Exhibit
4.2


 




 





DEERE &
COMPANY


 


JOHN DEERE
CAPITAL CORPORATION


 










 


$625,000,000


 


364-DAY


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




 





 


209





















 


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

  	
   

  



 


210





















 


	
  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

  	
   

  



 


211





















 


	
  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

  	
   

  



 


212





















 


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”.


 


213





















 


“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 each Type of Committed
Rate Loan the rate per annum set forth below:


 


	
  ABR

  Loans

  	
   

  	
  Eurodollar

  Loans

  	
   

  
	
  0%

  	
   

  	
  0.235%

  	
   

  



 


; provided
that, the rate per annum for any Eurodollar Loans shall be increased by 0.10%
for the period of time that any Committed Rate Loans remain outstanding after
the Termination Date.


 


“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.


 


214





















 


“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 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.


 


215





















 


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


 


“Commonly
Controlled Entity”:  in relation to a
Borrower, an entity, whether or not incorporated, which is under common control
with such Borrower within the meaning of Section 414(b) or (c) of the Code.


 


“Company”:  as defined in the preamble hereto.


 


“Consolidated
Capital Base”:  at a particular time
for the Capital Corporation and its consolidated Subsidiaries, the sum of (a)
the amount shown opposite the item “Total Stockholders’ Equity” on the
consolidated balance sheet of the Capital Corporation and its consolidated
Subsidiaries plus (b) all indebtedness of the Capital Corporation and
its consolidated Subsidiaries for borrowed money subordinated (on terms no less
favorable to the Administrative Agent and the Banks than the terms of
subordination set forth on Schedule I) to the indebtedness which may be
incurred hereunder by the Capital Corporation, provided that the sum of
clauses (a) and (b) hereof as at the end of a fiscal quarter of the Capital
Corporation and its consolidated Subsidiaries (including the last quarter of a
fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall
be determined by reference to the publicly available consolidated balance sheet
of the Capital Corporation and its consolidated Subsidiaries as at the end of
such fiscal quarter and after such adjustments, if any, as may be required so
that the sum of the amounts referred to in clauses (a) and (b) is determined in
accordance with GAAP.


 


“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.


 


216





















 


“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 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.


 


217





















 


“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”: 0.065%.


 


“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.


 


“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, 


 


218





















 


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 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 


 


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


 


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


 


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


 


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“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.


 


“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 


 


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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.


 


 “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).


 


“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 


 


222





















 


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.


 


“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 


 


223





















 


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 date which is 364 days
after the date of this Agreement or such later date as shall be determined
pursuant to the provisions of subsection 2.16 with respect to non-Objecting
Banks.


 


“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).


 


“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).


 


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“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.


 


(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 


 


225





















 


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 first anniversary of the Termination Date; provided,
that Committed Rate Loans made by Objecting Banks shall be repaid as provided
in subsection 2.16(b).


 


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


 


226





















 


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.


 


(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 


 


227





















 


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 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 


 


228





















 


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 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 


 


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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, on the Termination Date or such
earlier date on which the Commitments shall terminate as provided herein, and
on the first anniversary of the Termination Date or such earlier date on which
the Loans are repaid in full, commencing in April, 2005.


 


(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, on the
Termination Date or such earlier date on which the Commitments shall terminate
as provided herein, and on the first anniversary of the 


 


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Termination Date or
such earlier date on which the Loans are repaid in full, 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
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, 


 


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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.


 


(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) 


 


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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, the first
anniversary of such Objecting Bank’s Commitment Expiration Date, and (ii) in
the case of all Loans, the first anniversary of 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, the first anniversary of such Objecting Bank’s Commitment
Expiration Date, and (ii) in the case of all Loans, the first anniversary of
the Termination Date.  Upon receipt of
any such notice, the Administrative Agent shall promptly notify each Bank
thereof.


 


2.10.        Computation of Interest and Fees.  (a)  Facility fees, 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 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.


 


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(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.


 


(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



 


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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.


 


(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 


 


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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 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 


 


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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 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 


 


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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 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 


 


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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 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 


 


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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 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


 


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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)  Not
less than 60 days and not more than 90 days prior to the Termination Date then
in effect, provided that no Event of Default shall have occurred and be
continuing, the Borrowers may request an extension of such Termination Date by
submitting to the Administrative Agent an Extension Request containing the
information in respect of such extension specified in Exhibit I, which the
Administrative Agent shall promptly furnish to each Bank.  Each Bank shall, not less than 30 days and
not more than 60 days prior to the Termination Date then in effect, notify the
Borrowers and the Administrative Agent of its election to extend or not extend
the Termination Date as requested in such Extension Request.  Notwithstanding any provision of this Agreement
to the contrary, any notice by any Bank of its willingness to extend the
Termination Date shall be revocable by such Bank in its sole and absolute
discretion at any time prior to the date which is 30 days prior to the
Termination Date then in effect.  If any
Bank shall fail to respond, such Bank shall be deemed to have elected not to
extend.  If the Required Banks shall
approve in writing the extension of the Termination Date requested in such
Extension Request, the Termination Date shall automatically and without any
further action by any Person be extended for the period specified in such
Extension Request; provided that (i) each extension pursuant to this
subsection 2.16 shall be for a maximum of 364 days and (ii) the Commitment of
any Bank which does not consent in writing to such extension not less than 30
days and not more than 60 days prior to the Termination Date then in effect (an
“Objecting Bank”) shall, unless earlier terminated in accordance with
this Agreement, expire on the Termination Date in effect on the date of such
Extension Request (such Termination Date, if any, referred to as the “Commitment
Expiration Date” with respect to such Objecting Bank).  If, not less than 30 days and not more than
60 days prior to the Termination Date then in effect, the Required Banks shall
not approve in writing the extension of the Termination Date requested in an
Extension Request, the Termination Date shall not be extended pursuant to such
Extension Request.  The Administrative
Agent shall promptly notify (y) the Banks and the Borrowers of any extension of
the Termination Date pursuant to this subsection 2.16 and (z) the Borrowers and
any other Bank of any Bank which becomes an Objecting Bank.


 


(b)                                 Committed Rate Loans owing to
any Objecting Bank on the Commitment Expiration Date with respect to such Bank
shall be repaid in full on or before the date which is one year after such
Commitment Expiration Date.


 


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


 


2.17.                        Foreign
Taxes.  (a)  All payments
made under this Agreement shall be made without set-off or counterclaim and
free and clear of, and without reduction for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges,


 


241





















 


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 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


 


242





















 


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 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


 


243





















 


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 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.


 


244





















 


(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 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


 


245





















 


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 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.


 


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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 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.


 


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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 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.


 


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(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.


 


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


 


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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.


 


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


 


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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 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


 


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subsection 6.2(a) or subsection 6.2(b),
compliance shall be effected with the first clause of subsection 6.2(a); and


 


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


 


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


 


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


 


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


 


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


 


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


 


(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


 


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of financing
all or any part of the purchase price or the cost of constructing or improving
the property subject to such Mortgages and Mortgages given to secure
indebtedness incurred in connection with the financing of construction of
pollution control facilities, the interest on which indebtedness is exempt from
income taxes under the Code;


 


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


 


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


 


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


 


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


 


(x)                                   liens
for taxes or assessments or governmental charges or levies not yet due or
delinquent, or which can thereafter be paid without penalty, or which are being
contested in good faith by appropriate proceedings; landlord’s liens on
property held under lease; and any other liens of a nature similar to those
hereinabove described in this clause (x) which do not, in the opinion of the
Company, materially impair the use of such property in the operation of the
business of the Company or a Restricted Subsidiary or the value of such property
for the purposes of such business;


 


(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


 


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


 


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


 


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


 


(c)                                  If, upon any consolidation or
merger of any Restricted Subsidiary with or into any other corporation, or upon
any consolidation or merger of any other corporation with or into the Company
or any Restricted Subsidiary or upon any sale or conveyance of the property of any
Restricted Subsidiary as an entirety or substantially as an entirety to any
other Person, or upon any acquisition by the Company or any Restricted
Subsidiary by purchase or otherwise of all or any part of the property of any
other Person, any Important Property theretofore owned by 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.


 


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(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 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.


 


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SECTION
7                                   NEGATIVE
COVENANTS OF THE CAPITAL CORPORATION


 


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


 


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 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


 


256





















 


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 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


 


257





















 


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 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


 


258





















 


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 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


 


259





















 


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, 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


 


260





















 


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 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,


 


261





















 


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.


 


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


 


262





















 


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 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: 


 


263





















 


	
  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).


 


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,


 


264





















 


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 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


 


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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.


 


(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


 


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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.


 


(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


 


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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 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


 


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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 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


 


269





















 


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 (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


 


270





















 


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 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.


 


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(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.


 


	
  Attested by: 

  	
  DEERE & COMPANY 

  
	
   

  	
   

  
	
  /s/ James H. Becht

  	
   

  	
   

  
	
  Title:

  	
  By: 

  	
  /s/ Michael J. Mack, Jr.

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Attested by: 

  	
  JOHN DEERE CAPITAL CORPORATION 

  
	
   

  	
   

  
	
  /s/ James H. Becht

  	
   

  	
   

  
	
  Title:

  	
  By: 

  	
  /s/ Michael J. Mack, Jr.

  	
   

  
	
   

  	
   

  	
  Title:

  



 


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  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as Administrative Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Randolph Cates

  	
   

  
	
   

  	
   

  	
  Title:  RANDOLPH CATES

  
	
   

  	
   

  	
   

  	
      VICE PRESIDENT

  
					



 


274





















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as a Syndication Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey Armitage

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
					



 


275





















 


	
   

  	
  CITIBANK, N.A.,

  
	
   

  	
  as a Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CITICORP USA,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Coors

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Director

  
					



 


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  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

  
					



 


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  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

  
					



 


278





















 


	
   

  	
  MERRILL LYNCH BANK USA,

  
	
   

  	
  as Co-Documentation Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Louis Alder

  	
   

  
	
   

  	
   

  	
  Title:

  	
   LOUIS ALDER, DIRECTOR

  
					



 


279





















 


	
   

  	
  ROYAL BANK OF CANADA,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Barton Lund

  	
   

  
	
   

  	
   

  	
  Barton Lund

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
					



 


280





















 


	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
					



 


281





















 


	
   

  	
  TORONTO DOMINION (TEXAS) LLC (as

  
	
   

  	
  successor in interest to Toronto Dominion (Texas),

  
	
   

  	
  Inc.), as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Neva Nesbitt

  	
   

  
	
   

  	
   

  	
  Title:

  	
  AUTHORIZED AGENT

  
					



 


282





















 


	
   

  	
  BNP PARIBAS,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Curt Price

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gaye Plunkett

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


283





















 


	
   

  	
  MELLON BANK, N.A.,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert J. Mitchell, Jr.

  	
   

  
	
   

  	
   

  	
  Title:

  	
  FIRST VICE PRESIDENT

  
					



 


284





















 


	
   

  	
  BARCLAYS BANK PLC,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicholas A. Bell

  	
   

  
	
   

  	
   

  	
  Title:

  	
  NICHOLAS A. BELL

  	
   

  
	
   

  	
   

  	
   

  	
  DIRECTOR

  	
   

  
	
   

  	
   

  	
   

  	
  LOAN TRANSACTION MANAGEMENT

  	
   

  



 


285





















 


	
   

  	
  BANCO BILBAO VIZCAYA ARGENTARIA, S.A.,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Philip A. Paddook

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Philip A. Paddook

  	
   

  
	
   

  	
   

  	
  Senior Vice President

  	
   

  
	
   

  	
   

  	
  and Branch Manager

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anne-Maureen Sarfati

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Anne-Maureen Sarfati

  	
   

  
	
   

  	
   

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  	
  Global Corporate Banking

  	
   

  
						



 


286





















 


	
   

  	
  THE BANK OF NEW YORK,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John M. Lokay, JR.

  	
   

  
	
   

  	
   

  	
  Title: 

  	
  JOHN M. LOKAY, JR.

  	
   

  
	
   

  	
   

  	
   

  	
  VICE PRESIDENT

  	
   

  
						



 


287





















 


	
   

  	
  WACHOVIA BANK, N.A.,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nathan Rantala

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


288





















 


	
   

  	
  WELLS FARGO BANK, NATIONAL

  
	
   

  	
  ASSOCIATION,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title: 

  	
  V.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title: 

  	
  V.P.

  
					



 


289





















 


	
   

  	
  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

  
					



 


290





















 


	
   

  	
  THE BANK OF TOKYO-MITSUBISHI, LTD.,

  
	
   

  	
  CHICAGO BRANCH,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Shinichiro Munechika

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Shinichiro Munechika

  
	
   

  	
   

  	
   

  	
  Deputy General Manager

  
					



 


291





















 


	
   

  	
  FIFTH THIRD BANK,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
  Title: 

  	
  Corporate Banking Officer

  
					



 


292





















 


	
   

  	
  NORDEA BANK FINLAND PLC,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Henrik M. Steffensen

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Henrik M. Steffensen

  
	
   

  	
   

  	
  First Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald E. Chellus, Jr.

  	
   

  
	
   

  	
   

  	
  Title:

  	
   Gerald E. Chellus, Jr.

  
	
   

  	
   

  	
   

  	
   SVP Credit

  
						



 


293





















 


	
   

  	
  U.S. BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Hirsch

  	
   

  
	
   

  	
   

  	
  Title: 

  	
  Vice President

  
					



 


294





















 


	
   

  	
  WESTPAC BANKING CORPORATION,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert F. Bosse

  	
   

  
	
   

  	
   

  	
  Title: 

  	
  Vice President

  
					



 


295





















 


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


 


296





















 


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


 


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


 


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


 


297





















 


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.


 


298





















 


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

  	
   

  



 


299





















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


 


300





















 


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


 


301





















 


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


 


302





















 


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


 


303





















 


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 $625,000,000 364-Day 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

  	
   

  	
  $

  	
   

  
	
   

  	
  (iv)  six months

  	
   

  	
  $

  	
   

  
	
   

  	
  Total
  Eurodollar Loans

  	
   

  	
  $

  	
   

  



 


304





















 


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:

  



 


305





















 


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 $625,000,000 364-Day 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

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  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.

  
											



 


306





















 


	
   

  	
  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.


 


307





















 


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 $625,000,000 364-Day 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:  $              

  



 


308





















 


	
  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.


 


309





















 


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 $625,000,000 364-Day 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].


 


310





















 


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 $625,000,000 364-Day 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 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);
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


 


311





















 


Administrative
Agent in accordance with subsection 10.5(f) of the Credit Agreement at least 5
Business Days prior to the due date of any payment to the Loan Assignee, the
Loan Assignee hereby instructs the Administrative Agent to pay all such amounts
payable to it pursuant to the provision of subparagraph (a) of this paragraph 2
in accordance with such payment instructions. 
If Item 6 of Schedule I hereto does not contain payment instructions for
the Loan Assignee (or a copy hereof is not delivered to the Administrative
Agent as aforesaid), the Assignor Bank and the Loan Assignee agree that, notwithstanding
the provisions of subparagraph (a) of this paragraph 2, the Assignor Bank is
hereby appointed by the Loan Assignee as its collection agent to receive from
the Administrative Agent, for and on behalf of and for the account of the Loan
Assignee, all amounts payable to or for the account of the Loan Assignee under
the Loan; the Assignor Bank will immediately pay over to the Loan Assignee any
such amounts received by it, in like funds as received.


 


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


 


4.             By executing and delivering this
Loan Assignment, the Assignor Bank and the Loan Assignee confirm to and agree
with each other and the Administrative Agent and the Banks as follows:  (i) other than the representation and
warranty that it is the legal and beneficial owner of the interest being
assigned hereby free and clear of any adverse claim, the Assignor Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other instrument or document furnished pursuant thereto
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (ii) the Assignor Bank makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Company or the Capital Corporation or the performance or observance by the
Company or the Capital Corporation of any of its obligations under the Credit
Agreement or any other instrument or document furnished pursuant thereto; (iii)
the Loan Assignee confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements referred to in subsection 3.1
of the Credit Agreement (unless financial statements referred to in subsection
5.1(a) of the Credit Agreement have become available), the financial statements
delivered 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


 


312





















 


Capital
Corporation]) that under applicable law and treaties no taxes will be required
to be withheld by the Administrative Agent, [the Company] [the Capital
Corporation] or the Assignor Bank with respect to any payments to be made to
the Loan Assignee in respect of the Loan, (ii) will furnish to the Assignor
Bank, the Administrative Agent and [the Company] [the Capital Corporation], on
or prior to the Transfer Effective Date, a letter in duplicate in the form of
Exhibit J or Exhibit K, as appropriate, to the Credit Agreement and two duly
completed copies of either U.S. Internal Revenue Service Form 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.


 


313





















 


	
   

  	
   

  	
   

  	
   

  	
  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:

  b.             Principal Amount of Loan:

  	
   

  	
  [ Bid Loan
  or Negotiated Rate Loan]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 6

  	
   

  	
  (Payment
  Instructions):

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 7

  	
   

  	
  (Signatures):

  	
   

  	
   

  
						



 


	
   

  	
   

  	
  , as

  
	
   

  	
  Assignor
  Bank

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  , as

  
	
   

  	
  Loan
  Assignee

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
						



 


ACCEPTED FOR
RECORDATION


   IN
REGISTER:


 


JPMORGAN CHASE
BANK, N.A., as

Administrative Agent


 


	
  By:

  	
   

  	
   

  
	
  Title:

  



 


314





















 


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 $625,000,000 364-Day 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


 


315





















 


Bank’s
Purchased Percentage of the Commitments and the presently outstanding Committed
Rate Loans and other amounts owing to the Transferor Bank under the Credit
Agreement (other than any Bid Loans and Negotiated Rate Loans owing to the
Transferor Bank) together with all instruments, documents and collateral
security pertaining thereto.


 


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


 


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


 


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


 


316





















 


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


 


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


 


317





















 


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.


 


318





















 


	
   

  	
  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:

  	
   

  
										



 


319





















 


	
  [CONSENTED
  TO AND ACKNOWLEDGED:

  
	
  DEERE &
  COMPANY

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Title:

  
	
   

  
	
  JOHN DEERE
  CAPITAL CORPORATION

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Title:](1)

  
	
   

  
	
  ACCEPTED FOR
  RECORDATION

  
	
    IN
  REGISTER:

  
	
   

  
	
  JPMORGAN
  CHASE BANK, N.A., as Administrative

  
	
    Agent

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Title:

  



 


 










(1)                  To the extent
such consent is required by Section 10.5 of the Credit Agreement.


 


320





















 


	
   

  	
  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:

  	
   

  	
   

  	
   

  	
   

  	
   

  
										



 


321





















 


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 $625,000,000 364-Day
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.


 


322





















 


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.


 


323





















 


Very truly yours,


 


 


James R. Jenkins


 


324





















 


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 $625,000,000 364-Day
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:


 


325





















 


(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.


 


326





















 


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


 


327





















 


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


 


328





















 


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 $625,000,000 364-Day 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 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:

  
					



 


329





















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
364-Day Credit Agreement 

dated as of February 15, 2005 with Deere & 

Company and John Deere Capital Corporation


 


Ladies and
Gentlemen:


 


In
connection with the $625,000,000 364-Day 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.


 


330





















 


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


 


331





















 


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
364-Day Credit Agreement

dated as of February 15, 2005 with Deere & 

Company and John Deere Capital Corporation


 


Ladies and
Gentlemen:


 


In connection
with the above $625,000,000 364-Day 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.


 


332





















 


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


 


333





















 


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 $625,000,000 364-Day 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

  	
   

  	
   

  
				



 


334





















 


	
  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 Bank shall on and as of the date hereof be $        **.  In connection


 










*              As appropriate for New or Existing Banks.


 


**           Insert amount equal
to sum of New Bank’s existing Commitment, if any, plus New Bank’s Percentage of
Cancelled Commitments.


 


335





















 


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


 










***                           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.


 


336





















 


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.


 


337





















 


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:

  	
   

  



 


338





















 


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 $625,000,000 364-Day 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:

  	
   

  



 


339





















 


EXHIBIT N


 


FORM OF

NEW BANK SUPPLEMENT


 


SUPPLEMENT,
dated                  ,
to the $625,000,000 364-Day 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:


 


1.             The undersigned agrees to be bound
by the provisions of the Credit Agreement and agrees that it shall, on the date
this Supplement is accepted by the Borrowers and the Administrative Agent,
become a Bank for all purposes of the Credit Agreement to the same extent as if
originally a party thereto, with a Commitment of $                             .


 


2.             The undersigned (a) represents and
warrants that it is legally authorized to enter into this Supplement; (b) confirms
that it has received a copy of the Credit Agreement, together with copies of
the financial statements delivered pursuant to Section 5.1 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Supplement; (c) agrees that it
has made and will, independently and without reliance upon any Agent 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


 


340





















 


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


 


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


 


	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  
					



 


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


 


	
   

  	
  [NAME OF NEW
  BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  
	
  Accepted
  this            day of

  
	
                                 ,
  200    

  
	
   

  
	
  DEERE &
  COMPANY

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Title:

  
	
   

  
	
   

  
	
  JOHN DEERE
  CAPITAL CORPORATION

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Title:

  
								



 


341





















 


	
  Accepted
  this              
  day of

  
	
                                   ,
  200    

  
	
   

  
	
   

  
	
  JPMORGAN
  CHASE BANK, N.A.,

  
	
    as
  Administrative Agent

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Title:

  



 


342





















 


EXHIBIT O


 


FORM OF

COMMITMENT INCREASE SUPPLEMENT


 


SUPPLEMENT,
dated              
200   , to the $625,000,000 364-Day 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 $                      .


 


343





















 


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


 


	
   

  	
  [NAME OF
  BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  
	
  Accepted
  this            day of

  
	
                                 ,
  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:

  	
   

  
										



 


344