**Exhibit10**

 

EXECUTION COPY

 

** **

** **

**DEERE &COMPANY**

** **

**JOHNDEERE CAPITAL CORPORATION**

** **

| ** ** |
|------------|

** **

**$1,500,000,000**

** **

**37-MONTH**

**CREDITAGREEMENT**

** **

**Dated asof March 2, 2010**

** **

| ** ** |
|------------|

** **

**JPMORGANCHASE BANK, N.A.,**

**asAdministrative Agent**

** **

**CITIBANK,N.A.,**

**CREDITSUISSE AG, CAYMAN ISLANDS BRANCH,**

**and**

**DEUTSCHEBANK SECURITIES INC.**

**asDocumentation Agents**

** **

**BANK OFAMERICA, N.A.,**

**asSyndication Agent**

** **

| ** ** |
|------------|

** **

**J.P.MORGAN SECURITIES INC. andBANC OF AMERICA SECURITIES LLC,**

**as JointLead Arrangers and Bookrunners**

** **

 

----

 

**TABLE OF CONTENTS**

** **
|            |                                                                                                        | **Page**   |
|-----------------|-------------------------------------------------------------------------------------------------------------|------------|
|            |                                                                                                        | ** ** |
| SECTION 1. | DEFINITIONS                                                                                                 | 1          |
| 1.1             | Defined Terms                                                                                               | 1          |
| 1.2             | Other  Definitional Provisions                                                                              | 16         |
| 1.3             | Currency  Conversion                                                                                        | 16         |
|            |                                                                                                        |       |
| SECTION 2. | THE COMMITTED  RATE LOANS; THE BID LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS                       | 17         |
| 2.1             | The Committed  Rate Loans                                                                                   | 17         |
| 2.2             | The Bid Loans;  the Negotiated Rate Loans                                                                   | 18         |
| 2.3             | Loan Accounts                                                                                               | 21         |
| 2.4             | Fees                                                                                                        | 22         |
| 2.5             | Termination or  Reduction of Commitments; Cancellation of Capital Corporation as Borrower    | 22         |
| 2.6             | Optional  Prepayments                                                                                       | 23         |
| 2.7             | Minimum Amount  of Certain Loans                                                                            | 24         |
| 2.8             | Committed Rate  Loan Interest Rate and Payment Dates                                                        | 24         |
| 2.9             | Conversion and  Continuation Options                                                                        | 24         |
| 2.10            | Computation of  Interest and Fees                                                                           | 25         |
| 2.11            | Inability to  Determine Interest Rate                                                                       | 25         |
| 2.12            | Pro Rata  Treatment and Payments                                                                            | 26         |
| 2.13            | Requirements of  Law                                                                                        | 28         |
| 2.14            | Indemnity                                                                                                   | 33         |
| 2.15            | Non-Receipt of  Funds by the Administrative Agent                                                           | 33         |
| 2.16            | [RESERVED]                                                                                                  | 34         |
| 2.17            | Foreign Taxes                                                                                               | 34         |
| 2.18            | Confirmations                                                                                               | 36         |
| 2.19            | Replacement of  Cancelled Banks                                                                             | 36         |
| 2.20            | Commitment  Increases                                                                                       | 36         |
| 2.21            | Pricing  Determinations                                                                                     | 38         |
| 2.22            | Markit Data                                                                                                 | 39         |
| 2.23            | Defaulting Banks                                                                                            | 41         |
| 2.24            | Judgment  Currency                                                                                          | 42         |
| 2.25            | Foreign Currency  Exchange Rate                                                                             | 42         |
|            |                                                                                                        |       |
| SECTION 3. | REPRESENTATIONS  AND WARRANTIES                                                                             | 43         |
| 3.1             | Financial  Condition                                                                                        | 43         |
| 3.2             | Corporate  Existence                                                                                        | 43         |
| 3.3             | Corporate Power;  Authorization; Enforceable Obligations                                                    | 43         |
| 3.4             | No Legal Bar                                                                                                | 44         |
| 3.5             | No Material  Litigation                                                                                     | 44         |
| 3.6             | Taxes                                                                                                       | 44         |
| 3.7             | Margin  Regulations                                                                                         | 44         |
| 3.8             | Use of Proceeds                                                                                             | 44         |

 

ii

----

 
| SECTION 4.  | CONDITIONS  PRECEDENT                                       | 45     |
|------------------|-------------------------------------------------------------|--------|
| 4.1              | Conditions to  Initial Loan                                 | 45     |
| 4.2              | Conditions to  All Loans                                    | 46     |
|             |                                                        |   |
| SECTION 5.  | AFFIRMATIVE  COVENANTS                                      | 46     |
| 5.1              | Financial  Statements                                       | 46     |
| 5.2              | Certificates;  Other Information                            | 47     |
| 5.3              | Company  Indenture Documents                                | 47     |
| 5.4              | Capital  Corporation Indenture Documents                    | 47     |
| 5.5              | Notice of  Default                                          | 47     |
| 5.6              | Ownership of  Capital Corporation Stock                     | 48     |
| 5.7              | Employee Benefit  Plans                                     | 48     |
|             |                                                        |   |
| SECTION 6.  | NEGATIVE  COVENANTS OF THE COMPANY                          | 48     |
| 6.1              | Company  May Consolidate, etc., Only on Certain Terms  | 48     |
| 6.2              | Limitation on Liens                                         | 49     |
| 6.3              | Limitations on  Sale and Lease-back Transactions            | 52     |
| 6.4              | Equipment  Operations Debt                                  | 52     |
|             |                                                        |   |
| SECTION 7.  | NEGATIVE  COVENANTS OF THE CAPITAL CORPORATION              | 52     |
| 7.1              | Fixed Charges  Ratio                                        | 53     |
| 7.2              | Consolidated  Senior Debt to Consolidated Capital Base | 53     |
| 7.3              | Limitation on  Liens                                        | 53     |
| 7.4              | Consolidation;  Merger                                      | 54     |
|             |                                                        |   |
| SECTION 8.  | EVENTS OF  DEFAULT                                          | 54     |
|             |                                                        |   |
| SECTION 9.  | THE AGENTS                                                  | 57     |
| 9.1              | Appointment                                                 | 57     |
| 9.2              | Delegation of  Duties                                       | 57     |
| 9.3              | Exculpatory  Provisions                                     | 57     |
| 9.4              | Reliance by  Agents                                         | 57     |
| 9.5              | Notice of  Default                                          | 58     |
| 9.6              | Non-Reliance on  Agents and Other Banks                     | 58     |
| 9.7              | Indemnification                                             | 58     |
| 9.8              | Agents in their  Individual Capacities                      | 59     |
| 9.9              | Successor Agents                                            | 59     |
|             |                                                        |   |
| SECTION 10. | MISCELLANEOUS                                               | 59     |
| 10.1             | Amendments and  Waivers                                     | 59     |
| 10.2             | Notices                                                     | 60     |
| 10.3             | No Waiver;  Cumulative Remedies                             | 61     |
| 10.4             | Payment of  Expenses                                        | 62     |
| 10.5             | Successors and  Assigns; Participations; Purchasing Banks   | 63     |
| 10.6             | Adjustments                                                 | 68     |
| 10.7             | Confidentiality                                             | 68     |
| 10.8             | Counterparts                                                | 69     |

 

iii

----

 
| 10.9  | GOVERNING LAW                                   | 69 |
|-------|-------------------------------------------------|----|
| 10.10 | Consent to  Jurisdiction and Service of Process | 69 |
| 10.11 | WAIVERS OF JURY  TRIAL                          | 69 |
| 10.12 | USA  Patriot Act                                | 70 |

 

 

 
| SCHEDULES:     |
|----------------|
|           |   |
| Schedule I     | Terms of Subordination |
| Schedule II    | Commitments |
| Schedule III   | Mandatory Costs |
| Schedule IV    | 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  Form W-8BEN Tax Letter |
| Exhibit J | Form of  Form W-8ECI Tax Letter |
| Exhibit K | Form of Agreement |
| Exhibit L | Form of Promissory  Note |
| Exhibit M | Form of New Bank  Supplement |
| Exhibit N | Form of Commitment  Increase Supplement |

 

iv

----

 

CREDIT AGREEMENT, dated as of March 2, 2010,among (a) DEERE & COMPANY, a Delaware corporation (the “Company”),(b) JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “CapitalCorporation”), (c) the several financial institutions parties hereto(collectively, the “Banks”, and individually, a “Bank”), (d) JPMORGANCHASE BANK, N.A., as administrative agent hereunder (in such capacity, togetherwith its successors and permitted assigns, the “Administrative Agent”), (e) CITIBANK,N.A., CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK SECURITIESINC., as documentation agents hereunder (in such capacity, the “DocumentationAgents”), 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 DefinedTerms.  As used in this Agreement,the following terms have the following meanings:

 

“ABR”:  at any particulardate, the highest of (a) the rate of interest per annum publicly announcedby JPMorgan Chase Bank, N.A. for such date as its prime rate in effect at itsprincipal office in New York City; (b) 0.5% per annum above the rate setforth for such date or, if such date is not a Business Day, the next precedingBusiness Day, opposite the caption “Federal Funds (Effective)” in the weeklystatistical 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, theaverage of the quotations for such day on such transactions received by theAdministrative Agent from three Federal Funds dealers of recognized standingselected by it; and (c) the Eurocurrency Rate for a Eurocurrency Loan withone-month Interest Period commencing on such day (or if such day is not aBusiness Day, the immediately preceding Business Day) plus 1% (provided that,for the avoidance of doubt, such Eurocurrency Rate for any date shall be basedon the rate appearing on the Reuters Screen LIBOR01 Page (or, if such ratedoes not appear on the Reuters Screen LIBOR01 Page or otherwise on suchsystem, on any comparable publicly available service for displayingeurocurrency rates) at approximately 11:00 A.M. London time on such date).

 

“ABR Loans”:  CommittedRate Loans at such time as they are made and/or being maintained at a rate ofinterest based upon the ABR.

 

“ABR Margin”:  as definedin 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 tooffer to make Bid Loans at an absolute rate (as opposed to a rate composed ofthe Applicable Index Rate plus (or minus) a margin).

 

“Act”:  as defined insubsection 10.12.

 

----

 

2

 

“Administrative Agent”: as defined in the preamble hereto. It is understood that matters concerning the Foreign Currency Loans willbe administered by the Foreign Currency Agent as agent for the AdministrativeAgent.

 

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

 

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

 

“Agent”:  theAdministrative Agent, the Foreign Currency Agent, the Syndication Agent, or aDocumentation Agent, as the context shall require; together, the “Agents”.

 

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

 

“AgreementCurrency”:  as defined in subsection2.24(b).

 

“ApplicableCreditor”:  as defined in subsection2.24(b).

 

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

 

“Applicable Margin”:  forABR Loans and for Eurocurrency Loans, the applicable ABR Margin or EurocurrencyMargin, in each case as determined in accordance with subsection 2.21.

 

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

 

“Australian Dollars”:  thelawful currency of Australia.

 

“Available Commitment”: as to any Bank at any time, an amount equal to the excess, if any, of (a) suchBank’s Commitment then in effect over (b) such Bank’s CommittedRate Loans then outstanding.

 

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

 

“benefitted Bank”:  asdefined in subsection 10.6.

 

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

 

“Bid Loan Banks”:  thecollective reference to each Bank designated from time to time as a Bid LoanBank by a Borrower (for purposes of Bid Loans to such Borrower) by writtennotice to the Administrative Agent and which has not been removed as a Bid LoanBank by such 

 

----

 

3

 

Borrower by written notice to the Administrative Agent (each of whichnotices the Administrative Agent shall transmit to each such affected Bank).

 

“Bid Loan Confirmation”: each confirmation by the Company or the Capital Corporation of itsacceptance of Bid Loan Offers, which Bid Loan Confirmation shall besubstantially in the form of Exhibit D and shall be delivered to the AdministrativeAgent by facsimile transmission or by telephone, immediately confirmed byfacsimile transmission.

 

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

 

“Bid Loan Request”:  eachrequest 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 Loansspecified in Exhibit B and shall be delivered to the Administrative Agentby facsimile transmission or by telephone, immediately confirmed by facsimiletransmission.

 

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

 

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

 

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

 

“Business Day”:  a dayother than a Saturday, Sunday or other day on which commercial banks in NewYork City are authorized or required by law to close; provided, that (a) withrespect to notices and determinations in connection with, and payments ofprincipal and interest on, Eurocurrency Loans, such day is also a day fortrading by and between banks in Dollar deposits in the interbank eurocurrencymarket in London, (b) when used in connection with a Foreign CurrencyLoan, the term “Business Day” shall also exclude any day on which commercialbanks in London are authorized or required by law to close and any day on whichbanks are authorized or required by law to be closed in the principal financialcenter for that currency (c) when used in connection with EurocurrencyLoans denominated in Euros, the term “Business Day” shall also exclude any dayon which the Trans-European Automated Real-Time Gross Settlement ExpressTransfer System (TARGET) (or, if such clearing system ceases to be operative,such other clearing system (if any) determined by the Foreign Currency Agent tobe a suitable replacement) is not open for settlement of payment in Euros.

 

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

 

----

 

4

 

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

 

“Canadian Dollars”: the lawful currency of Canada.

 

“Cancelled Bank”:  (i) anyBank that has the whole or any part of its Commitment cancelled undersubsection 2.13(a), (b), or (c) or subsection 2.17(b) and (ii) anyDefaulting Bank that the Company designates in writing to such Bank and theAdministrative Agent as a Cancelled Bank.

 

“Capital Corporation”:  asdefined in the preamble hereto.

 

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

 

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

 

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

 

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

 

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

 

| Greater than or  equal to A+/A1 |   | A/A2  |   | A-/A3 |   | BBB+/Baa1 |   | BBB/Baa2 |   | Lower than  BBB/Baa2 |
|---------------------------------|--------|-------|--------|-------|--------|-----------|--------|----------|--------|----------------------|
| 0.175%                          |   | 0.20% |   | 0.25% |   | 0.30%     |   | 0.375%   |   | 0.50%                |

 

“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 Commitmentat such time constitutes of all the Commitments at such time or, at any timeafter the Commitments shall have expired or terminated, the percentage whichthe aggregate principal amount of such Bank’s Loans then outstandingconstitutes of the aggregate principal amount of all Loans then outstanding;collectively, as to all the Banks, the “Commitment 

 

----

 

5

 

Percentages;” provided thatwhen a Defaulting Bank shall exist, “Commitment Percentage” shall mean, whenappropriate as determined by the Administrative Agent in order to provideratable treatment at any time a Defaulting Bank exists (and without increasingthe Commitment of any Bank), the percentage of the total Commitments(disregarding any Defaulting Bank’s Commitment) represented by such Bank’sCommitment.

 

“Commitment Period”:  asto any Bank at any time, the period from and including the Closing Date to butnot including the Termination Date of such Bank or such earlier date on whichthe 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, whichis under common control with such Borrower within the meaning of Section 414(b) or(c) of the Code.

 

“Company”:  as defined inthe preamble hereto.

 

“Consolidated Capital Base”: at a particular time for the Capital Corporation and its consolidatedSubsidiaries, the sum of (a) the amount shown opposite the item “TotalStockholders’ Equity” on the consolidated balance sheet of the CapitalCorporation and its consolidated Subsidiaries plus (b) allindebtedness of the Capital Corporation and its consolidated Subsidiaries forborrowed money subordinated (on terms no less favorable to the AdministrativeAgent and the Banks than the terms of subordination set forth on Schedule I) tothe indebtedness which may be incurred hereunder by the Capital Corporation, providedthat the sum of clauses (a) and (b) hereof as at the end of a fiscalquarter of the Capital Corporation and its consolidated Subsidiaries (includingthe last quarter of a fiscal year of the Capital Corporation and itsconsolidated Subsidiaries) shall be determined by reference to the publiclyavailable consolidated balance sheet of the Capital Corporation and itsconsolidated Subsidiaries as at the end of such fiscal quarter and after suchadjustments, if any, as may be required so that the sum of the amounts referredto in clauses (a) and (b) is determined in accordance with GAAP.  Notwithstanding the foregoing, for purposesof determining compliance with subsection 7.2, adjustments resulting from anyaccumulated other comprehensive income as reflected on the most recent publiclyavailable consolidated balance sheet of the Capital Corporation and itsconsolidated Subsidiaries as at the end of any fiscal quarter of the CapitalCorporation and its consolidated Subsidiaries (including the last quarter ofany fiscal year of the Capital Corporation and its consolidated Subsidiaries)shall be deemed not to be included in Consolidated Capital Base.

 

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

 

“Consolidated Senior Debt”: at a particular time for the Capital Corporation and its consolidatedSubsidiaries, indebtedness for borrowed money other than any indebtedness forborrowed money that is subordinated, on terms no less favorable to theAdministrative Agent and the Banks than the terms of subordination set forth onSchedule I, to the indebtedness which 

 

----

 

6

 

may be incurred hereunder by the Capital Corporation, providedthat the amount of such indebtedness for borrowed money (other than suchsubordinated indebtedness) as at the end of a fiscal quarter of the CapitalCorporation and its consolidated Subsidiaries (including the last quarter of afiscal year of the Capital Corporation and its consolidated Subsidiaries) shallbe determined by reference to the publicly available consolidated balance sheetof the Capital Corporation and its consolidated Subsidiaries as at the end ofsuch fiscal quarter and after such adjustments, if any, as may be required sothat such amount is determined in accordance with GAAP.  Notwithstanding the foregoing, for purposesof determining compliance with subsection 7.2, indebtedness for borrowed moneyin respect of any Securitization Indebtedness shall be deemed not included inConsolidated Senior Debt.

 

“Contractual Obligation”: as to any Person, any provision of any security issued by such Person orof any agreement, instrument or undertaking to which such Person is a party orby 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 assignedto the relevant long term senior unsecured (and non-credit enhanced) Debtobligations of such Person by Moody’s or S&P and (b) if no rating forsuch Debt described in clause (a) is available, the corporate creditrating of such Person as announced by Moody’s or S&P.

 

“Currency”: any Dollars and any Foreign Currency.

 

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

 

“Debt”:  as defined insubsection 6.2.

 

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

 

“Defaulting Bank”:  anyBank that has (a) following satisfaction of the conditions to fundingunder subsection 4.2, failed to fund any portion of its Loans within oneBusiness Day of the date required to be funded by it hereunder, unless thesubject of a good faith dispute; (b) notified the Company, theAdministrative Agent or any Bank in writing that it does not intend to complywith any of its funding obligations under this Agreement or has made a publicstatement to the effect that it does not intend to comply with its fundingobligations under this Agreement or under other agreements in which it commitsto extend credit; (c) failed, within three Business Days after writtenrequest by the Administrative Agent, to confirm that it will comply with theterms of this Agreement relating to its obligations to fund prospective Loans; providedthat confirmation received by the Administrative Agent beyond three BusinessDays shall remedy the default under this clause (c); (d) otherwise failedto pay over to the Administrative Agent or any other Bank any other amountrequired to be paid by it hereunder within three Business Days of the date whendue, unless the subject of a good faith dispute; or (e) (i) become oris insolvent or has a parent company that has become or is insolvent or (ii) becomethe subject of a bankruptcy or insolvency proceeding, or has had a receiver,conservator, trustee or custodian appointed for it, or has taken any action infurtherance of, or indicating its consent to, approval of or

 

----

 

7

 

acquiescence in any such proceeding or appointment or has a parentcompany that has become the subject of a bankruptcy or insolvency proceeding,or has had a receiver, conservator, trustee or custodian appointed for it, orhas taken any action in furtherance of, or indicating its consent to, approvalof 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 occurredand is then continuing, upon giving written notice to the Administrative Agentand such Bank in accordance with subsection 2.6, notwithstanding subsection2.12(b), to prepay in full the Loans of such Bank, together with accrued interestthereon, any amounts payable to such Bank pursuant to subsections 2.13, 2.14,2.15 and 2.17 and any accrued and unpaid commitment fee or other amount payableto 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 partof the Commitment of any such Bank.

 

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

 

“Determination Date”:  atany time (a) for any Eurocurrency Loan (i) the date three BusinessDays 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 periodduring such Interest Period, and (b) for any ABR Loan (i) initially,the Closing Date and (ii) from and after the end of the Calendar Quarterduring which the Closing Date occurs, the last day of the Calendar Quarter mostrecently ended at such time.

 

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

 

“DollarEquivalent”:  at any time as to anyamount denominated in a Foreign Currency, the equivalent amount in Dollars asreasonably determined by the Administrative Agent at such time on the basis ofthe Exchange Rate for the purchase of Dollars with such Foreign Currency on themost recent Calculation Date for such Foreign Currency.

 

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

 

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

 

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

 

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

 

“Equipment Operations”: those business segments of the Company and its consolidated Subsidiariesthat 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 indebtednessfor borrowed money that is or would be shown on a balance sheet of EquipmentOperations (with Financial Services reflected only on an equity basis), whichbalance 

 

----

 

8

 

sheet was or would be prepared on the basis of the most recent publiclyavailable consolidated balance sheet of the Company and its consolidatedSubsidiaries as at the end of any fiscal quarter of the Company and itsconsolidated Subsidiaries (including the last quarter of any fiscal year of theCompany and its consolidated Subsidiaries).

 

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

 

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

 

“EurocurrencyLoans”:  Committed Rate Loans at suchtime as they are made and/or being maintained at a rate of interest based upona Eurocurrency Rate.

 

“EurocurrencyMargin”:  as defined in subsection2.21.

 

“EurocurrencyRate”:  with respect to each dayduring each Interest Period pertaining to a Eurocurrency Loan and for eachIndex Rate Bid Loan, the rate per annum determined on the basis of the rate fordeposits in Dollars or the relevant Foreign Currency, as the case may be, for aperiod equal to such Interest Period commencing on the first day of suchInterest Period appearing on the Reuters Screen LIBOR01 Page as of 11:00 A.M.,Local Time, two Business Days prior to the beginning of such Interest Period(or, in the case of any Eurocurrency Loan denominated in Pounds Sterling, onthe first day of such Interest Period); provided that, in the case ofany Eurocurrency Loan denominated in Pounds Sterling, such rate shall beincreased to provide for the Mandatory Cost. In the event that such rate does not appear on the Reuters ScreenLIBOR01 Page (or otherwise on such system), the “Eurocurrency Rate”shall be determined by reference to such other comparable publicly availableservice for displaying eurocurrency rates as may be reasonably selected by theAdministrative Agent or, in the absence of such availability, by reference tothe rate at which the Administrative Agent is offered Dollar or the relevantForeign Currency, as the case may be, deposits at or about 11:00 A.M.,Local Time, two Business Days prior to the beginning of such Interest Period(or, in the case of a Eurocurrency Loan in Pounds Sterling, on the first day ofsuch Interest Period) in the interbank eurocurrency market where itseurocurrency, foreign currency and exchange operations are then being conductedfor delivery on the first day of such Interest Period for the number of dayscomprised therein; provided that, in the case of any Eurocurrency Loandenominated in Pounds Sterling, such rate shall be increased to provide for theMandatory Costs as determined by the Administrative Agent in accordance withits normal practices.

 

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

 

“Exchange Rate”:  on anyday, the rate at which the starting Currency may be exchanged into the otherrelevant Currency, as set forth at approximately 10:00 A.M., Local Time, onsuch date on the Reuters World Spots page for such starting Currency.  In the event that 

 

----

 

9

 

such rate does not appear on any Reuters World Spots page, the ExchangeRate shall be determined by reference to such other publicly available servicefor displaying exchange rates reasonably selected by the Administrative Agent.

 

“Existing Credit Agreement”: the $750,000,000 364-Day Credit Agreement dated as of March 3, 2009among the Borrowers, the lenders parties thereto, JPMorgan Chase Bank, N.A., asAdministrative Agent, Citibank N.A., Credit Suisse, Cayman Islands Branch andDeutsche Bank AG New York Branch, as Documentation Agents, and Bank of America,N.A. as Syndication Agent.

 

“Financial Services”:  thebusinesses of the Company (including the credit businesses) that are notprimarily engaged in Equipment Operations.

 

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

 

“ForeignCurrency”:  Euros, Pounds Sterling,Australian Dollars, Canadian Dollars, New Zealand Dollars and, as agreed by theAdministrative Agent, any other Currency which is freely traded and convertibleinto Dollars in the London interbank market and for which the Dollar Equivalentthereof can be calculated from time to time.

 

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

 

“ForeignCurrency Loan”:  each Loandenominated in a Foreign Currency.

 

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

 

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

 

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

 

----

 

10

 

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

 

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

 

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

 

“Indemnified Person”:  asdefined in subsection  10.4(b).

 

“Index Debt”:  any senior,unsecured, non-credit enhanced long-term debt issued by the Company.

 

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

 

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

 

“Interest Payment Date”:  (a) asto any ABR Loan, the last Business Day of each March, June, September andDecember, commencing on the first of such days to occur after such ABR Loan ismade or a Eurocurrency Loan is converted to an ABR Loan, (b) as to anyEurocurrency Loan, the last day of each Interest Period applicable thereto, providedthat as to any Eurocurrency Loan in respect of which a Borrower has selected anInterest Period of six months, interest shall also be paid on the day which isthree months after the beginning of such Interest Period and (c) theTermination Date.

 

“Interest Period”:  (a) withrespect to any Eurocurrency Loan, the period commencing on the Borrowing Date,the date any ABR Loan is converted to a Eurocurrency Loan or the date anyEurocurrency Loan is continued as a Eurocurrency Loan, as the case may be, withrespect to such Eurocurrency Loan and ending one, two, three or six monthsthereafter, as selected by a Borrower in its notice of borrowing, conversion orcontinuance as provided in subsection 2.1(c) or 2.9;

 

----

 

11

 

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

 

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

 

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

 

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

 

(ii)  if any Interest Period pertaining to aNegotiated Rate Loan or an Absolute Rate Bid Loan would otherwise end on a daywhich is not a Business Day, that Interest Period shall be extended to the nextsucceeding Business Day;

 

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

 

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

 

(v)  no Interest Period shall end after theTermination Date.

 

----

 

12

 

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

 

“Judgment Currency”:  asdefined in subsection 2.24.

 

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

 

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

 

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

 

“Loans”:  the collectivereference to the Committed Rate Loans, the Bid Loans and the Negotiated RateLoans.

 

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

 

“Losses”:  as defined insubsection  10.4(b).

 

“Majority Banks”:  at anyparticular time, Banks having Commitment Percentages aggregating more thanfifty percent; provided that at any time after the termination of allthe Commitments, “Majority Banks” shall mean Banks holding Loans aggregatingmore than fifty percent in principal amount of all outstanding Loans.

 

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

 

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

 

“Markit”:  Markit Group Limited or any successorthereto.

 

“MarkitData”:  as defined in subsection2.22(a).

 

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

 

“Mortgage”:  as defined insubsection 6.2.

 

“Negotiated Rate Loan”: each Loan made to a Borrower by a Bank pursuant to a Negotiated RateLoan Request in such principal amount, for such number of Interest Periods(subject to the proviso to the definition of “Interest Period” in thissubsection 1.1) and having such interest rate(s) and repayment terms asshall, 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, orby telephone, immediately confirmed in writing, and which shall specify theamount to be borrowed and the proposed Borrowing Date.

 

“Negotiation Period”:  asdefined in subsection 2.21.

 

----

 

13

 

“Net Earnings Available for Fixed Charges”:  for any particular period for the CapitalCorporation and its consolidated Subsidiaries, consolidated net earnings of theCapital Corporation and such Subsidiaries for such period without deduction ofFixed Charges and without deduction of federal, state or other income taxes, providedthat such net earnings for a fiscal quarter of the Capital Corporation and itsconsolidated Subsidiaries (including the last quarter of a fiscal year of theCapital Corporation and its consolidated Subsidiaries) shall be determined byreference to the publicly available statement of income of the CapitalCorporation and its consolidated Subsidiaries for or covering such fiscalquarter and after such adjustments, if any, as may be required so that such netearnings are determined in accordance with GAAP, except that earned investmenttax credits may be included as revenue in the consolidated income statement ofthe Capital Corporation and its consolidated Subsidiaries, rather than as anoffset against the provision for income taxes.

 

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

 

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

 

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

 

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

 

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

 

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

 

“Participants”:  asdefined in subsection 10.5(b).

 

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

 

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

 

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

 

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

 

----

 

14

 

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

 

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

 

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

 

“Register”:  as defined insubsection 10.5(e).

 

“Report Period”:  asdefined in subsection 2.18.

 

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

 

“Required Banks”:  at aparticular time, Banks having Commitment Percentages aggregating at least66-2/3%; provided that at any time after the termination of all theCommitments, “Required Banks” means Banks holding Loans aggregating at least66-2/3% in principal amount of all outstanding Loans.

 

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

 

“Reserves”:  as defined insubsection 2.13(c).

 

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

 

“Restricted Margin Stock”: any Margin Stock, the sale, pledge or other disposition of which by theCompany or any of its Subsidiaries is in any way restricted by an arrangementwith 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 theassets subject to such restriction.

 

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

 

----

 

15

 

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

 

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

 

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

 

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

 

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

 

“Syndication Agent”:  as definedin the preamble hereto.

 

“Termination Date”:  April 2,2013, which is the date which is 37 months after the Closing Date.

 

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

 

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

 

“Transferees”:  as definedin subsection 10.5(g).

 

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

 

----

 

16

 

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

 

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

 

“Working Day”:  anyBusiness Day on which dealings in foreign currencies and exchange between banksmay be carried on in London, England and New York, New York.

 

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

 

### (b)        As used herein and inany certificate or other document made or delivered pursuant hereto, accountingterms relating to either Borrower and its Subsidiaries not defined insubsection 1.1, and accounting terms partly defined in subsection 1.1 to theextent not defined, shall have the respective meanings given to them underGAAP.

###  

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

###  

### (d)        Unless otherwisequalified, all references to a “Subsidiary” or to “Subsidiaries” in thisAgreement shall refer to a Subsidiary or Subsidiaries of the relevant Borrower.

###  

1.3 CurrencyConversion.

 

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

###  

### (b)        If a change in anycurrency of a country occurs, this Agreement shall be amended (and each partyhereto agrees to enter into any supplemental agreement necessary to effect anysuch amendment) to the extent that the Administrative Agent determines (withthe

 

----

###  

17

 

### Borrowers’consent, which shall not unreasonably be withheld) such amendment to benecessary to reflect the change in currency and to put the Bank in the sameposition, so far as possible, that they would have been in if no change incurrency had occurred.

###  

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

 

### 2.1 TheCommitted Rate Loans.  (a) During the Commitment Period, subject to the terms and conditions hereof, eachBank severally agrees to make loans (individually, a “Committed Rate Loan”)to either Borrower in Dollars or in any Foreign Currency from time to time inan aggregate principal amount for both Borrowers at any one time outstandingnot to exceed such Bank’s Commitment. During the Commitment Period, either Borrower may use the Commitments byborrowing, repaying and reborrowing, all in accordance with the terms andconditions hereof.

###  

### (b)        The Committed RateLoans may be either (i) Eurocurrency Loans denominated in Dollars or anyForeign Currency, (ii) ABR Loans denominated in Dollars or (iii) acombination thereof as determined by the relevant Borrower; providedthat the Foreign Currency Loans shall be Eurocurrency Loans.

###  

### (c)        Either Borrower may borrowCommitted Rate Loans on any Working Day, if the borrowing is of EurocurrencyLoans, or on any Business Day, if the borrowing is of ABR Loans; provided,however, that a Responsible Officer of such Borrower shall give theAdministrative Agent irrevocable notice thereof (which notice must be receivedby 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 ofEurocurrency Loans denominated in Dollars, (ii) prior to 12:00 Noon, LocalTime, four Working Days prior to the requested Borrowing Date, in the case ofForeign Currency Loans and (iii) prior to 12:00 Noon, New York City time,on the requested Borrowing Date, in the case of ABR Loans.  Each such notice shall be given in writing orby facsimile transmission substantially in the form of Exhibit A (withappropriate insertions) or shall be given by telephone (specifying theinformation set forth in Exhibit A) promptly confirmed by notice given inwriting or by facsimile transmission substantially in the form of Exhibit A(with appropriate insertions).  On theday of receipt of any such notice from either Borrower, the AdministrativeAgent (or Foreign Currency Agent) shall promptly notify each Bank thereof.  Each Bank will make the amount of its shareof each borrowing available to the Administrative Agent in the applicableCurrency for the account of such Borrower at the office of the AdministrativeAgent set forth in subsection 10.2 at 11:00 A.M. (or 2:00 P.M., inthe case of ABR Loans requested pursuant to clause (iii) above), LocalTime, on the Borrowing Date requested by such Borrower in funds immediatelyavailable to the Administrative Agent as the Administrative Agent maydirect.  The proceeds of all suchCommitted Rate Loans will be made available promptly to such Borrower by theAdministrative Agent at the office of the Administrative Agent specified insubsection 10.2 by crediting the account of such Borrower on the books of suchoffice of the Administrative Agent with the aggregate of the amount madeavailable to the Administrative Agent by the Banks and in like funds asreceived by the Administrative Agent.

 

----

 

18

###  

### (d)        All Committed RateLoans made to each Borrower shall be repaid in full by such Borrower on orbefore the Termination Date.

###  

### 2.2 The BidLoans; the Negotiated Rate Loans.  (a) Either Borrower may borrow Bid Loans or Negotiated Rate Loans denominated inDollars from time to time on any Business Day (in the case of Bid Loans madepursuant to an Absolute Rate Bid Loan Request), any Working Day (in the case ofBid Loans made pursuant to an Index Rate Bid Loan Request) or, in the case ofNegotiated Rate Loans, on such days as shall be mutually agreed upon betweenthe relevant Borrower and the applicable Bank, in each case during theCommitment Period and in the manner set forth in this subsection 2.2 and inamounts such that the Dollar Equivalent of the aggregate principal amount ofLoans at any time outstanding shall not exceed the aggregate amount of theCommitments at such time. Notwithstanding any other provision of this Agreement, the aggregateprincipal amount of the outstanding Bid Loans and/or Negotiated Rate Loans madeby any Bank may at any time (but shall not be required to) exceed theCommitment of such Bank so long as the Dollar Equivalent of the aggregateoutstanding principal amount of all Loans does not at any time exceed theaggregate amount of the Commitments.

###  

### (b)        (i)  EitherBorrower shall request Bid Loans or Negotiated Rate Loans by delivering (A) inthe case of an Index Rate Bid Loan, a Bid Loan Request to the AdministrativeAgent, 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 laterthan 12:00 Noon (New York City time) four Working Days prior to the proposedBorrowing Date, (B) in the case of an Absolute Rate Bid Loan, a Bid LoanRequest to the Administrative Agent at the address set forth in clause (A) ofthis subsection 2.2(b)(i) not later than 10:00 A.M. (New York Citytime) one Business Day prior to the proposed Borrowing Date or (C) in thecase of a Negotiated Rate Loan, a Negotiated Rate Loan Request to any Bank atsuch time as the applicable Borrower and the applicable Bank shall agree.  Each Bid Loan Request may solicit bids forBid Loans in an aggregate principal amount of $25,000,000 or an integralmultiple of $5,000,000 in excess thereof and for not more than threealternative Interest Periods for such Bid Loans.  The Administrative Agent shall promptlynotify each Bid Loan Bank by facsimile transmission or by telephone,immediately confirmed by facsimile transmission, of the contents of each BidLoan Request received by it.

###  

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

 

----

####  

19

 

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

####  

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

####  

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

#####  

##### (B) accept one or more of the offers made by anyBid Loan Bank or Bid Loan Banks pursuant to clause (ii) or clause (iii) ofthis subsection 2.2(b), as the case may be, by giving telephone notice to theAdministrative Agent (immediately confirmed by delivery to the AdministrativeAgent at the address set forth in clause (i)(A) of this subsection 2.2(b) ofa Bid Loan Confirmation) of the amount of Bid Loans for each relevant InterestPeriod to be made by each Bid Loan Bank (which amount shall be equal to or lessthan the maximum amount for such Interest Period specified in the Bid LoanOffer of such Bid Loan Bank, and for all Interest Periods included in such BidLoan Offer shall be equal to or less than the aggregate maximum amountspecified in such Bid Loan Offer for all such Interest Periods) and reject anyremaining offers made by Bid Loan Banks pursuant to clause (ii) or clause (iii) above,as the case may be; provided, however, that (x) suchBorrower may not accept offers for Bid Loans for any Interest Period in anaggregate principal amount in excess of the maximum principal amount requestedfor such Interest Period in the related Bid Loan Request, (y) if suchBorrower accepts any such offers, it must accept offers strictly based uponpricing (starting with the lowest pricing) for such relevant Interest Periodand upon no other criteria whatsoever and (z) if two or more Bid LoanBanks submit offers for any Interest Period at identical pricing and suchBorrower accepts any of such offers but does not wish to borrow the totalamount offered by such Bid Loan Banks with such identical pricing, suchBorrower 

 

----

#####  

20

 

##### shall accept offers fromall of such Bid Loan Banks in amounts allocated among them prorataaccording to the amounts offered by such Bid Loan Banks (or as nearly prorata as shall be practicable, after giving effect to the requirementthat Bid Loans made by a Bid Loan Bank on a Borrowing Date for each relevantInterest Period shall be in a principal amount of $5,000,000 or an integralmultiple of $1,000,000 in excess thereof, it being agreed that to the extentthat it is not possible to make allocations in accordance with the provisionsof this clause (z) such allocations shall be made in accordance with theinstructions of such Borrower, it being understood that in no event shall anyBank be obligated to make any Bid Loan in a principal amount less than$5,000,000).

#####  

#### (v)        Ifsuch Borrower notifies the Administrative Agent that a Bid Loan Request iscancelled pursuant to clause (iv)(A) of this subsection 2.2(b), theAdministrative Agent shall give prompt telephone notice thereof to the Bid LoanBanks, and the Bid Loans requested thereby shall not be made.

####  

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

####  

##### (B) If such Borrower and any Bank agree to theterms of a Negotiated Rate Loan to be made on a Borrowing Date pursuant to aNegotiated Rate Loan Request, such Borrower and such Bank shall promptly notifyby telephone the Administrative Agent of the aggregate amount of NegotiatedRate Loans to be made on such Borrowing Date and the respective InterestPeriods therefor.  Each Bank which is tomake a Negotiated Rate Loan shall, at such time, on such Borrowing Date and atsuch location as shall be mutually agreed upon between such Borrower and suchBank, make available to such Borrower the amount of Negotiated Rate Loans to bemade by such Bank, in immediately available funds.

#####  

##### (C) As soon as practicable after each BorrowingDate for Bid Loans and Negotiated Rate Loans, the Administrative Agent shallnotify each Bank of the aggregate amount of Bid Loans or Negotiated Rate Loansadvanced pursuant to a Bid Loan Request or Negotiated Rate Loan Request on suchBorrowing Date and the respective Interest Periods therefor.

#####  

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

 

----

###  

21

 

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

###  

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

###  

### (f)         After the first BidLoan Request has been given hereunder, no Bid Loan Request or Negotiated RateLoan Request shall be given until at least one Business Day, in the case of anAbsolute Rate Bid Loan Request, or one Working Day, in the case of an IndexRate Bid Loan Request, after the earliest to occur of (i) the BorrowingDates with respect to all prior Bid Loan Requests made pursuant to subsection2.2(b)(i), (ii) the date on which all Bid Loan Banks have failed to submitBid Loan Offers with respect to any Bid Loan Requests within the time specifiedin subsection 2.2(b)(ii) or (iii), as the case may be, and (iii) thedate on which the relevant Borrower has cancelled all prior Bid Loan Requestspursuant to subsection 2.2(b)(iv).

###  

2.3 Loan Accounts.  EachBank, with respect to its Committed Rate Loans, Bid Loans and Negotiated RateLoans, and the Administrative Agent, with respect to all Committed Rate Loans,Negotiated Rate Loans and Bid Loans, shall open and maintain in the name ofeach Borrower loan accounts (as to each Bank, its “Loan Account” applicable tosuch 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 timehereunder in respect of such Loans, and the 

 

----

 

22

 

obligation of such Borrowerto pay or repay, as the case may be, such amounts to such Bank shall beevidenced by such Bank’s Loan Account. In case of any dispute, action or proceeding relating to any CommittedRate Loan, Bid Loan or Negotiated Rate Loan, the entries in such records shallconstitute prima facie evidence of the accuracy of the information set forththerein.  In case of discrepancy betweenthe entries in the Administrative Agent’s books and records and any Bank’s, theentries in the Administrative Agent’s books and records shall constitute primafacie evidence of the accuracy of the information set forth therein.

 

### 2.4 Fees.  (a)  The Company and the CapitalCorporation jointly and severally agree to pay to the Administrative Agent forthe account of each Bank a commitment fee from and including the Closing Dateto but excluding the date on which the Commitment of such Bank terminateshereunder, computed at a per annum rate equal to the Commitment Fee Rate on theaverage daily amount of the Available Commitment of such Bank in effect duringthe period for which payment is made, payable quarterly in arrears on the firstBusiness Day of each January, April, July and October of each yearand on the Termination Date, commencing in April, 2010.  For purposes of calculating the commitmentfee, any Bid Loans and Negotiated Rate Loans shall be deemed not to beoutstanding.

###  

### (b)        The Company and theCapital Corporation jointly and severally agree to pay to the AdministrativeAgent for its own account all fees set forth in the letter agreement dated January 29,2010 from J.P. Morgan Securities Inc. and JPMorgan Chase Bank, N.A. to theBorrowers.

###  

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

###  

### 2.5 Terminationor Reduction of Commitments; Cancellation of Capital Corporation as Borrower.   (a)  The Borrowers, acting jointly,shall have the right, upon not less than five Business Days’ notice to theAdministrative Agent, to terminate the Commitments or, from time to time,reduce the amount of the Commitments, provided that (i) any suchreduction shall be accompanied by prepayment of Committed Rate Loans hereunder,together with accrued interest on the amount so prepaid to the date of suchprepayment, to the extent, if any, that the Dollar Equivalent of the aggregateoutstanding principal amount of all Loans exceeds the amount of the Commitmentsas then reduced and (ii) any such termination of the Commitments shall beaccompanied by prepayment in full of the Loans then outstanding hereunder inaccordance with subsection 2.6 together with payment of any accrued interestand fees, and any termination of a Bank’s Commitment pursuant to subsection2.13 or 2.17 shall, with respect to each affected Loan, on the last day of theapplicable Interest Period therefor or, if earlier, on such earlier date asshall be notified by the Borrowers, be accompanied by prepayment in full ofsuch Loan, together with, in each case, accrued interest thereon to the date ofsuch prepayment, the payment of any unpaid commitment fee then accruedhereunder, and the payment of any amounts then payable pursuant to subsections2.13, 2.14, 2.15 and 2.17.  Upon receiptof such notice from the Borrowers the Administrative Agent shall promptlynotify each Bank thereof.  Any reductionof the Commitments pursuant to this subsection 2.5 shall be in an amount notless 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 ineffect.

 

----

###  

23

 

### (b)        The Company may cancelthe ability of the Capital Corporation to borrow hereunder upon not less thanfive 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 noticeon which all Loans to the Capital Corporation and all interest thereon shallhave been paid in full, and notwithstanding any other provision of thisAgreement, (i) the Capital Corporation shall cease to be a party hereto orto have any right or obligation hereunder, (ii) rights and obligationsexpressed herein to be, in effect, of either the Company or the CapitalCorporation or of both of them, but not any such rights and obligationsexpressed herein to be of the Capital Corporation only, shall be deemed to berights and obligations of the Company only and (iii) the Banks shall ceaseto have any right or obligation hereunder which depends or is contingent uponany action, condition or performance, or the absence thereof, whether past orpresent, of the Capital Corporation other than any action, condition orperformance, or the absence thereof, of the Capital Corporation in its capacityas a Subsidiary, Significant Subsidiary or Restricted Subsidiary hereunder; provided,however, that the obligation of the Capital Corporation to make anypayment pursuant to subsection 2.13, 2.14, 2.15 or 2.17 which arises prior tothe cancellation of the ability of the Capital Corporation to borrow hereundershall survive the cancellation of the ability of the Capital Corporation toborrow hereunder.

###  

2.6 Optional Prepayments. Either Borrower may at any time and from time to time prepay itsCommitted Rate Loans in whole or in part, without premium or penalty, butsubject to the provisions of subsection 2.14, upon at least three Working Days’irrevocable notice (by 11:00 A.M. Local Time), in the case of EurocurrencyLoans, or same day irrevocable notice in the case of ABR Loans, in each case tothe Administrative Agent, specifying the date and amount of prepayment andwhether the prepayment is of its Eurocurrency Loans, ABR Loans, or acombination thereof, and if of a combination thereof, the amount of prepaymentallocable to each.  Upon receipt of suchnotice the Administrative Agent shall promptly notify each Bank thereof.  If such notice is given, the Borrowerdelivering such notice shall make such prepayment, and the payment of theamount specified in such notice shall be due and payable, on the date specifiedtherein, together with accrued interest to such date on the amount prepaid andany amounts payable pursuant to subsections 2.14 and 2.15.  Except as provided in the immediatelyfollowing sentence, partial prepayments shall be in an aggregate principalamount of $5,000,000, or a whole multiple thereof (or comparable amountsreasonably determined by the Administrative Agent in the case of ForeignCurrency Loans); provided, however, that after giving effect thereto,the aggregate principal amount of all Committed Rate Loans made on the sameBorrowing Date shall not be less than $25,000,000 (or comparable amountsreasonably determined by the Administrative Agent in the case of ForeignCurrency Loans).  Anything contained inthis subsection 2.6 to the contrary notwithstanding, partial prepayments of aCancelled Bank’s Loans in connection with the termination under subsection2.13(a), (b) or (c), or 2.17(b) , or upon a Defaulting Bank becominga 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 Bankbeing prepaid, notwithstanding the amount thereof, and shall be permittednotwithstanding the provisions of the foregoing proviso.  Either Borrower may prepay Negotiated RateLoans or Bid Loans on such terms as shall be mutually agreed upon between therelevant Borrower and the relevant Bank.

 

----

 

24

 

2.7 Minimum Amount of Certain Loans.  All borrowings, conversions, continuations,payments and, except as set forth in the penultimate sentence of subsection2.6, prepayments in respect of Committed Rate Loans shall be in such amountsand be made pursuant to such elections that, after giving effect thereto, (a) theaggregate principal amount of Committed Rate Loans made on any Borrowing Dateshall not be less than $25,000,000 or a whole multiple of $5,000,000 in excessthereof (or comparable amounts reasonably determined by the AdministrativeAgent in the case of Foreign Currency Loans) and (b) the aggregateprincipal amount of Committed Rate Loans of any Type with the same InterestPeriod shall not be less than $10,000,000 or a whole multiple of $1,000,000 inexcess thereof (or comparable amounts reasonably determined by theAdministrative Agent in the case of Foreign Currency Loans).

 

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

###  

### (b)        The ABR Loans shallbear interest for each day during the period from the date thereof until thepayment in full thereof on the unpaid principal amount thereof at a fluctuatingrate per annum equal to the ABR for such day plus the Applicable Margin.

###  

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

###  

### (d)        Interest shall bepayable in arrears on each Interest Payment Date.

###  

### 2.9 Conversionand Continuation Options.  (a) The relevant Borrower may elect from time to time to convert Committed RateLoans denominated in Dollars of one Type into Committed Rate Loans denominatedin Dollars of another Type by giving to the Administrative Agent irrevocablenotice of such conversion by the earliest time that they would have beenrequired to give notice under subsection 2.1(c) if they had been borrowingCommitted Rate Loans of each such Type on the conversion date specified in suchnotice, provided that any such conversion of Eurocurrency Loans may onlybe made on the last day of an Interest Period with respect thereto.  Any such notice of conversion to EurocurrencyLoans shall specify the length of the initial Interest Period or InterestPeriods therefor.  Upon receipt of anysuch notice the Administrative Agent shall promptly notify each Bankthereof.  All or any part of outstandingEurocurrency Loans and ABR Loans denominated in Dollars may be converted asprovided herein, provided that no Loan may be converted into a EurocurrencyLoan after the date that is one month prior to the Termination Date.

 

----

###  

25

###  

### (b)        Any Eurocurrency Loansmay be continued as such upon the expiration of the then current InterestPeriod with respect thereto by the relevant Borrower giving notice to theAdministrative Agent or the Foreign Currency Agent, as the case may be, suchnotice to be given by the time it would have been required to give notice undersubsection 2.1(c) if it had been borrowing Eurocurrency Loans on the lastday of the then expiring Interest Period therefor, of the length of the nextInterest Period to be applicable to such Loans, provided that noEurocurrency Loan denominated in Dollars may be continued as such after thedate that is one month prior to the Termination Date.  Upon receipt of any such notice, theAdministrative Agent or the Foreign Currency Agent, as the case may be, shallpromptly notify each Bank thereof.

###  

### 2.10     Computationof Interest and Fees.  (a) Commitment fees and interest in respect of ABR Loans based upon clause (a) ofthe definition of ABR shall be calculated on the basis of a 365- (or 366- asthe case may be) day year for the actual days elapsed (including the first dayand excluding the last day).  Interest inrespect of Eurocurrency Loans, Bid Loans and ABR Loans based upon clause (b) or (c) of the definition of ABR shall be calculated on the basis of a360-day year for the actual days elapsed (including the first day and excludingthe last day), provided, that interest in respect of Foreign CurrencyLoans denominated in Pounds Sterling, shall be calculated on the basis of a365- (or 366- as the case may be) day year for actual days elapsed. TheAdministrative Agent shall promptly notify the Borrowers and the Banks of eachdetermination of a Eurocurrency Rate. Any change in the interest rate on a Committed Rate Loan resulting froma change in the ABR shall become effective as of the opening of business on theday on which such change in the ABR shall become effective.  The Administrative Agent or the ForeignCurrency Agent, as applicable, shall promptly notify the Borrowers and theBanks of the effective date and the amount of each such change.

###  

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

###  

### 2.11     Inabilityto Determine Interest Rate.  (a) In the event that the Administrative Agent or the Foreign Currency Agent, asapplicable, shall have determined (which determination shall be conclusive andbinding upon the Borrowers) that (i) by reason of circumstances affectingthe interbank eurodollar market generally, adequate and reasonable means do notexist for ascertaining the Eurocurrency Rate for any requested Interest Periodwith respect to Committed Rate Loans that a Borrower has requested be made as,continued as or converted into Eurocurrency Loans or (ii) that deposits inthe applicable Currency are not generally available, or cannot be obtained bythe Banks, in the applicable market (any Foreign Currency affected by thecircumstances described in clause (i) or (ii) is referred to as an “AffectedForeign Currency”), the Administrative Agent or the Foreign Currency Agent,as applicable, shall promptly give notice of such determination to suchBorrower and the Banks prior to the first day of the requested Interest Periodfor such Eurocurrency Loans.  If suchnotice is given, such Borrower may (A) in accordance with the provisionsof subsection 2.1 or 2.9, as the case may be (including any requirements fornotification), request that the affected Loans denominated in Dollars be madeas, continued as or converted into, as the case may be, ABR Loans, (B) requestthat any outstanding Foreign Currency Loans in an Affected Foreign Currency beconverted, on the last day of the then-current Interest Period, to Dollar Loansat the applicable Exchange Rate or (C) in the case of Loans requested tobe made on the first day of 

 

----

###  

26

 

### such Interest Period, withdraw the notice given under subsection 2.1 or2.9, as the case may be, by giving telephonic notice to the AdministrativeAgent or the Foreign Currency Agent, as applicable, no later than 10:00 A.M.(Local Time) one Business Day prior to the applicable Borrowing Date, confirmedin writing no later than one Business Day after such telephonic notice isgiven; provided that if the Administrative Agent or the Foreign CurrencyAgent, as applicable, does not receive any notice permitted from the relevantBorrower hereunder, such Borrower shall be deemed to have requested that theaffected Loans be made as, continued as or converted into, as the case may be,ABR Loans or, in the case of Foreign Currency Loans, shall be deemed to haverequested that the affected Loans be made as, continued as or converted into,as the case may be, Dollar Loans which are (1) Eurocurrency Loans (in thecase of clause (ii) above) or (2) ABR Loans (in the case of clause (i) above).  Until the notice given pursuant to the firstsentence of this paragraph has been withdrawn by the Administrative Agent orthe Foreign Currency Agent, as applicable, no further Eurocurrency Loansdenominated in Dollars (in the case of clause (i) above) or in an AffectedForeign Currency shall be made or continued as such, nor shall the Borrowerhave the right to convert ABR Loans to Eurocurrency Loans.

###  

### (b)        In the event that theAdministrative Agent shall have determined (which determination shall beconclusive and binding upon the Borrowers) that by reason of circumstancesaffecting the interbank eurodollar market, adequate and reasonable means do notexist for ascertaining the Eurocurrency Rate for any Interest Period withrespect to a proposed Bid Loan to be made pursuant to an Index Rate Bid LoanRequest, the Administrative Agent shall forthwith give notice of suchdetermination to the relevant Borrower and the Bid Loan Banks at least twoBusiness Days prior to the proposed Borrowing Date, and such Bid Loans shallnot be made on such Borrowing Date. Until any such notice has been withdrawn by the Administrative Agent, nofurther Index Rate Bid Loan Requests shall be submitted by either Borrower.

###  

### 2.12     ProRata Treatment and Payments.  (a) All payments (including prepayments), to be made by the Borrowers on account ofprincipal, interest and fees shall be made without defense, set-off orcounterclaim and shall be made, in the case of fees and principal of, andinterest on, Loans (other than Negotiated Rate Loans) at the AdministrativeAgent’s office specified in subsection 10.2, in each case in the relevantCurrency in which the Loan was made and in immediately available funds notlater than 11:00 A.M. (Local Time) on the date due.  The Administrative Agent shall distributesuch payments to the Banks entitled thereto on the day of receipt in like fundsas received, provided that the Administrative Agent shall have received suchpayments not later than 11:00 A.M. (Local Time).  If the Administrative Agent shall distributesuch payments to the Banks entitled thereto on a date after the date on whichsuch payments were received prior to 11:00 A.M. (Local Time), theAdministrative Agent shall pay to each such Bank on demand an amount equal tothe product of (i) the daily average applicable Overnight Rate, times (ii) theamount of such Bank’s share of such payment, times (iii) a fraction, thenumerator of which is the number of days that elapse from and including suchdate of receipt of payment by the Administrative Agent to but excluding thedate on which such Bank’s share of such payment shall have become immediatelyavailable to such Bank and the denominator of which is 360.  All payments (including prepayments) to bemade by the Borrowers on account of principal, interest and fees relating toNegotiated Rate Loans shall be made to the Bank with respect thereto on suchterms, at such address and at such time as shall be

 

----

###  

27

 

### mutually agreed upon between the relevant Borrower and the relevantBank in lawful money of the United States of America on the date due.

###  

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

###  

##### (A) All borrowings of Committed Rate Loans and allprincipal payments in respect of such Loans, shall be made prorataaccording to the respective Commitments of the Banks.

#####  

##### (B) As provided in clause (b)(ii) below, ifany principal payment is made in respect of any Loans (other than NegotiatedRate Loans) on any day on which principal amounts are due and owing in respectof any Loans (other than Negotiated Rate Loans), such principal payment shallbe applied to the Banks prorata according to the respectiveamounts of principal due and owing to the Banks under this Agreement.

#####  

#### (ii)        Exceptas provided in subsections 2.13 and 2.17, each reduction of the Commitmentsshall be made prorata among the Banks according to theirrespective Commitment Percentages.  Eachpayment by the Borrowers under this Agreement or of any Loan (other than NegotiatedRate Loans) shall be applied, first, to any fees then due and owingpursuant to subsection 2.4, second, to interest then due and owing inrespect of the Loans (other than Negotiated Rate Loans) and third, toprincipal then due and owing hereunder (other than principal due and owingunder Negotiated Rate Loans) and under the Loans (other than Negotiated RateLoans).  Each payment made by theBorrowers under this Agreement relating to a Negotiated Rate Loan to the Bankwith respect thereto shall be applied, first, to interest then due andowing in respect of such Negotiated Rate Loan and second, to principalthen due and owing hereunder with respect to such Negotiated Rate Loan andunder such Negotiated Rate Loan.  Eachpayment (other than voluntary prepayments made when no principal payments aredue and owing hereunder) by either Borrower on account of principal of andinterest on the Loans (other than Negotiated Rate Loans) shall be made for theaccount of each Bank prorata according to the respective amountsof principal and interest due and owing to such Bank under this Agreement.  Subject to the requirements of clause (i) ofthis paragraph (b), each payment by a Borrower on account of principal of theLoans (other than Negotiated Rate Loans) shall be applied, first, tosuch of its Committed Rate Loan borrowings as such Borrower may designate, and second,after all Committed Rate Loans shall have been paid in full, to all of itsAbsolute Rate Bid Loans or Index Rate Bid Loans made on the same Borrowing Datewith the same Interest Period as such Borrower may designate, prorataaccording to the respective amounts outstanding; provided, however,that prepayments made pursuant to subsection 2.13(a), (b) or (c), or 2.17(b) shallbe applied in accordance with such subsection.

####  

### (c)        If any paymenthereunder (other than payments on the Eurocurrency Loans and Index Rate BidLoans) becomes due and payable on a day other than a Business Day, such paymentshall be extended to the next succeeding Business Day.  If any payment on a Eurocurrency Loan orIndex 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 Dayunless the result of such extension would be to extend such payment intoanother calendar month in 

 

----

###  

28

 

### which event suchpayment shall be made on the immediately preceding Working Day.  With respect to any extension of the paymentof principal pursuant to this subsection 2.12(c), interest thereon shall bepayable at the then applicable rate during such extension.

###  

### (d)        Unless theAdministrative Agent shall have been notified in writing by any Bank prior tothe date of the Committed Rate Loan, Committed Rate Loans, Bid Loan or BidLoans to be made by such Bank (which notice shall be effective upon receipt)that such Bank will not make its prorata share of the amount ofthe requested borrowing on such date available to the Administrative Agent, theAdministrative Agent may assume that such Bank has made such amount availableto it on such date and the Administrative Agent may, in reliance upon suchassumption, make available to the relevant Borrower a correspondingamount.  If a Bank shall make such amountavailable to the Administrative Agent on a date after such Borrowing Date, suchBank shall pay to the Administrative Agent on demand an amount equal to theproduct of (i) the daily average applicable Overnight Rate times (ii) theamount of such Bank’s prorata share of such borrowing, times(iii) a fraction, the numerator of which is the number of days that elapsefrom and including such Borrowing Date to but excluding the date on which suchBank’s prorata share of such borrowing shall have becomeimmediately available to the Administrative Agent and the denominator of whichis 360.  A certificate of theAdministrative Agent submitted to any Bank with respect to any amounts owingunder this subsection 2.12(d) shall be conclusive, absent manifesterror.  If such Bank’s proratashare is not in fact made available to the Administrative Agent by such Bankwithin three Business Days of such Borrowing Date, the Administrative Agentshall be entitled to recover such amount, on demand, from the relevant Borrowerwith interest thereon at the rate equal to the product of (i) during theperiod from and including such Borrowing Date to the Business Day nextfollowing the date of such demand, the daily average applicable Overnight Rate,times a fraction, the numerator of which is the number of days thatelapse from and including such Borrowing Date to but excluding the Business Daynext 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 theAdministrative Agent on behalf of such Bank on such Borrowing Date, timesa fraction, the numerator of which is the number of days which elapse from andincluding the Business Day next following the date of such demand to butexcluding the date such amount is recovered by the Administrative Agent fromsuch Borrower and the denominator of which is 360.  In the event any Bank’s proratashare of a borrowing is not made available to the Administrative Agent inaccordance with this paragraph within three Business Days of the applicableBorrowing Date (i) such Bank shall, during the period from such BorrowingDate to the date such Bank makes its prorata share of theapplicable borrowing available, not accrue and shall not be entitled to receiveany commitment fee under subsection 2.4 and (ii) either Borrower mayexercise or pursue any other rights, remedies, powers and privileges againstsuch Bank as are provided by law or by contract.

###  

### 2.13     Requirementsof Law.  (a)  If any Bank shalldetermine that by reason of (i) the introduction after the date hereof ofany applicable law, regulation or guideline or any change after the date hereofin any applicable law, regulation or guideline (including the phasing-in of aprovision of any applicable law, regulation or guideline) or in theinterpretation thereof by any governmental or other regulatory authoritycharged with the administration thereof or any court of competent jurisdictionand/or (ii) compliance by such Bank with any requirement adopted after thedate hereof or directive adopted after the date hereof from any 

 

----

###  

29

 

### central bank or other fiscal, monetary or other regulatory authority(whether or not having the force of law), there shall be any increase in thecost of such Bank of maintaining or giving effect to its obligations withrespect to Committed Rate Loans under this Agreement or maintaining itsCommitment with respect to Committed Rate Loans or making or maintaining anyEurocurrency Loans or any reduction in any amount receivable by such Bank inrespect of Eurocurrency Loans under this Agreement, notwithstanding thereasonable efforts (such reasonable efforts not to result in the incurrence ofadditional costs or expenses) of such Bank to mitigate such increase orreduction (excluding for purposes of this subsection 2.13 any such increasedcosts resulting from (x) Foreign Taxes (as to which subsection 2.17 shallgovern) and (y) changes in the basis of taxation of overall net income oroverall gross income by the United States or by the foreign jurisdiction orstate under the laws of which such Bank is organized or has its applicablelending office or any political subdivision thereof), then the relevantBorrower shall from time to time on receipt (whenever occurring) of acertificate from such Bank (which shall be executed by an officer thereof and acopy of which shall be delivered to the Administrative Agent) pay to such Banksuch amounts as are stated therein to be required to indemnify such Bankagainst such increased costs or reduction; provided, however, that ifsuch Borrower becomes obligated to pay any Bank any additional amount pursuantto this subsection 2.13(a), such Borrower shall have the right, so long as noEvent of Default has occurred and is then continuing, upon giving notice to theAdministrative Agent and such Bank in accordance with subsection 2.6, to prepayin full the Loans of such Bank, together with accrued interest thereon, anyamounts payable to such Bank pursuant to subsections 2.13, 2.14, 2.15 and 2.17and any accrued and unpaid commitment fee or other amount payable to such Bankhereunder and/or, upon giving not less than three Business Days’ notice to anysuch Bank and the Administrative Agent, to cancel the whole or part of theCommitment of any such Bank; provided, further, that such Borrower shallnot be obligated to pay any Bank any additional amount pursuant to thissubsection 2.13(a) (A) which constitutes a present or future income,stamp or other tax, levy, impost, duty, charge, fee, deduction or withholdingreferred to in subsection 2.17(a) or (B) as a result of any law,rule, guideline, regulation, request or directive regarding capital adequacyreferred to in subsection 2.13(b).  Acertificate of such Bank as to the amount of such increased costs or reductionshall set forth in reasonable detail the computation of such increased costs orreduction, and shall be binding and conclusive in the absence of manifesterror.  A Bank which demandsindemnification hereunder as a result of an increased cost or reductionreferred to herein shall deliver the certificate referred to above to therelevant Borrower demanding indemnification no later than the later of (y) thethirtieth day immediately following each payment or realization by such Bank ofsuch increased cost or reduction (and such certificate shall certify that theamounts set forth therein were paid or realized within such thirty-day period)and (z) the thirtieth day immediately following such Bank’s knowledge ofthe incurrence or realization by such Bank of such increased cost or reduction(and such certificate shall so certify).

###  

### (b)        In the event that anyBank shall have determined that the adoption after the date hereof of any law,rule, guideline or regulation regarding capital adequacy, or any change afterthe date hereof in any existing or future law, rule, guideline or regulationregarding capital adequacy (excluding, however, the phasing-in of any existinglaw, rule, regulation or guideline regarding capital adequacy) or in theinterpretation or application thereof or compliance by such Bank or anycorporation controlling such Bank with any request or directive made or adoptedafter the date hereof regarding capital adequacy (whether or not having theforce of law) from any central bank or Governmental Authority, does or shallhave the effect of 

 

----

###  

30

 

### reducing the rateof return on such Bank’s or such corporation’s capital as a consequence of itsobligations hereunder to a level below that which such Bank or such corporationcould have achieved but for such adoption, change or compliance (taking intoconsideration such Bank’s or such corporation’s policies with respect tocapital adequacy) by an amount deemed by such Bank to be material, then fromtime to time, within 30 days after receipt (whenever occurring) of acertificate from such Bank (which shall be executed by an officer thereof and acopy of which shall be delivered to the Administrative Agent), the Borrowersjointly and severally agree to pay to such Bank such additional amounts as arestated therein to be required to compensate it for such reduction; provided,however, that if such Borrower becomes obligated to pay any Bank anyadditional amount pursuant to this subsection 2.13(b), such Borrower shall havethe right, so long as no Event of Default has occurred and is then continuing,upon giving notice to the Administrative Agent and such Bank in accordance withsubsection 2.6, to prepay in full the Loans of such Bank, together with accruedinterest thereon, any amounts payable pursuant to subsections 2.13, 2.14, 2.15and 2.17 and any accrued and unpaid commitment fee or other amounts payable toit hereunder and/or, upon giving not less than three Business Days’ notice toany such Bank and the Administrative Agent, to cancel the whole or part of theCommitment of any such Bank (but only if after giving effect to suchcancellation and prepayment the aggregate principal amount of outstanding Loansdoes not exceed the Total Commitments). A certificate of such Bank as to the amount of such reduction shall setforth in reasonable detail the computation of such reduction, and shall bebinding and conclusive in the absence of manifest error.  A Bank which demands indemnificationhereunder as a result of a reduction referred to herein shall deliver thecertificate referred to above to the relevant Borrower demandingindemnification no later than the later of (i) the thirtieth dayimmediately following each realization by such Bank of such reduction (and suchcertificate shall certify that the amounts set forth therein were realizedwithin such thirty-day period) and (ii) the thirtieth day immediatelyfollowing such Bank’s knowledge of the realization by such Bank of suchreduction (and such certificate shall so certify).

###  

### (c)        Each Borrower shall payto each Bank that delivers a certificate to such Borrower in accordance withthe second and third following sentences such amounts as shall be necessary toreimburse such Bank for the costs (determined in accordance with theimmediately following sentence), if any, incurred by such Bank, as a result ofthe application to such Bank during any period on which there are outstandingEurocurrency Loans advanced by such Bank to such Borrower of basic,supplemental, marginal and emergency reserves under any regulations of theBoard or other Governmental Authority having jurisdiction with respect theretodealing with reserve requirements prescribed for eurocurrency funding (currentlyreferred to as “Eurocurrency liabilities” in Regulation D of such Board)maintained by a member bank of such System (any such reserves dealing withreserve requirements prescribed for eurocurrency funding being referred to as “Reserves”),such amount to be set forth in a certificate of such Bank delivered to therelevant Borrower; provided, however, that if a Bank gives to aBorrower the written notice contemplated by the proviso set forth in the secondfollowing sentence, such Borrower shall have the right, so long as no Event ofDefault has occurred and is then continuing, upon giving notice to theAdministrative Agent and such Bank in accordance with subsection 2.6, to prepayin full the Loans of such Bank, together with accrued interest thereon, any amountspayable pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued andunpaid commitment fee or other amounts payable to it hereunder and/or upongiving not less than three Working Days’ notice to such Bank and theAdministrative Agent, to cancel the whole 

 

----

###  

31

 

### or part of theCommitment of any such Bank.  Amountscertified by a Bank hereunder for any period shall represent such Bank’scalculation or, if an accurate calculation is impracticable, reasonableestimate (using such reasonable means of allocation as such Bank shalldetermine) of the actual costs, if any, theretofore incurred by such Bank as aresult of the application of Reserves to Eurocurrency liabilities (as referredto in Regulation D referred to above) of such Bank in an amount equal to suchBank’s Eurocurrency Loans during such period and in any event shall not exceedthe amount obtainable utilizing the maximum Reserves prescribed by the Board orother Governmental Authority having jurisdiction with respect thereto for suchperiod.  Such payment shall be madewithin fifteen days after receipt by the relevant Borrower of a certificate,signed by an officer of the Bank delivering such certificate, which certificateshall be binding and conclusive in the absence of demonstrable error,specifying the period (prior to the date of such certificate) during which thecost set forth therein was incurred by such Bank and stating (i) that suchamount represents the actual cost, or, if an accurate calculation of such costis impracticable stating that such amount represents such Bank’s reasonableestimate of the actual cost, incurred by such Bank during such period as aresult of the application of Reserves to Eurocurrency liabilities of such Bank inan amount equal to such Bank’s Eurocurrency Loans during such period andspecified in such certificate and (ii) that the amount set forth thereindoes not in any event exceed the amount obtainable utilizing the maximumReserves prescribed for such period by the Board or such other GovernmentalAuthority having jurisdiction with respect thereto; provided that theobligation of the Borrowers to pay any amounts pursuant to this subsection 2.13(c) shallapply only in the case of those Banks that give to the relevant Borrower andthe Administrative Agent, no later than 3:00 P.M. (Local Time) on the daythat is two Working Days prior to the applicable Borrowing Date therefor, awritten notice stating that such Bank intends to demand reimbursement pursuanthereto.  A Bank which demandsreimbursement of Reserve costs hereunder on account of a Eurocurrency Loan madeby such Bank shall deliver the certificate referred to in the precedingsentence to the relevant Borrower setting forth the items specified in clauses (i) and(ii) of the preceding sentence no later than the thirtieth day immediatelyfollowing the last day of the Interest Period applicable to such EurocurrencyLoan.

###  

### (d)        If any GovernmentalAuthority of the jurisdiction of any Foreign Currency (or any otherjurisdiction in which the funding operations of any Bank shall be conductedwith respect to such Foreign Currency) shall put into effect after the datehereof any reserve, liquid asset or similar requirement with respect to anycategory of deposits or liabilities customarily used to fund loans in suchForeign Currency (excluding any Reserves), or by reference to which interestrates applicable to loans in such Foreign Currency are determined, and theresult of such requirement shall be to increase the cost to such Bank of makingor maintaining any Foreign Currency Loan in such Foreign Currency, and suchBank shall deliver to the Borrowers a notice requesting compensation under thisparagraph, then the Borrower will pay to such Bank on each Interest PaymentDate with respect to each affected Foreign Currency Loan an amount that willcompensate such Bank for such additional cost; provided, that theBorrowers shall not be required to compensate a Bank pursuant to this paragraphfor any amounts incurred more than three months prior to the date that suchBanks notifies the Borrowers of such Bank’s intention to claim compensationtherefor; and providedfurther that, if the circumstances givingrise to such claim have a retroactive effect, then such three-month periodshall be extended to include the period of such retroactive effect.  Notwithstanding the foregoing, if a Bankgives to a Borrower the written notice contemplated by the proviso set forth inthe following sentence, such Borrower shall have the right, so long as no Eventof Default has occurred and is then continuing, upon 

 

----

###  

32

 

### giving notice tothe Administrative Agent and such Bank in accordance with subsection 2.6, toprepay 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 anyaccrued and unpaid commitment fee or other amounts payable to it hereunderand/or upon giving not less than three Working Days’ notice to such Bank andthe Administrative Agent, to cancel the whole or part of the Commitment of anysuch Bank.  Such payment shall be madewithin fifteen days after receipt by the relevant Borrower of a certificate, signedby an officer of the Bank delivering such certificate, which certificate shallbe binding and conclusive in the absence of demonstrable error, specifying theperiod (prior to the date of such certificate) during which the cost set forththerein was incurred by such Bank and stating (i) that such amountrepresents the actual cost, or, if an accurate calculation of such cost isimpracticable stating that such amount represents such Bank’s reasonableestimate of the actual cost, incurred by such Bank during such period as aresult of the application of such reserve, liquid asset or similar requirementsin an amount equal to such Bank’s Foreign Currency Loans during such period andspecified in such certificate and (ii) that the amount set forth thereindoes not in any event exceed the amount obtainable utilizing such reservesprescribed for such period by such Governmental Authority having jurisdictionwith respect thereto; provided that the obligation of the Borrowers topay any amounts pursuant to this subsection 2.13(d) shall apply only inthe case of those Banks that give to the relevant Borrower and theAdministrative Agent, no later than 3:00 P.M. (Local Time) on the day thatis two Working Days prior to the applicable Borrowing Date therefor, a writtennotice stating that such Bank intends to demand reimbursement pursuanthereto.  A Bank which demandsreimbursement of reserve costs hereunder on account of a Foreign Currency Loanmade by such Bank shall deliver the certificate referred to in the precedingsentence to the relevant Borrower setting forth the items specified in clauses (i) and(ii) of the preceding sentence no later than the thirtieth day immediatelyfollowing the last day of the Interest Period applicable to such ForeignCurrency Loan.

###  

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

###  

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

 

----

###  

33

 

### (ii)  such Bank may require that all outstandingForeign Currency Loans (in the affected Currency or Currencies), made by it beconverted to ABR Loans or Eurocurrency Loans denominated in Dollars, as thecase may be (unless repaid by the Borrowers), in which event all such ForeignCurrency Loans (in the affected Currency or Currencies) shall be converted toABR Loans or Eurocurrency Loans denominated in Dollars, as the case may be, asof the effective date of such notice as provided in paragraph (f) belowand at the Exchange Rate on the date of such conversion or, at the option ofthe Borrower, repaid on the last day of the then current Interest Period withrespect thereto or, if earlier, the date on which the applicable notice becomeseffective.

###  

In the event any Bank shallexercise its rights under (i) or (ii) above, all payments andprepayments of principal that would otherwise have been applied to repay the convertedForeign Currency Loans of such Bank shall instead be applied to repay the ABRLoans or Loans denominated in Dollars, as the case may be, made by such Bankresulting from such conversion.

 

### (f)         The obligations of theparties under this subsection 2.13 shall survive termination of this Agreementand payment of the Loans.

###  

2.14     Indemnity.  EachBorrower agrees to indemnify each Bank and to hold each Bank harmless from anyloss or expense which such Bank may sustain or incur as a consequence of (a) defaultby such Borrower in payment of the principal amount of or interest on any Loanby such Bank, including, but not limited to, any such loss or expense arisingfrom interest or fees payable by such Bank to lenders of funds obtained by itin order to maintain its Loans hereunder, (b) default by such Borrower inmaking a borrowing, conversion or continuance after such Borrower has given anotice in accordance with subsection 2.1, 2.2 or 2.9, (c) default by suchBorrower in making any prepayment after such Borrower has given a notice inaccordance with subsection 2.5 or 2.6 or (d) the making by such Borrowerof a prepayment of a Committed Rate Loan (other than an ABR Loan), a Bid Loanor, to the extent agreed to by the relevant Borrower and the relevant Bank withrespect to a Negotiated Rate Loan, a Negotiated Rate Loan on a day which is notthe last day of an Interest Period with respect thereto (with respect toCommitted Rate Loans) or the maturity date therefor (with respect to Bid Loans)or any agreed date (with respect to Negotiated Rate Loans), including, but notlimited to, any such loss or expense arising from interest or fees payable bysuch Bank to lenders of funds obtained by it in order to maintain its Loanshereunder.  This covenant shall survivetermination of this Agreement and payment of the outstanding Loans.  A certificate as to any amount payablepursuant to the foregoing shall be submitted by such Bank (and executed by anofficer thereof) to the relevant Borrower, setting forth the computation ofsuch amounts in reasonable detail, and shall be conclusive in the absence ofmanifest error.

 

2.15     Non-Receipt of Funds by the Administrative Agent.  With respect to all Loans except NegotiatedRate Loans, unless the Administrative Agent shall have been notified by therelevant Borrower prior to the date on which any payment is due from ithereunder (which notice shall be effective upon receipt) that such Borrowerdoes not intend to make such payment, the Administrative Agent may assume thatsuch Borrower has made such payment when due, and the Administrative Agent mayin reliance upon such assumption (but shall not be required to) make availableto each Bank on such payment date an amount equal to the portion of suchassumed payment to which such Bank is entitled hereunder, and if such Borrowerhas 

 

----

 

34

 

not in fact made suchpayment to the Administrative Agent, such Bank shall, on demand, repay to theAdministrative Agent the amount made available to such Bank together withinterest thereon in respect of each day during the period commencing on thedate such amount was made available to such Bank and ending on (but excluding)the date such Bank repays such amount to the Administrative Agent, at a rateper annum equal to the applicable Overnight Rate.  A certificate of the Administrative Agentsubmitted to the relevant Bank with respect to any amount owing under thissubsection 2.15 shall be conclusive absent manifest error.

 

2.16     [RESERVED]

 

### 2.17     ForeignTaxes.  All payments made under thisAgreement shall be made without set-off, counterclaim, restriction or conditionand free and clear of, and without reduction for or on account of, any presentor 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 any country (or by any politicalsubdivision or taxing authority thereof or therein) with respect to any amountthat is paid under this Agreement excluding, in the case of each Bank, (i) incomeand franchise taxes (including, without limitation, branch taxes imposed by theUnited States or similar taxes imposed by a political subdivision or taxingauthority 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, anysuch 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 UnitedStates, a state thereof or the District of Columbia, any taxes imposed by theUnited States by means of withholding at the source unless such Bank hasprovided the Company, the Capital Corporation and the Administrative Agent withthe 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 theexistence of a connection between such Bank and the jurisdiction imposing suchtaxes (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 bewithheld from any amounts so payable to any Bank hereunder, the amounts sopayable to such Bank shall be increased to the extent necessary to yield tosuch Bank (after payment of all Foreign Taxes) interest or any such otheramounts payable hereunder at the rates or in the amounts specified in thisAgreement.  Whenever any Foreign Taxesare payable by the Company or the Capital Corporation, as the case may be, aspromptly as possible thereafter the Company or the Capital Corporation, as thecase may be, shall send to the Administrative Agent, for the account of theaffected Bank, a certified copy of the original official receipt, if any,received by the Company or the Capital Corporation, as the case may be, showingpayment thereof.  If the Company or theCapital Corporation, as the case may be, fails to pay any Foreign Taxes whendue to the appropriate taxing authority or fails to remit to the AdministrativeAgent, for the account of the affected Banks, the required receipts or otherrequired documentary evidence, the Company or the Capital Corporation, as thecase may be, shall indemnify such Banks for any incremental taxes, interest orpenalties that may become payable by such Banks as a result of any suchfailure.

###  

### (b)        If a Borrower isrequired by this subsection 2.17 to make a payment to or in respect of anyBank, such Borrower shall have the right, so long as no Event of Default has occurredand is then continuing, upon giving notice to the Administrative Agent and suchBank in accordance with subsection 2.6, to prepay in full the Loans of suchBank, together with 

 

----

###  

35

 

### accrued interestthereon, any amounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17and any accrued and unpaid commitment fee or other amounts payable to ithereunder and/or on giving not less than three Business Days’ notice to anysuch Bank and the Administrative Agent, to cancel the whole or part of theCommitment of such Bank (but only if after giving effect to such cancellationor prepayment of the aggregate principal amount of the Loans does not exceedthe aggregate Commitments then in effect).

###  

### (c)        At least two BusinessDays prior to the first Borrowing Date or, if such date does not occur withinthirty days after the Closing Date, by the end of such thirty-day period, eachBank agrees that it will deliver to each Borrower and the Administrative Agenteither (A) a statement that it is incorporated under the laws of theUnited States, a state thereof or the District of Columbia, (B) if it isnot so incorporated, a letter in duplicate in substantiallythe form of Exhibit I or Exhibit J, as appropriate, and twoduly completed copies of United States Internal Revenue Service Form W-8BENor W-8ECI or successor applicable form, as the case may be, certifying in eachcase that such Bank is entitled to receive payment under this Agreement withoutdeduction or withholding of any United States Federal income taxes, or (C) inthe case of a Bank claiming exception under Sections 871(h) or 881(c) ofthe Code, a Certificate of Non-Bank Status together with two original copies ofInternal Revenue Service Form W-8BEN, or successor applicable form, as thecase may be, to establish an exemption from United States backup withholdingtax.  Each Bank (including, withoutlimitation, each Loan Assignee) agrees (for the benefit of the AdministrativeAgent and the Borrowers), to the extent it may lawfully do so, to provide theAdministrative Agent and the Borrowers a new letter or a new Certificate ofNon-Bank Status, if applicable, and Form W-8BEN or W-8ECI, or successorapplicable form or other manner of certification, (x) in the case of aLoan Assignee, on or before the date it becomes party to this Agreement, (y) onor before the date that any such letter or form expires or becomes obsolete orafter the occurrence of any event requiring a change in the most recent letteror form previously delivered by it, certifying in the case of a Form W-8BENor W-8ECI that such Bank is entitled to receive payments under this Agreementwithout deduction or withholding of any United States Federal income tax, andin the case of a Form W-8BEN establishing exemption from United Statesbackup withholding tax, and (z) promptly after the date of the Company,the Capital Corporation or the Administrative Agent reasonably requests anyform or document referred to in this subsection 2.17(c); provided, however,that if a Bank is unable to provide a letter, form, certificate, successor orother document described in this sentence by reason of a change in theapplicable law occurring after the date on which such letter, form, certificate,successor or other document originally was required to be provided by suchBank, then such Bank shall be required to comply with this sentence to theextent 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 thisAgreement at the lowest rate of deduction, withholding or backup withholding towhich it is entitled under such applicable law. The Administrative Agent shall not be responsible for obtaining suchdocumentation from any Bank other than JPMorgan Chase Bank, N.A.

###  

### (d)        To the extent that, asdetermined by any Bank in its sole discretion and without any obligation todisclose its tax records, Foreign Taxes have been irrevocably utilized by suchBank (either as credits or deductions) to reduce its tax liabilities and suchutilization is consistent with its overall tax policies, such Bank shall pay tothe Company or the Capital 

 

----

###  

36

 

### Corporation, asthe case may be, an amount equal to such reduction obtained to the extent ofsuch increased amounts paid by the Company or the Capital Corporation to suchBank as aforesaid.

###  

### (e)        The obligations of theparties under this subsection 2.17 shall survive termination of this Agreementand payment of the Loans.

###  

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

 

2.19     Replacement of Cancelled Banks.  The Borrowers may designate one or morefinancial institutions to act as a Bank hereunder in place of any CancelledBank, and upon the Borrowers, each such financial institution and the AdministrativeAgent executing a writing substantially in the form of Exhibit K, suchfinancial institution shall become and be a Bank hereunder with all the rightsand 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 nogreater than the whole, or such cancelled part, of the Commitment of theCancelled Bank in place of which such financial institutions were designated; provided,however, that all rights and obligations of such Cancelled Bank relatingto the Loans made by such Cancelled Bank that are outstanding on the date ofsuch cancellation shall be the rights and obligations of such Cancelled Bankand not of any such financial institution. The Administrative Agent shall execute any such writing presented to itand shall notify the Banks of the execution thereof, the name of the financialinstitution executing such writing and the amount of its Commitment.

 

### 2.20     CommitmentIncreases.  (a)  At any timeafter the Closing Date, provided that no Event of Default shall haveoccurred and be continuing, the Borrowers may request an increase of theaggregate Commitments by notice to the Administrative Agent in writing of theamount (the “Offered Increase Amount”) of such proposed increase (suchnotice, a “Commitment Increase Notice”). Any such Commitment Increase Notice must offer each Bank the opportunityto subscribe for its pro rata share of the increased Commitments; provided,however, the Borrowers may, with the consent of the Administrative Agent (whichconsent shall not be unreasonably withheld or delayed), without offering toeach Bank the opportunity to subscribe for its pro rata share of the increasedCommitments, offer to any bank or other financial institution that is not anexisting Bank the opportunity to provide a new Commitment pursuant to paragraph(b) below if the aggregate amount of all Commitments made hereunderpursuant to this proviso which will be in effect when such new Commitmentbecomes effective does not exceed $250,000,000 subject to subsection2.20(f).  If any portion of the increasedCommitments offered to the Banks as contemplated in the immediately precedingsentence is not

 

----

###  

37

 

### subscribed for by the Banks, the Borrowers may, with the consent of theAdministrative Agent as to any bank or financial institution that is not atsuch time a Bank (which consent shall not be unreasonably withheld or delayed),offer to any existing Bank or to one or more additional banks or financialinstitutions the opportunity to provide all or a portion of such unsubscribedportion of the increased Commitments pursuant to paragraph (b) below.

###  

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

###  

### (c)        Any Bank that acceptsan offer to it by the Borrowers to increase its Commitment pursuant to thissubsection 2.20 shall, in each case, execute a Commitment Increase Supplementwith the Borrowers and the Administrative Agent, substantially in the form of Exhibit N(a “Commitment Increase Supplement”), whereupon such Bank (an “IncreasingBank”) shall be bound by and entitled to the benefits of this Agreementwith respect to the full amount of its Commitment as so increased, and ScheduleII shall be deemed to be amended to so increase the Commitment of such Bank.

###  

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

###  

### (e)        (i)  Except asotherwise provided in subparagraphs (ii) and (iii) of this paragraph(e), if any bank or financial institution becomes a New Bank pursuant tosubsection 2.20(b) or any Bank’s Commitment is increased pursuant tosubsection 2.20(c), additional Committed Rate Loans made on or after the dateof the effectiveness thereof (the “Re-Allocation Date”) shall be made inaccordance with the pro rata provisions of subsection 2.12(b) based on theCommitment Percentages in effect on and after such Re-Allocation Date (exceptto the extent that any such pro rata borrowings would result in any Bank makingan aggregate principal amount of Committed Rate Loans in excess of itsCommitment, in which case such excess amount will be allocated to, and made by,the relevant New Banks and Increasing Banks to the extent of, and in accordancewith the pro rata provisions of subsection 2.12(b) based on, theirrespective Commitments).  On eachRe-Allocation Date, the Administrative Agent shall deliver such amendedSchedule II and a notice to each Bank of the adjusted Commitment Percentagesafter giving effect to any increase in the aggregate Commitments made pursuantto this subsection 2.20 on such Re-Allocation Date.

####  

#### (ii)        Inthe event that on any such Re-Allocation Date there is an unpaid principalamount of ABR Loans, the applicable Borrower shall make prepayments thereof andone or both Borrowers shall make borrowings of ABR Loans and/or EurocurrencyLoans, as the 

 

----

 

38

 

#### applicable Borrower shall determine, so that, after giving effectthereto, the ABR Loans and Eurocurrency Loans outstanding are held as nearly asmay be in accordance with the pro rata provisions of subsection 2.12(b) basedon such new Commitment Percentages.

####  

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

####  

### (f)         Notwithstandinganything to the contrary in this subsection 2.20, (i) in no event shallany transaction effected pursuant to this subsection 2.20 cause the aggregateCommitments to exceed $1,750,000,000, (ii) the Commitment of an individualBank shall not, as a result of providing a new Commitment or of increasing itsexisting Commitment pursuant to this subsection 2.20, exceed 15% of theaggregate Commitments on any Re-Allocation Date and (iii) no Bank shallhave any obligation to increase its Commitment unless it agrees to do so in itssole discretion.

###  

### (g)        The Borrowers, at theirown expense, shall execute and deliver to the Administrative Agent in exchangefor the surrendered Notes of any Bank, if any, new Notes to the order of suchBank, if requested, in an amount equal to the Commitment of such Bank aftergiving effect to any increase in such Bank’s Commitment.

###  

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

 

The “Eurocurrency Margin” is a rate per annumequal to the Credit Default Swap Spread at the applicable date of determinationspecified below, subject to the minimum and maximum rates which are set forthin the Pricing Grid table below under the respective columns headed “EurocurrencyMargin Floor” and “Eurocurrency Margin Ceiling” corresponding to the PrevailingRating in effect on such date of determination. The Eurocurrency Margin applicable to any Eurocurrency Loans for anyInterest Period will be determined based on the Credit Default Swap Spread ineffect as of three Business Days prior to the commencement of such InterestPeriod; provided that if such Interest Period is a period greater than threemonths, the applicable Eurocurrency Margin shall be redetermined at the end ofeach successive three-month period during such Interest Period.

 

The “ABR Margin” applicable at all timesduring any Calendar Quarter (or shorter period commencing on the Closing Dateand ending on the last day of the Calendar Quarter in which the Closing Dateoccurs) is a rate per annum equal to the excess, if any, of the EurocurrencyMargin determined on the first Business Day of such Calendar Quarter (orshorter period) over 1.00% per annum (but not less than 0%).

 

----

 

39

 

The “Credit Default Swap Spread” shall mean,at any Determination Date, the credit default swap spread applicable to IndexDebt of the Company interpolated for a period to the Termination Date,determined as of the close of business on the Business Day immediatelypreceding such Determination Date, as reported and interpolated by Markit orany successor thereto; provided, that if such period is less than oneyear, the Credit Default Swap Spread shall be based on the credit default swapspread shown for a period of one year.

 

Pricing Grid

 
| Prevailing  Rating:             |   | Eurocurrency  Margin Floor |   | Eurocurrency  Margin Ceiling |   | ABRMargin Floor |   | ABR

Margin Ceiling |
|---------------------------------|--------|----------------------------|--------|------------------------------|--------|-----------------|--------|---------------------|
| Greater than or equal  to A1/A+ |   | 0.75%                      |   | 1.50%                        |   | 0%              |   | 0%                  |
| A2/A                            |   | 1.00%                      |   | 2.00%                        |   | 0%              |   | 1.00%               |
| A3/A-                           |   | 1.25%                      |   | 2.50%                        |   | 0.25%           |   | 1.50%               |
| Baa1/BBB+                       |   | 1.50%                      |   | 3.00%                        |   | 0.50%           |   | 2.00%               |
| Baa2/BBB                        |   | 2.00%                      |   | 3.50%                        |   | 1.00%           |   | 2.50%               |
| Lower                           |   | 2.50%                      |   | 4.00%                        |   | 1.50%           |   | 3.00%               |

 

If at any time the Credit Default Swap Spread isunavailable, the Borrowers and the Banks shall negotiate in good faith (for aperiod of up to thirty days after the Credit Default Swap Spread becomesunavailable (such thirty-day period, the “Negotiation Period”)) to agreeon an alternative method for establishing the Eurocurrency Margin and the ABRMargin.  The Eurocurrency Margin and theABR Margin at any date of determination thereof in accordance with thepreceding provisions of this Section which falls during the NegotiationPeriod shall be based upon the then most recently available quote of the CreditDefault Swap Spread.  If no such alternativemethod is agreed upon during the Negotiation Period, the Eurocurrency Marginand the ABR Margin at any date of determination subsequent to the end of theNegotiation Period shall be a rate per annum equal to 100% of the maximummargin set forth in the Pricing Grid table above under the columns headed “EurocurrencyMargin Ceiling” and “ABR Margin Ceiling” corresponding to the Prevailing Ratingin effect on such date of determination.

 

### 2.22     Markit Data.(a) JPMorgan Chase Bank, N.A., in any capacity, whether in anindividual capacity or as Administrative Agent or Bank or otherwise, shallreceive data from Markit with respect to the Credit Default Swap Spread andagrees in such capacity to provide to Designated Users identified by each Bankand the Borrowers (and, if JPMorgan Chase Bank, N.A. is not the AdministrativeAgent, the Administrative Agent) such data, including any accompanying writtennotice or supporting information from Markit (together, the “Markit Data”), viaemail, log-in or other means of communication at the discretion of JPMorganChase Bank, N.A.  JPMorgan Chase Bank,N.A. shall have all of the rights, benefits and protections of theAdministrative Agent provided for in Section 9 when acting in suchcapacity with respect to the provision of any Markit Data.

 

For the avoidance of doubt,any Designated User shall only access and use the Markit Data for the purposesas specified in this Agreement on behalf of the Borrowers, the respective 

 

----

 

40

 

Bank or, if applicable, theAdministrative Agent and shall be required by the Borrowers, such Bank, and ifapplicable, the Administrative Agent, to comply with the terms of thissubsection 2.22.  The Borrowers, each Bank,and if applicable, the Administrative Agent, hereby agrees, without limitingMarkit’s or JPMorgan Chase Bank, N.A.’s other rights and remedies, that it isresponsible for and liable for any breach of any of the provisions of thissubsection 2.22 by its respective Designated Users.

 

### (b)        Each Borrower and eachBank acknowledges that all copyright, database rights, trade marks, patents,rights of privacy or publicity and other proprietary or intellectual propertyrights (including all models, software, data and any materials) comprised in allor any of the Markit Data, or their provision, and all enhancements,modifications or additional services thereto, are and will be the exclusiveproperty of Markit.  Except as providedfor under this Agreement, each of the Borrowers and each Bank agrees that itwill not use the same (including copying, reverse engineering or, except asotherwise required by law or regulation, disclosing it to any Person, for anypurpose whatsoever) and will not remove or deface any trademarks associatedwith the Markit Data.  Each Bankacknowledges that the Markit Data was developed, compiled, prepared, revised,selected and arranged by Markit and others (including certain informationsources (each a “Data Provider”)) through the application of methods andstandards of judgment developed and applied through the expenditure ofsubstantial time, effort and money, and constitute valuable intellectualproperty and trade secrets of Markit. Each Borrower and each Bank shall make reasonable efforts to comply, atMarkit’s expense, with all reasonable written requests made by JPMorgan ChaseBank, 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 MarkitData.

###  

### (c)        Each Borrower and eachBank acknowledges that none of Markit, JPMorgan Chase Bank, N.A., theirrespective affiliates or any Data Provider makes any warranty, express orimplied, as to the accuracy or completeness of the Markit Data or as to theresults to be attained by either Borrower or any Bank or others from the use ofthe Markit Data.  Each Borrower and eachBank hereby acknowledges that there are no express or implied warranties oftitle, merchantability or fitness for a particular purpose or use, and that ithas 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 itsaffiliates (except in the event of fraud, gross negligence or willfulmisconduct on part of Markit or its affiliates) nor any Data Provider norJPMorgan Chase Bank, N.A. and its affiliates shall in any way be liable to theBorrowers, any Bank or any client of any Bank for any inaccuracies, errors oromissions, regardless of cause, in the Markit Data provided hereunder or forany damages (whether direct or indirect) resulting therefrom.  Without limiting the foregoing, Markit andJPMorgan Chase Bank, N.A. shall have no liability whatsoever to either Borroweror any Bank or client of a Bank, whether in contract (including under anindemnity), in tort (including negligence), under a warranty, under statute orotherwise, in respect of any loss or damage suffered by either Borrower, suchBank or client as a result of or in connection with any opinions,recommendations, forecasts, judgments, or any other conclusions, or any courseof action determined, by such Bank or any client of such Bank, based on theMarkit Data.  To the extent permitted bylaw, neither Markit nor JPMorgan Chase Bank, N.A. nor their respectiveaffiliates shall be liable for any loss of profits or revenue or any 

 

----

 

41

 

### indirect orconsequential losses or damages whatsoever incurred, whether or not it has beenadvised in advance of the possibility of any such loss.

###  

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

###  

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

###  

### 2.23     Defaulting Banks.  (a) Notwithstandingany provision of this Agreement to the contrary, if any Bank becomes aDefaulting Bank, then the following provisions shall apply for so long as suchBank is a Defaulting Bank:

###  

### (b)        fees shall cease toaccrue on the Available Commitment of such Defaulting Bank pursuant tosubsection 2.4(a);

###  

### (c)        the Commitment andLoans of such Defaulting Bank shall not be included in determining whether allBanks, the Majority Banks or the Required Banks have taken or may take anyaction hereunder (including any consent to any amendment or waiver pursuant tosubsection 10.1); provided that any waiver, amendment or modification requiringthe consent of all Banks or each affected Bank which affects such DefaultingBank differently than other affected Banks shall require the consent of suchDefaulting Bank; and

 

----

###  

42

 

### (d)        any amount payable tosuch Defaulting Bank hereunder (whether on account of principal, interest, feesor otherwise and including any amount that would otherwise be payable to suchDefaulting Bank pursuant to subsection 10.6 but excluding subsection 2.19)shall, in lieu of being distributed to such Defaulting Bank, be retained by theAdministrative Agent in a segregated account and, subject to any applicablerequirements of law, be applied at such time or times as may be determined bythe Administrative Agent, in the following order of priority:  (i) first, to the payment of any amountsowing 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 failedto fund its portion thereof as required by this Agreement and (iii) third,if so determined by the Administrative Agent and the Company, held in suchaccount as cash collateral for future funding obligations of the DefaultingBank in respect of any Loans under this Agreement.

###  

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

 

In the event that theAdministrative Agent and the Company agree that a Defaulting Bank hasadequately 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 maybe necessary in order for such Bank to hold such Loans in accordance with itsCommitment Percentage and such Bank shall no longer be a Defaulting Bank.

 

### 2.24     Judgment Currency.  (a)            If, for the purpose of obtaining judgment in any court, it isnecessary to convert a sum owing hereunder in one currency into anothercurrency, each party hereto agrees, to the fullest extent that it mayeffectively do so, that the rate of exchange used shall be that at which, inaccordance with normal banking procedures in the relevant jurisdiction, thefirst currency could be purchased with such other currency on the Business Dayimmediately preceding the day on which final judgment is given.

###  

### (b)        The obligations of theBorrowers in respect of any sum due to any party hereto or any holder of theobligations owing hereunder (the “Applicable Creditor”) shall,notwithstanding any judgment in a currency (the “Judgment Currency”)other than the currency in which such sum is stated to be due hereunder (the “AgreementCurrency”), be discharged only to the extent that, on the Business Dayfollowing receipt by the Applicable Creditor of any sum adjudged to be so duein the Judgment Currency, the Applicable Creditor may in accordance with normalbanking procedures in the relevant jurisdiction purchase the Agreement Currencywith the Judgment Currency; if the amount of the Agreement Currency sopurchased is less than the sum originally due to the Applicable Creditor in theAgreement Currency, the Borrowers as a separate obligation and notwithstandingany such judgment, agrees to indemnify the Applicable Creditor against suchloss.  The obligations of the Borrowerscontained in this subsection 2.24 shall survive the termination of thisAgreement and the payment of all other amounts owing hereunder.

###  

### 2.25     Foreign Currency ExchangeRate.  (a)  No later than 1:00 P.M., New York City time, on eachCalculation Date with respect to a Foreign Currency, the Administrative 

 

----

###  

43

 

### Agent (or the Foreign Currency Agent) shall determine the Exchange Rateas of such Calculation Date with respect to such Foreign Currency (it beingacknowledged and agreed that the Administrative Agent or the Foreign CurrencyAgent, as the case may be, shall use such Exchange Rate for the purposes ofdetermining compliance with subsection 2.1 with respect to such borrowingrequest).  The Exchange Rates sodetermined shall become effective on the relevant Calculation Date, shallremain effective until the next succeeding Calculation Date and shall for allpurposes of this Agreement (other than subsection 2.13(e) and subsection2.24(a)) be the Exchange Rates employed in converting any amounts betweenDollars and Foreign Currencies.

###  

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

###  

### (c)        The AdministrativeAgent shall promptly notify the Borrowers of each determination of an ExchangeRate hereunder.

###  

SECTION 3.             REPRESENTATIONSAND WARRANTIES

 

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

 

3.1 Financial Condition. The consolidated balance sheet of such Borrower and its consolidatedSubsidiaries as at October 31, 2009 and the related consolidatedstatements of income and of cash flow for the fiscal year then ended (includingthe related schedules and notes) reported on by Deloitte & Touche LLP,copies of which have heretofore been furnished to each Bank, fairly present theconsolidated financial condition of such Borrower and its consolidatedSubsidiaries as at such date, and the consolidated results of their operationsand changes in financial position for the fiscal year then ended.  All such financial statements, including therelated schedules and notes thereto, have been prepared in accordance withgenerally accepted accounting principles in the United States of Americaapplied consistently throughout the periods involved (except as approved bysuch accountants or Responsible Officer, as the case may be, and as disclosedtherein).

 

3.2 Corporate Existence. Such Borrower is duly organized, validly existing and in good standingunder the laws of the jurisdiction of its incorporation and has the corporatepower and authority to own its properties and to conduct the business in whichit is currently engaged.

 

3.3 Corporate Power; Authorization; Enforceable Obligations.  Such Borrower has the corporate power andauthority and the legal right to execute, deliver and perform this Agreementand to borrow hereunder and has taken all necessary corporate action toauthorize its borrowings on the terms and conditions of this Agreement and toauthorize its execution, delivery and performance of this Agreement.  No consent or authorization of, filing with,or 

 

----

 

44

 

other act by or in respect of,any Governmental Authority, is required in connection with the borrowingshereunder or with the execution, delivery, performance, validity orenforceability of this Agreement other than any such consents, authorizations,filings or acts as have been obtained, taken or made and are in full force andeffect.  This Agreement has been dulyexecuted and delivered on behalf of such Borrower, and this Agreementconstitutes a legal, valid and binding obligation of such Borrower enforceableagainst such Borrower in accordance with its terms, except as enforceabilitymay be limited by applicable bankruptcy, insolvency, reorganization, moratoriumor similar laws affecting the enforcement of creditors’ rights generally and bygeneral equity principles (whether enforcement is sought by proceedings inequity or at law).

 

3.4 No Legal Bar.  Theexecution, delivery and performance of this Agreement, the borrowings hereunderand the use of the proceeds thereof, will not violate any Requirement of Law orany Contractual Obligation of such Borrower, and will not result in, orrequire, the creation or imposition of any lien on any of its properties orrevenues pursuant to any Requirement of Law or Contractual Obligation.

 

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

 

3.6 Taxes.  Each of suchBorrower and its Subsidiaries has filed or caused to be filed all tax returnswhich, to the knowledge of such Borrower, are required to be filed (exceptwhere the failure to file such tax returns would not have a material adverseeffect on the business, operations, property or financial or other condition ofsuch Borrower and its Subsidiaries taken as a whole), and has paid all taxesshown to be due and payable on said returns or on any assessments made againstit or any of its property and all other taxes, fees or other charges imposed onit or any of its property by any Governmental Authority (other thanassessments, taxes, fees and other charges the amount or validity of which iscurrently being contested in good faith by appropriate proceedings and withrespect to which reserves in conformity with GAAP have been provided on thebooks of such Borrower or its Subsidiaries, as the case may be).

 

3.7 Margin Regulations.  Nopart of the proceeds of any Loan hereunder will be used for any purpose whichviolates the provisions of Regulation U of the Board as now and from time totime hereafter in effect.

 

3.8 Use of Proceeds.  Theproceeds of the Loans will be used by such Borrower for its general corporatepurposes, which shall include, but shall not be limited to, any purchase orother acquisition of all or a portion of the debt or stock or other evidencesof ownership of 

 

----

 

45

 

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

 

SECTION 4.             CONDITIONSPRECEDENT

 

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

 

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

###  

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

###  

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

###  

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

###  

### (e)        No Material AdverseChange Certificate.  TheAdministrative Agent shall have received concurrently with the execution ofthis Agreement, with a counterpart for each Bank, a certificate of aResponsible Officer for each Borrower dated the date of this Agreementcertifying that since October 31, 2009, at the date of such certificatethere has been no material adverse change in the business, property,operations, condition (financial or otherwise) or prospects of such Borrowerand its Subsidiaries, taken as a whole.

###  

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

###  

### (g)        Termination ofExisting 364-Day Credit Agreement. The Borrowers shall have paid all principal, interest, facility fees andother amounts which are unpaid and accrued under the Existing Credit Agreementas of the Closing Date.  Uponeffectiveness of this Agreement, the Existing Credit Agreement shall terminate.

 

----

###  

46

 

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

###  

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

 

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

###  

### (b)        No Default or Eventof Default.  No Default or Event ofDefault shall have occurred and be continuing on such date or after givingeffect to the Loans, to be made on such date and the application of theproceeds thereof.

###  

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

###  

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

 

SECTION 5.             AFFIRMATIVECOVENANTS

 

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

 

5.1 FinancialStatements.  Such Borrower shallfurnish to each Bank:

 

### (a)        as soon as available,but in any event within 120 days after the end of each fiscal year of suchBorrower, a copy of the consolidated balance sheet of such Borrower and itsconsolidated Subsidiaries as at the end of such year and the relatedconsolidated statements of income and of cash flow for such year, reported on byDeloitte & Touche LLP or other independent certified publicaccountants 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 firstthree quarterly periods of each fiscal year of such Borrower, the condensed

 

----

 

47

 

### unauditedconsolidated balance sheet of such Borrower and its consolidated Subsidiariesas at the end of each such quarter and the related unaudited consolidatedstatement of income of such Borrower and its consolidated Subsidiaries for suchquarterly period and the portion of the fiscal year through such date,certified by a Responsible Officer of such Borrower (subject to normal year-endaudit adjustments);

###  

all such financial statements to present fairly the consolidatedfinancial condition and results of operations of such Borrower and itsconsolidated Subsidiaries and to be prepared in accordance with generallyaccepted accounting principles in the United States of America appliedconsistently throughout the periods reflected therein (except as approved bysuch accountants or officer, as the case may be, and disclosed therein).  Such Borrower shall be deemed to havefurnished such financial statements to each Bank when they are filed with theSecurities and Exchange Commission and posted on its EDGAR system.

 

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

 

### (a)        within 10 days of thedelivery of the financial statements referred to in subsections 5.1(a) and(b) above (or, if such financial statements are filed with the Securitiesand Exchange Commission and posted on its EDGAR system, within 10 days of theposting of such financial statements on the EDGAR system), a certificate of aResponsible Officer of such Borrower stating that (i) he has no knowledgeof the occurrence and continuance of any Default or Event of Default except asspecified in such certificate, in which case such certificate shall contain adescription thereof and a statement of the steps, if any, which such Borroweris taking, or proposes to take, to cure the same and (ii) the financialstatements delivered pursuant to subsection 5.1 would not be materiallydifferent if prepared in accordance with GAAP except as specified in suchcertificate; and

###  

### (b)        promptly, suchadditional financial and other information as any Bank may from time to timereasonably request.

###  

5.3 Company Indenture Documents. The Company shall, contemporaneously with the delivery thereof to theTrustee, furnish to each Bank a copy of any information, document or reportrequired to be filed with the Trustee pursuant to Section 7.03 of theIndenture dated October 1, 1998 between the Company and JPMorgan Chase Bank,N.A. (as successor to JPMorgan Chase Bank, formerly known as The ChaseManhattan 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 eachBank a copy of any information, document or report required to be filed withthe Trustee pursuant to Section 7.03 of the Indenture dated March 15,1997, between the Capital Corporation and The Bank of New York, as trustee.

 

5.5 Notice of Default. Such Borrower shall promptly give notice to the Administrative Agent ofthe occurrence of any Default or Event of Default, which notice shall be givenin writing as soon as possible, and in any event within 10 days after aResponsible 

 

----

 

48

 

Officer of such Borrowerobtains knowledge of such occurrence, with a description of the steps beingtaken to remedy the same (provided that such Borrower shall not be obligated togive notice of any Default or Event of Default which is remedied prior to orwithin 10 days after a Responsible Officer of such Borrower first acquires suchknowledge).  Upon receipt of any suchnotice, the Administrative Agent shall promptly notify each Bank thereof.

 

5.6 Ownership of Capital Corporation Stock.  The Company shall continue to own, directlyor through one or more wholly-owned Subsidiaries, free and clear of any lien orother 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 providedin subsection 7.4.

 

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

 

SECTION 6.   NEGATIVECOVENANTS OF THE COMPANY

 

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

 

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

 

### (a)        either the Companyshall be the continuing corporation, or the corporation (if other than theCompany) formed by such consolidation or into which the Company is merged orthe Person which acquires by conveyance or transfer the properties and assetsof the Company substantially as an entirety shall expressly assume, by anassumption agreement, executed and delivered to the Administrative Agent, inform satisfactory to the Majority Banks, the due and punctual payment of theprincipal of and interest on the Loans to the Company and the performance ofevery covenant of this Agreement on the part of the Company to be performed orobserved;

###  

### (b)        immediately aftergiving effect to such transaction, no Default or Event of Default, shall havehappened and be continuing;

###  

### (c)        if as a result thereofany property or assets of the Company or a Restricted Subsidiary would becomesubject to any Mortgage not permitted by (i) through (xii) of subsection6.2(a) or subsection 6.2(b), compliance shall be effected with the firstclause of subsection 6.2(a); and

###  

### (d)        the Company and thesuccessor Person have delivered to the Administrative Agent an officers’certificate signed by two Responsible Officers of the Company stating that suchconsolidation, merger, conveyance or transfer and such assumption agreement 

 

----

 

49

 

### comply with thissubsection 6.1 and that all conditions precedent herein provided for relatingto such transaction have been complied with.

###  

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

###  

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

####  

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

####  

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

####  

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

####  

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

 

----

 

50

 

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

####  

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

####  

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

####  

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

####  

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

####  

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

####  

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

 

----

###  

51

 

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

###  

#### (ii)        Forpurposes of this Agreement, the term “Consolidated Net Worth” shall meanthe aggregate of capital and surplus of the Company and its consolidatedSubsidiaries, less minority interests in Subsidiaries, determined in accordancewith GAAP; and the term “Attributable Debt” shall mean, as of anyparticular time, the present value, discounted at a rate per annum equal to theinterest rate set forth in the Company’s 8-1/2% Debentures Due 2022, compoundedsemi-annually, of the obligation of a lessee for rental payments during theremaining term of any lease (including any period for which such lease has beenextended or may, at the option of the lessor, be extended); the net amount ofrent required to be paid for any such period shall be the total amount of therent payable by the lessee with respect to such period, but may exclude amountsrequired to be paid on account of maintenance and repairs, insurance, taxes,assessments, water rates and similar charges; and, in the case of any leasewhich is terminable by the lessee upon the payment of a penalty, such netamount shall also include the amount of such penalty, but no rent shall beconsidered as required to be paid under such lease subsequent to the first dateupon which it may be so terminated.

####  

### (c)        If, upon anyconsolidation or merger of any Restricted Subsidiary with or into any othercorporation, or upon any consolidation or merger of any other corporation withor into the Company or any Restricted Subsidiary or upon any sale or conveyanceof the property of any Restricted Subsidiary as an entirety or substantially asan entirety to any other Person, or upon any acquisition by the Company or anyRestricted Subsidiary by purchase or otherwise of all or any part of theproperty of any other Person, any Important Property theretofore owned by theCompany or such Restricted Subsidiary would thereupon become subject to anyMortgage not permitted by the terms of subsection (a) or (b) of thissubsection 6.2, the Company, prior to such consolidation, merger, sale orconveyance, or acquisition, will, or will cause such Restricted Subsidiary to,secure payment of the principal of and interest on the Loans (equally andratably with or prior to any other indebtedness of the Company or suchSubsidiary then entitled thereto) by a direct lien on all such property priorto all liens other than any liens theretofore existing thereon by an assumptionagreement or otherwise.

###  

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

###  

----

 

52

 

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

####  

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

####  

6.3 Limitations on Sale and Lease-back Transactions.  Enter into any arrangement with any Personproviding for the leasing to the Company or any Restricted Subsidiary of anyImportant Property owned or hereafter acquired by the Company or suchRestricted Subsidiary (except for temporary leases for a term, including anyrenewal thereof, of not more than three years and except for leases between theCompany and a Restricted Subsidiary or between Restricted Subsidiaries), whichImportant Property has been or is to be sold or transferred by the Company orsuch Restricted Subsidiary to such Person (herein referred to as a “Sale andLease-back Transaction”) unless the net proceeds of such sale are at leastequal to the fair value (as determined by the Board of Directors of the Companyor such Restricted Subsidiary, as applicable) of such property and either (a) theCompany or such Restricted Subsidiary would be entitled, pursuant to theprovisions of (1) subsection 6.2(a)(i) or (2) subsection 6.2(b),to incur Debt secured by a Mortgage on the Important Property to be leasedwithout equally and ratably securing the Loans, or (b) the Company shall,and in any such case the Company covenants that it will, within 120 days of theeffective date of any such arrangement, apply an amount equal to the fair value(as so determined) of such property to the reduction of the Commitments (to beaccompanied by prepayment of the Loans in accordance with subsection 2.6 to theextent that the principal amount thereof outstanding prior to such prepaymentwould exceed the Commitments as so reduced) or to the payment or other retirementof funded debt for money borrowed, incurred or assumed by the Company whichranks senior to or pari passu with the Loans or of funded debt for moneyborrowed, incurred or assumed by any Restricted Subsidiary (other than, ineither case, funded debt owned by the Company or any RestrictedSubsidiary).  For this purpose, fundeddebt means any Debt which by its terms matures at or is extendable or renewableat the sole option of the obligor without requiring the consent of the obligeeto 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 ofthe Company and its consolidated Subsidiaries (including the last quarter ofany 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) EquipmentOperations Debt plus (ii) Total Stockholders’ Equity.

 

SECTION 7.   NEGATIVECOVENANTS OF THE CAPITAL CORPORATION

 

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

 

----

 

53

 

7.1 Fixed Charges Ratio. Permit the ratio of Net Earnings Available for Fixed Charges to FixedCharges for any fiscal quarter of the Capital Corporation and its consolidatedSubsidiaries (including the last quarter of any fiscal year of the CapitalCorporation 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 Debtto Consolidated Capital Base as at the end of any fiscal quarter of the CapitalCorporation and its consolidated Subsidiaries (including the end of any fiscalyear of the Capital Corporation and its consolidated Subsidiaries) to be morethan 11 to 1.

 

7.3 Limitation on Liens. Issue, incur, assume or guarantee any Debt secured by any Mortgage uponany of its property or assets, or any of the property or assets of any of itsSubsidiaries (whether any such property or assets is now owned or hereafteracquired) without in any such case effectively providing, concurrently with theissuance, incurrence, assumption or guaranty of any such Debt, that the Loansand all other amounts hereunder (together with, if the Capital Corporationshall so determine, any other indebtedness of or guaranty by such Borrower orsuch Subsidiary ranking equally with the Loans then existing or thereaftercreated) 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 fixedassets or other physical properties hereafter acquired to secure all or part ofthe purchase price thereof or the acquiring hereafter of such assets orproperties 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 donot materially detract from the value of such property or its use in thebusiness of the Capital Corporation or a Subsidiary of the Capital Corporation;

###  

### (c)        any deposit or pledgeof 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 anyjudgment or decree against the Capital Corporation or a Subsidiary of theCapital Corporation, or in connection with other proceedings or actions at lawor in equity by or against the Capital Corporation or a Subsidiary of theCapital Corporation or (ii) as security for the performance of anycontract or undertaking not directly or indirectly related to the borrowing ofmoney or the securing of indebtedness, if made in the ordinary course ofbusiness, or (iii) with any governmental agency, which deposit or pledgeis required or permitted to qualify the Capital Corporation or a Subsidiary ofthe Capital Corporation to conduct business, to maintain self-insurance, or toobtain 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 ordinary course of business to obtain the release ofmechanics’, workmen’s, repairmen’s, warehousemen’s or similar liens, or therelease of property in the possession of a common carrier;

###  

### (d)        Mortgages by aSubsidiary as security for indebtedness owed to the Capital Corporation or toany other Subsidiary;

 

----

 

54

 

### (e)        liens for taxes andgovernmental charges not yet due or contested by appropriate proceedings ingood faith;

###  

### (f)         Mortgages existing onproperty acquired by the Capital Corporation or a Subsidiary of the CapitalCorporation through the exercise of rights arising out of defaults onreceivables acquired in the ordinary course of business;

###  

### (g)        judgment liens, so longas the finality of such judgment is being contested in good faith and executionthereon is stayed;

###  

### (h)        any Mortgage (otherthan directly or indirectly to secure borrowed money) if, after giving effectthereto, the aggregate principal sums secured by pledges or liens otherwise withinthe restrictions in clauses (a) through (h) of this subsection 7.3 donot exceed $500,000;

###  

### (i)         any Mortgage securingSecuritization Indebtedness;

###  

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

###  

### (k)        cash collateralprovided to any counterparty of the Capital Corporation or to any Subsidiary ofthe Capital Corporation in connection with any Hedging Transaction.

###  

7.4 Consolidation; Merger. Merge or consolidate with, or sell or convey (other than a conveyance byway of lease) all or substantially all of its assets to, any other corporation,unless (a) the Capital Corporation shall be the surviving corporation inthe case of a merger or the surviving, resulting or transferee corporation (the“successor corporation”) shall be a corporation organized under the laws of theUnited States or any State thereof or the District of Columbia and shallexpressly assume the due and punctual performance of all of the agreements,covenants and obligations of the Capital Corporation under this Agreement bysupplemental agreement satisfactory to the Administrative Agent and executedand delivered to the Administrative Agent by the successor corporation and (b) theCapital Corporation or such successor corporation, as the case may be, shallnot, immediately after such merger, consolidation, sale or conveyance, be indefault in the performance of any such agreements, covenants or obligations;provided, however, that the Capital Corporation may merge or consolidate with,or sell or convey substantially all of its assets to, the Company, if (i) theCompany is the successor corporation (as defined above) and (ii) subclause(b) above is complied with.  Uponany such merger, consolidation, sale or conveyance, the successor corporationshall succeed to and be substituted for, and may exercise every right and powerof and shall be subject to all the obligations of, the Capital Corporationunder this Agreement, with the same effect as if the successor corporation hadbeen named as the Capital Corporation herein and therein.

 

SECTION 8.   EVENTSOF DEFAULT

 

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

 

----

 

55

 

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

###  

### (b)        Any representation orwarranty made or pursuant to subsection 4.2 deemed made by either Borrowerherein or which is contained in any material certificate, material document ormaterial financial statement or other material statement furnished at any timeunder or in connection with this Agreement shall prove to have been incorrectin any material respect on or as of the date made or deemed made; or

###  

### (c)        The Company shalldefault in the observance or performance of any agreement contained insubsection 5.6, 6.1 or 6.4, or the Capital Corporation shall default in theobservance or performance of any agreement contained in subsections 7.1, 7.2 or7.4; or

###  

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

###  

### (e)        (i)  EitherBorrower or any of its Significant Subsidiaries shall default in any payment ofprincipal of or interest on any indebtedness for borrowed money (other than theLoans 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, demandor otherwise) and such failure shall continue beyond the period of grace, ifany, provided in the instrument or agreement under which such indebtedness wascreated; or (ii) any other default (other than any default arising solelyout of either Borrower’s, or any of its Significant Subsidiaries’, violation ofany arrangement with any Bank, or any affiliate of any Bank, in any wayrestricting such Borrower’s, or such Significant Subsidiary’s, right or abilityto sell, pledge or otherwise dispose of Margin Stock other than RestrictedMargin Stock), or any other event that with notice or the lapse of time, orboth, would constitute such a default, under any agreement or instrumentrelating 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 orevent is to accelerate the maturity of such indebtedness; or (iii) anysuch indebtedness for borrowed money shall, by reason of default, be declaredto be due and payable, or required to be prepaid, prior to the stated maturitythereof (unless such indebtedness is declared due and payable, or required tobe prepaid, solely by reason of either Borrower’s, or any of its SignificantSubsidiaries’, violation of any arrangement with any Bank, or any affiliate ofany Bank, in any way restricting such Borrower’s, or such SignificantSubsidiary’s, right or ability to sell, pledge or otherwise dispose of MarginStock other than Restricted Margin Stock); or

###  

### (f)         (i)  EitherBorrower or any of its Significant Subsidiaries shall commence any case,proceeding or other action (A) under any existing or future law of anyjurisdiction, domestic or foreign, relating to bankruptcy, insolvency,reorganization or relief of debtors, 

 

----

 

56

 

### seeking to have anorder for relief entered with respect to it, or seeking to adjudicate it abankrupt or insolvent, or seeking reorganization, arrangement, adjustment,winding-up, liquidation, dissolution, composition or other relief with respectto it or its debts, or (B) seeking appointment of a receiver, trustee,custodian or other similar official for it or for all or any substantial partof its assets, or such Borrower or any of its Significant Subsidiaries shallmake a general assignment for the benefit of its creditors; or (ii) thereshall be commenced against either Borrower or any of its SignificantSubsidiaries any case, proceeding or other action of a nature referred to inclause (i) above which (A) results in the entry of an order forrelief or any such adjudication or appointment or (B) remains undismissed,undischarged or unbonded for a period of 90 days; or

###  

### (g)        Any action isundertaken to terminate any Plan as to which either Borrower, or any Subsidiaryof either Borrower, may have liability, or any such Plan is terminated or suchBorrower or Subsidiary withdraws from such Plan, or any Reportable Event as toany such Plan shall occur, and there shall exist a deficiency in the assets availableto satisfy the benefits guaranteeable under ERISA with respect to such Plan, inthe aggregate for all such Plans with respect to which any of the foregoingshall have occurred in the immediately preceding 12 consecutive months, of morethan 25% of the Consolidated Net Worth of such Borrower and in the reasonablejudgment of the Required Banks, such occurrence is reasonably expected to havea material adverse effect on the business, operations or condition (financialor otherwise) of the Borrowers; or

###  

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

###  

then, and in any such event, (A) if such event is an Event ofDefault specified in paragraph (f) above, automatically the Commitmentsshall immediately terminate and the Loans hereunder (with accrued interestthereon) and all other amounts owing under this Agreement and the Loans shallimmediately become due and payable, and (B)(1) if such event is any Eventof Default specified in paragraph (a) or (e), then with the consent of theMajority Banks, the Administrative Agent may, or upon the request of theMajority Banks, the Administrative Agent shall, or (2) if such Event is anEvent of Default specified in paragraph (b), (c), (d), (g) or (h), thenwith the consent of the Required Banks, the Administrative Agent may, or uponthe request of the Required Banks, the Administrative Agent shall, take eitheror both of the following actions:  (i) bynotice to the Borrowers, declare the Commitments to be terminated forthwith,whereupon the Commitments shall immediately terminate; and (ii) by noticeof default to the Borrowers, declare the Loans hereunder (with accrued interestthereon) and all other amounts owing under this Agreement to be due and payableforthwith, whereupon the same shall immediately become due and payable.  Except as expressly provided above in thisSection, presentment, demand, protest and all other notices of any kind arehereby expressly waived with respect to this Agreement by the Borrowers.

 

----

 

57

 

SECTION 9.             THE AGENTS

 

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

 

### (b)        Notwithstandinganything to the contrary contained in this Agreement, the parties hereto herebyagree that neither the Syndication Agent nor the Documentation Agents shallhave any rights, duties or responsibilities in such respective capacity norshall any such Person have the authority to take any action hereunder in itscapacity as such.

 

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

 

9.2 Delegation of Duties. Each Agent may execute any of its duties under this Agreement by orthrough agents or attorneys-in-fact and shall be entitled to advice of counselconcerning all matters pertaining to such duties.  Each Agent shall not be responsible for thenegligence or misconduct of any agents or attorneys-in-fact selected by it withreasonable care.

 

9.3 Exculpatory Provisions. Neither any Agent nor any of their respective officers, directors,employees, agents, attorneys-in-fact or affiliates shall be (i) liable toany Bank for any action lawfully taken or omitted to be taken by it or suchPerson under or in connection with this Agreement (except for its or suchPerson’s own gross negligence or willful misconduct), or (ii) responsiblein any manner to any of the Banks for any recitals, statements, representationsor warranties made by the Borrowers or any officer thereof contained in thisAgreement or in any certificate, report, statement or other document referredto 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 theBorrowers to perform their obligations hereunder.  No Agent shall be under any obligation to anyBank to ascertain or to inquire as to the observance or performance of any ofthe agreements contained in, or conditions of, this Agreement, or to inspectthe properties, books or records of the Borrowers.

 

9.4 Reliance by Agents. Each Agent shall be entitled to rely, and shall be fully protected inrelying, 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 genuineand correct and to have been signed, sent or made by the proper Person orPersons and upon advice and statements of legal counsel (including, withoutlimitation, counsel to the Borrowers), independent accountants and otherexperts selected by such Agent.  EachAgent may deem and treat the payee of any Loan as the 

 

----

 

58

 

owner thereof for allpurposes except as provided in subsections 10.5(c) and 10.5(d).  Each Agent shall be fully justified infailing or refusing to take any discretionary action under this Agreementunless it shall first receive such advice or concurrence of the Majority Banksas it deems appropriate or it shall first be indemnified to its satisfaction bythe Banks against any and all liability and expense which may be incurred by itby reason of taking or continuing to take any such action.  Each Agent shall in all cases be fullyprotected in acting, or in refraining from acting, under this Agreement inaccordance with a request of the Majority Banks, the Required Banks or all ofthe Banks (if the consent of the Majority Banks, the Required Banks or all ofthe Banks, respectively, is required), and such request and any action taken orfailure to act pursuant thereto shall be binding upon all the Banks.

 

9.5 Notice of Default.  TheAdministrative Agent shall not be deemed to have knowledge or notice of theoccurrence of any Default or Event of Default unless the Administrative Agenthas received notice from a Bank or either Borrower referring to this Agreement,describing such Default or Event of Default and stating that such notice is a “noticeof default”.  In the event that theAdministrative Agent receives such a notice, the Administrative Agent shallgive notice thereof to the Banks.  TheAdministrative Agent shall take such action with respect to such Default orEvent of Default as shall be reasonably directed by the Majority Banks, theRequired Banks, or all Banks, as applicable; provided that, unless and untilthe Administrative Agent shall have received such directions, theAdministrative Agent may (but shall not be obligated to) take such action, orrefrain from taking such action, with respect to such Default or Event ofDefault as it shall deem advisable in the best interests of the Banks.

 

9.6 Non-Reliance on Agents and Other Banks.  Each Bank expressly acknowledges that neitherany Agent nor any of its respective officers, directors, employees, agents,attorneys-in-fact or affiliates has made any representations or warranties toit and that no act by such Agent hereafter taken, including any review of theaffairs of the Borrowers, shall be deemed to constitute any representation orwarranty by such Agent to any Bank.  EachBank represents to each Agent that it has, independently and without relianceupon such Agent or any other Bank, and based on such documents and informationas it has deemed appropriate, made its own appraisal of and investigation intothe business, operations, property, financial and other condition andcreditworthiness of each Borrower and made its own decision to make its Loanshereunder and enter into this Agreement. Each Bank also represents that it will, independently and withoutreliance upon each Agent or any other Bank, and based on such documents andinformation as it shall deem appropriate at the time, continue to make its owncredit analysis, appraisals and decisions in taking or not taking action underthis Agreement, and to make such investigation as it deems necessary to informitself as to the business, operations, property, financial and other conditionand creditworthiness of the Borrowers. Except for notices, reports and other documents expressly required to befurnished to the Banks by any Agent hereunder, such Agent shall not have anyduty or responsibility to provide any Bank with any credit or other informationconcerning the business, operations, property, financial and other condition orcreditworthiness of either Borrower which may come into the possession of suchAgent or any of its officers, directors, employees, agents, attorneys-in-factor affiliates.

 

9.7 Indemnification.  TheBanks agree to indemnify each Agent in its capacity as such (to the extent notreimbursed by the Borrowers and without limiting the obligation of the 

 

----

 

59

 

Borrowers to do so), ratably(as reasonably determined by the Administrative Agent), from and against anyand all liabilities, obligations, losses, damages, penalties, actions,judgments, suits, costs, expenses or disbursements of any kind whatsoever whichmay at any time (including without limitation at any time following the paymentof the Loans) be imposed on, incurred by or asserted against such Agent in anyway relating to or arising out of this Agreement, or any documents contemplatedby or referred to herein or the transactions contemplated hereby or any actiontaken or omitted by such Agent under or in connection with any of theforegoing; provided that no Bank shall be liable for the payment of any portionof such liabilities, obligations, losses, damages, penalties, actions,judgments, suits, costs, expenses or disbursements resulting from such Agent’sgross negligence or willful misconduct. The agreements in this subsection 9.7 shall survive the payment of theLoans and all other amounts payable hereunder.

 

9.8 Agents in their Individual Capacities.  Each Agent and its respective affiliates maymake loans to, accept deposits from and generally engage in any kind ofbusiness with the Borrowers as though such Agent were not an Agenthereunder.  With respect to its Loansmade by it, each Agent shall have the same rights and powers under thisAgreement as any Bank and may exercise the same as though it were not an Agent,and the terms “Bank” and “Banks” shall include the Administrative Agent in itsindividual capacity.

 

9.9 Successor Agents.  EachAgent may resign as Agent upon 30 days’ notice thereof to the Borrowers and theBanks.  If any Agent shall resign asAgent under this Agreement, then the Majority Banks shall appoint from amongthe Banks a successor agent for the Banks which successor agent shall beapproved by the Borrowers, whereupon such successor agent shall succeed to therights, powers and duties of the Administrative Agent and the term “AdministrativeAgent” shall mean such successor agent effective upon its appointment, and theformer Agent’s rights, powers and duties as Agent shall be terminated, withoutany other or further act or deed on the part of such former Agent or any of theparties to this Agreement.  After anyretiring Agent’s resignation hereunder as Agent, the provisions of this Section 9shall inure to its benefit as to any actions taken or omitted to be taken by itwhile it was Agent under this Agreement.

 

SECTION 10. MISCELLANEOUS

 

10.1     Amendments and Waivers. With the written consent of the Majority Banks, the Administrative Agentand the Borrowers may, from time to time, enter into written amendments,supplements or modifications hereto for the purpose of adding any provisions tothis Agreement or changing in any manner the rights of the Banks or of theBorrowers hereunder, and with the consent of the Majority Banks theAdministrative Agent on behalf of the Banks may execute and deliver to theBorrowers a written instrument waiving, on such terms and conditions as theAdministrative Agent may specify in such instrument, any of the requirements ofthis Agreement or any Default or Event of Default and its consequences; provided,however, that no such waiver, amendment, supplement or modification shall (a) extendthe maturity of any Loan, or reduce the rate or extend the time of payment ofinterest thereon, or reduce the principal amount thereof, or reduce the rate ofany fee payable hereunder or extend the time of payment thereof, in each case,without the written consent of (i) with respect to any such change to anyCommitted Rate Loan, each Bank directly affected thereby 

 

----

 

60

 

and (ii) with respectto any such change to any Bid Loan, the Bank which made such Bid Loan, or (b) changethe amount of any Bank’s Commitment or the terms of its obligation to makeLoans hereunder (other than in accordance with subsection 2.20), or amend,modify or waive the pro rata treatment and payment provisions of subsection2.12(b), or amend, modify or waive any provision of this subsection 10.1 orreduce the percentage specified in the definition of Majority Banks or RequiredBanks, or consent to the assignment or transfer by either Borrower of any ofits rights and obligations under this Agreement, in each case without thewritten consent of each Bank, or (c) amend, modify or waive any provisionof Section 9 without the written consent of the then Administrative Agentand, if applicable, any other Agent affected by such amendment, modification orwaiver, or (d) extend the Termination Date with respect to any Bankwithout the written consent of such Bank; and provided, further,however, that no such waiver, amendment, supplement or modification shallwaive, amend, supplement or otherwise modify Section 8(B)(2) withoutthe written consent of the Required Banks. Any such waiver and any such amendment, supplement or modification shallapply equally to each of the Banks and shall be binding upon the Borrowers, theBanks and the Agents.  In the case of anywaiver, the Borrowers, the Banks and the Agents shall be restored to theirformer position and rights hereunder, and any Default or Event of Defaultwaived shall be deemed to be cured and not continuing; but no such waiver shallextend to any subsequent or other Default or Event of Default, or impair anyright consequent thereon.  Anythingcontained in the foregoing to the contrary notwithstanding, the relevantBorrower and the relevant Bank with respect to a Negotiated Rate Loan may, fromtime to time, enter into amendments, supplements or modifications for thepurpose of adding any provisions to such Negotiated Rate Loans or changing inany manner the rights of such Bank and such Borrower thereunder and such Bankmay waive any of the requirements of such Negotiated Rate Loan; provided,however, that such Borrower and such Bank shall notify the Administrative Agentin writing of any extension of the maturity of such Negotiated Rate Loan orreduction of the principal amount thereof; provided, further, that suchBorrower and such Bank shall not extend the maturity of such Negotiated RateLoan beyond the last day of the Commitment Period.

 

10.2     Notices.  Allnotices, requests and demands to or upon the respective parties hereto to beeffective shall be in writing, by facsimile transmission, by telephoneconfirmed in writing and, unless otherwise expressly provided herein, shall bedeemed to have been duly given or made when delivered by hand, or whendeposited in the mail, postage prepaid, or, in the case of facsimiletransmission, when received, addressed as follows in the case of the Borrowers,the Administrative Agent, or to such address or other address as may behereafter notified by the respective parties hereto:

 

The Borrowers:

 

| The Company: | Deere & Company  Attention:  Treasurer  One John Deere Place  Moline, Illinois  61265  Telephone:  309-765-5344  Facsimile:  309-765-5021 |
|--------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

----

 

61

 

| 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:  Robert Kellas   383 Madison Avenue – 24th Floor  New York, New York  10017  Telephone:  212-270-3560  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                   |
|                                |                                                                                                                                                                                                 |
| The Foreign Currency Agent:

  | J.P. Morgan Europe Limited

125 London Wall

London, EC2Y 5AJ

England

Telephone:   +44 20 7777 2360/2085

Facsimile:   +44 20 7777 2355                                                  |
|                                |                                                                                                                                                                                                 |
| To any other Bank:                  | To it at its address (or facsimile number) set forth  in its Administrative Questionnaire                                                                                                            |

 

provided that any notice, request ordemand to or upon the Administrative Agent or the Banks pursuant to subsections2.1, 2.2, 2.5, 2.6, 2.9, 2.11, 2.20 and 9.9 shall not be effective untilreceived (including receipt by telephone if permitted hereby).

 

10.3     No Waiver; Cumulative Remedies.  No failure to exercise and no delay inexercising, on the part of either Borrower, the Administrative Agent or anyBank, any right, remedy, power or privilege hereunder shall operate as a waiverthereof; nor shall any single or partial exercise of any right, remedy, poweror privilege hereunder preclude any other or further 

 

----

 

62

 

exercise thereof or theexercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privilegesherein 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 theAdministrative Agent for all its out-of-pocket costs and expenses incurred inconnection with the preparation and execution of, and any amendment, supplementor modification to, this Agreement and any other documents prepared in connectionherewith, and the consummation of the transactions contemplated hereby andthereby in such manner and in such amounts as shall be agreed to in writing bythe Company and the Administrative Agent, (ii) to pay or reimburse theAdministrative Agent for the reasonable fees and disbursements of counsel tothe Administrative Agent incurred in connection with the preparation andexecution of, and any amendment, supplement, modification to, this Agreementand other documents prepared in connection herewith, and the consummation ofthe transaction contemplated hereby and thereby, and (iii) to pay orreimburse each Bank and each Agent for all its out-of-pocket costs and expensesincurred in connection with the enforcement or preservation of any rights underthis Agreement and any such other documents, including, without limitation,fees and disbursements of counsel to each Agent and one counsel representingthe Banks.

 

### (b)        The Borrowers agreejointly and severally to indemnify and hold harmless each Agent and each Bankand each director, officer, employee, affiliate and agent thereof (each, an “IndemnifiedPerson”) against, and to reimburse each Indemnified Person, upon itsdemand, for, any losses, claims, damages, liabilities or other expenses (“Losses”)to which such Indemnified Person may become subject insofar as such Lossesarise out of or in any way relate to or result from this Agreement or theextensions of credit made hereunder (including the responsibilities, duties andobligations of the Banks hereunder and their agreement to make Loanshereunder), including, without limitation, Losses consisting of legal or otherexpenses incurred in connection with investigating, defending or participatingin any legal proceeding relating to the foregoing (whether or not suchIndemnified Person is a party thereto); provided, that the foregoingwill not apply to any Losses to the extent they result from the negligence orwillful misconduct of such Indemnified Person. This indemnity agreement shall be in addition to any liability whicheither Borrower may otherwise have and shall be subject to the followingparagraph.

###  

### (c)        Promptly after receiptby an indemnified party under subsection 10.4(b) of written notice of anyloss, claim, damage or liability in respect of which indemnity may be sought byit hereunder, such indemnified party will, if a claim is to be made against theBorrowers, notify the Borrowers thereof in writing; but the omission so tonotify the Borrowers will not relieve the Borrowers from any liability (otherwisethan under this subsection 10.4) which they may have to any indemnified partyexcept as may be required or provided otherwise than under this subsection10.4.  Thereafter, the indemnified partyand the Borrowers shall consult, to the extent appropriate, with a view tominimizing the cost to the Borrowers of their obligations hereunder.  In case any indemnified party receiveswritten notice of any loss, claim, damage or liability in respect of whichindemnity may be sought hereunder by it and it notifies the Borrowers thereof,the Borrowers will be entitled to participate therein and, to the extent thatthey may elect by written notice delivered to the indemnified party promptlyafter receiving the aforesaid notice from such indemnified party, to assume thedefense thereof, with counsel 

 

----

 

63

###  

### reasonablysatisfactory at all times to such indemnified party; provided, however,that (i) if the parties against whom any loss, claim, damage or liabilityarises include both the indemnified party and a Borrower or any Subsidiary of aBorrower and the indemnified party shall have reasonably concluded that theremay be legal defenses available to it or other indemnified parties which aredifferent from or additional to those available to a Borrower or any Subsidiaryof a Borrower and may conflict therewith, the indemnified party or partiesshall have the right to select one separate counsel for such indemnified partyor parties to assume such legal defenses and to otherwise participate in thedefense of such loss, claim, damage or liability on behalf of such indemnifiedparty or parties and (ii) if any loss, claim, damage or liability arisesout of actions brought by or for the benefit of a Borrower or any Subsidiary ofa Borrower, the indemnified party or parties shall have the right to selecttheir counsel and to assume and direct the defense thereof and neither Borrowershall be entitled to participate therein or assume the defense thereof.  Upon receipt of notice from the Borrowers tosuch 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 thissubsection 10.4 for any legal or other expenses subsequently incurred by suchindemnified party in connection with the defense thereof unless (i) theindemnified party shall have employed such counsel in connection with theassumption of legal defenses in accordance with the proviso to the nextpreceding sentence, (ii) the Borrowers shall not have employed andcontinued to employ counsel satisfactory to the indemnified party to representthe indemnified party within a reasonable time after notice of commencement ofthe action or (iii) the Borrowers shall have authorized the employment ofcounsel for the indemnified party at the expense of the Borrowers.

###  

### (d)        Notwithstanding anyother provision contained in this subsection 10.4, (i) the Borrowers shallnot be liable for any settlement, compromise or consent to the entry of anyorder adjudicating or otherwise disposing of any loss, claim, damage orliability effected without their consent and (ii) after the Borrowers haveassumed the defense of any loss, claim, damage or liability under the precedingparagraph with respect to any Bank, they will not settle, compromise or consentto entry of any order adjudicating or otherwise disposing thereof (1) ifsuch settlement, compromise or order involves the payment of money damages, exceptif the Borrowers agree with such Bank to pay such money damages, and, if notsimultaneously paid, to furnish such Bank with satisfactory evidence of theirability to pay such money damages, and (2) if such settlement, compromiseor order involves any relief against such Bank, other than the payment of moneydamages, except with the prior written consent of such Bank.

###  

### (e)        Each party heretowaives, to the maximum extent not prohibited by law, any right it may have toclaim or recover in any legal action or proceeding relating to the Agreementany special, exemplary, punitive or consequential damages.

###  

### (f)         The agreements in thissubsection 10.4 shall survive repayment of the Loans and all other amountspayable hereunder.

###  

### 10.5     Successorsand Assigns; Participations; Purchasing Banks.  (a)  This Agreement shall be bindingupon and inure to the benefit of the Borrowers, the Banks, the Agents and theirrespective successors and assigns, except that the Borrowers may not assign ortransfer any of their rights or obligations under this Agreement without theprior written consent of each Bank.

 

----

 

64

###  

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

###  

### (c)        Any Bank may, in theordinary course of its commercial banking business and in accordance withapplicable law, at any time assign to one or more banks or other financialinstitutions (“Loan Assignees”) any Bid Loan or Negotiated Rate Loan orportion thereof owing to such Bank, pursuant to a Loan Assignment executed bythe assignor Bank and the Loan Assignee. Upon such execution, from and after the Transfer Effective Datespecified in such Loan Assignment, the Loan Assignee shall, to the extent ofthe assignment provided for in such Loan Assignment and to the extent permittedby applicable law, be deemed to have the same rights and benefits with respectto such Bid Loans and Negotiated Rate Loans and the same obligation to sharepursuant 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 suchLoan Assignment shall have been delivered to the Administrative Agent for itsacceptance and recording in the Register in accordance with subsection 10.5(f),the assignor Bank shall act as collection agent for the Loan Assignee, and inthe case of Bid Loans, the Administrative Agent shall pay all amounts receivedfrom the relevant Borrower which are allocable to the assigned Bid Loandirectly to the assignor Bank without any further liability to the relevantLoan Assignee, and, in the case of Negotiated Rate Loans, the relevant Borrowershall pay all amounts due under the assigned Negotiated Rate Loan directly tothe assignor Bank without any further liability to the Loan Assignee.  At the request of any Loan Assignee, on orpromptly after the Transfer Effective Date specified in such Loan Assignment,the relevant Borrower, at its own expense, shall execute and deliver to theLoan Assignee a promissory note with respect to the Bid Loans or NegotiatedRate Loans to the order of such Loan Assignee in an amount equal to the BidLoan or Negotiated Rate Loan assigned. Such note shall be dated the Borrowing Date in respect of such Bid Loanor Negotiated Rate Loan and shall otherwise be in the form of Exhibit L; provided,however, that such Borrower shall not be required to execute and delivermore than an aggregate of two notes with respect to the Bid Loans of any Bankwith the same Interest Period at any time outstanding.  A Loan Assignee shall not, by virtue of suchLoan Assignment, become a party to this Agreement or have any rights to consentto or refrain from consenting to any amendment, waiver or other modification ofany provision of this Agreement or any related document; provided, that (i) theassignor Bank and the Loan Assignee may, in their discretion, agree betweenthemselves upon the manner in which the assignor Bank will exercise its rightsunder this Agreement and any related document, and (ii) if a copy of suchLoan Assignment shall have been delivered to the Administrative Agent for itsacceptance and recording in the Register in accordance with subsection 10.5(f),neither the principal amount of, the interest rate on, nor the maturity dateof, any Bid Loan or Negotiated Rate Loan assigned to a Loan Assignee will bemodified without written consent of such Loan Assignee.

 

----

 

65

 

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

###  

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

 

----

 

66

 

### and the principalamount of each Bid Loan owing to such Loan Assignee.  The entries in the Register shall constitute primafacie evidence of the accuracy of the information so recorded, and theBorrowers, the Administrative Agent and the Banks may treat each Person whosename is recorded in the Register as the owner of the Loan recorded therein forall purposes of this Agreement.  TheRegister shall be available for inspection by the Company or any Bank or LoanAssignee at any reasonable time and from time to time upon reasonable priornotice.

###  

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

###  

### (g)        The Company authorizeseach Bank to disclose to any Participant, Loan Assignee or Purchasing Bank(each, a “Transferee”) and any prospective Transferee any and allfinancial information in such Bank’s possession concerning the Borrowers andtheir Subsidiaries which has been delivered to such Bank by or on behalf of theBorrowers pursuant to this Agreement or in connection with such Bank’s creditevaluation of the Borrowers and their Subsidiaries prior to becoming a party tothis Agreement, provided that with respect to confidential data orinformation described in subsection 10.7, such confidential data may bedisclosed only to (i) a Purchasing Bank and/or (ii) any otherTransferee or prospective Transferee with the Borrowers’ prior written consent,which consent shall not be unreasonably withheld with respect to prospectiveParticipants, Participants, prospective Loan Assignees and Loan Assignees; provided,however, that such Bank shall not disclose any such confidential data orinformation pursuant to this subsection 10.5(g) unless (i) it hasnotified the Purchasing Bank or other Transferee or potential Transferee thatsuch data or information are confidential, such notification to be in writingif such data or information are disclosed in writing and orally if such data orinformation are disclosed orally, and (ii) such Purchasing Bank,Transferee or potential Transferee has agreed in writing to be bound by theprovisions of subsection 10.7.

###  

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

 

----

 

67

 

### United States or astate thereof or the District of Columbia or (B) that under applicable lawand treaties no taxes will be required to be withheld by the AdministrativeAgent, the Borrowers or the transferor Bank with respect to any payments to bemade to such Transferee in respect of the Loans, (ii) if the Transferee isnot incorporated under the laws of the United States, a state thereof or theDistrict of Columbia, (A) to furnish to the transferor Bank, theAdministrative Agent and the Borrowers a letter in duplicate in the form of Exhibit Ior Exhibit J, as appropriate, and two duly completed copies of UnitedStates Internal Revenue Service Form W-8BEN or W-8ECI or successorapplicable form, as the case may be, certifying in each case that suchTransferee is entitled to receive payments under this Agreement withoutdeduction or withholding of any United States federal income taxes, or in thecase of a Bank claiming exemption under Sections 871(h) or 881(c) ofthe Code, a Certificate of Non-Bank Status together with two original copies ofan Internal Revenue Service Form W-8BEN, or successor applicable form, asthe case may be, to establish an exemption from United States backupwithholding tax, and (B) to agree (for the benefit of the transferor Bank,the Administrative Agent and the Borrowers) to provide the transferor Bank, theAdministrative Agent and the Borrowers a new letter or a new Certificate ofNon-Bank Status, if applicable, Form W-8BEN or W-8ECI, or successorapplicable form or other manner of certification, on or before the date thatany such letter or form expires or becomes obsolete or after the occurrence ofany event requiring a change in the most recent letter or form previously deliveredby it, certifying in the case of a Form W-8BEN or W-8ECI that suchTransferee is entitled to receive payments under this Agreement withoutdeduction or withholding of any United States federal income tax, and in thecase of a Form W-8BEN establishing exemption from United States backupwithholding tax.  The AdministrativeAgent shall not be responsible for obtaining such documentation except from itsown Transferees.

###  

### (i)         Nothing in thissubsection 10.5 shall prohibit any Bank from pledging or assigning its Loans toany Federal Reserve Bank in accordance with applicable law.

###  

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

###  

### (k)        Notwithstandinganything to the contrary contained herein, any Bank (a “Granting Bank”)may grant to a special purpose funding vehicle (an “SPC”), identified assuch in writing from time to time by the Granting Bank to the AdministrativeAgent and the Company, the option to provide to the Borrowers all or any partof any Loan that such Granting Bank would otherwise be obligated to make to theBorrowers pursuant to this Agreement; provided that (i) nothingherein shall constitute a commitment by any SPC to make any Loan, (ii) ifan SPC elects not to exercise such option or otherwise fails to provide all orany part of such Loan, the Granting Bank shall be obligated to make such Loanpursuant to the terms hereof.  The makingof a Loan by an SPC hereunder shall utilize the Commitment of the Granting Bankto the same extent, and as if, such Loan were made by such Granting Bank.  Each party hereto hereby agrees that no SPCshall be liable for any indemnity or similar payment obligation under thisAgreement (all liability for which shall remain with the Granting Bank).  In furtherance of the foregoing, each partyhereto hereby agrees (which agreement shall survive the termination of thisAgreement) that, prior to the date that is one year and one day after thepayment in full of all outstanding commercial paper or other seniorindebtedness of any SPC, it will not institute 

 

----

 

68

 

### against, or joinany other person in instituting against, such SPC any bankruptcy,reorganization, arrangement, insolvency or liquidation proceedings under thelaws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in thissubsection 10.5(k) any SPC may (i) with notice to, but without theprior written consent of, the Company and the Administrative Agent and withoutpaying any processing fee therefor, assign all or a portion of its interests inany Loans to the Granting Bank or to any financial institutions (consented toby the Company and Administrative Agent) providing liquidity and/or creditsupport to or for the account of such SPC to support the funding or maintenanceof Loans and (ii) disclose on a confidential basis any non-publicinformation relating to its Loans to any rating agency, commercial paper dealeror provider of any surety, guarantee or credit or liquidity enhancement to suchSPC.  This subsection 10.5(k) maynot be amended without the written consent of the SPC.

###  

10.6     Adjustments. Except as otherwise provided in this Agreement or as otherwise providedby court order, if any Bank (a “benefitted Bank”) shall at any timereceive any payment of all or part of its Committed Rate Loans,****or interest thereon or commitment feehereunder, or receive any collateral in respect thereof (whether voluntarily orinvoluntarily, by set-off, pursuant to events or proceedings of the naturereferred to in clause (e) of Section 8, or otherwise) in a greaterproportion 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 interestthereon, or commitment fee hereunder, such benefitted Bank shall purchase forcash from the other Banks such portion of each such other Bank’s Committed RateLoans, or shall provide such other Banks with the benefits of any suchcollateral, or the proceeds thereof, as shall be necessary to cause suchbenefitted Bank to share the excess payment or benefits of such collateral orproceeds ratably with each of such other Banks; provided, however, that if allor any portion of such excess payment or benefits is thereafter recovered fromsuch benefitted Bank, such purchase shall be rescinded, and the purchase priceand benefits returned, to the extent of such recovery, but withoutinterest.  The Borrowers agree that eachBank so purchasing a portion of another Bank’s Committed Rate Loans mayexercise all rights of payment (including, without limitation, rights ofset-off) with respect to such portion as fully as if such Bank were the directholder of such portion.

 

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

###  

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

####  

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

####  

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

####  

#### (iv)       to theextent permitted under subsection 10.5; and

 

----

 

69

 

#### (v)        to theattorneys, accountants and regulators of such Banks, and to each other Bank.

####  

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

###  

### (c)        The provisions of thissubsection 10.7 shall survive the payment in full of all amounts payablehereunder and the termination of this Agreement.

###  

10.8     Counterparts.  ThisAgreement may be executed by one or more of the parties to this Agreement onany number of separate counterparts and all of said counterparts taken togethershall be deemed to constitute one and the same instrument.  A set of the copies of this Agreement signedby all the parties shall be lodged with the Borrowers and the AdministrativeAgent.

 

10.9     GOVERNING LAW.**  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONSOF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED ANDINTERPRETED 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 theBorrowers with respect to this Agreement may be brought in any state or federalcourt of competent jurisdiction in the State of New York, and, by execution anddelivery of this Agreement, the Borrowers accept, for themselves and inconnection with their properties, generally and unconditionally, thenon-exclusive jurisdiction of the aforesaid courts and irrevocably agree to bebound by any final judgment rendered thereby in connection with this Agreementfrom which no appeal has been taken or is available.  The Borrowers irrevocably agree that allprocess in any such proceedings in any such court may be effected by mailing acopy thereof by registered or certified mail (or any substantially similar formof mail), postage prepaid, to them at their addresses set forth in subsection10.2 or at such other address of which the Administrative Agent shall have beennotified pursuant thereto, such service being hereby acknowledged by theBorrowers to be effective and binding service in every respect.  Each of the Borrowers, the Agents and theBanks irrevocably waives any objection, including without limitation, anyobjection to the laying of venue or based on the grounds of forum nonconveniens which it may now or hereafter have to the bringing of any suchaction or proceeding in any such jurisdiction. Nothing herein shall affect the right to serve process in any othermanner permitted by law or shall limit the right of any Agent or any Bank tobring proceedings against the Borrowers in the courts of any other jurisdiction.

 

10.11   WAIVERS OF JURY TRIAL.**  EACH BORROWER, THE ADMINISTRATIVE AGENT ANDTHE BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANYLEGAL ACTION OR**

 

----

 

70

 

**PROCEEDINGRELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIMTHEREIN.**

 

10.12   USA Patriot Act.

 

Each Bank hereby notifies theBorrowers that pursuant to the requirements of the USA Patriot Act (Title IIIof Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),it is required to obtain, verify and record information that identifies theBorrowers, which information includes the name and address of the Borrowers andother information that will allow such Bank to identify the Borrowers inaccordance with the Act.  The Borrowersshall promptly provide such information upon request by any Bank.

 

----

 

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

 
|   | DEERE &  COMPANY       |
|--------|---------------------------------|
|   |                            |
|   |                            |
|   | By:                             | /s/ James A. Davlin |   |
|   |                            | Title: |   |
|   |                            |   |   |
|   |                            |   |   |
|   | JOHN DEERE CAPITAL  CORPORATION |
|   |                            |   |   |
|   |                            |   |   |
|   | By:                             | /s/ James A. Davlin |   |
|   |                            | Title: |   |

 

----

 
|   | JPMORGAN CHASE BANK,  N.A.,            |
|--------|----------------------------------------|
|   | as Administrative Agent  and as a Bank |
|   |                                   |
|   |                                   |
|   | By:                                    | /s/ Tony Yung |   |
|   |                                   | Tony Yung |   |
|   | Title: Vice  President                 |   |

 

----

 
|   | BANK OF AMERICA, N.A.,              |
|--------|-------------------------------------|
|   | as Syndication Agent  and as a Bank |
|   |                                |
|   |                                |
|   | By:                                 | /s/ Chas McDonell |   |
|   | Title: Senior  Vice President       |   |

 

----

 
|   | CITIBANK, N.A.,                         |
|--------|-----------------------------------------|
|   | as a Documentation  Agent and as a Bank |
|   |                                    |
|   |                                    |
|   | By:                                     | /s/ S. Sweeney |   |
|   | Title: Vice  President                  |   |

 

----

 
|   | CREDIT SUISSE  AG,

CAYMAN ISLANDS BRANCH,

as a Documentation  Agent and as a Bank |
|--------|-------------------------------------------------------------------------------------|
|   |                                                                                |
|   |                                                                                |
|   | By:                                                                                 | /s/ Karl Studer |   |
|   | Name: Karl  Studer

Title: Director                                                 |   |
|   |                                                                                |
|   | By:                                                                                 | /s/ Jay Chall |   |
|   | Name: Jay Chall

Title: Director                                                    |   |

 

----

 
|   | DEUTSCHE BANK  SECURITIES INC., |
|--------|---------------------------------|
|   | as a Documentation  Agent       |
|   |                            |
|   |                            |
|   | By:                             | /s/ Oliver Schwarz |   |
|   |                            |      Title: Director |   |
|   |                            |
|   | By:                             | /s/ Wolfgang Winter |   |
|   |                            |      Title: Managing Director |   |

 

 

 

----

 
|   | DEUTSCHE BANK AG NEW  YORK BRANCH, |
|--------|------------------------------------|
|   | as a Bank                          |
|   |                               |
|   |                               |
|   | By:                                | /s/ Oliver Schwarz |   |
|   |                               |      Title: Director |   |
|   |                               |
|   | By:                                | /s/ Wolfgang Winter |   |
|   |                               |      Title: Managing Director |   |

 

----

 

SCHEDULE I

 

TERMS OF SUBORDINATION

 

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

 

SUBORDINATION

 

Section 1. Agreement to Subordinate.

 

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

 

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

 

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

 

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

 

(b)        any payment ordistribution of assets of the Capital Corporation of any kind or character,whether in cash, property or securities, to which the holders of the Securitiesor any trustee therefor would be entitled except for the provisions of this 

 

----

 

I-2

 

Article shall be paid by the liquidating trusteeor agent or other person making such payment or distribution, whether a trusteein bankruptcy, a receiver or liquidating trustee or otherwise, directly to theholders of Senior Indebtedness or their representative or representatives or tothe trustee or trustees under any indenture under which any instrumentsevidencing any of such Senior Indebtedness may have been issued, ratablyaccording to the aggregate amounts remaining unpaid on account of the principalof (and premium, if any) and interest, Utilization Fee, facility fee, letter ofcredit fees and commitment fees on the Senior Indebtedness held or representedby each holder of Senior Indebtedness, to the extent necessary to make paymentin full of all Senior Indebtedness remaining unpaid, after giving effect to anyconcurrent 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 theCapital Corporation of any kind or character, whether in cash, property orsecurities, shall be received by any trustee for the holders of the Securitiesor the holders of the Securities before all Senior Indebtedness is paid infull, such payment or distribution shall be paid over, upon written notice toany trustee for the holders of the Securities, to the holders of SeniorIndebtedness or their representative or representatives or to the trustee ortrustees under any indenture under which any instruments evidencing any of suchSenior Indebtedness may have been issued, ratably as aforesaid, for applicationto the payment of all Senior Indebtedness remaining unpaid until all suchSenior Indebtedness shall have been paid in full, after giving effect to anyconcurrent payment or distribution to the holders of such Senior Indebtedness.

 

Subject to the payment in full of all Senior Indebtedness, the holdersof the Securities shall be subrogated to the rights of the holders of SeniorIndebtedness to receive payments or distributions of cash, property orsecurities of the Capital Corporation applicable to Senior Indebtedness untilthe principal of (and premium, if any) and interest on the Securities shall bepaid in full and no such payments or distributions to the holders of theSecurities of cash, property or securities otherwise distributable to theholders of Senior Indebtedness shall, as between the Capital Corporation, itscreditors other than the holders of Senior Indebtedness, and the holders of theSecurities, be deemed to be a payment by the Capital Corporation to or onaccount of the Securities.  It isunderstood 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 otherhand.  Nothing contained in this Article orelsewhere in this Agreement or in the Securities is intended to or shallimpair, as between the Capital Corporation, its creditors other than theholders of Senior Indebtedness, and the holders of the Securities, theobligation of the Capital Corporation, which is unconditional and absolute, topay to the holders of the Securities the principal of (and premium, if any) andinterest on the Securities as and when the same shall become due and payable inaccordance with their terms, or to affect the relative rights of the holders ofthe Securities and creditors of the Capital Corporation other than the holdersof Senior Indebtedness, nor shall anything herein or in the instruments orother evidence of the Securities prevent any trustee for the holders of theSecurities or the holder of any Securities from exercising all remediesotherwise permitted by applicable law upon default under this Agreement or suchinstrument or other evidence, subject to the rights, if any, under this Article ofthe holders of Senior Indebtedness in respect of cash, property or securitiesof the Capital Corporation received upon the exercise of any such remedy.

 

----

 

I-2

 

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

 

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

 

----

 

SCHEDULE II

 

COMMITMENTS

 

| Bank                                                                            | Commitment     |
|---------------------------------------------------------------------------------|----------------|
| JPMorgan Chase Bank,  N.A.                                                      | $105,000,000   |
| Bank of America, N.A.                                                           | $105,000,000   |
| Barclays Bank, PLC                                                              | $185,000,000   |
| Goldman Sachs Bank USA                                                          | $185,000,000   |
| Morgan Stanley Bank,  N.A.                                                      | $185,000,000   |
| Citibank, N.A.                                                                  | $85,000,000    |
| Credit Suisse AG,  Cayman Islands Branch                                        | $85,000,000    |
| Deutsche Bank AG, New  York Branch                                              | $85,000,000    |
| BNP Paribas                                                                     | $60,000,000    |
| HSBC Bank USA, National  Association                                            | $60,000,000    |
| Royal Bank of Canada                                                            | $60,000,000    |
| Toronto  Dominion (New York) LLC                                                | $60,000,000    |
| Wells Fargo Bank,  National Association                                         | $60,000,000    |
| The Northern Trust  Company                                                     | $40,000,000    |
| Banco Bilbao Vizcaya  Argentaria S.A., New York Branch                          | $20,000,000    |
| Banco Santander, S.A.-  New York Branch                                         | $20,000,000    |
| Fifth Third Bank                                                                | $20,000,000    |
| The Bank of Tokyo-Mitsubishi UFJ, Ltd.                                          | $20,000,000    |
| U.S. Bank, National  Association                                                | $20,000,000    |
| Westpac Banking  Corporation                                                    | $20,000,000    |
| The Bank of New York  Mellon                                                    | $10,000,000    |
| Nordea Bank Finland  Plc, New York & Cayman Islands Branches           | $10,000,000    |
|                                                                            |           |
|                                                                            |           |
|                                                                            |           |
|               TOTAL | $1,500,000,000 |

 

----

 

SCHEDULE III

 

**MANDATORY COSTS**

 

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

 

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

 

3.                              The Additional Cost Rate for any Bank lendingfrom a Facility Office in a Participating Member State will be the percentagenotified by that Bank to the Administrative Agent.  This percentage will be certified by thatBank in its notice to the Administrative Agent to be its reasonabledetermination of the cost (expressed as a percentage of that Bank’s participationin all Loans made from that Facility Office) of complying with the minimumreserve requirements of the European Central Bank in respect of loans made fromthat Facility Office.

 

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

 

 per cent. per annum

 

Where:

 

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

 

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

 

C                          is the percentage (if any) of EligibleLiabilities which that Bank is required from time to time to maintain asinterest bearing Special Deposits with the Bank of England.

 

D                          is the percentage rate per annum payable bythe Bank of England to the Administrative Agent on interest bearing SpecialDeposits.

 

----

 

III-2

 

E                            is designed to compensate Banks for amountspayable under the Fees Rules and is calculated by the Administrative Agentas being the average of the most recent rates of charge supplied by theReference Banks to the Administrative Agent pursuant to paragraph 7 below andexpressed in pounds per £1,000,000.

 

5.                              For the purposes of this Schedule:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

----

 

III-3

 

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

 

8.                              Each Bank shall supply any information requiredby the Administrative Agent for the purpose of calculating its Additional CostRate.  In particular, but withoutlimitation, each Bank shall supply the following information on or prior to thedate on which it becomes a Bank:

 

(a)                                   the jurisdiction of its Facility Office; and

 

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

 

Each Bank shall promptly notify the AdministrativeAgent of any change to the information provided by it pursuant to thisparagraph.

 

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

 

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

 

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

 

12.                      Any determination by the Administrative Agentpursuant to this Schedule in relation to a formula, the Mandatory Cost, anAdditional Cost Rate or any amount payable to a Bank shall, in the absence ofmanifest error, be conclusive and binding on all parties.

 

----

 

III-4

 

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

 

----

 

SCHEDULE IV

 

 

ADDRESSES FOR NOTICES

 

 

**JPMorgan Chase Bank, N.A.**

Attention:  Robert Kellas

383 MadisonAvenue -24th Floor

New York, NewYork 10017

Telephone:  (212) 270-3560

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 below1111 Fannin Street, 10th FloorHouston, Texas 77002Attention:  Talitha Humes

 

 

Ladies and Gentlemen:

 

Pursuant to subsection 2.1(c) of the$1,500,000,000 37-Month Credit Agreement, dated as of March 2, 2010, amongDEERE & COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks partiesthereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A.,CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK SECURITIES INC., asDocumentation Agents, and BANK OF AMERICA, N.A., as Syndication Agent (as thesame may be amended, supplemented or otherwise modified from time to time, the “CreditAgreement”), the undersigned hereby requests that the following CommittedRate Loans be made on __________, 20__ as follows:

 

| (1)  Total Amount of Committed Rate Loans                                                                             | $____________ |   |
|----------------------------------------------------------------------------------------------------------------------------|---------------|--------|
| (2)  Requested Currency                                                                                               | _____________ |   |
| (3)  Amount of (1) to be allocated to Eurocurrency  Loans                                                        | $____________ |   |
| (4)  Amount of (1) to be allocated to ABR  Loans                                                                 | $____________ |   |
| (5)  Interest Periods and amounts to be  allocated thereto in respect of Eurocurrency Loans (amounts must total (3)): |          |   |
|         (i)  one month                                                             | $____________ |
|         (ii)   two months                                                          | $____________ |
|         (iii)   three months                                                       | $____________ |
|         (v)   six months                                                           | $____________ |
| Total Eurocurrency Loans                                                                                                   | $____________ |

 

----

 

A-2

 

NOTE:  THE AMOUNT APPEARING IN LINE (1) ABOVEMUST BE AT LEAST EQUAL TO $25,000,000 AND IN A WHOLE MULTIPLE OF $5,000,000 (ORTHE FOREIGN CURRENCY EQUIVALENT IN THE CASE OF FOREIGN CURRENCY LOANS) AND THEAMOUNTS APPEARING IN EACH OTHER LINE ABOVE MUST BE AT LEAST EQUAL TO$10,000,000 AND IN A WHOLE MULTIPLE OF $1,000,000 (OR THE FOREIGN CURRENCYEQUIVALENT IN THE CASE OF FOREIGN CURRENCY LOANS).

 

Terms defined in the CreditAgreement 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 theCredit      Agreement referred to below 1111 Fannin Street, 10th FloorHouston, Texas 77002Attention:  Talitha Humes

 

Ladies and Gentlemen:

 

Reference is made to the $1,500,000,000 37-MonthCredit Agreement, dated as of March 2, 2010, among DEERE &COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGANCHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE AG,CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK SECURITIES INC., as DocumentationAgents, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may beamended, supplemented or otherwise modified from time to time, the “CreditAgreement”).  Terms defined in theCredit Agreement are used herein as therein defined.

 

This is an [Index Rate] [Absolute Rate] Bid LoanRequest pursuant to subsection 2.2 of the Credit Agreement requesting quotesfor the following Bid Loans:

 

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

 

----

 

B-2

 

NOTE:  THE AGGREGATE PRINCIPAL AMOUNTS APPEARINGABOVE MUST BE IN THE AGGREGATE AT LEAST EQUAL TO $25,000,000 AND IN A WHOLEMULTIPLE OF $5,000,000.

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

 

 

 

 

 

 

 

__________

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

 

----

 

EXHIBIT C

 

[FORM OF BID LOAN OFFER]

 

_______, 20__

 

JPMorgan Chase Bank, N.A.,

as Administrative Agent

under the Credit Agreement referred to below1111 Fannin Street, 10th FloorHouston, Texas 77002Attention:  Talitha Humes

Ladies and Gentlemen:

 

Reference is made to the $1,500,000,000 37-MonthCredit Agreement, dated as of March 2, 2010, among DEERE &COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGANCHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE AG,CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK SECURITIES INC., as DocumentationAgents, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may beamended, supplemented or otherwise modified from time to time, the “CreditAgreement”). Terms defined in the Credit Agreement are used herein astherein defined.

 

In accordance with subsection 2.2 of the CreditAgreement, the undersigned Bid Loan Bank offers to make Bid Loans thereunder inthe 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 percentageabove or below Eurocurrency Rate.

 

----

 

EXHIBIT D

 

[FORM OF BID LOAN CONFIRMATION]

 

_______, 20__

 

JPMorgan Chase Bank, N.A.,

as Administrative Agent      under the Credit Agreementreferred  to below1111 Fannin Street, 10th FloorHouston, Texas 77002Attention:  Talitha Humes

Ladies and Gentlemen:

 

Reference is made to the $1,500,000,000 37-MonthCredit Agreement, dated as of March 2, 2010, among DEERE &COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGANCHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE AG,CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK SECURITIES INC., as DocumentationAgents, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may beamended, supplemented or otherwise modified from time to time, the “CreditAgreement”).  Terms defined in theCredit Agreement are used herein as therein defined.

 

In accordance with subsection 2.2 of the CreditAgreement, the undersigned accepts and confirms the offers by Bid Loan Bank(s) tomake Bid Loans to the undersigned on ______________, 20__ [Borrowing Date]under said subsection 2.2 in the (respective) amount(s) set forth on theattached 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 AdministrativeAgent with accepted amount entered by the Borrower to right of each Bid LoanOffer].

 

----

 

EXHIBIT E

 

[FORM OF LOAN ASSIGNMENT]

 

LOAN ASSIGNMENT

 

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

 

WITNESSETH :

 

WHEREAS, this Loan Assignment is being executed anddelivered in accordance with subsection 10.5(c) of the $1,500,000,00037-Month Credit Agreement, dated as of March 2, 2010, among DEERE &COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGANCHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE AG,CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK SECURITIES INC., as DocumentationAgents, and BANK OF AMERICA, N.A., as Syndication Agent (as the same may beamended, supplemented or otherwise modified from time to time, the “CreditAgreement”)”; terms defined therein being used herein as therein defined);and

 

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

 

NOW, THEREFORE, the parties hereto hereby agree asfollows:

 

1.  TheAssignor Bank acknowledges receipt from the Loan Assignee of an amount equal tothe 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 orwarranty, and the Loan Assignee hereby irrevocably purchases, takes andacquires from the Assignor Bank, the Loan, together with all instruments,documents and collateral security pertaining thereto.

 

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

 

(b)  If Item 6 of Schedule I hereto containspayment instructions for the Loan Assignee and if the Loan Assignee delivers acopy of this Loan Assignment to the Administrative Agent in accordance withsubsection 10.5(f) of the Credit Agreement at least 5 Business Days priorto the due date of any payment to the Loan Assignee, the Loan Assignee herebyinstructs the Administrative Agent to pay all such amounts payable to itpursuant to the 

 

----

 

E-2

 

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

 

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

 

4.  Byexecuting and delivering this Loan Assignment, the Assignor Bank and the LoanAssignee confirm to and agree with each other and the Administrative Agent andthe Banks as follows:  (i) otherthan the representation and warranty that it is the legal and beneficial ownerof the interest being assigned hereby free and clear of any adverse claim, theAssignor Bank makes no representation or warranty and assumes no responsibilitywith respect to any statements, warranties or representations made in or inconnection with the Credit Agreement or any other instrument or documentfurnished pursuant thereto or the execution, legality, validity,enforceability, genuineness, sufficiency or value of the Credit Agreement orany other instrument or document furnished pursuant thereto; (ii) theAssignor Bank makes no representation or warranty and assumes no responsibilitywith respect to the financial condition of the Company or the CapitalCorporation or the performance or observance by the Company or the CapitalCorporation of any of its obligations under the Credit Agreement or any otherinstrument or document furnished pursuant thereto; (iii) the Loan Assigneeconfirms that it has received a copy of the Credit Agreement, together withcopies of the financial statements referred to in subsection 3.1 of the CreditAgreement (unless financial statements referred to in subsection 5.1(a) ofthe Credit Agreement have become available), the financial statements deliveredpursuant to subsection 5.1 of the Credit Agreement, if any, and such otherdocuments and information as it has deemed appropriate to make its own creditanalysis and decision to enter into this Loan Assignment; (iv) the Loan Assigneewill, independently and without reliance upon the Administrative Agent, theAssignor Bank or any other Bank and based on such documents and information asit shall deem appropriate at the time, continue to make its own creditdecisions in respect of the Credit Agreement; and (v) the Loan Assigneeappoints and authorizes the Administrative Agent to take such action as agenton its behalf and to exercise such powers under the Credit Agreement as aredelegated to the Administrative Agent by the terms thereof, together with suchpowers as are reasonably incidental thereto, all in accordance with Section 9of the Credit Agreement.

 

5.  The LoanAssignee will on, or prior to the Transfer Effective Date, (i) representto the Assignor Bank (for the benefit of the Assignor Bank, the AdministrativeAgent and the Borrowers) either (A) that it is incorporated under the lawsof the United States, a state thereof, or the District of Columbia or (B) thatthe under applicable law and treaties no taxes will be required to be withheldby the Administrative Agent, the Borrowers or the Assignor Bank 

 

----

 

E-3

 

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

 

6.  The LoanAssignee agrees to be bound by subsection 10.7 of the Credit Agreement relatingto confidentiality.

 

7.  This LoanAssignment shall be governed by, and construed and interpreted in accordancewith, the law of the State of New York.

 

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

 

----

 

SCHEDULE I

TO LOAN

ASSIGNMENT

 

 
| Item 1 |   | (Date of Loan  Assignment):                                                                                                 |   | [Insert date of Loan  Assignment]                                                                                                                                                                                          |
|--------|--------|-----------------------------------------------------------------------------------------------------------------------------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                        |   |                                                                                                                                                                                                                       |
| Item 2 |   | (Assignor Bank):                                                                                                            |   | [Insert name of Assignor Bank]                                                                                                                                                                                             |
|   |   |                                                                                                                        |   |                                                                                                                                                                                                                       |
| Item 3 |   | (Loan Assignee):                                                                                                            |   | [Insert name, address, telephone and telex numbers  and name of contact party of Loan Assignee]                                                                                                                            |
|   |   |                                                                                                                        |   |                                                                                                                                                                                                                       |
| Item 4 |   | (Transfer Effective Date):                                                                                                  |   | [Insert Transfer Effective Date] [To be a date not  less than five Business Days after date of Loan Assignment]                                                                                                            |
|   |   |                                                                                                                        |   |                                                                                                                                                                                                                       |
| Item 5 |   | (Description of Loan):

 

a.   Borrowing Date and Maturity Date:

b.   Principal  Amount of Loan: |   |  

 

[Bid  Loan or Negotiated Rate Loan]

                                                                                                                                                                 |
|   |   |                                                                                                                        |   |                                                                                                                                                                                                                       |
| Item 6 |   | (Payment Instructions):                                                                                                     |   | [Complete only if payments are to be made by  Administrative Agent to Loan Assignee rather than to Assignor Bank as  collection agent for Loan Assignee; leave blank if Assignor Bank is to act as  such collection agent] |
|   |   |                                                                                                                        |   |                                                                                                                                                                                                                       |
| Item 7 |   | (Signatures):                                                                                                               |   |                                                                                                                                                                                                                       |

 

 
|   |   | , as           |
|--------|--------|----------------|
|   |   | Assignor  Bank |
|   |   |
|   |   |
|   | By:    |           |   |
|   |   | Title:         |
|   |   |
|   |   |
|   |   | , as           |
|   |   | Loan Assignee  |
|   |   |
|   |   |
|   | By:    |           |   |
|   |   | Title:         |
|        |        |                |  |  |

 

----

 

I-2

 
| ACCEPTED FOR  RECORDATION   |
|-----------------------------|
| IN  REGISTER:               |
|                        |
| JPMORGAN CHASE BANK,  N.A., |
| as  Administrative Agent    |
|                        |
|                        |
| By:                         |   |   |
| Title:                      |   |

 

----

 

EXHIBIT F

 

[FORM OF COMMITMENT TRANSFER SUPPLEMENT]

 

COMMITMENT TRANSFER SUPPLEMENT

 

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

 

W I T N E S S E T H :

 

WHEREAS, this Commitment Transfer Supplement isbeing executed and delivered in accordance with subsection 10.5(d) of the$1,500,000,000 37-Month Credit Agreement, dated as of March 2, 2010, amongthe Company, the Capital Corporation, the Transferor Bank and the other Banksparty thereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK,N.A., CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK SECURITIESINC., as Documentation Agents, and BANK OF AMERICA, N.A., as Syndication Agent(as the same may be amended, supplemented or otherwise modified from time totime, the “Credit Agreement”; terms defined therein being used herein astherein defined);

 

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

 

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

 

NOW, THEREFORE, the parties hereto hereby agree asfollows:

 

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

 

2.  TheTransferor Bank acknowledges receipt from each Purchasing Bank of an amountequal to the purchase price, as agreed between the Transferor Bank and suchPurchasing Bank (the “Purchase Price”), of the portion being purchasedby such Purchasing Bank (such Purchasing Bank’s “Purchased Percentage”)of the outstanding Commitment of such Transferor Bank and/or Committed RateLoans and other amounts owing to the Transferor Bank under the Credit Agreement(other than any Bid Loans and Negotiated Rate Loans owing to the TransferorBank).  The Transferor Bank herebyirrevocably sells, assigns and transfers to each Purchasing Bank, without recourse,representation or warranty, and each Purchasing Bank hereby irrevocablypurchases, takes and assumes from the Transferor Bank, such Purchasing Bank’sPurchased Percentage of the Commitments and the presently outstanding CommittedRate Loans 

 

----

 

F-2

 

and other amounts owing tothe Transferor Bank under the Credit Agreement (other than any Bid Loans andNegotiated Rate Loans owing to the Transferor Bank) together with allinstruments, documents and collateral security pertaining thereto.

 

3.  TheTransferor 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, bythe Transferor Bank to such Purchasing Bank of any fees heretofore received bythe Transferor Bank pursuant to the Credit Agreement prior to the TransferEffective Date and (ii) the portion, if any, to be paid, and the date ordates for payment, by such Purchasing Bank to the Transferor Bank of fees orinterest received by such Purchasing Bank pursuant to the Credit Agreement fromand after the Transfer Effective Date.

 

4.  (a) From and after the Transfer Effective Date, principal, interest, fees and otheramounts that would otherwise be payable to or for the account of the TransferorBank pursuant to the Credit Agreement and the Committed Rate Loans (other thanany 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 thePurchasing Banks, as the case may be, in accordance with their respectiveinterests as reflected in this Commitment Transfer Supplement, whether suchamounts have accrued prior to the Transfer Effective Date or accrue subsequentto the Transfer Effective Date.

 

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

 

5.  On orpromptly after the Transfer Effective Date specified in this CommitmentTransfer Supplement, the Purchasing Bank and the Administrative Agent, onbehalf of such Purchasing Bank, shall open and maintain in the name of eachBorrower a Loan Account with respect to such Purchasing Bank’s Committed Rate Loansand Bid Loans to such Borrower.

 

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

 

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

 

----

 

F-3

 

such further documents anddo such further acts and things as such other party may reasonably request inorder to effect the purposes of this Commitment Transfer Supplement.

 

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

 

9.   ThePurchasing Bank will on or prior to the Transfer Effective Date (i) representto the Transferor Bank (for the benefit of the Transferor Bank, theAdministrative Agent and the Borrowers) either (A) that it is incorporatedunder the laws of the United States, a state thereof or the District ofColumbia, or (B) that under applicable law and treaties no taxes will berequired to be withheld by the Transferor Bank, Administrative Agent or theBorrowers with respect to any payments to be made to the Purchasing Bank underthe Credit Agreement, (ii) if the Purchasing Bank is not incorporatedunder the laws of the United States, a state thereof or the District ofColumbia, (A) furnish to the Transferor Bank, the Administrative Agent andthe Borrowers, on or prior to the Transfer Effective Date, a letter induplicate in the form of Exhibit I or Exhibit J, as appropriate, tothe Credit Agreement and two duly completed copies of either U.S. InternalRevenue Service Form W-8BEN or U.S. Internal Revenue Service Form W-8ECIor successor applicable form, as the case may be (wherein the Purchasing Bankclaims entitlement to complete exemption from U.S. federal withholding tax onall payments under the Credit Agreement), or in the case of a Purchasing Bankclaiming exemption under Sections 871(h) or 881(c) of the Code, aCertificate of Non-Bank Status together with two original copies 

 

----

 

F-4

 

of U.S. Internal RevenueService Form W-8BEN or successor applicable form (wherein the PurchasingBank claims entitlement to complete exemption from U.S. federal backupwithholding on all payments under the Credit Agreement) and (B) agrees, tothe extent it may lawfully do so, to provide the Transferor Bank, theAdministrative Agent and the Borrowers a new letter or a new Certificate ofNon-Bank Status, if applicable, and a Form W-8BEN or Form W-8ECI orsuccessor applicable form or other manner of certification on or before theexpiration or obsolescence of, or after the occurrence of any event requiring achange in, the most recent letter and form previously delivered by it,certifying in the case of a Form W-8BEN or W-8ECI that such PurchasingBank is entitled to receive payments under the Credit Agreement withoutdeduction or withholding of any United States federal income tax, and in thecase of a Form W-8BEN establishing exemption from United States backupwithholding tax.

 

10.  ThePurchasing Bank agrees to be bound by subsection 10.7 of the Credit Agreementrelating to confidentiality.

 

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

 

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

 

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

 

----

 

SCHEDULE ITOCOMMITMENTTRANSFERSUPPLEMENT

 

COMPLETION OF INFORMATION ANDSIGNATURES FOR COMMITMENTTRANSFER SUPPLEMENT

 

 
| Item 1 |   | (Date of Commitment  Transfer Supplement):                       |   | [Insert date of Commitment Transfer Supplement]                                                                                  |
|--------|--------|------------------------------------------------------------------|--------|----------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                             |   |                                                                                                                             |
| Item 2 |   | (Transferor Bank):                                               |   | [Insert name of Transferor Bank]                                                                                                 |
|   |   |                                                             |   |                                                                                                                             |
| Item 3 |   | (Purchasing Bank[s]):                                            |   | [Insert name[s] of   Purchasing Bank[s]]                                                                                    |
|   |   |                                                             |   |                                                                                                                             |
| Item 4 |   | (Transfer Effective Date):                                       |   | [Insert Transfer Effective Date:]  [To be a date not less than five Business Days after date of Commitment  Transfer Supplement] |
|   |   |                                                             |   |                                                                                                                             |
| Item 5 |   | (Signatures of Parties  to Commitment Transfer Supplement): |   |                                                                                                                             |

 
|   |   |                 | , as   |
|--------|--------|----------------------|--------|
|   |   | Transferor  Bank     |
|   |   |
|   |   |
|   | By:    |                 |   |
|   |   | Title:               |
|   |   |
|   |   |
|   |   |                 | , as   |
|   |   | as a Purchasing Bank |
|   |   |
|   |   |
|   | By:    |                 |   |
|   |   | Title:               |
|   |   |                 |
|   |   |                 |
|   |   |                 | , as   |
|   |   | 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 bySection 10.5 of the Credit Agreement.

 

----

 

SCHEDULE IITO COMMITMENTTRANSFER  SUPPLEMENT

 

LIST OF LENDING OFFICES, ADDRESSESFOR NOTICES AND COMMITMENT AMOUNTS

 

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

 

----

 

EXHIBIT G

 

[FORM OF OPINION OF GENERAL COUNSEL TO THE COMPANY]

 
|   | [Closing Date] |
|--------|----------------|

 

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

 

Deere & Company andJohn Deere Capital Corporation

 

Ladies and Gentlemen:

 

This opinion is furnished to you pursuant tosubsection 4.1(c) of the $1,500,000,000 37-Month Credit Agreement, datedas of March 2, 2010 (the “Credit Agreement”), among DEERE &COMPANY (the “Company”), JOHN DEERE CAPITAL CORPORATION (the “CapitalCorporation”, the Company and the Capital Corporation being referred to hereinindividually as a “Borrower” and collectively as the “Borrowers”), the Banks partiesthereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A.,CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK SECURITIES INC., asDocumentation Agents, and BANK OF AMERICA, N.A., as Syndication Agent.  Terms defined in the Credit Agreement areused herein as therein defined.

 

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

 

1.         TheCredit Agreement;

 

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

 

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

 

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

 

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

 

----

 

G-2

 

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

 

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

 

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

 

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

 

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

 

3.                                    No authorization, approval, or other actionby, and no notice to or filing with, any governmental authority or regulatorybody is required for the due execution, delivery and performance by eachBorrower of the Credit Agreement.

 

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

 

----

 

G-3

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

 

----

 

EXHIBIT H

 

[FORM OF OPINION OF SPECIAL NEW YORK COUNSELTO THE BORROWERS]

 
|   | [Closing Date] |
|--------|----------------|

 

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

 

Deere & CompanyJohn Deere Capital Corporation

 

Ladies and Gentlemen:

 

We have acted as New York counsel to DEERE &COMPANY, a Delaware corporation (the “Company”) and JOHN DEERE CAPITALCORPORATION, a Delaware corporation (the “Capital Corporation”, theCompany and the Capital Corporation being referred to herein as the “Borrowers”),in connection with the $1,500,000,000 37-Month Credit Agreement, dated as of March 2,2010 (the “Credit Agreement”), among DEERE & COMPANY, JOHNDEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGAN CHASE BANK,N.A., as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE AG, CAYMAN ISLANDSBRANCH, and DEUTSCHE BANK SECURITIES INC., as Documentation Agents, and BANK OFAMERICA, N.A., as Syndication Agent. Unless otherwise defined herein, terms defined in the Credit Agreementare used herein as therein defined.

 

In that connection, we have reviewed an executioncopy of the Credit Agreement.  We havealso 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 otherdocuments, we have assumed:

 

(A)       The genuineness of all signatures.

 

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

 

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

 

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

 

(E)       That:

 

----

 

H-2

 

(1)        Each Borrower is anentity duly organized and validly existing under the laws of the jurisdictionof its organization.

 

(2)        Each Borrower has fullpower to execute, deliver and perform, and has duly executed and delivered, theCredit Agreement.

 

(3)        The execution, deliveryand performance by each Borrower of the Credit Agreement have been dulyauthorized 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 toGenerally Applicable Law, violate any law, rule or regulation applicableto it; or

 

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

 

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

 

We have notindependently established the validity of the foregoing assumptions.

 

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

 

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

 

----

 

H-3

 

Our opinion expressed above is subject to thefollowing qualifications:

 

##### (a)  Ouropinion is subject to the effect of any applicable bankruptcy, insolvency,reorganization, moratorium or similar laws affecting creditors’ rightsgenerally (including without limitation all laws relating to fraudulenttransfers).

#####  

##### (b)  Ouropinion is subject to the effect of general principles of equity, includingwithout limitation concepts of materiality, reasonableness, good faith and fairdealing (regardless of whether considered in a proceeding in equity or at law).

#####  

##### (c)  We expressno opinion with respect to the enforceability of indemnification provisions, orof release or exculpation provisions, contained in the Credit Agreement to theextent that enforcement thereof is contrary to public policy regarding theindemnification against or release or exculpation of criminal violations,intentional harm or violations of securities laws.

#####  

##### (d)  Our opinionwith respect to the provisions of the Credit Agreement whereby the partiessubmit to the jurisdiction of the courts of the United States of Americalocated 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 theCredit Agreement which relate to forum selection of the courts of the UnitedStates located in the State of New York (including, without limitation, anywaiver of any objection to venue or any objection that a court is aninconvenient forum), we note such court’s discretion to transfer an action fromone Federal court to another under 28 U.S.C. § 1404(a) or to dismiss anaction under the common law doctrine of forum non conveniens.

#####  

##### (f)   Weexpress no opinion with respect to any Bid Loan or Negotiated Rate Loan made inan amount of less than $2,500,000 that bears interest at a rate greater than25% per annum.

#####  

##### (g)  Ouropinion is limited to Generally Applicable Law.

#####  

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

 

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

 

This opinion letter speaks only as of the datehereof.  We expressly disclaim anyresponsibility 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 thisopinion letter even though such 

 

----

 

H-4

 

development or circumstancemay affect the legal analysis, a legal conclusion or any other matter set forthin or relating to this opinion letter.

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

 

----

 

EXHIBIT I

 

[FORM OF W-8BEN TAX LETTER]

 

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

 

[Bank’s Letterhead]

 

                               ,20   

 

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

 

 

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

 

Re:                            $1,500,000,000 37-Month Credit Agreement dated as of March 2, 2010 with Deere & Company and John Deere Capital Corporation

 

Ladies and Gentlemen:

 

In connection with the 1,500,000,000 37-Month CreditAgreement, dated as of March 2, 2010, among DEERE & COMPANY, JOHNDEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGAN CHASE BANK, N.A.,as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE AG, CAYMAN ISLANDSBRANCH, and DEUTSCHE BANK SECURITIES INC., as Documentation Agents, and BANK OFAMERICA, N.A., as Syndication Agent, we hereby represent and warrant that [nameof Bank, address] is a [name of Country] corporation and is currently exemptfrom any U.S. federal withholding tax on payments to it from U.S. sources byvirtue of compliance with the provisions of the Income Tax Convention betweenthe 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 orcontrolled in [_______], (b) [does not have a permanent establishment orfixed base in the United States] [does have a permanent establishment or fixedbase in the United States but the above Agreement is not effectively connectedwith such permanent establishment or fixed base], (c) is not exempt fromtax on the income in [_______] and (d) is the beneficial owner of theincome.

 

----

 

I-2

 

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

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

 

 

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

 

----

 

EXHIBIT J

 

[FORM OF W-8ECI TAX LETTER]

 

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

 

[Bank’s Letterhead]

 

                               ,20   

 

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

 

 

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

 

Re:                            $1,500,000,000 37-Month Credit Agreementdated as of March 2, 2010 with Deere & Company and John Deere Capital Corporation

 

Ladies and Gentlemen:

 

In connection with the above $1,500,000,000 37-MonthCredit Agreement, dated as of March 2, 2010, among DEERE &COMPANY, JOHN DEERE CAPITAL CORPORATION, the Banks parties thereto, JPMORGANCHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE AG,CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK SECURITIES INC., as DocumentationAgents, and BANK OF AMERICA, N.A., as Syndication Agent, we hereby representand warrant that [name of Bank, address] is a [corporation] and is entitled toexemption from U.S. federal withholding tax on payments to it under theAgreement by virtue of Section 1441(c)(1) of the Internal RevenueCode of the United States of America and Treasury Regulation Section 1.1441-4(a) thereunder.

 

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

 
|   | Yours faithfully, |
|--------|-------------------|
|   |              |
|   | [NAME OF BANK]    |

 

----

 

J-2

 
|   | By:    |   |
|--------|--------|--------|
|   |   | Title: |

 

 

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

 

----

 

EXHIBIT K

 

[FORM OF AGREEMENT]

 

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

 

WITNESSETH :

 

WHEREAS, the Company, the Capital Corporation, theseveral financial institutions parties thereto (the “Existing Banks”), JPMORGANCHASE BANK, N.A., as Administrative Agent, CITIBANK, N.A., CREDIT SUISSE AG,CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK SECURITIES INC., as DocumentationAgents, and BANK OF AMERICA, N.A., as Syndication Agent are parties to the$1,500,000,000 37-Month Credit Agreement, dated as of March 2, 2010 (asthe same may have been or may hereafter be amended, supplemented or otherwisemodified, the “Credit Agreement”; terms defined therein being usedherein as therein defined);

 

WHEREAS, subsection 2.19 of the Credit Agreementprovides 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 uponthe cancellation of all or a portion of the Commitments pursuant to subsection2.13(a), (b) or (c),  or 2.17(b) ofthe Credit Agreement or upon a Defaulting Bank becoming a Cancelled Bank andthe execution of an agreement in substantially the form of this Agreement;

 

WHEREAS, the Borrowers have cancelled or there haveexpired 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 Commitmentsbeing collectively referred to as “Cancelled Banks”); such CancelledCommitments being on the date hereof, or on the date of notice of cancellationhereof having been, utilized as follows:

 

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

1  2  3 |                         |

 

----

 

K-2

 

|    | ABR Loans              | N/A    |
|---------|------------------------|--------|
| III     | Bid Loans              |   |
| 1  2  3 |                   |
| IV      | Negotiated Rate  Loans |   |
| 1  2  3 |                   |

 

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

 

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

 

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

 

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

 

2.  Commitmentof New Bank.  The Borrowers, theAdministrative Agent and the New Bank hereby agree that on and as of the datesset forth below the New Bank shall replace, as specified herein, _% (suchpercentage being referred to as the New Bank’s “Percentage”) of eachutilization of the Cancelled Commitments [set forth in the third recitalhereof] [set forth under the caption “Committed Rate Loans”] and that theaggregate Commitment of the New 

 

 

----

*          Asappropriate for New or Existing Banks.

 

----

 

K-3

 

Bank shall on and as of thedate hereof be $          **.  In connection therewith, the Borrowers, theAdministrative Agent and the New Bank hereby agree as follows***:

 

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

 

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

 

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

 

[(B)] [on the last day ofeach Interest Period for each outstanding Eurocurrency Loan, automatically andwithout any further action by either Borrower, the New Bank shall disburse toeach Borrower in immediately available funds such amounts as shall be necessaryso that the ratio which each Bank’s outstanding Eurocurrency Loans, bears toall of the outstanding Eurocurrency Loans, equals the ratio which each Bank’sCommitment (determined, for the New Bank, in accordance with clause (i) hereof)bears to all of the Commitments (determined, for the New Bank, in accordancewith the immediately foregoing parenthetical);]

 

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

 

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

 

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

 

----

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

 

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

*          To be completed upon agreement ofBorrowers and New Bank.

 

----

 

K-4

 

Commitment of the New Bankbut excluding the cancelled or expired portion of the Commitments of theCancelled Banks) under the Credit Agreement do not exceed the aggregateprincipal amount of the Commitments in effect immediately prior to thecancellation referred to in the third recital hereof.

 

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

 

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

 

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

 

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

 

 

----

*          Usefor non-Existing Banks.

 

----

 

K-5

 

IN WITNESS WHEREOF, the parties have caused thisAgreement to be executed and delivered as of the day and year first abovewritten.

 
|   | 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 L

 

[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 Delawarecorporation (the “Borrower”), hereby promises to pay on [insert maturitydate 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, NewYork, New York 10017 -- for Bid Loan Note] [Name and address ofBank -- for Negotiated Rate Loan Note], in lawful money of [theUnited States of America] and in immediately available funds, the principal sumof ______________[DOLLARS ($____________)]. The undersigned further agrees to pay interest in like money at suchoffice on the unpaid principal amount hereof from time to time from the datehereof [at the rate of ___% per annum -- for Bid Loan Note][specify rate for Negotiated Rate Loan Note] (calculated on the basis of a yearof 360 days and actual days elapsed) until the due date hereof (whether at thestated maturity, by acceleration, or otherwise) and thereafter at the ratesdetermined or agreed in accordance with subsection 2.2(e) of the$1,500,000,000 37-Month Credit Agreement, dated as of March 2, 2010 (the “CreditAgreement”), among the Borrower, [Deere & Company] [John DeereCapital Corporation], the Bank, the other financial institutions partiesthereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, [CITIBANK, N.A.,CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK SECURITIES INC., asDocumentation Agents,] and BANK OF AMERICA, N.A., as Syndication Agent.  Interest shall be payable on _______________.  This Note may be prepaid pursuant to theprovisions of subsection 2.6 of the Credit Agreement.

 

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

 

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

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

 

----

 

EXHIBIT M

 

FORM OF

NEW BANK SUPPLEMENT

 

SUPPLEMENT, dated _______ __, to the $1,500,000,00037-Month Credit Agreement (as in effect on the date hereof, the “CreditAgreement”) dated as of March 2, 2010, among DEERE & COMPANY(the “Company”), JOHN DEERE CAPITAL CORPORATION, the banks and otherfinancial institutions from time to time party thereto (each a “Bank,”and together, the “Banks”), JPMORGAN CHASE BANK, N.A., as AdministrativeAgent, CITIBANK, N.A., CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, and DEUTSCHEBANK SECURITIES INC., as Documentation Agents, and BANK OF AMERICA, N.A., asSyndication Agent.  Unless the contextotherwise requires, all capitalized terms used herein without definition shallhave the meanings ascribed to them in the Credit Agreement.

 

WITNESSETH:

 

WHEREAS, the Credit Agreement provides in subsection2.20 thereof that any bank or financial institution, although not originally aparty thereto, may become a party to the Credit Agreement in accordance withthe terms thereof by executing and delivering to the Borrowers and theAdministrative Agent a supplement to the Credit Agreement in substantially theform of this Supplement; and

 

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

 

NOW, THEREFORE, the undersigned hereby agrees asfollows:

 

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

 

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

 

----

 

M-2

 

terms of the CreditAgreement are required to be performed by it as a Bank including, withoutlimitation, its obligation pursuant to subsection 2.17(c) of the CreditAgreement.

 

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

 

_______________________

 

Attention:_______________

 

_______________________

 

_______________________

 

Fax:____________________

 

----

 

M-3

 

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

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

 

Accepted this _____ day of 

______________, 20__

 

DEERE &COMPANY

 

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

 

 

Accepted this _____ day of 

______________, 20__

 

JPMORGANCHASE BANK, N.A.,

asAdministrative Agent

 

 
| By:    |   |   |   |
|--------|--------|--------|--------|
|   | Title: |   |   |

 

----

 

EXHIBIT N

 

FORM OF

COMMITMENT INCREASE SUPPLEMENT

 

SUPPLEMENT, dated _______ 20__, to the$1,500,000,000 37-Month Credit Agreement (as in effect on the date hereof, the“Credit Agreement”) dated as of March 2, 2010, amongDEERE & COMPANY (the “Company”), JOHN DEERE CAPITALCORPORATION, the Banks parties thereto, JPMORGAN CHASE BANK, N.A., asAdministrative Agent, CITIBANK, N.A., CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,and DEUTSCHE BANK SECURITIES INC., as Documentation Agents, and BANK OFAMERICA, N.A., as Syndication Agent. Unless the context otherwise requires, all capitalized terms used hereinwithout definition shall have the meanings ascribed to them in the CreditAgreement.

 

WITNESSETH:

 

WHEREAS, pursuant to the provisions of subsection2.20 of the Credit Agreement, the undersigned may increase the amount of itsCommitment in accordance with the terms thereof by executing and delivering tothe Borrowers and the Administrative Agent a supplement to the Credit Agreementin substantially the form of this Supplement; and

 

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

 

NOW THEREFORE, the undersigned hereby agrees asfollows:

 

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

 

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

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

 

----

 

N-2

 

Accepted this _____ day of 

______________, 20__

 

DEERE &COMPANY

 

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

 

 

Accepted this _____ day of 

______________, 20__

 

JPMORGANCHASE BANK, N.A.,

asAdministrative Agent

 

 
| By:    |   |   |   |
|--------|--------|--------|--------|
|   | Title: |   |   |

 

----