Exhibit 4.1


EXECUTION VERSION


 




 





 


DEERE & COMPANY


 


JOHN DEERE CAPITAL CORPORATION


 






 


$750,000,000


 


364-DAY


CREDIT AGREEMENT


 


Dated as of March 3, 2009


 






 


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


 










 


J.P. MORGAN SECURITIES INC. and


BANC OF AMERICA SECURITIES LLC,


as Joint Lead Arrangers and Bookrunners


 




 





 

















 


TABLE
OF 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

  



 


ii

















 


TABLE
OF 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

  



 


iii

















 


TABLE
OF 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

  



 


iv

















 


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 “Capital
Corporation”), (c) the several financial institutions parties hereto
(collectively, the “Banks”, and individually, a “Bank”), (d) JPMORGAN
CHASE BANK, N.A., as administrative agent hereunder (in such capacity, together
with its successors and permitted assigns, the “Administrative Agent”), (e) CITIBANK,
N.A., CREDIT SUISSE, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORK
BRANCH, as documentation agents hereunder (in such capacity, the “Documentation
Agents”), and (f) BANK OF AMERICA, N.A., as syndication agent
hereunder (in such capacity, the “Syndication Agent”).


 


The parties hereto hereby agree as follows:


 


SECTION 1            DEFINITIONS


 


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


 


“ABR”: 
at any particular date, the highest of (a) the rate of interest per
annum publicly announced by JPMorgan Chase Bank, N.A. for such date as its
prime rate in effect at its principal office in New York City; (b) 0.5%
per annum above the rate set forth for such date or, if such date is not a
Business Day, the next preceding Business Day, opposite the caption “Federal
Funds (Effective)” in the weekly statistical release designated as “H.15(519)”
(or any successor publication) published by the Board or, if such rate is not
so published for such date, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
dealers of recognized standing selected by it; and (c) the Eurodollar Rate
for a Eurodollar Loan with one-month Interest Period commencing on such day (or
if such day is not a Business Day, the immediately preceding Business Day) plus
1% (provided that, for the avoidance of doubt, such Eurodollar Rate for any
date 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 or
otherwise on such system, on any comparable publicly available service for
displaying eurodollar rates) at approximately 11:00 A.M. London time on
such date).


 


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


 


“ABR Margin”:  as defined in subsection 2.21.


 


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


 


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


 


“Act”: as defined in subsection 10.11.


 

















 


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


 


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


 


“Agent”:  the Administrative Agent, the Syndication
Agent 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 pursuant
to an Index Rate Bid Loan Request, the Eurodollar Rate applicable to the
Interest Period for such Bid Loan.


 


“Applicable Margin”:  for ABR Loans and for Eurodollar Loans, the
applicable ABR Margin or Eurodollar Margin, in each case as determined in
accordance with subsection 2.21; provided that, the Applicable Margin
for any ABR Loans and Eurodollar Loans shall be increased by 1% per annum at
each level for the period of time that any Committed Rate Loans remain
outstanding after the Termination Date.


 


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


 


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


 


“benefitted Bank”:  as defined in subsection 10.6.


 


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


 


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


 


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


 


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


 


2

















 


Exhibit C and shall be
delivered to the Administrative Agent by facsimile transmission or by
telephone, immediately confirmed by facsimile transmission.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Certificate of Non-Bank Status”:  a certificate in form and substance
acceptable to the Administrative Agent and signed by an officer or director of
the party that such party is not (1) taking deposits from customers in the
ordinary 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) of
the Code, (2) a “10 percent shareholder” of Borrowers within the meaning
of Section 881(c)(3)(B) of the Code or (3) a “controlled foreign
corporation” described in Section 881(c)(3)(C) of the Code.


 


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


 


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


 


3

















 


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


 


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


 


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


 


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


 


“Commitment Percentage”:  as to any Bank at any time, the percentage
which such Bank’s Commitment at such time constitutes of all the Commitments at
such time or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such Bank’s
Loans then outstanding constitutes of the aggregate principal amount of all
Loans then outstanding; collectively, as to all the Banks, the “Commitment
Percentages”; provided that when a Defaulting Bank shall exist, “Commitment
Percentage” shall mean, when appropriate as determined by the Administrative
Agent in order to provide ratable treatment at any time a Defaulting Bank
exists (and without increasing the Commitment of any Bank), the percentage of
the total Commitments (disregarding any Defaulting Bank’s Commitment) represented
by such Bank’s Commitment.


 


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


 


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


 


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


 


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


 


“Company”:  as defined in the preamble hereto.


 


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


 


4

















 


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


 


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


 


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


 


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


 


“Credit Default Swap Spread”: 
as defined in subsection 2.21.


 


“Credit Rating”:  (a) as to any Person, the rating
assigned to the relevant long term senior unsecured (and non-credit enhanced)
Debt obligations of such Person by Moody’s or S&P and (b) if no rating
for such Debt described in clause (a) is available, the corporate credit
rating 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, or
both, or any other condition, event or act has been satisfied.


 


5

















 


“Defaulting Bank”:  any
Bank that has (a) following satisfaction of the conditions to funding
under subsection 4.2, failed to fund any portion of its Loans within one
Business Day of the date required to be funded by it hereunder, unless the
subject of a good faith dispute; (b) notified the Company, the
Administrative Agent or any Bank in writing that it does not intend to comply
with any of its funding obligations under this Agreement or has made a public
statement to the effect that it does not intend to comply with its funding
obligations under this Agreement or under other agreements in which it commits
to extend credit; (c) failed, within three Business Days after written
request by the Administrative Agent, to confirm that it will comply with the
terms of this Agreement relating to its obligations to fund prospective Loans; provided
that confirmation received by the Administrative Agent beyond three Business
Days shall remedy the default under this clause (c); (d) otherwise failed
to pay over to the Administrative Agent or any other Bank any other amount
required to be paid by it hereunder within three Business Days of the date when
due, unless the subject of a good faith dispute; or (e) (i) become or
is insolvent or has a parent company that has become or is insolvent or (ii) become
the subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in
any such proceeding or appointment or has a parent company that has become the
subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in
any such proceeding or appointment.  If
any Bank shall become a Defaulting Bank, the Company shall have the right, so
long as no Event of Default has occurred and is then continuing, upon giving
written notice to the Administrative Agent and such Bank in accordance with
subsection 2.6, notwithstanding subsection 2.12(b), to prepay in full the Loans
of such Bank, together with accrued interest thereon, any amounts payable to
such Bank pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and
unpaid facility fee or other amount payable to such Bank hereunder and/or, upon
giving not less than three Business Days’ notice to such Bank and the
Administrative Agent, to cancel the whole or part of the Commitment of any such
Bank.


 


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


 


“Determination Date”:  at
any time (a) for any Eurodollar Loan, (i) the date two Business Days
before the commencement of the Interest Period applicable to such Loan and (ii) in
the case of an Interest Period of more than three months duration, the date
that is the last Business Day of each successive three-month period during such
Interest Period, and (b) for any ABR Loan, (i) initially, the Closing
Date and (ii) from and after the end of the Calendar Quarter during which
the Closing Date occurs, the last day of the Calendar Quarter most recently
ended at such time.


 


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


 


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


 


6
















 


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


 


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


 


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


 


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


 


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


 


“Eurodollar Rate”:  with respect to each day during each Interest
Period pertaining to a Eurodollar Loan and for each Index Rate Bid Loan, the
rate per annum determined on the basis of the rate for deposits in Dollars, for
a period equal to such Interest Period commencing on the first day of such
Interest 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 (or
otherwise on such system), the “Eurodollar Rate” shall be determined by
reference to such other comparable publicly available service for displaying
eurodollar rates as may be reasonably selected by the Administrative Agent or,
in the absence of such availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or about 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest Period
in the interbank eurodollar market where its eurodollar operations are then
being conducted for delivery on the first day of such Interest Period for the
number of days comprised therein.


 


“Existing Credit Agreement”:  the $750,000,000 364-Day Credit Agreement
dated as of March 4, 2008 among the Borrowers, the Banks parties thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank N.A. and Credit
Suisse First Boston, as Documentation Agents, Merrill Lynch Bank USA, as
Co-Documentation Agent, and Bank of America, N.A. and Deutsche Bank AG New York
Branch, as Syndication Agents.


 


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


 


7

















 


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


 


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


 


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


 




	
  Greater
  than or equal to A/A2:

  	
   

  	
  Lower
  than or equal to A-/A3

  
	
   

  	
   

  	
   

  
	
  0.15%

  	
   

  	
  0.20%

  






 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


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


 


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


 


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


 


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


 


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


 


“Interest Payment Date”:  (a) as to any ABR Loan, the last
Business Day of each March, June, September and December, commencing on
the first of such days to occur after such ABR Loan is made or a Eurodollar
Loan is converted to an ABR Loan, (b) as to any Eurodollar Loan, the last
day of each Interest Period applicable thereto, provided that as to any
Eurodollar Loan in respect of which a Borrower has selected an Interest Period
of six months, interest shall also be paid on the day which is three months
after the beginning of such Interest Period, (c) with respect to any
Objecting Bank, the day on which such Bank’s Loans become due and payable in
accordance 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 converted
to a Eurodollar Loan or the date any Eurodollar Loan is continued as a
Eurodollar Loan, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by a Borrower in
its notice of borrowing, conversion or continuance as provided in subsection
2.1(c) or 2.9;


 


(b)           with respect to any Bid Loan, the period commencing
on the Borrowing Date with respect to such Bid Loan and ending on the date not
less than seven days nor more than six months thereafter, as specified by a
Borrower in its Bid Loan Request as provided in subsection 2.2(b); and


 


9

















 


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


 


provided, that all of
the foregoing provisions relating to Interest Periods are subject to the
following:


 


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


 


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


 


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


 


(iv)          Interest Periods shall be deemed available only if
the Required Banks shall not have advised the Administrative Agent that the
Eurodollar Rate determined by the Administrative Agent on the basis of the
applicable quotes will not adequately and fairly reflect the cost to such Banks
of maintaining or funding their Committed Rate Loans bearing interest based on
the Eurodollar Rate determined for such Interest Period.  The Administrative Agent shall notify the
Borrowers and each Bank promptly after having been advised by the Required
Banks that a Eurodollar Rate will not so adequately and fairly reflect such
Banks’ costs as aforesaid.  If a
requested Interest Period shall be unavailable in accordance with the foregoing
sentence, the proposed Borrower may (A) in accordance with the provisions
(including any requirements for notification) of subsection 2.1 request, at its
option, that the requested Committed Rate Loans be made or maintained as ABR
Loans or (B) withdraw the request for such Committed Rate Loans for which
the Interest Period was unavailable by giving notice of such election to the
Administrative Agent in accordance with subsection 2.11; provided, that
if the Administrative Agent does not receive any notice hereunder with respect
to requested Committed Rate Loans, such Borrower shall be deemed to have
requested ABR Loans;


 


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


 


10

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“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 Termination
Date.


 


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


 


“Mortgage”:  as defined in subsection 6.2.


 


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


 


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


 


“Negotiation Period”:  as defined in subsection 2.21.


 


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



 


11

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Person”:  an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature, provided
that for purposes of Section 8(h), Person shall also include two or more
entities acting as a syndicate or any other group for the purpose of acquiring,
holding or disposing of securities of the Company.


 


“Plan”:  any pension plan which is covered by Title IV
of ERISA and in respect of which either Borrower or a Commonly Controlled
Entity is an “employer” as defined in Section 3(5) of ERISA.


 


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


 


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


 


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


 


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


 


“Report Period”:  as defined in subsection 2.18.


 


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


 


12

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


13

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


14
















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)           Either Borrower may borrow Committed Rate Loans on any
Working Day, if the borrowing is of Eurodollar Loans, or on any Business Day,
if the borrowing is of ABR Loans; provided, however, that a
Responsible Officer of such Borrower shall give the Administrative Agent
irrevocable notice thereof (which notice must be received by the Administrative
Agent (i) prior to 12:00 Noon, New York City time, three Working Days
prior to the requested Borrowing Date, in the case of Eurodollar Loans and (ii) prior
to 12:00 Noon, New York City time, on the requested Borrowing Date, in the case
of ABR Loans.  Each such notice shall be
given in writing or by facsimile transmission substantially in the form of Exhibit A
(with appropriate insertions) or shall be given by telephone (specifying the
information set forth in Exhibit A) promptly confirmed by notice given in
writing or by facsimile transmission substantially in the form of Exhibit A
(with appropriate insertions).  On the
day of receipt of any such notice from either Borrower, the Administrative
Agent shall promptly notify each Bank thereof. 
Each Bank will make the amount of its share of each borrowing available
to the 


 


15

















 


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


 


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


 


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


 


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


 


(ii)           In the case of an Index Rate Bid Loan Request, upon
receipt of notice from the Administrative Agent of the contents of such Bid
Loan Request, any Bid Loan Bank that elects, in its sole discretion, to do so,
shall irrevocably offer to make one or more Bid


 


16

















 


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


 


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


 


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


 


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


 


(B)           accept one or
more of the offers made by any Bid Loan Bank or Bid Loan Banks pursuant to
clause (ii) or clause (iii) of this subsection 2.2(b), as the case
may be, by giving telephone notice to the Administrative Agent (immediately
confirmed by delivery to the Administrative Agent at the address set forth in
clause (i)(A) of this subsection 2.2(b) of a Bid Loan Confirmation)
of the amount of Bid Loans for each relevant Interest Period to be made by each
Bid Loan Bank (which amount shall be equal to or less than the maximum amount
for such Interest Period specified in the Bid Loan Offer of such Bid Loan Bank,
and for all Interest Periods included in such Bid Loan


 


17

















 


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


 


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


 


(vi)          (A)  If such Borrower accepts pursuant to
clause (iv)(B) of this subsection 2.2(b) one or more of the offers
made by any Bid Loan Bank or Bid Loan Banks pursuant to a Bid Loan Request, the
Administrative Agent shall promptly notify by telephone each Bid Loan Bank
which has made such an offer of the aggregate amount of such Bid Loans to be
made on such Borrowing Date for each Interest Period and of the acceptance or
rejection of any offers to make such Bid Loans made by such Bid Loan Bank.  Each Bid Loan Bank which is to make a Bid
Loan pursuant to a Bid Loan Request shall, before 12:00 Noon (New York City
time) on the Borrowing Date specified in the Bid Loan Request applicable
thereto, make available to the Administrative Agent at its office set forth in
subsection 10.2 the amount of Bid Loans to be made by such Bid Loan Bank, in
immediately available funds.  The
Administrative Agent will make such funds available to such Borrower as soon as
practicable on such date at the Administrative Agent’s aforesaid address.


 


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


 


18

















 


Borrower
the amount of Negotiated Rate Loans to be made by such Bank, in immediately
available funds.


 


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


 


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


 


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


 


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


 


(f)            After the first Bid Loan Request has been given hereunder,
no Bid Loan Request or Negotiated Rate Loan Request shall be given until at
least one Business Day, in the case of an Absolute Rate Bid Loan Request, or
one Working Day, in the case of an Index Rate


 


19

















 


Bid Loan Request, after the
earliest to occur of (i) the Borrowing Dates with respect to all prior Bid
Loan Requests made pursuant to subsection 2.2(b)(i), (ii) the date on
which all Bid Loan Banks have failed to submit Bid Loan Offers with respect to
any Bid Loan Requests within the time specified in subsection 2.2(b)(ii) or
(iii), as the case may be, and (iii) the date on which the relevant
Borrower has cancelled all prior Bid Loan Requests pursuant to subsection
2.2(b)(iv).


 


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


 


2.4.          Fees.  (a)  The Company and the Capital
Corporation jointly and severally agree to pay to the Administrative Agent for
the account of each Bank a facility fee (i) from and including the Closing
Date to but excluding the date on which the Commitment of such Bank terminates
hereunder, computed at a per annum rate equal to the Facility Fee Rate on the
average daily amount of the Commitment of such Bank in effect during the period
for which payment is made and (ii) thereafter until all Committed Rate
Loans of such Bank are paid in full, computed at a per annum rate equal to the
Facility Fee Rate on the average daily amount of such Committed Rate Loans
outstanding, in each case, payable quarterly in arrears on the first Business
Day of each January, April, July and October of each year, on the
Termination Date or such earlier date on which the Commitments shall terminate
as provided herein, and on the Maturity Date or such earlier date on which the
Loans are repaid in full and, with respect to any Objecting Bank, the day on
which such Bank’s Loans become due and payable in accordance with subsection
2.16(b), commencing in April, 2009.


 


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


 


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


 


2.5.          Termination or Reduction of Commitments; Cancellation
of Capital Corporation as Borrower.  (a)  The Borrowers, acting jointly,
shall have the right, upon not less than five Business Days’ notice to the
Administrative Agent, to terminate the Commitments or, from time to time,
reduce the amount of the Commitments, provided that (i) any such
reduction shall be accompanied by prepayment of Committed Rate Loans hereunder,
together with accrued


 


20

















 


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


 


(b)           The Company may cancel the ability of the Capital Corporation
to borrow hereunder upon not less than five Business Days’ notice to the
Administrative Agent.  Upon receipt of
such notice from the Company, the Administrative Agent shall promptly notify
each Bank thereof.  On the first day
following receipt of such notice, on which all Loans to the Capital Corporation
and all interest thereon shall have been paid in full, and notwithstanding any
other provision of this Agreement, (i) the Capital Corporation shall cease
to be a party hereto or to have any right or obligation hereunder, (ii) rights
and obligations expressed herein to be, in effect, of either the Company or the
Capital Corporation or of both of them, but not any such rights and obligations
expressed herein to be of the Capital Corporation only, shall be deemed to be
rights and obligations of the Company only and (iii) the Banks shall cease
to have any right or obligation hereunder which depends or is contingent upon
any action, condition or performance, or the absence thereof, whether past or
present, of the Capital Corporation other than any action, condition or
performance, or the absence thereof, of the Capital Corporation in its capacity
as a Subsidiary, Significant Subsidiary or Restricted Subsidiary hereunder; provided,
however, that the obligation of the Capital Corporation to make any
payment pursuant to subsection 2.13, 2.14, 2.15 or 2.17 which arises prior to
the cancellation of the ability of the Capital Corporation to borrow hereunder
shall survive the cancellation of the ability of the Capital Corporation to
borrow hereunder.


 


2.6.          Optional Prepayments.  Either Borrower may at any time and from time
to time prepay its Committed Rate Loans in whole or in part, without premium or
penalty, but subject to the provisions of subsection 2.14, upon at least three
Working Days’ irrevocable notice (by 11:00 a.m., New York City time), in
the case of Eurodollar Loans, or same day irrevocable notice in the case of ABR
Loans, in each case to the Administrative Agent, specifying the date and amount
of prepayment and whether the prepayment is of its Eurodollar Loans, ABR Loans,
or a combination thereof, and if of a combination thereof, the amount of
prepayment allocable to each.  Upon
receipt of such notice the Administrative Agent shall promptly notify each Bank
thereof.  If such notice is given, the
Borrower delivering such notice shall make such prepayment, and the payment of
the amount specified in such notice shall be due and payable, on the date
specified therein, together with accrued interest to such date on the amount
prepaid and any amounts payable pursuant to subsections 2.14 and 2.15.  Except as provided in the


 


21

















 


immediately
following sentence, partial prepayments shall be in an aggregate principal
amount of $5,000,000, or a whole multiple thereof; provided, however,
that after giving effect thereto, the aggregate principal amount of all
Committed Rate Loans made on the same Borrowing Date shall not be less than
$25,000,000.  Anything contained in this
subsection 2.6 to the contrary notwithstanding, partial prepayments of a
Cancelled Bank’s Loans in connection with the termination under subsection
2.13(a), (b) or (c), 2.16(c) or 2.17(b), or upon a Defaulting Bank
becoming a Cancelled Bank, of such Cancelled Bank’s Commitment (in whole or in
part) shall be in an amount equal to the principal amount of the Loans of such
Bank being prepaid, notwithstanding the amount thereof, and shall be permitted
notwithstanding the provisions of the foregoing proviso.  Either Borrower may prepay Negotiated Rate
Loans or Bid Loans on such terms as shall be mutually agreed upon between the
relevant Borrower and the relevant Bank.


 


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


 


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


 


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


 


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


 


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


 


2.9.          Conversion and Continuation Options.  (a)  The relevant Borrower may
elect from time to time to convert Committed Rate Loans of one Type into
Committed Rate Loans of another Type by giving to the Administrative Agent
irrevocable notice of such conversion by the earliest time that they would have
been required to give notice under subsection 2.1(c) if they had been
borrowing Committed Rate Loans of each such Type on the conversion date
specified in such notice, provided that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto.  Any such notice of
conversion to Eurodollar Loans shall specify the length of the initial Interest
Period or Interest


 


22

















 


Periods
therefor.  Upon receipt of any such
notice the Administrative Agent shall promptly notify each Bank thereof.  All or any part of outstanding Eurodollar
Loans and ABR Loans may be converted as provided herein, provided that
no Loan may be converted into a Eurodollar Loan after the date that is one
month prior to (i) in the case of a Loan made by an Objecting Bank, the
first anniversary of such Objecting Bank’s Commitment Expiration Date, and (ii) in
the case of all Loans, the Maturity Date.


 


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


 


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


 


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


 


2.11.        Inability to Determine Interest Rate.  (a)  In the event that the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrowers) that by reason of circumstances
affecting the interbank eurodollar market generally, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for any requested
Interest Period with respect to Committed Rate Loans that a Borrower has
requested be made as, continued as or converted into Eurodollar Loans, the
Administrative Agent shall promptly give notice of such determination to such
Borrower and the Banks prior to the first day of the requested Interest Period
for such Eurodollar Loans.  If such
notice is given, such Borrower may (i) in accordance with the provisions
of subsection 2.1 or 2.9, as the case may be (including any requirements for
notification), request that the affected Loans be made as, continued as or
converted into, as the case may be, ABR Loans, or (ii) in the case of
Loans requested to be made on the first day of such Interest Period, withdraw
the notice given under subsection 2.1 or 2.9, as the case may be, by giving
telephonic notice to the Administrative


 


23

















 


Agent,
no later than 10:00 A.M. (New York City time) on the applicable Borrowing
Date, confirmed in writing no later than one Business Day after such telephonic
notice is given; provided that if the Administrative Agent does not
receive any notice permitted from the relevant Borrower hereunder, such
Borrower shall be deemed to have requested that the affected Loans be made as,
continued as or converted into, as the case may be, ABR Loans.  Until the notice given pursuant to the first
sentence of this paragraph has been withdrawn by the Administrative Agent, no
further Loans shall be made as, continued as or converted into, as the case may
be, Eurodollar Loans.


 


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


 


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


 


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


 


24
















 


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


 


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


 


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


 


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


 


25

















 


extension of the payment of principal
pursuant to this subsection 2.12(c), interest thereon shall be payable at the
then applicable rate during such extension.


 


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


 


2.13.                        Requirements
of Law.  (a)  If any Bank shall
determine that by reason of (i) the introduction after the date hereof of
any applicable law, regulation or guideline or any change after the date hereof
in any applicable law, regulation or guideline (including the phasing-in of a
provision of any applicable law, regulation or guideline) or in the
interpretation thereof by any governmental or other regulatory authority
charged with the administration thereof or any court of competent jurisdiction
and/or (ii) compliance by such Bank with any requirement adopted after the
date hereof or directive adopted after the date hereof from any 


 


26

















 


central
bank or other fiscal, monetary or other regulatory authority (whether or not
having the force of law), there shall be any increase in the cost of such Bank
of maintaining or giving effect to its obligations with respect to Committed
Rate Loans under this Agreement or maintaining its Commitment with respect to
Committed Rate Loans or making or maintaining any Eurodollar Loans or any
reduction in any amount receivable by such Bank in respect of Eurodollar Loans
under this Agreement, notwithstanding the reasonable efforts (such reasonable
efforts not to result in the incurrence of additional costs or expenses) of
such Bank to mitigate such increase or reduction (excluding for purposes of
this subsection 2.13 any such increased costs resulting from (x) Foreign
Taxes (as to which subsection 2.17 shall govern) and (y) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Bank is organized or has its applicable lending office or any political
subdivision thereof), then the relevant Borrower shall from time to time on
receipt (whenever occurring) of a certificate from such Bank (which shall be
executed by an officer thereof and a copy of which shall be delivered to the
Administrative Agent) pay to such Bank such amounts as are stated therein to be
required to indemnify such Bank against such increased costs or reduction; provided,
however, that if such Borrower becomes obligated to pay any Bank any
additional amount pursuant to this subsection 2.13(a), such Borrower shall have
the right, so long as no Event of Default has occurred and is then continuing,
upon giving notice to the Administrative Agent and such Bank in accordance with
subsection 2.6, to prepay in full the Loans of such Bank, together with accrued
interest thereon, any amounts payable to such Bank pursuant to subsections
2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility fee or other
amount payable to such Bank hereunder and/or, upon giving not less than three
Business Days’ notice to any such Bank and the Administrative Agent, to cancel
the whole or part of the Commitment of any such Bank; provided, further,
that such Borrower shall not be obligated to pay any Bank any additional amount
pursuant to this subsection 2.13(a) (A) which constitutes a present
or future income, stamp or other tax, levy, impost, duty, charge, fee,
deduction or withholding referred to in subsection 2.17(a) or (B) as
a result of any law, rule, guideline, regulation, request or directive
regarding capital adequacy referred to in subsection 2.13(b).  A certificate of such Bank as to the amount
of such increased costs or reduction shall set forth in reasonable detail the
computation of such increased costs or reduction, and shall be binding and
conclusive in the absence of manifest error. 
A Bank which demands indemnification hereunder as a result of an
increased cost or reduction referred to herein shall deliver the certificate
referred to above to the relevant Borrower demanding indemnification no later
than the later of (y) the thirtieth day immediately following each payment
or realization by such Bank of such increased cost or reduction (and such
certificate shall certify that the amounts set forth therein were paid or
realized within such thirty-day period) and (z) the thirtieth day
immediately following such Bank’s knowledge of the incurrence or realization by
such Bank of such increased cost or reduction (and such certificate shall so
certify).


 


(b)                                 In the event that any Bank shall
have determined that the adoption after the date hereof of any law, rule,
guideline or regulation regarding capital adequacy, or any change after the date
hereof in any existing or future law, rule, guideline or regulation regarding
capital adequacy (excluding, however, the phasing-in of any existing law, rule,
regulation or guideline regarding capital adequacy) or in the interpretation or
application thereof or compliance by such Bank or any corporation controlling
such Bank with any request or directive made or adopted after the date hereof
regarding capital adequacy (whether or not having the force of law) from any
central bank or Governmental Authority, does or shall have the effect of


 


27

















 


reducing the rate of return on such Bank’s or
such corporation’s capital as a consequence of its obligations hereunder to a
level below that which such Bank or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such Bank’s
or such corporation’s policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 30 days
after receipt (whenever occurring) of a certificate from such Bank (which shall
be executed by an officer thereof and a copy of which shall be delivered to the
Administrative Agent), the Borrowers jointly and severally agree to pay to such
Bank such additional amounts as are stated therein to be required to compensate
it for such reduction; provided, however, that if such Borrower
becomes obligated to pay any Bank any additional amount pursuant to this
subsection 2.13(b), such Borrower shall have the right, so long as no Event of
Default has occurred and is then continuing, upon giving notice to the
Administrative Agent and such Bank in accordance with subsection 2.6, to prepay
in full the Loans of such Bank, together with accrued interest thereon, any
amounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any
accrued and unpaid facility fee or other amounts payable to it hereunder
and/or, upon giving not less than three Business Days’ notice to any such Bank
and the Administrative Agent, to cancel the whole or part of the Commitment of
any such Bank.  A certificate of such
Bank as to the amount of such reduction shall set forth in reasonable detail
the computation of such reduction, and shall be binding and conclusive in the
absence of manifest error.  A Bank which
demands indemnification hereunder as a result of a reduction referred to herein
shall deliver the certificate referred to above to the relevant Borrower
demanding indemnification no later than the later of (i) the thirtieth day
immediately following each realization by such Bank of such reduction (and such
certificate shall certify that the amounts set forth therein were realized
within such thirty-day period) and (ii) the thirtieth day immediately
following such Bank’s knowledge of the realization by such Bank of such
reduction (and such certificate shall so certify).


 


(c)                                  Each Borrower shall pay to each
Bank that delivers a certificate to such Borrower in accordance with the second
and third following sentences such amounts as shall be necessary to reimburse
such Bank for the costs (determined in accordance with the immediately
following sentence), if any, incurred by such Bank, as a result of the
application to such Bank during any period on which there are outstanding Eurodollar
Loans advanced by such Bank to such Borrower of basic, supplemental, marginal
and emergency reserves under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to as “Eurocurrency
liabilities” in Regulation D of such Board) maintained by a member bank of such
System (any such reserves dealing with reserve requirements prescribed for
eurocurrency funding being referred to as “Reserves”), such amount to be
set forth in a certificate of such Bank delivered to the relevant Borrower; provided,
however, that if a Bank gives to a Borrower the written notice
contemplated by the proviso set forth in the second following sentence, such
Borrower shall have the right, so long as no Event of Default has occurred and
is then continuing, upon giving notice to the Administrative Agent and such
Bank in accordance with subsection 2.6, to prepay in full the Loans of such
Bank, together with accrued interest thereon, any amounts payable pursuant to
subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility fee
or other amounts payable to it hereunder and/or upon giving not less than three
Working Days’ notice to such Bank and the Administrative Agent, to cancel the
whole or part of the Commitment of any such Bank.  Amounts certified by a Bank hereunder for any
period shall represent such Bank’s calculation or, if an accurate calculation
is impracticable, 


 


28

















 


reasonable estimate (using such reasonable
means of allocation as such Bank shall determine) of the actual costs, if any,
theretofore incurred by such Bank as a result of the application of Reserves to
Eurocurrency liabilities (as referred to in Regulation D referred to above) of
such Bank in an amount equal to such Bank’s Eurodollar Loans during such period
and in any event shall not exceed the amount obtainable utilizing the maximum
Reserves prescribed by the Board or other Governmental Authority having
jurisdiction with respect thereto for such period.  Such payment shall be made within fifteen
days after receipt by the relevant Borrower of a certificate, signed by an
officer of the Bank delivering such certificate, which certificate shall be
binding and conclusive in the absence of demonstrable error, specifying the
period (prior to the date of such certificate) during which the cost set forth
therein was incurred by such Bank and stating (i) that such amount
represents the actual cost, or, if an accurate calculation of such cost is
impracticable stating that such amount represents such Bank’s reasonable
estimate of the actual cost, incurred by such Bank during such period as a
result of the application of Reserves to Eurocurrency liabilities of such Bank
in an amount equal to such Bank’s Eurodollar Loans during such period and
specified in such certificate and (ii) that the amount set forth therein
does not in any event exceed the amount obtainable utilizing the maximum Reserves
prescribed for such period by the Board or such other Governmental Authority
having jurisdiction with respect thereto; provided that the obligation
of the Borrowers to pay any amounts pursuant to this subsection 2.13(c) shall
apply only in the case of those Banks that give to the relevant Borrower and
the Administrative Agent, no later than 3:00 P.M. (New York City time) on
the day that is two Working Days prior to the applicable Borrowing Date
therefor, a written notice stating that such Bank intends to demand
reimbursement pursuant hereto.  A Bank
which demands reimbursement of Reserve costs hereunder on account of a
Eurodollar Loan made by such Bank shall deliver the certificate referred to in
the preceding sentence to the relevant Borrower setting forth the items
specified in clauses (i) and (ii) of the preceding sentence no later
than the thirtieth day immediately following the last day of the Interest
Period applicable to such Eurodollar Loan.


 


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


 


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


 


29

















 


pursuant
to the foregoing shall be submitted by such Bank (and executed by an officer thereof)
to the relevant Borrower, setting forth the computation of such amounts in
reasonable detail, and shall be conclusive in the absence of manifest error.


 


2.15.                        Non-Receipt
of Funds by the Administrative Agent. 
With respect to all Loans except Negotiated Rate Loans, unless the
Administrative Agent shall have been notified by the relevant Borrower prior to
the date on which any payment is due from it hereunder (which notice shall be
effective upon receipt) that such Borrower does not intend to make such
payment, the Administrative Agent may assume that such Borrower has made such
payment when due, and the Administrative Agent may in reliance upon such
assumption (but shall not be required to) make available to each Bank on such
payment date an amount equal to the portion of such assumed payment to which
such Bank is entitled hereunder, and if such Borrower has not in fact made such
payment to the Administrative Agent, such Bank shall, on demand, repay to the
Administrative Agent the amount made available to such Bank together with
interest thereon in respect of each day during the period commencing on the
date such amount was made available to such Bank and ending on (but excluding)
the date such Bank repays such amount to the Administrative Agent, at a rate
per annum equal to the Administrative Agent’s cost of obtaining overnight funds
in the Federal Funds market in New York on each such day.  A certificate of the Administrative Agent
submitted to the relevant Bank with respect to any amount owing under this
subsection 2.15 shall be conclusive absent manifest error.


 


2.16.                        Extension of Termination Date.


 


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


 


30

















 


Request.  The Administrative Agent shall promptly
notify (y) the Banks and the Borrowers of any extension of the Termination
Date pursuant to this subsection 2.16 and (z) the Borrowers and any other
Bank of any Bank which becomes an Objecting Bank.


 


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


 


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


 


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


 


31

















 


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


 


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


 


(c)                                  At least two Business Days prior
to the first Borrowing Date or, if such date does not occur within thirty days
after the Closing Date, by the end of such thirty-day period, each Bank agrees
that it will deliver to each Borrower and the Administrative Agent either (A) a
statement that it is incorporated under the laws of the United States, a state
thereof or the District of Columbia, (B) if it is not so incorporated, a
letter in duplicate in substantially the form of Exhibit J or Exhibit K,
as appropriate, and two duly completed copies of United States Internal Revenue
Service Form W-8BEN or W-8ECI or successor applicable form, as the case
may be, certifying in each case that such Bank is entitled to receive payment
under this Agreement without deduction or withholding of any United States
Federal income taxes, or (C) in the case of a Bank claiming exception
under Sections 871(h) or 881(c) of the Code, a Certificate of
Non-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 exemption
from United States backup withholding tax. 
Each Bank (including, without limitation, each Loan Assignee) agrees
(for the benefit of the Administrative Agent and the Borrowers), to the extent
it may lawfully do so, to provide the Administrative Agent and the Borrowers a
new letter or a new Certificate of Non-Bank Status, if applicable, and Form W-8BEN
or W-8ECI, or successor applicable form or other manner of certification, (x) in
the case of a Loan Assignee, on or before the date it becomes  party to this Agreement, (y) on or
before the date that any such letter or form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent letter
or form previously delivered by it, certifying in the case of a Form W-8BEN
or W-8ECI that such Bank is entitled to receive payments under this Agreement
without deduction or withholding of any United States Federal income tax, and
in the case of a Form W-8BEN establishing exemption from United States
backup withholding tax, and (z) promptly after the date of the Company,
the Capital Corporation or the Administrative Agent reasonably requests any
form 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 or
other document described in this sentence by reason of a change in the
applicable law occurring after the date on which such letter, form,
certificate, successor or other document originally was required to be provided
by such Bank, then such Bank shall be required to comply with this sentence to
the extent permitted under such applicable law, and 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 under
this Agreement at the lowest rate of deduction, withholding or backup
withholding to which it is entitled under such applicable law.  The Administrative Agent shall 


 


32

















 


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


 


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


 


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


 


2.18.                        Confirmations.  The Administrative Agent shall, within 15
days following the last day of each calendar quarter (each such period being a “Report
Period”), furnish to the Borrowers a written account with respect to all
amounts outstanding under the Loan Accounts as at the last day of such Report
Period, including an accounting setting forth, for such Report Period the
amounts of principal, interest and other sums paid and payable hereunder.  The Borrowers shall, within 15 days following
receipt of such written account, notify the Administrative Agent of any
discrepancies between such written account and the Borrowers’ records or, if no
such discrepancies exist, furnish written confirmation to the Administrative
Agent of the accuracy of such written account. 
Upon any Bank’s request, the Administrative Agent shall furnish to each
Bank a copy of such written account together with the Borrowers’ response
thereto.


 


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


 


2.20.                        Commitment
Increases.  (a)  At any time
after the Closing Date 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 to
the Administrative Agent in writing of the amount (the “Offered Increase Amount”)
of such proposed increase (such notice, a “Commitment Increase Notice”).  Any such Commitment Increase Notice must
offer each Bank the opportunity to subscribe for its pro rata share of the
increased Commitments; provided, however, the Borrowers may, with
the consent of the Administrative Agent (which consent shall not be
unreasonably withheld or 


 


33

















 


delayed),
without offering to each Bank the opportunity to subscribe for its pro rata
share of the increased Commitments, offer to any bank or other financial
institution that is not an existing Bank the opportunity to provide a new
Commitment pursuant to paragraph (b) below if the aggregate amount of all
Commitments made hereunder pursuant to this proviso which will be in effect
when such new Commitment becomes effective does not exceed $250,000,000 subject
to subsection 2.20(f).  If any portion of
the increased Commitments offered to the Banks as contemplated in the
immediately preceding sentence is not subscribed for by the Banks, the
Borrowers may, with the consent of the Administrative Agent as to any bank or
financial institution that is not at such time a Bank (which consent shall not
be unreasonably withheld or delayed), offer to any existing Bank or to one or
more additional banks or financial institutions the opportunity to provide all
or a portion of such unsubscribed portion of the increased Commitments pursuant
to paragraph (b) below.


 


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


 


(c)                                  Any Bank that accepts an offer
to it by the Borrowers to increase its Commitment pursuant to this subsection
2.20 shall, in each case, execute a Commitment Increase Supplement with the
Borrowers and the Administrative Agent, substantially in the form of Exhibit O
(a “Commitment Increase Supplement”), whereupon such Bank (an “Increasing
Bank”) shall be bound by and entitled to the benefits of this Agreement
with respect to the full amount of its Commitment as so increased, and Schedule
II shall be deemed to be amended to so increase the Commitment of such Bank.


 


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


 


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


 


34

















 


such amended Schedule II and a notice to each
Bank of the adjusted Commitment Percentages after giving effect to any increase
in the aggregate Commitments made pursuant to this subsection 2.20 on such
Re-Allocation Date.


 


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


 


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


 


(f)                                    Notwithstanding anything to the
contrary in this subsection 2.20, (i) in no event shall any transaction
effected pursuant to this subsection 2.20 cause the aggregate Commitments to
exceed $1,000,000,000, (ii) the Commitment of an individual Bank shall
not, as a result of providing a new Commitment or of increasing its existing
Commitment pursuant to this subsection 2.20, exceed 15% of the aggregate
Commitments on any Re-Allocation Date and (iii) no Bank shall have any
obligation to increase its Commitment unless it agrees to do so in its sole
discretion.


 


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


 


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


 


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


 


35
















 


The “ABR Margin” applicable at all times during any Calendar
Quarter (or shorter period commencing on the Closing Date and ending on the
last day of the Calendar Quarter in which the Closing Date occurs) is a rate
per annum equal to the excess, if any, of the Eurodollar Margin determined on
the 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 the
one year credit default swap spread applicable to senior debt of the Company,
as of the close of business on the Business Day immediately preceding such
Determination 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 Ceiling
for each level set forth above shall increase by 1.00% per annum after the
Termination Date.


 


If at any time the Credit Default Swap Spread
is unavailable, the Borrowers and the Banks shall negotiate in good faith (for
a period of up to thirty days after the Credit Default Swap Spread becomes
unavailable (such thirty-day period, the “Negotiation Period”)) to agree
on an alternative method for establishing the Eurodollar Margin.  The Eurodollar Margin at any date of
determination thereof in accordance with the preceding provisions of this Section which
falls during the Negotiation Period shall be based upon the then most recently
available quote of the Credit Default Swap Spread.  If no such alternative method is agreed upon
during the Negotiation Period, the Eurodollar Margin at any date of
determination subsequent to the end of the Negotiation Period shall be a rate
per annum equal to 100% of the maximum margin set forth in the Pricing Grid
table above under the column headed “Eurodollar Margin Ceiling” corresponding
to the Prevailing Rating in effect on such date of determination.


 


2.22.                        Markit
Data.  (a)  JPMorgan Chase Bank,
N.A., in any capacity, whether in an individual capacity or as Administrative
Agent or Bank or otherwise, shall receive data from Markit with respect to the
Credit Default Swap Spread and agrees in such capacity to provide to Designated
Users 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 JPMorgan
Chase Bank, N.A.  JPMorgan Chase Bank,
N.A. shall have all of the rights, benefits and protections of the
Administrative Agent provided for in Section 9 when acting in such capacity
with respect to the provision of any Markit Data.


 


36

















 


For the avoidance of doubt, any
Designated User shall only access and use the Markit Data for the purposes as
specified 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 the
terms of this subsection 2.22.  The
Borrowers, each Bank, and if applicable, the Administrative Agent, hereby
agrees, without limiting Markit’s or JPMorgan Chase Bank, N.A.’s other rights
and remedies, that it is responsible for and liable for any breach of any of
the provisions of this subsection 2.22 by its respective Designated Users.


 


(b)                                  Each
Borrower and each Bank acknowledges that all copyright, database rights, trade
marks, patents, rights of privacy or publicity and other proprietary or
intellectual property rights (including all models, software, data and any
materials) comprised in all or any of the Markit Data, or their provision, and
all enhancements, modifications or additional services thereto, are and will be
the exclusive property of Markit.  Except
as provided for under this Agreement, each of the Borrowers and each Bank
agrees that it will not use the same (including copying, reverse engineering
or, except as otherwise required by law or regulation, disclosing it to any
Person, for any purpose whatsoever) and will not remove or deface any trademarks
associated with the Markit Data.  Each
Bank acknowledges that the Markit Data was developed, compiled, prepared,
revised, selected and arranged by Markit and others (including certain
information sources (each a “Data
Provider”)) through the application of methods and standards of
judgment developed and applied through the expenditure of substantial time,
effort and money, and constitute valuable intellectual property and trade
secrets of Markit.  Each Borrower and
each Bank shall make reasonable efforts to comply, at Markit’s expense, with
all reasonable written requests made by JPMorgan Chase Bank, N.A. (upon Markit’s
reasonable written requests to JPMorgan Chase Bank, N.A.) to protect any
contractual, statutory and common law rights in the Markit Data.


 


(c)                                   Each
Borrower 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 as
to the results to be attained by either Borrower or any Bank or others from the
use of the Markit Data.  Each Borrower and each Bank hereby acknowledges
that there are no express or implied warranties of title, merchantability or
fitness for a particular purpose or use, and that it has not relied upon any
warranty, guaranty or representation made by Markit, JPMorgan Chase Bank, N.A.,
their respective affiliates or any Data Provider.


 


(d)                                  Neither
Markit and its affiliates (except in the event of fraud, gross negligence or
willful misconduct on part of Markit or its affiliates) nor any Data Provider
nor JPMorgan Chase Bank, N.A. and its affiliates shall in any way be liable to
the Borrowers, any Bank or any client of any Bank for any inaccuracies, errors
or omissions, regardless of cause, in the Markit Data provided hereunder or for
any damages (whether direct or indirect) resulting therefrom.  Without limiting the foregoing, Markit and
JPMorgan Chase Bank, N.A. shall have no liability whatsoever to either Borrower
or any Bank or client of a Bank, whether in contract (including under an
indemnity), in tort (including negligence), under a warranty, under statute or
otherwise, in respect of any loss or damage suffered by either Borrower, such
Bank or client as a result of or in connection with any opinions,
recommendations, forecasts, judgments, or any other conclusions, or any course
of action determined, by such Bank or any client of such Bank, based on the
Markit Data.  To the extent permitted by
law, neither Markit nor JPMorgan Chase 


 


37

















 


Bank, N.A. nor their respective affiliates
shall be liable for any loss of profits or revenue or any indirect or
consequential losses or damages whatsoever incurred, whether or not it has been
advised in advance of the possibility of any such loss.


 


(e)                                   Each
Bank acknowledges that it or its employees may, in the course of performing
such Bank’s responsibilities under this Agreement, be exposed to or acquire
information which is proprietary or confidential to Markit or to third parties
to whom Markit owes a duty of confidentiality. 
Each Borrower acknowledges that it or its employees may be exposed to or
acquire information which is proprietary or confidential to Markit or to third
parties to whom Markit owes a duty of confidentiality.  Markit’s and such third parties’ confidential
information means the Markit Data and any related materials provided by Markit
through JPMorgan Chase Bank, N.A. to each Borrower, each Bank and the
Administrative Agent under this Agreement. 
Each Bank agrees to hold Markit’s and such third parties’ confidential
information in confidence to the same extent and in the same manner as such
Bank is required to hold Borrower’s information confidential pursuant to
subsection 10.7 hereof and agrees that it will follow procedures which are
intended to put any transferee of such confidential information on notice that
such confidential information may not be used for any other purposes except as
contemplated herein.  Each Borrower also
agrees to be bound by the requirements of the immediately preceding sentence in
the same manner as if were a Bank solely for purposes of subsection 10.7
hereof.  It is understood and agreed that
in the event of a breach of confidentiality, damages may not be an adequate
remedy and that JPMorgan Chase Bank, N.A. shall be entitled to injunctive
relief to restrain any such breach, threatened or actual.  Notwithstanding anything herein to the
contrary, the Borrowers, the Banks and the Administrative Agent are entitled to
disclose and use the Markit Data in the normal course of their business as it
relates to the Agreement, including but not limited to disclosing such
information to regulators, ratings agencies, league table providers and
prospective assignees and participants.


 


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


 


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


 


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


 


(b)                                  the Commitment and Loans of such Defaulting Bank
shall not be included in determining
whether all Banks, the Majority Banks or the Required Banks have
taken or may take any action hereunder (including any consent to any amendment
or 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 Bank
hereunder (whether on account of principal, interest, fees or otherwise and
including any amount that would otherwise 


 


38

















 


be payable to such Defaulting Bank pursuant to subsection 10.6 but
excluding subsection 2.19) shall, in lieu of being distributed to such
Defaulting Bank, be retained by the Administrative Agent in a segregated
account and, subject to any applicable requirements of law, be applied at such
time or times as may be determined by the Administrative Agent, in the
following order of priority:  (i) first,
to the payment of any amounts owing by such Defaulting Bank to the
Administrative Agent hereunder, (ii) second, to the funding of any
Loan in respect of which such Defaulting Bank has failed to fund its portion
thereof as required by this Agreement and (iii) third, if so
determined by the Administrative Agent and the Company, held in such account as
cash collateral for future funding obligations of the Defaulting Bank in
respect of any Loans under this Agreement.


 


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


 


In the event that the Administrative Agent
and the Company agree that a Defaulting Bank has adequately remedied all
matters that caused such Bank to be a Defaulting Bank, then such Bank shall
purchase at par such of the Loans of the other Banks (other than Competitive
Loans) as the Administrative Agent shall determine may be necessary in order
for such Bank to hold such Loans in accordance with its Commitment Percentage
and such Bank shall no longer be a Defaulting Bank.


 


SECTION 3                                   REPRESENTATIONS AND WARRANTIES


 


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


 


3.1.                              Financial
Condition.  The consolidated balance
sheet of such Borrower and its consolidated Subsidiaries as at October 31,
2008 and the related consolidated statements of income and of cash flow for the
fiscal year then ended (including the related schedules and notes) reported on
by Deloitte & Touche LLP, copies of which have heretofore been
furnished to each Bank, fairly present the consolidated financial condition of
such Borrower and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and changes in financial position for
the fiscal year then ended.  All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with generally accepted accounting principles in
the United States of America applied consistently throughout the periods
involved (except as approved by such accountants or Responsible Officer, as the
case may be, and as disclosed therein).


 


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


 


3.3.                              Corporate
Power; Authorization; Enforceable Obligations.  Such Borrower has the corporate power and
authority and the legal right to execute, deliver and perform this Agreement
and to borrow hereunder and has taken all necessary corporate action to
authorize its borrowings on the terms and conditions of this Agreement and to
authorize its execution, 


 


39

















 


delivery
and performance of this Agreement.  No
consent or authorization of, filing with, or other act by or in respect of, any
Governmental Authority, is required in connection with the borrowings hereunder
or with the execution, delivery, performance, validity or enforceability of
this Agreement other than any such consents, authorizations, filings or acts as
have been obtained, taken or made and are in full force and effect.  This Agreement has been duly executed and
delivered on behalf of such Borrower, and this Agreement constitutes a legal,
valid and binding obligation of such Borrower enforceable against such Borrower
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and by general equity
principles (whether enforcement is sought by proceedings in equity or at law).


 


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


 


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


 


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


 


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


 


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


 


40

















 


ownership
of such Borrower or the assets or stock or other evidences of ownership of any
other Person or Persons.


 


SECTION 4                                   CONDITIONS PRECEDENT


 


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


 


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


 


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


 


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


 


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


 


(e)                                  No
Material Adverse Change Certificate. 
The Administrative Agent shall have received concurrently with the
execution of this Agreement, with a counterpart for each Bank, a certificate of
a Responsible Officer for each Borrower dated the date of this Agreement
certifying that since October 31, 2008, at the date of such certificate
there has been no material adverse change in the business, property,
operations, condition (financial or otherwise) or prospects of such Borrower
and its Subsidiaries, taken as a whole.


 


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


 


41

















 


(g)                                 Termination
of 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 and
accrued under the Existing Credit Agreement as of the Closing Date.  Upon effectiveness of this Agreement, the
Existing Credit Agreement shall terminate.


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 5                                   AFFIRMATIVE COVENANTS


 


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


 


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


 


(a)                                  as
soon as available, but in any event within 120 days after the end of each
fiscal year of such Borrower, a copy of the consolidated balance sheet of such
Borrower 


 


42

















 


and its
consolidated Subsidiaries as at the end of such year and the related
consolidated statements of income and of cash flow for such year, reported on
by Deloitte & Touche LLP or other independent certified public
accountants of nationally recognized standing; and


 


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


 


all such financial statements
to present fairly the consolidated financial condition and results of
operations of such Borrower and its consolidated Subsidiaries and to be
prepared in accordance with generally accepted accounting principles in the
United States of America applied consistently throughout the periods reflected
therein (except as approved by such accountants or officer, as the case may be,
and disclosed therein).  Such Borrower
shall be deemed to have furnished such financial statements to each Bank when
they are filed with the Securities and Exchange Commission and posted on its
EDGAR system.


 


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


 


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


 


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


 


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


 


5.4.                              Capital
Corporation Indenture Documents.  The
Capital Corporation shall, contemporaneously with the delivery thereof to the
trustee, furnish to each Bank a copy of any 


 


43

















 


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


 


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


 


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


 


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


 


SECTION 6                                   NEGATIVE COVENANTS OF THE
COMPANY


 


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


 


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


 


(a)                                  either
the Company shall be the continuing corporation, or the corporation (if other
than the Company) formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer the properties
and assets of the Company substantially as an entirety shall expressly assume,
by an assumption agreement, executed and delivered to the Administrative Agent,
in form satisfactory to the Majority Banks, the due and punctual payment of the
principal of and interest on the Loans to the Company and the performance of
every covenant of this Agreement on the part of the Company to be performed or
observed;


 


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


 


44
















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(v)                                 Mortgages
in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States 


 


45

















 


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


 


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


 


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


 


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


 


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


 


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


 


(xi)                                Mortgages
on Margin Stock owned by the Company and its Restricted Subsidiaries to the
extent such Margin Stock so Mortgaged exceeds 25% of the fair market value of
the sum of the Important Property of the Company and the Restricted 


 


46

















 


Subsidiaries
plus the shares of stock (including Margin Stock) and indebtedness issued or
incurred by the Restricted Subsidiaries; and


 


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


 


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


 


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


 


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


 


47

















 


by a direct lien on
all such property prior to all liens other than any liens theretofore existing
thereon by an assumption agreement or otherwise.


 


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


 


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


 


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


 


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


 


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


 


48

















 


SECTION 7                                   NEGATIVE COVENANTS OF THE
CAPITAL CORPORATION


 


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


 


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


 


7.2.                              Consolidated
Senior Debt to Consolidated Capital Base.  Permit the ratio of Consolidated Senior Debt
to Consolidated Capital Base as at the end of any fiscal quarter of the Capital
Corporation and its consolidated Subsidiaries (including the end of any fiscal
year of the Capital Corporation and its consolidated Subsidiaries) to be more
than 11 to 1.


 


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


 


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


 


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


 


(c)                                  any deposit or pledge of assets (i) with
any surety company or clerk of any court, or in escrow, as collateral in
connection with or in lieu of, any bond on appeal from any judgment or decree
against the Capital Corporation or a Subsidiary of the Capital Corporation, or
in connection with other proceedings or actions at law or in equity by or
against the Capital Corporation or a Subsidiary of the Capital Corporation or (ii) as
security for the performance of any contract or undertaking not directly or
indirectly related to the borrowing of money or the securing of indebtedness,
if made in the ordinary course of business, or (iii) with any governmental
agency, which deposit or pledge is required or permitted to qualify the Capital
Corporation or a Subsidiary of the Capital Corporation to conduct business, to
maintain self-insurance, or to obtain the benefits of any law pertaining to
workmen’s compensation, unemployment insurance, old age pensions, social
security, or similar matters, or (iv) made in the 


 


49

















 


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


 


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


 


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


 


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


 


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


 


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


 


(i)                                     any Mortgage securing
Securitization Indebtedness;


 


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


 


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


 


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


 


50

















 


the
same effect as if the successor corporation had been named as the Capital
Corporation herein and therein.


 


SECTION 8                                   EVENTS OF DEFAULT


 


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


 


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


 


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


 


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


 


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


 


(e)                                  (i) 
Either Borrower or any of its Significant Subsidiaries shall default in any
payment of principal of or interest on any indebtedness for borrowed money
(other than the Loans and any Securitization Indebtedness) in a principal
amount in excess of $50,000,000 in the aggregate, or any interest or premium
thereon, when due (whether at scheduled maturity or by required prepayment,
acceleration, demand or otherwise) and such failure shall continue beyond the
period of grace, if any, provided in the instrument or agreement under which
such indebtedness was created; or (ii) any other default (other than any
default arising solely out of either Borrower’s, or any of its Significant
Subsidiaries’, violation of any arrangement with any Bank, or any affiliate of
any Bank, in any way restricting such Borrower’s, or such Significant
Subsidiary’s, right or ability to sell, pledge or otherwise dispose of Margin
Stock other than Restricted Margin Stock), or any other event that with notice
or the lapse of time, or both, would constitute such a default, under any
agreement or instrument relating to any such indebtedness for borrowed money
(other than the Loans), shall occur and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the effect
of such default or event is to accelerate the maturity of such indebtedness; or
(iii) any such indebtedness for borrowed money shall, by reason of
default, be declared to be due and 


 


51

















 


payable, or
required to be prepaid, prior to the stated maturity thereof (unless such
indebtedness is declared due and payable, or required to be prepaid, solely by
reason of either Borrower’s, or any of its Significant Subsidiaries’, violation
of any arrangement with any Bank, or any affiliate of any Bank, in any way
restricting such Borrower’s, or such Significant Subsidiary’s, right or ability
to sell, pledge or otherwise dispose of Margin Stock other than Restricted
Margin Stock); or


 


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


 


(g)                                 Any
action is undertaken to terminate any Plan as to which either Borrower, or any
Subsidiary of either Borrower, may have liability, or any such Plan is
terminated or such Borrower or Subsidiary withdraws from such Plan, or any
Reportable Event as to any such Plan shall occur, and there shall exist a
deficiency in the assets available to satisfy the benefits guaranteeable under ERISA
with respect to such Plan, in the aggregate for all such Plans with respect to
which any of the foregoing shall have occurred in the immediately preceding 12
consecutive months, of more than 25% of the Consolidated Net Worth of such
Borrower and in the reasonable judgment of the Required Banks, such occurrence
is reasonably expected to have a material adverse effect on the business,
operations or condition (financial or otherwise) of the Borrowers; or


 


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


 


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


 


52

















 


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


 


SECTION 9                                   THE AGENTS


 


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


 


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


 


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


 


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


 


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


 


53

















 


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


 


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


 


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


 


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


 


54

















 


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


 


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


 


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


 


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


 


SECTION 10                             MISCELLANEOUS


 


10.1.                        Amendments
and Waivers.  With the written
consent of the Majority Banks, the Administrative Agent and the Borrowers may,
from time to time, enter into written amendments, supplements or modifications
hereto for the purpose of adding any provisions to 


 


55

















 


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


 


10.2.                        Notices.  All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing, by facsimile
transmission, by telephone confirmed in writing and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand, or when deposited in the mail, postage prepaid, or, in the case of facsimile
transmission, when received, addressed as follows in the case of the Borrowers,
the Administrative Agent, or to such address or other address as may be
hereafter notified by the respective parties hereto:


 


56
















 


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


 


57

















 


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


 


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


 


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


 


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


 


58

















 


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


 


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


 


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


 


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


 


59

















 


(b)           Any Bank may, in the ordinary course
of its commercial banking business and in accordance with applicable law, at
any time sell to one or more banks or other financial institutions (“Participants”)
participating interests in the Loans, Commitments and other interests of such
Bank hereunder.  In the event of any such
sale by a Bank of participating interests to a Participant, such Bank’s
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Loan for all purposes
under this Agreement, and the Borrowers and the Administrative Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank’s rights and obligations under this Agreement.


 


(c)           Any Bank may, in the ordinary course
of its commercial banking business and in accordance with applicable law, at
any time assign to one or more banks or other financial institutions (“Loan
Assignees”) any Bid Loan or Negotiated Rate Loan or portion thereof owing
to such Bank, pursuant to a Loan Assignment executed by the assignor Bank and
the Loan Assignee.  Upon such execution,
from and after the Transfer Effective Date specified in such Loan Assignment,
the Loan Assignee shall, to the extent of the assignment provided for in such
Loan Assignment and to the extent permitted by applicable law, be deemed to
have the same rights and benefits with respect to such Bid Loans and Negotiated
Rate Loans and the same obligation to share pursuant to subsection 10.6 as it
would have had if it were a Bank hereunder; provided, that unless such
Loan Assignment shall otherwise specify and a copy of such Loan Assignment
shall have been delivered to the Administrative Agent for its acceptance and
recording in the Register in accordance with subsection 10.5(f), the assignor
Bank shall act as collection agent for the Loan Assignee, and in the case of
Bid Loans, the Administrative Agent shall pay all amounts received from the
relevant Borrower which are allocable to the assigned Bid Loan directly to the
assignor Bank without any further liability to the relevant Loan Assignee, and,
in the case of Negotiated Rate Loans, the relevant Borrower shall pay all
amounts due under the assigned Negotiated Rate Loan directly to the assignor
Bank without any further liability to the Loan Assignee.  At the request of any Loan Assignee, on or
promptly after the Transfer Effective Date specified in such Loan Assignment,
the relevant Borrower, at its own expense, shall execute and deliver to the
Loan Assignee a promissory note with respect to the Bid Loans or Negotiated
Rate Loans to the order of such Loan Assignee in an amount equal to the Bid
Loan or Negotiated Rate Loan assigned. 
Such note shall be dated the Borrowing Date in respect of such Bid Loan
or Negotiated Rate Loan and shall otherwise be in the form of Exhibit M; provided,
however, that such Borrower shall not be required to execute and deliver
more than an aggregate of two notes with respect to the Bid Loans of any Bank
with the same Interest Period at any time outstanding.  A Loan Assignee shall not, by virtue of such
Loan Assignment, become a party to this Agreement or have any rights to consent
to or refrain from consenting to any amendment, waiver or other modification of
any provision of this Agreement or any related document; provided, that (i) the
assignor Bank and the Loan Assignee may, in their discretion, agree between
themselves upon the manner in which the assignor Bank will exercise its rights
under this Agreement and any related document, and (ii) if a copy of such
Loan Assignment shall have been delivered to the Administrative Agent for its
acceptance and recording in the Register in accordance with subsection 10.5(f),
neither the principal amount of, the interest rate on, nor the maturity date
of, any Bid Loan or Negotiated Rate Loan assigned to a Loan Assignee will be
modified without written consent of such Loan Assignee.


 


60

















 


(d)           Any Bank may, in the ordinary course
of its commercial banking business and in accordance with applicable law, sell
to any Bank or any affiliate thereof and to one or more additional banks or
other financial institutions (“Purchasing Banks”), all or any portion
(subject to the last sentence of this subsection 10.5(d)) of its rights (which
rights may include such Bank’s rights in respect of Loans it has disbursed) and
obligations under this Agreement with the prior written consent (such consent
not to be unreasonably withheld) of the Borrowers.  Such sale shall be made pursuant to a
Commitment Transfer Supplement, executed by such Purchasing Bank and such
transferor Bank (and, in the case of a Purchasing Bank that is not then a Bank
or an affiliate thereof, by the Borrowers and the Administrative Agent), and
delivered to the Administrative Agent for its acceptance and recording in the
Register.  Upon such execution, delivery,
acceptance and recording, from and after the Transfer Effective Date specified
in such Commitment Transfer Supplement, (i) the Purchasing Bank thereunder
shall be a party hereto with respect to the interest purchased and, to the
extent provided in such Commitment Transfer Supplement, have the rights and
obligations of a Bank hereunder with a Commitment as set forth therein, and (ii) the
transferor Bank thereunder shall cease to have those rights and obligations
under this Agreement to which the Purchasing Bank has succeeded (and, in the
case of a Commitment Transfer Supplement covering all or the remaining portion
of a transferor Bank’s rights and obligations under this Agreement, such
transferor Bank shall cease to be a party hereto).  Such Commitment Transfer Supplement shall be
deemed to amend this Agreement to the extent, and only to the extent, necessary
to reflect the addition of such Purchasing Bank and the resulting adjustment of
Commitments and Commitment Percentages arising from the purchase by such
Purchasing Bank of a portion of the rights and obligations of such transferor
Bank under this Agreement.  On or
promptly after the Transfer Effective Date specified in such Commitment
Transfer Supplement, the Purchasing Bank and the Administrative Agent, on
behalf of such Purchasing Bank, shall open and maintain in the name of each
Borrower a Loan Account with respect to such Purchasing Bank’s Committed Rate
Loans and Bid Loans to such Borrower. 
Anything contained in this Agreement to the contrary notwithstanding, no
Bank may sell any portion of its rights and obligations under this subsection
10.5(d) to any bank or financial institution without the prior written
consent (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 may
be, (i) the Commitment of either of the selling and purchasing
institutions would be greater than $0 but less than $5,000,000, (ii) the
Purchasing Bank, together with all of its affiliates, would have a Commitment
Percentage of more than 15% (or, if the Commitments shall have been terminated,
such Purchasing Bank, together with all of its affiliates, would hold Loans
aggregating to more than 15% in principal amount of all outstanding Loans), (iii) the
Credit Rating of any Purchasing Bank shall be less than BBB+ from S&P or
less than Baa1 from Moody’s or such Purchasing Bank shall have no Credit Rating
or (iv) the Purchasing Bank is not a bank, insurance company, other
financial institution or an Affiliate of any thereof that is engaged in making,
purchasing, holding or investing in bank loans or similar extensions of credit
in the ordinary course of its business.


 


(e)           The Administrative Agent shall
maintain at its address referred to in subsection 10.2 a copy of each Loan
Assignment and each Commitment Transfer Supplement delivered to it and a
register (the “Register”) for the recordation of (i) the names and
addresses of the Banks and the Commitment of, and principal amount of the Loans
(other than Negotiated Rate Loans) owing to, each Bank from time to time, and (ii) with
respect to each Loan Assignment delivered to the Administrative Agent, the name
and address of the Loan Assignee


 


61

















 


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


 


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


 


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


 


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


 


62

















 


United States, a state thereof or the
District of Columbia or (B) that under applicable law and treaties no
taxes will be required to be withheld by the Administrative Agent, the
Borrowers or the transferor Bank with respect to any payments to be made to
such Transferee in respect of the Loans, (ii) if the Transferee is not
incorporated under the laws of the United States, a state thereof or the
District of Columbia, (A) to furnish to the transferor Bank, the
Administrative Agent and the Borrowers, a letter in duplicate in the form of Exhibit J
or Exhibit K, as appropriate, and two duly completed copies of United
States Internal Revenue Service Form W-8BEN or W-8ECI or successor
applicable form, as the case may be, certifying in each case that such
Transferee is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes, or in the
case of a Bank claiming exemption under Sections 871(h) or 881(c) of
the Code, a Certificate of Non-Bank Status together with two original copies of
an Internal Revenue Service Form W-8BEN, or successor applicable form, as
the case may be, to establish an exemption from United States backup
withholding tax, and (B) to agree (for the benefit of the transferor Bank,
the Administrative Agent and the Borrowers) to provide the transferor Bank, the
Administrative Agent and the Borrowers a new letter or a new Certificate of
Non-Bank Status, if applicable, Form W-8BEN or W-8ECI, or successor
applicable form or other manner of certification, on or before the date that
any such letter or form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent letter or form previously
delivered by it, certifying in the case of a Form W-8BEN or W-8ECI that
such Transferee is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income tax, and in the
case of a Form W-8BEN establishing exemption from United States backup
withholding tax.  The Administrative
Agent shall not be responsible for obtaining such documentation except from its
own Transferees.


 


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


 


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


 


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


 


63

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


64

















 


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


 


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


 


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


 


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


 


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


 


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


 


10.11.      USA
PATRIOT Act.


 


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


 


65

















 


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


 


66
















 


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


 


	
   

  	
  DEERE & COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JOHN DEERE CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


[Signature Page to 2009 364-Day Credit Agreement]


 

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as Administrative Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


[Signature Page to 2009 364-Day Credit Agreement]


 

















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Syndication Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


[Signature Page to 2009 364-Day Credit Agreement]


 

















 


	
   

  	
  CITIBANK, N.A.,

  
	
   

  	
  as a Documentation Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


[Signature Page to 2009 364-Day Credit Agreement]


 

















 


	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

  
	
   

  	
  as a Documentation Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


[Signature Page to 2009 364-Day Credit Agreement]


 

















 


	
   

  	
  DEUTSCHE BANK AG NEW YORK BRANCH,

  
	
   

  	
  as a Documentation Agent and as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


[Signature Page to 2009 364-Day Credit Agreement]


 

















 


	
   

  	
                                                                   ,

  
	
   

  	
  as a Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


[Signature Page to 2009 364-Day Credit Agreement]


 
















 


SCHEDULE I


 


TERMS OF SUBORDINATION


 


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


 


SUBORDINATION


 


Section 1. 
Agreement to Subordinate.


 


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


 


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


 


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


 


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


 

















 


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


 


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


 


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



 


2

















 


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


 


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


 


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


 


3

















 


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

  	
   

  



 

















 


SCHEDULE III


 


ADDRESSES FOR NOTICES


 


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


 

















 


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, among
DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties
thereto, 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 OF AMERICA, N.A., as Syndication Agent (as the
same may be amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), the undersigned hereby requests that the following Committed
Rate Loans be made on                     ,
20      as follows:


 


	
  (1)  Total Amount of Committed Rate Loans

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (2)  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.

  	
   

  	
  $

  	
   

  	
   

  



 

















 


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 the
same meanings when used herein.


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [DEERE & COMPANY]

  
	
   

  	
  [JOHN DEERE CAPITAL
  CORPORATION]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 

















 


EXHIBIT B


 


[FORM OF BID LOAN REQUEST]


 


                    , 20     


 


JPMorgan Chase Bank, N.A., 


as
Administrative Agent under the Credit Agreement referred to below 


1111 Fannin Street, 10th Floor

Houston, Texas  77002

Attention:  Talitha Humes


 


Ladies and Gentlemen:


 


Reference is made to the $750,000,000 364-Day Credit
Agreement, dated as of March 3, 2009, among DEERE & COMPANY, JOHN
DEERE CAPITAL CORPORATION, the Banks parties thereto, 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
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 in the Credit Agreement are
used herein as therein defined.


 


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


 


	
  Aggregate Principal Amount

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  
	
  Borrowing Date

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Interest Period

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maturity Period

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Interest Payment Dates

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Interest Rate Basis

  	
   

  	
  360 day year 

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NOTE:

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

  	
   

  
												



 

















 


B-2


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [DEERE & COMPANY]

  
	
   

  	
  [JOHN DEERE CAPITAL
  CORPORATION]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 






	
  Note:

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

  



 
















 


EXHIBIT C


 


[FORM OF BID LOAN OFFER]


 


                    ,
20     


 


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


1111 Fannin Street, 10th Floor


Houston, Texas  77002


Attention: 
Talitha Humes


 


Ladies and Gentlemen:


 


Reference is made to the $750,000,000 364-Day
Credit Agreement, dated as of March 3, 2009, among DEERE &
COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, 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 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 in the
Credit Agreement are used herein as therein defined.


 


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


 


Borrowing Date:                                    ,
20     


 


Aggregate Maximum Amount:  $             


 

















 


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:

  



 






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


 

















 


EXHIBIT D


 


[FORM OF BID LOAN CONFIRMATION]


 


                            ,
20     


 


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


under the Credit Agreement referred 


to below


1111 Fannin Street, 10th Floor


Houston, Texas  77002


Attention: 
Talitha Humes


 


Ladies and Gentlemen:


 


Reference is made to the $750,000,000 364-Day
Credit Agreement, dated as of March 3, 2009, among DEERE &
COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, 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 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 in the
Credit Agreement are used herein as therein defined.


 


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


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [DEERE & COMPANY]

  
	
   

  	
  [JOHN DEERE CAPITAL CORPORATION]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


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


 

















 


EXHIBIT E


 


[FORM OF LOAN ASSIGNMENT]


 


LOAN ASSIGNMENT


 


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


 


W I T N E S S E T H :


 


WHEREAS, this Loan Assignment is being
executed and delivered in accordance with subsection 10.5(c) of the
$750,000,000 364-Day Credit Agreement, dated as of March 3, 2009 among
DEERE & COMPANY (the “Company”), JOHN DEERE CAPITAL CORPORATION
(the “Capital Corporation”), the Banks parties thereto, JPMORGAN CHASE
BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE, CAYMAN
ISLANDS 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 or
portion thereof described in Item 5 of Schedule I hereto (the “Loan”),
and the Assignor Bank is assigning the Loan to the Loan Assignee pursuant to
this Loan Assignment;


 


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


 


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


 


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


 


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


 

















 


E-2


 


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


 


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


 


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


 


5.             The Loan Assignee will on, or prior
to the Transfer Effective Date, (i) represent to the Assignor Bank (for
the benefit of the Assignor Bank, the Administrative Agent and the Borrowers)
either (A) that it is incorporated under the laws of the United States, a
state thereof, or the District of Columbia or (B) that the under
applicable law and treaties no taxes will 


 

















 


E-3


 


be required to be withheld by the
Administrative Agent, the Borrowers or the Assignor Bank with respect to any
payments to be made to such Loan Assignee in respect of the Loans, (ii) if
the Loan Assignee is not incorporated under the laws of the United States, a
state thereof, or the District of Columbia, (A) furnish to the Assignor
Bank, the Administrative Agent and the Borrowers, on or prior to the Transfer
Effective Date, a letter in duplicate in the form of Exhibit J or Exhibit K,
as appropriate, to the Credit Agreement and two duly completed copies of either
U.S. Internal Revenue Service Form W-8BEN or U.S. Internal Revenue Service
Form W-8ECI or successor applicable form, as the case may be (wherein the
Loan Assignee claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments under the Loan either because of
treaty benefits or under applicable law), or in the case of a Loan Assignee
that is claiming exemption under Sections 871(h) or 881(c) of the
Code, a Certificate of Non-Bank Status together with two original copies of
U.S. Internal Revenue Service Form W-8BEN or successor applicable form (wherein
the Loan Assignee claims entitlement to complete exemption from U.S. federal
backup withholding tax on all interest payments under the Loan) and (B) agree
to provide, to the extent it may lawfully do so, to the Assignor Bank, the
Administrative Agent and the Borrowers a new Form W-8BEN or Form W-8ECI
or successor applicable form or other manner of certification on or before the
expiration or obsolescence of, or after the occurrence of any event requiring a
change in, 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 Assignee
is entitled to receive payments in respect of the Loan without deduction or
withholding of any United States federal income tax, and in the case of a Form W-8BEN
establishing exemption from United States backup withholding tax.


 


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


 


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


 


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


 
















 


SCHEDULE I

TO LOAN

ASSIGNMENT


 


	
  Item 1

  	
   

  	
  (Date of Loan Assignment) :

  	
   

  	
  [Insert date of Loan Assignment]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 2

  	
   

  	
  (Assignor Bank):

  	
   

  	
  [Insert name of Assignor Bank]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 3

  	
   

  	
  (Loan Assignee):

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 4

  	
   

  	
  (Transfer Effective Date):

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 5

  	
   

  	
  (Description of Loan):

  	
   

  	
  [Bid Loan or Negotiated Rate Loan]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  a.             Borrowing Date
  and Maturity Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  b.             Principal Amount
  of Loan:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 6

  	
   

  	
  (Payment Instructions):

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 7

  	
   

  	
  (Signatures):

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  , as

  
	
   

  	
   

  	
   

  	
   

  	
  Assignor Bank

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  , as

  
	
   

  	
   

  	
   

  	
   

  	
  Loan Assignee

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  
							



 


ACCEPTED FOR RECORDATION 

IN REGISTER:


 


JPMORGAN CHASE BANK, N.A., as 

Administrative Agent 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT F


 


[FORM OF COMMITMENT TRANSFER SUPPLEMENT]


 


COMMITMENT TRANSFER SUPPLEMENT


 


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


 


W I T N E S S E T H :


 


WHEREAS, this Commitment Transfer Supplement
is being executed and delivered in accordance with subsection 10.5(d) of
the $750,000,000 364-Day Credit Agreement, dated as of March 3, 2009,
among the Company, the Capital Corporation, the Transferor Bank and the other
Banks party thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent,
CITIBANK, N.A., CREDIT SUISSE, CAYMAN ISLANDS 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);


 


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


 


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


 


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


 


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


 


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


 

















 


F-2


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 

















 


F-3


 


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


 


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


 


9.             The Purchasing Bank will on or
prior to the Transfer Effective Date (i) represent to the Transferor Bank
(for the benefit of the Transferor Bank, the Administrative Agent and the
Borrowers) either (A) that it is incorporated under the laws of the United
States, a state thereof or the District of Columbia, or (B) that under
applicable law and treaties no taxes will be required to be withheld by the
Transferor Bank, Administrative Agent or the Borrowers with respect to any
payments to be made to the Purchasing Bank in respect of the Loans, (ii) if
the Purchasing Bank is not incorporated under the laws of the United States, a
state thereof or the District of Columbia, (A) furnish to the Transferor
Bank, the Administrative Agent and the Borrowers, on or prior to the Transfer
Effective Date, a letter in duplicate in the form of Exhibit J or Exhibit K,
as appropriate, to the Credit Agreement and two duly completed copies of either
U.S. Internal Revenue Service Form W-8BEN or U.S. Internal Revenue Service
Form W-8ECI or successor applicable form, as the case may be (wherein the
Purchasing Bank claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments in respect of the Loans), or in the
case of a Purchasing Bank claiming exemption under Sections 871(h) or 881(c) of
the Code, a Certificate of Non-Bank Status together with two original copies of
U.S. Internal Revenue Service Form W-8BEN or successor applicable form
(wherein the 


 

















 


F-4


 


Purchasing Bank claims entitlement to
complete exemption from U.S. federal backup withholding on all interest
payments under the Loan) and (B) agrees, to the extent it may lawfully do
so, to provide the Transferor Bank, the Administrative Agent and the Borrowers
a new Form W-8BEN or Form W-8ECI or successor applicable form or
other manner of certification on or before the expiration or obsolescence of,
or after the occurrence of any event requiring a change in, the most recent
letter and form previously delivered by it, certifying the case of a Form W-8BEN
or W-8ECI that such Purchasing Bank is entitled to receive payments in respect
of the Loan without deduction or withholding of any United States federal
income tax, and in the case of a Form W-8BEN establishing exemption from
United States backup withholding tax.


 


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


 


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


 


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


 


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


 
















 


SCHEDULE I

TO

COMMITMENT

TRANSFER

SUPPLEMENT


 


COMPLETION OF INFORMATION AND


SIGNATURES FOR COMMITMENT


TRANSFER
SUPPLEMENT


 


	
  Item 1

  	
   

  	
  (Date of Commitment Transfer Supplement):

  	
   

  	
  [Insert date of Commitment Transfer Supplement]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 2

  	
   

  	
  (Transferor Bank):

  	
   

  	
  [Insert name of Transferor Bank]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 3

  	
   

  	
  (Purchasing Bank[s])

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 4

  	
   

  	
  (Transfer Effective Date):

  	
   

  	
  [Insert Transfer Effective Date:]

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Item 5

  	
   

  	
  (Signatures of Parties to Commitment Transfer 

  	
   

  	
   

  	
  ,

  
	
   

  	
   

  	
  Supplement):

  	
   

  	
  as Transferor Bank

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  ,

  
	
   

  	
   

  	
   

  	
   

  	
  as a Purchasing Bank

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  ,

  
	
   

  	
   

  	
   

  	
   

  	
  as a Purchasing Bank

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title:

  
							



 

















 


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:

  	
   

  



 






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


 

















 


SCHEDULE II

TO COMMITMENT

TRANSFER

SUPPLEMENT


 


LIST OF LENDING OFFICES, ADDRESSES

FOR NOTICES AND COMMITMENT AMOUNTS


 


	
  [Name of Transferor Bank]

  	
   

  	
  Revised Commitment Amount:

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Revised Commitment Percentage:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Name of Purchasing Bank]

  	
   

  	
  New Commitment Amount:

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  New Commitment Percentage:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attn:  

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:  

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [Name of Purchasing Bank]

  	
   

  	
  New Commitment Amount:

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  New Commitment Percentage:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Attn:  

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:  

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:  

  	
   

  	
   

  	
   

  	
   

  	
   

  
										



 
















 


EXHIBIT G


 


[FORM OF OPINION OF GENERAL COUNSEL

TO THE COMPANY]


 


[Closing Date]


 


To each of the Banks parties to

the Credit Agreement referred to

below and to JPMorgan Chase

Bank, N.A. as Administrative Agent


 


Deere & Company and

John Deere Capital Corporation


 


Ladies and Gentlemen:


 


This opinion is furnished to you pursuant to
subsection 4.1(c) of the $750,000,000 364-Day Credit Agreement dated as of
March 3, 2009 (the “Credit Agreement”) among DEERE & COMPANY (the
“Company”), JOHN DEERE CAPITAL CORPORATION (the “Capital Corporation”, the
Company and the Capital Corporation being referred to herein individually as a “Borrower”
and collectively as the “Borrowers”), the Banks parties thereto, JPMORGAN CHASE
BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE, CAYMAN
ISLANDS 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 are
used herein as therein defined.


 


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


 


1.                                       The
Credit Agreement;


 


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


 


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


 


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


 


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


 

















 


G-2


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Very truly yours,


 

















 


G-3


 


James R. Jenkins


 

















 


EXHIBIT H


 


[FORM OF OPINION OF SPECIAL NEW YORK
COUNSEL

TO THE BORROWERS]


 


[Closing
Date]


 


To each of the Banks parties to
the

Credit Agreement referred to below and

to JPMorgan Chase Bank, N.A., as

Administrative Agent


 


Deere &
Company

John Deere Capital Corporation


 


Ladies and Gentlemen:


 


We have acted as New York counsel to DEERE &
COMPANY, a Delaware corporation (the “Company”) and JOHN DEERE CAPITAL
CORPORATION, a Delaware corporation (the “Capital Corporation”, the Company and
the Capital Corporation being referred to herein as the “Borrowers”), in
connection with the $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., CREDIT
SUISSE, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORK BRANCH, as
Documentation Agents, and BANK OF AMERICA, N.A., as Syndication Agent.  Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as therein defined.


 


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


 


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


 


(A)                              The
genuineness of all signatures.


 


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


 


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


 


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


 


(E)                                 That:


 

















 


H-2


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 

















 


H-3


 


Our opinion
expressed above is subject to the following qualifications:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


This opinion
letter is rendered to you in connection with the transactions contemplated by
the Credit Agreement.  This opinion
letter may not be relied upon by you or any person entitled to rely on this
opinion pursuant to the preceding paragraph for any other purpose without our
prior written consent.


 


This opinion
letter speaks only as of the date hereof. 
We expressly disclaim any responsibility to advise you of any
development or circumstance of any kind, including any change of law or fact,
that may occur after the date of this opinion letter even though such 


 

















 


H-4


 


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


 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SHEARMAN & STERLING LLP

  



 

















 


EXHIBIT I


 


[FORM OF EXTENSION REQUEST]


 


                                      , 20     


 


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

1111 Fannin, 10th Floor

Houston, Texas 77002

Attention:  Talitha Humes


 


Ladies and Gentlemen:


 


Reference is made to the $750,000,000 364-Day Credit Agreement, dated
as of March 3, 2009,
among DEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, the
Banks parties thereto, 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 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 in the Credit Agreement are
used herein as therein defined.


 


This is an Extension Request pursuant to subsection 2.16 of the Credit
Agreement requesting an extension of the Termination Date to [INSERT REQUESTED
TERMINATION DATE].  Please transmit a
copy of this Extension Request to each of the Banks.


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  DEERE &
  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JOHN DEERE
  CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 

















 


EXHIBIT J


 


[FORM OF W-8BEN TAX LETTER]


 


[To be sent in DUPLICATE and
accompanied

by TWO executed copies of Form W-8BEN of

the Internal Revenue Service]


 


[Bank’s Letterhead]


 


                               ,
20     


 


Deere & Company

One John Deere Place

Moline, Illinois  61265

Attention:  Treasurer


 


John Deere Capital Corporation

First National Bank Building

1 East First Street

Reno, Nevada  89501

Attention:  Manager


 


	
   

  	
  Re:

  	
  $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-Day
Credit Agreement, dated as of March 3, 2009, among DEERE &
COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, 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 OF AMERICA, N.A., as Syndication Agent, we hereby represent and
warrant that [name of Bank, address] is a [name of Country] corporation and is
currently exempt from any U.S. federal withholding tax on payments to it from
U.S. sources by virtue of compliance with the provisions of the Income Tax
Convention between the United States and [name of Country] signed [date], [as
amended].  Our fiscal year is the twelve
months ending                ].


 


The undersigned (a) is a [corporation]
organized under the laws of [              ]
whose [registered] business is managed or controlled in [              ],
(b) [does not have a permanent establishment or fixed base in the United
States] [does have a permanent establishment or fixed base in the United States
but the above Agreement is not effectively connected with such permanent
establishment or fixed base], (c) is not exempt from tax on the income in
[              ]
and (d) is the beneficial owner of the income.


 

















 


J-2


 


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


 


	
   

  	
  Yours faithfully,

  
	
   

  	
   

  
	
   

  	
  [NAME OF BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


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


 
















 


EXHIBIT K


 


[FORM OF W-8ECI TAX
LETTER]


 


[To be sent in DUPLICATE and
accompanied

by TWO executed copies of Form W-8ECI of

the Internal Revenue Service]


 


[Bank’s Letterhead]


 


                     ,
20     


 


Deere & Company

One John Deere Place

Moline, Illinois  61265

Attention:  Treasurer


 


John Deere Capital Corporation

First National Bank Building

1 East First Street

Reno, Nevada  89501

Attention:  Manager


 


Re:                               $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 above $750,000,000
364-Day Credit Agreement, dated as of March 3, 2009, among DEERE &
COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, 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 OF AMERICA, N.A., as Syndication Agent, we hereby represent
and warrant that [name of Bank, address] is a [corporation] and is entitled to
exemption from U.S. federal withholding tax on payments to it under the
Agreement by virtue of Section 1441(c)(1) of the Internal Revenue
Code of the United States of America and Treasury Regulation Section 1.1441-4(a) thereunder.


 

















 


K-2


 


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


 


	
   

  	
  Yours faithfully,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


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


 

















 


EXHIBIT L


 


[FORM OF AGREEMENT]


 


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


 


W  I  T  N  E
S  S  E  T  H :


 


WHEREAS, the Company, the Capital
Corporation, the several financial institutions parties thereto (the “Existing
Banks”), JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK,
N.A., CREDIT SUISSE, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORK
BRANCH, as Documentation Agents, and BANK OF AMERICA, N.A., as Syndication
Agent, 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 or
otherwise modified, the “Credit Agreement”; terms defined therein being
used herein as therein defined);


 


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


 


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


 


	
   

  	
   

  	
  Last day of

  	
   

  
	
  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 Cancelled
Commitments is effective in accordance with the Credit Agreement; and


 


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


 


NOW, THEREFORE, in consideration of the
premises and mutual covenants contained herein, the parties hereto agree as
follows:


 


1.                                       Benefits of
Agreement.  The Borrowers, the
Administrative Agent and the New Bank hereby [agree that on and as of the date
hereof the New Bank shall be] [confirm that the New Bank is] a “Bank” for all
purposes and shall [continue to] be bound by and entitled to the benefits of
the Credit Agreement [as if the New Bank had been named on the signature pages thereof],
provided that the New Bank shall not assume and shall, except as herein
provided, have no obligations in respect of any Loans outstanding on the date
hereof and made by any [Existing Bank.] [Cancelled Bank.]*


 


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


 






	
  *

  	
  As
  appropriate for New or Existing Banks.

  
	
   

  	
   

  
	
  **

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

  



 

















 


L-3


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3.                                       Representation
and Warranty of Borrowers.  The
Borrowers hereby represent and warrant that after giving effect to the
provisions of paragraph 2 hereof the aggregate principal amount of the
Commitments of all Banks (including, without limitation, the 


 






	
  ***

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

  
	
   

  	
   

  
	
  *

  	
  To be completed upon agreement of Borrowers and New Bank.

  



 

















 


L-4


 


Commitment of
the New Bank but excluding the cancelled or expired portion of the Commitments
of the Cancelled Banks) under the Credit Agreement do not exceed the aggregate
principal amount of the Commitments in effect immediately prior to the
cancellation referred to in the third recital hereof.


 


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


 


[5.                                   Taxes.  The New Bank (i) represents to the
Administrative Agent and the Borrowers that [it is incorporated under the laws
of the United States or a state thereof][under applicable law and treaties no
taxes will be required to be withheld by the Administrative Agent or the
Borrowers with respect to any payments to be made to such New Bank in respect
of the Loans], (ii) represents that it has furnished to the Administrative
Agent and the Borrowers (A) [a statement that it is incorporated under the
laws of the United States or a state thereof][a letter in duplicate in the form
of Exhibit [J][K] to the Credit Agreement and two duly completed copies of
United States Internal Revenue Service Form [W-8BEN][W-8ECI][successor
applicable form], certifying that such New Bank is entitled to receive payments
under the Credit Agreement without deduction or withholding of any United
States federal income taxes], and (B) [an Internal Revenue Service Form [W-8BEN]
[successor applicable form] to establish an exemption from United States backup
withholding tax, and (iii) agrees to provide the Administrative Agent and
the Borrowers a new Form [W-8BEN] and Form [W-8ECI], or successor
applicable form or other manner of certification, on or before the date that
any such letter or form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent letter and form previously
delivered by it, certifying in the case of a Form [W-8BEN][W-8ECI] that it
is entitled to receive payments under the Credit Agreement without deduction or
withholding of any United States federal income tax, and in the case of a Form [W-8BEN]
establishing exemption from United States backup withholding tax.]*


 


[5][6].                 Miscellaneous.  (a)  This Agreement may be executed by
the parties hereto in separate counterparts and all of the counterparts taken
together shall constitute one and the same instrument and shall be effective
only upon receipt by the Administrative Agent of all of the counterparts.


 


(b)                                 This
Agreement shall be governed by, and construed and interpreted in accordance
with, the law of the State of New York.


 






	
  *

  	
  Use for non-Existing Banks.

  



 

















 


L-5


 


IN WITNESS
WHEREOF, the parties have caused this Agreement to be executed and delivered as
of the day and year first above written.


 


	
   

  	
  DEERE &
  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JOHN DEERE
  CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [NAME OF NEW
  BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [Address]

  
	
   

  	
  Telephone:

  
	
   

  	
  Facsimile:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as

  
	
   

  	
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 
















 


EXHIBIT M


 


[FORM OF BID LOAN OR
NEGOTIATED RATE LOAN NOTE]


 


PROMISSORY NOTE


 


	
  $                           

  	
   

  	
  New York,
  New York

  



                     ,
20     


 


FOR VALUE RECEIVED, the undersigned, [DEERE & COMPANY] [JOHN
DEERE CAPITAL CORPORATION], a Delaware corporation (the “Borrower”),
hereby promises to pay on [insert maturity date or dates] to the order of                                 
or registered assigns (the “Bank”) at the office of [JPMorgan Chase
Bank, N.A. located at 270 Park Avenue, New York, New York 10017 — for Bid Loan
Note] [Name and address of Bank — for Negotiated Rate Loan Note], in lawful
money of the United States of America and in immediately available funds, the
principal sum of                             DOLLARS
($                        ).  The undersigned further agrees to pay
interest in like money at such office on the unpaid principal amount hereof
from time to time from the date hereof [at the rate of
      % per annum — for Bid Loan Note] [specify
rate for Negotiated Rate Loan Note] (calculated on the basis of a year of 360
days and actual days elapsed) until the due date hereof (whether at the stated
maturity, by acceleration, or otherwise) and thereafter at the rates determined
or agreed in accordance with subsection 2.2(e) of the $750,000,000 364-Day
Credit Agreement, dated as of March 3, 2009 (the “Credit Agreement”),
among the Borrower, [Deere & Company] [John Deere Capital
Corporation], the Bank, the other financial institutions parties thereto,
JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDIT
SUISSE, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORK BRANCH, as
Documentation Agents, and BANK OF AMERICA, N.A., as Syndication Agent.  Interest shall be payable on                               .
 This Note may be prepaid pursuant to the
provisions of subsection 2.6 of the Credit Agreement.


 


This Note is one of the [Bid] [Negotiated
Rate Loan] Notes referred to in, is subject to and is entitled to the benefits
of, the Credit Agreement, which Credit Agreement, among other things, contains
provisions for acceleration of the maturity hereof upon the occurrence of any
one or more of the Events of Default specified in the Credit Agreement.


 


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


 


	
   

  	
  [DEERE & COMPANY]

  
	
   

  	
  [JOHN DEERE CAPITAL CORPORATION]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 

















 


EXHIBIT N


 


FORM OF

NEW BANK SUPPLEMENT


 


SUPPLEMENT, dated               
    , to the $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 CAPITAL
CORPORATION, the banks and other financial institutions from time to time party
thereto (each a “Bank,” and together, the “Banks”), JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
and DEUTSCHE BANK AG NEW YORK BRANCH, as Documentation Agents, and BANK OF
AMERICA, N.A., as Syndication Agent. 
Unless the context otherwise requires, all capitalized terms used herein
without definition shall have the meanings ascribed to them in the Credit
Agreement.


 


W  I  T  N  E
S  S  E  T  H:


 


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


 


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


 


NOW, THEREFORE, the undersigned hereby agrees
as follows:


 


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


 


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


 

















 


N-2


 


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


 


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


 


	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Fax:

  	
   

  	
   

  
					



 


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


 


	
   

  	
  [NAME OF NEW BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  



 


Accepted this           
day of


                            ,
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 OF

COMMITMENT 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 CAPITAL
CORPORATION, the Banks parties thereto, 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 OF AMERICA,
N.A., as Syndication Agent.  Unless the
context otherwise requires, all capitalized terms used herein without
definition shall have the meanings ascribed to them in the Credit Agreement.


 


W  I  T  N  E  S  S  E  T
H:


 


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


 


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


 


NOW THEREFORE, the undersigned hereby agrees
as follows:


 


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


 

















 


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


 


	
   

  	
  [NAME OF
  BANK]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Accepted
  this            day
  of

  	
   

  
	
                              ,
  20     

  	
   

  
	
   

  	
   

  
	
  DEERE &
  COMPANY

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  JOHN DEERE
  CAPITAL CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  Accepted
  this            day
  of

  	
   

  
	
                              ,
  20     

  	
   

  
	
   

  	
   

  
	
  JPMORGAN
  CHASE BANK, N.A.,

  	
   

  
	
  as Administrative Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title: