EXHIBIT 4.2
THIRD AMENDING AGREEMENT
This Amending Agreement made as of the 24th day of February, 0000
X X X X X X N :
XXXX DEERE LIMITED, a corporation incorporated under
the laws of Canada,
("Deere Canada")
OF THE FIRST PART
and -
XXXX DEERE CREDIT INC., a corporation amalgamated under
the laws of Canada,
("Deere Credit")
OF THE SECOND PART
and -
DEERE & COMPANY, a corporation incorporated under the
laws of the State of Delaware,
("Deere")
OF THE THIRD PART
CANADIAN IMPERIAL BANK OF COMMERCE,
ROYAL BANK OF CANADA and
THE TORONTO-DOMINION BANK,
(collectively, the "Lenders")
OF THE FOURTH PART
and -
THE TORONTO-DOMINION BANK,
(the "Agent")
OF THE FIFTH PART
WHEREAS pursuant to the U.S.$612,500,000 loan agreement dated
as of April 5, 1995, as amended by a First Amending Agreement
made as of the 27th day of February, 1996 and by a Second
Amending Agreement made as of the 25th day of February, 1997 (the
"Loan Agreement"), between Deere Canada, Deere Credit (a
successor to Xxxx Deere Finance Limited), the Lenders and the
Agent, the Lenders agreed to make and have made Loans to the
Borrowers;
AND WHEREAS the Borrowers have requested that certain
provisions of the Loan Agreement be modified in the manner
provided for in this Agreement and the Lenders are willing to
agree to such modifications as provided for in this Agreement;
AND WHEREAS each of Deere Canada and Deere Credit has
guaranteed the obligations of the other under the Loan Agreement
pursuant to Guarantees dated as of April 5, 1995 in favour of the
Lenders and the Agent and the Lenders have required as a
condition of entering into this Agreement that Deere Canada and
Deere Credit confirm that such Guarantees are in full force and
effect, unamended;
AND WHEREAS Deere subordinated debts owing to it by Deere
Canada in favour of the Lenders pursuant to a Subordination
Agreement dated April 5, 1995 and the Lenders have required as a
condition of entering into this Agreement that Deere and Deere
Canada confirm that such Subordination Agreement is in full force
and effect, unamended;
NOW THEREFORE in consideration of the premises and in
consideration of other valuable consideration and the sum of
$1.00 now paid by each of the parties hereto to the others, the
receipt and sufficiency whereof is hereby acknowledged, the
parties agree as follows:
1. Defined Terms
All capitalized terms used and not defined herein have the
meanings ascribed to them in the Loan Agreement.
2. Certain Amendments to Loan Agreement
(a) The Loan Agreement is hereby amended by deleting the
reference to "U.S.$612,500,000" from the cover page thereof and
by deleting from the first recital thereto the words
"U.S.$612,500,000" and substituting in their place in the first
recital the words "the Credit Facility Amount";
(b) Section 1.1 of the Loan Agreement is hereby amended by:
(i) inserting the following definition in correct
alphabetical order: " "Third Amendment Effectiveness Date" means
the date on which the Third Amending Agreement made as of
February 24, 1998 becomes effective;";
Page 2
(ii) deleting the definition of "Credit Facility" and
inserting the following in its place:
" "Credit Facility" means the credit facility in
the maximum principal amount equal to the aggregate Commitments,
which on the date hereof is U.S.$525,000,000, as the same may be
increased from time to time pursuant to section 2.21 of the USD
Agreement, which is being extended by the Lenders to the
Borrowers hereunder;";
(iii) deleting the definition of "Credit Facility
Amount" and inserting the following in its place:
" "Credit Facility Amount" means at any time the
aggregate amount of the Commitments at such time (which at the
date hereof is U.S.$525,000,000), as the same may be increased
from time to time pursuant to section 2.21 of the USD
Agreement;"; and
(c) Section 2.1 of the Loan Agreement is hereby amended by
deleting the reference to "U.S.$612,500,000" and substituting in
its place the words "the Credit Facility Amount" and inserting
immediately thereafter the words "as the same may be increased
from time to time pursuant to section 2.21 of the USD Agreement".
3. Conditions to Effectiveness
This Agreement shall become effective on the date on which
all of the following conditions precedent have been satisfied or
waived:
(a) execution and delivery of this Agreement by each
Borrower, each Guarantor, Deere, each Lender and the Agent;
(b) receipt by the Agent, with a counterpart for each
Lender, of a certificate of any Vice-President, the Secretary or
Assistant Secretary of each Borrower, each Guarantor and Deere,
dated the Third Amendment Effectiveness Date, certifying the
names and true signatures of the officers of such Borrowers,
Guarantors and Deere authorized to sign this Agreement, together
with evidence of the incumbency of such Vice-President, Secretary
or Assistant Secretary;
(c) receipt by the Agent, with a counterpart for each
Lender, of a copy of the resolutions in form and substance
satisfactory to the Agent, of the board of directors of each of
the Borrowers and the Guarantors authorizing the execution,
delivery and performance of this Agreement, certified by their
respective Secretary or Assistant Secretary as of the Third
Amendment Effectiveness Date, which certificate shall state that
the resolutions therein certified have not been amended,
modified, revoked or rescinded as of the date of such
certificate; and
Page 3
(d) receipt by the Agent, with a counterpart for each
Lender, of an opinion of Fasken Xxxxxxxx Xxxxxxx, special counsel
to the Borrowers, and an opinion of Xxxxx X. Xxxxxxxx, Esq., or
his successors, as general counsel, or an associate general
counsel, of Deere, each dated the Third Amendment Effectiveness
Date and addressed to the Lenders and the Agent, substantially in
the forms of the opinions of such counsel dated April 5, 1995
with changes therein to reflect that such opinions are in respect
of this Agreement and are rendered on the Third Amendment
Effectiveness Date. Such opinions shall also cover such other
matters incidental to the transactions contemplated by this
Agreement as the Agent shall reasonably require.
4. Amendment and Confirmation of Representations and Warranties
(a) Section 8.1 of the Loan Agreement is hereby amended by
deleting the reference therein to "Xxxx Deere Insurance Company
of Canada" and to "Homelite Canada Limited" and inserting in
their place the names "Xxxx Deere Foundation of Canada" and "Xxxx
Deere Consumer Products Limited".
(b) Section 8.7 of the Loan Agreement is hereby deemed
amended by deleting the date "October 31, 1996" in the third line
and by substituting in lieu thereof the date "October 31, 1997".
(c) The representations and warranties made by each of the
Borrowers in the Loan Agreement, as amended by this Agreement,
are true and correct in all material respects on and as of the
Third Amendment Effectiveness Date, before and after giving
effect to the effectiveness of this Agreement as if made on and
as of the Third Amendment Effectiveness Date except as otherwise
disclosed in writing to the Agent or to the extent such
representations and warranties expressly relate to an earlier
date.
5. USD Agreement
Each of the parties hereto confirms that the USD Agreement
referred to in the Loan Agreement is the U.S.$3,500,000,000
Amended and Restated Credit Agreement dated as of the date hereof
among the USD Borrowers, certain financial institutions, The
Chase Manhattan Bank, as USD Agent, and other agents as the same
may be further amended, restated, supplemented or replaced from
time to time.
6. Confirmation by Guarantors
Each Guarantor hereby consents to the terms and conditions of
this Agreement. Deere Canada hereby confirms that the Guarantee
executed by it dated as of April 5, 1995 has not been released,
discharged, waived or varied by this Agreement, is in full force
and effect, and constitutes a legal, valid and binding obligation
of it. Deere Credit hereby confirms that the Guarantee assumed
by it pursuant to the terms of the Assumption Agreement (as
defined in the Second Amending Agreement made as of the 25th day
of February, 1997) has not been released, discharged, waived or
varied by this Agreement, is in full force and effect and
constitutes a legal, valid and binding obligation of it.
Page 4
7. Confirmation by Deere and Deere Canada
Deere hereby consents to the terms and conditions of this
Agreement and each of Deere and Deere Canada hereby confirms that
the Subordination Agreement executed by it dated April 5, 1995
has not been released, discharged, waived or varied by this
Agreement, is in full force and effect and constitutes a legal,
valid and binding obligation of it. Deere is a party to this
Agreement solely for the purposes of the confirmation contained
in this paragraph.
8. Confirmation
Except as expressly amended, modified and supplemented
hereby, the parties hereto confirm the terms and conditions of
the Loan Agreement and that they are and shall remain in full
force and effect.
9. Governing Law; Counterparts
(a) This Agreement and the rights and obligations of the
parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the Province of
Ontario.
(b) This Agreement may be executed by one or more of the
parties to this Agreement in any number of separate counterparts,
and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. This Agreement may be
delivered by facsimile transmission of the relevant signature
pages hereof.
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
written above.
XXXX DEERE LIMITED,
as Borrower
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
Page 5
XXXX DEERE LIMITED,
as Guarantor
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
XXXX DEERE CREDIT INC.
as Borrower
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
XXXX DEERE CREDIT INC.,
as Guarantor
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
Attested by: DEERE & COMPANY
____________________ By: ____________________
Name: Name:
Title: Title:
By: ____________________
Name:
Title:
Page 6
CANADIAN IMPERIAL BANK OF COMMERCE
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
ROYAL BANK OF CANADA
By: ____________________
Name:
Title:
THE TORONTO-DOMINION BANK
as a Lender
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
THE TORONTO-DOMINION BANK
as Agent
By: ____________________
Name:
Title:
Page 7
THIRD AMENDING AGREEMENT
This Amending Agreement made as of the 24th day of February, 0000
X X X X X X N :
XXXX DEERE LIMITED, a corporation incorporated under
the laws of Canada,
("Deere Canada")
OF THE FIRST PART
and -
XXXX DEERE CREDIT INC., a corporation amalgamated under
the laws of Canada,
("Deere Credit")
OF THE SECOND PART
and -
DEERE & COMPANY, a corporation incorporated under the
laws of the State of Delaware,
("Deere")
OF THE THIRD PART
CANADIAN IMPERIAL BANK OF COMMERCE,
ROYAL BANK OF CANADA and
THE TORONTO-DOMINION BANK,
(collectively, the "Lenders")
OF THE FOURTH PART
and -
THE TORONTO-DOMINION BANK,
(the "Agent")
OF THE FIFTH PART
WHEREAS pursuant to the U.S.$87,500,000 loan agreement dated
as of April 5, 1995, as amended by a First Amending Agreement
made as of the 27th day of February, 1996 and by a Second
Amending Agreement made as of the 25th day of February, 1997 (the
"Loan Agreement"), between Deere Canada, Deere Credit (a
successor to Xxxx Deere Finance Limited), the Lenders and the
Agent, the Lenders agreed to make and have made Loans to the
Borrowers;
AND WHEREAS the Borrowers have requested that certain
provisions of the Loan Agreement be modified in the manner
provided for in this Agreement and the Lenders are willing to
agree to such modifications as provided for in this Agreement;
AND WHEREAS each of Deere Canada and Deere Credit has
guaranteed the obligations of the other under the Loan Agreement
pursuant to Guarantees dated as of April 5, 1995 in favour of the
Lenders and the Agent and the Lenders have required as a
condition of entering into this Agreement that Deere Canada and
Deere Credit confirm that such Guarantees are in full force and
effect, unamended;
AND WHEREAS Deere subordinated debts owing to it by Deere
Canada in favour of the Lenders pursuant to a Subordination
Agreement dated April 5, 1995 and the Lenders have required as a
condition of entering into this Agreement that Deere and Deere
Canada confirm that such Subordination Agreement is in full force
and effect, unamended;
NOW THEREFORE in consideration of the premises and in
consideration of other valuable consideration and the sum of
$1.00 now paid by each of the parties hereto to the others, the
receipt and sufficiency whereof is hereby acknowledged, the
parties agree as follows:
1. Defined Terms
All capitalized terms used and not defined herein have the
meanings ascribed to them in the Loan Agreement.
2. Certain Amendments to Loan Agreement
(a) The Loan Agreement is hereby amended by deleting the
reference to "U.S.$87,500,000" from the cover page thereof and by
deleting from the first recital thereto the words
"U.S.$87,500,000" and substituting in their place in the first
recital the words "the Credit Facility Amount";
(b) Section 1.1 of the Loan Agreement is hereby amended by:
(i) inserting the following definition in correct
alphabetical order: " "Third Amendment Effectiveness Date" means
the date on which the Third Amending Agreement made as of
February 24, 1998 becomes effective;";
Page 2
(ii) deleting the definition of "Credit Facility" and
inserting the following in its place:
" "Credit Facility" means the credit facility in
the maximum principal amount equal to the aggregate Commitments,
which on the date hereof is U.S.$225,000,000, as the same may be
increased from time to time pursuant to section 2.21 of the USD
Agreement, which is being extended by the Lenders to the
Borrowers hereunder;";
(iii) deleting the definition of "Credit Facility
Amount" and inserting the following in its place:
" "Credit Facility Amount" means at any time the
aggregate amount of the Commitments at such time (which at the
date hereof is U.S.$225,000,000), as the same may be increased
from time to time pursuant to section 2.21 of the USD
Agreement;"; and
(c) Section 2.1 of the Loan Agreement is hereby amended by
deleting the reference to "U.S.$87,500,000" and substituting in
its place the words "the Credit Facility Amount" and inserting
immediately thereafter the words "as the same may be increased
from time to time pursuant to section 2.21 of the USD Agreement".
3. Conditions to Effectiveness
This Agreement shall become effective on the date on which
all of the following conditions precedent have been satisfied or
waived:
(a) execution and delivery of this Agreement by each
Borrower, each Guarantor, Deere, each Lender and the Agent;
(b) receipt by the Agent, with a counterpart for each
Lender, of a certificate of any Vice-President, the Secretary or
Assistant Secretary of each Borrower, each Guarantor and Deere,
dated the Third Amendment Effectiveness Date, certifying the
names and true signatures of the officers of such Borrowers,
Guarantors and Deere authorized to sign this Agreement, together
with evidence of the incumbency of such Vice-President, Secretary
or Assistant Secretary;
(c) receipt by the Agent, with a counterpart for each
Lender, of a copy of the resolutions in form and substance
satisfactory to the Agent, of the board of directors of each of
the Borrowers and the Guarantors authorizing the execution,
delivery and performance of this Agreement, certified by their
respective Secretary or Assistant Secretary as of the Third
Amendment Effectiveness Date, which certificate shall state that
the resolutions therein certified have not been amended,
modified, revoked or rescinded as of the date of such
certificate; and
Page 3
(d) receipt by the Agent, with a counterpart for each
Lender, of an opinion of Fasken Xxxxxxxx Xxxxxxx, special counsel
to the Borrowers, and an opinion of Xxxxx X. Xxxxxxxx, Esq., or
his successors, as general counsel, or an associate general
counsel, of Deere, each dated the Third Amendment Effectiveness
Date and addressed to the Lenders and the Agent, substantially in
the forms of the opinions of such counsel dated April 5, 1995
with changes therein to reflect that such opinions are in respect
of this Agreement and are rendered on the Third Amendment
Effectiveness Date. Such opinions shall also cover such other
matters incidental to the transactions contemplated by this
Agreement as the Agent shall reasonably require.
4. Amendment and Confirmation of Representations and Warranties
(a) Section 8.1 of the Loan Agreement is hereby amended by
deleting the reference therein to "Xxxx Deere Insurance Company
of Canada" and to "Homelite Canada Limited" and inserting in
their place the names "Xxxx Deere Foundation of Canada" and "Xxxx
Deere Consumer Products Limited".
(b) Subsection 8.7 of the Loan Agreement is hereby deemed
amended by deleting the date "October 31, 1996" in the third line
and by substituting in lieu thereof the date "October 31, 1997".
(c) The representations and warranties made by each of the
Borrowers in the Loan Agreement, as amended by this Agreement,
are true and correct in all material respects on and as of the
Third Amendment Effectiveness Date, before and after giving
effect to the effectiveness of this Agreement as if made on and
as of the Third Amendment Effectiveness Date except as otherwise
disclosed in writing to the Agent or to the extent such
representations and warranties expressly relate to an earlier
date.
5. USD Agreement
Each of the parties hereto confirms that the USD Agreement
referred to in the Loan Agreement is the U.S.$1,500,000,000
Amended and Restated Credit Agreement dated as of the date hereof
among the USD Borrowers, certain financial institutions, The
Chase Manhattan Bank, as USD Agent, and other agents as the same
may be further amended, restated, supplemented or replaced from
time to time.
6. Confirmation by Guarantors
Each Guarantor hereby consents to the terms and conditions of
this Agreement. Deere Canada hereby confirms that the Guarantee
executed by it dated as of April 5, 1995 has not been released,
discharged, waived or varied by this Agreement, is in full force
and effect, and constitutes a legal, valid and binding obligation
of it. Deere Credit hereby confirms that the Guarantee assumed
by it pursuant to the terms of the Assumption Agreement (as
defined in the Second Amending Agreement made as of the 25th day
of February, 1997) has not been released, discharged, waived or
varied by this Agreement, is in full force and effect and
constitutes a legal, valid and binding obligation of it.
Page 4
7. Confirmation by Deere and Deere Canada
Deere hereby consents to the terms and conditions of this
Agreement and each of Deere and Deere Canada hereby confirms that
the Subordination Agreement executed by it dated April 5, 1995
has not been released, discharged, waived or varied by this
Agreement, is in full force and effect and constitutes a legal,
valid and binding obligation of it. Deere is a party to this
Agreement solely for the purposes of the confirmation contained
in this paragraph.
8. Confirmation
Except as expressly amended, modified and supplemented
hereby, the parties hereto confirm the terms and conditions of
the Loan Agreement and that they are and shall remain in full
force and effect.
9. Governing Law; Counterparts
(a) This Agreement and the rights and obligations of the
parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the Province of
Ontario.
(b) This Agreement may be executed by one or more of the
parties to this Agreement in any number of separate counterparts,
and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. This Agreement may be
delivered by facsimile transmission of the relevant signature
pages hereof.
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
written above.
XXXX DEERE LIMITED,
as Borrower
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
Page 5
XXXX DEERE LIMITED,
as Guarantor
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
XXXX DEERE CREDIT INC.
as Borrower
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
XXXX DEERE CREDIT INC.,
as Guarantor
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
Attested by: DEERE & COMPANY
____________________ By: ____________________
Name: Name:
Title: Title:
By: ____________________
Name:
Title:
Page 6
CANADIAN IMPERIAL BANK OF COMMERCE
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
ROYAL BANK OF CANADA
By: ____________________
Name:
Title:
THE TORONTO-DOMINION BANK
as a Lender
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
THE TORONTO-DOMINION BANK
as Agent
By: ____________________
Name:
Title:
Page 7
