Exhibit 4.1


 


EXECUTION COPY


 




 





 


DEERE & COMPANY


 


JOHN DEERE CAPITAL CORPORATION


 










 


$3,000,000,000


 


FIVE-YEAR


CREDIT AGREEMENT


 


Dated as of February 14,
2006


 










 


JPMORGAN CHASE BANK, N.A.,


as Administrative Agent


 


CITIBANK, N.A.,


as a Documentation Agent


 


CREDIT SUISSE


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




 





 

















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.

  	
  DEFINITIONS

  	
  1

  
	
  1.1

  	
  Defined
  Terms

  	
  1

  
	
  1.2

  	
  Other
  Definitional Provisions

  	
  14

  
	
  1.3

  	
  Currency
  Conversion.

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

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

  	
  15

  
	
  2.1

  	
  The
  Committed Rate Loans

  	
  15

  
	
  2.2

  	
  The
  Bid Loans; the Negotiated Rate Loans

  	
  16

  
	
  2.3

  	
  Loan
  Accounts

  	
  19

  
	
  2.4

  	
  Fees

  	
  19

  
	
  2.5

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

  	
  20

  
	
  2.6

  	
  Prepayments

  	
  21

  
	
  2.7

  	
  Minimum
  Amount of Certain Loans

  	
  21

  
	
  2.8

  	
  Committed
  Rate Loan Interest Rate and Payment Dates

  	
  22

  
	
  2.9

  	
  Conversion
  and Continuation Options

  	
  22

  
	
  2.10

  	
  Computation
  of Interest and Fees

  	
  22

  
	
  2.11

  	
  Inability
  to Determine Interest Rate

  	
  23

  
	
  2.12

  	
  Pro
  Rata Treatment and Payments

  	
  24

  
	
  2.13

  	
  Requirements
  of Law

  	
  26

  
	
  2.14

  	
  Indemnity

  	
  30

  
	
  2.15

  	
  Non-Receipt
  of Funds by the Administrative Agent

  	
  30

  
	
  2.16

  	
  Extension
  of Termination Date

  	
  31

  
	
  2.17

  	
  Foreign
  Taxes

  	
  32

  
	
  2.18

  	
  Confirmations

  	
  33

  
	
  2.19

  	
  Replacement
  of Cancelled Banks

  	
  34

  
	
  2.20

  	
  Commitment
  Increases

  	
  34

  
	
  2.21

  	
  Judgement
  Currency

  	
  36

  
	
  2.22

  	
  Foreign
  Currency Exchange Rate

  	
  36

  
	
  2.23

  	
  Letters
  of Credit

  	
  36

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  39

  
	
  3.1

  	
  Financial
  Condition

  	
  39

  
	
  3.2

  	
  Corporate
  Existence

  	
  39

  
	
  3.3

  	
  Corporate
  Power; Authorization; Enforceable Obligations

  	
  39

  
	
  3.4

  	
  No
  Legal Bar

  	
  40

  
	
  3.5

  	
  No
  Material Litigation

  	
  40

  
	
  3.6

  	
  Taxes

  	
  40

  
	
  3.7

  	
  Margin
  Regulations

  	
  40

  
	
  3.8

  	
  [Intentionally
  Omitted]

  	
  40

  
	
  3.9

  	
  [Intentionally
  Omitted]

  	
  40

  
	
  3.10

  	
  Use
  of Proceeds

  	
  40

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  CONDITIONS
  PRECEDENT

  	
  41

  
	
  4.1

  	
  Conditions
  to Initial Extension of Credit

  	
  41

  
	
  4.2

  	
  Conditions
  to All Extensions of Credit

  	
  42

  



 


ii

















 


	
  SECTION 5.

  	
  AFFIRMATIVE
  COVENANTS

  	
  42

  
	
  5.1

  	
  Financial
  Statements

  	
  42

  
	
  5.2

  	
  Certificates;
  Other Information

  	
  43

  
	
  5.3

  	
  Company
  Indenture Documents

  	
  43

  
	
  5.4

  	
  Capital
  Corporation Indenture Documents

  	
  43

  
	
  5.5

  	
  Notice
  of Default

  	
  43

  
	
  5.6

  	
  Ownership
  of Capital Corporation Stock

  	
  44

  
	
  5.7

  	
  Employee
  Benefit Plans

  	
  44

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  NEGATIVE
  COVENANTS OF THE COMPANY

  	
  44

  
	
  6.1

  	
  Company
  May Consolidate, etc., Only on Certain Terms

  	
  44

  
	
  6.2

  	
  Limitation
  on Liens

  	
  44

  
	
  6.3

  	
  Limitations
  on Sale and Lease-back Transactions

  	
  47

  
	
  6.4

  	
  Equipment
  Operations Debt

  	
  47

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  NEGATIVE
  COVENANTS OF THE CAPITAL CORPORATION

  	
  48

  
	
  7.1

  	
  Fixed
  Charges Ratio

  	
  48

  
	
  7.2

  	
  Consolidated
  Senior Debt to Consolidated Capital Base

  	
  48

  
	
  7.3

  	
  Limitation
  on Liens

  	
  48

  
	
  7.4

  	
  Consolidation;
  Merger

  	
  49

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  EVENTS
  OF DEFAULT

  	
  49

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  THE
  AGENTS

  	
  52

  
	
  9.1

  	
  Appointment

  	
  52

  
	
  9.2

  	
  Delegation
  of Duties

  	
  52

  
	
  9.3

  	
  Exculpatory
  Provisions

  	
  52

  
	
  9.4

  	
  Reliance
  by Agents

  	
  52

  
	
  9.5

  	
  Notice
  of Default

  	
  53

  
	
  9.6

  	
  Non-Reliance
  on Agents and Other Banks

  	
  53

  
	
  9.7

  	
  Indemnification

  	
  53

  
	
  9.8

  	
  Agents
  in their Individual Capacities

  	
  54

  
	
  9.9

  	
  Successor
  Agents

  	
  54

  
	
   

  	
   

  	
   

  
	
  SECTION 10.

  	
  MISCELLANEOUS

  	
  54

  
	
  10.1

  	
  Amendments
  and Waivers

  	
  54

  
	
  10.2

  	
  Notices

  	
  55

  
	
  10.3

  	
  No
  Waiver; Cumulative Remedies

  	
  56

  
	
  10.4

  	
  Payment
  of Expenses

  	
  56

  
	
  10.5

  	
  Successors
  and Assigns; Participations; Purchasing Banks

  	
  58

  
	
  10.6

  	
  Adjustments

  	
  61

  
	
  10.7

  	
  Confidentiality

  	
  62

  
	
  10.8

  	
  Counterparts

  	
  62

  
	
  10.9

  	
  GOVERNING
  LAW

  	
  62

  
	
  10.10

  	
  Consent
  to Jurisdiction and Service of Process

  	
  62

  
	
  10.11

  	
  USA
  Patriot Act.

  	
  63

  



 


iii

















 


	
  SCHEDULES:

  	
   

  
	
   

  	
   

  
	
  Schedule I

  	
  Terms of Subordination

  
	
  Schedule II

  	
  Commitments

  
	
  Schedule III

  	
  Mandatory Costs

  
	
   

  	
   

  
	
  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

  
	
  Exhibit P

  	
  Form of
  Letter of Credit Application

  



 


iv

















 


CREDIT AGREEMENT, dated as
of February 14, 2006, 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, 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
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.  It is understood that matters concerning the
Foreign Currency Loans will be administered by the Foreign Currency Agent as
agent for the Administrative Agent.


 


“Administrative
Questionnaire”:  an Administrative
Questionnaire in a form supplied by the Administrative Agent.


 


“Affected Foreign
Currency”: as defined in subsection 2.11(a).


 

















 


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


 


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


 


“Agreement Currency”:  as defined in subsection 2.21(b).


 


“Applicable Creditor”:  as defined in subsection 2.21(b).


 


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


 


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


 


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


 


	
  Greater than or

  equal to A+/A1

  	
   

  	
  A/A2

  	
   

  	
  A-/A3

  	
   

  	
  BBB+/Baa1

  	
   

  	
  BBB/Baa2

  	
   

  	
  Lower than

  BBB/Baa2

  	
   

  
	
  0.150

  	
  %

  	
  0.165

  	
  %

  	
  0.180

  	
  %

  	
  0.270

  	
  %

  	
  0.400

  	
  %

  	
  0.600

  	
  %

  



 


“Application”:  an application, in the form of Exhibit P,
requesting the Issuing Bank to open a Letter of Credit.


 


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


 


“Australian Dollars”:  the lawful currency of Australia.


 


“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.


 


2

















 


“Bid Loan Offer”:  each offer by a Bid Loan Bank to make Bid
Loans pursuant to a Bid Loan Request, which Bid Loan Offer shall contain the
information specified in Exhibit C and shall be delivered to the
Administrative Agent by facsimile transmission or by telephone, immediately
confirmed by facsimile transmission.


 


“Bid Loan Request”:  each request by a Borrower for Bid Loan Banks
to submit bids to make Bid Loans, which shall contain the information in
respect of such requested Bid Loans specified in Exhibit B and shall be
delivered to the Administrative Agent by facsimile transmission or by
telephone, immediately confirmed by facsimile transmission.


 


“Board”: the Board of
Governors of the Federal Reserve System of the United States (or any
successor).


 


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


 


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


 


“Business Day”:  a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by
law to close; provided, that (a) with respect to notices and
determinations in connection with, and payments of principal and interest on,
Eurocurrency Loans, such day is also a day for trading by and between banks in
Dollar deposits in the interbank eurocurrency market in London, (b) when
used in connection with a Foreign Currency Loan, the term “Business Day” shall
also exclude any day on which commercial banks in London are authorized or
required by law to close and (c) when used in connection with Eurocurrency
Loans denominated in Euros, the term “Business Day” shall also exclude any day
on which the Trans-European Automated Real-Time Gross Settlement Express
Transfer System (TARGET) (or, if such clearing system ceases to be operative,
such other clearing system (if any) determined by the Foreign Currency Agent to
be a suitable replacement) is not open for settlement of payment in Euros.


 


“Calculation Date”:  with respect to each Foreign Currency, the
last day of each calendar quarter (or, if such day is not a Business Day, the
next succeeding Business Day) and such other days from time to time as the
Administrative Agent shall reasonably designate as a “Calculation Date”; provided,
that the fourth Business Day preceding each Borrowing Date with respect to, and
preceding each date of any continuation of, any Foreign Currency Loan shall
also be a “Calculation Date” with respect to the relevant Foreign Currency.


 


“Canadian Dollars”:
the lawful currency of Canada.


 


“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.


 


3

















 


“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 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 or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such Bank’s
Extensions of Credit then outstanding constitutes of the aggregate principal
amount of the Total Extensions of Credit then outstanding; collectively, as to
all the Banks, the “Commitment Percentages”.


 


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


 


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


 


“Committed Extensions of
Credit”: as to any Bank at any time, the amount equal to the sum of the
Dollar Equivalent of (a) the aggregate principal amount of all Committed
Rate Loans held by such Bank then outstanding and (b) such Bank’s
Commitment Percentage multiplied by the L/C Obligations then outstanding.


 


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


 


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


 


“Company”:  as defined in the preamble hereto.


 


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


 


4

















 


amounts referred to in
clauses (a) and (b) is determined in accordance with GAAP.  Notwithstanding the foregoing, for purposes
of determining compliance with subsection 7.2, adjustments resulting from
any accumulated other comprehensive income as reflected on the most recent
publicly available consolidated balance sheet of the Capital Corporation and its
consolidated Subsidiaries as at the end of any fiscal quarter of the Capital
Corporation and its consolidated Subsidiaries (including the last quarter of
any fiscal year of the Capital Corporation and its consolidated Subsidiaries)
shall be deemed not to be included in Consolidated Capital Base.


 


“Consolidated Net Worth”:  as defined in subsection 6.2(b)(ii).


 


“Consolidated Senior Debt”:  at a particular time for the Capital
Corporation and its consolidated Subsidiaries, indebtedness for borrowed money
other than any indebtedness for borrowed money that is subordinated, on terms
no less favorable to the Administrative Agent and the Banks than the terms of
subordination set forth on Schedule I, to the indebtedness which may be
incurred hereunder by the Capital Corporation, provided that the amount
of such indebtedness for borrowed money (other than such subordinated
indebtedness) as at the end of a fiscal quarter of the Capital Corporation and
its consolidated Subsidiaries (including the last quarter of a fiscal year of
the Capital Corporation and its consolidated Subsidiaries) shall be determined
by reference to the publicly available consolidated balance sheet of the
Capital Corporation and its consolidated Subsidiaries as at the end of such
fiscal quarter and after such adjustments, if any, as may be required so that
such amount is determined in accordance with GAAP.  Notwithstanding the foregoing, for purposes
of determining compliance with subsection 7.2, indebtedness for borrowed
money in respect of any Securitization Indebtedness shall be deemed not
included in Consolidated Senior Debt.


 


“Contractual Obligation”:  as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking
to which such Person is a party or by which it or any of its property is bound.


 


“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.


 


“Currency”: any
Dollars and any Foreign Currency.


 


“Deal Year”:  as defined in subsection 2.16(c).


 


“Debt”:  as defined in subsection 6.2.


 


“Default”:  any of the events specified in Section 8,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, event or act has been satisfied.


 


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


 


“Dollar Equivalent”:  at any time as to any amount denominated in a
Foreign Currency, the equivalent amount in Dollars as reasonably determined by
the Administrative Agent at such time on the basis of the Exchange Rate for the
purchase of Dollars with such Foreign Currency on the most recent Calculation
Date for such Foreign Currency.


 


“Dollar Loan”: any
Committed Rate Loan denominated in Dollars.


 


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


 


5

















 


“EMU”:  the Economic and Monetary Union as
contemplated in the Treaty.


 


“EMU Legislation”:
the legislative measures of the European Council (including the European
Council regulations) for the introduction of, changeover to or operation of the
Euro in one or more member states.


 


“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.


 


“Euro”:  the single currency of Participating Member
States of the EMU introduced in accordance with the provisions of Article 123
of the Treaty and, in respect of all payments to be made under this Agreement
in Euro, means immediately available, freely transferable funds in such
currency.


 


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


 


“Eurocurrency Rate”:  with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan and for each Index Rate Bid Loan, the
rate per annum determined on the basis of the rate for deposits in Dollars or
the relevant Foreign Currency, as the case may be, for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing
on Page 3740 or 3750 (or other relevant page) of the Telerate system as of
11:00 A.M., Local Time, two Business Days prior to the beginning of such
Interest Period (or, in the case of any Eurocurrency Loan denominated in Pounds
Sterling, on the first day of such Interest Period); provided that, in
the case of any Eurocurrency Loan denominated in Pounds Sterling, such rate
shall be increased to provide for the Mandatory Cost.  In the event that such rate does not appear
on Page 3740 or 3750 of the Telerate system (or otherwise on such system),
the “Eurocurrency Rate” shall be determined by reference to such other
comparable publicly available service for displaying eurocurrency rates as may
be reasonably selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is
offered Dollar or the relevant Foreign Currency, as the case may be, deposits
at or about 11:00 A.M., Local Time, two Business Days prior to the
beginning of such Interest Period (or, in the case of a Eurocurrency Loan in
Pounds Sterling, on the first day of such Interest Period) in the interbank
eurocurrency market where its eurocurrency, foreign currency and exchange
operations are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein; provided that,
in the case of any Eurocurrency Loan denominated in Pounds Sterling, such rate
shall be increased to provide for the Mandatory Costs as determined by the
Administrative Agent in accordance with its normal practices.


 


6

















 


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


 


“Exchange Rate”:  on any day, the rate at which the starting
Currency may be exchanged into the other relevant Currency, as set forth at
approximately 10:00 A.M., Local Time, on such date on the Reuters World
Spots page for such starting Currency. 
In the event that such rate does not appear on any Reuters World Spots
page, the Exchange Rate shall be determined by reference to such other publicly
available service for displaying exchange rates reasonably selected by the
Administrative Agent.


 


“Exposure”:  (a) with respect to an Objecting Bank at
any time, the aggregate amount of such Bank’s Extensions of Credit then
outstanding and (b) with respect to any other Bank at any time, the
Commitment of such Bank then in effect or, if the Commitments have been
terminated, the amount of such Bank’s Extensions of Credit then outstanding.


 


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


 


“Extensions of Credit”:  as to any Bank at any time, the amount equal
to the sum of the Dollar Equivalent of (a) the aggregate principal amount
of all Loans held by such Bank then outstanding and (b) such Bank’s
Commitment Percentage multiplied by the L/C Obligations then outstanding.


 


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


 


	
  Greater than or

  equal to A+/A1

  	
   

  	
  A/A2

  	
   

  	
  A-/A3

  	
   

  	
  BBB+/Baa1

  	
   

  	
  BBB/Baa2

  	
   

  	
  Lower than

  BBB/Baa2

  	
   

  
	
  0.050

  	
  %

  	
  0.060

  	
  %

  	
  0.070

  	
  %

  	
  0.080

  	
  %

  	
  0.100

  	
  %

  	
  0.150

  	
  %

  



 


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


 


“Fixed Charges”:  for any particular period for the Capital
Corporation and its consolidated Subsidiaries, all of the Capital Corporation’s
and its consolidated Subsidiaries’ consolidated interest on indebtedness for
borrowed money, amortization of discounts of indebtedness for borrowed money,
the portion of rentals under financing leases deemed to represent interest and
rentals under operating leases; provided, that, notwithstanding the
foregoing, consolidated interest on Securitization Indebtedness and
amortization of Securitization Indebtedness shall be deemed not included in
Fixed Charges; provided, further, that such amounts (but not any
amounts constituting consolidated interest on, or amortization of,
Securitization Indebtedness) for a fiscal quarter of the Capital Corporation
and its consolidated Subsidiaries (including the last quarter of a fiscal year
of the Capital Corporation and its consolidated Subsidiaries) shall be
determined by reference to the publicly available consolidated statement of
income of the Capital Corporation and its consolidated Subsidiaries for or
covering such fiscal quarter and after such adjustments, if any, as may be
required so that such amounts are determined in accordance with GAAP.


 


“Foreign Currency”:  Euros, Pounds Sterling, Australian Dollars,
Canadian Dollars, New Zealand Dollars and, as agreed by the Administrative
Agent, any other Currency which is freely traded and convertible into Dollars
in the London interbank market and for which the Dollar Equivalent thereof can
be calculated from time to time.


 


7

















 


“Foreign Currency Agent”:  J.P. Morgan Europe Limited, or any successor
appointed pursuant to this Agreement.


 


“Foreign Currency Loan”:  each Loan denominated in a Foreign Currency.


 


“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, 2005.


 


“Governmental Authority”:  any nation or government, any state or other
political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.


 


“Hedging Transaction”:  any swap transaction, interest rate
protection agreement (including any interest rate swap, interest “cap” or “collar”
or any other interest rate hedging device entered into by the Capital
Corporation or one or more of its Subsidiaries), option agreement, short or
long position in equity or debt instruments, commodities, futures and forward
transactions, outperformance agreement or other similar transaction, agreement
or arrangement entered into by the Capital Corporation or one or more of its
Subsidiaries.


 


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


 


“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 Eurocurrency
Loan is converted to an ABR Loan and (b) as to any Eurocurrency Loan, the
last day of each Interest Period applicable thereto, provided that as to
any Eurocurrency Loan in respect of which a Borrower has selected an Interest
Period of 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 Eurocurrency
Loan, the period commencing on the Borrowing Date, the date any ABR Loan is
converted to a Eurocurrency Loan or the date any Eurocurrency Loan is continued
as a Eurocurrency Loan, as the case may be, with respect to such


 


8

















 


Eurocurrency 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 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 Eurocurrency 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 Eurocurrency 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 Eurocurrency 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 Eurocurrency 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 Eurocurrency 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 denominated in Dollars 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 with
respect to requested Committed Rate Loans denominated in Dollars, such Borrower
shall be deemed to have requested ABR Loans;


 


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


 


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


 


9

















 


“Issuing Bank”: (i) JPMorgan
Chase Bank, N.A., in its capacity as issuer of any Letter of Credit or (ii) any
other Bank that a Borrower may select from time to time that is willing to act
as issuer of Letters of Credit, in its capacity as issuer of any Letter of
Credit.


 


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


 


“Judgment Currency”:  as defined in subsection 2.21.


 


“L/C Commitment”:  $500,000,000.


 


“L/C Obligations”: at
any time, an amount equal to the sum of (a) the aggregate then undrawn and
unexpired amount of the then outstanding Letters of Credit and (b) the
aggregate amount of drawings under Letters of Credit that have not then been
reimbursed pursuant to Section 2.23(e).


 


“L/C Participants”:  the collective reference to all the Banks
(other than, with respect to any Letter of Credit, the Issuing Bank in its
capacity as Issuing Bank).


 


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


 


	
  Greater than or

  equal to A+/A1

  	
   

  	
  A/A2

  	
   

  	
  A-/A3

  	
   

  	
  BBB+/Baa1

  	
   

  	
  BBB/Baa2

  	
   

  	
  Lower than

  BBB/Baa2

  	
   

  
	
  0.200

  	
  %

  	
  0.215

  	
  %

  	
  0.230

  	
  %

  	
  0.370

  	
  %

  	
  0.500

  	
  %

  	
  0.700

  	
  %

  



 


“Letters of Credit”:  as defined in subsection 2.23(a).


 


“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.


 


“Local Time”: means (a) in
the case of Foreign Currency Loans, London time and (b) in all other
cases, New York time.


 


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


 


“Mandatory Costs”:
the percentage rate per annum calculated by the Administrative Agent in
accordance with Schedule III.


 


10

















 


“Margin Stock”:  as defined in Regulation U of the Board.


 


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


 


“Mortgage”:  as defined in subsection 6.2.


 


“Negotiated Rate Loan”:  each Loan made to 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 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).


 


“New Zealand Dollars”:
the lawful currency of New Zealand.


 


“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).


 


“Overnight Rate”: for
any day, (a) with respect to any amount denominated in Dollars, the
Federal Funds rate, as quoted by the Administrative Agent, and (b) with
respect to any amount denominated in a Foreign Currency, at a rate reasonably
determined by the Administrative Agent to be the cost to it of funding such
amounts.


 


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


 


“Participating Member
State”:  any member state of the
European Community that adopts or has adopted the Euro as its lawful currency
in accordance with legislation of the European Community relating to Economic
and Monetary Union.


 


11

















 


“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.


 


“Pounds” or “£”
or “Pounds Sterling”: the lawful currency of the United Kingdom.


 


“Prevailing Rating”:  at any date of determination, the higher of
(x) the Credit Rating of the Company assigned by S&P and (y) the Credit
Rating of the Company assigned by Moody’s.


 


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


 


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


 


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


 


“Reimbursement Obligation”:  the obligation of the Borrowers to reimburse the
Issuing Bank pursuant to Section 2.23(e) for amounts drawn under
Letters of Credit.


 


“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 Extensions of Credit aggregating at least 66-2/3% in principal amount
of the Total Extensions of Credit and (b) at any time after the Commitment
Expiration Date with respect to any Objecting Bank (but prior to the
termination of all the Commitments), “Required Banks” means Banks whose
Exposure aggregates at least 66-2/3% of the aggregate Exposure of all the
Banks.


 


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


 


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


 


“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) does not exceed 25% of the value (determined in accordance with such
Regulation U) of all the assets subject to such restriction.


 


12

















 


“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, Inc.


 


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


 


“Securitization
Indebtedness”:  the aggregate
outstanding indebtedness for borrowed money, owner trust certificates (however
classified) or credit enhancements incurred in connection with transactions
involving (i) the sale, transfer or other disposition of receivables or
leases (retail or wholesale) by the Capital Corporation or any of its
Subsidiaries and (ii) the issuance of commercial paper, medium term notes
or any other form of financing by any structured bankruptcy-remote Subsidiary
of the Capital Corporation or any related conduit lender (such transactions, “Securitizations”),
provided, that the aggregate outstanding credit enhancements in the form of
cash or letter(s) of credit provided by the Capital Corporation or any of its
Subsidiaries (other than any structured bankruptcy-remote Subsidiary) in excess
of 10% of the aggregate outstanding indebtedness for borrowed money and owner
trust certificates (however classified) incurred in connection with such
Securitizations shall not be deemed for the purposes of this Agreement to be
Securitization Indebtedness, but shall be deemed for purposes of Section 7.2
to be Consolidated Senior Debt.


 


“Significant Subsidiary”:  of a Borrower, any Subsidiary of such
Borrower the assets, revenues or net worth of which is, at the time of
determination, equal to or greater than ten percent of the assets, revenues or
net worth, respectively, of such Borrower at such time.


 


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


 


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


 


“Termination Date”:  the fifth anniversary of the Closing Date or
such later date as shall be determined pursuant to the provisions of subsection 2.16
with respect to non-Objecting Banks.


 


“Total Commitments”:
at any time, the aggregate amount of the Commitments then in effect.


 


“Total Extensions of
Credit”: at any time, the aggregate amount of the Extensions of Credit of
the Banks outstanding at such time.


 


“Total Stockholders’
Equity”:  at a particular time, the
total stockholders’ equity, exclusive of adjustments resulting from any
accumulated other comprehensive income of the Company


 


13

















 


and its consolidated
Subsidiaries as at the end of any fiscal quarter (including the last quarter of
any fiscal year) as determined in accordance with GAAP.


 


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


 


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


 


“Treaty”:  the Treaty establishing the European Economic
Community, being the Treaty of Rome of March 25, 1957, as amended by the
Single European Act 1987, the Maastricht Treaty (which was signed at Maastricht
on February 7, 1992 and came into force on November 1, 1993), the
Amsterdam Treaty (which was signed at Amsterdam on October 2, 1997 and
came into force on May 1, 1999) and the Nice Treaty (which was signed on February 26,
2001), each as amended from time to time and as referred to in legislative
measures of the European Union for the introduction of, changeover to or
operating of the Euro in one or more member states.


 


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


 


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


 


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


 


	
  Greater than or

  equal to A+/A1

  	
   

  	
  A/A2

  	
   

  	
  A-/A3

  	
   

  	
  BBB+/Baa1

  	
   

  	
  BBB/Baa2

  	
   

  	
  Lower than

  BBB/Baa2

  	
   

  
	
  0.050

  	
  %

  	
  0.050

  	
  %

  	
  0.050

  	
  %

  	
  0.100

  	
  %

  	
  0.100

  	
  %

  	
  0.100

  	
  %

  



 


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


 


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


 


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


 


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


 


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


 


14

















 


(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.


 


1.3           Currency
Conversion.


 


(a)           If more than one currency or currency unit are at the same
time recognized by the central bank of any country as the lawful currency of
that country, then (i) any reference in the Agreement to, and any
obligations arising under the Agreement in, the general currency of that
country (as opposed to a reference to a specific country) shall be translated
into or paid in the currency or currency unit of that country designated by the
Administrative Agent (with the Borrowers’ consent, which shall not unreasonably
be withheld) and (ii) any such translation from one currency or currency
unit to another of any country shall be at the official rate of exchange
recognized by the central bank for conversion of that currency or currency unit
into the other, rounded up or down, as applicable, at least to the fifth
decimal place.


 


(b)           If a change in any currency of a country occurs, this
Agreement shall be amended (and each party hereto agrees to enter into any
supplemental agreement necessary to effect any such amendment) to the extent
that the Administrative Agent determines (with the Borrowers’ consent, which
shall not unreasonably be withheld) such amendment to be necessary to reflect
the change in currency and to put the Bank in the same position, so far as
possible, that they would have been in if no change in currency had occurred.


 


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 in Dollars or in any Foreign Currency from time to time; provided
that (i) after giving effect thereto, such Bank’s Committed Extensions of
Credit then outstanding do not exceed the amount of such Bank’s Commitment and (ii) the
Total Extensions of Credit then outstanding do not exceed the Total
Commitments.  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) Eurocurrency
Loans denominated in Dollars or any Foreign Currency, (ii) ABR Loans
denominated in Dollars or (iii) a combination thereof as determined by the
relevant Borrower; provided that the Foreign Currency Loans shall be
Eurocurrency Loans.


 


(c)           Either Borrower may borrow Committed Rate Loans on any
Working Day, if the borrowing is of Eurocurrency 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 Eurocurrency Loans
denominated in Dollars, (ii) prior to 12:00 Noon, Local Time, four Working
Days prior to the requested Borrowing Date, in the case of Foreign Currency
Loans and (iii) prior to 12:00 Noon, New York City time, on the requested
Borrowing Date, in the case of ABR Loans. 
Each such notice shall be given in writing or by facsimile transmission
substantially in the form of Exhibit A (with appropriate insertions) or
shall be given by telephone (specifying the information set forth in Exhibit A)
promptly confirmed by notice given in writing or by facsimile transmission
substantially in the form of Exhibit A (with appropriate insertions).  On the day of receipt of any such notice from
either Borrower,


 


15

















 


the Administrative Agent (or Foreign Currency
Agent) shall promptly notify each Bank thereof. 
Each Bank will make the amount of its share of each borrowing available
to the Administrative Agent in the applicable Currency 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), Local Time, on the Borrowing Date
requested by such Borrower in funds immediately available to the Administrative
Agent as the Administrative Agent may direct. 
The proceeds of all such Committed Rate Loans will be made available
promptly to such Borrower by the Administrative Agent at the office of the
Administrative Agent specified in subsection 10.2 by crediting the account
of such Borrower on the books of such office of the Administrative Agent with
the aggregate of the amount made available to the Administrative Agent by the
Banks and in like funds as received by the Administrative Agent.


 


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


 


2.2           The Bid Loans;
the Negotiated Rate Loans.  (a) 
Either Borrower may borrow Bid Loans or Negotiated Rate Loans denominated in
Dollars 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 Dollar Equivalent of the aggregate principal amount of
Loans and L/C Obligations at any time outstanding shall not exceed the
aggregate amount of the Commitments at such time.  Notwithstanding any other provision of this
Agreement, the aggregate principal amount of the outstanding Bid Loans and/or
Negotiated Rate Loans made by any Bank may at any time (but shall not be
required to) exceed the Commitment of such Bank so long as the Dollar
Equivalent of the aggregate outstanding principal amount of all Loans and L/C
Obligations 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 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


 


16

















 


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 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


 


17

















 


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 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.


 


18

















 


(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 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, Negotiated 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


 


19

















 


year and on the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein, commencing in April, 2006.


 


(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 the
applicable Utilization Fee Rate on the daily amount of such Bank’s outstanding
Committed Rate Loans for each day on which the Utilization Percentage exceeds
50%.  Such Utilization Fees shall be
payable quarterly in arrears on the first Business Day of each of January,
April, July and October of each year and on the Termination Date or
such earlier date on which the Commitments shall terminate as provided herein,
commencing in April, 2006.


 


(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 December 2, 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 and
reduction of the L/C Obligations hereunder, together with accrued interest on
the amount so prepaid to the date of such prepayment, to the extent, if any,
that the Dollar Equivalent of the aggregate outstanding principal amount of all
Loans and L/C Obligations exceeds the amount of the Commitments as then reduced
and (ii) any such termination of the Commitments shall be accompanied by
prepayment in full of the Loans then outstanding hereunder in accordance with
subsection 2.6 and payment of all L/C Obligations (whether or not matured)
together with accrued fees and interest thereon, and any termination of a Bank’s
Commitment pursuant to subsection 2.13, 2.16 or 2.17 shall, with respect
to each affected Loan, on the last day of the applicable Interest Period
therefor or, if earlier, on such earlier date as shall be notified by the
Borrowers, be accompanied by prepayment in full of such Loan, together with, in
each case, accrued interest thereon to the date of such prepayment, the payment
of any Reimbursement Obligation owed to such Bank or unpaid facility fee then
accrued hereunder, the payment of any Letter of Credit interest and fees then
accrued hereunder, and the payment of any amounts then payable pursuant to
subsections 2.13, 2.14, 2.15 and 2.17. 
Upon receipt of such notice from the Borrowers the Administrative Agent
shall promptly notify each Bank thereof. 
Any reduction of the Commitments pursuant to this subsection 2.5
shall be in an amount not less than $25,000,000, and shall be an amount which
is a whole multiple of $5,000,000, and shall reduce permanently the amount of
the Commitments then in effect.


 


(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
all L/C Obligations arising in connection with Letters of Credit issued for the
account of Capital Corporation, together with the accrued interest and fees
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


 


20

















 


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, 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           Prepayments.  (a)  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 (by 11:00 A.M. Local
Time), in the case of Eurocurrency Loans, or same day 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 Eurocurrency
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 (or comparable amounts
reasonably determined by the Administrative Agent in the case of Foreign
Currency Loans); 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 (or comparable amounts
reasonably determined by the Administrative Agent in the case of Foreign
Currency Loans).  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.


 


(b)           If, on any Calculation Date, the Total Extensions of Credit
outstanding on such date exceed the Total Commitments, on such date, the
Borrowers shall, without notice or demand, within five Business Days (i) repay
Loans and reduce L/C Obligations in an aggregate principal amount such that,
after giving effect thereto, the Total Extensions of Credit shall be equal to
or less than the Total Commitments and (ii) pay interest and fees accrued
to the date of such payment, prepayment or reduction on the principal so
prepaid or reduced and any amounts payable under Section 2.14 in
connection therewith.


 


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(a), 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 (or
comparable amounts reasonably determined by the Administrative Agent in the
case of Foreign Currency Loans) and (b) the aggregate principal amount of
Committed Rate Loans of any Type with the same Interest Period shall not be
less than $10,000,000 or a whole multiple of $1,000,000 in excess thereof (or
comparable amounts reasonably determined by the Administrative Agent in the
case of Foreign Currency Loans).


 


21

















 


2.8           Committed Rate
Loan Interest Rate and Payment Dates. 
(a)  The Eurocurrency 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 Eurocurrency 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 or Reimbursement
Obligations shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise) such overdue principal amount of such Committed Rate
Loan and Reimbursement Obligations (i) shall bear interest at a rate per
annum which is 1% above the rate which would otherwise be applicable pursuant
to subsection 2.8(a) or (b) as the case may be, from the date
when such principal amount is due until the date on which such amount is paid
in full and (ii) shall, if such Committed Rate Loan is a Eurocurrency Loan
denominated in Dollars, be converted to an ABR Loan at the end of the Interest
Period applicable thereto.


 


(d)           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
denominated in Dollars of one Type into Committed Rate Loans denominated in
Dollars 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
Eurocurrency Loans may only be made on the last day of an Interest Period with
respect thereto.  Any such notice of
conversion to Eurocurrency 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 Eurocurrency Loans and ABR Loans denominated in Dollars may
be converted as provided herein, provided that no Loan may be converted into a
Eurocurrency Loan after the date that is one month prior to (i) in the
case of a Loan made by an Objecting Bank, such Objecting Bank’s Commitment
Expiration Date, and (ii) in the case of all Loans, the Termination Date.


 


(b)           Any Eurocurrency
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 or the Foreign Currency Agent, as the case may be, 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 Eurocurrency 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
Eurocurrency Loan denominated in Dollars may be continued as such after the
date that is one month prior to (i) in the case of a Loan made by an
Objecting Bank, such Objecting Bank’s Commitment Expiration Date, and (ii) in
the case of all Loans, the Termination Date. 
Upon receipt of any such notice, the Administrative Agent or the Foreign
Currency Agent, as the case may be, 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 Eurocurrency Loans,
Bid Loans and ABR Loans based upon clause (b) of the definition of ABR and
Letter of Credit Fees 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), provided,


 


22

















 


that interest in respect of Foreign Currency Loans denominated in
Pounds Sterling, shall be calculated on the basis of a 365- (or 366- as the
case may be) day year for actual days elapsed. The Administrative Agent shall
promptly notify the Borrowers and the Banks of each determination of a
Eurocurrency 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 or the Foreign Currency Agent, as applicable, shall
promptly notify the Borrowers and the Banks of the effective date and the
amount of each such change.


 


(b)           Each determination
of an interest rate by the Administrative Agent or the Foreign Currency Agent,
as applicable, pursuant to any provision of this Agreement shall be conclusive
and binding on the Borrowers and the Banks in the absence of manifest error.


 


2.11         Inability to
Determine Interest Rate.  (a) 
In the event that the Administrative Agent or the Foreign Currency Agent, as
applicable, shall have determined (which determination shall be conclusive and
binding upon the Borrowers) that (i) by reason of circumstances affecting
the interbank eurodollar market generally, adequate and reasonable means do not
exist for ascertaining the Eurocurrency 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 Eurocurrency Loans or (ii) that deposits in
the applicable Currency are not generally available, or cannot be obtained by
the Banks, in the applicable market (any Foreign Currency affected by the
circumstances described in clause (i) or (ii) is referred to as an “Affected
Foreign Currency”), the Administrative Agent or the Foreign Currency Agent,
as applicable, 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 Eurocurrency Loans.  If such notice
is given, such Borrower may (A) 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 denominated in Dollars be made as, continued as
or converted into, as the case may be, ABR Loans, (B) request that any
outstanding Foreign Currency Loans in an Affected Foreign Currency be
converted, on the last day of the then-current Interest Period, to Dollar Loans
at the applicable Exchange Rate or (C) in the case of Loans denominated in
an Affected Foreign Currency requested to be made on the first day of such
Interest Period, withdraw the notice given under subsection 2.1 or 2.9, as
the case may be, by giving telephonic notice to the Administrative Agent or the
Foreign Currency Agent, as applicable, no later than 10:00 A.M. (Local
Time) one Business Day prior to the applicable Borrowing Date, confirmed in
writing no later than one Business Day after such telephonic notice is given; provided
that if the Administrative Agent or the Foreign Currency Agent, as
applicable, does not receive any notice permitted from the relevant Borrower
hereunder, such Borrower shall be deemed to have requested that the affected
Loans be made as, continued as or converted into, as the case may be, ABR Loans
or, in the case of Foreign Currency Loans, shall be deemed to have requested
that the affected Loans be made as, continued as or converted into, as the case
may be, Dollar Loans which are ABR Loans. 
Until the notice given pursuant to the first sentence of this paragraph
has been withdrawn by the Administrative Agent or the Foreign Currency Agent,
as applicable, no further Eurocurrency Loans denominated in Dollars (in the
case of clause (i) above) or in an Affected Foreign Currency shall be made
or continued as such, nor shall the Borrower have the right to convert ABR
Loans to Eurocurrency 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 Eurocurrency Rate for any Interest Period with
respect to a proposed Bid Loan to be made pursuant to an Index Rate Bid Loan
Request, the Administrative Agent shall forthwith give notice of such
determination to the relevant Borrower and the Bid Loan Banks at least two
Business Days prior to the proposed Borrowing Date, and such Bid Loans shall
not be made on such Borrowing Date. 
Until any such notice


 


23

















 


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,
Reimbursement Obligations, 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) and Reimbursement
Obligations at the Administrative Agent’s office specified in subsection 10.2,
in each case in the relevant Currency in which the Loan was made (and in
dollars in the case of Reimbursement Obligations) and in immediately available
funds not later than 11:00 A.M. (Local 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. (Local 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. (Local Time), the Administrative
Agent shall pay to each such Bank on demand an amount equal to the product of (i) the
daily average applicable Overnight Rate, 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 subsections 2.4 and 2.23, second,
to interest then due and owing in respect of the Loans (other than Negotiated
Rate Loans) and Reimbursement Obligations and third, to principal and
Reimbursement Obligations then due and owing hereunder (other than principal
due and owing under Negotiated Rate Loans) and under the Loans (other than
Negotiated Rate Loans) and Reimbursement Obligations.  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


 


24

















 


Loans (other than Negotiated Rate Loans) and
Reimbursement Obligations shall be made for the account of each Bank pro
rata according to the respective amounts of principal, Reimbursement
Obligations 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) and Reimbursement Obligations shall be
applied, first, to such of its Committed Rate Loan borrowings and
Reimbursement Obligations as such Borrower may designate, provided, however,
that if any such payment in respect of Committed Rate Loans 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 and Reimbursement Obligations 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
Eurocurrency Loans and Index Rate Bid Loans) becomes due and payable on a day
other than a Business Day, such payment shall be extended to the next
succeeding Business Day.  If any payment
on a Eurocurrency Loan or Index Rate Bid Loan becomes due and payable on a day
other than a Working Day, the maturity thereof shall be extended to the next
succeeding Working Day unless the result of such extension would be to extend
such payment into another calendar month in which event such payment shall be
made on the immediately preceding Working Day. 
With respect to any extension of the payment of principal pursuant to
this subsection 2.12(c), interest thereon shall be payable at the then
applicable rate during such extension.


 


(d)           Unless the Administrative Agent shall have been notified
in writing by any Bank prior to the date of the Committed Rate Loan, Committed
Rate Loans, Bid Loan or Bid Loans to be made by such Bank (which notice shall
be effective upon receipt) that such Bank will not make its pro  rata
share of the amount of the requested borrowing on such date available to the
Administrative Agent, the Administrative Agent may assume that such Bank has
made such amount available to it on such date and the Administrative Agent may,
in reliance upon such assumption, make available to the relevant Borrower a
corresponding amount.  If a Bank shall
make such amount available to the Administrative Agent on a date after such
Borrowing Date, such Bank shall pay to the Administrative Agent on demand an
amount equal to the product of (i) the daily average applicable Overnight
Rate, times (ii) the amount of such Bank’s pro  rata
share of such borrowing, times (iii) a fraction, the numerator of
which is the number of days that elapse from and including such Borrowing Date
to but excluding the date on which such Bank’s pro  rata share of
such borrowing shall have become immediately available to the Administrative
Agent and the denominator of which is 360. 
A certificate of the Administrative Agent submitted to any Bank with
respect to any amounts owing under this subsection 2.12(d) shall be
conclusive, absent manifest error.  If
such Bank’s pro  rata share is not in fact made available to the
Administrative Agent by such Bank within three Business Days of such Borrowing
Date, the Administrative Agent shall be entitled to recover such amount, on
demand, from the relevant Borrower with interest thereon at the rate equal to
the product of (i) during the period from and including such Borrowing
Date to the Business Day next following the date of such demand, the daily
average applicable Overnight Rate, times a fraction, the numerator of
which is the number of days that elapse from and including such Borrowing Date
to but excluding the Business Day next following the date of such demand and
the denominator of which is 360 and (ii) thereafter, the interest rate or
rates applicable to the Loan or Loans funded by the Administrative Agent on
behalf of such Bank on such Borrowing Date, times a fraction, the
numerator of which is the number of days which elapse from and including the
Business Day next following the date of such


 


25

















 


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 or Letters of Credit under this Agreement or maintaining its Commitment
with respect to Committed Rate Loans or Letters of Credit or making or
maintaining any Eurocurrency Loans or any reduction in any amount receivable by
such Bank in respect of Eurocurrency 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 (excluding for purposes of this subsection 2.13
any such increased costs resulting from (x) Foreign Taxes (as to which subsection 2.17
shall govern) and (y) changes in the basis of taxation of overall net income or
overall gross income by the United States or by the foreign jurisdiction or
state under the laws of which such Bank is organized or has its applicable
lending office or any political subdivision thereof), 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, Letter of Credit Fee,
Utilization Fee, Reimbursement Obligations in respect of Letters of Credit or
other amount payable to such Bank hereunder and/or, upon giving not less than
three Business Days’ notice to any such Bank and the Administrative Agent, to
cancel the whole or part of the Commitment of any such Bank (and upon such
cancellation, such Bank’s participation in any then outstanding undrawn Letters
of Credit shall terminate) (it being understood that any partial cancellation
of the Commitment shall result in a corresponding reduction of such Bank’s
participating interest in respect of Letters of Credit); provided, further,
that such Borrower shall not be obligated to pay any Bank any additional amount
pursuant to this subsection 2.13(a) (A) which constitutes a
present or future income, stamp or other tax, levy, impost, duty, charge, fee,
deduction or withholding referred to in subsection 2.17(a) or (B) as
a result of any law, rule, guideline, regulation, request or directive
regarding capital adequacy 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


 


26

















 


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,
Letter of Credit Fee, Utilization Fee, Reimbursement Obligations in respect of
Letters of Credit 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 (and upon such cancellation, such Bank’s participation in any then
outstanding undrawn Letters of Credit shall terminate) (it being understood
that any partial cancellation of the Commitment shall result in a corresponding
reduction of such Bank’s participating interest in respect of Letters of
Credit) (but only if after giving effect to such cancellation and prepayment
the Total Extensions of Credit do not exceed the Total Commitments).  A certificate of such Bank as to the amount
of such reduction shall set forth in reasonable detail the computation of such
reduction, and shall be binding and conclusive in the absence of manifest
error.  A Bank which demands
indemnification hereunder as a result of a reduction referred to herein shall
deliver the certificate referred to above to the relevant Borrower demanding
indemnification no later than the later of (i) the thirtieth day
immediately following each realization by such Bank of such reduction (and such
certificate shall certify that the amounts set forth therein were realized
within such thirty-day period) and (ii) the thirtieth day immediately
following such Bank’s knowledge of the realization by such Bank of such
reduction (and such certificate shall so certify).


 


(c)           Each Borrower shall pay to each Bank that delivers a
certificate to such Borrower in accordance with the second and third following
sentences such amounts as shall be necessary to reimburse such Bank for the
costs (determined in accordance with the immediately following sentence), if
any, incurred by such Bank, as a result of the application to such Bank during
any period on which there are outstanding Eurocurrency Loans advanced by such
Bank to such Borrower of basic, supplemental, marginal and emergency reserves
under any regulations of the Board 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


 


27

















 


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, Letter of Credit Fee, Utilization Fee, Reimbursement Obligations in
respect of Letters of Credit 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 (and upon such cancellation, such Bank’s participation in any then
outstanding undrawn Letters of Credit shall terminate) (it being understood
that any partial cancellation of the Commitment shall result in a corresponding
reduction of such Bank’s participating interest in respect of Letters of
Credit).  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 Eurocurrency
Loans during such period and in any event shall not exceed the amount
obtainable utilizing the maximum Reserves prescribed by the Board 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 Eurocurrency 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 or such other Governmental Authority
having jurisdiction with respect thereto; provided that the obligation
of the Borrowers to pay any amounts pursuant to this subsection 2.13(c) shall
apply only in the case of those Banks that give to the relevant Borrower and
the Administrative Agent, no later than 3:00 P.M. (Local 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 Eurocurrency 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 Eurocurrency Loan.


 


(d)           If any Governmental Authority of the jurisdiction of any
Foreign Currency (or any other jurisdiction in which the funding operations of
any Bank shall be conducted with respect to such Foreign Currency) shall put
into effect after the date hereof any reserve, liquid asset or similar
requirement with respect to any category of deposits or liabilities customarily
used to fund loans in such Foreign Currency (excluding any Reserves), or by
reference to which interest rates applicable to loans in such Foreign Currency
are determined, and the result of such requirement shall be to increase the
cost to such Bank of making or maintaining any Foreign Currency Loan in such
Foreign Currency, and such Bank shall deliver to the Borrowers a notice
requesting compensation under this paragraph, then the Borrower will pay to
such Bank on each Interest Payment Date with respect to each affected Foreign
Currency Loan an amount that will compensate such Bank for such additional
cost; provided, that the Borrowers shall not be required to compensate a
Bank pursuant to this paragraph for any amounts incurred more than three months
prior to the date that such Banks notifies the Borrowers of such Bank’s


 


28

















 


intention to claim compensation therefor; and
provided  further that, if the circumstances giving rise to such
claim have a retroactive effect, then such three-month period shall be extended
to include the period of such retroactive effect.  Notwithstanding the foregoing, if a Bank
gives to a Borrower the written notice contemplated by the proviso set forth in
the 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, Letter of Credit Fee, Utilization Fee,
Reimbursement Obligations in respect of Letters of Credit 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 (and upon such cancellation, such Bank’s
participation in any then outstanding undrawn Letters of Credit shall
terminate) (it being understood that any partial cancellation of the Commitment
shall result in a corresponding reduction of such Bank’s participating interest
in respect of Letters of Credit).  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 such reserve, liquid asset or similar requirements
in an amount equal to such Bank’s Foreign Currency 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 such reserves
prescribed for such period by such Governmental Authority having jurisdiction
with respect thereto; provided that the obligation of the Borrowers to
pay any amounts pursuant to this subsection 2.13(d) shall apply only
in the case of those Banks that give to the relevant Borrower and the
Administrative Agent, no later than 3:00 P.M. (Local 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 Foreign Currency 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 Foreign
Currency Loan.


 


(e)           Notwithstanding any other provision of this Agreement, if,
(A) the adoption of any law, rule or regulation after the date of
this Agreement, (B) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (C) compliance by any Bank with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement, shall
make it unlawful for any such Bank to make or maintain any Foreign Currency
Loan or to give effect to its obligations as contemplated hereby with respect
to any Foreign Currency Loan, then, by written notice to the Borrowers and to
the Administrative Agent:


 


(i)    such Bank or Banks may
declare that Foreign Currency Loans (in the affected Currency or Currencies)
will not thereafter (for the duration of such unlawfulness) be made by such
Bank or Banks hereunder (or be continued for additional Interest Periods),
whereupon any request for a Foreign Currency Loan (in the affected Currency or
Currencies) or to continue a Foreign Currency Loan (in the affected Currency or
Currencies), as the case may be, for an additional Interest Period) shall, as
to such Bank or Banks only, be of no force and effect, unless such declaration
shall be subsequently withdrawn; and


 


29

















 


(ii)   such Bank may require that
all outstanding Foreign Currency Loans (in the affected Currency or
Currencies), made by it be converted to ABR Loans or Eurocurrency Loans
denominated in Dollars, as the case may be (unless repaid by the Borrowers), in
which event all such Foreign Currency Loans (in the affected Currency or
Currencies) shall be converted to ABR Loans or Eurocurrency Loans denominated
in Dollars, as the case may be, as of the effective date of such notice as
provided in paragraph (f) below and at the Exchange Rate on the date of
such conversion or, at the option of the Borrower, repaid on the last day of
the then current Interest Period with respect thereto or, if earlier, the date
on which the applicable notice becomes effective.


 


In the event any Bank shall
exercise its rights under (i) or (ii) above, all payments and
prepayments of principal that would otherwise have been applied to repay the
converted Foreign Currency Loans of such Bank shall instead be applied to repay
the ABR Loans or Loans denominated in Dollars, as the case may be, made by such
Bank resulting from such conversion.


 


(f)            For purposes of Section 2.16(e), a notice to the
Borrower by any Bank shall be effective as to each Foreign Currency Loan made
by such Bank, if lawful, on the last day of the Interest Period currently
applicable to such Foreign Currency Loan; in all other cases such notice shall
be effective on the date of receipt thereof by the Borrower.


 


(g)           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


 


30

















 


together with interest thereon in respect of each day during the period
commencing on the date such amount was made available to such Bank and ending
on (but excluding) the date such Bank repays such amount to the Administrative
Agent, at a rate per annum equal to the applicable Overnight Rate.  A certificate of the Administrative Agent
submitted to the relevant Bank with respect to any amount owing under this subsection 2.15
shall be conclusive absent manifest error.


 


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


 


(b)           Any Objecting Bank the Commitment of which shall expire
prior to any extended Termination Date shall, subject to subsection 2.16(c),
have its Committed Rate Loans prepaid in full by the applicable Borrower(s) on
such expiration date, together with accrued interest thereon, and shall have
any accrued and unpaid facility fee, Letter of Credit Fee, Utilization Fee,
Reimbursement Obligations in respect of Letters of Credit or other amount
payable to it hereunder paid on the first date to occur following such
expiration date on which the fees referred to in subsection 2.4(a) are
payable to the non-Objecting Banks or, if such fees shall be so payable on such
expiration date, such unpaid facility fee, Letter of Credit Fee and other
amount shall be paid on such expiration date. 
In addition, the participating interest of any Objecting Bank in any
then outstanding undrawn Letters of Credit shall terminate on such expiration
date (it being understood that each Objecting Bank shall remain liable to fund
its participating interest in respect of any Letters of Credit which are drawn
upon by the beneficiary thereof prior to such expiration date).


 


(c)           The Borrowers shall have the right, so long as no Event of
Default has occurred and is then continuing, upon giving notice to the
Administrative Agent and the Objecting Banks in accordance with subsection 2.6,
to prepay in full the Committed Rate Loans of the Objecting Banks, together
with accrued interest thereon, any amounts payable pursuant to subsections
2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility fee, Letter of
Credit Fee, Utilization Fee, Reimbursement Obligations in respect to Letters of
Credit 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
(and upon such cancellation, such Objecting Bank’s participation in any then
outstanding undrawn Letters of Credit shall terminate) (it being understood
that any partial cancellation of the Commitment shall result in a corresponding
reduction of such Objecting Bank’s participating interest in respect of Letters
of Credit) (but only if after giving effect to such


 


31

















 


cancellation or prepayment the Total
Extensions of Credit do not exceed the Total Commitments), provided that
during the period from the Closing Date through February 13, 2007 and,
commencing February 14, 2007, during each one-year period thereafter to
and including the Termination Date (each, a “Deal Year”), the aggregate
Commitments of Banks which are terminated pursuant to this subsection 2.16(c) and
are not replaced during such Deal Year pursuant to subsection 2.19 shall
not exceed 33-1/3% of the aggregate Commitments in effect on the first day of
such Deal Year of Banks which were not Objecting Banks on such first day.


 


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


 


(b)           If a Borrower is required by this subsection 2.17 to
make a payment to or in respect of any Bank, such Borrower shall have the
right, so long as no Event of Default has occurred and is then continuing, upon
giving notice to the Administrative Agent and such Bank in accordance with subsection 2.6,
to prepay in full the Loans of such Bank, together with accrued interest
thereon, any amounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17
and any accrued and unpaid facility fee, Letter of Credit Fee, Utilization Fee,
Reimbursement Obligations in respect to Letters of Credit or other amounts
payable to it hereunder and/or on giving not less than three Business Days’
notice to any such Bank and the Administrative Agent, to cancel the whole or
part of the Commitment of any such Bank (and upon such cancellation, such Bank’s
participation in any then outstanding undrawn Letters of Credit shall
terminate) (it being understood that any partial cancellation of the Commitment
shall result in a corresponding reduction of such Bank’s participating interest
in respect of Letters of Credit) (but only if after giving effect to such
cancellation or prepayment the Total Extensions of Credit do not exceed the
Total Commitments).


 


32

















 


(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
substantially the form of Exhibit J or Exhibit K, as appropriate, and
two duly completed copies of United States Internal Revenue Service Form W-8BEN
or W-8ECI or successor applicable form, as the case may be, certifying in each
case that such Bank is entitled to receive payment under this Agreement without
deduction or withholding of any United States Federal income taxes, and (ii) Internal
Revenue Service Form W-8BEN, or successor applicable form, as the case may
be, to establish an exemption from United States backup withholding tax.  Each Bank (including, without limitation,
each Loan Assignee) agrees (for the benefit of the Administrative Agent and the
Borrowers), to the extent it may lawfully do so, 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 (x) in
the case of a Loan Assignee, the date it becomes party to this Agreement, and
(y) 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; provided, however, that if a Bank is
unable to provide a letter, form, certificate, successor or other document
described in this sentence by reason of a change in the applicable law
occurring after the date on which such letter, form, certificate, successor or
other document originally was required to be provided by such Bank, then such
Bank shall be required to comply with this sentence to the extent permitted
under such applicable law, and any letter, form, certificate, successor or
other document provided in accordance with this proviso shall certify that such
Bank is entitled to receive payments under this Agreement at the lowest rate of
deduction, withholding or backup withholding to which it is entitled under such
applicable law.  The Administrative Agent
shall not be responsible for obtaining such documentation from any Bank other
than JPMorgan Chase Bank, N.A.


 


(d)           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, to the extent it may
lawfully do so, 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


 


33

















 


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


 


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


 


2.20         Commitment
Increases.  (a)  At any time
after the Closing Date, provided that no Event of Default shall have occurred
and be continuing, the Borrowers may request an increase of the aggregate
Commitments by notice to the Administrative Agent in writing of the amount (the
“Offered Increase Amount”) of such proposed increase (such notice, a “Commitment
Increase Notice”).  Any such
Commitment Increase Notice must offer each Bank the opportunity to subscribe
for its pro rata share of the increased Commitments; provided, however, the
Borrowers may, with the consent of the Administrative Agent (which consent
shall not be unreasonably withheld or delayed), without offering to each Bank
the opportunity to subscribe for its pro rata share of the increased Commitments,
offer to any bank or other financial institution that is not an existing Bank
the opportunity to provide a new Commitment pursuant to paragraph (b) below
if the aggregate amount of all Commitments made hereunder pursuant to this
proviso which will be in effect when such new Commitment becomes effective does
not exceed $1,000,000,000 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


 


34

















 


benefits of this Agreement with respect to
the full amount of its Commitment as so increased, and Schedule II shall
be deemed to be amended to so increase the Commitment of such Bank.


 


(d)           The effectiveness of any New Bank Supplement or Commitment
Increase Supplement shall be contingent upon receipt by the Administrative
Agent of such corporate resolutions of the Borrowers and legal opinions of
counsel to the Borrowers as the Administrative Agent shall reasonably request
with respect thereto.


 


(e)           (i)  Except as otherwise provided in subparagraphs (ii) and
(iii) of this paragraph (e), if any bank or financial institution becomes
a New Bank pursuant to subsection 2.20(b) or any Bank’s Commitment is
increased pursuant to subsection 2.20(c), additional Committed Rate Loans
made on or after the date of the effectiveness thereof (the “Re-Allocation
Date”) shall be made in accordance with the pro rata provisions of subsection 2.12(b) based
on the Commitment Percentages in effect on and after such Re-Allocation Date
(except to the extent that any such pro rata borrowings would result in any
Bank making an aggregate principal amount of Committed Rate Loans in excess of
its Commitment, in which case such excess amount will be allocated to, and made
by, the relevant New Banks and Increasing Banks to the extent of, and in
accordance with the pro rata provisions of subsection 2.12(b) based
on, their respective Commitments).  On
each Re-Allocation Date, the Administrative Agent shall deliver such amended Schedule II
and a notice to each Bank of the adjusted Commitment Percentages after giving
effect to any increase in the aggregate Commitments made pursuant to this subsection 2.20
on such Re-Allocation Date.


 


(ii)           In the event that on any such Re-Allocation Date there is
an unpaid principal amount of ABR Loans, the applicable Borrower shall make
prepayments thereof and one or both Borrowers shall make borrowings of ABR
Loans and/or Eurocurrency Loans, as the applicable Borrower shall determine, so
that, after giving effect thereto, the ABR Loans and Eurocurrency 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.  In addition, on each
Re-Allocation Date, participating interests in then outstanding Letters of
Credit shall be adjusted to reflect the new Commitment Percentages.


 


(iii)          In the event that on any such Re-Allocation Date there is
an unpaid principal amount of Eurocurrency Loans, such Eurocurrency 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 Eurocurrency Loans so that, after
giving effect thereto, the ABR Loans and Eurocurrency 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 $4,000,000,000, (ii) the
Commitment of an individual Bank shall not, as a result of providing a new
Commitment or of increasing its existing Commitment pursuant to this subsection 2.20,
exceed 15% of the aggregate Commitments on any Re-Allocation Date and (iii) no
Bank shall have any obligation to increase its Commitment unless it agrees to
do so in its sole discretion.


 


(g)           The Borrowers, at their own expense, shall execute and
deliver to the Administrative Agent in exchange for the surrendered Notes of
any Bank, if any, new Notes to the order of such Bank, if requested, in an
amount equal to the Commitment of such Bank after giving effect to any increase
in such Bank’s Commitment.


 


35

















 


2.21         Judgment
Currency.  (a)      If,
for the purpose of obtaining judgment in any court, it is necessary to convert
a sum owing hereunder in one currency into another currency, each party hereto
agrees, to the fullest extent that it may effectively do so, that the rate of
exchange used shall be that at which, in accordance with normal banking
procedures in the relevant jurisdiction, the first currency could be purchased
with such other currency on the Business Day immediately preceding the day on
which final judgment is given.


 


(b)           The obligations of the Borrowers in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the “Applicable
Creditor”) shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than the currency in which such sum is stated to be due
hereunder (the “Agreement Currency”), be discharged only to the extent
that, on the Business Day following receipt by the Applicable Creditor of any
sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may
in accordance with normal banking procedures in the relevant jurisdiction
purchase the Agreement Currency with the Judgment Currency; if the amount of
the Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Borrowers as a separate
obligation and notwithstanding any such judgment, agrees to indemnify the
Applicable Creditor against such loss. 
The obligations of the Borrowers contained in this subsection 2.21
shall survive the termination of this Agreement and the payment of all other
amounts owing hereunder.


 


2.22         Foreign Currency
Exchange Rate.  (a)  No later
than 1:00 P.M., New York City time, on each Calculation Date with respect
to a Foreign Currency, the Administrative Agent (or the Foreign Currency Agent)
shall determine the Exchange Rate as of such Calculation Date with respect to
such Foreign Currency (it being acknowledged and agreed that the Administrative
Agent or the Foreign Currency Agent, as the case may be, shall use such
Exchange Rate for the purposes of determining compliance with subsection 2.1
with respect to such borrowing request). 
The Exchange Rates so determined shall become effective on the relevant
Calculation Date, shall remain effective until the next succeeding Calculation
Date and shall for all purposes of this Agreement (other than subsection 2.13(e) and
subsection 2.21(a)) be the Exchange Rates employed in converting any
amounts between Dollars and Foreign Currencies.


 


(b)           No later than 5:00 P.M., New York City time, on each
Calculation Date, the Administrative Agent (or the Foreign Currency Agent)
shall determine the aggregate amount of the Dollar Equivalents of the principal
amounts of the Foreign Currency Loans then outstanding (after giving effect to
any Foreign Currency Loans to be made or repaid on such date).


 


(c)           The Administrative Agent shall promptly notify the
Borrowers of each determination of an Exchange Rate hereunder.


 


2.23         Letters of Credit. (a)    L/C Obligations. (i)  Subject to the terms and
conditions hereof, the Issuing Bank, in reliance on the agreements of the other
Banks set forth in subsection 2.23(d)(i), agrees to issue letters of
credit (“Letters of Credit”) for the account of a Borrower on any
Business Day during the Commitment Period in such form as may be approved from
time to time by the Issuing Bank; provided that the Issuing Bank shall
have no obligation to issue any Letter of Credit if, after giving effect to
such issuance, (A) the L/C Obligations would exceed the L/C Commitment or (B) the
Total Extensions of Credit would be greater than the Total Commitments.  Each Letter of Credit shall (1) be
denominated in Dollars, and (2) expire no later than the earlier of (x)
the first anniversary of its date of issuance and (y) the date that is five
Business Days prior to the Termination Date, provided that any Letter of
Credit with a one-year term may provide for the renewal thereof for additional
one-year periods (which shall in no event extend beyond the date referred to in
clause (y) above).


 


36

















 


(ii)           The Issuing Bank
shall not at any time be obligated to issue any Letter of Credit if such
issuance would conflict with, or cause the Issuing Bank or any L/C Participant
to exceed any limits imposed by, any applicable Requirement of Law.


 


(b)           Procedure for Issuance of
Letter of Credit.  A Borrower
may from time to time request that the Issuing Bank issue a Letter of Credit by
delivering to the Issuing Bank at its address for notices specified herein an
Application therefor, completed to the reasonable satisfaction of the Issuing
Bank, and such other certificates, documents and other papers and information
as the Issuing Bank may reasonably request. 
Upon receipt of any Application, the Issuing Bank will process such Application
and the certificates, documents and other papers and information delivered to
it in connection therewith in accordance with its reasonable customary
procedures and shall promptly issue the Letter of Credit requested thereby (but
in no event shall the Issuing Bank be required to issue any Letter of Credit
earlier than three Business Days after its receipt of the Application therefor
and all such other certificates, documents and other papers and information
relating thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed to by the Issuing Bank and
such Borrower.  The Issuing Bank shall
furnish a copy of such Letter of Credit to the applicable Borrower promptly
following the issuance thereof.  The
Issuing Bank shall promptly furnish to the Administrative Agent, which shall in
turn promptly furnish to the Banks, notice of the issuance of each Letter of
Credit (including the amount thereof).


 


(c)           Fees and Other Charges.  (i)  Each Borrower will pay a fee on all
outstanding Letters of Credit issued for its account at a per annum rate equal
to the Letter of Credit Fee, shared ratably among the Banks and payable
quarterly in arrears on the first Business Day of each January, April, July and
October of each year after the issuance date and on the Termination Date
or such earlier date on which the Commitments shall terminate as provided
herein.  In addition, each Borrower shall
pay to the Issuing Bank for its own account a fronting fee in an amount to be
agreed between each Borrower and the Issuing Bank, not to exceed 0.125% per
annum, on the undrawn and unexpired amount of each Letter of Credit, payable
quarterly in arrears on each date on which the Letter of Credit Fee is payable.


 


(ii)           In addition to the
foregoing fees, the Borrowers shall pay or reimburse the Issuing Bank for such
normal and customary costs and expenses as are incurred or charged by the
Issuing Bank in issuing, negotiating, effecting payment under, amending or
otherwise administering any Letter of Credit.


 


(d)           L/C
Participations.   (i) 
The Issuing Bank irrevocably agrees to grant and hereby grants to each L/C
Participant, and, to induce the Issuing Bank to issue Letters of Credit, each
L/C Participant irrevocably agrees to accept and purchase and hereby accepts
and purchases from the Issuing Bank, on the terms and conditions set forth
below, for such L/C Participant’s own account and risk an undivided interest
equal to such L/C Participant’s Commitment Percentage in the Issuing Bank’s
obligations and rights under and in respect of each Letter of Credit and the
amount of each draft paid by the Issuing Bank thereunder.  Each L/C Participant agrees with the Issuing
Bank that, if a draft is paid under any Letter of Credit for which the Issuing
Bank is not reimbursed in full by the Borrowers in accordance with the terms of
this Agreement, such L/C Participant shall pay to the Issuing Bank upon demand
at the Issuing Bank’s address for notices specified herein an amount equal to
such L/C Participant’s Commitment Percentage of the amount of such draft, or
any part thereof, that is not so reimbursed. 
Each L/C Participant’s obligation to pay such amount shall be absolute
and unconditional and shall not be affected by any circumstance, including (i) any
setoff, counterclaim, recoupment, defense or other right that such L/C
Participant may have against the Issuing Bank, the Borrowers or any other
Person for any reason whatsoever, (ii) the occurrence or continuance of a
Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 4, (iii) any adverse change in the
condition (financial or otherwise) of the Borrowers, (iv) any breach of
this Agreement by the Borrowers


 


37

















 


or any other L/C Participant or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.


 


(ii)           If any amount
required to be paid by any L/C Participant to the Issuing Bank pursuant to subsection 2.23(d)(i) in
respect of any unreimbursed portion of any payment made by the Issuing Bank
under any Letter of Credit is paid to the Issuing Bank within three Business
Days after the date such payment is due, such L/C Participant shall pay to the
Issuing Bank on demand an amount equal to the product of (i) such amount,
times (ii) the daily average applicable Overnight Rate during the period
from and including the date such payment is required to the date on which such
payment is immediately available to the Issuing Bank, times (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. 
If any such amount required to be paid by any L/C Participant pursuant
to subsection 2.23(d)(i) is not made available to the Issuing Bank by
such L/C Participant within three Business Days after the date such payment is
due, the Issuing Bank shall be entitled to recover from such L/C Participant,
on demand, such amount with interest thereon calculated from such due date at
the rate per annum applicable to ABR Loans. 
A certificate of the Issuing Bank submitted to any L/C Participant with
respect to any amounts owing under this subsection shall be conclusive in
the absence of manifest error.


 


(iii)          Whenever, at any
time after the Issuing Bank has made payment under any Letter of Credit and has
received from any L/C Participant its pro  rata share of such
payment in accordance with subsection 2.23(d)(i), the Issuing Bank
receives any payment related to such Letter of Credit (whether directly from
the Borrowers or otherwise, including proceeds of collateral applied thereto by
the Issuing Bank), or any payment of interest on account thereof, the Issuing
Bank will distribute to such L/C Participant its pro  rata share
thereof; provided, however, that in the event that any such
payment received by the Issuing Bank shall be required to be returned by the
Issuing Bank, such L/C Participant shall return to the Issuing Bank the portion
thereof previously distributed by the Issuing Bank to it.


 


(iv)          Upon any cancellation of the Commitment of a Bank pursuant
to subsection 2.13, 2.16 or 2.17, any replacement of a Cancelled Bank
pursuant to subsection 2.19 or any increase in the Commitments pursuant to
subsection 2.20, the participating interests in then outstanding Letters
of Credit shall be re-allocated among the Banks to give effect to their
respective Commitment Percentages as in effect after such cancellation,
replacement or increase, and payment of fees payable pursuant to subsection 2.23(c) shall
be made so as to give effect to such reallocation.


 


(e)           Reimbursement Obligation
of the Borrowers.  If any
draft is paid under any Letter of Credit, the Borrower for whose account such
Letter of Credit was issued shall reimburse the Issuing Bank for the amount of (a) the
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Bank in connection with such payment, not later than
12:00 Noon, Local Time, on the second Business Day following the Business Day
that such Borrower receives notice of such draft.  Each such payment shall be made to the
Issuing Bank at its address for notices referred to herein in Dollars and in
immediately available funds.  Interest
shall be payable on any such amounts from the date on which the relevant draft
is paid until payment in full is made by the Borrower at the rate set forth in
(x) subsection 2.8(b), until the second Business Day next succeeding the
date of the relevant notice and (y) subsection 2.8(c), thereafter.


 


(f)            Obligations Absolute.  The obligations of the Borrowers under this
subsection 2.23 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment that the Borrowers may have or have had against the Issuing Bank, any
beneficiary of a Letter of Credit or any other Person.  The Borrowers also agree with the Issuing
Bank


 


38

















 


that the Issuing Bank shall not
be responsible for, and the Reimbursement Obligations of the Borrowers under
subsection 2.23(e) shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even
though such documents shall in fact prove to be invalid, fraudulent or forged,
or any dispute between or among the Borrowers and any beneficiary of any Letter
of Credit or any other party to which such Letter of Credit may be transferred
or any claims whatsoever of the Borrowers against any beneficiary of such Letter
of Credit or any such transferee.  The
Issuing Bank shall not be liable for any error, omission, interruption or delay
in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct
of the Issuing Bank.  The Borrowers agree
that any action taken or omitted by the Issuing Bank under or in connection
with any Letter of Credit or the related drafts or documents, if done in the
absence of gross negligence or willful misconduct, shall be binding on the
Borrowers and shall not result in any liability of the Issuing Bank to the
Borrowers.


 


(g)           Letter of Credit Payments.  If any draft shall be presented for payment
under any Letter of Credit, the Issuing Bank shall promptly notify the Borrower
for whose account such Letter of Credit was issued of the date and amount
thereof.  The responsibility of the
Issuing Bank to the Borrowers in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.


 


(h)           Applications.  To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Agreement, the provisions of this Agreement shall apply.


 


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,
2005 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


 


39

















 


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 issuance of the Letters of Credit, the borrowings hereunder
and the use of the proceeds thereof, will not violate any Requirement of Law or
any Contractual Obligation of such Borrower, and will not result in, or
require, the creation or imposition of any lien on any of its properties or
revenues pursuant to any Requirement of Law or Contractual Obligation.


 


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


 


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


 


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


 


3.8           [Intentionally
Omitted].


 


3.9           [Intentionally
Omitted].


 


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.


 


40

















 


SECTION 4.           CONDITIONS
PRECEDENT


 


4.1           Conditions to
Initial Extensions of Credit.  The
obligation of each Bank to make Loans and of the Issuing Bank to issue Letters
of Credit 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 (i) $625,000,000 364-Day Credit Agreement,
dated as of February 15, 2005, as supplemented, among the Borrowers, the
lenders parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent,
Citibank, N.A. and Credit Suisse, 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, (ii) $625,000,000 Five-Year Credit
Agreement, dated as of February 15, 2005, as supplemented, among the
Borrowers, the lenders parties thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, Citibank, N.A. and Credit Suisse, 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 and (iii) $1,250,000,000
Five-Year 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, 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,
in each case, 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, 2005, 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.


 


41

















 


(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
Extensions of Credit.  The obligation
of each Bank to make Loans and of the Issuing Bank to issue Letters of Credit
(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 or the date of such issuance of such Letter of Credit,
as applicable, 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 such Loan or
issuance of such Letter of Credit, as applicable, 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, each issuance of a Letter of Credit and each increase in
the drawable amount of any Letter of Credit for the account of a Borrower,
shall constitute a representation and warranty by the relevant Borrower as of
the date of such Loan or issuance of such Letter of Credit, as applicable, that
the applicable conditions in clauses (a), (b) and (c) of this subsection 4.2
have been satisfied.


 


SECTION 5.           AFFIRMATIVE
COVENANTS


 


Each of the Borrowers
(except as otherwise specified) hereby agrees that, so long as there is any
obligation by any Bank to make Loans to it hereunder, any obligation of the
Issuing Bank to issue Letters of Credit hereunder, any Loan of such Borrower
remains outstanding and unpaid, any Letter of Credit remains outstanding or any
other amount is owing by such Borrower to any Bank, the Issuing Bank or any
Agent hereunder (unless the Majority Banks shall otherwise consent in writing):


 


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


 


(a)           as soon as available, but in any event within 120 days
after the end of each fiscal year of such Borrower, a copy of the consolidated
balance sheet of such Borrower and its consolidated Subsidiaries as at the end
of such year and the related consolidated statements of income and of cash flow


 


42

















 


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 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


 


43

















 


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 obligation of the Issuing Bank to issue Letters of Credit hereunder, any
Loan remains outstanding and unpaid, any Letter of Credit remains outstanding
or any other amount is owing to any Agent, the Issuing Bank or any Bank
hereunder, it shall not, nor in the case of subsections 6.2 and 6.3 shall it
permit any Restricted Subsidiary to (unless the Majority Banks shall otherwise
consent in writing):


 


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 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


 


44

















 


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 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;


 


45

















 


(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


 


(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.


 


(ii)           For purposes of this Agreement, 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.


 


46

















 


(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.


 


(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


 


47





















 


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


 


SECTION 7.                                NEGATIVE
COVENANTS OF THE CAPITAL CORPORATION


 


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


 


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 8.5 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


 


48





















 


in the ordinary course of business to obtain the release of mechanics’,
workmen’s, repairmen’s, warehousemen’s or similar liens, or the release of
property in the possession of a common carrier;


 


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


 


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


 


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


 


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


 


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


 


(i)            any
Mortgage securing Securitization Indebtedness;


 


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


 


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


 


7.4           Consolidation; Merger.  Merge or consolidate with, or sell or convey
(other than a conveyance by way of lease) all or substantially all of its
assets to, any other corporation, unless (a) the Capital Corporation shall be
the surviving corporation in the case of a merger or the surviving, resulting
or transferee corporation (the “successor corporation”) shall be a corporation
organized under the laws of the United States or any State thereof or the
District of Columbia and shall expressly assume the due and punctual
performance of all of the agreements, covenants and obligations of the Capital
Corporation under this Agreement by supplemental agreement satisfactory to the
Administrative Agent and executed and delivered to the Administrative Agent by
the successor corporation and (b) the Capital Corporation or such successor
corporation, as the case may be, shall not, immediately after such merger,
consolidation, sale or conveyance, be in default in the performance of any such
agreements, covenants or obligations; provided, however, that the Capital
Corporation may merge or consolidate with, or sell or convey substantially all
of its assets to, the Company, if (i) the Company is the successor corporation
(as defined above) and (ii) subclause (b) above is complied with.  Upon any such merger, consolidation, sale or conveyance,
the successor corporation shall succeed to and be substituted for, and may
exercise every right and power of and shall be subject to all the obligations
of, the Capital Corporation under this Agreement, with the same effect as if
the successor corporation had been named as the Capital Corporation herein and
therein.


 


SECTION 8.           EVENTS
OF DEFAULT


 


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


 


49





















 


(a)           Either Borrower
shall fail to pay any principal of any Loan or Reimbursement Obligation when
due in accordance with the terms hereof or to pay any interest on any Loan or
Reimbursement Obligation, 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 $50,000,000 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 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


 


50





















 


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 and in
the reasonable judgment of the Required Banks, such occurrence is reasonably
expected to have a material adverse effect on the business, operations or
condition (financial or otherwise) of the Borrowers; 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 (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) and the Loans
shall immediately become due and payable, and (B)(1) if such event is 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 such Event is an
Event of Default specified in paragraph (b), (c), (d), (g) or (h), then with
the consent of the Required Banks, the Administrative Agent may, or upon the
request of the Required Banks, the Administrative Agent shall, take either or
both of the following actions:  (i) by
notice to the Borrowers, declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) by notice of
default to the Borrowers, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement (including all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable.  With
respect to all Letters of Credit with respect to which presentment for honor
shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrowers shall at such time deposit in a cash collateral
account opened by the Administrative Agent an amount equal to the aggregate
then undrawn and unexpired amount of such Letters of Credit.  Amounts held in such cash collateral account
shall be applied by the Administrative Agent to the payment of drafts drawn
under such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay other obligations of the Borrowers hereunder.  After all such Letters of Credit shall have
expired or been fully drawn upon, all Reimbursement Obligations shall have been
satisfied and all other obligations of the Borrowers hereunder shall have been
paid in full, the balance, if any, in such cash collateral account shall be
returned to the Borrowers (or such other Person as may be lawfully entitled
thereto).  Except as


 


51





















 


expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived
with respect to this Agreement by the Borrowers.


 


SECTION 9.                                THE
AGENTS


 


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 willful 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 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


 


52





















 


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, 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 willful misconduct.  The
agreements in this subsection 9.7 shall survive the payment of the Loans and
all other amounts payable hereunder.


 


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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 and with respect to any Letter of Credit issued or
participated in 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 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 Reimbursement Obligation, 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 directly
affected thereby 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 or (e) amend, modify or waive any provision of subsection
2.23 without the written consent of the Issuing Bank.  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


 


54





















 


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 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, addressed as follows in the case of the
Borrowers, the Administrative Agent, or to such address or other address as may
be hereafter notified by the respective parties hereto:


 


	
  The Borrowers:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  The Company:

  	
   

  	
  Deere & Company

  Attention: Treasurer

  One John Deere Place

  Moline, Illinois 61265

  Telephone: 309-765-4162

  Facsimile: 309-765-5021

  
	
   

  	
   

  	
   

  
	
  The Capital Corporation:

  	
   

  	
  John Deere Capital
  Corporation

  Attention: Manager

  First National Bank Building

  1 East First Street

  Reno, Nevada 89501

  Telephone: 775-786-5527

  Facsimile: 775-786-4145

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Deere & Company

  Attention: Treasurer

  One John Deere Place

  Moline, Illinois 61265

  Telephone: 309-765-4162

  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

  



 


55





















 


	
  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

  
	
   

  	
   

  	
   

  
	
  The Foreign Currency
  Agent:

  



  	
   

  	
  J.P. Morgan Europe Limited

  125 London Wall

  London, EC2Y 5AJ

  England

  Telephone: +44 20 7777 2360/2085

  Facsimile: +44 20 7777 2355



  
	
   

  	
   

  	
   

  
	
  To any other Bank:

  	
   

  	
  To it at its address (or
  facsimile number) set forth in its Administrative Questionnaire

  



 


provided that
any notice, request or demand to or upon the Administrative Agent or the Banks
pursuant to subsections 2.1, 2.2, 2.5, 2.6, 2.9, 2.11, 2.20 and 9.9 shall not
be effective until received (including receipt by telephone if permitted
hereby).


 


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


 


10.4         Payment of Expenses.  (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


 


56





















 


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 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.


 


57





















 


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 (including any affiliate of the Issuing Bank
that issues any Letter of Credit), 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 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, the Issuing Bank and the Administrative Agent shall continue
to deal solely and directly with such Bank in connection with such Bank’s
rights and obligations under this Agreement.


 


(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


 


58





















 


banks or other financial institutions (“Purchasing Banks”), all
or any portion (subject to the last sentence of this subsection 10.5(d)) of its
rights (which rights may include such Bank’s rights in respect of Loans it has
disbursed) and obligations under this Agreement, with the prior written consent
(such consent not to be unreasonably withheld) of (i) the Borrowers and (ii)
the Issuing Bank.  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 greater than $0
but less than $5,000,000, (ii) the Purchasing Bank, together with all of its
affiliates, would have a Commitment Percentage of more than 15% (or, if the
Commitments shall have been terminated, such Purchasing Bank, together with all
of its affiliates, would hold Loans aggregating to more than 15% in principal
amount of all outstanding Loans), (iii) the Credit Rating of any Purchasing
Bank shall be less than BBB+ from S&P or less than Baa1 from Moody’s or
such Purchasing Bank shall have no Credit Rating or (iv) the Purchasing Bank is
not a bank, insurance company, other financial institution or an Affiliate of
any thereof that is engaged in making, purchasing, holding or investing in bank
loans or similar extensions of credit in the ordinary course of its business.


 


(e)           The Administrative
Agent shall maintain at its address referred to in subsection 10.2 a copy of
each Loan Assignment 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) and L/C Obligations owing to, each Bank from
time to time, and (ii) with respect to each Loan Assignment delivered to the
Administrative Agent, the name and address of the Loan Assignee and the
principal amount of each Bid Loan owing to such Loan Assignee.  The entries in the Register shall constitute prima
facie evidence of the accuracy of the information so recorded, and the
Borrowers, the Administrative Agent, the Issuing Bank and the Banks may treat
each Person whose name is recorded in the Register as the owner of the Loan
recorded therein for all purposes of this Agreement.  The Register shall be available for inspection
by the Company, the Issuing Bank or any Bank or Loan Assignee at any reasonable
time and from time to time upon reasonable prior notice.


 


(f)            Upon its receipt of
a Loan Assignment executed by an assignor Bank and a Loan Assignee and an
Administrative Questionnaire from the Assignor Bank if it is not then a Bank,
together with payment to the Administrative Agent (by the assignor Bank or the
Loan Assignee, as agreed between


 


59





















 


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) and an
Administrative Questionnaire from the Purchasing Bank if it is not then a Bank,
together with payment to the Administrative Agent (by the transferor Bank or
the Purchasing Bank, as agreed between them) of a registration and processing
fee of $3,500 for each Purchasing Bank listed in such 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 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


 


60





















 


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 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 otherwise provided in this
Agreement, if any Bank (a “benefitted Bank”) shall at any time receive
any payment of all or part of its Committed Rate Loans or L/C Obligations,  or interest thereon or facility fee or
letter of credit 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 L/C
Obligations, or interest thereon, or facility fee or letter of credit 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 L/C Obligations, 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 or L/C Obligations
may exercise


 


61





















 


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.


 


(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


 


62





















 


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.  The Borrowers shall promptly provide such
information upon request by any Bank.


 


63





















 


IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their respective proper and duly authorized officers as of the day
and year first above written.


 


	
   

  	
  DEERE & COMPANY 

  
	
  Attested by: 

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JOHN DEERE CAPITAL CORPORATION 

  
	
  Attested by: 

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
   

  	
   

  
	
  Title:

  	
   

  	
  Title:

  
							



 





















 


	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as Administrative Agent
  and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 





















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as a Syndication Agent and
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 





















 


	
   

  	
  CITIBANK, N.A.,

  
	
   

  	
  as a Documentation Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  CITICORP USA

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Title: 

  



 





















 


	
   

  	
  CREDIT SUISSE,

  
	
   

  	
  as a Documentation Agent
  and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 





















 


	
   

  	
  DEUTSCHE BANK AG NEW YORK
  BRANCH,

  as a Syndication Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 





















 


	
   

  	
  MERRILL LYNCH BANK USA,

  as Co-Documentation Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  ROYAL BANK OF CANADA,

  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  HSBC BANK USA, NATIONAL
  ASSOCIATION

  as a Bank

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  TORONTO DOMINION (TEXAS)
  LLC (as successor in

  interest to Toronto Dominion (Texas), Inc.), as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  BNP PARIBAS,

  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  MELLON BANK, N.A.,

  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  BANCO BILBAO VIZCAYA
  ARGENTARIA, S.A.,

  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  THE BANK OF NEW YORK,

  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  BARCLAYS BANK PLC,

  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  BANCO SANTANDER CENTRAL
  HISPANO, SA,

  NEW YORK BRANCH,  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  WACHOVIA BANK, NATIONAL
  ASSOCIATION,

  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  BANCA NAZIONALE DEL LAVORO
  S.P.A.,

  NEW YORK BRANCH,

  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  THE BANK OF
  TOKYO-MITSUBISHI, LTD.,

  CHICAGO BRANCH,

  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  FIFTH THIRD BANK,

  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  NORDEA BANK FINLAND PLC,

  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  U.S. BANK, NATIONAL
  ASSOCIATION,

  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION, 

  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
   

  	
  WESTPAC BANKING
  CORPORATION,

  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


SCHEDULE I


 


TERMS OF SUBORDINATION


 


“Senior
Indebtedness” means the principal of (and premium, if any) and unpaid
interest, Utilization Fee, facility fee and letter of credit fees on (a)
indebtedness (including matured and contingent reimbursement obligations in
respect of letters of credit) of John Deere Capital Corporation (the “Capital
Corporation”) (including indebtedness of others guaranteed by the Capital
Corporation), other than the indebtedness evidenced by the Securities [such
term to be defined as the debt to be issued under the indenture or agreement to
which this Schedule relates] and [specify any other indebtedness of the Capital
Corporation (including indebtedness of others guaranteed by the Capital
Corporation)], provided that indebtedness of the Capital Corporation
under the credit agreement to which these Terms of Subordination are attached
may not be so specified, whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed, for money borrowed, unless in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding it is provided that such indebtedness is not senior or prior in
right of payment to the Securities, and (b) renewals, extensions, modifications
and refundings of any such indebtedness.


 


SUBORDINATION


 


Section
1.  Agreement to Subordinate.


 


The Capital
Corporation, for itself, its successors and assigns, covenants and agrees, and
each holder of Securities, by such holder’s acceptance thereof, likewise
covenants and agrees, that the payment of the principal of (and premium, if
any) and interest on each and all of the Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, in right
of payment to the prior payment in full of all Senior Indebtedness.


 


Section
2.  Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities.


 


Upon any
distribution of assets of the Capital Corporation upon any dissolution, winding
up, liquidation or reorganization of the Capital Corporation, whether in
bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Capital Corporation or otherwise (subject to the power
of a court of competent jurisdiction to make other equitable provisions
reflecting the rights conferred in this Agreement upon the Senior Indebtedness
and the holders thereof with respect to the Securities by a lawful plan of
reorganization under applicable bankruptcy law),


 


(a)           the holders of
Senior Indebtedness shall be entitled to receive payment in full of the
principal thereof (and premium if any) and the interest, Utilization Fee,
facility fee and letter of credit fees due on the Senior Indebtedness before
the holders of the Securities are entitled to receive any payment upon the
principal of (or premium, if any) or interest on indebtedness evidenced by the
Securities; and


 


(b)            any payment or
distribution of assets of the Capital Corporation of any kind or character,
whether in cash, property or securities, to which the holders of the Securities
or any trustee therefor would be entitled except for the provisions of this
Article shall be paid by the liquidating trustee or agent or other person
making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under


 





















 


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, Utilization Fee, facility fee and letter
of credit fees on the Senior Indebtedness held or represented by each holder of
Senior Indebtedness, to the extent necessary to make payment in full of all
Senior Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness; and


 


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


 


Subject
to the payment in full of all Senior Indebtedness, the holders of the
Securities shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or securities
of the Capital Corporation applicable to Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full and no such payments or distributions to the holders of the Securities
of cash, property or securities otherwise distributable to the holders of
Senior Indebtedness shall, as between the Capital Corporation, its creditors
other than the holders of Senior Indebtedness, and the holders of the
Securities, be deemed to be a payment by the Capital Corporation to or on
account of the Securities.  It is
understood that the provisions of this Article are, and are intended, solely
for the purpose of defining the relative rights of the holders of the
Securities, on the one hand, and the holders of Senior Indebtedness, on the
other hand.  Nothing contained in this
Article or elsewhere in this Agreement or in the Securities is intended to or
shall impair, as between the Capital Corporation, its creditors other than the
holders of Senior Indebtedness, and the holders of the Securities, the
obligation of the Capital Corporation, which is unconditional and absolute, to
pay to the holders of the Securities the principal of (and premium, if any) and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or to affect the relative rights of the holders of
the Securities and creditors of the Capital Corporation other than the holders
of Senior Indebtedness, nor shall anything herein or in the instruments or other
evidence of the Securities prevent any trustee for the holders of the
Securities or the holder of any Securities from exercising all remedies
otherwise permitted by applicable law upon default under this Agreement or such
instrument or other evidence, subject to the rights, if any, under this Article
of the holders of Senior Indebtedness in respect of cash, property or
securities of the Capital Corporation received upon the exercise of any such
remedy.


 


2





















 


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


 


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


 





















 


SCHEDULE II


COMMITMENTS


 


	
  Bank

  	
   

  	
  Commitment

  	
   

  
	
  JPMorgan Chase Bank, N.A.

  	
   

  	
  $

  	
  300,000,000

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  260,000,000

  	
   

  
	
  Citicorp USA

  	
   

  	
  $

  	
  260,000,000

  	
   

  
	
  Credit Suisse

  	
   

  	
  $

  	
  260,000,000

  	
   

  
	
  Deutsche Bank AG New York Branch

  	
   

  	
  $

  	
  260,000,000

  	
   

  
	
  Merrill Lynch Bank USA

  	
   

  	
  $

  	
  260,000,000

  	
   

  
	
  Royal Bank of Canada

  	
   

  	
  $

  	
  200,000,000

  	
   

  
	
  HSBC Bank USA, National Association

  	
   

  	
  $

  	
  200,000,000

  	
   

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

  	
   

  	
  $

  	
  175,000,000

  	
   

  
	
  BNP Paribas

  	
   

  	
  $

  	
  100,000,000

  	
   

  
	
  Mellon Bank, N.A.

  	
   

  	
  $

  	
  100,000,000

  	
   

  
	
  Wachovia Bank, National Association

  	
   

  	
  $

  	
  100,000,000

  	
   

  
	
  Wells Fargo Bank, National Association

  	
   

  	
  $

  	
  100,000,000

  	
   

  
	
  Banco Bilbao Vizcaya Argentaria, S.A.

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  Barclays Bank PLC

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  The Bank of New York

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  Banco
  Santander Central Hispano, SA , New York Branch

  	
   

  	
  $

  	
  30,000,000

  	
   

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

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Fifth Third Bank

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  U.S. Bank, National Association

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Westpac Banking Corporation

  	
   

  	
  $

  	
  30,000,000

  	
   

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

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  Nordea Bank Finland PLC

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  3,000,000,000

  	
   

  



 





















 


SCHEDULE III


 


MANDATORY COSTS


 


1.                                 Mandatory Cost is an addition to the interest
rate to compensate Banks for the cost of compliance with (a) the requirements
of the Bank of England and/or the Financial Services Authority (or, in either
case, any other authority which replaces all or any of its functions) or (b)
the requirements of the European Central Bank.


 


2.                                 On the first day of each Interest Period (or as
soon as possible thereafter) the Administrative Agent shall calculate, as a
percentage rate, a rate (the “Additional Cost Rate”) for each Bank, in
accordance with the paragraphs set out below. 
The Mandatory Cost will be calculated by the Administrative Agent as a
weighted average of the Banks’ Additional Cost Rates (weighted in proportion to
the percentage participation of each Bank in the relevant Loan) and will be
expressed as a percentage rate per annum.


 


3.                                 The Additional Cost Rate for any Bank lending
from a Facility Office in a Participating Member State will be the percentage
notified by that Bank to the Administrative Agent.  This percentage will be certified by that
Bank in its notice to the Administrative Agent to be its reasonable
determination of the cost (expressed as a percentage of that Bank’s
participation in all Loans made from that Facility Office) of complying with
the minimum reserve requirements of the European Central Bank in respect of
loans made from that Facility Office.


 


4.                                 The Additional Cost Rate for any Bank lending
from a Facility Office in the United Kingdom will be calculated by the
Administrative Agent as follows:


 


	
  AB + C(B – D)+E x 0.01

  	
   

  	
  per cent. per annum

  
	
  100
  – (A + C)

  



 


Where:


 


A                           is the
percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Bank is from time to time required to maintain as an
interest free cash ratio deposit with the Bank of England to comply with cash
ratio requirements.


 


B                             is
the percentage rate of interest (excluding the Applicable Margin and the
Mandatory Cost) payable for the relevant Interest Period on the Loan.


 


C                             is
the percentage (if any) of Eligible Liabilities which that Bank is required
from time to time to maintain as interest bearing Special Deposits with the
Bank of England.


 


D                            is the
percentage rate per annum payable by the Bank of England to the Administrative
Agent on interest bearing Special Deposits.


 


E                              is
designed to compensate Banks for amounts payable under the Fees Rules and is
calculated by the Administrative Agent as being the average of the most recent
rates of


 





















 


charge
supplied by the Reference Banks to the Administrative Agent pursuant to
paragraph 7 below and expressed in pounds per £1,000,000.


 


5.                                 For the purposes of this Schedule:


 


(a)                                      “Eligible Liabilities” and “Special
Deposits” have the meanings given to them from time to time under or
pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank
of England;


 


(b)                                     “Facility Office” means, as to any Bank,
the office or offices of such Bank through which it is making or has made Loans
under this Agreement denominated in Pounds Sterling;


 


(c)                                      “Fees Rules” means the rules on periodic
fees contained in the FSA Supervision Manual or such other law or regulation as
may be in force from time to time in respect of the payment of fees for the
acceptance of deposits;


 


(d)                                     “Fee Tariffs” means the fee tariffs
specified in the Fees Rules under the activity group A.1 Deposit acceptors
(ignoring any minimum fee or zero rated fee required pursuant to the Fees Rules
but taking into account any applicable discount rate);


 


(e)                                      “Reference Banks” means the principal London offices of JPMorgan Chase Bank,
N.A., Bank of America, N.A. and Deutsche Bank AG or
such other banks as may be appointed by the Administrative Agent in
consultation with the Borrowers. and


 


(f)                                        “Tariff Base” has the meaning given to it
in, and will be calculated in accordance with, the Fees Rules.


 


6.                                 In application of the above formulae, A, B, C and
D will be included in the formulae as percentages (i.e. 5 per cent. will be
included in the formula as 5 and not as 0.05). 
A negative result obtained by subtracting D from B shall be taken as
zero.  The resulting figures shall be
rounded to four decimal places.


 


7.                                 If requested by the Administrative Agent, each
Reference Bank shall, as soon as practicable after publication by the Financial
Services Authority, supply to the Administrative Agent, the rate of charge
payable by that Reference Bank to the Financial Services Authority pursuant to
the Fees Rules in respect of the relevant financial year of the Financial
Services Authority (calculated for this purpose by that Reference Bank as being
the average of the Fee Tariffs applicable to that Reference Bank for that
financial year) and expressed in pounds per £1,000,000 of the Tariff Base of
that Reference Bank.


 


8.                                 Each Bank shall supply any information required
by the Administrative Agent for the purpose of calculating its Additional Cost
Rate.  In particular, but without
limitation, each Bank shall supply the following information on or prior to the
date on which it becomes a Bank:


 


(a)                                      the jurisdiction of its Facility Office; and


 


A-2





















 


(b)                                     any other information that the Administrative Agent
may reasonably require for such purpose.


 


Each Bank shall
promptly notify the Administrative Agent of any change to the information
provided by it pursuant to this paragraph.


 


9.                               The percentages of each Bank for the purpose of
A and C above and the rates of charge of each Reference Bank for the purpose of
E above shall be determined by the Administrative Agent based upon the
information supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Bank notifies the Administrative Agent to the
contrary, each Bank’s obligations in relation to cash ratio deposits and
Special Deposits are the same as those of a typical bank from its jurisdiction
of incorporation with a Facility Office in the same jurisdiction as its
Facility Office.


 


10.                         The Administrative Agent shall have no liability
to any person if such determination results in an Additional Cost Rate which
over or under compensates any Bank and shall be entitled to assume that the
information provided by any Bank or Reference Bank pursuant to paragraphs 3, 7
and 8 above is true and correct in all respects.


 


11.                         The Administrative Agent shall distribute the
additional amounts received as a result of the Mandatory Cost to the Banks on
the basis of the Additional Cost Rate for each Bank based on the information
provided by each Bank and each Reference Bank pursuant to paragraphs 3, 7 and 8
above.


 


12.                         Any determination by the Administrative Agent
pursuant to this Schedule in relation to a formula, the Mandatory Cost, an
Additional Cost Rate or any amount payable to a Bank shall, in the absence of
manifest error, be conclusive and binding on all parties.


 


13.                         The Administrative Agent may from time to time,
after consultation with the Borrowers and the Banks, determine and notify to
all parties any amendments which are required to be made to this Schedule in
order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority
or the European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall, in the
absence of manifest error, be conclusive and binding on all parties.


 


A-2





















EXHIBIT A


 


[FORM OF BORROWING
NOTICE]


 


         ,
20  


 


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 $3,000,000,000 Five-Year Credit Agreement, dated as of February 14,
2006, 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, 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           ,
20   as follows:


 


	
  (1)  Total Amount of Committed Rate
  Loans

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (2)  Requested Currency

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (3)  Amount of (1) to be
  allocated to Eurocurrency Loans

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (4)  Amount of (1) to be
  allocated to ABR Loans

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (5)  Interest Periods and amounts to
  be allocated thereto in respect of Eurocurrency Loans (amounts must total
  (3)):

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (i)  one month

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (ii)  two months

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (iii)  three months

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (v)  six months

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Eurocurrency Loans

  	
   

  	
  $

  	
   

  	
   

  



 


NOTE:  THE AMOUNT APPEARING IN LINE (1) ABOVE
MUST BE AT LEAST EQUAL TO $25,000,000 AND IN A WHOLE MULTIPLE OF $5,000,000 (OR
THE FOREIGN CURRENCY EQUIVALENT IN THE CASE OF FOREIGN CURRENCY LOANS) AND THE
AMOUNTS APPEARING IN EACH OTHER LINE ABOVE MUST BE AT LEAST EQUAL


 





















 


TO $10,000,000 AND IN A
WHOLE MULTIPLE OF $1,000,000 (OR THE FOREIGN CURRENCY EQUIVALENT IN THE CASE OF
FOREIGN CURRENCY LOANS).


 


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


 


	
   

  	
  Very truly yours,

  
	
   

  	
  [DEERE & COMPANY]

  
	
   

  	
  [JOHN DEERE CAPITAL CORPORATION]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   Title:

  	
   

  



 


A-2





















 


EXHIBIT B


 


[FORM OF BID LOAN
REQUEST]


 


       ,
20  


 


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
$3,000,000,000 Five-Year Credit Agreement, dated as of February 14, 2006,
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, 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.


 


 


	
   

  	
  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.


 


B-2





















 


EXHIBIT C


 


[FORM OF BID LOAN
OFFER]


 


       ,
20  


 


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
$3,000,000,000 Five-Year Credit Agreement, dated as of February 14, 2006,
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, 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:                               ,
20  


 


Aggregate Maximum
Amount:  $        


 





















 


	
  Maturity Date 1:

  	
   

  	
  Maturity Date 2:

  	
   

  	
  Maturity Date 3:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maximum Amount

  	
  $

  	
   

  	
  Maximum Amount

  	
  $

  	
   

  	
  Maximum Amount

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rate*        Amount

  	
  $

  	
   

  	
  Rate*        Amount

  	
  $

  	
   

  	
  Rate*        Amount

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rate*        Amount

  	
  $

  	
   

  	
  Rate*        Amount

  	
  $

  	
   

  	
  Rate*        Amount

  	
  $

  	
   

  



 


 


	
   

  	
  Very truly yours,

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF BID LOAN BANK]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Telephone:

  
	
   

  	
   

  	
  Facsimile:

  
					



 










*  If Index Rate Bid Loan, insert percentage above
or below Eurocurrency Rate.


 


C-2





















 


EXHIBIT D


 


[FORM OF BID LOAN
CONFIRMATION]


 


       ,
20  


 


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
$3,000,000,000 Five-Year Credit Agreement, dated as of February 14, 2006,
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, 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               ,
20   [Borrowing Date] under said subsection 2.2 in the
(respective) amount(s) set forth on the attached list of Bid Loans offered.


 


	
   

  	
  Very truly yours,

  
	
   

  	
  [DEERE & COMPANY]

  
	
   

  	
  [JOHN DEERE CAPITAL CORPORATION]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 


 


[Borrower to attach Bid Loan
Offer list prepared by Administrative Agent with accepted amount entered by the
Borrower to right of each Bid Loan Offer].


 





















 


EXHIBIT E


 


[FORM OF 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 $3,000,000,000 Five-Year Credit Agreement, dated as of February 14,
2006 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, as Documentation Agents, MERRILL LYNCH BANK USA, as Co-Documentation,
and BANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORK BRANCH, as Syndication
Agents (as from time to time amended, supplemented or otherwise modified in
accordance with the terms thereof, the “Credit Agreement”; terms defined
therein being used herein as therein defined); and


 


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


 


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


 


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


 


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


 


(b)  If Item 6 of Schedule I
hereto contains payment instructions for the Loan Assignee and if the Loan
Assignee delivers a copy of this Loan Assignment to the Administrative Agent in
accordance with subsection 10.5(f) of the Credit Agreement at least 5
Business Days prior to the due date of any payment to the Loan Assignee, the
Loan Assignee hereby instructs the Administrative Agent to pay all such amounts
payable to it pursuant to the provision of subparagraph (a) of this
paragraph 2 in accordance with such payment instructions.  If Item 6 of Schedule I hereto does not
contain payment instructions for the Loan Assignee (or a copy hereof is not
delivered to the Administrative Agent as aforesaid), the Assignor Bank and the
Loan Assignee agree that, notwithstanding the provisions of subparagraph (a) of
this paragraph 2, the Assignor Bank is hereby appointed by the Loan Assignee as
its


 





















 


collection agent to receive
from the Administrative Agent, for and on behalf of and for the account of the
Loan Assignee, all amounts payable to or for the account of the Loan Assignee
under the Loan; the Assignor Bank will immediately pay over to the Loan
Assignee any such amounts received by it, in like funds as received.


 


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


 


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


 


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


 


E-2





















 


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.


 


E-3





















 


SCHEDULE I


TO LOAN


ASSIGNMENT


 


	
  Item 1

  	
   

  	
  (Date of Loan Assignment):

  	
   

  	
  [Insert date of Loan
  Assignment]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 2

  	
   

  	
  (Assignor Bank):

  	
   

  	
  [Insert name of Assignor
  Bank]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 3

  	
   

  	
  (Loan Assignee):

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 4

  	
   

  	
  (Transfer Effective Date):

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 5

  	
   

  	
  (Description of Loan):

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  a.            Borrowing Date and Maturity Date:

  	
   

  	
  [Bid Loan or Negotiated
  Rate Loan]

  
	
   

  	
   

  	
  b.           Principal Amount of Loan:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 6

  	
   

  	
  (Payment Instructions):

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 7

  	
   

  	
  (Signatures):

  	
   

  	
   

  



 


 


	
   

  	
   

  	
  ,
  as

  
	
   

  	
   

  	
  Assignor
  Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  ,
  as

  
	
   

  	
   

  	
  Loan
  Assignee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
  ACCEPTED
  FOR RECORDATION

  	
   

  
	
  IN REGISTER:

  	
   

  
	
   

  	
   

  
	
  JPMORGAN
  CHASE BANK, N.A.,

  	
   

  
	
  as Administrative Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   Title:

  	
   

  	
   

  



 


I-2





















 


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 $3,000,000,000 Five-Year Credit Agreement, dated as of February 14,
2006, 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, as Documentation Agents, Merrill Lynch Bank
USA, as Co-Documentation Agent, and Bank of America, N.A. and Deutsche Bank AG
New York Branch, as Syndication Agents (as from time to time amended,
supplemented or otherwise modified in accordance with the terms thereof, the “Credit
Agreement”; terms defined therein being used herein as therein defined);


 


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


 


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


 


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


 


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


 


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


 





















 


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


 


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


 


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


 


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


 


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


 


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


 


F-2





















 


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, 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.


 


F-3





















 


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.


 


F-4





















 


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:

  
										



 





















 


	
  CONSENTED
  TO AND ACKNOWLEDGED:

  
	
   

  	
   

  
	
   

  	
   

  
	
  [DEERE &
  COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  JOHN
  DEERE CAPITAL CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [ISSUING
  BANK]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ACCEPTED FOR RECORDATION

  IN REGISTER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  JPMORGAN CHASE BANK, N.A.,

  as Administrative Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 










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


 


I-2





















 


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:

   

   

   

  Attn:

  Telephone:

  Facsimile: 

  	
   

  	
  New Commitment Percentage:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Name of Purchasing Bank]

  	
   

  	
  New Commitment Amount:

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

   

   

   

  Attn:

  Telephone:

  Facsimile: 

  	
   

  	
  New Commitment Percentage:

  	
   

  	
   

  	
   

  



 





















 


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 $3,000,000,000 Five-Year
Credit Agreement dated as of February 14, 2006 (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, 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.


 


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.


 


 


Very
truly yours,


 


 


James
R. Jenkins


 


G-2





















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 $3,000,000,000
Five-Year Credit Agreement, dated as of February 14, 2006 (the “Credit
Agreement”), among the Banks parties thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, Citibank, N.A. and Credit Suisse, 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:


 


(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.


 


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).


 


H-2





















 


(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 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

  



 


H-3





















 


EXHIBIT I


 


[FORM OF EXTENSION REQUEST]


 


                               ,
20  


 


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 $3,000,000,000 Five-Year Credit Agreement, dated as of February 14,
2006, 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, 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:

  
					



 





















 


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]


 


                               ,
20  


 


Deere & Company

One John Deere Place

Moline, Illinois  61265

Attention:  Treasurer


 


John Deere Capital Corporation

First National Bank Building

1 East First Street

Reno, Nevada  89501

Attention:  Manager


 


Re:                               $3,000,000,000
Five-Year Credit Agreement 

dated as of February 14, 2006 with Deere & 

Company and John Deere Capital Corporation


 


Ladies and Gentlemen:


 


In connection with
the $3,000,000,000 Five-Year Credit Agreement, dated as of February 14, 2006,
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, 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.


 


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


 


J-2





















 


EXHIBIT K


 


[FORM OF W-8ECI TAX LETTER]


 


[To be sent in DUPLICATE and accompanied

by TWO executed copies of Form W-8ECI of

the Internal Revenue Service]


 


[Bank’s Letterhead]


 


                               ,
20  


Deere & Company

One John Deere Place

Moline, Illinois  61265

Attention:  Treasurer


 


John Deere Capital Corporation

First National Bank Building

1 East First Street

Reno, Nevada  89501

Attention:  Manager


 


Re:                               $3,000,000,000
Five-Year Credit Agreement

dated as of February 14, 2006 with Deere & 

Company and John Deere Capital Corporation


 


Ladies and Gentlemen:


 


In connection with
the above $3,000,000,000 Five-Year Credit Agreement, dated as of February 14,
2006, 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, 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.


 


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


 


	
   

  	
  Yours faithfully,

  
	
   

  	
   

  
	
   

  	
  [NAME OF BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 


 


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


 





















 


EXHIBIT L


 


[FORM OF AGREEMENT]


 


THIS AGREEMENT,
dated as of         , 20    
(“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, 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
$3,000,000,000 Five-Year Credit Agreement, dated as of February 14, 2006 (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:


 


	
   

  	
  Last day
  of

  Interest Period

  
	
  Principal Amount

  	
   

  
	
   

  	
   

  	
   

  
	
  I

  	
  Unused
  Portion

  	
  N/A

  
	
   

  	
   

  	
   

  
	
  II

  	
  Committed
  Rate Loans

  	
   

  
	
   

  	
   

  	
   

  
	
  Eurocurrency
  Loans

  	
   

  
	
   

  	
   

  
	
   

  	
  1

  	
   

  
	
   

  	
  2

  	
   

  
	
   

  	
  3

  	
   

  
				



 





















 


	
   

  	
  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 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];


 










*                                         As appropriate for New or Existing Banks.


 


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


 


***                           The
following clauses (ii)-(iii) may be altered to reflect the agreements among the
Cancelled Bank, the New Bank and the Borrowers provided such agreements do not
adversely affect any Existing Bank or the Administrative Agent.


 


L-2





















 


(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 Eurocurrency Loan,
automatically and without any further action by either Borrower, the New Bank
shall disburse to each Borrower in immediately available funds such amounts as
shall be necessary so that the ratio which each Bank’s outstanding Eurocurrency
Loans, bears to all of the outstanding Eurocurrency Loans, equals the ratio
which each Bank’s Commitment (determined, for the New Bank, in accordance with
clause (i) hereof) bears to all of the Commitments (determined, for the New
Bank, in accordance with the immediately foregoing parenthetical);]


 


[(C)] [Funding of
outstanding Bid Loans of Cancelled Banks]*


 


[(D)]
[Funding of outstanding Negotiated Rate Loans of Cancelled Banks].*


 


3.  Representation and Warranty of Borrowers.  The Borrowers hereby represent and warrant
that after giving effect to the provisions of paragraph 2 hereof the aggregate
principal amount of the Commitments of all Banks (including, without
limitation, the Commitment of the New Bank but excluding the cancelled or expired
portion of the Commitments of the Cancelled Banks) under the Credit Agreement
do not exceed the aggregate principal amount of the Commitments in effect
immediately prior to the cancellation referred to in the third recital hereof.


 


4.  Confidentiality.  The New Bank agrees to [continue to] be bound
by the provisions of subsection 10.7 of the Credit Agreement.


 


[5.  Taxes.  The New Bank (i) represents to the
Administrative Agent and the Borrowers that [it is incorporated under the laws
of the United States or a state thereof][under applicable law and treaties no
taxes will be required to be withheld by the Administrative Agent or the
Borrowers with respect to any payments to be made to such New Bank in respect
of the Loans], (ii) represents that it has furnished to the Administrative
Agent and the Borrowers (A) [a statement that it is incorporated under the laws
of the United States or a state thereof][a letter in duplicate in the form of
Exhibit [J][K] to the Credit Agreement and two duly completed copies of United
States Internal Revenue Service Form [W-8BEN] [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


 










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


 


L-3





















 


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.


 


 


L-4





















 


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:

  
											



 


L-5





















 


EXHIBIT M


 


[FORM OF BID LOAN OR NEGOTIATED RATE LOAN NOTE]


 


PROMISSORY NOTE


 


	
  $                

  	
   New York, New York

  
	
   

  	
                               ,
  20  

  



 


FOR VALUE
RECEIVED, the undersigned, [DEERE & COMPANY] [JOHN DEERE CAPITAL
CORPORATION], a Delaware corporation (the “Borrower”), hereby promises
to pay on [insert maturity date or dates] to 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 $3,000,000,000 Five-Year Credit Agreement, dated as of
February 14, 2006 (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, 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:

  
					



 





















 


EXHIBIT N


FORM OF

NEW BANK SUPPLEMENT


 


SUPPLEMENT, dated           
    , to the $3,000,000,000 Five-Year Credit Agreement (as
in effect on the date hereof, the “Credit Agreement”) dated as of
February 14, 2006, 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, as Documentation
Agents, Merrill Lynch Bank USA, as Co-Documentation Agent, and Bank of America,
N.A. and Deutsche Bank AG New York Branch, as Syndication Agents.  Unless the context otherwise requires, all
capitalized terms used herein without definition shall have the meanings ascribed
to them in the Credit Agreement.


 


W  I  T
N  E  S  S  E  T  H:


 


WHEREAS, the
Credit Agreement provides in subsection 2.20 thereof that any bank or financial
institution, although not originally a party thereto, may become a party to the
Credit Agreement in accordance with the terms thereof by executing and
delivering to the Borrowers and the Administrative Agent a supplement to the
Credit Agreement in substantially the form of this Supplement; and


 


WHEREAS, the
undersigned was not an original party to the Credit Agreement but now desires
to become a party thereto;


 


NOW, THEREFORE,
the undersigned hereby agrees as follows:


 


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


 


The undersigned
(a) represents and warrants that it is legally authorized to enter into this
Supplement; (b) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements delivered pursuant to Section
5.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Supplement; (c) agrees that it has made and will, independently and without
reliance upon any Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement or
any instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Administrative Agent to take such action as administrative
agent on its behalf and to exercise such powers and discretion under the Credit
Agreement or any instrument or document furnished pursuant hereto or thereto as
are delegated to the Administrative Agent by the terms thereof, together with
such powers as are incidental thereto; and (e) agrees that it will be bound by
the provisions of the Credit Agreement and will perform in accordance with its
terms all the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Bank including, without limitation, its
obligation pursuant to subsection 2.17(c) of the Credit Agreement.


 


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


 





















 


	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Fax:

  	
   

  	
   

  
					



 


N-2





















 


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

  
	
                                ,
  20    

  
	
   

  
	
  DEERE & COMPANY

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  
	
   

  
	
  JOHN DEERE CAPITAL
  CORPORATION

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  
	
   

  
	
  Accepted this          
  day of

  
	
                           ,
  20    

  
	
   

  
	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as Administrative Agent

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
										



 


N-3





















 


EXHIBIT O


FORM OF

COMMITMENT INCREASE SUPPLEMENT


 


SUPPLEMENT, dated            
20    , to the $3,000,000,000 Five-Year Credit Agreement
(as in effect on the date hereof, the “Credit Agreement”) dated as of
February 14, 2006, 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, as Documentation Agents, Merrill
Lynch Bank USA, as Co-Documentation Agent, and Bank of America, N.A. and
Deutsche Bank AG New York Branch, as Syndication Agents.  Unless the context otherwise requires, all
capitalized terms used herein without definition shall have the meanings
ascribed to them in the Credit Agreement.


 


W  I  T
N  E  S  S  E  T  H:


 


WHEREAS, pursuant
to the provisions of subsection 2.20 of the Credit Agreement, the undersigned
may increase the amount of its Commitment in accordance with the terms thereof
by executing and delivering to the Borrowers and the Administrative Agent a
supplement to the Credit Agreement in substantially the form of this
Supplement; and


 


WHEREAS, the
undersigned now desires to increase the amount of its Commitment under the
Credit Agreement;


 


NOW THEREFORE, the
undersigned hereby agrees as follows:


 


1.  The undersigned agrees, subject to the terms
and conditions of the Credit Agreement, that on the date this Supplement is
accepted by the Borrowers and the Administrative Agent it shall have its
Commitment increased by $                        ,
thereby making the amount of its Commitment $                        .


 


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


 


	
   

  	
  [NAME OF BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  
					



 





















 


	
  Accepted this         
  day of

  
	
                                ,
  20    

  
	
   

  
	
  DEERE & COMPANY

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  
	
   

  
	
  JOHN DEERE CAPITAL
  CORPORATION

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  
	
   

  
	
  Accepted this          
  day of

  
	
                           ,
  20    

  
	
   

  
	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as Administrative Agent

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  
										



 





















 


EXHIBIT
P


 


Please
see attached Letter of Credit Application.