**Exhibit 4.1**

**EXECUTION VERSION**

 

 

 

DEERE & COMPANY

 

JOHN DEERE CAPITAL CORPORATION

 

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$750,000,000

 

364-DAY

CREDIT AGREEMENT

 

Dated as of March 3, 2009

 

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JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

 

CITIBANK, N.A.,

as a Documentation Agent

 

CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as a Documentation Agent

 

DEUTSCHE BANK AG NEW YORK BRANCH,

as a Documentation Agent

 

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

**as Syndication Agent**

** **

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** **

J.P. MORGAN SECURITIES INC. and

**BANC OF AMERICA SECURITIES LLC,**

as Joint Lead Arrangers and Bookrunners

 

 

 

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** **

**TABLEOF CONTENTS**

** **
| ** **     | ** ** | ** **                                                                                | ** ** | **Page**   |
|----------------|------------|-------------------------------------------------------------------------------------------|------------|------------|
| ** **     | ** ** | ** **                                                                                | ** ** | ** ** |
| SECTION 1 |       | DEFINITIONS                                                                               |       | 1          |
| 1.1.           |       | Defined Terms                                                                             |       | 1          |
| 1.2.           |       | Other Definitional  Provisions                                                            |       | 15         |
|           |       |                                                                                      |       |       |
| SECTION 2 |       | THE COMMITTED RATE LOANS;  THE BID LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS     |       | 15         |
| 2.1.           |       | The Committed Rate Loans                                                                  |       | 15         |
| 2.2.           |       | The Bid Loans; the  Negotiated Rate Loans                                                 |       | 16         |
| 2.3.           |       | Loan Accounts                                                                             |       | 20         |
| 2.4.           |       | Fees                                                                                      |       | 20         |
| 2.5.           |       | Termination or Reduction  of Commitments; Cancellation of Capital Corporation as Borrower |       | 20         |
| 2.6.           |       | Optional Prepayments                                                                      |       | 21         |
| 2.7.           |       | Minimum Amount of Certain  Loans                                                          |       | 22         |
| 2.8.           |       | Committed Rate Loan  Interest Rate and Payment Dates                                      |       | 22         |
| 2.9.           |       | Conversion and  Continuation Options                                                      |       | 22         |
| 2.10.          |       | Computation of Interest  and Fees                                                         |       | 23         |
| 2.11.          |       | Inability to Determine  Interest Rate                                                     |       | 23         |
| 2.12.          |       | Pro Rata Treatment and  Payments                                                          |       | 24         |
| 2.13.          |       | Requirements of Law                                                                       |       | 26         |
| 2.14.          |       | Indemnity                                                                                 |       | 29         |
| 2.15.          |       | Non-Receipt of Funds by  the Administrative Agent                                         |       | 30         |
| 2.16.          |       | Extension of Termination  Date                                                            |       | 30         |
| 2.17.          |       | Foreign Taxes                                                                             |       | 31         |
| 2.18.          |       | Confirmations                                                                             |       | 33         |
| 2.19.          |       | Replacement of Cancelled  Banks                                                           |       | 33         |
| 2.20.          |       | Commitment Increases                                                                      |       | 33         |
| 2.21.          |       | Pricing Determinations                                                                    |       | 35         |
| 2.22.          |       | Markit Data                                                                               |       | 36         |
| 2.23.          |       | Defaulting Banks                                                                          |       | 38         |
|           |       |                                                                                      |       |       |
| SECTION 3 |       | REPRESENTATIONS AND  WARRANTIES                                                           |       | 39         |
| 3.1.           |       | Financial Condition                                                                       |       | 39         |
| 3.2.           |       | Corporate Existence                                                                       |       | 39         |
| 3.3.           |       | Corporate Power;  Authorization; Enforceable Obligations                                  |       | 39         |
| 3.4.           |       | No Legal Bar                                                                              |       | 40         |
| 3.5.           |       | No Material Litigation                                                                    |       | 40         |
| 3.6.           |       | Taxes                                                                                     |       | 40         |
| 3.7.           |       | Margin Regulations                                                                        |       | 40         |
| 3.8.           |       | Use of Proceeds                                                                           |       | 40         |
|           |       |                                                                                      |       |       |
| SECTION 4 |       | CONDITIONS PRECEDENT                                                                      |       | 41         |

 

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**TABLEOF CONTENTS(continued)**

** **
|            |   |                                                        |   | **Page**   |
|-----------------|--------|-------------------------------------------------------------|--------|------------|
|            |   |                                                        |   | ** ** |
| 4.1.            |   | Conditions to Initial Loan                                  |   | 41         |
| 4.2.            |   | Conditions to All Loans                                     |   | 42         |
|            |   |                                                        |   |       |
| SECTION 5  |   | AFFIRMATIVE COVENANTS                                       |   | 42         |
| 5.1.            |   | Financial Statements                                        |   | 42         |
| 5.2.            |   | Certificates; Other  Information                            |   | 43         |
| 5.3.            |   | Company Indenture  Documents                                |   | 43         |
| 5.4.            |   | Capital Corporation  Indenture Documents                    |   | 43         |
| 5.5.            |   | Notice of Default                                           |   | 44         |
| 5.6.            |   | Ownership of Capital  Corporation Stock                     |   | 44         |
| 5.7.            |   | Employee Benefit Plans                                      |   | 44         |
|            |   |                                                        |   |       |
| SECTION 6  |   | NEGATIVE COVENANTS OF THE  COMPANY                          |   | 44         |
| 6.1.            |   | Company  May Consolidate, etc., Only on Certain Terms  |   | 44         |
| 6.2.            |   | Limitation on Liens                                         |   | 45         |
| 6.3.            |   | Limitations on Sale and  Lease-back Transactions            |   | 48         |
| 6.4.            |   | Equipment Operations Debt                                   |   | 48         |
|            |   |                                                        |   |       |
| SECTION 7  |   | NEGATIVE COVENANTS OF THE  CAPITAL CORPORATION              |   | 49         |
| 7.1.            |   | Fixed Charges Ratio                                         |   | 49         |
| 7.2.            |   | Consolidated Senior Debt  to Consolidated Capital Base |   | 49         |
| 7.3.            |   | Limitation  on Liens                                        |   | 49         |
| 7.4.            |   | Consolidation;  Merger                                      |   | 50         |
|            |   |                                                        |   |       |
| SECTION 8  |   | EVENTS OF DEFAULT                                           |   | 51         |
|            |   |                                                        |   |       |
| SECTION 9  |   | THE AGENTS                                                  |   | 53         |
| 9.1.            |   | Appointment                                                 |   | 53         |
| 9.2.            |   | Delegation of Duties                                        |   | 53         |
| 9.3.            |   | Exculpatory Provisions                                      |   | 53         |
| 9.4.            |   | Reliance by Agents                                          |   | 54         |
| 9.5.            |   | Notice of Default                                           |   | 54         |
| 9.6.            |   | Non-Reliance on Agents and  Other Banks                     |   | 54         |
| 9.7.            |   | Indemnification                                             |   | 55         |
| 9.8.            |   | Agents in their Individual  Capacities                      |   | 55         |
| 9.9.            |   | Successor Agents                                            |   | 55         |
|            |   |                                                        |   |       |
| SECTION 10 |   | MISCELLANEOUS                                               |   | 55         |
| 10.1.           |   | Amendments and Waivers                                      |   | 55         |
| 10.2.           |   | Notices                                                     |   | 56         |
| 10.3.           |   | No Waiver; Cumulative  Remedies                             |   | 58         |
| 10.4.           |   | Payment of Expenses                                         |   | 58         |
| 10.5.           |   | Successors and Assigns;  Participations; Purchasing Banks   |   | 59         |
| 10.6.           |   | Adjustments                                                 |   | 64         |
| 10.7.           |   | Confidentiality                                             |   | 64         |
| 10.8.           |   | Counterparts                                                |   | 65         |

 

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**TABLEOF CONTENTS(continued)**

 
|   |   |                                            |   | **Page**   |
|--------|--------|-------------------------------------------------|--------|------------|
|   |   |                                            |   | ** ** |
| 10.9.  |   | GOVERNING LAW                                   |   | 65         |
| 10.10. |   | Consent to Jurisdiction  and Service of Process |   | 65         |
| 10.11. |   | USA PATRIOT Act.                                |   | 65         |

 
| 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 3, 2009,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., CREDIT SUISSE, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORKBRANCH, as documentation agents hereunder (in such capacity, the “DocumentationAgents”), and (f) BANK OF AMERICA, N.A., as syndication agenthereunder (in such capacity, the “Syndication Agent”).

 

The parties hereto hereby agree as follows:

 

SECTION 1            DEFINITIONS

#  

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

 

“ABR”: at any particular date, the highest 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; (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; and (c) the Eurodollar Ratefor a Eurodollar Loan with one-month Interest Period commencing on such day (orif such day is not a Business Day, the immediately preceding Business Day) plus1% (provided that, for the avoidance of doubt, such Eurodollar Rate for anydate shall be based on the rate appearing on the Reuters Screen LIBOR01 Page (or,if such rate does not appear on the Reuters Screen LIBOR01 Page orotherwise on such system, on any comparable publicly available service fordisplaying eurodollar rates) at approximately 11:00 A.M. London time onsuch date).

 

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

 

“ABR Margin”:  as defined in subsection 2.21.

 

“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.

 

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

 

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

 

“Agent”:  the Administrative Agent, the SyndicationAgent or a Documentation Agent, as the context shall require; 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 and for Eurodollar Loans, theapplicable ABR Margin or Eurodollar Margin, in each case as determined inaccordance with subsection 2.21; provided that, the Applicable Marginfor any ABR Loans and Eurodollar Loans shall be increased by 1% per annum ateach level for the period of time that any Committed Rate Loans remainoutstanding after the Termination Date.

 

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

 

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

 

“benefitted Bank”:  as defined in subsection 10.6.

 

“Bid Loan”:  each loan (other than Negotiated Rate Loans)made pursuant to subsection 2.2; the aggregate amount advanced by a Bid 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 by telephone,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.

 

“Calendar Quarter”:  a three-month period consisting of (i) eachJanuary, February and March, (ii) each April, May and June, (iii) eachJuly, August and September or (iv) each October, November andDecember.

 

“Cancelled Bank”:  (i) any Bank that has the whole or anypart of its Commitment cancelled under subsection 2.13(a), (b) or (c),subsection 2.16(c) or subsection 2.17(b) or the Commitment of whichhas expired under subsection 2.16(a) and (ii) any Defaulting Bankthat the Company designates in writing to such Bank and the AdministrativeAgent as a Cancelled Bank.

 

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

 

“Certificate of Non-Bank Status”:  a certificate in form and substanceacceptable to the Administrative Agent and signed by an officer or director ofthe party that such party is not (1) taking deposits from customers in theordinary course of its business, is not directly or indirectly regulated as a “bank”under any law, and is not otherwise a “bank” within the meaning of Section 881(c)(3)(A) ofthe Code, (2) a “10 percent shareholder” of Borrowers within the meaningof Section 881(c)(3)(B) of the Code or (3) a “controlled foreigncorporation” described in Section 881(c)(3)(C) of the Code.

 

“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.

 

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“Commitment”:  as to any Bank, the amount set opposite such Bank’sname on Schedule II or in any assignment pursuant to which such Bank becomes aparty hereto with respect to any interest purchased therein, as such amount maybe modified as provided herein; collectively, as to all Banks, the “Commitments”.

 

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

 

“Commitment Increase Notice”:  as defined in subsection 2.20(a).

 

“Commitment Increase Supplement”:  as defined in subsection 2.20(c).

 

“Commitment Percentage”:  as to any Bank at any time, the 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”; provided that when a Defaulting Bank shall exist, “CommitmentPercentage” shall mean, when appropriate as determined by the AdministrativeAgent in order to provide ratable treatment at any time a Defaulting Bankexists (and without increasing the Commitment of any Bank), the percentage ofthe total Commitments (disregarding any Defaulting Bank’s Commitment) representedby such Bank’s Commitment.

 

“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 as providedherein.

 

“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 

 

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be determined by referenceto the publicly available consolidated balance sheet of the Capital Corporationand its consolidated Subsidiaries as at the end of such fiscal quarter andafter such adjustments, if any, as may be required so that the sum of theamounts 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 publicly available consolidated balance sheet ofthe Capital Corporation and its consolidated Subsidiaries as at the end of anyfiscal quarter of the Capital Corporation and its consolidated Subsidiaries(including the last quarter of any fiscal year of the Capital Corporation andits consolidated Subsidiaries) shall be deemed not to be included inConsolidated 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 indebtedness for borrowed money that is subordinated, on termsno less favorable to the Administrative Agent and the Banks than the terms ofsubordination set forth on Schedule I, to the indebtedness which may beincurred hereunder by the Capital Corporation, provided that the amountof such indebtedness for borrowed money (other than such subordinatedindebtedness) as at the end of a fiscal quarter of the Capital Corporation andits consolidated Subsidiaries (including the last quarter of a fiscal year ofthe Capital Corporation and its consolidated Subsidiaries) shall be determinedby reference to the publicly available consolidated balance sheet of theCapital Corporation and its consolidated Subsidiaries as at the end of suchfiscal quarter and after such adjustments, if any, as may be required so that suchamount is determined in accordance with GAAP. Notwithstanding the foregoing, for purposes ofdetermining compliance with subsection 7.2, indebtedness for borrowed money inrespect of any Securitization Indebtedness shall be deemed not included in ConsolidatedSenior 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 Default Swap Spread”: as defined in subsection 2.21.

 

“Credit Rating”:  (a) as to any Person, the ratingassigned to the relevant long term senior unsecured (and non-credit enhanced)Debt obligations of such Person by Moody’s or S&P and (b) if no ratingfor such Debt described in clause (a) is available, the corporate creditrating of such Person as announced by Moody’s or S&P.

 

“Data Provider”:  as defined in subsection 2.22(b).

 

“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.

 

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“Defaulting Bank”:  anyBank that has (a) following satisfaction of the conditions to fundingunder subsection 4.2, failed to fund any portion of its Loans within oneBusiness Day of the date required to be funded by it hereunder, unless thesubject of a good faith dispute; (b) notified the Company, theAdministrative Agent or any Bank in writing that it does not intend to complywith any of its funding obligations under this Agreement or has made a publicstatement to the effect that it does not intend to comply with its fundingobligations under this Agreement or under other agreements in which it commitsto extend credit; (c) failed, within three Business Days after writtenrequest by the Administrative Agent, to confirm that it will comply with theterms of this Agreement relating to its obligations to fund prospective Loans; providedthat confirmation received by the Administrative Agent beyond three BusinessDays shall remedy the default under this clause (c); (d) otherwise failedto pay over to the Administrative Agent or any other Bank any other amountrequired to be paid by it hereunder within three Business Days of the date whendue, unless the subject of a good faith dispute; or (e) (i) become oris insolvent or has a parent company that has become or is insolvent or (ii) becomethe subject of a bankruptcy or insolvency proceeding, or has had a receiver,conservator, trustee or custodian appointed for it, or has taken any action infurtherance of, or indicating its consent to, approval of or acquiescence inany such proceeding or appointment or has a parent company that has become thesubject of a bankruptcy or insolvency proceeding, or has had a receiver,conservator, trustee or custodian appointed for it, or has taken any action infurtherance of, or indicating its consent to, approval of or acquiescence inany such proceeding or appointment.  Ifany Bank shall become a Defaulting Bank, the Company shall have the right, solong as no Event of Default has occurred and is then continuing, upon givingwritten notice to the Administrative Agent and such Bank in accordance withsubsection 2.6, notwithstanding subsection 2.12(b), to prepay in full the Loansof such Bank, together with accrued interest thereon, any amounts payable tosuch Bank pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued andunpaid facility fee or other amount payable to such Bank hereunder and/or, upongiving not less than three Business Days’ notice to such Bank and theAdministrative Agent, to cancel the whole or part of the Commitment of any suchBank.

 

“Designated User”:  aPerson designated as such by a Bank, the Borrower or the Administrative Agent.

 

“Determination Date”:  atany time (a) for any Eurodollar Loan, (i) the date two Business Daysbefore the commencement of the Interest Period applicable to such Loan and (ii) inthe case of an Interest Period of more than three months duration, the datethat is the last Business Day of each successive three-month period during suchInterest Period, and (b) for any ABR Loan, (i) initially, the ClosingDate and (ii) from and after the end of the Calendar Quarter during whichthe Closing Date occurs, the last day of the Calendar Quarter most recentlyended at such time.

 

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

 

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

 

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“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.

 

“Eurodollar Loans”:  Committed Rate Loans at such time as they aremade and/or being maintained at a rate of interest based upon a Eurodollar Rate(other than ABR Loans bearing interest based on clause (c) of thedefinition of “ABR”).

 

“Eurodollar Margin”:  as defined in subsection in subsection 2.21.

 

“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.,London 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.,London time, two Business Days prior to the beginning of such Interest Periodin the interbank eurodollar market where its eurodollar operations are thenbeing conducted for delivery on the first day of such Interest Period for thenumber of days comprised therein.

 

“Existing Credit Agreement”:  the $750,000,000 364-Day Credit Agreementdated as of March 4, 2008 among the Borrowers, the Banks parties thereto,JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank N.A. and CreditSuisse 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.

 

“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.

 

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“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”:  therate per annum set forth below in the column corresponding to the PrevailingRating of the Company:

 

| **Greater  than or equal to A/A2:** | ** ** | **Lower  than or equal to A-/A3** |
|-------------------------------------|------------|-----------------------------------|
|                                |       |                              |
| 0.15%                               |       | 0.20%                             |

 

“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 leases deemed to represent interest andrentals under operating leases; provided, that, notwithstanding theforegoing, consolidated interest on Securitization Indebtedness andamortization of Securitization Indebtedness shall be deemed not included inFixed Charges; provided, further, that such amounts (but not anyamounts constituting consolidated interest on, or amortization of,Securitization Indebtedness) for a fiscal quarter of the Capital Corporationand its consolidated Subsidiaries (including the last quarter of a fiscal yearof the Capital Corporation and its consolidated Subsidiaries) shall bedetermined by reference to the publicly available consolidated statement ofincome of the Capital Corporation and its consolidated Subsidiaries for orcovering such fiscal quarter and after such adjustments, if any, as may berequired so that such amounts are determined in accordance 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 financial statementsof the Company or the Capital Corporation, respectively, as of the fiscal yearended 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 pertaining togovernment.

 

“Hedging Transaction”:  any swap transaction, interest rateprotection agreement (including any interest rate swap, interest “cap” or “collar”or any other interest rate 

 

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hedging device entered intoby the Capital Corporation or one or more of its Subsidiaries), optionagreement, short or long position in equity or debt instruments, commodities,futures and forward transactions, outperformance agreement or other similartransaction, agreement or arrangement entered into by the Capital Corporationor one or more of its Subsidiaries.

 

“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.

 

“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 Eurodollar Loan,the period commencing on the Borrowing Date, the date any ABR Loan is convertedto a Eurodollar Loan or the date any Eurodollar Loan is continued as aEurodollar 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)           with respect to any Bid Loan, the period commencingon the Borrowing Date with respect to such Bid Loan and ending on the date notless than seven days nor more than six months thereafter, as specified by aBorrower in its Bid Loan Request as provided in subsection 2.2(b); and

 

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(c)           with respect to any Negotiated Rate Loan, the periodor periods commencing on the Borrowing Date with respect to such NegotiatedRate Loan or the last day of any Interest Period with respect thereto andending on the dates as shall be mutually agreed upon between the relevantBorrower and the relevant Bank;

 

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

 

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

 

(ii)           if any Interest Period pertaining to a NegotiatedRate Loan or an Absolute Rate Bid Loan would otherwise end on a day which isnot a Business Day, that Interest Period shall be extended to the nextsucceeding Business Day;

 

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

 

(iv)          Interest Periods shall be deemed available only ifthe Required Banks shall not have advised the Administrative Agent that theEurodollar Rate determined by the Administrative Agent on the basis of theapplicable quotes will not adequately and fairly reflect the cost to such Banksof maintaining or funding their Committed Rate Loans bearing interest based onthe Eurodollar Rate determined for such Interest Period.  The Administrative Agent shall notify theBorrowers and each Bank promptly after having been advised by the RequiredBanks that a Eurodollar Rate will not so adequately and fairly reflect suchBanks’ costs as aforesaid.  If arequested Interest Period shall be unavailable in accordance with the foregoingsentence, the proposed Borrower may (A) in accordance with the provisions(including any requirements for notification) of subsection 2.1 request, at itsoption, that the requested Committed Rate Loans be made or maintained as ABRLoans or (B) withdraw the request for such Committed Rate Loans for whichthe Interest Period was unavailable by giving notice of such election to theAdministrative Agent in accordance with subsection 2.11; provided, thatif the Administrative Agent does not receive any notice hereunder with respectto requested Committed Rate Loans, such Borrower shall be deemed to haverequested ABR Loans;

 

(v)           with respect to Loans made by an Objecting Bank, noInterest Periods with respect to such Loans shall end after the firstanniversary of such Objecting Bank’s Commitment Expiration Date; and

 

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(vi)          no Interest Period shall end after the MaturityDate.

 

“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 Committed RateLoans, the Bid Loans and the Negotiated Rate Loans.

 

“Majority Banks”:  at any particular time, Banks havingCommitment Percentages aggregating more than fifty percent; providedthat (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.

 

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

 

“Markit”:  Markit Group Limited or any successor thereto.

 

“Markit Data”:  as defined in subsection 2.22(a).

 

“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.

 

“Negotiation Period”:  as defined in subsection 2.21.

 

“Net Earnings Available for Fixed Charges”:  for any particular period for the CapitalCorporation and its consolidated Subsidiaries, consolidated net earnings of the

 

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Capital Corporation and suchSubsidiaries for such period without deduction of Fixed Charges and withoutdeduction of federal, state or other income taxes, provided that suchnet 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 of Section 8(h), Person shall 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.

 

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“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.

 

“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.

 

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“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 ornet worth, 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 Persons performingsimilar functions are at the time directly or indirectly owned by such Personor one or more Subsidiaries of such Person, or by such Person and one or moreSubsidiaries of such Person.

 

“Syndication Agent”:  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.

 

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“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 certificate or other document madeor delivered pursuant hereto, accounting terms relating to either Borrower andits Subsidiaries not defined in subsection 1.1, and accounting terms partlydefined in subsection 1.1 to the extent not defined, shall have the respectivemeanings given to them under GAAP.

###  

### (c)           The words “hereof”, “herein” and “hereunder” and words ofsimilar import when used in this Agreement shall refer to this Agreement as awhole and not to any particular provision of this Agreement, and Section,subsection, Schedule and Exhibit references are to this Agreement unlessotherwise specified.

###  

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

###  

SECTION 2                                 THE COMMITTED RATE LOANS; THE BID LOANS; THENEGOTIATED RATE LOANS; AMOUNT AND TERMS

#  

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

 

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

###  

### (c)           Either Borrower may borrow Committed Rate Loans on anyWorking Day, if the borrowing is of Eurodollar Loans, or on any Business Day,if the borrowing is of ABR Loans; provided, however, that aResponsible 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 

 

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### Administrative Agent for theaccount of such Borrower at the office of the Administrative Agent set forth insubsection 10.2 at 11:00 A.M. (or 2:00 P.M., in the case of ABR Loansrequested pursuant to clause (iii) above), New York City time, on theBorrowing Date requested by such Borrower in funds immediately available to theAdministrative Agent as the Administrative Agent may direct.  The proceeds of all such Committed Rate Loanswill be made available promptly to such Borrower by the Administrative Agent atthe office of the Administrative Agent specified in subsection 10.2 bycrediting the account of such Borrower on the books of such office of theAdministrative Agent with the aggregate of the amount made available to theAdministrative Agent by the Banks and in like funds as received by theAdministrative Agent.

###  

### (d)           All Committed Rate Loans made to each Borrower shall berepaid in full by such Borrower on or before the Maturity Date; providedthe Committed Rate Loans made by Objecting Banks shall be repaid as provided insubsection 2.16(b).

###  

2.2.          The Bid Loans; the Negotiated Rate Loans.  (a)  Either Borrower may borrow BidLoans or Negotiated Rate Loans from time to time on any Business Day (in thecase of Bid Loans made pursuant to an Absolute Rate Bid Loan Request), anyWorking Day (in the case of Bid Loans made pursuant to an Index Rate Bid LoanRequest) or, in the case of Negotiated Rate Loans, on such days as shall bemutually agreed upon between the relevant Borrower and the applicable Bank, ineach case during the Commitment Period and in the manner set forth in thissubsection 2.2 and in amounts such that the aggregate principal amount of Loansat any time outstanding shall not exceed the aggregate amount of theCommitments at such time. Notwithstanding any other provision of this Agreement, the aggregateprincipal amount of the outstanding Bid Loans and/or Negotiated Rate Loans madeby any Bank may at any time (but shall not be required to) exceed theCommitment of such Bank so long as the aggregate outstanding principal amountof all Loans does not at any time exceed the aggregate amount of theCommitments.

 

### (b)           (i)  Either Borrower shall request Bid Loans orNegotiated Rate Loans by delivering (A) in the case of an Index Rate BidLoan, a Bid Loan Request to the Administrative Agent, c/o JPMorgan Chase Bank,N.A., 1111 Fannin Street, 10th Floor, Houston, Texas77002, 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)           In the case of an Index Rate Bid Loan Request, uponreceipt of notice from the Administrative Agent of the contents of such BidLoan Request, any Bid Loan Bank that elects, in its sole discretion, to do so,shall irrevocably offer to make one or more Bid

 

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##### Loans at the Applicable Index Rate plus or minus a margin for each suchBid Loan 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) above before 10:30 A.M. (New York City time)three Working Days before the proposed Borrowing Date, setting forth themaximum amount of Bid Loans for each Interest Period, and the aggregate maximumamount for all Interest Periods, which such Bank would be willing to make andthe margin above or below the Applicable Index Rate at which such Bid Loan Bankis willing to make each such Bid Loan. The Administrative Agent shall advise the relevant Borrower before 11:00 A.M.(New York City time) three Working Days before the proposed Borrowing Date ofthe contents of each such Bid Loan Offer received by it.  If the Administrative Agent in its capacityas a Bid Loan Bank shall, in its sole discretion, elect to make any such offer,it shall advise such Borrower of the contents of its Bid Loan Offer before10:15 A.M. (New York City time) three Working Days before the proposedBorrowing Date.

#####  

##### (iii)          In the case of an Absolute Rate Bid Loan Request,upon receipt of notice from the Administrative Agent of the contents of suchBid Loan Request, any Bid Loan Bank that elects, in its sole discretion, to doso, shall irrevocably offer to make one or more Bid Loans at a rate or rates ofinterest for 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) of this subsection 2.2(b) before9:30 A.M. (New York City time) on the proposed Borrowing Date, settingforth the maximum amount of Bid Loans for each Interest Period, and theaggregate maximum amount for all Interest Periods, which such Bid Loan Bankwould be willing to make and the rate or rates of interest at which such BidLoan Bank is willing to make each such Bid Loan.  The Administrative Agent shall advise therelevant Borrower before 10:00 A.M. (New York City time) on the proposedBorrowing Date of the contents of each such Bid Loan Offer received by it.  If the Administrative Agent in its capacityas a Bid Loan Bank shall, in its sole discretion, elect to make any such offer,it shall advise such Borrower of the contents of its Bid Loan Offer before 9:15 A.M.(New York City time) on the proposed Borrowing Date.

#####  

##### (iv)          The relevant Borrower shall before 11:30 A.M.(New York City time) three Working Days before the proposed Borrowing Date (inthe case of Bid Loans requested by an Index Rate Bid Loan Request) and before10:30 A.M. (New York City time) on the proposed Borrowing Date (in thecase of Bid Loans requested by an Absolute Rate Bid Loan Request) either, inits absolute discretion:

#####  

(A)          cancel such BidLoan Request by giving the Administrative Agent telephone notice to thateffect, or

 

(B)           accept one ormore of the offers made by any Bid Loan Bank or Bid Loan Banks pursuant toclause (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

 

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Offershall be equal to or less than the aggregate maximum amount specified in suchBid Loan Offer for all such Interest Periods) and reject any remaining offersmade by Bid Loan Banks pursuant to clause (ii) or clause (iii) above,as the case may be; provided, however, that (x) suchBorrower may not accept offers for Bid Loans for any Interest Period in anaggregate principal amount in excess of the maximum principal amount requestedfor such Interest Period in the related Bid Loan Request, (y) if suchBorrower accepts any such offers, it must accept offers strictly based uponpricing for such relevant Interest Period and upon no other criteria whatsoeverand (z) if two or more Bid Loan Banks submit offers for any InterestPeriod at identical pricing and such Borrower accepts any of such offers butdoes not wish to borrow the total amount offered by such Bid Loan Banks withsuch identical pricing, such Borrower shall accept offers from all of such BidLoan Banks in amounts allocated among them prorata according tothe amounts offered by such Bid Loan Banks (or as nearly prorataas shall be practicable, after giving effect to the requirement that Bid Loansmade by a Bid Loan Bank on a Borrowing Date for each relevant Interest Periodshall be in a principal amount of $5,000,000 or an integral multiple of$1,000,000 in excess thereof, it being agreed that to the extent that it is notpossible to make allocations in accordance with the provisions of this clause (z) suchallocations shall be made in accordance with the instructions of such Borrower,it being understood that in no event shall any Bank be obligated to make anyBid Loan in a principal amount less than $5,000,000).

 

##### (v)           If such Borrower notifies the Administrative Agentthat a Bid Loan Request is cancelled pursuant to clause (iv)(A) of thissubsection 2.2(b), the Administrative Agent shall give prompt telephone noticethereof to the Bid Loan Banks, and the Bid Loans requested thereby shall not bemade.

#####  

##### (vi)          (A)  If such Borrower accepts pursuant toclause (iv)(B) of this subsection 2.2(b) one or more of the offersmade by any Bid Loan Bank or Bid Loan Banks pursuant to a Bid Loan Request, theAdministrative Agent shall promptly notify by telephone each Bid Loan Bankwhich has made such an offer of the aggregate amount of such Bid Loans to bemade on such Borrowing Date for each Interest Period and of the acceptance orrejection of any offers to make such Bid Loans made by such Bid Loan Bank.  Each Bid Loan Bank which is to make a BidLoan pursuant to a Bid Loan Request shall, before 12:00 Noon (New York Citytime) on the Borrowing Date specified in the Bid Loan Request applicablethereto, make available to the Administrative Agent at its office set forth insubsection 10.2 the amount of Bid Loans to be made by such Bid Loan Bank, inimmediately available funds.  TheAdministrative Agent will make such funds available to such Borrower as soon aspracticable on such date at the Administrative Agent’s aforesaid address.

#####  

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

 

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Borrowerthe amount of Negotiated Rate Loans to be made by such Bank, in immediatelyavailable funds.

 

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

 

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

###  

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

###  

### (e)           Each Borrower shall pay interest on the unpaid principalamount of each Bid Loan and each Negotiated Rate Loan borrowed by such Borrowerfrom the applicable Borrowing Date to the stated maturity date thereof, in thecase of a Bid Loan, at the rate of interest determined pursuant to paragraph (b) ofthis subsection 2.2, and, in the case of a Negotiated Rate Loan, as agreed bysuch Borrower and the relevant Bank (calculated on the basis of a 360 day yearfor actual days elapsed), payable on the interest payment date or dates (i) specifiedby such Borrower 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 Request has been given hereunder,no Bid Loan Request or Negotiated Rate Loan Request shall be given until atleast one Business Day, in the case of an Absolute Rate Bid Loan Request, orone Working Day, in the case of an Index Rate

 

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### Bid Loan Request, after theearliest to occur of (i) the Borrowing Dates with respect to all prior BidLoan Requests made pursuant to subsection 2.2(b)(i), (ii) the date onwhich all Bid Loan Banks have failed to submit Bid Loan Offers with respect toany 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).

###  

2.3.          Loan Accounts.  Each Bank, with respect to its Committed RateLoans, Bid Loans and Negotiated Rate Loans, and the Administrative Agent, withrespect to all Committed Rate Loans, Negotiated Rate Loans and Bid Loans, shallopen and maintain in the name of each Borrower loan accounts (as to each Bank,its “Loan Account” applicable to such Borrower) on its books and recordssetting forth the amounts of principal, interest and other sums paid andpayable by such Borrower from time to time hereunder in respect of such Loans,and the obligation of such Borrower to pay or repay, as the case may be, suchamounts to such Bank shall be evidenced by such Bank’s Loan Account.  In case of any dispute, action or proceedingrelating to any Committed Rate Loan, Bid Loan or Negotiated Rate Loan, theentries in such records shall constitute primafacie evidence ofthe accuracy of the information set forth therein.  In case of discrepancy between the entries inthe Administrative Agent’s books and records and any Bank’s, the entries in theAdministrative Agent’s books and records shall constitute primafacieevidence 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, 2009.

 

### (b)           The Company and the Capital Corporation jointly andseverally agree to pay to the Administrative Agent for its own account all feesset forth in the letter agreement dated January 29, 2009 from J.P. MorganSecurities Inc. and JPMorgan Chase Bank, N.A. to the Borrowers.

###  

### (c)           The Company and the Capital Corporation jointly andseverally agree to pay to the Administrative Agent for its own account all otherfees payable to the Administrative Agent as the Borrowers and theAdministrative Agent shall mutually agree from time to time.

###  

2.5.          Termination or Reduction of Commitments; Cancellationof 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

 

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intereston the amount so prepaid to the date of such prepayment, to the extent, if any,that the aggregate outstanding principal amount of all Loans exceeds the amountof the Commitments as then reduced and (ii) any such termination of theCommitments shall be accompanied by prepayment in full of the Loans then outstanding hereunder in accordancewith subsection 2.6 together with payment of any accrued interest and fees, andany termination of a Bank’s Commitment pursuant to subsection 2.13, 2.16 or2.17 shall, with respect to each affected Loan, on the last day of theapplicable Interest Period therefor or, if earlier, on such earlier date asshall be notified by the Borrowers, be accompanied by prepayment in full ofsuch Loan, together with, in each case, accrued interest thereon to the date ofsuch prepayment, the payment of any unpaid facility fee then accrued hereunder,and the payment of any amounts then payable pursuant to subsections 2.13, 2.14,2.15 and 2.17.  Upon receipt of suchnotice from the Borrowers the Administrative Agent shall promptly notify eachBank thereof.  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 the ability of the Capital Corporationto borrow hereunder upon not less than five Business Days’ notice to theAdministrative Agent.  Upon receipt ofsuch notice from the Company, the Administrative Agent shall promptly notifyeach Bank thereof.  On the first dayfollowing receipt of such notice, on which all Loans to the Capital Corporationand all interest thereon shall have been paid in full, and notwithstanding anyother provision of this Agreement, (i) the Capital Corporation shall ceaseto be a party hereto or to have any right or obligation hereunder, (ii) rightsand obligations expressed herein to be, in effect, of either the Company or theCapital Corporation 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.          Optional Prepayments.  Either Borrower may at any time and from timeto time prepay its Committed Rate Loans in whole or in part, without premium orpenalty, but subject to the provisions of subsection 2.14, upon at least threeWorking Days’ irrevocable notice (by 11:00 a.m., New York City time), inthe case of Eurodollar Loans, or same day irrevocable notice in the case of ABRLoans, in each case to the Administrative Agent, specifying the date and amountof prepayment and whether the prepayment is of its Eurodollar Loans, ABR Loans,or a combination thereof, and if of a combination thereof, the amount ofprepayment allocable to each.  Uponreceipt of such notice the Administrative Agent shall promptly notify each Bankthereof.  If such notice is given, theBorrower delivering such notice shall make such prepayment, and the payment ofthe amount specified in such notice shall be due and payable, on the datespecified therein, together with accrued interest to such date on the amountprepaid and any amounts payable pursuant to subsections 2.14 and 2.15.  Except as provided in the

 

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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), or upon a Defaulting Bankbecoming a Cancelled Bank, of such Cancelled Bank’s Commitment (in whole or inpart) shall be in an amount equal to the principal amount of the Loans of suchBank being prepaid, notwithstanding the amount thereof, and shall be permittednotwithstanding the provisions of the foregoing proviso.  Either Borrower may prepay Negotiated RateLoans or Bid Loans on such terms as shall be mutually agreed upon between therelevant Borrower and the relevant Bank.

 

2.7.          Minimum Amount of Certain Loans.  All borrowings, conversions, continuations,payments and, except as set forth in the penultimate sentence of subsection2.6, prepayments in respect of Committed Rate Loans shall be in such amountsand be made pursuant to such elections that, after giving effect thereto, (a) theaggregate principal amount of Committed Rate Loans made on any Borrowing Dateshall not be less than $25,000,000 or a whole multiple of $5,000,000 in excessthereof and (b) the aggregate principal amount of Committed Rate Loans ofany Type with the same Interest Period shall not be less than $10,000,000 or awhole multiple of $1,000,000 in excess thereof.

 

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

 

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

###  

### (c)           If all or a portion of the principal amount of any of theCommitted Rate Loans shall not be paid when due (whether at the statedmaturity, by acceleration or otherwise) such overdue principal amount of suchCommitted Rate Loan (i) shall bear interest at a rate per annum which is1% above the rate which would otherwise be applicable pursuant to subsection2.8(a) or (b) as the case may be, from the date when such principalamount is due until the date on which such amount is paid in full and (ii) shall,if such Committed Rate Loan is a Eurodollar Loan, be converted to an ABR Loanat the end of the Interest Period applicable thereto.

###  

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

###  

2.9.          Conversion and Continuation Options.  (a)  The relevant Borrower mayelect from time to time to convert Committed Rate Loans of one Type intoCommitted Rate Loans of another Type by giving to the Administrative Agentirrevocable notice of such conversion by the earliest time that they would havebeen required to give notice under subsection 2.1(c) if they had beenborrowing Committed Rate Loans of each such Type on the conversion datespecified in such notice, provided that any such conversion ofEurodollar Loans may only be made on the last day of an Interest Period withrespect thereto.  Any such notice ofconversion to Eurodollar Loans shall specify the length of the initial InterestPeriod or Interest

 

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Periodstherefor.  Upon receipt of any suchnotice the Administrative Agent shall promptly notify each Bank thereof.  All or any part of outstanding EurodollarLoans and ABR Loans may be converted as provided herein, provided thatno Loan may be converted into a Eurodollar Loan after the date that is onemonth prior to (i) in the case of a Loan made by an Objecting Bank, thefirst anniversary of such Objecting Bank’s Commitment Expiration Date, and (ii) inthe case of all Loans, the Maturity Date.

 

### (b)           Any Eurodollar Loans may be continued as such upon theexpiration of the then current Interest Period with respect thereto by therelevant Borrower giving notice to the Administrative Agent, such notice to begiven by the time it would have been required to give notice under subsection2.1(c) if it had been borrowing Eurodollar Loans on the last day of thethen expiring Interest Period therefor, of the length of the next InterestPeriod to be applicable to such Loans, provided that no Eurodollar Loanmay be continued as such 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.  Upon receiptof any such notice, the Administrative Agent shall promptly notify each Bankthereof.

###  

2.10.        Computation of Interest and Fees.  (a)  Facility fees and interest inrespect of ABR Loans based upon clause (a) of the definition of ABR shallbe calculated on the basis of a 365- (or 366- as the case may be) day year forthe actual days elapsed (including the first day and excluding the lastday).  Interest in respect of EurodollarLoans, Bid Loans and ABR Loans based upon clause (b) or (c) of thedefinition of ABR shall be calculated on the basis of a 360-day year for theactual 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 EurodollarRate.  Any change in the interest rate ona Committed 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 dateand the amount of each such change.

 

(b)           Each determination of an interest rate by theAdministrative Agent pursuant to any provision of this Agreement shall beconclusive and binding on the Borrowers and the Banks in the absence ofmanifest error.

 

2.11.        Inability to Determine Interest Rate.  (a)  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 generally, adequate and reasonablemeans do not exist for ascertaining the Eurodollar Rate for any requestedInterest Period with respect to Committed Rate Loans that a Borrower hasrequested be made as, continued as or converted into Eurodollar Loans, theAdministrative Agent shall promptly give notice of such determination to suchBorrower and the Banks prior to the first day of the requested Interest Periodfor such Eurodollar Loans.  If suchnotice is given, such Borrower may (i) in accordance with the provisionsof subsection 2.1 or 2.9, as the case may be (including any requirements fornotification), request that the affected Loans be made as, continued as orconverted into, as the case may be, ABR Loans, or (ii) in the case ofLoans requested to be made on the first day of such Interest Period, withdrawthe notice given under subsection 2.1 or 2.9, as the case may be, by givingtelephonic notice to the Administrative

 

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Agent,no later than 10:00 A.M. (New York City time) on the applicable BorrowingDate, 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 the Administrative Agent shall havedetermined (which determination shall be conclusive and binding upon theBorrowers) that by reason of circumstances affecting the interbank eurodollarmarket, adequate and reasonable means do not exist for ascertaining theEurodollar Rate for any Interest Period with respect to a proposed Bid Loan tobe made pursuant to an Index Rate Bid Loan Request, the Administrative Agentshall forthwith give notice of such determination to the relevant Borrower andthe Bid Loan Banks at least two Business Days prior to the proposed BorrowingDate, and such Bid Loans shall not be made on such Borrowing Date.  Until any such notice has been withdrawn bythe Administrative Agent, no further Index Rate Bid Loan Requests shall besubmitted by either Borrower.

###  

2.12.        Pro Rata Treatment and Payments.  (a)  All payments (includingprepayments), to be made by the Borrowers on account of principal, interest andfees shall be made without defense, set-off or counterclaim and shall be made,in the case of fees and principal of, and interest on, Loans (other thanNegotiated Rate Loans) at the Administrative Agent’s office specified insubsection 10.2, in each case in lawful money of the United States of Americaand in immediately available funds not later than 11:00 A.M. (New YorkCity time) on the date due.  TheAdministrative Agent shall distribute such payments to the Banks entitledthereto on the day of receipt in like funds as received, provided that theAdministrative Agent shall have received such payments not later than 11:00 A.M.(New York City time).  If theAdministrative Agent shall distribute such payments to the Banks entitledthereto on a date after the date on which such payments were received prior to11:00 A.M. (New York City time), the Administrative Agent shall pay toeach such Bank on demand an amount equal to the product of (i) the dailyaverage Federal Funds rate during such period as quoted by the AdministrativeAgent, times (ii) the amount of such Bank’s share of such payment, times(iii) a fraction, the numerator of which is the number of days that elapsefrom and including such date of receipt of payment by the Administrative Agentto but excluding the date on which such Bank’s share of such payment shall havebecome immediately available to such Bank and the denominator of which is360.  All payments (includingprepayments) to be made by the Borrowers on account of principal, interest andfees relating to Negotiated Rate Loans shall be made to the Bank with respectthereto on such terms, at such address and at such time as shall be mutuallyagreed upon between the relevant Borrower and the relevant Bank in lawful moneyof the United States of America on the date due.

 

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

 

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(A)                              All borrowings ofCommitted Rate Loans and all principal payments in respect of such Loans, shallbe made prorata according to the respective Commitments of theBanks.

 

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

 

##### (ii)                                  Exceptas provided in subsections 2.13, 2.16 and 2.17, each reduction of theCommitments shall be made prorata among the Banks according totheir respective Commitment Percentages. Each payment by the Borrowers under this Agreement or of any Loan (otherthan Negotiated Rate Loans) shall be applied, first, to any fees thendue and owing pursuant to subsection 2.4, second, to interest then dueand owing in respect of the Loans (other than Negotiated Rate Loans) and third,to principal then due and owing hereunder (other than principal due and owingunder Negotiated Rate Loans) and under the Loans (other than Negotiated RateLoans).  Each payment made by theBorrowers under this Agreement relating to a Negotiated Rate Loan to the Bankwith respect thereto shall be applied, first, to interest then due andowing in respect of such Negotiated Rate Loan and second, to principalthen due and owing hereunder with respect to such Negotiated Rate Loan andunder such Negotiated Rate Loan.  Eachpayment (other than voluntary prepayments made when no principal payments aredue and owing hereunder) by either Borrower on account of principal of andinterest on the Loans (other than Negotiated Rate Loans) shall be made for theaccount of each Bank prorata according to the respective amountsof principal and interest due and owing to such Bank under this Agreement.  Subject to the requirements of clause (i) ofthis paragraph (b), each payment by a Borrower on account of principal of theLoans (other than Negotiated Rate Loans) shall be applied, first, tosuch of its Committed Rate Loan borrowings as such Borrower may designate, provided,however, that if any such payment is made after the Commitment ExpirationDate for any Objecting Banks to which Committed Rate Loans remain outstanding,such Objecting 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)                                  If any payment hereunder (otherthan payments on the Eurodollar Loans and Index Rate Bid Loans) becomes due andpayable on a day other than a Business Day, such payment shall be extended tothe next succeeding Business Day.  If anypayment on a Eurodollar Loan or Index Rate Bid Loan becomes due and payable ona day other than a Working Day, the maturity thereof shall be extended to thenext succeeding Working Day unless the result of such extension would be toextend such payment into another calendar month in which event such paymentshall be made on the immediately preceding Working Day.  With respect to any 

 

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### extension of the payment of principalpursuant to this subsection 2.12(c), interest thereon shall be payable at thethen applicable rate during such extension.

###  

### (d)                                 Unless the Administrative Agentshall have been notified in writing by any Bank prior to the date of theCommitted Rate Loan, Committed Rate Loans, Bid Loan or Bid Loans to be made bysuch Bank (which notice shall be effective upon receipt) that such Bank willnot make its prorata share of the amount of the requestedborrowing 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 phasing-in of aprovision of any applicable law, regulation or guideline) or in theinterpretation thereof by any governmental or other regulatory authoritycharged with the administration thereof or any court of competent jurisdictionand/or (ii) compliance by such Bank with any requirement adopted after thedate hereof or directive adopted after the date hereof from any 

 

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centralbank or other fiscal, monetary or other regulatory authority (whether or nothaving the force of law), there shall be any increase in the cost of such Bankof maintaining or giving effect to its obligations with respect to CommittedRate Loans under this Agreement or maintaining its Commitment with respect toCommitted Rate Loans or making or maintaining any Eurodollar Loans or anyreduction in any amount receivable by such Bank in respect of Eurodollar Loansunder this Agreement, notwithstanding the reasonable efforts (such reasonableefforts not to result in the incurrence of additional costs or expenses) ofsuch Bank to mitigate such increase or reduction (excluding for purposes ofthis subsection 2.13 any such increased costs resulting from (x) ForeignTaxes (as to which subsection 2.17 shall govern) and (y) changes in thebasis of taxation of overall net income or overall gross income by the UnitedStates or by the foreign jurisdiction or state under the laws of which suchBank is organized or has its applicable lending office or any politicalsubdivision thereof), then the relevant Borrower shall from time to time onreceipt (whenever occurring) of a certificate from such Bank (which shall beexecuted by an officer thereof and a copy of which shall be delivered to theAdministrative Agent) pay to such Bank such amounts as are stated therein to berequired to indemnify such Bank against such increased costs or reduction; provided,however, that if such Borrower becomes obligated to pay any Bank anyadditional amount pursuant to this subsection 2.13(a), 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 to such Bank pursuant to subsections2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility 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)                                 In the event that any Bank shallhave determined that the adoption after the date hereof of any law, rule,guideline or regulation regarding capital adequacy, or any change after the datehereof in any existing or future law, rule, guideline or regulation regardingcapital adequacy (excluding, however, the phasing-in of any existing law, rule,regulation or guideline regarding capital adequacy) or in the interpretation orapplication thereof or compliance by such Bank or any corporation controllingsuch Bank with any request or directive made or adopted after the date hereofregarding capital adequacy (whether or not having the force of law) from anycentral bank or Governmental Authority, does or shall have the effect of

 

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### reducing the rate of return on such Bank’s orsuch corporation’s capital as a consequence of its obligations hereunder to alevel below that which such Bank or such corporation could have achieved butfor such adoption, change or compliance (taking into consideration such Bank’sor such corporation’s policies with respect to capital adequacy) by an amountdeemed by such Bank to be material, then from time to time, within 30 daysafter receipt (whenever occurring) of a certificate from such Bank (which shallbe executed by an officer thereof and a copy of which shall be delivered to theAdministrative Agent), the Borrowers jointly and severally agree to pay to suchBank such additional amounts as are stated therein to be required to compensateit for such reduction; provided, however, that if such Borrowerbecomes obligated to pay any Bank any additional amount pursuant to thissubsection 2.13(b), 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 or other amounts payable to it hereunderand/or, upon giving not less than three Business Days’ notice to any such Bankand the Administrative Agent, to cancel the whole or part of the Commitment ofany such Bank.  A certificate of suchBank as to the amount of such reduction shall set forth in reasonable detailthe computation of such reduction, and shall be binding and conclusive in theabsence of manifest error.  A Bank whichdemands indemnification hereunder as a result of a reduction referred to hereinshall deliver the certificate referred to above to the relevant Borrowerdemanding indemnification no later than the later of (i) the thirtieth dayimmediately following each realization by such Bank of such reduction (and suchcertificate shall certify that the amounts set forth therein were realizedwithin such thirty-day period) and (ii) the thirtieth day immediatelyfollowing such Bank’s knowledge of the realization by such Bank of suchreduction (and such certificate shall so certify).

###  

### (c)                                  Each Borrower shall pay to eachBank that delivers a certificate to such Borrower in accordance with the secondand third following sentences such amounts as shall be necessary to reimbursesuch Bank for the costs (determined in accordance with the immediatelyfollowing sentence), if any, incurred by such Bank, as a result of theapplication to such Bank during any period on which there are outstanding EurodollarLoans advanced by such Bank to such Borrower of basic, supplemental, marginaland emergency reserves under any regulations of the Board or other GovernmentalAuthority having jurisdiction with respect thereto dealing with reserverequirements prescribed for eurocurrency funding (currently referred to as “Eurocurrencyliabilities” in Regulation D of such Board) maintained by a member bank of suchSystem (any such reserves dealing with reserve requirements prescribed foreurocurrency funding being referred to as “Reserves”), such amount to beset forth in a certificate of such Bank delivered to the relevant Borrower; provided,however, that if a Bank gives to a Borrower the written noticecontemplated by the proviso set forth in the second following sentence, suchBorrower shall have the right, so long as no Event of Default has occurred andis then continuing, upon giving notice to the Administrative Agent and suchBank in accordance with subsection 2.6, to prepay in full the Loans of suchBank, together with accrued interest thereon, any amounts payable pursuant tosubsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility feeor other amounts payable to it hereunder and/or upon giving not less than threeWorking Days’ notice to such Bank and the Administrative Agent, to cancel thewhole or part of the Commitment of any such Bank.  Amounts certified by a Bank hereunder for anyperiod shall represent such Bank’s calculation or, if an accurate calculationis impracticable, 

 

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### reasonable estimate (using such reasonablemeans of allocation as such Bank shall determine) of the actual costs, if any,theretofore incurred by such Bank as a result of the application of Reserves toEurocurrency liabilities (as referred to in Regulation D referred to above) ofsuch Bank in an amount equal to such Bank’s Eurodollar Loans during such periodand in any event shall not exceed the amount obtainable utilizing the maximumReserves prescribed by the Board or other Governmental Authority havingjurisdiction with respect thereto for such period.  Such payment shall be made within fifteendays after receipt by the relevant Borrower of a certificate, signed by anofficer of the Bank delivering such certificate, which certificate shall bebinding and conclusive in the absence of demonstrable error, specifying theperiod (prior to the date of such certificate) during which the cost set forththerein was incurred by such Bank and stating (i) that such amountrepresents the actual cost, or, if an accurate calculation of such cost isimpracticable 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 maximum Reservesprescribed for such period by the Board or such other Governmental Authorityhaving jurisdiction with respect thereto; provided that the obligationof 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)                                 The obligations of the partiesunder this subsection 2.13 shall survive termination of this Agreement andpayment 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 maysustain or incur as a consequence of (a) default by such Borrower inpayment of the principal amount of or interest on any Loan by such Bank,including, but not limited to, any such loss or expense arising from interestor fees payable by such Bank to lenders of funds obtained by it in order tomaintain its Loans hereunder, (b) default by such Borrower in making aborrowing, conversion or continuance after such Borrower has given a notice inaccordance with subsection 2.1, 2.2 or 2.9, (c) default by such Borrowerin making any prepayment after such Borrower has given a notice in accordancewith subsection 2.5 or 2.6 or (d) the making by such Borrower of aprepayment of a Committed Rate Loan (other than an ABR Loan), a Bid Loan or, tothe extent agreed to by the relevant Borrower and the relevant Bank withrespect to a Negotiated Rate Loan, a Negotiated Rate Loan on a day which is notthe last day of an Interest Period with respect thereto (with respect toCommitted Rate Loans) or the maturity date therefor (with respect to Bid Loans)or any agreed date (with respect to Negotiated Rate Loans), including, but notlimited to, any such loss or expense arising from interest or fees payable bysuch Bank to lenders of funds obtained by it in order to maintain its Loanshereunder.  This covenant shall survivetermination of this Agreement and payment of the outstanding Loans.  A certificate as to any amount payable 

 

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pursuantto the foregoing shall be submitted by such Bank (and executed by an officer thereof)to the relevant Borrower, setting forth the computation of such amounts inreasonable detail, and shall be conclusive in the absence of manifest 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.                        Extension of 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 any, referred to asthe “Commitment Expiration Date” with respect to such Objecting Bank).  If, not less than 30 days and not more than 60days prior to the Termination Date then in effect, the Required Banks shall notapprove in writing the extension of the Termination Date requested in anExtension Request, the Termination Date shall not be extended pursuant to suchExtension 

 

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Request.  The Administrative Agent shall promptlynotify (y) the Banks and the Borrowers of any extension of the TerminationDate pursuant to this subsection 2.16 and (z) the Borrowers and any otherBank 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 or other amounts payable to it hereunderand/or, upon giving not less than three Working Days’ notice to the ObjectingBanks and the Administrative Agent, to cancel the whole or part of theCommitments of the Objecting Banks.

 

2.17.                        ForeignTaxes.  (a)  All payments madeunder this Agreement shall be made without set-off, counterclaim, restrictionor condition and free and clear of, and without reduction for or on account of,any present or future income, stamp or other taxes, levies, imposts, duties,charges, fees, deductions, or withholdings of any nature whatsoever, now orhereafter imposed, levied, collected, withheld or assessed by the United States(or by any political subdivision or taxing authority thereof or therein) withrespect to any amount that is paid under this Agreement excluding, in the caseof each Bank, (i) income and franchise taxes (including, withoutlimitation, branch taxes imposed by the United States or similar taxes imposedby a political subdivision or taxing authority thereof or therein but excludingfor the purposes of this clause (i), in the case of any Bank not organizedunder the laws of the United States, any such taxes imposed by the UnitedStates by means of withholding at the source), (ii) in the case of anyBank not organized under the laws of the United States, a state thereof or theDistrict of Columbia, any taxes imposed by the United States by means ofwithholding at the source unless such Bank has provided the Company, theCapital Corporation and the Administrative Agent with the documents it isrequired to provide to them under subsection 2.17(c) and (iii) taxesthat would not have been imposed on such Bank but for the existence of aconnection between such Bank and the jurisdiction imposing such taxes (otherthan a connection arising principally by virtue of this Agreement) (suchnon-excluded taxes being called “Foreign Taxes”).  If any Foreign Taxes are required to bewithheld from any amounts so payable to any Bank hereunder, the amounts sopayable to such Bank shall be increased to the extent necessary to yield tosuch Bank (after payment of all Foreign Taxes) interest or any such otheramounts payable hereunder at the rates or in the amounts specified in thisAgreement.  Whenever any Foreign Taxesare payable by the Company or the Capital Corporation, as the case may be, aspromptly as possible thereafter the Company or the Capital Corporation, as thecase may be, shall send to the Administrative Agent, for the account of theaffected Bank, a certified copy of the original official receipt, if any, receivedby the Company or the Capital Corporation, as the case may be, showing paymentthereof.  If the Company or the CapitalCorporation, as the case may be, fails to pay any Foreign Taxes when due to theappropriate taxing authority or fails to remit to the Administrative Agent, forthe account of the affected Banks, the required receipts or other requireddocumentary evidence, the Company or the Capital Corporation, as the case may 

 

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be,shall indemnify such Banks for any incremental taxes, interest or penaltiesthat may become payable by such Banks as a result of any such failure.

 

### (b)                                 If a Borrower is required bythis subsection 2.17 to make a payment to or in respect of any Bank, suchBorrower shall have the right, so long as no Event of Default has occurred andis then continuing, upon giving notice to the Administrative Agent and suchBank in accordance with subsection 2.6, to prepay in full the Loans of suchBank, together with accrued interest thereon, any amounts payable pursuant tosubsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility feeor other amounts payable to it hereunder and/or on giving not less than threeBusiness Days’ notice to any such Bank and the Administrative Agent, to cancelthe whole or part of the Commitment of such Bank (but only if after givingeffect to such cancellation or prepayment the aggregate principal amount of theLoans does not exceed the aggregate Commitments then in effect).

###  

### (c)                                  At least two Business Days priorto the first Borrowing Date or, if such date does not occur within thirty daysafter the Closing Date, by the end of such thirty-day period, each Bank agreesthat it will deliver to each Borrower and the Administrative Agent either (A) astatement that it is incorporated under the laws of the United States, a statethereof or the District of Columbia, (B) if it is not so incorporated, aletter in duplicate in substantially the form of Exhibit J or Exhibit K,as appropriate, and two duly completed copies of United States Internal RevenueService Form W-8BEN or W-8ECI or successor applicable form, as the casemay be, certifying in each case that such Bank is entitled to receive paymentunder this Agreement without deduction or withholding of any United StatesFederal income taxes, or (C) in the case of a Bank claiming exceptionunder Sections 871(h) or 881(c) of the Code, a Certificate ofNon-Bank Status together with two original copies of Internal Revenue Service Form W-8BEN,or successor applicable form, as the case may be, to establish an exemptionfrom United States backup withholding tax. Each Bank (including, without limitation, each Loan Assignee) agrees(for the benefit of the Administrative Agent and the Borrowers), to the extentit may lawfully do so, to provide the Administrative Agent and the Borrowers anew letter or a new Certificate of Non-Bank Status, if applicable, and Form W-8BENor W-8ECI, or successor applicable form or other manner of certification, (x) inthe case of a Loan Assignee, on or before the date it becomes  party to this Agreement, (y) on orbefore the date that any such letter or form expires or becomes obsolete orafter the occurrence of any event requiring a change in the most recent letteror form previously delivered by it, certifying in the case of a Form W-8BENor W-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, and (z) promptly after the date of the Company,the Capital Corporation or the Administrative Agent reasonably requests anyform or document referred to in this subsection 2.17(c); provided, however,that if a Bank is unable to provide a letter, form, certificate, successor orother document described in this sentence by reason of a change in theapplicable law occurring after the date on which such letter, form,certificate, successor or other document originally was required to be providedby such Bank, then such Bank shall be required to comply with this sentence tothe extent permitted under such applicable law, and the letter, form,certificate, successor or other document provided in accordance with this proviso(if any) shall certify that such Bank is entitled to receive payments underthis Agreement at the lowest rate of deduction, withholding or backupwithholding to which it is entitled under such applicable law.  The Administrative Agent shall 

 

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### not be responsible for obtaining suchdocumentation from any Bank other than JPMorgan Chase Bank, N.A.

###  

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

###  

### (e)                                  The obligations of the partiesunder this subsection 2.17 shall survive termination of this Agreement andpayment 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 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 

 

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delayed),without offering to each Bank the opportunity to subscribe for its pro ratashare of the increased Commitments, offer to any bank or other financialinstitution that is not an existing Bank the opportunity to provide a newCommitment pursuant to paragraph (b) below if the aggregate amount of allCommitments made hereunder pursuant to this proviso which will be in effectwhen such new Commitment becomes effective does not exceed $250,000,000 subjectto subsection 2.20(f).  If any portion ofthe increased Commitments offered to the Banks as contemplated in theimmediately preceding sentence is not subscribed for by the Banks, theBorrowers may, with the consent of the Administrative Agent as to any bank orfinancial institution that is not at such time a Bank (which consent shall notbe unreasonably withheld or delayed), offer to any existing Bank or to one ormore additional banks or financial institutions the opportunity to provide allor a portion of such unsubscribed portion of the increased Commitments pursuantto paragraph (b) below.

 

### (b)                                 Any additional bank or financialinstitution that the Borrowers select to offer the opportunity to provide anyportion of the increased Commitments, and that elects to become a party to thisAgreement and provide a Commitment, shall execute a New Bank Supplement withthe Borrowers and the Administrative Agent, substantially in the form of Exhibit N(a “New Bank Supplement”), whereupon such bank or financial institution(a “New Bank”) shall become a Bank for all purposes and to the sameextent as if originally a party hereto and shall be bound by and entitled to thebenefits of this Agreement, and Schedule II shall be deemed to be amended toadd the name and Commitment of such New Bank, provided that theCommitment of any such New Bank shall be in an amount not less than$10,000,000.

###  

### (c)                                  Any Bank that accepts an offerto it by the Borrowers to increase its Commitment pursuant to this subsection2.20 shall, in each case, execute a Commitment Increase Supplement with theBorrowers and the Administrative Agent, substantially in the form of Exhibit O(a “Commitment Increase Supplement”), whereupon such Bank (an “IncreasingBank”) shall be bound by and entitled to the benefits of this Agreementwith respect to the full amount of its Commitment as so increased, and ScheduleII shall be deemed to be amended to so increase the Commitment of such Bank.

###  

### (d)                                 The effectiveness of any NewBank Supplement or Commitment Increase Supplement shall be contingent uponreceipt by the Administrative Agent of such corporate resolutions of theBorrowers and legal opinions of counsel to the Borrowers as the AdministrativeAgent shall reasonably request with respect thereto.

###  

### (e)                                  (i)  Except as otherwiseprovided in subparagraphs (ii) and (iii) of this paragraph (e), ifany bank or financial institution becomes a New Bank pursuant to subsection2.20(b) or any Bank’s Commitment is increased pursuant to subsection2.20(c), additional Committed Rate Loans made on or after the date of theeffectiveness 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 amount of Committed Rate Loans in excess of itsCommitment, in which case such excess amount will be allocated to, and made by,the relevant New Banks and Increasing Banks to the extent of, and in accordancewith the pro rata provisions of subsection 2.12(b) based on, theirrespective Commitments).  On eachRe-Allocation Date, the Administrative Agent shall deliver 

 

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### such amended Schedule II and a notice to eachBank of the adjusted Commitment Percentages after giving effect to any increasein the aggregate Commitments made pursuant to this subsection 2.20 on suchRe-Allocation Date.

###  

##### (ii)                                  Inthe event that on any such Re-Allocation Date there is an unpaid principalamount of ABR Loans, the applicable Borrower shall make prepayments thereof andone or both Borrowers shall make borrowings of ABR Loans and/or EurodollarLoans, as the applicable Borrower shall determine, so that, after giving effectthereto, the ABR Loans and Eurodollar Loans outstanding are held as nearly asmay be in accordance with the pro rata provisions of subsection 2.12(b) basedon such new Commitment Percentages.

#####  

##### (iii)                               Inthe event that on any such Re-Allocation Date there is an unpaid principalamount of Eurodollar Loans, such Eurodollar Loans shall remain outstanding withthe respective holders thereof until the expiration of their respectiveInterest Periods (unless the applicable Borrower elects to prepay any thereofin accordance with the applicable provisions of this Agreement), and on thelast day of the respective Interest Periods the applicable Borrower shall makeprepayments thereof and one or both Borrowers shall make borrowings of ABRLoans and/or Eurodollar Loans so that, after giving effect thereto, the ABRLoans and Eurodollar Loans outstanding are held as nearly as may be inaccordance with the pro rata provisions of subsection 2.12(b) based onsuch new Commitment Percentages.

#####  

### (f)                                    Notwithstanding anything to thecontrary in this subsection 2.20, (i) in no event shall any transactioneffected pursuant to this subsection 2.20 cause the aggregate Commitments toexceed $1,000,000,000, (ii) the Commitment of an individual Bank shallnot, as a result of providing a new Commitment or of increasing its existingCommitment pursuant to this subsection 2.20, exceed 15% of the aggregateCommitments on any Re-Allocation Date and (iii) no Bank shall have anyobligation to increase its Commitment unless it agrees to do so in its solediscretion.

###  

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

###  

2.21.                        Pricing Determinations.  The Administrative Agent shall determine theApplicable Margin from time to time in accordance with the provisions set forthbelow:

 

The “Eurodollar Margin” is a rate per annum equal to theCredit Default Swap Spread at the applicable date of determination specifiedbelow, subject to the minimum and maximum rates which are set forth in thePricing Grid table below under the respective columns headed “Eurodollar MarginFloor” and “Eurodollar Margin Ceiling” corresponding to the Prevailing Ratingin effect on such date of determination. The Eurodollar Margin applicable to any Eurodollar Loans for anyInterest Period will be determined based on the Credit Default Swap Spread ineffect as of three Business Days prior to the commencement of such InterestPeriod; provided that ifsuch Interest Period is a period greater than three months, the applicableEurodollar Margin shall be redetermined at the end of each successivethree-month period during such Interest Period.

 

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The “ABR Margin” applicable at all times during any CalendarQuarter (or shorter period commencing on the Closing Date and ending on thelast day of the Calendar Quarter in which the Closing Date occurs) is a rateper annum equal to the excess, if any, of the Eurodollar Margin determined onthe first Business Day of such Calendar Quarter (or shorter period) over 1.00%per annum (but not less than 0%).

 

The “Credit Default Swap Spread” at any Determination Date is theone year credit default swap spread applicable to senior debt of the Company,as of the close of business on the Business Day immediately preceding suchDetermination Date, as reported by Markit.

 

Pricing Grid

 
| **Prevailing Rating:**   | ** ** | **Eurodollar Margin   Floor** | ** ** | **Eurodollar   Margin Ceiling** | ** ** |
|-------------------------------|------------|-----------------------------------------|------------|-------------------------------------------|------------|
| ** **                    | ** ** | ** **                              | ** ** | ** **                                | ** ** |
| Greater than or equal to A/A2 |       | 0.85                                    | %          | 2.35                                      | %          |
|                          |       |                                    |       |                                      |       |
| Lower than or equal to A-/A3  |       | 1.30                                    | %          | 3.30                                      | %          |

 

In addition, the Eurodollar Margin Ceilingfor each level set forth above shall increase by 1.00% per annum after theTermination Date.

 

If at any time the Credit Default Swap Spreadis unavailable, the Borrowers and the Banks shall negotiate in good faith (fora period of up to thirty days after the Credit Default Swap Spread becomesunavailable (such thirty-day period, the “Negotiation Period”)) to agreeon an alternative method for establishing the Eurodollar Margin.  The Eurodollar Margin at any date ofdetermination thereof in accordance with the preceding provisions of this Section whichfalls during the Negotiation Period shall be based upon the then most recentlyavailable quote of the Credit Default Swap Spread.  If no such alternative method is agreed uponduring the Negotiation Period, the Eurodollar Margin at any date ofdetermination subsequent to the end of the Negotiation Period shall be a rateper annum equal to 100% of the maximum margin set forth in the Pricing Gridtable above under the column headed “Eurodollar Margin Ceiling” correspondingto the Prevailing Rating in effect on such date of determination.

 

2.22.                        MarkitData.  (a)  JPMorgan Chase Bank,N.A., in any capacity, whether in an individual capacity or as AdministrativeAgent or Bank or otherwise, shall receive data from Markit with respect to theCredit Default Swap Spread and agrees in such capacity to provide to DesignatedUsers identified by each Bank and the Borrowers (and, if JPMorgan Chase Bank,N.A. is not the Administrative Agent, the Administrative Agent) such data,including any accompanying written notice or supporting information from Markit(together, the “Markit Data”),via email, log-in or other means of communication at the discretion of JPMorganChase Bank, N.A.  JPMorgan Chase Bank,N.A. shall have all of the rights, benefits and protections of theAdministrative Agent provided for in Section 9 when acting in such capacitywith respect to the provision of any Markit Data.

 

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For the avoidance of doubt, anyDesignated User shall only access and use the Markit Data for the purposes asspecified in this Agreement on behalf of the Borrowers, the respective Bank or,if applicable, the Administrative Agent and shall be required by the Borrowers,such Bank, and if applicable, the Administrative Agent, to comply with theterms of this subsection 2.22.  TheBorrowers, each Bank, and if applicable, the Administrative Agent, herebyagrees, without limiting Markit’s or JPMorgan Chase Bank, N.A.’s other rightsand remedies, that it is responsible for and liable for any breach of any ofthe provisions of this subsection 2.22 by its respective Designated Users.

 

(b)                                  EachBorrower and each Bank acknowledges that all copyright, database rights, trademarks, patents, rights of privacy or publicity and other proprietary orintellectual property rights (including all models, software, data and anymaterials) comprised in all or any of the Markit Data, or their provision, andall enhancements, modifications or additional services thereto, are and will bethe exclusive property of Markit.  Exceptas provided for under this Agreement, each of the Borrowers and each Bankagrees that it will not use the same (including copying, reverse engineeringor, except as otherwise required by law or regulation, disclosing it to anyPerson, for any purpose whatsoever) and will not remove or deface any trademarksassociated with the Markit Data.  EachBank acknowledges that the Markit Data was developed, compiled, prepared,revised, selected and arranged by Markit and others (including certaininformation sources (each a “DataProvider”)) through the application of methods and standards ofjudgment developed and applied through the expenditure of substantial time,effort and money, and constitute valuable intellectual property and tradesecrets of Markit.  Each Borrower andeach Bank shall make reasonable efforts to comply, at Markit’s expense, withall reasonable written requests made by JPMorgan Chase Bank, N.A. (upon Markit’sreasonable written requests to JPMorgan Chase Bank, N.A.) to protect anycontractual, statutory and common law rights in the Markit Data.

 

(c)                                   EachBorrower and each Bank acknowledges that none of Markit, JPMorgan Chase Bank,N.A., their respective affiliates or any Data Provider makes any warranty,express or implied, as to the accuracy or completeness of the Markit Data or asto the results to be attained by either Borrower or any Bank or others from theuse of the Markit Data.  Each Borrower and each Bank hereby acknowledgesthat there are no express or implied warranties of title, merchantability orfitness for a particular purpose or use, and that it has not relied upon anywarranty, guaranty or representation made by Markit, JPMorgan Chase Bank, N.A.,their respective affiliates or any Data Provider.

 

(d)                                  NeitherMarkit and its affiliates (except in the event of fraud, gross negligence orwillful misconduct on part of Markit or its affiliates) nor any Data Providernor JPMorgan Chase Bank, N.A. and its affiliates shall in any way be liable tothe Borrowers, any Bank or any client of any Bank for any inaccuracies, errorsor omissions, regardless of cause, in the Markit Data provided hereunder or forany damages (whether direct or indirect) resulting therefrom.  Without limiting the foregoing, Markit andJPMorgan Chase Bank, N.A. shall have no liability whatsoever to either Borroweror any Bank or client of a Bank, whether in contract (including under anindemnity), in tort (including negligence), under a warranty, under statute orotherwise, in respect of any loss or damage suffered by either Borrower, suchBank or client as a result of or in connection with any opinions,recommendations, forecasts, judgments, or any other conclusions, or any courseof action determined, by such Bank or any client of such Bank, based on theMarkit Data.  To the extent permitted bylaw, neither Markit nor JPMorgan Chase 

 

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Bank, N.A. nor their respective affiliatesshall be liable for any loss of profits or revenue or any indirect orconsequential losses or damages whatsoever incurred, whether or not it has beenadvised in advance of the possibility of any such loss.

 

(e)                                   EachBank acknowledges that it or its employees may, in the course of performingsuch Bank’s responsibilities under this Agreement, be exposed to or acquireinformation which is proprietary or confidential to Markit or to third partiesto whom Markit owes a duty of confidentiality. Each Borrower acknowledges that it or its employees may be exposed to oracquire information which is proprietary or confidential to Markit or to thirdparties to whom Markit owes a duty of confidentiality.  Markit’s and such third parties’ confidentialinformation means the Markit Data and any related materials provided by Markitthrough JPMorgan Chase Bank, N.A. to each Borrower, each Bank and theAdministrative Agent under this Agreement. Each Bank agrees to hold Markit’s and such third parties’ confidentialinformation in confidence to the same extent and in the same manner as suchBank is required to hold Borrower’s information confidential pursuant tosubsection 10.7 hereof and agrees that it will follow procedures which areintended to put any transferee of such confidential information on notice thatsuch confidential information may not be used for any other purposes except ascontemplated herein.  Each Borrower alsoagrees to be bound by the requirements of the immediately preceding sentence inthe same manner as if were a Bank solely for purposes of subsection 10.7hereof.  It is understood and agreed thatin the event of a breach of confidentiality, damages may not be an adequateremedy and that JPMorgan Chase Bank, N.A. shall be entitled to injunctiverelief to restrain any such breach, threatened or actual.  Notwithstanding anything herein to thecontrary, the Borrowers, the Banks and the Administrative Agent are entitled todisclose and use the Markit Data in the normal course of their business as itrelates to the Agreement, including but not limited to disclosing suchinformation to regulators, ratings agencies, league table providers andprospective assignees and participants.

 

(f)                                     EachBorrower acknowledges that each of JPMorgan Chase Bank, N.A. and the otherBanks from time to time may conduct business with and may be a shareholder ofMarkit and that each of JPMorgan Chase Bank, N.A. or the other Banks may havefrom the time to time the right to appoint one or more directors to the Boardof Directors of Markit.

 

2.23.                        Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if anyBank becomes a Defaulting Bank, then the following provisions shall apply forso long as such Bank is aDefaulting Bank:

 

(a)                                   fees shall cease to accrue on the unfundedportion of the Commitment of such Defaulting Bank pursuant to subsection 2.4(a);

 

(b)                                  the Commitment and Loans of such Defaulting Bankshall not be included in determiningwhether all Banks, the Majority Banks or the Required Banks havetaken or may take any action hereunder (including any consent to any amendmentor waiver pursuant to subsection 10.1); provided that any waiver,amendment or modification requiring the consent of all Banks or each affected Bank which affects such Defaulting Bank differently than other affected Banks shall require the consent of such Defaulting Bank; and

 

(c)                                   any amount payable to such Defaulting Bankhereunder (whether on account of principal, interest, fees or otherwise andincluding any amount that would otherwise 

 

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be payable to such Defaulting Bank pursuant to subsection 10.6 butexcluding subsection 2.19) shall, in lieu of being distributed to suchDefaulting Bank, be retained by the Administrative Agent in a segregatedaccount and, subject to any applicable requirements of law, be applied at suchtime or times as may be determined by the Administrative Agent, in thefollowing order of priority:  (i) first,to the payment of any amounts owing by such Defaulting Bank to theAdministrative Agent hereunder, (ii) second, to the funding of anyLoan in respect of which such Defaulting Bank has failed to fund its portionthereof as required by this Agreement and (iii) third, if sodetermined by the Administrative Agent and the Company, held in such account ascash collateral for future funding obligations of the Defaulting Bank inrespect of any Loans under this Agreement.

 

The rights and remedies against a DefaultingBank under this subsection 2.23 are in addition to other rights and remediesthat the Borrowers may have against such Defaulting Bank.

 

In the event that the Administrative Agentand the Company agree that a Defaulting Bank has adequately remedied allmatters that caused such Bank to be a Defaulting Bank, then such Bank shallpurchase at par such of the Loans of the other Banks (other than CompetitiveLoans) as the Administrative Agent shall determine may be necessary in orderfor such Bank to hold such Loans in accordance with its Commitment Percentageand such Bank shall no longer be a Defaulting Bank.

 

# SECTION 3                                   REPRESENTATIONS AND WARRANTIES

#  

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

 

3.1.                              FinancialCondition.  The consolidated balancesheet of such Borrower and its consolidated Subsidiaries as at October 31,2008 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 consolidated Subsidiaries as at such date, and theconsolidated results of their operations and changes in financial position forthe fiscal year then ended.  All suchfinancial statements, including the related schedules and notes thereto, havebeen prepared in accordance with generally accepted accounting principles inthe United States of America applied consistently throughout the periodsinvolved (except as approved by such accountants or Responsible Officer, as thecase may be, and as disclosed therein).

 

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, 

 

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deliveryand performance of this Agreement.  Noconsent or authorization of, filing with, or other act by or in respect of, anyGovernmental Authority, is required in connection with the borrowings hereunderor with the execution, delivery, performance, validity or enforceability ofthis Agreement other than any such consents, authorizations, filings or acts ashave been obtained, taken or made and are in full force and effect.  This Agreement has been duly executed anddelivered on behalf of such Borrower, and this Agreement constitutes a legal,valid and binding obligation of such Borrower enforceable against such Borrowerin accordance with its terms, except as enforceability may be limited byapplicable bankruptcy, insolvency, reorganization, moratorium or similar lawsaffecting the enforcement of creditors’ rights generally and by general equityprinciples (whether enforcement 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 itsSubsidiaries has filed or caused to be filed all tax returns which, to theknowledge of such Borrower, are required to be filed (except where the failureto file such tax returns would not have a material adverse effect on thebusiness, operations, property or financial or other condition of such Borrowerand its Subsidiaries taken as a whole), and has paid all taxes shown to be dueand payable on said returns or on any assessments made against it or any of itsproperty and all other taxes, fees or other charges imposed on it or any of itsproperty by any Governmental Authority (other than assessments, taxes, fees andother charges the amount or validity of which is currently being contested ingood faith by appropriate proceedings and with respect to which reserves inconformity with GAAP have been provided on the books of such Borrower or itsSubsidiaries, as the case may 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.                              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 

 

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ownershipof such 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 receivedcounterparts hereof, executed by all of the parties hereto.

####  

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

####  

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

####  

#### (d)                                 IncumbencyCertificate.  The Administrative Agentshall have received, with a counterpart for each Bank, a certificate of theSecretary or an Assistant Secretary of each Borrower certifying the names andtrue 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, 2008, 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.

 

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#### (g)                                 Terminationof Existing 364-Day Credit Agreement. The Borrowers shall have paid all principal, interest, facility fees,letter of credit fees, utilization fees and other amounts which are unpaid andaccrued under the Existing Credit Agreement as of the Closing Date.  Upon effectiveness of this Agreement, theExisting Credit Agreement shall terminate.

####  

#### (h)                                 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.

####  

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 

 

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#### and itsconsolidated Subsidiaries as at the end of such year and the relatedconsolidated statements of income and of cash flow for such year, reported onby Deloitte & Touche LLP or other independent certified publicaccountants 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 statementsto present fairly the consolidated financial condition and results ofoperations of such Borrower and its consolidated Subsidiaries and to beprepared in accordance with generally accepted accounting principles in theUnited States of America applied consistently throughout the periods reflectedtherein (except as approved by such accountants or officer, as the case may be,and disclosed therein).  Such Borrowershall be deemed to have furnished such financial statements to each Bank whenthey are filed with the Securities and Exchange Commission and posted on itsEDGAR 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), acertificate of a Responsible Officer of such Borrower stating that (i) hehas no knowledge of the occurrence and continuance of any Default or Event ofDefault except as specified in such certificate, in which case such certificateshall contain a description thereof and a statement of the steps, if any, whichsuch Borrower is taking, or proposes to take, to cure the same and (ii) thefinancial statements delivered pursuant to subsection 5.1 would not bematerially different if prepared in accordance with GAAP except as specified insuch 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 

 

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information,document or report required to be filed with the Trustee pursuant to Section 7.03of the Indenture dated March 15, 1997, between the Capital Corporation andThe Bank of New York Mellon, as trustee.

 

5.5.                              Noticeof Default.  Such Borrower shallpromptly give notice to the Administrative Agent of the occurrence of any Defaultor 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 THECOMPANY

#  

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):

 

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;

 

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####  

#### (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 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 another RestrictedSubsidiary;

######  

###### (v)                                 Mortgagesin favor of the United States of America or any State thereof, or anydepartment, agency or instrumentality or political subdivision of the UnitedStates 

 

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###### of America orany State thereof, to secure partial, progress, advance or other paymentspursuant to any contract or statute or to secure any indebtedness incurred forthe purpose of financing all or any part of the purchase price or the cost ofconstructing or improving the property subject to such Mortgages and Mortgagesgiven to secure indebtedness incurred in connection with the financing ofconstruction of pollution control facilities, the interest on whichindebtedness 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 of such extension, renewal orreplacement, and that such extension, renewal or replacement shall be limitedto all or a part of the property which secured the Mortgage 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 Restricted 

######  

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###### Subsidiariesplus the shares of stock (including Margin Stock) and indebtedness issued orincurred by the Restricted Subsidiaries; and

######  

###### (xii)                            Mortgages on any ImportantProperty of, or any shares of stock or indebtedness issued or incurred by, anyRestricted Subsidiary organized under the laws of Canada.

######  

### (b)                                 (i)                                     The provisions of subsection 6.2(a) shallnot apply to the issuance, incurrence, assumption or guarantee by the Companyor any Restricted Subsidiary of Debt secured by a Mortgage which wouldotherwise be subject to the foregoing restrictions up to an aggregate amountwhich, together with the sum of (A) all other Debt issued or incurred bythe Company and its Restricted Subsidiaries secured by Mortgages (other thanMortgages permitted by subsection 6.2(a)) which would otherwise be subject tothe foregoing restrictions and (B) the Attributable Debt in respect ofSale and Lease-back Transactions in existence at such time (other than Sale andLease-back Transactions which, if the Attributable Debt in respect of such Saleand Lease-back had been a Mortgage, would have been permitted by clause (i) ofsubsection 6.2(a) and other than Sale and Lease-back Transactions theproceeds of which have been applied in accordance with subsection 6.3(b)) doesnot at the time exceed 5% of Consolidated 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 include the amount of such penalty, but no rent shall beconsidered as required to be paid under such lease subsequent to the first dateupon which it may be so terminated.

#####  

### (c)                                  If, upon any consolidation ormerger of any Restricted Subsidiary with or into any other corporation, or uponany consolidation or merger of any other corporation with or into the Companyor any Restricted Subsidiary or upon any sale or conveyance of the property ofany Restricted Subsidiary as an entirety or substantially as an entirety to anyother Person, or upon any acquisition by the Company or any RestrictedSubsidiary by purchase or otherwise of all or any part of the property of anyother Person, any Important Property theretofore owned by the Company or suchRestricted Subsidiary would thereupon become subject to any Mortgage notpermitted by the terms of subsection (a) or (b) of this subsection6.2, the Company, prior to such consolidation, merger, sale or conveyance, oracquisition, will, or will cause such Restricted Subsidiary to, secure paymentof the principal of and interest on the Loans (equally and ratably with orprior to any other indebtedness of the Company or such Subsidiary then entitledthereto) 

 

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### by a direct lien onall such property prior to all liens other than any liens theretofore existingthereon by an assumption agreement or otherwise.

###  

### (d)                                 If at any time the Company orany Restricted Subsidiary shall issue, incur, assume or guarantee any Debtsecured by any Mortgage not permitted by this subsection 6.2, to which thecovenant in subsection 6.2(a) is applicable, the Company will promptlydeliver to the Administrative Agent (with counterparts 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 thanthree years and except for leases between the Company and a RestrictedSubsidiary or between Restricted Subsidiaries), which Important Property hasbeen or is to be sold or transferred by the Company or such RestrictedSubsidiary to such Person (herein referred to as a “Sale and Lease-backTransaction”) unless the net proceeds of such sale are at least equal tothe fair value (as determined by the Board of Directors of the Company or suchRestricted Subsidiary, as applicable) of such property and either (a) theCompany or such Restricted Subsidiary would be entitled, pursuant to theprovisions of (1) subsection 6.2(a)(i) or (2) subsection 6.2(b),to incur Debt secured by a Mortgage on the Important Property to be leasedwithout equally and ratably securing the Loans, or (b) the Company shall,and in any such case the Company covenants that it will, within 120 days of theeffective date of any such arrangement, apply an amount equal to the fair value(as so determined) of such property to the reduction of the Commitments (to beaccompanied by prepayment of the Loans in accordance with subsection 2.6 to theextent that the principal amount thereof outstanding prior to such prepaymentwould exceed the Commitments as so reduced) or to the payment or otherretirement of funded debt for money borrowed, incurred or assumed by theCompany which ranks senior to or paripassu with the Loans or offunded debt for money borrowed, incurred or assumed by any RestrictedSubsidiary (other than, in either case, funded debt owned by the Company or anyRestricted Subsidiary).  For thispurpose, funded debt means any Debt which by its terms matures at or isextendable or renewable at the sole option of the obligor without requiring theconsent of the obligee to a date more than twelve months after the date of thecreation 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.

 

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# SECTION 7                                   NEGATIVE COVENANTS OF THECAPITAL 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 orother physical properties hereafter acquired to secure all or part of thepurchase price thereof or the acquiring hereafter of such assets or propertiessubject to any existing lien or charge securing indebtedness (whether or notassumed);

###  

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

###  

### (c)                                  any deposit or pledge of assets (i) withany surety company or clerk of any court, or in escrow, as collateral inconnection with or in lieu of, any bond on appeal from any judgment or decreeagainst the Capital Corporation or a Subsidiary of the Capital Corporation, orin connection with other proceedings or actions at law or in equity by oragainst the 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 

 

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### 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 assecurity for indebtedness owed to the Capital Corporation or to any otherSubsidiary;

###  

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

###  

### (f)                                    Mortgages existing on propertyacquired by the Capital Corporation or a Subsidiary of the Capital Corporationthrough the exercise of rights arising out of defaults on receivables acquiredin the ordinary course of business;

###  

### (g)                                 judgment liens, so long as thefinality of such judgment is being contested in good faith and executionthereon is stayed;

###  

### (h)                                 any Mortgage (other thandirectly or indirectly to secure borrowed money) if, after giving effectthereto, the aggregate principal sums secured by pledges or liens otherwisewithin the restrictions in clauses (a) through (h) of this subsection7.3 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 anycounterparty of the Capital Corporation or to any Subsidiary of the CapitalCorporation in connection with any Hedging Transaction.

###  

7.4.                              Consolidation;Merger.  Merge or consolidate with,or sell or convey (other than a conveyance by way of lease) all orsubstantially all of its assets to, any other corporation, unless (a) theCapital Corporation shall be the surviving corporation in the case of a mergeror the surviving, resulting or transferee corporation (the “successorcorporation”) shall be a corporation organized under the laws of the UnitedStates or any State thereof or the District of Columbia and shall expresslyassume the due and punctual performance of all of the agreements, covenants andobligations of the Capital Corporation under this Agreement by supplementalagreement satisfactory to the Administrative Agent and executed and deliveredto the Administrative Agent by the successor corporation and (b) theCapital Corporation or such successor corporation, as the case may be, shallnot, immediately after such merger, consolidation, sale or conveyance, be indefault in the performance of any such agreements, covenants or obligations; provided,however, that the Capital Corporation may merge or consolidate with, orsell or convey substantially all of its assets to, the Company, if (i) theCompany is the successor corporation (as defined above) and (ii) subclause(b) above is complied with.  Uponany such merger, consolidation, sale or conveyance, the successor corporationshall succeed to and be substituted for, and may exercise every right and powerof and shall be subject to all the obligations of, the Capital Corporationunder this Agreement, with 

 

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thesame effect as if the successor corporation had been named as the CapitalCorporation 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 Administrative Agent;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 $50,000,000 in the aggregate, or any interest or premiumthereon, when due (whether at scheduled maturity or by required prepayment,acceleration, demand or otherwise) and such failure shall continue beyond theperiod of grace, if any, provided in the instrument or agreement under whichsuch indebtedness was created; or (ii) any other default (other than anydefault arising solely out of either Borrower’s, or any of its SignificantSubsidiaries’, violation of any arrangement with any Bank, or any affiliate ofany Bank, in any way restricting such Borrower’s, or such SignificantSubsidiary’s, right or ability to sell, pledge or otherwise dispose of MarginStock other than Restricted Margin Stock), or any other event that with noticeor the lapse of time, or both, would constitute such a default, under anyagreement or instrument relating to any such indebtedness for borrowed money(other than the Loans), shall occur and shall continue after the applicablegrace period, if any, specified in such agreement or instrument, if the effectof such default or event is to accelerate the maturity of such indebtedness; or(iii) any such indebtedness for borrowed money shall, by reason ofdefault, be declared to be due and 

 

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#### payable, orrequired to be prepaid, prior to the stated maturity thereof (unless suchindebtedness is declared due and payable, or required to be prepaid, solely byreason of either Borrower’s, or any of its Significant Subsidiaries’, violationof any arrangement with any Bank, or any affiliate of any Bank, in any wayrestricting such Borrower’s, or such Significant Subsidiary’s, right or abilityto sell, pledge or otherwise dispose of Margin Stock other than RestrictedMargin Stock); or

####  

#### (f)                                    (i)  EitherBorrower or any of its Significant Subsidiaries shall commence any case,proceeding or other action (A) under any existing or future law of anyjurisdiction, domestic or foreign, relating to bankruptcy, insolvency,reorganization or relief of debtors, seeking to have an order for reliefentered with respect to it, or seeking to adjudicate it a bankrupt orinsolvent, or seeking reorganization, arrangement, adjustment, winding-up,liquidation, dissolution, composition or other relief with respect to it or itsdebts, or (B) seeking appointment of a receiver, trustee, custodian orother similar official for it or for all or any substantial part of its assets,or such Borrower or any of its Significant Subsidiaries shall make a generalassignment for the benefit of its creditors; or (ii) there shall becommenced 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 suchadjudication or appointment or (B) remains undismissed, undischarged orunbonded for a period 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 under ERISAwith respect to such Plan, in the aggregate for all such Plans with respect towhich any of the foregoing shall have occurred in the immediately preceding 12consecutive months, of more than 25% of the Consolidated Net Worth of suchBorrower and in the reasonable judgment of the Required Banks, such occurrenceis reasonably expected to have a material adverse effect on the business,operations or condition (financial or otherwise) of the Borrowers; or

####  

#### (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) ifsuch event is an Event of Default specified in paragraph (f) above,automatically the Commitments shall immediately terminate and the Loanshereunder (with accrued interest thereon) and all other amounts owing underthis Agreement and the Loans shall immediately become due and payable, and (B) (1) ifsuch event is any Event of Default 

 

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specified in paragraph (a) or(e), then with the consent of the Majority Banks, the Administrative Agent may,or upon the request of the Majority Banks, the Administrative Agent shall, or (2) ifsuch Event is an Event of Default specified in paragraph (b), (c), (d), (g) or(h), then with the consent of the Required Banks, the Administrative Agent may,or upon the request of the Required Banks, the Administrative Agent shall, takeeither or both of the following actions: (i) by notice to the Borrowers, declare the Commitments to beterminated forthwith, whereupon the Commitments shall immediately terminate;and (ii) by notice of default to the Borrowers, declare the Loanshereunder (with accrued interest thereon) and all other amounts owing underthis Agreement to be due and payable forthwith, whereupon the same shallimmediately become due and payable. Except as expressly provided above in this Section, presentment, demand,protest and all other notices of any kind are hereby expressly waived withrespect to this Agreement by the Borrowers.

 

# SECTION 9                                   THE AGENTS

#  

9.1.                              Appointment.  (a)  Each Bank hereby irrevocablydesignates and appoints JPMorgan Chase Bank, N.A. as the Administrative Agentof such Bank under this Agreement, and each Bank hereby irrevocably authorizesJPMorgan Chase Bank, N.A. as the Administrative Agent for such Bank, to takesuch action on its behalf under the provisions of this Agreement and toexercise such powers and perform such duties as are expressly delegated to theAdministrative Agent by the terms of this Agreement, together with such otherpowers as are reasonably incidental thereto.

 

### (b)                                 Notwithstanding anything to thecontrary contained in this Agreement, the parties hereto hereby agree thatneither the Syndication Agent nor the Documentation Agents shall have anyrights, duties or responsibilities in such respective capacity nor shall anysuch Person have the authority to take any action hereunder in its capacity assuch.

###  

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

###  

9.2.                              Delegationof Duties.  Each Agent may executeany of its duties under this Agreement by or through agents or attorneys-in-factand shall be entitled to advice of counsel concerning all matters pertaining tosuch duties.  Each Agent shall not beresponsible for the negligence or misconduct of any agents or attorneys-in-factselected by it with reasonable care.

 

9.3.                              ExculpatoryProvisions.  Neither any Agent norany 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 anycertificate, report, statement or other document referred to or provided forin, or received by any Agent under or in connection with, this Agreement or forthe value, validity, effectiveness, genuineness, enforceability or sufficiencyof this Agreement or for any failure of the Borrowers 

 

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toperform their obligations hereunder.  NoAgent shall be under any obligation to any Bank to ascertain or to inquire asto the observance or performance of any of the agreements contained in, orconditions of, this Agreement, or to inspect the properties, books or recordsof the Borrowers.

 

9.4.                              Relianceby Agents.  Each Agent shall beentitled to rely, and shall be fully protected in relying, upon any Loan,writing, resolution, notice, consent, certificate, affidavit, letter,cablegram, telegram, facsimile, telex or teletype message, statement, order 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.  Each Agent may deem and treat the payee ofany Loan as the owner thereof for all purposes except as provided insubsections 10.5(c) and 10.5(d). Each Agent shall be fully justified in failing or refusing to take anydiscretionary action under this Agreement unless it shall first receive suchadvice or concurrence of the Majority Banks as it deems appropriate or it shallfirst be indemnified to its satisfaction by the Banks against any and allliability and expense which may be incurred by it by reason of taking orcontinuing to take any such action.  EachAgent shall in all cases be fully protected in acting, or in refraining fromacting, under this Agreement in accordance with a request of the MajorityBanks, the Required Banks or all of the Banks (if the consent of the MajorityBanks, the Required Banks or all of the Banks, respectively, is required), andsuch request and any action taken or failure to act pursuant thereto shall bebinding upon all the Banks.

 

9.5.                              Noticeof Default.  The Administrative Agentshall not be deemed to have knowledge or notice of the occurrence of anyDefault or Event of Default unless the Administrative Agent has received noticefrom a Bank or either Borrower referring to this Agreement, describing suchDefault or Event of Default and stating that such notice is a “notice ofdefault”.  In the event that theAdministrative Agent receives such a notice, the Administrative Agent shallgive notice thereof to the Banks.  TheAdministrative Agent shall take such action with respect to such Default orEvent of Default as shall be reasonably directed by the Majority Banks, theRequired Banks, or all Banks, as applicable; provided that, unless anduntil the Administrative Agent shall have received such directions, theAdministrative Agent may (but 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-Relianceon Agents and Other Banks.  Each Bankexpressly acknowledges that neither any Agent nor any of its respectiveofficers, directors, employees, agents, attorneys-in-fact or affiliates hasmade any representations or warranties to it and that no act by such Agenthereafter taken, including any review of the affairs of the Borrowers, shall bedeemed to constitute any representation or warranty by such Agent to anyBank.  Each Bank represents to each Agentthat it has, independently and without reliance upon such Agent or any otherBank, and based on such documents and information as it has deemed appropriate,made its own appraisal of and investigation into the business, operations,property, financial and other condition and creditworthiness of each Borrowerand made its own decision to make its Loans hereunder and enter into thisAgreement.  Each Bank also representsthat it will, independently and without reliance upon each Agent or any otherBank, and based on such documents and information as it shall deem appropriateat the time, continue to make its own credit analysis, 

 

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appraisalsand decisions in taking or not taking action under this Agreement, and to makesuch investigation as it deems necessary to inform itself as to the business,operations, property, financial and other condition and creditworthiness of theBorrowers.  Except for notices, reportsand other documents expressly required to be furnished to the Banks by anyAgent hereunder, such Agent shall not have any duty or responsibility toprovide any Bank with any credit or other information concerning the business,operations, property, financial and other condition or creditworthiness ofeither Borrower which may come into the possession of such Agent or any of itsofficers, directors, employees, agents, attorneys-in-fact or affiliates.

 

9.7.                              Indemnification.  The Banks agree to indemnify each Agent inits capacity as such (to the extent not reimbursed by the Borrowers and withoutlimiting the obligation of the Borrowers to do so), ratably (as reasonablydetermined by the Administrative Agent), from and against any and allliabilities, obligations, losses, damages, penalties, actions, judgments,suits, costs, expenses or disbursements of any kind whatsoever which may at anytime (including without limitation at any time following the payment of theLoans) be imposed on, incurred by or asserted against such Agent in any wayrelating to or arising out of this Agreement, or any documents contemplated byor referred to herein or the transactions contemplated hereby or any actiontaken or omitted by such Agent under or in connection with any of theforegoing; provided that no Bank shall be liable for the payment of anyportion of such liabilities, obligations, losses, damages, penalties, actions,judgments, suits, costs, expenses or disbursements resulting from such Agent’sgross negligence or wilful misconduct. The agreements in this subsection 9.7 shall survive the payment of theLoans and all other amounts payable hereunder.

 

9.8.                              Agentsin their Individual Capacities.  EachAgent and its respective affiliates may make loans to, accept deposits from andgenerally engage in any kind of business with the Borrowers as though suchAgent were not an Agent hereunder.  Withrespect to its Loans made by it, each Agent shall have the same rights andpowers under this Agreement as any Bank and may exercise the same as though itwere not an Agent, and the terms “Bank” and “Banks” shall include theAdministrative Agent in its individual capacity.

 

9.9.                              SuccessorAgents.  Each Agent may resign asAgent upon 30 days’ notice thereof to the Borrowers and the Banks.  If any Agent shall resign as Agent under thisAgreement, then the Majority Banks shall appoint from among the Banks asuccessor agent for the Banks which successor agent shall be approved by theBorrowers, whereupon such successor agent shall succeed to the rights, powersand duties of the Administrative Agent and the term “Administrative Agent”shall mean such successor agent effective upon its appointment, and the formerAgent’s rights, powers and duties as Agent shall be terminated, without anyother or further act or deed on the part of such former Agent or any of theparties to this Agreement.  After anyretiring 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.                        Amendmentsand Waivers.  With the writtenconsent of the Majority Banks, the Administrative Agent and the Borrowers may,from time to time, enter into written amendments, supplements or modificationshereto for the purpose of adding any provisions to 

 

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thisAgreement or 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 suchamendment, supplement or modification shall apply equally to each of the Banksand shall be binding upon the Borrowers, the Banks and the Agents.  In the case of any waiver, the Borrowers, theBanks and the Agents shall be restored to their former position and rightshereunder, and any Default or Event of Default waived shall be deemed to becured and not continuing; but no such waiver shall extend to any subsequent orother Default or Event of Default, or impair any right consequent thereon.  Anything contained in the foregoing to thecontrary notwithstanding, the relevant Borrower and the relevant Bank withrespect to a Negotiated Rate Loan may, from time to time, enter intoamendments, 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 uponthe respective parties hereto to be effective shall be in writing, by facsimiletransmission, by telephone confirmed in writing and, unless otherwise expresslyprovided herein, shall be deemed to have been duly given or made when deliveredby hand, or when deposited in the mail, postage prepaid, or, in the case of facsimiletransmission, when received, addressed as follows in the case of the Borrowers,the Administrative Agent, or to such address or other address as may behereafter notified by the respective parties hereto:

 

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| 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: Tony Yung  270 Park Avenue - 4th Floor  New York, New York 10017  Telephone: 212-270-0586  Facsimile: 212-270-6637        |
|                       |   |                                                                                                                                                             |
| 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.                                                                       |

 

provided that anynotice, request or demand to or upon the Administrative Agent or the Bankspursuant to subsections 2.1, 2.2, 2.5, 2.6, 2.9, 2.11, 2.20 and 9.9 shall notbe effective until received (including receipt by telephone if permittedhereby).

 

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10.3.        NoWaiver; 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 are cumulative and not exclusive of anyrights, remedies, powers and privileges provided by law.

 

10.4.        Paymentof Expenses.  (a)  The Companyagrees (i) to pay or reimburse the Administrative Agent for all itsout-of-pocket costs and expenses incurred in connection with the preparationand execution of, and any amendment, supplement or modification to, thisAgreement 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)           The Borrowers agree jointly andseverally to indemnify and hold harmless each Agent and each Bank against anyand all losses, claims, damages and liabilities (other than in connection withactions, suits and proceedings by any of the Banks against any of the otherBanks), joint or several, to which they or any of them may become subjectinsofar as such losses, claims, damages and liabilities arise out of, relate toor are based on this Agreement (including the responsibilities, duties andobligations of the Banks hereunder and their agreement to make Loans hereunder)in connection with any acquisition or proposed acquisition of any securities orassets by a Borrower or any of its Subsidiaries, and shall reimburse each suchindemnified party for any legal or other expenses reasonably incurred by it inconnection with investigating or defending any such loss, claim, damage orliability, subject to the following paragraph. This indemnity agreement shall be in addition to any liability whicheither Borrower may otherwise have.

###  

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

 

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### they may elect by written noticedelivered to the indemnified party promptly after receiving the aforesaidnotice from such indemnified party, to assume the defense thereof, with counselreasonably satisfactory at all times to such indemnified party; provided,however, that (i) if the parties against whom any loss, claim,damage or liability arises include both the indemnified party and a Borrower orany Subsidiary of a Borrower and the indemnified party shall have reasonablyconcluded that there may be legal defenses available to it or other indemnifiedparties which are different from or additional to those available to a Borroweror any Subsidiary of a Borrower and may conflict therewith, the indemnifiedparty or parties shall have the right to select one separate counsel for suchindemnified party or parties to assume such legal defenses and to otherwiseparticipate in the defense of such loss, claim, damage or liability on behalfof such indemnified party or parties and (ii) if any loss, claim, damageor liability arises out of actions brought by or for the benefit of a Borroweror any Subsidiary of a Borrower, the indemnified party or parties shall havethe right to select their counsel and to assume and direct the defense thereofand neither Borrower shall be entitled to participate therein or assume thedefense thereof.  Upon receipt of noticefrom the 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)           Notwithstanding any other provisioncontained in this subsection 10.4, (i) the Borrowers shall not be liablefor any settlement, compromise or consent to the entry of any orderadjudicating or otherwise disposing of any loss, claim, damage or liabilityeffected without their consent and (ii) after the Borrowers have assumedthe defense of any loss, claim, damage or liability under the precedingparagraph with respect to any Bank, they will not settle, compromise or consentto entry of any order adjudicating or otherwise disposing thereof (1) ifsuch settlement, compromise or order involves the payment of money damages,except if the Borrowers agree with such Bank to pay such money damages, and, ifnot simultaneously paid, to furnish such Bank with satisfactory evidence oftheir ability to pay such money damages, and (2) if such settlement,compromise or order involves any relief against such Bank, other than thepayment of money damages, except with the prior written consent of such Bank.

###  

### (e)           The agreements in this subsection10.4 shall survive repayment of the Loans and all other amounts payablehereunder.

###  

10.5.        Successorsand Assigns; Participations; Purchasing Banks.  (a)  This Agreement shall be bindingupon and inure to the benefit of the Borrowers, the Banks, the Agents and theirrespective successors and assigns, exceptthat the Borrowers maynot assign or transfer any of their rights or obligations under this Agreementwithout the prior written consent of each Bank.

 

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### (b)           Any Bank may, in the ordinary courseof its commercial banking business and in accordance with applicable law, atany time sell to one or more banks or other financial institutions (“Participants”)participating interests in the Loans, Commitments and other interests of suchBank hereunder.  In the event of any suchsale 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)           Any Bank may, in the ordinary courseof its commercial banking business and in accordance with applicable law, atany time assign to one or more banks or other financial institutions (“LoanAssignees”) any Bid Loan or Negotiated Rate Loan or portion thereof owingto such Bank, pursuant to a Loan Assignment executed by the assignor Bank andthe Loan Assignee.  Upon such execution,from and after the Transfer Effective Date specified in such Loan Assignment,the Loan Assignee shall, to the extent of the assignment provided for in suchLoan Assignment and to the extent permitted by applicable law, be deemed tohave the same rights and benefits with respect to such Bid Loans and NegotiatedRate Loans and the same obligation to share pursuant to subsection 10.6 as itwould have had if it were a Bank hereunder; provided, that unless suchLoan Assignment shall otherwise specify and a copy of such Loan Assignmentshall have been delivered to the Administrative Agent for its acceptance andrecording in the Register in accordance with subsection 10.5(f), the assignorBank shall act as collection agent for the Loan Assignee, and in the case ofBid Loans, the Administrative Agent shall pay all amounts received from therelevant Borrower which are allocable to the assigned Bid Loan directly to theassignor Bank without any further liability to the relevant Loan Assignee, and,in the case of Negotiated Rate Loans, the relevant Borrower shall pay allamounts due under the assigned Negotiated Rate Loan directly to the assignorBank without any further liability to the Loan Assignee.  At the request of any Loan Assignee, on orpromptly after the Transfer Effective Date specified in such Loan Assignment,the relevant Borrower, at its own expense, shall execute and deliver to theLoan Assignee a promissory note with respect to the Bid Loans or NegotiatedRate Loans to the order of such Loan Assignee in an amount equal to the BidLoan or Negotiated Rate Loan assigned. Such note shall be dated the Borrowing Date in respect of such Bid Loanor Negotiated Rate Loan and shall otherwise be in the form of Exhibit M; provided,however, that such Borrower shall not be required to execute and delivermore than an aggregate of two notes with respect to the Bid Loans of any Bankwith the same Interest Period at any time outstanding.  A Loan Assignee shall not, by virtue of suchLoan Assignment, become a party to this Agreement or have any rights to consentto or refrain from consenting to any amendment, waiver or other modification ofany provision of this Agreement or any related document; provided, that (i) theassignor Bank and the Loan Assignee may, in their discretion, agree betweenthemselves upon the manner in which the assignor Bank will exercise its rightsunder this Agreement and any related document, and (ii) if a copy of suchLoan Assignment shall have been delivered to the Administrative Agent for itsacceptance and recording in the Register in accordance with subsection 10.5(f),neither the principal amount of, the interest rate on, nor the maturity dateof, any Bid Loan or Negotiated Rate Loan assigned to a Loan Assignee will bemodified without written consent of such Loan Assignee.

 

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### (d)           Any Bank may, in the ordinary courseof its commercial banking business and in accordance with applicable law, sellto any Bank or any affiliate thereof and to one or more additional banks orother financial institutions (“Purchasing Banks”), all or any portion(subject to the last sentence of this subsection 10.5(d)) of its rights (whichrights may include such Bank’s rights in respect of Loans it has disbursed) andobligations under this Agreement with the prior written consent (such consentnot to be unreasonably withheld) of the Borrowers.  Such sale shall be made pursuant to aCommitment Transfer Supplement, executed by such Purchasing Bank and suchtransferor Bank (and, in the case of a Purchasing Bank that is not then a Bankor an affiliate thereof, by the Borrowers and the Administrative Agent), anddelivered to the Administrative Agent for its acceptance and recording in theRegister.  Upon such execution, delivery,acceptance and recording, from and after the Transfer Effective Date specifiedin such Commitment Transfer Supplement, (i) the Purchasing Bank thereundershall be a party hereto with respect to the interest purchased and, to theextent provided in such Commitment Transfer Supplement, have the rights andobligations of a Bank hereunder with a Commitment as set forth therein, and (ii) thetransferor Bank thereunder shall cease to have those rights and obligationsunder this Agreement to which the Purchasing Bank has succeeded (and, in thecase of a Commitment Transfer Supplement covering all or the remaining portionof a transferor Bank’s rights and obligations under this Agreement, suchtransferor Bank shall cease to be a party hereto).  Such Commitment Transfer Supplement shall bedeemed to amend this Agreement to the extent, and only to the extent, necessaryto reflect the addition of such Purchasing Bank and the resulting adjustment ofCommitments and Commitment Percentages arising from the purchase by suchPurchasing Bank of a portion of the rights and obligations of such transferorBank 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 to the contrary notwithstanding, noBank may sell any portion of its rights and obligations under this subsection10.5(d) to any bank or financial institution without the prior writtenconsent (such consent not to be unreasonably withheld) of the Borrowers if,after giving effect to such sale or at the time of such sale, as the case maybe, (i) the Commitment of either of the selling and purchasinginstitutions would be greater than $0 but less than $5,000,000, (ii) thePurchasing Bank, together with all of its affiliates, would have a CommitmentPercentage of more than 15% (or, if the Commitments shall have been terminated,such Purchasing Bank, together with all of its affiliates, would hold Loansaggregating to more than 15% in principal amount of all outstanding Loans), (iii) theCredit Rating of any Purchasing Bank shall be less than BBB+ from S&P orless than Baa1 from Moody’s or such Purchasing Bank shall have no Credit Ratingor (iv) the Purchasing Bank is not a bank, insurance company, otherfinancial institution or an Affiliate of any thereof that is engaged in making,purchasing, holding or investing in bank loans or similar extensions of creditin the ordinary course of its business.

###  

### (e)           The Administrative Agent shallmaintain at its address referred to in subsection 10.2 a copy of each LoanAssignment and each Commitment Transfer Supplement delivered to it and aregister (the “Register”) for the recordation of (i) the names andaddresses of the Banks and the Commitment of, and principal amount of the Loans(other than Negotiated Rate Loans) owing to, each Bank from time to time, and (ii) withrespect to each Loan Assignment delivered to the Administrative Agent, the nameand address of the Loan Assignee

 

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### and the principal amount of each BidLoan owing to such Loan Assignee.  Theentries in the Register shall constitute primafacie evidence ofthe accuracy of the information so recorded, and the Borrowers, theAdministrative Agent and the Banks may treat each Person whose name is recordedin the Register as the owner of the Loan recorded therein for all purposes ofthis Agreement.  The Register shall beavailable for inspection by the Company or any Bank or Loan Assignee at anyreasonable time and from time to time upon reasonable prior notice.

###  

### (f)            Upon its receipt of a LoanAssignment executed by an assignor Bank and a Loan Assignee and anAdministrative Questionnaire from the Loan Assignee if it is not then a Bank,together with payment to the Administrative Agent (by the assignor Bank or theLoan Assignee, as agreed between them) of a registration and processing fee of$3,500, the Administrative Agent shall (i) accept such Loan Assignment, (ii) recordthe information contained therein in the Register and (iii) give promptnotice of such acceptance and recordation to the assignor Bank, the LoanAssignee and the Borrowers.  Upon itsreceipt of a Commitment Transfer Supplement executed by a transferor Bank and aPurchasing Bank (and, in the case of a Purchasing Bank that is not then a Bankor an affiliate 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)           The Company authorizes each Bank todisclose to any Participant, Loan Assignee or Purchasing Bank (each, a “Transferee”)and any prospective Transferee any and all financial information in such Bank’spossession concerning the Borrowers and their Subsidiaries which has beendelivered to such Bank by or on behalf of the Borrowers pursuant to thisAgreement or in connection with such Bank’s credit evaluation of the Borrowersand their Subsidiaries prior to becoming a party to this Agreement, providedthat with respect to confidential data or information described in subsection10.7, such confidential data may be disclosed only to (i) a PurchasingBank and/or (ii) any other Transferee or prospective Transferee with theBorrowers’ prior written consent, which consent shall not be unreasonablywithheld with respect to prospective Participants, Participants, prospectiveLoan Assignees and Loan Assignees; provided, however, that suchBank shall not disclose any such confidential data or information pursuant tothis subsection 10.5(g) unless (i) it has notified the PurchasingBank or other Transferee or potential Transferee that such data or informationare confidential, such notification to be in writing if such data orinformation are disclosed in writing and orally if such data or information aredisclosed orally, and (ii) such Purchasing Bank, Transferee or potentialTransferee has agreed in writing to be bound by the provisions of subsection10.7.

###  

### (h)           If, pursuant to this subsection, anyloan participation or series of loan participations is sold or any interest inthis Agreement is transferred to any Transferee, the transferor Bank shallcause such Transferee, concurrently with the effectiveness of such transfer orthe first transfer to occur in a series of transfers between such transferorBank and such Transferee, (i) to represent to the transferor Bank (for thebenefit of the transferor Bank, the Administrative Agent and the Borrowers)either (A) that it is incorporated under the laws of the

 

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### United States, a state thereof or theDistrict of Columbia or (B) that under applicable law and treaties notaxes will be required to be withheld by the Administrative Agent, theBorrowers or the transferor Bank with respect to any payments to be made tosuch Transferee in respect of the Loans, (ii) if the Transferee is notincorporated under the laws of the United States, a state thereof or theDistrict of Columbia, (A) to furnish to the transferor Bank, theAdministrative Agent and the Borrowers, a letter in duplicate in 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 suchTransferee is entitled to receive payments under this Agreement withoutdeduction or withholding of any United States federal income taxes, or in thecase of a Bank claiming exemption under Sections 871(h) or 881(c) ofthe Code, a Certificate of Non-Bank Status together with two original copies ofan Internal Revenue Service Form W-8BEN, or successor applicable form, asthe case may be, to establish an exemption from United States backupwithholding tax, and (B) to agree (for the benefit of the transferor Bank,the Administrative Agent and the Borrowers) to provide the transferor Bank, theAdministrative Agent and the Borrowers a new letter or a new Certificate ofNon-Bank Status, if applicable, Form W-8BEN or 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 or form previouslydelivered by it, certifying in the case of a Form W-8BEN or W-8ECI thatsuch Transferee is entitled to receive payments under this Agreement withoutdeduction or withholding of any United States federal income tax, and in thecase of a Form W-8BEN establishing exemption from United States backupwithholding tax.  The AdministrativeAgent shall not be responsible for obtaining such documentation except from itsown Transferees.

###  

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

###  

### (j)            The Borrowers, upon receipt ofwritten notice from the relevant Bank, agree to issue Notes to any Bankrequiring Notes to facilitate transactions of the type described in paragraph (i) above.

###  

### (k)           Notwithstanding anything to thecontrary contained herein, any Bank (a “Granting Bank”) may grant to aspecial purpose funding vehicle (an “SPC”), identified as such inwriting from time to time by the Granting Bank to the Administrative Agent andthe Company, the option to provide to the Borrowers all or any part of any Loanthat such Granting Bank would otherwise be obligated to make to the Borrowerspursuant to this Agreement; provided that (i) nothing herein shallconstitute a commitment by any SPC to make any Loan, (ii) if an SPC electsnot to exercise such option or otherwise fails to provide all or any part ofsuch Loan, the Granting Bank shall be obligated to make such Loan pursuant tothe terms hereof.  The making of a Loanby an SPC hereunder shall utilize the Commitment of the Granting Bank to thesame extent, and as if, such Loan were made by such Granting Bank.  Each party hereto hereby agrees that no SPCshall be liable for any indemnity or similar payment obligation under thisAgreement (all liability for which shall remain with the Granting Bank).  In furtherance of the foregoing, each partyhereto hereby agrees (which agreement shall survive the termination of thisAgreement) that, prior to the date that is one year and one day after the paymentin full of all outstanding commercial paper or other senior indebtedness of anySPC, it will not institute

 

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### against, or join any other person ininstituting against, such SPC any bankruptcy, reorganization, arrangement,insolvency or liquidation proceedings under the laws of the United States orany State thereof.  In addition,notwithstanding anything to the contrary contained in this subsection 10.5(k) anySPC may (i) with notice to, but without the prior written consent of, theCompany and the Administrative Agent and without paying any processing feetherefor, assign all or a portion of its interests in any Loans to the GrantingBank or to any financial institutions (consented to by the Company andAdministrative Agent) providing liquidity and/or credit support to or for theaccount of such SPC to support the funding or maintenance of Loans and (ii) discloseon a confidential basis any non-public information relating to its Loans to anyrating agency, commercial paper dealer or provider of any surety, guarantee orcredit or liquidity enhancement to such SPC. This subsection 10.5(k) may not be amended without the writtenconsent of the SPC.

###  

10.6.        Adjustments.  Except as otherwise provided in thisAgreement, if any Bank (a “benefitted Bank”) shall at any time receiveany payment of all or part of its Committed Rate Loans,****orinterest thereon or facility fee hereunder, or receive any collateral inrespect thereof (whether voluntarily or involuntarily, by set-off, pursuant toevents or proceedings of the nature referred to in clause (e) of Section 8,or otherwise) in a greater proportion than any such payment to and collateralreceived by any other Bank, if any, in respect of such other Bank’s CommittedRate Loans, or interest thereon, or facility fee hereunder, such benefittedBank shall purchase for cash from the other Banks such portion of each suchother Bank’s Committed Rate Loans, or shall provide such other Banks with thebenefits of any such collateral, or the proceeds thereof, as shall be necessaryto cause such benefitted Bank to share the excess payment or benefits of suchcollateral or proceeds ratably with each of such other Banks; provided, however,that if all or any portion of such excess payment or benefits is thereafterrecovered from such benefitted Bank, such purchase shall be rescinded, and thepurchase price and benefits returned, to the extent of such recovery, butwithout interest.  The Borrowers agreethat each Bank so purchasing a portion of another Bank’s Committed Rate Loansmay exercise all rights of payment (including, without limitation, rights ofset-off) with respect to such portion as fully as if such Bank were the directholder of such portion.

 

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

 

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

######  

###### (ii)           as required by law, rule, regulationor official direction;

######  

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

######  

###### (iv)          to the extent permitted undersubsection 10.5; and

 

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

######  

### (b)           Each of the Agents and the Banksshall use their reasonable efforts to ensure that any confidential data orinformation received by them from the Borrowers pursuant to this Agreementwhich is disclosed to employees of such Agent or Bank (as the case may be) isso disclosed only to the extent necessary for purpose of the administration ofthis Agreement and, in all cases, on the condition that such information anddata shall be kept confidential except for such purpose.

###  

### (c)           The provisions of this subsection10.7 shall survive the payment in full of all amounts payable hereunder and thetermination of this Agreement.

###  

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

 

10.9.        **GOVERNING LAW.  THIS AGREEMENT AND THE RIGHTSAND OBLIGATIONS 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 andService of Process.  All judicialproceedings brought against the Borrowers with respect to this Agreement may bebrought in any state or federal court of competent jurisdiction in the State ofNew York, and, by execution and delivery of this Agreement, the Borrowersaccept, for themselves and in connection with their properties, generally andunconditionally, the non-exclusive jurisdiction of the aforesaid courts and irrevocablyagree to be bound by any final judgment rendered thereby in connection withthis Agreement from which no appeal has been taken or is available.  The Borrowers irrevocably agree that allprocess in any such proceedings in any such court may be effected by mailing acopy thereof by registered or certified mail (or any substantially similar formof mail), postage prepaid, to them at their addresses set forth in subsection10.2 or at such other address of which the Administrative Agent shall have beennotified pursuant thereto, such service being hereby acknowledged by theBorrowers to be effective and binding service in every respect.  Each of the Borrowers, the Agents and theBanks irrevocably waives any objection, including without limitation, any objectionto the laying of venue or based on the grounds of forum non conveniens which itmay now or hereafter have to the bringing of any such action or proceeding inany such jurisdiction.  Nothing hereinshall affect the right to serve process in any other manner permitted by law orshall limit the right of any Agent or any Bank to bring proceedings against theBorrowers in the courts of any other jurisdiction.

 

## 10.11.      USAPATRIOT Act.

##  

Each Bank hereby notifies the Borrowers that pursuant to the requirementsof the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,2001)) (the “Act”), it is required to obtain, verify and recordinformation that identifies the Borrowers, which

 

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informationincludes the name and address of the Borrowers and other information that willallow such Bank to identify the Borrowers in accordance with the Act.  The Borrowers shall promptly provide suchinformation upon request by any Bank.

 

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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 2009 364-Day Credit Agreement]

 

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

 

[Signature Page to 2009 364-Day Credit Agreement]

 

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

 

[Signature Page to 2009 364-Day Credit Agreement]

 

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

 

[Signature Page to 2009 364-Day Credit Agreement]

 

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|   | CREDIT SUISSE, CAYMAN ISLANDS BRANCH,  |
|--------|----------------------------------------|
|   | as a Documentation Agent and as a Bank |
|   |                                   |
|   |                                   |
|   | By:                                    |   |
|   |                                   | Title: |

 

[Signature Page to 2009 364-Day Credit Agreement]

 

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

 

[Signature Page to 2009 364-Day Credit Agreement]

 

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

 

[Signature Page to 2009 364-Day Credit Agreement]

 

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SCHEDULE I

 

TERMS OF SUBORDINATION

 

“Senior Indebtedness” means the principal of(and premium, if any) and unpaid interest 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, whetheroutstanding on the date hereof or hereafter created, incurred, assumed orguaranteed, for money borrowed, unless in the instrument creating or evidencingthe same or pursuant to which the same is outstanding it is provided that suchindebtedness is not senior or prior in right of payment to the Securities, and (b) renewals,extensions, modifications and refundings of any such indebtedness.

 

SUBORDINATION

 

Section 1. Agreement to Subordinate.

 

The Capital Corporation, for itself, its 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 and facility fee due onthe Senior Indebtedness before the holders of the Securities are entitled toreceive any payment upon the principal of (or premium, if any) or interest onindebtedness evidenced by the Securities; and

 

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(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 their representativeor representatives or to the trustee or trustees under any indenture underwhich any instruments evidencing any of such Senior Indebtedness may have beenissued, ratably according to the aggregate amounts remaining unpaid on accountof the principal of (and premium, if any) and interest, facility fee on theSenior Indebtedness held or represented by each holder of Senior Indebtedness,to the extent necessary to make payment in full of all Senior Indebtednessremaining unpaid, after giving effect to any concurrent payment or distributionto 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

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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

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SCHEDULE II

 

COMMITMENTS

 
| **Bank**                               | ** ** | **Commitment** | ** **  |
|----------------------------------------|------------|----------------|-------------|
| JPMorgan Chase Bank, N.A.              |       | $              | 90,000,000  |   |
| Bank of America, N.A.                  |       | $              | 90,000,000  |   |
| Citibank, N.A.                         |       | $              | 70,000,000  |   |
| Credit Suisse, Cayman Islands Branch   |       | $              | 70,000,000  |   |
| Deutsche Bank AG New York Branch       |       | $              | 70,000,000  |   |
| HSBC Bank USA, National Association    |       | $              | 50,000,000  |   |
| Royal Bank of Canada                   |       | $              | 50,000,000  |   |
| Toronto Dominion (New York) LLC        |       | $              | 50,000,000  |   |
| Wells Fargo Bank, National Association |       | $              | 50,000,000  |   |
| Barclays Bank PLC                      |       | $              | 25,000,000  |   |
| BNP Paribas                            |       | $              | 25,000,000  |   |
| The Northern Trust Company             |       | $              | 20,000,000  |   |
| Banco Bilbao Vizcaya Argentaria, S.A.  |       | $              | 15,000,000  |   |
| The Bank of Tokyo-Mitsubishi UFJ, Ltd. |       | $              | 15,000,000  |   |
| Westpac Banking Corporation            |       | $              | 15,000,000  |   |
| Banco Santander, S.A., New York Branch |       | $              | 10,000,000  |   |
| Fifth Third Bank                       |       | $              | 10,000,000  |   |
| The Bank of New York Mellon            |       | $              | 10,000,000  |   |
| U.S. Bank, N.A.                        |       | $              | 10,000,000  |   |
| Nordea Bank Finland Plc                |       | $              | 5,000,000   |   |
| TOTAL                                  |       | $              | 750,000,000 |   |

 

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SCHEDULE III

 

ADDRESSES FOR NOTICES

 

**JPMorganChase Bank, N.A.**Attention:  Tony Yung270 Park Avenue - 4th Floor               New York, New York 10017Telephone:  (212) 270-0586Facsimile:  (212) 270-6637

 

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EXHIBIT A

 

[FORM OF BORROWING NOTICE]

 

                 , 20     

 

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

1111 Fannin Street, 10th Floor

Houston, Texas 77002

Attention: Talitha Humes

 

Ladies and Gentlemen:

 

Pursuant to subsection 2.1(c) of the$750,000,000 364-Day Credit Agreement, dated as of March 3, 2009, amongDEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks partiesthereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A.,CREDIT SUISSE, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORK BRANCH, asDocumentation Agents, and BANK OF AMERICA, N.A., as Syndication Agent (as thesame may be amended, supplemented or otherwise modified from time to time, the “CreditAgreement”), the undersigned hereby requests that the following CommittedRate Loans be made on                     ,20      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.                                                                                                        |   | $      |   |   |

 

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A-2

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

 

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

 

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

 

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EXHIBIT B

 

[FORM OF BID LOAN REQUEST]

 

                    , 20     

 

JPMorgan Chase Bank, N.A., 

asAdministrative Agent under the Credit Agreement referred to below 

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

 

Ladies and Gentlemen:

 

Reference is made to the $750,000,000 364-Day CreditAgreement, dated as of March 3, 2009, among DEERE & COMPANY, JOHNDEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGAN CHASE BANK,N.A., as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE, CAYMAN ISLANDSBRANCH, and DEUTSCHE BANK AG NEW YORK BRANCH, as Documentation Agents, and BANKOF AMERICA, N.A., as Syndication Agent (as the same may be amended,supplemented or otherwise 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] Bid LoanRequest pursuant to subsection 2.2 of the Credit Agreement requesting quotesfor the following Bid Loans:

 
| Aggregate Principal Amount |   | $            |                                                                                                                                            |   | $      |   |   | $ |   |   |
|----------------------------|--------|--------------|-------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------|--------|---|--------|--------|
| Borrowing Date             |   |         |                                                                                                                                            |   |   |   |   |
| Interest Period            |   |         |                                                                                                                                            |   |   |   |   |
| Maturity Period            |   |         |                                                                                                                                            |   |   |   |   |
| Interest Payment Dates     |   |         |                                                                                                                                            |   |   |   |   |
| Interest Rate Basis        |   | 360 day year |                                                                                                                                            |   |   |   |   |
|                       |   |         |                                                                                                                                            |   |   |   |   |
|                       |   | NOTE:        | THE AGGREGATE PRINCIPAL  AMOUNTS APPEARING ABOVE MUST BE IN THE AGGREGATE AT LEAST EQUAL TO  $25,000,000 AND IN A WHOLE MULTIPLE OF $5,000,000. |   |
|                            |        |              |                                                                                                                                                 |        |        |        |        |   |        |        |  |

 

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B-2

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

 

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| Note: | Pursuant  to the Credit Agreement, a Bid Loan Request may be transmitted by facsimile  transmission, or by telephone, immediately confirmed by facsimile  transmission. In any case, a Bid Loan Request shall contain the information  specified in the second paragraph of this form. |
|-------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

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EXHIBIT C

 

[FORM OF BID LOAN OFFER]

 

                    ,20     

 

JPMorgan Chase Bank, N.A., as Administrative Agentunder the Credit Agreement referred to below

1111 Fannin Street, 10th Floor

Houston, Texas  77002

Attention: Talitha Humes

 

Ladies and Gentlemen:

 

Reference is made to the $750,000,000 364-DayCredit Agreement, dated as of March 3, 2009, among DEERE &COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGANCHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE,CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORK BRANCH, as DocumentationAgents, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may beamended, supplemented or otherwise modified from time to time, the “CreditAgreement”).  Terms defined in theCredit Agreement are used 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:                                    ,20     

 

Aggregate Maximum Amount:  $             

 

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C-2

 
| **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: |

 

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*  If Index Rate Bid Loan, insert percentageabove or below Eurodollar Rate.

 

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EXHIBIT D

 

[FORM OF BID LOAN CONFIRMATION]

 

                            ,20     

 

JPMorgan Chase Bank, N.A., as AdministrativeAgent 

under the Credit Agreement referred 

to below

1111 Fannin Street, 10th Floor

Houston, Texas  77002

Attention: Talitha Humes

 

Ladies and Gentlemen:

 

Reference is made to the $750,000,000 364-DayCredit Agreement, dated as of March 3, 2009, among DEERE &COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGANCHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE,CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORK BRANCH, as DocumentationAgents, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may beamended, supplemented or otherwise modified from time to time, the “CreditAgreement”).  Terms defined in theCredit Agreement are used 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                            ,20      [Borrowing Date] under said subsection2.2 in the (respective) amount(s) set forth on the attached list of BidLoans offered.

 
|   | 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].

 

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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 CreditAgreement described below (in such capacity, the “Administrative Agent”).

 

W I T N E S S E T H :

 

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 3, 2009 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., CREDIT SUISSE, CAYMANISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORK BRANCH, as Documentation Agents,and BANK OF AMERICA, N.A., as Syndication Agent (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); 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, documentsand 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

 

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E-2

 

Business Days prior to the due date of anypayment to the Loan Assignee, the Loan Assignee hereby instructs theAdministrative Agent to pay all such amounts payable to it pursuant to theprovision of subparagraph (a) of this paragraph 2 in accordance with suchpayment instructions.  If Item 6 ofSchedule I hereto does not contain payment instructions for the Loan Assignee(or a copy hereof is not delivered to the Administrative Agent as aforesaid),the Assignor Bank and the Loan Assignee agree that, notwithstanding theprovisions of subparagraph (a) of this paragraph 2, the Assignor Bank ishereby appointed by the Loan Assignee as its collection agent to receive fromthe Administrative Agent, for and on behalf of and for the account of the LoanAssignee, all amounts payable to or for the account of the Loan Assignee underthe Loan; the Assignor Bank will immediately pay over to the Loan Assignee anysuch amounts received by it, in like 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.             The Loan Assignee will on, or priorto the Transfer Effective Date, (i) represent to the Assignor Bank (forthe benefit of the Assignor Bank, the Administrative Agent and the Borrowers)either (A) that it is incorporated under the laws of the United States, astate thereof, or the District of Columbia or (B) that the underapplicable law and treaties no taxes will 

 

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E-3

 

be required to be withheld by theAdministrative Agent, the Borrowers or the Assignor Bank with respect to anypayments to be made to such Loan Assignee in respect of the Loans, (ii) ifthe Loan Assignee is not incorporated under the laws of the United States, astate thereof, or the District of Columbia, (A) furnish to the AssignorBank, the Administrative Agent and the Borrowers, on or prior to the TransferEffective Date, a letter in duplicate in the form of Exhibit J or Exhibit K,as appropriate, to the Credit Agreement and two duly completed copies of eitherU.S. Internal Revenue Service Form W-8BEN or U.S. Internal Revenue ServiceForm W-8ECI or successor applicable form, as the case may be (wherein theLoan Assignee claims entitlement to complete exemption from U.S. federalwithholding tax on all interest payments under the Loan either because oftreaty benefits or under applicable law), or in the case of a Loan Assigneethat is claiming exemption under Sections 871(h) or 881(c) of theCode, a Certificate of Non-Bank Status together with two original copies ofU.S. Internal Revenue Service Form W-8BEN or successor applicable form (whereinthe Loan Assignee claims entitlement to complete exemption from U.S. federalbackup withholding tax on all interest payments under the Loan) and (B) agreeto provide, to the extent it may lawfully do so, to the Assignor Bank, theAdministrative Agent and the Borrowers a new Form W-8BEN or Form W-8ECIor successor applicable form or other manner of certification on or before theexpiration or obsolescence of, or after the occurrence of any event requiring achange in, the most recent letter and form previously delivered by it,certifying in the case of a Form W-8BEN or W-8ECI that such Loan Assigneeis entitled to receive payments in respect of the Loan without deduction orwithholding of any United States federal income tax, and in the case of a Form W-8BENestablishing exemption from United States backup withholding tax.

 

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.

 

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SCHEDULE ITO LOANASSIGNMENT

 
| 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 ofthe date set forth in Item 1 of Schedule I hereto, among the Transferor Bankset forth in Item 2 of Schedule I hereto (the “Transferor Bank”), eachPurchasing Bank set forth in Item 3 of Schedule I hereto (each, a “PurchasingBank”), [DEERE & COMPANY, a Delaware corporation (the “Company”),JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “CapitalCorporation”)], and JPMORGAN CHASE BANK, N.A., as administrative agent forthe Banks under the Credit Agreement described below (in such capacity, the “AdministrativeAgent”).

 

W I T N E S S E T H :

 

WHEREAS, this Commitment Transfer Supplementis being executed and delivered in accordance with subsection 10.5(d) ofthe $750,000,000 364-Day Credit Agreement, dated as of March 3, 2009,among the Company, the Capital Corporation, the Transferor Bank and the otherBanks party thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent,CITIBANK, N.A., CREDIT SUISSE, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEWYORK BRANCH, as Documentation Agents, and BANK OF AMERICA, N.A., as SyndicationAgent (as the same may be amended, supplemented or otherwise modified from timeto time, the “Credit Agreement”; terms defined therein being used hereinas therein defined);

 

WHEREAS, each Purchasing Bank (if it is notalready a Bank party to the Credit Agreement) wishes to become a Bank party tothe Credit 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 herebyagree as follows:

 

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

 

2.             The Transferor Bank acknowledgesreceipt from each Purchasing Bank of an amount equal to the purchase price, asagreed between the Transferor Bank and such Purchasing Bank (the “PurchasePrice”), of the portion being purchased by such Purchasing Bank (suchPurchasing Bank’s “Purchased Percentage”) of the outstanding Commitmentof such Transferor Bank and/or Committed Rate Loans and other amounts owing tothe Transferor Bank under the Credit Agreement (other than any Bid Loans andNegotiated Rate Loans owing to the Transferor Bank).  The Transferor Bank hereby irrevocably sells,assigns and transfers to each Purchasing Bank, without recourse, representationor warranty, and each Purchasing Bank hereby irrevocably purchases, takes andassumes from the Transferor Bank, such Purchasing

 

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F-2

 

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 arrangementswith each Purchasing Bank with respect to (i) the portion, if any, to bepaid, and the date or dates for payment, by the Transferor Bank to suchPurchasing Bank of any fees heretofore received by the Transferor Bank pursuantto the Credit Agreement prior to the Transfer Effective Date and (ii) theportion, if any, to be paid, and the date or dates for payment, by suchPurchasing Bank to the Transferor Bank of fees or interest received by suchPurchasing Bank pursuant to the Credit Agreement from and after the TransferEffective Date.

 

4.             (a)  From and after theTransfer Effective Date, principal, interest, fees and other amounts that wouldotherwise be payable to or for the account of the Transferor Bank pursuant tothe Credit Agreement and the Committed Rate Loans (other than any Bid Loans andNegotiated Rate Loans owing to the Transferor Bank) shall, instead, be payableto or for the account of the Transferor Bank and the Purchasing Banks, as thecase may be, in accordance with their respective interests as reflected in thisCommitment Transfer Supplement, whether such amounts have accrued prior to theTransfer Effective 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 TransferEffective Date specified in this Commitment Transfer Supplement, the PurchasingBank and the Administrative Agent, on behalf of such Purchasing Bank, shallopen and maintain in the name of each Borrower a Loan Account with respect tosuch Purchasing Bank’s Committed Rate Loans and Bid Loans to such Borrower.

 

6.             Concurrently with the execution anddelivery hereof, the Administrative Agent will, at the expense of theTransferor Bank, provide to each Purchasing Bank (if it is not already a Bankparty to the Credit Agreement) conformed copies of all documents delivered tothe Administrative Agent on the Closing Date in satisfaction of the conditionsprecedent set forth in the Credit Agreement.

 

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

 

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F-3

 

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 thisCommitment Transfer Supplement, the Transferor Bank and each Purchasing Bankconfirm to and agree with each other and the Administrative Agent and the Banksas follows:  (i) other than therepresentation and warranty that it is the legal and beneficial owner of theinterest being assigned hereby free and clear of any adverse claim, theTransferor Bank makes no representation or warranty and assumes noresponsibility with respect to any statements, warranties or representationsmade in or in connection with the Credit Agreement or any other instrument ordocument furnished pursuant thereto or the execution, legality, validity,enforceability, genuineness, sufficiency or value of the Credit Agreement, theCommitted Rate Loans or any other instrument or document furnished pursuantthereto; (ii) the Transferor Bank makes no representation or warranty andassumes no responsibility with respect to the financial condition of theCompany or the Capital Corporation or the performance or observance by theCompany or the Capital Corporation of any of its obligations under the CreditAgreement or any other instrument or document furnished pursuant thereto; (iii) eachPurchasing Bank confirms that it has received a copy of the Credit Agreement,together with copies of the financial statements referred to in subsection 3.1of the Credit Agreement, the financial statements delivered pursuant tosubsection 5.1 of the Credit Agreement, if any, and such other documents andinformation as it has deemed appropriate to make its own credit analysis anddecision to enter into this Commitment Transfer Supplement; (iv) eachPurchasing Bank will, independently and without reliance upon theAdministrative Agent, the Transferor Bank or any other Bank and based on suchdocuments and information as it shall deem appropriate at the time, continue tomake its own credit decisions in taking or not taking action under the CreditAgreement; (v) each Purchasing Bank 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 reasonably incidentalthereto, all in accordance 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.             The Purchasing Bank will on orprior to the Transfer Effective Date (i) represent to the Transferor Bank(for the benefit of the Transferor Bank, the Administrative Agent and theBorrowers) either (A) that it is incorporated under the laws of the UnitedStates, a state thereof or the District of Columbia, or (B) that underapplicable law and treaties no taxes will be required to be withheld by theTransferor Bank, Administrative Agent or the Borrowers with respect to anypayments to be made to the Purchasing Bank in respect of the Loans, (ii) ifthe Purchasing Bank is not incorporated under the laws of the United States, astate thereof or the District of Columbia, (A) furnish to the TransferorBank, the Administrative Agent and the Borrowers, on or prior to the TransferEffective Date, a letter in duplicate in the form of Exhibit J or Exhibit K,as appropriate, to the Credit Agreement and two duly completed copies of eitherU.S. Internal Revenue Service Form W-8BEN or U.S. Internal Revenue ServiceForm W-8ECI or successor applicable form, as the case may be (wherein thePurchasing Bank claims entitlement to complete exemption from U.S. federalwithholding tax on all interest payments in respect of the Loans), or in thecase of a Purchasing Bank claiming exemption under Sections 871(h) or 881(c) ofthe Code, a Certificate of Non-Bank Status together with two original copies ofU.S. Internal Revenue Service Form W-8BEN or successor applicable form(wherein the 

 

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F-4

 

Purchasing Bank claims entitlement tocomplete exemption from U.S. federal backup withholding on all interestpayments under the Loan) and (B) agrees, to the extent it may lawfully doso, to provide the Transferor Bank, the Administrative Agent and the Borrowersa new Form W-8BEN or Form W-8ECI or successor applicable form orother manner of certification on or before the expiration or obsolescence of,or after the occurrence of any event requiring a change in, the most recentletter and form previously delivered by it, certifying the case of a Form W-8BENor W-8ECI that such Purchasing Bank is entitled to receive payments in respectof the Loan without deduction or withholding of any United States federalincome tax, and in the case of a Form W-8BEN establishing exemption fromUnited States backup withholding tax.

 

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

 

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

 

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

 

IN WITNESS WHEREOF, the parties hereto havecaused this Commitment Transfer Supplement to be executed by their respectiveduly authorized officers on Schedule I hereto as of the date set forth in Item1 of Schedule I hereto.

 

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SCHEDULE ITOCOMMITMENTTRANSFERSUPPLEMENT

 

COMPLETION OF INFORMATION AND

SIGNATURES FOR COMMITMENT

TRANSFERSUPPLEMENT

 
| 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: |
|        |        |                                               |        |                                                                                                                                  |  |  |

 

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I-2

 

[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:   |   |

 

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1              Tothe extent such consent is required by Section 10.5 of the CreditAgreement.

 

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SCHEDULE IITO COMMITMENTTRANSFERSUPPLEMENT

 

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]

 

[Closing Date]

 

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 3, 2009 (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., CREDIT SUISSE, CAYMANISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORK BRANCH, as Documentation Agents,and BANK OF AMERICA, N.A., as Syndication Agent.  Terms defined in the Credit Agreement areused herein as therein defined.

 

I am General Counsel of the Company and haveacted as 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 Ihave examined or caused to have examined:

 

1.                                       TheCredit Agreement;

 

2.                                       Thedocuments furnished by each of the Borrowers pursuant to Section 4 of theCredit Agreement;

 

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

 

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

 

5.                                       Certificatesof the Secretary of State of Delaware, each dated a recent date, attesting tothe continued corporate existence and good standing of the Borrowers in thatState.

 

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G-2

 

In addition, I have reviewed or caused tohave reviewed such of the corporate proceedings of the Borrowers, and haveexamined or caused to have examined such documents, corporate records, andother instruments relating to the organization of the Borrowers and theirrespective Subsidiaries and such other agreements and instruments to which theBorrowers and their respective Subsidiaries are parties, as I considernecessary as a basis for the opinions hereinafter expressed.  I have assumed the due execution anddelivery, pursuant to due authorization, of the Credit Agreement by the Banks,the Administrative Agent, the Syndication Agent and the Documentation Agents,and the authenticity of all documents submitted to me as originals and theconformity to the original documents of all documents submitted to me ascertified, conformed or photostatic copies.

 

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

 

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

 

1.                                       EachBorrower is a corporation duly organized, validly existing and in good standingunder the laws of the State of Delaware and has the corporate power andauthority to carry on its business as now being conducted and to own itsproperties.

 

2.                                       Theexecution, delivery and performance by each Borrower of the Credit Agreementare within such Borrower’s corporate powers, have been duly authorized by allnecessary corporate action, and do not (i) contravene, or constitute adefault under the 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.                                       Thereis no pending 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.

 

Very truly yours,

 

----

 

G-3

 

James R. Jenkins

 

----

 

EXHIBIT H

 

[FORM OF OPINION OF SPECIAL NEW YORKCOUNSELTO THE BORROWERS]

 

[ClosingDate]

 

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

 

Deere &CompanyJohn Deere Capital Corporation

 

Ladies and Gentlemen:

 

We have acted as New York counsel to DEERE &COMPANY, a Delaware corporation (the “Company”) and JOHN DEERE CAPITALCORPORATION, a Delaware corporation (the “Capital Corporation”, the Company andthe Capital Corporation being referred to herein as the “Borrowers”), inconnection with the $750,000,000 364-Day Credit Agreement, dated as of March 3,2009 (the “Credit Agreement”), among the Borrowers, the Banks parties thereto,JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDITSUISSE, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORK BRANCH, asDocumentation Agents, and BANK OF AMERICA, N.A., as Syndication Agent.  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)                              Thegenuineness of all signatures.

 

(B)                                Theauthenticity of the originals of the documents submitted to us.

 

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

 

(D)                               Thatthe Credit Agreement is the legal, valid and binding obligation of each partythereto, other than the Borrowers, enforceable against each such party inaccordance with its terms.

 

(E)                                 That:

 

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H-2

 

(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 thevalidity of the foregoing assumptions.

 

“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 andsubject to the qualifications set forth below, we are of the opinion that theCredit Agreement is the legal, valid and binding obligation of each Borrower,enforceable against each Borrower in accordance with its terms.

 

----

 

H-3

 

Our opinionexpressed above is subject to the following qualifications:

 

##### (a)   Our opinion is subject to theeffect of any applicable bankruptcy, insolvency, reorganization, moratorium orsimilar laws affecting creditors’ rights generally (including withoutlimitation all laws relating to fraudulent transfers).

#####  

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

#####  

##### (c)   Weexpress no opinion with respect to the enforceability of indemnificationprovisions, or of release or exculpation provisions, contained in the CreditAgreement to the extent that enforcement thereof is contrary to public policyregarding the indemnification against or release or exculpation of criminalviolations, intentional harm or violations of securities laws.

#####  

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

#####  

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

#####  

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

#####  

##### (g)   Our opinion is limited toGenerally 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 opinionletter is rendered to you in connection with the transactions contemplated bythe Credit Agreement.  This opinionletter may not be relied upon by you or any person entitled to rely on thisopinion pursuant to the preceding paragraph for any other purpose without ourprior written 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 

 

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H-4

 

development orcircumstance 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 |

 

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EXHIBIT I

 

[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 3, 2009,among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, theBanks parties thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent,CITIBANK, N.A., CREDIT SUISSE, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEWYORK BRANCH, as Documentation Agents, and BANK OF AMERICA, N.A., as SyndicationAgent (as the same may be amended,supplemented or otherwise modified from time to time, the “Credit Agreement”).  Terms defined in the Credit Agreement areused 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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EXHIBIT J

 

[FORM OF W-8BEN TAX LETTER]

 

[To be sent in DUPLICATE andaccompaniedby TWO executed copies of Form W-8BEN ofthe Internal Revenue Service]

 

[Bank’s Letterhead]

 

                               ,20     

 

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 Credit Agreement                |
|--------|--------|-------------------------------------------------------|
|   |   | dated as of  March 3, 2009 with Deere & |
|   |   | Company and  John Deere Capital Corporation           |

 

Ladies and Gentlemen:

 

In connection with the $750,000,000 364-DayCredit Agreement, dated as of March 3, 2009, among DEERE &COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGANCHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE CAYMANISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORK BRANCH, as Documentation Agents,and BANK OF AMERICA, N.A., as Syndication Agent, we hereby represent andwarrant that [name of Bank, address] is a [name of Country] corporation and iscurrently exempt from any U.S. federal withholding tax on payments to it fromU.S. sources by virtue of compliance with the provisions of the Income TaxConvention between the United States and [name of Country] signed [date], [asamended].  Our fiscal year is the twelvemonths 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.

 

----

 

J-2

 

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., as Administrative Agent

 

----

 

EXHIBIT K

 

[FORM OF W-8ECI TAXLETTER]

 

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

 

[Bank’s Letterhead]

 

                     ,20     

 

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-DayCredit Agreementdated as of March 3, 2009 with Deere &Company and John Deere Capital Corporation

 

Ladies and Gentlemen:

 

In connection with the above $750,000,000364-Day Credit Agreement, dated as of March 3, 2009, among DEERE &COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGANCHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE,CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORK BRANCH, as DocumentationAgents, and BANK OF AMERICA, N.A., as Syndication Agent, we hereby representand warrant that [name of Bank, address] is a [corporation] and is entitled toexemption from U.S. federal withholding tax on payments to it under theAgreement by virtue of Section 1441(c)(1) of the Internal RevenueCode of the United States of America and Treasury Regulation Section 1.1441-4(a) thereunder.

 

----

 

K-2

 

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

 

----

 

EXHIBIT L

 

[FORM OF AGREEMENT]

 

THIS AGREEMENT, dated as of           ,20      (“Agreement”), among Deere &Company (the “Company”), John Deere Capital Corporation (the “CapitalCorporation”),                         (“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., CREDIT SUISSE, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORKBRANCH, as Documentation Agents, and BANK OF AMERICA, N.A., as SyndicationAgent, are parties to the $750,000,000 364-Day Credit Agreement, dated as of March 3,2009 (as the same may have been or may hereafter be amended, supplemented orotherwise modified, the “Credit Agreement”; terms defined therein beingused 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, the expiration of all or a portion of the Commitmentspursuant to subsection 2.16(b) of the Credit Agreement or upon aDefaulting Bank becoming a Cancelled Bank, and the execution of an agreement insubstantially 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**          | ** ** |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|--------------------------|------------|
| **Principal Amount**                                                                                                                                                                       | ** ** | **Interest Period** | ** ** |
|                                                                                                                                                                                            |       |                     |       |
| I                              Unused  Portion |       | N/A                      |       |
|                                                                                                                                                                                            |       |                     |       |
| II                          Committed  Rate Loans                  |       |                     |       |
|                                                                                                                                                                                            |       |                     |       |
| Eurodollar Loans                                                                                                                                                                                |       |                     |       |
|                                                                                                                                                                                            |       |                     |       |
| 1                                                                                                                                                                                               |       |                     |       |
| 2                                                                                                                                                                                               |       |                     |       |
| 3                                                                                                                                                                                               |       |                     |       |

 

----

 

L-2

 
| ABR Loans                                                                                                                                              |   | N/A    |   |
|--------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------|
|                                                                                                                                                   |   |   |   |
| III                      Bid Loans            |   |   |   |
|                                                                                                                                                   |   |   |   |
| 1                                                                                                                                                      |   |   |   |
| 2                                                                                                                                                      |   |   |   |
| 3                                                                                                                                                      |   |   |   |
|                                                                                                                                                   |   |   |   |
| IV                      Negotiated Rate 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, _% (suchpercentage 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  appropriate for New or Existing Banks.                                                                                            |
|--------|---------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                  |
| **     | Insert amount equal to sum of New Bank’s existing Commitment, if any,  plus New Bank’s Percentage of Cancelled Commitments. |

 

----

 

L-3

 

therewith, theBorrowers, the Administrative Agent and the New Bank hereby agree as follows***:

 

     (i)                                              forpurposes of determining such New Bank’s pro rata share of each Committed RateLoan borrowing advanced on or after the date hereof such Bank’s Commitmentshall be equal to $[same as above];

 

     (ii)                                           theunused and available portion of such New Bank’s Commitment shall be deemedutilized by its Percentage of the Committed Rate Loans made by the CancelledBanks and listed in the third recital hereof. In furtherance thereof, the unused and available portion of such NewBank’s Commitment shall, on the earlier of (x) the last day of eachInterest Period specified for each outstanding Committed Rate Loan in the thirdrecital hereof (and the payment in full to the Cancelled Banks of the principalthereof and accrued interest thereon) and (y) the prepayment of theprincipal of such Loans together with accrued interest thereon, automaticallyand without any further action by any party increase by an amount equal to theNew Bank’s Percentage of such 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 Interest Period for each outstandingEurodollar Loan, automatically and without any further action by eitherBorrower, the New Bank shall disburse to each Borrower in immediately availablefunds such amounts as shall be necessary so that the ratio which each Bank’soutstanding Eurodollar Loans, bears to all of the outstanding Eurodollar Loans,equals the ratio which each Bank’s Commitment (determined, for the New Bank, inaccordance with clause (i) hereof) bears to all of the Commitments(determined, for the New Bank, in accordance with the immediately foregoingparenthetical);]

 

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

 

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

 

3.                                       Representationand Warranty of Borrowers.  TheBorrowers hereby represent and warrant that after giving effect to theprovisions of paragraph 2 hereof the aggregate principal amount of theCommitments of all Banks (including, without limitation, the 

 

----

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

 

----

 

L-4

 

Commitment ofthe New Bank but excluding the cancelled or expired portion of the Commitmentsof the Cancelled Banks) under the Credit Agreement do not exceed the aggregateprincipal amount of the Commitments in effect immediately prior to thecancellation referred to in 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.

 

----

| * | Use for non-Existing Banks. |
|---|-----------------------------|

 

----

 

L-5

 

IN WITNESSWHEREOF, the parties have caused this Agreement to be executed and delivered asof the day and year first above written.

 
|   | DEERE &  COMPANY       |
|--------|---------------------------------|
|   |                            |
|   |                            |
|   | By:                             |   |
|   |                            | Title: |
|   |                            |
|   |                            |
|   | JOHN DEERE  CAPITAL CORPORATION |
|   |                            |
|   |                            |
|   | By:                             |   |
|   |                            | Title: |
|   |                            |
|   |                            |
|   | [NAME OF NEW  BANK]             |
|   |                            |
|   |                            |
|   | By:                             |   |
|   |                            | Title: |
|   |                            |
|   | [Address]                       |
|   | Telephone:                      |
|   | Facsimile:                      |
|   |                            |
|   |                            |
|   | JPMORGAN  CHASE BANK, N.A., as  |
|   | Administrative Agent            |
|   |                            |
|   |                            |
|   | By:                             |   |
|   |                            | Title: |

 

----

 

EXHIBIT M

 

[FORM OF BID LOAN ORNEGOTIATED RATE LOAN NOTE]

 

PROMISSORY NOTE

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

                     ,20     

 

FOR VALUE RECEIVED, the undersigned, [DEERE & COMPANY] [JOHNDEERE CAPITAL CORPORATION], a Delaware corporation (the “Borrower”),hereby promises to pay on [insert maturity date or dates] to the order of                                 or registered assigns (the “Bank”) at the office of [JPMorgan ChaseBank, N.A. located at 270 Park Avenue, New York, New York 10017 — for Bid LoanNote] [Name and address of Bank — for Negotiated Rate Loan Note], in lawfulmoney of the United States of America and in immediately available funds, theprincipal sum of                             DOLLARS($                        ).  The undersigned further agrees to payinterest in like money at such office on the unpaid principal amount hereoffrom time to time from the date hereof [at the rate of      % per annum — for Bid Loan Note] [specifyrate for Negotiated Rate Loan Note] (calculated on the basis of a year of 360days and actual days elapsed) until the due date hereof (whether at the statedmaturity, by acceleration, or otherwise) and thereafter at the rates determinedor agreed in accordance with subsection 2.2(e) of the $750,000,000 364-DayCredit Agreement, dated as of March 3, 2009 (the “Credit Agreement”),among the Borrower, [Deere & Company] [John Deere CapitalCorporation], the Bank, the other financial institutions parties thereto,JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDITSUISSE, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORK BRANCH, asDocumentation Agents, and BANK OF AMERICA, N.A., as Syndication Agent.  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: |

 

----

 

EXHIBIT N

 

FORM OFNEW BANK SUPPLEMENT

 

SUPPLEMENT, dated                   , to the $750,000,000 364-Day Credit Agreement(as in effect on the date hereof, the “Credit Agreement”) dated as of March 3,2009, 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., CREDIT SUISSE, CAYMAN ISLANDS BRANCH,and DEUTSCHE BANK AG NEW YORK BRANCH, as Documentation Agents, and BANK OFAMERICA, N.A., as Syndication Agent. Unless the context otherwise requires, all capitalized terms used hereinwithout definition shall have the meanings ascribed to them in the CreditAgreement.

 

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.             Theundersigned agrees to be bound by the provisions of the Credit Agreement andagrees that it shall, on the date this Supplement is accepted by the Borrowersand the Administrative Agent, become a Bank for all purposes of the CreditAgreement to the same extent as if originally a party thereto, with aCommitment of $                                    .

 

2.             Theundersigned (a) represents and warrants that it is legally authorized toenter into this Supplement; (b) confirms that it has received a copy ofthe Credit Agreement, together with copies of the financial statementsdelivered pursuant to Section 5.1 thereof and such other documents andinformation as it has deemed appropriate to make its own credit analysis anddecision to enter into this Supplement; (c) agrees that it has made andwill, independently and without reliance upon any Agent or any other Bank andbased on such documents and information as it shall deem appropriate at thetime, continue to make its own credit decisions in taking or not taking actionunder the Credit Agreement or any instrument or document furnished pursuanthereto or thereto; (d) appoints and authorizes the Administrative Agent totake such action as administrative agent on its behalf and to exercise suchpowers and discretion under the Credit Agreement or any instrument or documentfurnished pursuant hereto or thereto as are delegated to the AdministrativeAgent by the terms thereof, together with such powers as are incidentalthereto; and (e) agrees that it will `be bound by the provisions of theCredit Agreement and will perform in accordance with its terms all theobligations which by the

 

----

 

N-2

 

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

 

3.             Theundersigned’s address for notices for the purposes of the Credit Agreement isas 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

                            ,20     

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

 

----

 

N-3

 

Accepted this           day of

                            ,20     

 

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

 

----

 

EXHIBIT O

 

FORM OFCOMMITMENT INCREASE SUPPLEMENT

 

SUPPLEMENT, dated               20    , to the $750,000,000 364-Day Credit Agreement(as in effect on the date hereof, the “Credit Agreement”) dated as of March 3,2009, among DEERE & COMPANY (the “Company”), JOHN DEERE CAPITALCORPORATION, the Banks parties thereto, JPMORGAN CHASE BANK, N.A., asAdministrative Agent, CITIBANK, N.A., CREDIT SUISSE, CAYMAN ISLANDS BRANCH, andDEUTSCHE BANK AG NEW YORK BRANCH, as Documentation Agents, and BANK OF AMERICA,N.A., as Syndication Agent.  Unless thecontext otherwise requires, all capitalized terms used herein withoutdefinition shall have the meanings ascribed 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.             Theundersigned agrees, subject to the terms and conditions of the CreditAgreement, that on the date this Supplement is accepted by the Borrowers andthe Administrative Agent it shall have its Commitment increased by $                            ,thereby making the amount of its Commitment $                            .

 

----

 

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                                                                                                                         |            |
|                             ,  20      |            |
|                                                                                                                                                                                                        |            |
| DEERE &  COMPANY                                                                                                                                                                                   |            |
|                                                                                                                                                                                                        |            |
|                                                                                                                                                                                                        |            |
| By:                                                                                                                                                                                                         |            |   |
|                                                                                                                                                                                                        | Title:          |   |
|                                                                                                                                                                                                        |            |
| JOHN DEERE  CAPITAL CORPORATION                                                                                                                                                                             |            |
|                                                                                                                                                                                                        |            |
|                                                                                                                                                                                                        |            |
| By:                                                                                                                                                                                                         |            |   |
|                                                                                                                                                                                                        | Title:          |   |
|                                                                                                                                                                                                        |            |
| Accepted  this            day  of                                                                                                                         |            |
|                             ,  20      |            |
|                                                                                                                                                                                                        |            |
| JPMORGAN  CHASE BANK, N.A.,                                                                                                                                                                                 |            |
| as Administrative Agent                                                                                                                                                                                     |            |
|                                                                                                                                                                                                        |            |
|                                                                                                                                                                                                        |            |
| By:                                                                                                                                                                                                         |            |   |
|                                                                                                                                                                                                        | Title:          |   |

 

----