**Exhibit 4.2**

** **

EXECUTIONVERSION

** **

 

DEERE & COMPANY

 

JOHN DEERE CAPITAL CORPORATION

 

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$750,000,000

 

364-DAY

CREDIT AGREEMENT

 

Dated as of March 4, 2008

 

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JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

 

**CITIBANK, N.A.,as a Documentation Agent**

** **

**CREDIT SUISSE FIRST BOSTON,as a Documentation Agent**

** **

**MERRILL LYNCH BANK USA,as Co-Documentation Agent**

** **

**BANK OF AMERICA, N.A.,**

**as a Syndication Agent**

** **

**DEUTSCHE BANK AG NEW YORK BRANCH,**

**as a Syndication Agent**

** **

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** **

J.P. MORGAN SECURITIES INC.,

as Lead Arranger and Bookrunner

 

 

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**TABLEOF CONTENTS**

** **
| ** **     | ** **                                                                                | **Page**   |
|----------------|-------------------------------------------------------------------------------------------|------------|
| ** **     | ** **                                                                                | ** ** |
| SECTION 1 | DEFINITIONS                                                                               | 1          |
| 1.1.           | Defined Terms                                                                             | 1          |
| 1.2.           | Other Definitional Provisions                                                             | 13         |
|           |                                                                                      |       |
| SECTION 2 | THE COMMITTED RATE LOANS;  THE BID LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS     | 14         |
| 2.1.           | The Committed Rate Loans                                                                  | 14         |
| 2.2.           | The Bid Loans; the Negotiated Rate Loans                                                  | 15         |
| 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.           | Optional Prepayments                                                                      | 20         |
| 2.7.           | Minimum Amount of Certain Loans                                                           | 21         |
| 2.8.           | Committed Rate Loan Interest Rate and  Payment Dates                                      | 21         |
| 2.9.           | Conversion and Continuation Options                                                       | 21         |
| 2.10.          | Computation of Interest and Fees                                                          | 22         |
| 2.11.          | Inability to Determine Interest Rate                                                      | 22         |
| 2.12.          | Pro Rata Treatment and Payments                                                           | 23         |
| 2.13.          | Requirements of Law                                                                       | 25         |
| 2.14.          | Indemnity                                                                                 | 28         |
| 2.15.          | Non-Receipt of Funds by the Administrative  Agent                                         | 29         |
| 2.16.          | Extension of Termination Date                                                             | 29         |
| 2.17.          | Foreign Taxes                                                                             | 30         |
| 2.18.          | Confirmations                                                                             | 32         |
| 2.19.          | Replacement of Cancelled Banks                                                            | 32         |
| 2.20.          | Commitment Increases                                                                      | 32         |
|           |                                                                                      |       |
| SECTION 3 | REPRESENTATIONS AND WARRANTIES                                                            | 34         |
| 3.1.           | Financial Condition                                                                       | 34         |
| 3.2.           | Corporate Existence                                                                       | 35         |
| 3.3.           | Corporate Power; Authorization; Enforceable  Obligations                                  | 35         |
| 3.4.           | No Legal Bar                                                                              | 35         |
| 3.5.           | No Material Litigation                                                                    | 35         |
| 3.6.           | Taxes                                                                                     | 35         |
| 3.7.           | Margin Regulations                                                                        | 36         |
| 3.8.           | [RESERVED]                                                                                | 36         |
| 3.9.           | [RESERVED]                                                                                | 36         |
| 3.10.          | Use of Proceeds                                                                           | 36         |
|           |                                                                                      |       |
| SECTION 4 | CONDITIONS PRECEDENT                                                                      | 36         |
| 4.1.           | Conditions to Initial Loan                                                                | 36         |
| 4.2.           | Conditions to All Loans                                                                   | 37         |

** **

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| ** **      | ** **                                                  | **Page** |
|-----------------|-------------------------------------------------------------|----------|
| SECTION 5  | AFFIRMATIVE COVENANTS                                       | 38       |
| 5.1.            | Financial Statements                                        | 38       |
| 5.2.            | Certificates; Other Information                             | 38       |
| 5.3.            | Company Indenture Documents                                 | 39       |
| 5.4.            | Capital Corporation Indenture Documents                     | 39       |
| 5.5.            | Notice of Default                                           | 39       |
| 5.6.            | Ownership of Capital Corporation Stock                      | 39       |
| 5.7.            | Employee Benefit Plans                                      | 39       |
|            |                                                        |     |
| SECTION 6  | NEGATIVE COVENANTS OF THE COMPANY                           | 39       |
| 6.1.            | Company May Consolidate, etc., Only on  Certain Terms  | 40       |
| 6.2.            | Limitation on Liens                                         | 40       |
| 6.3.            | Limitations on Sale and Lease-back  Transactions            | 43       |
| 6.4.            | Equipment Operations Debt                                   | 44       |
|            |                                                        |     |
| SECTION 7  | NEGATIVE COVENANTS OF THE CAPITAL  CORPORATION              | 44       |
| 7.1.            | Fixed Charges Ratio                                         | 44       |
| 7.2.            | Consolidated Senior Debt to Consolidated  Capital Base | 44       |
| 7.3.            | Limitation on Liens                                         | 44       |
| 7.4.            | Consolidation; Merger                                       | 45       |
|            |                                                        |     |
| SECTION 8  | EVENTS OF DEFAULT                                           | 46       |
|            |                                                        |     |
| SECTION 9  | THE AGENTS                                                  | 48       |
| 9.1.            | Appointment                                                 | 48       |
| 9.2.            | Delegation of Duties                                        | 49       |
| 9.3.            | Exculpatory Provisions                                      | 49       |
| 9.4.            | Reliance by Agents                                          | 49       |
| 9.5.            | Notice of Default                                           | 49       |
| 9.6.            | Non-Reliance on Agents and Other Banks                      | 50       |
| 9.7.            | Indemnification                                             | 50       |
| 9.8.            | Agents in their Individual Capacities                       | 50       |
| 9.9.            | Successor Agents                                            | 51       |
|            |                                                        |     |
| SECTION 10 | MISCELLANEOUS                                               | 51       |
| 10.1.           | Amendments and Waivers                                      | 51       |
| 10.2.           | Notices                                                     | 52       |
| 10.3.           | No Waiver; Cumulative Remedies                              | 53       |
| 10.4.           | Payment of Expenses                                         | 53       |
| 10.5.           | Successors and Assigns; Participations;  Purchasing Banks   | 55       |
| 10.6.           | Adjustments                                                 | 59       |
| 10.7.           | Confidentiality                                             | 59       |
| 10.8.           | Counterparts                                                | 60       |
| 10.9.           | **GOVERNING  LAW**                                          | 60       |
| 10.10.          | Consent to Jurisdiction and Service of  Process             | 60       |

 

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| ** **     | ** **                                                         | **Page** |
|----------------|--------------------------------------------------------------------|----------|
| 10.11.         | USA PATRIOT Act                                                    | 61       |
|           |                                                               |     |
| SCHEDULES:     |                                                               |     |
|           |                                                               |     |
| Schedule I     | Terms of Subordination                                             |     |
| Schedule II    | Commitments                                                        |     |
| Schedule III   | Addresses for Notices                                              |     |
|           |                                                               |     |
| EXHIBITS:      |                                                               |     |
|           |                                                               |     |
| Exhibit A | Form of Borrowing  Notice                                     |     |
| Exhibit B | Form of Bid Loan  Request                                     |     |
| Exhibit C | Form of Bid Loan  Offer                                       |     |
| Exhibit D | Form of  Bid Loan Confirmation                                |     |
| Exhibit E | Form of  Loan Assignment                                      |     |
| Exhibit F | Form of  Commitment Transfer Supplement                       |     |
| Exhibit G | Form of  Opinion of General Counsel to the Company            |     |
| Exhibit H | Form of  Opinion of Special New York Counsel to the Borrowers |     |
| Exhibit I | Form of  Extension Request                                    |     |
| Exhibit J | Form of  Form W-8BEN Tax Letter                          |     |
| Exhibit K | Form of  Form W-8ECI Tax Letter                          |     |
| Exhibit L | Form of  Agreement                                            |     |
| Exhibit M | Form of  Promissory Note                                      |     |
| Exhibit N | Form of New Bank  Supplement                                  |     |
| Exhibit O | Form of Commitment  Increase Supplement                       |     |
|                |                                                                    |          |  |  |

 

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CREDIT AGREEMENT, dated as of March 4, 2008,among (a) DEERE & COMPANY, a Delaware corporation (the “Company”),(b) JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “CapitalCorporation”), (c) the several financial institutions parties hereto(collectively, the “Banks”, and individually, a “Bank”), (d) JPMORGANCHASE BANK, N.A., as administrative agent hereunder (in such capacity, togetherwith its successors and permitted assigns, the “Administrative Agent”), (e) CITIBANK,N.A. and CREDIT SUISSE FIRST BOSTON, as documentation agents hereunder (in suchcapacity, the “Documentation Agents”), (f) MERRILL LYNCH BANK USA,as co-documentation agent hereunder (in such capacity, the “Co-DocumentationAgent”), and (g) BANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORKBRANCH, as syndication agents hereunder (in such capacity, the “SyndicationAgents”).

 

The parties hereto hereby agree as follows:

 

SECTION 1            DEFINITIONS

 

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

 

“ABR”: at any particular date, the higher of (a) the rate of interest perannum publicly announced by JPMorgan Chase Bank, N.A. for such date as itsprime 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 aBusiness Day, the next preceding Business Day, opposite the caption “FederalFunds (Effective)” in the weekly statistical release designated as “H.15(519)”(or any successor publication) published by the Board or, if such rate is notso published for such date, the average of the quotations for such day on suchtransactions received by the Administrative Agent from three Federal Fundsdealers of recognized standing selected by it. The prime rate is not intended to be the lowest rate of interest chargedby JPMorgan Chase Bank, N.A. in connection with extensions of credit todebtors.

 

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

 

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

 

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

 

“Act”: as defined in subsection 10.11.

 

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

 

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

 

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“Agent”:  the Administrative Agent, a SyndicationAgent, a Documentation Agent or the Co-Documentation Agent, as the context shallrequire; together, the “Agents”.

 

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

 

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

 

“Applicable Margin”:  for ABR Loans, 0% per annum and (b) forEurodollar Loans, the rate per annum set forth below in the columncorresponding 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** | ** ** |
|---------------------------------------------------------------|------------|----------|------------|-----------|------------|---------------|------------|--------------|------------|-------------------------------------|------------|
| 0.115                                                         | %          | 0.160    | %          | 0.200     | %          | 0.290         | %          | 0.370        | %          | 0.525                               | %          |

 

; provided that, therate per annum for any Eurodollar Loans shall be increased by 0.125% for theperiod of time that any Committed Rate Loans remain outstanding after theTermination Date.

 

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

 

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

 

“benefitted Bank”:  as defined in subsection 10.6.

 

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

 

“Bid Loan Banks”:  the collective reference to each Bankdesignated from time to time as a Bid Loan Bank by a Borrower (for purposes ofBid Loans to such Borrower) by written notice to the Administrative Agent andwhich has not been removed as a Bid Loan Bank by such Borrower by writtennotice to the Administrative Agent (each of which notices the AdministrativeAgent shall transmit to each such affected Bank).

 

“Bid Loan Confirmation”:  each confirmation by the Company or theCapital Corporation of its acceptance of Bid Loan Offers, which Bid LoanConfirmation shall be substantially in the form of Exhibit D and shall bedelivered to the Administrative Agent by facsimile transmission or bytelephone, immediately confirmed by facsimile transmission.

 

“Bid Loan Offer”:  each offer by a Bid Loan Bank to make BidLoans pursuant to a Bid Loan Request, which Bid Loan Offer shall contain theinformation specified in 

 

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Exhibit C and shall bedelivered to the Administrative Agent by facsimile transmission or bytelephone, immediately confirmed by facsimile transmission.

 

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

 

“Board”:  the Board of Governors of the Federal ReserveSystem 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 ismade.

 

“Business Day”:  a day other than a Saturday, Sunday or otherday on which commercial banks in New York City are authorized or required bylaw to close; provided, that with respect to notices and determinationsin connection with, and payments of principal and interest on, EurodollarLoans, such day is also a day for trading by and between banks in Dollardeposits in the interbank eurodollar market in London.

 

 “CancelledBank”:  any Bank that has the wholeor 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 ofwhich has expired under subsection 2.16(a).

 

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

 

“Closing Date”:  the date on which each of the conditionsprecedent specified in subsection 4.1 shall have been satisfied (or compliancetherewith shall have been waived by the Majority Banks hereunder).

 

“Code”:  the Internal Revenue Code of 1986, as amendedfrom time to time.

 

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

 

“Commitment”:  as to any Bank, the amount set opposite suchBank’s name on Schedule II or in any assignment pursuant to which such Bankbecomes a party hereto with respect to any interest purchased therein, as suchamount 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).

 

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“Commitment Percentage”:  as to any Bank at any time, the percentagewhich such Bank’s Commitment at such time constitutes of all the Commitments atsuch time or, at any time after the Commitments shall have expired orterminated, the percentage which the aggregate principal amount of such Bank’sLoans then outstanding constitutes of the aggregate principal amount of allLoans then outstanding; collectively, as to all the Banks, the “CommitmentPercentages”.

 

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

 

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

 

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

 

“Commonly Controlled Entity”:  in relation to a Borrower, an entity, whetheror not incorporated, which is under common control with such Borrower withinthe 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 CapitalCorporation and its consolidated Subsidiaries, the sum of (a) the amountshown opposite the item “Total Stockholders’ Equity” on the consolidatedbalance sheet of the Capital Corporation and its consolidated Subsidiaries plus(b) all indebtedness of the Capital Corporation and its consolidatedSubsidiaries for borrowed money subordinated (on terms no less favorable to theAdministrative Agent and the Banks than the terms of subordination set forth onSchedule I) to the indebtedness which may be incurred hereunder by the CapitalCorporation, provided that the sum of clauses (a) and (b) hereofas at the end of a fiscal quarter of the Capital Corporation and itsconsolidated Subsidiaries (including the last quarter of a fiscal year of theCapital Corporation and its consolidated Subsidiaries) shall be determined byreference to the publicly available consolidated balance sheet of the CapitalCorporation and its consolidated Subsidiaries as at the end of such fiscalquarter and after such adjustments, if any, as may be required so that the sumof the amounts referred to in clauses (a) and (b) is determined inaccordance with GAAP.  Notwithstandingthe foregoing, for purposes of determining compliance with subsection 7.2,adjustments resulting from any accumulated other comprehensive income asreflected on the  most recent publiclyavailable consolidated balance sheet of the Capital Corporation and itsconsolidated Subsidiaries as at the end of any fiscal quarter of the CapitalCorporation and its consolidated Subsidiaries (including the last quarter ofany 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 CapitalCorporation and its consolidated Subsidiaries, indebtedness for borrowed moneyother than any 

 

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indebtedness for borrowedmoney that is subordinated, on terms no less favorable to the AdministrativeAgent and the Banks than the terms of subordination set forth on Schedule I, tothe indebtedness which may be incurred hereunder by the Capital Corporation, providedthat the amount of such indebtedness for borrowed money (other than suchsubordinated indebtedness) as at the end of a fiscal quarter of the CapitalCorporation and its consolidated Subsidiaries (including the last quarter of afiscal year of the Capital Corporation and its consolidated Subsidiaries) shallbe determined by reference to the publicly available consolidated balance sheetof the Capital Corporation and its consolidated Subsidiaries as at the end ofsuch fiscal quarter and after such adjustments, if any, as may be required sothat such amount is determined in accordance with GAAP.Notwithstandingthe foregoing, for purposes of determining compliance with subsection 7.2,indebtedness for borrowed money in respect of any Securitization Indebtednessshall be deemed not included in Consolidated Senior Debt.

 

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

 

“Credit Rating”: as to any Person, therating assigned to the relevant long term senior unsecured (and non-creditenhanced) Debt obligations of such Person by Moody’s or S&P.

 

“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, orboth, or any other condition, event or act has been satisfied.

 

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

 

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

 

“Equipment Operations”:  those business segments of the Company andits consolidated Subsidiaries that are primarily engaged in the manufacture anddistribution of equipment, parts and related attachments.

 

“Equipment Operations Debt”:  at a particular time, the sum of short-termand long-term indebtedness for borrowed money that is or would be shown on abalance sheet of Equipment Operations (with Financial Services reflected onlyon an equity basis), which balance sheet was or would be prepared on the basisof the most recent publicly available consolidated balance sheet of the Companyand its consolidated Subsidiaries as at the end of any fiscal quarter of theCompany and its consolidated Subsidiaries (including the last quarter of anyfiscal year of the Company and its consolidated Subsidiaries).

 

“ERISA”:  the Employee Retirement Income Security Actof 1974, as amended from time to time.

 

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

 

“Eurodollar Rate”:  with respect to each day during each InterestPeriod pertaining to a Eurodollar Loan and for each Index Rate Bid Loan, therate per annum determined on the basis of the rate for deposits in Dollars, fora period equal to such Interest Period commencing on the first day of suchInterest Period appearing on the Reuters Screen LIBOR01 Page as of 11:00 A.M.,Local Time, two Business Days prior to the beginning of such Interest Period.In the event that such rate does not appear on the Reuters Screen LIBOR01 Page (orotherwise on such system), the “Eurodollar Rate” shall be determined byreference to such other comparable publicly available service for displayingeurodollar rates as may be reasonably selected by the Administrative Agent or,in the absence of such availability, by reference to the rate at which theAdministrative Agent is offered Dollar deposits at or about 11:00 A.M.,Local Time, two Business Days prior to the beginning of such Interest Period inthe interbank eurodollar market where its eurodollar operations are then beingconducted for delivery on the first day of such Interest Period for the numberof days comprised therein.

 

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

 

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

 

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

 

“Facility Fee Rate”:  the rate per annum set forth below in thecolumn 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** | ** ** |
|---------------------------------------------------------------|------------|----------|------------|-----------|------------|---------------|------------|--------------|------------|-------------------------------------|------------|
| 0.035                                                         | %          | 0.040    | %          | 0.050     | %          | 0.060         | %          | 0.080        | %          | 0.100                               | %          |

 

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

 

“Fixed Charges”:  for any particular period for the CapitalCorporation and its consolidated Subsidiaries, all of the Capital Corporation’sand its consolidated Subsidiaries’ consolidated interest on indebtedness forborrowed money, amortization of discounts of indebtedness for borrowed money,the portion of rentals under financing 

 

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leases deemed to representinterest and rentals under operating leases; provided, that,notwithstanding the foregoing, consolidated interest on SecuritizationIndebtedness and amortization of Securitization Indebtedness shall be deemednot included in Fixed Charges; provided, further, that suchamounts (but not any amounts constituting consolidated interest on, oramortization of, Securitization Indebtedness) for a fiscal quarter of theCapital Corporation and its consolidated Subsidiaries (including the lastquarter of a fiscal year of the Capital Corporation and its consolidatedSubsidiaries) shall be determined by reference to the publicly availableconsolidated statement of income of the Capital Corporation and itsconsolidated Subsidiaries for or covering such fiscal quarter and after suchadjustments, if any, as may be required so that such amounts are determined inaccordance with GAAP.

 

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

 

“GAAP”:  generally accepted accounting principles inthe United States of America as applied in the preparation of financialstatements of the Company or the Capital Corporation, respectively, as of thefiscal year ended October 31, 2006.

 

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

 

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

 

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

 

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

 

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

 

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

 

“Interest Payment Date”:  (a) as to any ABR Loan, the lastBusiness Day of each March, June, September and December, commencing onthe first of such days to occur after such ABR Loan is made or a EurodollarLoan is converted to an ABR Loan, (b) as to any Eurodollar Loan, the lastday of each Interest Period applicable thereto, provided that as to anyEurodollar Loan in respect of which a Borrower has selected an Interest Periodof six months, interest shall also be paid on the day which is three monthsafter the beginning of such Interest Period, (c) with respect to anyObjecting Bank, the day on which such Bank’s Loans become due and payable inaccordance with subsection 2.16(b) and (d) the Maturity Date.

 

“Interest Period”:  (a)  with respect to any EurodollarLoan, the period commencing on the Borrowing Date, the date any ABR Loan isconverted to a Eurodollar Loan or the date any Eurodollar Loan is continued asa Eurodollar Loan, as the case may be, with respect to such Eurodollar Loan andending one, two, three or six months thereafter, as selected by a Borrower inits notice of borrowing, conversion or continuance as provided in subsection2.1(c) or 2.9;

 

(b)           withrespect to any Bid Loan, the period commencing on the Borrowing Date withrespect to such Bid Loan and ending on the date not less than seven days normore than six months thereafter, as specified by a Borrower in its Bid LoanRequest as provided in subsection 2.2(b); and

 

(c)           withrespect to any Negotiated Rate Loan, the period or periods commencing on theBorrowing Date with respect to such Negotiated Rate Loan or the last day of anyInterest Period with respect thereto and ending on the dates as shall bemutually agreed upon between the relevant Borrower and the relevant Bank;

 

provided, that all ofthe foregoing provisions relating to Interest Periods are subject to thefollowing:

 

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

 

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

 

(iii)          anyInterest Period pertaining to a Eurodollar Loan having an Interest Period ofone, two, three or six months or an Index Rate Bid Loan having an InterestPeriod of one, two, three, four, five or six months, that begins on the lastWorking 

 

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Day of a calendar month (or on a day for which there is no numericallycorresponding day in the calendar month at the end of such Interest Period)shall end on the last Working Day of a calendar month;

 

(iv)          InterestPeriods shall be deemed available only if the Required Banks shall not haveadvised the Administrative Agent that the Eurodollar Rate determined by theAdministrative Agent on the basis of the applicable quotes will not adequatelyand fairly reflect the cost to such Banks of maintaining or funding theirCommitted Rate Loans bearing interest based on the Eurodollar Rate determinedfor such Interest Period.  TheAdministrative Agent shall notify the Borrowers and each Bank promptly afterhaving been advised by the Required Banks that a Eurodollar Rate will not soadequately and fairly reflect such Banks’ costs as aforesaid.  If a requested Interest Period shall beunavailable in accordance with the foregoing sentence, the proposed Borrowermay (A) in accordance with the provisions (including any requirements fornotification) of subsection 2.1 request, at its option, that the requestedCommitted Rate Loans be made or maintained as ABR Loans or (B) withdrawthe request for such Committed Rate Loans for which the Interest Period wasunavailable by giving notice of such election to the Administrative Agent inaccordance with subsection 2.11; provided, that if the AdministrativeAgent does not receive any notice hereunder with respect to requested CommittedRate Loans, such Borrower shall be deemed to have requested ABR Loans;

 

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

 

(vi)          noInterest Period shall end after the Maturity Date.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“Maturity Date”:  the one-year anniversary of the TerminationDate.

 

“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 Bankpursuant to a Negotiated Rate Loan Request in such principal amount, for suchnumber of Interest Periods (subject to the proviso to the definition of “InterestPeriod” in this subsection 1.1) and having such interest rate(s) andrepayment terms as shall, in each case, be mutually agreed upon between suchBorrower and such Bank.

 

“Negotiated Rate Loan Request”:  each request by a Borrower for a Bank to makeNegotiated Rate Loans, which shall be delivered to such Bank in writing, byfacsimile transmission, or by telephone, immediately confirmed in writing, andwhich 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 Corporationand its consolidated Subsidiaries, consolidated net earnings of the CapitalCorporation and such Subsidiaries for such period without deduction of FixedCharges and without deduction of federal, state or other income taxes, providedthat such net earnings for a fiscal quarter of the Capital Corporation and itsconsolidated Subsidiaries (including the last quarter of a fiscal year of theCapital Corporation and its consolidated Subsidiaries) shall be determined byreference to the publicly available statement of income of the CapitalCorporation and its consolidated Subsidiaries for or covering such fiscalquarter and after such adjustments, if any, as may be required so that such netearnings are determined in accordance with GAAP, except that earned investmenttax credits may be included as revenue in the consolidated income statement ofthe Capital Corporation and its consolidated Subsidiaries, rather than as anoffset against the provision for income taxes.

 

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

 

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

 

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

 

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

 

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

 

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

 

“Person”:  an individual, partnership, corporation,business trust, joint stock company, trust, unincorporated association, jointventure, Governmental Authority or other entity of whatever nature, providedthat for purposes ofSection8(h), Personshall 

 

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also include two or moreentities 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 IVof ERISA and in respect of which either Borrower or a Commonly ControlledEntity is an “employer” as defined in Section 3(5) of ERISA.

 

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

 

“Report Period”:  as defined in subsection 2.18.

 

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

 

“Required Banks”:  at a particular time, Banks having CommitmentPercentages aggregating at least 66-2/3%; provided that (a) at anytime after the termination of all the Commitments, “Required Banks” means Banksholding Loans aggregating at least 66-2/3% in principal amount of alloutstanding Loans, (b) as used in subsection 2.16, “Required Banks” meanswith respect to any Extension Request, at a particular time after theTermination Date has been extended pursuant to such subsection, Banks (i) whichare not Objecting Banks with respect to any previous Extension Request and (ii) whichhave Commitment Percentages aggregating at least 66-2/3% of the aggregateCommitment Percentages of such non-Objecting Banks and (c) as used in anyprovision other than subsection 2.16 at any time after the CommitmentExpiration Date with respect to any Objecting Bank (but prior to thetermination of all the Commitments), “Required Banks” means Banks whoseExposure aggregates at least 66-2/3% of the aggregate Exposure of all theBanks.

 

“Requirement of Law”:  as to any Person, the Certificate ofIncorporation and By-Laws or other organizational or governing documents ofsuch Person, and any law, treaty, rule or regulation, or determination ofan arbitrator or a court or other Governmental Authority, in each caseapplicable to or binding upon such Person or any of its property or to whichsuch 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 AssistantTreasurer of such Borrower.

 

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“Restricted Margin Stock”:  any Margin Stock, the sale, pledge or otherdisposition of which by the Company or any of its Subsidiaries is in any wayrestricted by an arrangement with any Bank or any affiliate thereof to theextent that the value thereof (determined in accordance with Regulation U ofthe Board) does not exceed 25% of the value (determined in accordance with suchRegulation U) of all the assets subject to such restriction.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“Termination Date”:  the date which is 364 days after the ClosingDate or such later date as shall be determined pursuant to the provisions ofsubsection 2.16 with respect to non-Objecting Banks.

 

“Total Stockholders’ Equity”:  at a particular time, the total stockholders’equity, exclusive of adjustments resulting from any accumulated othercomprehensive income of the Company and its consolidated Subsidiaries as at theend of any fiscal quarter (including the last quarter of any fiscal year) asdetermined in accordance with GAAP.

 

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

 

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

 

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

 

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

 

“Utilization Fee Rate”: the rate perannum set forth below in the column corresponding to the Prevailing Rating ofthe 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 afraction (a) the numerator of which is the aggregate outstanding principalamount of the Loans and (b) the denominator of which is the aggregateCommitments (or, on any day after termination of the Commitments, the aggregateCommitments in effect immediately preceding such termination).

 

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

 

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

 

### (b)           As used herein and in any certificateor other document made or delivered pursuant hereto, accounting terms relatingto either Borrower and its Subsidiaries not defined in subsection 1.1, andaccounting 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 thisAgreement as a whole and not to any 

 

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###  

### particular provision of thisAgreement, and Section, subsection, Schedule and Exhibit references are tothis Agreement unless otherwise specified.

###  

### (d)           Unless otherwise qualified, allreferences to a “Subsidiary” or to “Subsidiaries” in this Agreement shall referto a Subsidiary or Subsidiaries of the relevant Borrower.

###  

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

 

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

 

### (b)           The Committed Rate Loans may beeither (i) Eurodollar Loans, (ii) ABR Loans or (iii) a combinationthereof as determined by the relevant Borrower.

###  

### (c)           Either Borrower may borrow CommittedRate Loans on any Working Day, if the borrowing is of Eurodollar Loans, or onany Business Day, if the borrowing is of ABR Loans; provided, however,that a Responsible Officer of such Borrower shall give the Administrative Agentirrevocable notice thereof (which notice must be received by the AdministrativeAgent (i) prior to 12:00 Noon, New York City time, three Working Daysprior to the requested Borrowing Date, in the case of Eurodollar Loans and (ii) priorto 12:00 Noon, New York City time, on the requested Borrowing Date, in the caseof ABR Loans.  Each such notice shall begiven in writing or by facsimile transmission substantially in the form of Exhibit A(with appropriate insertions) or shall be given by telephone (specifying theinformation set forth in Exhibit A) promptly confirmed by notice given inwriting or by facsimile transmission substantially in the form of Exhibit A(with appropriate insertions).  On theday of receipt of any such notice from either Borrower, the AdministrativeAgent shall promptly notify each Bank thereof. Each Bank will make the amount of its share of each borrowing availableto the Administrative Agent for the account of such Borrower at the office ofthe Administrative Agent set forth in subsection 10.2 at 11:00 A.M. (or2:00 P.M., in the case of ABR Loans requested pursuant to clause (iii) above),New York City time, on the Borrowing Date requested by such Borrower in funds immediatelyavailable to the Administrative Agent as the Administrative Agent maydirect.  The proceeds of all suchCommitted Rate Loans will be made available promptly to such Borrower by theAdministrative Agent at the office of the Administrative Agent specified insubsection 10.2 by crediting the account of such Borrower on the books of suchoffice of the Administrative Agent with the aggregate of the amount madeavailable to the Administrative Agent by the Banks and in like funds asreceived by the Administrative Agent.

###  

### (d)           All Committed Rate Loans made to eachBorrower shall be repaid in full by such Borrower on or before the MaturityDate; provided the Committed Rate Loans made by Objecting Banks shall berepaid as provided in subsection 2.16(b).

 

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2.2.          The Bid Loans; the Negotiated RateLoans.  (a)  EitherBorrower may borrow Bid Loans or Negotiated Rate Loans from time to time on anyBusiness Day (in the case of Bid Loans made pursuant to an Absolute Rate BidLoan Request), any Working Day (in the case of Bid Loans made pursuant to anIndex Rate Bid Loan Request) or, in the case of Negotiated Rate Loans, on suchdays as shall be mutually agreed upon between the relevant Borrower and theapplicable Bank, in each case during the Commitment Period and in the mannerset forth in this subsection 2.2 and in amounts such that the aggregateprincipal amount of Loans at any time outstanding shall not exceed theaggregate amount of the Commitments at such time.  Notwithstanding any other provision of thisAgreement, the aggregate principal amount of the outstanding Bid Loans and/orNegotiated Rate Loans made by any Bank may at any time (but shall not berequired to) exceed the Commitment of such Bank so long as the aggregateoutstanding principal amount of all Loans does not at any time exceed theaggregate amount of the Commitments.

 

### (b)           (i)  Either Borrower shallrequest Bid Loans or Negotiated Rate Loans by delivering (A) in the caseof an Index Rate Bid Loan, a Bid Loan Request to the Administrative Agent, c/oJPMorgan Chase Bank, N.A., 1111 Fannin Street, 10th Floor, Houston,Texas 77002, Attention:  Talitha Humes,Telephone:  (713) 750-6190,Facsimile:  (713) 750-2782], not laterthan 12:00 Noon (New York City time) four Working Days prior to the proposedBorrowing Date, (B) in the case of an Absolute Rate Bid Loan, a Bid LoanRequest to the Administrative Agent at the address set forth in clause (A) ofthis subsection 2.2(b)(i) not later than 10:00 A.M. (New York Citytime) one Business Day prior to the proposed Borrowing Date or (C) in thecase of a Negotiated Rate Loan, a Negotiated Rate Loan Request to any Bank atsuch time as the applicable Borrower and the applicable Bank shall agree.  Each Bid Loan Request may solicit bids forBid Loans in an aggregate principal amount of $25,000,000 or an integralmultiple of $5,000,000 in excess thereof and for not more than threealternative Interest Periods for such Bid Loans.  The Administrative Agent shall promptlynotify each Bid Loan Bank by facsimile transmission or by telephone,immediately confirmed by facsimile transmission, of the contents of each BidLoan Request received by it.

###  

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

 

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#####  

##### (iii)          Inthe case of an Absolute Rate Bid Loan Request, upon receipt of notice from theAdministrative Agent of the contents of such Bid Loan Request, any Bid LoanBank that elects, in its sole discretion, to do so, shall irrevocably offer tomake one or more Bid Loans at a rate or rates of interest for each such BidLoan determined by such Bid Loan Bank in its sole discretion.  Any such irrevocable offer shall be made bydelivering a Bid Loan Offer to the Administrative Agent at the address setforth 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 maximumamount of Bid Loans for each Interest Period, and the aggregate maximum amountfor all Interest Periods, which such Bid Loan Bank would be willing to make andthe rate or rates of interest at which such Bid Loan Bank is willing to makeeach such Bid Loan.  The AdministrativeAgent shall advise the relevant Borrower before 10:00 A.M. (New York Citytime) on the proposed Borrowing Date of the contents of each such Bid LoanOffer received by it.  If theAdministrative Agent in its capacity as a Bid Loan Bank shall, in its solediscretion, elect to make any such offer, it shall advise such Borrower of thecontents of its Bid Loan Offer before 9:15 A.M. (New York City time) onthe proposed Borrowing Date.

#####  

##### (iv)          Therelevant Borrower shall before 11:30 A.M. (New York City time) threeWorking Days before the proposed Borrowing Date (in the case of Bid Loansrequested by an Index Rate Bid Loan Request) and before 10:30 A.M. (NewYork City time) on the proposed Borrowing Date (in the case of Bid Loansrequested by an Absolute Rate Bid Loan Request) either, in its absolutediscretion:

#####  

(A)          cancelsuch Bid Loan Request by giving the Administrative Agent telephone notice tothat effect, or

 

(B)           acceptone or more of the offers made by any Bid Loan Bank or Bid Loan Banks pursuantto clause (ii) or clause (iii) of this subsection 2.2(b), as the casemay be, by giving telephone notice to the Administrative Agent (immediatelyconfirmed by delivery to the Administrative Agent at the address set forth inclause (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 eachBid Loan Bank (which amount shall be equal to or less than the maximum amountfor 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 toor less than the aggregate maximum amount specified in such Bid Loan Offer forall such Interest Periods) and reject any remaining offers made by Bid LoanBanks pursuant to clause (ii) or clause (iii) above, as the case maybe; provided, however, that (x) such Borrower may not acceptoffers for Bid Loans for any Interest Period in an aggregate principal amountin excess of the maximum principal amount requested for such Interest Period inthe related Bid Loan Request, (y) if such Borrower accepts any suchoffers, it must accept offers strictly based upon pricing for such relevantInterest Period and upon no other criteria whatsoever and (z) if two ormore Bid Loan Banks submit offers for any Interest Period at identical pricingand such Borrower accepts any of such offers but does not wish to borrow thetotal amount offered by such Bid Loan Banks with such identical pricing, suchBorrower shall accept offers from all of such Bid Loan Banks in amountsallocated among them prorata according to the amounts offered bysuch Bid Loan Banks (or as nearly prorata as shall bepracticable, after giving effect to the requirement that Bid Loans made by aBid Loan Bank on a Borrowing Date 

 

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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 beingagreed that to the extent that it is not possible to make allocations inaccordance with the provisions of this clause (z) such allocations shallbe made in accordance with the instructions of such Borrower, it beingunderstood that in no event shall any Bank be obligated to make any Bid Loan ina principal amount less than $5,000,000).

 

##### (v)           Ifsuch Borrower notifies the Administrative Agent that a Bid Loan Request iscancelled pursuant to clause (iv)(A) of this subsection 2.2(b), theAdministrative Agent shall give prompt telephone notice thereof to the Bid LoanBanks, 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) oneor more of the offers made by any Bid Loan Bank or Bid Loan Banks pursuant to aBid Loan Request, the Administrative Agent shall promptly notify by telephoneeach Bid Loan Bank which has made such an offer of the aggregate amount of suchBid Loans to be made on such Borrowing Date for each Interest Period and of theacceptance or rejection of any offers to make such Bid Loans made by such BidLoan Bank.  Each Bid Loan Bank which isto make a Bid Loan pursuant to a Bid Loan Request shall, before 12:00 Noon (NewYork City time) on the Borrowing Date specified in the Bid Loan Requestapplicable thereto, make available to the Administrative Agent at its officeset forth in subsection 10.2 the amount of Bid Loans to be made by such BidLoan Bank, in immediately available funds. The Administrative Agent will make such funds available to such Borroweras soon as practicable on such date at the Administrative Agent’s aforesaidaddress.

#####  

(B)           Ifsuch Borrower and any Bank agree to the terms of a Negotiated Rate Loan to bemade on a Borrowing Date pursuant to a Negotiated Rate Loan Request, suchBorrower and such Bank shall promptly notify by telephone the AdministrativeAgent of the aggregate amount of Negotiated Rate Loans to be made on suchBorrowing Date and the respective Interest Periods therefor.  Each Bank which is to make a Negotiated RateLoan shall, at such time, on such Borrowing Date and at such location as shallbe mutually agreed upon between such Borrower and such Bank, make available tosuch Borrower the amount of Negotiated Rate Loans to be made by such Bank, inimmediately available funds.

 

(C)           Assoon as practicable after each Borrowing Date for Bid Loans and Negotiated RateLoans, the Administrative Agent shall notify each Bank of the aggregate amountof Bid Loans or Negotiated Rate Loans advanced pursuant to a Bid Loan Requestor Negotiated Rate Loan Request on such Borrowing Date and the respectiveInterest Periods therefor.

 

### (c)           Within the limits and on theconditions set forth in this subsection 2.2, each Borrower may from time totime 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 theAdministrative Agent for the account of each Bid Loan Bank (or the LoanAssignee in respect thereof, as the case may be) which has made a Bid Loan tosuch Borrower on the last day of the Interest Period for each Bid Loan (such 

###  

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###  

### Interest Periodbeing that specified by such Borrower for repayment of such Bid Loan in therelated Bid Loan Request) the then unpaid principal amount of such BidLoan.  Each Borrower shall repay to eachBank which has made a Negotiated Rate Loan to such Borrower (or the LoanAssignee in respect thereof, as the case may be) the principal thereof asagreed by such Borrower and such Bank.

###  

### (e)           Each Borrower shall pay intereston the unpaid principal amount of each Bid Loan and each Negotiated Rate Loanborrowed by such Borrower from the applicable Borrowing Date to the statedmaturity date thereof, in the case of a Bid Loan, at the rate of interestdetermined pursuant to paragraph (b) of this subsection 2.2, and, in thecase of a Negotiated Rate Loan, as agreed by such Borrower and the relevantBank (calculated on the basis of a 360 day year for actual days elapsed),payable on the interest payment date or dates (i) specified by suchBorrower for such Bid Loan in the related Bid Loan Request and (ii) mutuallyagreed upon between such Borrower and such Bank in the case of Negotiated RateLoans, provided that as to any Bid Loan in respect of which the statedmaturity date is more than three months after such Borrowing Date, interestshall also be paid on the day which occurs three months after such BorrowingDate.  If all or a portion of theprincipal amount of any Bid Loan shall not be paid when due (whether at thestated maturity, by acceleration or otherwise), such overdue principal amountshall, without limiting any rights of any Bank under this Agreement, bearinterest from the date on which such payment was due at a rate per annum whichis 1% above the rate which would otherwise be applicable to such Bid Loan untilthe scheduled maturity date with respect thereto and for each day thereafter ata rate per annum which is 1% above the ABR until paid in full (as well after asbefore judgment).  If all or any portionof the principal amount of any Negotiated Rate Loan shall not be paid when due(whether at the stated maturity, by acceleration or otherwise), such overdueprincipal amount shall, without limiting any rights of any Bank under thisAgreement, bear interest from the date on which such payment was due at a rateper annum as shall be mutually agreed upon between the relevant Borrower andthe relevant Bank.

###  

### (f)            After the first Bid Loan Requesthas been given hereunder, no Bid Loan Request or Negotiated Rate Loan Requestshall be given until at least one Business Day, in the case of an Absolute RateBid Loan Request, or one Working Day, in the case of an Index Rate Bid LoanRequest, after the earliest to occur of (i) the Borrowing Dates withrespect to all prior Bid Loan Requests made pursuant to subsection 2.2(b)(i), (ii) thedate on which all Bid Loan Banks have failed to submit Bid Loan Offers withrespect 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 relevantBorrower has cancelled all prior Bid Loan Requests pursuant to subsection2.2(b)(iv).

###  

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2.3.          LoanAccounts.  Each Bank, with respect toits Committed Rate Loans, Bid Loans and Negotiated Rate Loans, and theAdministrative Agent, with respect to all Committed Rate Loans, Negotiated RateLoans and Bid Loans, shall open and maintain in the name of each Borrower loanaccounts (as to each Bank, its “Loan Account” applicable to suchBorrower) on its books and records setting forth the amounts of principal,interest and other sums paid and payable by such Borrower from time to timehereunder in respect of such Loans, and the obligation of such Borrower to payor repay, as the case may be, such amounts to such Bank shall be evidenced bysuch Bank’s Loan Account.  In case of anydispute, action or proceeding relating to any Committed Rate Loan, Bid Loan orNegotiated Rate Loan, the entries in such records shall constitute primafacie evidence of the accuracy of the information set forththerein.  In case of discrepancy betweenthe entries in the Administrative Agent’s books and records and any Bank’s, theentries in the Administrative Agent’s books and records shall constitute primafacie evidence of the accuracy of the information set forth therein.

 

2.4.          Fees.  (a)  The Company and the CapitalCorporation jointly and severally agree to pay to the Administrative Agent forthe account of each Bank a facility fee (i) from and including the ClosingDate to but excluding the date on which the Commitment of such Bank terminateshereunder, computed at a per annum rate equal to the Facility Fee Rate on theaverage daily amount of the Commitment of such Bank in effect during the periodfor which payment is made and (ii) thereafter until all Committed RateLoans of such Bank are paid in full, computed at a per annum rate equal to theFacility Fee Rate on the average daily amount of such Committed Rate Loansoutstanding, in each case, payable quarterly in arrears on the first BusinessDay of each January, April, July and October of each year, on theTermination Date or such earlier date on which the Commitments shall terminateas provided herein, and on the Maturity Date or such earlier date on which theLoans are repaid in full and, with respect to any Objecting Bank, the day onwhich such Bank’s Loans become due and payable in accordance with subsection2.16(b), commencing in April, 2008.

 

### (b)           The Company and the CapitalCorporation jointly and severally agree to pay to the Administrative Agent forthe account of each Bank a utilization fee (a “Utilization Fee”) at a rate perannum equal to the applicable Utilization Fee Rate on the daily amount of suchBank’s outstanding Committed Rate Loans for each day on which the UtilizationPercentage exceeds 50%.  Such UtilizationFees shall be payable quarterly in arrears on the first Business Day of each ofJanuary, April, July and October of each year, on the TerminationDate or such earlier date on which the Commitments shall terminate as providedherein, and on the Maturity Date or such earlier date on which the Loans arerepaid in full and, with respect to any Objecting Bank, the day on which suchBank’s Loans become due and payable in accordance with subsection 2.16(b),commencing in April, 2008.

###  

### (c)           The Company and the CapitalCorporation jointly and severally agree to pay to the Administrative Agent forits own account all fees set forth in the letter agreement dated February 7,2008 from J.P. Morgan Securities Inc. and JPMorgan Chase Bank, N.A. to theBorrowers.

###  

### (d)           The Company and the CapitalCorporation jointly and severally agree to pay to the Administrative Agent forits own account all other fees payable to the Administrative Agent as theBorrowers and the Administrative Agent shall mutually agree from time to time.

###  

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2.5.          Terminationor 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 theAdministrative Agent, to terminate the Commitments or, from time to time,reduce the amount of the Commitments, provided that (i) any suchreduction shall be accompanied by prepayment of Committed Rate Loans hereunder,together with accrued interest on the amount so prepaid to the date of suchprepayment, to the extent, if any, that the aggregate outstanding principalamount of all Loans exceeds the amount of the Commitments as then reduced and (ii) anysuch termination of the Commitments shall be accompanied by  prepayment in full of the Loans thenoutstanding hereunder in accordance with subsection 2.6 together with paymentof any accrued interest and fees, and any termination of a Bank’s Commitmentpursuant to subsection 2.13, 2.16 or 2.17 shall, with respect to each affectedLoan, on the last day of the applicable Interest Period therefor or, ifearlier, on such earlier date as shall be notified by the Borrowers, beaccompanied by prepayment in full of such Loan, together with, in each case,accrued interest thereon to the date of such prepayment, the payment of anyunpaid facility fee and Utilization Fee then accrued hereunder, and the paymentof any amounts then payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17.  Upon receipt of such notice from theBorrowers the Administrative Agent shall promptly notify each Bankthereof.  Any reduction of theCommitments 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 theability of the Capital Corporation to borrow hereunder upon not less than fiveBusiness 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 suchnotice, on which all Loans to the Capital Corporation and all interest thereonshall have been paid in full, and notwithstanding any other provision of thisAgreement, (i) the Capital Corporation shall cease to be a party hereto orto have any right or obligation hereunder, (ii) rights and obligationsexpressed herein to be, in effect, of either the Company or the CapitalCorporation or of both of them, but not any such rights and obligationsexpressed herein to be of the Capital Corporation only, shall be deemed to berights and obligations of the Company only and (iii) the Banks shall ceaseto have any right or obligation hereunder which depends or is contingent uponany action, condition or performance, or the absence thereof, whether past orpresent, of the Capital Corporation other than any action, condition orperformance, or the absence thereof, of the Capital Corporation in its capacityas a Subsidiary, Significant Subsidiary or Restricted Subsidiary hereunder; provided,however, that the obligation of the Capital Corporation to make anypayment pursuant to subsection 2.13, 2.14, 2.15 or 2.17 which arises prior tothe cancellation of the ability of the Capital Corporation to borrow hereundershall survive the cancellation of the ability of the Capital Corporation toborrow hereunder.

###  

2.6.          OptionalPrepayments.  Either Borrower may atany time and from time to time prepay its Committed Rate Loans in whole or inpart, without premium or penalty, but subject to the provisions of subsection2.14, upon at least three Working Days’ irrevocable notice (by 11:00 a.m.,New York City time), in the case of Eurodollar Loans, or same day irrevocablenotice 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 ofits Eurodollar Loans, ABR Loans, or a combination thereof, and if of a combinationthereof, the amount of prepayment allocable to

 

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each.  Upon receipt of such notice theAdministrative Agent shall promptly notify each Bank thereof.  If such notice is given, the Borrowerdelivering such notice shall make such prepayment, and the payment of theamount specified in such notice shall be due and payable, on the date specifiedtherein, together with accrued interest to such date on the amount prepaid andany amounts payable pursuant to subsections 2.14 and 2.15.  Except as provided in the immediatelyfollowing sentence, partial prepayments shall be in an aggregate principalamount of $5,000,000, or a whole multiple thereof; provided, however,that after giving effect thereto, the aggregate principal amount of allCommitted Rate Loans made on the same Borrowing Date shall not be less than$25,000,000.  Anything contained in thissubsection 2.6 to the contrary notwithstanding, partial prepayments of aCancelled Bank’s Loans in connection with the termination under subsection2.13(a), (b) or (c), 2.16(c) or 2.17(b) of such Cancelled Bank’sCommitment (in whole or in part) shall be in an amount equal to the principalamount of the Loans of such Bank being prepaid, notwithstanding the amount thereof,and shall be permitted notwithstanding the provisions of the foregoingproviso.  Either Borrower may prepayNegotiated Rate Loans or Bid Loans on such terms as shall be mutually agreedupon between the relevant Borrower and the relevant Bank.

 

2.7.          MinimumAmount of Certain Loans.  Allborrowings, conversions, continuations, payments and, except as set forth inthe penultimate sentence of subsection 2.6, prepayments in respect of CommittedRate Loans shall be in such amounts and be made pursuant to such electionsthat, after giving effect thereto, (a) the aggregate principal amount ofCommitted Rate Loans made on any Borrowing Date shall not be less than$25,000,000 or a whole multiple of $5,000,000 in excess thereof and (b) theaggregate principal amount of Committed Rate Loans of any Type with the sameInterest Period shall not be less than $10,000,000 or a whole multiple of$1,000,000 in excess thereof.

 

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

 

### (b)           The ABR Loans shall bearinterest for each day during the period from the date thereof until the paymentin full thereof on the unpaid principal amount thereof at a fluctuating rateper annum equal to the ABR for such day plus the Applicable Margin.

###  

### (c)           If all or a portion of theprincipal amount of any of the Committed Rate Loans shall not be paid when due(whether at the stated maturity, by acceleration or otherwise) such overdueprincipal amount of such Committed Rate Loan (i) shall bear interest at arate per annum which is 1% above the rate which would otherwise be applicablepursuant to subsection 2.8(a) or (b) as the case may be, from thedate when such principal amount is due until the date on which such amount ispaid in full and (ii) shall, if such Committed Rate Loan is a EurodollarLoan, be converted to an ABR Loan at the end of the Interest Period applicablethereto.

###  

### (d)           Interest shall be payable inarrears on each Interest Payment Date.

###  

2.9.          Conversionand Continuation Options.  (a)  Therelevant Borrower may elect from time to time to convert Committed Rate Loansof one Type into Committed Rate Loans of another Type by giving to theAdministrative Agent irrevocable notice of such

 

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conversion by theearliest time that they would have been required to give notice undersubsection 2.1(c) if they had been borrowing Committed Rate Loans of eachsuch Type on the conversion date specified in such notice, provided thatany such conversion of Eurodollar Loans may only be made on the last day of anInterest Period with respect thereto. Any such notice of conversion to Eurodollar Loans shall specify thelength of the initial Interest Period or Interest Periods therefor.  Upon receipt of any such notice the AdministrativeAgent shall promptly notify each Bank thereof. All or any part of outstanding Eurodollar Loans and ABR Loans may beconverted as provided herein, provided that no Loan may be convertedinto a Eurodollar Loan after the date that is one month prior to (i) inthe case of a Loan made by an Objecting Bank, the first anniversary of suchObjecting Bank’s Commitment Expiration Date, and (ii) in the case of allLoans, the Maturity Date.

 

### (b)           Any Eurodollar Loans may becontinued as such upon the expiration of the then current Interest Period withrespect thereto by the relevant Borrower giving notice to the AdministrativeAgent, such notice to be given by the time it would have been required to givenotice under subsection 2.1(c) if it had been borrowing Eurodollar Loanson the last day of the then expiring Interest Period therefor, of the length ofthe next Interest Period to be applicable to such Loans, provided thatno Eurodollar Loan may be continued as such after the date that is one monthprior to (i) in the case of a Loan made by an Objecting Bank, the firstanniversary of such Objecting Bank’s Commitment Expiration Date, and (ii) inthe case of all Loans, the Maturity Date. Upon receipt of any such notice, the Administrative Agent shall promptlynotify each Bank thereof.

###  

2.10.        Computationof Interest and Fees.  (a) Facility fees, Utilization Fees and interest in respect of ABR Loans based uponclause (a) of the definition of ABR shall be calculated on the basis of a365- (or 366- as the case may be) day year for the actual days elapsed(including the first day and excluding the last day).  Interest in respect of Eurodollar Loans, BidLoans and ABR Loans based upon clause (b) of the definition of ABR shallbe calculated on the basis of a 360-day year for the actual days elapsed(including the first day and excluding the last day).  The Administrative Agent shall promptlynotify the Borrowers and the Banks of each determination of a Eurodollar Rate.  Any change in the interest rate on aCommitted Rate Loan resulting from a change in the ABR shall become effectiveas of the opening of business on the day on which such change in the ABR shallbecome effective.  The AdministrativeAgent shall promptly notify the Borrowers and the Banks of the effective date andthe amount of each such change.

 

(b)           Eachdetermination of an interest rate by the Administrative Agent pursuant to anyprovision of this Agreement shall be conclusive and binding on the Borrowersand the Banks in the absence of manifest error.

 

2.11.        Inabilityto Determine Interest Rate.  (a) In the event that the Administrative Agent shall have determined (whichdetermination shall be conclusive and binding upon the Borrowers) that byreason of circumstances affecting the interbank eurodollar market generally,adequate and reasonable means do not exist for ascertaining the Eurodollar Ratefor any requested Interest Period with respect to Committed Rate Loans that aBorrower has requested be made as, continued as or converted into EurodollarLoans, the Administrative Agent shall promptly give notice of suchdetermination to such Borrower and the Banks prior to

 

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the first day ofthe requested Interest Period for such Eurodollar Loans.  If such notice is given, such Borrower may (i) inaccordance with the provisions of subsection 2.1 or 2.9, as the case may be(including any requirements for notification), request that the affected Loansbe made as, continued as or converted into, as the case may be, ABR Loans, or (ii) inthe case of Loans requested to be made on the first day of such InterestPeriod, withdraw the notice given under subsection 2.1 or 2.9, as the case maybe, by giving telephonic notice to the Administrative Agent, no later than10:00 A.M. (New York City time) on the applicable Borrowing Date,confirmed in writing no later than one Business Day after such telephonicnotice is given; provided that if the Administrative Agent does notreceive any notice permitted from the relevant Borrower hereunder, suchBorrower shall be deemed to have requested that the affected Loans be made as,continued as or converted into, as the case may be, ABR Loans.  Until the notice given pursuant to the firstsentence of this paragraph has been withdrawn by the Administrative Agent, nofurther Loans shall be made as, continued as or converted into, as the case maybe, Eurodollar Loans.

 

### (b)           In the event that theAdministrative Agent shall have determined (which determination shall beconclusive and binding upon the Borrowers) that by reason of circumstancesaffecting the interbank eurodollar market, adequate and reasonable means do notexist for ascertaining the Eurodollar Rate for any Interest Period with respectto 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 tothe relevant Borrower and the Bid Loan Banks at least two Business Days priorto the proposed Borrowing Date, and such Bid Loans shall not be made on suchBorrowing Date.  Until any such noticehas been withdrawn by the Administrative Agent, no further Index Rate Bid LoanRequests shall be submitted by either Borrower.

###  

2.12.        ProRata Treatment and Payments.  (a) All payments (including prepayments), to be made by the Borrowers on account ofprincipal, interest and fees shall be made without defense, set-off orcounterclaim and shall be made, in the case of fees and principal of, andinterest on, Loans (other than Negotiated Rate Loans) at the AdministrativeAgent’s office specified in subsection 10.2, in each case in lawful money ofthe United States of America and in immediately available funds not later than11:00 A.M. (New York City time) on the date due.  The Administrative Agent shall distributesuch payments to the Banks entitled thereto on the day of receipt in like fundsas received, provided that the Administrative Agent shall have receivedsuch payments not later than 11:00 A.M. (New York City time).  If the Administrative Agent shall distribute suchpayments to the Banks entitled thereto on a date after the date on which suchpayments were received prior to 11:00 A.M. (New York City time), theAdministrative Agent shall pay to each such Bank on demand an amount equal tothe product of (i) the daily average Federal Funds rate during such periodas quoted by the Administrative Agent, times (ii) the amount ofsuch Bank’s share of such payment, times (iii) a fraction, thenumerator of which is the number of days that elapse from and including suchdate of receipt of payment by the Administrative Agent to but excluding thedate on which such Bank’s share of such payment shall have become immediatelyavailable to such Bank and the denominator of which is 360.  All payments (including prepayments) to be madeby the Borrowers on account of principal, interest and fees relating toNegotiated Rate Loans shall be made to the Bank with respect thereto on suchterms, at such address and at such time as shall be mutually agreed uponbetween the relevant Borrower and the relevant Bank in lawful money of theUnited States of America on the date due.

 

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### (b)           (i)  Eachborrowing by the Borrowers of Committed Rate Loans and each payment ofprincipal in respect of Committed Rate Loans (subject to the provisions ofsubsection 2.20(e)) shall be made in accordance with the followingrequirements:

###  

(A)          All borrowings of Committed Rate Loansand all principal payments in respect of such Loans, shall be made prorataaccording 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 NegotiatedRate Loans) on any day on which principal amounts are due and owing in respectof any Loans (other than Negotiated Rate Loans), such principal payment shallbe applied to the Banks prorata according to the respectiveamounts 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 prorataamong the Banks according to their respective Commitment Percentages.  Each payment by the Borrowers under thisAgreement or of any Loan (other than Negotiated Rate Loans) shall be applied, first,to any fees then due and owing pursuant to subsection 2.4, second, tointerest then due and owing in respect of the Loans (other than Negotiated RateLoans) and third, to principal then due and owing hereunder (other thanprincipal due and owing under Negotiated Rate Loans) and under the Loans (otherthan Negotiated Rate Loans).  Eachpayment made by the Borrowers under this Agreement relating to a NegotiatedRate Loan to the Bank with respect thereto shall be applied, first, tointerest 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 RateLoan and under such Negotiated Rate Loan. Each payment (other than voluntary prepayments made when no principalpayments are due and owing hereunder) by either Borrower on account ofprincipal of and interest on the Loans (other than Negotiated Rate Loans) shallbe made for the account of each Bank prorata according to therespective amounts of principal and interest due and owing to such Bank underthis Agreement.  Subject to therequirements of clause (i) of this paragraph (b), each payment by aBorrower on account of principal of the Loans (other than Negotiated RateLoans) shall be applied, first, to such of its Committed Rate Loanborrowings as such Borrower may designate, provided, however,that if any such payment is made after the Commitment Expiration Date for anyObjecting Banks to which Committed Rate Loans remain outstanding, suchObjecting Banks shall receive, prorata, the portion of suchpayment that bears the same ratio to the aggregate outstanding principal amountof Committed Rate Loans owing to all Objecting Banks as the portion of suchprepayment applied to the Committed Rate Loans of the other Banks bears to theaggregate outstanding principal amount of Committed Rate Loans owing to suchother Banks, and, second, after all Committed Rate Loans shall have beenpaid in full, to all of its Absolute Rate Bid Loans or Index Rate Bid Loansmade on the same Borrowing Date with the same Interest Period as such Borrowermay designate, prorata according to the respective amountsoutstanding; provided, however, that prepayments made pursuant tosubsection 2.13(a), (b) or (c), 2.16(c) or 2.17(b) shall beapplied in accordance with such subsection.

#####  

### (c)           Ifany payment hereunder (other than payments on the Eurodollar Loans and IndexRate Bid Loans) becomes due and payable on a day other than a Business Day,such payment shall be extended to the next succeeding Business Day.  If any payment on a Eurodollar

###  

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### Loanor Index Rate Bid Loan becomes due and payable on a day other than a WorkingDay, the maturity thereof shall be extended to the next succeeding Working Dayunless the result of such extension would be to extend such payment intoanother calendar month in which event such payment shall be made on the immediatelypreceding Working Day.  With respect toany extension of the payment of principal pursuant to this subsection 2.12(c),interest thereon shall be payable at the then applicable rate during suchextension.

###  

### (d)           Unlessthe Administrative Agent shall have been notified in writing by any Bank priorto the date of the Committed Rate Loan, Committed Rate Loans, Bid Loan or BidLoans to be made by such Bank (which notice shall be effective upon receipt)that such Bank will not make its prorata share of the amount ofthe requested borrowing on such date available to the Administrative Agent, theAdministrative Agent may assume that such Bank has made such amount availableto it on such date and the Administrative Agent may, in reliance upon suchassumption, make available to the relevant Borrower a correspondingamount.  If a Bank shall make such amountavailable to the Administrative Agent on a date after such Borrowing Date, suchBank shall pay to the Administrative Agent on demand an amount equal to theproduct of (i) the daily average Federal Funds rate during such period asquoted by the Administrative Agent, times (ii) the amount of suchBank’s prorata share of such borrowing, times (iii) afraction, the numerator of which is the number of days that elapse from andincluding such Borrowing Date to but excluding the date on which such Bank’s prorata share of such borrowing shall have become immediately available tothe Administrative Agent and the denominator of which is 360.  A certificate of the Administrative Agentsubmitted to any Bank with respect to any amounts owing under this subsection2.12(d) shall be conclusive, absent manifest error.  If such Bank’s prorata shareis not in fact made available to the Administrative Agent by such Bank withinthree Business Days of such Borrowing Date, the Administrative Agent shall beentitled to recover such amount, on demand, from the relevant Borrower withinterest thereon at the rate equal to the product of (i) during the periodfrom and including such Borrowing Date to the Business Day next following thedate of such demand, the daily average Federal Funds rate as quoted by theAdministrative Agent, times a fraction, the numerator of which is thenumber of days that elapse from and including such Borrowing Date to butexcluding the Business Day next following the date of such demand and thedenominator of which is 360 and (ii) thereafter, the interest rate orrates applicable to the Loan or Loans funded by the Administrative Agent onbehalf of such Bank on such Borrowing Date, times a fraction, thenumerator of which is the number of days which elapse from and including theBusiness Day next following the date of such demand to but excluding the datesuch amount is recovered by the Administrative Agent from such Borrower and thedenominator of which is 360.  In theevent any Bank’s prorata share of a borrowing is not madeavailable to the Administrative Agent in accordance with this paragraph withinthree 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 prorata share of the applicable borrowing available, not accrue and shallnot be entitled to receive any facility fee under subsection 2.4 and (ii) eitherBorrower may exercise or pursue any other rights, remedies, powers andprivileges against such Bank as are provided by law or by contract.

###  

2.13.        Requirementsof Law.  (a)  If any Bank shalldetermine that by reason of (i) the introduction after the date hereof ofany applicable law, regulation or guideline or any change after the date hereofin any applicable law, regulation or guideline (including the

 

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phasing-in of a provisionof any applicable law, regulation or guideline) or in the interpretationthereof by any governmental or other regulatory authority charged with theadministration thereof or any court of competent jurisdiction and/or (ii) complianceby such Bank with any requirement adopted after the date hereof or directiveadopted after the date hereof from any central bank or other fiscal, monetaryor other regulatory authority (whether or not having the force of law), thereshall be any increase in the cost of such Bank of maintaining or giving effectto its obligations with respect to Committed Rate Loans under this Agreement ormaintaining its Commitment with respect to Committed Rate Loans or making ormaintaining any Eurodollar Loans or any reduction in any amount receivable bysuch Bank in respect of Eurodollar Loans under this Agreement, notwithstandingthe reasonable efforts (such reasonable efforts not to result in the incurrenceof additional costs or expenses) of such Bank to mitigate such increase orreduction (excluding for purposes of this subsection 2.13 any such increasedcosts resulting from (x) Foreign Taxes (as to which subsection 2.17 shallgovern) and (y) changes in the basis of taxation of overall net income oroverall gross income by the United States or by the foreign jurisdiction orstate under the laws of which such Bank is organized or has its applicablelending office or any political subdivision thereof), then the relevantBorrower shall from time to time on receipt (whenever occurring) of acertificate from such Bank (which shall be executed by an officer thereof and acopy of which shall be delivered to the Administrative Agent) pay to such Banksuch amounts as are stated therein to be required to indemnify such Bankagainst such increased costs or reduction; provided, however, thatif such Borrower becomes obligated to pay any Bank any additional amountpursuant to this subsection 2.13(a), such Borrower shall have the right, solong as no Event of Default has occurred and is then continuing, upon givingnotice to the Administrative Agent and such Bank in accordance with subsection2.6, to prepay in full the Loans of such Bank, together with accrued interestthereon, 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, Utilization Fee or otheramount payable to such Bank hereunder and/or, upon giving not less than threeBusiness Days’ notice to any such Bank and the Administrative Agent, to cancelthe whole or part of the Commitment of any such Bank; provided, further,that such Borrower shall not be obligated to pay any Bank any additional amountpursuant to this subsection 2.13(a) (A) which constitutes a presentor future income, stamp or other tax, levy, impost, duty, charge, fee,deduction or withholding referred to in subsection 2.17(a) or (B) asa result of any law, rule, guideline, regulation, request or directiveregarding capital adequacy referred to in subsection 2.13(b).  A certificate of such Bank as to the amountof such increased costs or reduction shall set forth in reasonable detail thecomputation of such increased costs or reduction, and shall be binding andconclusive in the absence of manifest error. A Bank which demands indemnification hereunder as a result of anincreased cost or reduction referred to herein shall deliver the certificatereferred to above to the relevant Borrower demanding indemnification no laterthan the later of (y) the thirtieth day immediately following each paymentor realization by such Bank of such increased cost or reduction (and suchcertificate shall certify that the amounts set forth therein were paid orrealized within such thirty-day period) and (z) the thirtieth dayimmediately following such Bank’s knowledge of the incurrence or realization bysuch Bank of such increased cost or reduction (and such certificate shall socertify).

 

### (b)           Inthe event that any Bank shall have determined that the adoption after the datehereof of any law, rule, guideline or regulation regarding capital adequacy, orany change after the date hereof in any existing or future law, rule, guidelineor regulation regarding capital adequacy (excluding, however, the phasing-in ofany existing law, rule, regulation or

###  

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### guidelineregarding capital adequacy) or in the interpretation or application thereof orcompliance by such Bank or any corporation controlling such Bank with anyrequest or directive made or adopted after the date hereof regarding capitaladequacy (whether or not having the force of law) from any central bank orGovernmental Authority, does or shall have the effect of reducing the rate ofreturn on such Bank’s or such corporation’s capital as a consequence of itsobligations hereunder to a level below that which such Bank or such corporationcould have achieved but for such adoption, change or compliance (taking intoconsideration such Bank’s or such corporation’s policies with respect tocapital adequacy) by an amount deemed by such Bank to be material, then fromtime to time, within 30 days after receipt (whenever occurring) of acertificate from such Bank (which shall be executed by an officer thereof and acopy of which shall be delivered to the Administrative Agent), the Borrowersjointly and severally agree to pay to such Bank such additional amounts as arestated therein to be required to compensate it for such reduction; provided,however, that if such Borrower becomes obligated to pay any Bank anyadditional amount pursuant to this subsection 2.13(b), such Borrower shall havethe 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 withsubsection 2.6, to prepay in full the Loans of such Bank, together with accruedinterest thereon, any amounts payable pursuant to subsections 2.13, 2.14, 2.15and 2.17 and any accrued and unpaid facility fee, Utilization Fee or otheramounts payable to it hereunder and/or, upon giving not less than threeBusiness Days’ notice to any such Bank and the Administrative Agent, to cancelthe whole or part of the Commitment of any such Bank.  A certificate of such Bank as to the amountof such reduction shall set forth in reasonable detail the computation of suchreduction, and shall be binding and conclusive in the absence of manifesterror.  A Bank which demandsindemnification hereunder as a result of a reduction referred to herein shalldeliver the certificate referred to above to the relevant Borrower demanding indemnificationno later than the later of (i) the thirtieth day immediately followingeach realization by such Bank of such reduction (and such certificate shallcertify that the amounts set forth therein were realized within such thirty-dayperiod) and (ii) the thirtieth day immediately following such Bank’sknowledge of the realization by such Bank of such reduction (and suchcertificate shall so certify).

###  

### (c)           EachBorrower shall pay to each Bank that delivers a certificate to such Borrower inaccordance with the second and third following sentences such amounts as shallbe necessary to reimburse such Bank for the costs (determined in accordancewith the immediately following sentence), if any, incurred by such Bank, as aresult of the application to such Bank during any period on which there areoutstanding Eurodollar Loans advanced by such Bank to such Borrower of basic,supplemental, marginal and emergency reserves under any regulations of theBoard or other Governmental Authority having jurisdiction with respect theretodealing with reserve requirements prescribed for eurocurrency funding(currently referred to as “Eurocurrency liabilities” in Regulation D of suchBoard) maintained by a member bank of such System (any such reserves dealingwith reserve requirements prescribed for eurocurrency funding being referred toas “Reserves”), such amount to be set forth in a certificate of suchBank delivered to the relevant Borrower; provided, however, thatif a Bank gives to a Borrower the written notice contemplated by the provisoset 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 givingnotice to the Administrative Agent and such Bank in accordance with subsection2.6, to prepay in full the Loans of such Bank, together with accrued interestthereon, any amounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17and any accrued and

###  

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### unpaidfacility fee, Utilization Fee or other amounts payable to it hereunder and/orupon giving not less than three Working Days’ notice to such Bank and theAdministrative Agent, to cancel the whole or part of the Commitment of any suchBank.  Amounts certified by a Bankhereunder for any period shall represent such Bank’s calculation or, if anaccurate calculation is impracticable, reasonable estimate (using suchreasonable means of allocation as such Bank shall determine) of the actualcosts, if any, theretofore incurred by such Bank as a result of the applicationof Reserves to Eurocurrency liabilities (as referred to in Regulation Dreferred to above) of such Bank in an amount equal to such Bank’s EurodollarLoans during such period and in any event shall not exceed the amountobtainable utilizing the maximum Reserves prescribed by the Board or otherGovernmental Authority having jurisdiction with respect thereto for suchperiod.  Such payment shall be madewithin fifteen days after receipt by the relevant Borrower of a certificate,signed by an officer of the Bank delivering such certificate, which certificateshall be binding and conclusive in the absence of demonstrable error,specifying the period (prior to the date of such certificate) during which thecost set forth therein was incurred by such Bank and stating (i) that suchamount represents the actual cost, or, if an accurate calculation of such costis impracticable stating that such amount represents such Bank’s reasonableestimate of the actual cost, incurred by such Bank during such period as aresult of the application of Reserves to Eurocurrency liabilities of such Bankin an amount equal to such Bank’s Eurodollar Loans during such period andspecified in such certificate and (ii) that the amount set forth thereindoes not in any event exceed the amount obtainable utilizing the maximumReserves prescribed for such period by the Board or such other GovernmentalAuthority having jurisdiction with respect thereto; provided that theobligation of the Borrowers to pay any amounts pursuant to this subsection 2.13(c) shallapply only in the case of those Banks that give to the relevant Borrower andthe Administrative Agent, no later than 3:00 P.M. (New York City time) onthe day that is two Working Days prior to the applicable Borrowing Datetherefor, a written notice stating that such Bank intends to demandreimbursement pursuant hereto.  A Bankwhich demands reimbursement of Reserve costs hereunder on account of aEurodollar Loan made by such Bank shall deliver the certificate referred to inthe preceding sentence to the relevant Borrower setting forth the itemsspecified in clauses (i) and (ii) of the preceding sentence no laterthan the thirtieth day immediately following the last day of the InterestPeriod applicable to such Eurodollar Loan.

###  

### (d)           Theobligations of the parties under this subsection 2.13 shall survive terminationof this Agreement and payment of the Loans.

###  

2.14.        Indemnity.  Each Borrower agrees to indemnify each Bankand to hold each Bank harmless from any loss or expense which such Bank may sustainor incur as a consequence of (a) default by such Borrower in payment ofthe principal amount of or interest on any Loan by such Bank, including, butnot limited to, any such loss or expense arising from interest or fees payableby such Bank to lenders of funds obtained by it in order to maintain its Loanshereunder, (b) default by such Borrower in making a borrowing, conversionor continuance after such Borrower has given a notice in accordance withsubsection 2.1, 2.2 or 2.9, (c) default by such Borrower in making anyprepayment after such Borrower has given a notice in accordance with subsection2.5 or 2.6 or (d) the making by such Borrower of a prepayment of aCommitted Rate Loan (other than an ABR Loan), a Bid Loan or, to the extentagreed to by the relevant Borrower and the relevant Bank with respect to aNegotiated Rate Loan, a Negotiated Rate Loan on a day which is not the last dayof an Interest Period with respect thereto (with respect to Committed RateLoans) or the maturity date therefor (with respect to Bid Loans) or

 

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any agreed date (withrespect to Negotiated Rate Loans), including, but not limited to, any such lossor expense arising from interest or fees payable by such Bank to lenders offunds obtained by it in order to maintain its Loans hereunder.  This covenant shall survive termination ofthis Agreement and payment of the outstanding Loans.  A certificate as to any amount payablepursuant to the foregoing shall be submitted by such Bank (and executed by anofficer thereof) to the relevant Borrower, setting forth the computation ofsuch amounts in reasonable detail, and shall be conclusive in the absence ofmanifest error.

 

2.15.        Non-Receiptof Funds by the Administrative Agent. With respect to all Loans except Negotiated Rate Loans, unless theAdministrative Agent shall have been notified by the relevant Borrower prior tothe date on which any payment is due from it hereunder (which notice shall beeffective upon receipt) that such Borrower does not intend to make suchpayment, the Administrative Agent may assume that such Borrower has made suchpayment when due, and the Administrative Agent may in reliance upon suchassumption (but shall not be required to) make available to each Bank on suchpayment date an amount equal to the portion of such assumed payment to whichsuch Bank is entitled hereunder, and if such Borrower has not in fact made suchpayment to the Administrative Agent, such Bank shall, on demand, repay to theAdministrative Agent the amount made available to such Bank together withinterest thereon in respect of each day during the period commencing on thedate 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 rateper annum equal to the Administrative Agent’s cost of obtaining overnight fundsin the Federal Funds market in New York on each such day.  A certificate of the Administrative Agentsubmitted to the relevant Bank with respect to any amount owing under thissubsection 2.15 shall be conclusive absent manifest error.

 

2.16.        Extensionof Termination Date.

 

(a)        Notless than 60 days and not more than 90 days prior to the Termination Date thenin effect, provided that no Event of Default shall have occurred and becontinuing, the Borrowers may request an extension of such Termination Date bysubmitting to the Administrative Agent an Extension Request containing theinformation in respect of such extension specified in Exhibit I, which theAdministrative Agent shall promptly furnish to each Bank.  Each Bank shall, not less than 30 days andnot more than 60 days prior to the Termination Date then in effect, notify theBorrowers and the Administrative Agent of its election to extend or not extendthe Termination Date as requested in such Extension Request.  Notwithstanding any provision of thisAgreement to the contrary, any notice by any Bank of its willingness to extendthe Termination Date shall be revocable by such Bank in its sole and absolutediscretion at any time prior to the date which is 30 days prior to theTermination Date then in effect.  If anyBank shall fail to respond, such Bank shall be deemed to have elected not toextend.  If the Required Banks shallapprove in writing the extension of the Termination Date requested in suchExtension Request, the Termination Date shall automatically and without anyfurther action by any Person be extended for the period specified in suchExtension Request; provided that (i) each extension pursuant tothis subsection 2.16 shall be for a maximum of 364 days and (ii) theCommitment of any Bank which does not consent in writing to such extension notless than 30 days and not more than 60 days prior to the Termination Date thenin effect (an “Objecting Bank”) shall, unless earlier terminated inaccordance with this Agreement, expire on the Termination Date in effect on thedate of such Extension Request (such Termination Date, if

 

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any, referred to as the “CommitmentExpiration Date” with respect to such Objecting Bank).  If, not less than 30 days and not more than60 days prior to the Termination Date then in effect, the Required Banks shallnot approve in writing the extension of the Termination Date requested in anExtension Request, the Termination Date shall not be extended pursuant to suchExtension Request.  The AdministrativeAgent shall promptly notify (y) the Banks and the Borrowers of anyextension of the Termination Date pursuant to this subsection 2.16 and (z) theBorrowers and any other Bank of any Bank which becomes an Objecting Bank.

 

(b)        CommittedRate Loans owing to any Objecting Bank on the Commitment Expiration Date withrespect to such Bank shall be repaid in full on or before the date which is oneyear after such Commitment Expiration Date.

 

(c)        TheBorrowers shall have the right, so long as no Event of Default has occurred andis then continuing, upon giving notice to the Administrative Agent and theObjecting Banks in accordance with subsection 2.6, to prepay in full theCommitted Rate Loans of the Objecting Banks, together with accrued interestthereon, any amounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17and any accrued and unpaid facility fee, Utilization Fee or other amountspayable 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 wholeor part of the Commitments of the Objecting Banks.

 

2.17.        ForeignTaxes.  (a)  All payments madeunder this Agreement shall be made without set-off or counterclaim and free andclear of, and without reduction for or on account of, any present or futureincome, stamp or other taxes, levies, imposts, duties, charges, fees, deductions,withholdings or restrictions or conditions of any nature whatsoever, now orhereafter imposed, levied, collected, withheld or assessed by any country (orby any political subdivision or taxing authority thereof or therein) from orthrough which any amount is paid under this Agreement excluding, in the case ofeach Bank, (i) income and franchise taxes (including, without limitation,branch taxes imposed by the United States or similar taxes imposed by apolitical subdivision or taxing authority thereof or therein but excluding, inthe case of any Bank not organized under the laws of the United States, anytaxes imposed by the United States by means of withholding at the source), (ii) inthe case of any Bank not organized under the laws of the United States, anytaxes imposed by the United States by means of withholding at the source unlesssuch Bank has provided the Company, the Capital Corporation and theAdministrative Agent with the documents it is required to provide to them undersubsection 2.17(c) and (iii) taxes that would not have been imposedon such Bank but for the existence of a connection between such Bank and thejurisdiction imposing such taxes (other than a connection arising principallyby virtue of this Agreement) (such non-excluded taxes being called “ForeignTaxes”).  If any Foreign Taxes arerequired to be withheld from any amounts so payable to any Bank hereunder, theamounts so payable to such Bank shall be increased to the extent necessary toyield to such Bank (after payment of all Foreign Taxes) interest or any suchother amounts payable hereunder at the rates or in the amounts specified inthis Agreement.  Whenever any ForeignTaxes are payable by the Company or the Capital Corporation, as the case maybe, 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 ofthe 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, showingpayment thereof.  If the Company or the 

 

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Capital Corporation, asthe case may be, fails to pay any Foreign Taxes when due to the appropriatetaxing authority or fails to remit to the Administrative Agent, for the accountof the affected Banks, the required receipts or other required documentaryevidence, the Company or the Capital Corporation, as the case may be, shallindemnify such Banks for any incremental taxes, interest or penalties that maybecome payable by such Banks as a result of any such failure.

 

### (b)           Ifa Borrower is required by this subsection 2.17 to make a payment to or inrespect of any Bank, such Borrower shall have the right, so long as no Event ofDefault has occurred and is then continuing, upon giving notice to theAdministrative Agent and such Bank in accordance with subsection 2.6, to prepayin full the Loans of such Bank, together with accrued interest thereon, anyamounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and anyaccrued and unpaid facility fee, Utilization Fee or other amounts payable to ithereunder and/or on giving not less than three Business Days’ notice to anysuch Bank and the Administrative Agent, to cancel the whole or part of theCommitment of such Bank (but only if after giving effect to such cancellationor prepayment the aggregate principal amount of the Loans does not exceed theaggregate Commitments then in effect).

###  

### (c)           Atleast two Business Days prior to the first Borrowing Date or, if such date doesnot occur within thirty days after the Closing Date, by the end of suchthirty-day period, each Bank agrees that it will deliver to each Borrower andthe Administrative Agent (i) either (A) a statement that it is incorporatedunder the laws of the United States or a state thereof or (B) if it is notso incorporated, a letter in duplicate in substantially the form of Exhibit Jor Exhibit K, as appropriate, and two duly completed copies of UnitedStates Internal Revenue Service Form W-8BEN or W-8ECI or successorapplicable form, as the case may be, certifying in each case that such Bank isentitled to receive payment under this Agreement without deduction orwithholding of any United States Federal income taxes, and (ii) InternalRevenue Service Form W-8BEN, or successor applicable form, as the case maybe, 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 theBorrowers), to the extent it may lawfully do so, to provide the AdministrativeAgent and the Borrowers a new letter and Form W-8BEN or W-8ECI, orsuccessor applicable form or other manner of certification, on or before (x) inthe case of a Loan Assignee, the date it becomes  party to this Agreement, and (y) thedate that any such letter or form expires or becomes obsolete or after theoccurrence of any event requiring a change in the most recent letter or formpreviously delivered by it, certifying in the case of a Form W-8BEN orW-8ECI that such Bank is entitled to receive payments under this Agreementwithout deduction or withholding of any United States Federal income tax, andin the case of a Form W-8BEN establishing exemption from United Statesbackup withholding tax; provided, however, that if a Bank isunable to provide a letter, form, certificate, successor or other documentdescribed in this sentence by reason of a change in the applicable lawoccurring after the date on which such letter, form, certificate, successor orother document originally was required to be provided by such Bank, then suchBank shall be required to comply with this sentence to the extent permittedunder such applicable law, and any letter, form, certificate, successor orother document provided in accordance with this proviso shall certify that suchBank is entitled to receive payments under this Agreement at the lowest rate ofdeduction, withholding or backup withholding to which it is entitled under suchapplicable law.  The Administrative Agentshall not be responsible for obtaining such documentation from any Bank otherthan JPMorgan Chase Bank, N.A.

###  

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### (d)           TheCompany and the Capital Corporation shall not be required to make payments onaccount of United States withholding taxes to any Bank under the secondsentence of subsection 2.17(a) to the extent that such taxes could havebeen avoided had such Bank, to the extent it may lawfully do so, complied witha reasonable request by the Company, the Capital Corporation or theAdministrative Agent for the forms or documents referred to in subsection2.17(c).

###  

### (e)           Tothe extent that, as determined by any Bank in its sole discretion and withoutany obligation to disclose its tax records, Foreign Taxes have been irrevocablyutilized by such Bank (either as credits or deductions) to reduce its taxliabilities and such utilization is consistent with its overall tax policies,such Bank shall pay to the Company or the Capital Corporation, as the case maybe, an amount equal to such reduction obtained to the extent of such increasedamounts paid by the Company or the Capital Corporation to such Bank asaforesaid.

###  

### (f)            Theobligations of the parties under this subsection 2.17 shall survive terminationof this Agreement and payment of the Loans.

###  

2.18.        Confirmations.  The Administrative Agent shall, within 15days following the last day of each calendar quarter (each such period being a “ReportPeriod”), furnish to the Borrowers a written account with respect to allamounts outstanding under the Loan Accounts as at the last day of such ReportPeriod, including an accounting setting forth, for such Report Period theamounts of principal, interest and other sums paid and payable hereunder.  The Borrowers shall, within 15 days followingreceipt of such written account, notify the Administrative Agent of anydiscrepancies between such written account and the Borrowers’ records or, if nosuch discrepancies exist, furnish written confirmation to the AdministrativeAgent of the accuracy of such written account. Upon any Bank’s request, the Administrative Agent shall furnish to eachBank a copy of such written account together with the Borrowers’ responsethereto.

 

2.19.        Replacementof Cancelled Banks.  The Borrowersmay designate one or more financial institutions to act as a Bank hereunder inplace of any Cancelled Bank, and upon the Borrowers, each such financialinstitution and the Administrative Agent executing a writing substantially inthe form of Exhibit L, such financial institution shall become and be aBank hereunder with all the rights and obligations it would have had if it hadbeen named on the signature pages hereof, and having for all suchfinancial institutions an aggregate Commitment no greater than the whole, orsuch cancelled part, of the Commitment of the Cancelled Bank in place of whichsuch financial institutions were designated; provided, however,that all rights and obligations of such Cancelled Bank relating to the Loansmade by such Cancelled Bank that are outstanding on the date of suchcancellation shall be the rights and obligations of such Cancelled Bank and notof any such financial institution.  TheAdministrative Agent shall execute any such writing presented to it and shallnotify the Banks of the execution thereof, the name of the financialinstitution executing such writing and the amount of its Commitment.

 

2.20.        CommitmentIncreases.  (a)  At any timeafter the Closing Date and prior to the Commitment Expiration Date of any Bank,provided that no Event of Default shall have occurred and be continuing,the Borrowers may request an increase of the aggregate Commitments by notice tothe Administrative Agent in writing of the amount (the “Offered

 

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Increase Amount”)of such proposed increase (such notice, a “Commitment Increase Notice”).  Any such Commitment Increase Notice mustoffer each Bank the opportunity to subscribe for its pro rata share of theincreased Commitments; provided, however, the Borrowers may, withthe consent of the Administrative Agent (which consent shall not beunreasonably withheld or delayed), without offering to each Bank theopportunity to subscribe for its pro rata share of the increased Commitments,offer to any bank or other financial institution that is not an existing Bankthe opportunity to provide a new Commitment pursuant to paragraph (b) belowif the aggregate amount of all Commitments made hereunder pursuant to thisproviso which will be in effect when such new Commitment becomes effective doesnot exceed $250,000,000 subject to subsection 2.20(f).  If any portion of the increased Commitmentsoffered to the Banks as contemplated in the immediately preceding sentence isnot subscribed for by the Banks, the Borrowers may, with the consent of theAdministrative Agent as to any bank or financial institution that is not atsuch 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 financialinstitutions the opportunity to provide all or a portion of such unsubscribedportion of the increased Commitments pursuant to paragraph (b) below.

 

### (b)           Anyadditional bank or financial institution that the Borrowers select to offer theopportunity to provide any portion of the increased Commitments, and thatelects to become a party to this Agreement and provide a Commitment, shallexecute 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 becomea Bank for all purposes and to the same extent as if originally a party heretoand shall be bound by and entitled to the benefits of this Agreement, andSchedule II shall be deemed to be amended to add the name and Commitment ofsuch New Bank, provided that the Commitment of any such New Bank shallbe in an amount not less than $10,000,000.

###  

### (c)           AnyBank that accepts an offer to it by the Borrowers to increase its Commitmentpursuant to this subsection 2.20 shall, in each case, execute a CommitmentIncrease Supplement with the Borrowers and the Administrative Agent,substantially in the form of Exhibit O (a “Commitment IncreaseSupplement”), whereupon such Bank (an “Increasing Bank”) shall bebound by and entitled to the benefits of this Agreement with respect to thefull amount of its Commitment as so increased, and Schedule II shall be deemedto be amended to so increase the Commitment of such Bank.

###  

### (d)           Theeffectiveness of any New Bank Supplement or Commitment Increase Supplementshall be contingent upon receipt by the Administrative Agent of such corporateresolutions of the Borrowers and legal opinions of counsel to the Borrowers asthe Administrative Agent shall reasonably request with respect thereto.

###  

### (e)           (i) Except as otherwise provided in subparagraphs (ii) and (iii) of thisparagraph (e), if any bank or financial institution becomes a New Bank pursuantto subsection 2.20(b) or any Bank’s Commitment is increased pursuant tosubsection 2.20(c), additional Committed Rate Loans made on or after the dateof the effectiveness thereof (the “Re-Allocation Date”) shall be made inaccordance with the pro rata provisions of subsection 2.12(b) based on theCommitment Percentages in effect on and after such Re-Allocation Date (exceptto the extent that any such pro rata borrowings would result in any Bank makingan aggregate principal

###  

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### amountof Committed Rate Loans in excess of its Commitment, in which case such excessamount will be allocated to, and made by, the relevant New Banks and IncreasingBanks to the extent of, and in accordance with the pro rata provisions ofsubsection 2.12(b) based on, their respective Commitments).  On each Re-Allocation Date, theAdministrative Agent shall deliver such amended Schedule II and a notice toeach Bank of the adjusted Commitment Percentages after giving effect to anyincrease in the aggregate Commitments made pursuant to this subsection 2.20 onsuch Re-Allocation Date.

###  

##### (ii)           In the event that on any suchRe-Allocation Date there is an unpaid principal amount of ABR Loans, theapplicable Borrower shall make prepayments thereof and one or both Borrowersshall make borrowings of ABR Loans and/or Eurodollar Loans, as the applicableBorrower shall determine, so that, after giving effect thereto, the ABR Loansand Eurodollar Loans outstanding are held as nearly as may be in accordancewith the pro rata provisions of subsection 2.12(b) based on such newCommitment Percentages.

#####  

##### (iii)          In the event that on any suchRe-Allocation Date there is an unpaid principal amount of Eurodollar Loans,such Eurodollar Loans shall remain outstanding with the respective holdersthereof until the expiration of their respective Interest Periods (unless theapplicable Borrower elects to prepay any thereof in accordance with theapplicable provisions of this Agreement), and on the last day of the respectiveInterest Periods the applicable Borrower shall make prepayments thereof and oneor both Borrowers shall make borrowings of ABR Loans and/or Eurodollar Loans sothat, after giving effect thereto, the ABR Loans and Eurodollar Loansoutstanding are held as nearly as may be in accordance with the pro rataprovisions of subsection 2.12(b) based on such new Commitment Percentages.

#####  

### (f)            Notwithstandinganything to the contrary in this subsection 2.20, (i) in no event shallany transaction effected pursuant to this subsection 2.20 cause the aggregateCommitments to exceed $1,000,000,000, (ii) the Commitment of an individualBank shall not, as a result of providing a new Commitment or of increasing itsexisting Commitment pursuant to this subsection 2.20, exceed 15% of theaggregate Commitments on any Re-Allocation Date and (iii) no Bank shallhave any obligation to increase its Commitment unless it agrees to do so in itssole discretion.

###  

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

###  

SECTION 3            REPRESENTATIONS AND WARRANTIES

 

Each Borrowerhereby represents and warrants to the Administrative Agent and to each Bankthat:

 

3.1.          FinancialCondition.  The consolidated balancesheet of such Borrower and its consolidated Subsidiaries as at October 31,2007 and the related consolidated statements of income and of cash flow for thefiscal year then ended (including the related schedules and notes) reported onby Deloitte & Touche LLP, copies of which have heretofore beenfurnished to each Bank, fairly present the consolidated financial condition ofsuch Borrower and its

 

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consolidated Subsidiariesas at such date, and the consolidated results of their operations and changesin financial position for the fiscal year then ended.  All such financial statements, including therelated schedules and notes thereto, have been prepared in accordance withgenerally accepted accounting principles in the United States of America appliedconsistently throughout the periods involved (except as approved by suchaccountants or Responsible Officer, as the case may be, and as disclosedtherein).

 

3.2.          CorporateExistence.  Such Borrower is dulyorganized, validly existing and in good standing under the laws of thejurisdiction of its incorporation and has the corporate power and authority toown its properties and to conduct the business in which it is currentlyengaged.

 

3.3.          CorporatePower; Authorization; Enforceable Obligations.  Such Borrower has the corporate power andauthority and the legal right to execute, deliver and perform this Agreementand to borrow hereunder and has taken all necessary corporate action toauthorize its borrowings on the terms and conditions of this Agreement and toauthorize 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 inconnection with the borrowings hereunder or with the execution, delivery,performance, validity or enforceability of this Agreement other than any suchconsents, authorizations, filings or acts as have been obtained, taken or madeand are in full force and effect.  ThisAgreement has been duly executed and delivered on behalf of such Borrower, andthis Agreement constitutes a legal, valid and binding obligation of suchBorrower enforceable against such Borrower in accordance with its terms, exceptas enforceability may be limited by applicable bankruptcy, insolvency,reorganization, moratorium or similar laws affecting the enforcement ofcreditors’ rights generally and by general equity principles (whetherenforcement is sought by proceedings in equity or at law).

 

3.4.          NoLegal Bar.  The execution, deliveryand performance of this Agreement, the borrowings hereunder and the use of theproceeds thereof, will not violate any Requirement of Law or any ContractualObligation of such Borrower, and will not result in, or require, the creationor imposition of any lien on any of its properties or revenues pursuant to anyRequirement of Law or Contractual Obligation.

 

3.5.          NoMaterial Litigation.  No litigation,investigation or proceeding of or before any arbitrator or GovernmentalAuthority is pending or, to the knowledge of such Borrower, threatened by oragainst such Borrower or any of its Subsidiaries or against any of its or theirrespective properties or revenues except actions, suits or proceedings whichwill not materially adversely affect the ability of such Borrower to performits obligations hereunder.  All of thedefaults, if any, of such Borrower or any of its Subsidiaries with respect toany order of any Governmental Authority do not, and will not collectively, havea material adverse effect on the business, operations, property or financial orother condition of such Borrower and its Subsidiaries taken as a whole.

 

3.6.          Taxes.  Each of such Borrower and its Subsidiarieshas filed or caused to be filed all tax returns which, to the knowledge of suchBorrower, are required to be filed (except where the failure to file such taxreturns would not have a material adverse effect on the business, operations,property or financial or other condition of such Borrower and its

 

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Subsidiaries taken as awhole), and has paid all taxes shown to be due and payable on said returns oron 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 GovernmentalAuthority (other than assessments, taxes, fees and other charges the amount orvalidity of which is currently being contested in good faith by appropriateproceedings and with respect to which reserves in conformity with GAAP havebeen provided on the books of such Borrower or its Subsidiaries, as the casemay be).

 

3.7.          MarginRegulations.  No part of the proceedsof any Loan hereunder will be used for any purpose which violates theprovisions of Regulation U of the Board as now and from time to time hereafterin effect.

 

## 3.8.          [RESERVED]

##  

## 3.9.          [RESERVED]

##  

3.10.        Useof Proceeds.  The proceeds of theLoans will be used by such Borrower for its general corporate purposes, whichshall include, but shall not be limited to, any purchase or other acquisitionof all or a portion of the debt or stock or other evidences of ownership ofsuch Borrower or the assets or stock or other evidences of ownership of anyother Person or Persons.

 

SECTION 4            CONDITIONS PRECEDENT

 

4.1.          Conditionsto Initial Loan.  The obligation ofeach Bank to make its initial Loan hereunder is subject to the satisfaction ofthe 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 foreach Bank, resolutions, certified by the Secretary or an Assistant Secretary ofeach Borrower, in form and substance satisfactory to the Administrative Agent,adopted by the Board of Directors of such Borrower authorizing the execution ofthis Agreement and the performance of its obligations hereunder and anyborrowings hereunder from time to time.

####  

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

 

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#### (d)           IncumbencyCertificate.  The AdministrativeAgent shall have received, with a counterpart for each Bank, a certificate ofthe Secretary or an Assistant Secretary of each Borrower certifying the namesand true signatures of the officers of such Borrower authorized to sign thisAgreement, together with evidence of the incumbency of such Secretary orAssistant Secretary.

####  

#### (e)           NoMaterial Adverse Change Certificate. The Administrative Agent shall have received concurrently with theexecution of this Agreement, with a counterpart for each Bank, a certificate ofa Responsible Officer for each Borrower dated the date of this Agreementcertifying that since October 31, 2007, at the date of such certificatethere has been no material adverse change in the business, property,operations, condition (financial or otherwise) or prospects of such Borrowerand its Subsidiaries, taken as a whole.

####  

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

####  

#### (g)           AdditionalMatters.  All other documents whichthe Administrative Agent may reasonably request in connection with thetransactions contemplated by this Agreement shall be reasonably satisfactory inform and substance to the Administrative Agent and its counsel.

####  

4.2.          Conditionsto All Loans.  The obligation of eachBank to make any Loan (which shall include the initial Loan to be made by ithereunder 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 theproceeds thereof, the aggregate outstanding principal amount of the CommittedRate Loans would not be increased) to be made by it hereunder on any BorrowingDate is subject to the satisfaction of the following conditions precedent:

 

#### (a)           Representationsand Warranties.  The representationsand warranties made by the Borrowers herein or which are contained in anycertificate, document or financial or other statement furnished by eitherBorrower at any time hereunder or in connection herewith (other than anyrepresentations and warranties which by the terms of such certificate, documentor financial or other statement do not survive the execution of this Agreement)shall be correct on and as of the date of such Loan as if made on and as ofsuch date except as such representations and warranties expressly relate to anearlier date.

####  

#### (b)           NoDefault or Event of Default.  NoDefault or Event of Default shall have occurred and be continuing on such dateor after giving effect to the Loans to be made on such date and the applicationof the proceeds thereof.

####  

#### (c)           AdditionalConditions to Bid Loans.  If suchLoan is made pursuant to subsection 2.2, all conditions set forth in subsection2.2(f) shall have been satisfied.

####  

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

 

SECTION 5            AFFIRMATIVE COVENANTS

 

Each of the Borrowers (except as otherwisespecified) hereby agrees that, so long as there is any obligation by any Bankto make Loans to it hereunder, any Loan of such Borrower remains outstandingand unpaid or any other amount is owing by such Borrower to any Bank or anyAgent hereunder (unless the Majority Banks shall otherwise consent in writing):

 

5.1.          FinancialStatements.  Such Borrower shallfurnish to each Bank:

 

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

####  

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

####  

all such financial statements to presentfairly the consolidated financial condition and results of operations of suchBorrower and its consolidated Subsidiaries and to be prepared in accordancewith generally accepted accounting principles in the United States of Americaapplied consistently throughout the periods reflected therein (except asapproved by such accountants or officer, as the case may be, and disclosedtherein).  Such Borrower shall be deemedto have furnished such financial statements to each Bank when they are filed withthe Securities and Exchange Commission and posted on its EDGAR system.

 

5.2.          Certificates;Other Information.  Such Borrowershall furnish to the Administrative Agent, and the Administrative Agent shallmake available to each Bank:

 

#### (a)           within10 days of the delivery of the financial statements referred to in subsections5.1(a) and (b) above (or, if such financial statements are filed withthe Securities and Exchange Commission and posted on its EDGAR system, within10 days of the posting of such financial statements on the EDGAR system), a certificateof a Responsible Officer of such Borrower stating that (i) he has noknowledge of the occurrence and continuance of any Default or Event of Defaultexcept as specified in such certificate, in which case such certificate shallcontain a description thereof and a statement of the steps, if any, which suchBorrower is taking, or proposes to take, to cure the same and (ii) thefinancial statements delivered pursuant to subsection 5.1 would not

####  

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#### be materially different if prepared inaccordance with GAAP except as specified in such certificate; and

####  

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

####  

5.3.          CompanyIndenture Documents.  The Companyshall, contemporaneously with the delivery thereof to the Trustee, furnish toeach Bank a copy of any information, document or report required to be filedwith 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 toJPMorgan Chase Bank, formerly known as The Chase Manhattan Bank (NationalAssociation)), as trustee.

 

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

 

5.5.          Noticeof Default.  Such Borrower shallpromptly give notice to the Administrative Agent of the occurrence of anyDefault or Event of Default, which notice shall be given in writing as soon aspossible, and in any event within 10 days after a Responsible Officer of suchBorrower obtains knowledge of such occurrence, with a description of the stepsbeing taken to remedy the same (provided that such Borrower shall not beobligated to give notice of any Default or Event of Default which is remediedprior to or within 10 days after a Responsible Officer of such Borrower firstacquires such knowledge).  Upon receiptof any such notice, the Administrative Agent shall promptly notify each Bankthereof.

 

5.6.          Ownershipof Capital Corporation Stock.  TheCompany shall continue to own, directly or through one or more wholly-ownedSubsidiaries, free and clear of any lien or other encumbrance, 51% of thevoting stock of the Capital Corporation; provided, however, thatthe Capital Corporation may merge or consolidate with, or sell or conveysubstantially all of its assets to, the Company as provided in subsection 7.4.

 

5.7.          EmployeeBenefit Plans.  The Company shallmaintain, and cause each of its Subsidiaries to maintain, each Plan as to whichit may have liability, in compliance with all applicable requirements of lawand regulations.

 

SECTION 6            NEGATIVE COVENANTS OF THE COMPANY

 

The Company hereby agrees that, so long asthere is any obligation by any Bank to make Loans hereunder, any Loan remainsoutstanding and unpaid or any other amount is owing to any Agent or any Bankhereunder, it shall not, nor in the case of subsections 6.2 and 6.3 shall itpermit any Restricted Subsidiary to (unless the Majority Banks shall otherwiseconsent in writing):

 

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6.1.          CompanyMay Consolidate, etc., Only on Certain Terms.  Consolidate with or merge with or into anyother corporation or convey or transfer its properties and assets substantiallyas an entirety to any Person, unless:

 

#### (a)           eitherthe Company shall be the continuing corporation, or the corporation (if otherthan the Company) formed by such consolidation or into which the Company ismerged or the Person which acquires by conveyance or transfer the propertiesand 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 theprincipal of and interest on the Loans to the Company and the performance ofevery covenant of this Agreement on the part of the Company to be performed orobserved;

####  

#### (b)           immediatelyafter giving effect to such transaction, no Default or Event of Default, shallhave happened and be continuing;

####  

#### (c)           ifas a result thereof any property or assets of the Company or a RestrictedSubsidiary would become subject to any Mortgage not permitted by (i) through(xii) of subsection 6.2(a) or subsection 6.2(b), compliance shall beeffected with the first clause of subsection 6.2(a); and

####  

#### (d)           theCompany and the successor Person have delivered to the Administrative Agent anofficers’ certificate signed by two Responsible Officers of the Company statingthat such consolidation, merger, conveyance or transfer and such assumptionagreement comply with this subsection 6.1 and that all conditions precedentherein provided for relating to such transaction have been complied with.

####  

6.2.          Limitationon 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 ImportantProperty, or upon any shares of stock or indebtedness issued or incurred by anyRestricted Subsidiary (whether such Important Property, shares of stock orindebtedness is now owned or hereafter acquired) without in any such caseeffectively providing, concurrently with the issuance, incurrence, assumptionor 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 orguaranty by the Company or such Restricted Subsidiary ranking equally with theLoans then existing or thereafter created) shall be secured equally and ratablywith or prior to such Debt; provided, however, that the foregoingrestrictions shall not apply to:

 

###### (i)            Mortgageson any property acquired, constructed or improved by the Company or anyRestricted Subsidiary after the date of this Agreement which are created orassumed contemporaneously with, or within 120 days after, such acquisition,construction or improvement to secure or provide for the payment of all or anypart of the purchase price of such property or the cost of such construction orimprovement incurred after the date of this Agreement, or (in addition toMortgages contemplated by clauses (ii), (iii) and (iv) below)Mortgages on any property existing at the time of acquisition thereof; providedthat such Mortgages shall not apply to any Important Property theretofore ownedby the Company or any Restricted Subsidiary other than, in the case of

######  

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###### any suchconstruction or improvement, any theretofore unimproved real property on whichthe property so constructed, or the improvement, is located;

######  

###### (ii)           Mortgageson any property, shares of stock, or indebtedness existing at the time ofacquisition thereof from a corporation which is consolidated with or mergedinto, or substantially all of the assets of which are acquired by, the Companyor a Restricted Subsidiary;

######  

###### (iii)          Mortgageson property of a corporation existing at the time such corporation becomes aRestricted Subsidiary;

######  

###### (iv)          Mortgagesto secure Debt of a Restricted Subsidiary to the Company or to anotherRestricted Subsidiary;

######  

###### (v)           Mortgagesin favor of the United States of America or any State thereof, or anydepartment, agency or instrumentality or political subdivision of the UnitedStates of America or any State thereof, to secure partial, progress, advance orother payments pursuant to any contract or statute or to secure anyindebtedness incurred for the purpose of financing all or any part of thepurchase price or the cost of constructing or improving the property subject tosuch Mortgages and Mortgages given to secure indebtedness incurred inconnection with the financing of construction of pollution control facilities,the interest on which indebtedness is exempt from income taxes under the Code;

######  

###### (vi)          anydeposit or pledge of assets (1) with any surety company or clerk of anycourt, or in escrow, as collateral in connection with, or in lieu of, any bondon appeal from any judgment or decree against the Company or a RestrictedSubsidiary, or in connection with other proceedings or actions at law or inequity by or against the Company or a Restricted Subsidiary, or (2) assecurity for the performance of any contract or undertaking not directlyrelated to the borrowing of money or the securing of indebtedness, if made inthe ordinary course of business, or (3) with any governmental agency,which deposit or pledge is required or permitted to qualify the Company or aRestricted Subsidiary to conduct business, to maintain self-insurance, or toobtain 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 ofmechanics’, workmen’s, repairmen’s, warehousemen’s or similar liens, or therelease of property in the possession of a common carrier;

######  

###### (vii)         Mortgagesexisting on property acquired by the Company or a Restricted Subsidiary throughthe exercise of rights arising out of defaults on receivables acquired in theordinary course of business;

######  

###### (viii)        judgmentliens, so long as the finality of such judgment is being contested in goodfaith and execution thereon is stayed;

######  

###### (ix)           Mortgagesfor the sole purpose of extending, renewing or replacing in whole or in partDebt 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 theprincipal amount of Debt so secured at the time

######  

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######  

###### of suchextension, renewal or replacement, and that such extension, renewal orreplacement shall be limited to all or a part of the property which secured theMortgage so extended, renewed or replaced (plus improvements on such property);

######  

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

######  

###### (xi)           Mortgageson Margin Stock owned by the Company and its Restricted Subsidiaries to theextent such Margin Stock so Mortgaged exceeds 25% of the fair market value ofthe sum of the Important Property of the Company and the RestrictedSubsidiaries plus the shares of stock (including Margin Stock) and indebtednessissued or incurred by the Restricted Subsidiaries; and

######  

###### (xii)          Mortgageson any Important Property of, or any shares of stock or indebtedness issued orincurred by, any Restricted Subsidiary organized under the laws of Canada.

######  

### (b)           (i)           Theprovisions of subsection 6.2(a) shall not apply to the issuance,incurrence, assumption or guarantee by the Company or any Restricted Subsidiaryof Debt secured by a Mortgage which would otherwise be subject to the foregoingrestrictions up to an aggregate amount which, together with the sum of (A) allother Debt issued or incurred by the Company and its Restricted Subsidiariessecured by Mortgages (other than Mortgages permitted by subsection 6.2(a))which would otherwise be subject to the foregoing restrictions and (B) theAttributable Debt in respect of Sale and Lease-back Transactions in existenceat such time (other than Sale and Lease-back Transactions which, if theAttributable 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) andother than Sale and Lease-back Transactions the proceeds of which have beenapplied in accordance with subsection 6.3(b)) does not at the time exceed 5% ofConsolidated Net Worth.

###  

##### (ii)           Forpurposes of this Agreement, the term “Consolidated Net Worth” shall meanthe aggregate of capital and surplus of the Company and its consolidatedSubsidiaries, less minority interests in Subsidiaries, determined in accordancewith GAAP; and the term “Attributable Debt” shall mean, as of anyparticular time, the present value, discounted at a rate per annum equal to theinterest rate set forth in the Company’s 8-1/2% Debentures Due 2022, compoundedsemi-annually, of the obligation of a lessee for rental payments during theremaining term of any lease (including any period for which such lease has beenextended or may, at the option of the lessor, be extended); the net amount ofrent required to be paid for any such period shall be the total amount of therent payable by the lessee with respect to such period, but may exclude amountsrequired to be paid on account of maintenance and repairs, insurance, taxes,assessments, water rates and similar charges; and, in the case of any leasewhich is terminable by the lessee upon the payment of a penalty, such netamount shall also

#####  

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##### include the amount of such penalty, but no rent shall be considered asrequired to be paid under such lease subsequent to the first date upon which itmay be so terminated.

#####  

### (c)           If, upon any consolidation or merger of any RestrictedSubsidiary with or into any other corporation, or upon any consolidation ormerger of any other corporation with or into the Company or any RestrictedSubsidiary or upon any sale or conveyance of the property of any Restricted Subsidiaryas an entirety or substantially as an entirety to any other Person, or upon anyacquisition by the Company or any Restricted Subsidiary by purchase orotherwise of all or any part of the property of any other Person, any ImportantProperty theretofore owned by the Company or such Restricted Subsidiary wouldthereupon become subject to any Mortgage not permitted by the terms ofsubsection (a) or (b) of this subsection 6.2, the Company, prior tosuch consolidation, merger, sale or conveyance, or acquisition, will, or willcause such Restricted Subsidiary to, secure payment of the principal of andinterest on the Loans (equally and ratably with or prior to any otherindebtedness of the Company or such Subsidiary then entitled thereto) by adirect lien on all such property prior to all liens other than any lienstheretofore existing thereon by an assumption agreement or otherwise.

###  

### (d)           If at any time the Company or any Restricted Subsidiaryshall issue, incur, assume or guarantee any Debt secured by any Mortgage notpermitted by this subsection 6.2, to which the covenant in subsection 6.2(a) isapplicable, the Company will promptly deliver to the Administrative Agent (withcounterparts for each Bank):

###  

##### (i)            anofficers’ certificate signed by two Responsible Officers of the Company statingthat the covenant of the Company contained in paragraph (a) or (c) ofthis subsection 6.2 has been complied with; and

#####  

##### (ii)           anopinion of counsel satisfactory to the Administrative Agent to the effect thatsuch covenant has been complied with, and that any instruments executed by theCompany in the performance of such covenant comply with the requirements ofsuch covenant.

#####  

6.3.          Limitationson Sale and Lease-back Transactions. Enter into any arrangement with any Person providing for the leasing tothe Company or any Restricted Subsidiary of any Important Property owned orhereafter acquired by the Company or such Restricted Subsidiary (except fortemporary leases for a term, including any renewal thereof, of not more than threeyears and except for leases between the Company and a Restricted Subsidiary orbetween Restricted Subsidiaries), which Important Property has been or is to besold or transferred by the Company or such Restricted Subsidiary to such Person(herein referred to as a “Sale and Lease-back Transaction”) unless thenet proceeds of such sale are at least equal to the fair value (as determinedby the Board of Directors of the Company or such Restricted Subsidiary, asapplicable) of such property and either (a) the Company or such RestrictedSubsidiary would be entitled, pursuant to the provisions of (1) subsection6.2(a)(i) or (2) subsection 6.2(b), to incur Debt secured by aMortgage on the Important Property to be leased without equally and ratablysecuring the Loans, or (b) the Company shall, and in any such case theCompany covenants that it will, within 120 days of the effective date of anysuch arrangement, apply an amount equal to the fair value (as so determined) ofsuch property to the reduction of the Commitments (to be accompanied byprepayment of the Loans in accordance with subsection 2.6 to the extent thatthe principal amount thereof outstanding prior to such prepayment would exceedthe Commitments as so reduced) or to the payment or other retirement

 

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of funded debt for moneyborrowed, incurred or assumed by the Company which ranks senior to or paripassu with the Loans or of funded debt for money borrowed, incurred orassumed by any Restricted Subsidiary (other than, in either case, funded debtowned by the Company or any Restricted Subsidiary).  For this purpose, funded debt means any Debtwhich by its terms matures at or is extendable or renewable at the sole optionof the obligor without requiring the consent of the obligee to a date more thantwelve months after the date of the creation of such Debt.

 

6.4.          EquipmentOperations Debt.  Permit EquipmentOperations Debt as at the end of any fiscal quarter of the Company and itsconsolidated Subsidiaries (including the last quarter of any fiscal year of theCompany and its consolidated Subsidiaries) to exceed 65% of the sum, at the endof each such fiscal quarter, of (i) Equipment Operations Debt plus (ii) TotalStockholders’ 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 CapitalCorporation hereunder, any Loan of the Capital Corporation remains outstandingand unpaid or any other amount is owing by the Capital Corporation to any Bankor any Agent hereunder, the Capital Corporation shall not, nor in the case ofthe agreements set forth in subsection 7.3 shall it permit any of itsSubsidiaries to, directly or indirectly (unless the Majority Banks shallotherwise consent in writing):

 

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

 

7.2.          ConsolidatedSenior Debt to Consolidated Capital Base.  Permit the ratio of Consolidated Senior Debtto Consolidated Capital Base as at the end of any fiscal quarter of the CapitalCorporation and its consolidated Subsidiaries (including the end of any fiscalyear of the Capital Corporation and its consolidated Subsidiaries) to be morethan 11 to 1.

 

7.3.          Limitationon Liens.  Issue, incur, assume orguarantee 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 suchproperty or assets is now owned or hereafter acquired) without in any such caseeffectively providing, concurrently with the issuance, incurrence, assumptionor guaranty of any such Debt, that the Loans and all other amounts hereunder(together with, if the Capital Corporation shall so determine, any otherindebtedness of or guaranty by such Borrower or such Subsidiary ranking equallywith the Loans then existing or thereafter created) shall be secured equallyand ratably with or prior to such Debt; provided, however, thatthe foregoing restrictions shall not apply to:

 

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

###  

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### (b)           easements, liens, franchises or other minor encumbrances onor over any real property which do not materially detract from the value ofsuch property or its use in the business of the Capital Corporation or aSubsidiary of the Capital Corporation;

###  

### (c)           any deposit or pledge of assets (i) with any suretycompany or clerk of any court, or in escrow, as collateral in connection withor in lieu of, any bond on appeal from any judgment or decree against theCapital Corporation or a Subsidiary of the Capital Corporation, or inconnection with other proceedings or actions at law or in equity by or againstthe Capital Corporation or a Subsidiary of the Capital Corporation or (ii) assecurity for the performance of any contract or undertaking not directly orindirectly related to the borrowing of money or the securing of indebtedness,if made in the ordinary course of business, or (iii) with any governmentalagency, which deposit or pledge is required or permitted to qualify the CapitalCorporation or a Subsidiary of the Capital Corporation to conduct business, tomaintain self-insurance, or to obtain the benefits of any law pertaining toworkmen’s compensation, unemployment insurance, old age pensions, socialsecurity, or similar matters, or (iv) made in the ordinary course ofbusiness to obtain the release of mechanics’, workmen’s, repairmen’s,warehousemen’s or similar liens, or the release of property in the possessionof a common carrier;

###  

### (d)           Mortgages by a Subsidiary as security for indebtedness owedto the Capital Corporation or to any other Subsidiary;

###  

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

###  

### (f)            Mortgages existing on property acquiredby the Capital Corporation or a Subsidiary of the Capital Corporation throughthe exercise of rights arising out of defaults on receivables acquired in theordinary course of business;

###  

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

###  

### (h)           any Mortgage (other than directly or indirectly to secureborrowed money) if, after giving effect thereto, the aggregate principal sumssecured 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 securingSecuritization Indebtedness;

###  

### (j)            Mortgages on Margin Stock ownedby the Capital Corporation and its Subsidiaries to the extent such Margin Stockexceeds 25% of the fair market value of property and assets of the CapitalCorporation and its Subsidiaries (including Margin Stock); and

###  

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

###  

7.4.          Consolidation;Merger.  Merge or consolidate with,or sell or convey (other than a conveyance by way of lease) all orsubstantially all of its assets to, any other corporation, unless (a) theCapital Corporation shall be the surviving corporation in the case of a

 

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merger or the surviving,resulting or transferee corporation (the “successor corporation”) shallbe a corporation organized under the laws of the United States or any Statethereof or the District of Columbia and shall expressly assume the due andpunctual performance of all of the agreements, covenants and obligations of theCapital Corporation under this Agreement by supplemental agreement satisfactoryto the Administrative Agent and executed and delivered to the AdministrativeAgent by the successor corporation and (b) the Capital Corporation or suchsuccessor corporation, as the case may be, shall not, immediately after suchmerger, consolidation, sale or conveyance, be in default in the performance ofany such agreements, covenants or obligations; provided, however,that the Capital Corporation may merge or consolidate with, or sell or conveysubstantially all of its assets to, the Company, if (i) the Company is thesuccessor corporation (as defined above) and (ii) subclause (b) aboveis complied with.  Upon any such merger,consolidation, sale or conveyance, the successor corporation shall succeed toand be substituted for, and may exercise every right and power of and shall besubject to all the obligations of, the Capital Corporation under thisAgreement, with the same effect as if the successor corporation had been namedas the Capital Corporation herein and therein.

 

SECTION 8            EVENTS OF DEFAULT

 

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

 

#### (a)           EitherBorrower shall fail to pay any principal of any Loan when due in accordancewith the terms hereof or to pay any interest on any Loan, in each case withintwo Business Days after any such amount becomes due in accordance with theterms hereof or shall fail to pay any other amount payable hereunder withinfive Business Days after any such other amount becomes due in accordance withthe terms thereof or hereof; or

####  

#### (b)           Anyrepresentation or warranty made or pursuant to subsection 4.2 deemed made byeither Borrower herein or which is contained in any material certificate,material document or material financial statement or other material statementfurnished at any time under or in connection with this Agreement shall prove tohave been incorrect in any material respect on or as of the date made or deemedmade; or

####  

#### (c)           TheCompany shall default in the observance or performance of any agreementcontained in subsection 5.6, 6.1 or 6.4, or the Capital Corporation shalldefault in the observance or performance of any agreement contained insubsections 7.1, 7.2 or 7.4; or

####  

#### (d)           EitherBorrower shall default in the observance or performance of any agreementcontained in this Agreement (other than those agreements referred to above inthis Section 8), and such default shall continue unremedied for a periodof 30 days after written notice thereof shall have been given to such Borrowerby the Administrative Agent or any of the Banks through the AdministrativeAgent; or

####  

#### (e)           (i) Either Borrower or any of its Significant Subsidiaries shall default in anypayment of principal of or interest on any indebtedness for borrowed money(other than the Loans and any Securitization Indebtedness) in a principalamount in excess of

 

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$50,000,000 in the aggregate, or any interestor premium thereon, when due (whether at scheduled maturity or by requiredprepayment, acceleration, demand or otherwise) and such failure shall continuebeyond the period of grace, if any, provided in the instrument or agreementunder which such indebtedness was created; or (ii) any other default (otherthan any default arising solely out of either Borrower’s, or any of itsSignificant Subsidiaries’, violation of any arrangement with any Bank, or anyaffiliate of any Bank, in any way restricting such Borrower’s, or suchSignificant Subsidiary’s, right or ability to sell, pledge or otherwise disposeof Margin Stock other than Restricted Margin Stock), or any other event thatwith notice or the lapse of time, or both, would constitute such a default,under any agreement or instrument relating to any such indebtedness forborrowed money (other than the Loans), shall occur and shall continue after theapplicable grace period, if any, specified in such agreement or instrument, ifthe effect of such default or event is to accelerate the maturity of suchindebtedness; or (iii) any such indebtedness for borrowed money shall, byreason of default, be declared to be due and payable, or required to beprepaid, prior to the stated maturity thereof (unless such indebtedness isdeclared due and payable, or required to be prepaid, solely by reason of eitherBorrower’s, or any of its Significant Subsidiaries’, violation of anyarrangement with any Bank, or any affiliate of any Bank, in any way restrictingsuch Borrower’s, or such Significant Subsidiary’s, right or ability to sell,pledge or otherwise dispose of Margin Stock other than Restricted MarginStock); or

 

(f)            (i)  Either Borrower or any of its SignificantSubsidiaries shall commence any case, proceeding or other action (A) under anyexisting or future law of any jurisdiction, domestic or foreign, relating tobankruptcy, insolvency, reorganization or relief of debtors, seeking to have anorder for relief entered with respect to it, or seeking to adjudicate it abankrupt or insolvent, or seeking reorganization, arrangement, adjustment,winding-up, liquidation, dissolution, composition or other relief with respectto 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 partof its assets, or such Borrower or any of its Significant Subsidiaries shallmake a general assignment for the benefit of its creditors; or (ii) there shallbe commenced against either Borrower or any of its Significant Subsidiaries anycase, proceeding or other action of a nature referred to in clause (i) abovewhich (A) results in the entry of an order for relief or any such adjudicationor appointment or (B) remains undismissed, undischarged or unbonded for aperiod of 90 days; or

 

(g)           Anyaction is undertaken to terminate any Plan as to which either Borrower, or anySubsidiary of either Borrower, may have liability, or any such Plan isterminated or such Borrower or Subsidiary withdraws from such Plan, or anyReportable Event as to any such Plan shall occur, and there shall exist adeficiency in the assets available to satisfy the benefits guaranteeable underERISA with respect to such Plan, in the aggregate for all such Plans withrespect to which any of the foregoing shall have occurred in the immediatelypreceding 12 consecutive months, of more than 25% of the Consolidated Net Worthof such Borrower and in the reasonable judgment of the Required Banks, suchoccurrence is reasonably expected to have a material adverse effect on thebusiness, operations or condition (financial or otherwise) of the Borrowers; or

 

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(h)           AnyPerson shall own beneficially, directly or indirectly, 30% or more of thecommon stock of the Company; or any Person shall have the power, direct orindirect, to vote securities having 30% or more of the ordinary voting powerfor the election of directors of the Company or shall own beneficially,directly or indirectly, securities having such power, provided thatthere shall not be included among the securities as to which any such Personhas such power to vote or which such Person so owns securities owned by suchPerson as nominee for the direct or indirect beneficial owner thereof orsecurities as to which such power to vote arises by virtue of proxies solicitedby the management of the Company;

 

then, and in any such event, (A) if suchevent is an Event of Default specified in paragraph (f) above, automaticallythe Commitments shall immediately terminate and the Loans hereunder (withaccrued interest thereon) and all other amounts owing under this Agreement andthe Loans shall immediately become due and payable, and (B) (1) if such eventis any Event of Default specified in paragraph (a) or (e), then with theconsent of the Majority Banks, the Administrative Agent may, or upon therequest of the Majority Banks, the Administrative Agent shall, or (2) if suchEvent 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, orupon the request of the Required Banks, the Administrative Agent shall, takeeither or both of the following actions: (i) by notice to the Borrowers, declare the Commitments to be terminatedforthwith, whereupon the Commitments shall immediately terminate; and (ii) bynotice of default to the Borrowers, declare the Loans hereunder (with accruedinterest thereon) and all other amounts owing under this Agreement to be dueand payable forthwith, whereupon the same shall immediately become due andpayable.  Except as expressly providedabove in this Section, presentment, demand, protest and all other notices ofany kind are hereby expressly waived with respect to this Agreement by theBorrowers.

 

SECTION 9            THEAGENTS

 

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 eachBank hereby irrevocably authorizes JPMorgan Chase Bank, N.A. as theAdministrative Agent for such Bank, to take such action on its behalf under theprovisions of this Agreement and to exercise such powers and perform suchduties as are expressly delegated to the Administrative Agent by the terms ofthis Agreement, together with such other powers as are reasonably incidentalthereto.

 

(b)           Notwithstandinganything to the contrary contained in this Agreement, the parties hereto herebyagree that neither the Syndication Agents, the Documentation Agents nor theCo-Documentation Agent shall have any rights, duties or responsibilities insuch respective capacity nor shall any such Person have the authority to takeany action hereunder in its capacity as such.

 

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

 

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9.2.          Delegation of Duties.  EachAgent may execute any of its duties under this Agreement by or through agentsor attorneys-in-fact and shall be entitled to advice of counsel concerning allmatters pertaining to such duties. Each Agent shall not be responsible for thenegligence or misconduct of any agents or attorneys-in-fact selected by it withreasonable care.

 

9.3.          Exculpatory Provisions.  Neitherany Agent nor any of their respective officers, directors, employees, agents,attorneys-in-fact or affiliates shall be (i) liable to any Bank for anyaction lawfully taken or omitted to be taken by it or such Person under or inconnection with this Agreement (except for its or such Person’s own grossnegligence or wilful misconduct), or (ii) responsible in any manner to anyof the Banks for any recitals, statements, representations or warranties madeby 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 receivedby any Agent under or in connection with, this Agreement or for the value,validity, effectiveness, genuineness, enforceability or sufficiency of thisAgreement or for any failure of the Borrowers to perform their obligationshereunder. No Agent shall be under any obligation to any Bank to ascertain orto inquire as to the observance or performance of any of the agreementscontained in, or conditions of, this Agreement, or to inspect the properties,books or records of the Borrowers.

 

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

 

9.5.          Notice of Default.  TheAdministrative Agent shall not be deemed to have knowledge or notice of theoccurrence of any Default or Event of Default unless the Administrative Agenthas 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 “noticeof default”. In the event that the Administrative Agent receives such a notice,the Administrative Agent shall give notice thereof to the Banks. The AdministrativeAgent shall take such action with respect to such Default or Event of Defaultas shall be reasonably directed by the Majority Banks, the Required Banks, orall Banks, as applicable; provided that, unless and until theAdministrative Agent shall have received such directions, the AdministrativeAgent may (but

 

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shall not be obligated to) take such action, orrefrain from taking such action, with respect to such Default or Event ofDefault as it shall deem advisable in the best interests of the Banks.

 

9.6.          Non-Reliance on Agents and OtherBanks.  Each Bank expressly acknowledges that neither any Agent norany of its respective officers, directors, employees, agents, attorneys-in-factor affiliates has made any representations or warranties to it and that no actby such Agent hereafter taken, including any review of the affairs of theBorrowers, shall be deemed to constitute any representation or warranty by suchAgent to any Bank. Each Bank represents to each Agent that it has,independently and without reliance upon such Agent or any other Bank, and basedon such documents and information as it has deemed appropriate, made its ownappraisal of and investigation into the business, operations, property,financial and other condition and creditworthiness of each Borrower and madeits own decision to make its Loans hereunder and enter into this Agreement. EachBank also represents that it will, independently and without reliance upon eachAgent or any other Bank, and based on such documents and information as itshall 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 thebusiness, operations, property, financial and other condition andcreditworthiness of the Borrowers. Except for notices, reports and otherdocuments 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 withany credit or other information concerning the business, operations, property,financial and other condition or creditworthiness of either Borrower which maycome into the possession of such Agent or any of its officers, directors,employees, agents, attorneys-in-fact or affiliates.

 

9.7.          Indemnification.  TheBanks agree to indemnify each Agent in its capacity as such (to the extent notreimbursed by the Borrowers and without limiting the obligation of theBorrowers to do so), ratably (as reasonably determined by the AdministrativeAgent), from and against any and all liabilities, obligations, losses, damages,penalties, actions, judgments, suits, costs, expenses or disbursements of anykind whatsoever which may at any time (including without limitation at any timefollowing the payment of the Loans) be imposed on, incurred by or assertedagainst such Agent in any way relating to or arising out of this Agreement, orany documents contemplated by or referred to herein or the transactionscontemplated hereby or any action taken or omitted by such Agent under or inconnection with any of the foregoing; provided that no Bank shall beliable for the payment of any portion of such liabilities, obligations, losses,damages, penalties, actions, judgments, suits, costs, expenses or disbursementsresulting from such Agent’s gross negligence or wilful misconduct. Theagreements in this subsection 9.7 shall survive the payment of the Loans andall other amounts payable hereunder.

 

9.8.          Agents in their IndividualCapacities.  Each Agent and its respective affiliates may make loansto, accept deposits from and generally engage in any kind of business with theBorrowers as though such Agent were not an Agent hereunder. With respect to itsLoans made by it, each Agent shall have the same rights and powers under thisAgreement 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 itsindividual capacity.

 

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

#  

# SECTION 10    MISCELLANEOUS

#  

10.1.        Amendments and Waivers.  Withthe written consent of the Majority Banks, the Administrative Agent and theBorrowers may, from time to time, enter into written amendments, supplements ormodifications hereto for the purpose of adding any provisions to this Agreementor changing in any manner the rights of the Banks or of the Borrowershereunder, and with the consent of the Majority Banks the Administrative Agenton behalf of the Banks may execute and deliver to the Borrowers a writteninstrument waiving, on such terms and conditions as the Administrative Agentmay specify in such instrument, any of the requirements of this Agreement orany Default or Event of Default and its consequences; provided, however,that no such waiver, amendment, supplement or modification shall (a) extendthe maturity of any Loan, or reduce the rate or extend the time of payment ofinterest thereon, or reduce the principal amount thereof, or reduce the rate ofany 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 anyCommitted Rate Loan, each Bank directly affected thereby and (ii) withrespect 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 itsobligation to make Loans hereunder (other than in accordance with subsection2.20), or amend, modify or waive the pro rata treatment and payment provisionsof subsection 2.12(b), or amend, modify or waive any provision of thissubsection 10.1 or reduce the percentage specified in the definition ofMajority Banks or Required Banks, or consent to the assignment or transfer byeither Borrower of any of its rights and obligations under this Agreement, ineach case without the written consent of each Bank, or (c) amend, modifyor waive any provision of Section 9 without the written consent of thethen Administrative Agent and, if applicable, any other Agent affected by suchamendment, modification or waiver, or (d) extend the Termination Date withrespect to any Bank without the written consent of such Bank; and provided,further, however, that no such waiver, amendment, supplement ormodification shall waive, amend, supplement or otherwise modify subsection 2.16or Section 8(B) (2) without the written consent of the RequiredBanks. Any such waiver and any such amendment, supplement or modification shallapply equally to each of the Banks and shall be binding upon the Borrowers, theBanks and the Agents. In the case of any waiver, the Borrowers, the Banks andthe Agents shall be restored to their former position and rights hereunder, andany Default or Event of Default waived shall be deemed to be cured and notcontinuing; but no such waiver shall extend to any subsequent or other Defaultor Event of Default, or impair any right consequent thereon. Anything containedin the foregoing to the contrary notwithstanding, the relevant Borrower and therelevant Bank with respect to a

 

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Negotiated Rate Loan may, from time to time, enterinto amendments, supplements or modifications for the purpose of adding anyprovisions to such Negotiated Rate Loans or changing in any manner the rightsof such Bank and such Borrower thereunder and such Bank may waive any of therequirements of such Negotiated Rate Loan; provided, however,that such Borrower and such Bank shall notify the Administrative Agent inwriting of any extension of the maturity of such Negotiated Rate Loan orreduction of the principal amount thereof; provided, further,that such Borrower and such Bank shall not extend the maturity of suchNegotiated 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 effectiveshall be in writing, by facsimile transmission, by telephone confirmed inwriting and, unless otherwise expressly provided herein, shall be deemed tohave been duly given or made when delivered by hand, or when deposited in themail, postage prepaid, or, in the case of facsimile transmission, whenreceived, addressed as follows in the case of the Borrowers, the AdministrativeAgent, or to such address or other address as may be hereafter notified by therespective parties hereto:

 
| The Borrowers:            |   |                                                                                                                                                          |
|---------------------------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                      |   |                                                                                                                                                          |
| The Company:              |   | Deere & Company  Attention: Treasurer  One John Deere Place  Moline, Illinois 61265  Telephone: 309-765-5344  Facsimile: 309-765-5021                |
|                      |   |                                                                                                                                                          |
| The Capital Corporation:  |   | John Deere Capital Corporation  Attention: Manager  1 East First Street  Suite 600  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: 309-765-5344  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             |

 

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| with a copy to:    |   | JPMorgan Chase Bank, N.A.  Attention: Talitha Humes  1111 Fannin Street, 10th Floor  Houston, Texas 77002  Telephone: 713-427-6190  Facsimile: 713-750-2782 |
|--------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------|
|               |   |                                                                                                                                                        |
| To any other Bank: |   | To it at its address (or facsimile number)  set forth in its Administrative Questionnaire.                                                                  |

 

providedthat any notice, request or demand to or upon the Administrative Agent or theBanks pursuant to subsections 2.1, 2.2, 2.5, 2.6, 2.9, 2.11, 2.20 and 9.9 shallnot be effective until received (including receipt by telephone if permittedhereby).

 

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

 

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

 

### (b)           TheBorrowers agree jointly and severally to indemnify and hold harmless each Agentand each Bank against any and all losses, claims, damages and liabilities(other than in connection with actions, suits and proceedings by any of theBanks against any of the other Banks), joint or several, to which they or anyof them may become subject insofar as such losses, claims, damages andliabilities arise out of, relate to or are based on this Agreement (includingthe responsibilities, duties and obligations of the Banks hereunder and theiragreement to make

 

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### Loans hereunder) in connection with any acquisition or proposedacquisition of any securities or assets by a Borrower or any of itsSubsidiaries, and shall reimburse each such indemnified party for any legal orother expenses reasonably incurred by it in connection with investigating or defendingany such loss, claim, damage or liability, subject to the following paragraph. Thisindemnity agreement shall be in addition to any liability which either Borrowermay otherwise have.

###  

### (c)           Promptlyafter receipt by an indemnified party under subsection 10.4(b) of writtennotice of any loss, claim, damage or liability in respect of which indemnitymay be sought by it hereunder, such indemnified party will, if a claim is to bemade against the Borrowers, notify the Borrowers thereof in writing; but theomission so to notify the Borrowers will not relieve the Borrowers from anyliability (otherwise than under this subsection 10.4) which they may have toany indemnified party except as may be required or provided otherwise thanunder this subsection 10.4. Thereafter, the indemnified party and the Borrowersshall consult, to the extent appropriate, with a view to minimizing the cost tothe Borrowers of their obligations hereunder. In case any indemnified partyreceives written notice of any loss, claim, damage or liability in respect ofwhich indemnity may be sought hereunder by it and it notifies the Borrowersthereof, the Borrowers will be entitled to participate therein and, to theextent that they may elect by written notice delivered to the indemnified partypromptly after receiving the aforesaid notice from such indemnified party, toassume the defense thereof, with counsel reasonably satisfactory at all timesto such indemnified party; provided, however, that (i) ifthe parties against whom any loss, claim, damage or liability arises includeboth the indemnified party and a Borrower or any Subsidiary of a Borrower andthe indemnified party shall have reasonably concluded that there may be legaldefenses available to it or other indemnified parties which are different from oradditional to those available to a Borrower or any Subsidiary of a Borrower andmay conflict therewith, the indemnified party or parties shall have the rightto select one separate counsel for such indemnified party or parties to assumesuch 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) ifany loss, claim, damage or liability arises out of actions brought by or forthe benefit of a Borrower or any Subsidiary of a Borrower, the indemnifiedparty or parties shall have the right to select their counsel and to assume anddirect the defense thereof and neither Borrower shall be entitled toparticipate therein or assume the defense thereof. Upon receipt of notice fromthe Borrowers to such indemnified party of their election so to assume thedefense of such loss, claim, damage or liability and approval by theindemnified party of counsel, the Borrowers shall not be liable to suchindemnified party under this subsection 10.4 for any legal or other expensessubsequently incurred by such indemnified party in connection with the defensethereof unless (i) the indemnified party shall have employed such counselin connection with the assumption of legal defenses in accordance with theproviso to the next preceding sentence, (ii) the Borrowers shall not haveemployed and continued to employ counsel satisfactory to the indemnified partyto represent the indemnified party within a reasonable time after notice ofcommencement of the action or (iii) the Borrowers shall have authorizedthe employment of counsel for the indemnified party at the expense of theBorrowers.

###  

### (d)           Notwithstandingany other provision contained in this subsection 10.4, (i) the Borrowersshall not be liable for any settlement, compromise or consent to the entry ofany order adjudicating or otherwise disposing of any loss, claim, damage orliability effected without their consent and (ii) after the Borrowers haveassumed the defense of any loss, claim, damage or

 

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### liability under the preceding paragraph with respect to any Bank, theywill not settle, compromise or consent to entry of any order adjudicating orotherwise disposing thereof (1) if such settlement, compromise or orderinvolves the payment of money damages, except if the Borrowers agree with suchBank to pay such money damages, and, if not simultaneously paid, to furnishsuch Bank with satisfactory evidence of their ability to pay such moneydamages, and (2) if such settlement, compromise or order involves anyrelief against such Bank, other than the payment of money damages, except withthe prior written consent of such Bank.

###  

### (e)           Theagreements in this subsection 10.4 shall survive repayment of the Loans and allother amounts payable hereunder.

###  

10.5.        Successors and Assigns;Participations; Purchasing Banks.  (a)  This Agreement shall bebinding upon and inure to the benefit of the Borrowers, the Banks, the Agentsand their respective successors and assigns, exceptthat theBorrowers may not assign or transfer any of their rights or obligations underthis Agreement without the prior written consent of each Bank.

 

### (b)           AnyBank may, in the ordinary course of its commercial banking business and inaccordance with applicable law, at any time sell to one or more banks or otherfinancial institutions (“Participants”) participating interests in theLoans, Commitments and other interests of such Bank hereunder. In the event ofany such sale by a Bank of participating interests to a Participant, such Bank’sobligations under this Agreement to the other parties to this Agreement shallremain unchanged, such Bank shall remain solely responsible for the performancethereof, such Bank shall remain the holder of any such Loan for all purposesunder this Agreement, and the Borrowers and the Administrative Agent shallcontinue to deal solely and directly with such Bank in connection with suchBank’s rights and obligations under this Agreement.

###  

### (c)           AnyBank may, in the ordinary course of its commercial banking business and inaccordance with applicable law, at any time assign to one or more banks orother financial institutions (“Loan Assignees”) any Bid Loan orNegotiated Rate Loan or portion thereof owing to such Bank, pursuant to a LoanAssignment executed by the assignor Bank and the Loan Assignee. Upon suchexecution, from and after the Transfer Effective Date specified in such LoanAssignment, the Loan Assignee shall, to the extent of the assignment providedfor in such Loan Assignment and to the extent permitted by applicable law, bedeemed to have the same rights and benefits with respect to such Bid Loans andNegotiated Rate Loans and the same obligation to share pursuant to subsection10.6 as it would have had if it were a Bank hereunder; provided, thatunless such Loan Assignment shall otherwise specify and a copy of such LoanAssignment shall have been delivered to the Administrative Agent for itsacceptance 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 inthe case of Bid Loans, the Administrative Agent shall pay all amounts receivedfrom the relevant Borrower which are allocable to the assigned Bid Loan directlyto the assignor Bank without any further liability to the relevant LoanAssignee, and, in the case of Negotiated Rate Loans, the relevant Borrowershall pay all amounts due under the assigned Negotiated Rate Loan directly tothe assignor Bank without any further liability to the Loan Assignee. At therequest of any Loan Assignee, on or promptly after the Transfer Effective Datespecified in such Loan Assignment, the relevant Borrower, at its own expense,shall execute and deliver to the Loan Assignee a promissory note with respectto the

 

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### Bid Loans or Negotiated Rate Loans to the order of such Loan Assigneein an amount equal to the Bid Loan or Negotiated Rate Loan assigned. Such noteshall be dated the Borrowing Date in respect of such Bid Loan or NegotiatedRate 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 anaggregate of two notes with respect to the Bid Loans of any Bank with the sameInterest Period at any time outstanding. A Loan Assignee shall not, by virtueof such Loan Assignment, become a party to this Agreement or have any rights toconsent to or refrain from consenting to any amendment, waiver or othermodification 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 willexercise its rights under this Agreement and any related document, and (ii) ifa copy of such Loan Assignment shall have been delivered to the AdministrativeAgent for its acceptance and recording in the Register in accordance withsubsection 10.5(f), neither the principal amount of, the interest rate on, northe maturity date of, any Bid Loan or Negotiated Rate Loan assigned to a LoanAssignee will be modified without written consent of such Loan Assignee.

###  

### (d)           AnyBank may, in the ordinary course of its commercial banking business and inaccordance with applicable law, sell to any Bank or any affiliate thereof andto one or more additional banks or other financial institutions (“PurchasingBanks”), all or any portion (subject to the last sentence of thissubsection 10.5(d)) of its rights (which rights may include such Bank’s rightsin respect of Loans it has disbursed) and obligations under this Agreement withthe prior written consent (such consent not to be unreasonably withheld) of theBorrowers. Such sale shall be made pursuant to a Commitment TransferSupplement, executed by such Purchasing Bank and such transferor Bank (and, inthe 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 theAdministrative Agent for its acceptance and recording in the Register. Uponsuch execution, delivery, acceptance and recording, from and after the TransferEffective Date specified in such Commitment Transfer Supplement, (i) thePurchasing Bank thereunder shall be a party hereto with respect to the interestpurchased and, to the extent provided in such Commitment Transfer Supplement,have the rights and obligations of a Bank hereunder with a Commitment as setforth therein, and (ii) the transferor Bank thereunder shall cease to havethose rights and obligations under this Agreement to which the Purchasing Bankhas succeeded (and, in the case of a Commitment Transfer Supplement coveringall or the remaining portion of a transferor Bank’s rights and obligationsunder this Agreement, such transferor Bank shall cease to be a party hereto). SuchCommitment Transfer Supplement shall be deemed to amend this Agreement to theextent, and only to the extent, necessary to reflect the addition of suchPurchasing Bank and the resulting adjustment of Commitments and CommitmentPercentages arising from the purchase by such Purchasing Bank of a portion ofthe rights and obligations of such transferor Bank under this Agreement. On orpromptly after the Transfer Effective Date specified in such CommitmentTransfer Supplement, the Purchasing Bank and the Administrative Agent, onbehalf of such Purchasing Bank, shall open and maintain in the name of eachBorrower a Loan Account with respect to such Purchasing Bank’s Committed RateLoans and Bid Loans to such Borrower. Anything contained in this Agreement tothe contrary notwithstanding, no Bank may sell any portion of its rights andobligations under this subsection 10.5(d) to any bank or financialinstitution without the prior written consent of the Borrowers if, after givingeffect to such sale or at the time of such sale, as the case may be, (i) theCommitment of either of the selling and purchasing institutions would begreater than $0 but less than $5,000,000, (ii) the

 

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### Purchasing Bank, together with all of its affiliates, would have aCommitment Percentage of more than 15% (or, if the Commitments shall have beenterminated, such Purchasing Bank, together with all of its affiliates, wouldhold Loans aggregating to more than 15% in principal amount of all outstandingLoans), (iii) the Credit Rating of any Purchasing Bank shall be less thanBBB+ from S&P or less than Baa1 from Moody’s or such Purchasing Bank shallhave no Credit Rating or (iv) the Purchasing Bank is not a bank, insurancecompany, other financial institution or an Affiliate of any thereof that isengaged in making, purchasing, holding or investing in bank loans or similarextensions of credit in the ordinary course of its business.

###  

### (e)           TheAdministrative Agent shall maintain at its address referred to in subsection10.2 a copy of each Loan Assignment and each Commitment Transfer Supplementdelivered to it and a register (the “Register”) for the recordation of (i) thenames and addresses of the Banks and the Commitment of, and principal amount ofthe Loans (other than Negotiated Rate Loans) owing to, each Bank from time totime, and (ii) with respect to each Loan Assignment delivered to theAdministrative Agent, the name and address of the Loan Assignee and theprincipal amount of each Bid Loan owing to such Loan Assignee. The entries inthe Register shall constitute primafacie evidence of theaccuracy of the information so recorded, and the Borrowers, the AdministrativeAgent and the Banks may treat each Person whose name is recorded in theRegister as the owner of the Loan recorded therein for all purposes of thisAgreement. The Register shall be available for inspection by the Company or anyBank or Loan Assignee at any reasonable time and from time to time uponreasonable prior notice.

###  

### (f)            Uponits receipt of a Loan Assignment executed by an assignor Bank and a LoanAssignee and an Administrative Questionnaire from the Loan Assignee if it isnot then a Bank, together with payment to the Administrative Agent (by theassignor Bank or the Loan Assignee, as agreed between them) of a registrationand processing fee of $3,500, the Administrative Agent shall (i) acceptsuch Loan Assignment, (ii) record the information contained therein in theRegister and (iii) give prompt notice of such acceptance and recordationto the assignor Bank, the Loan Assignee and the Borrowers. Upon its receipt ofa Commitment Transfer Supplement executed by a transferor Bank and a PurchasingBank (and, in the case of a Purchasing Bank that is not then a Bank or anaffiliate thereof, by the Borrowers and the Administrative Agent) and anAdministrative Questionnaire from the Purchasing Bank if it is not then a Bank,together with payment to the Administrative Agent (by the transferor Bank orthe Purchasing Bank, as agreed between them) of a registration and processingfee of $3,500 for each Purchasing Bank listed in such Commitment TransferSupplement, the Administrative Agent shall (A) accept such CommitmentTransfer Supplement, (B) record the information contained therein in theRegister and (C) give prompt notice of such acceptance and recordation tothe Banks and the Borrowers.

###  

### (g)           TheCompany authorizes each Bank to disclose to any Participant, Loan Assignee orPurchasing Bank (each, a “Transferee”) and any prospective Transfereeany and all financial information in such Bank’s possession concerning theBorrowers and their Subsidiaries which has been delivered to such Bank by or onbehalf of the Borrowers pursuant to this Agreement or in connection with suchBank’s credit evaluation of the Borrowers and their Subsidiaries prior tobecoming a party to this Agreement, provided that with respect toconfidential data or information described in subsection 10.7, suchconfidential data may be disclosed only to (i) a Purchasing Bank and/or (ii) anyother Transferee or prospective Transferee

 

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### with the Borrowers’ prior written consent, which consent shall not beunreasonably 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 informationpursuant to this subsection 10.5(g) unless (i) it has notified thePurchasing Bank or other Transferee or potential Transferee that such data orinformation are confidential, such notification to be in writing if such dataor information are disclosed in writing and orally if such data or informationare disclosed orally, and (ii) such Purchasing Bank, Transferee orpotential Transferee has agreed in writing to be bound by the provisions ofsubsection 10.7.

###  

### (h)           If,pursuant to this subsection, any loan participation or series of loanparticipations is sold or any interest in this Agreement is transferred to anyTransferee, the transferor Bank shall cause such Transferee, concurrently withthe effectiveness of such transfer or the first transfer to occur in a seriesof transfers between such transferor Bank and such Transferee, (i) torepresent to the transferor Bank (for the benefit of the transferor Bank, theAdministrative Agent and the Borrowers) either (A) that it is incorporatedunder the laws of the United States or a state thereof or (B) that underapplicable law and treaties no taxes will be required to be withheld by theAdministrative Agent, the Borrowers or the transferor Bank with respect to anypayments to be made to such Transferee in respect of the Loans, (ii) tofurnish to the transferor Bank, the Administrative Agent and the Borrowers (A) either(I) a statement that it is incorporated under the laws of the UnitedStates or a state thereof or (II) if it is not so incorporated, a letterin 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-8BENor W-8ECI or successor applicable form, as the case may be, certifying in eachcase that such Transferee is entitled to receive payments under this Agreementwithout deduction or withholding of any United States federal income taxes, and(B) an Internal Revenue Service Form W-8BEN, or successor applicableform, as the case may be, to establish an exemption from United States backup withholdingtax, and (iii) to agree (for the benefit of the transferor Bank, theAdministrative Agent and the Borrowers) to provide the transferor Bank, theAdministrative Agent and the Borrowers a new Form W-8BEN or W-8ECI, orsuccessor applicable form or other manner of certification, on or before thedate that any such letter or form expires or becomes obsolete or after theoccurrence of any event requiring a change in the most recent letter and formpreviously delivered by it, certifying in the case of a Form W-8BEN orW-8ECI that such Transferee is entitled to receive payments under thisAgreement without deduction or withholding of any United States federal incometax, and in the case of a Form W-8BEN establishing exemption from UnitedStates backup withholding tax. The Administrative Agent shall not beresponsible for obtaining such documentation except from its own Transferees.

###  

### (i)            Nothingin this subsection 10.5 shall prohibit any Bank from pledging or assigning itsLoans to any Federal Reserve Bank in accordance with applicable law.

###  

### (j)            TheBorrowers, upon receipt of written notice from the relevant Bank, agree toissue Notes to any Bank requiring Notes to facilitate transactions of the typedescribed in paragraph (i) above.

###  

### (k)           Notwithstandinganything to the contrary contained herein, any Bank (a “Granting Bank”)may grant to a special purpose funding vehicle (an “SPC”), identified assuch in writing from time to time by the Granting Bank to the AdministrativeAgent and the

 

58

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### Company, the option to provide to the Borrowers all or any part of anyLoan that such Granting Bank would otherwise be obligated to make to theBorrowers pursuant to this Agreement; provided that (i) nothingherein shall constitute a commitment by any SPC to make any Loan, (ii) if anSPC elects not to exercise such option or otherwise fails to provide all or anypart of such Loan, the Granting Bank shall be obligated to make such Loanpursuant to the terms hereof. The making of a Loan by an SPC hereunder shallutilize the Commitment of the Granting Bank to the same extent, and as if, suchLoan were made by such Granting Bank. Each party hereto hereby agrees that noSPC shall be liable for any indemnity or similar payment obligation under thisAgreement (all liability for which shall remain with the Granting Bank). Infurtherance of the foregoing, each party hereto hereby agrees (which agreementshall survive the termination of this Agreement) that, prior to the date thatis one year and one day after the payment in full of all outstanding commercialpaper 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 thelaws of the United States or any State thereof. In addition, notwithstandinganything to the contrary contained in this subsection 10.5(k) any SPC may (i) withnotice to, but without the prior written consent of, the Company and theAdministrative Agent and without paying any processing fee therefor, assign allor a portion of its interests in any Loans to the Granting Bank or to anyfinancial institutions (consented to by the Company and Administrative Agent) providingliquidity and/or credit support to or for the account of such SPC to supportthe funding or maintenance of Loans and (ii) disclose on a confidentialbasis any non-public information relating to its Loans to any rating agency,commercial paper dealer or provider of any surety, guarantee or credit orliquidity enhancement to such SPC. This subsection 10.5(k) may not beamended without the written consent of the SPC.

###  

10.6.        Adjustments.  Except asotherwise provided in this Agreement, if any Bank (a “benefitted Bank”)shall at any time receive any payment of all or part of its Committed RateLoans,****or interest thereon or facility fee orUtilization Fee hereunder, or receive any collateral in respect thereof(whether voluntarily or involuntarily, by set-off, pursuant to events orproceedings of the nature referred to in clause (e) of Section 8, orotherwise) in a greater proportion than any such payment to and collateralreceived by any other Bank, if any, in respect of such other Bank’s CommittedRate Loans, or interest thereon, or facility fee or Utilization Fee hereunder,such benefitted Bank shall purchase for cash from the other Banks such portionof each such other Bank’s Committed Rate Loans, or shall provide such otherBanks with the benefits of any such collateral, or the proceeds thereof, asshall be necessary to cause such benefitted Bank to share the excess payment orbenefits 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 benefitsis thereafter recovered from such benefitted Bank, such purchase shall berescinded, and the purchase price and benefits returned, to the extent of suchrecovery, but without interest. The Borrowers agree that each Bank so purchasinga portion of another Bank’s Committed Rate Loans may exercise all rights ofpayment (including, without limitation, rights of set-off) with respect to suchportion as fully as if such Bank were the direct holder of such portion.

 

10.7.        Confidentiality.  (a)   Eachof the Agents and the Banks shall, subject as hereinafter provided, keepconfidential from any third party any data or information received by

 

59

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them from the Borrowers pursuant to this Agreementwhich, if provided in writing, is designated in writing as such, and ifprovided orally, is designated orally as such by the Borrowers except:

 

###### (i)            anysuch data or information as is or becomes publicly available or generally knownotherwise than as a result of any breach of the provisions of this subsection10.7;

######  

###### (ii)           asrequired by law, rule, regulation or official direction;

######  

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

######  

###### (iv)          tothe extent permitted under subsection 10.5; and

######  

###### (v)           tothe attorneys, accountants and regulators of such Banks, and to each otherBank.

######  

### (b)           Eachof the Agents and the Banks shall use their reasonable efforts to ensure thatany confidential data or information received by them from the Borrowerspursuant to this Agreement which is disclosed to employees of such Agent orBank (as the case may be) is so disclosed only to the extent necessary forpurpose of the administration of this Agreement and, in all cases, on thecondition that such information and data shall be kept confidential except forsuch purpose.

###  

### (c)           Theprovisions of this subsection 10.7 shall survive the payment in full of allamounts payable hereunder and the termination of this Agreement.

###  

10.8.        Counterparts.  ThisAgreement may be executed by one or more of the parties to this Agreement onany number of separate counterparts and all of said counterparts taken togethershall be deemed to constitute one and the same instrument. A set of the copiesof this Agreement signed by all the parties shall be lodged with the Borrowersand the Administrative Agent.

 

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

 

10.10.      Consent to Jurisdiction and Service ofProcess.  All judicial proceedings brought against the Borrowers withrespect to this Agreement may be brought in any state or federal court ofcompetent jurisdiction in the State of New York, and, by execution and deliveryof this Agreement, the Borrowers accept, for themselves and in connection withtheir properties, generally and unconditionally, the non-exclusive jurisdictionof the aforesaid courts and irrevocably agree to be bound by any final judgmentrendered thereby in connection with this Agreement from which no appeal hasbeen taken or is available. The Borrowers irrevocably agree that all process inany such proceedings in any such court may be effected by mailing a copythereof by registered or certified mail (or any substantially similar form ofmail), postage prepaid, to them at their addresses set forth in subsection 10.2or at such other address of which

 

60

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the Administrative Agent shall have been notifiedpursuant thereto, such service being hereby acknowledged by the Borrowers to beeffective and binding service in every respect. Each of the Borrowers, theAgents and the Banks irrevocably waives any objection, including without limitation,any objection to the laying of venue or based on the grounds of forum nonconveniens which it may now or hereafter have to the bringing of any suchaction or proceeding in any such jurisdiction. Nothing herein shall affect theright to serve process in any other manner permitted by law or shall limit theright of any Agent or any Bank to bring proceedings against the Borrowers inthe courts of any other jurisdiction.

 

## 10.11.      USAPATRIOT Act.

##  

Each Bank hereby notifies the Borrowers that pursuant tothe requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signedinto law October 26, 2001)) (the “Act”), it is required to obtain,verify and record information that identifies the Borrowers, which informationincludes the name and address of the Borrowers and other information that willallow such Bank to identify the Borrowers in accordance with the Act. TheBorrowers shall promptly provide such information upon request by any Bank.

 

61

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

 
|   | DEERE & COMPANY       |
|--------|--------------------------------|
|   |                           |
|   |                           |
|   | By:                            |   |
|   |                           | Title: |
|   |                           |
|   |                           |
|   | JOHN DEERE CAPITAL CORPORATION |
|   |                           |
|   |                           |
|   | By:                            |   |
|   |                           | Title: |

 

[Signature Page to 2008 364-Day Credit Agreement]

 

----

 
|   | JPMORGAN CHASE BANK, N.A.,            |
|--------|---------------------------------------|
|   | as Administrative Agent and as a Bank |
|   |                                  |
|   |                                  |
|   | By:                                   |   |
|   |                                  | Title: |

 

[Signature Page to 2008 364-Day Credit Agreement]

 

----

 
|   | BANK OF AMERICA, N.A.,               |
|--------|--------------------------------------|
|   | as a Syndication Agent and as a Bank |
|   |                                 |
|   |                                 |
|   | By:                                  |   |
|   |                                 | Title: |

 

[Signature Page to 2008 364-Day Credit Agreement]

 

----

 
|   | CITIBANK, N.A.,          |
|--------|--------------------------|
|   | as a Documentation Agent |
|   |                     |
|   |                     |
|   | By:                      |   |
|   |                     | Title: |
|   |                     |
|   | CITICORP USA             |
|   | as a Bank                |
|   |                     |
|   |                     |
|   | By:                      |   |
|   |                     | Title: |

 

[Signature Page to 2008 364-Day Credit Agreement]

 

----

 
|   | CREDIT SUISSE FIRST BOSTON, acting through |
|--------|--------------------------------------------|
|   | its Cayman Islands Branch,                 |
|   | as a Documentation Agent and as a Bank     |
|   |                                       |
|   |                                       |
|   | By:                                        |   |
|   |                                       | Title: |

 

[Signature Page to 2008 364-Day Credit Agreement]

 

----

 
|   | DEUTSCHE BANK AG NEW YORK BRANCH,    |
|--------|--------------------------------------|
|   | as a Syndication Agent and as a Bank |
|   |                                 |
|   |                                 |
|   | By:                                  |   |
|   |                                 | Title: |
|   |                                 |
|   | By:                                  |   |
|   |                                 | Title: |

 

[Signature Page to 2008 364-Day Credit Agreement]

 

----

 
|   | MERRILL LYNCH BANK USA,                 |
|--------|-----------------------------------------|
|   | as Co-Documentation Agent and as a Bank |
|   |                                    |
|   |                                    |
|   | By:                                     |   |
|   |                                    | Title: |

 

[Signature Page to 2008 364-Day Credit Agreement]

 

----

 
|   |      |
|--------|-----------|
|   | as a Bank |
|   |      |
|   |      |
|   | By:       |   |
|   |      | Title: |

 

[Signature Page to 2008 364-Day Credit Agreement]

 

----

 

SCHEDULE I

 

TERMS OF SUBORDINATION

 

“Senior Indebtedness” means the principal of(and premium, if any) and unpaid interest, Utilization Fee and facility fee on (a) indebtednessof John Deere Capital Corporation (the “Capital Corporation”) (includingindebtedness of others guaranteed by the Capital Corporation), other than theindebtedness evidenced by the Securities [such term to be defined as the debtto be issued under the indenture or agreement to which this Schedule relates]and [specify any other indebtedness of the Capital Corporation (includingindebtedness of others guaranteed by the Capital Corporation)], providedthat indebtedness of the Capital Corporation under the credit agreement towhich these Terms of Subordination are attached may not be so specified,whether outstanding on the date hereof or hereafter created, incurred, assumedor guaranteed, for money borrowed, unless in the instrument creating orevidencing the same or pursuant to which the same is outstanding it is providedthat such indebtedness is not senior or prior in right of payment to theSecurities, and (b) renewals, extensions, modifications and refundings ofany such indebtedness.

 

SUBORDINATION

 

Section 1. Agreement to Subordinate.

 

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

 

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

 

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

 

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

 

----

 

(b)           any payment ordistribution of assets of the Capital Corporation of any kind or character,whether in cash, property or securities, to which the holders of the Securitiesor any trustee therefor would be entitled except for the provisions of this Article shallbe paid by the liquidating trustee or agent or other person making such paymentor distribution, whether a trustee in bankruptcy, a receiver or liquidatingtrustee or otherwise, directly to the holders of Senior Indebtedness or theirrepresentative or representatives or to the trustee or trustees under any indentureunder which any instruments evidencing any of such Senior Indebtedness may havebeen issued, ratably according to the aggregate amounts remaining unpaid onaccount of the principal of (and premium, if any) and interest, Utilization Feeand facility fee on the Senior Indebtedness held or represented by each holderof Senior Indebtedness, to the extent necessary to make payment in full of allSenior Indebtedness remaining unpaid, after giving effect to any concurrentpayment 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 theCapital Corporation of any kind or character, whether in cash, property orsecurities, shall be received by any trustee for the holders of the Securitiesor the holders of the Securities before all Senior Indebtedness is paid infull, such payment or distribution shall be paid over, upon written notice toany trustee for the holders of the Securities, to the holders of SeniorIndebtedness or their representative or representatives or to the trustee ortrustees under any indenture under which any instruments evidencing any of suchSenior Indebtedness may have been issued, ratably as aforesaid, for applicationto the payment of all Senior Indebtedness remaining unpaid until all suchSenior Indebtedness shall have been paid in full, after giving effect to anyconcurrent payment or distribution to the holders of such Senior Indebtedness.

 

Subject to the payment in full of all SeniorIndebtedness, the holders of the Securities shall be subrogated to the rightsof the holders of Senior Indebtedness to receive payments or distributions ofcash, property or securities of the Capital Corporation applicable to SeniorIndebtedness until the principal of (and premium, if any) and interest on theSecurities shall be paid in full and no such payments or distributions to theholders of the Securities of cash, property or securities otherwisedistributable to the holders of Senior Indebtedness shall, as between theCapital Corporation, its creditors other than the holders of SeniorIndebtedness, and the holders of the Securities, be deemed to be a payment bythe 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 theholders of the Securities, on the one hand, and the holders of SeniorIndebtedness, on the other hand.  Nothingcontained in this Article or elsewhere in this Agreement or in theSecurities is intended to or shall impair, as between the Capital Corporation,its creditors other than the holders of Senior Indebtedness, and the holders ofthe Securities, the obligation of the Capital Corporation, which isunconditional and absolute, to pay to the holders of the Securities theprincipal of (and premium, if any) and interest on the Securities as and whenthe same shall become due and payable in accordance with their terms, or toaffect the relative rights of the holders of the Securities and creditors ofthe Capital Corporation other than the holders of Senior Indebtedness, norshall anything herein or in the instruments or other evidence of the Securitiesprevent any trustee for the holders of the Securities or the holder of anySecurities from exercising all remedies otherwise permitted by applicable lawupon default under this Agreement or such instrument or other evidence, subject

 

2

----

 

to the rights, if any, under this Article ofthe holders of Senior Indebtedness in respect of cash, property or securitiesof the Capital Corporation received upon the exercise of any such remedy.

 

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

 

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

 

3

----

 

SCHEDULE II

 

COMMITMENTS

 
| **Bank**                               | ** ** | **Commitment** | ** **  |
|----------------------------------------|------------|----------------|-------------|
| JPMorgan Chase Bank, N.A.              |       | $              | 95,000,000  |   |
| Bank of America, N.A.                  |       | $              | 75,000,000  |   |
| Citibank, N.A.                         |       | $              | 75,000,000  |   |
| Credit Suisse Cayman Island Branch     |       | $              | 75,000,000  |   |
| Deutsche Bank AG, New York Branch      |       | $              | 75,000,000  |   |
| Merrill Lynch Bank USA                 |       | $              | 75,000,000  |   |
| HSBC Bank USA, N.A.                    |       | $              | 55,000,000  |   |
| Toronto Dominion (Texas) LLC           |       | $              | 55,000,000  |   |
| BNP Paribas                            |       | $              | 25,000,000  |   |
| Wachovia Bank, N.A.                    |       | $              | 25,000,000  |   |
| Wells Fargo Bank, N.A.                 |       | $              | 25,000,000  |   |
| Banco Bilbao Vizcaya Argentaria        |       | $              | 15,000,000  |   |
| The Bank of New York                   |       | $              | 15,000,000  |   |
| The Bank of Tokyo Mitsubishi UFJ, Ltd. |       | $              | 15,000,000  |   |
| Westpac Banking Corporation            |       | $              | 15,000,000  |   |
| Fifth Third Bank                       |       | $              | 10,000,000  |   |
| Santander S.A. NY Branch               |       | $              | 10,000,000  |   |
| U.S. Bank, N.A.                        |       | $              | 10,000,000  |   |
| Nordea Bank Finland Plc                |       | $              | 5,000,000   |   |
|                                   |       |           |        |
| TOTAL                                  |       | $              | 750,000,000 |   |

 

----

 

SCHEDULE III

 

ADDRESSES FOR NOTICES

 

**JPMorganChase Bank, N.A.**Attention:  Randolph Cates270 Park Avenue - 4th Floor               New York, New York 10017Telephone:  (212) 270-8997Facsimile:  (212) 270-6637

 

----

 

EXHIBIT A

 

[FORM OF BORROWING NOTICE]

 

                                                   ,200  

 

JPMorgan Chase Bank, N.A.,   as Administrative Agent under the Credit Agreement referred to below1111 Fannin Street, 10th FloorHouston, Texas 77002Attention:  Talitha Humes

 

Ladies and Gentlemen:

 

Pursuant to subsection 2.1(c) of the$750,000,000 364-Day Credit Agreement, dated as of March 4, 2008, amongDEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks partiesthereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A. andCREDIT SUISSE FIRST BOSTON, as Documentation Agents, MERRILL LYNCH BANK USA, asCo-Documentation Agent, and BANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORKBRANCH, as Syndication Agents (as the same may be amended, supplemented orotherwise modified from time to time, the “Credit Agreement”), theundersigned hereby requests that the following Committed Rate Loans be made on                    ,200   as follows:

 
| (1)                      | Total Amount of Committed Rate Loans                                                                           |   | $ |
|--------------------------|----------------------------------------------------------------------------------------------------------------|--------|---|
|                     |                                                                                                           |   |
| (2)                      | Amount of (1) to be allocated to Eurodollar Loans                                                         |   | $ |
|                     |                                                                                                           |   |
| (3)                      | Amount of (1) to be allocated to ABR Loans                                                                |   | $ |
|                     |                                                                                                           |   |
| (4)                      | Interest Periods and amounts to be  allocated thereto in respect of Eurodollar Loans (amounts must total (2)): |   | $ |
|                     |                                                                                                           |   |
| (i)  one month      |                                                                                                           | $      |
|                     |                                                                                                           |   |
| (ii)  two months    |                                                                                                           | $      |
|                     |                                                                                                           |   |
| (iii)  three months |                                                                                                           | $      |
|                     |                                                                                                           |   |
| (iv)  six months    |                                                                                                           | $      |
|                     |                                                                                                           |   |
| Total Eurodollar Loans.  |                                                                                                           | $      |

 

----

 

----

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

 

Terms defined in the Credit Agreement shallhave 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]

 

                                                   ,200

 

JPMorgan Chase Bank, N.A., as Administrative Agent under the CreditAgreement referred to below 

1111 Fannin Street, 10th FloorHouston, Texas  77002Attention:  Talitha Humes

 

Ladies and Gentlemen:

 

Reference is made to the $750,000,000 364-DayCredit Agreement, dated as of March 4, 2008, among DEERE &COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGANCHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A. and CREDIT SUISSEFIRST BOSTON, as Documentation Agents, MERRILL LYNCH BANK USA, asCo-Documentation Agent, and BANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORKBRANCH, as Syndication Agents (as the same may be amended, supplemented orotherwise modified from time to time, the “Credit Agreement”).  Terms defined in the Credit Agreement areused herein as therein defined.

 

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

 
| Aggregate Principal Amount |   | $            |   | $      |   | $      |   |
|--------------------------------------|--------|--------------|--------|--------|--------|--------|--------|
| Borrowing Date                  |   |         |   |   |   |   |   |
| Interest Period                      |   |         |   |   |   |   |   |
| Maturity Period                      |   |         |   |   |   |   |   |
| Interest Payment Dates               |   |         |   |   |   |   |   |
| Interest Rate Basis                  |   | 360 day year |   |   |   |   |   |

 

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|   |   | NOTE: | THE  AGGREGATE PRINCIPAL AMOUNTS APPEARING ABOVE MUST BE IN THE AGGREGATE AT LEAST  EQUAL TO $25,000,000 AND IN A WHOLE MULTIPLE OF $5,000,000. |
|--------|--------|-------|-------------------------------------------------------------------------------------------------------------------------------------------------|

 

----

 
|   | Very truly  yours,                |
|--------|-----------------------------------|
|   |                              |
|   | [DEERE &  COMPANY]       |
|   | [JOHN DEERE  CAPITAL CORPORATION] |
|   |                              |
|   | By:                               |   |
|   |                              | Title: |

 

----

Note:                           Pursuantto the Credit Agreement, a Bid Loan Request may be transmitted by facsimiletransmission, or by telephone, immediately confirmed by facsimiletransmission.  In any case, a Bid LoanRequest shall contain the information specified in the second paragraph of thisform.

 

B-2

----

 

EXHIBIT C

 

[FORM OF BID LOAN OFFER]

 

                                                ,200

 

JPMorgan Chase Bank, N.A., as AdministrativeAgent under the Credit Agreementreferred to below

1111 Fannin Street, 10th FloorHouston, Texas  77002Attention:  Talitha Humes

 

Ladies and Gentlemen:

 

Reference is made to the $750,000,000 364-DayCredit Agreement, dated as of March 4, 2008, among DEERE &COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGANCHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A. and CREDIT SUISSE FIRSTBOSTON, as Documentation Agents, MERRILL LYNCH BANK USA, as Co-DocumentationAgent, and BANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORK BRANCH, asSyndication Agents (as the same may be amended, supplemented or otherwisemodified from time to time, the “Credit Agreement”).  Terms defined in the Credit Agreement areused herein as therein defined.

 

In accordance with subsection 2.2 of theCredit Agreement, the undersigned Bid Loan Bank offers to make Bid Loansthereunder in the following amounts with the following maturity dates:

 

Borrowing Date:                                   ,200

 

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 percentageabove or below Eurodollar Rate.

 

C-2

----

 

EXHIBIT D

 

[FORM OF BID LOANCONFIRMATION]

 

                                                 ,200

 

JPMorgan Chase Bank, N.A., as AdministrativeAgent under the Credit Agreement referredto below

1111 Fannin Street, 10th FloorHouston, Texas  77002Attention:  Talitha Humes

 

Ladies and Gentlemen:

 

Reference is made to the $750,000,000 364-DayCredit Agreement, dated as of March 4, 2008, among DEERE &COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGANCHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A. and CREDIT SUISSEFIRST BOSTON, as Documentation Agents, MERRILL LYNCH BANK USA, asCo-Documentation Agent, and BANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORKBRANCH, as Syndication Agents (as the same may be amended, supplemented orotherwise modified from time to time, the “Credit Agreement”).  Terms defined in the Credit Agreement areused herein as therein defined.

 

In accordance with subsection 2.2 of theCredit Agreement, the undersigned accepts and confirms the offers by Bid LoanBank(s) to make Bid Loans to the undersigned on                            ,200    [Borrowing Date] under said subsection 2.2 in the(respective) amount(s) set forth on the attached list of Bid Loansoffered.

 
|   | Very truly yours,                |
|--------|----------------------------------|
|   |                             |
|   | [DEERE & COMPANY]       |
|   | [JOHN DEERE CAPITAL CORPORATION] |
|   |                             |   |
|   | By:                              |   |
|   |                             | Title: |

 

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

 

----

 

EXHIBIT E

 

[FORM OF LOAN ASSIGNMENT]

 

LOAN ASSIGNMENT

 

LOAN ASSIGNMENT, dated as of the date setforth in Item 1 of Schedule I hereto, among the Assignor Bank set forth in Item2 of Schedule I hereto (the “Assignor Bank”), the Loan Assignee setforth in Item 3 of Schedule I hereto (the “Loan Assignee”), and JPMORGANCHASE BANK, N.A., as administrative agent for the Banks under the Credit Agreementdescribed below (in such capacity, the “Administrative Agent”).

 

WITNESSETH:

 

WHEREAS, this Loan Assignment is beingexecuted and delivered in accordance with subsection 10.5(c) of the$750,000,000 364-Day Credit Agreement, dated as of March 4, 2008 amongDEERE & COMPANY (the “Company”), JOHN DEERE CAPITAL CORPORATION(the “Capital Corporation”), the Banks parties thereto, JPMORGAN CHASEBANK, N.A., as Administrative Agent, CITIBANK, N.A. and CREDIT SUISSE FIRSTBOSTON, as Documentation Agents, MERRILL LYNCH BANK USA, as Co-DocumentationAgent, and BANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORK BRANCH, asSyndication Agents (as the same may be amended, supplemented or otherwisemodified from time to time, the “Credit Agreement”; terms definedtherein 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 orportion thereof described in Item 5 of Schedule I hereto (the “Loan”),and the Assignor Bank is assigning the Loan to the Loan Assignee pursuant tothis Loan Assignment;

 

NOW, THEREFORE, the parties hereto herebyagree as follows:

 

1.             The Assignor Bank acknowledgesreceipt from the Loan Assignee of an amount equal to the purchase price, asagreed between the Assignor Bank and the Loan Assignee, of the outstandingprincipal amount of, and accrued interest on, the Loan.  The Assignor Bank hereby irrevocably sells,assigns and transfers to the Loan Assignee without recourse, representation orwarranty, and the Loan Assignee hereby irrevocably purchases, takes andacquires from the Assignor Bank, the Loan, together with all instruments,documents and collateral security pertaining thereto.

 

2.             (a)  From and after the dateset 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 ofthe Assignor Bank pursuant to the Loan shall, instead, be payable to or for theaccount of the Loan Assignee.

 

(b)           IfItem 6 of Schedule I hereto contains payment instructions for the Loan Assigneeand if the Loan Assignee delivers a copy of this Loan Assignment to the

 

----

 

AdministrativeAgent in accordance with subsection 10.5(f) of the Credit Agreement atleast 5 Business Days prior to the due date of any payment to the LoanAssignee, the Loan Assignee hereby instructs the Administrative Agent to payall such amounts payable to it pursuant to the provision of subparagraph (a) ofthis paragraph 2 in accordance with such payment instructions.  If Item 6 of Schedule I hereto does notcontain payment instructions for the Loan Assignee (or a copy hereof is notdelivered to the Administrative Agent as aforesaid), the Assignor Bank and theLoan Assignee agree that, notwithstanding the provisions of subparagraph (a) ofthis paragraph 2, the Assignor Bank is hereby appointed by the Loan Assignee asits collection agent to receive from the Administrative Agent, for and onbehalf of and for the account of the Loan Assignee, all amounts payable to orfor the account of the Loan Assignee under the Loan; the Assignor Bank willimmediately pay over to the Loan Assignee any such amounts received by it, inlike funds as received.

 

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

 

4.             By executing and delivering thisLoan Assignment, the Assignor Bank and the Loan Assignee confirm to and agreewith each other and the Administrative Agent and the Banks as follows:  (i) other than the representation andwarranty that it is the legal and beneficial owner of the interest beingassigned hereby free and clear of any adverse claim, the Assignor Bank makes norepresentation or warranty and assumes no responsibility with respect to anystatements, warranties or representations made in or in connection with theCredit Agreement or any other instrument or document furnished pursuant theretoor the execution, legality, validity, enforceability, genuineness, sufficiencyor value of the Credit Agreement or any other instrument or document furnishedpursuant thereto; (ii) the Assignor Bank makes no representation orwarranty and assumes no responsibility with respect to the financial conditionof the Company or the Capital Corporation or the performance or observance bythe Company or the Capital Corporation of any of its obligations under theCredit Agreement or any other instrument or document furnished pursuantthereto; (iii) the Loan Assignee confirms that it has received a copy ofthe Credit Agreement, together with copies of the financial statements referredto in subsection 3.1 of the Credit Agreement (unless financial statementsreferred to in subsection 5.1(a) of the Credit Agreement have becomeavailable), the financial statements delivered pursuant to subsection 5.1 ofthe Credit Agreement, if any, and such other documents and information as ithas deemed appropriate to make its own credit analysis and decision to enterinto this Loan Assignment; (iv) the Loan Assignee will, independently andwithout reliance upon the Administrative Agent, the Assignor Bank or any otherBank and based on such documents and information as it shall deem appropriateat the time, continue to make its own credit decisions in respect of the CreditAgreement; and (v) the Loan Assignee appoints and authorizes theAdministrative Agent to take such action as agent on its behalf and to exercisesuch powers under the Credit Agreement as are delegated to the AdministrativeAgent by the terms thereof, together with such powers as are reasonablyincidental thereto, all in accordance with Section 9 of the CreditAgreement.

 

5.             If the Loan Assignee is organizedunder the laws of any jurisdiction other than the United States or any Statethereof, the Loan Assignee (i) represents to the Assignor 

 

E-2

----

 

Bank (for the benefit of theAssignor Bank, the Administrative Agent and [the Company] [the CapitalCorporation]) that under applicable law and treaties no taxes will be requiredto be withheld by the Administrative Agent, [the Company] [the CapitalCorporation] or the Assignor Bank with respect to any payments to be made tothe Loan Assignee in respect of the Loan, (ii) will furnish to theAssignor Bank, the Administrative Agent and [the Company] [the CapitalCorporation], on or prior to the Transfer Effective Date, a letter in duplicatein the form of Exhibit J or Exhibit K, as appropriate, to the CreditAgreement and two duly completed copies of either U.S. Internal Revenue ServiceForm W-8BEN or U.S. Internal Revenue Service Form W-8ECI (wherein theLoan Assignee claims entitlement to complete exemption from U.S. federalwithholding tax on all interest payments under the Loan), (iii) willfurnish to the Assignor Bank, the Administrative Agent and [the Company] [theCapital Corporation], on or prior to the Transfer Effective Date U.S. InternalRevenue Service Form W-8BEN (wherein the Loan Assignee claims entitlementto complete exemption from U.S. federal backup withholding tax on all interestpayments under the Loan) and (iv) agrees (for the benefit of the AssignorBank, the Administrative Agent and [the Company] [the Capital Corporation]) toprovide the Assignor Bank, the Administrative Agent and [the Company] [theCapital Corporation] a new Form W-8BEN or Form W-8ECI or successorapplicable form or other manner of certification on or before the expiration orobsolescence of, or after the occurrence of any event requiring a change in,any previously delivered letter or form and comparable statements in accordancewith applicable U.S. laws and regulations and amendments duly executed andcompleted by the Loan Assignee, and comply from time to time with allapplicable U.S. laws and regulations with regard to such withholding taxexemption and such backup withholding tax exemption.

 

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

 

7.             This Loan Assignment shall begoverned by, and construed and interpreted in accordance with, the law of theState of New York.

 

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

 

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):                           | [Bid  Loan or Negotiated Rate Loan]                                                                                                                                                                                        |
|                                                |   | a.   Borrowing  Date and Maturity Date: |                                                                                                                                                                                                                       |   |
|                                                |   | 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: |                                              |                                                                                                                                                                                                                       |   |
|                                                     |        |                                                   |                                                                                                                                                                                                                            |  |  |  |  |  |  |  |  |  |

 

----

 

EXHIBIT F

 

[FORM OF COMMITMENT TRANSFER SUPPLEMENT]

 

COMMITMENT TRANSFER SUPPLEMENT

 

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

 

WITNESSETH:

 

WHEREAS, this Commitment Transfer Supplement isbeing executed and delivered in accordance with subsection 10.5(d) of the$750,000,000 364-Day Credit Agreement, dated as of March 4, 2008, amongthe Company, the Capital Corporation, the Transferor Bank and the other Banksparty thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK,N.A. and CREDIT SUISSE FIRST BOSTON, as Documentation Agents, MERRILL LYNCHBANK USA, as Co-Documentation Agent, and BANK OF AMERICA, N.A. and DEUTSCHEBANK 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 therein being used herein as therein defined);

 

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

 

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

 

NOW, THEREFORE, the parties hereto hereby agree asfollows:

 

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

 

2.             The Transferor Bank acknowledges receipt from eachPurchasing Bank of an amount equal to the purchase price, as agreed between theTransferor Bank and such Purchasing Bank (the “Purchase Price”), of theportion being purchased by such Purchasing Bank (such Purchasing Bank’s “PurchasedPercentage”) of the outstanding Commitment of such Transferor Bank and/orCommitted Rate Loans and other amounts owing to the Transferor Bank under theCredit Agreement (other than any Bid Loans and Negotiated Rate Loans owing tothe Transferor Bank).  The TransferorBank hereby irrevocably sells, assigns and transfers to each Purchasing Bank,without recourse, representation or warranty, and each Purchasing Bank herebyirrevocably purchases, takes and assumes from the Transferor Bank, suchPurchasing

 

----

 

Bank’s Purchased Percentage of theCommitments and the presently outstanding Committed Rate Loans and otheramounts owing to the Transferor Bank under the Credit Agreement (other than anyBid Loans and Negotiated Rate Loans owing to the Transferor Bank) together withall instruments, documents and collateral security pertaining thereto.

 

3.             The Transferor Bank has made arrangements with eachPurchasing Bank with respect to (i) the portion, if any, to be paid, andthe date or dates for payment, by the Transferor Bank to such Purchasing Bankof any fees heretofore received by the Transferor Bank pursuant to the CreditAgreement prior to the Transfer Effective Date and (ii) the portion, ifany, to be paid, and the date or dates for payment, by such Purchasing Bank tothe Transferor Bank of fees or interest received by such Purchasing Bankpursuant 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 toor for the account of the Transferor Bank pursuant to the Credit Agreement andthe Committed Rate Loans (other than any Bid Loans and Negotiated Rate Loansowing to the Transferor Bank) shall, instead, be payable to or for the accountof the Transferor Bank and the Purchasing Banks, as the case may be, inaccordance with their respective interests as reflected in this CommitmentTransfer Supplement, whether such amounts have accrued prior to the TransferEffective Date or accrue subsequent to the Transfer Effective Date.

 

(b)           TheTransferor Bank and each Purchasing Bank hereby agree and instruct theAdministrative Agent that, notwithstanding the provisions of subparagraph (a) ofthis paragraph 4, on each date hereafter on which interest or fees are payableunder the Credit Agreement and the Committed Rate Loans in respect of anyperiod (an “Accrual Period”) ending on or prior to the TransferEffective Date, any such interest or fees payable to the Purchasing Bank onaccount of such Accrual Period in respect of its interests as reflected in thisCommitment 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 theTransferor Bank shall be ratable), and the Transferor Bank and such PurchasingBank will make appropriate arrangements for the payment to such Purchasing Bankof the portion thereof owing to it to reflect the amount, if any, included inthe Purchase Price for interest and fees in respect of any Accrual Period.

 

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

 

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

 

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

 

F-2

----

 

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

 

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

 

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

 

F-3

----

 

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

 

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

 

11.           Schedule II hereto sets forth the revised Commitments andCommitment Percentages of the Transferor Bank and each Purchasing Bank as wellas administrative information with respect to each Purchasing Bank.  After giving effect to the transferscontemplated hereby, Schedule II to the Credit Agreement shall be deemed to beamended by Schedule II hereto to show the revised Commitment of the TransferorBank 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 NewYork.

 

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

 

F-4

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|   | SCHEDULE I |
|--------|------------|
|   | TO         |
|   | COMMITMENT |
|   | TRANSFER   |
|   | SUPPLEMENT |

 

COMPLETION OF INFORMATION ANDSIGNATURES FOR COMMITMENTTRANSFER 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:](1) |   |
|                                                       |       |
| ACCEPTED FOR RECORDATION  IN REGISTER:                     |       |
|                                                       |       |
| JPMORGAN CHASE BANK, N.A., as Administrative  Agent        |       |
|                                                       |       |
| By:                                                        |       |   |
|                                                       | Title:     |   |

 

----

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

 

I-2

----

 
|   | SCHEDULE II |
|--------|-------------|
|   | TO          |
|   | COMMITMENT  |
|   | TRANSFER    |
|   | SUPPLEMENT  |

 

LIST OF LENDING OFFICES, ADDRESSESFOR NOTICES AND COMMITMENT AMOUNTS

 
| [Name  of Transferor Bank] |   | Revised  Commitment Amount:     |                        | $      |                                                    |
|----------------------------|--------|---------------------------------|-----------------------------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                       |   |                            |                        |   |
|                       |   | Revised  Commitment Percentage: |                        |   |                                          |
|                       |   |                            |                        |   |
| [Name  of Purchasing Bank] |   | New  Commitment Amount:         |                        | $      |                                               |
|                       |   |                            |                        |   |                                                                                                                                                                                                                                             |
| Address  for Notices:      |   |                            |                        |   |
|                       |   | New  Commitment Percentage:     |                        |   |                                                    |
|                       |   |                            |                        |   |                                                                                                                                                                                                                                             |
|                       |   |                            |                        |   |                                                                                                                                                                                                                                             |
|                       |   |                            |                        |   |                                                                                                                                                                                                                                             |
|                       |   |                            |                        |   |                                                                                                                                                                                                                                             |
| Attn:                      |   |                            |                        |   |                                                                                                                                                                                                                                             |
| Telephone:                 |   |                            |                        |   |                                                                                                                                                                                                                                             |
| Facsimile:                 |   |                            |                        |   |                                                                                                                                                                                                                                             |
| [Name  of Purchasing Bank] |   | New  Commitment Amount:         |                        | $      |                                          |
|                       |   |                            |                        |   |
| Address  for Notices:      |   |                            |                        |   |
|                       |   |                            | New  Commitment Percentage: |   |                                                                                                                                                                                                                                             |                                          |
|                       |   |                            |                        |   |                                                                                                                                                                                                                                             |
|                       |   |                            |                        |   |                                                                                                                                                                                                                                             |
| Attn:                      |   |                            |                        |   |                                                                                                                                                                                                                                             |   |
| Telephone:                 |   |                            |                        |   |                                                                                                                                                                                                                                             |
| Facsimile:                 |   |                            |                        |   |                                                                                                                                                                                                                                             |
|                            |        |                                 |                             |        |                                                                                                                                                                                                                                                  |  |  |  |  |  |  |  |  |  |  |

 

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EXHIBIT G

 

[FORM OF OPINION OF GENERAL COUNSELTO THE COMPANY]

 

[ClosingDate]

 

To each of the Banks parties tothe Credit Agreement referred tobelow and to JPMorgan ChaseBank, N.A. as Administrative Agent

 

Deere & Company andJohn Deere Capital Corporation

 

Ladies and Gentlemen:

 

This opinion is furnished to you pursuant tosubsection 4.1(c) of the $750,000,000 364-Day Credit Agreement dated as ofMarch 4, 2008 (the “Credit Agreement”) among DEERE & COMPANY (the“Company”), JOHN DEERE CAPITAL CORPORATION (the “Capital Corporation”, theCompany and the Capital Corporation being referred to herein individually as a “Borrower”and collectively as the “Borrowers”), the Banks parties thereto, JPMORGAN CHASEBANK, N.A., as Administrative Agent, CITIBANK, N.A. and CREDIT SUISSE FIRSTBOSTON, as Documentation Agents, MERRILL LYNCH BANK USA, as Co-DocumentationAgent, and BANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORK BRANCH, asSyndication Agents.  Terms defined in theCredit Agreement are used herein as therein defined.

 

I am General Counsel of the Company and have actedas counsel for the Capital Corporation in this matter.  I am familiar with the corporate history andorganization of each Borrower and of its Subsidiaries and the proceedingsrelating to the authorization, execution and delivery by each Borrower of theCredit Agreement.  In that connection I haveexamined or caused to have examined:

 

1.                                       The CreditAgreement;

 

2.                                       The documentsfurnished by each of the Borrowers pursuant to Section 4 of the CreditAgreement;

 

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

 

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

 

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

 

----

 

In addition, I have reviewed or caused to havereviewed such of the corporate proceedings of the Borrowers, and have examinedor caused to have examined such documents, corporate records, and otherinstruments relating to the organization of the Borrowers and their respectiveSubsidiaries and such other agreements and instruments to which the Borrowersand their respective Subsidiaries are parties, as I consider necessary as abasis for the opinions hereinafter expressed. I have assumed the due execution and delivery, pursuant to dueauthorization, of the Credit Agreement by the Banks, the Administrative Agent,the Syndication Agents, the Documentation Agents and the Co-DocumentationAgent, and the authenticity of all documents submitted to me as originals andthe conformity to the original documents of all documents submitted to me ascertified, conformed or photostatic copies.

 

I am qualified to practice law in the State ofIllinois and the State of Michigan and do not purport to be an expert on, anddo not express any opinion herein concerning, any laws other than the laws ofthe State of Illinois and the State of Michigan, the General Corporation Law ofthe State of Delaware and the Federal laws of the United States.

 

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

 

1.                                       Each Borroweris a corporation duly organized, validly existing and in good standing underthe laws of the State of Delaware and has the corporate power and authority tocarry 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 withinsuch Borrower’s corporate powers, have been duly authorized by all necessarycorporate action, and do not (i) contravene, or constitute a default underthe Charter or the Bylaws of such Borrower, any judgment, law, rule orregulation applicable to such Borrower, or any Contractual Obligation by whichsuch Borrower is bound or (ii) result in the creation of any lien, chargeor encumbrance upon any of its property or assets.  The Credit Agreement has been duly executedand delivered on behalf of each Borrower.

 

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

 

4.                                       There is nopending or, to the best of my knowledge, threatened action or proceedingagainst either Borrower or any of its Subsidiaries before any court,governmental agency or arbitrator which is likely to have a materially adverseeffect upon the financial condition or operations of such Borrower and itsSubsidiaries taken as a whole.

 

G-2

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|   | Very truly yours, |
|--------|-------------------|
|   |              |
|   |              |
|   | James R. Jenkins  |

 

G-3

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** **

EXHIBITH

 

[FORM OF OPINION OF SPECIAL NEW YORKCOUNSELTO THE BORROWERS]

 

[ClosingDate]

 

To each of the Banks parties to theCredit Agreement referred to below andto JPMorgan Chase Bank, N.A., asAdministrative Agent

 

Deere & CompanyJohn Deere Capital Corporation

 

Ladies and Gentlemen:

 

We have acted asNew York counsel to DEERE & COMPANY, a Delaware corporation (the “Company”)and JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “CapitalCorporation”, the Company and the Capital Corporation being referred to hereinas the “Borrowers”), in connection with the $750,000,000 364-Day CreditAgreement, dated as of March 4, 2008 (the “Credit Agreement”), among theBanks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent,CITIBANK, N.A. and CREDIT SUISSE FIRST BOSTON, as Documentation Agents, MERRILLLYNCH BANK USA, as Co-Documentation Agent, and BANK OF AMERICA, N.A. andDEUTSCHE BANK AG NEW YORK BRANCH, as Syndication Agents.  Unless otherwise defined herein, termsdefined in the Credit Agreement are used herein as therein defined.

 

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

 

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

 

(A)          The genuineness of all signatures.

 

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

 

(C)           The conformity to authentic originals ofany 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, enforceableagainst each such party in accordance with its terms.

 

(E)           That:

 

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(1)           EachBorrower is an entity duly organized and validly existing under the laws of thejurisdiction of its organization.

 

(2)           EachBorrower has full power to execute, deliver and perform, and has duly executedand delivered, the Credit Agreement.

 

(3)           Theexecution, delivery and performance by each Borrower of the Credit Agreementhave been duly authorized by all necessary action (corporate or otherwise) anddo not:

 

(a)           contraveneits  certificate or articles ofincorporation, by-laws or other organizational documents;

 

(b)           exceptwith respect to Generally Applicable Law, violate any law, rule orregulation applicable to it; or

 

(c)           resultin any conflict with or breach of any agreement or document binding on it ofwhich any addressee hereof has knowledge, has received notice or has reason toknow.

 

(4)           Exceptwith respect to Generally Applicable Law, no authorization, approval or otheraction by, and no notice to or filing with, any governmental authority orregulatory body or (to the extent the same is required under any agreement ordocument binding on it of which an addressee hereof has knowledge, has receivednotice or has reason to know) any other third party is required for the dueexecution, delivery or performance by either Borrower of the Credit Agreementor, 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 andeffect.

 

We have not independently established the validity of the foregoingassumptions.

 

“GenerallyApplicable Law” means the federal law of the United States of America, andthe law of the State of New York (including the rules or regulationspromulgated thereunder or pursuant thereto) that a New York lawyer exercisingcustomary professional diligence would reasonably be expected to recognize asbeing applicable to either Borrower or the Credit Agreement.  Without limiting the generality of theforegoing definition of Generally Applicable Law, the term “GenerallyApplicable Law” does not include any law, rule or regulation that isapplicable to a Borrower or the Credit Agreement solely because such law, rule orregulation is part of a regulatory regime applicable to the specific assets orbusiness of any party to the Credit Agreement or any of its affiliates due tothe specific assets or business of such party or such affiliate.

 

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

 

H-2

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Our opinionexpressed above is subject to the following qualifications:

 

##### (a)   Our opinion is subject to the effect of anyapplicable bankruptcy, insolvency, reorganization, moratorium or similar lawsaffecting creditors’ rights generally (including without limitation all lawsrelating to fraudulent transfers).

#####  

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

#####  

##### (c)   We express no opinion withrespect to the enforceability of indemnification provisions, or of release orexculpation provisions, contained in the Credit Agreement to the extent thatenforcement thereof is contrary to public policy regarding the indemnificationagainst or release or exculpation of criminal violations, intentional harm orviolations of securities laws.

#####  

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

#####  

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

#####  

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

#####  

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

#####  

A copy of thisopinion letter may be delivered by any of you to any person that becomes a Bankin accordance with the provisions of the Credit Agreement.  Any such person may rely on the opinionsexpressed above as if this opinion letter were addressed and delivered to suchperson on the date hereof.

 

This opinion letteris rendered to you in connection with the transactions contemplated by theCredit Agreement.  This opinion lettermay not be relied upon by you or any person entitled to rely on this opinionpursuant to the preceding paragraph for any other purpose without our priorwritten consent.

 

This opinionletter speaks only as of the date hereof. We expressly disclaim any responsibility to advise you of anydevelopment 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 

 

H-3

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

 

 
|   | Very truly yours,                |
|--------|----------------------------------|
|   |                             |
|   |                             |
|   | SHEARMAN & STERLING LLP |

 

H-4

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** **

EXHIBITI

 

[FORM OF EXTENSION REQUEST]

 

                                        ,20

 

JPMorgan Chase Bank, N.A.,    as Administrative Agent 1111 Fannin, 10th FloorHouston, Texas 77002Attention:  Talitha Humes

 

Ladies and Gentlemen:

 

Reference is made to the $750,000,000 364-Day Credit Agreement, datedas of March 4, 2008, among DEERE & COMPANY, JOHN DEERE CAPITALCORPORATION, the Banks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent,CITIBANK, N.A. and CREDIT SUISSE FIRST BOSTON, as Documentation Agents, MERRILLLYNCH BANK USA, as Co-Documentation Agent, and BANK OF AMERICA, N.A. andDEUTSCHE BANK AG NEW YORK BRANCH, as Syndication Agents (as the samemay be amended, supplemented or otherwise modified from time to time, the “CreditAgreement”).  Terms defined in theCredit Agreement are used herein as therein defined.

 

This is an Extension Request pursuant to subsection 2.16 of the CreditAgreement requesting an extension of the Termination Date to [INSERT REQUESTEDTERMINATION DATE].  Please transmit acopy of this Extension Request to each of the Banks.

 
|   | Very truly yours,               |
|--------|---------------------------------|
|   |                            |   |
|   | DEERE & COMPANY        |
|   |                            |   |
|   |                            |   |
|   | By:                             |   |
|   |                            | Title: |
|   |                            |   |
|   |                            |   |
|   | JOHN DEERE CAPITAL  CORPORATION |
|   |                            |
|   |                            |   |
|   | By:                             |   |
|   |                            | Title: |
|        |                                 |  |  |  |

 

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** **

EXHIBITJ

 

[FORM OF W-8BEN TAX LETTER]

 

 [To besent in DUPLICATE and accompaniedby TWO executed copies of Form W-8BEN ofthe Internal Revenue Service]

 

[Bank’s Letterhead]

 

                    ,200   

 

Deere & CompanyOne John Deere PlaceMoline, Illinois  61265Attention:  Treasurer

 

John Deere Capital CorporationFirst National Bank Building1 East First StreetReno, Nevada  89501Attention:  Manager

 

Re:                               $750,000,000 364-Day CreditAgreementdated as of March 4, 2008 with Deere &Company and John Deere Capital Corporation

 

Ladies and Gentlemen:

 

In connection with the $750,000,000 364-Day CreditAgreement, dated as of March 4, 2008, among DEERE & COMPANY, JOHNDEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGAN CHASE BANK,N.A., as Administrative Agent, CITIBANK, N.A. and CREDIT SUISSE FIRST BOSTON,as Documentation Agents, MERRILL LYNCH BANK USA, as Co-Documentation Agent, andBANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORK BRANCH, as SyndicationAgents, we hereby represent and warrant that [name of Bank, address] is a [nameof Country] corporation and is currently exempt from any U.S. federalwithholding tax on payments to it from U.S. sources by virtue of compliancewith 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 UnitedStates] [does have a permanent establishment or fixed base in the United Statesbut the above Agreement is not effectively connected with such permanentestablishment 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-8BENof the U.S. Internal Revenue Service.

 
|   | Yours faithfully, |
|--------|-------------------|
|   |              |   |
|   | [NAME OF BANK]    |
|   |              |   |
|   |              |   |
|   | By:               |   |
|   |              | Title: |

 

cc: JPMorgan Chase Bank, N.A., asAdministrative Agent

 

J-2

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** **

EXHIBITK

 

[FORM OF W-8ECI TAX LETTER]

 

[To be sent in DUPLICATE and accompaniedby TWO executed copies of Form W-8ECI ofthe Internal Revenue Service]

 

[Bank’s Letterhead]

 

                                                  ,200  

 

Deere & CompanyOne John Deere PlaceMoline, Illinois  61265Attention:  Treasurer

 

John Deere Capital CorporationFirst National Bank Building1 East First StreetReno, Nevada  89501Attention:  Manager

 

Re:                               $750,000,000 364-Day CreditAgreementdated as of March 4, 2008 with Deere &Company and John Deere Capital Corporation

 

Ladies and Gentlemen:

 

In connection with the above $750,000,000 364-DayCredit Agreement, dated as of March 4, 2008, DEERE & COMPANY,JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGAN CHASE BANK,N.A., as Administrative Agent, CITIBANK, N.A. and CREDIT SUISSE FIRST BOSTON,as Documentation Agents, MERRILL LYNCH BANK USA, as Co-Documentation Agent, andBANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORK BRANCH, as SyndicationAgents, 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 toit under the Agreement by virtue of Section 1441(c)(1) of theInternal 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-8ECIof the U.S. Internal Revenue Service.

 
|   | Yours faithfully, |
|--------|-------------------|
|   |              |   |
|   |              |   |
|   | [NAME OF BANK]    |
|   |              |   |
|   |              |   |
|   | By:               |   |
|   |              | Title: |

 

cc:           JPMorganChase Bank, N.A., as Administrative Agent

 

K-2

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EXHIBIT L

 

[FORM OF AGREEMENT]

 

THIS AGREEMENT, dated as of          , 200   (“Agreement”),among Deere & Company (the “Company”), John Deere CapitalCorporation (the “Capital Corporation”),                        (“New Bank”) and JPMorgan Chase Bank, N.A., as Administrative Agent forthe Existing Banks referred to below.

 

WITNESSETH :

 

WHEREAS, the Company, the CapitalCorporation, the several financial institutions parties thereto (the “ExistingBanks”), JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A.and CREDIT SUISSE FIRST BOSTON, as Documentation Agents, MERRILL LYNCH BANKUSA, as Co-Documentation Agent, and BANK OF AMERICA, N.A. and DEUTSCHE BANK AGNEW YORK BRANCH, as Syndication Agents, are parties to the $750,000,000 364-DayCredit Agreement, dated as of March 4, 2008 (as the same may have been ormay hereafter be amended, supplemented or otherwise modified, the “CreditAgreement”; terms defined therein being used herein as therein defined);

 

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

 

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

 

 

 
|             |   | **Last day of**      |   |
|------------------|--------|----------------------|--------|
|             |   | **Interest Period**  |   |
| Principal Amount |   |                 |   |   |
|             |   |                 |   |   |
| I                |   | Unused Portion       |   | N/A |
|             |   |                 |   |   |
| II               |   | Committed Rate Loans |   |   |
|             |   |                 |   |   |
| Eurodollar Loans |   |                 |   |   |
|                  |        |                      |        |  |  |  |  |  |  |  |

 

1

2

3

 

----

 
| ABR Loans |   | N/A |
|-----------|--------|-----|

 

III                                    BidLoans

 

1

2

3

 

IV                                    NegotiatedRate Loans

 

1

2

3

 

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

 

WHEREAS, [the Borrowers desire the New Bankto become, and the New Bank is agreeable, to becoming, a “Bank” for purposes ofthe Credit Agreement] [the New Bank is an Existing Bank and the Borrowersdesire 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 thepremises and mutual covenants contained herein, the parties hereto agree asfollows:

 

1.                                       Benefits ofAgreement.  The Borrowers, theAdministrative Agent and the New Bank hereby [agree that on and as of the datehereof the New Bank shall be] [confirm that the New Bank is] a “Bank” for allpurposes and shall [continue to] be bound by and entitled to the benefits ofthe 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 hereinprovided, have no obligations in respect of any Loans outstanding on the datehereof and made by any [Existing Bank.] [Cancelled Bank.]*

 

2.                                       Commitment ofNew Bank.  The Borrowers, theAdministrative Agent and the New Bank hereby agree that on and as of the datesset forth below the New Bank shall replace, as specified herein,   %(such percentage being referred to as the New Bank’s “Percentage”) of eachutilization of the Cancelled Commitments [set forth in the third recitalhereof] [set forth under the caption “Committed Rate Loans”] and that theaggregate Commitment of the New Bank shall on and as of the date hereof be$          **.  In connection 

 

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*                                         As appropriatefor New or Existing Banks.

 

**                                  Insert amount equalto sum of New Bank’s existing Commitment, if any, plus New Bank’s Percentage ofCancelled Commitments.

 

L-2

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therewith, the Borrowers, the AdministrativeAgent and the New Bank hereby agree as follows***:

 

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

 

(ii)                                  the unused andavailable portion of such New Bank’s Commitment shall be deemed utilized by itsPercentage of the Committed Rate Loans made by the Cancelled Banks and listed inthe third recital hereof.  In furtherancethereof, 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 foreach outstanding Committed Rate Loan in the third recital hereof (and thepayment in full to the Cancelled Banks of the principal thereof and accruedinterest thereon) and (y) the prepayment of the principal of such Loanstogether with accrued interest thereon, automatically and without any furtheraction by any party increase by an amount equal to the New Bank’s Percentage ofsuch Loan; and

 

(iii)                               [(A)]  [concurrently with the execution hereof theNew Bank shall disburse to each Borrower in immediately available funds suchamount as shall be necessary so that the ratio which each Bank’s outstandingABR Loans bears to all of the outstanding ABR Loans equals the ratio which eachBank’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 accordancewith the immediately foregoing parenthetical);]

 

[(B)] [on the last day of each InterestPeriod for each outstanding Eurodollar Loan, automatically and without anyfurther action by either Borrower, the New Bank shall disburse to each Borrowerin immediately available funds such amounts as shall be necessary so that theratio which each Bank’s outstanding Eurodollar Loans, bears to all of theoutstanding Eurodollar Loans, equals the ratio which each Bank’s Commitment(determined, for the New Bank, in accordance with clause (i) hereof) bearsto all of the Commitments (determined, for the New Bank, in accordance with theimmediately foregoing parenthetical);]

 

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

 

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

 

3.                                       Representationand Warranty of Borrowers.  TheBorrowers hereby represent and warrant that after giving effect to theprovisions of paragraph 2 hereof the 

 

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***                           Thefollowing clauses (ii)–(iii) may be altered to reflect the agreementsamong the Cancelled Bank, the New Bank and the Borrowers provided suchagreements do not adversely affect any Existing Bank or the AdministrativeAgent.

 

*                                         To becompleted upon agreement of Borrowers and New Bank.

 

L-3

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aggregate principal amount of the Commitmentsof all Banks (including, without limitation, the Commitment of the New Bank butexcluding the cancelled or expired portion of the Commitments of the CancelledBanks) under the Credit Agreement do not exceed the aggregate principal amountof the Commitments in effect immediately prior to the cancellation referred toin the third recital hereof.

 

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

 

[5.                                   Taxes.  The New Bank (i) represents to theAdministrative Agent and the Borrowers that [it is incorporated under the lawsof the United States or a state thereof][under applicable law and treaties notaxes will be required to be withheld by the Administrative Agent or theBorrowers with respect to any payments to be made to such New Bank in respectof the Loans], (ii) represents that it has furnished to the AdministrativeAgent and the Borrowers (A) [a statement that it is incorporated under thelaws of the United States or a state thereof][a letter in duplicate in the formof Exhibit [J][K] to the Credit Agreement and two duly completed copies ofUnited States Internal Revenue Service Form [W-8BEN][W-8ECI][successorapplicable form], certifying that such New Bank is entitled to receive paymentsunder the Credit Agreement without deduction or withholding of any UnitedStates federal income taxes], and (B) [an Internal Revenue Service Form [W-8BEN][successor applicable form] to establish an exemption from United States backupwithholding tax, and (iii) agrees to provide the Administrative Agent andthe Borrowers a new Form [W-8BEN] and Form [W-8ECI], or successorapplicable form or other manner of certification, on or before the date thatany such letter or form expires or becomes obsolete or after the occurrence ofany event requiring a change in the most recent letter and form previouslydelivered by it, certifying in the case of a Form [W-8BEN][W-8ECI] that itis entitled to receive payments under the Credit Agreement without deduction orwithholding 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 bythe parties hereto in separate counterparts and all of the counterparts takentogether shall constitute one and the same instrument and shall be effectiveonly upon receipt by the Administrative Agent of all of the counterparts.

 

(b)                                 ThisAgreement shall be governed by, and construed and interpreted in accordancewith, the law of the State of New York.

 

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*                                         Usefor non-Existing Banks.

 

L-4

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IN WITNESS WHEREOF, the partieshave caused this Agreement to be executed and delivered as of the day and yearfirst 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

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EXHIBIT M

 

[FORM OF BID LOAN OR NEGOTIATED RATELOAN NOTE]

 

PROMISSORY NOTE

 
| $      |   | New York, New York |
|--------|--------|--------------------|
|   |   | , 200    |

 

FOR VALUERECEIVED, the undersigned, [DEERE & COMPANY] [JOHN DEERE CAPITALCORPORATION], a Delaware corporation (the “Borrower”), hereby promisesto pay on [insert maturity date or dates] to the order of                                (the “Bank”) at the office of [JPMorgan Chase Bank, N.A. located at 270Park Avenue, New York, New York 10017 — for Bid Loan Note] [Name and address ofBank — for Negotiated Rate Loan Note], in lawful money of the United States ofAmerica and in immediately available funds, the principal sum of                            DOLLARS($                        ).  The undersigned further agrees to pay interestin like money at such office on the unpaid principal amount hereof from time totime 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) untilthe due date hereof (whether at the stated maturity, by acceleration, orotherwise) and thereafter at the rates determined or agreed in accordance withsubsection 2.2(e) of the $750,000,000 364-Day Credit Agreement, dated asof March 4, 2008 (the “Credit Agreement”), among the Borrower,[Deere & Company] [John Deere Capital Corporation], the Bank, theother financial institutions parties thereto, JPMORGAN CHASE BANK, N.A., asAdministrative Agent, CITIBANK, N.A. and CREDIT SUISSE FIRST BOSTON, asDocumentation Agents, MERRILL LYNCH BANK USA, as Co-Documentation Agent, andBANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORK BRANCH, as SyndicationAgents.  Interest shall be payable on                              .  This Note may be prepaid pursuant to theprovisions of subsection 2.6 of the Credit Agreement.

 

This Note is one of the [Bid] [NegotiatedRate Loan] Notes referred to in, is subject to and is entitled to the benefitsof, the Credit Agreement, which Credit Agreement, among other things, containsprovisions for acceleration of the maturity hereof upon the occurrence of anyone or more of the Events of Default specified in the Credit Agreement.

 

Terms defined in the Credit Agreement areused herein with their defined meanings unless otherwise defined herein.  This Note shall be governed by, and construedand interpreted in accordance with, the law of the State of New York.

 
|   | [DEERE & COMPANY]       |
|--------|----------------------------------|
|   | [JOHN DEERE CAPITAL CORPORATION] |
|   |                             |   |
|   |                             |   |
|   | By:                              |   |
|   |                             | Title: |

 

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EXHIBIT N

 

FORM OFNEW BANK SUPPLEMENT

 

SUPPLEMENT, dated                   , to the $750,000,000 364-Day Credit Agreement (as ineffect on the date hereof, the “Credit Agreement”) dated as of March 4,2008, among DEERE & COMPANY (the “Company”), JOHN DEERE CAPITALCORPORATION, the banks and other financial institutions from time to time partythereto (each a “Bank,” and together, the “Banks”), JPMORGAN CHASE BANK, N.A.,as Administrative Agent, CITIBANK, N.A. and CREDIT SUISSE FIRST BOSTON, asDocumentation Agents, MERRILL LYNCH BANK USA, as Co-Documentation Agent, andBANK OF AMERICA, N.A. and DEUTSCHE BANK AG NEW YORK BRANCH, as SyndicationAgents.  Unless the context otherwiserequires, all capitalized terms used herein without definition shall have themeanings ascribed to them in the Credit Agreement.

 

WITNESSETH:

 

WHEREAS, the Credit Agreement provides insubsection 2.20 thereof that any bank or financial institution, although notoriginally a party thereto, may become a party to the Credit Agreement inaccordance with the terms thereof by executing and delivering to the Borrowersand the Administrative Agent a supplement to the Credit Agreement insubstantially the form of this Supplement; and

 

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

 

NOW, THEREFORE, the undersigned hereby agreesas follows:

 

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

 

2.                                       The undersigned (a) representsand warrants that it is legally authorized to enter into this Supplement; (b) confirmsthat it has received a copy of the Credit Agreement, together with copies ofthe financial statements delivered pursuant to Section 5.1 thereof andsuch other documents and information as it has deemed appropriate to make itsown credit analysis and decision to enter into this Supplement; (c) agreesthat it has made and will, independently and without reliance upon any Agent orany other Bank and based on such documents and information as it shall deemappropriate at the time, continue to make its own credit decisions in taking ornot taking action under the Credit Agreement or any instrument or documentfurnished pursuant hereto or thereto; (d) appoints and authorizes theAdministrative Agent to take such action as administrative agent on its behalfand to exercise such powers and discretion under the Credit Agreement or anyinstrument or document furnished pursuant hereto or thereto as are delegated tothe Administrative Agent by the terms thereof, together with such powers as areincidental thereto; and (e) agrees that it will `be bound by theprovisions of the Credit Agreement and will perform in accordance with itsterms all the obligations which by the

 

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

 

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

 

 
|   |       |
|--------|------------|
|   |       |
|   | Attention: |   |
|   |       |
|   |       |
|   |       |
|   |       |
|   |       |   |
|   | Fax:       |   |
|        |            |  |  |

 

IN WITNESS WHEREOF, the undersigned hascaused this Supplement to be executed and delivered by a duly authorizedofficer on the date first above written.

 
|   | [NAME OF NEW BANK] |
|--------|--------------------|
|   |               |   |
|   |               |   |
|   | By:                |   |
|   |               | Title: |

 

Accepted this           day of

 

                            ,200  

 
| DEERE &  COMPANY |   |
|---------------------------|--------|
|                      |   |
|                      |   |
| By:                       |   |   |
|                      | Title: |
|                           |        |  |  |

 

 
| JOHN DEERE  CAPITAL CORPORATION |   |
|---------------------------------|--------|
|                            |   |
|                            |   |
| By:                             |   |   |
|                            | Title: |
|                                 |        |  |  |

 

N-2

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Accepted this           day of

                            ,200  

 
| JPMORGAN CHASE  BANK, N.A., |   |
|-----------------------------|--------|
| as Administrative Agent     |   |
|                        |   |
|                        |   |
| By:                         |   |   |
|                        | Title: |
|                             |        |  |  |

 

N-3

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EXHIBIT O

 

FORM OFCOMMITMENT INCREASE SUPPLEMENT

 

SUPPLEMENT, dated              200  , to the $750,000,000 364-Day Credit Agreement (as in effect onthe date hereof, the “Credit Agreement”) dated as of March 4, 2008, amongDEERE & COMPANY (the “Company”), JOHN DEERE CAPITAL CORPORATION, theBanks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent,CITIBANK, N.A. and CREDIT SUISSE FIRST BOSTON, as Documentation Agents, MERRILLLYNCH BANK USA, as Co-Documentation Agent, and BANK OF AMERICA, N.A. andDEUTSCHE BANK AG NEW YORK BRANCH, as Syndication Agents.  Unless the context otherwise requires, allcapitalized terms used herein without definition shall have the meaningsascribed to them in the Credit Agreement.

 

WITNESSETH:

 

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

 

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

 

NOW THEREFORE, the undersigned hereby agreesas follows:

 

1.                                       The undersignedagrees, subject to the terms and conditions of the Credit Agreement, that onthe date this Supplement is accepted by the Borrowers and the AdministrativeAgent it shall have its Commitment increased by$                            ,thereby making the amount of its Commitment$                            .

 

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IN WITNESS WHEREOF, the undersigned hascaused this Supplement to be executed and delivered by a duly authorizedofficer on the date first above written.

 
|   | [NAME OF BANK] |
|--------|----------------|
|   |           |   |
|   |           |   |
|   | By:            |   |
|   |           | Title: |
|        |                |  |  |

 

Accepted this           day of

                            ,200  

 
| DEERE &  COMPANY |   |
|---------------------------|--------|
|                      |   |
|                      |   |
| By:                       |   |   |
|                      | Title: |
|                           |        |  |  |

 
| JOHN DEERE  CAPITAL CORPORATION |
|---------------------------------|
|                            |
|                            |
| By:                             |   |   |
|                            | Title: |

 

Accepted this           day of

                            ,200  

 
| JPMORGAN  CHASE BANK, N.A., |
|-----------------------------|
| as Administrative Agent     |
|                        |
|                        |
| By:                         |   |   |
|                        | Title: |

 

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