Statements are an integral part of this statement.
39
John Deere Capital Corporation and Subsidiaries
Statement of Consolidated Comprehensive Income
For the Years Ended October 31, 2021, November 1, 2020, and November 3, 2019
(in millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
|
2019 |
|
|||
|
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
710.8 |
|
$ |
425.1 |
|
$ |
419.3 |
|
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive income (loss), net of income taxes |
|
|
|
|
|
|
|
|
|
|
Cumulative translation adjustment |
|
|
15.0 |
|
|
18.9 |
|
|
(7.7) |
|
Unrealized gain (loss) on derivatives |
|
|
13.5 |
|
|
.3 |
|
|
(21.8) |
|
Unrealized gain (loss) on debt securities |
|
|
(.1) |
|
|
.4 |
|
|
(2.0) |
|
Other comprehensive income (loss), net of income taxes |
|
|
28.4 |
|
|
19.6 |
|
|
(31.5) |
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income of consolidated group |
|
|
739.2 |
|
|
444.7 |
|
|
387.8 |
|
Less: Comprehensive income attributable to noncontrolling interests |
|
|
.2 |
|
|
.1 |
|
|
.1 |
|
Comprehensive income attributable to the Company |
|
$ |
739.0 |
|
$ |
444.6 |
|
$ |
387.7 |
|
The accompanying Notes to Consolidated Financial Statements are an integral part of this statement.
40
John Deere Capital Corporation and Subsidiaries
Consolidated Balance Sheet
As of October 31, 2021 and November 1, 2020
(in millions)
|
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
|
||
Assets |
|
|
|
|
|
|
|
Cash and cash equivalents |
|
$ |
677.0 |
|
$ |
674.6 |
|
Marketable securities |
|
|
2.1 |
|
|
2.2 |
|
Receivables: |
|
|
|
|
|
|
|
Retail notes |
|
|
21,343.5 |
|
|
17,158.0 |
|
Retail notes securitized |
|
|
4,662.4 |
|
|
4,689.2 |
|
Revolving charge accounts |
|
|
3,740.1 |
|
|
3,827.4 |
|
Wholesale receivables |
|
|
5,951.3 |
|
|
7,093.3 |
|
Financing leases |
|
|
972.3 |
|
|
789.4 |
|
Total receivables |
|
|
36,669.6 |
|
|
33,557.3 |
|
Allowance for credit losses |
|
|
(129.0) |
|
|
(129.1) |
|
Total receivables – net |
|
|
36,540.6 |
|
|
33,428.2 |
|
Other receivables |
|
|
85.1 |
|
|
88.1 |
|
Receivables from John Deere |
|
|
191.6 |
|
|
583.2 |
|
Equipment on operating leases – net |
|
|
4,947.6 |
|
|
5,297.8 |
|
Notes receivable from John Deere |
|
|
393.5 |
|
|
350.0 |
|
Investment in unconsolidated affiliate |
|
|
21.9 |
|
|
19.3 |
|
Deferred income taxes |
|
|
32.7 |
|
|
27.1 |
|
Other assets |
|
|
324.5 |
|
|
386.7 |
|
Total Assets |
|
$ |
43,216.6 |
|
$ |
40,857.2 |
|
|
|
|
|
|
|
|
|
Liabilities and Stockholder’s Equity |
|
|
|
|
|
|
|
Short-term external borrowings: |
|
|
|
|
|
|
|
Commercial paper and other notes payable |
|
$ |
678.9 |
|
$ |
187.5 |
|
Securitization borrowings |
|
|
4,595.2 |
|
|
4,656.2 |
|
Current maturities of long-term external borrowings |
|
|
5,819.1 |
|
|
5,741.6 |
|
Total short-term external borrowings |
|
|
11,093.2 |
|
|
10,585.3 |
|
Notes payable to John Deere |
|
|
5,619.4 |
|
|
5,249.5 |
|
Other payables to John Deere |
|
|
97.6 |
|
|
30.1 |
|
Accounts payable and accrued expenses |
|
|
876.0 |
|
|
922.3 |
|
Deposits withheld from dealers and merchants |
|
|
131.8 |
|
|
114.8 |
|
Deferred income taxes |
|
|
265.1 |
|
|
345.9 |
|
Long-term external borrowings |
|
|
20,607.3 |
|
|
19,311.1 |
|
Total liabilities |
|
|
38,690.4 |
|
|
36,559.0 |
|
Commitments and contingencies (Note 18) |
|
|
|
|
|
|
|
Stockholder’s equity: |
|
|
|
|
|
|
|
Common stock, without par value (issued and outstanding –
|
|
|
1,482.8 |
|
|
1,482.8 |
|
Retained earnings |
|
|
3,091.0 |
|
|
2,891.6 |
|
Accumulated other comprehensive income (loss) |
|
|
(49.4) |
|
|
(77.8) |
|
Total Company stockholder’s equity |
|
|
4,524.4 |
|
|
4,296.6 |
|
Noncontrolling interests |
|
|
1.8 |
|
|
1.6 |
|
Total stockholder’s equity |
|
|
4,526.2 |
|
|
4,298.2 |
|
Total Liabilities and Stockholder’s Equity |
|
$ |
43,216.6 |
|
$ |
40,857.2 |
|
The accompanying Notes to Consolidated Financial Statements are an integral part of this statement.
41
John Deere Capital Corporation and Subsidiaries
Statement of Consolidated Cash Flows
For the Years Ended October 31, 2021, November 1, 2020, and November 3, 2019
(in millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
|
2019 |
|
|||
Cash Flows from Operating Activities: |
|
|
|
|
|
|
|
|
|
|
Net income |
|
$ |
710.8 |
|
$ |
425.1 |
|
$ |
419.3 |
|
Adjustments to reconcile net income to net cash
|
|
|
|
|
|
|
|
|
|
|
Provision (credit) for credit losses |
|
|
(.9) |
|
|
89.4 |
|
|
45.4 |
|
Provision for depreciation and amortization |
|
|
756.6 |
|
|
861.6 |
|
|
765.1 |
|
Credit for deferred income taxes |
|
|
(83.3) |
|
|
(175.6) |
|
|
(286.5) |
|
Impairment charges |
|
|
|
|
|
30.8 |
|
|
77.4 |
|
Undistributed earnings of unconsolidated affiliate |
|
|
(2.7) |
|
|
(2.0) |
|
|
(1.6) |
|
Change in accounts payable and accrued expenses |
|
|
(39.5) |
|
|
(25.1) |
|
|
85.9 |
|
Change in accrued income taxes payable/receivable |
|
|
(11.1) |
|
|
45.7 |
|
|
444.0 |
|
Other |
|
|
36.0 |
|
|
200.3 |
|
|
211.1 |
|
Net cash provided by operating activities |
|
|
1,365.9 |
|
|
1,450.2 |
|
|
1,760.1 |
|
|
|
|
|
|
|
|
|
|
|
|
Cash Flows from Investing Activities: |
|
|
|
|
|
|
|
|
|
|
Cost of receivables acquired (excluding wholesale) |
|
|
(22,438.0) |
|
|
(19,060.0) |
|
|
(17,714.8) |
|
Collections of receivables (excluding wholesale) |
|
|
18,147.4 |
|
|
16,768.9 |
|
|
16,097.1 |
|
Decrease (increase) in wholesale receivables – net |
|
|
1,197.1 |
|
|
1,649.1 |
|
|
(758.8) |
|
Cost of equipment on operating leases acquired |
|
|
(1,845.7) |
|
|
(1,904.9) |
|
|
(2,466.9) |
|
Proceeds from sales of equipment on operating leases |
|
|
1,569.1 |
|
|
1,334.6 |
|
|
1,213.6 |
|
Cost of notes receivable acquired from John Deere |
|
|
(321.5) |
|
|
(198.1) |
|
|
(126.6) |
|
Collections of notes receivable from John Deere |
|
|
297.5 |
|
|
110.7 |
|
|
36.5 |
|
Purchases of marketable securities |
|
|
|
|
|
|
|
|
(11.0) |
|
Proceeds from maturities and sales of marketable securities |
|
|
|
|
|
|
|
|
5.1 |
|
Other |
|
|
2.4 |
|
|
(35.9) |
|
|
(52.6) |
|
Net cash used for investing activities |
|
|
(3,391.7) |
|
|
(1,335.6) |
|
|
(3,778.4) |
|
|
|
|
|
|
|
|
|
|
|
|
Cash Flows from Financing Activities: |
|
|
|
|
|
|
|
|
|
|
Increase (decrease) in commercial paper and other notes
|
|
|
504.9 |
|
|
(1,269.1) |
|
|
(658.5) |
|
Increase (decrease) in securitization borrowings – net |
|
|
(60.7) |
|
|
379.1 |
|
|
395.8 |
|
Increase in short-term borrowings with John Deere – net |
|
|
392.8 |
|
|
3,291.8 |
|
|
491.8 |
|
Proceeds from issuance of long-term external borrowings |
|
|
7,418.3 |
|
|
3,561.9 |
|
|
6,743.9 |
|
Payments of long-term external borrowings |
|
|
(5,710.4) |
|
|
(5,719.7) |
|
|
(4,583.3) |
|
Dividends paid |
|
|
(485.0) |
|
|
(275.0) |
|
|
(330.0) |
|
Capital investment from John Deere |
|
|
|
|
|
.1 |
|
|
.6 |
|
Debt issuance costs |
|
|
(33.7) |
|
|
(24.8) |
|
|
(31.8) |
|
Net cash provided by (used for) financing activities |
|
|
2,026.2 |
|
|
(55.7) |
|
|
2,028.5 |
|
|
|
|
|
|
|
|
|
|
|
|
Effect of exchange rate changes on cash, cash equivalents, and restricted cash |
|
|
3.0 |
|
|
(.4) |
|
|
(11.1) |
|
Net increase (decrease) in cash, cash equivalents, and restricted cash |
|
|
3.4 |
|
|
58.5 |
|
|
(.9) |
|
Cash, cash equivalents, and restricted cash at beginning of year |
|
|
769.4 |
|
|
710.9 |
|
|
711.8 |
|
Cash, cash equivalents, and restricted cash at end of year |
|
$ |
772.8 |
|
$ |
769.4 |
|
$ |
710.9 |
|
The accompanying Notes to Consolidated Financial Statements are an integral part of this statement.
42
John Deere Capital Corporation and Subsidiaries
Statement of Changes in Consolidated Stockholder’s Equity
For the Years Ended November 3, 2019, November 1, 2020, and October 31, 2021
(in millions)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Company Stockholder |
|
|
|
|
|||||||
|
|
|
|
|
|
|
|
|
|
|
Accumulated |
|
|
|
|
|
|
|
Total |
|
|
|
|
|
|
|
Other |
|
Non- |
|
|||
|
|
Stockholder’s |
|
Common |
|
Retained |
|
Comprehensive |
|
controlling |
|
|||||
|
|
Equity |
|
Stock |
|
Earnings |
|
Income (Loss) |
|
Interests |
|
|||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance October 28, 2018 |
|
$ |
4,070.0 |
|
$ |
1,482.8 |
|
$ |
2,652.4 |
|
$ |
(65.9) |
|
$ |
.7 |
|
Net income |
|
|
419.3 |
|
|
|
|
|
419.2 |
|
|
|
|
|
.1 |
|
Other comprehensive loss |
|
|
(31.5) |
|
|
|
|
|
|
|
|
(31.5) |
|
|
|
|
Dividends declared |
|
|
(330.0) |
|
|
|
|
|
(330.0) |
|
|
|
|
|
|
|
Capital investment |
|
|
.6 |
|
|
|
|
|
|
|
|
|
|
|
.6 |
|
Balance November 3, 2019 |
|
|
4,128.4 |
|
|
1,482.8 |
|
|
2,741.6 |
|
|
(97.4) |
|
|
1.4 |
|
Net income |
|
|
425.1 |
|
|
|
|
|
425.0 |
|
|
|
|
|
.1 |
|
Other comprehensive income |
|
|
19.6 |
|
|
|
|
|
|
|
|
19.6 |
|
|
|
|
Dividends declared |
|
|
(275.0) |
|
|
|
|
|
(275.0) |
|
|
|
|
|
|
|
Capital investment |
|
|
.1 |
|
|
|
|
|
|
|
|
|
|
|
.1 |
|
Balance November 1, 2020 |
|
|
4,298.2 |
|
|
1,482.8 |
|
|
2,891.6 |
|
|
(77.8) |
|
|
1.6 |
|
ASU No. 2016-13 adoption (see Note 3) |
|
|
(26.2) |
|
|
|
|
|
(26.2) |
|
|
|
|
|
|
|
Net income |
|
|
710.8 |
|
|
|
|
|
710.6 |
|
|
|
|
|
.2 |
|
Other comprehensive income |
|
|
28.4 |
|
|
|
|
|
|
|
|
28.4 |
|
|
|
|
Dividends declared |
|
|
(485.0) |
|
|
|
|
|
(485.0) |
|
|
|
|
|
|
|
Balance October 31, 2021 |
|
$ |
4,526.2 |
|
$ |
1,482.8 |
|
$ |
3,091.0 |
|
$ |
(49.4) |
|
$ |
1.8 |
|
The accompanying Notes to Consolidated Financial Statements are an integral part of this statement.
43
John Deere Capital Corporation and Subsidiaries
Notes to Consolidated Financial Statements
Note 1. Organization and Consolidation
Corporate Organization
John Deere Capital Corporation (Capital Corporation) and its subsidiaries are collectively called the Company. John Deere Financial Services, Inc. (JDFS), a wholly-owned finance holding subsidiary of Deere & Company, owns all of the outstanding common stock of Capital Corporation. The Company conducts business in Australia, New Zealand, the U.S., and in several countries in Africa, Asia, Europe, and Latin America. Deere & Company and its wholly-owned subsidiaries are collectively called John Deere.
Retail notes, revolving charge accounts, wholesale receivables, and financing leases are collectively called “Receivables.” Receivables and equipment on operating leases are collectively called “Receivables and Leases.”
The Company bears substantially all of the credit risk (net of recovery from withholdings from certain John Deere dealers and merchants) associated with its holding of Receivables and Leases. A small portion of the Receivables and Leases held (less than 5 percent) is guaranteed by certain subsidiaries of Deere & Company. The Company also performs substantially all servicing and collection functions. Servicing and collection functions for a small portion of the Receivables and Leases held (less than 5 percent) are provided by John Deere. John Deere is reimbursed for staff and other administrative services at estimated cost, and for credit lines provided to the Company based on utilization of those lines.
In fiscal year 2021, John Deere implemented a new operating model and reporting structure. With this change, John Deere’s agriculture and turf operations were divided into two new segments: production and precision agriculture and small agriculture and turf. There were no changes to John Deere’s construction and forestry or financial services segments. Receivables and Leases managed by the Company continue to be evaluated by market (agriculture and turf and construction and forestry). References to agriculture and turf include both production and precision agriculture and small agriculture and turf.
Principles of Consolidation
The consolidated financial statements include the financial statements of Capital Corporation and its subsidiaries. The consolidated financial statements represent primarily the consolidation of all companies in which Capital Corporation has a controlling interest. Certain variable interest entities (VIEs) are consolidated since the Company has both the power to direct the activities that most significantly impact the VIEs’ economic performance and the obligation to absorb losses or the right to receive benefits that could potentially be significant to the VIEs. The Company records its investment in each unconsolidated affiliated company (generally 20 to 50 percent ownership) at its related equity in the net assets of such affiliate (see Note 24).
Fiscal Year
The Company uses a 52/53 week fiscal year ending on the last Sunday in the reporting period, which generally occurs in October. An additional week is included in the fourth fiscal quarter every five or six years to realign the Company’s fiscal quarters with the calendar. The fiscal year ends for 2021, 2020, and 2019 were October 31, 2021, November 1, 2020, and November 3, 2019, respectively. Fiscal years 2021 and 2020 contained 52 weeks compared to 53 weeks in fiscal year 2019. Unless otherwise stated, references to particular years or quarters refer to the Company’s fiscal years and the associated periods in those fiscal years.
Variable Interest Entities
The Company is the primary beneficiary of and consolidates certain VIEs that are special purpose entities (SPEs) related to the securitization of receivables. See Note 6 for more information on these SPEs.
Argentina
The Company has financial services operations in Argentina. The U.S. dollar has historically been the functional currency for the Company's Argentina operations, as its business is generally indexed to the U.S. dollar due to the highly
44
inflationary conditions. The Argentine government has certain capital and currency controls that restrict the Company's ability to access U.S. dollars in Argentina and remit earnings from its Argentine operations. As of October 31, 2021, the Company's net investment in Argentina was approximately $69.5 million. The Company's net investment in its Argentine operations is likely to increase as the business generates net income that is unable to be remitted and is required to meet the Argentina central bank’s minimum capital requirements. Revenues from the Company's Argentine operations represented approximately 3 percent of the Company's consolidated revenues for 2021. The net peso exposure as of October 31, 2021 was approximately $46.5 million. Argentine peso-denominated monetary assets and liabilities are remeasured at each balance sheet date using the official currency exchange rate.
Note 2. Summary of Significant Accounting Policies
The following are significant accounting policies in addition to those included in other Notes to the Consolidated Financial Statements.
Use of Estimates in Financial Statements
The preparation of financial statements in conformity with accounting principles generally accepted in the U.S. requires management to make estimates and assumptions that affect the reported amounts and related disclosures. The COVID pandemic has resulted in uncertainties in the Company’s business, which may result in actual outcomes differing from those estimates.
Revenue Recognition
Financing revenue is recorded over the lives of the related receivables using the interest method. Deferred costs on the origination of receivables are recognized as a reduction in finance revenue over the expected lives of the receivables using the interest method. Income and deferred costs on the origination of operating leases are recognized on a straight-line basis over the scheduled lease terms in lease revenue.
Receivables and Allowance for Credit Losses
Receivables are reported on the balance sheet at outstanding principal and accrued interest, adjusted for any write-offs and any unamortized deferred fees or costs on originated Receivables. The Company also records an allowance for credit losses and provision for credit losses related to the Receivables. The allowance represents an estimate of the credit losses expected over the life of the Receivable portfolio, and is measured on a collective basis when similar risk characteristics exist. Risk characteristics considered by the Company include product category, market, geography, credit risk, and remaining duration. Receivables that do not share risk characteristics with other receivables in the portfolio are evaluated on an individual basis. The Company utilizes loss forecast models, which are selected based on the size and credit risk of the underlying pool of receivables, to estimate expected credit losses. Transition matrix models are used for large and complex Customer Receivable pools, while weighted-average remaining maturity (WARM) models are used for smaller and less complex Customer Receivable pools. Expected credit losses on wholesale receivables are based on historical loss rates, with consideration of current economic conditions and dealer financial risk. The modeled expected credit losses are adjusted based on reasonable and supportable forecasts, which may include economic indicators such as commodity prices, industry equipment sales, unemployment rates, and housing starts. Management reviews each model’s output quarterly, and qualitative adjustments are incorporated as necessary. Receivables are written-off to the allowance when the account is considered uncollectible (see Note 5).
Securitization of Receivables
Certain financing receivables are periodically transferred to SPEs in securitization transactions (see Note 6). These securitizations qualify as collateral for secured borrowings and no gains or losses are recognized at the time of securitization. The receivables remain on the balance sheet and are classified as retail notes securitized. The Company recognizes finance income over the lives of these receivables using the interest method.
Depreciation
The Company estimates residual values of equipment on operating leases at the inception of the lease, and the equipment is depreciated over the lease terms to the estimated residual value using the straight-line method. The Company
45
reviews residual value estimates during the lease term and depreciation is adjusted prospectively on a straight-line basis over the remaining lease term if residual estimates are revised.
Impairment of Long-Lived Assets
The Company evaluates the carrying value of long-lived assets when events or circumstances warrant such a review. If the carrying value of the long-lived asset is considered impaired, a loss is recognized based on the amount by which the carrying value exceeds the fair value of the asset (see Notes 7 and 20).
Fees Paid to John Deere
Fees paid to John Deere include corporate support fees and interest on intercompany borrowings from John Deere based on approximate market rates.
Derivative Financial Instruments
The Company’s policy is that derivative transactions are executed only to manage exposures arising in the normal course of business and not for the purpose of creating speculative positions or trading. The Company manages the relationship of the types and amounts of its funding sources to its Receivable and Lease portfolios in an effort to diminish risk due to interest rate and foreign currency fluctuations, while responding to favorable financing opportunities. The Company also has foreign currency exposures at some of its foreign and domestic operations related to financing in currencies other than the functional currencies.
All derivatives are recorded at fair value on the balance sheet. Cash collateral received or paid is not offset against the derivative fair values on the balance sheet. Each derivative is designated as a cash flow hedge, fair value hedge, or remains undesignated. Changes in the fair value of derivatives that are designated and effective as cash flow hedges are recorded in other comprehensive income (OCI) and reclassified to the income statement when the effects of the item being hedged are recognized in the income statement. Changes in the fair value of derivatives that are designated and effective as fair value hedges are recognized currently in net income. These changes are offset in net income by fair value changes related to the risk being hedged on the hedged item. Changes in the fair value of undesignated hedges are recognized currently in the income statement.
All designated hedges are formally documented as to the relationship with the hedged item as well as the risk-management strategy. Both at inception and on an ongoing basis, the hedging instrument is assessed as to its effectiveness. If and when a derivative is determined not to be highly effective as a hedge, the underlying hedged transaction is no longer likely to occur, the hedge designation is removed, or the derivative is terminated, hedge accounting is discontinued (see Note 21).
Foreign Currency Translation
The functional currencies for most of the Company’s foreign operations are their respective local currencies. The assets and liabilities of these operations are translated into U.S. dollars at the end of the period exchange rates. The revenues and expenses are translated at weighted-average rates for the period. The gains or losses from these translations are recorded in OCI. Gains or losses from transactions denominated in a currency other than the functional currency of the subsidiary involved and foreign currency exchange derivative contracts are included in net income. The pretax net losses for foreign currency exchange in 2021 and 2020 were $14.9 million and $18.8 million, respectively. The pretax net gain for foreign currency exchange in 2019 was $3.9 million.
46
Note 3. New Accounting Standards
New Accounting Standards Adopted
In the first quarter of 2021, the Company adopted Financial Accounting Standards Board (FASB) Accounting Standards Update (ASU) No. 2016-13, Measurement of Credit Losses on Financial Instruments, which establishes Accounting Standards Codification (ASC) 326, Financial Instruments – Credit Losses. This ASU was adopted using a modified-retrospective approach. The ASU, along with related amendments, revised the measurement of credit losses for financial assets measured at amortized cost from an incurred loss to an expected loss methodology. The ASU affects receivables, debt securities, net investment in leases, and most other financial assets that represent a right to receive cash.
The Company holds deposits from dealers (dealer deposits), which are recorded in deposits withheld from dealers and merchants, to absorb certain credit losses. Prior to adopting this ASU, the allowance for credit losses was estimated on probable credit losses incurred after consideration of recoveries from dealer deposits. The ASU considers dealer deposits and certain credit insurance contracts as freestanding credit enhancements. As a result, after adoption, credit losses recovered from dealer deposits and certain credit insurance contracts are presented in other income and no longer as part of the allowance for credit losses or the provision for credit losses. The ASU also modified the treatment of the estimated write-off on delinquent receivables by no longer including the estimated benefit of charges to the dealer deposits in the write-off amount (see Note 5). This change increases the estimated write-offs on delinquent financing receivables with the benefit of credit losses recovered from dealer deposits presented in other income. This benefit, in both situations, is recorded when the dealer deposits are charged and no longer based on estimated recoveries.
The effects of adopting the ASU on the consolidated balance sheet were as follows (in millions of dollars):
Note 5 contains additional disclosures as well as the Company’s updated allowance for credit losses accounting policy.
The Company also adopted the following standards in 2021, none of which had a material effect on the Company’s consolidated financial statements:
|
|
Accounting Standards Updates |
|
No. 2018-15 |
Customer’s Accounting for Implementation Costs Incurred in a Cloud Computing Arrangement That Is a Service Contract, which amends ASC 350-40, Intangibles – Goodwill and Other – Internal-Use Software |
No. 2019-04 |
Codification Improvements to Topic 326, Financial Instruments – Credit Losses, Topic 815, Derivatives and Hedging, and Topic 825, Financial Instruments |
No. 2021-01 |
Reference Rate Reform (Topic 848): Scope |
47
New Accounting Standards to be Adopted
The Company will adopt the following standards in future periods, none of which are expected to have a material effect on the Company’s consolidated financial statements:
|
|
|
|
Accounting Standards Updates |
|
No. 2019-12 |
Simplifying the Accounting for Income Taxes, which amends ASC 740, Income Taxes |
No. 2020-08 |
Codification Improvements to Subtopic 310-20, Receivables – Nonrefundable Fees and Other Costs |
Note 4. Receivables
Retail Notes Receivable
The Company provides and administers financing for retail purchases of new agriculture and turf and construction and forestry equipment manufactured by John Deere, and used equipment taken in trade for this equipment. The Company generally purchases retail installment sales and loan contracts (retail notes) from John Deere. These retail notes are acquired by John Deere through John Deere retail dealers. The Company also purchases and finances a limited amount of retail notes unrelated to John Deere.
Retail notes receivable by market at October 31, 2021 and November 1, 2020 were as follows (in millions of dollars):
Retail notes acquired by the Company during 2021, 2020, and 2019, had an average original term (based on dollar weighted amounts) of 57 months, 57 months, and 56 months, respectively. Historically, because of prepayments, the average actual life of retail notes has been considerably shorter than the average original term. The average actual life for retail notes liquidated in 2021, 2020, and 2019 was 36 months, 38 months, and 40 months, respectively.
Gross retail note installments at October 31, 2021 and November 1, 2020 were scheduled to be received as follows (in millions of dollars):
48
Company guidelines relating to down payment requirements and contract terms on retail notes are generally as follows:
Finance income is recognized over the lives of the retail notes using the interest method. During 2021, the average effective yield on retail notes held by the Company was approximately 4.0 percent, compared with 4.7 percent in 2020 and 5.0 percent in 2019. Finance income on variable-rate retail notes is adjusted periodically based on the adjustment schedule and fluctuations in the applicable base rate specified in the respective contract. Net costs incurred in the acquisition of retail notes are deferred and recognized over the expected lives of the retail notes using the interest method.
A portion of the finance income earned by the Company arises from financing of retail sales of John Deere equipment on which finance charges are waived or reduced by John Deere for a period from the date of the retail sale to a specified subsequent date. The Company receives compensation from John Deere equal to competitive market interest rates for periods during which finance charges have been waived or reduced. The Company computes the compensation from John Deere for waived or reduced finance charges based on the Company’s estimated funding costs, administrative and operating expenses, credit losses, and required return on equity. The financing rate following the waiver or interest reduction period is not significantly different from the compensation rate from John Deere. During 2021, 2020, and 2019, the finance income earned from John Deere on retail notes containing waiver of finance charges or reduced rates was $325.0 million, $339.5 million, and $334.8 million, respectively.
A deposit is withheld by the Company on certain John Deere agriculture and turf equipment retail notes originating from dealers. Any subsequent retail note losses, subject to certain limitations by customer, are charged against the withheld deposits. At the end of each calendar quarter, the balance of each dealer’s withholding account in excess of a specified percent (ranging from one-half to three percent based on dealer qualifications) of the total balance outstanding on retail notes originating with that dealer is remitted to the dealer. Credit losses recovered from dealer deposits are presented in other income at the time the dealer deposits are charged. Prior to the adoption of ASU No. 2016-13, the benefit of credit losses recovered from dealer deposits was recognized in the provision for credit losses based on estimated recoveries. There is generally no withholding of dealer deposits on John Deere construction and forestry equipment retail notes.
The Company generally requires that theft and physical damage insurance be carried on all goods leased or securing retail notes and wholesale receivables. In certain markets, the customer may, at the customer’s own expense, have the Company or the seller of the goods purchase this insurance or obtain it from other sources.
Revolving Charge Accounts Receivable
Revolving charge account income is generated primarily by three revolving credit products: John Deere Financial Multi-Use Account, PowerPlanâ, and John Deere Financial Revolving Plan. John Deere Financial Multi-Use Account is primarily used by farmers and ranchers to finance parts and services from John Deere dealers, as well as crop inputs, such as seed, fertilizer, and crop protection from agribusiness merchants. Merchants, including agribusinesses and dealers, offer John Deere Financial Multi-Use Account as an alternative to carrying in-house accounts receivable and can initially sell existing balances to the Company under a recourse arrangement. John Deere Financial Multi-Use Account income includes a discount paid by merchants for transaction processing and support and finance charges paid by customers on their outstanding account balances. PowerPlanâ is primarily used by construction companies to finance parts and services. John
49
Deere construction and forestry dealers offer PowerPlanâ as an alternative to carrying in-house accounts receivable and can initially sell existing balances to the Company under a recourse arrangement. PowerPlanâ income includes a discount paid by dealers for transaction processing and support and finance charges paid by customers on their outstanding account balances. The John Deere Financial Revolving Plan is used primarily by retail customers of John Deere dealers to finance turf and utility equipment. Income includes a discount paid by dealers on most transactions and finance charges paid by customers on their outstanding account balances. Revolving charge account income is also generated through waiver of finance charges or reduced rates from John Deere and sponsoring merchants.
During 2021, 2020, and 2019, the finance income earned from John Deere on revolving charge accounts containing waiver of finance charges or reduced rates was $14.3 million, $15.2 million, and $14.1 million, respectively. Revolving charge accounts receivable at October 31, 2021 and November 1, 2020 totaled $3,740.1 million and $3,827.4 million, and were net of unearned interest income of $53.8 million and $58.9 million for the same periods, respectively. Generally, account holders may pay the account balance in full at any time or make payments over a number of months according to a payment schedule.
Wholesale Receivables
The Company also provides wholesale financing to dealers of John Deere agriculture and turf equipment and construction and forestry equipment, primarily to finance inventories of equipment for those dealers. Wholesale finance income related to these notes is generally recognized monthly based on the daily balance of wholesale receivables outstanding and the applicable effective interest rate. Interest rates vary with a bank base rate, the type of equipment financed, and the balance outstanding. Substantially all wholesale receivables are secured by equipment financed or other collateral. The average actual life for wholesale receivables is less than 12 months. Wholesale receivables at October 31, 2021 and November 1, 2020 totaled $5,951.3 million and $7,093.3 million, respectively.
The Company purchases certain wholesale trade receivables from John Deere, which are included within the wholesale receivable balances above. These trade receivables arise from John Deere’s sales of goods to independent dealers. Under the terms of the sales to dealers, interest is primarily charged to dealers on outstanding balances, from the earlier of the date when goods are sold to retail customers by the dealer or the expiration of certain interest-free periods granted at the time of the sale to the dealer, until payment is received by the Company. Dealers cannot cancel purchases after John Deere recognizes a sale and are responsible for payment even if the equipment is not sold to retail customers. The interest-free periods are determined based on the type of equipment sold and the time of year of the sale. These periods range from one to twelve months for most equipment. Interest-free periods may not be extended. Interest charged may not be forgiven and the past due interest rates exceed market rates. The Company receives compensation from John Deere at approximate market interest rates for these interest-free periods. The Company computes the compensation from John Deere for interest-free periods based on the Company’s estimated funding costs, administrative and operating expenses, credit losses, and required return on equity. During 2021, 2020, and 2019, the compensation earned from John Deere on wholesale receivables for waiver of finance charges or reduced rates was $197.9 million, $228.8 million, and $320.0 million, respectively.
Financing Leases
The Company leases agriculture and turf equipment and construction and forestry equipment directly to retail customers. Leases classified as sales-type or direct financing leases are reported in financing leases on the consolidated balance sheet. See Note 7 to the Consolidated Financial Statements for detailed disclosures related to financing leases.
Concentration of Credit Risk
Receivables have significant concentrations of credit risk in the agriculture and turf and construction and forestry markets as shown in the previous tables. On a geographic basis, there is not a disproportionate concentration of credit risk in any area. The Company generally secures its Receivables, other than certain revolving charge accounts, by retaining as collateral a security interest in the goods associated with those Receivables or with the use of other collateral.
50
Note 5. Allowance for Credit Losses and Credit Quality of Receivables
Credit Quality
The Company monitors the credit quality of Receivables based on delinquency status. Past due balances of Receivables still accruing finance income represent the total balance held (principal plus accrued interest) with any payment amounts 30 days or more past the contractual payment due date. Non-performing Receivables represent receivables for which the Company has ceased accruing finance income. Generally, when retail notes, revolving charge accounts, and financing lease accounts are 90 days delinquent, accrual of finance income and lease revenue is suspended, and accrued finance income and lease revenue previously recognized is reversed. Generally, when a wholesale receivable becomes 60 days delinquent, the Company determines whether the accrual of finance income on interest-bearing wholesale receivables should be suspended and whether accrued finance income previously recognized should be reversed. During 2021, $12.4 million of accrued finance income and lease revenue was reversed on non-performing Receivables. Finance income and lease revenue for non-performing Receivables is recognized on a cash basis. Accrual of finance income and lease revenue is generally resumed when the receivable becomes contractually current and collections are reasonably assured. Finance income and lease revenue of $17.1 million was recognized from cash payments on non-performing Receivables during 2021.
Receivable balances are written off to the allowance for credit losses when, in the judgment of management, they are considered uncollectible. Generally, when retail notes and financing lease accounts are 120 days delinquent, the collateral is repossessed or the account is designated for litigation, and the estimated uncollectible amount from the customer is written off to the allowance for credit losses. Revolving charge accounts are generally deemed to be uncollectible and written off to the allowance for credit losses when delinquency reaches 120 days. Generally, when a wholesale account becomes 60 days delinquent, the Company determines whether the collateral should be repossessed or the account designated for litigation, and the estimated uncollectible amount is written off to the allowance for credit losses.
Due to the economic effects of COVID, the Company provided short-term payment relief to dealers and retail customers during 2020, and to a much lesser extent in 2021. The relief was provided in regional programs and on a case-by-case basis with customers that were generally current in their payment obligations. This relief generally included payment deferrals or reduced financing rates of three months or less. Receivables granted relief since the beginning of the pandemic that remained outstanding at October 31, 2021 represented approximately 2 percent of the Receivables balance. The majority of Receivables granted short-term relief are beyond the deferral period and have either resumed making payments or are reported as delinquent based on the modified payment schedule.
The credit quality analysis of retail notes, financing leases, and revolving charge accounts (collectively, Customer Receivables) at October 31, 2021 was as follows (in millions of dollars):
51
The credit quality analysis of Customer Receivables at November 1, 2020 was as follows (in millions of dollars):
The credit quality analysis of wholesale receivables at October 31, 2021 was as follows (in millions of dollars):
52
The credit quality analysis of wholesale receivables at November 1, 2020 was as follows (in millions of dollars):
Allowance for Credit Losses
The allowance for credit losses is an estimate of the credit losses expected over the life of the Company’s Receivable portfolio. The Company measures expected credit losses on a collective basis when similar risk characteristics exist. Risk characteristics considered by the Company include product category, market, geography, credit risk, and remaining duration. Receivables that do not share risk characteristics with other receivables in the portfolio are evaluated on an individual basis. Non-performing Receivables are included in the estimate of expected credit losses.
The Company utilizes loss forecast models, which are selected based on the size and credit risk of the underlying pool of receivables, to estimate expected credit losses. Transition matrix models are used for large and complex Customer Receivable pools, while WARM models are used for smaller and less complex Customer Receivable pools. Transition matrix models, which are used for the majority of the Customer Receivables, estimate credit losses using historical delinquency and default information to assign probabilities that a receivable will pay as contractually scheduled or become delinquent and advance through the various delinquency stages. The model simulates the runoff of the portfolio, month-by-month, over the life of the receivables until the balances are fully repaid or default, using roll rates applied to the outstanding portfolio. The roll rates are applied based on the delinquency status of the customer accounts and are further segmented based on the credit risk and remaining duration of the underlying receivables. Estimated recovery rates are applied to the balance at default to calculate the expected credit losses. The modeled expected credit losses are adjusted based on reasonable and supportable forecasts, which may include economic indicators such as commodity prices, industry equipment sales, unemployment rates, and housing starts. The WARM models apply historical average annual loss rates, adjusted for current and forecasted economic conditions, to the projected portfolio runoff. Expected credit losses on wholesale receivables are based on historical loss rates, with consideration of current economic conditions and dealer financial risk, along with reasonable and supportable forecasts. Management reviews each model’s output quarterly, and qualitative adjustments are incorporated as necessary.
Recoveries from freestanding credit enhancements, such as dealer deposits and certain credit insurance contracts, are not included in the estimate of expected credit losses. Recoveries from dealer deposits are recognized in other income on the statement of consolidated income when the dealer’s withholding account is charged. During the year ended October 31, 2021, $14.3 million was recorded in other income related to recoveries from freestanding credit enhancements. Prior to the adoption of ASU No. 2016-13, the allowance for credit losses was estimated on probable credit losses incurred after consideration of expected recoveries from freestanding credit enhancements.
53
An analysis of the allowance for credit losses and investment in Receivables at October 31, 2021, November 1, 2020, and November 3, 2019 was as follows (in millions of dollars):
* Excludes provision for credit losses on unfunded commitments of $1.8 million for the year ended October 31, 2021. The estimated credit losses related to unfunded commitments are recorded in accounts payable and accrued expenses on the consolidated balance sheet.
As a result of the adoption of ASU No. 2016-13, the allowance for credit losses increased $19.7 million at the beginning of 2021. Subsequent to the adoption of ASU No. 2016-13, the allowance decreased $19.8 million during 2021, primarily due to a reduction in the allowance on construction and forestry retail notes and financing leases and a lower allowance on revolving charge accounts. The allowance on construction and forestry retail notes and financing leases decreased due to improving market conditions and better than expected performance of accounts granted payment relief due to the economic effects of COVID, while the allowance on revolving charge accounts was favorably impacted by
54
strong payment performance due to continued improvements in the agriculture and turf market. These decreases were partially offset by growth in the retail notes and financing leases portfolio. During 2020, the allowance for credit losses increased primarily due to the negative economic effects related to COVID and other macroeconomic issues, which significantly affected certain retail borrowers, particularly of construction equipment.
Total Receivables 30 days or more past due, non-performing Receivables, and the allowance for credit losses were as follows (in millions of dollars and as a percentage of the Receivables balance):
* The delinquency status of Receivables granted payment relief due to COVID is based on the modified payment schedule.
At October 31, 2021 and November 1, 2020, the Company had $128.8 million and $110.1 million, respectively, of deposits primarily withheld from John Deere dealers and merchants available as credit enhancements.
Troubled Debt Restructuring
A troubled debt restructuring is generally the modification of debt in which a creditor grants a concession it would not otherwise consider to a debtor that is experiencing financial difficulties. These modifications may include a reduction of the stated interest rate, an extension of the maturity date, a reduction of the face amount or maturity amount of the debt, or a reduction of accrued interest. During 2021, 2020, and 2019, the Company identified 326, 468, and 328 Receivable contracts, primarily retail notes, as troubled debt restructurings with aggregate balances of $12.0 million, $19.0 million, and $14.6 million pre-modification and $10.7 million, $17.4 million, and $13.7 million post-modification, respectively. The short-term relief related to COVID previously discussed did not meet the definition of a troubled debt restructuring. In 2021, 2020 and 2019, there were no significant troubled debt restructurings that subsequently defaulted and were written off. At October 1, 2021, the Company had no commitments to provide additional financing to customers whose accounts were modified in troubled debt restructurings.
55
Write-offs
Total write-offs and recoveries, by product, and as a percentage of average balances held during the year, were as follows (in millions of dollars):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
|
2019 |
|
|||||||||
|
|
Dollars |
|
Percent |
|
Dollars |
|
Percent |
|
Dollars |
|
Percent |
|
|||
Write-offs: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Retail notes & financing leases: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Agriculture and turf |
|
$ |
(18.6) |
|
(.09) |
% |
$ |
(15.2) |
|
(.09) |
% |
$ |
(9.9) |
|
(.06) |
% |
Construction and forestry |
|
|
(18.1) |
|
(.42) |
|
|
(33.9) |
|
(.94) |
|
|
(21.2) |
|
(.65) |
|
Total retail notes & financing leases |
|
|
(36.7) |
|
(.15) |
|
|
(49.1) |
|
(.24) |
|
|
(31.1) |
|
(.15) |
|
Revolving charge accounts |
|
|
(27.8) |
|
(.85) |
|
|
(51.6) |
|
(1.51) |
|
|
(56.9) |
|
(1.65) |
|
Wholesale receivables |
|
|
(.3) |
|
|
|
|
(.9) |
|
(.01) |
|
|
(.3) |
|
|
|
Total write-offs |
|
|
(64.8) |
|
(.19) |
|
|
(101.6) |
|
(.31) |
|
|
(88.3) |
|
(.27) |
|
Recoveries: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Retail notes & financing leases: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Agriculture and turf |
|
|
9.2 |
|
.05 |
|
|
4.6 |
|
.03 |
|
|
6.1 |
|
.04 |
|
Construction and forestry |
|
|
2.4 |
|
.06 |
|
|
1.8 |
|
.05 |
|
|
1.5 |
|
.05 |
|
Total retail notes & financing leases |
|
|
11.6 |
|
.05 |
|
|
6.4 |
|
.03 |
|
|
7.6 |
|
.04 |
|
Revolving charge accounts |
|
|
35.5 |
|
1.08 |
|
|
29.5 |
|
.86 |
|
|
25.3 |
|
.73 |
|
Wholesale receivables |
|
|
|
|
|
|
|
1.3 |
|
.02 |
|
|
4.1 |
|
.04 |
|
Total recoveries |
|
|
47.1 |
|
.14 |
|
|
37.2 |
|
.11 |
|
|
37.0 |
|
.11 |
|
Total net write-offs |
|
$ |
(17.7) |
|
(.05) |
% |
$ |
(64.4) |
|
(.20) |
% |
$ |
(51.3) |
|
(.16) |
% |
Note 6. Securitization of Receivables
The Company, as a part of its overall funding strategy, periodically transfers certain Receivables (retail notes) into VIEs that are SPEs, or non-VIE banking operations, as part of its asset-backed securities programs (securitizations). The structure of these transactions is such that the transfer of the retail notes does not meet the accounting criteria for sales of receivables, and is, therefore, accounted for as a secured borrowing. SPEs utilized in securitizations of retail notes differ from other entities included in the Company’s consolidated statements because the assets they hold are legally isolated. Use of the assets held by the SPEs or the non-VIEs is restricted by terms of the documents governing the securitization transactions.
In these securitizations, the retail notes are transferred to certain SPEs, which in turn issue debt to investors, or to non-VIE banking operations, which provide funding directly to the Company. The funding provided by these third parties result in secured borrowings, which are recorded as “Securitization borrowings” on the consolidated balance sheet. The securitized retail notes are recorded as “Retail notes securitized” on the consolidated balance sheet. The total restricted assets on the consolidated balance sheet related to these securitizations include the retail notes securitized less an allowance for credit losses, and other assets primarily representing restricted cash. Restricted cash results from contractual requirements in securitized borrowing arrangements and serves as a credit enhancement. The restricted cash is used to satisfy payment deficiencies, if any, in the required payments on secured borrowings. The balance of restricted cash is contractually stipulated and is either a fixed amount as determined by the initial balance of the retail notes securitized or a fixed percentage of the outstanding balance of the retail notes securitized. The restriction is removed either after all secured borrowing payments are made or proportionally as these receivables are collected and borrowing obligations reduced. For those securitizations in which retail notes are transferred into SPEs, the SPEs supporting the secured borrowings are consolidated unless the Company does not have both the power to direct the activities that most significantly impact the SPEs’ economic performance and the obligation to absorb losses or the right to receive benefits that could potentially be significant to the SPEs. No additional support to these SPEs beyond what was previously contractually required has been provided during the reporting periods.
56
In certain securitizations, the Company consolidates the SPEs since it has both the power to direct the activities that most significantly impact the SPEs’ economic performance through its role as servicer of all the Receivables held by the SPEs, and the obligation through variable interests in the SPEs to absorb losses or receive benefits that could potentially be significant to the SPEs. The restricted assets (retail notes securitized, allowance for credit losses, and other assets) of the consolidated SPEs totaled $3,093.6 million and $2,897.5 million at October 31, 2021 and November 1, 2020, respectively. The liabilities (securitization borrowings and accrued interest) of these SPEs totaled $3,024.0 million and $2,856.2 million at October 31, 2021 and November 1, 2020, respectively. The credit holders of these SPEs do not have legal recourse to the Company’s general credit.
The Company has a revolving credit agreement to utilize bank conduit facilities to secure retail notes, described further in the following paragraphs. At October 31, 2021, the revolving credit agreement had a total capacity, or “financing limit,” of up to $2,000.0 million of secured financings at any time. The agreement was renewed in November 2021 with an expiration in November 2022 and a capacity of $1,000.0 million. As a result of the reduced capacity, the Company repurchased $511.1 million of outstanding short-term securitization borrowings in November 2021, in addition to the normal monthly liquidations as a result of payments collected on the retail notes.
Through the revolving credit agreement, the Company transfers retail notes into bank-sponsored, multi-seller, commercial paper conduits, which are SPEs that are not consolidated. The Company does not service a significant portion of the conduits’ receivables, and therefore, does not have the power to direct the activities that most significantly impact the conduits’ economic performance. These conduits provide a funding source to the Company (as well as other transferors into the conduit) as they fund the retail notes through the issuance of commercial paper. The Company’s carrying values and variable interest related to these conduits were restricted assets (retail notes securitized, allowance for credit losses, and other assets) of $1,175.8 million and $1,327.3 million at October 31, 2021 and November 1, 2020, respectively. The liabilities (securitization borrowings and accrued interest) related to these conduits were $1,112.8 million and $1,275.1 million at October 31, 2021 and November 1, 2020, respectively.
The Company’s carrying amount of the liabilities to the unconsolidated conduits, compared to the maximum exposure to loss related to these conduits, which would only be incurred in the event of a complete loss on the restricted assets at October 31, 2021 was as follows (in millions of dollars):
|
|
|
|
|
|
|
2021 |
|
|
Carrying value of liabilities |
|
$ |
1,112.8 |
|
Maximum exposure to loss |
|
|
1,175.8 |
|
The total assets of the unconsolidated conduits related to securitizations were approximately $40 billion at October 31, 2021.
In addition, through the revolving credit agreement, the Company transfers retail notes to banks, which may elect to fund the retail notes through the use of their own funding sources. These non-VIE banking operations are not consolidated since the Company does not have a controlling interest in them. The Company’s carrying values and interests related to the securitizations with the unconsolidated non-VIEs were restricted assets (retail notes securitized, allowance for credit losses, and other assets) of $486.1 million and $549.7 million at October 31, 2021 and November 1, 2020, respectively. The liabilities (securitization borrowings and accrued interest) were $460.1 million and $528.1 million at October 31, 2021 and November 1, 2020, respectively.
The components of consolidated restricted assets related to secured borrowings in securitization transactions at October 31, 2021 and November 1, 2020 were as follows (in millions of dollars):
57
The components of consolidated secured borrowings and other liabilities related to securitizations at October 31, 2021 and November 1, 2020 were as follows (in millions of dollars):
The secured borrowings related to these restricted securitized retail notes are obligations that are payable as the retail notes are liquidated. Repayment of the secured borrowings depends primarily on cash flows generated by the restricted assets. Due to the Company’s short-term credit rating, cash collections from these restricted assets are not required to be placed into a segregated collection account until immediately prior to the time payment is required to the secured creditors. At October 31, 2021, the maximum remaining term of all restricted securitized retail notes was approximately seven years.
Note 7. Leases
The Company leases John Deere equipment and a limited amount of non-John Deere equipment to retail customers through sales-type, direct financing, and operating leases. Sales-type and direct financing leases are reported in financing leases on the consolidated balance sheet. Operating leases are reported in equipment on operating leases – net on the consolidated balance sheet.
Initial lease terms generally range from less than one year to seven years. Leases offered by the Company may include early termination and renewal options. At the end of a lease, the lessee generally has the option to purchase the underlying equipment for a fixed price or return it to the dealer. If the equipment is returned to the dealer, the dealer also has the option to purchase the equipment or return it to the Company for remarketing.
The Company has elected to combine lease and nonlease components. The nonlease components primarily relate to preventative maintenance and extended warranty agreements financed by the customer. The Company has also elected to report consideration related to sales and value-added taxes net of the related tax expense. Property taxes on leased assets are recorded on a gross basis in lease revenues and administrative and operating expenses on the statement of consolidated income. Variable lease revenues primarily relate to separately invoiced property taxes on leased equipment in certain markets, late fees, and excess use and damage fees.
Lease revenues earned by the Company were as follows (in millions of dollars):
Variable lease revenues reported above includes excess use and damage fees of $6.5 million and $8.2 million for 2021 and 2020, respectively, which were reported in other income on the statement of consolidated income.
Deposits withheld from John Deere dealers and related credit losses on leases are handled in a manner similar to the procedures for retail notes. As with retail notes, there are generally no deposits withheld from dealers on leases related to construction and forestry equipment. In addition, a lease payment discount program, allowing reduced payments over the term of the lease, is administered in a manner similar to finance waivers on retail notes (see Note 4). During 2021, 2020, and 2019, the finance income earned from John Deere on sales-type and direct financing leases containing waiver of finance charges or reduced rates was $3.7 million, $3.3 million, and $3.5 million, respectively. The operating lease revenue earned from John Deere during 2021, 2020, and 2019 was $47.1 million, $57.2 million, and $42.9 million, respectively.
58
Financing Leases
Sales-type and direct financing lease receivables by market at October 31, 2021 and November 1, 2020 were as follows (in millions of dollars):
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
||
Agriculture and turf |
|
$ |
500.8 |
|
$ |
447.5 |
Construction and forestry |
|
|
168.2 |
|
|
152.7 |
Total |
|
|
669.0 |
|
|
600.2 |
Guaranteed residual values |
|
|
359.7 |
|
|
240.8 |
Unguaranteed residual values |
|
|
33.7 |
|
|
32.6 |
Unearned finance income |
|
|
(90.1) |
|
|
(84.2) |
Financing leases receivable |
|
$ |
972.3 |
|
$ |
789.4 |
At the time of accepting a lease that qualifies as a sales-type or direct financing lease, the Company records the gross amount of lease payments receivable, estimated residual value of the leased equipment, and unearned finance income. The unearned finance income is recognized as revenue over the lease term using the interest method.
Scheduled payments, including guaranteed residual values, on sales-type and direct financing lease receivables at October 31, 2021 were as follows (in millions of dollars):
|
|
|
|
Due in: |
|
|
|
2022 |
|
$ |
522.9 |
2023 |
|
|
222.0 |
2024 |
|
|
151.1 |
2025 |
|
|
82.7 |
2026 |
|
|
37.8 |
Later years |
|
|
12.2 |
Total |
|
$ |
1,028.7 |
Operating Leases
The cost of equipment on operating leases by market at October 31, 2021 and November 1, 2020 was as follows (in millions of dollars):
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
||
Agriculture and turf |
|
$ |
5,053.4 |
|
$ |
5,210.4 |
Construction and forestry |
|
|
1,323.6 |
|
|
1,595.3 |
Total |
|
|
6,377.0 |
|
|
6,805.7 |
Accumulated depreciation |
|
|
(1,429.4) |
|
|
(1,507.9) |
Equipment on operating leases - net |
|
$ |
4,947.6 |
|
$ |
5,297.8 |
Lease payments from equipment on operating leases are recorded as income on a straight-line method over the lease term. Operating lease assets are recorded at cost and depreciated to their estimated residual value on a straight-line method over the term of the leases. Lease agreements include usage limits and specifications on machine condition, which allow the Company to assess lessees for excess use or damages to the underlying equipment.
59
Lease payments for equipment on operating leases at October 31, 2021 were scheduled as follows (in millions of dollars):
|
|
|
|
Due in: |
|
|
|
2022 |
|
$ |
685.6 |
2023 |
|
|
434.9 |
2024 |
|
|
229.7 |
2025 |
|
|
106.5 |
2026 |
|
|
23.5 |
Later years |
|
|
4.0 |
Total |
|
$ |
1,484.2 |
The Company estimates the residual values for operating leases at lease inception based on several factors, including lease term, expected hours of usage, historical wholesale sale prices, return experience, intended use of the equipment, market dynamics and trends, and third-party residual guarantees. The Company reviews residual value estimates during the lease term and tests the carrying value of its operating lease assets for impairment when events or circumstances necessitate. The depreciation is adjusted prospectively on a straight-line basis over the remaining lease term if residual value estimates are revised. There were no impairment losses on operating leases recorded during 2021. During 2020, the Company recorded impairment losses on operating leases of $21.0 million due to higher expected return rates and lower estimated values of used construction equipment. During 2019, the Company recorded impairment losses on operating leases of $59.4 million due to lower estimated values of used agriculture and construction equipment. Operating lease impairments are recorded in administrative and operating expenses on the statement of consolidated income.
The total operating lease residual values at October 31, 2021 and November 1, 2020 were $3,547.6 million and $3,826.3 million, respectively. Certain operating leases are subject to residual value guarantees. The total residual value guarantees were $295.8 million and $141.0 million at October 31, 2021 and November 1, 2020, respectively. The increase in residual value guarantees is primarily due to guarantees provided by John Deere dealers, which generally provide a first-loss residual value guarantee on operating lease originations effective after January 2020. The residual value guarantees at October 31, 2021 and November 1, 2020 include $3.0 million and $4.7 million, respectively, of deposits withheld from John Deere dealers, which are available for potential losses on residual values.
The Company discusses with lessees and dealers options to purchase the equipment or extend the lease prior to lease maturity. Equipment returned to the Company upon termination of leases is remarketed by the Company. The matured operating lease inventory balances at October 31, 2021 and November 1, 2020 were $25.4 million and $64.5 million, respectively. Matured operating lease inventory is reported in other assets on the consolidated balance sheet. During 2020, the Company recorded impairment losses on matured operating lease inventory of $9.8 million due to lower estimated values of used construction equipment. During 2019, the Company recorded impairment losses on matured operating lease inventory of $18.0 million. There were no impairment losses on matured operating lease inventory in 2021. Impairment losses on matured operating lease inventory are included in administrative and operating expenses on the statement of consolidated income.
Past due balances of operating leases represent the total balance held (net book value plus accrued lease payments) and still accruing finance income with any payment amounts 30 days or more past the contractual payment due date. These amounts were $53.9 million and $61.3 million at October 31, 2021 and November 1, 2020, respectively. The delinquency status of operating leases granted relief due to COVID, as described below, is based on the modified payment schedule.
Due to the economic effects of COVID, the Company provided short-term payment relief to lessees during 2020, and to a much lesser extent in 2021. The relief, which generally included payment deferrals of three months or less, was provided in regional programs and on a case-by-case basis with customers that were generally current in their payment obligations. The operating leases granted relief since the beginning of the pandemic that remained outstanding at October 31, 2021 represented approximately 2 percent of the Company’s operating lease portfolio. The majority of operating leases granted short-term relief are beyond the deferral period and have resumed making payments.
60
Note 8. Notes Receivable from and Payable to John Deere
The Company makes loans to affiliated companies. The Company receives interest from John Deere at competitive market interest rates. The lending agreements mature over the next seven years. Interest earned from John Deere was $15.4 million, $16.6 million, and $17.4 million in 2021, 2020, and 2019, respectively, which is recorded in other income.
The Company had notes receivable from John Deere at October 31, 2021 and November 1, 2020 with the following affiliated companies as follows (in millions of dollars):
The Company also obtains funding from affiliated companies. At October 31, 2021 and November 1, 2020, the Company had notes payable to John Deere of $5,619.4 million and $5,249.5 million, respectively. The intercompany borrowings are primarily short-term in nature or contain a due on demand call option. At October 31, 2021, the Company had $584.0 million of long-term intercompany loans without a due on demand call option, which mature in 2024. The Company pays interest to John Deere for these borrowings based on competitive market rates. The weighted-average interest rates on total intercompany borrowings at October 31, 2021 and November 1, 2020 were 1.2 percent and .7 percent, respectively. Interest expense paid to John Deere was $53.0 million, $18.1 million, and $17.0 million in 2021, 2020, and 2019, respectively, which is recorded in fees paid to John Deere.
Note 9. Short-Term External Borrowings
Short-term external borrowings of the Company at October 31, 2021 and November 1, 2020 consisted of the following (in millions of dollars):
|
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
|
||
Commercial paper and other notes payable |
|
$ |
678.9 |
|
$ |
187.5 |
|
Securitization borrowings |
|
|
4,595.2 |
|
|
4,656.2 |
|
Current maturities of long-term external borrowings * |
|
|
5,819.1 |
|
|
5,741.6 |
|
Total |
|
$ |
11,093.2 |
|
$ |
10,585.3 |
|
* Includes unamortized fair value adjustments related to interest rate swaps.
Securitization borrowings are secured by retail notes securitized on the balance sheet (see Note 6) and presented net of debt acquisition costs. Although these securitization borrowings are classified as short-term since payment is required if the retail notes are liquidated early, the expected payment schedule for these borrowings at October 31, 2021 based on the expected liquidation of the retail notes in millions of dollars is as follows: 2022 - $2,546.1, 2023 - $1,149.9, 2024 -$623.1, 2025 - $231.1, 2026 - $44.3, and later years - $6.5. The weighted-average interest rates on total short-term external borrowings, excluding current maturities of long-term external borrowings, at October 31, 2021 and November 1, 2020, were .8 percent and 1.6 percent, respectively.
Lines of credit available from U.S. and foreign banks were $8,016.0 million at October 31, 2021. Some of these credit lines are available to both the Company and Deere & Company. At October 31, 2021, $5,770.3 million of these worldwide lines of credit were unused. For the purpose of computing the unused credit lines, commercial paper and short-term bank borrowings, excluding secured borrowings and the current portion of long-term external borrowings, of the Company and John Deere were primarily considered to constitute utilization. Included in the total credit lines at October 31, 2021 was a 364-day credit facility agreement of $3,000.0 million, expiring in fiscal April 2022. In addition, total credit lines included long-term credit facility agreements of $2,500.0 million, expiring in fiscal April 2025, and $2,500.0 million, expiring in fiscal March 2026. The agreements are mutually extendable and the annual facility fees are not significant. These credit agreements require the Company to maintain its consolidated ratio of earnings to fixed charges at not less than 1.05 to 1 for each fiscal quarter and the ratio of senior debt, excluding securitization indebtedness, to capital
61
base (total subordinated debt and stockholder’s equity excluding accumulated other comprehensive income (loss)) at not more than 11 to 1 at the end of any fiscal quarter. “Senior debt” consists of the Company’s total interest-bearing obligations, excluding subordinated debt and certain securitization indebtedness, but including notes payable to John Deere. All of the requirements of the credit agreements have been met during the periods included in the consolidated financial statements. The facility fees on these lines of credit are divided between Deere & Company and the Company based on the proportion of their respective forecasted liquidity requirements.
Deere & Company has an agreement with Capital Corporation pursuant to which it has agreed to continue to own, directly or through one or more wholly-owned subsidiaries, at least 51 percent of the voting shares of capital stock of Capital Corporation and to maintain the Company’s consolidated tangible net worth at not less than $50.0 million. This agreement also obligates Deere & Company to make payments to Capital Corporation such that its consolidated ratio of earnings to fixed charges is not less than 1.05 to 1 for each fiscal quarter. Deere & Company’s obligations to make payments to Capital Corporation under the agreement are independent of whether the Company is in default on its indebtedness, obligations, or other liabilities. Further, Deere & Company’s obligations under the agreement are not measured by the amount of the Company’s indebtedness, obligations, or other liabilities. Deere & Company’s obligations to make payments under this agreement are expressly stated not to be a guaranty of any specific indebtedness, obligation, or liability of the Company and are enforceable only by or in the name of Capital Corporation. No payments were required under this agreement during the periods included in the consolidated financial statements. At October 31, 2021, Deere & Company indirectly owned 100 percent of the voting shares of Capital Corporation’s capital stock and Capital Corporation’s consolidated tangible net worth was $4,524.4 million.
Note 10. Long-Term External Borrowings
Long-term external borrowings of the Company at October 31, 2021 and November 1, 2020 consisted of the following (in millions of dollars):
|
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
|
||
Senior Debt: |
|
|
|
|
|
|
|
Medium-term notes |
|
$ |
20,649.2 |
|
$ |
19,320.6 |
|
Other notes |
|
|
15.6 |
|
|
38.2 |
|
Total senior debt |
|
|
20,664.8 |
|
|
19,358.8 |
|
Unamortized debt discount and debt issuance costs |
|
|
(57.5) |
|
|
(47.7) |
|
Total |
|
$ |
20,607.3 |
|
$ |
19,311.1 |
|
The medium-term notes in the table above include unamortized fair value adjustments related to interest rate swaps. The principal balance of the medium-term notes was $20,378.2 million and $18,668.9 million at October 31, 2021 and November 1, 2020, respectively, and have maturity dates through 2031. The weighted-average interest rate of medium-term notes at October 31, 2021 and November 1, 2020 was 1.1 percent and 1.6 percent, respectively, and includes both fixed and variable rates. The principal amounts of long-term external borrowings maturing in each of the next five years, in millions of dollars, are as follows: 2022 - $5,820.8, 2023 - $5,969.3, 2024 - $4,999.4, 2025 - $1,775.1, and 2026 - $2,800.0.
Note 11. Capital Stock
All of Capital Corporation’s common stock is owned by JDFS, a wholly-owned finance holding subsidiary of Deere & Company. No shares of common stock of Capital Corporation were reserved for officers or employees or for options, warrants, conversions, or other rights at October 31, 2021 or November 1, 2020. At October 31, 2021 and November 1, 2020, Capital Corporation had authorized, but not issued, 10,000 shares of $1 par value preferred stock.
Note 12. Dividends
In 2021, 2020, and 2019, Capital Corporation declared and paid cash dividends of $485.0 million, $275.0 million, and $330.0 million, respectively, to JDFS. In each case, JDFS paid comparable dividends to Deere & Company.
62
Note 13. Pension and Other Postretirement Benefits
The Company is a participating employer in certain Deere & Company sponsored defined benefit pension plans for employees in the U.S. and certain defined benefit pension plans outside the U.S. These pension plans provide for benefits that are based primarily on years of service and employee compensation. Pension expense is actuarially determined based on the Company’s employees included in the plan. The Company’s pension expense was not significant in 2021, 2020, or 2019. The accumulated benefit obligation and plan net assets for the employees of the Company are not determined separately from Deere & Company. The Company provides defined benefit health care and life insurance plans for certain retired employees in the U.S. as a participating employer in Deere & Company’s sponsored plans. Health care and life insurance benefits expense is actuarially determined based on the Company’s employees included in the plans and amounted to $6.1 million in 2021, $12.3 million in 2020, and $4.3 million in 2019. The decrease in 2021 from 2020 is primarily due to curtailment losses of $5.5 million in 2020 related to voluntary employee-separation programs (see Note 22). Further disclosure for these plans is included in the notes to the Deere & Company 2021 Annual Report on Form 10-K.
The Company is a participating employer in certain Deere & Company sponsored defined contribution plans related to employee investment and savings plans primarily in the U.S. The Company’s contributions and costs under these plans were $11.8 million in 2021, $10.7 million in 2020, and $13.2 million in 2019. The contribution rate varies primarily based on Deere & Company’s performance in the prior year and employee participation in the plans.
Note 14. Stock Option and Restricted Stock Awards
Certain employees of the Company participate in Deere & Company share-based compensation plans. During 2021, 2020, and 2019, the total share-based compensation expense was $6.3 million, $6.2 million, and $6.9 million, respectively, with an income tax benefit recognized in net income of $1.5 million, $1.4 million, and $1.7 million, respectively. Further disclosure for these plans is included in the notes to the Deere & Company 2021 Annual Report on Form 10-K.
Note 15. Income Taxes
The provision for income taxes by taxing jurisdiction and by significant component consisted of the following (in millions of dollars):
|
|
|
|
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
|
2019 |
|
|||
Current: |
|
|
|
|
|
|
|
|
|
|
U.S.: |
|
|
|
|
|
|
|
|
|
|
Federal |
|
$ |
231.4 |
|
$ |
273.2 |
|
$ |
351.1 |
|
State |
|
|
15.2 |
|
|
9.0 |
|
|
1.9 |
|
Foreign |
|
|
37.2 |
|
|
27.5 |
|
|
29.0 |
|
Total current |
|
|
283.8 |
|
|
309.7 |
|
|
382.0 |
|
|
|
|
|
|
|
|
|
|
|
|
Deferred: |
|
|
|
|
|
|
|
|
|
|
U.S.: |
|
|
|
|
|
|
|
|
|
|
Federal |
|
|
(69.7) |
|
|
(179.1) |
|
|
(279.9) |
|
State |
|
|
2.2 |
|
|
(4.1) |
|
|
(.6) |
|
Foreign |
|
|
(15.8) |
|
|
7.6 |
|
|
(6.0) |
|
Total deferred |
|
|
(83.3) |
|
|
(175.6) |
|
|
(286.5) |
|
Provision for income taxes |
|
$ |
200.5 |
|
$ |
134.1 |
|
$ |
95.5 |
|
The taxable income of the Company is included in the consolidated U.S. income tax return of Deere & Company. Under a tax sharing agreement with Deere & Company, the Company’s provision for income taxes is generally recorded as if Capital Corporation and each of its subsidiaries filed separate income tax returns, with a modification for realizability of certain tax benefits. The difference between the provision for income taxes recorded by the Company and the provision for income taxes calculated on an unmodified, separate return basis was not material in 2021, 2020, or 2019.
63
The amounts payable to Deere & Company under the tax sharing agreement at October 31, 2021 and November 1, 2020 were $9.6 million and $42.9 million, respectively. The tax sharing payable is included in accounts payable and accrued expenses on the consolidated balance sheet.
A comparison of the statutory and effective income tax provision and reasons for related differences follows (in millions of dollars):
At October 31, 2021, accumulated earnings of $77.1 million in certain subsidiaries outside the U.S. are expected to remain indefinitely reinvested outside of the U.S. As such, a provision for foreign withholding taxes has not been made. Determination of the amount of foreign withholding tax liability on these unremitted earnings is not practicable.
Deferred income taxes arise because there are certain items that are treated differently for financial accounting than for income tax reporting purposes. An analysis of deferred income tax assets and liabilities at October 31, 2021 and November 1, 2020 was as follows (in millions of dollars):
At October 31, 2021, tax loss and tax credit carryforwards of $18.7 million were available, with $15.2 million expiring from 2029 through 2038 and $3.5 million with an indefinite carryforward period.
A reconciliation of the total amounts of unrecognized tax benefits at October 31, 2021, November 1, 2020, and November 3, 2019 was as follows (in millions of dollars):
64
The amount of unrecognized tax benefits at October 31, 2021 and November 1, 2020 that would impact the effective tax rate if the tax benefits were recognized was $24.0 million and $17.2 million, respectively. The remaining liability was related to tax positions for which there are offsetting tax receivables, or the uncertainty was only related to timing. The Company expects that any reasonably possible change in the amounts of unrecognized tax benefits in the next twelve months would not be significant.
The Company files its tax returns according to the tax laws of the jurisdictions in which it operates, which includes the U.S. federal jurisdiction, and various state and foreign jurisdictions. The Company is included in the consolidated U.S. income tax return and various state returns of Deere & Company. The U.S. Internal Revenue Service has completed the examination of Deere & Company’s federal income tax returns for periods prior to 2015. The federal income tax returns for years 2015, 2016, and 2017 are currently under examination. Various state and foreign income tax returns also remain subject to examination by taxing authorities.
The Company’s policy is to recognize interest related to income taxes in interest expense and other income, and recognize penalties in administrative and operating expenses. During 2021, interest and penalties previously accrued were reversed when tax positions were effectively settled or adjusted, resulting in a $1.6 million net benefit. During 2020 and 2019, the total amount of expense from interest and penalties was $.5 million and none, respectively. The total amount of income from interest and penalties for 2020 and 2019 was $.7 million and $5.3 million, respectively, and none for 2021. At October 31, 2021 and November 1, 2020, the liability for accrued interest and penalties totaled $12.3 million and $14.6 million, respectively.
Note 16. Other Income and Administrative and Operating Expenses
The major components of other income and administrative and operating expenses were as follows (in millions of dollars):
|
|
|
|
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
|
2019 |
|
|||
Other income |
|
|
|
|
|
|
|
|
|
|
Fees from John Deere |
|
$ |
25.6 |
|
$ |
25.5 |
|
$ |
30.7 |
|
Interest income |
|
|
2.9 |
|
|
13.8 |
|
|
33.1 |
|
Operating lease residual gains - net |
|
|
65.0 |
|
|
|
|
|
|
|
Freestanding credit enhancement recoveries * |
|
|
14.3 |
|
|
|
|
|
|
|
Other |
|
|
13.7 |
|
|
19.2 |
|
|
15.8 |
|
Total |
|
$ |
121.5 |
|
$ |
58.5 |
|
$ |
79.6 |
|
|
|
|
|
|
|
|
|
|
|
|
Administrative and operating expenses |
|
|
|
|
|
|
|
|
|
|
Compensation and benefits |
|
$ |
249.0 |
|
$ |
251.0 |
|
$ |
260.5 |
|
Operating lease residual losses - net and impairments |
|
|
|
|
|
53.6 |
|
|
159.5 |
|
Computer processing and software |
|
|
52.0 |
|
|
47.2 |
|
|
50.6 |
|
Property taxes on leased assets |
|
|
29.0 |
|
|
30.0 |
|
|
21.1 |
|
Other |
|
|
76.0 |
|
|
88.8 |
|
|
41.3 |
|
Total |
|
$ |
406.0 |
|
$ |
470.6 |
|
$ |
533.0 |
|
* As a result of the adoption of ASU No. 2016-13 in 2021, recoveries from freestanding credit enhancements are recognized in other income. Prior to the adoption of ASU No. 2016-13, recoveries from freestanding credit enhancements were recorded in the provision for credit losses (see Note 3).
The Company recorded net gains in 2021 of $65.0 million on operating lease residual values, which had been revised downward over the term of the leases. Better than expected conditions in the agriculture and turf and the construction and forestry markets led to favorable results when the matured lease equipment was sold. In 2020 and 2019, the Company recorded net losses on operating lease residual values and impairments of $53.6 million and $159.5 million, respectively (see Note 7).
65
Note 17. Cash Flow Information
For purposes of the statement of consolidated cash flows, the Company considers investments with purchased maturities of three months or less to be cash equivalents. Substantially all of the Company’s short-term borrowings, excluding the securitization borrowings and current maturities of long-term borrowings, mature or may require payment within three months or less.
The Company’s restricted cash held at October 31, 2021, November 1, 2020, November 3, 2019, and October 28, 2018 was $95.8 million, $94.8 million, $78.3 million and $103.4 million, respectively. The restricted cash primarily relates to the securitization of receivables and is reported in other assets on the consolidated balance sheet (see Note 6).
Cash payments by the Company for interest in 2021, 2020, and 2019 were $562.4 million, $806.0 million, and $953.8 million, respectively. Cash payments (receipts) for income taxes during these same periods were $306.8 million, $254.0 million, and $(36.1) million, respectively.
Note 18. Commitments and Contingencies
At October 31, 2021, John Deere Financial Inc., the John Deere finance subsidiary in Canada, had $2,268.7 million of medium-term notes outstanding, and a fair value liability of $46.0 million for derivatives outstanding, prior to considering applicable netting provisions, with notional amounts of $2,677.8 million that were guaranteed by Capital Corporation. The weighted-average interest rate on the medium-term notes at October 31, 2021 was 2.1 percent with a maximum remaining maturity of approximately six years.
Capital Corporation has a variable interest in John Deere Canada Funding Inc. (JDCFI), a wholly-owned subsidiary of John Deere Financial Inc., which was created as a VIE to issue debt in public markets to fund the operations of affiliated companies in Canada. Capital Corporation has a variable interest in JDCFI because it provides guarantees for all debt issued by JDCFI, however it does not consolidate JDCFI because it does not have the power to direct the activities that most significantly impact JDCFI’s economic performance. Capital Corporation has no carrying value of assets or liabilities related to JDCFI. Its maximum exposure to loss is the amount of the debt issued by JDCFI and guaranteed by Capital Corporation, which was $810.2 million at October 31, 2021. The weighted-average interest rate on the debt at October 31, 2021 was 2.6 percent with a maximum remaining maturity of approximately two years. No additional support beyond what was previously contractually required has been provided to JDCFI during the reporting periods.
The Company has commitments to extend credit to customers and John Deere dealers through lines of credit and other pre-approved credit arrangements. The Company applies the same credit policies and approval process for these commitments to extend credit as it does for its Receivables. Collateral is not required for these commitments, but if credit is extended, collateral may be required upon funding. The amount of unused commitments to extend credit to John Deere dealers was $11.5 billion at October 31, 2021. The amount of unused commitments to extend credit to customers was $28.7 billion at October 31, 2021. A significant portion of these commitments is not expected to be fully drawn upon; therefore, the total commitment amounts do not represent a future cash requirement. The Company generally has the right to unconditionally cancel, alter, or amend the terms of these commitments at any time. Over 95 percent of the unused commitments to extend credit to customers relate to revolving charge accounts. The Company recorded a provision for credit losses on unfunded commitments that are not unconditionally cancellable of $1.8 million in 2021.
At October 31, 2021, Capital Corporation had $111.2 million in unused loan commitments, which are unconditionally cancellable, denominated in rubles to Limited Liability Company John Deere Financial, the John Deere finance subsidiary in Russia.
At October 31, 2021, the Company had restricted other assets associated with borrowings related to securitizations (see Note 6). Excluding the securitization programs, the remaining balance of restricted other assets was not material as of October 31, 2021.
The Company is subject to various unresolved legal actions which arise in the normal course of its business, the most prevalent of which relate to retail credit matters. The Company believes the reasonably possible range of losses for these unresolved legal actions would not have a material effect on its consolidated financial statements.
66
Note 19. Other Comprehensive Income Items
The after-tax components of accumulated other comprehensive income (loss) at October 31, 2021, November 1, 2020, and November 3, 2019 were as follows (in millions of dollars):
|
|
|
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
|
2019 |
|||
Cumulative translation adjustment |
|
$ |
(54.5) |
|
$ |
(69.5) |
|
$ |
(88.4) |
Unrealized gain (loss) on derivatives |
|
|
6.8 |
|
|
(6.7) |
|
|
(7.0) |
Unrealized gain (loss) on debt securities |
|
|
(1.7) |
|
|
(1.6) |
|
|
(2.0) |
Total accumulated other comprehensive income (loss) |
|
$ |
(49.4) |
|
$ |
(77.8) |
|
$ |
(97.4) |
Following are amounts recorded in and reclassifications out of other comprehensive income (loss) and the income tax effects (in millions of dollars):
67
Note 20. Fair Value Measurements
Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. To determine fair value, the Company uses various methods including market and income approaches. The Company utilizes valuation models and techniques that maximize the use of observable inputs. The models are industry-standard models that consider various assumptions including time values and yield curves as well as other economic measures. These valuation techniques are consistently applied.
Level 1 measurements consist of quoted prices in active markets for identical assets or liabilities. Level 2 measurements include significant other observable inputs such as quoted prices for similar assets or liabilities in active markets; identical assets or liabilities in inactive markets; observable inputs such as interest rates and yield curves; and other market-corroborated inputs. Level 3 measurements include significant unobservable inputs.
The fair values of financial instruments that do not approximate the carrying values at October 31, 2021 and November 1, 2020 were as follows (in millions of dollars):
Fair value measurements above were Level 3 for all Receivables and Level 2 for all borrowings.
Fair values of Receivables that were issued long-term were based on the discounted values of their related cash flows at interest rates currently being offered by the Company for similar Receivables. The fair values of the remaining Receivables approximated the carrying amounts.
Fair values of long-term external borrowings and securitization borrowings were based on current market quotes for identical or similar borrowings and credit risk, or on the discounted values of their related cash flows at current market interest rates. Certain long-term external borrowings have been swapped to current variable interest rates. The carrying values of these long-term external borrowings include adjustments related to fair value hedges.
68
Assets and liabilities measured at October 31, 2021 and November 1, 2020 at fair value as Level 2 measurements on a recurring basis were as follows (in millions of dollars):
Excluded from the table above are the Company’s cash equivalents, which were carried at cost that approximates fair value. The cash equivalents consist primarily of time deposits and money market funds.
The international debt securities mature over the next nine years. At October 31, 2021, the amortized cost basis and fair value of these available-for-sale debt securities were $4.8 million and $2.1 million, respectively.
Fair value, nonrecurring Level 3 measurements from impairments, excluding Receivables with specific allowances which were not material, at October 31, 2021, November 1, 2020, and November 3, 2019 were as follows (in millions of dollars):
The fair value shown for 2020 in the table above represents the fair value assessment at May 3, 2020, as the result of impairments taken on operating leases and matured operating lease inventory in the second quarter of 2020 (see Note 7).
The following is a description of the valuation methodologies the Company uses to measure certain financial instruments on the consolidated balance sheet at fair value:
Marketable securities – The international debt securities are valued using quoted prices for identical assets in inactive markets.
Derivatives – The Company’s derivative financial instruments consist of interest rate contracts (swaps and caps), foreign currency exchange contracts (futures, forwards, and swaps), and cross-currency interest rate contracts (swaps). The portfolio is valued based on an income approach (discounted cash flow) using market observable inputs, including swap curves and both forward and spot exchange rates for currencies.
69
Receivables – Specific reserve impairments are based on the fair value of the collateral, which is measured using a market approach (appraisal values or realizable values). Inputs include a selection of realizable values.
Equipment on operating leases - net – The impairments were based on an income approach (discounted cash flow), using the contractual payments, plus estimates of return rates and equipment sale price at lease maturity. Inputs included historical return rates and realized sales values.
Other assets – The impairments of the matured operating lease inventory were measured at the fair value of that inventory. The valuations were based on a market approach. The inputs included sales of comparable assets.
Note 21. Derivative Instruments
Cash Flow Hedges
Certain interest rate contracts (swaps) were designated as hedges of future cash flows from borrowings. The total notional amounts of the receive-variable/pay-fixed interest rate contracts at October 31, 2021 and November 1, 2020 were $2,700.0 million and $1,550.0 million, respectively. Fair value gains or losses on these cash flow hedges were recorded in OCI and subsequently reclassified into interest expense in the same periods during which the hedged transactions impact earnings. These amounts offset the effects of interest rate changes on the related borrowings. The cash flows from these contracts were recorded in operating activities in the statement of consolidated cash flows.
The amount of loss recorded in OCI at October 31, 2021 that is expected to be reclassified to interest expense in the next twelve months if interest rates remain unchanged is approximately $1.1 million after-tax. No gains or losses were reclassified from OCI to earnings based on the probability that the original forecasted transaction would not occur.
Fair Value Hedges
Certain interest rate contracts (swaps) were designated as fair value hedges of borrowings. The total notional amounts of the receive-fixed/pay-variable interest rate contracts at October 31, 2021 and November 1, 2020 were $7,313.6 million and $6,525.7 million, respectively. The fair value gains or losses on these contracts were generally offset by fair value gains or losses on the hedged items (fixed-rate borrowings) with both items recorded in interest expense.
The amounts recorded, at October 31, 2021 and November 1, 2020, in the consolidated balance sheet related to borrowings designated in fair value hedging relationships were as follows (in millions of dollars):
Derivatives Not Designated as Hedging Instruments
The Company has certain interest rate contracts (swaps and caps), foreign currency exchange contracts (futures, forwards, and swaps), and cross-currency interest rate contracts (swaps), which were not formally designated as hedges. These derivatives were held as economic hedges for underlying interest rate or foreign currency exposures primarily for certain borrowings. The total notional amounts of the interest rate swaps at October 31, 2021 and November 1, 2020 were $2,970.4 million and $2,336.6 million, the foreign currency exchange contracts were $96.7 million and $172.6 million,
70
and the cross-currency interest rate contracts were $237.5 million and $111.5 million, respectively. To facilitate borrowings through securitization of retail notes, interest rate caps were sold with notional amounts of $1,645.4 million and $1,961.4 million at October 31, 2021 and November 1, 2020, respectively. Interest rate caps were also purchased with notional amounts of $1,645.4 million and $1,961.4 million at the same dates, respectively. The fair value gains or losses from the interest rate contracts were recognized currently in interest expense and the gains or losses from foreign currency exchange contracts in administrative and operating expenses, generally offsetting over time the expenses on the exposures being hedged. The cash flows from these non-designated contracts were recorded in operating activities in the statement of consolidated cash flows.
Fair values of derivative instruments in the consolidated balance sheet at October 31, 2021 and November 1, 2020 were as follows (in millions of dollars):
71
The classification and gains (losses) including accrued interest expense related to derivative instruments on the statement of consolidated income consisted of the following (in millions of dollars):
* Includes interest and foreign currency exchange gains (losses) from cross-currency interest rate contracts.
Included in the table above are interest expense and administrative and operating expense amounts the Company incurred on derivatives transacted with John Deere. The amounts the Company recognized on these affiliate party transactions were a loss of $224.3 million during 2021 and gains of $468.7 million and $561.9 million during 2020 and 2019, respectively.
Counterparty Risk and Collateral
Derivative instruments are subject to significant concentrations of credit risk to the banking sector. The Company manages individual unrelated external counterparty exposure by setting limits that consider the credit rating of the unrelated external counterparty, the credit default swap spread of the counterparty, and other financial commitments and exposures between the Company and the unrelated external counterparty banks. All interest rate derivatives are transacted under International Swaps and Derivatives Association (ISDA) documentation. Each master agreement permits the net settlement of amounts owed in the event of default or termination. None of the Company’s derivative agreements contain credit-risk-related contingent features.
The Company’s outstanding derivatives have been transacted with both unrelated external counterparties and with John Deere. For derivatives transacted with John Deere, the Company utilizes a centralized hedging structure in which John Deere enters into a derivative transaction with an unrelated external counterparty and simultaneously enters into a derivative transaction with the Company. Except for collateral provisions, the terms of the transaction between the Company and John Deere are identical to the terms of the transaction between John Deere and its unrelated external counterparty.
The Company has ISDA agreements with John Deere that permit the net settlement of amounts owed between counterparties in the event of early termination. In addition, the Company has a loss sharing agreement with John Deere in which it has agreed to absorb any losses and expenses John Deere incurs if an unrelated external counterparty fails to meet its obligations on a derivative transaction that John Deere entered into to manage exposures of the Company. The loss sharing agreement did not increase the maximum amount of loss that the Company would incur, after considering collateral received and netting arrangements, as of October 31, 2021 and November 1, 2020.
72
Derivatives are recorded without offsetting for netting arrangements or collateral. The impact on the derivative assets and liabilities for external derivatives and those with John Deere related to netting arrangements and collateral were as follows (in millions of dollars):
Note 22. Employee-Separation Programs
During 2020, the Company implemented employee-separation programs for the Company’s salaried workforce in several geographic areas, including the U.S., Europe, and Latin America. The programs’ main purpose was to improve efficiency through a leaner, more flexible organization. The programs were largely voluntary in nature with the expense recorded primarily in the period in which the employees irrevocably accepted a separation offer. For the limited involuntary employee-separation programs, the expense was recorded when management committed to a plan, the plan was communicated to the employees, and the employees were not required to provide service beyond the legal notification period. The programs provided for cash payments based on years of service, and in some countries subsidized healthcare for a limited period and outplacement services. The programs’ total pretax expense in 2020 was $19.7 million, which was recorded in administrative and operating expenses. The total pretax expense included non-cash charges of $5.5 million resulting from curtailments in certain other postretirement benefit plans (see Note 13).
During 2019, the Company incurred voluntary employee-separation program expenses of $8.4 million as part of its effort to reduce operating costs. The programs provided cash payments based on years of service. The expenses were recognized in the periods the employees irrevocably accepted the separation offer and were recorded in administrative and operating expenses.
73
Note 23. Geographic Area Information
Based on the way the operations are managed and evaluated by management and materiality considerations, the Company is viewed as one operating segment. However, geographic area information for revenues and Receivables attributed to the U.S. and countries outside the U.S. is disclosed below. No individual foreign country’s revenues or Receivables were material for disclosure purposes.
Geographic area information as of and for the years ended October 31, 2021, November 1, 2020, and November 3, 2019 is presented below (in millions of dollars):
Note 24. Unconsolidated Affiliated Company
The Company’s investment in an unconsolidated affiliated company consists of a 50 percent ownership in John Deere Financial S.A.S., a joint venture in France that primarily offers loans and leases to customers. The Company does not control the joint venture and accounts for its investment in the joint venture on the equity basis. The Company’s share of the income or loss of this joint venture is reported in the consolidated income statement under “Equity in income of unconsolidated affiliate.” The investment in this joint venture is reported in the consolidated balance sheet under “Investment in unconsolidated affiliate.”
Summarized financial information of the unconsolidated affiliated company for the relevant fiscal years was as follows (in millions of dollars):
|
|
|
|
|
|
|
|
|
|
|
|
|
2021 |
|
2020 |
|
2019 |
|
|||
Operations: |
|
|
|
|
|
|
|
|
|
|
Total revenue |
|
$ |
16.6 |
|
$ |
13.4 |
|
$ |
12.4 |
|
Net income |
|
|
5.9 |
|
|
4.4 |
|
|
3.6 |
|
The Company’s equity in net income |
|
|
3.0 |
|
|
2.2 |
|
|
1.8 |
|
Note 25. Subsequent Events
In December 2021, Capital Corporation paid a $40.0 million dividend to JDFS. JDFS, in turn, paid a $40.0 million dividend to Deere & Company.
In November 2021, the Company renewed its outstanding bank conduit facility revolving credit agreement, which reduced the facility capacity from $2,000.0 million to $1,000.0 million. As a result of the facility renewal at a reduced capacity, $511.1 million of outstanding short-term securitization borrowings were repurchased by the Company in November 2021, in addition to the normal monthly liquidations as a result of payments collected on the retail notes.
74
Index to Exhibits
|
|
|
|
|
3.1 |
|
|
|
|
|
|
|
3.2 |
|
|
|
|
|
|
|
4.1 |
|
|
|
|
|
|
|
4.2 |
|
|
|
|
|
|
|
4.3 |
|
|
|
|
|
|
|
4.4 |
|
|
|
|
|
|
|
4.5 |
|
|
|
|
|
|
|
4.6 |
|
|
|
|
|
|
|
4.7 |
|
|
|
|
|
|
|
4.8 |
|
|
|
|
|
|
Certain instruments relating to long-term debt constituting less than 10 percent of the registrant’s total assets may not be filed as exhibits herewith pursuant to Item 601(b)(4)(iii)(A) of Regulation S-K. The registrant will file copies of such instruments upon request of the Commission. |
|||
|
|
|
|
|
10.1 |
|
|
|
|
|
|
|
10.2 |
|
|
|
|
|
|
|
10.3 |
|
|
|
|
|
|
|
10.4 |
|
|
|
|
|
|
75
|
10.5 |
|
|
|
|
|
|
|
10.6 |
|
|
|
|
|
|
|
10.7 |
|
|
|
|
|
|
|
10.8 |
|
|
|
|
|
|
|
10.9 |
|
|
|
|
|
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10.10 |
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10.11 |
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10.12 |
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10.13 |
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10.14 |
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10.15 |
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21. |
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Omitted pursuant to instruction I(2) |
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24. |
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31.1 |
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31.2 |
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32. |
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99. |
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101.SCH |
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Inline XBRL Taxonomy Extension Schema Document |
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101.CAL |
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Inline XBRL Taxonomy Extension Calculation Linkbase Document |
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101.DEF |
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Inline XBRL Taxonomy Extension Definition Linkbase Document |
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101.LAB |
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Inline XBRL Taxonomy Extension Label Linkbase Document |
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101.PRE |
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Inline XBRL Taxonomy Extension Presentation Linkbase Document |
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104 |
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Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) |
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* |
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Incorporated by reference. |
77
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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JOHN DEERE CAPITAL CORPORATION |
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By: |
/s/ John C. May |
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John C. May |
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Chairman and Chief Executive Officer (Principal Executive Officer) |
Date:December 16, 2021
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the date indicated.
Each person signing below also hereby appoints John C. May, Ryan D. Campbell, and Todd E. Davies, and each of them singly, his or her lawful attorney-in-fact with full power to execute and file any and all amendments to this report together with exhibits thereto and generally to do all such things as such attorney-in-fact may deem appropriate to enable John Deere Capital Corporation to comply with the provisions of the Securities Exchange Act of 1934 and all requirements of the Securities and Exchange Commission.
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Signature |
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/s/ Ryan D. Campbell |
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Director and Senior Vice President |
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Ryan D. Campbell |
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(Principal Financial Officer and |
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Principal Accounting Officer) |
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/s/ Rajesh Kalathur |
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Director and President |
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Rajesh Kalathur |
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) |
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) |
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/s/ John C. May |
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Director, Chairman, and |
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John C. May |
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Chief Executive Officer |
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(Principal Executive Officer) |
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/s/ Steven N. Owenson |
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Director |
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Steven N. Owenson |
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December 16, 2021 |
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) |
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/s/ Cory J. Reed |
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Director |
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Cory J. Reed |
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) |
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/s/ Jayma A. Sandquist |
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Director |
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Jayma A. Sandquist |
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/s/ John H. Stone |
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Director |
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John H. Stone |
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Signature |
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Title |
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Date |
/s/ Andrew C. Traeger |
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Director |
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Andrew C. Traeger |
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December 16, 2021 |
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/s/ Markwart von Pentz |
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Director |
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Markwart von Pentz |
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) |
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79
Exhibit 4.8
DESCRIPTION OF THE 2.00% SENIOR NOTES DUE 2031
The following summary of our 2.00% Senior Notes due 2031 (the “2031 Notes”) is based on and qualified by the Senior Indenture, dated as of March 15, 1997, between John Deere Capital Corporation (“Capital Corporation”) and the Bank of New York Mellon (formerly known as The Bank of New York, successor Trustee to The Chase Manhattan Bank), as trustee (the “Trustee”), as supplemented by a first supplemental senior indenture, dated as of April 21, 2011, a second supplemental senior indenture, dated as of April 17, 2014 and a third supplemental senior indenture, dated April 7, 2017 (such indenture, as so supplemented, the “Indenture”). This summary is not complete and is subject to, and qualified in its entirety by reference to, the actual Indenture. For a complete description of the terms and provisions of the Company’s notes, refer to the Indenture, which is filed as an exhibit to this Annual Report on Form 10-K. Throughout this exhibit, references to the “Company,” “we,” “our,” and “us” refer to John Deere Capital Corporation.
We issued $600,000,000 total principal amount of the 2031 Notes on June 17, 2021. The 2031 Notes are a part of our Medium-Term Notes, Series H, Due from 9 Months to 30 Years from the Date of Issue issued under the Indenture and pursuant to a Prospectus, dated April 6, 2020 (the “Prospectus”), and Prospectus Supplement, dated April 6, 2020 (together, the “Prospectus Supplement”), and Pricing Supplement No. 11, dated June 14, 2021. The total initial public offering price of senior notes and subordinated notes that may be offered using the Prospectus Supplement was $25,000,000,000 or its equivalent in one or more foreign currencies, but this limit decreases by the sale of other securities that are described in the Prospectus including any sales of JDCC InterNotes Due Nine Months or More from Date of Issue.
The Indenture governs our obligations under the 2031 Notes. The terms of the 2031 Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (the “TIA”). The 2031 Notes are subject to all such terms.
The 2031 Notes are traded on the New York Stock Exchange under the symbol “JDCC31.”
We have issued a significant amount of other debt securities under the Indenture that have neither been registered pursuant to Section 12 of the Securities Exchange Act of 1934 nor listed on the NYSE. You should refer to our description of the amount of debt outstanding as disclosed in our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and in other filings with the Securities and Exchange Commission. The Indenture does not limit the amount of debt securities, including 2031 Notes, that the Company may issue under the Indenture.
Defined terms used in this description but not in this summary have the meanings assigned to them in the Indenture.
General
The 2031 Notes will mature on June 17, 2031 (the “Maturity Date”). The 2031 Notes are senior securities of the Company and rank equally with all unsecured senior debt. The 2031 Notes are direct and unsecured obligations of the Company.
The 2031 Notes are not subject to any sinking fund.
The 2031 Notes were issued in a form of one or more registered Global Securities in minimum denominations of $1,000 with increments of $1,000 thereafter.
1
Interest and Interest Rates
Interest on the 2031 Notes accrues at a rate of 2.00% per year accrued from June 17, 2021 and is payable semi-annually in arrears on June 17 and December 17 (each an “Interest Payment Date), commencing on December 17, 2021 and ending on the Maturity Date. We pay interest to those persons who were holders of record of the 2031 Notes on the fifteenth calendar day (whether or not a business day) next preceding the applicable Interest Payment Date, as the case may be (each a “Regular Record Date”). Interest is computed on the basis of a 360-day year of twelve 30-day months.
Interest on the 2031 Notes denominated in U.S. dollars will be paid by check mailed on an Interest Payment Date other than a Maturity Date to the persons entitled thereto to the addresses of such holders as they appear in the security register or, at our option, by wire transfer to a bank account maintained by the holder. The principal of, premium, if any, and interest on the 2031 Notes, together with interest accrued and unpaid thereon, due on the Maturity Date will be paid in immediately available funds upon surrender of such 2031 Notes at the corporate trust office of the Trustee in The City of New York, or, at our option, by wire transfer of immediately available funds to an account with a bank designated at least 15 calendar days prior to the Maturity Date by the applicable registered holder, provided the particular bank has appropriate facilities to receive these payments and the particular 2031 Note is presented and surrendered at the office or agency maintained by us for this purpose in the Borough of Manhattan, The City of New York, in time for the Trustee to make these payments in accordance with its normal procedures.
Payment
If the Maturity Date or any repayment date or an Interest Payment Date for the 2031 Notes is not any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York (a “Business Day”), the principal of, premium, if any, and interest on the 2031 Notes will be paid on the next Business Day, and no interest will accrue from and after the Maturity Date or Interest Payment Date. Interest on the 2031 Notes will be paid to holders of record as of each Regular Record Date.
Book-entry and other indirect holders should consult their banks or brokers for information on how they will receive payments on their debt securities.
Book-Entry Debt Securities
The 2031 Notes are issued in book-entry form only. This means that the Company did not and will not issue actual 2031 Notes or certificates to each holder. Instead, it issued issue a global security representing the 2031 Notes with similar terms and the Global Security is held by or on behalf of the Depositary Trust Company (“DTC”) or its nominee. In order to own a beneficial interest in a 2031 Note, you must be an institution that has an account with DTC or have an account with an institution, such as a brokerage firm, that has an account with DTC.
Payments of principal of, premium, if any, and interest on 2031 Notes represented by a global security will be made in same-day funds to DTC in accordance with arrangements then in effect between the Trustee and DTC.
Optional Redemption, Repayment and Repurchase
The 2031 Notes are not redeemable prior to the stated maturity, and holders do not have the option to elect repayment by the Company prior to the date of the stated maturity. The Company may at any time purchase 2031 Notes at any price in the open market or otherwise. The Company may hold, resell or surrender for cancellation any 2031 Notes that it purchases.
2
Events of Default
The term “Event of Default” in respect of the 2031 Notes means any of the following, among others:
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We do not pay the principal of, or any premium, if any, on the 2031 Notes on its due date. |
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We do not pay interest on the 2031 Notes within 30 days of its due date. |
· |
We remain in breach of a covenant in respect of the 2031 Notes for 60 days after we receive a written notice of default stating we are in breach. The notice must be sent by either the Trustee or holders of at least 25% of the principal amount of the 2031 Notes. |
· |
We file for bankruptcy or certain other events of bankruptcy, insolvency or reorganization occur. |
An Event of Default for a particular series of any of our debt securities does not necessarily constitute an Event of Default for any other series of debt securities issued under the same or any other indenture. The Trustee may withhold notice to the holders of debt securities of any default, except in the payment of principal, premium or interest, if it considers the withholding of notice to be in the best interests of the holders (Section 601).
Remedies if an Event of Default Occurs. If an Event of Default has occurred and has not been cured, the Trustee or the holders of at least 25% in principal amount of the 2031 Notes may declare the entire principal amount of all the debt securities of the 2031 Notes to be due and immediately payable. This is called a declaration of acceleration of maturity. A declaration of acceleration of maturity may be canceled by the holders of a majority in principal amount of the 2031 Notes. (Section 502)
Except in cases of default, where the Trustee has some special duties, the Trustee is not required to take any action under the applicable indenture at the request of any holders unless the holders offer the Trustee reasonable protection from expenses and liability (called an “indemnity”). (Section 602 and Section 315 of the TIA) If reasonable indemnity is provided, the holders of a majority in principal amount of the outstanding 2031 Notes may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the Trustee. The Trustee may refuse to follow those directions in certain circumstances. (Section 512) No delay or omission in exercising any right or remedy will be treated as a waiver of that right, remedy or Event of Default. (Section 511)
Before you are allowed to bypass your Trustee and bring your own lawsuit or other formal legal action or take other steps to enforce your rights or protect your interests relating to the 2031 Notes, the following must occur:
· |
You must give your Trustee written notice that an Event of Default has occurred and remains uncured. |
· |
The holders of at least 25% in principal amount of all outstanding 2031 Notes must make a written request that the trustee take action because of the default and must offer reasonable indemnity to the Trustee against the cost and other liabilities of taking that action. |
· |
The Trustee must not have taken action for 60 days after receipt of the above notice and offer of indemnity. |
· |
The holders of a majority in principal amount of the 2031 Notes must not have given the trustee a direction inconsistent with the above notice during that 60-day period. (Section 507) |
However, you are entitled at any time to bring a lawsuit for the payment of money due on your 2031
3
Notes on or after the due date. (Section 508)
Holders of a majority in principal amount of the 2031 Notes may waive any past defaults other than
· |
the payment of principal, any premium or interest or |
· |
in respect of a covenant that cannot be modified or amended without the consent of each holder. (Section 513) |
Book-entry and other indirect holders should consult their banks or brokers for information on how to give notice or direction to or make a request of the Trustee and how to declare or cancel an acceleration.
Each year, we will furnish to each trustee a written statement of certain of our officers certifying that to their knowledge we are in compliance with the applicable indenture and the debt securities, or else specifying any default. (Section 1005)
Merger or Consolidation
Under the terms of the Indenture, we are generally permitted to consolidate or merge with another entity. We are also permitted to sell all or substantially all of our assets to another entity. (Section 801) However, we may not take any of these actions unless all the following conditions are met:
· |
Where we merge out of existence or sell our assets, the resulting entity must agree to be legally responsible for our obligations under the debt securities. (Section 801) |
· |
The merger or sale of assets must not cause a default on the debt securities and we must not already be in default (unless the merger or sale would cure the default). For purposes of this no-default test, a default would include an Event of Default that has occurred and has not been cured, as described under “Events of Default” above. A default for this purpose would also include any event that would be an Event of Default if the requirements for giving us a notice of default or our default having to exist for a specific period of time were disregarded. (Section 801) |
· |
Under the Indenture, no merger or sale of assets may be made if as a result any of our property or assets or any property or assets of one of our Subsidiaries would become subject to any mortgage, lien or other encumbrance unless either (i) the mortgage, lien or other encumbrance could be created pursuant to the limitation on liens covenant in the Indenture (see “Limitation on Liens” below) without equally and ratably securing the Indenture securities or (ii) the Indenture securities are secured equally and ratably with or prior to the debt secured by the mortgage, lien or other encumbrance. (Section 801 of the Indenture) |
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We must deliver certain certificates and documents to the Trustee. (Section 801) |
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We must satisfy any other requirements specified in the prospectus supplement or term sheet relating to the 2031 Notes. |
Modification or Waiver
There are three types of changes we can make to the Indenture and the 2031 Notes issues thereunder.
Changes Requiring Your Approval. First, there are changes that we cannot make to the 2031 Notes without your specific approval. (Section 902) Following is a list of those types of changes:
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change the stated maturity of the principal of or interest on the 2031 Notes; |
4
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reduce any amounts due on the 2031 Notes; |
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reduce the amount of principal payable upon acceleration of the maturity of the 2031 Notes following a default; |
· |
adversely affect any right of repayment at the holder’s option; |
· |
change the place or currency of payment on the 2031 Notes; |
· |
impair your right to sue for payment; |
· |
reduce the percentage of holders of 2031 Notes whose consent is needed to modify or amend the Indenture; |
· |
reduce the percentage of holders of 2031 Notes whose consent is needed to waive compliance with certain provisions of the Indenture or to waive certain defaults; |
· |
modify any other aspect of the provisions of the Indenture dealing with supplemental indentures (Section 902), modification and waiver of past defaults (Section 513), changes to the quorum or voting requirements (Section 1504) or the waiver of certain covenants (Section 1007); and |
· |
change any obligation we have to pay additional amounts. |
Changes Not Requiring Approval. The second type of change does not require any vote by the holders of the 2031 Notes. This type is limited to clarifications and certain other changes that would not adversely affect holders of the 2031 Notes in any material respect. We also do not need any approval to make any change that affects only debt securities to be issued under the Indenture after the change takes effect.
Changes Requiring Majority Approval. Any other change to the Indenture and the 2031 Notes would require the following approval:
· |
If the change affects only the 2031 Notes, it must be approved by the holders of a majority in principal amount of the 2031 Notes. |
· |
If the change affects more than one series of debt securities issued under the Indenture, it must be approved by the holders of a majority in principal amount of all of the series affected by the change, with all affected series voting together as one class for this purpose. |
In each case, the required approval must be given by written consent. The holders of a majority in principal amount of all of the series of debt securities issued under an indenture, voting together as one class for this purpose, may waive our compliance with some of our covenants in that indenture. However, we cannot obtain a waiver of a payment default or of any of the matters covered by the bullet points included above under “—Changes Requiring Your Approval.”
Further Details Concerning Voting. Debt securities will not be considered outstanding, and therefore not eligible to vote, if we have deposited or set aside in trust money for their payment or redemption. Debt securities will also not be eligible to vote if they have been fully defeased as described below under “Defeasance—Full Defeasance”.
We will generally be entitled to set any date as a record date for the purpose of determining the holders of outstanding indenture securities that are entitled to vote or take other action under the indentures. If we set a record date for a vote or other action to be taken by holders of one or more series, that vote, or action may be taken only by persons who are holders of outstanding indenture securities of those series on the record date and must be taken within eleven months following the record date.
5
Defeasance
Covenant Defeasance. Under current United States federal tax law, we can make the deposit described below and be released from some of the restrictive covenants in the Indenture. This is called “covenant defeasance.” In that event, you would lose the protection of those restrictive covenants but would gain the protection of having money and government securities set aside in trust to repay your debt securities.
· |
If the debt securities of the particular series are denominated in U.S. dollars, such as the 2031 Notes, we must deposit in trust for the benefit of all holders of such debt securities a combination of money and United States government or United States government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates. |
· |
We must deliver to the trustee a legal opinion of our counsel confirming that, under current United States federal income tax law, we may make the above deposit without causing you to be taxed on the debt securities any differently than if we did not make the deposit and just repaid the debt securities ourselves at maturity. |
· |
We must deliver to the trustee a legal opinion of our counsel stating that the above deposit does not require registration by us under the Investment Company Act of 1940, as amended, and a legal opinion and officers’ certificate stating that all conditions precedent to covenant defeasance have been complied with. |
If we accomplish covenant defeasance, you can still look to us for repayment of the debt securities if there were a shortfall in the trust deposit or the trustee is prevented from making payment. In fact, if one of the remaining Events of Default occurred (such as our bankruptcy) and the debt securities, including the 2031 Notes, became immediately due and payable, there might be a shortfall. Depending on the event causing the default, you may not be able to obtain payment of the shortfall.
Full Defeasance. If there is a change in United States federal tax law, as described below, we can legally release ourselves from all payment and other obligations on the debt securities of a particular series (called “full defeasance”) if we put in place the following other arrangements for you to be repaid:
· |
If the debt securities of the particular series are denominated in U.S. dollars, such as the 2031 Notes, we must deposit in trust for the benefit of all holders of such debt securities a combination of money and United States government or United States government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on the debt securities on their various due dates. |
· |
We must deliver to the trustee a legal opinion confirming that there has been a change in current United States federal tax law or an Internal Revenue Service ruling that allows us to make the above deposit without causing you to be taxed on the debt securities any differently than if we did not make the deposit and just repaid the debt securities ourselves at maturity. (Section 1404) Under current United States federal tax law, the deposit and our legal release from the debt securities would be treated as though we paid you your share of the cash and notes or bonds at the time the cash and notes or bonds were deposited in trust in exchange for your debt securities and you would recognize gain or loss on the debt securities at the time of the deposit. |
· |
We must deliver to the trustee a legal opinion of our counsel stating that the above deposit does not require registration by us under the Investment Company Act of 1940, as amended, and a legal opinion and officers’ certificate stating that all conditions precedent to defeasance have been complied with. |
6
If we ever did accomplish full defeasance, as described above, you would have to rely solely on the trust deposit for repayment of the debt securities, including the 2031 Notes. You could not look to us for repayment in the unlikely event of any shortfall. Conversely, the trust deposit would most likely be protected from claims of our lenders and other creditors if we ever became bankrupt or insolvent.
Resignation of Trustee
The Trustee may resign or be removed with respect to one or more series of Indenture securities provided that a successor trustee is appointed to act with respect to these series. (Section 608) In the event that two or more persons are acting as Trustee with respect to different series of securities under the Indenture, each of the trustees will be a trustee of a trust separate and apart from the trust administered by any other trustee. (Section 609)
Limitation on Liens
We covenant in the Indenture that neither we nor any of our Subsidiaries will pledge or subject to any lien any of our or their property or assets unless the securities under the Indenture are secured by this pledge or lien equally and ratably with other indebtedness thereby secured (the “lien covenant”). There are excluded from this covenant liens created to secure obligations for the purchase price of physical property, liens of a Subsidiary securing indebtedness owed to us, liens existing on property acquired upon exercise of rights arising out of defaults on receivables acquired in the ordinary course of business, sales of receivables accounted for as secured indebtedness in accordance with generally accepted accounting principles, certain liens not related to the borrowing of money and other liens not securing borrowed money aggregating less than $500,000. (Section 1006) Pursuant to the first, second and third supplemental indentures, senior securities that are part of a series created on or after the date of such supplemental indentures, such as the 2031 Notes, will be subject to further exclusions from the lien covenant with respect to cash collateral related to hedging transactions, collateral posted for extensions of credit by a unit of a central banking system through a discount window or similar facility or arrangement, and liens provided in connection with borrowing from loan and subsidy programs operated by (or on behalf of) a national development bank, country, government, government agency, supranational entity or similar agency or entity.
The Trustee Under the Indenture
The Bank of New York Mellon is a bank with which we and Deere & Company maintain ordinary banking relationships and from which we and Deere & Company have obtained credit facilities and lines of credit. The Bank of New York Mellon also serves as trustee under other indentures under which we or Deere & Company are the obligor.
7
Exhibit 10.11
EXECUTION VERSION
This First Amendment, dated as of October 15, 2021 (this “Amendment”), to the 2025 Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”), among (a) DEERE & COMPANY, a Delaware corporation (the “Company”), (b) JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “Capital Corporation”), (c) JOHN DEERE BANK S.A., a Luxembourg société anonyme (“JD Luxembourg”, together with the Company and the Capital Corporation, the “Borrowers”), (d) the several financial institutions parties thereto (the “Banks”), (e) JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, together with its successors and permitted assigns, the “Administrative Agent”), (f) CITIBANK, N.A., as documentation agent and (g) BANK OF AMERICA, N.A., as syndication agent.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Banks and the Administrative Agent are parties to the Existing Credit Agreement and the Borrowers have requested that the Existing Credit Agreement be amended as set forth herein (the Existing Credit Agreement, as so amended, the “Credit Agreement”);
WHEREAS, an Early Opt-in Election in respect of Pounds Sterling has occurred as a result of (i) a determination by the Company that at least five currently outstanding syndicated credit facilities documented in Pounds Sterling contain a new benchmark interest rate to replace the Relevant Rate in respect of Pounds Sterling and (ii) the joint election by the Administrative Agent and the Company to declare that an Early Opt-in Election has occurred with respect to Loans denominated in Pounds Sterling and the provision by the Administrative Agent and the Company of written notice of such election to the Banks;
WHEREAS, the Company and the Administrative Agent desire to amend the Existing Credit Agreement to reflect the Benchmark Replacement with respect to Loans denominated in Pounds Sterling, in accordance with clause (3) of the definition of “Benchmark Replacement”;
NOW, THEREFORE, in consideration of the premises contained herein, the parties hereto agree as follows:
- 2 -
- 3 -
- 4 -
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
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DEERE & COMPANY
By:/s/ Andrew M. Recker
|
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JOHN DEERE CAPITAL CORPORATION
By:/s/ Andrew M. Recker
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JOHN DEERE BANK S.A.
By:/s/ Andrew Traeger
|
By:/s/ Jeffrey A Trahan
Name: Jeffrey A Trahan
Title: VP & Treasurer
[Signature Page to First Amendment to Deere 2025 Credit Agreement]
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:/s/ Sean Bodkin
Name: Sean Bodkin
Title: Vice President
[Signature Page to First Amendment to Deere 2025 Credit Agreement]
Exhibit A
AMENDED CREDIT AGREEMENT
[See attached]
DEERE & COMPANY
JOHN DEERE CAPITAL CORPORATION
JOHN DEERE BANK S.A.
________________________________________
$2,500,000,000
2025
CREDIT AGREEMENT1
Dated as of March 29, 2021
________________________________________
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
Citibank, N.A.,
as Documentation Agent
BANK OF AMERICA, N.A.,
as Syndication Agent
________________________________________
JPMORGAN CHASE BANK, N.A. and BOFA SECURITIES, INC.,
as Lead Arrangers and Bookrunners
1 Conformed version reflects the First Amendment dated as of October 15, 2021.
Page
SECTION 1.DEFINITIONS1
1.1Defined Terms1
1.2Other Definitional Provisions27
1.3Currency Conversion27
1.4Interest Rates; LIBOR Notification28
SECTION 2.THE COMMITTED RATE LOANS; THE BID LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS28
2.1The Committed Rate Loans28
2.2The Bid Loans; the Negotiated Rate Loans29
2.3Loan Accounts33
2.4Fees33
2.5Termination or Reduction of Commitments; Cancellation of Capital Corporation or JD Luxembourg as Borrower34
2.6Prepayments35
2.7Minimum Amount of Certain Loans36
2.8Committed Rate Loan Interest Rate and Payment Dates36
2.9Conversion and Continuation Options36
2.10Computation of Interest and Fees37
2.11Inability to Determine Interest Rate37
2.12Pro Rata Treatment and Payments40
2.13Requirements of Law42
2.14Indemnity46
2.15Non-Receipt of Funds by the Administrative Agent47
2.16Extension of Termination Date47
2.17Indemnified Taxes48
2.18Confirmations51
2.19Replacement of Cancelled Banks52
2.20Commitment Increases52
2.21[Reserved]54
2.22[Reserved]54
2.23Defaulting Banks54
2.24Judgment Currency55
2.25Foreign Currency Exchange Rate56
2.26Letters of Credit56
2.27Capital Corporation Guaranty59
SECTION 3.REPRESENTATIONS AND WARRANTIES61
3.1Financial Condition61
3.2Corporate Existence61
3.3Corporate Power; Authorization; Enforceable Obligations61
3.4No Legal Bar61
3.5No Material Litigation62
3.6Taxes62
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3.7Margin Regulations62
3.8Use of Proceeds62
3.9Sanctions Laws and Regulations62
3.10Beneficial Ownership Certification62
SECTION 4.CONDITIONS PRECEDENT63
4.1Conditions to Initial Extensions of Credit63
4.2Conditions to All Extensions of Credit64
SECTION 5.AFFIRMATIVE COVENANTS65
5.1Financial Statements65
5.2Certificates; Other Information65
5.3Company Indenture Documents66
5.4Capital Corporation Indenture Documents66
5.5Notice of Default66
5.6Ownership of Capital Corporation and JD Luxembourg Stock66
5.7Employee Benefit Plans66
5.8Compliance67
SECTION 6.NEGATIVE COVENANTS OF THE COMPANY67
6.1Company May Consolidate, etc., Only on Certain Terms67
6.2Limitation on Liens67
6.3Limitations on Sale and Lease-back Transactions70
6.4Equipment Operations Debt71
SECTION 7.NEGATIVE COVENANTS OF THE CAPITAL CORPORATION71
7.1Fixed Charges Ratio71
7.2Consolidated Senior Debt to Consolidated Capital Base71
7.3Limitation on Liens71
7.4Consolidation; Merger73
SECTION 8.EVENTS OF DEFAULT73
SECTION 9.THE AGENTS75
9.1Appointment75
9.2Delegation of Duties76
9.3Exculpatory Provisions76
9.4Reliance by Agents76
9.5Notice of Default78
9.6Non-Reliance on Agents and Other Banks78
9.7Indemnification78
9.8Agents in their Individual Capacities79
9.9Successor Agents79
SECTION 10.MISCELLANEOUS79
10.1Amendments and Waivers79
10.2Notices80
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10.3No Waiver; Cumulative Remedies81
10.4Payment of Expenses82
10.5Successors and Assigns; Participations; Purchasing Banks83
10.6Adjustments87
10.7Confidentiality87
10.8Counterparts88
10.9GOVERNING LAW89
10.10Consent to Jurisdiction and Service of Process89
10.11WAIVERS OF JURY TRIAL90
10.12USA Patriot Act90
10.13No Fiduciary Duty90
10.14Headings90
10.15Acknowledgment and Consent to Bail-In of Affected Financial Institutions90
10.16Bank ERISA Representations91
SCHEDULES:
Schedule ITerms of Subordination
Schedule IICommitments
Schedule IIIExisting Letters of Credit
EXHIBITS:
Exhibit AForm of Borrowing Notice
Exhibit BForm of Bid Loan Request
Exhibit CForm of Bid Loan Offer
Exhibit DForm of Bid Loan Confirmation
Exhibit EForm of Assignment and Assumption
Exhibit F[Reserved]
Exhibit GForm of Opinion of General Counsel to the Company
Exhibit HForm of Opinion of Special New York Counsel to the Borrowers
Exhibit IForm of Extension Request
Exhibit JForm of Form W-8BEN-E Tax Letter
Exhibit KForm of Form W-8ECI Tax Letter
Exhibit LForm of Replacement Bank Agreement
Exhibit MForm of Promissory Note
Exhibit NForm of New Bank Supplement
Exhibit OForm of Commitment Increase Supplement
Exhibit PForm of Certificate of Non-Bank Status
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2025 CREDIT AGREEMENT, dated as of March 29, 2021, among (a) DEERE & COMPANY, a Delaware corporation (the “Company”), (b) JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “Capital Corporation”), (c) JOHN DEERE BANK S.A., a Luxembourg société anonyme (“JD Luxembourg”), (d) the several financial institutions parties hereto (collectively, the “Banks”, and individually, a “Bank”), (e) JPMORGAN CHASE BANK, N.A., as administrative agent hereunder (in such capacity, together with its successors and permitted assigns, the “Administrative Agent”), (f) Citibank, N.A., as documentation agent hereunder (in such capacity, the “Documentation Agent”), and (g) BANK OF AMERICA, N.A., as syndication agent hereunder (in such capacity, the “Syndication Agent”).
The parties hereto hereby agree as follows:
SECTION 1. | DEFINITIONS |
“ABR”: at any particular date, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) 0.5% per annum above the NYFRB Rate and (c) the Eurocurrency Rate for a Eurocurrency Loan denominated in Dollars with one-month Interest Period commencing on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1% (provided that, for the avoidance of doubt, such Eurocurrency Rate for any date shall be based on the LIBOR Screen Rate (or if the LIBOR Screen Rate is not available for such one-month Interest Period, the LIBOR Interpolated Rate)). Any change in ABR due to a change in the Prime Rate, the NYFRB Rate or the Eurocurrency Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Eurocurrency Rate, respectively. If the ABR is being used as an alternate rate of interest pursuant to subsection 2.11 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to subsection 2.11(b)), then the ABR shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
“ABR Loans”: Committed Rate Loans at such time as they are made and/or being maintained at a rate of interest based upon the ABR.
“Absolute Rate Bid Loan”: any Bid Loan made pursuant to an Absolute Rate Bid Loan Request.
“Absolute Rate Bid Loan Request”: any Bid Loan Request requesting the Banks to offer to make Bid Loans at an absolute rate (as opposed to a rate composed of the Applicable Index Rate plus (or minus) a margin).
“Act”: as defined in subsection 10.12.
“Adjusted Daily Simple SONIA”: an interest rate per annum equal to (a) Daily Simple SONIA, plus (b) 0.0326%; provided that if Adjusted Daily Simple SONIA as so determined would be less than 0.0%, such rate shall be deemed to be equal to 0.0% for the purposes of this Agreement.
“Administrative Agent”: as defined in the preamble hereto. It is understood that matters concerning the Foreign Currency Loans will be administered by the Foreign Currency Agent as agent for the Administrative Agent.
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“Administrative Questionnaire”: an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Foreign Currency”: as defined in subsection 2.11(a).
“Agent”: the Administrative Agent, the Foreign Currency Agent, the Syndication Agent, or the Documentation Agent, as the context shall require; together, the “Agents”.
“Agreement”: this 2025 Credit Agreement, as amended by the First Amendment and as further amended, supplemented or modified from time to time.
“Agreement Currency”: as defined in subsection 2.24(b).
“Ancillary Document”: as defined in subsection 10.8.
“Anti-Corruption Laws”: all laws, rules and regulations of any jurisdiction applicable to the Borrowers and their Subsidiaries from time to time concerning or relating to bribery or corruption.
“Applicable Creditor”: as defined in subsection 2.24(b).
“Applicable Index Rate”: in respect of any Bid Loan requested pursuant to an Index Rate Bid Loan Request, the Eurocurrency Rate applicable to the Interest Period for such Bid Loan.
“Applicable Margin”: (a) with respect to ABR Loans, the rate per annum set forth below for ABR Loans in the column corresponding to the Prevailing Rating of the Company and, (b) with respect to Eurocurrency Loans, the rate per annum set forth below for Eurocurrency Loans in the column corresponding to the Prevailing Rating of the Company and (c) with respect to SONIA Loans, the rate per annum set forth below for SONIA Loans in the column corresponding to the Prevailing Rating of the Company:
“Application”: an application in such form from time to time in use by the applicable Issuing Bank, requesting an Issuing Bank to issue a Letter of Credit.
“Attributable Debt”: as defined in subsection 6.2(b)(ii).
“Australian Dollars”: the lawful currency of Australia.
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“Available Commitment”: as to any Bank at any time, an amount equal to the excess, if any, of (a) such Bank’s Commitment then in effect over (b) such Bank’s Committed Rate Loans then outstanding.
“Available Tenor”: as of any date of determination and with respect to the then-current Benchmark in respect of Loans denominated in such Currency, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period with respect to Loans denominated in the applicable Currency pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (f) of subsection 2.11.
“Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation”: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank” and “Banks”: as defined in the preamble hereto.
“Benchmark”: initially, with respect to aany (i) SONIA Loan, Adjusted Daily Simple SONIA or (ii) Eurocurrency Loan denominated in any Currency, the Relevant Rate for such Currency; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to the Relevant Rate or the then-current Benchmark with respect to Loans denominated in such Currency, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) or clause (c) of subsection 2.11.
“Benchmark Replacement”: for any Available Tenor with respect to Loans denominated in any Currency, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in a Foreign Currency, “Benchmark Replacement” shall mean the alternative set forth in (3) below:
(1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;
(2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;
(3) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Company as the replacement for the then-current Benchmark for the applicable Corresponding Tenor with respect to Loans denominated in such Currency giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body and/or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for
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syndicated credit facilities denominated in the applicable Currency at such time and (b) the related Benchmark Replacement Adjustment;
provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; provided further that, solely with respect to a Loan denominated in Dollars, notwithstanding anything to the contrary in this Agreement or in any other Loan Document, to the extent that a Term SOFR Transition Event has occurred, and a Term SOFR Notice has been delivered, on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).
If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment”: with respect to any replacement of the then-current Benchmark with respect to Loans denominated in any Currency with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
(1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:
(a) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor; and
(b) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and
(2) for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Company for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Currency at such time;
provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.
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“Benchmark Replacement Conforming Changes”: with respect to any Benchmark Replacement in respect of Loans denominated in any Currency, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “SONIA Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides in its reasonable discretion (in consultation with the Company) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides in its reasonable discretion that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent reasonably determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent determines (in consultation with the Company) is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date”: with respect to the Benchmark for any Loan denominated in any Currency, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein; or
(3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Banks and the Company pursuant to Section 2.11(c); or
(4) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Banks, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Banks, written notice of objection to such Early Opt-in Election from Banks comprising the Majority Banks.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event”: with respect to the Benchmark for any Loan denominated in any Currency, the occurrence of one or more of the following events with respect to such then-current Benchmark:
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(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period”: with respect to the Benchmark for any Loan denominated in any Currency, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with subsection 2.11 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with subsection 2.11.
“Beneficial Ownership Certification”: a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230.
“benefitted Bank”: as defined in subsection 10.6.
“Bid Loan”: each loan (other than Negotiated Rate Loans) made pursuant to subsection 2.2; the aggregate amount advanced by a Bid Loan Bank pursuant to subsection 2.2 on each Borrowing Date shall constitute one Bid Loan, or more than one Bid Loan if so specified by the relevant Loan Assignee in its request for promissory notes pursuant to subsection 10.5(c).
“Bid Loan Banks”: the collective reference to each Bank designated from time to time as a Bid Loan Bank by the Company or the Capital Corporation (for purposes of Bid Loans to such Borrower) by written notice to the Administrative Agent and which has not been removed as a Bid Loan
7
Bank by such Borrower by written notice to the Administrative Agent (each of which notices the Administrative Agent shall transmit to each such affected Bank).
“Bid Loan Confirmation”: each confirmation by the Company or the Capital Corporation of its acceptance of Bid Loan Offers, which Bid Loan Confirmation shall be substantially in the form of Exhibit D and shall be delivered to the Administrative Agent by facsimile transmission or by telephone, immediately confirmed by facsimile transmission.
“Bid Loan Offer”: each offer by a Bid Loan Bank to make Bid Loans pursuant to a Bid Loan Request, which Bid Loan Offer shall contain the information specified in Exhibit C and shall be delivered to the Administrative Agent by facsimile transmission or by telephone, immediately confirmed by facsimile transmission.
“Bid Loan Request”: each request by the Company or the Capital Corporation for Bid Loan Banks to submit bids to make Bid Loans, which shall contain the information in respect of such requested Bid Loans specified in Exhibit B and shall be delivered to the Administrative Agent by facsimile transmission or by telephone, immediately confirmed by facsimile transmission.
“Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Borrower”: the Company, the Capital Corporation or JD Luxembourg; collectively, the “Borrowers”.
“Borrowing Date”: in respect of any Loan, the date such Loan is made, and in respect of any Letter of Credit, the date such Letter of Credit is issued.
“Business Day”: a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; provided, that (a) with respect to notices and determinations in connection with, and payments of principal and interest on, Eurocurrency Loans, such day is also a day for trading by and between banks in Dollar deposits in the interbank eurocurrency market in London, (b) when used in connection with a Foreign Currency Loan, a SONIA Loan or any other dealings in Pounds Sterling (in each case, other than in connection with any calculation or determination of interest rate in respect of a SONIA Loan), the term “Business Day” shall also exclude any day on which commercial banks in London are authorized or required by law to close and any day on which banks are authorized or required by law to be closed in the principal financial center for that currency and, (c) in relation to any calculation or determination of interest rate in respect of a SONIA Loan, “Business Day” shall mean a SONIA Business Day and (d) when used in connection with Eurocurrency Loans denominated in Euros, the term “Business Day” shall also exclude any day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer System (TARGET) (or, if such clearing system ceases to be operative, such other clearing system (if any) determined by the Foreign Currency Agent to be a suitable replacement) is not open for settlement of payment in Euros.
“Calculation Date”: with respect to each Foreign Currency, the last day of each calendar quarter (or, if such day is not a Business Day, the next succeeding Business Day) and such other days from time to time as the Administrative Agent shall reasonably designate as a “Calculation Date”; provided, that the second Business Day preceding each Borrowing Date with respect to, and preceding each date of any borrowing, conversion or continuation of, any Foreign Currency Loan shall also be a “Calculation Date” with respect to the relevant Foreign Currency.; provided further that with respect to any SONIA Loan, each date that is on the numerically corresponding day in each calendar month that is
8
one month after the borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month) shall also be a “Calculation Date”.
“Calendar Quarter”: a three-month period consisting of (i) each January, February and March, (ii) each April, May and June, (iii) each July, August and September or (iv) each October, November and December.
“Canadian Dollars”: the lawful currency of Canada.
“Cancelled Bank”: (i) any Bank that has the whole or any part of its Commitment cancelled under subsection 2.13(a), (b) or (c), subsection 2.16(c) or subsection 2.17(b) or the Commitment of which has expired under subsection 2.16(a) and (ii) any Defaulting Bank that the Company designates in writing to such Bank and the Administrative Agent as a Cancelled Bank.
“Capital Corporation”: as defined in the preamble hereto.
“CBR Loan”: a Loan that bears interest at a rate determined by reference to the Central Bank Rate.
“CBR Spread”: the Applicable Margin, applicable to such Loan that is replaced by a CBR Loan.
“Central Bank Rate”: (a) the greater of (i) for any Loan denominated in Pounds Sterling, the Bank of England (or any successor thereto)’s “Bank Rate” as published by the Bank of England (or any successor thereto) from time to time and (ii) 0.00%; plus (b) the applicable Central Bank Rate Adjustment.
“Central Bank Rate Adjustment”: for any day, for any Loan denominated in Pounds Sterling, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of Adjusted Daily Simple SONIA for the five most recent SONIA Business Days preceding such day for which SONIA was available (excluding, from such averaging, the highest and the lowest Adjusted Daily Simple SONIA applicable during such period of five SONIA Business Days) minus (ii) the Central Bank Rate in respect of Pounds Sterling in effect on the last SONIA Business Day in such period. For purposes of this definition, the term Central Bank Rate shall be determined disregarding clause (b) of the definition of such term.
“Certificate of Non-Bank Status”: a certificate substantially in the form and substance of Exhibit P.
“Closing Date”: the date on which each of the conditions precedent specified in subsection 4.1 shall have been satisfied (or compliance therewith shall have been waived by the Majority Banks hereunder).
“Code”: the Internal Revenue Code of 1986, as amended from time to time.
“Code of Conduct”: as defined in subsection 3.9.
“Commitment”: as to any Bank, the amount set opposite such Bank’s name on Schedule II or in any assignment pursuant to which such Bank becomes a party hereto with respect to any interest purchased therein, as such amount may be modified as provided herein; collectively, as to all Banks, the “Commitments”.
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“Commitment Expiration Date”: as defined in subsection 2.16(a).
“Commitment Fee Rate”: the rate per annum set forth below in the column corresponding to the Prevailing Rating of the Company:
Level I Rating |
Level II Rating |
Level III Rating |
Level IV Rating |
Level V Rating |
0.050% |
0.060% |
0.070% |
0.090% |
0.110% |
“Commitment Increase Notice”: as defined in subsection 2.20(a).
“Commitment Increase Supplement”: as defined in subsection 2.20(c).
“Commitment Percentage”: as to any Bank at any time, the percentage which such Bank’s Commitment at such time constitutes of all the Commitments at such time or, at any time after the Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Bank’s Extensions of Credit then outstanding constitutes of the aggregate principal amount of the Total Extensions of Credit then outstanding; collectively, as to all the Banks, the “Commitment Percentages”; provided that when a Defaulting Bank shall exist, “Commitment Percentage” shall mean, when appropriate as determined by the Administrative Agent in order to provide ratable treatment at any time a Defaulting Bank exists (and without increasing the Commitment of any Bank), the percentage of the total Commitments (disregarding any Defaulting Bank’s Commitment) represented by such Bank’s Commitment.
“Commitment Period”: as to any Bank at any time, the period from and including the Closing Date to but not including the Termination Date of such Bank or such earlier date on which the Commitments shall terminate as provided herein.
“Committed Extensions of Credit”: as to any Bank at any time, the amount equal to the sum of the Dollar Equivalent of (a) the aggregate principal amount of all Committed Rate Loans held by such Bank then outstanding and (b) such Bank’s Commitment Percentage multiplied by the L/C Obligations then outstanding.
“Committed Rate Loans”: each loan made pursuant to subsection 2.1.
“Commonly Controlled Entity”: in relation to a Borrower, an entity, whether or not incorporated, which is under common control with such Borrower within the meaning of Section 414(b) or (c) of the Code.
“Company”: as defined in the preamble hereto.
“Consolidated Capital Base”: at a particular time for the Capital Corporation and its consolidated Subsidiaries, the sum of (a) the amount shown opposite the item “Total Stockholders’ Equity” on the consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries plus (b) all indebtedness of the Capital Corporation and its consolidated Subsidiaries for borrowed money subordinated (on terms no less favorable to the Administrative Agent and the Banks than the terms of subordination set forth on Schedule I) to the indebtedness which may be incurred hereunder by the Capital Corporation, provided that the sum of clauses (a) and (b) hereof as at the end of a fiscal quarter of
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the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly available consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries as at the end of such fiscal quarter and after such adjustments, if any, as may be required so that the sum of the amounts referred to in clauses (a) and (b) is determined in accordance with GAAP. Notwithstanding the foregoing, for purposes of determining compliance with subsection 7.2, adjustments resulting from any accumulated other comprehensive income as reflected on the most recent publicly available consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries as at the end of any fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of any fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be deemed not to be included in Consolidated Capital Base.
“Consolidated Net Worth”: as defined in subsection 6.2(b)(ii).
“Consolidated Senior Debt”: at a particular time for the Capital Corporation and its consolidated Subsidiaries, indebtedness for borrowed money other than any indebtedness for borrowed money that is subordinated, on terms no less favorable to the Administrative Agent and the Banks than the terms of subordination set forth on Schedule I, to the indebtedness which may be incurred hereunder by the Capital Corporation, provided that the amount of such indebtedness for borrowed money (other than such subordinated indebtedness) as at the end of a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly available consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries as at the end of such fiscal quarter and after such adjustments, if any, as may be required so that such amount is determined in accordance with GAAP. Notwithstanding the foregoing, for purposes of determining compliance with subsection 7.2, indebtedness for borrowed money in respect of any Securitization Indebtedness shall be deemed not included in Consolidated Senior Debt.
“Contractual Obligation”: as to any Person, any provision of any security issued by such Person or of any agreement, instrument or undertaking to which such Person is a party or by which it or any of its property is bound.
“Corresponding Tenor”: with respect to any Available Tenor, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Credit Rating”: as of any date, (a) as to any Person, the rating assigned to the relevant long term senior unsecured (and non-credit enhanced) Debt obligations of such Person by Moody’s, S&P or Fitch, in each case as of the close of business on such date and (b) if no rating for such Debt described in clause (a) is available, the corporate credit rating of such Person as announced by Moody’s, S&P or Fitch, in each case as of the close of business on such date.
“Currency”: any Dollars and any Foreign Currency.
“Daily Simple SOFR”: for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided that, if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
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“Daily Simple SONIA”: for any day (a “SONIA Interest Day”), an interest rate per annum equal to (a) SONIA for the day that is five SONIA Business Days (such fifth SONIA Business Day determined pursuant to each of subclauses (i) and (ii), the “SONIA Lookback Day”) prior to (i) if such SONIA Interest Day is a SONIA Business Day, such SONIA Interest Day or (ii) if such SONIA Interest Day is not a SONIA Business Day, the SONIA Business Day immediately preceding such SONIA Interest Day or (b) if SONIA is not available for the SONIA Lookback Day determined pursuant to clause (a) above, by 5:00 p.m., London time on any day of determination of Daily Simple SONIA, then Daily Simple SONIA for such day will be SONIA as published in respect of the first preceding SONIA Business Day prior to the SONIA Lookback Day for which SONIA was published on the SONIA Administrator’s Website; provided that Daily Simple SONIA determined pursuant to this clause (b) shall be utilized for purposes of calculation of Daily Simple SONIA for no more than three consecutive SONIA Interest Days and thereafter subsection 2.11(a) shall govern. Any change in Daily Simple SONIA due to a change in SONIA shall be effective from and including the effective date of such change in SONIA without notice to the Borrower.
“Deal Year”: as defined in subsection 2.16(c).
“Debt”: as defined in subsection 6.2.
“Default”: any of the events specified in Section 8, whether or not any requirement for the giving of notice, the lapse of time, or both, or any other condition, event or act has been satisfied.
“Defaulting Bank”: any Bank that has (a) failed to fund any portion of its Loans or participations in Letters of Credit within two Business Days of the date required to be funded by it hereunder, unless such Bank has notified the Administrative Agent and the Borrower that such failure is the result of such Bank’s good faith determination that one or more conditions precedent to funding has not been satisfied; (b) notified the Company, the Administrative Agent, any Issuing Bank or any Bank in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or generally under other agreements in which it commits to extend credit; (c) failed, within three Business Days after written request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit; provided that such Bank shall cease to be a Defaulting Bank pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower; (d) otherwise failed to pay over to the Administrative Agent or any other Bank any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute; or (e) (i) become or is insolvent or has a parent company that has become or is insolvent, (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or (iii) become or has a parent company that has become the subject of a Bail-In Action; provided that a Bank shall not be a Defaulting Bank solely by virtue of the ownership or acquisition of any equity interest in that Bank or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Bank with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Bank (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Bank. If any Bank shall become a Defaulting Bank, the Company shall have the right, so long as no Event of Default has occurred and is then continuing, upon
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giving written notice to the Administrative Agent and such Bank in accordance with subsection 2.6, notwithstanding subsection 2.12(b), to prepay in full the Loans of such Bank, together with accrued interest thereon, any amounts payable to such Bank pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid commitment fee or other amount payable to such Bank hereunder and/or, upon giving not less than three Business Days’ notice to such Bank and the Administrative Agent, to cancel the whole or part of the Commitment of any such Bank. Upon any such cancellation of the Commitment of a Defaulting Bank, participating interests in Letters of Credit shall be reallocated ratably among the remaining Banks in accordance with subsection 2.23(d).
“Designated Person”: a Person
(i) listed in the annex to, or otherwise the subject of the provisions of, any Executive Order;
(ii) named as a “Specially Designated National and Blocked Person” on the most current list published by OFAC at its official website or any replacement website or other replacement official publication of such list (each, an “SDN”), or is otherwise the subject of any Sanctions Laws and Regulations; or
(iii) in which an SDN has a controlling interest of 50% or greater ownership interest.
“Dividing Person”: as defined in the definition of Division.
“Division”: the statutory division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement) pursuant to Section 18-217 of the Delaware Limited Liability Company Act, which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Division Successor”: any person that, upon the consummation of a Division of a Dividing Person, holds all or substantially all of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division.
“Documentation Agent”: as defined in the preamble hereto.
“Dollar Equivalent”: at any time as to any amount denominated in a Foreign Currency, the equivalent amount in Dollars as reasonably determined by the Administrative Agent at such time on the basis of the Exchange Rate for the purchase of Dollars with such Foreign Currency on (a) in the case of a determination made pursuant to subsection 2.11(g), the date of such conversion and (b) in the case of any other determination, the most recent Calculation Date for such Foreign Currency.
“Dollar Loan”: any Committed Rate Loan denominated in Dollars.
“Dollars” and “$”: dollars in lawful currency of the United States of America.
“Domestic Bank”: any Bank organized under the laws of the United States of America, any State thereof or the District of Columbia.
“Early Opt-in Election”:
(a) in the case of Loans denominated in Dollars, the occurrence of:
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(1) a notification by the Administrative Agent to (or the request by the Company to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2) the joint election by the Administrative Agent and the Company to trigger a fallback from the Eurocurrency Rate for Loans denominated in Dollars and the provision by the Administrative Agent of written notice of such election to the Banks; and
(b) in the case of Loans denominated in any Foreign Currency, the occurrence of:
(1) (i) a determination by the Administrative Agent or the Company (as notified to the Administrative Agent) or (ii) a notification by the Majority Banks to the Administrative Agent (with a copy to the Borrowers) that the Majority Banks have determined that at least five currently outstanding syndicated credit facilities denominated in the applicable Foreign Currency at such time contain (as a result of an amendment or as originally executed) a new benchmark interest rate to replace the Relevant Rate (and such syndicated credit facilities are identified in such notice and are publicly available for review); and
(2) (i) the joint election by the Administrative Agent and the Company or (ii) the election by the Majority Banks to declare that an Early Opt-in Election has occurred with respect to Loans denominated in such applicable Foreign Currency and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrowers and the Banks, by the Company of written notice of such election to the Administrative Agent or by the Majority Banks of written notice of such election to the Administrative Agent.
“EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”: any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Signature”: an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“EMU”: the Economic and Monetary Union as contemplated in the Treaty.
“Equipment Operations”: those business segments of the Company and its consolidated Subsidiaries that are primarily engaged in the manufacture and distribution of equipment, parts and related attachments.
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“Equipment Operations Debt”: at a particular time, the sum of short-term and long-term indebtedness for borrowed money that is or would be shown on a balance sheet of Equipment Operations (with Financial Services reflected only on an equity basis), which balance sheet was or would be prepared on the basis of the most recent publicly available consolidated balance sheet of the Company and its consolidated Subsidiaries as at the end of any fiscal quarter of the Company and its consolidated Subsidiaries (including the last quarter of any fiscal year of the Company and its consolidated Subsidiaries).
“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time.
“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Euro”: the single currency of Participating Member States of the EMU introduced in accordance with the provisions of Article 123 of the Treaty and, in respect of all payments to be made under this Agreement in Euro, means immediately available, freely transferable funds in such currency.
“Eurocurrency Loans”: Committed Rate Loans at such time as they are made and/or being maintained at a rate of interest based upon a Eurocurrency Rate.
“Eurocurrency Rate”: (a) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan and for each Index Rate Bid Loan, denominated in Dollars or any relevant Foreign Currency, other than Canadian Dollars, Australian Dollars, New Zealand Dollars and, Euros and Pounds Sterling, the London interbank offered rate as administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for such Currency for a tenor equal in length to such Interest Period as displayed on page LIBOR01 or LIBOR02 of the Reuters Screen (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in consultation with the Borrowers; in each case, the “LIBOR Screen Rate”) at approximately 11:00 A.M., Local Time, two Business Days prior to the beginning of such Interest Period (or, in the case of any Eurocurrency Loan denominated in Pounds Sterling, on the first day of such Interest Period); provided that, if the LIBOR Screen Rate shall not be available at such time for such Interest Period (a “LIBOR Impacted Interest Period”) with respect to the relevant Currency, then the Eurocurrency Rate shall be the LIBOR Interpolated Rate at such time. “LIBOR Interpolated Rate” means, at any time, the rate per annum determined by the Administrative Agent to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBOR Screen Rate for the longest period (for which that LIBOR Screen Rate is available in the relevant Currency) that is shorter than the LIBOR Impacted Interest Period and (b) the LIBOR Screen Rate for the shortest period (for which that LIBOR Screen Rate is available for the relevant Currency) that exceeds the LIBOR Impacted Interest Period, in each case, at such time.
(b) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in Canadian Dollars, the rate per annum equal to the average rate for bankers acceptances as administered by Thomson Reuters Benchmark Services Limited (or any other Person that takes over the administration of such rate) for a tenor equal in length to such Interest Period as displayed on page CDOR of the Reuters Screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “CDOR Screen Rate”) at approximately 11:00 A.M., Local Time, on the first day of such Interest Period (or such other day as is
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generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent); provided, that, if the CDOR Screen Rate shall not be available at such time for such Interest Period (a “CDOR Impacted Interest Period”) with respect to Canadian Dollars, then the Eurocurrency Rate for Canadian Dollars shall be the CDOR Interpolated Rate at such time. “CDOR Interpolated Rate” means, at any time, the rate per annum determined by the Administrative Agent to be equal to the rate that results from interpolating on a linear basis between: (a) the CDOR Screen Rate for the longest period (for which that CDOR Screen Rate is available in Canadian Dollars) that is shorter than the CDOR Impacted Interest Period and (b) the CDOR Screen Rate for the shortest period (for which that CDOR Screen Rate is available for Canadian Dollars) that exceeds the CDOR Impacted Interest Period, in each case, at such time.
(c) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in Australian Dollars, the rate per annum equal to the average bid reference rate as administered by the Australian Financial Markets Association (or any other Person that takes over the administration of that rate) for Australian Dollar bills of exchange with a tenor equal in length to such Interest Period (or as close to such Interest Period as possible), displayed on page BBSY of the Reuters Screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “BBSY Screen Rate”) at approximately 11:00 A.M., Local Time, two Business Days prior to the beginning of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent); provided, that, if the BBSY Screen Rate shall not be available at such time for such Interest Period, the Administrative Agent may substitute for such rate with an alternative published interest rate reasonably acceptable to the applicable Borrower (or other rate basis agreed by the applicable Borrower and the Administrative Agent, including interpolation in a manner consistent with paragraphs (a) and (b) above).
(d) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in New Zealand Dollars, the rate per annum equal to the average bid reference rate as administered by the New Zealand Financial Markets Association (or any other Person that takes over the administration of that rate) for New Zealand Dollar bills of exchange with a tenor equal in length to such Interest Period (or as close to such Interest Period as possible), displayed on page BKBM of the Reuters Screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “BKBM Screen Rate”) at approximately 11:00 A.M., Local Time, on the first day of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent); provided, that, if the BKBM Screen Rate shall not be available at such time for such Interest Period, the Administrative Agent may substitute such rate with an alternative published interest rate reasonably acceptable to the applicable Borrower (or other rate basis agreed by the applicable Borrower and the Administrative Agent, including interpolation in a manner consistent with paragraphs (a) and (b) above).
(e) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in Euros, the rate per annum equal to the interbank offered rate administered by the European Money Markets Institute (or any other Person that takes over the administration of such rate) for a tenor equal in length to such Interest Period as displayed on page on Reuters Page EURIBOR01 (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation
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with the Borrowers; in each case, the “EURIBOR Screen Rate”) at approximately 11:00 a.m., Local Time, two Business Days prior to the beginning of such Interest Period; provided, that, if the EURIBOR Screen Rate shall not be available at such time for such Interest Period, the Administrative Agent may substitute such rate with an alternative published interest rate reasonably acceptable to the applicable Borrower (or other rate basis agreed by the applicable Borrower and the Administrative Agent, including interpolation in a manner consistent with paragraphs (a) and (b) above).
Notwithstanding the above, in no event shall the Eurocurrency Rate be less than zero.
“Event of Default”: any of the events specified in Section 8, provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, event or act has been satisfied.
“Exchange Rate”: on any day, the rate at which the starting Currency may be exchanged into the other relevant Currency, as set forth at approximately 10:00 A.M., Local Time, on such date on the Reuters World Spots page for such starting Currency. In the event that such rate does not appear on any Reuters World Spots page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates reasonably selected by the Administrative Agent.
“Existing Credit Agreement”: as defined in subsection 4.1(e).
“Existing Letters of Credit”: the letters of credit issued under the Existing Credit Agreement and outstanding on the Closing Date and set forth on Schedule III.
“Exposure”: (a) with respect to an Objecting Bank at any time, the aggregate amount of such Bank’s Extensions of Credit then outstanding and (b) with respect to any other Bank at any time, the Commitment of such Bank then in effect or, if the Commitments have been terminated, the amount of such Bank’s Extensions of Credit then outstanding.
“Extension Request”: each request by the Borrowers made pursuant to subsection 2.16 for the Banks to extend this Agreement, which shall contain the information in respect of such extension specified in Exhibit I and shall be delivered to the Administrative Agent in writing.
“Extensions of Credit”: as to any Bank at any time, the amount equal to the sum of the Dollar Equivalent of (a) the aggregate principal amount of all Loans held by such Bank then outstanding and (b) such Bank’s Commitment Percentage multiplied by the L/C Obligations then outstanding.
“FATCA”: Sections 1471 through 1474 of the Code (and any comparable successor provisions), any effective regulations published thereunder or official interpretations thereof issued by any Governmental Authority charged with the administration thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any applicable intergovernmental agreements with respect thereto, and any treaty, law, regulations, or other official guidance enacted in any other jurisdiction relating to such intergovernmental agreement.
“Federal Funds Effective Rate”: on any particular date, the rate set forth for such date or, if such date is not a Business Day, the next preceding Business Day, opposite the caption “Federal Funds (Effective)” in the weekly statistical release designated as “H.15(519)” (or any successor publication) published by the Board or, if such rate is not so published for such date, the average of the quotations for such day on such transactions received by the Administrative Agent from three federal funds dealers of recognized standing selected by it; provided that in no event shall the Federal Funds Effective Rate be less than zero.
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“Federal Reserve Board”: the Board of Governors of the Federal Reserve System of the United States of America.
“Financial Services”: the businesses of the Company (including the credit businesses) that are not primarily engaged in Equipment Operations.
“First Amendment”: the First Amendment to this Agreement, dated as of the First Amendment Effective Date.
“First Amendment Effective Date”: October 26, 2021.
“Fitch”: Fitch Ratings Inc.
“Fixed Charges”: for any particular period for the Capital Corporation and its consolidated Subsidiaries, all of the Capital Corporation’s and its consolidated Subsidiaries’ consolidated interest on indebtedness for borrowed money, amortization of discounts of indebtedness for borrowed money, the portion of rentals under financing leases deemed to represent interest and rentals under operating leases; provided, that, notwithstanding the foregoing, consolidated interest on Securitization Indebtedness and amortization of Securitization Indebtedness shall be deemed not included in Fixed Charges; provided, further, that such amounts (but not any amounts constituting consolidated interest on, or amortization of, Securitization Indebtedness) for a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly available consolidated statement of income of the Capital Corporation and its consolidated Subsidiaries for or covering such fiscal quarter and after such adjustments, if any, as may be required so that such amounts are determined in accordance with GAAP.
“Floor” the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Eurocurrency Rate, Adjusted Daily Simple SONIA or the Central Bank Rate, as applicable.
“Foreign Bank”: any Bank that is not a Domestic Bank.
“Foreign Currency”: (a) Euros, Pounds Sterling, Australian Dollars and Canadian Dollars, (b) upon the earlier of (i) confirmation by Deutsche Bank AG, New York Branch to the Administrative Agent that it (or a branch or affiliate thereof) can fund in New Zealand Dollars and (ii) Deutsche Bank AG, New York Branch ceasing to be a Bank hereunder, New Zealand Dollars and (c) as agreed by the Administrative Agent, any other Currency which is freely traded and convertible into Dollars in the London interbank market and for which the Dollar Equivalent thereof can be calculated from time to time.
“Foreign Currency Agent”: J.P. Morgan AG, or any successor appointed pursuant to this Agreement.
“Foreign Currency Equivalent”: at the time of determination or conversion thereof, as applicable, as to any amount denominated or expressed in Dollars, the equivalent amount in the applicable Foreign Currency as reasonably determined by the Administrative Agent at such time on the basis of the Exchange Rate for the purchase of such Foreign Currency with Dollars on such date.
“Foreign Currency Loan”: each Loan denominated in a Foreign Currency.
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“GAAP”: generally accepted accounting principles in the United States of America as applied in the preparation of financial statements of the Company or the Capital Corporation, respectively, as of the fiscal year ended November 1, 2020, except with respect to capital lease obligations, in which case the generally accepted accounting principles in the United States of America as applied in the preparation of financial statements of the Company or the Capital Corporation, respectively, as of January 1, 2015 shall apply.
“Governmental Authority”: any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Hedging Transaction”: any swap transaction, interest rate protection agreement (including any interest rate swap, interest “cap” or “collar” or any other interest rate hedging device entered into by the Capital Corporation or one or more of its Subsidiaries), option agreement, short or long position in equity or debt instruments, commodities, futures and forward transactions, outperformance agreement or other similar transaction, agreement or arrangement entered into by the Capital Corporation or one or more of its Subsidiaries.
“IBA”: has the meaning assigned to such term in subsection 1.4.
“Important Property”: (a) any manufacturing plant, including land, all buildings and other improvements thereon, and all manufacturing machinery and equipment located therein, owned and used by the Company or a Restricted Subsidiary primarily for the manufacture of products to be sold by the Company or such Restricted Subsidiary, (b) the executive office and administrative building of the Company in Moline, Illinois, and (c) research and development facilities, including land and buildings and other improvements thereon and research and development machinery and equipment located therein, in each case, owned and used by the Company or a Restricted Subsidiary; except in any case property of which the aggregate fair value as determined by the Board of Directors of the Company does not at the time exceed 1% of Consolidated Net Worth.
“Increasing Bank”: as defined in subsection 2.20(c).
“Indemnified Person”: as defined in subsection 10.4(b).
“Indemnified Taxes”: as defined in subsection 2.17(a).
“Index Debt”: any senior, unsecured, non-credit enhanced long-term debt issued by the Company.
“Index Rate Bid Loan”: any Bid Loan made at an interest rate based upon the Applicable Index Rate.
“Index Rate Bid Loan Request”: any Bid Loan Request requesting the Banks to offer to make Index Rate Bid Loans at an interest rate equal to the Applicable Index Rate plus (or minus) a margin.
“Interest Payment Date”: (a) as to any ABR Loan, the last Business Day of each March, June, September and December, commencing on the first of such days to occur after such ABR Loan is made or a Eurocurrency Loan is converted to an ABR Loan, (b) as to any Eurocurrency Loan, the last day of each Interest Period applicable thereto, provided that as to any Eurocurrency Loan in respect of which a Borrower has selected an Interest Period of greater than three months, interest shall also be paid on the
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day which is three months after the beginning of such Interest Period and, (c) as to any SONIA Loan, each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing Date of such Loan (or if there is no numerically corresponding day in such later month, then the last day of such month) and (d) the Termination Date.
“Interest Period”: (a) with respect to any Eurocurrency Loan, the period commencing on the Borrowing Date, the date any ABR Loan is converted to a Eurocurrency Loan or the date any Eurocurrency Loan is continued as a Eurocurrency Loan, as the case may be, with respect to such Eurocurrency Loan and ending one, two (so long as a two-month Interest Period is published and available), three or six months thereafter in the case of any Eurocurrency Loan denominated in any Currency other than Canadian Dollars (or, with the consent of all relevant Banks, twelve months thereafter, or a period of less than one month thereafter if all relevant Banks consent to such period), or thirty, sixty, or ninety days thereafter in the case of any Eurocurrency Loan denominated in Canadian Dollars, as selected by a Borrower in its notice of borrowing, conversion or continuance as provided in subsection 2.1(c) or 2.9;
(b) with respect to any Bid Loan, the period commencing on the Borrowing Date with respect to such Bid Loan and ending on the date not less than seven days nor more than six months thereafter, as specified by a Borrower in its Bid Loan Request as provided in subsection 2.2(b); and
(c) with respect to any Negotiated Rate Loan, the period or periods commencing on the Borrowing Date with respect to such Negotiated Rate Loan or the last day of any Interest Period with respect thereto and ending on the dates as shall be mutually agreed upon between the relevant Borrower and the relevant Bank;
provided, that all of the foregoing provisions relating to Interest Periods are subject to the following:
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“IRS”: as defined in subsection 2.17(c).
“ISDA Definitions”: the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“ISP”: with respect to any standby Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuing Bank”: any Bank that a Borrower may select from time to time that is willing to act as issuer of Letters of Credit, in its capacity as issuer of any Letter of Credit.
“Issuing Bank L/C Commitment”: $0.
“JD Luxembourg”: as defined in the preamble hereto.
“JPMorgan Chase Bank, N.A.”: JPMorgan Chase Bank, N.A., a national association.
“Judgment Currency”: as defined in subsection 2.24.
“L/C Commitment”: $0.
“L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed pursuant to subsection 2.26(e). For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“L/C Participants”: the collective reference to all the Banks (other than, with respect to any Letter of Credit, the applicable Issuing Bank in its capacity as Issuing Bank) or any of them.
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“Letter of Credit Fee”: the rate per annum equal to the Applicable Margin for Eurocurrency Loans set forth in the term “Applicable Margin” corresponding to the Prevailing Rating of the Company as of such date of determination on the face amount of each Letter of Credit.
“Letters of Credit”: as defined in subsection 2.26(a).
“Level”: Level I Rating, Level II Rating, Level III Rating, Level IV Rating or Level V Rating, as the context shall require.
“Level I Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is Aa3 or higher by Moody’s, AA- or higher by S&P and AA- or higher by Fitch.
“Level II Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is A1 by Moody’s, A+ by S&P and A+ by Fitch.
“Level III Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is A2 by Moody’s, A by S&P and A by Fitch.
“Level IV Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is A3 by Moody’s, A- by S&P and A- by Fitch.
“Level V Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is below A3 by Moody’s, below A- by S&P and below A- by Fitch.
“LIBOR Screen Rate”: as defined in the definition of Eurocurrency Rate.
“Loan Account”: as defined in subsection 2.3; collectively, the “Loan Accounts”.
“Loan Assignees”: as defined in subsection 10.5(c).
“Loan Assignment”: an Assignment and Assumption, substantially in the form of Exhibit E.
“Loan Documents”: this Agreement, including schedules and exhibits hereto, and the Notes.
“Loans”: the collective reference to the Committed Rate Loans, the Bid Loans and the Negotiated Rate Loans.
“Local Time”: (a) in the case of Foreign Currency Loans denominated in Canadian Dollars, Toronto, Ontario time, (b) in the case of Foreign Currency Loans denominated in Australian Dollars, Sydney, Australia time, (c) in the case of Foreign Currency Loans denominated in New Zealand Dollars, Wellington, New Zealand time, (d) in the case of Foreign Currency Loans denominated in Euros, Brussels time, (e) in the case of all other Foreign Currency Loans, London time and (f) in all other cases, New York time.
“Losses”: as defined in subsection 10.4(b).
“Luxembourg Obligations”: the collective reference to the unpaid principal of and interest on the Loans made to JD Luxembourg and all other obligations and liabilities of JD Luxembourg (including, without limitation, interest accruing at the then applicable rate provided herein after the
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maturity of such Loans and interest accruing at the then applicable rate provided herein after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to JD Luxembourg, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) to the Administrative Agent or any Bank, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement or any other document made, delivered or given in connection with any of the foregoing, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Administrative Agent or to the Banks that are required to be paid by JD Luxembourg pursuant to the terms of any of the foregoing agreements).
“Majority Banks”: at any particular time, Banks having Commitment Percentages aggregating more than fifty percent; provided that (a) at any time after the termination of all the Commitments, “Majority Banks” shall mean Banks holding Extensions of Credit aggregating more than fifty percent in principal amount of the Total Extensions of Credit and (b) at any time after the Commitment Expiration Date with respect to any Objecting Bank (but prior to the termination of all the Commitments), “Majority Banks” shall mean Banks whose Exposure aggregates more than fifty percent of the aggregate Exposure of all the Banks.
“Margin Stock”: as defined in Regulation U of the Board.
“Moody’s”: Moody’s Investor Service, Inc.
“Mortgage”: as defined in subsection 6.2.
“Negotiated Rate Loan”: each Loan made to the Company or the Capital Corporation by a Bank pursuant to a Negotiated Rate Loan Request in such principal amount, for such number of Interest Periods (subject to the proviso to the definition of “Interest Period” in this subsection 1.1) and having such interest rate(s) and repayment terms as shall, in each case, be mutually agreed upon between such Borrower and such Bank.
“Negotiated Rate Loan Request”: each request by the Company or the Capital Corporation for a Bank to make Negotiated Rate Loans, which shall be delivered to such Bank in writing, by facsimile transmission, or by telephone, immediately confirmed in writing, and which shall specify the amount to be borrowed and the proposed Borrowing Date.
“Net Earnings Available for Fixed Charges”: for any particular period for the Capital Corporation and its consolidated Subsidiaries, the sum of (i) consolidated net earnings of the Capital Corporation and such Subsidiaries for such period without deduction of Fixed Charges and without deduction of federal, state or other income taxes, provided that such net earnings for a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly available statement of income of the Capital Corporation and its consolidated Subsidiaries for or covering such fiscal quarter and after such adjustments, if any, as may be required so that such net earnings are determined in accordance with GAAP, except that earned investment tax credits may be included as revenue in the consolidated income statement of the Capital Corporation and its consolidated Subsidiaries, rather than as an offset against the provision for income taxes and (ii) Support Payments received by the Capital Corporation in or in respect of such period.
“New Bank”: as defined in subsection 2.20(b).
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“New Bank Supplement”: as defined in subsection 2.20(b).
“New Zealand Dollars”: the lawful currency of New Zealand.
“Non-Qualifying Bank”: as defined in subsection 2.17(e).
“Notes”: the collective reference to any promissory note evidencing Loans.
“NYFRB”: the Federal Reserve Bank of New York.
“NYFRB Rate”: for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Objecting Banks”: as defined in subsection 2.16(a).
“Offered Increase Amount”: as defined in subsection 2.20(a).
“Overnight Bank Funding Rate”: for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Overnight Rate”: for any day, (a) with respect to any amount denominated in Dollars, the Federal Funds Effective Rate, and (b) with respect to any amount denominated in a Foreign Currency, at a rate reasonably determined by the Administrative Agent to be the cost to it of funding such amounts.
“Participant Register”: as defined in subsection 10.5(b).
“Participants”: as defined in subsection 10.5(b).
“Participating Member State”: any member state of the European Community that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.
“Payment”: as defined in subsection 9.4(b).
“Payment Notice”: as defined in subsection 9.4(b).
“Person”: an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature, provided that for purposes of subsection 8(h), Person shall also include two or more entities acting as a syndicate or any other group for the purpose of acquiring, holding or disposing of securities of the Company.
“Plan”: any pension plan which is covered by Title IV of ERISA and in respect of which either Borrower or a Commonly Controlled Entity is an “employer” as defined in Section 3(5) of ERISA.
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“Pounds” or “£” or “Pounds Sterling”: the lawful currency of the United Kingdom.
“Prevailing Rating”: at any date of determination, the Level then applicable; provided that for purposes of determining the applicable Level when the assigned Credit Ratings of the Company by all three Ratings Agencies do not fall within the same Level: (i) if the Credit Ratings of the Company assigned by S&P and Moody’s fall within the same Level, the Prevailing Rating shall be such Level, (ii) if the Credit Ratings of the Company assigned by S&P and Moody’s do not fall within the same Level and the ratings differential is one Level, the Prevailing Rating shall be determined solely by reference to the higher of (x) the Credit Rating of the Company assigned by S&P and (y) the Credit Rating of the Company assigned by Moody’s and (iii) if the Credit Ratings of the Company assigned by S&P and Moody’s do not fall within the same Level and the ratings differential is more than one Level, the Prevailing Rating shall be the Level one notch lower than the Level determined solely by reference to the higher of (x) the Credit Rating of the Company assigned by S&P and (y) the Credit Rating of the Company assigned by Moody’s.
“Prime Rate”: the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Purchasing Banks”: as defined in subsection 10.5(d).
“Ratings Agencies”: S&P, Moody’s and Fitch.
“Re-Allocation Date”: as defined in subsection 2.20(e).
“Reference Time”: with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Eurocurrency Rate with respect to Loans denominated in Dollars or Pounds Sterling, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is SONIA, then four SONIA Business Days prior to such setting and (3) otherwise, the time determined by the Administrative Agent in its reasonable discretion.
“Register”: as defined in subsection 10.5(e).
“Reimbursement Obligation”: the obligation of the Company or the Capital Corporation to reimburse an Issuing Bank pursuant to subsection 2.26(e) for amounts drawn under Letters of Credit issued for its account.
“Relevant Governmental Body”: (a) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto and, (b) with respect to a Benchmark Replacement in respect of Loans denominated in Pounds Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto and (c) with respect to a Benchmark Replacement in respect of Loans denominated in any Foreign Currency (other than Pounds Sterling), (i) the central bank for the Foreign Currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (ii) any working group or committee officially
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endorsed or convened by (1) the central bank for the Foreign Currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board or any part thereof.
“Relevant Rate”: with respect to (i) any Eurocurrency Loan denominated in any Currency, the Eurocurrency Rate applicable thereto and (ii) any Loan denominated in Pounds Sterling, Adjusted Daily Simple SONIA.
“Report Period”: as defined in subsection 2.18.
“Reportable Event”: any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder.
“Required Banks”: at a particular time, Banks having Commitment Percentages aggregating at least 66-2/3%; provided that (a) at any time after the termination of all the Commitments, “Required Banks” means Banks holding Extensions of Credit aggregating at least 66-2/3% in principal amount of the Total Extensions of Credit and (b) at any time after the Commitment Expiration Date with respect to any Objecting Bank (but prior to the termination of all the Commitments), “Required Banks” means Banks whose Exposure aggregates at least 66-2/3% of the aggregate Exposure of all the Banks.
“Requirement of Law”: as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Reserves”: as defined in subsection 2.13(c).
“Resolution Authority”: an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”: of a Borrower, the Chairman, the President, any Executive, Senior or other Vice President, the Treasurer, any Assistant Secretary and any Assistant Treasurer of such Borrower.
“Restricted Margin Stock”: any Margin Stock, the sale, pledge or other disposition of which by the Company or any of its Subsidiaries is in any way restricted by an arrangement with any Bank or any affiliate thereof to the extent that the value thereof (determined in accordance with Regulation U of the Board) does not exceed 25% of the value (determined in accordance with such Regulation U) of all the assets subject to such restriction.
“Restricted Subsidiary”: any Subsidiary of the Company incorporated in the United States of America or Canada (a) which is engaged in, or whose principal assets consist of property used by the Company or any Restricted Subsidiary in, the manufacture of products within the United States of America or Canada or in the sale of products principally to customers located in the United States of America or Canada except any corporation which is a retail dealer in which the Company has, directly or indirectly, an investment, or (b) which the Company shall designate as a Restricted Subsidiary in an officers’ certificate signed by two Responsible Officers of the Company and delivered to the Administrative Agent.
“S&P”: Standard and Poor’s Financial Services LLC.
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“Sale and Lease-back Transaction”: as defined in subsection 6.3.
“Sanctions Laws and Regulations”:
(i) any sanctions, prohibitions or requirements imposed by any executive order (an “Executive Order”) or by any sanctions program administered by the U.S. Department of the Treasury Office of Foreign Assets Control (“OFAC”), the U.S. State Department Directorate of Defense Trade Controls or the U.S. Department of Commerce Bureau of Industry and Security; and
(ii) any sanctions measures imposed by the United Nations Security Council, the European Union or the United Kingdom.
“Screen Rate”: the LIBOR Screen Rate, the CDOR Screen Rate, the EURIBOR Screen Rate, the BBSY Screen Rate and/or the BKBM Screen Rate, as applicable.
“Securitization Indebtedness”: the aggregate outstanding indebtedness for borrowed money, owner trust certificates (however classified) or credit enhancements incurred in connection with transactions involving (i) the sale, transfer or other disposition of receivables or leases (retail or wholesale) by the Capital Corporation or any of its Subsidiaries and (ii) the issuance of commercial paper, medium term notes or any other form of financing by any structured bankruptcy-remote Subsidiary of the Capital Corporation or any related conduit lender (such transactions, “Securitizations”), provided, that the aggregate outstanding credit enhancements in the form of cash or letter(s) of credit provided by the Capital Corporation or any of its Subsidiaries (other than any structured bankruptcy-remote Subsidiary) in excess of 10% of the aggregate outstanding indebtedness for borrowed money and owner trust certificates (however classified) incurred in connection with such Securitizations shall not be deemed for the purposes of this Agreement to be Securitization Indebtedness, but shall be deemed for purposes of subsection 7.2 to be Consolidated Senior Debt.
“Significant Subsidiary”: of a Borrower, any Subsidiary of such Borrower the assets, revenues or net worth of which is, at the time of determination, equal to or greater than ten percent of the assets, revenues or net worth, respectively, of such Borrower at such time.
“SOFR”: with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website at approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day.
“SOFR Administrator”: the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website”: the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SONIA”: with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the SONIA Administrator on the SONIA Administrator’s Website on the immediately succeeding Business Day.
“SONIA Administrator”: the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
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“SONIA Administrator’s Website”: the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
“SONIA Borrowing”: as to any borrowing, the SONIA Loans comprising such borrowing.
“SONIA Business Day”: for any Loan denominated in Pounds Sterling, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London.
“SONIA Interest Day”: has the meaning specified in the definition of “Daily Simple SONIA”.
“SONIA Loan”: a Loan that bears interest at a rate based on Adjusted Daily Simple SONIA.
“SONIA Lookback Day”: has the meaning specified in the definition of “Daily Simple SONIA”.
“Subsidiary”: of a Person, a corporation or other entity of which securities or other ownership interests having ordinary voting power (other than securities or other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other Persons performing similar functions are at the time directly or indirectly owned by such Person or one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of such Person.
“Support Payments”: payments from the Company to the Capital Corporation made pursuant to that certain Support Agreement, dated as October 15, 1996, by and between the Company and the Capital Corporation, as amended by the First Amended Agreement, dated as of November 1, 2003, between the Company and the Capital Corporation.
“Syndication Agent”: as defined in the preamble hereto.
“Termination Date”: March 29, 2025 or such later date as shall be determined pursuant to the provisions of subsection 2.16 with respect to non-Objecting Banks.
“Term SOFR”: for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term SOFR Notice”: a notification by the Administrative Agent to the Banks and the Borrowers of the occurrence of a Term SOFR Transition Event.
“Term SOFR Transition Event”: the determination by the Administrative Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event has previously occurred resulting in a Benchmark Replacement in accordance with subsection 2.11 that is not Term SOFR.
“Total Commitments”: at any time, the aggregate amount of the Commitments then in effect.
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“Total Extensions of Credit”: at any time, the aggregate amount of the Extensions of Credit of the Banks outstanding at such time.
“Total Stockholders’ Equity”: at a particular time, the total stockholders’ equity, exclusive of adjustments resulting from any accumulated other comprehensive income of the Company and its consolidated Subsidiaries as at the end of any fiscal quarter (including the last quarter of any fiscal year) as determined in accordance with GAAP.
“Transferees”: as defined in subsection 10.5(g).
“Transfer Effective Date”: the effective date of an assignment of Loans or Commitments under a Loan Assignment.
“Treaty”: the Treaty establishing the European Economic Community, being the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1987, the Maastricht Treaty (which was signed at Maastricht on February 7, 1992 and came into force on November 1, 1993), the Amsterdam Treaty (which was signed at Amsterdam on October 2, 1997 and came into force on May 1, 1999) and the Nice Treaty (which was signed on February 26, 2001), each as amended from time to time and as referred to in legislative measures of the European Union for the introduction of, changeover to or operating of the Euro in one or more member states.
“Type”: as to any Committed Rate Loan, its nature as an ABR Loan, SONIA Loan, or Eurocurrency Loan.
“UCP”: with respect to any commercial Letter of Credit, the Uniform Customs and Practice for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at the time of issuance and subject to which such Letter of Credit was issued).
“UK Financial Institution”: any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority”: the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement”: the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Withholding Agent”: any Borrower or the Administrative Agent, as the case may be.
“Working Day”: any Business Day on which dealings in foreign currencies and exchange between banks may be carried on in London, England and New York, New York.
“Write-Down and Conversion Powers”: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom,
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any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurocurrency Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. Upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-In Election with respect to any applicable Currency, subsection 2.11(b) and (c) provide a mechanism for determining an alternative rate of interest. The Administrative Agent will promptly notify the Borrower, pursuant to subsection 2.11(e), of any change to the reference rate upon which the interest rate on Eurocurrency Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to Daily Simple SONIA, the London interbank offered rate or other rates in the definition of “Eurocurrency Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to subsection 2.11(b) or (c), whether upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes pursuant to subsection 2.11(d)), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate for any Currency will be similar to, or produce the same value or economic equivalence of, Adjusted Daily Simple SONIA, the Eurocurrency Rate or applicable Screen Rate for Loans denominated in such Currency or have the same volume or liquidity as did the London interbank offered rate (or the euro interbank offered rate, as applicable) prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of Adjusted Daily Simple SONIA, any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrowers. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain SONIA or Daily Simple SONIA, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrowers, any Bank or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
SECTION 2. | THE COMMITTED RATE LOANS; THE BID LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS |
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any time (but shall not be required to) exceed the Commitment of such Bank so long as the Dollar Equivalent of the aggregate outstanding principal amount of all Loans and L/C Obligations does not at any time exceed the aggregate amount of the Commitments.
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(c)(d)___If all or a portion of the principal amount of any of the Committed Rate Loans or Reimbursement Obligations shall not be paid when due (whether at the stated maturity, by acceleration or otherwise) such overdue principal amount of such Committed Rate Loan and Reimbursement Obligations (i) shall bear interest at a rate per annum which is 1% above the rate which would otherwise be applicable pursuant to subsection 2.8(a) or, (b) or (c) as the case may be, from the date when such principal amount is due until the date on which such amount is paid in full and (ii) shall, if such Committed Rate Loan is a Eurocurrency Loan denominated in Dollars, be converted to an ABR Loan at the end of the Interest Period applicable thereto.
(d)(e) Interest shall be payable in arrears on each Interest Payment Date.
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current Interest Period, to Dollar Loans at the applicable Exchange Rate or, (C) request that any outstanding SONIA Loan bear interest at the Central Bank Rate for Pounds Sterling plus the CBR Spread; provided that, if the Administrative Agent, determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for Pounds Sterling cannot be determined, any outstanding affected SONIA Loans, at the applicable Borrower’s election, shall either (A) be converted into ABR Loans denominated in Dollars at the applicable exchange rate immediately or (B) be prepaid in full immediately or (D) in the case of (A) Loans (other than SONIA Loans) requested to be made on the first day of such Interest Period or (B) SONIA Loans requested to be made, withdraw the notice given under subsection 2.1 or 2.9, as the case may be, by giving telephonic notice to the Administrative Agent or the Foreign Currency Agent, as applicable, no later than 10:00 A.M. (Local Time) one Business Day prior to the applicable Borrowing Date, confirmed in writing no later than one Business Day after such telephonic notice is given; provided that if the Administrative Agent or the Foreign Currency Agent, as applicable, does not receive any notice permitted from the relevant Borrower hereunder, such Borrower shall be deemed to have requested that the affected Loans be made as, continued as or converted into, as the case may be, ABR Loans or, in the case of Foreign Currency Loans, shall be deemed to have requested that the affected Loans be made as, continued as or converted into, as the case may be, Dollar Loans which are (1) ABR Loans (in the case of clause (i) above) or (2) Eurocurrency Loans (in the case of clause (ii) above). Until the notice given pursuant to the first sentence of this paragraph has been withdrawn by the Administrative Agent or the Foreign Currency Agent, as applicable, no further Eurocurrency Loans denominated in Dollars (in the case of clause (i) above) or Eurocurrency Loans or SONIA Loans, in each case in an Affected Foreign Currency, shall be made or, with respect to such Eurocurrency Loans, continued as such, nor shall the Borrower have the right to convert ABR Loans to Eurocurrency Loans.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark with respect to a Loan denominated in any Currency, then (x) if a Benchmark Replacement for a Loan denominated in such Currency is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for a Loan denominated in such Currency for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement for a Loan denominated in such Currency is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Banks without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Banks comprising the Majority Banks.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, solely with respect to a Loan denominated in Dollars, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan
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Document; provided that, this clause (c) shall not be effective unless the Administrative Agent has delivered to the Banks and the Company a Term SOFR Notice.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent, in consultation with the Company, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Company and the Banks of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Bank (or group of Banks) pursuant to this subsection 2.11, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto or any other Loan Document, except, in each case, as expressly required pursuant to this subsection 2.11.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or Eurocurrency Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Relevant Rate applicable to any Eurocurrency Loan, and or SONIA Loan, as applicable, and, with respect to such Eurocurrency Loans, during the continuance thereof (in each case below, to the extent such Benchmark Unavailability Period is in respect of the Relevant Rate applicable to such Eurocurrency Loan or such SONIA Loan, as applicable), (i) a Borrower may revoke any request for a Eurocurrency Loan or SONIA Loan to be made during such Benchmark Unavailability Period, and, failing that, the applicable Borrower will be deemed to have converted such request for a Eurocurrency Loan denominated in Dollars into a request for an ABR Loan and (ii) any request for a Eurocurrency Loan denominated in a Foreign Currency or a SONIA Loan shall be ineffective. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any Eurocurrency Loan in any Currency or SONIA Loan is outstanding on the date of the
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Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Relevant Rate applicable to such Eurocurrency Loan or SONIA Loan, as applicable, then (i) if such Eurocurrency Loan is denominated in Dollars, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars on such day or, (ii) if such Eurocurrency Loan is denominated in any Foreign Currency, such Loan shall, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), at the applicable Borrower’s election prior to such day: (A) be prepaid by the applicable Borrower on such day or (B) be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars (in an amount equal to the Dollar Equivalent of the amount of such Eurocurrency Loan on such day (it being understood and agreed that if the applicable Borrower does not so prepay such Loan on such day by 12:00 noon, Local Time, the Administrative Agent is authorized to effect such conversion of such Eurocurrency Loan into an ABR Loan denominated in Dollars)); provided that, in the case of this subclause (B), upon any subsequent implementation of a Benchmark Replacement in respect of such Foreign Currency pursuant to this subsection 2.11, such ABR Loan denominated in Dollars shall then be converted by the Administrative Agent to, and shall constitute, a Eurocurrency Loan denominated in the original Foreign Currency applicable to such Loan (in an amount equal to the Foreign Currency Equivalent of the amount of such ABR Loan) on the day of, and after giving effect to, such implementation. or (iii) such SONIA Loan shall bear interest at the Central Bank Rate for Pounds Sterling plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for Pounds Sterling cannot be determined, any outstanding affected SONIA Loans, at the Company’s election, shall either (A) be converted into ABR Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of Pounds Sterling) immediately or (B) be prepaid in full immediately.
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Bank is organized or has its applicable lending office or any political subdivision thereof and (z) FATCA), then the relevant Borrower shall from time to time on receipt (whenever occurring) of a certificate from such Bank (which shall be executed by an officer thereof and a copy of which shall be delivered to the Administrative Agent) pay to such Bank such amounts as are stated therein to be required to indemnify such Bank against such increased costs or reduction; provided, however, that if such Borrower becomes obligated to pay any Bank any additional amount pursuant to this subsection 2.13(a), such Borrower shall have the right, so long as no Event of Default has occurred and is then continuing, upon giving notice to the Administrative Agent and such Bank in accordance with subsection 2.6, to prepay in full the Loans of such Bank, together with accrued interest thereon, any amounts payable to such Bank pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid commitment fee, Letter of Credit Fee, Reimbursement Obligations in respect of Letters of Credit or other amount payable to such Bank hereunder and/or, upon giving not less than three Business Days’ notice to any such Bank and the Administrative Agent, to cancel the whole or part of the Commitment of any such Bank (and upon such cancellation, such Bank’s participation in any then outstanding undrawn Letters of Credit shall terminate) (it being understood that any partial cancellation of the Commitment shall result in a corresponding reduction of such Bank’s participating interest in respect of Letters of Credit); provided, further, that such Borrower shall not be obligated to pay any Bank any additional amount pursuant to this subsection 2.13(a) (A) which constitutes a present or future income, stamp or other tax, levy, impost, duty, charge, fee, deduction or withholding referred to in subsection 2.17(a) or (B) as a result of any law, rule, guideline, regulation, request or directive regarding capital adequacy or liquidity referred to in subsection 2.13(b). A certificate of such Bank as to the amount of such increased costs or reduction shall set forth in reasonable detail the computation of such increased costs or reduction, and shall be binding and conclusive in the absence of manifest error. A Bank which demands indemnification hereunder as a result of an increased cost or reduction referred to herein shall deliver the certificate referred to above to the relevant Borrower demanding indemnification no later than the later of (y) the thirtieth day immediately following each payment or realization by such Bank of such increased cost or reduction (and such certificate shall certify that the amounts set forth therein were paid or realized within such thirty-day period) and (z) the thirtieth day immediately following such Bank’s knowledge of the incurrence or realization by such Bank of such increased cost or reduction (and such certificate shall so certify).
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In the event any Bank shall exercise its rights under (i) or (ii) above, all payments and prepayments of principal that would otherwise have been applied to repay the converted Foreign Currency Loans of such Bank shall instead be applied to repay the ABR Loans or Loans denominated in Dollars, as the case may be, made by such Bank resulting from such conversion.
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(b) With respect to SONIA Loans, each Borrower agrees to indemnify each Bank and to hold each Bank harmless from any loss or expense which such Bank may sustain or incur as a consequence of (i) default by such Borrower in payment of the principal amount of or interest on any Loan by such Bank, including, but not limited to, any such loss or expense arising from interest or fees payable by such Bank to lenders of funds obtained by it in order to maintain its Loans hereunder, (ii) default by such Borrower in making a borrowing after such Borrower has given a notice in accordance with subsection 2.1, 2.2 or 2.9, (iii) default by such Borrower in making any prepayment after such Borrower has given a notice in accordance with subsection 2.5 or 2.6 or (iv) the making by such Borrower of a prepayment of a SONIA Loan on a day which is not the payment date with respect thereto, including, but not limited to, any such loss or expense arising from interest or fees payable by such Bank to lenders of funds obtained by it in order to maintain its Loans hereunder. This covenant shall survive termination of this Agreement and payment of the outstanding SONIA Loans. A certificate as to any amount payable pursuant to the foregoing shall be submitted by such Bank (and executed by an officer thereof) to the relevant Borrower, setting forth the computation of such amounts in reasonable detail, and shall be conclusive in the absence of manifest error.
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amounts payable hereunder at the rates or in the amounts specified in this Agreement as if such withholding or deduction had not been made. Whenever any Indemnified Taxes are payable by any Borrower, as the case may be, as promptly as possible thereafter such Borrower, as the case may be, shall send to the Administrative Agent, for its own account, or for the account of the affected Bank, a certified copy of the original official receipt, if any, or other documentary evidence received by such Borrower showing payment thereof. If (i) such Borrower fails to pay any Indemnified Taxes when due to the appropriate taxing authority, (ii) such Borrower fails to remit to the Administrative Agent the required receipts or other required documentary evidence, or (iii) as a result of a failure listed in (i) directly above, any Indemnified Taxes are imposed directly upon the Administrative Agent or any Bank, such Borrower shall indemnify the Administrative Agent or such Bank, as the case may be, for any Indemnified Taxes and interest or penalties with respect thereto that may become payable by the Administrative Agent or such Banks, as the case may be, as a result of any such failure, in the case of (i) or (ii), or any such direct imposition, in the case of (iii).
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The obligations of the parties under this subsection 2.17 shall survive termination of this Agreement, payment of the Loans and termination of the Letters of Credit.
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obligations of such Cancelled Bank and not of any such financial institution. The Administrative Agent shall execute any such writing presented to it and shall notify the Banks of the execution thereof, the name of the financial institution executing such writing and the amount of its Commitment.
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The rights and remedies against a Defaulting Bank under this subsection 2.23 are in addition to other rights and remedies that the Borrowers may have against such Defaulting Bank.
In the event and on the date that the Administrative Agent, the Company and the Issuing Banks each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Obligations of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks (other than Negotiated Rate Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Commitment Percentage and such Bank shall no longer be a Defaulting Bank; provided, that subject to subsection 10.15, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, including any claim of a Non-Defaulting Bank as a result of such Non-Defaulting Bank’s increased exposure following such reallocation.
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The Capital Corporation waives promptness, diligence, presentment to, demand of payment from and protest to JD Luxembourg of any Luxembourg Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of the Capital Corporation hereunder shall be absolute and unconditional and not be affected by (a) the failure of any Bank or the Administrative Agent to assert any claim or demand or to enforce any right or remedy against JD Luxembourg under the provisions of this Agreement or otherwise; (b) any rescission, waiver, amendment or modification of any of the terms or provisions of this Agreement or any other agreement; (c) the failure of any Bank to exercise any right or remedy against JD Luxembourg; (d) the invalidity or unenforceability of this Agreement; or (e) any other circumstance which might otherwise constitute a defense available to or discharge of JD Luxembourg (other than payment).
The Capital Corporation further agrees that its agreement hereunder constitutes a promise of payment when due and not of collection, and waives any right to require that any resort be had by any Bank to any balance of any deposit account or credit on the books of any Bank in favor of JD Luxembourg or any other Person.
The obligations of the Capital Corporation hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or
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unenforceability of the Luxembourg Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Capital Corporation hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any Bank to assert any claim or demand or to enforce any remedy under this Agreement or any other agreement, by any waiver or modification in respect of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Luxembourg Obligations, or by any other act or omission which may or might in any manner or to any extent vary the risk of the Capital Corporation or otherwise operate as a discharge of the Capital Corporation as a matter of law or equity.
The Capital Corporation further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Luxembourg Obligation is rescinded or must otherwise be restored by the Administrative Agent or any Bank upon the bankruptcy or reorganization of JD Luxembourg or otherwise.
In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent or any Bank may have at law or in equity against the Capital Corporation by virtue hereof, upon the failure of JD Luxembourg to pay any Luxembourg Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the Capital Corporation hereby promises to and will, upon receipt of written demand by the Administrative Agent, forthwith pay, or cause to be paid, in cash the amount of such unpaid Luxembourg Obligation. In the event that, by reason of the bankruptcy of JD Luxembourg, (i) acceleration of Loans made to JD Luxembourg is prevented and (ii) the Capital Corporation shall not have prepaid the outstanding Loans and other amounts due hereunder owed by JD Luxembourg, the Capital Corporation will forthwith purchase such Loans at a price equal to the principal amount thereof plus accrued interest thereon and any other amounts due hereunder with respect thereto. The Capital Corporation further agrees that if payment in respect of any Luxembourg Obligation shall be due in a currency other than Dollars and/or at a place of payment other than New York and if, by reason of any change in law, disruption of currency or foreign exchange markets, war or civil disturbance or similar event, payment of such Luxembourg Obligation in such currency or such place of payment shall be impossible or, in the reasonable judgment of any applicable Bank, not consistent with the protection of its rights or interests, then, at the election of any applicable Bank, the Capital Corporation shall make payment of such Luxembourg Obligation in Dollars (based upon the applicable Exchange Rate in effect on the date of payment) and/or in New York.
Notwithstanding any payment made by the Capital Corporation hereunder or any set-off or application of funds of the Capital Corporation by the Administrative Agent or any Bank, the Capital Corporation shall not be entitled to be subrogated to any of the rights of the Administrative Agent or any Bank against JD Luxembourg or any guarantee or right of offset held by the Administrative Agent or any Bank for the payment of the Luxembourg Obligations, until all amounts owing to the Administrative Agent and the Banks by JD Luxembourg on account of the Luxembourg Obligations are paid in full in cash. If any amount shall be paid to the Capital Corporation on account of such subrogation rights at any time when all of the Luxembourg Obligations shall not have been paid in full in cash, such amount shall be held by the Capital Corporation in trust for the Administrative Agent and the Banks, segregated from its other funds, and shall, forthwith upon receipt by it, be turned over to the Administrative Agent in the exact form received by it (duly indorsed by it to the Administrative Agent, if required), to be applied against the Luxembourg Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine.
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SECTION 3. | REPRESENTATIONS AND WARRANTIES |
Each Borrower hereby represents and warrants to the Administrative Agent and to each Bank that:
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file such tax returns would not have a material adverse effect on the business, operations, property or financial condition of such Borrower and its Subsidiaries taken as a whole), and has paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than assessments, taxes, fees and other charges the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of such Borrower or its Subsidiaries, as the case may be).
SECTION 4. | CONDITIONS PRECEDENT |
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Each acceptance by any Borrower of a Loan, each issuance of a Letter of Credit and each increase in the drawable amount of any Letter of Credit for the account of a Borrower, shall constitute a representation and warranty by the relevant Borrower as of the date of such Loan, the date of issuance of such Letter of Credit or the date of increase in the drawable amount of such Letter of Credit, as applicable, that the applicable conditions in clauses (a), (b) and (c) of this subsection 4.2 have been satisfied.
SECTION 5. | AFFIRMATIVE COVENANTS |
Each of the Borrowers (except as otherwise specified) hereby agrees that, so long as there is any obligation by any Bank to make Loans to it hereunder, any obligation of an Issuing Bank to issue Letters of Credit hereunder, any Loan of such Borrower remains outstanding and unpaid, any Letter of Credit remains outstanding or any other amount is owing by such Borrower to any Bank, any Issuing Bank or any Agent hereunder (unless the Majority Banks shall otherwise consent in writing):
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All such financial statements described in clause (a) or (b) above shall present fairly the consolidated financial condition and results of operations of such Borrower and its consolidated Subsidiaries and be prepared in accordance with generally accepted accounting principles in the United States of America (or, in the case of any such financial statements furnished by JD Luxembourg, international financial reporting standards in effect from time to time as applicable to JD Luxembourg, or such other accounting standards required by any applicable Luxembourg Governmental Authority) applied consistently throughout the periods reflected therein (except as approved by such accountants or officer, as the case may be, and disclosed therein). The Company and the Capital Corporation shall be deemed to have furnished such financial statements to each Bank when they are filed with the Securities and Exchange Commission and posted on its EDGAR system, and JD Luxembourg shall be deemed to have furnished such financial statements to each Bank when they are delivered to the Administrative Agent via electronic mail or other electronic transmission.
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2008 between the Company and The Bank of New York Mellon, as trustee. The Company shall be deemed to have furnished such information, document or report to each Bank when it is filed with the Securities and Exchange Commission and posted on its EDGAR system.
SECTION 6. | NEGATIVE COVENANTS OF THE COMPANY |
The Company hereby agrees that, so long as there is any obligation by any Bank to make Loans hereunder, any obligation of an Issuing Bank to issue Letters of Credit hereunder, any Loan remains outstanding and unpaid, any Letter of Credit remains outstanding or any other amount is owing to any Agent, any Issuing Bank or any Bank hereunder, it shall not, nor in the case of subsections 6.2 and 6.3 shall it permit any Restricted Subsidiary to (unless the Majority Banks shall otherwise consent in writing):
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SECTION 7. | NEGATIVE COVENANTS OF THE CAPITAL CORPORATION |
The Capital Corporation hereby agrees that, so long as there is any obligation by any Bank to make Loans to the Capital Corporation hereunder, any obligation of any Issuing Bank to issue Letters of Credit hereunder, any Loan of the Capital Corporation remains outstanding and unpaid, any Letter of Credit remains outstanding or any other amount is owing by the Capital Corporation to any Bank, any Issuing Bank or any Agent hereunder, the Capital Corporation shall not, nor in the case of the agreements set forth in subsection 7.3 shall it permit any of its Subsidiaries to, directly or indirectly (unless the Majority Banks shall otherwise consent in writing):
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Division of Capital Corporation shall be permitted unless there is a Division Successor. Upon any such merger, consolidation, sale, Division or conveyance, the successor corporation shall succeed to and be substituted for, and may exercise every right and power of and shall be subject to all the obligations of, the Capital Corporation under this Agreement, with the same effect as if the successor corporation had been named as the Capital Corporation herein and therein.
SECTION 8. | EVENTS OF DEFAULT |
Upon the occurrence and during the continuance of any of the following events:
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then, and in any such event, (A) if such event is an Event of Default specified in paragraph (f) above, automatically the Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) and the Loans shall immediately become due and payable, and (B)(1) if such event is an Event of Default specified in paragraph (a) or (e), then with the consent of the Majority Banks, the Administrative Agent may, or upon the request of the Majority Banks, the Administrative Agent shall, or (2) if such event is an Event of Default specified in paragraph (b), (c), (d), (g) or (h), then with the consent of the Required Banks, the Administrative Agent may, or upon the request of the Required Banks, the Administrative Agent shall, take either or both of the following actions: (i) by notice to the Borrowers, declare the Commitments to be terminated forthwith, whereupon the Commitments
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shall immediately terminate; and (ii) by notice of default to the Borrowers, declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately become due and payable. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to this paragraph, the Borrowers shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other obligations of the Borrowers hereunder. After all such Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been satisfied and all other obligations of the Borrowers hereunder shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the Borrowers (or such other Person as may be lawfully entitled thereto). Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived with respect to this Agreement by the Borrowers.
SECTION 9. | THE AGENTS |
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all matters pertaining to such duties. Each Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
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(ii) Each Bank and each Issuing Bank hereby further agrees that if it receives a Payment from the Administrative Agent or any of its affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Bank and each Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Bank or Issuing Bank, as applicable, shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Bank or Issuing Bank, as applicable, to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(iii) The Borrowers hereby agree that (x) in the event that the returning of an an erroneous Payment (or portion thereof) made with funds of the Administrative Agent or an affiliate thereof has been demanded by the Administrative Agent pursuant to this Subsection 9.4(b) and has not been recovered from any Bank or Issuing Bank, as applicable, that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Bank or Issuing Bank, as applicable, with respect to such amount unless and until such amounts are recovered by the Administrative Agent and (y) an erroneous Payment made by the Administrative Agent or an affiliate thereof shall not pay, prepay, repay, discharge or otherwise satisfy any Loans, Reimbursement Obligations or L/C Obligations owed by the Borrowers.
(iv) Each Bank’s and each Issuing Bank’s obligations under this subsection 9.4(b) shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Bank or an Issuing Bank, the termination of the Commitments, the payment in full of all amounts payable hereunder and the termination of this Agreement.
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without reliance upon such Agent or any other Bank, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of each Borrower and made its own decision to make its Loans hereunder and enter into this Agreement. Each Bank also represents that it will, independently and without reliance upon each Agent or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Borrowers. Except for notices, reports and other documents expressly required to be furnished to the Banks by any Agent hereunder, such Agent shall not have any duty or responsibility to provide any Bank with any credit or other information concerning the business, operations, property, financial and other condition or creditworthiness of a Borrower which may come into the possession of such Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates.
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Administrative Agent or any of the parties to this Agreement. Upon any resignation by the Foreign Currency Agent, (i) the Foreign Currency Agent may appoint one of its affiliates acting through an office in the European Union as a successor Foreign Currency Agent and (ii) if the Foreign Currency Agent has not appointed one of its affiliates acting through an office in the European Union as a successor Foreign Currency Agent pursuant to clause (i) above, then the Majority Banks shall appoint from among the Banks a successor foreign currency agent for the Banks which successor foreign currency agent shall be approved by the Borrowers, whereupon in each case of clauses (i) and (ii), such successor foreign currency agent shall succeed to the rights, powers and duties of the Foreign Currency Agent and the term “Foreign Currency Agent” shall mean such successor foreign currency agent effective upon its appointment, and the former Foreign Currency Agent’s rights, powers and duties as Foreign Currency Agent shall be terminated, without any other or further act or deed on the part of such former Foreign Currency Agent or any of the parties to this Agreement. After any retiring Agent’s resignation hereunder as Agent, the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 10. | MISCELLANEOUS |
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their former position and rights hereunder, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. Anything contained in the foregoing to the contrary notwithstanding, the relevant Borrower and the relevant Bank with respect to a Negotiated Rate Loan may, from time to time, enter into amendments, supplements or modifications for the purpose of adding any provisions to such Negotiated Rate Loans or changing in any manner the rights of such Bank and such Borrower thereunder and such Bank may waive any of the requirements of such Negotiated Rate Loan; provided, however, that such Borrower and such Bank shall notify the Administrative Agent in writing of any extension of the maturity of such Negotiated Rate Loan or reduction of the principal amount thereof; provided, further, that such Borrower and such Bank shall not extend the maturity of such Negotiated Rate Loan beyond the last day of the Commitment Period.
The Borrowers:
The Company: |
Deere & Company
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The Capital Corporation: |
John Deere Capital Corporation
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JD Luxembourg: |
John Deere Bank S.A.
L-1855 Luxembourg
Grand Duchy of Luxembourg
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with a copy to: |
Deere & Company
Telephone: 309-765-9259
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The Administrative Agent: |
JPMorgan Chase Bank, N.A.
Telephone: 302-634-9770
Email: harmeet.kaur@chase.com |
with a copy to: |
JPMorgan Chase Bank, N.A.
Bldg B, Floor 06
Email: sean.bodkin@chase.com |
The Foreign Currency Agent: |
J.P. Morgan AG
25 Bank Street
+44 207 7421911 Email: loan_and_agency_london@jpmorgan.com |
To any other Bank: |
To it at its address (or facsimile number) set forth in its Administrative Questionnaire |
provided that any notice, request or demand to or upon the Administrative Agent or the Banks pursuant to subsections 2.1, 2.2, 2.5, 2.6, 2.9, 2.11, 2.20 and 9.9 shall not be effective until received (including receipt by telephone if permitted hereby).
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hereby and thereby, and (iii) to pay or reimburse each Bank and each Agent for all its out-of-pocket costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement and any such other documents, including, without limitation, fees and disbursements of counsel to each Agent and one counsel representing the Banks; provided, however, that, notwithstanding anything herein to the contrary, the Company shall not be required to reimburse, indemnify or otherwise make any payment pursuant to this subsection 10.4 with respect to any registration duty payable in Luxembourg upon registration of this Agreement in Luxembourg except for any Luxembourg tax payable due to a registration of the Agreement when such registration is required to maintain, preserve, establish or enforce any rights of any Agent or Bank.
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91
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electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record), (iii) waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Loan Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (iv) waives any claim against any Indemnified Person for any Losses arising solely from the Administrative Agent’s and/or any Bank’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page, including any Losses arising as a result of the failure of a Borrower to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
93
(i)the application of any Write-Down and Conversion Powers by a Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(ii)the effects of any Bail-In Action on any such liability, including, if applicable:
(x)a reduction in full or in part or cancellation of any such liability;
(y)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(z)the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any Resolution Authority.
94
(b)Each party hereto agrees that it will notify the Company and the Administrative Agent, as soon as practicable, of such party becoming the subject of a Bail-In Action, unless such notification is prohibited by law, regulation or order.
(i) such Bank is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans (defined below) in connection with the Loans or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to, and all of the conditions of which are and will continue to be satisfied in connection with, such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(iii) (A) such Bank is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Bank to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Bank, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Bank.
(b)In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Bank or (2) a Bank has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Bank further (x) represents and warrants, as of the date such Person became a Bank party hereto, and (y) covenants, from the date such Person became a Bank party hereto to the date such Person ceases being a Bank party hereto, for the benefit of, the Administrative Agent and each lead arranger, and not, for the avoidance of doubt, to or for the benefit of the Borrowers, that the Administrative Agent is not a fiduciary with respect to the assets of such Bank involved in such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement or any documents related hereto or thereto).
95
As used in this Section, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code, to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
[Remainder of page left intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
|
DEERE & COMPANY
By:
|
|
JOHN DEERE CAPITAL CORPORATION
By:
|
|
JOHN DEERE BANK S.A.
By:
|
By:
Name:
Title:
[Signature Page to the Deere & Company 2025 Credit Agreement]
|
JPMORGAN CHASE BANK, N.A.,
By: __________________________________
|
|
|
[Signature Page to the Deere & Company 2025 Credit Agreement]
|
BANK OF AMERICA, N.A., as Syndication Agent and as a Bank
By: __________________________________
|
[Signature Page to the Deere & Company 2025 Credit Agreement]
|
CITIBANK, N.A., as Documentation Agent and as a Bank
By: __________________________________
|
[Signature Page to the Deere & Company 2025 Credit Agreement]
|
[BANK], as a Bank
By: __________________________________
Title: |
|
|
[Signature Page to the Deere & Company 2025 Credit Agreement]
SCHEDULE I
TERMS OF SUBORDINATION
“Senior Indebtedness” means the principal of (and premium, if any) and unpaid interest, commitment fees and letter of credit fees on (a) indebtedness (including matured and contingent reimbursement obligations in respect of letters of credit) of John Deere Capital Corporation (the “Capital Corporation”) (including indebtedness of others guaranteed by the Capital Corporation), other than the indebtedness evidenced by the Securities [such term to be defined as the debt to be issued under the indenture or agreement to which this Schedule relates] and [specify any other indebtedness of the Capital Corporation (including indebtedness of others guaranteed by the Capital Corporation)], provided that indebtedness of the Capital Corporation under the credit agreement to which these Terms of Subordination are attached may not be so specified, whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed, for money borrowed, unless in the instrument creating or evidencing the same or pursuant to which the same is outstanding it is provided that such indebtedness is not senior or prior in right of payment to the Securities, and (b) renewals, extensions, modifications and refundings of any such indebtedness.
SUBORDINATION
Section 1. Agreement to Subordinate.
The Capital Corporation, for itself, its successors and assigns, covenants and agrees, and each holder of Securities, by such holder’s acceptance thereof, likewise covenants and agrees, that the payment of the principal of (and premium, if any) and interest on each and all of the Securities is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all Senior Indebtedness.
Section 2. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities.
Upon any distribution of assets of the Capital Corporation upon any dissolution, winding up, liquidation or reorganization of the Capital Corporation, whether in bankruptcy, insolvency, reorganization or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Capital Corporation or otherwise (subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in this Agreement upon the Senior Indebtedness and the holders thereof with respect to the Securities by a lawful plan of reorganization under applicable bankruptcy law),
(a)the holders of Senior Indebtedness shall be entitled to receive payment in full of the principal thereof (and premium if any) and the interest, commitment fees and letter of credit fees due on the Senior Indebtedness before the holders of the Securities are entitled to receive any payment upon the principal of (or premium, if any) or interest on indebtedness evidenced by the Securities; and
(b) any payment or distribution of assets of the Capital Corporation of any kind or character, whether in cash, property or securities, to which the holders of the Securities or any trustee therefor would be entitled except for the provisions of this Article shall be paid by the liquidating trustee or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under
I-2
any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal of (and premium, if any) and interest, commitment fees and letter of credit fees on the Senior Indebtedness held or represented by each holder of Senior Indebtedness, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c)in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Capital Corporation of any kind or character, whether in cash, property or securities, shall be received by any trustee for the holders of the Securities or the holders of the Securities before all Senior Indebtedness is paid in full, such payment or distribution shall be paid over, upon written notice to any trustee for the holders of the Securities, to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the holders of the Securities shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Capital Corporation applicable to Senior Indebtedness until the principal of (and premium, if any) and interest on the Securities shall be paid in full and no such payments or distributions to the holders of the Securities of cash, property or securities otherwise distributable to the holders of Senior Indebtedness shall, as between the Capital Corporation, its creditors other than the holders of Senior Indebtedness, and the holders of the Securities, be deemed to be a payment by the Capital Corporation to or on account of the Securities. It is understood that the provisions of this Article are, and are intended, solely for the purpose of defining the relative rights of the holders of the Securities, on the one hand, and the holders of Senior Indebtedness, on the other hand. Nothing contained in this Article or elsewhere in this Agreement or in the Securities is intended to or shall impair, as between the Capital Corporation, its creditors other than the holders of Senior Indebtedness, and the holders of the Securities, the obligation of the Capital Corporation, which is unconditional and absolute, to pay to the holders of the Securities the principal of (and premium, if any) and interest on the Securities as and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the holders of the Securities and creditors of the Capital Corporation other than the holders of Senior Indebtedness, nor shall anything herein or in the instruments or other evidence of the Securities prevent any trustee for the holders of the Securities or the holder of any Securities from exercising all remedies otherwise permitted by applicable law upon default under this Agreement or such instrument or other evidence, subject to the rights, if any, under this Article of the holders of Senior Indebtedness in respect of cash, property or securities of the Capital Corporation received upon the exercise of any such remedy.
Section 3. No Payment on Securities in Event of Non-Payment When Due of Senior Indebtedness.
No payment by the Capital Corporation on account of principal (or premium, if any), sinking funds, or interest on the Securities shall be made unless full payment of amounts then due for principal, premium, if any, sinking funds and interest and letter of credit fees and commitment fees on Senior Indebtedness has been made or duly provided for in money or money’s worth.
SCHEDULE II
COMMITMENTS
Bank |
Commitment |
JPMorgan Chase Bank, N.A. |
$210,937,500 |
Bank of America, N.A. |
$210,937,500 |
Citibank, N.A. |
$210,937,500 |
Barclays Bank PLC |
$175,781,250 |
HSBC Bank USA, N.A. |
$175,781,250 |
MUFG Bank, Ltd. |
$175,781,250 |
Royal Bank of Canada |
$175,781,250 |
The Toronto-Dominion Bank, New York Branch |
$156,250,000 |
Credit Agricole Corporate and Investment Bank |
$140,625,000 |
Deutsche Bank AG, New York Branch |
$140,625,000 |
Goldman Sachs Bank USA |
$140,625,000 |
BNP Paribas |
$93,750,000 |
Commerzbank AG New York Branch |
$93,750,000 |
Banco Bilbao Vizcaya Argentaria, S.A. New York Branch |
$39,062,500 |
Banco Santander, S.A., New York Branch |
$39,062,500 |
The Bank of New York Mellon |
$39,062,500 |
The Bank of Nova Scotia |
$39,062,500 |
PNC Bank, National Association |
$39,062,500 |
Sumitomo Mitsui Banking Corporation |
$39,062,500 |
Standard Chartered Bank |
$39,062,500 |
U.S. Bank National Association |
$39,062,500 |
Wells Fargo Bank, National Association |
$39,062,500 |
Bank of China, Chicago Branch |
$15,625,000 |
ICICI Bank Limited New York Branch |
$15,625,000 |
Nordea Bank Abp, New York Branch |
$15,625,000 |
|
|
|
|
|
|
TOTAL |
$2,500,000,000 |
SCHEDULE III
EXISTING LETTERS OF CREDIT
None.
EXHIBIT A
[FORM OF BORROWING NOTICE]
JPMorgan Chase Bank, N.A.,
as Administrative Agent under the
Credit Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Pursuant to subsection 2.1(c) of the $2,500,000,000 2025 Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), the undersigned hereby requests that the following Committed Rate Loans be made on __________, 20__ as follows:
A-2
(vii) 90 days (if Canadian Dollars requested) |
$____________ |
||
Total Eurocurrency Loans |
$____________ |
NOTE: THE AMOUNT APPEARING IN LINE (1) ABOVE MUST BE AT LEAST EQUAL TO $25,000,000 AND IN A WHOLE MULTIPLE OF $5,000,000 (OR THE FOREIGN CURRENCY EQUIVALENT IN THE CASE OF FOREIGN CURRENCY LOANS) AND THE AMOUNTS APPEARING IN EACH OTHER LINE ABOVE MUST BE AT LEAST EQUAL TO $10,000,000 AND IN A WHOLE MULTIPLE OF $1,000,000 (OR THE FOREIGN CURRENCY EQUIVALENT IN THE CASE OF FOREIGN CURRENCY LOANS).
Terms defined in the Credit Agreement shall have the same meanings when used herein.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
[JOHN DEERE BANK S.A.]
By:
Title:
EXHIBIT B
[FORM OF BID LOAN REQUEST]
_______, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent under the Credit
Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $2,500,000,000 2025 Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are used herein as therein defined.
This is an [Index Rate] [Absolute Rate] Bid Loan Request pursuant to subsection 2.2 of the Credit Agreement requesting quotes for the following Bid Loans:
B-2
NOTE: THE AGGREGATE PRINCIPAL AMOUNTS APPEARING ABOVE MUST BE IN THE AGGREGATE AT LEAST EQUAL TO $25,000,000 AND IN A WHOLE MULTIPLE OF $5,000,000.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
__________
Note: |
Pursuant to the Credit Agreement, a Bid Loan Request may be transmitted by facsimile transmission, or by telephone, immediately confirmed by facsimile transmission. In any case, a Bid Loan Request shall contain the information specified in the second paragraph of this form. |
EXHIBIT C
[FORM OF BID LOAN OFFER]
_______, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent
under the Credit Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $2,500,000,000 2025 Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are used herein as therein defined.
In accordance with subsection 2.2 of the Credit Agreement, the undersigned Bid Loan Bank offers to make Bid Loans thereunder in the following amounts with the following maturity dates:
Borrowing Date: _________________, 20__
Aggregate Maximum Amount: $________
C-2
Maturity Date 1: |
Maturity Date 2: |
Maturity Date 3: |
Maximum Amount $_____ |
Maximum Amount $_______ |
Maximum Amount $______ |
Rate* ____Amount $______ |
Rate* ____Amount $______ |
Rate* ___Amount $_______ |
Rate* ____Amount $______ |
Rate* ____Amount $______ |
Rate* ___Amount $_______ |
Very truly yours,
[NAME OF BID LOAN BANK]
By:
Name:
Title:
Telephone:
Facsimile:
* If Index Rate Bid Loan, insert percentage above or below Eurocurrency Rate.
EXHIBIT D
[FORM OF BID LOAN CONFIRMATION]
_______, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent
under the Credit Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $2,500,000,000 2025 Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are used herein as therein defined.
In accordance with subsection 2.2 of the Credit Agreement, the undersigned accepts and confirms the offers by Bid Loan Bank(s) to make Bid Loans to the undersigned on ______________, 20__ [Borrowing Date] under said subsection 2.2 in the (respective) amount(s) set forth on the attached list of Bid Loans offered.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
[Borrower to attach Bid Loan Offer list prepared by Administrative Agent with accepted amount entered by the Borrower to right of each Bid Loan Offer].
EXHIBIT E
[FORM OF ASSIGNMENT AND ASSUMPTION]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the date set forth below (the “Effective Date”) and is entered into between the Assignor named below (the “Assignor”) and the Assignee named below (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent below (i) all of the Assignor’s rights and obligations in its capacity as a Bank under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any letters of credit and guarantees included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Bank) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
1.Assignor:______________________________
2.Assignee:______________________________
[and is an affiliate/Approved Fund of [identify Bank]2]
3.Borrower(s):______________________________
4.Administrative Agent: JPMorgan Chase Bank, N.A., as administrative agent under the Credit Agreement
5.Credit Agreement:The $2,500,000,000 2025 Credit Agreement dated as of March 29, 2021 among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and the
2 Select as applicable.
E-2
other agents parties thereto
6. Assigned Interest:
Facility Assigned3 |
Aggregate Amount of Commitment/Loans for all Banks |
Amount of Commitment/Loans Assigned |
Percentage Assigned of Commitment/Loans4 |
|
$ |
$ |
% |
|
$ |
$ |
% |
|
$ |
$ |
% |
Effective Date: ______________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The Assignee expressly confirms that it [can/cannot] exempt the Administrative Agent and the Foreign Currency Agent from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law as provided for in subsection 9.1(d) of the Credit Agreement. The Assignee agrees to deliver to the Administrative Agent a completed administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrowers and their affiliates or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
_________________________________
NAME OF ASSIGNOR
By:______________________________
Title:
ASSIGNEE
_________________________________
NAME OF ASSIGNEE
By:______________________________
Title:
3 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g. “Commitment” or “L/C Commitment”).
4 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Banks.
[Consented to and]5 Accepted:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By_________________________________
Title:
[Consented to:]6
DEERE & COMPANY
By________________________________
Title:
5 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
6 To be added only if the consent of the Borrower and/or other parties (e.g. Issuing Bank) is required by the terms of the Credit Agreement.
ANNEX 1
$2,500,000,000 2025 Credit Agreement dated as of March 29, 2021 (the “Credit Agreement”) among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, JOHN DEERE BANK S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and the other agents parties thereto
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, (iii) the financial condition of the Borrowers, any of their respective Subsidiaries or affiliates or any other Person obligated in respect of the Credit Agreement or (iv) the performance or observance by each Borrower, any of their Subsidiaries or affiliates or any other Person of any of their respective obligations under the Credit Agreement.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Bank under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Bank, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Bank thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Bank thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.1 thereof, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Bank and (v) if it is a Non-U.S. Bank, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Bank.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument.
I-2
Delivery of an executed counterpart of a signature page of this Assignment and Assumption by email or telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
EXHIBIT F
[RESERVED]
EXHIBIT G
[FORM OF OPINION OF GENERAL COUNSEL TO THE COMPANY]
[Closing Date]
To each of the Banks parties to
the Credit Agreement referred to
below and to JPMorgan Chase
Bank, N.A., as Administrative Agent
Deere & Company and
John Deere Capital Corporation
2025 Credit Agreement
Ladies and Gentlemen:
This opinion is furnished to you pursuant to subsection 4.1(c) of the $2,500,000,000 2025 Credit Agreement dated as of March 29, 2021 (the “Credit Agreement”) among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation” and, together with the Company, the “U.S. Borrowers”) and John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Terms defined in the Credit Agreement and not otherwise defined in this opinion are used herein as defined in the Credit Agreement.
I am General Counsel of the Company and have also acted as counsel for the Capital Corporation in this matter. I am familiar with the corporate history and organization of each U.S. Borrower and of its Subsidiaries and the proceedings relating to the authorization, execution and delivery by each U.S. Borrower of the Credit Agreement. In that connection I have examined or caused to have examined:
1.The Credit Agreement;
2. |
The documents furnished by each of the U.S. Borrowers pursuant to Section 4 of the Credit Agreement; |
3. |
The Certificates of Incorporation of the U.S. Borrowers and all amendments thereto (the “Charters”); |
4. |
The bylaws of the U.S. Borrowers and all amendments thereto (the “Bylaws”); and |
5. |
Certificates of the Secretary of State of Delaware, each dated a recent date, attesting to the continued corporate existence and good standing of the U.S. Borrowers in that State. |
In addition, I have reviewed or caused to have reviewed such of the corporate proceedings of the U.S. Borrowers, and have examined or caused to have examined such documents, corporate records, and other instruments relating to the organization of the U.S. Borrowers and their respective Subsidiaries and such other agreements and instruments to which the U.S. Borrowers and their respective Subsidiaries are parties, as I consider necessary as a basis for the opinions hereinafter
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expressed. I have assumed the due execution and delivery, pursuant to due authorization, of the Credit Agreement by the Banks, the Administrative Agent, the Syndication Agent, and the Documentation Agent, and the authenticity of all documents submitted to me as originals and the conformity to the original documents of all documents submitted to me as certified, conformed or photostatic or electronic copies.
I am qualified to practice law in the State of Illinois and the State of Iowa and do not purport to be an expert on, and do not express any opinion herein concerning, any laws other than the laws of the State of Illinois and the State of Iowa, the General Corporation Law of the State of Delaware and the Federal laws of the United States.
Based upon the foregoing and upon such investigation as I have deemed necessary, I am of the following opinion:
1. |
Each of the Company and the Capital Corporation is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to carry on its business as now being conducted and to own its properties. |
2. |
The execution, delivery and performance by each U.S. Borrower of the Credit Agreement are within such U.S. Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not (i) contravene, or constitute a default under the Charter or the Bylaws of such U.S. Borrower, any judgment, law, rule or regulation applicable to such U.S. Borrower, or any Contractual Obligation by which such U.S. Borrower is bound or (ii) result in the creation of any lien, charge or encumbrance upon any of its property or assets. The Credit Agreement has been duly executed and delivered on behalf of each U.S. Borrower. |
3. |
No authorization, approval, or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by each U.S. Borrower of the Credit Agreement. |
4. |
There is no pending or, to the best of my knowledge, threatened action or proceeding against either U.S. Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator which is likely to have a materially adverse effect upon the financial condition or operations of such U.S. Borrower and its Subsidiaries taken as a whole. |
A copy of this opinion letter may be delivered by any of you to any person that becomes a Bank in accordance with the provisions of the Credit Agreement. Any such person may rely on the opinions expressed above as if this opinion letter were addressed and delivered to such person on the date hereof.
This opinion letter is rendered to you in connection with the transactions contemplated by the Credit Agreement. This opinion letter may not be relied upon by you or any person entitled to rely on this opinion pursuant to the preceding paragraph for any other purpose without my prior written consent.
This opinion letter speaks only as of the date hereof. I expressly disclaim any responsibility to advise you of any development or circumstance of any kind, including any change of law or fact, that may occur after the date of this opinion letter even though such development or circumstance
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may affect the legal analysis, a legal conclusion or any other matter set forth in or relating to this opinion letter.
Very truly yours,
Mary K.W. Jones
EXHIBIT H
[FORM OF ENFORCEABILITY OPINION OF SPECIAL NEW YORK COUNSEL
TO THE BORROWERS]
[Closing Date]
To the Agent
and each of the Banks under the
Credit Agreement (referred to below)
on the date hereof:
Re: |
$2,500,000,000 2025 Credit Agreement dated as of March 29, 2021, by and among Deere & Company, a Delaware corporation (the “Company”), John Deere Capital Corporation, a Delaware corporation (the “Capital Corporation”), John Deere Bank S.A., a public limited company organized under the laws of Luxembourg (“JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), the financial institutions from time to time party thereto as lenders (the “Lenders”), JPMorgan Chase Bank, N.A., as the Administrative Agent for the Banks (in such capacity, the “Agent”) and the other parties thereto (such credit agreement herein referred to as the “Credit Agreement”) |
Ladies and Gentlemen:
We are issuing this opinion letter in our capacity as counsel to and at the request of the Borrowers in respect of the Credit Agreement.
The opinions expressed herein are being provided pursuant to Section 4.1(c) of the Credit Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement (with references herein to the Credit Agreement and each document defined therein meaning the Credit Agreement and each such document as executed and delivered on the date hereof). The Banks and the Agent are sometimes referred to in this opinion letter as “you”.
In connection with the preparation of this letter, we have, among other things, reviewed executed counterparts of the Credit Agreement.
Subject to the assumptions, qualifications, exclusions and other limitations which are identified in this opinion letter, we advise you, and with respect to each legal issue addressed in this opinion letter, it is our opinion, that (a) the Credit Agreement is a valid and binding obligation of each Borrower that is a party thereto and is enforceable against such Borrower in accordance with its terms and (b) the guarantee by the Capital Corporation pursuant to Section 2.27 of the Credit Agreement is a valid and binding obligation of the Capital Corporation and is enforceable against the Capital Corporation in accordance with its terms.
With your consent, we have assumed for purposes of this letter and the opinions herein:
(a) that each document we have reviewed for purposes of this letter is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each such document are genuine, and that all natural persons who have signed any document have the legal capacity to do so;
I-2
(b) that the Credit Agreement and every other agreement we have examined for purposes of this letter has been duly authorized, executed and delivered by the parties thereto and constitutes a valid and binding obligation of each party to that document, enforceable against each such party in accordance with its respective terms and that each such party has satisfied all legal requirements that are applicable to such party to the extent necessary to entitle such party to enforce such agreement and that each party to the Credit Agreement is in good standing and duly incorporated or organized under the laws of its jurisdiction of organization except we do not assume in this paragraph (b) that the Credit Agreement is a valid and binding obligation enforceable in accordance with its terms against the Borrowers;
(c) there are no agreements or understandings among the parties, written or oral (other than the Credit Agreement), and there is no usage of trade or course of prior dealing among the parties that would, in either case define, supplement or qualify the terms of the Credit Agreement; and
(d) that the status of the Credit Agreement as legally valid and binding obligations of the parties is not affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders, or (iii) failures to obtain required consents, approvals or authorizations from, or make required registrations, declarations or filings with, governmental authorities.
In preparing this letter, we have relied without any independent verification upon: (i) information contained in certificates obtained from governmental authorities; (ii) factual information represented to be true in the Credit Agreement; (iii) factual information provided to us in a support certificate signed by each of the Borrowers; and (iv) factual information we have obtained from such other sources as we have deemed reasonable; and we have examined the originals or copies certified to our satisfaction, of the Credit Agreement and other corporate records of the Borrowers as we deem necessary for or relevant to our opinions. We have assumed without investigation that the information upon which we have relied is accurate and does not omit disclosures necessary to prevent such information from being misleading.
The terms “knowledge,” “actual knowledge” and “aware” whenever used in this letter with respect to our firm mean conscious awareness at the time this letter is delivered on the date it bears by the lawyers with Kirkland & Ellis LLP at that time who spent substantial time representing the Borrower in connection with the Credit Agreement (herein called our “Designated Transaction Lawyers”).
Our opinion (an “enforceability opinion”) in this letter that any particular contract is a valid and binding obligation or is enforceable in accordance with its terms is subject to: (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and judicially developed doctrines in this area such as substantive consolidation and equitable subordination; (ii) the effect of general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity); (iii) an implied covenant of good faith and fair dealing; and (iv) other commonly recognized statutory and judicial constraints on enforceability including statutes of limitations. “General principles of equity” include but are not limited to: principles limiting the availability of specific performance and injunctive relief; principles which limit the availability of a remedy under certain circumstances where another remedy has been elected; principles requiring reasonableness, good faith and fair dealing in the performance and enforcement of an agreement by the party seeking enforcement; principles which may permit a party to cure a material failure to perform its obligations; and principles affording equitable defenses such as waiver, laches and estoppel.
Our enforceability opinion is also subject to the qualification that certain provisions of the Credit Agreement may not be enforceable in whole or in part, although the inclusion of such provisions does not render the Credit Agreement invalid, and the Credit Agreement and the law of the State of New York contain adequate remedial provisions for the practical realization of the rights and benefits afforded thereby.
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Our enforceability opinion is further subject to the effect of rules of law that may render guaranties or other similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Agreement (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between you and the Borrowers which is substantially and materially different from that presently contemplated by the Credit Agreement, (ii) release the primary obligor, or (iii) impair the guarantor’s recourse against the primary obligor.
We also express no opinion regarding the enforceability of any so-called “fraudulent conveyance” or “fraudulent transfer savings” clauses and any similar provisions in the Credit Agreement to the extent such provisions purport to limit the amount of the obligations of any party or the right to contribution of any other party with respect to such obligations.
We render no opinion regarding the validity, binding effect or enforceability of the Credit Agreement with respect to any Borrower to the extent the Credit Agreement involves any obligation (including any guaranty) of such Borrower with respect to any “swap” (as such term is defined in the Commodity Exchange Act) if such Borrower is not an “eligible contract participant” (as such term is defined in the Commodity Exchange Act) at the time such obligation is incurred by such Borrower.
We render no opinion with regard to usury or other laws limiting or regulating the maximum amount of interest that may be charged, collected, received or contracted for other than the internal laws of the State of New York, and without limiting the foregoing, we expressly disclaim any opinion as to the usury or other such laws of any other jurisdiction (including laws of other states made applicable through principles of Federal preemption or otherwise) which may be applicable to the transactions contemplated by the Credit Agreement.
Nothing contained in this letter covers or otherwise addresses any of the following types of provisions which may be contained in the Credit Agreement:
(i) provisions mandating contribution towards judgments or settlements among various parties;
(ii) waivers of benefits and rights to the extent they cannot be waived under applicable law;
(iii) provisions providing for penalties, liquidated damages, acceleration of future amounts due (other than principal) without appropriate discount to present value, late charges, prepayment charges, interest upon interest, or increased interest rates upon default;
(iv) provisions which might require indemnification or contribution in violation of general principles of equity or public policy, including, without limitation, indemnification or contribution obligations which arise out of the failure to comply with applicable state or federal securities laws;
(v) agreements to submit to the jurisdiction of any particular court or other governmental authority (either as to personal or subject matter jurisdiction); provisions restricting access to courts; waiver of service of process requirements which would otherwise be applicable; waiver of the right to a jury trial and provisions otherwise purporting to affect the jurisdiction and venue of courts;
(vi) choice-of-law provisions;
(vii) provisions regarding arbitration;
(viii) covenants not to compete;
I-4
(ix) provisions that authorize you to set off and apply any deposits at any time held, and any other indebtedness at any time owing, by you to or for the account of the Borrowers, or
(x) requirements in the Credit Agreement specifying that provisions thereof may only be waived in writing.
Except as expressly otherwise set forth in this letter, our advice on every legal issue addressed in this letter is based exclusively on the internal laws of the State of New York or the Federal law of the United States which, in each case, in our experience is generally applicable both to general business organizations which are not engaged in regulated business activities and to transactions of the type contemplated in the Credit Agreement, on the one hand, and you, on the other hand (but without our having made any special investigation as to any other laws), except that we express no opinion or advice as to any law or legal issue (a) which might be violated by any misrepresentation or omission or a fraudulent act, or (b) to which any Borrower may be subject as a result of your legal or regulatory status, your sale or transfer of the Loans or interests therein or your involvement in the transactions contemplated by the Credit Agreement.
None of the opinions or other advice contained in this letter considers or covers: (i) any federal or state securities (or “blue sky”) laws or regulations or Federal Reserve Board margin regulations or (ii) federal or state antitrust and unfair competition laws and regulations, pension and employee benefit laws and regulations, compliance with fiduciary duty requirements, federal and state environmental, land use and subdivision, tax, racketeering (e.g., RICO), health and safety (e.g., OSHA), and labor laws and regulations, federal and state laws, regulations and policies concerning national and local emergency, possible judicial deference to acts of sovereign states and criminal and civil forfeiture laws, and other federal and state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes).
We also express no opinion regarding any laws relating to terrorism or money laundering, including Executive Order No. 13224, 66 Fed. Reg. 49079 (published September 25, 2001) (the “Terrorism Executive Order”) or any related enabling legislation or any other similar executive order (collectively with the Terrorism Executive Order, the “Executive Orders”), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56, the “Patriot Act”), any sanctions and regulations promulgated under authority granted by the Trading with the Enemy Act, 50 U.S.C. App. 1-44, as amended from time to time, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, as amended from time to time, the Iraqi Sanctions Act, Publ. L. No. 101-513; United Nations Participation Act, 22 U.S.C. § 287c, as amended from time to time, the International Security and Development Cooperation Act, 22 U.S.C. § 2349 aa-9, as amended from time to time, The Cuban Democracy Act, 22 U.S.C. §§ 6001-10, as amended from time to time, The Cuban Liberty and Democratic Solidarity Act, 18 U.S.C. §§ 2332d and 2339b, as amended from time to time, and The Foreign Narcotics Kingpin Designation Act, Publ. L. No. 106-120, as amended from time to time.
We express no opinion as to what law might be applied by any other courts to resolve any issue addressed in this letter. We advise you that issues addressed by this letter may be governed in whole or in part by other laws, but we express no opinion as to whether any relevant difference exists between the laws upon which our opinions are based and any other laws which may actually govern.
This opinion letter speaks as of the time of its delivery on the date it bears. We do not assume any obligation to provide you with any subsequent opinion or advice by reason of any fact about which our Designated Transaction Lawyers did not have actual knowledge at that time, by reason of any change subsequent to that time in any law covered by any of our opinions, or for any other reason.
I-5
You may rely upon this letter only for the purpose served by the provision in the Credit Agreement cited in the second paragraph of this opinion letter in response to which it has been delivered. Without our written consent: (i) no person other than you may rely on this opinion letter for any purpose; (ii) this opinion letter may not be cited or quoted in any financial statement, prospectus, private placement memorandum or other similar document; (iii) this opinion letter may not be cited or quoted in any other document or communication which might encourage reliance upon this opinion letter by any person or for any purpose excluded by the restrictions in this paragraph; and (iv) copies of this opinion letter may not be furnished to anyone for purposes of encouraging such reliance. Notwithstanding the foregoing, financial institutions which subsequently become Banks in accordance with the terms of Section 10.5 of the Credit Agreement may rely on this opinion letter as of the time of its delivery on the date hereof as if this letter were addressed to them.
Sincerely,
KIRKLAND & ELLIS LLP
I-6
EXHIBIT I
[FORM OF EXTENSION REQUEST]
____________________, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $2,500,000,000 2025 Credit Agreement, dated as of March 29, 2021, among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are used herein as therein defined.
This is an Extension Request pursuant to subsection 2.16 of the Credit Agreement requesting an extension of the Termination Date to [INSERT REQUESTED TERMINATION DATE]. Please transmit a copy of this Extension Request to each of the Banks.
Very truly yours,
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
JOHN DEERE BANK S.A.
By:
Title:
EXHIBIT J
[FORM OF W-8BEN-E TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form W-8BEN-E of
the Internal Revenue Service]
[Bank’s Letterhead]
________________, 20__
Deere & Company
One John Deere Place
Moline, Illinois 61265
Attention: Treasurer
John Deere Capital Corporation
First National Bank Building
1 East First Street
Reno, Nevada 89501
Attention: Manager
[John Deere Bank S.A.
43, avenue John F. Kennedy
L-1855 Luxembourg
Grand Duchy of Luxembourg
Attention: ]
Re: |
$2,500,000,000 2025 Credit Agreement
|
Ladies and Gentlemen:
In connection with the $2,500,000,000 2025 Credit Agreement, dated as of March 29, 2021, among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent, we hereby represent and warrant that [name of Bank, address] is a [name of Country] corporation and is currently exempt from any U.S. federal withholding tax on payments to it from U.S. sources by virtue of compliance with the provisions of the Income Tax Convention between the United States and [name of Country] signed [date], [as amended]. Our fiscal year is the twelve months ending [________________].
The undersigned (a) is a [corporation] organized under the laws of [_______] whose [registered] business is managed or controlled in [_______], (b) [does not have a permanent establishment or fixed base in the United States] [does have a permanent establishment or fixed base in the United States but the above Agreement is not effectively connected with such permanent establishment or fixed base], (c) is not exempt from tax on the income in [_______] and (d) is the beneficial owner of the income.
J-2
We enclose herewith two copies of Form W-8BEN-E of the U.S. Internal Revenue Service.
Yours faithfully,
[NAME OF BANK]
By:
Title:
cc:JPMorgan Chase Bank, N.A., as Administrative Agent
EXHIBIT K
[FORM OF W-8ECI TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form W-8ECI of
the Internal Revenue Service]
[Bank’s Letterhead]
______________, 20__
Deere & Company
One John Deere Place
Moline, Illinois 61265
Attention: Treasurer
John Deere Capital Corporation
First National Bank Building
1 East First Street
Reno, Nevada 89501
Attention: Manager
[John Deere Bank S.A.
43, avenue John F. Kennedy
L-1855 Luxembourg
Grand Duchy of Luxembourg
Attention:]
Re: |
$2,500,000,000 2025 Credit Agreement
|
Ladies and Gentlemen:
In connection with the above $2,500,000,000 2025 Credit Agreement, dated as of March 29, 2021, among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent, we hereby represent and warrant that [name of Bank, address] is a [corporation] and is entitled to exemption from U.S. federal withholding tax on payments to it under the Agreement by virtue of Section 1441(c)(1) of the Internal Revenue Code of the United States of America and Treasury Regulation Section 1.1441-4(a) thereunder.
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We enclose herewith two copies of Form W-8ECI of the U.S. Internal Revenue Service.
Yours faithfully,
[NAME OF BANK]
By:
Title:
cc:JPMorgan Chase Bank, N.A., as Administrative Agent
EXHIBIT L
[FORM OF REPLACEMENT BANK AGREEMENT]
THIS AGREEMENT, dated as of _____, 20__ (“Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”) ____________ (“New Bank”) and JPMorgan Chase Bank, N.A., as Administrative Agent for the Existing Banks referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Capital Corporation, JD Luxembourg, the several financial institutions parties thereto (the “Existing Banks”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent are parties to the $2,500,000,000 2025 Credit Agreement, dated as of March 29, 2021 (as the same may have been or may hereafter be amended, supplemented or otherwise modified, the “Credit Agreement”; terms defined therein being used herein as therein defined);
WHEREAS, subsection 2.19 of the Credit Agreement provides that one or more financial institutions (which may be Existing Banks) may be added as a “Bank” or “Banks” for purposes of the Credit Agreement upon the cancellation of all or a portion of the Commitments pursuant to subsection 2.13(a), (b) or (c), 2.16(c) or 2.17(b) of the Credit Agreement or the expiration of all or a portion of the Commitments pursuant to subsection 2.16(b) of the Credit Agreement or upon a Defaulting Bank becoming a Cancelled Bank and the execution of an agreement in substantially the form of this Agreement;
WHEREAS, the Borrowers have cancelled or there have expired an aggregate principal amount of Commitments equal to $______which have not heretofore been replaced (the “Cancelled Commitments”; the Banks that are maintaining or have maintained the Cancelled Commitments being collectively referred to as “Cancelled Banks”); such Cancelled Commitments being on the date hereof, or on the date of notice of cancellation hereof having been, utilized as follows:
Principal Amount |
Last day of
|
|
I |
Unused Portion |
N/A |
II |
Committed Rate Loans |
|
Eurocurrency Loans
1
|
|
|
|
ABR Loans |
N/A |
III |
Bid Loans |
|
1
|
|
|
IV |
Negotiated Rate Loans |
|
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1
|
|
WHEREAS, the cancellation of the Cancelled Commitments is effective in accordance with the Credit Agreement; and
WHEREAS, [the Borrowers desire the New Bank to become, and the New Bank is agreeable, to becoming, a “Bank” for purposes of the Credit Agreement] [the New Bank is an Existing Bank and the Borrowers desire the New Bank to increase, and the New Bank is agreeable to increasing, its Commitment]* on the terms contained herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto agree as follows:
1. Benefits of Agreement. The Borrowers, the Administrative Agent and the New Bank hereby [agree that on and as of the date hereof the New Bank shall be] [confirm that the New Bank is] a “Bank” for all purposes and shall [continue to] be bound by and entitled to the benefits of the Credit Agreement [as if the New Bank had been named on the signature pages thereof], provided that the New Bank shall not assume and shall, except as herein provided, have no obligations in respect of any Loans outstanding on the date hereof and made by any [Existing Bank.] [Cancelled Bank.]*
2. Commitment of New Bank. The Borrowers, the Administrative Agent and the New Bank hereby agree that on and as of the dates set forth below the New Bank shall replace, as specified herein, _% (such percentage being referred to as the New Bank’s “Percentage”) of each utilization of the Cancelled Commitments [set forth in the third recital hereof] [set forth under the caption “Committed Rate Loans”] and that the aggregate Commitment of the New Bank shall on and as of the date hereof be $_____**. In connection therewith, the Borrowers, the Administrative Agent and the New Bank hereby agree as follows***:
(i) for purposes of determining such New Bank’s pro rata share of each Committed Rate Loan borrowing advanced on or after the date hereof such Bank’s Commitment shall be equal to $[same as above];
(ii) the unused and available portion of such New Bank’s Commitment shall be deemed utilized by its Percentage of the Committed Rate Loans made by the Cancelled Banks and listed in the third recital hereof. In furtherance thereof, the unused and available portion of such New Bank’s Commitment shall, on the earlier of (x) the last day of each Interest Period specified for each outstanding Committed Rate Loan in the third recital hereof (and the payment in full to the Cancelled Banks of the principal thereof and accrued interest thereon) and (y) the prepayment of the principal of such Loans
* |
As appropriate for New or Existing Banks. |
** |
Insert amount equal to sum of New Bank’s existing Commitment, if any, plus New Bank’s Percentage of Cancelled Commitments. |
*** |
The following clauses (ii)-(iii) may be altered to reflect the agreements among the Cancelled Bank, the New Bank and the Borrowers provided such agreements do not adversely affect any Existing Bank or the Administrative Agent. |
L-3
together with accrued interest thereon, automatically and without any further action by any party increase by an amount equal to the New Bank’s Percentage of such Loan; and
(iii) [(A)] [concurrently with the execution hereof the New Bank shall disburse to each Borrower in immediately available funds such amount as shall be necessary so that (x) the ratio which each Bank’s outstanding ABR Loans bears to all of the outstanding ABR Loans and (y) the ratio which each Bank’s outstanding SONIA Loans bears to all of the outstanding SONIA Loans, in each case equals the ratio which each Bank’s Commitment (determined, for the New Bank, in accordance with clause (i) above) bears to all of the Commitments (determined, for the New Bank, in accordance with the immediately foregoing parenthetical);]
[(B)] [on the last day of each Interest Period for each outstanding Eurocurrency Loan, automatically and without any further action by either Borrower, the New Bank shall disburse to each Borrower in immediately available funds such amounts as shall be necessary so that the ratio which each Bank’s outstanding Eurocurrency Loans, bears to all of the outstanding Eurocurrency Loans, equals the ratio which each Bank’s Commitment (determined, for the New Bank, in accordance with clause (i) hereof) bears to all of the Commitments (determined, for the New Bank, in accordance with the immediately foregoing parenthetical);]
[(C)] [Funding of outstanding Bid Loans of Cancelled Banks]*
[(D)] [Funding of outstanding Negotiated Rate Loans of Cancelled Banks].*
3. Representation and Warranty of Borrowers. The Borrowers hereby represent and warrant that after giving effect to the provisions of paragraph 2 hereof the aggregate principal amount of the Commitments of all Banks (including, without limitation, the Commitment of the New Bank but excluding the cancelled or expired portion of the Commitments of the Cancelled Banks) under the Credit Agreement do not exceed the aggregate principal amount of the Commitments in effect immediately prior to the cancellation referred to in the third recital hereof.
4. Confidentiality. The New Bank agrees to [continue to] be bound by the provisions of subsection 10.7 of the Credit Agreement.
[5. Taxes. The New Bank (i) represents to the Administrative Agent and the Borrowers that [it is incorporated under the laws of the United States or a state thereof][under applicable law and treaties no taxes will be required to be withheld by the Administrative Agent or the Borrowers with respect to any payments to be made to such New Bank in respect of the Loans], (ii) represents that it has furnished to the Administrative Agent and the Borrowers (A) [a statement that it is incorporated under the laws of the United States or a state thereof][a letter in duplicate in the form of Exhibit [J][K] to the Credit Agreement and two duly completed copies of United States Internal Revenue Service Form [W-8BEN-E] [W-8ECI] [successor applicable form], certifying that such New Bank is entitled to receive payments under the Credit Agreement without deduction or withholding of any United States federal income taxes], and (B) [an Internal Revenue Service Form [W-8BEN-E] [successor applicable form] to establish an exemption from United States backup withholding tax, and (iii) agrees to provide the Administrative Agent and the Borrowers a new Form [W-8BEN-E] and Form [W-8ECI], or successor applicable form or other manner of certification, on or before the date that any such letter or form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent letter and form
* |
To be completed upon agreement of Borrowers and New Bank. |
L-4
previously delivered by it, certifying in the case of a Form [W-8BEN-E] [W-8ECI] that it is entitled to receive payments under the Credit Agreement without deduction or withholding of any United States federal income tax, and in the case of a Form [W-8BEN-E] establishing exemption from United States backup withholding tax.]*
[5][6]. Miscellaneous. (a) This Agreement may be executed by the parties hereto in separate counterparts and all of the counterparts taken together shall constitute one and the same instrument and shall be effective only upon receipt by the Administrative Agent of all of the counterparts.
(b) This Agreement shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
* |
Use for non-Existing Banks. |
L-5
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered as of the day and year first above written.
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
JOHN DEERE BANK S.A.
By:
Title:
[NAME OF NEW BANK]
By:
Title:
[Address]
Telephone:
Facsimile:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By:
Title:
EXHIBIT M
[FORM OF BID LOAN OR NEGOTIATED RATE LOAN NOTE]
PROMISSORY NOTE
$__________New York, New York___________ __, 20__
FOR VALUE RECEIVED, the undersigned, [DEERE & COMPANY] [JOHN DEERE CAPITAL CORPORATION], a Delaware corporation (the “Borrower”), hereby promises to pay on [insert maturity date or dates] to ________________ or registered assigns (the “Bank”) at the office of [JPMorgan Chase Bank, N.A. located at 383 Madison Avenue, New York, New York 10179 -- for Bid Loan Note] [Name and address of Bank -- for Negotiated Rate Loan Note], in lawful money of [the United States of America] and in immediately available funds, the principal sum of ______________[DOLLARS ($____________)]. The undersigned further agrees to pay interest in like money at such office on the unpaid principal amount hereof from time to time from the date hereof [at the rate of ___% per annum -- for Bid Loan Note] [specify rate for Negotiated Rate Loan Note] (calculated on the basis of a year of 360 days and actual days elapsed) until the due date hereof (whether at the stated maturity, by acceleration, or otherwise) and thereafter at the rates determined or agreed in accordance with subsection 2.2(e) of the $2,500,000,000 2025 Credit Agreement, dated as of March 29, 2021 (the “Credit Agreement”), among the Borrower, [Deere & Company] [John Deere Capital Corporation], John Deere Bank S.A., the Bank, the other financial institutions parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Interest shall be payable on _______________. This Note may be prepaid pursuant to the provisions of subsection 2.6 of the Credit Agreement.
This Note is one of the [Bid] [Negotiated Rate Loan] Notes referred to in, is subject to and is entitled to the benefits of, the Credit Agreement, which Credit Agreement, among other things, contains provisions for acceleration of the maturity hereof upon the occurrence of any one or more of the Events of Default specified in the Credit Agreement.
Terms defined in the Credit Agreement are used herein with their defined meanings unless otherwise defined herein. This Note shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
EXHIBIT N
FORM OF
NEW BANK SUPPLEMENT
SUPPLEMENT, dated _______ __, to the $2,500,000,000 2025 Credit Agreement (as in effect on the date hereof, the “Credit Agreement”) dated as of March 29, 2021, among Deere & Company (the “Company”), John Deere Capital Corporation, John Deere Bank S.A., the banks and other financial institutions from time to time party thereto (each a “Bank,” and together, the “Banks”), JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”) for the Banks, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Unless the context otherwise requires, all capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Credit Agreement provides in subsection 2.20 thereof that any bank or financial institution, although not originally a party thereto, may become a party to the Credit Agreement in accordance with the terms thereof by executing and delivering to the Borrowers and the Administrative Agent a supplement to the Credit Agreement in substantially the form of this New Bank Supplement; and
WHEREAS, the undersigned was not an original party to the Credit Agreement but now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
The undersigned agrees to be bound by the provisions of the Credit Agreement and agrees that it shall, on the date this New Bank Supplement is accepted by the Borrowers and the Administrative Agent, become a Bank for all purposes of the Credit Agreement to the same extent as if originally a party thereto, with a Commitment of $__________________.
The undersigned (a) represents and warrants that it is legally authorized to enter into this New Bank Supplement; (b) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements delivered pursuant to Section 5.1 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this New Bank Supplement; (c) agrees that it has made and will, independently and without reliance upon any Agent or any other Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement or any instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes the Administrative Agent to take such action as administrative agent on its behalf and to exercise such powers and discretion under the Credit Agreement or any instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms thereof, together with such powers as are incidental thereto; and (e) agrees that it will be bound by the provisions of the Credit Agreement and will perform in accordance with its terms all the obligations which by the terms of the Credit Agreement are required to be performed by it as a Bank including, without limitation, its obligation pursuant to subsection 2.17(c), subsection 2.17(d) and subsection 2.17(e) of the Credit Agreement.
The undersigned’s address for notices for the purposes of the Credit Agreement is as follows:
_______________________
Attention:_______________
_______________________
_______________________
Fax:____________________
IN WITNESS WHEREOF, the undersigned has caused this New Bank Supplement to be executed and delivered by a duly authorized officer on the date first above written.
[NAME OF NEW BANK]
By:
Title:
Accepted this _____ day of
______________, 20__
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
JOHN DEERE BANK S.A.
By:
Title:
Accepted this _____ day of
______________, 20__
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:
Title:
EXHIBIT O
FORM OF
COMMITMENT INCREASE SUPPLEMENT
SUPPLEMENT, dated _______ 20__, to the $2,500,000,000 2025 Credit Agreement (as in effect on the date hereof, the “Credit Agreement”) dated as of March 29, 2021, among Deere & Company (the “Company”), John Deere Capital Corporation, John Deere Bank S.A., the banks and other financial institutions from time to time party thereto (each a “Bank,” and together, the “Banks”), JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”), Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Unless the context otherwise requires, all capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the provisions of subsection 2.20 of the Credit Agreement, the undersigned may increase the amount of its Commitment in accordance with the terms thereof by executing and delivering to the Borrowers and the Administrative Agent a supplement to the Credit Agreement in substantially the form of this Supplement; and
WHEREAS, the undersigned now desires to increase the amount of its Commitment under the Credit Agreement;
NOW THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and conditions of the Credit Agreement, that on the date this Supplement is accepted by the Borrowers and the Administrative Agent it shall have its Commitment increased by $______________, thereby making the amount of its Commitment $______________.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be executed and delivered by a duly authorized officer on the date first above written.
[NAME OF BANK]
By:
Title:
Accepted this _____ day of
______________, 20__
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
JOHN DEERE BANK S.A.
By:
Title:
Accepted this _____ day of
______________, 20__
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:
Title:
EXHIBIT P-1
FORM OF
Certificate of Non-Bank Status
(For Foreign Banks that Are not Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $2,500,000,000 2025 Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code and (v) the interest payments in question are not effectively connected with the undersigned’s conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrowers with a certificate of its non-U.S. Person status on IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF BANK]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
EXHIBIT P-2
FORM OF
Certificate of Non-Bank Status
(For Foreign Banks that Are Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $2,500,000,000 2025 Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Agreement, neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively connected with the undersigned's or its partners/members’ conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrowers with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF BANK]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
EXHIBIT P-3
FORM OF
Certificate of Non-Bank Status
(For Non-U.S. Participants that Are not Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $2,500,000,000 2025 Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (v) the interest payments in question are not effectively connected with the undersigned's conduct of a U.S. trade or business.
The undersigned has furnished its participating Bank with a certificate of its non-U.S. Person status on IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Bank in writing and (2) the undersigned shall have at all times furnished such Bank with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF PARTICIPANT]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
FORM OF
Certificate of Non-Bank Status
(For Non-U.S. Participants that Are Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $2,500,000,000 2025 Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively connected with the undersigned's or its partners/members' conduct of a U.S. trade or business.
The undersigned has furnished its participating Bank with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or Form W-8BEN-E from each of its partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Bank and (2) the undersigned shall have at all times furnished such Bank with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF PARTICIPANT]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
Exhibit 10.13
EXECUTION VERSION
This First Amendment, dated as of October 15, 2021 (this “Amendment”), to the 2026 Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”), among (a) DEERE & COMPANY, a Delaware corporation (the “Company”), (b) JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “Capital Corporation”), (c) JOHN DEERE BANK S.A., a Luxembourg société anonyme (“JD Luxembourg”, together with the Company and the Capital Corporation, the “Borrowers”), (d) the several financial institutions parties thereto (the “Banks”), (e) JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, together with its successors and permitted assigns, the “Administrative Agent”), (f) CITIBANK, N.A., as documentation agent and (g) BANK OF AMERICA, N.A., as syndication agent.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Banks and the Administrative Agent are parties to the Existing Credit Agreement and the Borrowers have requested that the Existing Credit Agreement be amended as set forth herein (the Existing Credit Agreement, as so amended, the “Credit Agreement”);
WHEREAS, an Early Opt-in Election in respect of Pounds Sterling has occurred as a result of (i) a determination by the Company that at least five currently outstanding syndicated credit facilities documented in Pounds Sterling contain a new benchmark interest rate to replace the Relevant Rate in respect of Pounds Sterling and (ii) the joint election by the Administrative Agent and the Company to declare that an Early Opt-in Election has occurred with respect to Loans denominated in Pounds Sterling and the provision by the Administrative Agent and the Company of written notice of such election to the Banks;
WHEREAS, the Company and the Administrative Agent desire to amend the Existing Credit Agreement to reflect the Benchmark Replacement with respect to Loans denominated in Pounds Sterling, in accordance with clause (3) of the definition of “Benchmark Replacement”;
NOW, THEREFORE, in consideration of the premises contained herein, the parties hereto agree as follows:
- 2 -
- 3 -
- 4 -
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
|
DEERE & COMPANY
By:/s/ Andrew M. Recker
|
|
JOHN DEERE CAPITAL CORPORATION
By:/s/ Andrew M. Recker
|
|
JOHN DEERE BANK S.A.
By:/s/ Andrew Traeger
|
By:/s/ Jeffrey A Trahan
Name: Jeffrey A Trahan
Title: VP & Treasurer
[Signature Page to First Amendment to Deere 2026 Credit Agreement]
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:/s/ Sean Bodkin
Name: Sean Bodkin
Title: Vice President
[Signature Page to First Amendment to Deere 2026 Credit Agreement]
Exhibit A
AMENDED CREDIT AGREEMENT
[See attached]
DEERE & COMPANY
JOHN DEERE CAPITAL CORPORATION
JOHN DEERE BANK S.A.
________________________________________
$2,500,000,000
2026
CREDIT AGREEMENT1
Dated as of March 29, 2021
________________________________________
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
Citibank, N.A.,
as Documentation Agent
BANK OF AMERICA, N.A.,
as Syndication Agent
________________________________________
JPMORGAN CHASE BANK, N.A. and BOFA SECURITIES, INC.,
as Lead Arrangers and Bookrunners
1 Conformed version reflects the First Amendment dated as of October 15, 2021.
Page
SECTION 1.DEFINITIONS1
1.1Defined Terms1
1.2Other Definitional Provisions27
1.3Currency Conversion27
1.4Interest Rates; LIBOR Notification28
SECTION 2.THE COMMITTED RATE LOANS; THE BID LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS28
2.1The Committed Rate Loans28
2.2The Bid Loans; the Negotiated Rate Loans29
2.3Loan Accounts33
2.4Fees33
2.5Termination or Reduction of Commitments; Cancellation of Capital Corporation or JD Luxembourg as Borrower34
2.6Prepayments35
2.7Minimum Amount of Certain Loans36
2.8Committed Rate Loan Interest Rate and Payment Dates36
2.9Conversion and Continuation Options36
2.10Computation of Interest and Fees37
2.11Inability to Determine Interest Rate37
2.12Pro Rata Treatment and Payments40
2.13Requirements of Law42
2.14Indemnity46
2.15Non-Receipt of Funds by the Administrative Agent47
2.16Extension of Termination Date47
2.17Indemnified Taxes48
2.18Confirmations51
2.19Replacement of Cancelled Banks52
2.20Commitment Increases52
2.21[Reserved]54
2.22[Reserved]54
2.23Defaulting Banks54
2.24Judgment Currency55
2.25Foreign Currency Exchange Rate56
2.26Letters of Credit56
2.27Capital Corporation Guaranty59
SECTION 3.REPRESENTATIONS AND WARRANTIES61
3.1Financial Condition61
3.2Corporate Existence61
3.3Corporate Power; Authorization; Enforceable Obligations61
3.4No Legal Bar61
3.5No Material Litigation62
3.6Taxes62
i
3.7Margin Regulations62
3.8Use of Proceeds62
3.9Sanctions Laws and Regulations62
3.10Beneficial Ownership Certification62
SECTION 4.CONDITIONS PRECEDENT62
4.1Conditions to Initial Extensions of Credit62
4.2Conditions to All Extensions of Credit64
SECTION 5.AFFIRMATIVE COVENANTS65
5.1Financial Statements65
5.2Certificates; Other Information65
5.3Company Indenture Documents66
5.4Capital Corporation Indenture Documents66
5.5Notice of Default66
5.6Ownership of Capital Corporation and JD Luxembourg Stock66
5.7Employee Benefit Plans66
5.8Compliance66
SECTION 6.NEGATIVE COVENANTS OF THE COMPANY67
6.1Company May Consolidate, etc., Only on Certain Terms67
6.2Limitation on Liens67
6.3Limitations on Sale and Lease-back Transactions70
6.4Equipment Operations Debt71
SECTION 7.NEGATIVE COVENANTS OF THE CAPITAL CORPORATION71
7.1Fixed Charges Ratio71
7.2Consolidated Senior Debt to Consolidated Capital Base71
7.3Limitation on Liens71
7.4Consolidation; Merger72
SECTION 8.EVENTS OF DEFAULT73
SECTION 9.THE AGENTS75
9.1Appointment75
9.2Delegation of Duties76
9.3Exculpatory Provisions76
9.4Reliance by Agents76
9.5Notice of Default77
9.6Non-Reliance on Agents and Other Banks78
9.7Indemnification78
9.8Agents in their Individual Capacities78
9.9Successor Agents79
SECTION 10.MISCELLANEOUS79
10.1Amendments and Waivers79
10.2Notices80
ii
10.3No Waiver; Cumulative Remedies82
10.4Payment of Expenses82
10.5Successors and Assigns; Participations; Purchasing Banks84
10.6Adjustments87
10.7Confidentiality88
10.8Counterparts88
10.9GOVERNING LAW89
10.10Consent to Jurisdiction and Service of Process90
10.11WAIVERS OF JURY TRIAL90
10.12USA Patriot Act90
10.13No Fiduciary Duty90
10.14Headings91
10.15Acknowledgment and Consent to Bail-In of Affected Financial Institutions91
10.16Bank ERISA Representations91
SCHEDULES:
Schedule ITerms of Subordination
Schedule IICommitments
Schedule IIIExisting Letters of Credit
EXHIBITS:
Exhibit AForm of Borrowing Notice
Exhibit BForm of Bid Loan Request
Exhibit CForm of Bid Loan Offer
Exhibit DForm of Bid Loan Confirmation
Exhibit EForm of Assignment and Assumption
Exhibit F[Reserved]
Exhibit GForm of Opinion of General Counsel to the Company
Exhibit HForm of Opinion of Special New York Counsel to the Borrowers
Exhibit IForm of Extension Request
Exhibit JForm of Form W-8BEN-E Tax Letter
Exhibit KForm of Form W-8ECI Tax Letter
Exhibit LForm of Replacement Bank Agreement
Exhibit MForm of Promissory Note
Exhibit NForm of New Bank Supplement
Exhibit OForm of Commitment Increase Supplement
Exhibit PForm of Certificate of Non-Bank Status
iii
2026 CREDIT AGREEMENT, dated as of March 29, 2021, among (a) DEERE & COMPANY, a Delaware corporation (the “Company”), (b) JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “Capital Corporation”), (c) JOHN DEERE BANK S.A., a Luxembourg société anonyme (“JD Luxembourg”), (d) the several financial institutions parties hereto (collectively, the “Banks”, and individually, a “Bank”), (e) JPMORGAN CHASE BANK, N.A., as administrative agent hereunder (in such capacity, together with its successors and permitted assigns, the “Administrative Agent”), (f) Citibank, N.A., as documentation agent hereunder (in such capacity, the “Documentation Agent”), and (g) BANK OF AMERICA, N.A., as syndication agent hereunder (in such capacity, the “Syndication Agent”).
The parties hereto hereby agree as follows:
SECTION 1. | DEFINITIONS |
“ABR”: at any particular date, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) 0.5% per annum above the NYFRB Rate and (c) the Eurocurrency Rate for a Eurocurrency Loan denominated in Dollars with one-month Interest Period commencing on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1% (provided that, for the avoidance of doubt, such Eurocurrency Rate for any date shall be based on the LIBOR Screen Rate (or if the LIBOR Screen Rate is not available for such one-month Interest Period, the LIBOR Interpolated Rate)). Any change in ABR due to a change in the Prime Rate, the NYFRB Rate or the Eurocurrency Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Eurocurrency Rate, respectively. If the ABR is being used as an alternate rate of interest pursuant to subsection 2.11 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to subsection 2.11(b)), then the ABR shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
“ABR Loans”: Committed Rate Loans at such time as they are made and/or being maintained at a rate of interest based upon the ABR.
“Absolute Rate Bid Loan”: any Bid Loan made pursuant to an Absolute Rate Bid Loan Request.
“Absolute Rate Bid Loan Request”: any Bid Loan Request requesting the Banks to offer to make Bid Loans at an absolute rate (as opposed to a rate composed of the Applicable Index Rate plus (or minus) a margin).
“Act”: as defined in subsection 10.12.
“Adjusted Daily Simple SONIA”: an interest rate per annum equal to (a) Daily Simple SONIA, plus (b) 0.0326%; provided that if Adjusted Daily Simple SONIA as so determined would be less than 0.0%, such rate shall be deemed to be equal to 0.0% for the purposes of this Agreement.
“Administrative Agent”: as defined in the preamble hereto. It is understood that matters concerning the Foreign Currency Loans will be administered by the Foreign Currency Agent as agent for the Administrative Agent.
2
“Administrative Questionnaire”: an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Foreign Currency”: as defined in subsection 2.11(a).
“Agent”: the Administrative Agent, the Foreign Currency Agent, the Syndication Agent, or the Documentation Agent, as the context shall require; together, the “Agents”.
“Agreement”: this 2026 Credit Agreement, as amended by the First Amendment and as further amended, supplemented or modified from time to time.
“Agreement Currency”: as defined in subsection 2.24(b).
“Ancillary Document”: as defined in subsection 10.8.
“Anti-Corruption Laws”: all laws, rules and regulations of any jurisdiction applicable to the Borrowers and their Subsidiaries from time to time concerning or relating to bribery or corruption.
“Applicable Creditor”: as defined in subsection 2.24(b).
“Applicable Index Rate”: in respect of any Bid Loan requested pursuant to an Index Rate Bid Loan Request, the Eurocurrency Rate applicable to the Interest Period for such Bid Loan.
“Applicable Margin”: (a) with respect to ABR Loans, the rate per annum set forth below for ABR Loans in the column corresponding to the Prevailing Rating of the Company and, (b) with respect to Eurocurrency Loans, the rate per annum set forth below for Eurocurrency Loans in the column corresponding to the Prevailing Rating of the Company and (c) with respect to SONIA Loans, the rate per annum set forth below for SONIA Loans in the column corresponding to the Prevailing Rating of the Company:
“Application”: an application in such form from time to time in use by the applicable Issuing Bank, requesting an Issuing Bank to issue a Letter of Credit.
“Attributable Debt”: as defined in subsection 6.2(b)(ii).
“Australian Dollars”: the lawful currency of Australia.
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“Available Commitment”: as to any Bank at any time, an amount equal to the excess, if any, of (a) such Bank’s Commitment then in effect over (b) such Bank’s Committed Rate Loans then outstanding.
“Available Tenor”: as of any date of determination and with respect to the then-current Benchmark in respect of Loans denominated in such Currency, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period with respect to Loans denominated in the applicable Currency pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (f) of subsection 2.11.
“Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation”: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank” and “Banks”: as defined in the preamble hereto.
“Benchmark”: initially, with respect to aany (i) SONIA Loan, Adjusted Daily Simple SONIA or (ii) Eurocurrency Loan denominated in any Currency, the Relevant Rate for such Currency; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to the Relevant Rate or the then-current Benchmark with respect to Loans denominated in such Currency, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) or clause (c) of subsection 2.11.
“Benchmark Replacement”: for any Available Tenor with respect to Loans denominated in any Currency, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in a Foreign Currency, “Benchmark Replacement” shall mean the alternative set forth in (3) below:
(1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;
(2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;
(3) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Company as the replacement for the then-current Benchmark for the applicable Corresponding Tenor with respect to Loans denominated in such Currency giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body and/or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for
4
syndicated credit facilities denominated in the applicable Currency at such time and (b) the related Benchmark Replacement Adjustment;
provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; provided further that, solely with respect to a Loan denominated in Dollars, notwithstanding anything to the contrary in this Agreement or in any other Loan Document, to the extent that a Term SOFR Transition Event has occurred, and a Term SOFR Notice has been delivered, on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).
If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment”: with respect to any replacement of the then-current Benchmark with respect to Loans denominated in any Currency with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
(1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:
(a) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor; and
(b) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and
(2) for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Company for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Currency at such time;
provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.
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“Benchmark Replacement Conforming Changes”: with respect to any Benchmark Replacement in respect of Loans denominated in any Currency, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “SONIA Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides in its reasonable discretion (in consultation with the Company) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides in its reasonable discretion that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent reasonably determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent determines (in consultation with the Company) is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date”: with respect to the Benchmark for any Loan denominated in any Currency, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein; or
(3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Banks and the Company pursuant to Section 2.11(c); or
(4) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Banks, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Banks, written notice of objection to such Early Opt-in Election from Banks comprising the Majority Banks.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event”: with respect to the Benchmark for any Loan denominated in any Currency, the occurrence of one or more of the following events with respect to such then-current Benchmark:
6
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period”: with respect to the Benchmark for any Loan denominated in any Currency, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with subsection 2.11 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with subsection 2.11.
“Beneficial Ownership Certification”: a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230.
“benefitted Bank”: as defined in subsection 10.6.
“Bid Loan”: each loan (other than Negotiated Rate Loans) made pursuant to subsection 2.2; the aggregate amount advanced by a Bid Loan Bank pursuant to subsection 2.2 on each Borrowing Date shall constitute one Bid Loan, or more than one Bid Loan if so specified by the relevant Loan Assignee in its request for promissory notes pursuant to subsection 10.5(c).
“Bid Loan Banks”: the collective reference to each Bank designated from time to time as a Bid Loan Bank by the Company or the Capital Corporation (for purposes of Bid Loans to such Borrower) by written notice to the Administrative Agent and which has not been removed as a Bid Loan
7
Bank by such Borrower by written notice to the Administrative Agent (each of which notices the Administrative Agent shall transmit to each such affected Bank).
“Bid Loan Confirmation”: each confirmation by the Company or the Capital Corporation of its acceptance of Bid Loan Offers, which Bid Loan Confirmation shall be substantially in the form of Exhibit D and shall be delivered to the Administrative Agent by facsimile transmission or by telephone, immediately confirmed by facsimile transmission.
“Bid Loan Offer”: each offer by a Bid Loan Bank to make Bid Loans pursuant to a Bid Loan Request, which Bid Loan Offer shall contain the information specified in Exhibit C and shall be delivered to the Administrative Agent by facsimile transmission or by telephone, immediately confirmed by facsimile transmission.
“Bid Loan Request”: each request by the Company or the Capital Corporation for Bid Loan Banks to submit bids to make Bid Loans, which shall contain the information in respect of such requested Bid Loans specified in Exhibit B and shall be delivered to the Administrative Agent by facsimile transmission or by telephone, immediately confirmed by facsimile transmission.
“Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Borrower”: the Company, the Capital Corporation or JD Luxembourg; collectively, the “Borrowers”.
“Borrowing Date”: in respect of any Loan, the date such Loan is made, and in respect of any Letter of Credit, the date such Letter of Credit is issued.
“Business Day”: a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; provided, that (a) with respect to notices and determinations in connection with, and payments of principal and interest on, Eurocurrency Loans, such day is also a day for trading by and between banks in Dollar deposits in the interbank eurocurrency market in London, (b) when used in connection with a Foreign Currency Loan, a SONIA Loan or any other dealings in Pounds Sterling (in each case, other than in connection with any calculation or determination of interest rate in respect of a SONIA Loan), the term “Business Day” shall also exclude any day on which commercial banks in London are authorized or required by law to close and any day on which banks are authorized or required by law to be closed in the principal financial center for that currency and, (c) in relation to any calculation or determination of interest rate in respect of a SONIA Loan, “Business Day” shall mean a SONIA Business Day and (d) when used in connection with Eurocurrency Loans denominated in Euros, the term “Business Day” shall also exclude any day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer System (TARGET) (or, if such clearing system ceases to be operative, such other clearing system (if any) determined by the Foreign Currency Agent to be a suitable replacement) is not open for settlement of payment in Euros.
“Calculation Date”: with respect to each Foreign Currency, the last day of each calendar quarter (or, if such day is not a Business Day, the next succeeding Business Day) and such other days from time to time as the Administrative Agent shall reasonably designate as a “Calculation Date”; provided, that the second Business Day preceding each Borrowing Date with respect to, and preceding each date of any borrowing, conversion or continuation of, any Foreign Currency Loan shall also be a “Calculation Date” with respect to the relevant Foreign Currency.; provided further that with respect to any SONIA Loan, each date that is on the numerically corresponding day in each calendar month that is
8
one month after the borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month) shall also be a “Calculation Date”.
“Calendar Quarter”: a three-month period consisting of (i) each January, February and March, (ii) each April, May and June, (iii) each July, August and September or (iv) each October, November and December.
“Canadian Dollars”: the lawful currency of Canada.
“Cancelled Bank”: (i) any Bank that has the whole or any part of its Commitment cancelled under subsection 2.13(a), (b) or (c), subsection 2.16(c) or subsection 2.17(b) or the Commitment of which has expired under subsection 2.16(a) and (ii) any Defaulting Bank that the Company designates in writing to such Bank and the Administrative Agent as a Cancelled Bank.
“Capital Corporation”: as defined in the preamble hereto.
“CBR Loan”: a Loan that bears interest at a rate determined by reference to the Central Bank Rate.
“CBR Spread”: the Applicable Margin, applicable to such Loan that is replaced by a CBR Loan.
“Central Bank Rate”: (a) the greater of (i) for any Loan denominated in Pounds Sterling, the Bank of England (or any successor thereto)’s “Bank Rate” as published by the Bank of England (or any successor thereto) from time to time and (ii) 0.00%; plus (b) the applicable Central Bank Rate Adjustment.
“Central Bank Rate Adjustment”: for any day, for any Loan denominated in Pounds Sterling, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of Adjusted Daily Simple SONIA for the five most recent SONIA Business Days preceding such day for which SONIA was available (excluding, from such averaging, the highest and the lowest Adjusted Daily Simple SONIA applicable during such period of five SONIA Business Days) minus (ii) the Central Bank Rate in respect of Pounds Sterling in effect on the last SONIA Business Day in such period. For purposes of this definition, the term Central Bank Rate shall be determined disregarding clause (b) of the definition of such term.
“Certificate of Non-Bank Status”: a certificate substantially in the form and substance of Exhibit P.
“Closing Date”: the date on which each of the conditions precedent specified in subsection 4.1 shall have been satisfied (or compliance therewith shall have been waived by the Majority Banks hereunder).
“Code”: the Internal Revenue Code of 1986, as amended from time to time.
“Code of Conduct”: as defined in subsection 3.9.
“Commitment”: as to any Bank, the amount set opposite such Bank’s name on Schedule II or in any assignment pursuant to which such Bank becomes a party hereto with respect to any interest purchased therein, as such amount may be modified as provided herein; collectively, as to all Banks, the “Commitments”.
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“Commitment Expiration Date”: as defined in subsection 2.16(a).
“Commitment Fee Rate”: the rate per annum set forth below in the column corresponding to the Prevailing Rating of the Company:
Level I Rating |
Level II Rating |
Level III Rating |
Level IV Rating |
Level V Rating |
0.050% |
0.060% |
0.070% |
0.090% |
0.110% |
|
|
|
|
|
“Commitment Increase Notice”: as defined in subsection 2.20(a).
“Commitment Increase Supplement”: as defined in subsection 2.20(c).
“Commitment Percentage”: as to any Bank at any time, the percentage which such Bank’s Commitment at such time constitutes of all the Commitments at such time or, at any time after the Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Bank’s Extensions of Credit then outstanding constitutes of the aggregate principal amount of the Total Extensions of Credit then outstanding; collectively, as to all the Banks, the “Commitment Percentages”; provided that when a Defaulting Bank shall exist, “Commitment Percentage” shall mean, when appropriate as determined by the Administrative Agent in order to provide ratable treatment at any time a Defaulting Bank exists (and without increasing the Commitment of any Bank), the percentage of the total Commitments (disregarding any Defaulting Bank’s Commitment) represented by such Bank’s Commitment.
“Commitment Period”: as to any Bank at any time, the period from and including the Closing Date to but not including the Termination Date of such Bank or such earlier date on which the Commitments shall terminate as provided herein.
“Committed Extensions of Credit”: as to any Bank at any time, the amount equal to the sum of the Dollar Equivalent of (a) the aggregate principal amount of all Committed Rate Loans held by such Bank then outstanding and (b) such Bank’s Commitment Percentage multiplied by the L/C Obligations then outstanding.
“Committed Rate Loans”: each loan made pursuant to subsection 2.1.
“Commonly Controlled Entity”: in relation to a Borrower, an entity, whether or not incorporated, which is under common control with such Borrower within the meaning of Section 414(b) or (c) of the Code.
“Company”: as defined in the preamble hereto.
“Consolidated Capital Base”: at a particular time for the Capital Corporation and its consolidated Subsidiaries, the sum of (a) the amount shown opposite the item “Total Stockholders’ Equity” on the consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries plus (b) all indebtedness of the Capital Corporation and its consolidated Subsidiaries for borrowed money subordinated (on terms no less favorable to the Administrative Agent and the Banks than the terms of subordination set forth on Schedule I) to the indebtedness which may be incurred hereunder by the Capital Corporation, provided that the sum of clauses (a) and (b) hereof as at the end of a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly
10
available consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries as at the end of such fiscal quarter and after such adjustments, if any, as may be required so that the sum of the amounts referred to in clauses (a) and (b) is determined in accordance with GAAP. Notwithstanding the foregoing, for purposes of determining compliance with subsection 7.2, adjustments resulting from any accumulated other comprehensive income as reflected on the most recent publicly available consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries as at the end of any fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of any fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be deemed not to be included in Consolidated Capital Base.
“Consolidated Net Worth”: as defined in subsection 6.2(b)(ii).
“Consolidated Senior Debt”: at a particular time for the Capital Corporation and its consolidated Subsidiaries, indebtedness for borrowed money other than any indebtedness for borrowed money that is subordinated, on terms no less favorable to the Administrative Agent and the Banks than the terms of subordination set forth on Schedule I, to the indebtedness which may be incurred hereunder by the Capital Corporation, provided that the amount of such indebtedness for borrowed money (other than such subordinated indebtedness) as at the end of a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly available consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries as at the end of such fiscal quarter and after such adjustments, if any, as may be required so that such amount is determined in accordance with GAAP. Notwithstanding the foregoing, for purposes of determining compliance with subsection 7.2, indebtedness for borrowed money in respect of any Securitization Indebtedness shall be deemed not included in Consolidated Senior Debt.
“Contractual Obligation”: as to any Person, any provision of any security issued by such Person or of any agreement, instrument or undertaking to which such Person is a party or by which it or any of its property is bound.
“Corresponding Tenor”: with respect to any Available Tenor, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Credit Rating”: as of any date, (a) as to any Person, the rating assigned to the relevant long term senior unsecured (and non-credit enhanced) Debt obligations of such Person by Moody’s, S&P or Fitch, in each case as of the close of business on such date and (b) if no rating for such Debt described in clause (a) is available, the corporate credit rating of such Person as announced by Moody’s, S&P or Fitch, in each case as of the close of business on such date.
“Currency”: any Dollars and any Foreign Currency.
“Daily Simple SOFR”: for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided that, if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Daily Simple SONIA”: for any day (a “SONIA Interest Day”), an interest rate per annum equal to (a) SONIA for the day that is five SONIA Business Days (such fifth SONIA Business
11
Day determined pursuant to each of subclauses (i) and (ii), the “SONIA Lookback Day”) prior to (i) if such SONIA Interest Day is a SONIA Business Day, such SONIA Interest Day or (ii) if such SONIA Interest Day is not a SONIA Business Day, the SONIA Business Day immediately preceding such SONIA Interest Day or (b) if SONIA is not available for the SONIA Lookback Day determined pursuant to clause (a) above, by 5:00 p.m., London time on any day of determination of Daily Simple SONIA, then Daily Simple SONIA for such day will be SONIA as published in respect of the first preceding SONIA Business Day prior to the SONIA Lookback Day for which SONIA was published on the SONIA Administrator’s Website; provided that Daily Simple SONIA determined pursuant to this clause (b) shall be utilized for purposes of calculation of Daily Simple SONIA for no more than three consecutive SONIA Interest Days and thereafter subsection 2.11(a) shall govern. Any change in Daily Simple SONIA due to a change in SONIA shall be effective from and including the effective date of such change in SONIA without notice to the Borrower.
“Deal Year”: as defined in subsection 2.16(c).
“Debt”: as defined in subsection 6.2.
“Default”: any of the events specified in Section 8, whether or not any requirement for the giving of notice, the lapse of time, or both, or any other condition, event or act has been satisfied.
“Defaulting Bank”: any Bank that has (a) failed to fund any portion of its Loans or participations in Letters of Credit within two Business Days of the date required to be funded by it hereunder, unless such Bank has notified the Administrative Agent and the Borrower that such failure is the result of such Bank’s good faith determination that one or more conditions precedent to funding has not been satisfied; (b) notified the Company, the Administrative Agent, any Issuing Bank or any Bank in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or generally under other agreements in which it commits to extend credit; (c) failed, within three Business Days after written request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit; provided that such Bank shall cease to be a Defaulting Bank pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower; (d) otherwise failed to pay over to the Administrative Agent or any other Bank any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute; or (e) (i) become or is insolvent or has a parent company that has become or is insolvent, (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or (iii) become or has a parent company that has become the subject of a Bail-In Action; provided that a Bank shall not be a Defaulting Bank solely by virtue of the ownership or acquisition of any equity interest in that Bank or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Bank with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Bank (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Bank. If any Bank shall become a Defaulting Bank, the Company shall have the right, so long as no Event of Default has occurred and is then continuing, upon giving written notice to the Administrative Agent and such Bank in accordance with subsection 2.6, notwithstanding subsection 2.12(b), to prepay in full the Loans of such Bank, together with accrued
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interest thereon, any amounts payable to such Bank pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid commitment fee or other amount payable to such Bank hereunder and/or, upon giving not less than three Business Days’ notice to such Bank and the Administrative Agent, to cancel the whole or part of the Commitment of any such Bank. Upon any such cancellation of the Commitment of a Defaulting Bank, participating interests in Letters of Credit shall be reallocated ratably among the remaining Banks in accordance with subsection 2.23(d).
“Designated Person”: a Person
(i) listed in the annex to, or otherwise the subject of the provisions of, any Executive Order;
(ii) named as a “Specially Designated National and Blocked Person” on the most current list published by OFAC at its official website or any replacement website or other replacement official publication of such list (each, an “SDN”), or is otherwise the subject of any Sanctions Laws and Regulations; or
(iii) in which an SDN has a controlling interest of 50% or greater ownership interest.
“Dividing Person”: as defined in the definition of Division.
“Division”: the statutory division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement) pursuant to Section 18-217 of the Delaware Limited Liability Company Act, which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Division Successor”: any person that, upon the consummation of a Division of a Dividing Person, holds all or substantially all of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division.
“Documentation Agent”: as defined in the preamble hereto.
“Dollar Equivalent”: at any time as to any amount denominated in a Foreign Currency, the equivalent amount in Dollars as reasonably determined by the Administrative Agent at such time on the basis of the Exchange Rate for the purchase of Dollars with such Foreign Currency on (a) in the case of a determination made pursuant to subsection 2.11(g), the date of such conversion and (b) in the case of any other determination, the most recent Calculation Date for such Foreign Currency.
“Dollar Loan”: any Committed Rate Loan denominated in Dollars.
“Dollars” and “$”: dollars in lawful currency of the United States of America.
“Domestic Bank”: any Bank organized under the laws of the United States of America, any State thereof or the District of Columbia.
“Early Opt-in Election”:
(a) in the case of Loans denominated in Dollars, the occurrence of:
(1) a notification by the Administrative Agent to (or the request by the Company to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding
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Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2) the joint election by the Administrative Agent and the Company to trigger a fallback from the Eurocurrency Rate for Loans denominated in Dollars and the provision by the Administrative Agent of written notice of such election to the Banks; and
(b) in the case of Loans denominated in any Foreign Currency, the occurrence of:
(1) (i) a determination by the Administrative Agent or the Company (as notified to the Administrative Agent) or (ii) a notification by the Majority Banks to the Administrative Agent (with a copy to the Borrowers) that the Majority Banks have determined that at least five currently outstanding syndicated credit facilities denominated in the applicable Foreign Currency at such time contain (as a result of an amendment or as originally executed) a new benchmark interest rate to replace the Relevant Rate (and such syndicated credit facilities are identified in such notice and are publicly available for review); and
(2) (i) the joint election by the Administrative Agent and the Company or (ii) the election by the Majority Banks to declare that an Early Opt-in Election has occurred with respect to Loans denominated in such applicable Foreign Currency and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrowers and the Banks, by the Company of written notice of such election to the Administrative Agent or by the Majority Banks of written notice of such election to the Administrative Agent.
“EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”: any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Signature”: an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“EMU”: the Economic and Monetary Union as contemplated in the Treaty.
“Equipment Operations”: those business segments of the Company and its consolidated Subsidiaries that are primarily engaged in the manufacture and distribution of equipment, parts and related attachments.
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“Equipment Operations Debt”: at a particular time, the sum of short-term and long-term indebtedness for borrowed money that is or would be shown on a balance sheet of Equipment Operations (with Financial Services reflected only on an equity basis), which balance sheet was or would be prepared on the basis of the most recent publicly available consolidated balance sheet of the Company and its consolidated Subsidiaries as at the end of any fiscal quarter of the Company and its consolidated Subsidiaries (including the last quarter of any fiscal year of the Company and its consolidated Subsidiaries).
“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time.
“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Euro”: the single currency of Participating Member States of the EMU introduced in accordance with the provisions of Article 123 of the Treaty and, in respect of all payments to be made under this Agreement in Euro, means immediately available, freely transferable funds in such currency.
“Eurocurrency Loans”: Committed Rate Loans at such time as they are made and/or being maintained at a rate of interest based upon a Eurocurrency Rate.
“Eurocurrency Rate”: (a) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan and for each Index Rate Bid Loan, denominated in Dollars or any relevant Foreign Currency, other than Canadian Dollars, Australian Dollars, New Zealand Dollars and, Euros and Pounds Sterling, the London interbank offered rate as administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for such Currency for a tenor equal in length to such Interest Period as displayed on page LIBOR01 or LIBOR02 of the Reuters Screen (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in consultation with the Borrowers; in each case, the “LIBOR Screen Rate”) at approximately 11:00 A.M., Local Time, two Business Days prior to the beginning of such Interest Period (or, in the case of any Eurocurrency Loan denominated in Points Sterling, on the first day of such Interest Period); provided that, if the LIBOR Screen Rate shall not be available at such time for such Interest Period (a “LIBOR Impacted Interest Period”) with respect to the relevant Currency, then the Eurocurrency Rate shall be the LIBOR Interpolated Rate at such time. “LIBOR Interpolated Rate” means, at any time, the rate per annum determined by the Administrative Agent to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBOR Screen Rate for the longest period (for which that LIBOR Screen Rate is available in the relevant Currency) that is shorter than the LIBOR Impacted Interest Period and (b) the LIBOR Screen Rate for the shortest period (for which that LIBOR Screen Rate is available for the relevant Currency) that exceeds the LIBOR Impacted Interest Period, in each case, at such time.
(b) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in Canadian Dollars, the rate per annum equal to the average rate for bankers acceptances as administered by Thomson Reuters Benchmark Services Limited (or any other Person that takes over the administration of such rate) for a tenor equal in length to such Interest Period as displayed on page CDOR of the Reuters Screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “CDOR Screen Rate”) at approximately 11:00 A.M., Local Time, on the first day of such Interest Period (or such other day as is
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generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent); provided, that, if the CDOR Screen Rate shall not be available at such time for such Interest Period (a “CDOR Impacted Interest Period”) with respect to Canadian Dollars, then the Eurocurrency Rate for Canadian Dollars shall be the CDOR Interpolated Rate at such time. “CDOR Interpolated Rate” means, at any time, the rate per annum determined by the Administrative Agent to be equal to the rate that results from interpolating on a linear basis between: (a) the CDOR Screen Rate for the longest period (for which that CDOR Screen Rate is available in Canadian Dollars) that is shorter than the CDOR Impacted Interest Period and (b) the CDOR Screen Rate for the shortest period (for which that CDOR Screen Rate is available for Canadian Dollars) that exceeds the CDOR Impacted Interest Period, in each case, at such time.
(c) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in Australian Dollars, the rate per annum equal to the average bid reference rate as administered by the Australian Financial Markets Association (or any other Person that takes over the administration of that rate) for Australian Dollar bills of exchange with a tenor equal in length to such Interest Period (or as close to such Interest Period as possible), displayed on page BBSY of the Reuters Screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “BBSY Screen Rate”) at approximately 11:00 A.M., Local Time, two Business Days prior to the beginning of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent); provided, that, if the BBSY Screen Rate shall not be available at such time for such Interest Period, the Administrative Agent may substitute for such rate with an alternative published interest rate reasonably acceptable to the applicable Borrower (or other rate basis agreed by the applicable Borrower and the Administrative Agent, including interpolation in a manner consistent with paragraphs (a) and (b) above).
(d) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in New Zealand Dollars, the rate per annum equal to the average bid reference rate as administered by the New Zealand Financial Markets Association (or any other Person that takes over the administration of that rate) for New Zealand Dollar bills of exchange with a tenor equal in length to such Interest Period (or as close to such Interest Period as possible), displayed on page BKBM of the Reuters Screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “BKBM Screen Rate”) at approximately 11:00 A.M., Local Time, on the first day of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent); provided, that, if the BKBM Screen Rate shall not be available at such time for such Interest Period, the Administrative Agent may substitute such rate with an alternative published interest rate reasonably acceptable to the applicable Borrower (or other rate basis agreed by the applicable Borrower and the Administrative Agent, including interpolation in a manner consistent with paragraphs (a) and (b) above).
(e) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in Euros, the rate per annum equal to the interbank offered rate administered by the European Money Markets Institute (or any other Person that takes over the administration of such rate) for a tenor equal in length to such Interest Period as displayed on page on Reuters Page EURIBOR01 (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation
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with the Borrowers; in each case, the “EURIBOR Screen Rate”) at approximately 11:00 a.m., Local Time, two Business Days prior to the beginning of such Interest Period; provided, that, if the EURIBOR Screen Rate shall not be available at such time for such Interest Period, the Administrative Agent may substitute such rate with an alternative published interest rate reasonably acceptable to the applicable Borrower (or other rate basis agreed by the applicable Borrower and the Administrative Agent, including interpolation in a manner consistent with paragraphs (a) and (b) above).
Notwithstanding the above, in no event shall the Eurocurrency Rate be less than zero.
“Event of Default”: any of the events specified in Section 8, provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, event or act has been satisfied.
“Exchange Rate”: on any day, the rate at which the starting Currency may be exchanged into the other relevant Currency, as set forth at approximately 10:00 A.M., Local Time, on such date on the Reuters World Spots page for such starting Currency. In the event that such rate does not appear on any Reuters World Spots page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates reasonably selected by the Administrative Agent.
“Existing Credit Agreement”: as defined in subsection 4.1(e).
“Existing Letters of Credit”: the letters of credit issued under the Existing Credit Agreement and outstanding on the Closing Date and set forth on Schedule III.
“Exposure”: (a) with respect to an Objecting Bank at any time, the aggregate amount of such Bank’s Extensions of Credit then outstanding and (b) with respect to any other Bank at any time, the Commitment of such Bank then in effect or, if the Commitments have been terminated, the amount of such Bank’s Extensions of Credit then outstanding.
“Extension Request”: each request by the Borrowers made pursuant to subsection 2.16 for the Banks to extend this Agreement, which shall contain the information in respect of such extension specified in Exhibit I and shall be delivered to the Administrative Agent in writing.
“Extensions of Credit”: as to any Bank at any time, the amount equal to the sum of the Dollar Equivalent of (a) the aggregate principal amount of all Loans held by such Bank then outstanding and (b) such Bank’s Commitment Percentage multiplied by the L/C Obligations then outstanding.
“FATCA”: Sections 1471 through 1474 of the Code (and any comparable successor provisions), any effective regulations published thereunder or official interpretations thereof issued by any Governmental Authority charged with the administration thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any applicable intergovernmental agreements with respect thereto, and any treaty, law, regulations, or other official guidance enacted in any other jurisdiction relating to such intergovernmental agreement.
“Federal Funds Effective Rate”: on any particular date, the rate set forth for such date or, if such date is not a Business Day, the next preceding Business Day, opposite the caption “Federal Funds (Effective)” in the weekly statistical release designated as “H.15(519)” (or any successor publication) published by the Board or, if such rate is not so published for such date, the average of the quotations for such day on such transactions received by the Administrative Agent from three federal funds dealers of recognized standing selected by it; provided that in no event shall the Federal Funds Effective Rate be less than zero.
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“Federal Reserve Board”: the Board of Governors of the Federal Reserve System of the United States of America.
“Financial Services”: the businesses of the Company (including the credit businesses) that are not primarily engaged in Equipment Operations.
“First Amendment”: the First Amendment to this Agreement, dated as of the First Amendment Effective Date.
“First Amendment Effective Date”: October 26, 2021.
“Fitch”: Fitch Ratings Inc.
“Fixed Charges”: for any particular period for the Capital Corporation and its consolidated Subsidiaries, all of the Capital Corporation’s and its consolidated Subsidiaries’ consolidated interest on indebtedness for borrowed money, amortization of discounts of indebtedness for borrowed money, the portion of rentals under financing leases deemed to represent interest and rentals under operating leases; provided, that, notwithstanding the foregoing, consolidated interest on Securitization Indebtedness and amortization of Securitization Indebtedness shall be deemed not included in Fixed Charges; provided, further, that such amounts (but not any amounts constituting consolidated interest on, or amortization of, Securitization Indebtedness) for a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly available consolidated statement of income of the Capital Corporation and its consolidated Subsidiaries for or covering such fiscal quarter and after such adjustments, if any, as may be required so that such amounts are determined in accordance with GAAP.
“Floor” the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Eurocurrency Rate, Adjusted Daily Simple SONIA or the Central Bank Rate, as applicable.
“Foreign Bank”: any Bank that is not a Domestic Bank.
“Foreign Currency”: (a) Euros, Pounds Sterling, Australian Dollars and Canadian Dollars, (b) upon the earlier of (i) confirmation by Deutsche Bank AG, New York Branch to the Administrative Agent that it (or a branch or affiliate thereof) can fund in New Zealand Dollars and (ii) Deutsche Bank AG, New York Branch ceasing to be a Bank hereunder, New Zealand Dollars and (c) as agreed by the Administrative Agent, any other Currency which is freely traded and convertible into Dollars in the London interbank market and for which the Dollar Equivalent thereof can be calculated from time to time.
“Foreign Currency Agent”: J.P. Morgan AG, or any successor appointed pursuant to this Agreement.
“Foreign Currency Equivalent”: at the time of determination or conversion thereof, as applicable, as to any amount denominated or expressed in Dollars, the equivalent amount in the applicable Foreign Currency as reasonably determined by the Administrative Agent at such time on the basis of the Exchange Rate for the purchase of such Foreign Currency with Dollars on such date.
“Foreign Currency Loan”: each Loan denominated in a Foreign Currency.
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“GAAP”: generally accepted accounting principles in the United States of America as applied in the preparation of financial statements of the Company or the Capital Corporation, respectively, as of the fiscal year ended November 1, 2020, except with respect to capital lease obligations, in which case the generally accepted accounting principles in the United States of America as applied in the preparation of financial statements of the Company or the Capital Corporation, respectively, as of January 1, 2015 shall apply.
“Governmental Authority”: any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Hedging Transaction”: any swap transaction, interest rate protection agreement (including any interest rate swap, interest “cap” or “collar” or any other interest rate hedging device entered into by the Capital Corporation or one or more of its Subsidiaries), option agreement, short or long position in equity or debt instruments, commodities, futures and forward transactions, outperformance agreement or other similar transaction, agreement or arrangement entered into by the Capital Corporation or one or more of its Subsidiaries.
“IBA”: has the meaning assigned to such term in subsection 1.4.
“Important Property”: (a) any manufacturing plant, including land, all buildings and other improvements thereon, and all manufacturing machinery and equipment located therein, owned and used by the Company or a Restricted Subsidiary primarily for the manufacture of products to be sold by the Company or such Restricted Subsidiary, (b) the executive office and administrative building of the Company in Moline, Illinois, and (c) research and development facilities, including land and buildings and other improvements thereon and research and development machinery and equipment located therein, in each case, owned and used by the Company or a Restricted Subsidiary; except in any case property of which the aggregate fair value as determined by the Board of Directors of the Company does not at the time exceed 1% of Consolidated Net Worth.
“Increasing Bank”: as defined in subsection 2.20(c).
“Indemnified Person”: as defined in subsection 10.4(b).
“Indemnified Taxes”: as defined in subsection 2.17(a).
“Index Debt”: any senior, unsecured, non-credit enhanced long-term debt issued by the Company.
“Index Rate Bid Loan”: any Bid Loan made at an interest rate based upon the Applicable Index Rate.
“Index Rate Bid Loan Request”: any Bid Loan Request requesting the Banks to offer to make Index Rate Bid Loans at an interest rate equal to the Applicable Index Rate plus (or minus) a margin.
“Interest Payment Date”: (a) as to any ABR Loan, the last Business Day of each March, June, September and December, commencing on the first of such days to occur after such ABR Loan is made or a Eurocurrency Loan is converted to an ABR Loan, (b) as to any Eurocurrency Loan, the last day of each Interest Period applicable thereto, provided that as to any Eurocurrency Loan in respect of which a Borrower has selected an Interest Period of greater than three months, interest shall also be paid on the
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day which is three months after the beginning of such Interest Period and, (c) as to any SONIA Loan, each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing Date of such Loan (or if there is no numerically corresponding day in such later month, then the last day of such month) and (d) the Termination Date.
“Interest Period”: (a) with respect to any Eurocurrency Loan, the period commencing on the Borrowing Date, the date any ABR Loan is converted to a Eurocurrency Loan or the date any Eurocurrency Loan is continued as a Eurocurrency Loan, as the case may be, with respect to such Eurocurrency Loan and ending one, two (so long as a two-month Interest Period is published and available), three or six months thereafter in the case of any Eurocurrency Loan denominated in any Currency other than Canadian Dollars (or, with the consent of all relevant Banks, twelve months thereafter, or a period of less than one month thereafter if all relevant Banks consent to such period), or thirty, sixty, or ninety days thereafter in the case of any Eurocurrency Loan denominated in Canadian Dollars, as selected by a Borrower in its notice of borrowing, conversion or continuance as provided in subsection 2.1(c) or 2.9;
(b) with respect to any Bid Loan, the period commencing on the Borrowing Date with respect to such Bid Loan and ending on the date not less than seven days nor more than six months thereafter, as specified by a Borrower in its Bid Loan Request as provided in subsection 2.2(b); and
(c) with respect to any Negotiated Rate Loan, the period or periods commencing on the Borrowing Date with respect to such Negotiated Rate Loan or the last day of any Interest Period with respect thereto and ending on the dates as shall be mutually agreed upon between the relevant Borrower and the relevant Bank;
provided, that all of the foregoing provisions relating to Interest Periods are subject to the following:
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“IRS”: as defined in subsection 2.17(c).
“ISDA Definitions”: the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“ISP”: with respect to any standby Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuing Bank”: (i) JPMorgan Chase Bank, N.A., in its capacity as issuer of any Letter of Credit, (ii) Bank of America, N.A., in its capacity as issuer of any Letter of Credit, or (iii) any other Bank that a Borrower may select from time to time that is willing to act as issuer of Letters of Credit, in its capacity as issuer of any Letter of Credit.
“Issuing Bank L/C Commitment”: (i) with respect to JPMorgan Chase Bank, N.A., $100,000,000; (ii) with respect to Bank of America, N.A., $100,000,000; and (iii) with respect to any other Issuing Bank, the amount agreed by the Company and such Issuing Bank. If the amount of the L/C Commitment is reduced, the Issuing Bank L/C Commitment of each Issuing Bank shall be ratably reduced simultaneously (based on the percentage by which the L/C Commitment is reduced).
“JD Luxembourg”: as defined in the preamble hereto.
“JPMorgan Chase Bank, N.A.”: JPMorgan Chase Bank, N.A., a national association.
“Judgment Currency”: as defined in subsection 2.24.
“L/C Commitment”: $200,000,000.
“L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed pursuant to subsection 2.26(e). For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
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“L/C Participants”: the collective reference to all the Banks (other than, with respect to any Letter of Credit, the applicable Issuing Bank in its capacity as Issuing Bank) or any of them.
“Letter of Credit Fee”: the rate per annum equal to the Applicable Margin for Eurocurrency Loans set forth in the term “Applicable Margin” corresponding to the Prevailing Rating of the Company as of such date of determination on the face amount of each Letter of Credit.
“Letters of Credit”: as defined in subsection 2.26(a).
“Level”: Level I Rating, Level II Rating, Level III Rating, Level IV Rating or Level V Rating, as the context shall require.
“Level I Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is Aa3 or higher by Moody’s, AA- or higher by S&P and AA- or higher by Fitch.
“Level II Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is A1 by Moody’s, A+ by S&P and A+ by Fitch.
“Level III Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is A2 by Moody’s, A by S&P and A by Fitch.
“Level IV Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is A3 by Moody’s, A- by S&P and A- by Fitch.
“Level V Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is below A3 by Moody’s, below A- by S&P and below A- by Fitch.
“LIBOR Screen Rate”: as defined in the definition of Eurocurrency Rate.
“Loan Account”: as defined in subsection 2.3; collectively, the “Loan Accounts”.
“Loan Assignees”: as defined in subsection 10.5(c).
“Loan Assignment”: an Assignment and Assumption, substantially in the form of Exhibit E.
“Loan Documents”: this Agreement, including schedules and exhibits hereto, and the Notes.
“Loans”: the collective reference to the Committed Rate Loans, the Bid Loans and the Negotiated Rate Loans.
“Local Time”: (a) in the case of Foreign Currency Loans denominated in Canadian Dollars, Toronto, Ontario time, (b) in the case of Foreign Currency Loans denominated in Australian Dollars, Sydney, Australia time, (c) in the case of Foreign Currency Loans denominated in New Zealand Dollars, Wellington, New Zealand time, (d) in the case of Foreign Currency Loans denominated in Euros, Brussels time, (e) in the case of all other Foreign Currency Loans, London time and (f) in all other cases, New York time.
“Losses”: as defined in subsection 10.4(b).
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“Luxembourg Obligations”: the collective reference to the unpaid principal of and interest on the Loans made to JD Luxembourg and all other obligations and liabilities of JD Luxembourg (including, without limitation, interest accruing at the then applicable rate provided herein after the maturity of such Loans and interest accruing at the then applicable rate provided herein after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to JD Luxembourg, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) to the Administrative Agent or any Bank, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement or any other document made, delivered or given in connection with any of the foregoing, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Administrative Agent or to the Banks that are required to be paid by JD Luxembourg pursuant to the terms of any of the foregoing agreements).
“Majority Banks”: at any particular time, Banks having Commitment Percentages aggregating more than fifty percent; provided that (a) at any time after the termination of all the Commitments, “Majority Banks” shall mean Banks holding Extensions of Credit aggregating more than fifty percent in principal amount of the Total Extensions of Credit and (b) at any time after the Commitment Expiration Date with respect to any Objecting Bank (but prior to the termination of all the Commitments), “Majority Banks” shall mean Banks whose Exposure aggregates more than fifty percent of the aggregate Exposure of all the Banks.
“Margin Stock”: as defined in Regulation U of the Board.
“Moody’s”: Moody’s Investor Service, Inc.
“Mortgage”: as defined in subsection 6.2.
“Negotiated Rate Loan”: each Loan made to the Company or the Capital Corporation by a Bank pursuant to a Negotiated Rate Loan Request in such principal amount, for such number of Interest Periods (subject to the proviso to the definition of “Interest Period” in this subsection 1.1) and having such interest rate(s) and repayment terms as shall, in each case, be mutually agreed upon between such Borrower and such Bank.
“Negotiated Rate Loan Request”: each request by the Company or the Capital Corporation for a Bank to make Negotiated Rate Loans, which shall be delivered to such Bank in writing, by facsimile transmission, or by telephone, immediately confirmed in writing, and which shall specify the amount to be borrowed and the proposed Borrowing Date.
“Net Earnings Available for Fixed Charges”: for any particular period for the Capital Corporation and its consolidated Subsidiaries, the sum of (i) consolidated net earnings of the Capital Corporation and such Subsidiaries for such period without deduction of Fixed Charges and without deduction of federal, state or other income taxes, provided that such net earnings for a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly available statement of income of the Capital Corporation and its consolidated Subsidiaries for or covering such fiscal quarter and after such adjustments, if any, as may be required so that such net earnings are determined in accordance with GAAP, except that earned investment tax credits may be included as revenue in the consolidated income statement of the Capital Corporation and its consolidated Subsidiaries, rather than as an offset against the provision for income taxes and (ii) Support Payments received by the Capital Corporation in or in respect of such period.
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“New Bank”: as defined in subsection 2.20(b).
“New Bank Supplement”: as defined in subsection 2.20(b).
“New Zealand Dollars”: the lawful currency of New Zealand.
“Non-Qualifying Bank”: as defined in subsection 2.17(e).
“Notes”: the collective reference to any promissory note evidencing Loans.
“NYFRB”: the Federal Reserve Bank of New York.
“NYFRB Rate”: for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Objecting Banks”: as defined in subsection 2.16(a).
“Offered Increase Amount”: as defined in subsection 2.20(a).
“Overnight Bank Funding Rate”: for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Overnight Rate”: for any day, (a) with respect to any amount denominated in Dollars, the Federal Funds Effective Rate, and (b) with respect to any amount denominated in a Foreign Currency, at a rate reasonably determined by the Administrative Agent to be the cost to it of funding such amounts.
“Participant Register”: as defined in subsection 10.5(b).
“Participants”: as defined in subsection 10.5(b).
“Participating Member State”: any member state of the European Community that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.
“Payment”: as defined in subsection 9.4(b).
“Payment Notice”: as defined in subsection 9.4(b).
“Person”: an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature, provided that for purposes of subsection 8(h), Person shall also include two or more entities acting as a syndicate or any other group for the purpose of acquiring, holding or disposing of securities of the Company.
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“Plan”: any pension plan which is covered by Title IV of ERISA and in respect of which either Borrower or a Commonly Controlled Entity is an “employer” as defined in Section 3(5) of ERISA.
“Pounds” or “£” or “Pounds Sterling”: the lawful currency of the United Kingdom.
“Prevailing Rating”: at any date of determination, the Level then applicable; provided that for purposes of determining the applicable Level when the assigned Credit Ratings of the Company by all three Ratings Agencies do not fall within the same Level: (i) if the Credit Ratings of the Company assigned by S&P and Moody’s fall within the same Level, the Prevailing Rating shall be such Level, (ii) if the Credit Ratings of the Company assigned by S&P and Moody’s do not fall within the same Level and the ratings differential is one Level, the Prevailing Rating shall be determined solely by reference to the higher of (x) the Credit Rating of the Company assigned by S&P and (y) the Credit Rating of the Company assigned by Moody’s and (iii) if the Credit Ratings of the Company assigned by S&P and Moody’s do not fall within the same Level and the ratings differential is more than one Level, the Prevailing Rating shall be the Level one notch lower than the Level determined solely by reference to the higher of (x) the Credit Rating of the Company assigned by S&P and (y) the Credit Rating of the Company assigned by Moody’s.
“Prime Rate”: the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Purchasing Banks”: as defined in subsection 10.5(d).
“Ratings Agencies”: S&P, Moody’s and Fitch.
“Re-Allocation Date”: as defined in subsection 2.20(e).
“Reference Time”: with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Eurocurrency Rate with respect to Loans denominated in Dollars or Pounds Sterling, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is SONIA, then four SONIA Business Days prior to such setting and (3) otherwise, the time determined by the Administrative Agent in its reasonable discretion.
“Register”: as defined in subsection 10.5(e).
“Reimbursement Obligation”: the obligation of the Company or the Capital Corporation to reimburse an Issuing Bank pursuant to subsection 2.26(e) for amounts drawn under Letters of Credit issued for its account.
“Relevant Governmental Body”: (a) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto and, (b) with respect to a Benchmark Replacement in respect of Loans denominated in Pounds Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto and (c) with respect to a Benchmark Replacement in respect of Loans denominated in any Foreign Currency (other than Pounds Sterling), (i) the central bank
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for the Foreign Currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (ii) any working group or committee officially endorsed or convened by (1) the central bank for the Foreign Currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board or any part thereof.
“Relevant Rate”: with respect to (i) any Eurocurrency Loan denominated in any Currency, the Eurocurrency Rate applicable thereto and (ii) any Loan denominated in Pounds Sterling, Adjusted Daily Simple SONIA.
“Report Period”: as defined in subsection 2.18.
“Reportable Event”: any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder.
“Required Banks”: at a particular time, Banks having Commitment Percentages aggregating at least 66-2/3%; provided that (a) at any time after the termination of all the Commitments, “Required Banks” means Banks holding Extensions of Credit aggregating at least 66-2/3% in principal amount of the Total Extensions of Credit and (b) at any time after the Commitment Expiration Date with respect to any Objecting Bank (but prior to the termination of all the Commitments), “Required Banks” means Banks whose Exposure aggregates at least 66-2/3% of the aggregate Exposure of all the Banks.
“Requirement of Law”: as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Reserves”: as defined in subsection 2.13(c).
“Resolution Authority”: an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”: of a Borrower, the Chairman, the President, any Executive, Senior or other Vice President, the Treasurer, any Assistant Secretary and any Assistant Treasurer of such Borrower.
“Restricted Margin Stock”: any Margin Stock, the sale, pledge or other disposition of which by the Company or any of its Subsidiaries is in any way restricted by an arrangement with any Bank or any affiliate thereof to the extent that the value thereof (determined in accordance with Regulation U of the Board) does not exceed 25% of the value (determined in accordance with such Regulation U) of all the assets subject to such restriction.
“Restricted Subsidiary”: any Subsidiary of the Company incorporated in the United States of America or Canada (a) which is engaged in, or whose principal assets consist of property used by the Company or any Restricted Subsidiary in, the manufacture of products within the United States of America or Canada or in the sale of products principally to customers located in the United States of America or Canada except any corporation which is a retail dealer in which the Company has, directly or indirectly, an investment, or (b) which the Company shall designate as a Restricted Subsidiary in an
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officers’ certificate signed by two Responsible Officers of the Company and delivered to the Administrative Agent.
“S&P”: Standard and Poor’s Financial Services LLC.
“Sale and Lease-back Transaction”: as defined in subsection 6.3.
“Sanctions Laws and Regulations”:
(i) any sanctions, prohibitions or requirements imposed by any executive order (an “Executive Order”) or by any sanctions program administered by the U.S. Department of the Treasury Office of Foreign Assets Control (“OFAC”), the U.S. State Department Directorate of Defense Trade Controls or the U.S. Department of Commerce Bureau of Industry and Security; and
(ii) any sanctions measures imposed by the United Nations Security Council, the European Union or the United Kingdom.
“Screen Rate”: the LIBOR Screen Rate, the CDOR Screen Rate, the EURIBOR Screen Rate, the BBSY Screen Rate and/or the BKBM Screen Rate, as applicable.
“Securitization Indebtedness”: the aggregate outstanding indebtedness for borrowed money, owner trust certificates (however classified) or credit enhancements incurred in connection with transactions involving (i) the sale, transfer or other disposition of receivables or leases (retail or wholesale) by the Capital Corporation or any of its Subsidiaries and (ii) the issuance of commercial paper, medium term notes or any other form of financing by any structured bankruptcy-remote Subsidiary of the Capital Corporation or any related conduit lender (such transactions, “Securitizations”), provided, that the aggregate outstanding credit enhancements in the form of cash or letter(s) of credit provided by the Capital Corporation or any of its Subsidiaries (other than any structured bankruptcy-remote Subsidiary) in excess of 10% of the aggregate outstanding indebtedness for borrowed money and owner trust certificates (however classified) incurred in connection with such Securitizations shall not be deemed for the purposes of this Agreement to be Securitization Indebtedness, but shall be deemed for purposes of subsection 7.2 to be Consolidated Senior Debt.
“Significant Subsidiary”: of a Borrower, any Subsidiary of such Borrower the assets, revenues or net worth of which is, at the time of determination, equal to or greater than ten percent of the assets, revenues or net worth, respectively, of such Borrower at such time.
“SOFR”: with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website at approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day.
“SOFR Administrator”: the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website”: the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
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“SONIA”: with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the SONIA Administrator on the SONIA Administrator’s Website on the immediately succeeding Business Day.
“SONIA Administrator”: the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA Administrator’s Website”: the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
“SONIA Borrowing”: as to any borrowing, the SONIA Loans comprising such borrowing.
“SONIA Business Day”: for any Loan denominated in Pounds Sterling, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London.
“SONIA Interest Day”: has the meaning specified in the definition of “Daily Simple SONIA”.
“SONIA Loan”: a Loan that bears interest at a rate based on Adjusted Daily Simple SONIA.
“SONIA Lookback Day”: has the meaning specified in the definition of “Daily Simple SONIA”.
“Subsidiary”: of a Person, a corporation or other entity of which securities or other ownership interests having ordinary voting power (other than securities or other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other Persons performing similar functions are at the time directly or indirectly owned by such Person or one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of such Person.
“Support Payments”: payments from the Company to the Capital Corporation made pursuant to that certain Support Agreement, dated as October 15, 1996, by and between the Company and the Capital Corporation, as amended by the First Amended Agreement, dated as of November 1, 2003, between the Company and the Capital Corporation.
“Syndication Agent”: as defined in the preamble hereto.
“Termination Date”: March 29, 2026 or such later date as shall be determined pursuant to the provisions of subsection 2.16 with respect to non-Objecting Banks.
“Term SOFR”: for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term SOFR Notice”: a notification by the Administrative Agent to the Banks and the Borrowers of the occurrence of a Term SOFR Transition Event.
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“Term SOFR Transition Event”: the determination by the Administrative Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event has previously occurred resulting in a Benchmark Replacement in accordance with subsection 2.11 that is not Term SOFR.
“Total Commitments”: at any time, the aggregate amount of the Commitments then in effect.
“Total Extensions of Credit”: at any time, the aggregate amount of the Extensions of Credit of the Banks outstanding at such time.
“Total Stockholders’ Equity”: at a particular time, the total stockholders’ equity, exclusive of adjustments resulting from any accumulated other comprehensive income of the Company and its consolidated Subsidiaries as at the end of any fiscal quarter (including the last quarter of any fiscal year) as determined in accordance with GAAP.
“Transferees”: as defined in subsection 10.5(g).
“Transfer Effective Date”: the effective date of an assignment of Loans or Commitments under a Loan Assignment.
“Treaty”: the Treaty establishing the European Economic Community, being the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1987, the Maastricht Treaty (which was signed at Maastricht on February 7, 1992 and came into force on November 1, 1993), the Amsterdam Treaty (which was signed at Amsterdam on October 2, 1997 and came into force on May 1, 1999) and the Nice Treaty (which was signed on February 26, 2001), each as amended from time to time and as referred to in legislative measures of the European Union for the introduction of, changeover to or operating of the Euro in one or more member states.
“Type”: as to any Committed Rate Loan, its nature as an ABR Loan, SONIA Loan or Eurocurrency Loan.
“UCP”: with respect to any commercial Letter of Credit, the Uniform Customs and Practice for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600 (or such later version thereof as may be in effect at the time of issuance and subject to which such Letter of Credit was issued).
“UK Financial Institution”: any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority”: the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement”: the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
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“Withholding Agent”: any Borrower or the Administrative Agent, as the case may be.
“Working Day”: any Business Day on which dealings in foreign currencies and exchange between banks may be carried on in London, England and New York, New York.
“Write-Down and Conversion Powers”: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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SECTION 2. | THE COMMITTED RATE LOANS; THE BID LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS |
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exceed the Total Commitments. During the Commitment Period, each Borrower may use the Commitments by borrowing, repaying and reborrowing, all in accordance with the terms and conditions hereof.
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time, reduce the amount of the Commitments, provided that (i) any such reduction shall be accompanied by prepayment of Committed Rate Loans and reduction of the L/C Obligations hereunder, together with accrued interest on the amount so prepaid to the date of such prepayment, to the extent, if any, that the Dollar Equivalent of the aggregate outstanding principal amount of all Loans and L/C Obligations exceeds the amount of the Commitments as then reduced and (ii) any such termination of the Commitments shall be accompanied by prepayment in full of the Loans then outstanding hereunder in accordance with subsection 2.6 and payment of all Reimbursement Obligations together with accrued fees and interest thereon, and cash collateralization of outstanding Letters of Credit in an amount equal to the aggregate then undrawn and unexpired amount thereof (or the provision of other credit support acceptable to the applicable Issuing Banks), and any termination of a Bank’s Commitment pursuant to subsection 2.13, 2.16 or 2.17 shall, with respect to each affected Loan, on the last day of the applicable Interest Period therefor or, if earlier, on such earlier date as shall be notified by the Borrowers, be accompanied by prepayment in full of such Loan, together with, in each case, accrued interest thereon to the date of such prepayment, the payment of any Reimbursement Obligation owed to such Bank or unpaid commitment fee then accrued hereunder, the payment of any Letter of Credit interest and fees then accrued hereunder, and the payment of any amounts then payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17. Upon receipt of such notice from the Borrowers the Administrative Agent shall promptly notify each Bank thereof. Any reduction of the Commitments pursuant to this subsection 2.5 shall be in an amount not less than $25,000,000, and shall be an amount which is a whole multiple of $5,000,000, and shall reduce permanently the amount of the Commitments then in effect.
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amounts reasonably determined by the Administrative Agent in the case of Foreign Currency Loans) and (b) the aggregate principal amount of Committed Rate Loans of any Type with the same Interest Period shall not be less than $10,000,000 or a whole multiple of $1,000,000 in excess thereof (or comparable amounts reasonably determined by the Administrative Agent in the case of Foreign Currency Loans).
(b) The SONIA Loans shall bear interest for each day during the period from the date thereof until the payment in full thereof on the unpaid principal amount thereof at a fluctuating rate per annum equal to Adjusted Daily Simple SONIA for such day plus the Applicable Margin.
(b)(c) If all or a portion of the principal amount of any of the Committed Rate Loans or Reimbursement Obligations shall not be paid when due (whether at the stated maturity, by acceleration or otherwise) such overdue principal amount of such Committed Rate Loan and Reimbursement Obligations (i) shall bear interest at a rate per annum which is 1% above the rate which would otherwise be applicable pursuant to subsection 2.8(a) or, (b) or (c) as the case may be, from the date when such principal amount is due until the date on which such amount is paid in full and (ii) shall, if such Committed Rate Loan is a Eurocurrency Loan denominated in Dollars, be converted to an ABR Loan at the end of the Interest Period applicable thereto.
(c)(d) Interest shall be payable in arrears on each Interest Payment Date.
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under subsection 2.1 or 2.9, as the case may be, by giving telephonic notice to the Administrative Agent or the Foreign Currency Agent, as applicable, no later than 10:00 A.M. (Local Time) one Business Day prior to the applicable Borrowing Date, confirmed in writing no later than one Business Day after such telephonic notice is given; provided that if the Administrative Agent or the Foreign Currency Agent, as applicable, does not receive any notice permitted from the relevant Borrower hereunder, such Borrower shall be deemed to have requested that the affected Loans be made as, continued as or converted into, as the case may be, ABR Loans or, in the case of Foreign Currency Loans, shall be deemed to have requested that the affected Loans be made as, continued as or converted into, as the case may be, Dollar Loans which are (1) ABR Loans (in the case of clause (i) above) or (2) Eurocurrency Loans (in the case of clause (ii) above). Until the notice given pursuant to the first sentence of this paragraph has been withdrawn by the Administrative Agent or the Foreign Currency Agent, as applicable, no further Eurocurrency Loans denominated in Dollars (in the case of clause (i) above) or Eurocurrency Loans or SONIA Loans, in each case in an Affected Foreign Currency, shall be made or, with respect to such Eurocurrency Loans, continued as such, nor shall the Borrower have the right to convert ABR Loans to Eurocurrency Loans.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark with respect to a Loan denominated in any Currency, then (x) if a Benchmark Replacement for a Loan denominated in such Currency is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for a Loan denominated in such Currency for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement for a Loan denominated in such Currency is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Banks without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Banks comprising the Majority Banks.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, solely with respect to a Loan denominated in Dollars, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (c) shall not be effective unless the Administrative Agent has delivered to the Banks and the Company a Term SOFR Notice.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent, in consultation with the Company, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
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(e) The Administrative Agent will promptly notify the Company and the Banks of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Bank (or group of Banks) pursuant to this subsection 2.11, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto or any other Loan Document, except, in each case, as expressly required pursuant to this subsection 2.11.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or Eurocurrency Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Relevant Rate applicable to any Eurocurrency Loan, and or SONIA Loan, as applicable, and, with respect to such Eurocurrency Loans, during the continuance thereof (in each case below, to the extent such Benchmark Unavailability Period is in respect of the Relevant Rate applicable to such Eurocurrency Loan or such SONIA Loan, as applicable), (i) a Borrower may revoke any request for a Eurocurrency Loan or SONIA Loan to be made during such Benchmark Unavailability Period, and, failing that, the applicable Borrower will be deemed to have converted such request for a Eurocurrency Loan denominated in Dollars into a request for an ABR Loan and (ii) any request for a Eurocurrency Loan denominated in a Foreign Currency or a SONIA Loan shall be ineffective. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any Eurocurrency Loan in any Currency or SONIA Loan is outstanding on the date of the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Relevant Rate applicable to such Eurocurrency Loan or SONIA Loan, as applicable, then (i) if such Eurocurrency Loan is denominated in Dollars, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars on such day or, (ii) if such Eurocurrency Loan is denominated in any Foreign Currency, such Loan shall, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), at the applicable Borrower’s election prior to such day: (A) be prepaid by the applicable Borrower on such day or (B) be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars (in an amount equal to the Dollar Equivalent of the amount of such
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Eurocurrency Loan on such day (it being understood and agreed that if the applicable Borrower does not so prepay such Loan on such day by 12:00 noon, Local Time, the Administrative Agent is authorized to effect such conversion of such Eurocurrency Loan into an ABR Loan denominated in Dollars)); provided that, in the case of this subclause (B), upon any subsequent implementation of a Benchmark Replacement in respect of such Foreign Currency pursuant to this subsection 2.11, such ABR Loan denominated in Dollars shall then be converted by the Administrative Agent to, and shall constitute, a Eurocurrency Loan denominated in the original Foreign Currency applicable to such Loan (in an amount equal to the Foreign Currency Equivalent of the amount of such ABR Loan) on the day of, and after giving effect to, such implementation. or (iii) such SONIA Loan shall bear interest at the Central Bank Rate for Pounds Sterling plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for Pounds Sterling cannot be determined, any outstanding affected SONIA Loans, at the Company’s election, shall either (A) be converted into ABR Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of Pounds Sterling) immediately or (B) be prepaid in full immediately.
(b) (i) Each borrowing by a Borrower of Committed Rate Loans and each payment of principal in respect of Committed Rate Loans (subject to the provisions of subsection 2.20(e)) shall be made in accordance with the following requirements:
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(c) If any payment hereunder (other than payments on the Eurocurrency Loans and Index Rate Bid Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan or Index Rate Bid Loan becomes due and payable on a day other than a Working Day, the maturity thereof shall be extended to the next succeeding Working Day unless the result of such extension would be to extend such payment into another calendar month in which event such payment shall be made on the immediately preceding Working Day. With respect to any extension of the payment of principal pursuant to this subsection 2.12(c), interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Bank prior to the date of the Committed Rate Loan, Committed Rate Loans, Bid Loan or Bid Loans to be made by such Bank (which notice shall be effective upon receipt) that such Bank will not make its pro rata share of the amount of the requested borrowing on such date available to the Administrative Agent, the Administrative Agent may assume that such Bank has made such amount available to it on such date and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If a Bank shall make such amount available to the Administrative Agent on a date after such Borrowing Date, such Bank shall pay to the Administrative Agent on demand an amount equal to the product of (i) the daily average applicable Overnight Rate, times (ii) the amount of such Bank’s pro rata share of such borrowing, times (iii) a fraction, the numerator of which is the number of days that elapse from and including such Borrowing Date to but excluding the date on which such Bank’s pro rata share of such borrowing shall have become immediately available to the Administrative Agent and the denominator of which is 360. A certificate of the Administrative Agent submitted to any Bank with respect to any amounts owing under this subsection 2.12(d) shall be conclusive, absent manifest error. If such Bank’s pro rata share is not in fact made available to the Administrative Agent by such Bank within three Business Days of such Borrowing Date, the Administrative Agent shall be entitled to recover such amount, on demand, from the relevant Borrower with interest thereon at the rate equal to the
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product of (i) during the period from and including such Borrowing Date to the Business Day next following the date of such demand, the daily average applicable Overnight Rate, times a fraction, the numerator of which is the number of days that elapse from and including such Borrowing Date to but excluding the Business Day next following the date of such demand and the denominator of which is 360 and (ii) thereafter, the interest rate or rates applicable to the Loan or Loans funded by the Administrative Agent on behalf of such Bank on such Borrowing Date, times a fraction, the numerator of which is the number of days which elapse from and including the Business Day next following the date of such demand to but excluding the date such amount is recovered by the Administrative Agent from such Borrower and the denominator of which is 360. In the event any Bank’s pro rata share of a borrowing is not made available to the Administrative Agent in accordance with this paragraph within three Business Days of the applicable Borrowing Date (i) such Bank shall, during the period from such Borrowing Date to the date such Bank makes its pro rata share of the applicable borrowing available, not accrue and shall not be entitled to receive any commitment fee under subsection 2.4 and (ii) each Borrower may exercise or pursue any other rights, remedies, powers and privileges against such Bank as are provided by law or by contract.
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duty, charge, fee, deduction or withholding referred to in subsection 2.17(a) or (B) as a result of any law, rule, guideline, regulation, request or directive regarding capital adequacy or liquidity referred to in subsection 2.13(b). A certificate of such Bank as to the amount of such increased costs or reduction shall set forth in reasonable detail the computation of such increased costs or reduction, and shall be binding and conclusive in the absence of manifest error. A Bank which demands indemnification hereunder as a result of an increased cost or reduction referred to herein shall deliver the certificate referred to above to the relevant Borrower demanding indemnification no later than the later of (y) the thirtieth day immediately following each payment or realization by such Bank of such increased cost or reduction (and such certificate shall certify that the amounts set forth therein were paid or realized within such thirty-day period) and (z) the thirtieth day immediately following such Bank’s knowledge of the incurrence or realization by such Bank of such increased cost or reduction (and such certificate shall so certify).
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In the event any Bank shall exercise its rights under (i) or (ii) above, all payments and prepayments of principal that would otherwise have been applied to repay the converted Foreign Currency Loans of such Bank shall instead be applied to repay the ABR Loans or Loans denominated in Dollars, as the case may be, made by such Bank resulting from such conversion.
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accordance with subsection 2.5 or 2.6 or (div) the making by such Borrower of a prepayment of a Committed Rate Loan (other than an ABR Loan), a Bid Loan or, to the extent agreed to by the relevant Borrower and the relevant Bank with respect to a Negotiated Rate Loan, a Negotiated Rate Loan on a day which is not the last day of an Interest Period with respect thereto (with respect to Committed Rate Loans) or the maturity date therefor (with respect to Bid Loans) or any agreed date (with respect to Negotiated Rate Loans), including, but not limited to, any such loss or expense arising from interest or fees payable by such Bank to lenders of funds obtained by it in order to maintain its Loans hereunder. This covenant shall survive termination of this Agreement and payment of the outstanding Loans. A certificate as to any amount payable pursuant to the foregoing shall be submitted by such Bank (and executed by an officer thereof) to the relevant Borrower, setting forth the computation of such amounts in reasonable detail, and shall be conclusive in the absence of manifest error.
(b) With respect to SONIA Loans, each Borrower agrees to indemnify each Bank and to hold each Bank harmless from any loss or expense which such Bank may sustain or incur as a consequence of (i) default by such Borrower in payment of the principal amount of or interest on any Loan by such Bank, including, but not limited to, any such loss or expense arising from interest or fees payable by such Bank to lenders of funds obtained by it in order to maintain its Loans hereunder, (ii) default by such Borrower in making a borrowing after such Borrower has given a notice in accordance with subsection 2.1, 2.2 or 2.9, (iii) default by such Borrower in making any prepayment after such Borrower has given a notice in accordance with subsection 2.5 or 2.6 or (iv) the making by such Borrower of a prepayment of a SONIA Loan on a day which is not the payment date with respect thereto, including, but not limited to, any such loss or expense arising from interest or fees payable by such Bank to lenders of funds obtained by it in order to maintain its Loans hereunder. This covenant shall survive termination of this Agreement and payment of the outstanding SONIA Loans. A certificate as to any amount payable pursuant to the foregoing shall be submitted by such Bank (and executed by an officer thereof) to the relevant Borrower, setting forth the computation of such amounts in reasonable detail, and shall be conclusive in the absence of manifest error.
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such Extension Request; provided that (i) each extension pursuant to this subsection 2.16 shall be for a maximum of one year and (ii) the Commitment of any Bank which does not consent in writing to such extension within 30 days of its receipt of such Extension Request (an “Objecting Bank”) shall, unless earlier terminated in accordance with this Agreement, expire on the Termination Date in effect on the date of such Extension Request (such Termination Date, if any, referred to as the “Commitment Expiration Date” with respect to such Objecting Bank). If, within 30 days of their receipt of an Extension Request, the Majority Banks shall not approve in writing the extension of the Termination Date requested in an Extension Request, the Termination Date shall not be extended pursuant to such Extension Request. The Administrative Agent shall promptly notify (y) the Banks and the Borrowers of any extension of the Termination Date pursuant to this subsection 2.16 and (z) the Borrowers and any other Bank of any Bank which becomes an Objecting Bank. No Bank has an obligation to extend its Commitment pursuant to this subsection 2.16 except in its sole discretion.
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other taxes, levies, imposts, duties, charges, fees, deductions or withholdings of any nature whatsoever, now or hereafter imposed, levied, collected, withheld or assessed by any governmental or other regulatory authority charged with the administration thereof with respect to any amount that is paid under this Agreement excluding, in the case of each Bank (for purposes of this subsection 2.17 each reference to a Bank shall be deemed to also be a reference to any Issuing Bank), (i) income and franchise taxes (including, without limitation, branch taxes) imposed by the United States or similar taxes imposed by a political subdivision or taxing authority thereof or therein, (ii) in the case of any Foreign Bank, any taxes imposed by the United States by means of withholding at the source unless such Bank has provided the Borrowers and the Administrative Agent with the documents it is required to provide to them under subsection 2.17(c) or such tax is imposed by reason of a change in United States law (other than FATCA described in clause (vi)) after the date the Bank becomes a party to this Agreement, (iii) taxes that would not have been imposed on such Bank but for the existence of a connection between such Bank and the jurisdiction imposing such taxes (other than a connection arising principally by virtue of such Bank having executed, delivered or performed its obligations or received a payment under, or enforced this Agreement), (iv) taxes that are attributable to such Bank’s failure to comply with the requirements of subsection 2.17(c), subsection 2.17(d) or subsection 2.17(f), (v) any taxes imposed upon a Non-Qualifying Bank (as defined in subsection 2.17(e)) pursuant to the Luxembourg laws of 21 June, 2005 implementing the European Union Savings Directive (Council Directive 2003/48/EC) and several agreements concluded with certain dependent or associated territories, providing for the possible application of a withholding tax, as in effect as of the date hereof, other than any taxes which can be avoided pursuant to an exchange of information and for which such information is available to the Borrower, and (vi) any withholding imposed pursuant to FATCA (such non-excluded taxes being called “Indemnified Taxes”). If any Indemnified Taxes are required to be withheld from any amounts so payable to the Administrative Agent or any Bank hereunder, as determined in good faith by the applicable Withholding Agent, (i) such amounts shall be paid to the relevant Government Authority in accordance with applicable law and (ii) the amounts so payable by the applicable Borrower shall be increased to the extent necessary to yield to such Bank (after payment of all Indemnified Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement as if such withholding or deduction had not been made. Whenever any Indemnified Taxes are payable by any Borrower, as the case may be, as promptly as possible thereafter such Borrower, as the case may be, shall send to the Administrative Agent, for its own account, or for the account of the affected Bank, a certified copy of the original official receipt, if any, or other documentary evidence received by such Borrower showing payment thereof. If (i) such Borrower fails to pay any Indemnified Taxes when due to the appropriate taxing authority, (ii) such Borrower fails to remit to the Administrative Agent the required receipts or other required documentary evidence, or (iii) as a result of a failure listed in (i) directly above, any Indemnified Taxes are imposed directly upon the Administrative Agent or any Bank, such Borrower shall indemnify the Administrative Agent or such Bank, as the case may be, for any Indemnified Taxes and interest or penalties with respect thereto that may become payable by the Administrative Agent or such Banks, as the case may be, as a result of any such failure, in the case of (i) or (ii), or any such direct imposition, in the case of (iii).
(b) If a Borrower is required by this subsection 2.17 to make a payment to or in respect of any Bank, such Borrower shall have the right, so long as no Event of Default has occurred and is then continuing, upon giving notice to the Administrative Agent and such Bank in accordance with subsection 2.6, to prepay in full the Loans of such Bank, together with accrued interest thereon, any amounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid commitment fee, Letter of Credit Fee, Reimbursement Obligations in respect to Letters of Credit or other amounts payable to it hereunder and/or on giving not less than three Business Days’ notice to any such Bank and the Administrative Agent, to cancel the whole or part of the Commitment of any such Bank (and upon such cancellation, such Bank’s participation in any then outstanding undrawn Letters of Credit shall terminate) (it being understood that any partial cancellation of the Commitment shall result in a corresponding
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reduction of such Bank’s participating interest in respect of Letters of Credit) (but only if after giving effect to such cancellation or prepayment the Total Extensions of Credit do not exceed the Total Commitments).
(c) At least two Business Days prior to the first Borrowing Date or, if such date does not occur within thirty days after the Closing Date, by the end of such thirty-day period, each Bank agrees (it being understood that the requirements of this sentence may be waived by the Administrative Agent and the Borrowers acting together and in their sole discretion) that it will deliver to each Borrower and the Administrative Agent either (A) in the case of a Domestic Bank, two duly completed copies of United States Internal Revenue Service (“IRS”) Form W-9 (or any successor form), (B) in the case of a Foreign Bank, two duly completed copies of IRS Form W-8BEN-E (including, as applicable, a letter in duplicate in substantially the form of Exhibit J), Form W-8ECI (including, as applicable, a letter in duplicate in substantially the form as Exhibit K) or Form W-8IMY, as the case may be, (or any applicable successor forms) together with any applicable underlying IRS forms certifying in each case that such Bank is entitled to receive payment under this Agreement without deduction or withholding of any United States Federal income taxes or (C) in the case of a Bank claiming exception under Sections 871(h) or 881(c) of the Code, a Certificate of Non-Bank Status (in substantially the form as the applicable Exhibit P) together with two original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, or successor applicable form, as the case may be, to establish an exemption from United States backup withholding tax; and, in addition to the forms documents and certifications described in clauses (A), (B) and (C), any other form prescribed by applicable requirements of United States Federal income tax law as a basis for claiming a complete exemption from United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable Requirement of Law to permit the relevant Borrower and the Administrative Agent to determine the withholding or deduction required to be made. Each Bank (including, without limitation, each Transferee) agrees (for the benefit of the Administrative Agent and the Borrowers (it being understood that the requirements of this sentence may be waived by the Administrative Agent and the Borrowers acting together and in their sole discretion)), to provide the Administrative Agent and the Borrowers a new letter or a new Certificate of Non-Bank Status, if applicable, and Form W-8BEN or W-8BEN-E, Form W-8ECI or Form W-8IMY, or successor applicable form or other manner of certification, (x) in the case of a Transferee, on or before the date it becomes party to this Agreement, (y) on or before the date that any such letter, form or document expires or becomes obsolete or promptly after the occurrence of any event requiring a change in the most recent letter, form or document previously delivered by it, certifying in the case of a Form W-8BEN, W-8BEN-E, W-8ECI or W-8IMY that such Bank is entitled to receive payments under this Agreement without deduction or withholding of any United States Federal income tax, and in the case of a Form W-8BEN or W-8BEN-E establishing exemption from United States backup withholding tax, and (z) promptly after the date the relevant Borrower or the Administrative Agent reasonably requests any form of document referred to in this subsection 2.17(c); provided, however, that if a Bank is unable to provide a letter, form, certificate, successor or other document described in this sentence by reason of a change in the applicable law occurring after the date on which such letter, form, certificate, successor or other document originally was required to be provided by such Bank, then such Bank shall be required to comply with this sentence to the extent permitted under such applicable law, and the letter, form, certificate, successor or other document provided in accordance with this proviso (if any) shall certify that such Bank is entitled to receive payments under this Agreement at the lowest rate of deduction, withholding or backup withholding to which it is entitled under such applicable law. The Administrative Agent shall not be responsible for obtaining such documentation from any Bank other than JPMorgan Chase Bank, N.A.
(d) A Bank that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the
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Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate; provided that such Bank is legally entitled to complete, execute and deliver such documentation and in such Bank’s judgment such completion, execution or submission would not materially prejudice the legal or commercial position of such Bank.
(e) Each Bank (including, without limitation, each Transferee) shall represent that (i) it is neither an individual resident in a Member State of the European Union or in certain of the territories dependent on or associated with certain Member States (i.e., Aruba, the British Virgin Islands, Curaçao, Guernsey, the Isle of Man, Jersey, Montserrat and Sint Maarten), nor a person charged with collecting the payments derived from the Loans on behalf of such an individual and (ii) it is not an entity established in a Member State of the European Union or in one of the aforementioned territories dependent on or associated with certain Member States or, when it is such an entity, that (A) it is an entity with legal personality under the laws of the jurisdiction of its incorporation, organization or formation other than a Finnish Avoin Yhtiö or a Finnish Kommandiittiyhtiö or a Swedish Handelsbolag or a Swedish Kommanditbolag, (B) it is an entity which profits are taxed under the general rules for the taxation of enterprises applicable in the jurisdiction in which it is a resident or deemed to be a resident, (C) it is a UCITS (undertaking for collective investment in transferable securities) authorized under the EC Directive 85/611/EEC or (D) none of its members are individuals resident in a Member State of the European Union or the abovementioned territories dependent on or associated with certain Member States; provided, however, that any Bank that is or becomes unable to make such representation shall promptly deliver notice of such inability to the Borrower and the Administrative Agent (such Bank a “Non-Qualifying Bank”).
(f) If a payment made to a Bank under this Agreement would be subject to United States federal withholding tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including, without limitation, those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to the relevant Borrower or the Administrative Agent, at the time or times prescribed by applicable law and at such time or times reasonably requested by such Borrower or the Administrative Agent, such documentation prescribed by applicable law (including, without limitation, as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by such Borrower or the Administrative Agent as may be necessary for such Borrower or the Administrative Agent to comply with its obligations under FATCA, to determine that such Bank has or has not complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (f), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(g) To the extent that, as determined by the Administrative Agent, or any Bank in its sole discretion and without any obligation to disclose its tax records, Indemnified Taxes have been irrevocably utilized by the Administrative Agent, or such Bank (either as credits or deductions) to reduce its tax liabilities and such utilization is consistent with its overall tax policies, the Administrative Agent, or such Bank shall pay to the relevant Borrower, an amount equal to such reduction obtained to the extent of such increased amounts paid by such Borrower to the Administrative Agent, or such Bank as aforesaid; provided, that such Borrower, upon the request of the Administrative Agent, or such Bank, agrees to repay the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, or such Bank in the event such Governmental Authority determines that the Administrative Agent or such Bank was not entitled to such credit or deduction. Notwithstanding anything to the contrary in this paragraph (g), in no event will any indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-tax position than the
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indemnified party would have been in if the tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such tax had never been paid.
The obligations of the parties under this subsection 2.17 shall survive termination of this Agreement, payment of the Loans and termination of the Letters of Credit.
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(b) Any additional bank or financial institution that the Borrowers select to offer the opportunity to provide any portion of the increased Commitments, and that elects to become a party to this Agreement and provide a Commitment, shall execute a New Bank Supplement with the Borrowers and the Administrative Agent, substantially in the form of Exhibit N (a “New Bank Supplement”), whereupon such bank or financial institution (a “New Bank”) shall become a Bank for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, and Schedule II shall be deemed to be amended to add the name and Commitment of such New Bank, provided that the Commitment of any such New Bank shall be in an amount not less than $10,000,000.
(c) Any Bank that accepts an offer to it by the Borrowers to increase its Commitment pursuant to this subsection 2.20 shall, in each case, execute a Commitment Increase Supplement with the Borrowers and the Administrative Agent, substantially in the form of Exhibit O (a “Commitment Increase Supplement”), whereupon such Bank (an “Increasing Bank”) shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Commitment as so increased, and Schedule II shall be deemed to be amended to so increase the Commitment of such Bank.
(d) The effectiveness of any New Bank Supplement or Commitment Increase Supplement shall be contingent upon receipt by the Administrative Agent of such corporate resolutions of the Borrowers and legal opinions of counsel to the Borrowers as the Administrative Agent shall reasonably request with respect thereto.
(e) (i) Except as otherwise provided in subparagraphs (ii) and (iii) of this paragraph (e), if any bank or financial institution becomes a New Bank pursuant to subsection 2.20(b) or any Bank’s Commitment is increased pursuant to subsection 2.20(c), additional Committed Rate Loans made on or after the date of the effectiveness thereof (the “Re-Allocation Date”) shall be made in accordance with the pro rata provisions of subsection 2.12(b) based on the Commitment Percentages in effect on and after such Re-Allocation Date (except to the extent that any such pro rata borrowings would result in any Bank making an aggregate principal amount of Committed Rate Loans in excess of its Commitment, in which case such excess amount will be allocated to, and made by, the relevant New Banks and Increasing Banks to the extent of, and in accordance with the pro rata provisions of subsection 2.12(b) based on, their respective Commitments). On each Re-Allocation Date, the Administrative Agent shall deliver such amended Schedule II and a notice to each Bank of the adjusted Commitment Percentages after giving effect to any increase in the aggregate Commitments made pursuant to this subsection 2.20 on such Re-Allocation Date.
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(f) Notwithstanding anything to the contrary in this subsection 2.20, (i) in no event shall any transaction effected pursuant to this subsection 2.20 cause the aggregate Commitments to exceed $3,000,000,000, (ii) the Commitment of an individual Bank shall not, as a result of providing a new Commitment or of increasing its existing Commitment pursuant to this subsection 2.20, exceed 15% of the aggregate Commitments on any Re-Allocation Date and (iii) no Bank shall have any obligation to increase its Commitment unless it agrees to do so in its sole discretion.
(g) The Borrowers, at their own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Notes of any Bank, if any, new Notes to such Bank and its registered assigns, if requested, in an amount equal to the Commitment of such Bank after giving effect to any increase in such Bank’s Commitment.
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The rights and remedies against a Defaulting Bank under this subsection 2.23 are in addition to other rights and remedies that the Borrowers may have against such Defaulting Bank.
In the event and on the date that the Administrative Agent, the Company and the Issuing Banks each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then the L/C Obligations of the Banks shall be readjusted to reflect the inclusion of such Bank’s Commitment and on such date such Bank shall purchase at par such of the Loans of the other Banks (other than Negotiated Rate Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Commitment Percentage and such Bank shall no longer be a Defaulting Bank; provided, that subject to subsection 10.15, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, including any claim of a Non-Defaulting Bank as a result of such Non-Defaulting Bank’s increased exposure following such reallocation.
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as a result of changes in Exchange Rates). Each Letter of Credit shall (1) be denominated in Dollars, and (2) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five Business Days prior to the Termination Date, provided that any Letter of Credit with a one-year term may provide for the automatic renewal thereof for additional one-year periods (which shall in no event extend beyond the date referred to in clause (y) above).
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The Capital Corporation waives promptness, diligence, presentment to, demand of payment from and protest to JD Luxembourg of any Luxembourg Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of the Capital Corporation hereunder shall be absolute and unconditional and not be affected by (a) the failure of any Bank or the Administrative Agent to assert any claim or demand or to enforce any right or remedy against JD Luxembourg under the provisions of this Agreement or otherwise; (b) any rescission, waiver, amendment or modification of any of the terms or provisions of this Agreement or any other agreement; (c) the failure of any Bank to exercise any right or remedy against JD Luxembourg; (d) the invalidity or unenforceability of this Agreement; or (e) any other circumstance which might otherwise constitute a defense available to or discharge of JD Luxembourg (other than payment).
The Capital Corporation further agrees that its agreement hereunder constitutes a promise of payment when due and not of collection, and waives any right to require that any resort be had by any Bank to any balance of any deposit account or credit on the books of any Bank in favor of JD Luxembourg or any other Person.
The obligations of the Capital Corporation hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of the Luxembourg Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Capital Corporation hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any Bank to assert any claim or demand or to enforce any remedy under this Agreement or any other agreement, by any waiver or modification in respect of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Luxembourg Obligations, or by any other act or omission which may or might in any manner or to any extent vary the risk of the Capital Corporation or otherwise operate as a discharge of the Capital Corporation as a matter of law or equity.
The Capital Corporation further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Luxembourg Obligation is rescinded or must otherwise be restored by the Administrative Agent or any Bank upon the bankruptcy or reorganization of JD Luxembourg or otherwise.
In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent or any Bank may have at law or in equity against the Capital Corporation by virtue hereof, upon the failure of JD Luxembourg to pay any Luxembourg Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the Capital Corporation hereby promises to and will, upon receipt of written demand by the Administrative Agent, forthwith pay, or cause to be paid, in cash the amount of such unpaid Luxembourg Obligation. In the event that, by reason of the bankruptcy of JD Luxembourg, (i) acceleration of Loans made to JD Luxembourg is prevented and (ii) the Capital Corporation shall not have prepaid the outstanding Loans and other amounts due hereunder owed by JD Luxembourg, the Capital Corporation will forthwith purchase such Loans at a price equal to the principal amount thereof plus accrued interest thereon and any other amounts due hereunder with respect thereto. The Capital Corporation further agrees that if payment in respect of any Luxembourg Obligation shall be due in a currency other than Dollars and/or at a place of payment other than New York and if, by reason of any change in law, disruption of currency or foreign exchange markets, war or civil disturbance or similar event, payment of such Luxembourg Obligation in such currency or such place of payment shall be impossible or, in the reasonable judgment of any applicable Bank, not consistent with the protection of its rights or interests, then, at the election of any
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applicable Bank, the Capital Corporation shall make payment of such Luxembourg Obligation in Dollars (based upon the applicable Exchange Rate in effect on the date of payment) and/or in New York.
Notwithstanding any payment made by the Capital Corporation hereunder or any set-off or application of funds of the Capital Corporation by the Administrative Agent or any Bank, the Capital Corporation shall not be entitled to be subrogated to any of the rights of the Administrative Agent or any Bank against JD Luxembourg or any guarantee or right of offset held by the Administrative Agent or any Bank for the payment of the Luxembourg Obligations, until all amounts owing to the Administrative Agent and the Banks by JD Luxembourg on account of the Luxembourg Obligations are paid in full in cash. If any amount shall be paid to the Capital Corporation on account of such subrogation rights at any time when all of the Luxembourg Obligations shall not have been paid in full in cash, such amount shall be held by the Capital Corporation in trust for the Administrative Agent and the Banks, segregated from its other funds, and shall, forthwith upon receipt by it, be turned over to the Administrative Agent in the exact form received by it (duly indorsed by it to the Administrative Agent, if required), to be applied against the Luxembourg Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine.
SECTION 3. | REPRESENTATIONS AND WARRANTIES |
Each Borrower hereby represents and warrants to the Administrative Agent and to each Bank that:
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SECTION 4. | CONDITIONS PRECEDENT |
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Each acceptance by any Borrower of a Loan, each issuance of a Letter of Credit and each increase in the drawable amount of any Letter of Credit for the account of a Borrower, shall constitute a representation and warranty by the relevant Borrower as of the date of such Loan, the date of issuance of
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such Letter of Credit or the date of increase in the drawable amount of such Letter of Credit, as applicable, that the applicable conditions in clauses (a), (b) and (c) of this subsection 4.2 have been satisfied.
SECTION 5. | AFFIRMATIVE COVENANTS |
Each of the Borrowers (except as otherwise specified) hereby agrees that, so long as there is any obligation by any Bank to make Loans to it hereunder, any obligation of an Issuing Bank to issue Letters of Credit hereunder, any Loan of such Borrower remains outstanding and unpaid, any Letter of Credit remains outstanding or any other amount is owing by such Borrower to any Bank, any Issuing Bank or any Agent hereunder (unless the Majority Banks shall otherwise consent in writing):
All such financial statements described in clause (a) or (b) above shall present fairly the consolidated financial condition and results of operations of such Borrower and its consolidated Subsidiaries and be prepared in accordance with generally accepted accounting principles in the United States of America (or, in the case of any such financial statements furnished by JD Luxembourg, international financial reporting standards in effect from time to time as applicable to JD Luxembourg, or such other accounting standards required by any applicable Luxembourg Governmental Authority) applied consistently throughout the periods reflected therein (except as approved by such accountants or officer, as the case may be, and disclosed therein). The Company and the Capital Corporation shall be deemed to have furnished such financial statements to each Bank when they are filed with the Securities and Exchange Commission and posted on its EDGAR system, and JD Luxembourg shall be deemed to have furnished such financial statements to each Bank when they are delivered to the Administrative Agent via electronic mail or other electronic transmission.
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SECTION 6. | NEGATIVE COVENANTS OF THE COMPANY |
The Company hereby agrees that, so long as there is any obligation by any Bank to make Loans hereunder, any obligation of an Issuing Bank to issue Letters of Credit hereunder, any Loan remains outstanding and unpaid, any Letter of Credit remains outstanding or any other amount is owing to any Agent, any Issuing Bank or any Bank hereunder, it shall not, nor in the case of subsections 6.2 and 6.3 shall it permit any Restricted Subsidiary to (unless the Majority Banks shall otherwise consent in writing):
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SECTION 7. | NEGATIVE COVENANTS OF THE CAPITAL CORPORATION |
The Capital Corporation hereby agrees that, so long as there is any obligation by any Bank to make Loans to the Capital Corporation hereunder, any obligation of any Issuing Bank to issue Letters of Credit hereunder, any Loan of the Capital Corporation remains outstanding and unpaid, any Letter of Credit remains outstanding or any other amount is owing by the Capital Corporation to any Bank, any Issuing Bank or any Agent hereunder, the Capital Corporation shall not, nor in the case of the agreements set forth in subsection 7.3 shall it permit any of its Subsidiaries to, directly or indirectly (unless the Majority Banks shall otherwise consent in writing):
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(l) Mortgages on the assets of Capital Corporation in connection with (i) extensions of credit by a unit of a Governmental Authority through a discount window or similar facility or arrangement and (ii) borrowings from loan or subsidy programs operated by or on behalf of a Governmental Authority when the provision of such Mortgage is required by such loan or subsidy program.
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SECTION 8. | EVENTS OF DEFAULT |
Upon the occurrence and during the continuance of any of the following events:
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then, and in any such event, (A) if such event is an Event of Default specified in paragraph (f) above, automatically the Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) and the Loans shall immediately become due and payable, and (B)(1) if such event is an Event of Default specified in paragraph (a) or (e), then with the consent of the Majority Banks, the Administrative Agent may, or upon the request of the Majority Banks, the Administrative Agent shall, or (2) if such event is an Event of Default specified in paragraph (b), (c), (d), (g) or (h), then with the consent of the Required Banks, the Administrative Agent may, or upon the request of the Required Banks, the Administrative Agent shall, take either or both of the following actions: (i) by notice to the Borrowers, declare the Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; and (ii) by notice of default to the Borrowers, declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately become due and payable. With respect to all Letters of Credit with respect to which
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presentment for honor shall not have occurred at the time of an acceleration pursuant to this paragraph, the Borrowers shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other obligations of the Borrowers hereunder. After all such Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been satisfied and all other obligations of the Borrowers hereunder shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the Borrowers (or such other Person as may be lawfully entitled thereto). Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived with respect to this Agreement by the Borrowers.
SECTION 9. | THE AGENTS |
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(except for its or such Person’s own gross negligence or willful misconduct as finally determined by a non-appealable judgment of a court of competent jurisdiction), or (ii) responsible in any manner to any of the Banks for any recitals, statements, representations or warranties made by the Borrowers or any officer thereof contained in this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received by any Agent under or in connection with, this Agreement or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or for any failure of the Borrowers to perform their obligations hereunder. No Agent shall be under any obligation to any Bank to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement, or to inspect the properties, books or records of the Borrowers.
(ii) Each Bank and each Issuing Bank hereby further agrees that if it receives a Payment from the Administrative Agent or any of its affiliates (x) that is in a different amount than, or on a
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different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Bank and each Issuing Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Bank or Issuing Bank, as applicable, shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Bank or Issuing Bank, as applicable, to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(iii) The Borrowers hereby agree that (x) in the event that the return of an erroneous Payment (or portion thereof) made with funds of the Administrative Agent or an affiliate thereof has been demanded by the Administrative Agent pursuant to this subsection 9.4(b) and has not been recovered from any Bank or Issuing Bank, as applicable, that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Bank or Issuing Bank, as applicable, with respect to such amount unless and until such amounts are recovered by the Administrative Agent and (y) an erroneous Payment made by the Administrative Agent or an affiliate thereof shall not pay, prepay, repay, discharge or otherwise satisfy any Loans, Reimbursement Obligations or L/C Obligations owed by the Borrowers.
(iv) Each Bank’s and each Issuing Bank’s obligations under this subsection 9.4(b) shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Bank or an Issuing Bank, the termination of the Commitments, the payment in full of all amounts payable hereunder and the termination of this Agreement.
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appraisals and decisions in taking or not taking action under this Agreement, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Borrowers. Except for notices, reports and other documents expressly required to be furnished to the Banks by any Agent hereunder, such Agent shall not have any duty or responsibility to provide any Bank with any credit or other information concerning the business, operations, property, financial and other condition or creditworthiness of a Borrower which may come into the possession of such Agent or any of its officers, directors, employees, agents, attorneys-in-fact or affiliates.
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approved by the Borrowers, whereupon in each case of clauses (i) and (ii), such successor foreign currency agent shall succeed to the rights, powers and duties of the Foreign Currency Agent and the term “Foreign Currency Agent” shall mean such successor foreign currency agent effective upon its appointment, and the former Foreign Currency Agent’s rights, powers and duties as Foreign Currency Agent shall be terminated, without any other or further act or deed on the part of such former Foreign Currency Agent or any of the parties to this Agreement. After any retiring Agent’s resignation hereunder as Agent, the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 10. | MISCELLANEOUS |
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such Borrower thereunder and such Bank may waive any of the requirements of such Negotiated Rate Loan; provided, however, that such Borrower and such Bank shall notify the Administrative Agent in writing of any extension of the maturity of such Negotiated Rate Loan or reduction of the principal amount thereof; provided, further, that such Borrower and such Bank shall not extend the maturity of such Negotiated Rate Loan beyond the last day of the Commitment Period.
The Borrowers:
The Company: |
Deere & Company
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The Capital Corporation: |
John Deere Capital Corporation
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JD Luxembourg: |
John Deere Bank S.A.
L-1855 Luxembourg
Grand Duchy of Luxembourg
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with a copy to: |
Deere & Company
Telephone: 309-765-9259
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The Administrative Agent: |
JPMorgan Chase Bank, N.A.
Telephone: 302-634-9770
Email: harmeet.kaur@chase.com |
with a copy to: |
JPMorgan Chase Bank, N.A.
Bldg B, Floor 06
Email: sean.bodkin@chase.com |
Issuing Bank: |
JPMorgan Chase Bank, N.A. Standby Letter of Credit Department 10420 Highland Manor Drive, Floor 4 Tampa, FL 33610 Attention: Letter of Credit Department Facsimile: (856) 294-5267 with a copy to:
JPMorgan Chase Bank, N.A.
Bldg B, Floor 06
Email: sean.bodkin@chase.com |
The Foreign Currency Agent: |
J.P. Morgan AG
25 Bank Street
+44 207 7421911 Email: loan_and_agency_london@jpmorgan.com |
To any other Bank: |
To it at its address (or facsimile number) set forth in its Administrative Questionnaire |
provided that any notice, request or demand to or upon the Administrative Agent or the Banks pursuant to subsections 2.1, 2.2, 2.5, 2.6, 2.9, 2.11, 2.20 and 9.9 shall not be effective until received (including receipt by telephone if permitted hereby).
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(b) Any Bank may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks or other financial institutions (“Participants”) participating interests in the Loans, Commitments and other interests of such Bank hereunder. In the event of any such sale by a Bank of participating interests to a Participant, such Bank’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Bank shall remain solely responsible for the performance thereof, such Bank shall remain the holder of any such Loan for all purposes under this Agreement, and the Borrowers, each Issuing Bank and the Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement. Each Bank that sells a participation, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register to any Person other than the Borrower (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under this Agreement) except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall constitute prima facie evidence (absent manifest error) of the accuracy of the information so recorded, and the Borrowers, the Administrative Agent, the Issuing Banks and the Banks may treat each Person whose name is recorded in the Participant Register as the owner of such participation recorded therein for all purposes of this Agreement.
(c) Any Bank may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time assign to one or more banks or other financial institutions (“Loan Assignees”) any Bid Loan or Negotiated Rate Loan or portion thereof owing to such Bank, pursuant to a Loan Assignment executed by the assignor Bank and the Loan Assignee. Upon such execution, from and after the Transfer Effective Date specified in such Loan Assignment, the Loan Assignee shall, to the extent of the assignment provided for in such Loan Assignment and to the extent permitted by applicable law, be deemed to have the same rights and benefits with respect to such Bid Loans and Negotiated Rate Loans and the same obligation to share pursuant to subsection 10.6 as it would have had if it were a Bank hereunder; provided, that unless such Loan Assignment shall otherwise specify and a copy of such Loan Assignment shall have been delivered to the Administrative Agent for its acceptance and recording in the Register in accordance with subsection 10.5(f), the assignor Bank shall act as collection agent for the Loan Assignee, and in the case of Bid Loans, the Administrative Agent shall pay all amounts received from the relevant Borrower which are allocable to the assigned Bid Loan directly to the assignor Bank without any further liability to the relevant Loan Assignee, and, in the case of Negotiated Rate Loans, the relevant Borrower shall pay all amounts due under the assigned Negotiated Rate Loan directly to the assignor Bank without any further liability to the Loan Assignee. At the request of any Loan Assignee, on or promptly after the Transfer Effective Date specified in such Loan Assignment, the relevant Borrower, at its own expense, shall execute and deliver to the Loan Assignee a promissory note with respect to the Bid Loans or Negotiated Rate Loans of such Loan Assignee and its registered assigns in an amount equal to the Bid Loan or Negotiated Rate Loan assigned. Such note shall be dated the Borrowing Date in respect of such Bid Loan or Negotiated Rate Loan and shall otherwise be in the form of Exhibit L; provided, however, that such Borrower shall not be required to execute and deliver more than an aggregate of two notes with respect to the Bid Loans of any Bank with the same Interest Period at any time outstanding. A Loan Assignee shall not, by virtue of such Loan Assignment, become a party to this Agreement or have any rights to consent to or refrain from consenting to any amendment, waiver or other modification of any provision of this Agreement or any related document; provided, that (i) the assignor Bank and the Loan Assignee may, in their discretion, agree between themselves upon the manner in which the assignor Bank will exercise its rights under this Agreement and
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any related document, and (ii) if a copy of such Loan Assignment shall have been delivered to the Administrative Agent for its acceptance and recording in the Register in accordance with subsection 10.5(f), neither the principal amount of, the interest rate on, nor the maturity date of, any Bid Loan or Negotiated Rate Loan assigned to a Loan Assignee will be modified without written consent of such Loan Assignee.
(d) Any Bank may, in the ordinary course of its commercial banking business and in accordance with applicable law, sell to any Bank or any affiliate thereof (other than a natural Person) and to one or more additional banks or other financial institutions (“Purchasing Banks”), all or any portion (subject to the last sentence of this subsection 10.5(d)) of its rights (which rights may include such Bank’s rights in respect of Loans it has disbursed) and obligations under this Agreement, with the prior written consent (such consent not to be unreasonably withheld or delayed) of (i) the Company, (ii) each Issuing Bank and (iii) the Administrative Agent. Such sale shall be made pursuant to a Loan Assignment, executed by such Purchasing Bank and such transferor Bank (and, in the case of a Purchasing Bank that is not then a Bank or an affiliate thereof, by the Borrowers and the Administrative Agent), and delivered to the Administrative Agent for its acceptance and recording in the Register. Upon such execution, delivery, acceptance and recording, from and after the Transfer Effective Date specified in such Loan Assignment, (i) the Purchasing Bank thereunder shall be a party hereto with respect to the interest purchased and, to the extent provided in such Loan Assignment, have the rights and obligations of a Bank hereunder with a Commitment as set forth therein, and (ii) the transferor Bank thereunder shall cease to have those rights and obligations under this Agreement to which the Purchasing Bank has succeeded (and, in the case of a Loan Assignment covering all or the remaining portion of a transferor Bank’s rights and obligations under this Agreement, such transferor Bank shall cease to be a party hereto). Such Loan Assignment shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Purchasing Bank and the resulting adjustment of Commitments and Commitment Percentages arising from the purchase by such Purchasing Bank of a portion of the rights and obligations of such transferor Bank under this Agreement. On or promptly after the Transfer Effective Date specified in such Loan Assignment, the Purchasing Bank and the Administrative Agent, on behalf of such Purchasing Bank, shall open and maintain in the name of each Borrower a Loan Account with respect to such Purchasing Bank’s Committed Rate Loans and Bid Loans to such Borrower. Anything contained in this Agreement to the contrary notwithstanding, no Bank may sell any portion of its rights and obligations under this subsection 10.5(d) to any bank or financial institution without the prior written consent (such consent not to be unreasonably withheld or delayed) of the Company if, after giving effect to such sale or at the time of such sale, as the case may be, (i) the Commitment of either of the selling and purchasing institutions would be greater than $0 but less than $5,000,000, (ii) the Purchasing Bank, together with all of its affiliates, would have a Commitment Percentage of more than 15% (or, if the Commitments shall have been terminated, such Purchasing Bank, together with all of its affiliates, would hold Loans aggregating to more than 15% in principal amount of all outstanding Loans), (iii) the Credit Rating of any Purchasing Bank shall be less than BBB+ from S&P or less than Baa1 from Moody’s or such Purchasing Bank shall have no Credit Rating or (iv) the Purchasing Bank is not a bank, insurance company, other financial institution or an affiliate of any thereof that is engaged in making, purchasing, holding or investing in bank loans or similar extensions of credit in the ordinary course of its business.
(e) The Administrative Agent shall maintain at its address referred to in subsection 10.2 a copy of each Loan Assignment delivered to it and a register (the “Register”) for the recordation of (i) the names and addresses of the Banks and the Commitment of, and principal amount (and stated interest) of the Loans (other than Negotiated Rate Loans) and L/C Obligations owing to, each Bank from time to time, and (ii) with respect to each Loan Assignment delivered to the Administrative Agent, the name and address of the Loan Assignee and the principal amount of each Bid Loan owing to such Loan Assignee. The entries in the Register shall constitute prima facie evidence (absent manifest error) of the accuracy of the information so recorded, and the Borrowers, the Administrative Agent, each Issuing Bank and the
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Banks may treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Company, each Issuing Bank or any Bank or Loan Assignee at any reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of a Loan Assignment executed by an assignor Bank and a Loan Assignee and an Administrative Questionnaire from the Loan Assignee if it is not then a Bank, together with payment to the Administrative Agent (by the assignor Bank or the Loan Assignee, as agreed between them) of a registration and processing fee of $3,500, the Administrative Agent shall (i) accept such Loan Assignment, (ii) record the information contained therein in the Register and (iii) give prompt notice of such acceptance and recordation to the assignor Bank, the Loan Assignee and the Borrowers. Upon its receipt of a Loan Assignment executed by a transferor Bank and a Purchasing Bank (and, in the case of a Purchasing Bank that is not then a Bank or an affiliate thereof, by the Borrowers and the Administrative Agent) and an Administrative Questionnaire from the Purchasing Bank if it is not then a Bank, together with payment to the Administrative Agent (by the transferor Bank or the Purchasing Bank, as agreed between them) of a registration and processing fee of $3,500 for each Purchasing Bank listed in such Loan Assignment, the Administrative Agent shall (A) accept such Loan Assignment, (B) record the information contained therein in the Register and (C) give prompt notice of such acceptance and recordation to the Banks and the Borrowers.
(g) The Company authorizes each Bank to disclose to any Participant, Loan Assignee or Purchasing Bank (each, a “Transferee”) and any prospective Transferee any and all financial information in such Bank’s possession concerning the Borrowers and their Subsidiaries which has been delivered to such Bank by or on behalf of the Borrowers pursuant to this Agreement or in connection with such Bank’s credit evaluation of the Borrowers and their Subsidiaries prior to becoming a party to this Agreement, provided that with respect to confidential data or information described in subsection 10.7, such confidential data may be disclosed only to (i) a Purchasing Bank and/or (ii) any other Transferee or prospective Transferee with the Borrowers’ prior written consent, which consent shall not be unreasonably withheld with respect to prospective Participants, Participants, prospective Loan Assignees and Loan Assignees; provided, however, that such Bank shall not disclose any such confidential data or information pursuant to this subsection 10.5(g) unless (i) it has notified the Purchasing Bank or other Transferee or potential Transferee that such data or information are confidential, such notification to be in writing if such data or information are disclosed in writing and orally if such data or information are disclosed orally, and (ii) such Purchasing Bank, Transferee or potential Transferee has agreed in writing to be bound by the provisions of subsection 10.7.
(h) If, pursuant to this subsection, any loan participation or series of loan participations is sold or any interest in this Agreement is transferred to any Transferee, the transferor Bank shall cause such Transferee, concurrently with the effectiveness of such transfer or the first transfer to occur in a series of transfers between such transferor Bank and such Transferee, to comply with subsection 2.17(c), subsection 2.17(d), subsection 2.17(e) and subsection 2.17(f) as if it were a Bank. The Administrative Agent shall not be responsible for obtaining such documentation except from its own Transferees.
(i) Nothing in this subsection 10.5 shall prohibit any Bank from pledging or assigning its Loans to any Federal Reserve Bank in accordance with applicable law.
(j) The Borrowers, upon receipt of written notice from the relevant Bank, agree to issue Notes to any Bank requiring Notes to facilitate transactions of the type described in paragraph (i) above.
(k) Notwithstanding anything to the contrary contained herein, any Bank (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time
89
to time by the Granting Bank to the Administrative Agent and the Company, the option to provide to the Borrowers all or any part of any Loan that such Granting Bank would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Bank shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Bank to the same extent, and as if, such Loan were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this subsection 10.5(k) any SPC may (i) with notice to, but without the prior written consent of, the Company and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Bank or to any financial institutions (consented to by the Company and Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This subsection 10.5(k) may not be amended without the written consent of the SPC.
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Signature, the Administrative Agent and each of the Banks shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of the Borrowers without further verification thereof and without any obligation to review the appearance or form of any such Electronic Signature and (ii) upon the request of the Administrative Agent or any Bank, any Electronic Signature shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, the Borrowers hereby (i) agree that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Banks, and the Borrowers, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement, any other Loan Document and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, (ii) the Administrative Agent and each of the Banks may, at its option, create one or more copies of this Agreement, any other Loan Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record), (iii) waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Loan Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (iv) waives any claim against any Indemnified Person for any Losses arising solely from the Administrative Agent’s and/or any Bank’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page, including any Losses arising as a result of the failure of a Borrower to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
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(i) the application of any Write-Down and Conversion Powers by a Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(ii)the effects of any Bail-In Action on any such liability, including, if applicable:
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(x)a reduction in full or in part or cancellation of any such liability;
(y)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(z)the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any Resolution Authority.
(b)Each party hereto agrees that it will notify the Company and the Administrative Agent, as soon as practicable, of such party becoming the subject of a Bail-In Action, unless such notification is prohibited by law, regulation or order.
(i) such Bank is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans (defined below) in connection with the Loans or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to, and all of the conditions of which are and will continue to be satisfied in connection with, such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(iii) (A) such Bank is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Bank to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Bank, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Bank.
(b)In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Bank or (2) a Bank has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Bank further
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(x) represents and warrants, as of the date such Person became a Bank party hereto, and (y) covenants, from the date such Person became a Bank party hereto to the date such Person ceases being a Bank party hereto, for the benefit of, the Administrative Agent and each lead arranger, and not, for the avoidance of doubt, to or for the benefit of the Borrowers, that the Administrative Agent is not a fiduciary with respect to the assets of such Bank involved in such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement or any documents related hereto or thereto).
As used in this Section, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code, to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
[Remainder of page left intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
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DEERE & COMPANY
By:
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JOHN DEERE CAPITAL CORPORATION
By:
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JOHN DEERE BANK S.A.
By:
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By:
Name:
Title:
[Signature Page to the Deere & Company 2026 Credit Agreement]
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JPMORGAN CHASE BANK, N.A.,
By: __________________________________
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[Signature Page to the Deere & Company 2026 Credit Agreement]
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BANK OF AMERICA, N.A., as Syndication Agent and as a Bank
By: __________________________________
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[Signature Page to the Deere & Company 2026 Credit Agreement]
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CITIBANK, N.A., as Documentation Agent and as a Bank
By: __________________________________
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[BANK], as a Bank
By: __________________________________
Title: |
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[Signature Page to the Deere & Company 2026 Credit Agreement]
SCHEDULE I
TERMS OF SUBORDINATION
“Senior Indebtedness” means the principal of (and premium, if any) and unpaid interest, commitment fees and letter of credit fees on (a) indebtedness (including matured and contingent reimbursement obligations in respect of letters of credit) of John Deere Capital Corporation (the “Capital Corporation”) (including indebtedness of others guaranteed by the Capital Corporation), other than the indebtedness evidenced by the Securities [such term to be defined as the debt to be issued under the indenture or agreement to which this Schedule relates] and [specify any other indebtedness of the Capital Corporation (including indebtedness of others guaranteed by the Capital Corporation)], provided that indebtedness of the Capital Corporation under the credit agreement to which these Terms of Subordination are attached may not be so specified, whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed, for money borrowed, unless in the instrument creating or evidencing the same or pursuant to which the same is outstanding it is provided that such indebtedness is not senior or prior in right of payment to the Securities, and (b) renewals, extensions, modifications and refundings of any such indebtedness.
SUBORDINATION
Section 1. Agreement to Subordinate.
The Capital Corporation, for itself, its successors and assigns, covenants and agrees, and each holder of Securities, by such holder’s acceptance thereof, likewise covenants and agrees, that the payment of the principal of (and premium, if any) and interest on each and all of the Securities is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all Senior Indebtedness.
Section 2. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities.
Upon any distribution of assets of the Capital Corporation upon any dissolution, winding up, liquidation or reorganization of the Capital Corporation, whether in bankruptcy, insolvency, reorganization or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Capital Corporation or otherwise (subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in this Agreement upon the Senior Indebtedness and the holders thereof with respect to the Securities by a lawful plan of reorganization under applicable bankruptcy law),
(a)the holders of Senior Indebtedness shall be entitled to receive payment in full of the principal thereof (and premium if any) and the interest, commitment fees and letter of credit fees due on the Senior Indebtedness before the holders of the Securities are entitled to receive any payment upon the principal of (or premium, if any) or interest on indebtedness evidenced by the Securities; and
(b) any payment or distribution of assets of the Capital Corporation of any kind or character, whether in cash, property or securities, to which the holders of the Securities or any trustee therefor would be entitled except for the provisions of this Article shall be paid by the liquidating trustee or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under
I-2
any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal of (and premium, if any) and interest, commitment fees and letter of credit fees on the Senior Indebtedness held or represented by each holder of Senior Indebtedness, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c)in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Capital Corporation of any kind or character, whether in cash, property or securities, shall be received by any trustee for the holders of the Securities or the holders of the Securities before all Senior Indebtedness is paid in full, such payment or distribution shall be paid over, upon written notice to any trustee for the holders of the Securities, to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the holders of the Securities shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Capital Corporation applicable to Senior Indebtedness until the principal of (and premium, if any) and interest on the Securities shall be paid in full and no such payments or distributions to the holders of the Securities of cash, property or securities otherwise distributable to the holders of Senior Indebtedness shall, as between the Capital Corporation, its creditors other than the holders of Senior Indebtedness, and the holders of the Securities, be deemed to be a payment by the Capital Corporation to or on account of the Securities. It is understood that the provisions of this Article are, and are intended, solely for the purpose of defining the relative rights of the holders of the Securities, on the one hand, and the holders of Senior Indebtedness, on the other hand. Nothing contained in this Article or elsewhere in this Agreement or in the Securities is intended to or shall impair, as between the Capital Corporation, its creditors other than the holders of Senior Indebtedness, and the holders of the Securities, the obligation of the Capital Corporation, which is unconditional and absolute, to pay to the holders of the Securities the principal of (and premium, if any) and interest on the Securities as and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the holders of the Securities and creditors of the Capital Corporation other than the holders of Senior Indebtedness, nor shall anything herein or in the instruments or other evidence of the Securities prevent any trustee for the holders of the Securities or the holder of any Securities from exercising all remedies otherwise permitted by applicable law upon default under this Agreement or such instrument or other evidence, subject to the rights, if any, under this Article of the holders of Senior Indebtedness in respect of cash, property or securities of the Capital Corporation received upon the exercise of any such remedy.
Section 3. No Payment on Securities in Event of Non-Payment When Due of Senior Indebtedness.
No payment by the Capital Corporation on account of principal (or premium, if any), sinking funds, or interest on the Securities shall be made unless full payment of amounts then due for principal, premium, if any, sinking funds and interest and letter of credit fees and commitment fees on Senior Indebtedness has been made or duly provided for in money or money’s worth.
SCHEDULE II
COMMITMENTS
Bank |
Commitment |
JPMorgan Chase Bank, N.A. |
$210,937,500 |
Bank of America, N.A. |
$210,937,500 |
Citibank, N.A. |
$210,937,500 |
Barclays Bank PLC |
$175,781,250 |
HSBC Bank USA, N.A. |
$175,781,250 |
MUFG Bank, Ltd. |
$175,781,250 |
Royal Bank of Canada |
$175,781,250 |
The Toronto-Dominion Bank, New York Branch |
$156,250,000 |
Credit Agricole Corporate and Investment Bank |
$140,625,000 |
Deutsche Bank AG, New York Branch |
$140,625,000 |
Goldman Sachs Bank USA |
$140,625,000 |
BNP Paribas |
$93,750,000 |
Commerzbank AG New York Branch |
$93,750,000 |
Banco Bilbao Vizcaya Argentaria, S.A. New York Branch |
$39,062,500 |
Banco Santander, S.A., New York Branch |
$39,062,500 |
The Bank of New York Mellon |
$39,062,500 |
The Bank of Nova Scotia |
$39,062,500 |
PNC Bank, National Association |
$39,062,500 |
Sumitomo Mitsui Banking Corporation |
$39,062,500 |
Standard Chartered Bank |
$39,062,500 |
U.S. Bank National Association |
$39,062,500 |
Wells Fargo Bank, National Association |
$39,062,500 |
Bank of China, Chicago Branch |
$15,625,000 |
ICICI Bank Limited New York Branch |
$15,625,000 |
Nordea Bank Abp, New York Branch |
$15,625,000 |
|
|
|
|
|
|
TOTAL |
$2,500,000,000 |
SCHEDULE III
EXISTING LETTERS OF CREDIT
None.
EXHIBIT A
[FORM OF BORROWING NOTICE]
_________, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent under the
Credit Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Pursuant to subsection 2.1(c) of the $2,500,000,000 2026 Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), the undersigned hereby requests that the following Committed Rate Loans be made on __________, 20__ as follows:
A-2
(vii) 90 days (if Canadian Dollars requested) |
$____________ |
||
Total Eurocurrency Loans |
$____________ |
NOTE: THE AMOUNT APPEARING IN LINE (1) ABOVE MUST BE AT LEAST EQUAL TO $25,000,000 AND IN A WHOLE MULTIPLE OF $5,000,000 (OR THE FOREIGN CURRENCY EQUIVALENT IN THE CASE OF FOREIGN CURRENCY LOANS) AND THE AMOUNTS APPEARING IN EACH OTHER LINE ABOVE MUST BE AT LEAST EQUAL TO $10,000,000 AND IN A WHOLE MULTIPLE OF $1,000,000 (OR THE FOREIGN CURRENCY EQUIVALENT IN THE CASE OF FOREIGN CURRENCY LOANS).
Terms defined in the Credit Agreement shall have the same meanings when used herein.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
[JOHN DEERE BANK S.A.]
By:
Title:
EXHIBIT B
[FORM OF BID LOAN REQUEST]
_______, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent under the Credit
Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $2,500,000,000 2026 Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are used herein as therein defined.
This is an [Index Rate] [Absolute Rate] Bid Loan Request pursuant to subsection 2.2 of the Credit Agreement requesting quotes for the following Bid Loans:
B-2
NOTE: THE AGGREGATE PRINCIPAL AMOUNTS APPEARING ABOVE MUST BE IN THE AGGREGATE AT LEAST EQUAL TO $25,000,000 AND IN A WHOLE MULTIPLE OF $5,000,000.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
__________
Note: |
Pursuant to the Credit Agreement, a Bid Loan Request may be transmitted by facsimile transmission, or by telephone, immediately confirmed by facsimile transmission. In any case, a Bid Loan Request shall contain the information specified in the second paragraph of this form. |
EXHIBIT C
[FORM OF BID LOAN OFFER]
_______, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent
under the Credit Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $2,500,000,000 2026 Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are used herein as therein defined.
In accordance with subsection 2.2 of the Credit Agreement, the undersigned Bid Loan Bank offers to make Bid Loans thereunder in the following amounts with the following maturity dates:
Borrowing Date: _________________, 20__
Aggregate Maximum Amount: $________
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Maturity Date 1: |
Maturity Date 2: |
Maturity Date 3: |
Maximum Amount $_____ |
Maximum Amount $_______ |
Maximum Amount $______ |
Rate* ____Amount $______ |
Rate* ____Amount $______ |
Rate* ___Amount $_______ |
Rate* ____Amount $______ |
Rate* ____Amount $______ |
Rate* ___Amount $_______ |
Very truly yours,
[NAME OF BID LOAN BANK]
By:
Name:
Title:
Telephone:
Facsimile:
* If Index Rate Bid Loan, insert percentage above or below Eurocurrency Rate.
EXHIBIT D
[FORM OF BID LOAN CONFIRMATION]
_______, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent
under the Credit Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $2,500,000,000 2026 Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are used herein as therein defined.
In accordance with subsection 2.2 of the Credit Agreement, the undersigned accepts and confirms the offers by Bid Loan Bank(s) to make Bid Loans to the undersigned on ______________, 20__ [Borrowing Date] under said subsection 2.2 in the (respective) amount(s) set forth on the attached list of Bid Loans offered.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
[Borrower to attach Bid Loan Offer list prepared by Administrative Agent with accepted amount entered by the Borrower to right of each Bid Loan Offer].
EXHIBIT E
[FORM OF ASSIGNMENT AND ASSUMPTION]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the date set forth below (the “Effective Date”) and is entered into between the Assignor named below (the “Assignor”) and the Assignee named below (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent below (i) all of the Assignor’s rights and obligations in its capacity as a Bank under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any letters of credit and guarantees included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Bank) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
1.Assignor:______________________________
2.Assignee:______________________________
[and is an affiliate/Approved Fund of [identify Bank]2]
3.Borrower(s):______________________________
4.Administrative Agent: JPMorgan Chase Bank, N.A., as administrative agent under the Credit Agreement
5.Credit Agreement:The $2,500,000,000 2026 Credit Agreement dated as of March 29, 2021 among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and the
2 Select as applicable.
E-2
other agents parties thereto
6. Assigned Interest:
Facility Assigned3 |
Aggregate Amount of Commitment/Loans for all Banks |
Amount of Commitment/Loans Assigned |
Percentage Assigned of Commitment/Loans4 |
|
$ |
$ |
% |
|
$ |
$ |
% |
|
$ |
$ |
% |
Effective Date: ______________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The Assignee expressly confirms that it [can/cannot] exempt the Administrative Agent and the Foreign Currency Agent from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law as provided for in subsection 9.1(d) of the Credit Agreement. The Assignee agrees to deliver to the Administrative Agent a completed administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrowers and their affiliates or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
_________________________________
NAME OF ASSIGNOR
By:______________________________
Title:
ASSIGNEE
_________________________________
NAME OF ASSIGNEE
By:______________________________
Title:
3 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g. “Commitment” or “L/C Commitment”).
4 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Banks.
[Consented to and]5 Accepted:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By_________________________________
Title:
[Consented to:]6
DEERE & COMPANY
By________________________________
Title:
5 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
6 To be added only if the consent of the Borrower and/or other parties (e.g. Issuing Bank) is required by the terms of the Credit Agreement.
ANNEX 1
$2,500,000,000 2026 Credit Agreement dated as of March 29, 2021 (the “Credit Agreement”) among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and the other agents parties thereto
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, (iii) the financial condition of the Borrowers, any of their respective Subsidiaries or affiliates or any other Person obligated in respect of the Credit Agreement or (iv) the performance or observance by each Borrower, any of their Subsidiaries or affiliates or any other Person of any of their respective obligations under the Credit Agreement.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Bank under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Bank, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Bank thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Bank thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.1 thereof, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Bank and (v) if it is a Non-U.S. Bank, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Bank.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and
I-2
Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by email or telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
EXHIBIT F
[RESERVED]
EXHIBIT G
[FORM OF OPINION OF GENERAL COUNSEL TO THE COMPANY]
[Closing Date]
To each of the Banks parties to
the Credit Agreement referred to
below and to JPMorgan Chase
Bank, N.A., as Administrative Agent
Deere & Company and
John Deere Capital Corporation
2026 Credit Agreement
Ladies and Gentlemen:
This opinion is furnished to you pursuant to subsection 4.1(c) of the $2,500,000,000 2026 Credit Agreement dated as of March 29, 2021 (the “Credit Agreement”) among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation” and, together with the Company, the “U.S. Borrowers”) and John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Terms defined in the Credit Agreement and not otherwise defined in this opinion are used herein as defined in the Credit Agreement.
I am General Counsel of the Company and have also acted as counsel for the Capital Corporation in this matter. I am familiar with the corporate history and organization of each U.S. Borrower and of its Subsidiaries and the proceedings relating to the authorization, execution and delivery by each U.S. Borrower of the Credit Agreement. In that connection I have examined or caused to have examined:
1.The Credit Agreement;
2. |
The documents furnished by each of the U.S. Borrowers pursuant to Section 4 of the Credit Agreement; |
3. |
The Certificates of Incorporation of the U.S. Borrowers and all amendments thereto (the “Charters”); |
4. |
The bylaws of the U.S. Borrowers and all amendments thereto (the “Bylaws”); and |
5. |
Certificates of the Secretary of State of Delaware, each dated a recent date, attesting to the continued corporate existence and good standing of the U.S. Borrowers in that State. |
In addition, I have reviewed or caused to have reviewed such of the corporate proceedings of the U.S. Borrowers, and have examined or caused to have examined such documents, corporate records, and other instruments relating to the organization of the U.S. Borrowers and their respective Subsidiaries and such other agreements and instruments to which the U.S. Borrowers and their respective Subsidiaries are parties, as I consider necessary as a basis for the opinions hereinafter expressed. I have assumed the due execution and delivery, pursuant to due authorization, of the Credit
G-2
Agreement by the Banks, the Administrative Agent, the Syndication Agent, and the Documentation Agent, and the authenticity of all documents submitted to me as originals and the conformity to the original documents of all documents submitted to me as certified, conformed or photostatic or electronic copies.
I am qualified to practice law in the State of Illinois and the State of Iowa and do not purport to be an expert on, and do not express any opinion herein concerning, any laws other than the laws of the State of Illinois and the State of Iowa, the General Corporation Law of the State of Delaware and the Federal laws of the United States.
Based upon the foregoing and upon such investigation as I have deemed necessary, I am of the following opinion:
1. |
Each of the Company and the Capital Corporation is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to carry on its business as now being conducted and to own its properties. |
2. |
The execution, delivery and performance by each U.S. Borrower of the Credit Agreement are within such U.S. Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not (i) contravene, or constitute a default under the Charter or the Bylaws of such U.S. Borrower, any judgment, law, rule or regulation applicable to such U.S. Borrower, or any Contractual Obligation by which such U.S. Borrower is bound or (ii) result in the creation of any lien, charge or encumbrance upon any of its property or assets. The Credit Agreement has been duly executed and delivered on behalf of each U.S. Borrower. |
3. |
No authorization, approval, or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by each U.S. Borrower of the Credit Agreement. |
4. |
There is no pending or, to the best of my knowledge, threatened action or proceeding against either U.S. Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator which is likely to have a materially adverse effect upon the financial condition or operations of such U.S. Borrower and its Subsidiaries taken as a whole. |
A copy of this opinion letter may be delivered by any of you to any person that becomes a Bank in accordance with the provisions of the Credit Agreement. Any such person may rely on the opinions expressed above as if this opinion letter were addressed and delivered to such person on the date hereof.
This opinion letter is rendered to you in connection with the transactions contemplated by the Credit Agreement. This opinion letter may not be relied upon by you or any person entitled to rely on this opinion pursuant to the preceding paragraph for any other purpose without my prior written consent.
This opinion letter speaks only as of the date hereof. I expressly disclaim any responsibility to advise you of any development or circumstance of any kind, including any change of law or fact, that may occur after the date of this opinion letter even though such development or circumstance
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may affect the legal analysis, a legal conclusion or any other matter set forth in or relating to this opinion letter.
Very truly yours,
Mary K.W. Jones
EXHIBIT H
[FORM OF ENFORCEABILITY OPINION OF SPECIAL NEW YORK COUNSEL
TO THE BORROWERS]
[Closing Date]
To the Agent
and each of the Banks under the
Credit Agreement (referred to below)
on the date hereof:
Re: |
$2,500,000,000 2026 Credit Agreement dated as of March 29, 2021, by and among Deere & Company, a Delaware corporation (the “Company”), John Deere Capital Corporation, a Delaware corporation (the “Capital Corporation”), John Deere Bank S.A., a public limited company organized under the laws of Luxembourg (“JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), the financial institutions from time to time party thereto as lenders (the “Lenders”), JPMorgan Chase Bank, N.A., as the Administrative Agent for the Banks (in such capacity, the “Agent”) and the other parties thereto (such credit agreement herein referred to as the “Credit Agreement”) |
Ladies and Gentlemen:
We are issuing this opinion letter in our capacity as counsel to and at the request of the Borrowers in respect of the Credit Agreement.
The opinions expressed herein are being provided pursuant to Section 4.1(c) of the Credit Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement (with references herein to the Credit Agreement and each document defined therein meaning the Credit Agreement and each such document as executed and delivered on the date hereof). The Banks and the Agent are sometimes referred to in this opinion letter as “you”.
In connection with the preparation of this letter, we have, among other things, reviewed executed counterparts of the Credit Agreement.
Subject to the assumptions, qualifications, exclusions and other limitations which are identified in this opinion letter, we advise you, and with respect to each legal issue addressed in this opinion letter, it is our opinion, that (a) the Credit Agreement is a valid and binding obligation of each Borrower that is a party thereto and is enforceable against such Borrower in accordance with its terms and (b) the guarantee by the Capital Corporation pursuant to Section 2.27 of the Credit Agreement is a valid and binding obligation of the Capital Corporation and is enforceable against the Capital Corporation in accordance with its terms.
With your consent, we have assumed for purposes of this letter and the opinions herein:
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(a) that each document we have reviewed for purposes of this letter is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each such document are genuine, and that all natural persons who have signed any document have the legal capacity to do so;
(b) that the Credit Agreement and every other agreement we have examined for purposes of this letter has been duly authorized, executed and delivered by the parties thereto and constitutes a valid and binding obligation of each party to that document, enforceable against each such party in accordance with its respective terms and that each such party has satisfied all legal requirements that are applicable to such party to the extent necessary to entitle such party to enforce such agreement and that each party to the Credit Agreement is in good standing and duly incorporated or organized under the laws of its jurisdiction of organization except we do not assume in this paragraph (b) that the Credit Agreement is a valid and binding obligation enforceable in accordance with its terms against the Borrowers;
(c) there are no agreements or understandings among the parties, written or oral (other than the Credit Agreement), and there is no usage of trade or course of prior dealing among the parties that would, in either case define, supplement or qualify the terms of the Credit Agreement; and
(d) that the status of the Credit Agreement as legally valid and binding obligations of the parties is not affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders, or (iii) failures to obtain required consents, approvals or authorizations from, or make required registrations, declarations or filings with, governmental authorities.
In preparing this letter, we have relied without any independent verification upon: (i) information contained in certificates obtained from governmental authorities; (ii) factual information represented to be true in the Credit Agreement; (iii) factual information provided to us in a support certificate signed by each of the Borrowers; and (iv) factual information we have obtained from such other sources as we have deemed reasonable; and we have examined the originals or copies certified to our satisfaction, of the Credit Agreement and other corporate records of the Borrowers as we deem necessary for or relevant to our opinions. We have assumed without investigation that the information upon which we have relied is accurate and does not omit disclosures necessary to prevent such information from being misleading.
The terms “knowledge,” “actual knowledge” and “aware” whenever used in this letter with respect to our firm mean conscious awareness at the time this letter is delivered on the date it bears by the lawyers with Kirkland & Ellis LLP at that time who spent substantial time representing the Borrower in connection with the Credit Agreement (herein called our “Designated Transaction Lawyers”).
Our opinion (an “enforceability opinion”) in this letter that any particular contract is a valid and binding obligation or is enforceable in accordance with its terms is subject to: (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and judicially developed doctrines in this area such as substantive consolidation and equitable subordination; (ii) the effect of general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity); (iii) an
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implied covenant of good faith and fair dealing; and (iv) other commonly recognized statutory and judicial constraints on enforceability including statutes of limitations. “General principles of equity” include but are not limited to: principles limiting the availability of specific performance and injunctive relief; principles which limit the availability of a remedy under certain circumstances where another remedy has been elected; principles requiring reasonableness, good faith and fair dealing in the performance and enforcement of an agreement by the party seeking enforcement; principles which may permit a party to cure a material failure to perform its obligations; and principles affording equitable defenses such as waiver, laches and estoppel.
Our enforceability opinion is also subject to the qualification that certain provisions of the Credit Agreement may not be enforceable in whole or in part, although the inclusion of such provisions does not render the Credit Agreement invalid, and the Credit Agreement and the law of the State of New York contain adequate remedial provisions for the practical realization of the rights and benefits afforded thereby.
Our enforceability opinion is further subject to the effect of rules of law that may render guaranties or other similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Agreement (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between you and the Borrowers which is substantially and materially different from that presently contemplated by the Credit Agreement, (ii) release the primary obligor, or (iii) impair the guarantor’s recourse against the primary obligor.
We also express no opinion regarding the enforceability of any so-called “fraudulent conveyance” or “fraudulent transfer savings” clauses and any similar provisions in the Credit Agreement to the extent such provisions purport to limit the amount of the obligations of any party or the right to contribution of any other party with respect to such obligations.
We render no opinion regarding the validity, binding effect or enforceability of the Credit Agreement with respect to any Borrower to the extent the Credit Agreement involves any obligation (including any guaranty) of such Borrower with respect to any “swap” (as such term is defined in the Commodity Exchange Act) if such Borrower is not an “eligible contract participant” (as such term is defined in the Commodity Exchange Act) at the time such obligation is incurred by such Borrower.
We render no opinion with regard to usury or other laws limiting or regulating the maximum amount of interest that may be charged, collected, received or contracted for other than the internal laws of the State of New York, and without limiting the foregoing, we expressly disclaim any opinion as to the usury or other such laws of any other jurisdiction (including laws of other states made applicable through principles of Federal preemption or otherwise) which may be applicable to the transactions contemplated by the Credit Agreement.
Nothing contained in this letter covers or otherwise addresses any of the following types of provisions which may be contained in the Credit Agreement:
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(i) provisions mandating contribution towards judgments or settlements among various parties;
(ii) waivers of benefits and rights to the extent they cannot be waived under applicable law;
(iii) provisions providing for penalties, liquidated damages, acceleration of future amounts due (other than principal) without appropriate discount to present value, late charges, prepayment charges, interest upon interest, or increased interest rates upon default;
(iv) provisions which might require indemnification or contribution in violation of general principles of equity or public policy, including, without limitation, indemnification or contribution obligations which arise out of the failure to comply with applicable state or federal securities laws;
(v) agreements to submit to the jurisdiction of any particular court or other governmental authority (either as to personal or subject matter jurisdiction); provisions restricting access to courts; waiver of service of process requirements which would otherwise be applicable; waiver of the right to a jury trial and provisions otherwise purporting to affect the jurisdiction and venue of courts;
(vi) choice-of-law provisions;
(vii) provisions regarding arbitration;
(viii) covenants not to compete;
(ix) provisions that authorize you to set off and apply any deposits at any time held, and any other indebtedness at any time owing, by you to or for the account of the Borrowers, or
(x) requirements in the Credit Agreement specifying that provisions thereof may only be waived in writing.
Except as expressly otherwise set forth in this letter, our advice on every legal issue addressed in this letter is based exclusively on the internal laws of the State of New York or the Federal law of the United States which, in each case, in our experience is generally applicable both to general business organizations which are not engaged in regulated business activities and to transactions of the type contemplated in the Credit Agreement, on the one hand, and you, on the other hand (but without our having made any special investigation as to any other laws), except that we express no opinion or advice as to any law or legal issue (a) which might be violated by any misrepresentation or omission or a fraudulent act, or (b) to which any Borrower may be subject as a result of your legal or regulatory status, your sale or transfer of the Loans or interests therein or your involvement in the transactions contemplated by the Credit Agreement.
None of the opinions or other advice contained in this letter considers or covers: (i) any federal or state securities (or “blue sky”) laws or regulations or Federal Reserve Board margin regulations or (ii) federal or state antitrust and unfair competition laws and regulations, pension
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and employee benefit laws and regulations, compliance with fiduciary duty requirements, federal and state environmental, land use and subdivision, tax, racketeering (e.g., RICO), health and safety (e.g., OSHA), and labor laws and regulations, federal and state laws, regulations and policies concerning national and local emergency, possible judicial deference to acts of sovereign states and criminal and civil forfeiture laws, and other federal and state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes).
We also express no opinion regarding any laws relating to terrorism or money laundering, including Executive Order No. 13224, 66 Fed. Reg. 49079 (published September 25, 2001) (the “Terrorism Executive Order”) or any related enabling legislation or any other similar executive order (collectively with the Terrorism Executive Order, the “Executive Orders”), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56, the “Patriot Act”), any sanctions and regulations promulgated under authority granted by the Trading with the Enemy Act, 50 U.S.C. App. 1-44, as amended from time to time, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, as amended from time to time, the Iraqi Sanctions Act, Publ. L. No. 101-513; United Nations Participation Act, 22 U.S.C. § 287c, as amended from time to time, the International Security and Development Cooperation Act, 22 U.S.C. § 2349 aa-9, as amended from time to time, The Cuban Democracy Act, 22 U.S.C. §§ 6001-10, as amended from time to time, The Cuban Liberty and Democratic Solidarity Act, 18 U.S.C. §§ 2332d and 2339b, as amended from time to time, and The Foreign Narcotics Kingpin Designation Act, Publ. L. No. 106-120, as amended from time to time.
We express no opinion as to what law might be applied by any other courts to resolve any issue addressed in this letter. We advise you that issues addressed by this letter may be governed in whole or in part by other laws, but we express no opinion as to whether any relevant difference exists between the laws upon which our opinions are based and any other laws which may actually govern.
This opinion letter speaks as of the time of its delivery on the date it bears. We do not assume any obligation to provide you with any subsequent opinion or advice by reason of any fact about which our Designated Transaction Lawyers did not have actual knowledge at that time, by reason of any change subsequent to that time in any law covered by any of our opinions, or for any other reason.
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You may rely upon this letter only for the purpose served by the provision in the Credit Agreement cited in the second paragraph of this opinion letter in response to which it has been delivered. Without our written consent: (i) no person other than you may rely on this opinion letter for any purpose; (ii) this opinion letter may not be cited or quoted in any financial statement, prospectus, private placement memorandum or other similar document; (iii) this opinion letter may not be cited or quoted in any other document or communication which might encourage reliance upon this opinion letter by any person or for any purpose excluded by the restrictions in this paragraph; and (iv) copies of this opinion letter may not be furnished to anyone for purposes of encouraging such reliance. Notwithstanding the foregoing, financial institutions which subsequently become Banks in accordance with the terms of Section 10.5 of the Credit Agreement may rely on this opinion letter as of the time of its delivery on the date hereof as if this letter were addressed to them.
Sincerely,
KIRKLAND & ELLIS LLP
EXHIBIT I
[FORM OF EXTENSION REQUEST]
____________________, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $2,500,000,000 2026 Credit Agreement, dated as of March 29, 2021, among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are used herein as therein defined.
This is an Extension Request pursuant to subsection 2.16 of the Credit Agreement requesting an extension of the Termination Date to [INSERT REQUESTED TERMINATION DATE]. Please transmit a copy of this Extension Request to each of the Banks.
Very truly yours,
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
JOHN DEERE BANK S.A.
By:
Title:
EXHIBIT J
[FORM OF W-8BEN-E TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form W-8BEN-E of
the Internal Revenue Service]
[Bank’s Letterhead]
________________, 20__
Deere & Company
One John Deere Place
Moline, Illinois 61265
Attention: Treasurer
John Deere Capital Corporation
First National Bank Building
1 East First Street
Reno, Nevada 89501
Attention: Manager
[John Deere Bank S.A.
43, avenue John F. Kennedy
L-1855 Luxembourg
Grand Duchy of Luxembourg
Attention: ]
Re: |
$2,500,000,000 2026 Credit Agreement
|
Ladies and Gentlemen:
In connection with the $2,500,000,000 2026 Credit Agreement, dated as of March 29, 2021, among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent, we hereby represent and warrant that [name of Bank, address] is a [name of Country] corporation and is currently exempt from any U.S. federal withholding tax on payments to it from U.S. sources by virtue of compliance with the provisions of the Income Tax Convention between the United States and [name of Country] signed [date], [as amended]. Our fiscal year is the twelve months ending [________________].
The undersigned (a) is a [corporation] organized under the laws of [_______] whose [registered] business is managed or controlled in [_______], (b) [does not have a permanent establishment or fixed base in the United States] [does have a permanent establishment or fixed base in the United States but the above Agreement is not effectively connected with such permanent establishment or fixed base], (c) is not exempt from tax on the income in [_______] and (d) is the beneficial owner of the income.
J-2
We enclose herewith two copies of Form W-8BEN-E of the U.S. Internal Revenue Service.
Yours faithfully,
[NAME OF BANK]
By:
Title:
cc:JPMorgan Chase Bank, N.A., as Administrative Agent
EXHIBIT K
[FORM OF W-8ECI TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form W-8ECI of
the Internal Revenue Service]
[Bank’s Letterhead]
______________, 20__
Deere & Company
One John Deere Place
Moline, Illinois 61265
Attention: Treasurer
John Deere Capital Corporation
First National Bank Building
1 East First Street
Reno, Nevada 89501
Attention: Manager
[John Deere Bank S.A.
43, avenue John F. Kennedy
L-1855 Luxembourg
Grand Duchy of Luxembourg
Attention:]
Re: |
$2,500,000,000 2026 Credit Agreement
|
Ladies and Gentlemen:
In connection with the above $2,500,000,000 2026 Credit Agreement, dated as of March 29, 2021, among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent, we hereby represent and warrant that [name of Bank, address] is a [corporation] and is entitled to exemption from U.S. federal withholding tax on payments to it under the Agreement by virtue of Section 1441(c)(1) of the Internal Revenue Code of the United States of America and Treasury Regulation Section 1.1441-4(a) thereunder.
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We enclose herewith two copies of Form W-8ECI of the U.S. Internal Revenue Service.
Yours faithfully,
[NAME OF BANK]
By:
Title:
cc:JPMorgan Chase Bank, N.A., as Administrative Agent
EXHIBIT L
[FORM OF REPLACEMENT BANK AGREEMENT]
THIS AGREEMENT, dated as of _____, 20__ (“Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”) ____________ (“New Bank”) and JPMorgan Chase Bank, N.A., as Administrative Agent for the Existing Banks referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Capital Corporation, JD Luxembourg, the several financial institutions parties thereto (the “Existing Banks”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent are parties to the $2,500,000,000 2026 Credit Agreement, dated as of March 29, 2021 (as the same may have been or may hereafter be amended, supplemented or otherwise modified, the “Credit Agreement”; terms defined therein being used herein as therein defined);
WHEREAS, subsection 2.19 of the Credit Agreement provides that one or more financial institutions (which may be Existing Banks) may be added as a “Bank” or “Banks” for purposes of the Credit Agreement upon the cancellation of all or a portion of the Commitments pursuant to subsection 2.13(a), (b) or (c), 2.16(c) or 2.17(b) of the Credit Agreement or the expiration of all or a portion of the Commitments pursuant to subsection 2.16(b) of the Credit Agreement or upon a Defaulting Bank becoming a Cancelled Bank and the execution of an agreement in substantially the form of this Agreement;
WHEREAS, the Borrowers have cancelled or there have expired an aggregate principal amount of Commitments equal to $______which have not heretofore been replaced (the “Cancelled Commitments”; the Banks that are maintaining or have maintained the Cancelled Commitments being collectively referred to as “Cancelled Banks”); such Cancelled Commitments being on the date hereof, or on the date of notice of cancellation hereof having been, utilized as follows:
Principal Amount |
Last day of
|
|
I |
Unused Portion |
N/A |
II |
Committed Rate Loans |
|
Eurocurrency Loans
1
|
|
|
|
ABR Loans |
N/A |
III |
Bid Loans |
|
1
|
|
|
IV |
Negotiated Rate Loans |
|
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1
|
|
WHEREAS, the cancellation of the Cancelled Commitments is effective in accordance with the Credit Agreement; and
WHEREAS, [the Borrowers desire the New Bank to become, and the New Bank is agreeable, to becoming, a “Bank” for purposes of the Credit Agreement] [the New Bank is an Existing Bank and the Borrowers desire the New Bank to increase, and the New Bank is agreeable to increasing, its Commitment]* on the terms contained herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto agree as follows:
1. Benefits of Agreement. The Borrowers, the Administrative Agent and the New Bank hereby [agree that on and as of the date hereof the New Bank shall be] [confirm that the New Bank is] a “Bank” for all purposes and shall [continue to] be bound by and entitled to the benefits of the Credit Agreement [as if the New Bank had been named on the signature pages thereof], provided that the New Bank shall not assume and shall, except as herein provided, have no obligations in respect of any Loans outstanding on the date hereof and made by any [Existing Bank.] [Cancelled Bank.]*
2. Commitment of New Bank. The Borrowers, the Administrative Agent and the New Bank hereby agree that on and as of the dates set forth below the New Bank shall replace, as specified herein, _% (such percentage being referred to as the New Bank’s “Percentage”) of each utilization of the Cancelled Commitments [set forth in the third recital hereof] [set forth under the caption “Committed Rate Loans”] and that the aggregate Commitment of the New Bank shall on and as of the date hereof be $_____**. In connection therewith, the Borrowers, the Administrative Agent and the New Bank hereby agree as follows***:
(i) for purposes of determining such New Bank’s pro rata share of each Committed Rate Loan borrowing advanced on or after the date hereof such Bank’s Commitment shall be equal to $[same as above];
(ii) the unused and available portion of such New Bank’s Commitment shall be deemed utilized by its Percentage of the Committed Rate Loans made by the Cancelled Banks and listed in the third recital hereof. In furtherance thereof, the unused and available portion of such New Bank’s Commitment shall, on the earlier of (x) the last day of each Interest Period specified for each outstanding Committed Rate Loan in the third recital hereof (and the payment in full to the Cancelled Banks of the principal thereof and accrued interest thereon) and (y) the prepayment of the principal of such Loans
* |
As appropriate for New or Existing Banks. |
** |
Insert amount equal to sum of New Bank’s existing Commitment, if any, plus New Bank’s Percentage of Cancelled Commitments. |
*** |
The following clauses (ii)-(iii) may be altered to reflect the agreements among the Cancelled Bank, the New Bank and the Borrowers provided such agreements do not adversely affect any Existing Bank or the Administrative Agent. |
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together with accrued interest thereon, automatically and without any further action by any party increase by an amount equal to the New Bank’s Percentage of such Loan; and
(iii) [(A)] [concurrently with the execution hereof the New Bank shall disburse to each Borrower in immediately available funds such amount as shall be necessary so that (x) the ratio which each Bank’s outstanding ABR Loans bears to all of the outstanding ABR Loans and (y) the ratio which each Bank’s outstanding SONIA Loans bears to all of the outstanding SONIA Loans, in each case equals the ratio which each Bank’s Commitment (determined, for the New Bank, in accordance with clause (i) above) bears to all of the Commitments (determined, for the New Bank, in accordance with the immediately foregoing parenthetical);]
[(B)] [on the last day of each Interest Period for each outstanding Eurocurrency Loan, automatically and without any further action by either Borrower, the New Bank shall disburse to each Borrower in immediately available funds such amounts as shall be necessary so that the ratio which each Bank’s outstanding Eurocurrency Loans, bears to all of the outstanding Eurocurrency Loans, equals the ratio which each Bank’s Commitment (determined, for the New Bank, in accordance with clause (i) hereof) bears to all of the Commitments (determined, for the New Bank, in accordance with the immediately foregoing parenthetical);]
[(C)] [Funding of outstanding Bid Loans of Cancelled Banks]*
[(D)] [Funding of outstanding Negotiated Rate Loans of Cancelled Banks].*
3. Representation and Warranty of Borrowers. The Borrowers hereby represent and warrant that after giving effect to the provisions of paragraph 2 hereof the aggregate principal amount of the Commitments of all Banks (including, without limitation, the Commitment of the New Bank but excluding the cancelled or expired portion of the Commitments of the Cancelled Banks) under the Credit Agreement do not exceed the aggregate principal amount of the Commitments in effect immediately prior to the cancellation referred to in the third recital hereof.
4. Confidentiality. The New Bank agrees to [continue to] be bound by the provisions of subsection 10.7 of the Credit Agreement.
[5. Taxes. The New Bank (i) represents to the Administrative Agent and the Borrowers that [it is incorporated under the laws of the United States or a state thereof][under applicable law and treaties no taxes will be required to be withheld by the Administrative Agent or the Borrowers with respect to any payments to be made to such New Bank in respect of the Loans], (ii) represents that it has furnished to the Administrative Agent and the Borrowers (A) [a statement that it is incorporated under the laws of the United States or a state thereof][a letter in duplicate in the form of Exhibit [J][K] to the Credit Agreement and two duly completed copies of United States Internal Revenue Service Form [W-8BEN-E] [W-8ECI] [successor applicable form], certifying that such New Bank is entitled to receive payments under the Credit Agreement without deduction or withholding of any United States federal income taxes], and (B) [an Internal Revenue Service Form [W-8BEN-E] [successor applicable form] to establish an exemption from United States backup withholding tax, and (iii) agrees to provide the Administrative Agent and the Borrowers a new Form [W-8BEN-E] and Form [W-8ECI], or successor applicable form or other manner of certification, on or before the date that any such letter or form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent letter and form
* |
To be completed upon agreement of Borrowers and New Bank. |
L-4
previously delivered by it, certifying in the case of a Form [W-8BEN-E] [W-8ECI] that it is entitled to receive payments under the Credit Agreement without deduction or withholding of any United States federal income tax, and in the case of a Form [W-8BEN-E] establishing exemption from United States backup withholding tax.]*
[5][6]. Miscellaneous. (a) This Agreement may be executed by the parties hereto in separate counterparts and all of the counterparts taken together shall constitute one and the same instrument and shall be effective only upon receipt by the Administrative Agent of all of the counterparts.
(b) This Agreement shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
* |
Use for non-Existing Banks. |
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered as of the day and year first above written.
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
JOHN DEERE BANK S.A.
By:
Title:
[NAME OF NEW BANK]
By:
Title:
[Address]
Telephone:
Facsimile:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By:
Title:
EXHIBIT M
[FORM OF BID LOAN OR NEGOTIATED RATE LOAN NOTE]
PROMISSORY NOTE
$__________New York, New York___________ __, 20__
FOR VALUE RECEIVED, the undersigned, [DEERE & COMPANY] [JOHN DEERE CAPITAL CORPORATION], a Delaware corporation (the “Borrower”), hereby promises to pay on [insert maturity date or dates] to ________________ or registered assigns (the “Bank”) at the office of [JPMorgan Chase Bank, N.A. located at 383 Madison Avenue, New York, New York 10179 -- for Bid Loan Note] [Name and address of Bank -- for Negotiated Rate Loan Note], in lawful money of [the United States of America] and in immediately available funds, the principal sum of ______________[DOLLARS ($____________)]. The undersigned further agrees to pay interest in like money at such office on the unpaid principal amount hereof from time to time from the date hereof [at the rate of ___% per annum -- for Bid Loan Note] [specify rate for Negotiated Rate Loan Note] (calculated on the basis of a year of 360 days and actual days elapsed) until the due date hereof (whether at the stated maturity, by acceleration, or otherwise) and thereafter at the rates determined or agreed in accordance with subsection 2.2(e) of the $2,500,000,000 2026 Credit Agreement, dated as of March 29, 2021 (the “Credit Agreement”), among the Borrower, [Deere & Company] [John Deere Capital Corporation], John Deere Bank S.A., the Bank, the other financial institutions parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Interest shall be payable on _______________. This Note may be prepaid pursuant to the provisions of subsection 2.6 of the Credit Agreement.
This Note is one of the [Bid] [Negotiated Rate Loan] Notes referred to in, is subject to and is entitled to the benefits of, the Credit Agreement, which Credit Agreement, among other things, contains provisions for acceleration of the maturity hereof upon the occurrence of any one or more of the Events of Default specified in the Credit Agreement.
Terms defined in the Credit Agreement are used herein with their defined meanings unless otherwise defined herein. This Note shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
EXHIBIT N
FORM OF
NEW BANK SUPPLEMENT
SUPPLEMENT, dated _______ __, to the $2,500,000,000 2026 Credit Agreement (as in effect on the date hereof, the “Credit Agreement”) dated as of March 29, 2021, among Deere & Company (the “Company”), John Deere Capital Corporation, John Deere Bank S.A., the banks and other financial institutions from time to time party thereto (each a “Bank,” and together, the “Banks”), JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”) for the Banks, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Unless the context otherwise requires, all capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Credit Agreement provides in subsection 2.20 thereof that any bank or financial institution, although not originally a party thereto, may become a party to the Credit Agreement in accordance with the terms thereof by executing and delivering to the Borrowers and the Administrative Agent a supplement to the Credit Agreement in substantially the form of this New Bank Supplement; and
WHEREAS, the undersigned was not an original party to the Credit Agreement but now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
The undersigned agrees to be bound by the provisions of the Credit Agreement and agrees that it shall, on the date this New Bank Supplement is accepted by the Borrowers and the Administrative Agent, become a Bank for all purposes of the Credit Agreement to the same extent as if originally a party thereto, with a Commitment of $__________________.
The undersigned (a) represents and warrants that it is legally authorized to enter into this New Bank Supplement; (b) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements delivered pursuant to Section 5.1 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this New Bank Supplement; (c) agrees that it has made and will, independently and without reliance upon any Agent or any other Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement or any instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes the Administrative Agent to take such action as administrative agent on its behalf and to exercise such powers and discretion under the Credit Agreement or any instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms thereof, together with such powers as are incidental thereto; and (e) agrees that it will be bound by the provisions of the Credit Agreement and will perform in accordance with its terms all the obligations which by the terms of the Credit Agreement are required to be performed by it as a Bank including, without limitation, its obligation pursuant to subsection 2.17(c), subsection 2.17(d) and subsection 2.17(e) of the Credit Agreement.
N-2
The undersigned’s address for notices for the purposes of the Credit Agreement is as follows:
_______________________
Attention:_______________
_______________________
_______________________
Fax:____________________
N-3
IN WITNESS WHEREOF, the undersigned has caused this New Bank Supplement to be executed and delivered by a duly authorized officer on the date first above written.
[NAME OF NEW BANK]
By:
Title:
Accepted this _____ day of
______________, 20__
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
JOHN DEERE BANK S.A.
By:
Title:
Accepted this _____ day of
______________, 20__
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:
Title:
EXHIBIT O
FORM OF
COMMITMENT INCREASE SUPPLEMENT
SUPPLEMENT, dated _______ 20__, to the $2,500,000,000 2026 Credit Agreement (as in effect on the date hereof, the “Credit Agreement”) dated as of March 29, 2021, among Deere & Company (the “Company”), John Deere Capital Corporation, John Deere Bank S.A., the banks and other financial institutions from time to time party thereto (each a “Bank,” and together, the “Banks”), JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”), Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Unless the context otherwise requires, all capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the provisions of subsection 2.20 of the Credit Agreement, the undersigned may increase the amount of its Commitment in accordance with the terms thereof by executing and delivering to the Borrowers and the Administrative Agent a supplement to the Credit Agreement in substantially the form of this Supplement; and
WHEREAS, the undersigned now desires to increase the amount of its Commitment under the Credit Agreement;
NOW THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and conditions of the Credit Agreement, that on the date this Supplement is accepted by the Borrowers and the Administrative Agent it shall have its Commitment increased by $______________, thereby making the amount of its Commitment $______________.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be executed and delivered by a duly authorized officer on the date first above written.
[NAME OF BANK]
By:
Title:
Accepted this _____ day of
______________, 20__
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
JOHN DEERE BANK S.A.
By:
Title:
Accepted this _____ day of
______________, 20__
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:
Title:
EXHIBIT P-1
FORM OF
Certificate of Non-Bank Status
(For Foreign Banks that Are not Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $2,500,000,000 2026 Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code and (v) the interest payments in question are not effectively connected with the undersigned’s conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrowers with a certificate of its non-U.S. Person status on IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF BANK]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
EXHIBIT P-2
FORM OF
Certificate of Non-Bank Status
(For Foreign Banks that Are Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $2,500,000,000 2026 Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Agreement, neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively connected with the undersigned's or its partners/members’ conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrowers with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF BANK]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
EXHIBIT P-3
FORM OF
Certificate of Non-Bank Status
(For Non-U.S. Participants that Are not Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $2,500,000,000 2026 Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (v) the interest payments in question are not effectively connected with the undersigned's conduct of a U.S. trade or business.
The undersigned has furnished its participating Bank with a certificate of its non-U.S. Person status on IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Bank in writing and (2) the undersigned shall have at all times furnished such Bank with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF PARTICIPANT]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
FORM OF
Certificate of Non-Bank Status
(For Non-U.S. Participants that Are Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $2,500,000,000 2026 Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively connected with the undersigned's or its partners/members' conduct of a U.S. trade or business.
The undersigned has furnished its participating Bank with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or Form W-8BEN-E from each of its partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Bank and (2) the undersigned shall have at all times furnished such Bank with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF PARTICIPANT]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
Exhibit 10.15
EXECUTION VERSION
This First Amendment, dated as of October 15, 2021 (this “Amendment”), to the 364-Day Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”), among (a) DEERE & COMPANY, a Delaware corporation (the “Company”), (b) JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “Capital Corporation”), (c) JOHN DEERE BANK S.A., a Luxembourg société anonyme (“JD Luxembourg”, together with the Company and the Capital Corporation, the “Borrowers”), (d) the several financial institutions parties thereto (the “Banks”), (e) JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, together with its successors and permitted assigns, the “Administrative Agent”), (f) CITIBANK, N.A., as documentation agent and (g) BANK OF AMERICA, N.A., as syndication agent.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Banks and the Administrative Agent are parties to the Existing Credit Agreement and the Borrowers have requested that the Existing Credit Agreement be amended as set forth herein (the Existing Credit Agreement, as so amended, the “Credit Agreement”);
WHEREAS, an Early Opt-in Election in respect of Pounds Sterling has occurred as a result of (i) a determination by the Company that at least five currently outstanding syndicated credit facilities documented in Pounds Sterling contain a new benchmark interest rate to replace the Relevant Rate in respect of Pounds Sterling and (ii) the joint election by the Administrative Agent and the Company to declare that an Early Opt-in Election has occurred with respect to Loans denominated in Pounds Sterling and the provision by the Administrative Agent and the Company of written notice of such election to the Banks;
WHEREAS, the Company and the Administrative Agent desire to amend the Existing Credit Agreement to reflect the Benchmark Replacement with respect to Loans denominated in Pounds Sterling, in accordance with clause (3) of the definition of “Benchmark Replacement”;
NOW, THEREFORE, in consideration of the premises contained herein, the parties hereto agree as follows:
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
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DEERE & COMPANY
By:/s/ Andrew M. Recker
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JOHN DEERE CAPITAL CORPORATION
By:/s/ Andrew M. Recker
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JOHN DEERE BANK S.A.
By:/s/ Andrew Traeger
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By:/s/ Jeffrey A Trahan
Name: Jeffrey A Trahan
Title: VP & Treasurer
[Signature Page to First Amendment to Deere 364-Day Credit Agreement]
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:/s/ Sean Bodkin
Name: Sean Bodkin
Title: Vice President
[Signature Page to First Amendment to Deere 364-Day Credit Agreement]
Exhibit A
AMENDED CREDIT AGREEMENT
[See attached]
DEERE & COMPANY
JOHN DEERE CAPITAL CORPORATION
JOHN DEERE BANK S.A.
________________________________________
$3,000,000,000
364-DAY
CREDIT AGREEMENT1
Dated as of March 29, 2021
________________________________________
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
CITIBANK, N.A.,
as Documentation Agent
BANK OF AMERICA, N.A.,
as Syndication Agent
________________________________________
JPMORGAN CHASE BANK, N.A. and BOFA SECURITIES, INC.,
as Lead Arrangers and Bookrunners
1 Conformed version reflects the First Amendment dated as of October 15, 2021.
Page
SECTION 1.DEFINITIONS1
1.1Defined Terms1
1.2Other Definitional Provisions26
1.3Currency Conversion26
1.4Interest Rates; LIBOR Notification26
SECTION 2.THE COMMITTED RATE LOANS; THE BID LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS27
2.1The Committed Rate Loans27
2.2The Bid Loans; the Negotiated Rate Loans28
2.3Loan Accounts32
2.4Fees32
2.5Termination or Reduction of Commitments; Cancellation of Capital Corporation or JD Luxembourg as Borrower32
2.6Prepayments33
2.7Minimum Amount of Certain Loans34
2.8Committed Rate Loan Interest Rate and Payment Dates34
2.9Conversion and Continuation Options35
2.10Computation of Interest and Fees35
2.11Inability to Determine Interest Rate35
2.12Pro Rata Treatment and Payments38
2.13Requirements of Law40
2.14Indemnity44
2.15Non-Receipt of Funds by the Administrative Agent44
2.16Extension of Termination Date45
2.17Indemnified Taxes46
2.18Confirmations49
2.19Replacement of Cancelled Banks49
2.20Commitment Increases49
2.21[Reserved]51
2.22[Reserved]51
2.23Defaulting Banks51
2.24Judgment Currency52
2.25Foreign Currency Exchange Rate52
2.26[Reserved].52
2.27Capital Corporation Guaranty52
SECTION 3.REPRESENTATIONS AND WARRANTIES54
3.1Financial Condition54
3.2Corporate Existence54
3.3Corporate Power; Authorization; Enforceable Obligations54
3.4No Legal Bar55
3.5No Material Litigation55
3.6Taxes55
3.7Margin Regulations55
3.8Use of Proceeds55
3.9Sanctions Laws and Regulations55
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3.10Beneficial Ownership Certification55
SECTION 4.CONDITIONS PRECEDENT56
4.1Conditions to Initial Loan56
4.2Conditions to All Loans57
SECTION 5.AFFIRMATIVE COVENANTS57
5.1Financial Statements58
5.2Certificates; Other Information58
5.3Company Indenture Documents59
5.4Capital Corporation Indenture Documents59
5.5Notice of Default59
5.6Ownership of Capital Corporation and JD Luxembourg Stock59
5.7Employee Benefit Plans59
5.8Compliance59
SECTION 6.NEGATIVE COVENANTS OF THE COMPANY60
6.1Company May Consolidate, etc., Only on Certain Terms60
6.2Limitation on Liens60
6.3Limitations on Sale and Lease-back Transactions63
6.4Equipment Operations Debt63
SECTION 7.NEGATIVE COVENANTS OF THE CAPITAL CORPORATION63
7.1Fixed Charges Ratio64
7.2Consolidated Senior Debt to Consolidated Capital Base64
7.3Limitation on Liens64
7.4Consolidation; Merger65
SECTION 8.EVENTS OF DEFAULT65
SECTION 9.THE AGENTS67
9.1Appointment67
9.2Delegation of Duties68
9.3Exculpatory Provisions68
9.4Reliance by Agents68
9.5Notice of Default70
9.6Non-Reliance on Agents and Other Banks70
9.7Indemnification70
9.8Agents in their Individual Capacities71
9.9Successor Agents71
SECTION 10.MISCELLANEOUS71
10.1Amendments and Waivers71
10.2Notices72
10.3No Waiver; Cumulative Remedies73
10.4Payment of Expenses74
10.5Successors and Assigns; Participations; Purchasing Banks75
10.6Adjustments79
10.7Confidentiality79
10.8Counterparts80
10.9GOVERNING LAW81
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10.10Consent to Jurisdiction and Service of Process81
10.11WAIVERS OF JURY TRIAL81
10.12USA Patriot Act81
10.13No Fiduciary Duty82
10.14Headings82
10.15Acknowledgment and Consent to Bail-In of Affected Financial Institutions82
10.16Bank ERISA Representations83
SCHEDULES:
Schedule ITerms of Subordination
Schedule IICommitments
EXHIBITS:
Exhibit AForm of Borrowing Notice
Exhibit BForm of Bid Loan Request
Exhibit CForm of Bid Loan Offer
Exhibit DForm of Bid Loan Confirmation
Exhibit EForm of Assignment and Assumption
Exhibit F[Reserved]
Exhibit GForm of Opinion of General Counsel to the Company
Exhibit HForm of Opinion of Special New York Counsel to the Borrowers
Exhibit IForm of Extension Request
Exhibit JForm of Form W-8BEN-E Tax Letter
Exhibit KForm of Form W-8ECI Tax Letter
Exhibit LForm of Replacement Bank Agreement
Exhibit MForm of Promissory Note
Exhibit NForm of New Bank Supplement
Exhibit OForm of Commitment Increase Supplement
Exhibit PForm of Certificate of Non-Bank Status
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CREDIT AGREEMENT, dated as of March 29, 2021, among (a) DEERE & COMPANY, a Delaware corporation (the “Company”), (b) JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “Capital Corporation”), (c) JOHN DEERE BANK S.A., a Luxembourg société anonyme (“JD Luxembourg”), (d) the several financial institutions parties hereto (collectively, the “Banks”, and individually, a “Bank”), (e) JPMORGAN CHASE BANK, N.A., as administrative agent hereunder (in such capacity, together with its successors and permitted assigns, the “Administrative Agent”), (f) CITIBANK, N.A., as documentation agent hereunder (in such capacity, the “Documentation Agent”), and (g) BANK OF AMERICA, N.A., as syndication agent hereunder (in such capacity, the “Syndication Agent”).
The parties hereto hereby agree as follows:
SECTION 1. | DEFINITIONS |
“ABR”: at any particular date, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) 0.5% per annum above the NYFRB Rate and (c) the Eurocurrency Rate for a Eurocurrency Loan denominated in Dollars with one-month Interest Period commencing on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1% (provided that, for the avoidance of doubt, such Eurocurrency Rate for any date shall be based on the LIBOR Screen Rate (or if the LIBOR Screen Rate is not available for such one-month Interest Period, the LIBOR Interpolated Rate)). Any change in ABR due to a change in the Prime Rate, the NYFRB Rate or the Eurocurrency Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Eurocurrency Rate, respectively. If the ABR is being used as an alternate rate of interest pursuant to subsection 2.11 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to subsection 2.11(b)), then the ABR shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.
“ABR Loans”: Committed Rate Loans at such time as they are made and/or being maintained at a rate of interest based upon the ABR.
“Absolute Rate Bid Loan”: any Bid Loan made pursuant to an Absolute Rate Bid Loan Request.
“Absolute Rate Bid Loan Request”: any Bid Loan Request requesting the Banks to offer to make Bid Loans at an absolute rate (as opposed to a rate composed of the Applicable Index Rate plus (or minus) a margin).
“Act”: as defined in subsection 10.12.
“Adjusted Daily Simple SONIA”: an interest rate per annum equal to (a) Daily Simple SONIA, plus (b) 0.0326%; provided that if Adjusted Daily Simple SONIA as so determined would be less than 0.0%, such rate shall be deemed to be equal to 0.0% for the purposes of this Agreement.
“Administrative Agent”: as defined in the preamble hereto. It is understood that matters concerning the Foreign Currency Loans will be administered by the Foreign Currency Agent as agent for the Administrative Agent.
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“Administrative Questionnaire”: an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Foreign Currency”: as defined in subsection 2.11(a).
“Agent”: the Administrative Agent, the Foreign Currency Agent, the Syndication Agent, or the Documentation Agent, as the context shall require; together, the “Agents”.
“Agreement”: this Credit Agreement, as amended by the First Amendment and as further amended, supplemented or modified from time to time.
“Agreement Currency”: as defined in subsection 2.24(b).
“Ancillary Document”: as defined in subsection 10.8.
“Anti-Corruption Laws”: all laws, rules and regulations of any jurisdiction applicable to the Borrowers and their Subsidiaries from time to time concerning or relating to bribery or corruption.
“Applicable Creditor”: as defined in subsection 2.24(b).
“Applicable Index Rate”: in respect of any Bid Loan requested pursuant to an Index Rate Bid Loan Request, the Eurocurrency Rate applicable to the Interest Period for such Bid Loan.
“Applicable Margin”: (a) with respect to ABR Loans, the rate per annum set forth below for ABR Loans in the column corresponding to the Prevailing Rating of the Company and, (b) with respect to Eurocurrency Loans, the rate per annum set forth below for Eurocurrency Loans in the column corresponding to the Prevailing Rating of the Company and (c) with respect to SONIA Loans, the rate per annum set forth below for SONIA Loans in the column corresponding to the Prevailing Rating of the Company:
“Attributable Debt”: as defined in subsection 6.2(b)(ii).
“Australian Dollars”: the lawful currency of Australia.
“Available Commitment”: as to any Bank at any time, an amount equal to the excess, if any, of (a) such Bank’s Commitment then in effect over (b) such Bank’s Loans then outstanding.
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“Available Tenor”: as of any date of determination and with respect to the then-current Benchmark in respect of Loans denominated in such Currency, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period with respect to Loans denominated in the applicable Currency pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (f) of subsection 2.11.
“Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation”: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank” and “Banks”: as defined in the preamble hereto.
“Benchmark”: initially, with respect to aany (i) SONIA Loan, Adjusted Daily Simple SONIA or (ii) Eurocurrency Loan denominated in any Currency, the Relevant Rate for such Currency; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to the Relevant Rate or the then-current Benchmark with respect to Loans denominated in such Currency, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) or clause (c) of subsection 2.11.
“Benchmark Replacement”: for any Available Tenor with respect to Loans denominated in any Currency, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in a Foreign Currency, “Benchmark Replacement” shall mean the alternative set forth in (3) below:
(1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;
(2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;
(3) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Company as the replacement for the then-current Benchmark for the applicable Corresponding Tenor with respect to Loans denominated in such Currency giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body and/or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated in the applicable Currency at such time and (b) the related Benchmark Replacement Adjustment;
provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen
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or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; provided further that, solely with respect to a Loan denominated in Dollars, notwithstanding anything to the contrary in this Agreement or in any other Loan Document, to the extent that a Term SOFR Transition Event has occurred, and a Term SOFR Notice has been delivered, on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).
If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment”: with respect to any replacement of the then-current Benchmark with respect to Loans denominated in any Currency with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
(1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:
(a) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor; and
(b) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and
(2) for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Company for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Currency at such time;
provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.
“Benchmark Replacement Conforming Changes”: with respect to any Benchmark Replacement in respect of Loans denominated in any Currency, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “SONIA Business Day,” the definition of “Interest Period,” timing and frequency of
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determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides in its reasonable discretion (in consultation with the Company) may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides in its reasonable discretion that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent reasonably determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent determines (in consultation with the Company) is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date”: with respect to the Benchmark for any Loan denominated in any Currency, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein; or
(3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Banks and the Company pursuant to Section 2.11(c); or
(4) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Banks, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Banks, written notice of objection to such Early Opt-in Election from Banks comprising the Majority Banks.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event”: with respect to the Benchmark for any Loan denominated in any Currency, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or
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publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period”: with respect to the Benchmark for any Loan denominated in any Currency, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with subsection 2.11 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with subsection 2.11.
“Beneficial Ownership Certification”: a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230.
“benefitted Bank”: as defined in subsection 10.6.
“Bid Loan”: each loan (other than Negotiated Rate Loans) made pursuant to subsection 2.2; the aggregate amount advanced by a Bid Loan Bank pursuant to subsection 2.2 on each Borrowing Date shall constitute one Bid Loan, or more than one Bid Loan if so specified by the relevant Loan Assignee in its request for promissory notes pursuant to subsection 10.5(c).
“Bid Loan Banks”: the collective reference to each Bank designated from time to time as a Bid Loan Bank by the Company or the Capital Corporation (for purposes of Bid Loans to such Borrower) by written notice to the Administrative Agent and which has not been removed as a Bid Loan Bank by such Borrower by written notice to the Administrative Agent (each of which notices the Administrative Agent shall transmit to each such affected Bank).
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“Bid Loan Confirmation”: each confirmation by the Company or the Capital Corporation of its acceptance of Bid Loan Offers, which Bid Loan Confirmation shall be substantially in the form of Exhibit D and shall be delivered to the Administrative Agent by facsimile transmission or by telephone, immediately confirmed by facsimile transmission.
“Bid Loan Offer”: each offer by a Bid Loan Bank to make Bid Loans pursuant to a Bid Loan Request, which Bid Loan Offer shall contain the information specified in Exhibit C and shall be delivered to the Administrative Agent by facsimile transmission or by telephone, immediately confirmed by facsimile transmission.
“Bid Loan Request”: each request by the Company or the Capital Corporation for Bid Loan Banks to submit bids to make Bid Loans, which shall contain the information in respect of such requested Bid Loans specified in Exhibit B and shall be delivered to the Administrative Agent by facsimile transmission or by telephone, immediately confirmed by facsimile transmission.
“Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Borrower”: the Company, the Capital Corporation or JD Luxembourg; collectively, the “Borrowers”.
“Borrowing Date”: in respect of any Loan, the date such Loan is made.
“Business Day”: a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; provided, that (a) with respect to notices and determinations in connection with, and payments of principal and interest on, Eurocurrency Loans, such day is also a day for trading by and between banks in Dollar deposits in the interbank eurocurrency market in London, (b) when used in connection with a Foreign Currency Loan, a SONIA Loan or any other dealings in Pounds Sterling (in each case, other than in connection with any calculation or determination of interest rate in respect of a SONIA Loan), the term “Business Day” shall also exclude any day on which commercial banks in London are authorized or required by law to close and any day on which banks are authorized or required by law to be closed in the principal financial center for that currency and, (c) in relation to any calculation or determination of interest rate in respect of a SONIA Loan, “Business Day” shall mean a SONIA Business Day and (d) when used in connection with Eurocurrency Loans denominated in Euros, the term “Business Day” shall also exclude any day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer System (TARGET) (or, if such clearing system ceases to be operative, such other clearing system (if any) determined by the Foreign Currency Agent to be a suitable replacement) is not open for settlement of payment in Euros.
“Calculation Date”: with respect to each Foreign Currency, the last day of each calendar quarter (or, if such day is not a Business Day, the next succeeding Business Day) and such other days from time to time as the Administrative Agent shall reasonably designate as a “Calculation Date”; provided, that the second Business Day preceding each Borrowing Date with respect to, and preceding each date of any borrowing, conversion or continuation of, any Foreign Currency Loan shall also be a “Calculation Date” with respect to the relevant Foreign Currency.; provided further that with respect to any SONIA Loan, each date that is on the numerically corresponding day in each calendar month that is one month after the borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month) shall also be a “Calculation Date”.
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“Calendar Quarter”: a three-month period consisting of (i) each January, February and March, (ii) each April, May and June, (iii) each July, August and September or (iv) each October, November and December.
“Canadian Dollars”: the lawful currency of Canada.
“Cancelled Bank”: (i) any Bank that has the whole or any part of its Commitment cancelled under subsection 2.13(a), (b) or (c), subsection 2.16(c) or subsection 2.17(b) or the Commitment of which has expired under subsection 2.16(a) and (ii) any Defaulting Bank that the Company designates in writing to such Bank and the Administrative Agent as a Cancelled Bank.
“Capital Corporation”: as defined in the preamble hereto.
“CBR Loan”: a Loan that bears interest at a rate determined by reference to the Central Bank Rate.
“CBR Spread”: the Applicable Margin, applicable to such Loan that is replaced by a CBR Loan.
“Central Bank Rate”: (a) the greater of (i) for any Loan denominated in Pounds Sterling, the Bank of England (or any successor thereto)’s “Bank Rate” as published by the Bank of England (or any successor thereto) from time to time and (ii) 0.00%; plus (b) the applicable Central Bank Rate Adjustment.
“Central Bank Rate Adjustment”: for any day, for any Loan denominated in Pounds Sterling, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of Adjusted Daily Simple SONIA for the five most recent SONIA Business Days preceding such day for which SONIA was available (excluding, from such averaging, the highest and the lowest Adjusted Daily Simple SONIA applicable during such period of five SONIA Business Days) minus (ii) the Central Bank Rate in respect of Pounds Sterling in effect on the last SONIA Business Day in such period. For purposes of this definition, the term Central Bank Rate shall be determined disregarding clause (b) of the definition of such term.
“Certificate of Non-Bank Status”: a certificate substantially in the form and substance of Exhibit P.
“Closing Date”: the date on which each of the conditions precedent specified in subsection 4.1 shall have been satisfied (or compliance therewith shall have been waived by the Majority Banks hereunder).
“Code”: the Internal Revenue Code of 1986, as amended from time to time.
“Code of Conduct”: as defined in subsection 3.9.
“Commitment”: as to any Bank, the amount set opposite such Bank’s name on Schedule II or in any assignment pursuant to which such Bank becomes a party hereto with respect to any interest purchased therein, as such amount may be modified as provided herein; collectively, as to all Banks, the “Commitments”.
“Commitment Expiration Date”: as defined in subsection 2.16(a).
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“Commitment Fee Rate”: the rate per annum set forth below in the column corresponding to the Prevailing Rating of the Company:
Level I Rating |
Level II Rating |
Level III Rating |
Level IV Rating |
Level V Rating |
0.03% |
0.035% |
0.04% |
0.06% |
0.10% |
“Commitment Increase Notice”: as defined in subsection 2.20(a).
“Commitment Increase Supplement”: as defined in subsection 2.20(c).
“Commitment Percentage”: as to any Bank at any time, the percentage which such Bank’s Commitment at such time constitutes of all the Commitments at such time or, at any time after the Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Bank’s Loans then outstanding constitutes of the aggregate principal amount of all Loans then outstanding; collectively, as to all the Banks, the “Commitment Percentages”; provided that when a Defaulting Bank shall exist, “Commitment Percentage” shall mean, when appropriate as determined by the Administrative Agent in order to provide ratable treatment at any time a Defaulting Bank exists (and without increasing the Commitment of any Bank), the percentage of the total Commitments (disregarding any Defaulting Bank’s Commitment) represented by such Bank’s Commitment.
“Commitment Period”: as to any Bank at any time, the period from and including the Closing Date to but not including the Termination Date of such Bank or such earlier date on which the Commitments shall terminate as provided herein.
“Committed Rate Loans”: each loan made pursuant to subsection 2.1.
“Commonly Controlled Entity”: in relation to a Borrower, an entity, whether or not incorporated, which is under common control with such Borrower within the meaning of Section 414(b) or (c) of the Code.
“Company”: as defined in the preamble hereto.
“Consolidated Capital Base”: at a particular time for the Capital Corporation and its consolidated Subsidiaries, the sum of (a) the amount shown opposite the item “Total Stockholders’ Equity” on the consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries plus (b) all indebtedness of the Capital Corporation and its consolidated Subsidiaries for borrowed money subordinated (on terms no less favorable to the Administrative Agent and the Banks than the terms of subordination set forth on Schedule I) to the indebtedness which may be incurred hereunder by the Capital Corporation, provided that the sum of clauses (a) and (b) hereof as at the end of a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly available consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries as at the end of such fiscal quarter and after such adjustments, if any, as may be required so that the sum of the amounts referred to in clauses (a) and (b) is determined in accordance with GAAP. Notwithstanding the foregoing, for purposes of determining compliance with subsection 7.2, adjustments resulting from any accumulated other comprehensive income as reflected on the most recent publicly available consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries as at the end of any fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of any
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fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be deemed not to be included in Consolidated Capital Base.
“Consolidated Net Worth”: as defined in subsection 6.2(b)(ii).
“Consolidated Senior Debt”: at a particular time for the Capital Corporation and its consolidated Subsidiaries, indebtedness for borrowed money other than any indebtedness for borrowed money that is subordinated, on terms no less favorable to the Administrative Agent and the Banks than the terms of subordination set forth on Schedule I, to the indebtedness which may be incurred hereunder by the Capital Corporation, provided that the amount of such indebtedness for borrowed money (other than such subordinated indebtedness) as at the end of a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly available consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries as at the end of such fiscal quarter and after such adjustments, if any, as may be required so that such amount is determined in accordance with GAAP. Notwithstanding the foregoing, for purposes of determining compliance with subsection 7.2, indebtedness for borrowed money in respect of any Securitization Indebtedness shall be deemed not included in Consolidated Senior Debt.
“Contractual Obligation”: as to any Person, any provision of any security issued by such Person or of any agreement, instrument or undertaking to which such Person is a party or by which it or any of its property is bound.
“Corresponding Tenor”: with respect to any Available Tenor, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Credit Rating”: as of any date, (a) as to any Person, the rating assigned to the relevant long term senior unsecured (and non-credit enhanced) Debt obligations of such Person by Moody’s, S&P or Fitch, in each case as of the close of business on such date and (b) if no rating for such Debt described in clause (a) is available, the corporate credit rating of such Person as announced by Moody’s, S&P or Fitch, in each case as of the close of business on such date.
“Currency”: any Dollars and any Foreign Currency.
“Daily Simple SOFR”: for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided that, if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Daily Simple SONIA”: for any day (a “SONIA Interest Day”), an interest rate per annum equal to (a) SONIA for the day that is five SONIA Business Days (such fifth SONIA Business Day determined pursuant to each of subclauses (i) and (ii), the “SONIA Lookback Day”) prior to (i) if such SONIA Interest Day is a SONIA Business Day, such SONIA Interest Day or (ii) if such SONIA Interest Day is not a SONIA Business Day, the SONIA Business Day immediately preceding such SONIA Interest Day or (b) if SONIA is not available for the SONIA Lookback Day determined pursuant to clause (a) above, by 5:00 p.m., London time on any day of determination of Daily Simple SONIA, then Daily Simple SONIA for such day will be SONIA as published in respect of the first preceding SONIA Business Day prior to the SONIA Lookback Day for which SONIA was published on the SONIA
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Administrator’s Website; provided that Daily Simple SONIA determined pursuant to this clause (b) shall be utilized for purposes of calculation of Daily Simple SONIA for no more than three consecutive SONIA Interest Days and thereafter subsection 2.11(a) shall govern. Any change in Daily Simple SONIA due to a change in SONIA shall be effective from and including the effective date of such change in SONIA without notice to the Borrower.
“Deal Year”: as defined in subsection 2.16(c).
“Debt”: as defined in subsection 6.2.
“Default”: any of the events specified in Section 8, whether or not any requirement for the giving of notice, the lapse of time, or both, or any other condition, event or act has been satisfied.
“Defaulting Bank”: any Bank that has (a) failed to fund any portion of its Loans within two Business Days of the date required to be funded by it hereunder, unless such Bank has notified the Administrative Agent and the Borrower that such failure is the result of such Bank’s good faith determination that one or more conditions precedent to funding has not been satisfied; (b) notified the Company, the Administrative Agent, any Bank in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or generally under other agreements in which it commits to extend credit; (c) failed, within three Business Days after written request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans; provided that such Bank shall cease to be a Defaulting Bank pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower; (d) otherwise failed to pay over to the Administrative Agent or any other Bank any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute; or (e) (i) become or is insolvent or has a parent company that has become or is insolvent, (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or (iii) become or has a parent company that has become the subject of a Bail-In Action; provided that a Bank shall not be a Defaulting Bank solely by virtue of the ownership or acquisition of any equity interest in that Bank or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Bank with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Bank (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Bank. If any Bank shall become a Defaulting Bank, the Company shall have the right, so long as no Event of Default has occurred and is then continuing, upon giving written notice to the Administrative Agent and such Bank in accordance with subsection 2.6, notwithstanding subsection 2.12(b), to prepay in full the Loans of such Bank, together with accrued interest thereon, any amounts payable to such Bank pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid commitment fee or other amount payable to such Bank hereunder and/or, upon giving not less than three Business Days’ notice to such Bank and the Administrative Agent, to cancel the whole or part of the Commitment of any such Bank.
“Designated Person”: a Person
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(i) listed in the annex to, or otherwise the subject of the provisions of, any Executive Order;
(ii) named as a “Specially Designated National and Blocked Person” on the most current list published by OFAC at its official website or any replacement website or other replacement official publication of such list (each, an “SDN”), or is otherwise the subject of any Sanctions Laws and Regulations; or
(iii) in which an SDN has a controlling interest of 50% or greater ownership interest.
“Dividing Person”: as defined in the definition of Division.
“Division”: the statutory division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement) pursuant to Section 18-217 of the Delaware Limited Liability Company Act, which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Division Successor”: any person that, upon the consummation of a Division of a Dividing Person, holds all or substantially all of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of such Division.
“Documentation Agent”: as defined in the preamble hereto.
“Dollar Equivalent”: at any time as to any amount denominated in a Foreign Currency, the equivalent amount in Dollars as reasonably determined by the Administrative Agent at such time on the basis of the Exchange Rate for the purchase of Dollars with such Foreign Currency on (a) in the case of a determination made pursuant to subsection 2.11(g), the date of such conversion and (b) in the case of any other determination, the most recent Calculation Date for such Foreign Currency.
“Dollar Loan”: any Committed Rate Loan denominated in Dollars.
“Dollars” and “$”: dollars in lawful currency of the United States of America.
“Domestic Bank”: any Bank organized under the laws of the United States of America, any State thereof or the District of Columbia.
“Early Opt-in Election”:
(a) in the case of Loans denominated in Dollars, the occurrence of:
(1) a notification by the Administrative Agent to (or the request by the Company to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2) the joint election by the Administrative Agent and the Company to trigger a fallback from the Eurocurrency Rate for Loans denominated in Dollars and the provision by the Administrative Agent of written notice of such election to the Banks; and
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(b) in the case of Loans denominated in any Foreign Currency, the occurrence of:
(1) (i) a determination by the Administrative Agent or the Company (as notified to the Administrative Agent) or (ii) a notification by the Majority Banks to the Administrative Agent (with a copy to the Borrowers) that the Majority Banks have determined that at least five currently outstanding syndicated credit facilities denominated in the applicable Foreign Currency at such time contain (as a result of an amendment or as originally executed) a new benchmark interest rate to replace the Relevant Rate (and such syndicated credit facilities are identified in such notice and are publicly available for review); and
(2) (i) the joint election by the Administrative Agent and the Company or (ii) the election by the Majority Banks to declare that an Early Opt-in Election has occurred with respect to Loans denominated in such applicable Foreign Currency and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrowers and the Banks, by the Company of written notice of such election to the Administrative Agent or by the Majority Banks of written notice of such election to the Administrative Agent.
“EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”: any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Signature”: an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“EMU”: the Economic and Monetary Union as contemplated in the Treaty.
“Equipment Operations”: those business segments of the Company and its consolidated Subsidiaries that are primarily engaged in the manufacture and distribution of equipment, parts and related attachments.
“Equipment Operations Debt”: at a particular time, the sum of short-term and long-term indebtedness for borrowed money that is or would be shown on a balance sheet of Equipment Operations (with Financial Services reflected only on an equity basis), which balance sheet was or would be prepared on the basis of the most recent publicly available consolidated balance sheet of the Company and its consolidated Subsidiaries as at the end of any fiscal quarter of the Company and its consolidated Subsidiaries (including the last quarter of any fiscal year of the Company and its consolidated Subsidiaries).
“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time.
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“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Euro”: the single currency of Participating Member States of the EMU introduced in accordance with the provisions of Article 123 of the Treaty and, in respect of all payments to be made under this Agreement in Euro, means immediately available, freely transferable funds in such currency.
“Eurocurrency Loans”: Committed Rate Loans at such time as they are made and/or being maintained at a rate of interest based upon a Eurocurrency Rate.
“Eurocurrency Rate”: (a) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan and for each Index Rate Bid Loan, denominated in Dollars or any relevant Foreign Currency, other than Canadian Dollars, Australian Dollars, New Zealand Dollars and, Euros and Pounds Sterling, the London interbank offered rate as administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for such Currency for a tenor equal in length to such Interest Period as displayed on page LIBOR01 or LIBOR02 of the Reuters Screen (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in consultation with the Borrowers; in each case, the “LIBOR Screen Rate”) at approximately 11:00 A.M., Local Time, two Business Days prior to the beginning of such Interest Period (or, in the case of any Eurocurrency Loan denominated in Pounds Sterling, on the first day of such Interest Period); provided that, if the LIBOR Screen Rate shall not be available at such time for such Interest Period (a “LIBOR Impacted Interest Period”) with respect to the relevant Currency, then the Eurocurrency Rate shall be the LIBOR Interpolated Rate at such time. “LIBOR Interpolated Rate” means, at any time, the rate per annum determined by the Administrative Agent to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBOR Screen Rate for the longest period (for which that LIBOR Screen Rate is available in the relevant Currency) that is shorter than the LIBOR Impacted Interest Period and (b) the LIBOR Screen Rate for the shortest period (for which that LIBOR Screen Rate is available for the relevant Currency) that exceeds the LIBOR Impacted Interest Period, in each case, at such time.
(b) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in Canadian Dollars, the rate per annum equal to the average rate for bankers acceptances as administered by Thomson Reuters Benchmark Services Limited (or any other Person that takes over the administration of such rate) for a tenor equal in length to such Interest Period as displayed on page CDOR of the Reuters Screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “CDOR Screen Rate”) at approximately 11:00 A.M., Local Time, on the first day of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent); provided, that, if the CDOR Screen Rate shall not be available at such time for such Interest Period (a “CDOR Impacted Interest Period”) with respect to Canadian Dollars, then the Eurocurrency Rate for Canadian Dollars shall be the CDOR Interpolated Rate at such time. “CDOR Interpolated Rate” means, at any time, the rate per annum determined by the Administrative Agent to be equal to the rate that results from interpolating on a linear basis between: (a) the CDOR Screen Rate for the longest period (for which that CDOR Screen Rate is available in Canadian Dollars) that is shorter than the CDOR Impacted Interest Period and (b) the CDOR Screen Rate for the shortest period (for which that CDOR Screen Rate is available for Canadian Dollars) that exceeds the CDOR Impacted Interest Period, in each case, at such time.
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(c) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in Australian Dollars, the rate per annum equal to the average bid reference rate as administered by the Australian Financial Markets Association (or any other Person that takes over the administration of that rate) for Australian Dollar bills of exchange with a tenor equal in length to such Interest Period (or as close to such Interest Period as possible), displayed on page BBSY of the Reuters Screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “BBSY Screen Rate”) at approximately 11:00 A.M., Local Time, two Business Days prior to the beginning of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent); provided, that, if the BBSY Screen Rate shall not be available at such time for such Interest Period, the Administrative Agent may substitute for such rate with an alternative published interest rate reasonably acceptable to the applicable Borrower (or other rate basis agreed by the applicable Borrower and the Administrative Agent, including interpolation in a manner consistent with paragraphs (a) and (b) above).
(d) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in New Zealand Dollars, the rate per annum equal to the average bid reference rate as administered by the New Zealand Financial Markets Association (or any other Person that takes over the administration of that rate) for New Zealand Dollar bills of exchange with a tenor equal in length to such Interest Period (or as close to such Interest Period as possible), displayed on page BKBM of the Reuters Screen (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “BKBM Screen Rate”) at approximately 11:00 A.M., Local Time, on the first day of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent); provided, that, if the BKBM Screen Rate shall not be available at such time for such Interest Period, the Administrative Agent may substitute such rate with an alternative published interest rate reasonably acceptable to the applicable Borrower (or other rate basis agreed by the applicable Borrower and the Administrative Agent, including interpolation in a manner consistent with paragraphs (a) and (b) above).
(e) with respect to each day during each Interest Period pertaining to a Eurocurrency Loan denominated in Euros, the rate per annum equal to the interbank offered rate administered by the European Money Markets Institute (or any other Person that takes over the administration of such rate) for a tenor equal in length to such Interest Period as displayed on page on Reuters Page EURIBOR01 (or, in the event such rate does not appear on such Reuters page, on any successor or substitute page on such screen or service that displays such rate, or other appropriate page of such other information service that publishes such rate as shall be selected from time to time by the Administrative Agent in consultation with the Borrowers; in each case, the “EURIBOR Screen Rate”) at approximately 11:00 a.m., Local Time, two Business Days prior to the beginning of such Interest Period; provided, that, if the EURIBOR Screen Rate shall not be available at such time for such Interest Period, the Administrative Agent may substitute such rate with an alternative published interest rate reasonably acceptable to the applicable Borrower (or other rate basis agreed by the applicable Borrower and the Administrative Agent, including interpolation in a manner consistent with paragraphs (a) and (b) above).
Notwithstanding the above, in no event shall the Eurocurrency Rate be less than zero.
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“Event of Default”: any of the events specified in Section 8, provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, event or act has been satisfied.
“Exchange Rate”: on any day, the rate at which the starting Currency may be exchanged into the other relevant Currency, as set forth at approximately 10:00 A.M., Local Time, on such date on the Reuters World Spots page for such starting Currency. In the event that such rate does not appear on any Reuters World Spots page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates reasonably selected by the Administrative Agent.
“Exposure”: (a) with respect to an Objecting Bank at any time, the aggregate amount of such Bank’s Loans then outstanding and (b) with respect to any other Bank at any time, the Commitment of such Bank then in effect or, if the Commitments have been terminated, the amount of such Bank’s Loans then outstanding.
“Extension Request”: each request by the Borrowers made pursuant to subsection 2.16 for the Banks to extend this Agreement, which shall contain the information in respect of such extension specified in Exhibit I and shall be delivered to the Administrative Agent in writing.
“FATCA”: Sections 1471 through 1474 of the Code (and any comparable successor provisions), any effective regulations published thereunder or official interpretations thereof issued by any Governmental Authority charged with the administration thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any applicable intergovernmental agreements with respect thereto, and any treaty, law, regulations, or other official guidance enacted in any other jurisdiction relating to such intergovernmental agreement.
“Federal Funds Effective Rate”: on any particular date, the rate set forth for such date or, if such date is not a Business Day, the next preceding Business Day, opposite the caption “Federal Funds (Effective)” in the weekly statistical release designated as “H.15(519)” (or any successor publication) published by the Board or, if such rate is not so published for such date, the average of the quotations for such day on such transactions received by the Administrative Agent from three federal funds dealers of recognized standing selected by it; provided that in no event shall the Federal Funds Effective Rate be less than zero.
“Federal Reserve Board”: the Board of Governors of the Federal Reserve System of the United States of America.
“Financial Services”: the businesses of the Company (including the credit businesses) that are not primarily engaged in Equipment Operations.
“First Amendment”: the First Amendment to this Agreement, dated as of the First Amendment Effective Date.
“First Amendment Effective Date”: October 26, 2021.
“Fitch”: Fitch Ratings Inc.
“Fixed Charges”: for any particular period for the Capital Corporation and its consolidated Subsidiaries, all of the Capital Corporation’s and its consolidated Subsidiaries’ consolidated interest on indebtedness for borrowed money, amortization of discounts of indebtedness for borrowed money, the portion of rentals under financing leases deemed to represent interest and rentals under
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operating leases; provided, that, notwithstanding the foregoing, consolidated interest on Securitization Indebtedness and amortization of Securitization Indebtedness shall be deemed not included in Fixed Charges; provided, further, that such amounts (but not any amounts constituting consolidated interest on, or amortization of, Securitization Indebtedness) for a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly available consolidated statement of income of the Capital Corporation and its consolidated Subsidiaries for or covering such fiscal quarter and after such adjustments, if any, as may be required so that such amounts are determined in accordance with GAAP.
“Floor” the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Eurocurrency Rate, Adjusted Daily Simple SONIA or the Central Bank Rate, as applicable.
“Foreign Bank”: any Bank that is not a Domestic Bank.
“Foreign Currency”: (a) Euros, Pounds Sterling, Australian Dollars and Canadian Dollars, (b) upon the earlier of (i) confirmation by Deutsche Bank AG, New York Branch to the Administrative Agent that it (or a branch or affiliate thereof) can fund in New Zealand Dollars and (ii) Deutsche Bank AG, New York Branch ceasing to be a Bank hereunder, New Zealand Dollars and (c) as agreed by the Administrative Agent, any other Currency which is freely traded and convertible into Dollars in the London interbank market and for which the Dollar Equivalent thereof can be calculated from time to time.
“Foreign Currency Agent”: J.P. Morgan AG, or any successor appointed pursuant to this Agreement.
“Foreign Currency Equivalent”: at the time of determination or conversion thereof, as applicable, as to any amount denominated or expressed in Dollars, the equivalent amount in the applicable Foreign Currency as reasonably determined by the Administrative Agent at such time on the basis of the Exchange Rate for the purchase of such Foreign Currency with Dollars on such date.
“Foreign Currency Loan”: each Loan denominated in a Foreign Currency.
“GAAP”: generally accepted accounting principles in the United States of America as applied in the preparation of financial statements of the Company or the Capital Corporation, respectively, as of the fiscal year ended November 1, 2020, except with respect to capital lease obligations, in which case the generally accepted accounting principles in the United States of America as applied in the preparation of financial statements of the Company or the Capital Corporation, respectively, as of January 1, 2015 shall apply.
“Governmental Authority”: any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Hedging Transaction”: any swap transaction, interest rate protection agreement (including any interest rate swap, interest “cap” or “collar” or any other interest rate hedging device entered into by the Capital Corporation or one or more of its Subsidiaries), option agreement, short or long position in equity or debt instruments, commodities, futures and forward transactions,
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outperformance agreement or other similar transaction, agreement or arrangement entered into by the Capital Corporation or one or more of its Subsidiaries.
“IBA”: has the meaning assigned to such term in subsection 1.4.
“Important Property”: (a) any manufacturing plant, including land, all buildings and other improvements thereon, and all manufacturing machinery and equipment located therein, owned and used by the Company or a Restricted Subsidiary primarily for the manufacture of products to be sold by the Company or such Restricted Subsidiary, (b) the executive office and administrative building of the Company in Moline, Illinois, and (c) research and development facilities, including land and buildings and other improvements thereon and research and development machinery and equipment located therein, in each case, owned and used by the Company or a Restricted Subsidiary; except in any case property of which the aggregate fair value as determined by the Board of Directors of the Company does not at the time exceed 1% of Consolidated Net Worth.
“Increasing Bank”: as defined in subsection 2.20(c).
“Indemnified Person”: as defined in subsection 10.4(b).
“Indemnified Taxes”: as defined in subsection 2.17(a).
“Index Debt”: any senior, unsecured, non-credit enhanced long-term debt issued by the Company.
“Index Rate Bid Loan”: any Bid Loan made at an interest rate based upon the Applicable Index Rate.
“Index Rate Bid Loan Request”: any Bid Loan Request requesting the Banks to offer to make Index Rate Bid Loans at an interest rate equal to the Applicable Index Rate plus (or minus) a margin.
“Interest Payment Date”: (a) as to any ABR Loan, the last Business Day of each March, June, September and December, commencing on the first of such days to occur after such ABR Loan is made or a Eurocurrency Loan is converted to an ABR Loan, (b) as to any Eurocurrency Loan, the last day of each Interest Period applicable thereto, provided that as to any Eurocurrency Loan in respect of which a Borrower has selected an Interest Period of greater than three months, interest shall also be paid on the day which is three months after the beginning of such Interest Period and, (c) as to any SONIA Loan, each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing Date of such Loan (or if there is no numerically corresponding day in such later month, then the last day of such month) and (d) the Termination Date.
“Interest Period”: (a) with respect to any Eurocurrency Loan, the period commencing on the Borrowing Date, the date any ABR Loan is converted to a Eurocurrency Loan or the date any Eurocurrency Loan is continued as a Eurocurrency Loan, as the case may be, with respect to such Eurocurrency Loan and ending one, two (so long as a two-month Interest Period is published and available), three or six months thereafter in the case of any Eurocurrency Loan denominated in any Currency other than Canadian Dollars (or, with the consent of all relevant Banks, twelve months thereafter, or a period of less than one month thereafter if all relevant Banks consent to such period), or thirty, sixty, or ninety days thereafter in the case of any Eurocurrency Loan denominated in Canadian Dollars, as selected by a Borrower in its notice of borrowing, conversion or continuance as provided in subsection 2.1(c) or 2.9;
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(b) with respect to any Bid Loan, the period commencing on the Borrowing Date with respect to such Bid Loan and ending on the date not less than seven days nor more than six months thereafter, as specified by a Borrower in its Bid Loan Request as provided in subsection 2.2(b); and
(c) with respect to any Negotiated Rate Loan, the period or periods commencing on the Borrowing Date with respect to such Negotiated Rate Loan or the last day of any Interest Period with respect thereto and ending on the dates as shall be mutually agreed upon between the relevant Borrower and the relevant Bank;
provided, that all of the foregoing provisions relating to Interest Periods are subject to the following:
“IRS”: as defined in subsection 2.17(c).
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“ISDA Definitions”: the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“JD Luxembourg”: as defined in the preamble hereto.
“JPMorgan Chase Bank, N.A.”: JPMorgan Chase Bank, N.A., a national association.
“Judgment Currency”: as defined in subsection 2.24.
“Level”: Level I Rating, Level II Rating, Level III Rating, Level IV Rating or Level V Rating, as the context shall require.
“Level I Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is Aa3 or higher by Moody’s, AA- or higher by S&P and AA- or higher by Fitch.
“Level II Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is A1 by Moody’s, A+ by S&P and A+ by Fitch.
“Level III Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is A2 by Moody’s, A by S&P and A by Fitch.
“Level IV Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is A3 by Moody’s, A- by S&P and A- by Fitch.
“Level V Rating”: as of any date, such Level shall apply if the Company’s assigned Credit Rating as of such date is below A3 by Moody’s, below A- by S&P and below A- by Fitch.
“LIBOR Screen Rate”: as defined in the definition of Eurocurrency Rate.
“Loan Account”: as defined in subsection 2.3; collectively, the “Loan Accounts”.
“Loan Assignees”: as defined in subsection 10.5(c).
“Loan Assignment”: an Assignment and Assumption, substantially in the form of Exhibit E.
“Loan Documents”: this Agreement, including schedules and exhibits hereto, and the Notes.
“Loans”: the collective reference to the Committed Rate Loans, the Bid Loans and the Negotiated Rate Loans.
“Local Time”: (a) in the case of Foreign Currency Loans denominated in Canadian Dollars, Toronto, Ontario time, (b) in the case of Foreign Currency Loans denominated in Australian Dollars, Sydney, Australia time, (c) in the case of Foreign Currency Loans denominated in New Zealand Dollars, Wellington, New Zealand time, (d) in the case of Foreign Currency Loans denominated in Euros, Brussels time, (e) in the case of all other Foreign Currency Loans, London time and (f) in all other cases, New York time.
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“Losses”: as defined in subsection 10.4(b).
“Luxembourg Obligations”: the collective reference to the unpaid principal of and interest on the Loans made to JD Luxembourg and all other obligations and liabilities of JD Luxembourg (including, without limitation, interest accruing at the then applicable rate provided herein after the maturity of such Loans and interest accruing at the then applicable rate provided herein after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to JD Luxembourg, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) to the Administrative Agent or any Bank, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement or any other document made, delivered or given in connection with any of the foregoing, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Administrative Agent or to the Banks that are required to be paid by JD Luxembourg pursuant to the terms of any of the foregoing agreements).
“Majority Banks”: at any particular time, Banks having Commitment Percentages aggregating more than fifty percent; provided that (a) at any time after the termination of all the Commitments, “Majority Banks” shall mean Banks holding Loans aggregating more than fifty percent in principal amount of all outstanding Loans and (b) at any time after the Commitment Expiration Date with respect to any Objecting Bank (but prior to the termination of all the Commitments), “Majority Banks” shall mean Banks whose Exposure aggregates more than fifty percent of the aggregate Exposure of all the Banks.
“Margin Stock”: as defined in Regulation U of the Board.
“Moody’s”: Moody’s Investor Service, Inc.
“Mortgage”: as defined in subsection 6.2.
“Negotiated Rate Loan”: each Loan made to the Company or the Capital Corporation by a Bank pursuant to a Negotiated Rate Loan Request in such principal amount, for such number of Interest Periods (subject to the proviso to the definition of “Interest Period” in this subsection 1.1) and having such interest rate(s) and repayment terms as shall, in each case, be mutually agreed upon between such Borrower and such Bank.
“Negotiated Rate Loan Request”: each request by the Company or the Capital Corporation for a Bank to make Negotiated Rate Loans, which shall be delivered to such Bank in writing, by facsimile transmission, or by telephone, immediately confirmed in writing, and which shall specify the amount to be borrowed and the proposed Borrowing Date.
“Net Earnings Available for Fixed Charges”: for any particular period for the Capital Corporation and its consolidated Subsidiaries, the sum of (i) consolidated net earnings of the Capital Corporation and such Subsidiaries for such period without deduction of Fixed Charges and without deduction of federal, state or other income taxes, provided that such net earnings for a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly available statement of income of the Capital Corporation and its consolidated Subsidiaries for or covering such fiscal quarter and after such adjustments, if any, as may be required so that such net earnings are determined in accordance with GAAP, except that earned investment tax credits may be included as revenue in the consolidated income statement of the Capital Corporation and its consolidated
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Subsidiaries, rather than as an offset against the provision for income taxes and (ii) Support Payments received by the Capital Corporation in or in respect of such period.
“New Bank”: as defined in subsection 2.20(b).
“New Bank Supplement”: as defined in subsection 2.20(b).
“New Zealand Dollars”: the lawful currency of New Zealand.
“Non-Qualifying Bank”: as defined in subsection 2.17(e).
“Notes”: the collective reference to any promissory note evidencing Loans.
“NYFRB”: the Federal Reserve Bank of New York.
“NYFRB Rate”: for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Objecting Banks”: as defined in subsection 2.16(a).
“Offered Increase Amount”: as defined in subsection 2.20(a).
“Overnight Bank Funding Rate”: for any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Overnight Rate”: for any day, (a) with respect to any amount denominated in Dollars, the Federal Funds Effective Rate, and (b) with respect to any amount denominated in a Foreign Currency, at a rate reasonably determined by the Administrative Agent to be the cost to it of funding such amounts.
“Participant Register”: as defined in subsection 10.5(b).
“Participants”: as defined in subsection 10.5(b).
“Participating Member State”: any member state of the European Community that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.
“Payment”: as defined in subsection 9.4(b).
“Payment Notice”: as defined in subsection 9.4(b).
“Person”: an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever
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nature, provided that for purposes of subsection 8(h), Person shall also include two or more entities acting as a syndicate or any other group for the purpose of acquiring, holding or disposing of securities of the Company.
“Plan”: any pension plan which is covered by Title IV of ERISA and in respect of which either Borrower or a Commonly Controlled Entity is an “employer” as defined in Section 3(5) of ERISA.
“Pounds” or “£” or “Pounds Sterling”: the lawful currency of the United Kingdom.
“Prevailing Rating”: at any date of determination, the Level then applicable; provided that for purposes of determining the applicable Level when the assigned Credit Ratings of the Company by all three Ratings Agencies do not fall within the same Level: (i) if the Credit Ratings of the Company assigned by S&P and Moody’s fall within the same Level, the Prevailing Rating shall be such Level, (ii) if the Credit Ratings of the Company assigned by S&P and Moody’s do not fall within the same Level and the ratings differential is one Level, the Prevailing Rating shall be determined solely by reference to the higher of (x) the Credit Rating of the Company assigned by S&P and (y) the Credit Rating of the Company assigned by Moody’s and (iii) if the Credit Ratings of the Company assigned by S&P and Moody’s do not fall within the same Level and the ratings differential is more than one Level, the Prevailing Rating shall be the Level one notch lower than the Level determined solely by reference to the higher of (x) the Credit Rating of the Company assigned by S&P and (y) the Credit Rating of the Company assigned by Moody’s.
“Prime Rate”: the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Purchasing Banks”: as defined in subsection 10.5(d).
“Ratings Agencies”: S&P, Moody’s and Fitch.
“Re-Allocation Date”: as defined in subsection 2.20(e).
“Reference Time”: with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Eurocurrency Rate with respect to Loans denominated in Dollars or Pounds Sterling, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is SONIA, then four SONIA Business Days prior to such setting and (3) otherwise, the time determined by the Administrative Agent in its reasonable discretion.
“Register”: as defined in subsection 10.5(e).
“Relevant Governmental Body”: (a) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto and, (b) with respect to a Benchmark Replacement in respect of Loans denominated in Pounds Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto and (c) with respect to a Benchmark Replacement in respect of Loans denominated in any Foreign Currency (other than Pounds Sterling), (i) the central bank
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for the Foreign Currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (ii) any working group or committee officially endorsed or convened by (1) the central bank for the Foreign Currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board or any part thereof.
“Relevant Rate”: with respect to (i) any Eurocurrency Loan denominated in any Currency, the Eurocurrency Rate applicable thereto and (ii) any Loan denominated in Pounds Sterling, Adjusted Daily Simple SONIA.
“Report Period”: as defined in subsection 2.18.
“Reportable Event”: any of the events set forth in Section 4043(c) of ERISA or the regulations thereunder.
“Required Banks”: at a particular time, Banks having Commitment Percentages aggregating at least 66-2/3%; provided that (a) at any time after the termination of all the Commitments, “Required Banks” means Banks holding Loans aggregating at least 66-2/3% in principal amount of all outstanding Loans and (b) at any time after the Commitment Expiration Date with respect to any Objecting Bank (but prior to the termination of all the Commitments), “Required Banks” means Banks whose Exposure aggregates at least 66-2/3% of the aggregate Exposure of all the Banks.
“Requirement of Law”: as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Reserves”: as defined in subsection 2.13(c).
“Resolution Authority”: an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”: of a Borrower, the Chairman, the President, any Executive, Senior or other Vice President, the Treasurer, any Assistant Secretary and any Assistant Treasurer of such Borrower.
“Restricted Margin Stock”: any Margin Stock, the sale, pledge or other disposition of which by the Company or any of its Subsidiaries is in any way restricted by an arrangement with any Bank or any affiliate thereof to the extent that the value thereof (determined in accordance with Regulation U of the Board) does not exceed 25% of the value (determined in accordance with such Regulation U) of all the assets subject to such restriction.
“Restricted Subsidiary”: any Subsidiary of the Company incorporated in the United States of America or Canada (a) which is engaged in, or whose principal assets consist of property used by the Company or any Restricted Subsidiary in, the manufacture of products within the United States of America or Canada or in the sale of products principally to customers located in the United States of America or Canada except any corporation which is a retail dealer in which the Company has, directly or indirectly, an investment, or (b) which the Company shall designate as a Restricted Subsidiary in an
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officers’ certificate signed by two Responsible Officers of the Company and delivered to the Administrative Agent.
“S&P”: Standard and Poor’s Financial Services LLC.
“Sale and Lease-back Transaction”: as defined in subsection 6.3.
“Sanctions Laws and Regulations”:
(i) any sanctions, prohibitions or requirements imposed by any executive order (an “Executive Order”) or by any sanctions program administered by the U.S. Department of the Treasury Office of Foreign Assets Control (“OFAC”), the U.S. State Department Directorate of Defense Trade Controls or the U.S. Department of Commerce Bureau of Industry and Security; and
(ii) any sanctions measures imposed by the United Nations Security Council, the European Union or the United Kingdom.
“Screen Rate”: the LIBOR Screen Rate, the CDOR Screen Rate, the EURIBOR Screen Rate, the BBSY Screen Rate and/or the BKBM Screen Rate, as applicable.
“Securitization Indebtedness”: the aggregate outstanding indebtedness for borrowed money, owner trust certificates (however classified) or credit enhancements incurred in connection with transactions involving (i) the sale, transfer or other disposition of receivables or leases (retail or wholesale) by the Capital Corporation or any of its Subsidiaries and (ii) the issuance of commercial paper, medium term notes or any other form of financing by any structured bankruptcy-remote Subsidiary of the Capital Corporation or any related conduit lender (such transactions, “Securitizations”), provided, that the aggregate outstanding credit enhancements in the form of cash or letter(s) of credit provided by the Capital Corporation or any of its Subsidiaries (other than any structured bankruptcy-remote Subsidiary) in excess of 10% of the aggregate outstanding indebtedness for borrowed money and owner trust certificates (however classified) incurred in connection with such Securitizations shall not be deemed for the purposes of this Agreement to be Securitization Indebtedness, but shall be deemed for purposes of subsection 7.2 to be Consolidated Senior Debt.
“Significant Subsidiary”: of a Borrower, any Subsidiary of such Borrower the assets, revenues or net worth of which is, at the time of determination, equal to or greater than ten percent of the assets, revenues or net worth, respectively, of such Borrower at such time.
“SOFR”: with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website at approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day.
“SOFR Administrator”: the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website”: the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
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“SONIA”: with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the SONIA Administrator on the SONIA Administrator’s Website on the immediately succeeding Business Day.
“SONIA Administrator”: the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA Administrator’s Website”: the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
“SONIA Borrowing”: as to any borrowing, the SONIA Loans comprising such borrowing.
“SONIA Business Day”: for any Loan denominated in Pounds Sterling, any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London.
“SONIA Interest Day”: has the meaning specified in the definition of “Daily Simple SONIA”.
“SONIA Loan”: a Loan that bears interest at a rate based on Adjusted Daily Simple SONIA.
“SONIA Lookback Day”: has the meaning specified in the definition of “Daily Simple SONIA”.
“Subsidiary”: of a Person, a corporation or other entity of which securities or other ownership interests having ordinary voting power (other than securities or other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other Persons performing similar functions are at the time directly or indirectly owned by such Person or one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of such Person.
“Support Payments”: payments from the Company to the Capital Corporation made pursuant to that certain Support Agreement, dated as October 15, 1996, by and between the Company and the Capital Corporation, as amended by the First Amended Agreement, dated as of November 1, 2003, between the Company and the Capital Corporation.
“Syndication Agent”: as defined in the preamble hereto.
“Termination Date”: the date which is 364 days after the Closing Date or such later date as shall be determined pursuant to the provisions of subsection 2.16 with respect to non-Objecting Banks.
“Term Out Option”: as defined in subsection 2.1(d).
“Term SOFR”: for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term SOFR Notice”: a notification by the Administrative Agent to the Banks and the Borrowers of the occurrence of a Term SOFR Transition Event.
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“Term SOFR Transition Event”: the determination by the Administrative Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event has previously occurred resulting in a Benchmark Replacement in accordance with subsection 2.11 that is not Term SOFR.
“Total Commitments”: at any time, the aggregate amount of the Commitments then in effect.
“Total Stockholders’ Equity”: at a particular time, the total stockholders’ equity, exclusive of adjustments resulting from any accumulated other comprehensive income of the Company and its consolidated Subsidiaries as at the end of any fiscal quarter (including the last quarter of any fiscal year) as determined in accordance with GAAP.
“Transferees”: as defined in subsection 10.5(g).
“Transfer Effective Date”: the effective date of an assignment of Loans or Commitments under a Loan Assignment.
“Treaty”: the Treaty establishing the European Economic Community, being the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1987, the Maastricht Treaty (which was signed at Maastricht on February 7, 1992 and came into force on November 1, 1993), the Amsterdam Treaty (which was signed at Amsterdam on October 2, 1997 and came into force on May 1, 1999) and the Nice Treaty (which was signed on February 26, 2001), each as amended from time to time and as referred to in legislative measures of the European Union for the introduction of, changeover to or operating of the Euro in one or more member states.
“Type”: as to any Committed Rate Loan, its nature as an ABR Loan, SONIA Loan or Eurocurrency Loan.
“UK Financial Institution”: any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority”: the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement”: the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Withholding Agent”: any Borrower or the Administrative Agent, as the case may be.
“Working Day”: any Business Day on which dealings in foreign currencies and exchange between banks may be carried on in London, England and New York, New York.
“Write-Down and Conversion Powers”: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion
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powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurocurrency Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. Upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-In Election with respect to any applicable Currency, subsection 2.11(b) and (c) provide a mechanism for determining an alternative rate of interest. The Administrative Agent will promptly notify the Borrower, pursuant to subsection 2.11(e), of any change to the reference rate upon which the interest rate on Eurocurrency Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to Daily Simple SONIA, the London interbank offered rate or other rates in the definition of “Eurocurrency Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to subsection 2.11(b) or (c), whether upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes pursuant to subsection 2.11(d)), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate for any Currency will be similar to, or produce the same value or economic equivalence of, Adjusted Daily Simple SONIA, the Eurocurrency Rate or applicable Screen Rate for Loans denominated in such Currency or have the same volume or liquidity as did the London interbank offered rate (or the euro interbank offered rate, as applicable) prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of Adjusted Daily Simple SONIA, any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrowers. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain SONIA or Daily Simple SONIA, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrowers, any Bank or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
SECTION 2. | THE COMMITTED RATE LOANS; THE BID LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS |
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Borrower and the applicable Bank, in each case during the Commitment Period and in the manner set forth in this subsection 2.2 and in amounts such that the Dollar Equivalent of the aggregate principal amount of Loans at any time outstanding shall not exceed the aggregate amount of the Commitments at such time. Notwithstanding any other provision of this Agreement, the aggregate principal amount of the outstanding Bid Loans and/or Negotiated Rate Loans made by any Bank may at any time (but shall not be required to) exceed the Commitment of such Bank so long as the Dollar Equivalent of the aggregate outstanding principal amount of all Loans does not at any time exceed the aggregate amount of the Commitments.
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time, reduce the amount of the Commitments, provided that (i) any such reduction shall be accompanied by prepayment of Committed Rate Loans hereunder, together with accrued interest on the amount so prepaid to the date of such prepayment, to the extent, if any, that the Dollar Equivalent of the aggregate outstanding principal amount of all Loans exceeds the amount of the Commitments as then reduced and (ii) any such termination of the Commitments shall be accompanied by prepayment in full of the Loans then outstanding hereunder in accordance with subsection 2.6 together with accrued fees and interest thereon and any termination of a Bank’s Commitment pursuant to subsection 2.13, 2.16 or 2.17 shall, with respect to each affected Loan, on the last day of the applicable Interest Period therefor or, if earlier, on such earlier date as shall be notified by the Borrowers, be accompanied by prepayment in full of such Loan, together with, in each case, accrued interest thereon to the date of such prepayment, the payment of any unpaid commitment fee then accrued hereunder, and the payment of any amounts then payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17. Upon receipt of such notice from the Borrowers the Administrative Agent shall promptly notify each Bank thereof. Any reduction of the Commitments pursuant to this subsection 2.5 shall be in an amount not less than $25,000,000, and shall be an amount which is a whole multiple of $5,000,000, and shall reduce permanently the amount of the Commitments then in effect.
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(b) If, on any Calculation Date, the aggregate principal amount of Loans outstanding on such date exceed the Total Commitments, on such date, the Borrowers shall, without notice or demand, within five Business Days (i) repay Loans in an aggregate principal amount such that, after giving effect thereto, the aggregate principal amount of Loans outstanding shall be equal to or less than the Total Commitments and (ii) pay interest and fees accrued to the date of such payment, prepayment or reduction on the principal so prepaid or reduced and any amounts payable under subsection 2.14 in connection therewith.
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(c)(d) If all or a portion of the principal amount of any of the Committed Rate Loans shall not be paid when due (whether at the stated maturity, by acceleration or otherwise) such overdue principal amount of such Committed Rate Loan (i) shall bear interest at a rate per annum which is 1% above the rate which would otherwise be applicable pursuant to subsection 2.8(a) or, (b) or (c) as the case may be, from the date when such principal amount is due until the date on which such amount is paid in full and (ii) shall, if such Committed Rate Loan is a Eurocurrency Loan denominated in Dollars, be converted to an ABR Loan at the end of the Interest Period applicable thereto.
(d)(e) Interest shall be payable in arrears on each Interest Payment Date.
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for actual days elapsed. The Administrative Agent shall promptly notify the Borrowers and the Banks of each determination of a Eurocurrency Rate and/or Daily Simple SONIA. Any change in the interest rate on a Committed Rate Loan resulting from a change in ABR shall become effective as of the opening of business on the day on which such change in ABR shall become effective. The Administrative Agent or the Foreign Currency Agent, as applicable, shall promptly notify the Borrowers and the Banks of the effective date and the amount of each such change.
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Eurocurrency Loans denominated in Dollars (in the case of clause (i) above) or Eurocurrency Loans or SONIA Loans, in each case in an Affected Foreign Currency, shall be made or, with respect to such Eurocurrency Loans, continued as such, nor shall the Borrower have the right to convert ABR Loans to Eurocurrency Loans.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark with respect to a Loan denominated in any Currency, then (x) if a Benchmark Replacement for a Loan denominated in such Currency is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for a Loan denominated in such Currency for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement for a Loan denominated in such Currency is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Banks without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Banks comprising the Majority Banks.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, solely with respect to a Loan denominated in Dollars, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (c) shall not be effective unless the Administrative Agent has delivered to the Banks and the Company a Term SOFR Notice.
(d) In connection with the implementation of a Benchmark Replacement, the Administrative Agent, in consultation with the Company, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(e) The Administrative Agent will promptly notify the Company and the Banks of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Bank (or group of Banks) pursuant to this subsection 2.11, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be
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made in its or their sole discretion and without consent from any other party hereto or any other Loan Document, except, in each case, as expressly required pursuant to this subsection 2.11.
(f) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or Eurocurrency Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent shall modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(g) Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Relevant Rate applicable to any Eurocurrency Loan, and or SONIA Loan, as applicable, and, with respect to such Eurocurrency Loans, during the continuance thereof (in each case below, to the extent such Benchmark Unavailability Period is in respect of the Relevant Rate applicable to such Eurocurrency Loan or such SONIA Loan, as applicable), (i) a Borrower may revoke any request for a Eurocurrency Loan or SONIA Loan to be made during such Benchmark Unavailability Period, and, failing that, the applicable Borrower will be deemed to have converted such request for a Eurocurrency Loan denominated in Dollars into a request for an ABR Loan and (ii) any request for a Eurocurrency Loan denominated in a Foreign Currency or a SONIA Loan shall be ineffective. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any Eurocurrency Loan in any Currency or SONIA Loan is outstanding on the date of the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to the Relevant Rate applicable to such Eurocurrency Loan or SONIA Loan, as applicable, then (i) if such Eurocurrency Loan is denominated in Dollars, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars on such day or, (ii) if such Eurocurrency Loan is denominated in any Foreign Currency, such Loan shall, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), at the applicable Borrower’s election prior to such day: (A) be prepaid by the applicable Borrower on such day or (B) be converted by the Administrative Agent to, and shall constitute, an ABR Loan denominated in Dollars (in an amount equal to the Dollar Equivalent of the amount of such Eurocurrency Loan on such day (it being understood and agreed that if the applicable Borrower does not so prepay such Loan on such day by 12:00 noon, Local Time, the Administrative Agent is authorized to effect such conversion of such Eurocurrency Loan into an ABR Loan denominated in Dollars)); provided that, in the case of this subclause (B), upon any subsequent implementation of a Benchmark Replacement in respect of such Foreign Currency pursuant to this subsection 2.11, such ABR Loan denominated in Dollars shall then be converted by the Administrative Agent to, and shall constitute, a Eurocurrency Loan denominated in the original Foreign Currency applicable to such Loan (in an amount equal to the Foreign Currency Equivalent of the amount of such ABR Loan) on the day of, and after giving effect to, such implementation. or (iii) such SONIA Loan shall bear interest at the Central Bank Rate for Pounds Sterling plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall
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be conclusive and binding absent manifest error) that the Central Bank Rate for Pounds Sterling cannot be determined, any outstanding affected SONIA Loans, at the Company’s election, shall either (A) be converted into ABR Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of Pounds Sterling) immediately or (B) be prepaid in full immediately.
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(i)such Bank or Banks may declare that Foreign Currency Loans (in the affected Currency or Currencies) will not thereafter (for the duration of such unlawfulness) be made by such Bank or Banks hereunder (or be continued for additional Interest Periods), whereupon any request for a Foreign Currency Loan (in the affected Currency or Currencies) or to continue a Foreign Currency Loan (in the affected Currency or Currencies, as the case may be, for an additional Interest Period) shall, as to such Bank or Banks only, be of no force and effect, unless such declaration shall be subsequently withdrawn; and
(ii)such Bank may require that all outstanding Foreign Currency Loans (in the affected Currency or Currencies), made by it be converted to ABR Loans or Eurocurrency Loans denominated in Dollars, as the case may be (unless repaid by the Borrowers), in which event all such Foreign Currency Loans (in the affected Currency or Currencies) shall be converted to ABR Loans or Eurocurrency Loans denominated in Dollars, as the case may be, as of the effective date of such notice as provided in paragraph (f) below and at the Exchange Rate on the date of such conversion or, at the option of the Borrower, repaid on the last day of the then current Interest Period with respect thereto or, if earlier, the date on which the applicable notice becomes effective.
In the event any Bank shall exercise its rights under (i) or (ii) above, all payments and prepayments of principal that would otherwise have been applied to repay the converted Foreign Currency Loans of such Bank shall instead be applied to repay the ABR Loans or Loans denominated in Dollars, as the case may be, made by such Bank resulting from such conversion.
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(b) With respect to SONIA Loans, each Borrower agrees to indemnify each Bank and to hold each Bank harmless from any loss or expense which such Bank may sustain or incur as a consequence of (i) default by such Borrower in payment of the principal amount of or interest on any Loan by such Bank, including, but not limited to, any such loss or expense arising from interest or fees payable by such Bank to lenders of funds obtained by it in order to maintain its Loans hereunder, (ii) default by such Borrower in making a borrowing after such Borrower has given a notice in accordance with subsection 2.1, 2.2 or 2.9, (iii) default by such Borrower in making any prepayment after such Borrower has given a notice in accordance with subsection 2.5 or 2.6 or (iv) the making by such Borrower of a prepayment of a SONIA Loan on a day which is not the payment date with respect thereto, including, but not limited to, any such loss or expense arising from interest or fees payable by such Bank to lenders of funds obtained by it in order to maintain its Loans hereunder. This covenant shall survive termination of this Agreement and payment of the outstanding SONIA Loans. A certificate as to any amount payable pursuant to the foregoing shall be submitted by such Bank (and executed by an officer thereof) to the relevant Borrower, setting forth the computation of such amounts in reasonable detail, and shall be conclusive in the absence of manifest error.
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effective upon receipt) that such Borrower does not intend to make such payment, the Administrative Agent may assume that such Borrower has made such payment when due, and the Administrative Agent may in reliance upon such assumption (but shall not be required to) make available to each Bank on such payment date an amount equal to the portion of such assumed payment to which such Bank is entitled hereunder, and if such Borrower has not in fact made such payment to the Administrative Agent, such Bank shall, on demand, repay to the Administrative Agent the amount made available to such Bank together with interest thereon in respect of each day during the period commencing on the date such amount was made available to such Bank and ending on (but excluding) the date such Bank repays such amount to the Administrative Agent, at a rate per annum equal to the applicable Overnight Rate. A certificate of the Administrative Agent submitted to the relevant Bank with respect to any amount owing under this subsection 2.15 shall be conclusive absent manifest error.
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The obligations of the parties under this subsection 2.17 shall survive termination of this Agreement and payment of the Loans.
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Commitments pursuant to paragraph (b) below. No Bank has an obligation to increase its Commitment pursuant to this subsection 2.20 except in its sole discretion.
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The rights and remedies against a Defaulting Bank under this subsection 2.23 are in addition to other rights and remedies that the Borrowers may have against such Defaulting Bank.
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In the event and on the date that the Administrative Agent and the Company each agree that a Defaulting Bank has adequately remedied all matters that caused such Bank to be a Defaulting Bank, then such Bank shall purchase at par such of the Loans of the other Banks (other than Negotiated Rate Loans) as the Administrative Agent shall determine may be necessary in order for such Bank to hold such Loans in accordance with its Commitment Percentage and such Bank shall no longer be a Defaulting Bank; provided, that subject to subsection 10.15, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Bank arising from that Bank having become a Defaulting Bank, including any claim of a Non-Defaulting Bank as a result of such Non-Defaulting Bank’s increased exposure following such reallocation.
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Administrative Agent, for the ratable benefit of the Banks and their respective successors, indorsees, transferees and assigns, the prompt and complete payment by JD Luxembourg when due (whether at the stated maturity, by acceleration or otherwise) of the Luxembourg Obligations.
The Capital Corporation waives promptness, diligence, presentment to, demand of payment from and protest to JD Luxembourg of any Luxembourg Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of the Capital Corporation hereunder shall be absolute and unconditional and not be affected by (a) the failure of any Bank or the Administrative Agent to assert any claim or demand or to enforce any right or remedy against JD Luxembourg under the provisions of this Agreement or otherwise; (b) any rescission, waiver, amendment or modification of any of the terms or provisions of this Agreement or any other agreement; (c) the failure of any Bank to exercise any right or remedy against JD Luxembourg; (d) the invalidity or unenforceability of this Agreement; or (e) any other circumstance which might otherwise constitute a defense available to or discharge of JD Luxembourg (other than payment).
The Capital Corporation further agrees that its agreement hereunder constitutes a promise of payment when due and not of collection, and waives any right to require that any resort be had by any Bank to any balance of any deposit account or credit on the books of any Bank in favor of JD Luxembourg or any other Person.
The obligations of the Capital Corporation hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of the Luxembourg Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Capital Corporation hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any Bank to assert any claim or demand or to enforce any remedy under this Agreement or any other agreement, by any waiver or modification in respect of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Luxembourg Obligations, or by any other act or omission which may or might in any manner or to any extent vary the risk of the Capital Corporation or otherwise operate as a discharge of the Capital Corporation as a matter of law or equity.
The Capital Corporation further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Luxembourg Obligation is rescinded or must otherwise be restored by the Administrative Agent or any Bank upon the bankruptcy or reorganization of JD Luxembourg or otherwise.
In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent or any Bank may have at law or in equity against the Capital Corporation by virtue hereof, upon the failure of JD Luxembourg to pay any Luxembourg Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the Capital Corporation hereby promises to and will, upon receipt of written demand by the Administrative Agent, forthwith pay, or cause to be paid, in cash the amount of such unpaid Luxembourg Obligation. In the event that, by reason of the bankruptcy of JD Luxembourg, (i) acceleration of Loans made to JD Luxembourg is prevented and (ii) the Capital Corporation shall not have prepaid the outstanding Loans and other amounts due hereunder owed by JD Luxembourg, the Capital Corporation will forthwith purchase such Loans at a price equal to the principal amount thereof plus accrued interest thereon and any other amounts due hereunder with respect thereto. The Capital Corporation further agrees that if payment in respect of any Luxembourg Obligation shall be due in a currency other than Dollars and/or at a place of payment other than New York and if, by reason of any change in law, disruption of currency or foreign
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exchange markets, war or civil disturbance or similar event, payment of such Luxembourg Obligation in such currency or such place of payment shall be impossible or, in the reasonable judgment of any applicable Bank, not consistent with the protection of its rights or interests, then, at the election of any applicable Bank, the Capital Corporation shall make payment of such Luxembourg Obligation in Dollars (based upon the applicable Exchange Rate in effect on the date of payment) and/or in New York.
Notwithstanding any payment made by the Capital Corporation hereunder or any set-off or application of funds of the Capital Corporation by the Administrative Agent or any Bank, the Capital Corporation shall not be entitled to be subrogated to any of the rights of the Administrative Agent or any Bank against JD Luxembourg or any guarantee or right of offset held by the Administrative Agent or any Bank for the payment of the Luxembourg Obligations, until all amounts owing to the Administrative Agent and the Banks by JD Luxembourg on account of the Luxembourg Obligations are paid in full in cash. If any amount shall be paid to the Capital Corporation on account of such subrogation rights at any time when all of the Luxembourg Obligations shall not have been paid in full in cash, such amount shall be held by the Capital Corporation in trust for the Administrative Agent and the Banks, segregated from its other funds, and shall, forthwith upon receipt by it, be turned over to the Administrative Agent in the exact form received by it (duly indorsed by it to the Administrative Agent, if required), to be applied against the Luxembourg Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine.
SECTION 3. | REPRESENTATIONS AND WARRANTIES |
Each Borrower hereby represents and warrants to the Administrative Agent and to each Bank that:
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accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equity principles (whether enforcement is sought by proceedings in equity or at law).
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SECTION 4. | CONDITIONS PRECEDENT |
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Each acceptance by any Borrower of a Loan shall constitute a representation and warranty by the relevant Borrower as of the date of such Loan that the applicable conditions in clauses (a), (b) and (c) of this subsection 4.2 have been satisfied.
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SECTION 5. | AFFIRMATIVE COVENANTS |
Each of the Borrowers (except as otherwise specified) hereby agrees that, so long as there is any obligation by any Bank to make Loans to it hereunder, any Loan of such Borrower remains outstanding and unpaid or any other amount is owing by such Borrower to any Bank or any Agent hereunder (unless the Majority Banks shall otherwise consent in writing):
(a) as soon as available, but in any event within 120 days after the end of each fiscal year of such Borrower, a copy of the consolidated balance sheet of such Borrower and its consolidated Subsidiaries as at the end of such year and the related consolidated statements of income and of cash flow for such year, reported on by (i) in the case of the Company and the Capital Corporation, Deloitte & Touche LLP or other independent certified public accountants of nationally recognized standing in the United States and (ii) in the case of JD Luxembourg, Deloitte & Touche LLP or other independent certified public accountants of recognized standing in Luxembourg or the European Union; and
(b)as soon as available, but in any event not later than 60 days after the end of each of the first three quarterly periods of each fiscal year of such Borrower, the condensed unaudited consolidated balance sheet of such Borrower and its consolidated Subsidiaries as at the end of each such quarter and the related unaudited consolidated statement of income of such Borrower and its consolidated Subsidiaries for such quarterly period and the portion of the fiscal year through such date, certified by a Responsible Officer of such Borrower (subject to normal year-end audit adjustments).
All such financial statements described in clause (a) or (b) above shall present fairly the consolidated financial condition and results of operations of such Borrower and its consolidated Subsidiaries and be prepared in accordance with generally accepted accounting principles in the United States of America (or, in the case of any such financial statements furnished by JD Luxembourg, international financial reporting standards in effect from time to time as applicable to JD Luxembourg, or such other accounting standards required by any applicable Luxembourg Governmental Authority) applied consistently throughout the periods reflected therein (except as approved by such accountants or officer, as the case may be, and disclosed therein). The Company and the Capital Corporation shall be deemed to have furnished such financial statements to each Bank when they are filed with the Securities and Exchange Commission and posted on its EDGAR system, and JD Luxembourg shall be deemed to have furnished such financial statements to each Bank when they are delivered to the Administrative Agent via electronic mail or other electronic transmission.
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SECTION 6. | NEGATIVE COVENANTS OF THE COMPANY |
The Company hereby agrees that, so long as there is any obligation by any Bank to make Loans hereunder, any Loan remains outstanding and unpaid or any other amount is owing to any Agent or any Bank hereunder, it shall not, nor in the case of subsections 6.2 and 6.3 shall it permit any Restricted Subsidiary to (unless the Majority Banks shall otherwise consent in writing):
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SECTION 7. | NEGATIVE COVENANTS OF THE CAPITAL CORPORATION |
The Capital Corporation hereby agrees that, so long as there is any obligation by any Bank to make Loans to the Capital Corporation hereunder, any Loan of the Capital Corporation remains outstanding and unpaid or any other amount is owing by the Capital Corporation to any Bank or any Agent hereunder, the Capital Corporation shall not, nor in the case of the agreements set forth in subsection 7.3 shall it permit any of its Subsidiaries to, directly or indirectly (unless the Majority Banks shall otherwise consent in writing):
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SECTION 8. | EVENTS OF DEFAULT |
Upon the occurrence and during the continuance of any of the following events:
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then, and in any such event, (A) if such event is an Event of Default specified in paragraph (f) above, automatically the Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the Loans shall immediately become due and payable, and (B)(1) if such event is an Event of Default specified in paragraph (a) or (e), then with the consent of the Majority Banks, the Administrative Agent may, or upon the request of the Majority Banks, the Administrative Agent shall, or (2) if such event is an Event of Default specified in paragraph (b), (c), (d), (g) or (h), then with the consent of the Required Banks, the Administrative Agent may, or upon the request of the Required Banks, the Administrative Agent shall, take either or both of the following actions: (i) by notice to the Borrowers, declare the Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; and (ii) by notice of default to the Borrowers, declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement to be due and payable forthwith, whereupon the same shall immediately become due and payable. Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived with respect to this Agreement by the Borrowers.
SECTION 9. | THE AGENTS |
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of the Majority Banks, the Required Banks or all of the Banks (if the consent of the Majority Banks, the Required Banks or all of the Banks, respectively, is required), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Banks.
(ii) Each Bank hereby further agrees that if it receives a Payment from the Administrative Agent or any of its affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Bank agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Bank shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Bank to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(iii) The Borrowers hereby agree that (x) in the event that the returning of an erroneous Payment (or portion thereof) made with funds of the Administrative Agent or an affiliate thereof has been demanded by the Administrative Agent pursuant to this subsection 9.4(b) and has not been recovered from any Bank that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Bank with respect to such amount unless and until such amounts are recovered by the Administrative Agent and (y) an erroneous Payment made by the Administrative Agent or an affiliate thereof shall not pay, prepay, repay, discharge or otherwise satisfy any Loans owed by the Borrowers.
(iv) Each Bank’s and each Issuing Bank’s obligations under this subsection 9.4(b) shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Bank, the termination of the Commitments, the payment in full of all amounts payable hereunder and the termination of this Agreement.
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(b) Each Bank shall indemnify the Administrative Agent for the full amount of any taxes, levies, imposts, duties, fees, deductions, withholdings or similar charges imposed by any Governmental Authority that are attributable to such Bank and that are payable or paid by the Administrative Agent, together with all interest, penalties, reasonable costs and expenses arising therefrom or with respect thereto, as determined by the Administrative Agent in good faith. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error.
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SECTION 10. | MISCELLANEOUS |
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amend, modify or waive any provision of Section 9 without the written consent of the then Administrative Agent and, if applicable, any other Agent affected by such amendment, modification or waiver, or (d) extend the Termination Date with respect to any Bank without the written consent of such Bank; provided, further, however, that no such waiver, amendment, supplement or modification shall waive, amend, supplement or otherwise modify subsections 2.16 without the written consent of the Required Banks, or (e) so long as any Luxembourg Obligations remain outstanding or JD Luxembourg is a party to this Agreement, release Capital Corporation from its guarantee obligations under subsection 2.27 without the written consent of each Bank; and provided, further, that notwithstanding the foregoing, the Administrative Agent may act pursuant to subsection 2.11(b) to establish, in conjunction with the Borrowers, an alternate rate of interest. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Banks and shall be binding upon the Borrowers, the Banks and the Agents. In the case of any waiver, the Borrowers, the Banks and the Agents shall be restored to their former position and rights hereunder, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. Anything contained in the foregoing to the contrary notwithstanding, the relevant Borrower and the relevant Bank with respect to a Negotiated Rate Loan may, from time to time, enter into amendments, supplements or modifications for the purpose of adding any provisions to such Negotiated Rate Loans or changing in any manner the rights of such Bank and such Borrower thereunder and such Bank may waive any of the requirements of such Negotiated Rate Loan; provided, however, that such Borrower and such Bank shall notify the Administrative Agent in writing of any extension of the maturity of such Negotiated Rate Loan or reduction of the principal amount thereof; provided, further, that such Borrower and such Bank shall not extend the maturity of such Negotiated Rate Loan beyond the last day of the Commitment Period.
The Borrowers:
The Company: |
Deere & Company
|
The Capital Corporation: |
John Deere Capital Corporation
|
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JD Luxembourg: |
John Deere Bank S.A.
L-1855 Luxembourg
Grand Duchy of Luxembourg
|
with a copy to: |
Deere & Company
Telephone: 309-765-9259
|
The Administrative Agent: |
JPMorgan Chase Bank, N.A.
Telephone: 302-634-9770
Email: harmeet.kaur@chase.com |
with a copy to: |
JPMorgan Chase Bank, N.A.
Bldg B, Floor 06
Email: sean.bodkin@chase.com |
The Foreign Currency Agent: |
J.P. Morgan AG
25 Bank Street
+44 207 7421911 Email: loan_and_agency_london@jpmorgan.com |
To any other Bank: |
To it at its address (or facsimile number) set forth in its Administrative Questionnaire |
provided that any notice, request or demand to or upon the Administrative Agent or the Banks pursuant to subsections 2.1, 2.2, 2.5, 2.6, 2.9, 2.11, 2.20 and 9.9 shall not be effective until received (including receipt by telephone if permitted hereby).
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herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
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any other Loan Document and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, (ii) the Administrative Agent and each of the Banks may, at its option, create one or more copies of this Agreement, any other Loan Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record), (iii) waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Loan Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (iv) waives any claim against any Indemnified Person for any Losses arising solely from the Administrative Agent’s and/or any Bank’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page, including any Losses arising as a result of the failure of a Borrower to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
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Each Bank hereby notifies the Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of the Borrowers and other information that will allow such Bank to identify the Borrowers in accordance with the Act. The Borrowers shall promptly provide such information upon request by any Bank.
(i)the application of any Write-Down and Conversion Powers by a Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(ii)the effects of any Bail-In Action on any such liability, including, if applicable:
(x)a reduction in full or in part or cancellation of any such liability;
(y)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or
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other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(z)the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any Resolution Authority.
(b)Each party hereto agrees that it will notify the Company and the Administrative Agent, as soon as practicable, of such party becoming the subject of a Bail-In Action, unless such notification is prohibited by law, regulation or order.
(i) such Bank is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans (defined below) in connection with the Loans or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to, and all of the conditions of which are and will continue to be satisfied in connection with, such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(iii) (A) such Bank is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Bank to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Bank, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Bank.
(b)In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Bank or (2) a Bank has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Bank further (x) represents and warrants, as of the date such Person became a Bank party hereto, and (y) covenants, from the date such Person became a Bank party hereto to the date such Person ceases being a Bank party hereto, for the benefit of, the Administrative Agent and each lead arranger, and not, for the avoidance of doubt, to or for the benefit of the Borrowers, that the Administrative Agent is not a fiduciary with respect
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to the assets of such Bank involved in such Bank’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement or any documents related hereto or thereto).
As used in this Section, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code, to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
[Remainder of page left intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
|
DEERE & COMPANY
By:
|
|
JOHN DEERE CAPITAL CORPORATION
By:
|
|
JOHN DEERE BANK S.A.
By:
|
By:
Name:
Title:
[Signature Page to the 2021 364-Day Deere & Company Credit Agreement]
|
JPMORGAN CHASE BANK, N.A.,
By: __________________________________
|
|
|
[Signature Page to the 2021 364-Day Deere & Company Credit Agreement]
|
BANK OF AMERICA, N.A., as Syndication Agent and as a Bank
By: __________________________________
|
[Signature Page to the 2021 364-Day Deere & Company Credit Agreement]
|
CITIBANK, N.A., as Documentation Agent and as a Bank
By: __________________________________
Title: |
[Signature Page to the 2021 364-Day Deere & Company Credit Agreement]
|
[BANK], as a Bank
By: __________________________________
Title: |
[Signature Page to the 2021 364-Day Deere & Company Credit Agreement]
SCHEDULE I
TERMS OF SUBORDINATION
“Senior Indebtedness” means the principal of (and premium, if any) and unpaid interest and commitment fees on (a) indebtedness (including matured and contingent reimbursement obligations in respect of letters of credit) of John Deere Capital Corporation (the “Capital Corporation”) (including indebtedness of others guaranteed by the Capital Corporation), other than the indebtedness evidenced by the Securities [such term to be defined as the debt to be issued under the indenture or agreement to which this Schedule relates] and [specify any other indebtedness of the Capital Corporation (including indebtedness of others guaranteed by the Capital Corporation)], provided that indebtedness of the Capital Corporation under the credit agreement to which these Terms of Subordination are attached may not be so specified, whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed, for money borrowed, unless in the instrument creating or evidencing the same or pursuant to which the same is outstanding it is provided that such indebtedness is not senior or prior in right of payment to the Securities, and (b) renewals, extensions, modifications and refundings of any such indebtedness.
SUBORDINATION
Section 1. Agreement to Subordinate.
The Capital Corporation, for itself, its successors and assigns, covenants and agrees, and each holder of Securities, by such holder’s acceptance thereof, likewise covenants and agrees, that the payment of the principal of (and premium, if any) and interest on each and all of the Securities is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all Senior Indebtedness.
Section 2. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities.
Upon any distribution of assets of the Capital Corporation upon any dissolution, winding up, liquidation or reorganization of the Capital Corporation, whether in bankruptcy, insolvency, reorganization or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Capital Corporation or otherwise (subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in this Agreement upon the Senior Indebtedness and the holders thereof with respect to the Securities by a lawful plan of reorganization under applicable bankruptcy law),
(a)the holders of Senior Indebtedness shall be entitled to receive payment in full of the principal thereof (and premium if any) and the interest and commitment fees due on the Senior Indebtedness before the holders of the Securities are entitled to receive any payment upon the principal of (or premium, if any) or interest on indebtedness evidenced by the Securities; and
(b) any payment or distribution of assets of the Capital Corporation of any kind or character, whether in cash, property or securities, to which the holders of the Securities or any trustee therefor would be entitled except for the provisions of this Article shall be paid by the liquidating trustee or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the
I-2
principal of (and premium, if any) and interest, commitment fees and letter of credit fees on the Senior Indebtedness held or represented by each holder of Senior Indebtedness, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c)in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Capital Corporation of any kind or character, whether in cash, property or securities, shall be received by any trustee for the holders of the Securities or the holders of the Securities before all Senior Indebtedness is paid in full, such payment or distribution shall be paid over, upon written notice to any trustee for the holders of the Securities, to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably as aforesaid, for application to the payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the holders of the Securities shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Capital Corporation applicable to Senior Indebtedness until the principal of (and premium, if any) and interest on the Securities shall be paid in full and no such payments or distributions to the holders of the Securities of cash, property or securities otherwise distributable to the holders of Senior Indebtedness shall, as between the Capital Corporation, its creditors other than the holders of Senior Indebtedness, and the holders of the Securities, be deemed to be a payment by the Capital Corporation to or on account of the Securities. It is understood that the provisions of this Article are, and are intended, solely for the purpose of defining the relative rights of the holders of the Securities, on the one hand, and the holders of Senior Indebtedness, on the other hand. Nothing contained in this Article or elsewhere in this Agreement or in the Securities is intended to or shall impair, as between the Capital Corporation, its creditors other than the holders of Senior Indebtedness, and the holders of the Securities, the obligation of the Capital Corporation, which is unconditional and absolute, to pay to the holders of the Securities the principal of (and premium, if any) and interest on the Securities as and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the holders of the Securities and creditors of the Capital Corporation other than the holders of Senior Indebtedness, nor shall anything herein or in the instruments or other evidence of the Securities prevent any trustee for the holders of the Securities or the holder of any Securities from exercising all remedies otherwise permitted by applicable law upon default under this Agreement or such instrument or other evidence, subject to the rights, if any, under this Article of the holders of Senior Indebtedness in respect of cash, property or securities of the Capital Corporation received upon the exercise of any such remedy.
Section 3. No Payment on Securities in Event of Non-Payment When Due of Senior Indebtedness.
No payment by the Capital Corporation on account of principal (or premium, if any), sinking funds, or interest on the Securities shall be made unless full payment of amounts then due for principal, premium, if any, sinking funds and interest and letter of credit fees and commitment fees on Senior Indebtedness has been made or duly provided for in money or money’s worth.
SCHEDULE II
COMMITMENTS
Bank |
Commitment |
JPMorgan Chase Bank, N.A. |
$253,125,000 |
Bank of America, N.A. |
$253,125,000 |
Citibank, N.A. |
$253,125,000 |
Barclays Bank PLC |
$210,937,500 |
HSBC Bank USA, N.A. |
$210,937,500 |
MUFG Bank, Ltd. |
$210,937,500 |
Royal Bank of Canada |
$210,937,500 |
The Toronto-Dominion Bank, New York Branch |
$187,500,000 |
Credit Agricole Corporate and Investment Bank |
$168,750,000 |
Deutsche Bank AG, New York Branch |
$168,750,000 |
Goldman Sachs Bank USA |
$168,750,000 |
BNP Paribas |
$112,500,000 |
Commerzbank AG New York Branch |
$112,500,000 |
Banco Bilbao Vizcaya Argentaria, S.A. New York Branch |
$46,875,000 |
Banco Santander, S.A., New York Branch |
$46,875,000 |
The Bank of New York Mellon |
$46,875,000 |
The Bank of Nova Scotia |
$46,875,000 |
PNC Bank, National Association |
$46,875,000 |
Sumitomo Mitsui Banking Corporation |
$46,875,000 |
Standard Chartered Bank |
$46,875,000 |
U.S. Bank National Association |
$46,875,000 |
Wells Fargo Bank, National Association |
$46,875,000 |
Bank of China, Chicago Branch |
$18,750,000 |
ICICI Bank Limited New York Branch |
$18,750,000 |
Nordea Bank Abp, New York Branch |
$18,750,000 |
|
|
|
|
|
|
TOTAL |
$3,000,000,000 |
EXHIBIT A
[FORM OF BORROWING NOTICE]
_________, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent under the
Credit Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Pursuant to subsection 2.1(c) of the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), the undersigned hereby requests that the following Committed Rate Loans be made on __________, 20__ as follows:
NOTE: THE AMOUNT APPEARING IN LINE (1) ABOVE MUST BE AT LEAST EQUAL TO $25,000,000 AND IN A WHOLE MULTIPLE OF $5,000,000 (OR THE FOREIGN
A-2
CURRENCY EQUIVALENT IN THE CASE OF FOREIGN CURRENCY LOANS) AND THE AMOUNTS APPEARING IN EACH OTHER LINE ABOVE MUST BE AT LEAST EQUAL TO $10,000,000 AND IN A WHOLE MULTIPLE OF $1,000,000 (OR THE FOREIGN CURRENCY EQUIVALENT IN THE CASE OF FOREIGN CURRENCY LOANS).
Terms defined in the Credit Agreement shall have the same meanings when used herein.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
[JOHN DEERE BANK S.A.]
By:
Title:
EXHIBIT B
[FORM OF BID LOAN REQUEST]
_______, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent under the Credit
Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are used herein as therein defined.
This is an [Index Rate] [Absolute Rate] Bid Loan Request pursuant to subsection 2.2 of the Credit Agreement requesting quotes for the following Bid Loans:
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NOTE: THE AGGREGATE PRINCIPAL AMOUNTS APPEARING ABOVE MUST BE IN THE AGGREGATE AT LEAST EQUAL TO $25,000,000 AND IN A WHOLE MULTIPLE OF $5,000,000.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
__________
Note: |
Pursuant to the Credit Agreement, a Bid Loan Request may be transmitted by facsimile transmission, or by telephone, immediately confirmed by facsimile transmission. In any case, a Bid Loan Request shall contain the information specified in the second paragraph of this form. |
EXHIBIT C
[FORM OF BID LOAN OFFER]
_______, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent
under the Credit Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are used herein as therein defined.
In accordance with subsection 2.2 of the Credit Agreement, the undersigned Bid Loan Bank offers to make Bid Loans thereunder in the following amounts with the following maturity dates:
Borrowing Date: _________________, 20__
Aggregate Maximum Amount: $________
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Maturity Date 1: |
Maturity Date 2: |
Maturity Date 3: |
Maximum Amount $_____ |
Maximum Amount $_______ |
Maximum Amount $______ |
Rate* ____Amount $______ |
Rate* ____Amount $______ |
Rate* ___Amount $_______ |
Rate* ____Amount $______ |
Rate* ____Amount $______ |
Rate* ___Amount $_______ |
Very truly yours,
[NAME OF BID LOAN BANK]
By:
Name:
Title:
Telephone:
Facsimile:
* If Index Rate Bid Loan, insert percentage above or below Eurocurrency Rate.
EXHIBIT D
[FORM OF BID LOAN CONFIRMATION]
_______, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent
under the Credit Agreement referred to below
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021, among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., as Documentation Agent, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are used herein as therein defined.
In accordance with subsection 2.2 of the Credit Agreement, the undersigned accepts and confirms the offers by Bid Loan Bank(s) to make Bid Loans to the undersigned on ______________, 20__ [Borrowing Date] under said subsection 2.2 in the (respective) amount(s) set forth on the attached list of Bid Loans offered.
Very truly yours,
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
[Borrower to attach Bid Loan Offer list prepared by Administrative Agent with accepted amount entered by the Borrower to right of each Bid Loan Offer].
EXHIBIT E
[FORM OF ASSIGNMENT AND ASSUMPTION]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the date set forth below (the “Effective Date”) and is entered into between the Assignor named below (the “Assignor”) and the Assignee named below (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent below (i) all of the Assignor’s rights and obligations in its capacity as a Bank under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any letters of credit and guarantees included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Bank) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
1.Assignor:______________________________
2.Assignee:______________________________
[and is an affiliate/Approved Fund of [identify Bank]1]
3.Borrower(s):______________________________
4.Administrative Agent:JPMorgan Chase Bank, N.A., as administrative agent under the Credit Agreement
5.Credit Agreement:The $3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021 among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and the
1 Select as applicable.
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other agents parties thereto
6. Assigned Interest:
Aggregate Amount of Commitment/Loans for all Banks |
Amount of Commitment/Loans Assigned |
Percentage Assigned of Commitment/Loans2 |
$ |
$ |
% |
$ |
$ |
% |
$ |
$ |
% |
Effective Date: ______________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The Assignee expressly confirms that it [can/cannot] exempt the Administrative Agent and the Foreign Currency Agent from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law as provided for in subsection 9.1(d) of the Credit Agreement. The Assignee agrees to deliver to the Administrative Agent a completed administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrowers and their affiliates or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
_________________________________
NAME OF ASSIGNOR
By:______________________________
Title:
ASSIGNEE
_________________________________
NAME OF ASSIGNEE
By:______________________________
Title:
2 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Banks.
[Consented to and]1 Accepted:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By_________________________________
Title:
[Consented to:]2
DEERE & COMPANY
By________________________________
Title:
1 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
2 To be added only if the consent of the Borrower and/or other parties is required by the terms of the Credit Agreement.
ANNEX 1
$3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021 (the “Credit Agreement”) among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and the other agents parties thereto
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, (iii) the financial condition of the Borrowers, any of their respective Subsidiaries or affiliates or any other Person obligated in respect of the Credit Agreement or (iv) the performance or observance by each Borrower, any of their Subsidiaries or affiliates or any other Person of any of their respective obligations under the Credit Agreement.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Bank under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Bank, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Bank thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Bank thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.1 thereof, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Bank and (v) if it is a Non-U.S. Bank, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Bank.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and
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Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by email or telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
EXHIBIT F
[RESERVED]
EXHIBIT G
[FORM OF OPINION OF GENERAL COUNSEL TO THE COMPANY]
[Closing Date]
To each of the Banks parties to
the Credit Agreement referred to
below and to JPMorgan Chase
Bank, N.A., as Administrative Agent
Deere & Company and
John Deere Capital Corporation
364-Day Credit Agreement
Ladies and Gentlemen:
This opinion is furnished to you pursuant to subsection 4.1(c) of the $3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021 (the “Credit Agreement”) among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation” and, together with the Company, the “U.S. Borrowers”) and John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Terms defined in the Credit Agreement and not otherwise defined in this opinion are used herein as defined in the Credit Agreement.
I am General Counsel of the Company and have also acted as counsel for the Capital Corporation in this matter. I am familiar with the corporate history and organization of each U.S. Borrower and of its Subsidiaries and the proceedings relating to the authorization, execution and delivery by each U.S. Borrower of the Credit Agreement. In that connection I have examined or caused to have examined:
1.The Credit Agreement;
2. |
The documents furnished by each of the U.S. Borrowers pursuant to Section 4 of the Credit Agreement; |
3. |
The Certificates of Incorporation of the U.S. Borrowers and all amendments thereto (the “Charters”); |
4. |
The bylaws of the U.S. Borrowers and all amendments thereto (the “Bylaws”); and |
5. |
Certificates of the Secretary of State of Delaware, each dated a recent date, attesting to the continued corporate existence and good standing of the U.S. Borrowers in that State. |
In addition, I have reviewed or caused to have reviewed such of the corporate proceedings of the U.S. Borrowers, and have examined or caused to have examined such documents, corporate records, and other instruments relating to the organization of the U.S. Borrowers and their respective Subsidiaries and such other agreements and instruments to which the U.S. Borrowers and their respective Subsidiaries are parties, as I consider necessary as a basis for the opinions hereinafter
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expressed. I have assumed the due execution and delivery, pursuant to due authorization, of the Credit Agreement by the Banks, the Administrative Agent, the Syndication Agent, and the Documentation Agent, and the authenticity of all documents submitted to me as originals and the conformity to the original documents of all documents submitted to me as certified, conformed or photostatic or electronic copies.
I am qualified to practice law in the State of Illinois and the State of Iowa and do not purport to be an expert on, and do not express any opinion herein concerning, any laws other than the laws of the State of Illinois and the State of Iowa, the General Corporation Law of the State of Delaware and the Federal laws of the United States.
Based upon the foregoing and upon such investigation as I have deemed necessary, I am of the following opinion:
1. |
Each of the Company and the Capital Corporation is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to carry on its business as now being conducted and to own its properties. |
2. |
The execution, delivery and performance by each U.S. Borrower of the Credit Agreement are within such U.S. Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not (i) contravene, or constitute a default under the Charter or the Bylaws of such U.S. Borrower, any judgment, law, rule or regulation applicable to such U.S. Borrower, or any Contractual Obligation by which such U.S. Borrower is bound or (ii) result in the creation of any lien, charge or encumbrance upon any of its property or assets. The Credit Agreement has been duly executed and delivered on behalf of each U.S. Borrower. |
3. |
No authorization, approval, or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by each U.S. Borrower of the Credit Agreement. |
4. |
There is no pending or, to the best of my knowledge, threatened action or proceeding against either U.S. Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator which is likely to have a materially adverse effect upon the financial condition or operations of such U.S. Borrower and its Subsidiaries taken as a whole. |
A copy of this opinion letter may be delivered by any of you to any person that becomes a Bank in accordance with the provisions of the Credit Agreement. Any such person may rely on the opinions expressed above as if this opinion letter were addressed and delivered to such person on the date hereof.
This opinion letter is rendered to you in connection with the transactions contemplated by the Credit Agreement. This opinion letter may not be relied upon by you or any person entitled to rely on this opinion pursuant to the preceding paragraph for any other purpose without my prior written consent.
This opinion letter speaks only as of the date hereof. I expressly disclaim any responsibility to advise you of any development or circumstance of any kind, including any change of law or fact, that may occur after the date of this opinion letter even though such development or circumstance
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may affect the legal analysis, a legal conclusion or any other matter set forth in or relating to this opinion letter.
Very truly yours,
Mary K.W. Jones
EXHIBIT H
[FORM OF ENFORCEABILITY OPINION OF SPECIAL NEW YORK COUNSEL
TO THE BORROWERS]
[Closing Date]
To the Agent
and each of the Banks under the
Credit Agreement (referred to below)
on the date hereof:
Re: |
$3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021, by and among Deere & Company, a Delaware corporation (the “Company”), John Deere Capital Corporation, a Delaware corporation (the “Capital Corporation”), John Deere Bank S.A., a public limited company organized under the laws of Luxembourg (“JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), the financial institutions from time to time party thereto as lenders (the “Lenders”), JPMorgan Chase Bank, N.A., as the Administrative Agent for the Banks (in such capacity, the “Agent”) and the other parties thereto (such credit agreement herein referred to as the “Credit Agreement”) |
Ladies and Gentlemen:
We are issuing this opinion letter in our capacity as counsel to and at the request of the Borrowers in respect of the Credit Agreement.
The opinions expressed herein are being provided pursuant to Section 4.1(c) of the Credit Agreement. Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement (with references herein to the Credit Agreement and each document defined therein meaning the Credit Agreement and each such document as executed and delivered on the date hereof). The Banks and the Agent are sometimes referred to in this opinion letter as “you”.
In connection with the preparation of this letter, we have, among other things, reviewed executed counterparts of the Credit Agreement.
Subject to the assumptions, qualifications, exclusions and other limitations which are identified in this opinion letter, we advise you, and with respect to each legal issue addressed in this opinion letter, it is our opinion, that (a) the Credit Agreement is a valid and binding obligation of each Borrower that is a party thereto and is enforceable against such Borrower in accordance with its terms and (b) the guarantee by the Capital Corporation pursuant to Section 2.27 of the Credit Agreement is a valid and binding obligation of the Capital Corporation and is enforceable against the Capital Corporation in accordance with its terms.
With your consent, we have assumed for purposes of this letter and the opinions herein:
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(a) that each document we have reviewed for purposes of this letter is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each such document are genuine, and that all natural persons who have signed any document have the legal capacity to do so;
(b) that the Credit Agreement and every other agreement we have examined for purposes of this letter has been duly authorized, executed and delivered by the parties thereto and constitutes a valid and binding obligation of each party to that document, enforceable against each such party in accordance with its respective terms and that each such party has satisfied all legal requirements that are applicable to such party to the extent necessary to entitle such party to enforce such agreement and that each party to the Credit Agreement is in good standing and duly incorporated or organized under the laws of its jurisdiction of organization except we do not assume in this paragraph (b) that the Credit Agreement is a valid and binding obligation enforceable in accordance with its terms against the Borrowers;
(c) there are no agreements or understandings among the parties, written or oral (other than the Credit Agreement), and there is no usage of trade or course of prior dealing among the parties that would, in either case define, supplement or qualify the terms of the Credit Agreement; and
(d) that the status of the Credit Agreement as legally valid and binding obligations of the parties is not affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders, or (iii) failures to obtain required consents, approvals or authorizations from, or make required registrations, declarations or filings with, governmental authorities.
In preparing this letter, we have relied without any independent verification upon: (i) information contained in certificates obtained from governmental authorities; (ii) factual information represented to be true in the Credit Agreement; (iii) factual information provided to us in a support certificate signed by each of the Borrowers; and (iv) factual information we have obtained from such other sources as we have deemed reasonable; and we have examined the originals or copies certified to our satisfaction, of the Credit Agreement and other corporate records of the Borrowers as we deem necessary for or relevant to our opinions. We have assumed without investigation that the information upon which we have relied is accurate and does not omit disclosures necessary to prevent such information from being misleading.
The terms “knowledge,” “actual knowledge” and “aware” whenever used in this letter with respect to our firm mean conscious awareness at the time this letter is delivered on the date it bears by the lawyers with Kirkland & Ellis LLP at that time who spent substantial time representing the Borrower in connection with the Credit Agreement (herein called our “Designated Transaction Lawyers”).
Our opinion (an “enforceability opinion”) in this letter that any particular contract is a valid and binding obligation or is enforceable in accordance with its terms is subject to: (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and judicially developed doctrines in this area such as substantive consolidation and equitable subordination; (ii) the effect of general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity); (iii) an
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implied covenant of good faith and fair dealing; and (iv) other commonly recognized statutory and judicial constraints on enforceability including statutes of limitations. “General principles of equity” include but are not limited to: principles limiting the availability of specific performance and injunctive relief; principles which limit the availability of a remedy under certain circumstances where another remedy has been elected; principles requiring reasonableness, good faith and fair dealing in the performance and enforcement of an agreement by the party seeking enforcement; principles which may permit a party to cure a material failure to perform its obligations; and principles affording equitable defenses such as waiver, laches and estoppel.
Our enforceability opinion is also subject to the qualification that certain provisions of the Credit Agreement may not be enforceable in whole or in part, although the inclusion of such provisions does not render the Credit Agreement invalid, and the Credit Agreement and the law of the State of New York contain adequate remedial provisions for the practical realization of the rights and benefits afforded thereby.
Our enforceability opinion is further subject to the effect of rules of law that may render guaranties or other similar instruments or agreements unenforceable under circumstances where your actions, failures to act or waivers, amendments or replacement of the Credit Agreement (i) so radically change the essential nature of the terms and conditions of the guaranteed obligations and the related transactions that, in effect, a new relationship has arisen between you and the Borrowers which is substantially and materially different from that presently contemplated by the Credit Agreement, (ii) release the primary obligor, or (iii) impair the guarantor’s recourse against the primary obligor.
We also express no opinion regarding the enforceability of any so-called “fraudulent conveyance” or “fraudulent transfer savings” clauses and any similar provisions in the Credit Agreement to the extent such provisions purport to limit the amount of the obligations of any party or the right to contribution of any other party with respect to such obligations.
We render no opinion regarding the validity, binding effect or enforceability of the Credit Agreement with respect to any Borrower to the extent the Credit Agreement involves any obligation (including any guaranty) of such Borrower with respect to any “swap” (as such term is defined in the Commodity Exchange Act) if such Borrower is not an “eligible contract participant” (as such term is defined in the Commodity Exchange Act) at the time such obligation is incurred by such Borrower.
We render no opinion with regard to usury or other laws limiting or regulating the maximum amount of interest that may be charged, collected, received or contracted for other than the internal laws of the State of New York, and without limiting the foregoing, we expressly disclaim any opinion as to the usury or other such laws of any other jurisdiction (including laws of other states made applicable through principles of Federal preemption or otherwise) which may be applicable to the transactions contemplated by the Credit Agreement.
Nothing contained in this letter covers or otherwise addresses any of the following types of provisions which may be contained in the Credit Agreement:
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(i) provisions mandating contribution towards judgments or settlements among various parties;
(ii) waivers of benefits and rights to the extent they cannot be waived under applicable law;
(iii) provisions providing for penalties, liquidated damages, acceleration of future amounts due (other than principal) without appropriate discount to present value, late charges, prepayment charges, interest upon interest, or increased interest rates upon default;
(iv) provisions which might require indemnification or contribution in violation of general principles of equity or public policy, including, without limitation, indemnification or contribution obligations which arise out of the failure to comply with applicable state or federal securities laws;
(v) agreements to submit to the jurisdiction of any particular court or other governmental authority (either as to personal or subject matter jurisdiction); provisions restricting access to courts; waiver of service of process requirements which would otherwise be applicable; waiver of the right to a jury trial and provisions otherwise purporting to affect the jurisdiction and venue of courts;
(vi) choice-of-law provisions;
(vii) provisions regarding arbitration;
(viii) covenants not to compete;
(ix) provisions that authorize you to set off and apply any deposits at any time held, and any other indebtedness at any time owing, by you to or for the account of the Borrowers, or
(x) requirements in the Credit Agreement specifying that provisions thereof may only be waived in writing.
Except as expressly otherwise set forth in this letter, our advice on every legal issue addressed in this letter is based exclusively on the internal laws of the State of New York or the Federal law of the United States which, in each case, in our experience is generally applicable both to general business organizations which are not engaged in regulated business activities and to transactions of the type contemplated in the Credit Agreement, on the one hand, and you, on the other hand (but without our having made any special investigation as to any other laws), except that we express no opinion or advice as to any law or legal issue (a) which might be violated by any misrepresentation or omission or a fraudulent act, or (b) to which any Borrower may be subject as a result of your legal or regulatory status, your sale or transfer of the Loans or interests therein or your involvement in the transactions contemplated by the Credit Agreement.
None of the opinions or other advice contained in this letter considers or covers: (i) any federal or state securities (or “blue sky”) laws or regulations or Federal Reserve Board margin
H-5
regulations or (ii) federal or state antitrust and unfair competition laws and regulations, pension and employee benefit laws and regulations, compliance with fiduciary duty requirements, federal and state environmental, land use and subdivision, tax, racketeering (e.g., RICO), health and safety (e.g., OSHA), and labor laws and regulations, federal and state laws, regulations and policies concerning national and local emergency, possible judicial deference to acts of sovereign states and criminal and civil forfeiture laws, and other federal and state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes).
We also express no opinion regarding any laws relating to terrorism or money laundering, including Executive Order No. 13224, 66 Fed. Reg. 49079 (published September 25, 2001) (the “Terrorism Executive Order”) or any related enabling legislation or any other similar executive order (collectively with the Terrorism Executive Order, the “Executive Orders”), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56, the “Patriot Act”), any sanctions and regulations promulgated under authority granted by the Trading with the Enemy Act, 50 U.S.C. App. 1-44, as amended from time to time, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, as amended from time to time, the Iraqi Sanctions Act, Publ. L. No. 101-513; United Nations Participation Act, 22 U.S.C. § 287c, as amended from time to time, the International Security and Development Cooperation Act, 22 U.S.C. § 2349 aa-9, as amended from time to time, The Cuban Democracy Act, 22 U.S.C. §§ 6001-10, as amended from time to time, The Cuban Liberty and Democratic Solidarity Act, 18 U.S.C. §§ 2332d and 2339b, as amended from time to time, and The Foreign Narcotics Kingpin Designation Act, Publ. L. No. 106-120, as amended from time to time.
We express no opinion as to what law might be applied by any other courts to resolve any issue addressed in this letter. We advise you that issues addressed by this letter may be governed in whole or in part by other laws, but we express no opinion as to whether any relevant difference exists between the laws upon which our opinions are based and any other laws which may actually govern.
This opinion letter speaks as of the time of its delivery on the date it bears. We do not assume any obligation to provide you with any subsequent opinion or advice by reason of any fact about which our Designated Transaction Lawyers did not have actual knowledge at that time, by reason of any change subsequent to that time in any law covered by any of our opinions, or for any other reason.
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You may rely upon this letter only for the purpose served by the provision in the Credit Agreement cited in the second paragraph of this opinion letter in response to which it has been delivered. Without our written consent: (i) no person other than you may rely on this opinion letter for any purpose; (ii) this opinion letter may not be cited or quoted in any financial statement, prospectus, private placement memorandum or other similar document; (iii) this opinion letter may not be cited or quoted in any other document or communication which might encourage reliance upon this opinion letter by any person or for any purpose excluded by the restrictions in this paragraph; and (iv) copies of this opinion letter may not be furnished to anyone for purposes of encouraging such reliance. Notwithstanding the foregoing, financial institutions which subsequently become Banks in accordance with the terms of Section 10.5 of the Credit Agreement may rely on this opinion letter as of the time of its delivery on the date hereof as if this letter were addressed to them.
Sincerely,
KIRKLAND & ELLIS LLP
EXHIBIT I
[FORM OF EXTENSION REQUEST]
____________________, 20__
JPMorgan Chase Bank, N.A.,
as Administrative Agent
500 Stanton Christiana Road, NCC5, Floor 01
Newark, Delaware 19713-2107
United States
Attention: Loan & Agency Services Group
Telephone: (302) 634-9770
Facsimile: (302) 634-4733
Ladies and Gentlemen:
Reference is made to the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021, among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”). Terms defined in the Credit Agreement are used herein as therein defined.
This is an Extension Request pursuant to subsection 2.16 of the Credit Agreement requesting an extension of the Termination Date to [INSERT REQUESTED TERMINATION DATE]. Please transmit a copy of this Extension Request to each of the Banks.
Very truly yours,
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
JOHN DEERE BANK S.A.
By:
Title:
EXHIBIT J
[FORM OF W-8BEN-E TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form W-8BEN-E of
the Internal Revenue Service]
[Bank’s Letterhead]
________________, 20__
Deere & Company
One John Deere Place
Moline, Illinois 61265
Attention: Treasurer
John Deere Capital Corporation
First National Bank Building
1 East First Street
Reno, Nevada 89501
Attention: Manager
[John Deere Bank S.A.
43, avenue John F. Kennedy
L-1855 Luxembourg
Grand Duchy of Luxembourg
Attention: ]
Re: |
$3,000,000,000 364-Day Credit Agreement
|
Ladies and Gentlemen:
In connection with the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021, among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent, we hereby represent and warrant that [name of Bank, address] is a [name of Country] corporation and is currently exempt from any U.S. federal withholding tax on payments to it from U.S. sources by virtue of compliance with the provisions of the Income Tax Convention between the United States and [name of Country] signed [date], [as amended]. Our fiscal year is the twelve months ending [________________].
The undersigned (a) is a [corporation] organized under the laws of [_______] whose [registered] business is managed or controlled in [_______], (b) [does not have a permanent establishment or fixed base in the United States] [does have a permanent establishment or fixed base in the United States but the above Agreement is not effectively connected with such permanent establishment or fixed base], (c) is not exempt from tax on the income in [_______] and (d) is the beneficial owner of the income.
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We enclose herewith two copies of Form W-8BEN-E of the U.S. Internal Revenue Service.
Yours faithfully,
[NAME OF BANK]
By:
Title:
cc:JPMorgan Chase Bank, N.A., as Administrative Agent
EXHIBIT K
[FORM OF W-8ECI TAX LETTER]
[To be sent in DUPLICATE and accompanied
by TWO executed copies of Form W-8ECI of
the Internal Revenue Service]
[Bank’s Letterhead]
______________, 20__
Deere & Company
One John Deere Place
Moline, Illinois 61265
Attention: Treasurer
John Deere Capital Corporation
First National Bank Building
1 East First Street
Reno, Nevada 89501
Attention: Manager
[John Deere Bank S.A.
43, avenue John F. Kennedy
L-1855 Luxembourg
Grand Duchy of Luxembourg
Attention: ]
Re: |
$3,000,000,000 364-Day Credit Agreement
|
Ladies and Gentlemen:
In connection with the above $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021, among Deere & Company, John Deere Capital Corporation, John Deere Bank S.A., the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent, we hereby represent and warrant that [name of Bank, address] is a [corporation] and is entitled to exemption from U.S. federal withholding tax on payments to it under the Agreement by virtue of Section 1441(c)(1) of the Internal Revenue Code of the United States of America and Treasury Regulation Section 1.1441-4(a) thereunder.
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We enclose herewith two copies of Form W-8ECI of the U.S. Internal Revenue Service.
Yours faithfully,
[NAME OF BANK]
By:
Title:
cc:JPMorgan Chase Bank, N.A., as Administrative Agent
EXHIBIT L
[FORM OF REPLACEMENT BANK AGREEMENT]
THIS AGREEMENT, dated as of _____, 20__ (“Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”) ____________ (“New Bank”) and JPMorgan Chase Bank, N.A., as Administrative Agent for the Existing Banks referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Capital Corporation, JD Luxembourg, the several financial institutions parties thereto (the “Existing Banks”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent are parties to the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021 (as the same may have been or may hereafter be amended, supplemented or otherwise modified, the “Credit Agreement”; terms defined therein being used herein as therein defined);
WHEREAS, subsection 2.19 of the Credit Agreement provides that one or more financial institutions (which may be Existing Banks) may be added as a “Bank” or “Banks” for purposes of the Credit Agreement upon the cancellation of all or a portion of the Commitments pursuant to subsection 2.13(a), (b) or (c), 2.16(c) or 2.17(b) of the Credit Agreement or the expiration of all or a portion of the Commitments pursuant to subsection 2.16(b) of the Credit Agreement or upon a Defaulting Bank becoming a Cancelled Bank and the execution of an agreement in substantially the form of this Agreement;
WHEREAS, the Borrowers have cancelled or there have expired an aggregate principal amount of Commitments equal to $______which have not heretofore been replaced (the “Cancelled Commitments”; the Banks that are maintaining or have maintained the Cancelled Commitments being collectively referred to as “Cancelled Banks”); such Cancelled Commitments being on the date hereof, or on the date of notice of cancellation hereof having been, utilized as follows:
Principal Amount |
Last day of
|
|
I |
Unused Portion |
N/A |
II |
Committed Rate Loans |
|
Eurocurrency Loans
1
|
|
|
|
ABR Loans |
N/A |
III |
Bid Loans |
|
1
|
|
|
IV |
Negotiated Rate Loans |
|
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1
|
|
WHEREAS, the cancellation of the Cancelled Commitments is effective in accordance with the Credit Agreement; and
WHEREAS, [the Borrowers desire the New Bank to become, and the New Bank is agreeable, to becoming, a “Bank” for purposes of the Credit Agreement] [the New Bank is an Existing Bank and the Borrowers desire the New Bank to increase, and the New Bank is agreeable to increasing, its Commitment]*1 on the terms contained herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereto agree as follows:
1. Benefits of Agreement. The Borrowers, the Administrative Agent and the New Bank hereby [agree that on and as of the date hereof the New Bank shall be] [confirm that the New Bank is] a “Bank” for all purposes and shall [continue to] be bound by and entitled to the benefits of the Credit Agreement [as if the New Bank had been named on the signature pages thereof], provided that the New Bank shall not assume and shall, except as herein provided, have no obligations in respect of any Loans outstanding on the date hereof and made by any [Existing Bank.] [Cancelled Bank.]*
2. Commitment of New Bank. The Borrowers, the Administrative Agent and the New Bank hereby agree that on and as of the dates set forth below the New Bank shall replace, as specified herein, _% (such percentage being referred to as the New Bank’s “Percentage”) of each utilization of the Cancelled Commitments [set forth in the third recital hereof] [set forth under the caption “Committed Rate Loans”] and that the aggregate Commitment of the New Bank shall on and as of the date hereof be $_____2. In connection therewith, the Borrowers, the Administrative Agent and the New Bank hereby agree as follows3:
(i) for purposes of determining such New Bank’s pro rata share of each Committed Rate Loan borrowing advanced on or after the date hereof such Bank’s Commitment shall be equal to $[same as above];
(ii) the unused and available portion of such New Bank’s Commitment shall be deemed utilized by its Percentage of the Committed Rate Loans made by the Cancelled Banks and listed in the third recital hereof. In furtherance thereof, the unused and available portion of such New Bank’s Commitment shall, on the earlier of (x) the last day of each Interest Period specified for each outstanding Committed Rate Loan in the third recital hereof (and the payment in full to the Cancelled Banks of the principal thereof and accrued interest thereon) and (y) the prepayment of the principal of such Loans
* |
As appropriate for New or Existing Banks. |
** |
Insert amount equal to sum of New Bank’s existing Commitment, if any, plus New Bank’s Percentage of Cancelled Commitments. |
*** |
The following clauses (ii)-(iii) may be altered to reflect the agreements among the Cancelled Bank, the New Bank and the Borrowers provided such agreements do not adversely affect any Existing Bank or the Administrative Agent. |
L-3
together with accrued interest thereon, automatically and without any further action by any party increase by an amount equal to the New Bank’s Percentage of such Loan; and
(iii) [(A)] [concurrently with the execution hereof the New Bank shall disburse to each Borrower in immediately available funds such amount as shall be necessary so that (x) the ratio which each Bank’s outstanding ABR Loans bears to all of the outstanding ABR Loans and (y) the ratio which each Bank’s outstanding SONIA Loans bears to all of the outstanding SONIA Loans, in each case equals the ratio which each Bank’s Commitment (determined, for the New Bank, in accordance with clause (i) above) bears to all of the Commitments (determined, for the New Bank, in accordance with the immediately foregoing parenthetical);]
[(B)] [on the last day of each Interest Period for each outstanding Eurocurrency Loan, automatically and without any further action by either Borrower, the New Bank shall disburse to each Borrower in immediately available funds such amounts as shall be necessary so that the ratio which each Bank’s outstanding Eurocurrency Loans, bears to all of the outstanding Eurocurrency Loans, equals the ratio which each Bank’s Commitment (determined, for the New Bank, in accordance with clause (i) hereof) bears to all of the Commitments (determined, for the New Bank, in accordance with the immediately foregoing parenthetical);]
[(C)] [Funding of outstanding Bid Loans of Cancelled Banks]*
[(D)] [Funding of outstanding Negotiated Rate Loans of Cancelled Banks].*4
3. Representation and Warranty of Borrowers. The Borrowers hereby represent and warrant that after giving effect to the provisions of paragraph 2 hereof the aggregate principal amount of the Commitments of all Banks (including, without limitation, the Commitment of the New Bank but excluding the cancelled or expired portion of the Commitments of the Cancelled Banks) under the Credit Agreement do not exceed the aggregate principal amount of the Commitments in effect immediately prior to the cancellation referred to in the third recital hereof.
4. Confidentiality. The New Bank agrees to [continue to] be bound by the provisions of subsection 10.7 of the Credit Agreement.
[5. Taxes. The New Bank (i) represents to the Administrative Agent and the Borrowers that [it is incorporated under the laws of the United States or a state thereof][under applicable law and treaties no taxes will be required to be withheld by the Administrative Agent or the Borrowers with respect to any payments to be made to such New Bank in respect of the Loans], (ii) represents that it has furnished to the Administrative Agent and the Borrowers (A) [a statement that it is incorporated under the laws of the United States or a state thereof][a letter in duplicate in the form of Exhibit [J][K] to the Credit Agreement and two duly completed copies of United States Internal Revenue Service Form [W-8BEN-E] [W-8ECI] [successor applicable form], certifying that such New Bank is entitled to receive payments under the Credit Agreement without deduction or withholding of any United States federal income taxes], and (B) [an Internal Revenue Service Form [W-8BEN-E] [successor applicable form] to establish an exemption from United States backup withholding tax, and (iii) agrees to provide the Administrative Agent and the Borrowers a new Form [W-8BEN-E] and Form [W-8ECI], or successor applicable form or other manner of certification, on or before the date that any such letter or form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent letter and form
* |
To be completed upon agreement of Borrowers and New Bank. |
L-4
previously delivered by it, certifying in the case of a Form [W-8BEN-E] [W-8ECI] that it is entitled to receive payments under the Credit Agreement without deduction or withholding of any United States federal income tax, and in the case of a Form [W-8BEN-E] establishing exemption from United States backup withholding tax.]5
[5][6]. Miscellaneous. (a) This Agreement may be executed by the parties hereto in separate counterparts and all of the counterparts taken together shall constitute one and the same instrument and shall be effective only upon receipt by the Administrative Agent of all of the counterparts.
(b) This Agreement shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
* |
Use for non-Existing Banks. |
L-5
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered as of the day and year first above written.
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
JOHN DEERE BANK S.A.
By:
Title:
[NAME OF NEW BANK]
By:
Title:
[Address]
Telephone:
Facsimile:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By:
Title:
EXHIBIT M
[FORM OF BID LOAN OR NEGOTIATED RATE LOAN NOTE]
PROMISSORY NOTE
$__________New York, New York___________ __, 20__
FOR VALUE RECEIVED, the undersigned, [DEERE & COMPANY] [JOHN DEERE CAPITAL CORPORATION], a Delaware corporation (the “Borrower”), hereby promises to pay on [insert maturity date or dates] to ________________ or registered assigns (the “Bank”) at the office of [JPMorgan Chase Bank, N.A. located at 383 Madison Avenue, New York, New York 10179 -- for Bid Loan Note] [Name and address of Bank -- for Negotiated Rate Loan Note], in lawful money of [the United States of America] and in immediately available funds, the principal sum of ______________[DOLLARS ($____________)]. The undersigned further agrees to pay interest in like money at such office on the unpaid principal amount hereof from time to time from the date hereof [at the rate of ___% per annum -- for Bid Loan Note] [specify rate for Negotiated Rate Loan Note] (calculated on the basis of a year of 360 days and actual days elapsed) until the due date hereof (whether at the stated maturity, by acceleration, or otherwise) and thereafter at the rates determined or agreed in accordance with subsection 2.2(e) of the $3,000,000,000 364-Day Credit Agreement, dated as of March 29, 2021 (the “Credit Agreement”), among the Borrower, [Deere & Company] [John Deere Capital Corporation], John Deere Bank S.A., the Bank, the other financial institutions parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Interest shall be payable on _______________. This Note may be prepaid pursuant to the provisions of subsection 2.6 of the Credit Agreement.
This Note is one of the [Bid] [Negotiated Rate Loan] Notes referred to in, is subject to and is entitled to the benefits of, the Credit Agreement, which Credit Agreement, among other things, contains provisions for acceleration of the maturity hereof upon the occurrence of any one or more of the Events of Default specified in the Credit Agreement.
Terms defined in the Credit Agreement are used herein with their defined meanings unless otherwise defined herein. This Note shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
[DEERE & COMPANY]
[JOHN DEERE CAPITAL CORPORATION]
By:
Title:
EXHIBIT N
FORM OF
NEW BANK SUPPLEMENT
SUPPLEMENT, dated _______ __, to the $3,000,000,000 364-Day Credit Agreement (as in effect on the date hereof, the “Credit Agreement”) dated as of March 29, 2021, among Deere & Company (the “Company”), John Deere Capital Corporation, John Deere Bank S.A., the banks and other financial institutions from time to time party thereto (each a “Bank,” and together, the “Banks”), JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”) for the Banks, Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Unless the context otherwise requires, all capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Credit Agreement provides in subsection 2.20 thereof that any bank or financial institution, although not originally a party thereto, may become a party to the Credit Agreement in accordance with the terms thereof by executing and delivering to the Borrowers and the Administrative Agent a supplement to the Credit Agreement in substantially the form of this New Bank Supplement; and
WHEREAS, the undersigned was not an original party to the Credit Agreement but now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
The undersigned agrees to be bound by the provisions of the Credit Agreement and agrees that it shall, on the date this New Bank Supplement is accepted by the Borrowers and the Administrative Agent, become a Bank for all purposes of the Credit Agreement to the same extent as if originally a party thereto, with a Commitment of $__________________.
The undersigned (a) represents and warrants that it is legally authorized to enter into this New Bank Supplement; (b) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements delivered pursuant to Section 5.1 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this New Bank Supplement; (c) agrees that it has made and will, independently and without reliance upon any Agent or any other Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement or any instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes the Administrative Agent to take such action as administrative agent on its behalf and to exercise such powers and discretion under the Credit Agreement or any instrument or document furnished pursuant hereto or thereto as are delegated to the Administrative Agent by the terms thereof, together with such powers as are incidental thereto; and (e) agrees that it will be bound by the provisions of the Credit Agreement and will perform in accordance with its terms all the obligations which by the terms of the Credit Agreement are required to be performed by it as a Bank including, without limitation, its obligation pursuant to subsection 2.17(c), subsection 2.17(d) and subsection 2.17(e) of the Credit Agreement.
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The undersigned’s address for notices for the purposes of the Credit Agreement is as follows:
_______________________
Attention:_______________
_______________________
_______________________
Fax:____________________
N-3
IN WITNESS WHEREOF, the undersigned has caused this New Bank Supplement to be executed and delivered by a duly authorized officer on the date first above written.
[NAME OF NEW BANK]
By:
Title:
Accepted this _____ day of
______________, 20__
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
JOHN DEERE BANK S.A.
By:
Title:
Accepted this _____ day of
______________, 20__
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:
Title:
EXHIBIT O
FORM OF
COMMITMENT INCREASE SUPPLEMENT
SUPPLEMENT, dated _______ 20__, to the $3,000,000,000 364-Day Credit Agreement (as in effect on the date hereof, the “Credit Agreement”) dated as of March 29, 2021, among Deere & Company (the “Company”), John Deere Capital Corporation, John Deere Bank S.A., the banks and other financial institutions from time to time party thereto (each a “Bank,” and together, the “Banks”), JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”), Citibank, N.A., as Documentation Agent, and Bank of America, N.A., as Syndication Agent. Unless the context otherwise requires, all capitalized terms used herein without definition shall have the meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the provisions of subsection 2.20 of the Credit Agreement, the undersigned may increase the amount of its Commitment in accordance with the terms thereof by executing and delivering to the Borrowers and the Administrative Agent a supplement to the Credit Agreement in substantially the form of this Supplement; and
WHEREAS, the undersigned now desires to increase the amount of its Commitment under the Credit Agreement;
NOW THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and conditions of the Credit Agreement, that on the date this Supplement is accepted by the Borrowers and the Administrative Agent it shall have its Commitment increased by $______________, thereby making the amount of its Commitment $______________.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be executed and delivered by a duly authorized officer on the date first above written.
[NAME OF BANK]
By:
Title:
Accepted this _____ day of
______________, 20__
DEERE & COMPANY
By:
Title:
JOHN DEERE CAPITAL CORPORATION
By:
Title:
JOHN DEERE BANK S.A.
By:
Title:
Accepted this _____ day of
______________, 20__
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:
Title:
EXHIBIT P-1
FORM OF
Certificate of Non-Bank Status
(For Foreign Banks that Are not Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code and (v) the interest payments in question are not effectively connected with the undersigned’s conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrowers with a certificate of its non-U.S. Person status on IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF BANK]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
EXHIBIT P-2
FORM OF
Certificate of Non-Bank Status
(For Foreign Banks that Are Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Agreement, neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively connected with the undersigned’s or its partners/members’ conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrowers with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrowers and the Administrative Agent and (2) the undersigned shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF BANK]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
EXHIBIT P-3
FORM OF
Certificate of Non-Bank Status
(For Non-U.S. Participants that Are not Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (v) the interest payments in question are not effectively connected with the undersigned’s conduct of a U.S. trade or business.
The undersigned has furnished its participating Bank with a certificate of its non-U.S. Person status on IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Bank in writing and (2) the undersigned shall have at all times furnished such Bank with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF PARTICIPANT]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
EXHIBIT P-4
FORM OF
Certificate of Non-Bank Status
(For Non-U.S. Participants that Are Partnerships for U.S. Federal Income Tax Purposes)
Reference is hereby made to the $3,000,000,000 364-Day Credit Agreement dated as of March 29, 2021 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), among Deere & Company (the “Company”), John Deere Capital Corporation (the “Capital Corporation”), John Deere Bank S.A. (the “JD Luxembourg”, and together with the Company and the Capital Corporation, the “Borrowers”), JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Documentation Agent, Bank of America, N.A., as Syndication Agent, and each Bank from time to time party thereto.
Pursuant to the provisions of Section 2.17 of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a ten-percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively connected with the undersigned’s or its partners/members’ conduct of a U.S. trade or business.
The undersigned has furnished its participating Bank with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or Form W-8BEN-E from each of its partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Bank and (2) the undersigned shall have at all times furnished such Bank with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
[NAME OF PARTICIPANT]
By:______________________________________
Name:
Title:
Date: [ ], 202[_]
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in Registration Statement No. 333-237579 on Form S-3 of our report dated December 16, 2021, relating to the consolidated financial statements of John Deere Capital Corporation and subsidiaries appearing in this Annual Report on Form 10-K for the year ended October 31, 2021.
/s/ DELOITTE & TOUCHE LLP
Chicago, Illinois
December 16, 2021
Exhibit 31.1
I, John C. May, certify that:
1. |
I have reviewed this annual report on Form 10-K of John Deere Capital Corporation; |
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. |
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. |
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal controls over financial reporting. |
|
|
|
|
|
Date: |
December 16, 2021 |
|
By: |
/s/ John C. May |
|
|
|
|
John C. May |
|
|
|
|
Chairman and Chief Executive Officer and Principal Executive Officer |
Exhibit 31.2
I, Ryan D. Campbell, certify that:
1. |
I have reviewed this annual report on Form 10-K of John Deere Capital Corporation; |
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. |
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. |
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent function): |
a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
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Date: |
December 16, 2021 |
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By: |
/s/ Ryan D. Campbell |
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Ryan D. Campbell |
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Senior Vice President and |
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Principal Financial Officer and Principal Accounting Officer |
Exhibit 32
18 U.S.C. SECTION 1350
AS REQUIRED BY
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of John Deere Capital Corporation (the “Company”) on Form 10-K for the year ended October 31, 2021, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned hereby certify that to the best of our knowledge:
1. |
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
2. |
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
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December 16, 2021 |
/s/ John C. May |
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Chairman and Chief Executive Officer and |
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John C. May |
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Principal Executive Officer |
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December 16, 2021 |
/s/ Ryan D. Campbell |
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Senior Vice President and Principal Financial Officer and |
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Ryan D. Campbell |
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Principal Accounting Officer |
A signed original of this written statement required by Section 906 has been provided to John Deere Capital Corporation and will be retained by John Deere Capital Corporation and furnished to the Securities and Exchange Commission or its staff upon request.