Exhibit 4.1


 


EXECUTION VERSION


 




 





DEERE & COMPANY


 


JOHN DEERE CAPITAL CORPORATION


 










 


$625,000,000


 


FIVE-YEAR


CREDIT AGREEMENT


 


Dated as of February 15,
2005


 










 


JPMORGAN CHASE BANK, N.A.,


as Administrative Agent


 


CITIBANK, N.A.,

as a Documentation Agent


 


CREDIT SUISSE FIRST BOSTON,

as a Documentation Agent


 


MERRILL LYNCH BANK USA,

as Co-Documentation Agent


 


BANK OF AMERICA, N.A.,


as a Syndication Agent


 


DEUTSCHE BANK AG NEW YORK
BRANCH,


as a Syndication Agent


 










 


J.P. MORGAN SECURITIES INC.,


as Lead Arranger and Bookrunner




 





 


71





















 


TABLE
OF CONTENTS


 


 


	
  SECTION 1.

  	
  DEFINITIONS

  	
   

  
	
   

  	
  1.1

  	
  Defined Terms

  	
   

  
	
   

  	
  1.2

  	
  Other Definitional Provisions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  THE COMMITTED RATE LOANS; THE BID LOANS;
  THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS

  	
   

  
	
   

  	
  2.1

  	
  The Committed Rate Loans

  	
   

  
	
   

  	
  2.2

  	
  The Bid Loans; the Negotiated Rate Loans

  	
   

  
	
   

  	
  2.3

  	
  Loan Accounts

  	
   

  
	
   

  	
  2.4

  	
  Fees

  	
   

  
	
   

  	
  2.5

  	
  Termination or Reduction of Commitments;
  Cancellation of Capital Corporation as Borrower

  	
   

  
	
   

  	
  2.6

  	
  Optional Prepayments

  	
   

  
	
   

  	
  2.7

  	
  Minimum Amount of Certain Loans

  	
   

  
	
   

  	
  2.8

  	
  Committed Rate Loan Interest Rate and
  Payment Dates

  	
   

  
	
   

  	
  2.9

  	
  Conversion and Continuation Options

  	
   

  
	
   

  	
  2.10

  	
  Computation of Interest and Fees

  	
   

  
	
   

  	
  2.11

  	
  Inability to Determine Interest Rate

  	
   

  
	
   

  	
  2.12

  	
  Pro Rata Treatment and Payments

  	
   

  
	
   

  	
  2.13

  	
  Requirements of Law

  	
   

  
	
   

  	
  2.14

  	
  Indemnity

  	
   

  
	
   

  	
  2.15

  	
  Non-Receipt of Funds by the Administrative
  Agent

  	
   

  
	
   

  	
  2.16

  	
  Extension of Termination Date

  	
   

  
	
   

  	
  2.17

  	
  Foreign
  Taxes

  	
   

  
	
   

  	
  2.18

  	
  Confirmations

  	
   

  
	
   

  	
  2.19

  	
  Replacement of Cancelled Banks

  	
   

  
	
   

  	
  2.20

  	
  Commitment Increases

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
  3.1

  	
  Financial Condition

  	
   

  
	
   

  	
  3.2

  	
  Corporate Existence

  	
   

  
	
   

  	
  3.3

  	
  Corporate Power; Authorization; Enforceable
  Obligations

  	
   

  
	
   

  	
  3.4

  	
  No Legal Bar

  	
   

  
	
   

  	
  3.5

  	
  No Material Litigation

  	
   

  
	
   

  	
  3.6

  	
  Taxes

  	
   

  
	
   

  	
  3.7

  	
  Margin Regulations

  	
   

  
	
   

  	
  3.8

  	
  Pari Passu Ranking

  	
   

  
	
   

  	
  3.9

  	
  No Defaults

  	
   

  
	
   

  	
  3.10

  	
  Use
  of Proceeds

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  CONDITIONS PRECEDENT

  	
   

  
	
   

  	
  4.1

  	
  Conditions to Initial Loan

  	
   

  
	
   

  	
  4.2

  	
  Conditions to All Loans

  	
   

  



 


72





















 


	
  SECTION 5.

  	
  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
  5.1

  	
  Financial Statements

  	
   

  
	
   

  	
  5.2

  	
  Certificates; Other Information

  	
   

  
	
   

  	
  5.3

  	
  Company Indenture Documents

  	
   

  
	
   

  	
  5.4

  	
  Capital Corporation Indenture Documents

  	
   

  
	
   

  	
  5.5

  	
  Notice
  of Default

  	
   

  
	
   

  	
  5.6

  	
  Ownership of Capital Corporation Stock

  	
   

  
	
   

  	
  5.7

  	
  Employee Benefit Plans

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  NEGATIVE COVENANTS OF THE COMPANY

  	
   

  
	
   

  	
  6.1

  	
  Company May Consolidate, etc., Only on
  Certain Terms

  	
   

  
	
   

  	
  6.2

  	
  Limitation on Liens

  	
   

  
	
   

  	
  6.3

  	
  Limitations on Sale and Lease-back
  Transactions

  	
   

  
	
   

  	
  6.4

  	
  Equipment Operations Debt

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  NEGATIVE COVENANTS OF THE CAPITAL
  CORPORATION

  	
   

  
	
   

  	
  7.1

  	
  Fixed Charges Ratio

  	
   

  
	
   

  	
  7.2

  	
  Consolidated Senior Debt to Consolidated
  Capital Base

  	
   

  
	
   

  	
  7.3

  	
  Limitation on Liens

  	
   

  
	
   

  	
  7.4

  	
  Consolidation; Merger

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  EVENTS OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  THE AGENTS

  	
   

  
	
   

  	
  9.1

  	
  Appointment

  	
   

  
	
   

  	
  9.2

  	
  Delegation of Duties

  	
   

  
	
   

  	
  9.3

  	
  Exculpatory Provisions

  	
   

  
	
   

  	
  9.4

  	
  Reliance by Agents

  	
   

  
	
   

  	
  9.5

  	
  Notice
  of Default

  	
   

  
	
   

  	
  9.6

  	
  Non-Reliance on Agents and Other Banks

  	
   

  
	
   

  	
  9.7

  	
  Indemnification

  	
   

  
	
   

  	
  9.8

  	
  Agents in their Individual Capacities

  	
   

  
	
   

  	
  9.9

  	
  Successor
  Agents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
  10.1

  	
  Amendments and Waivers

  	
   

  
	
   

  	
  10.2

  	
  Notices

  	
   

  
	
   

  	
  10.3

  	
  No Waiver; Cumulative Remedies

  	
   

  
	
   

  	
  10.4

  	
  Payment of Expenses and Taxes

  	
   

  
	
   

  	
  10.5

  	
  Successors and Assigns; Participations;
  Purchasing Banks

  	
   

  
	
   

  	
  10.6

  	
  Adjustments

  	
   

  
	
   

  	
  10.7

  	
  Confidentiality

  	
   

  
	
   

  	
  10.8

  	
  Counterparts

  	
   

  
	
   

  	
  10.9

  	
  GOVERNING
  LAW

  	
   

  
	
   

  	
  10.10

  	
  Consent to Jurisdiction and Service of
  Process

  	
   

  
	
   

  	
  10.11

  	
  USA
  Patriot Act

  	
   

  



 


73





















 


	
  SCHEDULES:

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule I

  	
  Terms of Subordination

  	
   

  
	
  Schedule II

  	
  Commitments

  	
   

  
	
  Schedule III

  	
  Addresses for Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Borrowing Notice

  	
   

  
	
  Exhibit B

  	
  Form of Bid Loan Request

  	
   

  
	
  Exhibit C

  	
  Form of Bid Loan Offer

  	
   

  
	
  Exhibit D

  	
  Form of Bid Loan Confirmation

  	
   

  
	
  Exhibit E

  	
  Form of Loan Assignment

  	
   

  
	
  Exhibit F

  	
  Form of Commitment Transfer Supplement

  	
   

  
	
  Exhibit G

  	
  Form of Opinion of General Counsel to the
  Company

  	
   

  
	
  Exhibit H

  	
  Form of Opinion of Special New York Counsel
  to the Borrowers

  	
   

  
	
  Exhibit I

  	
  Form of Extension Request

  	
   

  
	
  Exhibit J

  	
  Form of Form W-8BEN Tax Letter

  	
   

  
	
  Exhibit K

  	
  Form of Form W-8ECI Tax Letter

  	
   

  
	
  Exhibit L

  	
  Form of Agreement

  	
   

  
	
  Exhibit M

  	
  Form of Promissory Note

  	
   

  
	
  Exhibit N

  	
  Form of New Bank Supplement

  	
   

  
	
  Exhibit O

  	
  Form of Commitment Increase Supplement

  	
   

  



 


74





















 


CREDIT AGREEMENT, dated as of February 15,
2005, among (a) DEERE & COMPANY, a Delaware corporation (the “Company”),
(b) JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “Capital
Corporation”), (c) the several financial institutions parties hereto
(collectively, the “Banks”, and individually, a “Bank”), (d)
JPMORGAN CHASE BANK, N.A., as administrative agent hereunder (in such capacity,
together with its successors and permitted assigns, the “Administrative
Agent”), (e) CITIBANK, N.A. and CREDIT SUISSE FIRST BOSTON, as
documentation agents hereunder (in such capacity, the “Documentation Agents”),
(f) MERRILL LYNCH BANK USA, as co-documentation agent hereunder (in such
capacity, the “Co-Documentation Agent”), and (g) BANK OF AMERICA, N.A.
and DEUTSCHE BANK AG NEW YORK BRANCH, as syndication agents hereunder (in such
capacity, the “Syndication Agents”).


 


The parties hereto hereby agree as follows:


 


SECTION 1.                                DEFINITIONS


 


1.1                                 Defined Terms .  As used in this Agreement, the following
terms have the following meanings:


 


“ABR”:  at any particular date, the higher of (a) the
rate of interest per annum publicly announced by JPMorgan Chase Bank, N.A. for
such date as its prime rate in effect at its principal office in New York City
and (b) 0.5% per annum above the rate set forth for such date or, if such date
is not a Business Day, the next preceding Business Day, opposite the caption “Federal
Funds (Effective)” in the weekly statistical release designated as “H.15(519)”
(or any successor publication) published by the Board of Governors of the
Federal Reserve System or, if such rate is not so published for such date, the
average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal Funds dealers of recognized standing
selected by it.  The prime rate is not
intended to be the lowest rate of interest charged by JPMorgan Chase Bank, N.A.
in connection with extensions of credit to debtors.


 


“ABR Loans”:  Committed Rate Loans at such time as they are
made and/or being maintained at a rate of interest based upon the ABR.


 


“Absolute
Rate Bid Loan”:  any Bid Loan made
pursuant to an Absolute Rate Bid Loan Request.


 


“Absolute
Rate Bid Loan Request”:  any Bid Loan
Request requesting the Banks to offer to make Bid Loans at an absolute rate (as
opposed to a rate composed of the Applicable Index Rate plus (or minus)
a margin).


 


“Act”:  as defined in subsection 10.11.


 


“Administrative
Agent”:  as defined in the preamble
hereto.


 


“Agent”:  the Administrative Agent, a Syndication
Agent, a Documentation Agent or the Co-Documentation Agent, as the context
shall require; together, the “Agents”.


 


75





















 


“Agreement”:  this Credit Agreement, as amended,
supplemented or modified from time to time.


 


“Applicable
Index Rate”:  in respect of any Bid
Loan requested pursuant to an Index Rate Bid Loan Request, the Eurodollar Rate
applicable to the Interest Period for such Bid Loan.


 


“Applicable
Margin”:  for (a) ABR Loans, 0% per
annum:


 


(b) for
Eurodollar Loans, the rate per annum set forth below in the column
corresponding to the Prevailing Rating of the Company:


 


	
  Greater than or

  equal to A+/A1

  	
   

  	
  A/A2

  	
   

  	
  A-/A3

  	
   

  	
  BBB+/Baa1

  	
   

  	
  BBB/Baa2

  	
   

  	
  Lower than

  BBB/Baa2

  	
   

  
	
  0.160

  	
  %

  	
  0.175

  	
  %

  	
  0.215

  	
  %

  	
  0.350

  	
  %

  	
  0.500

  	
  %

  	
  0.600

  	
  %

  



 


“Attributable
Debt”:  as defined in subsection 6.2(b)(ii).


 


“Bank”
and “Banks”:  as defined in the
preamble hereto.


 


“benefitted
Bank”:  as defined in subsection 10.6.


 


“Bid Loan”:  each loan (other than Negotiated Rate Loans)
made pursuant to subsection 2.2; the aggregate amount advanced by a Bid
Loan Bank pursuant to subsection 2.2 on each Borrowing Date shall
constitute one Bid Loan, or more than one Bid Loan if so specified by the
relevant Loan Assignee in its request for promissory notes pursuant to subsection 10.5(c).


 


“Bid Loan
Banks”:  the collective reference to
each Bank designated from time to time as a Bid Loan Bank by a Borrower (for
purposes of Bid Loans to such Borrower) by written notice to the 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).


 


“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 a Borrower
for Bid Loan Banks to submit bids to make Bid Loans, which shall contain the
information in respect of such requested Bid Loans specified in Exhibit B and
shall be delivered to the Administrative Agent by


 


76





















 


facsimile transmission or by telephone,
immediately confirmed by facsimile transmission.


 


“Borrower”:  the Company or the Capital Corporation;
collectively, the “Borrowers”.


 


“Borrowing
Date”:  in respect of any Loan, the
date such Loan is made.


 


“Business
Day”:  a day other than a Saturday,
Sunday or other day on which commercial banks in New York City are authorized
or required by law to close.


 


“Cancelled
Bank”:  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).


 


“Capital
Corporation”:  as defined in the
preamble hereto.


 


“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.


 


“Co-Documentation
Agent”:  as defined in the preamble
hereto.


 


“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 the
Banks, the “Commitments”.


 


“Commitment
Expiration Date”:  as defined in subsection 2.16(a).


 


“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; collectively, as to all the Banks, the “Commitment
Percentages”.


 


“Commitment
Period”:  the period from and
including the Closing Date to but not including the Termination Date or such
earlier date on which the Commitments shall terminate as provided herein.


 


“Commitment
Transfer Supplement”:  a Commitment
Transfer Supplement, substantially in the form of Exhibit F.


 


“Committed
Rate Loans”:  each loan made pursuant
to subsection 2.1.


 


77





















 


“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.


 


“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, 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.


 


“Credit
Rating”:  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 or S&P.


 


78





















 


“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.


 


“Documentation
Agents”:  as defined in the preamble
hereto.


 


“Dollars”
and “$”:  dollars in lawful
currency of the United States of America.


 


“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.


 


“Eurodollar
Loans”:  Committed Rate Loans at such
time as they are made and/or being maintained at a rate of interest based upon
a Eurodollar Rate.


 


“Eurodollar
Rate”:  with respect to each day
during each Interest Period for a Eurodollar Loan and for each Index Rate Bid
Loan, (a) the rate determined by the Administrative Agent to be the arithmetic
mean of the offered rates for deposits in Dollars for a period of such Interest
Period which appear on the Reuters Screen LIBO Page as of 11:00 a.m., London
time, on the date that is two Working Days prior to the beginning of such
Interest Period or (b) if fewer than two offered rates appear, the rate in
respect of such Interest Period will be the rate per annum equal to the average
(rounded upwards, if necessary, to the nearest whole multiple of one sixteenth
of one percent) of the respective rates notified to the Administrative Agent by
the Reference Banks as the rate at which such Reference Bank is offered Dollar
deposits two Working Days prior to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar and foreign currency and
exchange operations in respect of its Eurodollar Loans are customarily
conducted at or about 10:00 a.m., New York City time, for delivery on the first
day of such Interest Period for the number of days comprised therein and in an
amount (i) in the case of Eurodollar Loans, comparable to the amount of the
Eurodollar Loan of such Reference Bank to be outstanding during such Interest
Period


 


79





















 


and (ii) in the case of an Index Rate Bid
Loan by any Bank, equal to the principal amount of all Index Rate Bid Loans to
which such Interest Period applies.


 


“Event of
Default”:  any of the events
specified in Section 8, provided that any requirement for the
giving of notice, the lapse of time, or both, or any other condition, event or
act has been satisfied.


 


“Exposure”:  (a) with respect to an Objecting Bank at any
time, the aggregate outstanding principal amount of its Loans and (b) with
respect to any other Bank at any time, the Commitment of such Bank.


 


“Extension
Request”:  each request by the
Borrowers made pursuant to subsection 2.16 for the Banks to extend this
Agreement, which shall contain the information in respect of such extension
specified in Exhibit I and shall be delivered to the Administrative Agent in
writing.


 


“Facility
Fee Rate”:  the rate per annum set
forth below in the column corresponding to the Prevailing Rating of the
Company:


 


	
  Greater than or

  equal to A+/A1

  	
   

  	
  A/A2

  	
   

  	
  A-/A3

  	
   

  	
  BBB+/Baa1

  	
   

  	
  BBB/Baa2

  	
   

  	
  Lower than

  BBB/Baa2

  	
   

  
	
  0.065

  	
  %

  	
  0.075

  	
  %

  	
  0.085

  	
  %

  	
  0.100

  	
  %

  	
  0.125

  	
  %

  	
  0.150

  	
  %

  



 


“Financial
Services”:  the businesses of the
Company (including the credit and health care businesses) that are not
primarily engaged in Equipment Operations.


 


“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.


 


“Foreign
Taxes”:  as defined in subsection 2.17(a).


 


“GAAP”:  generally accepted accounting principles in
the United States of America as applied in the preparation of financial
statements of the Company or the Capital Corporation, respectively, as of the
fiscal year ended October 31, 2004.


 


80





















 


“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.


 


“Important
Property”:  (a) any manufacturing
plant, including land, all buildings and other improvements thereon, and all
manufacturing machinery and equipment located therein, owned and used by the
Company or a Restricted Subsidiary primarily for the manufacture of products to
be sold by the Company or such Restricted Subsidiary, (b) the executive office
and administrative building of the Company in Moline, Illinois, and (c)
research and development facilities, including land and buildings and other
improvements thereon and research and development machinery and equipment
located therein, in each case, owned and used by the Company or a Restricted
Subsidiary; except in any case property of which the aggregate fair value as
determined by the Board of Directors of the Company does not at the time exceed
1% of Consolidated Net Worth, as shown on the audited consolidated balance
sheet contained in the latest annual report to stockholders of the Company.


 


“Increasing
Bank”:  as defined in subsection 2.20(c).


 


“Index Rate
Bid Loan”:  any Bid Loan made at an
interest rate based upon the Applicable Index Rate.


 


“Index Rate
Bid Loan Request”:  any Bid Loan
Request requesting the Banks to offer to make Index Rate Bid Loans at an
interest rate equal to the Applicable Index Rate plus (or minus)
a margin.


 


“Interest
Payment Date”:  (a) as to any ABR Loan,
the last Business Day of each March, June, September and December,
commencing on the first of such days to occur after such ABR Loan is made or a
Eurodollar Loan is converted to an ABR Loan and (b) as to any Eurodollar Loan,
the last day of each Interest Period applicable thereto, provided that
as to any Eurodollar Loan in respect of which a Borrower has selected an
Interest Period of six months, interest shall also be paid on the day which is
three months after the beginning of such Interest Period.


 


“Interest
Period”:  (a) with respect to any
Eurodollar Loan, the period commencing on the Borrowing Date, the date any ABR
Loan is converted to a Eurodollar Loan or the date any Eurodollar Loan is
continued as a Eurodollar Loan, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months


 


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thereafter, as selected by a Borrower in its
notice of borrowing, conversion or continuance as provided in subsection 2.1(c)
or 2.9;


 


(b) with
respect to any 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:


 


(i)                                     if
any Interest Period pertaining to a Eurodollar Loan or an Index Rate Bid Loan
would otherwise end on a day which is not a Working Day, that Interest Period
shall be extended to the next succeeding Working Day unless the result of such
extension would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding Working
Day;


 


(ii)                                  if
any Interest Period pertaining to a Negotiated Rate Loan or an Absolute Rate
Bid Loan would otherwise end on a day which is not a Business Day, that
Interest Period shall be extended to the next succeeding Business Day;


 


(iii)                               any
Interest Period pertaining to a Eurodollar Loan having an Interest Period of
one, two, three or six months or an Index Rate Bid Loan having an Interest
Period of one, two, three, four, five or six months, that begins on the last
Working Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Working Day of a calendar month;


 


(iv)                              Interest
Periods shall be deemed available only if the Required Banks shall not have
advised the Administrative Agent that the Eurodollar Rate determined by the
Administrative Agent on the basis of the applicable quotes will not adequately
and fairly reflect the cost to such Banks of maintaining or funding their
Committed Rate Loans bearing interest based on the Eurodollar Rate determined
for such Interest Period.  The
Administrative Agent shall notify the Borrowers and each Bank promptly after
having been advised by the Required Banks that a Eurodollar Rate will not so
adequately and fairly reflect such Banks’ costs as aforesaid.  If a requested Interest Period shall be
unavailable in accordance with the foregoing sentence, the proposed Borrower
may (A) in accordance with the provisions (including any requirements for
notification) of subsection 2.1 request, at its option, that the requested
Committed Rate Loans be made or maintained as ABR Loans or (B) withdraw the
request for such


 


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Committed Rate Loans for which the Interest
Period was unavailable by giving notice of such election to the Administrative
Agent in accordance with subsection 2.11; provided, that if the
Administrative Agent does not receive any notice hereunder, such Borrower shall
be deemed to have requested ABR Loans;


 


(v)                                 with
respect to Loans made by an Objecting Bank, no Interest Periods with respect to
such Loans shall end after such Objecting Bank’s Commitment Expiration Date;
and


 


(vi)                              no
Interest Period shall end after the Termination Date.


 


“JPMorgan
Chase Bank, N.A.”:  JPMorgan Chase
Bank, N.A., a national association.


 


“Loan
Account”:  as defined in subsection 2.3;
collectively, the “Loan Accounts”.


 


“Loan
Assignees”:  as defined in subsection 10.5(c).


 


“Loan
Assignment”:  a Loan Assignment,
substantially in the form of Exhibit E.


 


“Loans”:  the collective reference to the Committed
Rate Loans, the Bid Loans and the Negotiated Rate Loans.


 


“Majority
Banks”:  at any particular time,
Banks having Commitment Percentages aggregating more than fifty percent; provided
that (a) at any time after the termination of all the Commitments, “Majority
Banks” shall mean Banks holding Loans aggregating more than fifty percent in
principal amount of all outstanding Loans and (b) at any time after the
Commitment Expiration Date with respect to any Objecting Bank (but prior to the
termination of all the Commitments), “Majority Banks” shall mean Banks whose
Exposure aggregates more than fifty percent of the aggregate Exposure of all
the Banks.


 


“Margin
Stock”:  as defined in Regulation U
of the Board of Governors of the Federal Reserve System.


 


“Moody’s”:  Moody’s Investor Service, Inc.


 


“Mortgage”:  as defined in subsection 6.2.


 


“Negotiated
Rate Loan”:  each Loan made to a
Borrower by a Bank pursuant to a Negotiated Rate Loan Request in such principal
amount, for such number of Interest Periods (subject to the proviso to the
definition of “Interest Period” in this subsection 1.1) and having such
interest rate(s) and repayment terms as shall, in each case, be mutually agreed
upon between such Borrower and such Bank.


 


“Negotiated
Rate Loan Request”:  each request by
a Borrower for a Bank to make Negotiated Rate Loans, which shall be delivered
to such Bank in writing, by facsimile transmission, or by telephone,
immediately confirmed in writing, and which shall specify the amount to be
borrowed and the proposed Borrowing Date.


 


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“Net
Earnings Available for Fixed Charges”: 
for any particular period for the Capital Corporation and its
consolidated Subsidiaries, consolidated net earnings of the Capital Corporation
and such Subsidiaries for such period without deduction of Fixed Charges and
without deduction of federal, state or other income taxes, provided that
such net earnings for a fiscal quarter of the Capital Corporation and its
consolidated Subsidiaries (including the last quarter of a fiscal year of the
Capital Corporation and its consolidated Subsidiaries) shall be determined by
reference to the publicly available statement of income of the Capital
Corporation and its consolidated Subsidiaries for or covering such fiscal
quarter and after such adjustments, if any, as may be required so that such net
earnings are determined in accordance with GAAP, except that earned investment
tax credits may be included as revenue in the consolidated income statement of
the Capital Corporation and its consolidated Subsidiaries, rather than as an
offset against the provision for income taxes.


 


“New Bank”:  as defined in subsection 2.20(b).


 


“New Bank
Supplement”:  as defined in subsection 2.20(b).


 


“Notes”:  the collective reference to any promissory
note evidencing Loans.


 


“Objecting
Banks”:  as defined in subsection 2.16(a).


 


“Offered
Increase Amount”:  as defined in subsection 2.20(a).


 


“Participants”:  as defined in subsection 10.5(b).


 


“Person”:  an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature, provided
that for purposes of Section 8(h), Person shall 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.


 


“Prevailing
Rating”:  at any date of determination,
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.


 


“Purchasing
Banks”:  as defined in subsection 10.5(d).


 


“Re-Allocation
Date”:  as defined in subsection 2.20(e).


 


“Reference
Banks”:  JPMorgan Chase Bank, N.A.,
Bank of America, N.A. and Deutsche Bank AG New York Branch.


 


“Register”:  as defined in subsection 10.5(e).


 


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“Report
Period”:  as defined in subsection 2.18.


 


“Reportable
Event”:  any of the events set forth
in Section 4043(b) of ERISA or the regulations thereunder.


 


“Required
Banks”:  at a particular time, Banks
having Commitment Percentages aggregating at least 66-2/3%; provided
that (a) at any time after the termination of all the Commitments, “Required
Banks” means Banks holding Loans aggregating at least 66-2/3% in principal
amount of all outstanding Loans, (b) as
used in subsection 2.16, “Required Banks” means with respect to any
Extension Request, at a particular time after the Termination Date has been
extended pursuant to such subsection, Banks (i) which are not Objecting Banks
with respect to any previous Extension Request and (ii) which have Commitment
Percentages aggregating at least 66-2/3% of the aggregate Commitment
Percentages of such non-Objecting Banks and (c) as used in any provision other
than subsection 2.16 at any time after the Commitment Expiration Date with
respect to any Objecting Bank (but prior to the termination of all the
Commitments), “Required Banks” means Banks whose Exposure aggregates at
least 66-2/3% of the aggregate Exposure of all the Banks.


 


“Requirement
of Law”:  as to any Person, the
Certificate of Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.


 


“Reserves”:  as defined in subsection 2.13(c).


 


“Responsible
Officer”:  of a Borrower, the
Chairman, the President, any Executive, Senior or other Vice President, the
Treasurer and any Assistant Treasurer of such Borrower.


 


“Restricted
Margin Stock”:  any Margin Stock, the
sale, pledge or other disposition of which by the Company or any of its
Subsidiaries is in any way restricted by an arrangement with any Bank or any
affiliate thereof to the extent that the value thereof (determined in
accordance with Regulation U of the Board of Governors of the Federal Reserve
System) does not exceed 25% of the value (determined in accordance with such
Regulation U) of all the assets subject to such restriction.


 


“Restricted
Subsidiary”:  any Subsidiary of the Company
incorporated in the United States of America or Canada (a) which is engaged in,
or whose principal assets consist of property used by the Company or any
Restricted Subsidiary in, the manufacture of products within the United States
of America or Canada or in the sale of products principally to customers
located in the United States of America or Canada except any corporation which
is a retail dealer in which the Company has, directly or indirectly, an
investment, or (b) which the Company shall designate as a Restricted Subsidiary
in an officers’ certificate signed by two Responsible Officers of the Company
and delivered to the Administrative Agent.


 


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“S&P”:  Standard and Poor’s Ratings Services, a division
of The McGraw-Hill Companies.


 


“Sale and
Lease-back Transaction”:  as defined
in subsection 6.3.


 


“Securitization
Indebtedness”:  shall mean 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 Section 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.


 


“Subsidiary”:  of a Person, a corporation or other entity of
which securities or other ownership interests having ordinary voting power
(other than securities or other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the  board of directors or other Persons
performing similar functions are at the time directly or indirectly owned by
such Person or one or more Subsidiaries of such Person, or by such Person and
one or more Subsidiaries of such Person.


 


“Syndication
Agents”:  as defined in the preamble
hereto.


 


“Termination
Date”:  the fifth anniversary of 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.


 


“Total
Stockholders’ Equity”:  at a
particular time, the total stockholders’ equity, exclusive of adjustments
resulting from any accumulated other comprehensive income, that is reflected on
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).


 


“Transferees”:
 as defined in subsection 10.5(g).


 


86





















 


“Transfer
Effective Date”:  as defined in each
Commitment Transfer Supplement and each Loan Assignment.


 


“Type”:  as to any Committed Rate Loan, its nature as
an ABR Loan or Eurodollar Loan.


 


“Utilization
Fee”:  as defined in subsection 2.4(b).


 


“Utilization
Percentage”:  on any day, the
percentage equivalent of a fraction (a) the numerator of which is the aggregate
outstanding principal amount of the Loans and (b) the denominator of which is
the aggregate Commitments (or, on any day after termination of the Commitments,
the aggregate Commitments in effect immediately preceding such termination).


 


“Working
Day”:  any Business Day on which
dealings in foreign currencies and exchange between banks may be carried on in
London, England and New York, New York.


 


1.2                                 Other Definitional Provisions.  (a) 
All terms defined in this Agreement shall have the defined meanings when
used in any certificate or other document made or delivered pursuant hereto.


 


(b)                                 As used herein and in
any certificate or other document made or delivered pursuant hereto, accounting
terms relating to either Borrower and its Subsidiaries not defined in subsection 1.1,
and accounting terms partly defined in subsection 1.1 to the extent not
defined, shall have the respective meanings given to them under GAAP.


 


(c)                                  The words “hereof”, “herein”
and “hereunder” and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection, Schedule and Exhibit references are to
this Agreement unless otherwise specified.


 


(d)                                 Unless otherwise
qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of the relevant Borrower.


 


SECTION 2.           THE
COMMITTED RATE LOANS; THE BID LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND
TERMS


 


2.1                                 The Committed Rate Loans.  (a) 
During the Commitment Period, subject to the terms and conditions
hereof, each Bank severally agrees to make loans (individually, a “Committed
Rate Loan”) to either Borrower from time to time in an aggregate principal
amount for both Borrowers at any one time outstanding not to exceed such Bank’s
Commitment.  During the Commitment
Period, either Borrower may use the Commitments by borrowing, repaying and
reborrowing, all in accordance with the terms and conditions hereof.


 


(b)                                 The Committed Rate
Loans may be either (i) Eurodollar Loans, (ii) ABR Loans or (iii) a combination
thereof as determined by the relevant Borrower.


 


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(c)                                  Either Borrower may
borrow Committed Rate Loans on any Working Day, if the borrowing is of
Eurodollar Loans, or on any Business Day, if the borrowing is of ABR Loans; provided,
however, that a Responsible Officer of such Borrower shall give the
Administrative Agent irrevocable notice thereof (which notice must be received
by the Administrative Agent (i) prior to 12:00 Noon, New York City time, three
Working Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, (ii) except as provided in clause (iii) hereof below, prior to 12:00
Noon, New York City time, one Business Day prior to the requested Borrowing
Date, in the case of ABR Loans and (iii) prior to 11:00 A.M., New York City
time, on the requested Borrowing Date in the case of ABR Loans up to an
aggregate principal amount for both Borrowers not to exceed 25% of the
Commitments on such Borrowing Date). 
Each such notice shall be given in writing or by facsimile transmission
substantially in the form of Exhibit A (with appropriate insertions) or shall
be given by telephone (specifying the information set forth in Exhibit A)
promptly confirmed by notice given in writing or by facsimile transmission
substantially in the form of Exhibit A (with appropriate insertions).  On the day of receipt of any such notice from
either Borrower, the Administrative Agent shall promptly notify each Bank
thereof.  Each Bank will make the amount
of its share of each borrowing available to the Administrative Agent for the
account of such Borrower at the office of the Administrative Agent set forth in
subsection 10.2 at 11:00 A.M. (or 2:00 P.M., in the case of ABR Loans
requested pursuant to clause (iii) above), New York City time, on the Borrowing
Date requested by such Borrower in funds immediately available to the
Administrative Agent as the Administrative Agent may direct.  The proceeds of all such Committed Rate Loans
will be made available promptly to such Borrower by the Administrative Agent at
the office of the Administrative Agent specified in subsection 10.2 by
crediting the account of such Borrower on the books of such office of the
Administrative Agent with the aggregate of the amount made available to the
Administrative Agent by the Banks and in like funds as received by the
Administrative Agent.


 


(d)                                 All Committed Rate
Loans made to each Borrower shall be repaid in full by such Borrower on or
before the Termination Date; provided, that Committed Rate Loans made by
Objecting Banks shall be repaid as provided in subsection 2.16(b).


 


2.2                                 The Bid Loans; the
Negotiated Rate Loans.  (a)  Either Borrower may borrow Bid Loans or
Negotiated Rate Loans from time to time on any Business Day (in the case of Bid
Loans made pursuant to an Absolute Rate Bid Loan Request), any Working Day (in
the case of Bid Loans made pursuant to an Index Rate Bid Loan Request) or, in
the case of Negotiated Rate Loans, on such days as shall be mutually agreed upon
between the relevant Borrower and the applicable Bank, in each case during the
Commitment Period and in the manner set forth in this subsection 2.2 and
in amounts such that the aggregate principal amount of Loans at any time
outstanding shall not exceed the aggregate amount of the Commitments at such
time.  Notwithstanding any other
provision of this Agreement, the aggregate principal amount of the outstanding
Bid Loans and/or Negotiated Rate Loans made by any Bank may at any time (but
shall not be required to) exceed the Commitment of such Bank so long as the
aggregate outstanding principal amount of all Loans does not at any time exceed
the aggregate amount of the Commitments.


 


(b)                                 (i)  Either Borrower shall request Bid Loans or
Negotiated Rate Loans by delivering (A) in the case of an Index Rate Bid Loan,
a Bid Loan Request to the Administrative


 


88





















 


Agent, c/o JPMorgan Chase Bank, N.A., 1111 Fannin Street, 10th
Floor, Houston, Texas 77002, Attention: 
Danette Espinoza, Telephone: 
(713) 750-2102, Facsimile:  (713)
750-2782, not later than 12:00 Noon (New York City time) four Working Days
prior to the proposed Borrowing Date, (B) in the case of an Absolute Rate Bid
Loan, a Bid Loan Request to the Administrative Agent at the address set forth
in clause (A) of this subsection 2.2(b)(i) not later than 10:00 A.M. (New
York City time) one Business Day prior to the proposed Borrowing Date or (C) in
the case of a Negotiated Rate Loan, a Negotiated Rate Loan Request to any Bank
at such time as the applicable Borrower and the applicable Bank shall
agree.  Each Bid Loan Request may solicit
bids for Bid Loans in an aggregate principal amount of $25,000,000 or an
integral multiple of $5,000,000 in excess thereof and for not more than three
alternative Interest Periods for such Bid Loans.  The Administrative Agent shall promptly
notify each Bid Loan Bank by facsimile transmission or by telephone,
immediately confirmed by facsimile transmission, of the contents of each Bid Loan
Request received by it.


 


(ii)                                  In the case of an
Index Rate Bid Loan Request, upon receipt of notice from the Administrative
Agent of the contents of such Bid Loan Request, any Bid Loan Bank that elects,
in its sole discretion, to do so, shall irrevocably offer to make one or more
Bid Loans at the Applicable Index Rate plus or minus a margin for each such Bid
Loan determined by such Bid Loan Bank, in its sole discretion.  Any such irrevocable offer shall be made by
delivering a Bid Loan Offer to the Administrative Agent at the address set
forth in clause (i)(A) above before 10:30 A.M. (New York City time) three
Working Days before the proposed Borrowing Date, setting forth the maximum
amount of Bid Loans for each Interest Period, and the aggregate maximum amount
for all Interest Periods, which such Bank would be willing to make and the
margin above or below the Applicable Index Rate at which such Bid Loan Bank is
willing to make each such Bid Loan.  The
Administrative Agent shall advise the relevant Borrower before 11:00 A.M. (New
York City time) three Working Days before the proposed Borrowing Date of the
contents of each such Bid Loan Offer received by it.  If the Administrative Agent in its capacity
as a Bid Loan Bank shall, in its sole discretion, elect to make any such offer,
it shall advise such Borrower of the contents of its Bid Loan Offer before
10:15 A.M. (New York City time) three Working Days before the proposed
Borrowing Date.


 


(iii)                               In the case of an
Absolute Rate Bid Loan Request, upon receipt of notice from the Administrative
Agent of the contents of such Bid Loan Request, any Bid Loan Bank that elects,
in its sole discretion, to do so, shall irrevocably offer to make one or more
Bid Loans at a rate or rates of interest for each such Bid Loan determined by
such Bid Loan Bank in its sole discretion. 
Any such irrevocable offer shall be made by delivering a Bid Loan Offer
to the Administrative Agent at the address set forth in clause (i)(A) of this
subsection 2.2(b) before 9:30 A.M. (New York City time) on the proposed
Borrowing Date, setting forth the maximum amount of Bid Loans for each Interest
Period, and the aggregate maximum amount for all Interest Periods, which such
Bid Loan Bank would be willing to make and the rate or rates of interest at
which such Bid Loan Bank is willing to make each such Bid Loan.  The Administrative Agent shall advise the
relevant Borrower before 10:00 A.M. (New York City time) on the proposed
Borrowing Date of the contents of each such Bid Loan Offer received by it.  If the Administrative Agent in its capacity
as a Bid Loan Bank shall, in its sole discretion, elect to make any such offer,
it shall advise such Borrower of the contents of its Bid Loan Offer before 9:15
A.M. (New York City time) on the proposed Borrowing Date.


 


89





















 


(iv)                              The relevant Borrower
shall before 11:30 A.M. (New York City time) three Working Days before the
proposed Borrowing Date (in the case of Bid Loans requested by an Index Rate
Bid Loan Request) and before 10:30 A.M. (New York City time) on the proposed
Borrowing Date (in the case of Bid Loans requested by an Absolute Rate Bid Loan
Request) either, in its absolute discretion:


 


(A)                              cancel
such Bid Loan Request by giving the Administrative Agent telephone notice to
that effect, or


 


(B)                                accept
one or more of the offers made by any Bid Loan Bank or Bid Loan Banks pursuant
to clause (ii) or clause (iii) of this subsection 2.2(b), as the case may
be, by giving telephone notice to the Administrative Agent (immediately
confirmed by delivery to the Administrative Agent at the address set forth in
clause (i)(A) of this subsection 2.2(b) of a Bid Loan Confirmation) of the
amount of Bid Loans for each relevant Interest Period to be made by each Bid
Loan Bank (which amount shall be equal to or less than the maximum amount for
such Interest Period specified in the Bid Loan Offer of such Bid Loan Bank, and
for all Interest Periods included in such Bid Loan Offer shall be equal to or
less than the aggregate maximum amount specified in such Bid Loan Offer for all
such Interest Periods) and reject any remaining offers made by Bid Loan Banks
pursuant to clause (ii) or clause (iii) above, as the case may be; provided,
however, that (x) such Borrower may not accept offers for Bid Loans for
any Interest Period in an aggregate principal amount in excess of the maximum
principal amount requested for such Interest Period in the related Bid Loan
Request, (y) if such Borrower accepts any such offers, it must accept offers strictly
based upon pricing for such relevant Interest Period and upon no other criteria
whatsoever and (z) if two or more Bid Loan Banks submit offers for any Interest
Period at identical pricing and such Borrower accepts any of such offers but
does not wish to borrow the total amount offered by such Bid Loan Banks with
such identical pricing, such Borrower shall accept offers from all of such Bid
Loan Banks in amounts allocated among them pro  rata according to
the amounts offered by such Bid Loan Banks (or as nearly pro  rata
as shall be practicable, after giving effect to the requirement that Bid Loans
made by a Bid Loan Bank on a Borrowing Date for each relevant Interest Period
shall be in a principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof, it being agreed that to the extent that it is not
possible to make allocations in accordance with the provisions of this clause
(z) such allocations shall be made in accordance with the instructions of such
Borrower, it being understood that in no event shall any Bank be obligated to
make any Bid Loan in a principal amount less than $5,000,000).


 


(v)                                 If such Borrower
notifies the Administrative Agent that a Bid Loan Request is cancelled pursuant
to clause (iv)(A) of this subsection 2.2(b), the Administrative Agent
shall give prompt telephone notice thereof to the Bid Loan Banks, and the Bid
Loans requested thereby shall not be made.


 


(vi)                              (A)  If such Borrower accepts pursuant to clause
(iv)(B) of this subsection 2.2(b) one or more of the offers made by any
Bid Loan Bank or Bid Loan Banks pursuant to a Bid Loan Request, the
Administrative Agent shall promptly notify by telephone each Bid Loan Bank
which has made such an offer of the aggregate amount of such Bid Loans to be
made on


 


90





















 


such Borrowing Date for each Interest Period and of the acceptance or
rejection of any offers to make such Bid Loans made by such Bid Loan Bank.  Each Bid Loan Bank which is to make a Bid
Loan pursuant to a Bid Loan Request shall, before 12:00 Noon (New York City
time) on the Borrowing Date specified in the Bid Loan Request applicable
thereto, make available to the Administrative Agent at its office set forth in
subsection 10.2 the amount of Bid Loans to be made by such Bid Loan Bank,
in immediately available funds.  The
Administrative Agent will make such funds available to such Borrower as soon as
practicable on such date at the Administrative Agent’s aforesaid address.


 


(B)                                If
such Borrower and any Bank agree to the terms of a Negotiated Rate Loan to be
made on a Borrowing Date pursuant to a Negotiated Rate Loan Request, such
Borrower and such Bank shall promptly notify by telephone the Administrative
Agent of the aggregate amount of Negotiated Rate Loans to be made on such
Borrowing Date and the respective Interest Periods therefor.  Each Bank which is to make a Negotiated Rate
Loan shall, at such time, on such Borrowing Date and at such location as shall
be mutually agreed upon between such Borrower and such Bank, make available to
such Borrower the amount of Negotiated Rate Loans to be made by such Bank, in
immediately available funds.


 


(C)                                As
soon as practicable after each Borrowing Date for Bid Loans and Negotiated Rate
Loans, the Administrative Agent shall notify each Bank of the aggregate amount
of Bid Loans or Negotiated Rate Loans advanced pursuant to a Bid Loan Request
or Negotiated Rate Loan Request on such Borrowing Date and the respective
Interest Periods therefor.


 


(c)                                  Within the limits and
on the conditions set forth in this subsection 2.2, each Borrower may from
time to time borrow under this subsection 2.2, repay pursuant to paragraph
(d) below, and reborrow under this subsection 2.2.


 


(d)                                 Each Borrower shall
repay to the Administrative Agent for the account of each Bid Loan Bank (or the
Loan Assignee in respect thereof, as the case may be) which has made a Bid Loan
to such Borrower on the last day of the Interest Period for each Bid Loan (such
Interest Period being that specified by such Borrower for repayment of such Bid
Loan in the related Bid Loan Request) the then unpaid principal amount of such
Bid Loan.  Each Borrower shall repay to
each Bank which has made a Negotiated Rate Loan to such Borrower (or the Loan
Assignee in respect thereof, as the case may be) the principal thereof as
agreed by such Borrower and such Bank.


 


(e)                                  Each Borrower shall
pay interest on the unpaid principal amount of each Bid Loan and each
Negotiated Rate Loan borrowed by such Borrower from the applicable Borrowing
Date to the stated maturity date thereof, in the case of a Bid Loan, at the
rate of interest determined pursuant to paragraph (b) of this subsection 2.2,
and, in the case of a Negotiated Rate Loan, as agreed by such Borrower and the
relevant Bank (calculated on the basis of a 360 day year for actual days
elapsed), payable on the interest payment date or dates (i) specified by such
Borrower for such Bid Loan in the related Bid Loan Request and (ii) mutually
agreed upon between such Borrower and such Bank in the case of Negotiated Rate
Loans, provided that as to any Bid Loan in respect of which the stated
maturity date is more than three months after such


 


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Borrowing Date, interest shall also be paid on the day which occurs
three months after such Borrowing Date. 
If all or a portion of the principal amount of any Bid Loan shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue principal amount shall, without limiting any rights of any Bank
under this Agreement, bear interest from the date on which such payment was due
at a rate per annum which is 1% above the rate which would otherwise be
applicable to such Bid Loan until the scheduled maturity date with respect thereto
and for each day thereafter at a rate per annum which is 1% above the ABR until
paid in full (as well after as before judgment).  If all or any portion of the principal amount
of any Negotiated Rate Loan shall not be paid when due (whether at the stated maturity,
by acceleration or otherwise), such overdue principal amount shall, without
limiting any rights of any Bank under this Agreement, bear interest from the
date on which such payment was due at a rate per annum as shall be mutually
agreed upon between the relevant Borrower and the relevant Bank.


 


(f)                                    After the first Bid
Loan Request has been given hereunder, no Bid Loan Request or Negotiated Rate
Loan Request shall be given until at least one Business Day, in the case of an
Absolute Rate Bid Loan Request, or one Working Day, in the case of an Index
Rate Bid Loan Request, after the earliest to occur of (i) the Borrowing Dates
with respect to all prior Bid Loan Requests made pursuant to subsection 2.2(b)(i),
(ii) the date on which all Bid Loan Banks have failed to submit Bid Loan Offers
with respect to any Bid Loan Requests within the time specified in subsection 2.2(b)(ii)
or (iii), as the case may be, and (iii) the date on which the relevant Borrower
has cancelled all prior Bid Loan Requests pursuant to subsection 2.2(b)(iv).


 


2.3                                 Loan Accounts.  Each Bank, with respect to its Committed Rate
Loans, Bid Loans and Negotiated Rate Loans, and the Administrative Agent, with
respect to all Committed Rate Loans and Bid Loans, shall open and maintain in
the name of each Borrower loan accounts (as to each Bank, its “Loan Account”
applicable to such Borrower) on its books and records setting forth the amounts
of principal, interest and other sums paid and payable by such Borrower from
time to time hereunder in respect of such Loans, and the obligation of such
Borrower to pay or repay, as the case may be, such amounts to such Bank shall
be evidenced by such Bank’s Loan Account. 
In case of any dispute, action or proceeding relating to any Committed
Rate Loan, Bid Loan or Negotiated Rate Loan, the entries in such records shall
constitute prima facie evidence of the accuracy of the information set forth
therein.  In case of discrepancy between
the entries in the Administrative Agent’s books and records and any Bank’s, the
entries in the Administrative Agent’s books and records shall constitute prima
facie evidence of the accuracy of the information set forth therein.


 


2.4                                 Fees. 
(a)  The Company and the Capital
Corporation jointly and severally agree to pay to the Administrative Agent for
the account of each Bank a facility fee (i) from and including the Closing Date
to but excluding the date on which the Commitment of such Bank terminates
hereunder, computed at a per annum rate equal to the Facility Fee Rate on the
average daily amount of the Commitment of such Bank in effect during the period
for which payment is made and (ii) thereafter until all Committed Rate Loans of
such Bank are paid in full, computed at a per annum rate equal to the Facility
Fee Rate on the average daily amount of such Committed Rate Loans outstanding,
in each case, payable quarterly in arrears on the first Business Day of each
January, April, July and October of each year and on the Termination
Date or such earlier date on which the Commitments shall terminate as provided
herein, commencing in April, 2005.


 


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(b)                                 The Company and the
Capital Corporation jointly and severally agree to pay to the Administrative
Agent for the account of each Bank a utilization fee (a “Utilization Fee”) at a
rate per annum equal to 0.10% on the daily amount of such Bank’s outstanding
Committed Rate Loans for each day on which the Utilization Percentage exceeds
50%.  Such Utilization Fees shall be
payable quarterly in arrears on the first Business Day of each of January,
April, July and October of each year and on the Termination Date or
such earlier date on which the Commitments shall terminate as provided herein,
commencing in April, 2005.


 


(c)                                  The Company and the
Capital Corporation jointly and severally agree to pay to the Administrative
Agent for its own account all fees set forth in the letter agreement dated January 12,
2005 from J.P. Morgan Securities Inc. and JPMorgan Chase Bank, N.A. to the
Borrowers.


 


(d)                                 The Company and the
Capital Corporation jointly and severally agree to pay to the Administrative
Agent for its own account all other fees payable to the Administrative Agent as
the Borrowers and the Administrative Agent shall mutually agree from time to
time.


 


2.5                                 Termination or Reduction of
Commitments; Cancellation of Capital Corporation as Borrower.  (a) 
The Borrowers, acting jointly, shall have the right, upon not less than
five Business Days’ notice to the Administrative Agent, to terminate the
Commitments or, from time to time, reduce the amount of the Commitments,
provided that (i) any such reduction shall be accompanied by prepayment of
Committed Rate Loans hereunder, together with accrued interest on the amount so
prepaid to the date of such prepayment, to the extent, if any, that the
aggregate outstanding principal amount of all Loans 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 any termination of a Bank’s Commitment pursuant to subsection 2.13,
2.16 or 2.17 shall, with respect to each affected Loan, on the last day of the
applicable Interest Period therefor or, if earlier, on such earlier date as
shall be notified by the Borrowers, be accompanied by prepayment in full of
such Loan, together with, in each case, accrued interest thereon to the date of
such prepayment, the payment of any unpaid facility fee then accrued hereunder,
and the payment of any amounts then payable pursuant to subsections 2.13, 2.14,
2.15 and 2.17.  Upon receipt of such
notice from the Borrowers the Administrative Agent shall promptly notify each
Bank thereof.  Any reduction of the
Commitments pursuant to this subsection 2.5 shall be in an amount not less
than $25,000,000, and shall be an amount which is a whole multiple of
$5,000,000, and shall reduce permanently the amount of the Commitments then in
effect.


 


(b)                                 The Company may cancel
the ability of the Capital Corporation to borrow hereunder upon not less than
five Business Days’ notice to the Administrative Agent.  Upon receipt of such notice from the Company,
the Administrative Agent shall promptly notify each Bank thereof.  On the first day following receipt of such
notice, on which all Loans to the Capital Corporation and all interest thereon
shall have been paid in full, and notwithstanding any other provision of this
Agreement, (i) the Capital Corporation shall cease to be a party hereto or to
have any right or obligation hereunder, (ii) rights and obligations expressed
herein to be, in effect, of either the Company or the Capital Corporation or of
both of them, but not any such rights and obligations expressed herein to be of
the Capital Corporation only, shall be deemed to be rights and obligations of
the Company only and (iii) the Banks shall cease to have any right or


 


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obligation hereunder which depends or is contingent upon any action,
condition or performance, or the absence thereof, whether past or present, of
the Capital Corporation other than any action, condition or performance, or the
absence thereof, of the Capital Corporation in its capacity as a Subsidiary,
Significant Subsidiary or Restricted Subsidiary hereunder; provided, however,
that the obligation of the Capital Corporation to make any payment pursuant to
subsection 2.13, 2.14, 2.15 or 2.17 which arises prior to the cancellation
of the ability of the Capital Corporation to borrow hereunder shall survive the
cancellation of the ability of the Capital Corporation to borrow hereunder.


 


2.6                                 Optional Prepayments.  Either Borrower may at any time and from time
to time prepay its Committed Rate Loans in whole or in part, without premium or
penalty, but subject to the provisions of subsection 2.14, upon at least
three Working Days’ irrevocable notice, in the case of Eurodollar Loans, or one
Business Day’s irrevocable notice in the case of ABR Loans, in each case to the
Administrative Agent, specifying the date and amount of prepayment and whether
the prepayment is of its Eurodollar Loans, ABR Loans, or a combination thereof,
and if of a combination thereof, the amount of prepayment allocable to
each.  Upon receipt of such notice the
Administrative Agent shall promptly notify each Bank thereof.  If such notice is given, the Borrower
delivering such notice shall make such prepayment, and the payment of the
amount specified in such notice shall be due and payable, on the date specified
therein, together with accrued interest to such date on the amount prepaid and
any amounts payable pursuant to subsections 2.14 and 2.15.  Except as provided in the immediately
following sentence, partial prepayments shall be in an aggregate principal
amount of $5,000,000, or a whole multiple thereof; provided, however, that
after giving effect thereto, the aggregate principal amount of all Committed
Rate Loans made on the same Borrowing Date shall not be less than
$25,000,000.  Anything contained in this
subsection 2.6 to the contrary notwithstanding, partial prepayments of a
Cancelled Bank’s Loans in connection with the termination under subsection 2.13(a),
(b) or (c), 2.16(c) or 2.17(b) of such Cancelled Bank’s Commitment (in whole or
in part) shall be in an amount equal to the principal amount of the Loans of
such Bank being prepaid, notwithstanding the amount thereof, and shall be
permitted notwithstanding the provisions of the foregoing proviso.  Either Borrower may prepay Negotiated Rate
Loans or Bid Loans on such terms as shall be mutually agreed upon between the
relevant Borrower and the relevant Bank.


 


2.7                                 Minimum Amount of Certain Loans.  All borrowings, conversions, continuations,
payments and, except as set forth in the penultimate sentence of subsection 2.6,
prepayments in respect of Committed Rate Loans shall be in such amounts and be
made pursuant to such elections that, after giving effect thereto, (a) the
aggregate principal amount of Committed Rate Loans made on any Borrowing Date
shall not be less than $25,000,000 or a whole multiple of $5,000,000 in excess
thereof and (b) the aggregate principal amount of Committed Rate Loans of any
Type with the same Interest Period shall not be less than $10,000,000 or a
whole multiple of $1,000,000 in excess thereof.


 


2.8                                 Committed Rate Loan Interest
Rate and Payment Dates.  (a)  The Eurodollar Loans shall bear interest for
the period from the date thereof until the stated maturity thereof on the
unpaid principal amount thereof at a rate per annum equal to the Eurodollar
Rate determined for the Interest Period therefor plus the Applicable Margin.


 


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(b)                                 The ABR Loans shall
bear interest for each day during the period from the date thereof until the
payment in full thereof on the unpaid principal amount thereof at a fluctuating
rate per annum equal to the ABR for such day plus the Applicable Margin.


 


(c)                                  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) as the case may be, from the date when such principal amount is due
until the date on which such amount is paid in full and (ii) shall, if such
Committed Rate Loan is a Eurodollar Loan, be converted to an ABR Loan at the
end of the Interest Period applicable thereto.


 


(d)                                 Interest shall be
payable in arrears on each Interest Payment Date.


 


2.9                                 Conversion and Continuation
Options.  (a)  The relevant Borrower may elect from time to
time to convert Committed Rate Loans of one Type into Committed Rate Loans of
another Type by giving to the Administrative Agent irrevocable notice of such
conversion by the earliest time that they would have been required to give
notice under subsection 2.1(c) if they had been borrowing Committed Rate
Loans of each such Type on the conversion date specified in such notice,
provided that any such conversion of Eurodollar Loans may only be made on the
last day of an Interest Period with respect thereto.  Any such notice of conversion to Eurodollar Loans
shall specify the length of the initial Interest Period or Interest Periods
therefor.  Upon receipt of any such
notice the Administrative Agent shall promptly notify each Bank thereof.  All or any part of outstanding Eurodollar
Loans and ABR Loans may be converted as provided herein, provided that no Loan
may be converted into a Eurodollar Loan after the date that is one month prior
to (i) in the case of a Loan made by an Objecting Bank, such Objecting Bank’s
Commitment Expiration Date, and (ii) in the case of all Loans, the Termination
Date.


 


(b)                                 Any Eurodollar Loans
may be continued as such upon the expiration of the then current Interest
Period with respect thereto by the relevant Borrower giving notice to the
Administrative Agent, such notice to be given by the time it would have been
required to give notice under subsection 2.1(c) if it had been borrowing
Eurodollar Loans on the last day of the then expiring Interest Period therefor,
of the length of the next Interest Period to be applicable to such Loans, provided
that no Eurodollar Loan may be continued as such after the date that is one
month prior to (i) in the case of a Loan made by an Objecting Bank, such
Objecting Bank’s Commitment Expiration Date, and (ii) in the case of all Loans,
the Termination Date.  Upon receipt of
any such notice, the Administrative Agent shall promptly notify each Bank
thereof.


 


2.10                           Computation of Interest and Fees.  (a) 
Facility fees, Utilization Fees and interest in respect of ABR Loans
based upon clause (a) of the definition of ABR shall be calculated on the basis
of a 365- (or 366- as the case may be) day year for the actual days elapsed
(including the first day and excluding the last day).  Interest in respect of Eurodollar Loans, Bid
Loans and ABR Loans based upon clause (b) of the definition of ABR shall be
calculated on the basis of a 360-day year for the actual days elapsed
(including the first day and excluding the last day).  The Administrative Agent shall promptly
notify the Borrowers and the Banks of each determination of a Eurodollar
Rate.  Any change in the interest rate on
a


 


95





















 


Committed Rate Loan resulting from a change in the ABR shall become
effective as of the opening of business on the day on which such change in the
ABR shall become effective.  The
Administrative Agent shall promptly notify the Borrowers and the Banks of the
effective date and the amount of each such change.


 


(b)                                 Each determination of
an interest rate by the Administrative Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the Borrowers and the Banks in the
absence of manifest error.  The
Administrative Agent shall, at the request of a Borrower, deliver to such
Borrower a statement showing the quotations given by the Reference Banks and
the computations used by the Administrative Agent in determining any interest
rate.


 


(c)                                  If any Reference Bank’s
Commitment shall terminate (otherwise than on termination of all the
Commitments) or, as the case may be, its Loans are assigned, prepaid or repaid
for any reason whatsoever, such Reference Bank shall thereupon cease to be a
Reference Bank, and the Administrative Agent (after consultation with the Banks
and with the consent of the Borrowers) shall, by notice to the Borrowers and
the Banks, designate a sufficient number of other Banks as Reference Banks so
that there shall at all times be at least three Reference Banks.


 


(d)                                 Each Reference Bank
shall use its best efforts to furnish quotations of rates to the Administrative
Agent as contemplated hereby.  If any of
the Reference Banks shall be unable or otherwise fails to supply such rates to
the Administrative Agent upon its request, the rate of interest shall be
determined on the basis of the quotations of the remaining Reference Banks or
Reference Bank.


 


2.11                           Inability to Determine
Interest Rate.  (a)  In the event that the Administrative Agent
shall have determined (which determination shall be conclusive and binding upon
the Borrowers) that by reason of circumstances affecting the interbank
eurodollar market generally, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for any requested Interest Period with respect
to Committed Rate Loans that a Borrower has requested be made as, continued as
or converted into Eurodollar Loans, the Administrative Agent shall promptly
give notice of such determination to such Borrower and the Banks prior to the
first day of the requested Interest Period for such Eurodollar Loans.  If such notice is given, such Borrower may
(i) in accordance with the provisions of subsection 2.1 or 2.9, as the
case may be (including any requirements for notification), request that the
affected Loans be made as, continued as or converted into, as the case may be,
ABR Loans, or (ii) in the case of Loans requested to be made on the first day
of such Interest Period, withdraw the notice given under subsections 2.1 or
2.9, as the case may be, by giving telephonic notice to the Administrative
Agent, no later than 10:00 A.M. (New York City time) on the applicable Borrowing
Date, confirmed in writing no later than one Business Day after such telephonic
notice is given; provided that if the Administrative Agent does not receive any
notice permitted from the relevant Borrower hereunder, such Borrower shall be
deemed to have requested that the affected Loans be made as, continued as or
converted into, as the case may be, ABR Loans. 
Until the notice given pursuant to the first sentence of this paragraph
has been withdrawn by the Administrative Agent, no further Loans shall be made
as, continued as or converted into, as the case may be, Eurodollar Loans.


 


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(b)                                 In the event that the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrowers) that by reason of circumstances
affecting the interbank eurodollar market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for any Interest Period with respect
to a proposed Bid Loan to be made pursuant to an Index Rate Bid Loan Request,
the Administrative Agent shall forthwith give notice of such determination to
the relevant Borrower and the Bid Loan Banks at least two Business Days prior
to the proposed Borrowing Date, and such Bid Loans shall not be made on such
Borrowing Date.  Until any such notice
has been withdrawn by the Administrative Agent, no further Index Rate Bid Loan
Requests shall be submitted by either Borrower.


 


2.12                           Pro Rata Treatment and Payments.  (a) 
All payments (including prepayments), to be made by the Borrowers on
account of principal, interest and fees shall be made without defense, set-off
or counterclaim and shall be made, in the case of fees and principal of, and
interest on, Loans (other than Negotiated Rate Loans) at the Administrative
Agent’s office specified in subsection 10.2, in each case in lawful money
of the United States of America and in immediately available funds not later
than 11:00 A.M. (New York City time) on the date due.  The Administrative Agent shall distribute
such payments to the Banks entitled thereto on the day of receipt in like funds
as received, provided that the Administrative Agent shall have received such
payments not later than 11:00 A.M. (New York City time).  If the Administrative Agent shall distribute
such payments to the Banks entitled thereto on a date after the date on which
such payments were received prior to 11:00 A.M. (New York City time), the
Administrative Agent shall pay to each such Bank on demand an amount equal to
the product of (i) the daily average Federal funds rate during such period as
quoted by the Administrative Agent, times (ii) the amount of such Bank’s share
of such payment, times (iii) a fraction, the numerator of which is the number
of days that elapse from and including such date of receipt of payment by the
Administrative Agent to but excluding the date on which such Bank’s share of
such payment shall have become immediately available to such Bank and the
denominator of which is 360.  All
payments (including prepayments) to be made by the Borrowers on account of
principal, interest and fees relating to Negotiated Rate Loans shall be made to
the Bank with respect thereto on such terms, at such address and at such time
as shall be mutually agreed upon between the relevant Borrower and the relevant
Bank in lawful money of the United States of America on the date due.


 


(b)        (i)  Each borrowing by the Borrowers of Committed
Rate Loans and each payment of principal in respect of Committed Rate Loans
(subject to the provisions of subsection 2.20(e)) shall be made in
accordance with the following requirements:


 


(A)                              All
borrowings of Committed Rate Loans and all principal payments in respect of
such Loans, shall be made pro  rata according to the respective
Commitments of the Banks.


 


(B)                                As
provided in clause (b)(ii) below, if any principal payment is made in respect
of any Loans (other than Negotiated Rate Loans) on any day on which principal
amounts are due and owing in respect of any Loans (other than Negotiated Rate
Loans), such principal payment shall be applied to the Banks pro  rata
according to the respective amounts of principal due and owing to the Banks
under this Agreement.


 


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(ii)                                  Except as provided in
subsections 2.13, 2.16 and 2.17, each reduction of the Commitments shall be
made pro  rata among the Banks according to their respective
Commitment Percentages.  Each payment by
the Borrowers under this Agreement or of any Loan (other than Negotiated Rate
Loans) shall be applied, first, to any fees then due and owing pursuant
to subsection 2.4, second, to interest then due and owing in
respect of the Loans (other than Negotiated Rate Loans) and third, to
principal then due and owing hereunder (other than principal due and owing under
Negotiated Rate Loans) and under the Loans (other than Negotiated Rate
Loans).  Each payment made by the
Borrowers under this Agreement relating to a Negotiated Rate Loan to the Bank
with respect thereto shall be applied, first, to interest then due and
owing in respect of such Negotiated Rate Loan and second, to principal
then due and owing hereunder with respect to such Negotiated Rate Loan and
under such Negotiated Rate Loan.  Each
payment (other than voluntary prepayments made when no principal payments are
due and owing hereunder) by either Borrower on account of principal of and
interest on the Loans (other than Negotiated Rate Loans) shall be made for the
account of each Bank pro  rata according to the respective amounts
of principal and interest due and owing to such Bank under this Agreement.  Subject to the requirements of clause (i) of
this paragraph (b), each payment by a Borrower on account of principal of the
Loans (other than Negotiated Rate Loans) shall be applied, first, to
such of its Committed Rate Loan borrowings as such Borrower may designate, provided,
however, that if any such payment is made after the Commitment
Expiration Date for any Objecting Banks to which Committed Rate Loans remain
outstanding, such Objecting Banks shall receive, pro  rata, the
portion of such payment that bears the same ratio to the aggregate outstanding
principal amount of Committed Rate Loans owing to all Objecting Banks as the
portion of such prepayment applied to the Committed Rate Loans of the other
Banks bears to the aggregate outstanding principal amount of Committed Rate
Loans owing to such other Banks, and, second, after all Committed Rate
Loans shall have been paid in full, to all of its Absolute Rate Bid Loans or
Index Rate Bid Loans made on the same Borrowing Date with the same Interest
Period as such Borrower may designate, pro  rata according to the
respective amounts outstanding; provided, however, that
prepayments made pursuant to subsection 2.13(a), (b) or (c), 2.16(c) or
2.17(b) shall be applied in accordance with such subsection.


 


(c)                                  If any payment
hereunder (other than payments on the Eurodollar Loans and Index Rate Bid
Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day.  If any payment on a Eurodollar Loan or Index
Rate Bid Loan becomes due and payable on a day other than a Working Day, the
maturity thereof shall be extended to the next succeeding Working Day unless
the result of such extension would be to extend such payment into another
calendar month in which event such payment shall be made on the immediately
preceding Working Day.  With respect to
any extension of the payment of principal pursuant to this subsection 2.12(c),
interest thereon shall be payable at the then applicable rate during such
extension.


 


(d)                                 Unless the
Administrative Agent shall have been notified in writing by any Bank prior to
the date of the Committed Rate Loan, Committed Rate Loans, Bid Loan or Bid
Loans to be made by such Bank (which notice shall be effective upon receipt)
that such Bank will not make its pro  rata share of the amount of
the requested borrowing on such date available to the Administrative Agent, the
Administrative Agent may assume that such Bank has made such amount available
to it on such date and the Administrative Agent may, in reliance upon such
assumption, make available to the relevant Borrower a corresponding
amount.  If a Bank


 


98





















 


shall make such amount available to the Administrative Agent on a date
after such Borrowing Date, such Bank shall pay to the Administrative Agent on
demand an amount equal to the product of (i) the daily average Federal funds
rate during such period as quoted by the Administrative Agent, times
(ii) the amount of such Bank’s pro  rata share of such borrowing, times
(iii) a fraction, the numerator of which is the number of days that elapse from
and including such Borrowing Date to but excluding the date on which such Bank’s
pro  rata share of such borrowing shall have become immediately
available to the Administrative Agent and the denominator of which is 360.  A certificate of the Administrative Agent
submitted to any Bank with respect to any amounts owing under this subsection 2.12(d)
shall be conclusive, absent manifest error. 
If such Bank’s pro  rata share is not in fact made
available to the Administrative Agent by such Bank within three Business Days
of such Borrowing Date, the Administrative Agent shall be entitled to recover
such amount, on demand, from the relevant Borrower with interest thereon at the
rate equal to the product of (i) during the period from and including such
Borrowing Date to the Business Day next following the date of such demand, the
daily average Federal funds rate as quoted by the Administrative Agent, times
a fraction, the numerator of which is the number of days that elapse from and
including such Borrowing Date to but excluding the Business Day next following
the date of such demand and the denominator of which is 360 and (ii)
thereafter, the interest rate or rates applicable to the Loan or Loans funded
by the Administrative Agent on behalf of such Bank on such Borrowing Date, times
a fraction, the numerator of which is the number of days which elapse from and
including the Business Day next following the date of such demand to but
excluding the date such amount is recovered by the Administrative Agent from
such Borrower and the denominator of which is 360.  In the event any Bank’s pro  rata
share of a borrowing is not made available to the Administrative Agent in
accordance with this paragraph within three Business Days of the applicable
Borrowing Date (i) such Bank shall, during the period from such Borrowing Date
to the date such Bank makes its pro  rata share of the applicable
borrowing available, not accrue and shall not be entitled to receive any
facility fee under subsection 2.4 and (ii) either Borrower may exercise or
pursue any other rights, remedies, powers and privileges against such Bank as
are provided by law or by contract.


 


2.13                           Requirements of Law.  (a) 
If any Bank shall determine that by reason of (i) the introduction after
the date hereof of any applicable law, regulation or guideline or any change
after the date hereof in any applicable law, regulation or guideline (including
the phasing-in of a provision of any applicable law, regulation or guideline)
or in the interpretation thereof by any governmental or other regulatory
authority charged with the administration thereof or any court of competent jurisdiction
and/or (ii) compliance by such Bank with any requirement adopted after the date
hereof or directive adopted after the date hereof from any central bank or
other fiscal, monetary or other regulatory authority (whether or not having the
force of law), there shall be any increase in the cost of such Bank of
maintaining or giving effect to its obligations with respect to Committed Rate
Loans under this Agreement or maintaining its Commitment with respect to
Committed Rate Loans or making or maintaining any Eurodollar Loans or any
reduction in any amount receivable by such Bank in respect of Eurodollar Loans
under this Agreement, notwithstanding the reasonable efforts (such reasonable
efforts not to result in the incurrence of additional costs or expenses) of
such Bank to mitigate such increase or reduction, then the relevant Borrower
shall from time to time on receipt (whenever occurring) of a certificate from
such Bank (which shall be executed by an officer thereof and a copy of which
shall be delivered to the Administrative Agent) pay to such Bank such amounts
as are


 


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stated therein to be required to indemnify such Bank against such
increased costs or reduction; provided, however, that if such Borrower becomes
obligated to pay any Bank any additional amount pursuant to this subsection 2.13(a),
such Borrower shall have the right, so long as no Event of Default has occurred
and is then continuing, upon giving notice to the Administrative Agent and such
Bank in accordance with subsection 2.6, to prepay in full the Loans of
such Bank, together with accrued interest thereon, any amounts payable to such
Bank pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and
unpaid facility fee or other amount payable to such Bank hereunder and/or, upon
giving not less than three Business Days’ notice to any such Bank and the
Administrative Agent, to cancel the whole or part of the Commitment of any such
Bank; provided, further, that such Borrower shall not be obligated to pay any
Bank any additional amount pursuant to this subsection 2.13(a) (A) which
constitutes a present or future income, stamp or other tax, levy, impost, duty,
charge, fee, deduction or withholding referred to in subsection 2.17(a) or
(B) as a result of any law, rule, guideline, regulation, request or directive
regarding capital adequacy referred to in subsection 2.13(b).  A certificate of such Bank as to the amount
of such increased 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).


 


(b)                                 In the event that any
Bank shall have determined that the adoption after the date hereof of any law,
rule, guideline or regulation regarding capital adequacy, or any change after
the date hereof in any existing or future law, rule, guideline or regulation
regarding capital adequacy (excluding, however, the phasing-in of any existing
law, rule, regulation or guideline regarding capital adequacy) or in the
interpretation or application thereof or compliance by such Bank or any
corporation controlling such Bank with any request or directive made or adopted
after the date hereof regarding capital adequacy (whether or not having the
force of law) from any central bank or Governmental Authority, does or shall
have the effect of reducing the rate of return on such Bank’s or such
corporation’s capital as a consequence of its obligations hereunder to a level
below that which such Bank or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration such Bank’s or such
corporation’s policies with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time, within 30 days after receipt
(whenever occurring) of a certificate from such Bank (which shall be executed
by an officer thereof and a copy of which shall be delivered to the
Administrative Agent), the Borrowers jointly and severally agree to pay to such
Bank such additional amounts as are stated therein to be required to compensate
it for such reduction; provided, however, that if such Borrower
becomes obligated to pay any Bank any additional amount pursuant to this subsection 2.13(b),
such Borrower shall have the right, so long as no Event of Default has occurred
and is then continuing, upon giving notice to the Administrative Agent and such
Bank in accordance with subsection 2.6, to prepay in full the Loans of
such Bank, together with accrued interest thereon, any amounts payable pursuant
to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility
fee or other amounts payable to it


 


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hereunder and/or, upon giving not less than three Business Days’ notice
to any such Bank and the Administrative Agent, to cancel the whole or part of
the Commitment of any such Bank.  A
certificate of such Bank as to the amount of such reduction shall set forth in
reasonable detail the computation of such reduction, and shall be binding and
conclusive in the absence of manifest error. 
A Bank which demands indemnification hereunder as a result of a
reduction referred to herein shall deliver the certificate referred to above to
the relevant Borrower demanding indemnification no later than the later of (i)
the thirtieth day immediately following each realization by such Bank of such
reduction (and such certificate shall certify that the amounts set forth therein
were realized within such thirty-day period) and (ii) the thirtieth day
immediately following such Bank’s knowledge of the realization by such Bank of
such reduction (and such certificate shall so certify).


 


(c)                                  Each Borrower shall
pay to each Bank that delivers a certificate to such Borrower in accordance
with the second and third following sentences such amounts as shall be
necessary to reimburse such Bank for the costs (determined in accordance with
the immediately following sentence), if any, incurred by such Bank, as a result
of the application to such Bank during any period on which there are
outstanding Eurodollar Loans advanced by such Bank to such Borrower of basic,
supplemental, marginal and emergency reserves under any regulations of the Board
of Governors of the Federal Reserve System or other Governmental Authority
having jurisdiction with respect thereto dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as “Eurocurrency
liabilities” in Regulation D of such Board) maintained by a member bank of such
System (any such reserves dealing with reserve requirements prescribed for
eurocurrency funding being referred to as “Reserves”), such amount to be
set forth in a certificate of such Bank delivered to the relevant Borrower; provided,
however, that if a Bank gives to a Borrower the written notice
contemplated by the proviso set forth in the second following sentence, such
Borrower shall have the right, so long as no Event of Default has occurred and
is then continuing, upon giving notice to the Administrative Agent and such
Bank in accordance with subsection 2.6, to prepay in full the Loans of
such Bank, together with accrued interest thereon, any amounts payable pursuant
to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility
fee or other amounts payable to it hereunder and/or upon giving not less than
three Working Days’ notice to such Bank and the Administrative Agent, to cancel
the whole or part of the Commitment of any such Bank.  Amounts certified by a Bank hereunder for any
period shall represent such Bank’s calculation or, if an accurate calculation
is impracticable, reasonable estimate (using such reasonable means of
allocation as such Bank shall determine) of the actual costs, if any,
theretofore incurred by such Bank as a result of the application of Reserves to
Eurocurrency liabilities (as referred to in Regulation D referred to above) of
such Bank in an amount equal to such Bank’s Eurodollar Loans during such period
and in any event shall not exceed the amount obtainable utilizing the maximum
Reserves prescribed by the Board of Governors of the Federal Reserve System or
other Governmental Authority having jurisdiction with respect thereto for such
period.  Such payment shall be made
within fifteen days after receipt by the relevant Borrower of a certificate,
signed by an officer of the Bank delivering such certificate, which certificate
shall be binding and conclusive in the absence of demonstrable error,
specifying the period (prior to the date of such certificate) during which the
cost set forth therein was incurred by such Bank and stating (i) that such
amount represents the actual cost, or, if an accurate calculation of such cost
is impracticable stating that such amount represents such Bank’s reasonable
estimate of the actual cost, incurred by such Bank during such period as a
result of the application of Reserves to


 


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Eurocurrency liabilities of such Bank in an amount equal to such Bank’s
Eurodollar Loans during such period and specified in such certificate and (ii)
that the amount set forth therein does not in any event exceed the amount
obtainable utilizing the maximum Reserves prescribed for such period by the
Board of Governors of the Federal Reserve System or such other Governmental
Authority having jurisdiction with respect thereto; provided that the
obligation of the Borrowers to pay any amounts pursuant to this subsection 2.13(c)
shall apply only in the case of those Banks that give to the relevant Borrower
and the Administrative Agent, no later than 3:00 P.M. (New York City time) on
the day that is two Working Days prior to the applicable Borrowing Date
therefor, a written notice stating that such Bank intends to demand
reimbursement pursuant hereto.  A Bank
which demands reimbursement of Reserve costs hereunder on account of a
Eurodollar Loan made by such Bank shall deliver the certificate referred to in
the preceding sentence to the relevant Borrower setting forth the items
specified in clauses (i) and (ii) of the preceding sentence no later than the
thirtieth day immediately following the last day of the Interest Period
applicable to such Eurodollar Loan.


 


(d)                                 The obligations of the
parties under this subsection 2.13 shall survive termination of this
Agreement and payment of the Loans.


 


2.14                           Indemnity. 
Each Borrower agrees to indemnify each Bank and to hold each Bank
harmless from any loss or expense which such Bank may sustain or incur as a
consequence of (a) default by such Borrower in payment of the principal amount
of or interest on any Loan by such Bank, including, but not limited to, any
such loss or expense arising from interest or fees payable by such Bank to
lenders of funds obtained by it in order to maintain its Loans hereunder, (b)
default by such Borrower in making a borrowing, conversion or continuance after
such Borrower has given a notice in accordance with subsection 2.1, 2.2 or
2.9, (c) default by such Borrower in making any prepayment after such Borrower
has given a notice in accordance with subsection 2.5 or 2.6 or (d) the
making by such Borrower of a prepayment of a Committed Rate Loan (other than an
ABR Loan), a Bid Loan or, to the extent agreed to by the relevant Borrower and
the relevant Bank with respect to a Negotiated Rate Loan, a Negotiated Rate
Loan on a day which is not the last day of an Interest Period with respect
thereto (with respect to Committed Rate Loans) or the maturity date therefor
(with respect to Bid Loans) or any agreed date (with respect to Negotiated Rate
Loans), including, but not limited to, any such loss or expense arising from
interest or fees payable by such Bank to lenders of funds obtained by it in
order to maintain its Loans hereunder. 
This covenant shall survive termination of this Agreement and payment of
the outstanding Loans.  A certificate as
to any amount payable pursuant to the foregoing shall be submitted by such Bank
(and executed by an officer thereof) to the relevant Borrower, setting forth
the computation of such amounts in reasonable detail, and shall be conclusive
in the absence of manifest error.


 


2.15                           Non-Receipt of Funds by the
Administrative Agent.  With
respect to all Loans except Negotiated Rate Loans, unless the Administrative
Agent shall have been notified by the relevant Borrower prior to the date on
which any payment is due from it hereunder (which notice shall be effective
upon receipt) that such Borrower does not intend to make such payment, the
Administrative Agent may assume that such Borrower has made such payment when
due, and the Administrative Agent may in reliance upon such assumption (but
shall not be required to) make available to each Bank on such payment date an
amount equal to the portion of such assumed payment to which such Bank is
entitled hereunder, and if such Borrower has


 


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not in fact made such payment to the Administrative Agent, such Bank
shall, on demand, repay to the Administrative Agent the amount made available
to such Bank together with interest thereon in respect of each day during the
period commencing on the date such amount was made available to such Bank and
ending on (but excluding) the date such Bank repays such amount to the
Administrative Agent, at a rate per annum equal to the Administrative Agent’s
cost of obtaining overnight funds in the federal funds market in New York on
each such day.  A certificate of the
Administrative Agent submitted to the relevant Bank with respect to any amount
owing under this subsection 2.15 shall be conclusive absent manifest
error.


 


2.16                           Extension of Termination Date.  (a)  No
later than one year prior to the Termination Date then in effect, provided that
no Event of Default shall have occurred and be continuing, the Borrowers may
request an extension of such Termination Date by submitting to the
Administrative Agent an Extension Request containing the information in respect
of such extension specified in Exhibit I, which the Administrative Agent shall
promptly furnish to each Bank.  If,
within 30 days of their receipt of an Extension Request, the Required Banks
shall approve in writing the extension of the Termination Date requested in
such Extension Request, the Termination Date shall automatically and without
any further action by any Person be extended for the period specified in such
Extension Request; provided that (i) each extension pursuant to this subsection 2.16
shall be for a maximum of one year, (ii) after giving effect to any extension,
the Termination Date shall not be more than five years after the date such
extension is approved by the Required Banks and (iii) 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 Required Banks shall not approve in
writing the extension of the Termination Date requested in an Extension
Request, the Termination Date shall not be extended pursuant to such Extension
Request.  The Administrative Agent shall
promptly notify (y) the Banks and the Borrowers of any extension of the
Termination Date pursuant to this subsection 2.16 and (z) the Borrowers
and any other Bank of any Bank which becomes an Objecting Bank.


 


(b)                                 Any Objecting Bank the
Commitment of which shall expire prior to any extended Termination Date shall,
subject to subsection 2.16(c), have its Committed Rate Loans prepaid in
full by the applicable Borrower(s) on such expiration date, together with
accrued interest thereon, and shall have any accrued and unpaid facility fee or
other amount payable to it hereunder paid on the first date to occur following
such expiration date on which the fees referred to in subsection 2.4(a)
are payable to the non-Objecting Banks or, if such fees shall be so payable on
such expiration date, such unpaid facility fee and other amount shall be paid
on such expiration date.


 


(c)                                  The Borrowers shall
have the right, so long as no Event of Default has occurred and is then
continuing, upon giving notice to the Administrative Agent and the Objecting
Banks in accordance with subsection 2.6, to prepay in full the Committed
Rate Loans of the Objecting Banks, together with accrued interest thereon, any
amounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any
accrued and unpaid facility fee or other amounts payable to it hereunder
and/or, upon giving not less than three Working Days’ notice to the


 


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Objecting Banks and the Administrative Agent, to cancel the whole or
part of the Commitments of the Objecting Banks, provided that during the
period from the Closing Date through February 14, 2006 and, commencing February 15,
2006, during each one-year period thereafter to and including the Termination
Date (each, a “Deal Year”), the aggregate Commitments of Banks which are
terminated pursuant to this subsection 2.16(c) and are not replaced during
such Deal Year pursuant to subsection 2.19 shall not exceed 33-1/3% of the
aggregate Commitments in effect on the first day of such Deal Year of Banks
which were not Objecting Banks on such first day.


 


2.17                           Foreign Taxes.  (a) 
All payments made under this Agreement shall be made without set-off or
counterclaim and free and clear of, and without reduction for or on account of,
any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions, withholdings or restrictions or conditions of any
nature whatsoever, now or hereafter imposed, levied, collected, withheld or
assessed by any country (or by any political subdivision or taxing authority
thereof or therein) from or through which any amount is paid under this
Agreement excluding, in the case of each Bank, (i) income and franchise taxes
(including, without limitation, branch taxes imposed by the United States or
similar taxes imposed by a political subdivision or taxing authority thereof or
therein but excluding, in the case of any Bank not organized under the laws of
the United States, any taxes imposed by the United States by means of
withholding at the source), (ii) in the case of any Bank not organized under
the laws of the United States, any taxes imposed by the United States by means
of withholding at the source unless such Bank has provided the Company, the
Capital Corporation and the Administrative Agent with the documents it is
required to provide to them under subsection 2.17(c) and (iii) taxes that
would not have been imposed on such Bank but for the existence of a connection
between such Bank and the jurisdiction imposing such taxes (other than a
connection arising principally by virtue of this Agreement) (such non-excluded
taxes being called “Foreign Taxes”).  If
any Foreign Taxes are required to be withheld from any amounts so payable to
any Bank hereunder, the amounts so payable to such Bank shall be increased to
the extent necessary to yield to such Bank (after payment of all Foreign Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement. 
Whenever any Foreign Taxes are payable by the Company or the Capital
Corporation, as the case may be, as promptly as possible thereafter the Company
or the Capital Corporation, as the case may be, shall send to the
Administrative Agent, for the account of the affected Bank, a certified copy of
the original official receipt, if any, received by the Company or the Capital
Corporation, as the case may be, showing payment thereof.  If the Company or the Capital Corporation, as
the case may be, fails to pay any Foreign Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the affected Banks, the required receipts or other required documentary
evidence, the Company or the Capital Corporation, as the case may be, shall
indemnify such Banks for any incremental taxes, interest or penalties that may
become payable by such Banks as a result of any such failure.


 


(b)                                 If a Borrower is
required by this subsection 2.17 to make a payment to or in respect of any
Bank, such Borrower shall have the right, so long as no Event of Default has
occurred and is then continuing, upon giving notice to the Administrative Agent
and such Bank in accordance with subsection 2.6, to prepay in full the
Loans of such Bank, together with accrued interest thereon, any amounts payable
pursuant to subsections 2.13, 2.14, 2.15 and 2.17


 


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and any accrued and unpaid facility fee or other amounts payable to it
hereunder and/or on giving not less than three Business Days’ notice to any
such Bank and the Administrative Agent, to cancel the whole or part of the
Commitment of such Bank.


 


(c)                                  At least two Business
Days prior to the first Borrowing Date or, if such date does not occur within
thirty days after the Closing Date, by the end of such thirty-day period, each
Bank agrees that it will deliver to each Borrower and the Administrative Agent
(i) either (A) a statement that it is incorporated under the laws of the United
States or a state thereof or (B) if it is not so incorporated, a letter in
duplicate in the form of Exhibit J or Exhibit K, as appropriate, and two duly
completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI or successor applicable form, as the case may be, certifying in each
case that such Bank is entitled to receive payment under this Agreement without
deduction or withholding of any United States Federal income taxes, and (ii)
Internal Revenue Service Form W-8BEN, or successor applicable form, as the case
may be, to establish an exemption from United States backup withholding
tax.  Each Bank agrees (for the benefit
of the Administrative Agent and the Borrowers) to provide the Administrative
Agent and the Borrowers a new letter and Form W-8BEN or 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 or form previously
delivered by it, certifying in the case of a Form W-8BEN or W-8ECI 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 establishing exemption from United States backup withholding tax.  The Administrative Agent shall not be
responsible for obtaining such documentation from any Bank other than JPMorgan
Chase Bank, N.A.


 


(d)                                 The Company and the
Capital Corporation shall not be required to make payments on account of United
States withholding taxes to any Bank under the second sentence of subsection 2.17(a)
to the extent that such taxes could have been avoided had such Bank complied
with a reasonable request by the Company, the Capital Corporation or the
Administrative Agent for the forms or documents referred to in subsection 2.17(c).


 


(e)                                  To the extent that,
as determined by any Bank in its sole discretion and without any obligation to
disclose its tax records, Foreign Taxes have been irrevocably utilized by such
Bank (either as credits or deductions) to reduce its tax liabilities and such
utilization is consistent with its overall tax policies, such Bank shall pay to
the Company or the Capital Corporation, as the case may be, an amount equal to
such reduction obtained to the extent of such increased amounts paid by the
Company or the Capital Corporation to such Bank as aforesaid.


 


(f)                                    The obligations of
the parties under this subsection 2.17 shall survive termination of this
Agreement and payment of the Loans.


 


2.18                           Confirmations.  The Administrative Agent shall, within 15
days following the last day of each calendar quarter (each such period being a “Report
Period”), furnish to the Borrowers a written account with respect to all
amounts outstanding under the Loan Accounts as at the last day of such Report
Period, including an accounting setting forth, for such Report Period the
amounts of principal, interest and other sums paid and payable hereunder.  The


 


105





















 


Borrowers shall, within 15 days following receipt of such written
account, notify the Administrative Agent of any discrepancies between such
written account and the Borrowers’ records or, if no such discrepancies exist,
furnish written confirmation to the Administrative Agent of the accuracy of
such written account.  Upon any Bank’s
request, the Administrative Agent shall furnish to each Bank a copy of such
written account together with the Borrowers’ response thereto.


 


2.19                           Replacement of Cancelled Banks.  The Borrowers may designate one or more
financial institutions to act as a Bank hereunder in place of any Cancelled
Bank, and upon the Borrowers, each such financial institution and the
Administrative Agent executing a writing substantially in the form of Exhibit
L, such financial institution shall become and be a Bank hereunder with all the
rights and obligations it would have had if it had been named on the signature
pages hereof, and having for all such financial institutions an aggregate
Commitment no greater than the whole, or such cancelled part, of the Commitment
of the Cancelled Bank in place of which such financial institutions were
designated; provided, however, that all rights and obligations of such
Cancelled Bank relating to the Loans made by such Cancelled Bank that are
outstanding on the date of such cancellation shall be the rights and
obligations of such Cancelled Bank and not of any such financial
institution.  The Administrative Agent
shall execute any such writing presented to it and shall notify the Banks of
the execution thereof, the name of the financial institution executing such
writing and the amount of its Commitment.


 


2.20                           Commitment Increases.  (a)  At
any time after the Closing Date, provided that no Event of Default shall have
occurred and be continuing, the Borrowers may request an increase of the
aggregate Commitments by notice to the Administrative Agent in writing of the
amount (the “Offered Increase Amount”) of such proposed increase (such notice,
a “Commitment Increase Notice”).  Any
such Commitment Increase Notice must offer each Bank the opportunity to
subscribe for its pro rata share of the increased Commitments; provided,
however, the Borrowers may, with the consent of the Administrative Agent (which
consent shall not be unreasonably withheld or delayed), without offering to
each Bank the opportunity to subscribe for its pro rata share of the increased
Commitments, offer to any bank or other financial institution that is not an
existing Bank the opportunity to provide a new Commitment pursuant to paragraph
(b) below if the aggregate amount of all Commitments made hereunder pursuant to
this proviso which will be in effect when such new Commitment becomes effective
does not exceed $375,000,000 subject to subsection 2.20(f).  If any portion of the increased Commitments
offered to the Banks as contemplated in the immediately preceding sentence is
not subscribed for by the Banks, the Borrowers may, with the consent of the
Administrative Agent as to any bank or financial institution that is not at
such time a Bank (which consent shall not be unreasonably withheld or delayed),
offer to any existing Bank or to one or more additional banks or financial
institutions the opportunity to provide all or a portion of such unsubscribed
portion of the increased Commitments pursuant to paragraph (b) below.


 


(b)                                 Any additional bank or
financial institution that the Borrowers select to offer the opportunity to
provide any portion of the increased Commitments, and that elects to become a
party to this Agreement and provide a Commitment, shall execute a New Bank
Supplement with the Borrowers and the Administrative Agent, substantially in
the form of Exhibit N (a “New Bank Supplement”), whereupon such bank or
financial institution (a “New Bank”) shall become a Bank for all
purposes and to the same extent as if originally a party hereto and shall be
bound


 


106





















 


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.


 


(ii)                                  In the event that on
any such Re-Allocation Date there is an unpaid principal amount of ABR Loans,
the applicable Borrower shall make prepayments thereof and one or both
Borrowers shall make borrowings of ABR Loans and/or Eurodollar Loans, as the
applicable Borrower shall determine, so that, after giving effect thereto, the
ABR Loans and Eurodollar Loans outstanding are held as nearly as may be in
accordance with the pro rata provisions of subsection 2.12(b) based on
such new Commitment Percentages.


 


(iii)                               In the event that on any
such Re-Allocation Date there is an unpaid principal amount of Eurodollar
Loans, such Eurodollar Loans shall remain outstanding with the respective
holders thereof until the expiration of their respective Interest Periods
(unless the applicable Borrower elects to prepay any thereof in accordance with
the applicable provisions of this Agreement), and on the last day of the
respective Interest Periods the applicable Borrower shall make prepayments
thereof and one or both Borrowers shall make borrowings of ABR Loans and/or
Eurodollar Loans so that, after giving effect thereto, the ABR Loans and
Eurodollar


 


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Loans outstanding are held as nearly as may be in accordance with the
pro rata provisions of subsection 2.12(b) based on such new Commitment
Percentages.


 


(f)                                    Notwithstanding
anything to the contrary in this subsection 2.20, (i) in no event shall
any transaction effected pursuant to this subsection 2.20 cause the
aggregate Commitments to exceed $1,000,000,000, (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 the order
of such Bank, if requested, in an amount equal to the Commitment of such Bank
after giving effect to any increase in such Bank’s Commitment.


 


SECTION 3.                                REPRESENTATIONS AND
WARRANTIES


 


Each Borrower hereby represents and warrants
to the Administrative Agent and to each Bank that:


 


3.1                                 Financial Condition.  The consolidated balance sheet of such
Borrower and its consolidated Subsidiaries as at October 31, 2004 and the
related consolidated statements of income and of cash flow for the fiscal year
then ended (including the related schedules and notes) reported on by Deloitte
& Touche LLP, copies of which have heretofore been furnished to each Bank,
fairly present the consolidated financial condition of such Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and changes in financial position for the fiscal year then ended.  All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with
generally accepted accounting principles in the United States of America
applied consistently throughout the periods involved (except as approved by
such accountants or Responsible Officer, as the case may be, and as disclosed
therein).


 


3.2                                 Corporate Existence.  Such Borrower is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power and authority to own its properties
and to conduct the business in which it is currently engaged.


 


3.3                                 Corporate Power;
Authorization; Enforceable Obligations. 
Such Borrower has the corporate power and authority and the legal right
to execute, deliver and perform this Agreement and to borrow hereunder and has
taken all necessary corporate action to authorize its borrowings on the terms
and conditions of this Agreement and to authorize its execution, delivery and
performance of this Agreement.  No
consent or authorization of, filing with, or other act by or in respect of, any
Governmental Authority, is required in connection with the borrowings hereunder
or with the execution, delivery, performance, validity or enforceability of
this Agreement other than any such consents, authorizations, filings or acts as
have been obtained, taken or made and are in full force and effect.  This Agreement has been duly


 


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executed and delivered on behalf of such Borrower, and this Agreement
constitutes a legal, valid and binding obligation of such Borrower enforceable
against such Borrower in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors’ rights generally and by
general equity principles (whether enforcement is sought by proceedings in
equity or at law).


 


3.4                                 No Legal Bar.  The execution, delivery and performance of
this Agreement, the borrowings hereunder and the use of the proceeds thereof,
will not violate any Requirement of Law or any Contractual Obligation of such
Borrower, and will not result in, or require, the creation or imposition of any
lien on any of its properties or revenues pursuant to any Requirement of Law or
Contractual Obligation.


 


3.5                                 No Material Litigation.   No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of such Borrower, threatened by or against such Borrower or any of
its Subsidiaries or against any of its or their respective properties or
revenues except actions, suits or proceedings which will not materially
adversely affect the ability of such Borrower to perform its obligations
hereunder.  All of the defaults, if any,
of such Borrower or any of its Subsidiaries with respect to any order of any
Governmental Authority do not, and will not collectively, have a material
adverse effect on the business, operations, property or financial or other
condition of such Borrower and its Subsidiaries taken as a whole.


 


3.6                                 Taxes.  Each of such Borrower and its Subsidiaries
has filed or caused to be filed all tax returns which, to the knowledge of such
Borrower, are required to be filed (except where the failure to file such tax
returns would not have a material adverse effect on the business, operations,
property or financial or other condition of such Borrower and its Subsidiaries
taken as a whole), and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than assessments, taxes, fees and other charges
the amount or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of such Borrower or its Subsidiaries, as
the case may be).


 


3.7                                 Margin Regulations.  No part of the proceeds of any Loan hereunder
will be used for any purpose which violates the provisions of Regulation U of
the Board of Governors of the Federal Reserve System as now and from time to
time hereafter in effect.


 


3.8                                 Pari Passu Ranking.  The indebtedness of such Borrower under its
Loans and all other amounts due hereunder ranks at least pari passu with all
present and future unsecured senior indebtedness of such Borrower (other than
indebtedness preferred by law).


 


3.9                                 No Defaults.  No “Event of Default” or similar event, or
event which, with the lapse of time or the giving of notice, or both, would
constitute such an Event of Default or similar event, has occurred and is
continuing hereunder or under any material bond, debenture, note or other
evidence of indebtedness (other than any bond, debenture, note or other
evidence


 


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of Securitization Indebtedness, for which no representation is hereby
given), or in any material mortgage, deed of trust, indenture or loan agreement
(other than any mortgage, deed of trust or loan agreement in respect of
Securitization Indebtedness, for which no representation is hereby given), of
such Borrower.


 


3.10                           Use of Proceeds.  The proceeds of the Loans will be used by
such Borrower for its general corporate purposes, which shall include, but
shall not be limited to, any purchase or other acquisition of all or a portion
of the debt or stock or other evidences of ownership of such Borrower or the
assets or stock or other evidences of ownership of any other Person or Persons.


 


SECTION 4.                                CONDITIONS
PRECEDENT


 


4.1                                 Conditions to Initial Loan.  The obligation of each Bank to make its
initial Loan hereunder is subject to the satisfaction of the following
conditions precedent:


 


(a)                                  Counterparts.  The Administrative Agent shall have received
counterparts hereof, executed by all of the parties hereto.


 


(b)                                 Resolutions.  The Administrative Agent shall have received,
with a counterpart for each Bank, resolutions, certified by the Secretary or an
Assistant Secretary of each Borrower, in form and substance satisfactory to the
Administrative Agent, adopted by the Board of Directors of such Borrower
authorizing the execution of this Agreement and the performance of its
obligations hereunder and any borrowings hereunder from time to time.


 


(c)                                  Legal Opinions.  The Administrative Agent shall have received,
with a counterpart for each Bank, an opinion of James R. Jenkins, Esq., or his
successor as General Counsel of the Company, or an associate general counsel of
the Company, dated the Closing Date and addressed to the Agents and the Banks,
substantially in the form of Exhibit G, and an opinion of Shearman &
Sterling LLP, special counsel to the Borrowers, dated the Closing Date and
addressed to the Agents and the Banks, substantially in the form of Exhibit
H.  Such opinions shall also cover such
other matters incident to the transactions contemplated by this Agreement as
the Administrative Agent shall reasonably require.


 


(d)                                 Incumbency
Certificate.  The Administrative
Agent shall have received, with a counterpart for each Bank, a certificate of
the Secretary or an Assistant Secretary of each Borrower certifying the names
and true signatures of the officers of such Borrower authorized to sign this
Agreement, together with evidence of the incumbency of such Secretary or
Assistant Secretary.


 


(e)                                  Termination of
Existing Credit Agreements.  The
Administrative Agent shall have received evidence satisfactory to it that the
commitment of each financial institution to make loans pursuant to the
$1,250,000,000 364-Day Credit Agreement, dated as of February 17, 2004, as
supplemented, among the Borrowers, the lenders parties thereto, JPMorgan Chase
Bank, N.A., as Administrative Agent, Citibank, N.A. and Credit Suisse First
Boston, as Documentation Agents, Merrill Lynch Bank USA, as Co-Documentation
Agent, Bank of America, N.A. and Deutsche Bank AG New York Branch, as
Syndication Agents, shall have


 


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been terminated in full and the outstanding principal amount of the
indebtedness thereunder and all other amounts owing to any bank thereunder
shall have been repaid or paid by the Borrowers.


 


(f)                                    The Administrative
Agent shall have received concurrently with the execution of this Agreement,
with a counterpart for each Bank, a certificate of a Responsible Officer for
each Borrower dated the date of this Agreement certifying that since October 31,
2004, at the date of such certificate there has been no material adverse change
in the business, property, operations, condition (financial or otherwise) or
prospects of such Borrower and its Subsidiaries, taken as a whole.


 


(g)                                 Fees.  The Administrative Agent shall have received,
for the accounts of the Banks and the Administrative Agent, and each Agent
shall have received, for the account of such Agent, all accrued fees and
expenses owing hereunder or in connection herewith to the Banks and the Agents
to be received on the Closing Date.


 


(h)                                 Additional Matters.  All other documents which the Administrative
Agent may reasonably request in connection with the transactions contemplated
by this Agreement shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel.


 


4.2                                 Conditions to All Loans.  The obligation of each Bank to make any Loan
(which shall include the initial Loan to be made by it hereunder but shall not
include any Loan made pursuant to subsection 2.20(e)(ii) or (iii) if,
after the making of such Loan and the application of the proceeds thereof, the
aggregate outstanding principal amount of the Committed Rate Loans would not be
increased) to be made by it hereunder on any Borrowing Date is subject to the
satisfaction of the following conditions precedent:


 


(a)                                  Representations
and Warranties.  The representations
and warranties made by the Borrowers herein or which are contained in any
certificate, document or financial or other statement furnished by either
Borrower at any time hereunder or in connection herewith (other than any
representations and warranties which by the terms of such certificate, document
or financial or other statement do not survive the execution of this Agreement)
shall be correct on and as of the date of such Loan as if made on and as of
such date except as such representations and warranties expressly relate to an
earlier date.


 


(b)                                 No Default or Event
of Default.  No Default or Event of
Default shall have occurred and be continuing on such date or after giving
effect to the Loans to be made on such date and the application of the proceeds
thereof.


 


(c)                                  Additional
Conditions to Bid Loans.  If such
Loan is made pursuant to subsection 2.2, all conditions set forth in subsection 2.2(f)
shall have been satisfied.


 


Each acceptance by either Borrower of a Loan
shall constitute a representation and warranty by the relevant Borrower as of
the date of such Loan that the applicable conditions in clauses (a), (b) and
(c) of this subsection 4.2 have been satisfied.


 


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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):


 


5.1                                 Financial Statements.  Such Borrower shall furnish to each Bank:


 


(a)                                  as soon as available,
but in any event within 120 days after the end of each fiscal year of such
Borrower, a copy of the consolidated balance sheet of such Borrower and its
consolidated Subsidiaries as at the end of such year and the related
consolidated statements of income and of cash flow for such year, reported on
by Deloitte & Touche LLP or other independent certified public accountants
of nationally recognized standing; and


 


(b)                                 as soon as available,
but in any event not later than 60 days after the end of each of the first
three quarterly periods of each fiscal year of such Borrower, the condensed
unaudited consolidated balance sheet of such Borrower and its consolidated
Subsidiaries as at the end of each such quarter and the related unaudited
consolidated statement of income of such Borrower and its consolidated
Subsidiaries for such quarterly period and the portion of the fiscal year
through such date, certified by a Responsible Officer of such Borrower (subject
to normal year-end audit adjustments);


 


all such financial statements to present fairly the consolidated
financial condition and results of operations of such Borrower and its
consolidated Subsidiaries and to be prepared in accordance with generally
accepted accounting principles in the United States of America applied
consistently throughout the periods reflected therein (except as approved by such
accountants or officer, as the case may be, and disclosed therein).  Such Borrower 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.


 


5.2                                 Certificates; Other Information.  Such Borrower shall furnish to the
Administrative Agent, and the Administrative Agent shall make available to each
Bank:


 


(a)                                  within 10 days of the
delivery of the financial statements referred to in subsections 5.1(a) and (b)
above (or, if such financial statements are filed with the Securities and
Exchange Commission and posted on its EDGAR system, within 10 days of the
posting of such financial statements on the EDGAR system), a certificate of a
Responsible Officer of such Borrower stating that (i) he has no knowledge of
the occurrence and continuance of any Default or Event of Default except as
specified in such certificate, in which case such certificate shall contain a
description thereof and a statement of the steps, if any, which such Borrower
is taking, or proposes to take, to cure the same and (ii) the financial
statements delivered pursuant to subsection 5.1 would not be materially
different if prepared in accordance with GAAP except as specified in such
certificate; and


 


(b)                                 promptly, such
additional financial and other information as any Bank may from time to time
reasonably request.


 


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5.3                                 Company Indenture Documents.  The Company shall, contemporaneously with the
delivery thereof to the Trustee, furnish to each Bank a copy of any
information, document or report required to be filed with the Trustee pursuant
to Section 7.03 of the Indenture dated October 1, 1998 between the
Company and JPMorgan Chase Bank, N.A. (as successor to JPMorgan Chase Bank,
formerly known as The Chase Manhattan Bank (National Association)), as trustee.


 


5.4                                 Capital Corporation
Indenture Documents.  The Capital
Corporation shall, contemporaneously with the delivery thereof to the trustee,
furnish to each Bank a copy of any information, document or report required to
be filed with the Trustee pursuant to Section 7.03 of the Indenture dated March 15,
1997, between the Capital Corporation and The Bank of New York, as trustee.


 


5.5                                 Notice of Default.  Such Borrower shall promptly give notice to
the Administrative Agent of the occurrence of any Default or Event of Default,
which notice shall be given in writing as soon as possible, and in any event
within 10 days after a Responsible Officer of such Borrower obtains knowledge
of such occurrence, with a description of the steps being taken to remedy the
same (provided that such Borrower shall not be obligated to give notice of any
Default or Event of Default which is remedied prior to or within 10 days after
a Responsible Officer of such Borrower first acquires such knowledge).  Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Bank thereof.


 


5.6                                 Ownership of Capital
Corporation Stock.  The Company
shall continue to own, directly or through one or more wholly-owned
Subsidiaries, free and clear of any lien or other encumbrance, 51% of the
voting stock of the Capital Corporation; provided, however, that the Capital
Corporation may merge or consolidate with, or sell or convey substantially all
of its assets to, the Company as provided in subsection 7.4.


 


5.7                                 Employee Benefit Plans.  The Company shall maintain, and cause each of
its Subsidiaries to maintain, each Plan as to which it may have liability, in
compliance with all applicable requirements of law and regulations.


 


SECTION 6.                                NEGATIVE
COVENANTS OF THE COMPANY


 


The Company hereby agrees that, so long as
there is any obligation by any Bank to make Loans hereunder, any Loan remains
outstanding and unpaid or any other amount is owing to any Agent or any Bank
hereunder, it shall not, nor in the case of subsections 6.2 and 6.3 shall it
permit any Restricted Subsidiary to (unless the Majority Banks shall otherwise
consent in writing):


 


6.1                                 Company May Consolidate,
etc., Only on Certain Terms . 
Consolidate with or merge with or into any other corporation or convey
or transfer its properties and assets substantially as an entirety to any
Person, unless:


 


(a)                                  either the Company
shall be the continuing corporation, or the corporation (if other than the
Company) formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer the properties and assets
of the Company substantially as an entirety shall expressly assume, by an
assumption agreement, executed and


 


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delivered to the Administrative Agent, in form satisfactory to the
Majority Banks, the due and punctual payment of the principal of and interest
on the Loans to the Company and the performance of every covenant of this
Agreement on the part of the Company to be performed or observed;


 


(b)                                 immediately after
giving effect to such transaction, no Default or Event of Default, shall have
happened and be continuing;


 


(c)                                  if as a result
thereof any property or assets of the Company or a Restricted Subsidiary would
become subject to any Mortgage not permitted by (i) through (xii) of subsection 6.2(a)
or subsection 6.2(b), compliance shall be effected with the first clause
of subsection 6.2(a); and


 


(d)                                 the Company and the
successor Person have delivered to the Administrative Agent an officers’
certificate signed by two Responsible Officers of the Company stating that such
consolidation, merger, conveyance or transfer and such assumption agreement
comply with this subsection 6.1 and that all conditions precedent herein
provided for relating to such transaction have been complied with.


 


6.2                                 Limitation on Liens.  (a) 
Issue, incur, assume or guarantee any debt (hereinafter in this subsection referred
to as “Debt”) secured by any mortgage, security interest, pledge, lien or other
encumbrance (hereinafter called “Mortgage” or “Mortgages”) upon any Important
Property, or upon any shares of stock or indebtedness issued or incurred by any
Restricted Subsidiary (whether such Important Property, shares of stock or
indebtedness is now owned or hereafter acquired) without in any such case
effectively providing, concurrently with the issuance, incurrence, assumption
or guaranty of any such Debt, that the Loans and all other amounts hereunder
(together with, if the Company shall so determine, any other indebtedness of or
guaranty by the Company or such Restricted Subsidiary ranking equally with the
Loans then existing or thereafter created) shall be secured equally and ratably
with or prior to such Debt; provided, however, that the foregoing restrictions
shall not apply to:


 


(i)                                     Mortgages on any
property acquired, constructed or improved by the Company or any Restricted
Subsidiary after the date of this Agreement which are created or assumed
contemporaneously with, or within 120 days after, such acquisition,
construction or improvement to secure or provide for the payment of all or any
part of the purchase price of such property or the cost of such construction or
improvement incurred after the date of this Agreement, or (in addition to
Mortgages contemplated by clauses (ii), (iii) and (iv) below) Mortgages on any
property existing at the time of acquisition thereof; provided that such
Mortgages shall not apply to any Important Property theretofore owned by the
Company or any Restricted Subsidiary other than, in the case of any such
construction or improvement, any theretofore unimproved real property on which
the property so constructed, or the improvement, is located;


 


(ii)                                  Mortgages on any
property, shares of stock, or indebtedness existing at the time of acquisition
thereof from a corporation which is consolidated with or merged into, or
substantially all of the assets of which are acquired by, the Company or a
Restricted Subsidiary;


 


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(iii)                               Mortgages on property of
a corporation existing at the time such corporation becomes a Restricted
Subsidiary;


 


(iv)                              Mortgages to secure Debt
of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;


 


(v)                                 Mortgages in favor of
the United States of America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of America or any
State thereof, to secure partial, progress, advance or other payments pursuant
to any contract or statute or to secure any indebtedness incurred for the
purpose of financing all or any part of the purchase price or the cost of
constructing or improving the property subject to such Mortgages and Mortgages
given to secure indebtedness incurred in connection with the financing of
construction of pollution control facilities, the interest on which
indebtedness is exempt from income taxes under the Code;


 


(vi)                              any deposit or pledge of
assets (1) with any surety company or clerk of any court, or in escrow, as
collateral in connection with, or in lieu of, any bond on appeal from any
judgment or decree against the Company or a Restricted Subsidiary, or in
connection with other proceedings or actions at law or in equity by or against
the Company or a Restricted Subsidiary, or (2) as security for the performance
of any contract or undertaking not directly related to the borrowing of money
or the securing of indebtedness, if made in the ordinary course of business, or
(3) with any governmental agency, which deposit or pledge is required or
permitted to qualify the Company or a Restricted Subsidiary to conduct
business, to maintain self-insurance, or to obtain the benefits of any law
pertaining to worker’s compensation, unemployment insurance, old age pensions,
social security, or similar matters, or (4) made in the ordinary course of
business to obtain the release of mechanics’, workmen’s, repairmen’s,
warehousemen’s or similar liens, or the release of property in the possession
of a common carrier;


 


(vii)                           Mortgages existing on
property acquired by the Company or a Restricted Subsidiary through the
exercise of rights arising out of defaults on receivables acquired in the
ordinary course of business;


 


(viii)                        judgment liens, so long as the
finality of such judgment is being contested in good faith and execution
thereon is stayed;


 


(ix)                                Mortgages for the sole
purpose of extending, renewing or replacing in whole or in part Debt secured by
any Mortgage referred to in the foregoing clauses (i) to (viii), inclusive, or
in this clause (ix), provided, however, that the principal amount
of Debt secured thereby shall not exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to all or a part of the
property which secured the Mortgage so extended, renewed or replaced (plus
improvements on such property);


 


(x)                                   liens for taxes or
assessments or governmental charges or levies not yet due or delinquent, or
which can thereafter be paid without penalty, or which are being contested in
good faith by appropriate proceedings; landlord’s liens on property held under
lease; and any


 


115





















 


other liens of a nature similar to those hereinabove described in this
clause (x) which do not, in the opinion of the Company, materially impair the
use of such property in the operation of the business of the Company or a
Restricted Subsidiary or the value of such property for the purposes of such
business;


 


(xi)                                Mortgages on Margin
Stock owned by the Company and its Restricted Subsidiaries to the extent such
Margin Stock so Mortgaged exceeds 25% of the fair market value of the sum of
the Important Property of the Company and the Restricted Subsidiaries plus the
shares of stock (including Margin Stock) and indebtedness issued or incurred by
the Restricted Subsidiaries; and


 


(xii)                             Mortgages on any Important
Property of, or any shares of stock or indebtedness issued or incurred by, any
Restricted Subsidiary organized under the laws of Canada.


 


(b)                                 (i)  The provisions of subsection 6.2(a)
shall not apply to the issuance, incurrence, assumption or guarantee by the
Company or any Restricted Subsidiary of Debt secured by a Mortgage which would
otherwise be subject to the foregoing restrictions up to an aggregate amount
which, together with the sum of (A) all other Debt issued or incurred by the
Company and its Restricted Subsidiaries secured by Mortgages (other than
Mortgages permitted by subsection 6.2(a)) which would otherwise be subject
to the foregoing restrictions and (B) the Attributable Debt in respect of Sale
and Lease-back Transactions in existence at such time (other than Sale and
Lease-back Transactions which, if the Attributable Debt in respect of such Sale
and Lease-back had been a Mortgage, would have been permitted by clause (i) of
subsection 6.2(a) and other than Sale and Lease-back Transactions the
proceeds of which have been applied in accordance with subsection 6.3(b))
does not at the time exceed 5% of Consolidated Net Worth, as shown on the
audited consolidated balance sheet contained in the latest annual report to
stockholders of the Company.


 


(ii)                                  For purposes of subsection 6.2(b)(i),
the term “Consolidated Net Worth” shall mean the aggregate of capital
and surplus of the Company and its consolidated Subsidiaries, less minority
interests in Subsidiaries, determined in accordance with GAAP; and the term “Attributable
Debt” shall mean, as of any particular time, the present value, discounted
at a rate per annum equal to the interest rate set forth in the Company’s
8-1/2% Debentures Due 2022, compounded semi-annually, of the obligation of a
lessee for rental payments during the remaining term of any lease (including
any period for which such lease has been extended or may, at the option of the
lessor, be extended); the net amount of rent required to be paid for any such
period shall be the total amount of the rent payable by the lessee with respect
to such period, but may exclude amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates and similar
charges; and, in the case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so terminated.


 


(c)                                  If, upon any
consolidation or merger of any Restricted Subsidiary with or into any other
corporation, or upon any consolidation or merger of any other corporation with
or into the Company or any Restricted Subsidiary or upon any sale or conveyance
of the property of any


 


116





















 


Restricted Subsidiary as an entirety or substantially as an entirety to
any other Person, or upon any acquisition by the Company or any Restricted
Subsidiary by purchase or otherwise of all or any part of the property of any
other Person, any Important Property theretofore owned by the Company or such
Restricted Subsidiary would thereupon become subject to any Mortgage not
permitted by the terms of subsection (a) or (b) of this subsection 6.2,
the Company, prior to such consolidation, merger, sale or conveyance, or
acquisition, will, or will cause such Restricted Subsidiary to, secure payment
of the principal of and interest on the Loans (equally and ratably with or
prior to any other indebtedness of the Company or such Subsidiary then entitled
thereto) by a direct lien on all such property prior to all liens other than
any liens theretofore existing thereon by an assumption agreement or otherwise.


 


(d)                                 If at any time the
Company or any Restricted Subsidiary shall issue, incur, assume or guarantee
any Debt secured by any Mortgage not permitted by this subsection 6.2, to
which the covenant in subsection 6.2(a) is applicable, the Company will
promptly deliver to the Administrative Agent (with counterparts for each Bank):


 


(i)                                     an officers’
certificate signed by two Responsible Officers of the Company stating that the
covenant of the Company contained in paragraph (a) or (c) of this subsection 6.2
has been complied with; and


 


(ii)                                  an opinion of counsel
satisfactory to the Administrative Agent to the effect that such covenant has
been complied with, and that any instruments executed by the Company in the
performance of such covenant comply with the requirements of such covenant.


 


6.3                                 Limitations on Sale and Lease-back
Transactions.  Enter into any
arrangement with any Person providing for the leasing to the Company or any
Restricted Subsidiary of any Important Property owned or hereafter acquired by
the Company or such Restricted Subsidiary (except for temporary leases for a
term, including any renewal thereof, of not more than three years and except
for leases between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries), which Important Property has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person (herein
referred to as a “Sale and Lease-back Transaction”) unless the net proceeds of
such sale are at least equal to the fair value (as determined by the Board of
Directors of the Company or such Restricted Subsidiary, as applicable) of such
property and either (a) the Company or such Restricted Subsidiary would be
entitled, pursuant to the provisions of (1) subsection 6.2(a)(i) or (2)
subsection 6.2(b), to incur Debt secured by a Mortgage on the Important
Property to be leased without equally and ratably securing the Loans, or (b)
the Company shall, and in any such case the Company covenants that it will,
within 120 days of the effective date of any such arrangement, apply an amount
equal to the fair value (as so determined) of such property to the reduction of
the Commitments (to be accompanied by prepayment of the Loans in accordance
with subsection 2.6 to the extent that the principal amount thereof
outstanding prior to such prepayment would exceed the Commitments as so
reduced) or to the payment or other retirement of funded debt for money
borrowed, incurred or assumed by the Company which ranks senior to or pari
passu with the Loans or of funded debt for money borrowed, incurred or assumed
by any Restricted Subsidiary (other than, in either case, funded debt owned by
the Company or any Restricted Subsidiary). 
For this purpose, funded debt means any Debt which by its terms matures
at or is extendable or renewable at the sole option of the obligor without


 


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requiring the consent of the obligee to a date more than twelve months
after the date of the creation of such Debt.


 


6.4                                 Equipment Operations Debt.  Permit Equipment Operations Debt as at the end
of any fiscal quarter of the Company and its consolidated Subsidiaries
(including the last quarter of any fiscal year of the Company and its
consolidated Subsidiaries) to exceed 65% of the sum, at the end of each such
fiscal quarter, of (i) Equipment Operations Debt plus (ii) Total
Stockholders’ Equity.


 


SECTION 7.                                NEGATIVE COVENANTS
OF THE CAPITAL CORPORATION


 


The Capital Corporation hereby agrees that,
so long as there is any obligation by any Bank to make Loans to the Capital
Corporation hereunder, any Loan of the Capital Corporation remains outstanding
and unpaid or any other amount is owing by the Capital Corporation to any Bank
or any Agent hereunder, the Capital Corporation shall not, nor in the case of
the agreements set forth in subsection 7.3 shall it permit any of its
Subsidiaries to, directly or indirectly (unless the Majority Banks shall
otherwise consent in writing):


 


7.1                                 Fixed Charges Ratio.  Permit the ratio of Net Earnings Available
for Fixed Charges to Fixed Charges for any fiscal quarter of the Capital
Corporation and its consolidated Subsidiaries (including the last quarter of
any fiscal year of the Capital Corporation and its consolidated Subsidiaries)
to be less than 1.05 to 1.


 


7.2                                 Consolidated Senior Debt to
Consolidated Capital Base. 
Permit the ratio of Consolidated Senior Debt to Consolidated Capital
Base as at the end of any fiscal quarter of the Capital Corporation and its
consolidated Subsidiaries (including the end of any fiscal year of the Capital
Corporation and its consolidated Subsidiaries) to be more than 8 to 1.


 


7.3                                 Limitation on Liens.  Issue, incur, assume or guarantee any Debt
secured by any Mortgage upon any of its property or assets, or any of the
property or assets of any of its Subsidiaries (whether any such property or
assets is now owned or hereafter acquired) without in any such case effectively
providing, concurrently with the issuance, incurrence, assumption or guaranty
of any such Debt, that the Loans and all other amounts hereunder (together
with, if the Capital Corporation shall so determine, any other indebtedness of
or guaranty by such Borrower or such Subsidiary ranking equally with the Loans
then existing or thereafter created) shall be secured equally and ratably with
or prior to such Debt; provided, however, that the foregoing restrictions shall
not apply to:


 


(a)                                  Mortgages on fixed
assets or other physical properties hereafter acquired to secure all or part of
the purchase price thereof or the acquiring hereafter of such assets or
properties subject to any existing lien or charge securing indebtedness
(whether or not assumed);


 


(b)                                 easements, liens,
franchises or other minor encumbrances on or over any real property which do
not materially detract from the value of such property or its use in the
business of the Capital Corporation or a Subsidiary of the Capital Corporation;


 


(c)                                  any deposit or pledge
of assets (i) with any surety company or clerk of any court, or in escrow, as
collateral in connection with or in lieu of, any bond on appeal from any


 


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judgment or decree against the Capital Corporation or a Subsidiary of
the Capital Corporation, or in connection with other proceedings or actions at
law or in equity by or against the Capital Corporation or a Subsidiary of the
Capital Corporation or (ii) as security for the performance of any contract or
undertaking not directly or indirectly related to the borrowing of money or the
securing of indebtedness, if made in the ordinary course of business, or (iii)
with any governmental agency, which deposit or pledge is required or permitted
to qualify the Capital Corporation or a Subsidiary of the Capital Corporation
to conduct business, to maintain self-insurance, or to obtain the benefits of
any law pertaining to workmen’s compensation, unemployment insurance, old age
pensions, social security, or similar matters, or (iv) made in the ordinary
course of business to obtain the release of mechanics’, workmen’s, repairmen’s,
warehousemen’s or similar liens, or the release of property in the possession
of a common carrier;


 


(d)                                 Mortgages by a
Subsidiary as security for indebtedness owed to the Capital Corporation;


 


(e)                                  liens for taxes and
governmental charges not yet due or contested by appropriate proceedings in
good faith;


 


(f)                                    Mortgages existing
on property acquired by the Capital Corporation or a Subsidiary of the Capital
Corporation through the exercise of rights arising out of defaults on
receivables acquired in the ordinary course of business;


 


(g)                                 judgment liens, so
long as the finality of such judgment is being contested in good faith and
execution thereon is stayed;


 


(h)                                 any Mortgage (other
than directly or indirectly to secure borrowed money) if, after giving effect
thereto, the aggregate principal sums secured by pledges or liens otherwise
within the restrictions in clauses (a) through (h) of this subsection 7.3
do not exceed $500,000;


 


(i)                                     any Mortgage
securing Securitization Indebtedness;


 


(j)                                     Mortgages on
Margin Stock owned by the Capital Corporation and its Subsidiaries to the
extent such Margin Stock exceeds 25% of the fair market value of property and
assets of the Capital Corporation and its Subsidiaries (including Margin
Stock); and


 


(k)                                  cash collateral
provided to any counterparty of the Capital Corporation or to any Subsidiary of
the Capital Corporation in connection with any Hedging Transaction.


 


7.4                                 Consolidation; Merger.  Merge or consolidate with, or sell or convey
(other than a conveyance by way of lease) all or substantially all of its
assets to, any other corporation, unless (a) the Capital Corporation shall be
the surviving corporation in the case of a merger or the surviving, resulting
or transferee corporation (the “successor corporation”) shall be a corporation
organized under the laws of the United States or any State thereof or the
District of Columbia and shall expressly assume the due and punctual
performance of all of the agreements, covenants and obligations of the Capital
Corporation under this Agreement by supplemental agreement satisfactory to the
Administrative Agent and executed and delivered to the Administrative Agent by
the successor corporation and (b) the Capital Corporation or such


 


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successor corporation, as the case may be, shall not, immediately after
such merger, consolidation, sale or conveyance, be in default in the
performance of any such agreements, covenants or obligations; provided,
however, that the Capital Corporation may merge or consolidate with, or sell or
convey substantially all of its assets to, the Company, if (i) the Company is
the successor corporation (as defined above) and (ii) subclause (b) above is
complied with.  Upon any such merger,
consolidation, sale or conveyance, the successor corporation shall succeed to
and be substituted for, and may exercise every right and power of and shall be
subject to all the obligations of, the Capital Corporation under this
Agreement, with the same effect as if the successor corporation had been named
as the Capital Corporation herein and therein.


 


SECTION 8.                                EVENTS
OF DEFAULT


 


Upon the occurrence and during the
continuance of any of the following events:


 


(a)                                  Either Borrower shall
fail to pay any principal of any Loan when due in accordance with the terms
hereof or to pay any interest on any Loan, in each case within two Business
Days after any such amount becomes due in accordance with the terms hereof or
shall fail to pay any other amount payable hereunder within five Business Days
after any such other amount becomes due in accordance with the terms thereof or
hereof; or


 


(b)                                 Any representation or
warranty made or pursuant to subsection 4.2 deemed made by either Borrower
herein or which is contained in any material certificate, material document or
material financial statement or other material statement furnished at any time
under or in connection with this Agreement shall prove to have been incorrect
in any material respect on or as of the date made or deemed made; or


 


(c)                                  The Company shall
default in the observance or performance of any agreement contained in subsection 5.6,
6.1 or 6.4, or the Capital Corporation shall default in the observance or
performance of any agreement contained in subsections 7.1, 7.2 or 7.4; or


 


(d)                                 Either Borrower shall
default in the observance or performance of any agreement contained in this
Agreement (other than those agreements referred to above in this Section 8),
and such default shall continue unremedied for a period of 30 days after
written notice thereof shall have been given to such Borrower by the
Administrative Agent or any of the Banks through the Administrative Agent; or


 


(e)                                  (i)  Either Borrower or any of its Significant
Subsidiaries shall default in any payment of principal of or interest on any
indebtedness for borrowed money (other than the Loans and any Securitization
Indebtedness) in a principal amount in excess of $30,000,000 in the aggregate,
or any interest or premium thereon, when due (whether at scheduled maturity or
by required prepayment, acceleration, demand or otherwise) and such failure
shall continue beyond the period of grace, if any, provided in the instrument
or agreement under which such indebtedness was created; or (ii) any other
default (other than any default arising solely out of either Borrower’s, or any
of its Significant Subsidiaries’, violation of any arrangement with any Bank,
or any affiliate of any Bank, in any way restricting such Borrower’s, or such
Significant Subsidiary’s, right or ability to sell, pledge or otherwise dispose
of Margin Stock other than


 


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Restricted Margin Stock), or any other event that with notice or the
lapse of time, or both, would constitute such a default, under any agreement or
instrument relating to any such indebtedness for borrowed money (other than the
Loans), shall occur and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such default
or event is to accelerate the maturity of such indebtedness; or (iii) any such
indebtedness for borrowed money shall, by reason of default, be declared to be
due and payable, or required to be prepaid, prior to the stated maturity
thereof (unless such indebtedness is declared due and payable, or required to
be prepaid, solely by reason of either Borrower’s, or any of its Significant
Subsidiaries’, violation of any arrangement with any Bank, or any affiliate of
any Bank, in any way restricting such Borrower’s, or such Significant
Subsidiary’s, right or ability to sell, pledge or otherwise dispose of Margin
Stock other than Restricted Margin Stock); or


 


(f)                                    (i)  Either Borrower or any of its Significant
Subsidiaries shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian or other similar official for it or for all or any substantial part
of its assets, or such Borrower or any of its Significant Subsidiaries shall
make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against either Borrower or any of its Significant Subsidiaries any
case, proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such adjudication
or appointment or (B) remains undismissed, undischarged or unbonded for a
period of 90 days; or


 


(g)                                 Any action is
undertaken to terminate any Plan as to which either Borrower, or any Subsidiary
of either Borrower, may have liability, or any such Plan is terminated or such
Borrower or Subsidiary withdraws from such Plan, or any Reportable Event as to
any such Plan shall occur, and there shall exist a deficiency in the assets
available to satisfy the benefits guaranteeable under ERISA with respect to
such Plan, in the aggregate for all such Plans with respect to which any of the
foregoing shall have occurred in the immediately preceding 12 consecutive
months, of more than 25% of the Consolidated Net Worth of such Borrower; or


 


(h)                                 Any Person shall own
beneficially, directly or indirectly, 30% or more of the common stock of the
Company; or any Person shall have the power, direct or indirect, to vote
securities having 30% or more of the ordinary voting power for the election of
directors of the Company or shall own beneficially, directly or indirectly,
securities having such power, provided that there shall not be included
among the securities as to which any such Person has such power to vote or
which such Person so owns securities owned by such Person as nominee for the
direct or indirect beneficial owner thereof or securities as to which such
power to vote arises by virtue of proxies solicited by the management of the
Company;


 


then, and in any such event, (A) if such event is an Event of Default
specified in paragraph (f) above, automatically the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement and the Loans shall
immediately become due and payable, and (B)(1) if such event is any Event of
Default


 


121





















 


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.


 


SECTION 9.                                THE AGENTS


 


9.1                                 Appointment.  (a) 
Each Bank hereby irrevocably designates and appoints JPMorgan Chase
Bank, N.A. as the Administrative Agent of such Bank under this Agreement, and
each Bank hereby irrevocably authorizes JPMorgan Chase Bank, N.A. as the
Administrative Agent for such Bank, to take such action on its behalf under the
provisions of this Agreement and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto.


 


(b)                                 Notwithstanding
anything to the contrary contained in this Agreement, the parties hereto hereby
agree that neither the Syndication Agents, the Documentation Agents nor the
Co-Documentation Agent shall have any rights, duties or responsibilities in
such respective capacity nor shall any such Person have the authority to take
any action hereunder in its capacity as such.


 


(c)                                  Notwithstanding any
provision to the contrary elsewhere in this Agreement, no Agent shall have any
duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against any Agent.


 


9.2                                 Delegation of Duties.  Each Agent may execute any of its duties
under this Agreement by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.  Each Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.


 


9.3                                 Exculpatory Provisions.  Neither any Agent nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates shall
be (i) liable to any Bank for any action lawfully taken or omitted to be taken
by it or such Person under or in connection with this Agreement (except for its
or such Person’s own gross negligence or wilful misconduct), or (ii)
responsible in any manner to any of the Banks for any recitals, statements,
representations or warranties made by the Borrowers or any officer thereof
contained in this Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by any Agent under or in
connection with, this Agreement or for the value,


 


122





















 


validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or for any failure of the Borrowers to perform their obligations
hereunder.  No Agent shall be under any
obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Borrowers.


 


9.4                                 Reliance by Agents.  Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Loan, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram,
facsimile, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrowers),
independent accountants and other experts selected by such Agent.  Each Agent may deem and treat the payee of
any Loan as the owner thereof for all purposes except as provided in subsections
10.5(c) and 10.5(d).  Each Agent shall be
fully justified in failing or refusing to take any discretionary action under
this Agreement unless it shall first receive such advice or concurrence of the
Majority Banks as it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such
action.  Each Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
in accordance with a request of the Majority Banks, the Required Banks or all
of the Banks (if the consent of the Majority Banks, the Required Banks or all
of the Banks, respectively, is required), and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Banks.


 


9.5                                 Notice of Default.  The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default unless the Administrative Agent has received notice from a Bank or
either Borrower referring to this Agreement, describing such Default or Event
of Default and stating that such notice is a “notice of default”.  In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Banks.  The Administrative Agent
shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Majority Banks, the Required Banks, or all
Banks, as applicable; provided that, unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Banks.


 


9.6                                 Non-Reliance on Agents and
Other Banks.  Each Bank expressly
acknowledges that neither any Agent nor any of its respective officers,
directors, employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by such Agent hereafter
taken, including any review of the affairs of the Borrowers, shall be deemed to
constitute any representation or warranty by such Agent to any Bank.  Each Bank represents to each Agent that it
has, independently and without reliance upon such Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of each Borrower and made
its own decision to make its Loans hereunder and enter into this
Agreement.  Each Bank also represents
that it will, independently


 


123





















 


and without reliance upon each Agent or any other Bank, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement, and to make such investigation as it
deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers.  Except for notices, reports and other
documents expressly required to be furnished to the Banks by any Agent
hereunder, such Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of either Borrower
which may come into the possession of such Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.


 


9.7                                 Indemnification.  The Banks agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by the Borrowers and without
limiting the obligation of the Borrowers to do so), ratably (as reasonably
determined by the Administrative Agent), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including without limitation at any time following the payment of the
Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of this Agreement, or any documents contemplated by
or referred to herein or the transactions contemplated hereby or any action
taken or omitted by such Agent under or in connection with any of the foregoing;
provided that no Bank shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent’s gross
negligence or wilful misconduct.  The
agreements in this subsection 9.7 shall survive the payment of the Loans
and all other amounts payable hereunder.


 


9.8                                 Agents in their Individual
Capacities.  Each Agent and its
respective affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrowers as though such Agent were not
an Agent hereunder.  With respect to its
Loans made by it, each Agent shall have the same rights and powers under this
Agreement as any Bank and may exercise the same as though it were not an Agent,
and the terms “Bank” and “Banks” shall include the Administrative Agent in its
individual capacity.


 


9.9                                 Successor Agents.  Each Agent may resign as Agent upon 30 days’
notice thereof to the Borrowers and the Banks. 
If any Agent shall resign as Agent under this Agreement, then the
Majority Banks shall appoint from among the Banks a successor agent for the
Banks which successor agent shall be approved by the Borrowers, whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent and the term “Administrative Agent” shall mean such
successor agent effective upon its appointment, and the former Agent’s rights,
powers and duties as Agent shall be terminated, without any other or further act
or deed on the part of such former Agent or any of the parties to this
Agreement.  After any retiring Agent’s
resignation hereunder as Agent, the provisions of this Section 9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.


 


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SECTION 10.                          MISCELLANEOUS


 


10.1                           Amendments and Waivers.  With the written consent of the Majority
Banks, the Administrative Agent and the Borrowers may, from time to time, enter
into written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Agreement or changing in any manner the rights of
the Banks or of the Borrowers hereunder, and with the consent of the Majority
Banks the Administrative Agent on behalf of the Banks may execute and deliver
to the Borrowers a written instrument waiving, on such terms and conditions as
the Administrative Agent may specify in such instrument, any of the
requirements of this Agreement or any Default or Event of Default and its
consequences; provided, however, that no such waiver, amendment, supplement or
modification shall (a) extend the maturity of any Loan, or reduce the rate or
extend the time of payment of interest thereon, or reduce the principal amount
thereof, or reduce the rate of any fee payable hereunder or extend the time of
payment thereof, in each case, without the written consent of (i) with respect
to any such change to any Committed Rate Loan, each Bank and (ii) with respect
to any such change to any Bid Loan, the Bank which made such Bid Loan, or (b)
change the amount of any Bank’s Commitment or the terms of its obligation to
make Loans hereunder (other than in accordance with subsection 2.20), or
amend, modify or waive the pro rata treatment and payment provisions of subsection 2.12(b),
or amend, modify or waive any provision of this subsection 10.1 or reduce
the percentage specified in the definition of Majority Banks or Required Banks,
or consent to the assignment or transfer by either Borrower of any of its
rights and obligations under this Agreement, in each case without the written
consent of each Bank, or (c) amend, modify or waive any provision of Section 9
without the written consent of the then Administrative Agent and, if
applicable, any other Agent affected by such amendment, modification or waiver,
or (d) extend the Termination Date with respect to any Bank without the written
consent of such Bank; and provided, further, however, that no such waiver,
amendment, supplement or modification shall waive, amend, supplement or
otherwise modify subsection 2.16 or Section 8(B)(2) without the
written consent of the Required Banks. 
Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Banks and shall be binding upon the Borrowers, the
Banks and the Agents.  In the case of any
waiver, the Borrowers, the Banks and the Agents shall be restored to their
former position and rights hereunder, and any Default or Event of Default waived
shall be deemed to be cured and not continuing; but no such waiver shall extend
to any subsequent or other Default or Event of Default, or impair any right
consequent thereon.  Anything contained
in the foregoing to the contrary notwithstanding, the relevant Borrower and the
relevant Bank with respect to a Negotiated Rate Loan may, from time to time,
enter into amendments, supplements or modifications for the purpose of adding
any provisions to such Negotiated Rate Loans or changing in any manner the rights
of such Bank and such Borrower thereunder and such Bank may waive any of the
requirements of such Negotiated Rate Loan; provided, however, that such
Borrower and such Bank shall notify the Administrative Agent in writing of any
extension of the maturity of such Negotiated Rate Loan or reduction of the
principal amount thereof; provided, further, that such Borrower and such Bank
shall not extend the maturity of such Negotiated Rate Loan beyond the last day
of the Commitment Period.


 


10.2                           Notices.  All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing, by facsimile
transmission, by telephone confirmed in writing or by telegraph and, unless
otherwise expressly provided herein, shall be


 


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deemed to have been duly given or made when delivered by hand, or when
deposited in the mail, postage prepaid, or, in the case of facsimile
transmission, when received, or, in the case of telegraphic notice, when delivered
to the telegraph company or department, addressed as follows in the case of the
Borrowers, the Administrative Agent and as set forth on Schedule III in
the case of the other parties hereto, or to such address or other address as
may be hereafter notified by the respective parties hereto:


 


	
  The Borrowers:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  The Company:

  	
   

  	
  Deere & Company

  
	
   

  	
   

  	
  Attention: Treasurer

  
	
   

  	
   

  	
  One John Deere Place

  
	
   

  	
   

  	
  Moline, Illinois 61265

  
	
   

  	
   

  	
  Telephone: 309-765-4162

  
	
   

  	
   

  	
  Facsimile: 309-765-5021

  
	
   

  	
   

  	
   

  
	
  The Capital Corporation:

  	
   

  	
  John Deere Capital Corporation

  
	
   

  	
   

  	
  Attention: Manager

  
	
   

  	
   

  	
  First National Bank Building

  
	
   

  	
   

  	
  1 East First Street

  
	
   

  	
   

  	
  Reno, Nevada 89501

  
	
   

  	
   

  	
  Telephone: 775-786-5527

  
	
   

  	
   

  	
  Facsimile: 775-786-4145

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Deere & Company

  
	
   

  	
   

  	
  Attention: Treasurer

  
	
   

  	
   

  	
  One John Deere Place

  
	
   

  	
   

  	
  Moline, Illinois 61265

  
	
   

  	
   

  	
  Facsimile: 309-765-5021

  
	
   

  	
   

  	
   

  
	
  The Administrative Agent:

  	
   

  	
  JPMorgan Chase Bank, N.A.

  
	
   

  	
   

  	
  Attention: Randolph Cates

  
	
   

  	
   

  	
  270 Park Avenue

  
	
   

  	
   

  	
  New York, New York 10017

  
	
   

  	
   

  	
  Telephone: 212-270-8997

  
	
   

  	
   

  	
  Facsimile: 212-270-6637

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  JPMorgan Chase Bank, N.A.

  
	
   

  	
   

  	
  Attention: Danette Espinoza

  
	
   

  	
   

  	
  1111 Fannin Street, 10th Floor

  
	
   

  	
   

  	
  Houston, Texas 77002

  
	
   

  	
   

  	
  Telephone: 713-750-2102

  
	
   

  	
   

  	
  Facsimile: 713-750-2782

  



 


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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10.3                           No Waiver; Cumulative Remedies.  No failure to exercise and no delay in
exercising, on the part of either Borrower, the Administrative Agent or any
Bank, any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.


 


10.4                           Payment of Expenses and Taxes.  (a) 
The Company agrees (i) to pay or reimburse the Administrative Agent for
all its out-of-pocket costs and expenses incurred in connection with the
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and any other documents prepared in connection herewith, and the
consummation of the transactions contemplated hereby and thereby in such manner
and in such amounts as shall be agreed to in writing by the Company and the
Administrative Agent, (ii) to pay or reimburse the Administrative Agent for the
reasonable fees and disbursements of counsel to the Administrative Agent
incurred in connection with the preparation and execution of, and any
amendment, supplement, modification to, this Agreement and other documents
prepared in connection herewith, and the consummation of the transaction
contemplated hereby and thereby, and (iii) to pay or reimburse each Bank and
each Agent for all its out-of-pocket costs and expenses incurred in connection
with the enforcement or preservation of any rights under this Agreement and any
such other documents, including, without limitation, fees and disbursements of
counsel to each Agent and one counsel representing the Banks.


 


(b)                                 The Borrowers agree
jointly and severally to indemnify and hold harmless each Agent and each Bank
against any and all losses, claims, damages and liabilities (other than in
connection with actions, suits and proceedings by any of the Banks against any
of the other Banks), joint or several, to which they or any of them may become
subject insofar as such losses, claims, damages and liabilities arise out of,
relate to or are based on this Agreement (including the responsibilities,
duties and obligations of the Banks hereunder and their agreement to make Loans
hereunder) in connection with any acquisition or proposed acquisition of any
securities or assets by a Borrower or any of its Subsidiaries, and shall reimburse
each such indemnified party for any legal or other expenses reasonably incurred
by it in connection with investigating or defending any such loss, claim,
damage or liability, subject to the following paragraph.  This indemnity agreement shall be in addition
to any liability which either Borrower may otherwise have.


 


(c)                                  Promptly after
receipt by an indemnified party under subsection 10.4(b) of written notice
of any loss, claim, damage or liability in respect of which indemnity may be
sought by it hereunder, such indemnified party will, if a claim is to be made
against the Borrowers, notify the Borrowers thereof in writing; but the
omission so to notify the Borrowers will not relieve the Borrowers from any
liability (otherwise than under this subsection 10.4) which they may have
to any indemnified party except as may be required or provided otherwise than
under this subsection 10.4. 
Thereafter, the indemnified party and the Borrowers shall consult, to
the extent appropriate, with a view to minimizing the cost to the Borrowers of
their obligations hereunder.  In case any
indemnified party receives written notice of any loss, claim, damage or
liability in respect of which indemnity may be sought hereunder by it and it
notifies the Borrowers thereof, the Borrowers will be entitled to participate
therein and, to the extent that


 


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they may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel reasonably satisfactory at all times
to such indemnified party; provided, however, that (i) if the
parties against whom any loss, claim, damage or liability arises include both
the indemnified party and a Borrower or any Subsidiary of a Borrower and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it or other indemnified parties which are different from
or additional to those available to a Borrower or any Subsidiary of a Borrower
and may conflict therewith, the indemnified party or parties shall have the
right to select one separate counsel for such indemnified party or parties to
assume such legal defenses and to otherwise participate in the defense of such
loss, claim, damage or liability on behalf of such indemnified party or parties
and (ii) if any loss, claim, damage or liability arises out of actions brought
by or for the benefit of a Borrower or any Subsidiary of a Borrower, the
indemnified party or parties shall have the right to select their counsel and
to assume and direct the defense thereof and neither Borrower shall be entitled
to participate therein or assume the defense thereof.  Upon receipt of notice from the Borrowers to
such indemnified party of their election so to assume the defense of such loss,
claim, damage or liability and approval by the indemnified party of counsel,
the Borrowers shall not be liable to such indemnified party under this subsection 10.4
for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof unless (i) the indemnified party shall
have employed such counsel in connection with the assumption of legal defenses
in accordance with the proviso to the next preceding sentence, (ii) the
Borrowers shall not have employed and continued to employ counsel satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the Borrowers shall
have authorized the employment of counsel for the indemnified party at the
expense of the Borrowers.


 


(d)                                 Notwithstanding any
other provision contained in this subsection 10.4, (i) the Borrowers shall
not be liable for any settlement, compromise or consent to the entry of any
order adjudicating or otherwise disposing of any loss, claim, damage or
liability effected without their consent and (ii) after the Borrowers have
assumed the defense of any loss, claim, damage or liability under the preceding
paragraph with respect to any Bank, they will not settle, compromise or consent
to entry of any order adjudicating or otherwise disposing thereof (1) if such
settlement, compromise or order involves the payment of money damages, except
if the Borrowers agree with such Bank to pay such money damages, and, if not
simultaneously paid, to furnish such Bank with satisfactory evidence of their
ability to pay such money damages, and (2) if such settlement, compromise or
order involves any relief against such Bank, other than the payment of money
damages, except with the prior written consent of such Bank.


 


(e)                                  The agreements in
this subsection 10.4 shall survive repayment of the Loans and all other
amounts payable hereunder.


 


10.5                           Successors and Assigns;
Participations; Purchasing Banks. 
(a)  This Agreement shall be
binding upon and inure to the benefit of the Borrowers, the Banks, the Agents
and their respective successors and assigns, except that the Borrowers may not
assign or transfer any of their rights or obligations under this Agreement
without the prior written consent of each Bank.


 


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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 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.


 


(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 to the order of such
Loan Assignee in an amount equal to the Bid Loan or Negotiated Rate Loan
assigned.  Such note shall be dated the
Borrowing Date in respect of such Bid Loan or Negotiated Rate Loan and shall
otherwise be in the form of Exhibit M; provided, however, that
such Borrower shall not be required to execute and deliver more than an
aggregate of two notes with respect to the Bid Loans of any Bank with the same
Interest Period at any time outstanding. 
A Loan Assignee shall not, by virtue of such Loan Assignment, become a
party to this Agreement or have any rights to consent to or refrain from
consenting to any amendment, waiver or other modification of any provision of
this Agreement or any related document; provided, that (i) the assignor
Bank and the Loan Assignee may, in their discretion, agree between themselves
upon the manner in which the assignor Bank will exercise its rights under this
Agreement and any related document, and (ii) if a copy of such Loan Assignment
shall have been delivered to the Administrative Agent for its acceptance and
recording in the Register in accordance with subsection 10.5(f), neither
the principal amount of, the interest rate on, nor the maturity date of, any
Bid Loan or Negotiated Rate Loan assigned to a Loan Assignee will be modified
without written consent of such Loan Assignee.


 


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(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 and to one or more
additional banks or other financial institutions (“Purchasing Banks”),
all or portions (subject to the last sentence of this subsection 10.5(d))
of its rights (which rights may include such Bank’s rights in respect of Loans
it has disbursed) and obligations under this Agreement, with the prior written
consent (such consent not to be unreasonably withheld) of the Borrowers.  Such sale shall be made pursuant to a
Commitment Transfer Supplement, executed by such Purchasing Bank and such
transferor Bank (and, in the case of a Purchasing Bank that is not then a Bank
or an affiliate thereof, by the Borrowers and the Administrative Agent), and
delivered to the Administrative Agent for its acceptance and recording in the
Register.  Upon such execution, delivery,
acceptance and recording, from and after the Transfer Effective Date specified
in such Commitment Transfer Supplement, (i) the Purchasing Bank thereunder
shall be a party hereto with respect to the interest purchased and, to the
extent provided in such Commitment Transfer Supplement, have the rights and
obligations of a Bank hereunder with a Commitment as set forth therein, and
(ii) the transferor Bank thereunder shall cease to have those rights and
obligations under this Agreement to which the Purchasing Bank has succeeded
(and, in the case of a Commitment Transfer Supplement covering all or the
remaining portion of a transferor Bank’s rights and obligations under this
Agreement, such transferor Bank shall cease to be a party hereto).  Such Commitment Transfer Supplement shall be
deemed to amend this Agreement to the extent, and only to the extent, necessary
to reflect the addition of such Purchasing Bank and the resulting adjustment of
Commitments and Commitment Percentages arising from the purchase by such
Purchasing Bank of a portion of the rights and obligations of such transferor Bank
under this Agreement.  On or promptly
after the Transfer Effective Date specified in such Commitment Transfer
Supplement, the Purchasing Bank and the Administrative Agent, on behalf of such
Purchasing Bank, shall open and maintain in the name of each Borrower a Loan
Account with respect to such Purchasing Bank’s Committed Rate Loans and Bid
Loans to such Borrower.  Anything
contained in this Agreement to the contrary notwithstanding, no Bank may sell
any portion of its rights and obligations under this subsection 10.5(d) to
any bank or financial institution without the prior written consent of the
Borrowers 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 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 and each Commitment Transfer Supplement delivered to it
and a register (the “Register”) for the recordation of (i) the names and
addresses of the Banks and the Commitment of, and principal amount of the Loans
(other than Negotiated Rate Loans) owing to, each Bank from time to time, and
(ii) with respect to each Loan Assignment delivered to the Administrative
Agent, the name and address of the Loan Assignee and the principal amount of
each Bid Loan owing to such Loan Assignee. 
The entries in the


 


130





















 


Register shall constitute prima  facie evidence of the
accuracy of the information so recorded, and the Borrowers, the Administrative
Agent and the Banks may treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all purposes of this
Agreement.  The Register shall be available
for inspection by the Company or any Bank or Loan Assignee at any reasonable
time and from time to time upon reasonable prior notice.


 


(f)                                    Upon its receipt of
a Loan Assignment executed by an assignor Bank and a Loan Assignee, together
with payment to the Administrative Agent (by the assignor Bank or the Loan
Assignee, as agreed between them) of a registration and processing fee of
$3,500, the Administrative Agent shall (i) accept such Loan Assignment, (ii)
record the information contained therein in the Register and (iii) give prompt
notice of such acceptance and recordation to the assignor Bank, the Loan
Assignee and the Borrowers.  Upon its
receipt of a Commitment Transfer Supplement executed by a transferor Bank and a
Purchasing Bank (and, in the case of a Purchasing Bank that is not then a Bank
or an affiliate thereof, by the Borrowers and the Administrative Agent)
together with payment to the Administrative Agent (by the transferor Bank or
the Purchasing Bank, as agreed between them) of a registration and processing
fee of $3,500 for each Purchasing Bank listed in such Commitment Transfer
Supplement, the Administrative Agent shall (A) accept such Commitment Transfer
Supplement, (B) record the information contained therein in the Register and
(C) give prompt notice of such acceptance and recordation to the Banks and the
Borrowers.


 


(g)                                 The Company authorizes
each Bank to disclose to any Participant, Loan Assignee or Purchasing Bank
(each, a “Transferee”) and any prospective Transferee any and all financial
information in such Bank’s possession concerning the Borrowers and their
Subsidiaries which has been delivered to such Bank by or on behalf of the
Borrowers pursuant to this Agreement or in connection with such Bank’s credit
evaluation of the Borrowers and their Subsidiaries prior to becoming a party to
this Agreement, provided that with respect to confidential data or
information described in subsection 10.7, such confidential data may be
disclosed only to (i) a Purchasing Bank and/or (ii) any other Transferee or
prospective Transferee with the Borrowers’ prior written consent, which consent
shall not be unreasonably withheld with respect to prospective Participants,
Participants, prospective Loan Assignees and Loan Assignees; provided, however,
that such Bank shall not disclose any such confidential data or information
pursuant to this subsection 10.5(g) unless (i) it has notified the
Purchasing Bank or other Transferee or potential Transferee that such data or
information are confidential, such notification to be in writing if such data
or information are disclosed in writing and orally if such data or information
are disclosed orally, and (ii) such Purchasing Bank, Transferee or potential
Transferee has agreed in writing to be bound by the provisions of subsection 10.7.


 


(h)                                 If, pursuant to this
subsection, any loan participation or series of loan participations is sold or
any interest in this Agreement is transferred to any Transferee, the transferor
Bank shall cause such Transferee, concurrently with the effectiveness of such
transfer or the first transfer to occur in a series of transfers between such
transferor Bank and such Transferee, (i) to represent to the transferor Bank
(for the benefit of the transferor Bank, the Administrative Agent and the Borrowers)
either (A) that it is incorporated under the laws of the United States or a
state thereof or (B) that under applicable law and treaties no taxes will be
required to be withheld by the Administrative Agent, the Borrowers or the
transferor Bank with respect to any payments to be made to such Transferee in
respect of the Loans, (ii) to furnish to


 


131





















 


the transferor Bank, the Administrative Agent and the Borrowers (A)
either (I) a statement that it is incorporated under the laws of the United
States or a state thereof or (II) if it is not so incorporated, a letter in
duplicate in the form of Exhibit J or Exhibit K, as appropriate, and two duly
completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI or successor applicable form, as the case may be, certifying in each
case that such Transferee is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes, and
(B) an Internal Revenue Service Form W-8BEN, or successor applicable form, as
the case may be, to establish an exemption from United States backup
withholding tax, and (iii) to agree (for the benefit of the transferor Bank,
the Administrative Agent and the Borrowers) to provide the transferor Bank, the
Administrative Agent and the Borrowers a new Form W-8BEN or 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
previously delivered by it, certifying in the case of a Form W-8BEN or W-8ECI
that such Transferee is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income tax, and
in the case of a Form W-8BEN establishing exemption from United States backup
withholding tax.  The Administrative
Agent shall not be responsible for obtaining such documentation except from its
own Transferees.


 


(i)                                     Nothing in this
subsection 10.5 shall prohibit any Bank from pledging or assigning its
Loans to any Federal Reserve Bank in accordance with applicable law.


 


(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 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


 


132





















 


(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.


 


10.6                           Adjustments.  Except as provided in subsection 2.12,
if any Bank (a “benefitted Bank”) shall at any time receive any payment of all
or part of its Committed Rate Loans, or
interest thereon or facility fee hereunder, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in clause (e) of Section 8,
or otherwise) in a greater proportion than any such payment to and collateral
received by any other Bank, if any, in respect of such other Bank’s Committed
Rate Loans, or interest thereon, or facility fee hereunder, such benefitted
Bank shall purchase for cash from the other Banks such portion of each such
other Bank’s Committed Rate Loans, or shall provide such other Banks with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such benefitted Bank to share the excess payment or benefits of such
collateral or proceeds ratably with each of such other Banks; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such benefitted Bank, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.  The
Borrowers agree that each Bank so purchasing a portion of another Bank’s
Committed Rate Loans may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Bank were the direct holder of such portion.


 


10.7                           Confidentiality.  (a) 
Each of the Agents and the Banks shall, subject as hereinafter provided,
keep confidential from any third party any data or information received by them
from the Borrowers pursuant to this Agreement which, if provided in writing, is
designated in writing as such, and if provided orally, is designated orally as
such by the Borrowers except:


 


(i)                                     any such data or
information as is or becomes publicly available or generally known otherwise
than as a result of any breach of the provisions of this subsection 10.7;


 


(ii)                                  as required by law,
rule, regulation or official direction;


 


(iii)                               as may be necessary to
protect as against the Borrowers or either of them the interests of the Banks
or any of them under this Agreement;


 


(iv)                              to the extent permitted
under subsection 10.5; and


 


(v)                                 to the attorneys,
accountants and regulators of such Banks, and to each other Bank.


 


(b)                                 Each of the Agents and
the Banks shall use their reasonable efforts to ensure that any confidential
data or information received by them from the Borrowers pursuant to this
Agreement which is disclosed to employees of such Agent or Bank (as the case
may be) is so


 


133





















 


disclosed only to the extent necessary for purpose of the
administration of this Agreement and, in all cases, on the condition that such
information and data shall be kept confidential except for such purpose.


 


(c)                                  The provisions of
this subsection 10.7 shall survive the payment in full of all amounts
payable hereunder and the termination of this Agreement.


 


10.8                           Counterparts.  This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.  A set of the copies of
this Agreement signed by all the parties shall be lodged with the Borrowers and
the Administrative Agent.


 


10.9                           GOVERNING
LAW. 
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.


 


10.10                     Consent to Jurisdiction and
Service of Process.  All judicial
proceedings brought against the Borrowers with respect to this Agreement may be
brought in any state or federal court of competent jurisdiction in the State of
New York, and, by execution and delivery of this Agreement, the Borrowers
accept, for themselves and in connection with their properties, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts and
irrevocably agree to be bound by any final judgment rendered thereby in
connection with this Agreement from which no appeal has been taken or is
available.  The Borrowers irrevocably
agree that all process in any such proceedings in any such court may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to them at their
addresses set forth in subsection 10.2 or at such other address of which
the Administrative Agent shall have been notified pursuant thereto, such
service being hereby acknowledged by the Borrowers to be effective and binding
service in every respect.  Each of the
Borrowers, the Agents and the Banks irrevocably waives any objection, including
without limitation, any objection to the laying of venue or based on the
grounds of forum non conveniens which it may now or hereafter have to the
bringing of any such action or proceeding in any such jurisdiction.  Nothing herein shall affect the right to
serve process in any other manner permitted by law or shall limit the right of
any Agent or any Bank to bring proceedings against the Borrowers in the courts
of any other jurisdiction.


 


10.11                     USA
Patriot Act.


 


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.


 


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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

  
	
  Attested by:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ James H. Becht

  	
   

  	
  By:

  	
  /s/ Michael J. Mack, Jr.

  	
   

  
	
  Title:

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JOHN DEERE CAPITAL CORPORATION

  
	
  Attested by:

  	
   

  
	
   

  	
   

  
	
  /s/ James H. Becht

  	
   

  	
  By:

  	
  /s/ Michael J. Mack, Jr.

  	
   

  
	
  Title:

  	
   

  	
  Title:

  



 


135





















 


	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as Administrative Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Randolph Cates

  	
   

  
	
   

  	
   

  	
  Title:

  	
  RANDOLPH CATES

  
	
   

  	
   

  	
    VICE PRESIDENT

  
					



 


136





















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as a Syndication Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey Armitage

  	
   

  
	
   

  	
   

  	
  Title: Senior Vice President

  



 


137





















 


	
   

  	
  CITIBANK, N.A.,

  
	
   

  	
  as a Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  CITICORP USA

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Coors

  	
   

  
	
   

  	
   

  	
  Title: Director

  



 


138





















 


	
   

  	
  CREDIT SUISSE FIRST BOSTON, acting through

  
	
   

  	
  its Cayman Islands Branch,

  
	
   

  	
  as a Documentation Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Phillip Ho

  	
   

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rianka Mohan

  	
   

  
	
   

  	
   

  	
  Title: Associate

  



 


139





















 


	
   

  	
  DEUTSCHE BANK AG NEW YORK BRANCH,

  
	
   

  	
  as a Syndication Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chris Howe

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Chris Howe

  
	
   

  	
   

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Wolfgang Winter

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Wolfgang Winter

  
	
   

  	
   

  	
  Managing Director

  
					



 


140





















 


	
   

  	
  MERRILL LYNCH BANK USA,

  
	
   

  	
  as Co-Documentation Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Louis Alder

  	
   

  
	
   

  	
   

  	
  Title: LOUIS ALDER, DIRECTOR

  



 


141





















 


	
   

  	
  ROYAL BANK OF CANADA,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barton Lund

  	
   

  
	
   

  	
   

  	
  Barton Lund

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
					



 


142





















 


	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title: Managing Director

  



 


143





















 


	
   

  	
  TORONTO DOMINION (TEXAS) LLC (as

  
	
   

  	
  successor in interest to Toronto Dominion
  (Texas),

  
	
   

  	
  Inc.), as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Neva Nesbitt

  	
   

  
	
   

  	
   

  	
  Title: Authorized Agent

  



 


144





















 


	
   

  	
  BNP PARIBAS,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Curt Price

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gaye Plunkett

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


145





















 


	
   

  	
  MELLON BANK, N.A.,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert J. Mitchell, Jr.

  	
   

  
	
   

  	
   

  	
  Title: FIRST VICE PRESIDENT

  



 


146





















 


	
   

  	
  BARCLAYS BANK PLC,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicholas A. Bell

  	
   

  
	
   

  	
   

  	
  Title:

  	
  NICHOLAS A.
  BELL

  	
   

  
	
   

  	
   

  	
   

  	
  DIRECTOR

  	
   

  
	
   

  	
   

  	
  LOAN TRANSACTION MANAGEMENT

  
						



 


147





















 


	
   

  	
  BANCO BILBAO VIZCAYA ARGENTARIA, S.A.,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Philip A Paddack

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Philip A Paddack

  
	
   

  	
   

  	
   

  	
  Senior Vice President

  
	
   

  	
   

  	
  and Branch Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anne-Maureen Sarfati

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Anne-Maureen Sarfati

  
	
   

  	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  	
  Global Corporate Banking

  
					



 


148





















 


	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John M. Lokay

  	
   

  
	
   

  	
   

  	
  Title:

  	
  JOHN M. LOKAY

  
	
   

  	
   

  	
   

  	
  VICE PRESIDENT

  
					



 


149





















 


	
   

  	
  WACHOVIA BANK, N.A.,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nathan Rantala

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


150





















 


	
   

  	
  WELLS FARGO BANK, NATIONAL

  
	
   

  	
  ASSOCIATION,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title:

  	
  V.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title:

  	
  VP

  
					



 


151





















 


	
   

  	
  BANCA NAZIONALE DEL LAVORO S.P.A.,

  
	
   

  	
  NEW YORK BRANCH,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Sr. Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title:

  	
  SR. Manager

  
					



 


152





















 


	
   

  	
  THE BANK OF TOKYO-MITSUBISHI, LTD.,

  
	
   

  	
  CHICAGO BRANCH,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shinichiro Munechika

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Shinichiro Munechika

  
	
   

  	
   

  	
   

  	
  Deputy General Manager

  
					



 


153





















 


	
   

  	
  FIFTH THIRD BANK,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Corporate Banking Officer

  
					



 


154





















 


	
   

  	
  NORDEA BANK FINLAND PLC,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Henrik M. Steffensen

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Henrik M. Steffensen

  
	
   

  	
   

  	
   

  	
  First Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald E. Chelius, Jr.

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Gerald E. Chelius, Jr.

  
	
   

  	
   

  	
   

  	
  SVP Credit

  
					



 


155





















 


	
   

  	
  U.S. BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Hirsch

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


156





















 


	
   

  	
  WESTPAC BANKING CORPORATION,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert F. Bosse

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


157





















 


SCHEDULE I


 


TERMS OF SUBORDINATION


 


“Senior Indebtedness” means the
principal of (and premium, if any) and unpaid interest on (a) indebtedness 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 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


 


158





















 


Article shall be paid by the liquidating
trustee or agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly
to the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness may have been
issued, ratably according to the aggregate amounts remaining unpaid on account
of the principal of (and premium, if any) and interest on the Senior
Indebtedness held or represented by each holder of Senior Indebtedness, to the
extent necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and


 


(c)                                  in
the event that, notwithstanding the foregoing, any payment or distribution of
assets of the Capital Corporation of any kind or character, whether in cash,
property or securities, shall be received by any trustee for the holders of the
Securities or the holders of the Securities before all Senior Indebtedness is
paid in full, such payment or distribution shall be paid over, upon written
notice to any trustee for the holders of the Securities, to the holders of
Senior Indebtedness or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments evidencing any of
such Senior Indebtedness may have been issued, ratably as aforesaid, for
application to the payment of all Senior Indebtedness remaining unpaid until
all such Senior Indebtedness shall have been paid in full, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Indebtedness.


 


Subject to the payment in full of all Senior Indebtedness, the holders
of the Securities shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Capital Corporation applicable to Senior Indebtedness until
the principal of (and premium, if any) and interest on the Securities shall be
paid in full and no such payments or distributions to the holders of the
Securities of cash, property or securities otherwise distributable to the
holders of Senior Indebtedness shall, as between the Capital Corporation, its
creditors other than the holders of Senior Indebtedness, and the holders of the
Securities, be deemed to be a payment by the Capital Corporation to or on
account of the Securities.  It is
understood that the provisions of this Article are, and are intended,
solely for the purpose of defining the relative rights of the holders of the
Securities, on the one hand, and the holders of Senior Indebtedness, on the
other hand.  Nothing contained in this Article or
elsewhere in this Agreement or in the Securities is intended to or shall impair,
as between the Capital Corporation, its creditors other than the holders of
Senior Indebtedness, and the holders of the Securities, the obligation of the
Capital Corporation, which is unconditional 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.


 


 


159





















 


Section 3.  No Payment on Securities in Event of
Non-Payment When Due of Senior Indebtedness.


 


No payment by the Capital Corporation on
account of principal (or premium, if any), sinking funds, or interest on the
Securities shall be made unless full payment of amounts then due for principal,
premium, if any, sinking funds and interest on Senior Indebtedness has been
made or duly provided for in money or money’s worth.


 


160





















 


SCHEDULE II


 


COMMITMENTS


 


	
  Bank

  	
   

  	
  Commitment

  	
   

  
	
  JPMorgan
  Chase Bank, N.A.

  	
   

  	
  $

  	
  62,500,000

  	
   

  
	
  Bank of
  America, N.A.

  	
   

  	
  $

  	
  53,750,000

  	
   

  
	
  Citicorp USA

  	
   

  	
  $

  	
  53,750,000

  	
   

  
	
  Credit
  Suisse First Boston, acting through its Cayman Islands Branch

  	
   

  	
  $

  	
  53,750,000

  	
   

  
	
  Deutsche
  Bank AG New York Branch

  	
   

  	
  $

  	
  53,750,000

  	
   

  
	
  Merrill
  Lynch Bank USA

  	
   

  	
  $

  	
  53,750,000

  	
   

  
	
  Royal Bank
  of Canada

  	
   

  	
  $

  	
  43,750,000

  	
   

  
	
  HSBC Bank
  USA, National Association

  	
   

  	
  $

  	
  37,500,000

  	
   

  
	
  Toronto
  Dominion (Texas) LLC (as successor in interest to Toronto Dominion (Texas),
  Inc.)

  	
   

  	
  $

  	
  37,500,000

  	
   

  
	
  BNP Paribas

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  Mellon Bank,
  N.A.

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  Barclays
  Bank PLC

  	
   

  	
  $

  	
  21,875,000

  	
   

  
	
  Banca Bilbao
  Vizcaya Argentaria, S.A.

  	
   

  	
  $

  	
  18,750,000

  	
   

  
	
  The Bank of
  New York

  	
   

  	
  $

  	
  18,750,000

  	
   

  
	
  Wachovia
  Bank, N.A.

  	
   

  	
  $

  	
  18,750,000

  	
   

  
	
  Wells Fargo
  Bank, National Association

  	
   

  	
  $

  	
  9,375,000

  	
   

  
	
  Banca
  Nazionale del Lavoro S.P.A., New York Branch

  	
   

  	
  $

  	
  6,250,000

  	
   

  
	
  The Bank of
  Tokyo-Mitsubishi, Ltd., Chicago Branch

  	
   

  	
  $

  	
  6,250,000

  	
   

  
	
  Fifth Third
  Bank

  	
   

  	
  $

  	
  6,250,000

  	
   

  
	
  Nordea Bank
  Finland PLC

  	
   

  	
  $

  	
  6,250,000

  	
   

  
	
  U.S. Bank,
  National Association

  	
   

  	
  $

  	
  6,250,000

  	
   

  
	
  Westpac
  Banking Corporation

  	
   

  	
  $

  	
  6,250,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  625,000,000

  	
   

  



 


161





















 


SCHEDULE III


 


ADDRESSES FOR NOTICES


 


JPMorgan Chase Bank, N.A.
Attention: 
Randolph Cates

270 Park Avenue - 4th Floor

New York, New York 10017

Telephone:  (212) 270-8997

Facsimile:  (212) 270-6637


 


Bank of America, N.A.
Attention: Jeffrey Armitage

231 South LaSalle Street

Chicago, Illinois 60604

Telephone:  (312) 828-3898

Facsimile:  (312) 974-8811


 


Citicorp USA
Attention:  John
Coons

233 South Wacker Drive

Sears Tower, Floor 86 

Chicago, Illinois 60606

Telephone:  (312) 876-3270

Facsimile:  (312) 876-3290


 


Credit Suisse First Boston
Attention: Phillip Ho

Eleven Madison Avenue, 5th Floor

New York, New York 10010

Telephone: (212) 325-5264

Facsimile:  (212) 325-8615


 


Deutsche Bank AG New York Branch

Attention:  Christopher Howe

60 Wall Street

New York, New York 10005

Telephone: (212) 250-8111

Facsimile: (212) 767-4420


 


162





















 


Merrill Lynch Bank USA
Attention:  Dave
Millett

15 W. South Temple, Suite 300

Salt Lake City, Utah 84101

Telephone: (801) 526-8312

Facsimile: (801) 933-8641


 


Royal Bank of Canada


 


Attention: Loans Administration

New York Branch

One Liberty Plaza, 3rd Floor

New York, New York 10006-1404

Telephone:  (212) 428-6338

Facsimile:  (212) 428-2372


 


with a copy to:


 


Attention: Barton Lund


One Liberty Plaza, 4th Floor


New York, New York 10006-1404


Telephone:  (212) 428-6509


Facsimile:  (212) 428-6201


 


HSBC Bank USA, National Association
Attention: Sarah McClintock

452 Fifth Avenue, 5th Floor

New York, New York 10018

Telephone: (212) 525-2485

Facsimile: (212) 525-2479


 


Toronto Dominion (Texas) LLC (as successor in
interest to Toronto Dominion (Texas), Inc.)
Attention: Nicholas Iwanowycz

31 West 52nd Street

New York, New York 10019

Telephone: (212) 827-7558

Facsimile: (212) 827-7232


 


BNP Paribas
Attention: 
Frederick H. Moryl, Jr.

209 South LaSalle Street, Suite 500

Chicago, Illinois 60604

Telephone: (312) 977-2211

Facsimile: (312) 977-1380


 


163





















 


Mellon Bank, N.A.
Attention: Richard Bouchard 

522 William Penn Place

Room 1203

Pittsburgh, Pennsylvania 15259-003

Telephone: (412) 234-5767

Facsimile: (412) 209-6124


 


Banco Bilbao Vizcaya Argentaria, S.A.
Attention: Jay Levit

1345 Avenue of the Americas, 45th Floor

New York, New York 10105

Telephone: (212) 728-1590

Facsimile: (212) 333-2904


 


The Bank of New York
Attention: John Lokay

One Wall Street, 21st Floor

New York, New York 10286

Telephone: (212) 635-1172

Facsimile: (212) 635-1970


 


Barclays Bank PLC
Attention: John Giannone

200 Park Avenue

New York, New York 10166

Telephone: (212) 412-3276

Facsimile: (212) 412-7511


 


Wachovia Bank, N.A.
Attention: Nathan Rantala

Mail Code: NC0760 

301 S. College Street

Charlotte, North Carolina 28288

Telephone: (704) 383-0684

Facsimile:  (704) 383-1625


 


Banca Nazionale del Lavoro S.P.A., New York
Branch

Attention: Francesco Di Mario

25 West 51st Street

New York, New York 10019

Telephone: (212) 314-0239

Facsimile: (212) 765-2978


 


164





















 


The Bank of Tokyo-Mitsubishi, Ltd., Chicago
Branch
Attention: Diane Tkach

227 W. Monroe Street Suite 2300

Chicago, Illinois 60606

Telephone: (312) 696-4663

Facsimile: (312) 696-4535


 


Fifth Third Bank
Attention: Mike Mendenhall

38 Fountain Square Plaza

Cincinnati, Ohio 45263

Telephone: (513) 534-6915

Facsimile: (513) 534-5947


 


Nordea Bank Finland Plc

Attention: Henrik Steffensen

437 Madison Avenue

New York, New York 10022

Telephone: (212) 318-9303

Facsimile: (212) 318-9318


 


U.S. Bank, National Association

Attention:  Barry P. Litwin

209 S. LaSalle Street

Chicago, Illinois 60604

Telephone: (312) 325-8888

Facsimile: (312) 325-8889


 


Wells Fargo Bank, National Association

Attention: Melissa Nachman

230 W. Monroe Street, Suite 2900

Chicago, Illinois 60606

Telephone: (312) 553-2353

Facsimile: (312) 553-4783


 


Westpac Banking Corporation

Attention: Tony Smith

575 Fifth Avenue, 39th Floor

New York, New York 10017

Telephone: (212) 551-1814

Facsimile: (212) 551-1995


 


165





















 


EXHIBIT A


 


[FORM OF BORROWING NOTICE]


 


                    ,
200   


 


	
  JPMorgan Chase Bank, N.A.,

  
	
  as
  Administrative Agent under the

  
	
  Credit
  Agreement referred to below

  
	
  1111 Fannin Street, 10th Floor

  
	
  Houston, Texas 77002

  
	
  Attention: Danette Espinoza

  



 


 


Ladies and Gentlemen:


 


Pursuant to subsection 2.1(c) of the
$625,000,000 Five-Year Credit Agreement, dated as of February 15, 2005,
among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties
thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A. and
CREDIT SUISSE FIRST BOSTON, as Documentation Agents, MERRILL LYNCH BANK USA, as
Co-Documentation Agent, and BANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORK
BRANCH, as Syndication Agents (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                   ,
200    as follows:


 


	
  (1)

  	
   

  	
  Total Amount of Committed Rate Loans

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  Amount of (1) to be allocated to Eurodollar
  Loans

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
  Amount of (1) to be allocated to ABR Loans

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (4)

  	
   

  	
  Interest Periods and amounts to be allocated
  thereto in respect of Eurodollar Loans (amounts must total (2)):

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (i) one month

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ii) two months

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iii) three months

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (v) six months

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Eurodollar Loans

  	
   

  	
  $

  	
   

  



 


166





















 


NOTE:                  THE AMOUNT
APPEARING IN LINE (1) ABOVE MUST BE AT LEAST EQUAL TO $25,000,000 AND IN A
WHOLE MULTIPLE OF $5,000,000 AND THE AMOUNTS APPEARING IN EACH OTHER LINE ABOVE
MUST BE AT LEAST EQUAL TO $10,000,000 AND IN A WHOLE MULTIPLE OF $1,000,000.


 


Terms defined in the Credit Agreement shall
have the same meanings when used herein.


 


	
   

  	
  Very truly yours,

  
	
   

  	
  [DEERE & COMPANY]

  
	
   

  	
  [JOHN DEERE CAPITAL CORPORATION]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


167





















 


EXHIBIT B


 


[FORM OF BID LOAN REQUEST]


 


                    ,
200   


 


JPMorgan Chase Bank, N.A., 

as Administrative Agent under the Credit 

Agreement referred to below 

1111 Fannin Street, 10th Floor

Houston, Texas 77002

Attention:  Danette Espinoza


 


Ladies and Gentlemen:


 


Reference is made to the $625,000,000
Five-Year Credit Agreement, dated as of February 15, 2005, among DEERE
& COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto,
JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A. and CREDIT
SUISSE FIRST BOSTON, as Documentation Agents, MERRILL LYNCH BANK USA, as
Co-Documentation Agent, and BANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORK
BRANCH, as Syndication Agents (as the same may be amended, supplemented or
otherwise modified from time to time, the “Credit Agreement”).  Terms defined in the Credit Agreement are
used herein as therein defined.


 


This is an [Index Rate] [Absolute Rate] Bid
Loan Request pursuant to subsection 2.2 of the Credit Agreement requesting
quotes for the following Bid Loans:


 


	
  Aggregate
  Principal Amount

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
  Borrowing
  Date

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Interest
  Period

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maturity
  Period

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Interest
  Payment Dates

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Interest
  Rate Basis

  	
   

  	
  360 day year

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


168





















 


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.


 


169





















 


EXHIBIT C


 


[FORM OF BID LOAN OFFER]


 


                    ,
200   


 


	
  JPMorgan Chase Bank, N.A., as
  Administrative

  
	
  Agent under
  the Credit Agreement referred to below

  
	
  1111 Fannin Street, 10th Floor

  
	
  Houston, Texas 77002

  
	
  Attention: Danette Espinoza

  



 


Ladies and Gentlemen:


 


Reference is made to the $625,000,000
Five-Year Credit Agreement, dated as of February 15, 2005, among DEERE
& COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto,
JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A. and CREDIT
SUISSE FIRST BOSTON, as Documentation Agents, MERRILL LYNCH BANK USA, as
Co-Documentation Agent, and BANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORK
BRANCH, as Syndication Agents (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:                                ,
200   


 


Aggregate Maximum Amount:  $                 


 


170





















 


	
  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 Eurodollar Rate.


 


171





















 


EXHIBIT D


 


[FORM OF BID LOAN CONFIRMATION]


 


                    ,
200   


 


	
  JPMorgan Chase Bank, N.A., as
  Administrative Agent

  
	
  under the
  Credit Agreement referred to below

  
	
  1111 Fannin Street, 10th Floor

  
	
  Houston, Texas 77002

  
	
  Attention: Danette Espinoza

  



 


Ladies and Gentlemen:


 


Reference is made to the $625,000,000
Five-Year Credit Agreement, dated as of February 15, 2005, among DEERE
& COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto,
JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A. and CREDIT
SUISSE FIRST BOSTON, as Documentation Agents, MERRILL LYNCH BANK USA, as
Co-Documentation Agent, and BANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORK
BRANCH, as Syndication Agents (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                     ,
200    [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].


 


172





















 


EXHIBIT E


 


[FORM OF LOAN ASSIGNMENT]


 


LOAN ASSIGNMENT


 


LOAN ASSIGNMENT, dated as of the date set
forth in Item 1 of Schedule I hereto, among the Assignor Bank set forth in
Item 2 of Schedule I hereto (the “Assignor Bank”), the Loan
Assignee set forth in Item 3 of Schedule I hereto (the “Loan Assignee”),
and JPMORGAN CHASE BANK, N.A., as administrative agent for the Banks under the
Credit Agreement described below (in such capacity, the “Administrative
Agent”).


 


W
I  T  N  E  S  S  E  T  H
:


 


WHEREAS, this Loan Assignment is being
executed and delivered in accordance with subsection 10.5(c) of the
$625,000,000 Five-Year Credit Agreement, dated as of February 15, 2005
among DEERE & COMPANY (the “Company”), JOHN DEERE CAPITAL CORPORATION (the “Capital
Corporation”), the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as
Administrative Agent, CITIBANK, N.A. and CREDIT SUISSE FIRST BOSTON, as Documentation
Agents, MERRILL LYNCH BANK USA, as Co-Documentation, and BANK OF AMERICA, N.A.
and DEUTSCHE BANK AG NEW YORK BRANCH, as Syndication Agents (as from time to
time amended, supplemented or otherwise modified in accordance with the terms
thereof, the “Credit Agreement”; terms defined therein being used herein as
therein defined); and


 


WHEREAS, the Assignor Bank has advanced to
[the Company] [the Capital Corporation] the Bid Loan or Negotiated Rate Loan or
portion thereof described in Item 5 of Schedule I hereto (the “Loan”), and
the Assignor Bank is assigning the Loan to the Loan Assignee pursuant to this
Loan Assignment;


 


NOW, THEREFORE, the parties hereto hereby
agree as follows:


 


1.  The
Assignor Bank acknowledges receipt from the Loan Assignee of an amount equal to
the purchase price, as agreed between the Assignor Bank and the Loan Assignee,
of the outstanding principal amount of, and accrued interest on, the Loan.  The Assignor Bank hereby irrevocably sells,
assigns and transfers to the Loan Assignee without recourse, representation or
warranty, and the Loan Assignee hereby irrevocably purchases, takes and
acquires from the Assignor Bank, the Loan, together with all instruments,
documents and collateral security pertaining thereto.


 


2. 
(a)  From and after the date set
forth in Item 4 of Schedule I hereto (the “Transfer Effective Date”),
principal and interest that would otherwise be payable to or for the account of
the Assignor Bank pursuant to the Loan shall, instead, be payable to or for the
account of the Loan Assignee.


 


(b)  If
Item 6 of Schedule I hereto contains payment instructions for the Loan
Assignee and if the Loan Assignee delivers a copy of this Loan Assignment to
the Administrative Agent in accordance with subsection 10.5(f) of the
Credit Agreement at least 5


 


173





















 


Business Days prior to the due date of any payment to the Loan
Assignee, the Loan Assignee hereby instructs the Administrative Agent to pay
all such amounts payable to it pursuant to the provision of subparagraph (a) of
this paragraph 2 in accordance with such payment instructions.  If Item 6 of Schedule I hereto does not
contain payment instructions for the Loan Assignee (or a copy hereof is not
delivered to the Administrative Agent as aforesaid), the Assignor Bank and the
Loan Assignee agree that, notwithstanding the provisions of subparagraph (a) of
this paragraph 2, the Assignor Bank is hereby appointed by the Loan Assignee as
its collection agent to receive from the Administrative Agent, for and on
behalf of and for the account of the Loan Assignee, all amounts payable to or
for the account of the Loan Assignee under the Loan; the Assignor Bank will
immediately pay over to the Loan Assignee any such amounts received by it, in
like funds as received.


 


3. 
Each of the parties to this Loan Assignment agrees that at any time and
from time to time upon the written request of any other party, it will execute
and deliver such further documents and do such further acts and things as such
other party may reasonably request in order to effect the purposes of this Loan
Assignment.


 


4.  By
executing and delivering this Loan Assignment, the Assignor Bank and the Loan
Assignee confirm to and agree with each other and the Administrative Agent and
the Banks as follows:  (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned hereby free and clear of any adverse claim, the
Assignor Bank makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or any other instrument or document
furnished pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or
any other instrument or document furnished pursuant thereto; (ii) the Assignor
Bank makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or the Capital Corporation or
the performance or observance by the Company or the Capital Corporation of any
of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; (iii) the Loan Assignee confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements referred to in subsection 3.1 of the Credit Agreement
(unless financial statements referred to in subsection 5.1(a) of the
Credit Agreement have become available), the financial statements delivered
pursuant to subsection 5.1 of the Credit Agreement, if any, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Loan Assignment; (iv) the Loan
Assignee will, independently and without reliance upon the Administrative
Agent, the Assignor Bank or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in respect of the Credit Agreement; and (v) the Loan Assignee
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, all in accordance with Section 9
of the Credit Agreement.


 


5.  If
the Loan Assignee is organized under the laws of any jurisdiction other than
the United States or any State thereof, the Loan Assignee (i) represents to the
Assignor Bank (for the benefit of the Assignor Bank, the Administrative Agent
and [the Company] [the Capital


 


174





















 


Corporation]) that under applicable law and treaties no taxes will be
required to be withheld by the Administrative Agent, [the Company] [the Capital
Corporation] or the Assignor Bank with respect to any payments to be made to
the Loan Assignee in respect of the Loan, (ii) will furnish to the Assignor
Bank, the Administrative Agent and [the Company] [the Capital Corporation], on
or prior to the Transfer Effective Date, a letter in duplicate in the form of
Exhibit J or Exhibit K, as appropriate, to the Credit Agreement and two duly
completed copies of either U.S. Internal Revenue Service Form W-8BEN or U.S.
Internal Revenue Service Form W-8ECI (wherein the Loan Assignee claims
entitlement to complete exemption from U.S. federal withholding tax on all
interest payments under the Loan), (iii) will furnish to the Assignor Bank, the
Administrative Agent and [the Company] [the Capital Corporation], on or prior
to the Transfer Effective Date U.S. Internal Revenue Service Form W-8BEN
(wherein the Loan Assignee claims entitlement to complete exemption from U.S.
federal backup withholding tax on all interest payments under the Loan) and
(iv) agrees (for the benefit of the Assignor Bank, the Administrative Agent and
[the Company] [the Capital Corporation]) to provide the Assignor Bank, the
Administrative Agent and [the Company] [the Capital Corporation] a new Form
W-8BEN or Form W-8ECI or successor applicable form or other manner of
certification on or before the expiration or obsolescence of, or after the
occurrence of any event requiring a change in, any previously delivered letter
or form and comparable statements in accordance with applicable U.S. laws and
regulations and amendments duly executed and completed by the Loan Assignee,
and comply from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption and such backup withholding tax
exemption.


 


6.  The
Loan Assignee agrees to be bound by subsection 10.7 of the Credit
Agreement relating to confidentiality.


 


7. 
This Loan Assignment shall be governed by, and construed and interpreted
in accordance with, the law of the State of New York.


 


IN WITNESS WHEREOF, the parties hereto have
caused this Loan Assignment to be executed by their respective duly authorized
officers on Schedule I hereto as of the date set forth in Item 1 of Schedule I
hereto.


 


175





















 


SCHEDULE I


TO LOAN


ASSIGNMENT


 


	
  Item 1

  	
   

  	
  (Date of Loan Assignment):

  	
   

  	
  [Insert date of Loan Assignment]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 2

  	
   

  	
  (Assignor Bank):

  	
   

  	
  [Insert name of Assignor Bank]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 3

  	
   

  	
  (Loan Assignee):

  	
   

  	
  [Insert name, address, telephone and telex
  numbers and name of contact party of Loan Assignee]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 4

  	
   

  	
  (Transfer Effective Date):

  	
   

  	
  [Insert Transfer Effective Date] [To be a
  date not less than five Business Days after date of Loan Assignment]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 5

  	
   

  	
  (Description of Loan):

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  a.  Borrowing Date and Maturity Date:

  	
   

  	
  [ Bid Loan or Negotiated Rate Loan]

  
	
   

  	
   

  	
  b.  Principal Amount of Loan:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 6

  	
   

  	
  (Payment Instructions):

  	
   

  	
  [Complete only if payments are to be made
  by Administrative Agent to Loan Assignee rather than to Assignor Bank as
  collection agent for Loan Assignee; leave blank if Assignor Bank is to act as
  such collection agent]

  
	
  Item 7

  	
   

  	
  (Signatures):

  	
   

  	
   

  



 


 


	
   

  	
   

  	
  , as

  
	
   

  	
  Assignor
  Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  , as

  
	
   

  	
  Loan
  Assignee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


176





















 


	
  ACCEPTED FOR RECORDATION

  
	
  IN REGISTER:

  
	
   

  
	
  JPMORGAN CHASE BANK, N.A.,

  
	
  as
  Administrative Agent

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  



 


177





















 


EXHIBIT F


 


[FORM OF COMMITMENT TRANSFER
SUPPLEMENT]


 


COMMITMENT
TRANSFER SUPPLEMENT


 


COMMITMENT TRANSFER SUPPLEMENT, dated as of
the date set forth in Item 1 of Schedule I hereto, among the Transferor
Bank set forth in Item 2 of Schedule I hereto (the “Transferor Bank”),
each Purchasing Bank set forth in Item 3 of Schedule I hereto (each, a “Purchasing
Bank”), [DEERE & COMPANY, a Delaware corporation (the “Company”),
JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “Capital Corporation”)],
and JPMORGAN CHASE BANK, N.A., as administrative agent for the Banks under the
Credit Agreement described below (in such capacity, the “Administrative
Agent”).


 


W
I  T  N  E  S  S  E  T  H
:


 


WHEREAS, this Commitment Transfer Supplement
is being executed and delivered in accordance with subsection 10.5(d) of
the $625,000,000 Five-Year Credit Agreement, dated as of February 15,
2005, among the Company, the Capital Corporation, the Transferor Bank and the
other Banks party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent,
Citibank, N.A. and Credit Suisse First Boston, as Documentation Agents, Merrill
Lynch Bank USA, as Co-Documentation Agent, and Bank of America, N.A. and
Deutsche Bank AG New York Branch, as Syndication Agents (as from time to time
amended, supplemented or otherwise modified in accordance with the terms
thereof, the “Credit Agreement”; terms defined therein being used herein
as therein defined);


 


WHEREAS, each Purchasing Bank (if it is not
already a Bank party to the Credit Agreement) wishes to become a Bank party to
the Credit Agreement; and


 


WHEREAS, the Transferor Bank is selling and
assigning to each Purchasing Bank, rights, obligations and commitments under
the Credit Agreement;


 


NOW, THEREFORE, the parties hereto hereby agree
as follows:


 


1. 
From and after the Transfer Effective Date set forth in Item 4 of Schedule I
hereto (the “Transfer Effective Date”), each Purchasing Bank shall be a
Bank party to the Credit Agreement for all purposes thereof with respect to the
interest purchased hereunder.


 


2.  The
Transferor Bank acknowledges receipt from each Purchasing Bank of an amount
equal to the purchase price, as agreed between the Transferor Bank and such
Purchasing Bank (the “Purchase Price”), of the portion being purchased
by such Purchasing Bank (such Purchasing Bank’s “Purchased Percentage”)
of the outstanding Commitment of such Transferor Bank and/or Committed Rate
Loans and other amounts owing to the Transferor Bank under the Credit Agreement
(other than any Bid Loans and Negotiated Rate Loans owing to the Transferor
Bank).  The Transferor Bank hereby
irrevocably sells, assigns and transfers to each Purchasing Bank, without
recourse, representation or warranty, and each Purchasing Bank hereby
irrevocably purchases, takes and assumes from the Transferor Bank, such
Purchasing Bank’s Purchased Percentage of the Commitments and the presently
outstanding Committed Rate Loans


 


178





















 


and other amounts owing to the Transferor Bank under the Credit
Agreement (other than any Bid Loans and Negotiated Rate Loans owing to the
Transferor Bank) together with all instruments, documents and collateral
security pertaining thereto.


 


3.  The
Transferor Bank has made arrangements with each Purchasing Bank with respect to
(i) the portion, if any, to be paid, and the date or dates for payment, by the
Transferor Bank to such Purchasing Bank of any fees heretofore received by the
Transferor Bank pursuant to the Credit Agreement prior to the Transfer Effective
Date and (ii) the portion, if any, to be paid, and the date or dates for
payment, by such Purchasing Bank to the Transferor Bank of fees or interest
received by such Purchasing Bank pursuant to the Credit Agreement from and
after the Transfer Effective Date.


 


4. 
(a)  From and after the Transfer
Effective Date, principal, interest, fees and other amounts that would
otherwise be payable to or for the account of the Transferor Bank pursuant to
the Credit Agreement and the Committed Rate Loans (other than any Bid Loans and
Negotiated Rate Loans owing to the Transferor Bank) shall, instead, be payable
to or for the account of the Transferor Bank and the Purchasing Banks, as the
case may be, in accordance with their respective interests as reflected in this
Commitment Transfer Supplement, whether such amounts have accrued prior to the
Transfer Effective Date or accrue subsequent to the Transfer Effective Date.


 


(b) 
The Transferor Bank and each Purchasing Bank hereby agree and instruct
the Administrative Agent that, notwithstanding the provisions of subparagraph
(a) of this paragraph 4, on each date hereafter on which interest or fees are
payable under the Credit Agreement and the Committed Rate Loans in respect of
any period (an “Accrual Period”) ending on or prior to the Transfer
Effective Date, any such interest or fees payable to the Purchasing Bank on
account of such Accrual Period in respect of its interests as reflected in this
Commitment Transfer Supplement shall be paid over to the Transferor Bank (and,
if such interest or fees are not paid in full when due, the payment over to the
Transferor Bank shall be ratable), and the Transferor Bank and such Purchasing
Bank will make appropriate arrangements for the payment to such Purchasing Bank
of the portion thereof owing to it to reflect the amount, if any, included in
the Purchase Price for interest and fees in respect of any Accrual Period.


 


5.  On
or promptly after the Transfer Effective Date specified in this Commitment
Transfer Supplement, the Purchasing Bank and the Administrative Agent, on
behalf of such Purchasing Bank, shall open and maintain in the name of each
Borrower a Loan Account with respect to such Purchasing Bank’s Committed Rate
Loans and Bid Loans to such Borrower.


 


6. 
Concurrently with the execution and delivery hereof, the Administrative
Agent will, at the expense of the Transferor Bank, provide to each Purchasing
Bank (if it is not already a Bank party to the Credit Agreement) conformed
copies of all documents delivered to the Administrative Agent on the Closing
Date in satisfaction of the conditions precedent set forth in the Credit
Agreement.


 


7. 
Each of the parties to this Commitment Transfer Supplement agrees that
at any time and from time to time upon the written request of any other party,
it will execute and deliver


 


179





















 


such further documents and do such further acts and things as such
other party may reasonably request in order to effect the purposes of this
Commitment Transfer Supplement.


 


8.  By
executing and delivering this Commitment Transfer Supplement, the Transferor
Bank and each Purchasing Bank confirm to and agree with each other and the
Administrative Agent and the Banks as follows: 
(i) other than the representation and warranty that it is the legal and
beneficial owner of the interest being assigned hereby free and clear of any
adverse claim, the Transferor Bank makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
instrument or document furnished pursuant thereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, the Committed Rate Loans or any other instrument or document
furnished pursuant thereto; (ii) the Transferor Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Company or the Capital Corporation or the performance or observance by
the Company or the Capital Corporation of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant
thereto; (iii) each Purchasing Bank confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in subsection 3.1 of the Credit Agreement, the financial statements
delivered pursuant to subsection 5.1 of the Credit Agreement, if any, and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Commitment Transfer
Supplement; (iv) each Purchasing Bank will, independently and without reliance
upon the Administrative Agent, the Transferor Bank or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (v) each Purchasing Bank appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are reasonably incidental thereto,
all in accordance with Section 9 of the Credit Agreement; and (vi) each
Purchasing Bank agrees that it will perform in accordance with their terms all
of the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Bank with respect to the interest purchased hereunder.


 


9.  If
the Purchasing Bank is organized under the laws of any jurisdiction other than
the United States or any State thereof, the Purchasing Bank (i) represents to
the Transferor Bank (for the benefit of the Transferor Bank, the Administrative
Agent and the Borrowers) that under applicable law and treaties no taxes will
be required to be withheld by the Administrative Agent, the Borrowers or the
Transferor Bank with respect to any payments to be made to the Purchasing Bank
in respect of the Loans, (ii) will furnish to the Transferor Bank, the
Administrative Agent and the Borrowers, on or prior to the Transfer Effective
Date, a letter in duplicate in the form of Exhibit J or Exhibit K, as
appropriate, to the Credit Agreement and two duly completed copies of either
U.S. Internal Revenue Service Form W-8BEN or U.S. Internal Revenue Service Form
W-8ECI (wherein the Purchasing Bank claims entitlement to complete exemption
from U.S. federal withholding tax on all interest payments in respect of the
Loans), (iii) will furnish to the Transferor Bank, the Administrative Agent and
the Borrowers, on or prior to the Transfer Effective Date U.S. Internal Revenue
Service Form W-8BEN (wherein the Purchasing Bank claims entitlement to complete
exemption from U.S. federal backup withholding tax on all interest payments
under the Loan) and (iv) agrees (for the benefit of the


 


180





















 


Transferor Bank, the Administrative Agent and the Borrowers), to
provide the Transferor Bank, the Administrative Agent and the Borrowers a new
Form W-8BEN or Form W-8ECI or successor applicable form or other manner of
certification on or before the expiration or obsolescence of, or after the
occurrence of any event requiring a change in, any previously delivered letter
or form and comparable statements in accordance with applicable U.S. laws and
regulations and amendments duly executed and completed by the Purchasing Bank,
and comply from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption and such backup withholding tax
exemption.


 


10. 
The Purchasing Bank agrees to be bound by subsection 10.7 of the
Credit Agreement relating to confidentiality.


 


11.  Schedule II
hereto sets forth the revised Commitments and Commitment Percentages of the
Transferor Bank and each Purchasing Bank as well as administrative information
with respect to each Purchasing Bank. 
After giving effect to the transfers contemplated hereby, Schedule II
to the Credit Agreement shall be deemed to be amended by Schedule II
hereto to show the revised Commitment of the Transferor Bank and each
Purchasing Bank.


 


12. 
This Commitment Transfer Supplement shall be governed by, and construed
and interpreted in accordance with, the law of the State of New York.


 


IN WITNESS WHEREOF, the parties hereto have
caused this Commitment Transfer Supplement to be executed by their respective
duly authorized officers on Schedule I hereto as of the date set forth in
Item 1 of Schedule I hereto.


 


181





















 


SCHEDULE I

TO

COMMITMENT

TRANSFER

SUPPLEMENT


 


COMPLETION OF INFORMATION AND

SIGNATURES FOR COMMITMENT

TRANSFER SUPPLEMENT


 


 


	
  Item 1

  	
   

  	
  (Date of Commitment) Transfer Supplement:

  	
   

  	
  [Insert date of Commitment Transfer
  Supplement]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 2

  	
   

  	
  (Transferor Bank):

  	
   

  	
  [Insert name of Transferor Bank]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 3

  	
   

  	
  (Purchasing Bank[s]):

  	
   

  	
  [Insert name[s] of Purchasing Bank[s]]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 4

  	
   

  	
  (Transfer Effective Date):

  	
   

  	
  [Insert Transfer Effective Date:]

  
	
   

  	
   

  	
   

  	
   

  	
  [To be a date not less than five Business
  Days after date of Commitment Transfer Supplement]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 5

  	
   

  	
  (Signatures of Parties to Commitment
  Transfer Supplement):

  	
   

  	
   

  



 


	
   

  	
   

  	
  , as

  
	
   

  	
   

  	
  Transferor Bank

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  , as

  
	
   

  	
   

  	
  a Purchasing Bank

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  , as

  
	
   

  	
   

  	
  a Purchasing Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


182





















 


	
  CONSENTED TO AND ACKNOWLEDGED:

  
	
   

  
	
   

  
	
  [DEERE & COMPANY

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  
	
   

  
	
  JOHN DEERE CAPITAL CORPORATION

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:]*

  
	
   

  
	
   

  
	
  ACCEPTED FOR RECORDATION

  
	
  IN REGISTER:

  
	
   

  
	
   

  
	
  JPMORGAN CHASE BANK, N.A.,

  
	
  as
  Administrative Agent

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  



 


 










*              To the extent such
consent is required by Section 10.5 of the Credit Agreement.


 


183





















 


SCHEDULE II

TO COMMITMENT

TRANSFER
 SUPPLEMENT


 


LIST OF LENDING OFFICES,
ADDRESSES

FOR NOTICES AND COMMITMENT AMOUNTS 


 


 


	
  [Name of Transferor Bank]

  	
   

  	
  Revised Commitment Amount:

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Revised Commitment Percentage:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Name of Purchasing Bank]

  	
   

  	
  New Commitment Amount:

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:
  

  	
   

  	
   

  	
  New Commitment Percentage:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attn: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Name of Purchasing Bank]

  	
   

  	
  New Commitment Amount:

  	
   

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:
  

  	
   

  	
   

  	
  New Commitment Percentage:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attn: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile: 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
											



 


184





















 


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


 


Ladies and Gentlemen:


 


This opinion is furnished to you pursuant to
subsection 4.1(c) of the $625,000,000 Five-Year Credit Agreement dated as
of February 15, 2005 (the “Credit Agreement”) among Deere & Company
(the “Company”), John Deere Capital Corporation (the “Capital Corporation”, the
Company and the Capital Corporation being referred to herein individually as a “Borrower”
and collectively as the “Borrowers”), the Banks parties thereto, JPMorgan Chase
Bank, N.A., as Administrative Agent, Citibank, N.A. and Credit Suisse First
Boston, as Documentation Agents, Merrill Lynch Bank USA, as Co-Documentation
Agent, and Bank of America, N.A. and Deutsche Bank AG New York Branch, as
Syndication Agents.  Terms defined in the
Credit Agreement are used herein as therein defined.


 


I am General Counsel of the Company and have
acted as counsel for the Capital Corporation in this matter.  I am familiar with the corporate history and
organization of each Borrower and of its Subsidiaries and the proceedings
relating to the authorization, execution and delivery by each Borrower of the
Credit Agreement.  In that connection I
have examined or caused to have examined:


 


1.             The
Credit Agreement;


 


2.                                       The
documents furnished by each of the Borrowers pursuant to Section 4 of the
Credit Agreement;


 


3.                                       The
Certificates of Incorporation of the Borrowers and all amendments thereto (the “Charters”);


 


4.                                       The
bylaws of the Borrowers and all amendments thereto (the “Bylaws”); and


 


5.                                       Certificates
of the Secretary of State of Delaware, each dated a recent date, attesting to
the continued corporate existence and good standing of the Borrowers in that
State.


 


185





















 


In addition, I have reviewed or caused to
have reviewed such of the corporate proceedings of the Borrowers, and have
examined or caused to have examined such documents, corporate records, and
other instruments relating to the organization of the Borrowers and their
respective Subsidiaries and such other agreements and instruments to which the
Borrowers and their respective Subsidiaries are parties, as I consider
necessary as a basis for the opinions hereinafter expressed.  I have assumed the due execution and
delivery, pursuant to due authorization, of the Credit Agreement by the Banks,
the Administrative Agent, the Syndication Agents, the Documentation Agents and
the Co-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 copies.


 


I am qualified to practice law in the State of
Illinois and the State of Michigan 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 Michigan, the General Corporation Law of
the State of Delaware and the Federal laws of the United States.


 


Based upon the foregoing and upon such
investigation as I have deemed necessary, I am of the following opinion:


 


1.                                       Each
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has the corporate power and
authority to carry on its business as now being conducted and to own its
properties.


 


2.                                       The
execution, delivery and performance by each Borrower of the Credit Agreement
are within such Borrower’s corporate powers, have been duly authorized by all
necessary corporate action, and do not (i) contravene, or constitute a default
under the Charter or the Bylaws of such Borrower, any judgment, law, rule or
regulation applicable to such Borrower, or any Contractual Obligation by which
such Borrower is bound or (ii) result in the creation of any lien, charge or
encumbrance upon any of its property or assets. 
The Credit Agreement has been duly executed and delivered on behalf of
each Borrower.


 


3.                                       No
authorization, approval, or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due
execution, delivery and performance by each Borrower of the Credit Agreement.


 


4.                                       There
is no pending or, to the best of my knowledge, threatened action or proceeding
against either Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator which is likely to have a materially adverse
effect upon the financial condition or operations of such Borrower and its
Subsidiaries taken as a whole.


 


186





















 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  James R. Jenkins

  



 


187





















 


EXHIBIT H


 


[FORM OF OPINION OF SPECIAL NEW
YORK COUNSEL

TO THE BORROWERS]


 


[Closing Date]


 


To each of the Banks parties to the

Credit Agreement referred to below and

to JPMorgan Chase Bank, N.A., as

Administrative Agent


 


Deere &
Company

John Deere Capital Corporation


 


Ladies and Gentlemen:


 


We have acted as New York counsel to Deere
& Company, a Delaware corporation (the “Company”) and John Deere Capital
Corporation, a Delaware corporation (the “Capital Corporation”, the Company and
the Capital Corporation being referred to herein as the “Borrowers”), in
connection with the $625,000,000 Five-Year Credit Agreement, dated as of February 15,
2005 (the “Credit Agreement”), among the Banks parties thereto, JPMorgan Chase
Bank, N.A., as Administrative Agent, Citibank, N.A. and Credit Suisse First
Boston, as Documentation Agents, Merrill Lynch Bank USA, as Co-Documentation
Agent, and Bank of America, N.A. and Deutsche Bank AG New York Branch, as
Syndication Agents.  Unless otherwise
defined herein, terms defined in the Credit Agreement are used herein as
therein defined.


 


In that connection, we have reviewed an
execution copy of the Credit Agreement. 
We have also reviewed originals or copies of such other records of the
Borrowers, certificates of officers of the Borrowers and agreements and other
documents, as we have deemed necessary as a basis for the opinions expressed
below.


 


In our review of the Credit Agreement and
other documents, we have assumed:


 


(A)          The
genuineness of all signatures.


 


(B)           The
authenticity of the originals of the documents submitted to us.


 


(C)           The
conformity to authentic originals of any documents submitted to us as copies.


 


(D)          That
the Credit Agreement is the legal, valid and binding obligation of each party
thereto, other than the Borrowers, enforceable against each such party in accordance
with its terms.


 


(E)           That:


 


188





















 


(1)           Each
Borrower is an entity duly organized and validly existing under the laws of the
jurisdiction of its organization.


 


(2)           Each
Borrower has full power to execute, deliver and perform, and has duly executed
and delivered, the Credit Agreement.


 


(3)           The
execution, delivery and performance by each Borrower of the Credit Agreement
have been duly authorized by all necessary action (corporate or otherwise) and
do not:


 


(a)           contravene
its  certificate or articles of
incorporation, by-laws or other organizational documents;


 


(b)           except
with respect to Generally Applicable Law, violate any law, rule or regulation
applicable to it; or


 


(c)           result
in any conflict with or breach of any agreement or document binding on it of
which any addressee hereof has knowledge, has received notice or has reason to
know.


 


(4)           Except
with respect to Generally Applicable Law, no authorization, approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body or (to the extent the same is required under any agreement or
document binding on it of which an addressee hereof has knowledge, has received
notice or has reason to know) any other third party is required for the due
execution, delivery or performance by either Borrower of the Credit Agreement
or, if any such authorization, approval, action, notice or filing is required,
it has been duly obtained, taken, given or made and is in full force and effect.


 


We have not independently established the validity of the foregoing
assumptions.


 


“Generally Applicable Law” means the
federal law of the United States of America, and the law of the State of New
York (including the rules or regulations promulgated thereunder or pursuant
thereto) that a New York lawyer exercising customary professional diligence
would reasonably be expected to recognize as being applicable to either
Borrower or the Credit Agreement. 
Without limiting the generality of the foregoing definition of Generally
Applicable Law, the term “Generally Applicable Law” does not include any law,
rule or regulation that is applicable to a Borrower or the Credit Agreement
solely because such law, rule or regulation is part of a regulatory regime
applicable to the specific assets or business of any party to the Credit
Agreement or any of its affiliates due to the specific assets or business of
such party or such affiliate.


 


Based upon the foregoing and upon such other
investigation as we have deemed necessary and subject to the qualifications set
forth below, we are of the opinion that the Credit Agreement is the legal,
valid and binding obligation of each Borrower, enforceable against each
Borrower in accordance with its terms.


 


 


189





















 


Our opinion expressed above is subject to the following qualifications:


 


(a)                                  Our opinion is
subject to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights generally (including
without limitation all laws relating to fraudulent transfers).


 


(b)                                 Our opinion is subject
to the effect of general principles of equity, including without limitation
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law).


 


(c)                                  We express no opinion
with respect to the enforceability of indemnification provisions, or of release
or exculpation provisions, contained in the Credit Agreement to the extent that
enforcement thereof is contrary to public policy regarding the indemnification
against or release or exculpation of criminal violations, intentional harm or
violations of securities laws.


 


(d)                                 Our opinion with
respect to the provisions of the Credit Agreement whereby the parties submit to
the jurisdiction of the courts of the United States of America located in the
State of New York, is subject to the limitations of 28 U.S.C. §§ 1331 and
1332 on subject matter jurisdiction of the Federal courts.


 


(e)                                  In connection with
the provisions of the Credit Agreement which relate to forum selection of the
courts of the United States located in the State of New York (including,
without limitation, any waiver of any objection to venue or any objection that
a court is an inconvenient forum), we note such court’s discretion to transfer
an action from one Federal court to another under 28 U.S.C. § 1404(a) or
to dismiss an action under the common law doctrine of forum non conveniens.


 


(f)                                    We express no
opinion with respect to any Bid Loan or Negotiated Rate Loan made in an amount
of less than $2,500,000 that bears interest at a rate greater than 25% per
annum.


 


(g)                                 Our opinion is limited
to Generally Applicable Law.


 


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 our prior written consent.


 


This opinion letter speaks only as of the date hereof.  We 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 


 


190





















 


development or circumstance may affect the legal analysis, a legal
conclusion or any other matter set forth in or relating to this opinion letter.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SHEARMAN & STERLING LLP

  



 


191





















 


EXHIBIT I


 


[FORM OF EXTENSION REQUEST]


 


                                  ,
200  


 


JPMorgan Chase Bank, N.A.,

as Administrative Agent 

1111 Fannin, 10th Floor

Houston, Texas 77002

Attention:  Danette Espinoza


 


Ladies and Gentlemen:


 


Reference is made to the $625,000,000 Five-Year Credit Agreement, dated
as of February 15, 2005, among Deere & Company, John Deere Capital
Corporation, the Banks parties thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, Citibank, N.A. and Credit Suisse First Boston, as
Documentation Agents, Merrill Lynch Bank USA, as Co-Documentation Agent, and
Bank of America, N.A. and Deutsche Bank AG New York Branch, as Syndication
Agents (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.


 


192





















 


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:

  



 


193





















 


EXHIBIT J


 


[FORM OF W-8BEN TAX LETTER]


 


[To be sent in DUPLICATE and accompanied

by TWO executed copies of Form W-8BEN of

the Internal Revenue Service]


 


[Bank’s Letterhead]


 


                            ,
200  


 


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


 


Re:                               $625,000,000 Five-Year
Credit Agreement 

dated as of February 15, 2005 with Deere & 

Company and John Deere Capital Corporation


 


Ladies and Gentlemen:


 


In connection with the $625,000,000 Five-Year Credit Agreement, dated
as of February 15, 2005, among Deere & Company, John Deere Capital
Corporation, the Banks parties thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, Citibank, N.A. and Credit Suisse First Boston, as
Documentation Agents, Merrill Lynch Bank USA, as Co-Documentation Agent, and
Bank of America, N.A. and Deutsche Bank AG New York Branch, as Syndication
Agents, 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.


 


194





















 


We enclose herewith two copies of Form W-8BEN of the U.S. Internal
Revenue Service.


 


	
   

  	
  Yours faithfully,

  
	
   

  	
   

  
	
   

  	
  [NAME OF BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 


cc:                                 JPMorgan
Chase Bank, N.A., as Administrative Agent


 


195





















 


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]


 


                       ,
200  


 


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


 


Re:                               $625,000,000 Five-Year
Credit Agreement

dated as of February 15, 2005 with Deere & 

Company and John Deere Capital Corporation


 


Ladies and Gentlemen:


 


In connection with the above $625,000,000 Five-Year Credit Agreement,
dated as of February 15, 2005, among Deere & Company, John Deere
Capital Corporation, the Banks parties thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, Citibank, N.A. and Credit Suisse First Boston, as
Documentation Agents, Merrill Lynch Bank USA, as Co-Documentation Agent, and
Bank of America, N.A. and Deutsche Bank AG New York Branch, as Syndication
Agents, 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.


 


196





















 


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


 


197





















 


EXHIBIT L


 


[FORM OF AGREEMENT]


 


THIS AGREEMENT, dated as of           ,
200   (“Agreement”), among Deere & Company (the “Company”),
John Deere Capital Corporation (the “Capital Corporation”),                  
(“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, the several financial
institutions parties thereto (the “Existing Banks”), JPMorgan Chase
Bank, N.A., as Administrative Agent, Citibank, N.A. and Credit Suisse First
Boston, as Documentation Agents, Merrill Lynch Bank USA, as Co-Documentation
Agent, and Bank of America, N.A. and Deutsche Bank AG New York Branch, as
Syndication Agents are parties to the $625,000,000 Five-Year Credit Agreement,
dated as of February 15, 2005 (as the same may have been or may hereafter
be amended, supplemented or otherwise modified, the “Credit Agreement”;
terms defined therein being used herein as therein defined);


 


WHEREAS, subsection 2.19 of the Credit Agreement provides that one
or more financial institutions (which may be Existing Banks) may be added as a “Bank”
or “Banks” for purposes of the Credit Agreement upon the cancellation of all or
a portion of the Commitments pursuant to subsection 2.13(a), (b) or (c),
2.16(c) or 2.17(b) of the Credit Agreement or the expiration of all or a
portion of the Commitments pursuant to subsection 2.16(b) of the Credit
Agreement and the execution of an agreement in substantially the form of this
Agreement;


 


WHEREAS, the Borrowers have cancelled or there have expired an
aggregate principal amount of Commitments equal to $                   which
have not heretofore been replaced (the “Cancelled Commitments”; the
Banks that are maintaining or have maintained the Cancelled Commitments being
collectively referred to as “Cancelled Banks”); such Cancelled
Commitments being on the date hereof, or on the date of notice of cancellation
hereof having been, utilized as follows:


 


	
  Principal
  Amount

  	
   

  	
  Last day of

  Interest Period

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  I

  	
  Unused Portion

  	
   

  	
  N/A

  	
   

  
	
  II

  	
  Committed Rate Loans

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Eurodollar Loans 

  	
   

  	
   

  	
   

  
	
   

  	
  1

  	
   

  	
   

  	
   

  
	
   

  	
  2

  	
   

  	
   

  	
   

  
	
   

  	
  3

  	
   

  	
   

  	
   

  



 


198





















 


	
   

  	
  ABR Loans

  	
   

  	
  N/A

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III

  	
  Bid Loans

  	
   

  	
   

  	
   

  
	
   

  	
  1

  	
   

  	
   

  	
   

  
	
   

  	
  2

  	
   

  	
   

  	
   

  
	
   

  	
  3

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  IV

  	
  Negotiated Rate Loans

  	
   

  	
   

  	
   

  
	
   

  	
  1

  	
   

  	
   

  	
   

  
	
   

  	
  2

  	
   

  	
   

  	
   

  
	
   

  	
  3

  	
   

  	
   

  	
   

  



 


WHEREAS, the cancellation of the Cancelled Commitments is effective in
accordance with the Credit Agreement; and


 


WHEREAS, [the Borrowers desire the New Bank to become, and the New Bank
is agreeable, to becoming, a “Bank” for purposes of the Credit Agreement] [the
New Bank is an Existing Bank and the Borrowers desire the New Bank to increase,
and the New Bank is agreeable to increasing, its Commitment]
on the terms contained herein.


 


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 


 


 










*                                         As
appropriate for New or Existing Banks.


 


199





















 


Bank shall on and as of the date hereof be $            **.  In connection therewith, the Borrowers, the
Administrative Agent and the New Bank hereby agree as follows***:


 


(i)  for purposes of determining
such New Bank’s pro rata share of each Committed Rate Loan borrowing advanced
on or after the date hereof such Bank’s Commitment shall be equal to $[same
as above];


 


(ii)  the unused and available
portion of such New Bank’s Commitment shall be deemed utilized by its
Percentage of the Committed Rate Loans made by the Cancelled Banks and listed
in the third recital hereof.  In
furtherance thereof, the unused and available portion of such New Bank’s
Commitment shall, on the earlier of (x) the last day of each Interest Period
specified for each outstanding Committed Rate Loan in the third recital hereof
(and the payment in full to the Cancelled Banks of the principal thereof and
accrued interest thereon) and (y) the prepayment of the principal of such Loans
together with accrued interest thereon, automatically and without any further
action by any party increase by an amount equal to the New Bank’s Percentage of
such Loan; and


 


(iii)  [(A)]  [concurrently with the execution hereof the
New Bank shall disburse to each Borrower in immediately available funds such
amount as shall be necessary so that the ratio which each Bank’s outstanding
ABR Loans bears to all of the outstanding ABR Loans equals the ratio which each
Bank’s Commitment (determined, for the New Bank, in accordance with clause (i)
above) bears to all of the Commitments (determined, for the New Bank, in
accordance with the immediately foregoing parenthetical);]


 


[(B)] [on the last day of each Interest Period for each outstanding
Eurodollar Loan, 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 Eurodollar Loans, bears to all of the outstanding Eurodollar 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 


 










**                                  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.


*                                         To
be completed upon agreement of Borrowers and New Bank.


 


200





















 


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] [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] [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] 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 previously delivered by it,
certifying in the case of a Form [W-8BEN] [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]
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.


 


201





















 


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:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF NEW BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  [Address]

  
	
   

  	
   

  	
  Telephone:

  
	
   

  	
   

  	
  Facsimile:

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A., as

  
	
   

  	
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 


202





















 


EXHIBIT M


 


[FORM OF BID LOAN OR NEGOTIATED RATE LOAN
NOTE]


 


PROMISSORY NOTE


 


	
  $                        

  	
   

  	
  New York, New York

  
	
   

  	
   

  	
                           ,
  200  

  



 


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 the order of                       (the
“Bank”) at the office of [JPMorgan Chase Bank, N.A. located at 270 Park
Avenue, New York, New York 10017 — 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 $625,000,000 Five-Year Credit Agreement, dated as
of February 15, 2005 (the “Credit Agreement”), among the Borrower,
[Deere & Company] [John Deere Capital Corporation], the Bank, the other
financial institutions parties thereto, JPMorgan Chase Bank, N.A., as Administrative
Agent, Citibank, N.A. and Credit Suisse First Boston, as Documentation Agents,
Merrill Lynch Bank USA, as Co-Documentation Agent, and Bank of America, N.A.
and Deutsche Bank AG New York Branch, as Syndication Agents.  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:

  



 


203





















 


EXHIBIT N


 


FORM OF

NEW BANK SUPPLEMENT


 


SUPPLEMENT, dated            
    , to the $625,000,000 Five-Year Credit Agreement (as in
effect on the date hereof, the “Credit Agreement”) dated as of February 15,
2005, among Deere & Company (the “Company”), John Deere Capital
Corporation, 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. and Credit Suisse First Boston, as Documentation Agents,
Merrill Lynch Bank USA, as Co-Documentation Agent, and Bank of America, N.A.
and Deutsche Bank AG New York Branch, as Syndication Agents.  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 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 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 Supplement; (b) confirms that it has received a
copy of the Credit Agreement, together with copies of the financial statements
delivered pursuant to Section 5.1 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Supplement; (c) agrees that it has made and will,
independently and without reliance upon any Agent 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 


 


204





















 


Agreement are required to be performed by it as a Bank including,
without limitation, its obligation pursuant to subsection 2.17(c) of the
Credit Agreement.


 


The undersigned’s address for notices for the purposes of the Credit
Agreement is as follows:


 


	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Fax:

  	
   

  	
   

  
					



 


205





















 


IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.


 


	
   

  	
  [NAME OF NEW BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  
	
   

  
	
  Accepted this               
  day of

  
	
                            ,
  200    

  
	
   

  
	
  DEERE & COMPANY

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  
	
   

  
	
  JOHN DEERE CAPITAL CORPORATION

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  
	
   

  
	
  Accepted this
              day of

  
	
                             ,
  200   

  
	
   

  
	
  JPMORGAN CHASE BANK, N.A.,

  
	
  as Administrative Agent

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
									



 


206





















 


EXHIBIT O


 


FORM OF

COMMITMENT INCREASE SUPPLEMENT


 


SUPPLEMENT, dated                   
200   , to the $625,000,000 Five-Year Credit Agreement (as in
effect on the date hereof, the “Credit Agreement”) dated as of February 15,
2005, among Deere & Company (the “Company”), John Deere Capital
Corporation, 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. and Credit Suisse First Boston, as Documentation Agents, Merrill
Lynch Bank USA, as Co-Documentation Agent, and Bank of America, N.A. and Deutsche
Bank AG New York Branch, as Syndication Agents. 
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:

  



 


207





















 


	
  Accepted this
             day of

  
	
                          ,
  200    

  
	
   

  
	
  DEERE & COMPANY

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  
	
  JOHN DEERE CAPITAL CORPORATION

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  
	
   

  
	
  Accepted this
             day of

  
	
                            ,
  200   

  
	
   

  
	
  JPMORGAN CHASE BANK, N.A.,

  
	
  as Administrative Agent

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  



 


208