Exhibit 4(a)


CONFORMED COPY


 




 





CREDIT AGREEMENT



dated as of



December 1, 2004





among





CUMMINS INC.,

CUMMINS ENGINE CO. LTD.,

CUMMINS POWER GENERATION LTD.,

NEWAGE INTERNATIONAL LIMITED,



THE ELIGIBLE SUBSIDIARIES AND SUBSIDIARY GUARANTORS REFERRED TO

HEREIN



The Lenders Party Hereto,



JPMORGAN CHASE BANK, N.A.

(formerly known as JPMorgan Chase Bank)

as Administrative Agent, Issuing Bank and Swingline Lender,



CITICORP USA, INC.,

as Syndication Agent,



and



BANK OF AMERICA, N.A.,

THE BANK OF NOVA SCOTIA

and

THE ROYAL BANK OF SCOTLAND plc.,

as Co-Documentation Agents.














J.P. MORGAN SECURITIES INC.



and



CITIGROUP GLOBAL MARKETS, INC., 

as Joint Bookrunners and Co-Lead Arrangers




 





 





















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
   

  	
  ARTICLE 1

  DEFINITIONS

  	
   

  
	
   

  	
   

  
	
  Section
  1.01.

  	
  Defined
  Terms

  	
  1

  
	
  Section
  1.02.

  	
  Classification
  of Loans and Borrowings

  	
  17

  
	
  Section
  1.03.

  	
  Terms
  Generally

  	
  18

  
	
  Section
  1.04.

  	
  Accounting
  Terms; GAAP

  	
  18

  
	
   

  	
   

  
	
   

  	
  ARTICLE 2

  THE CREDITS

  	
   

  
	
   

  	
   

  
	
  Section
  2.01.

  	
  Commitments

  	
  18

  
	
  Section
  2.02.

  	
  Loans
  and Borrowings

  	
  18

  
	
  Section
  2.03.

  	
  Requests
  for Revolving Borrowings

  	
  19

  
	
  Section
  2.04.

  	
  Swingline
  Loans

  	
  20

  
	
  Section
  2.05.

  	
  Letters of Credit

  	
  21

  
	
  Section 2.06.

  	
  Funding of Borrowings

  	
  26

  
	
  Section 2.07.

  	
  Interest
  Elections

  	
  27

  
	
  Section 2.08.

  	
  Termination and Reduction of Commitments

  	
  28

  
	
  Section 2.09.

  	
  Repayment of Loans; Evidence of Debt

  	
  29

  
	
  Section 2.10.

  	
  Prepayment of Loans

  	
  29

  
	
  Section 2.11.

  	
  Fees

  	
  30

  
	
  Section 2.12.

  	
  Interest

  	
  31

  
	
  Section 2.13.

  	
  Alternate Rate of Interest

  	
  32

  
	
  Section 2.14.

  	
  Increased Costs

  	
  32

  
	
  Section
  2.15.

  	
  Break Funding Payments

  	
  33

  
	
  Section
  2.16.

  	
  Taxes

  	
  34

  
	
  Section
  2.17.

  	
  Foreign Subsidiary Costs

  	
  35

  
	
  Section 2.18.

  	
  Payments Generally; Pro Rata Treatment;
  Sharing of Set-offs

  	
  35

  
	
  Section 2.19.

  	
  Mitigation Obligations; Replacement of
  Lenders

  	
  37

  
	
  Section 2.20.

  	
  Currency Equivalents

  	
  38

  
	
   

  	
   

  
	
   

  	
  ARTICLE 3

  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  
	
  Section 3.01.

  	
  Organization; Powers

  	
  38

  
	
  Section 3.02.

  	
  Authorization

  	
  39

  
	
  Section 3.03.

  	
  Enforceability

  	
  39

  
	
  Section 3.04.

  	
  Governmental Approvals

  	
  39

  
	
  Section 3.05.

  	
  Financial Statements

  	
  39

  
	
  Section 3.06.

  	
  Title to Properties; Possession Under
  Leases

  	
  40

  
	
  Section 3.07.

  	
  Subsidiaries

  	
  40

  
	
  Section 3.08.

  	
  Litigation; Compliance with Laws

  	
  40

  
						



 


 





















 


	
  Section 3.09.

  	
  Non-existence of Certain Types of
  Agreements or Obligations

  	
  40

  
	
  Section
  3.10.

  	
  Federal Reserve Regulations

  	
  41

  
	
  Section 3.11.

  	
  No Regulatory Restrictions on Borrowing

  	
  41

  
	
  Section
  3.12.

  	
  Tax Returns

  	
  41

  
	
  Section 3.13.

  	
  Environmental Matters

  	
  41

  
	
  Section 3.14.

  	
  ERISA

  	
  42

  
	
  Section 3.15.

  	
  No Material Misstatements

  	
  42

  
	
  Section
  3.16.

  	
  Solvency

  	
  42

  
	
   

  	
   

  
	
   

  	
  ARTICLE 4

  CONDITIONS

  	
   

  
	
   

  	
   

  
	
  Section
  4.01.

  	
  Effective Date

  	
  42

  
	
  Section 4.02.

  	
  Each Credit Event

  	
  44

  
	
  Section
  4.03.

  	
  First Borrowing by Each Eligible Subsidiary

  	
  44

  
	
   

  	
   

  
	
   

  	
  ARTICLE 5

  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section
  5.01.

  	
  Existence; Businesses and Properties

  	
  45

  
	
  Section
  5.02.

  	
  Insurance

  	
  45

  
	
  Section
  5.03.

  	
  Obligations and Taxes

  	
  45

  
	
  Section
  5.04.

  	
  Financial Statements, Reports, Etc

  	
  45

  
	
  Section
  5.05.

  	
  Litigation and Other Notices

  	
  47

  
	
  Section
  5.06 

  	
  Maintaining Records; Access to Properties
  and Inspections

  	
  47

  
	
  Section
  5.07.

  	
  Use of Proceeds and Letters of Credit

  	
  47

  
	
  Section
  5.08.

  	
  Compliance with Laws

  	
  47

  
	
  Section
  5.09.

  	
  Additional Subsidiaries

  	
  48

  
	
   

  	
   

  
	
   

  	
  ARTICLE 6

  NEGATIVE COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section 6.01.

  	
  Negative Pledge

  	
  48

  
	
  Section 6.02.

  	
  Sale and Lease-Back Transactions

  	
  49

  
	
  Section 6.03.

  	
  Mergers, Consolidations, and Sales of
  Assets

  	
  49

  
	
  Section 6.04.

  	
  Priority Indebtedness

  	
  50

  
	
  Section 6.05.

  	
  Amendments of Certain Agreements

  	
  50

  
	
  Section 6.06.

  	
  Swap Agreements

  	
  50

  
	
  Section 6.07.

  	
  Restrictive Agreements

  	
  50

  
	
  Section 6.08.

  	
  Ownership of Significant Subsidiaries

  	
  51

  
	
  Section
  6.09.

  	
  Fundamental Changes

  	
  51

  
	
  Section
  6.10.

  	
  Unrestricted Subsidiaries

  	
  51

  
	
   

  	
   

  
	
   

  	
  ARTICLE 7

  FINANCIAL COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section
  7.01.

  	
  Leverage

  	
  51

  
	
  Section
  7.02.

  	
  Coverage
  Ratio

  	
  52

  
						



 


ii





















 


	
   

  	
  ARTICLE 8

  EVENTS OF DEFAULT

  	
   

  
	
   

  	
   

  
	
   

  	
  ARTICLE 9

  THE AGENTS

  	
   

  
	
   

  	
   

  
	
  Section
  9.01.

  	
  Appointment and Authorization of
  Administrative Agent

  	
  54

  
	
  Section
  9.02.

  	
  Rights
  and Powers of Administrative Agent as a Lender

  	
  54

  
	
  Section
  9.03.

  	
  Limited Duties and Responsibilities of
  Administrative Agent

  	
  54

  
	
  Section
  9.04.

  	
  Authority of Administrative Agent to Rely
  on Certain Writings, Statements and Advice

  	
  55

  
	
  Section
  9.05.

  	
  Sub-Agents and Related Parties

  	
  55

  
	
  Section
  9.06.

  	
  Resignation; Successor Administrative Agent

  	
  55

  
	
  Section
  9.07.

  	
  Credit
  Decisions by Lenders

  	
  56

  
	
  Section
  9.08.

  	
  Administrative Agent’s Fee

  	
  56

  
	
  Section
  9.09.

  	
  Other
  Agents

  	
  56

  
	
   

  	
   

  
	
   

  	
  ARTICLE 10

  REPRESENTATIONS AND WARRANTIES OF ELIGIBLE SUBSIDIARIES

  	
   

  
	
   

  	
   

  
	
  Section
  10.01.

  	
  Organization;
  Powers

  	
  56

  
	
  Section
  10.02.

  	
  Authorization

  	
  56

  
	
  Section
  10.03.

  	
  Enforceability

  	
  57

  
	
  Section
  10.04.

  	
  Taxes

  	
  57

  
	
   

  	
   

  
	
   

  	
  ARTICLE 11

  GUARANTIES

  	
   

  
	
   

  	
   

  
	
  Section
  11.01. 

  	
  The
  Guaranties

  	
  57

  
	
  Section
  11.02. 

  	
  Guaranties
  Unconditional

  	
  57

  
	
  Section
  11.03. 

  	
  Discharge
  Only Upon Payment in Full; Reinstatement in Certain Circumstances

  	
  58

  
	
  Section
  11.04.

  	
  Waiver
  by Guarantor

  	
  58

  
	
  Section
  11.05.

  	
  Subrogation

  	
  58

  
	
  Section
  11.06.

  	
  Stay
  of Acceleration

  	
  58

  
	
  Section
  11.07.

  	
  Continuing
  Guaranty

  	
  59

  
	
  Section
  11.08.

  	
  Limitation
  on Obligations of Subsidiary Guarantor

  	
  59

  
	
   

  	
   

  
	
   

  	
  ARTICLE 12

  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  Section
  12.01.

  	
  Notices

  	
  60

  
	
  Section
  12.02.

  	
  Waivers;
  Amendments

  	
  61

  
	
  Section
  12.03.

  	
  Expenses;
  Indemnity; Damage Waiver

  	
  62

  
	
  Section
  12.04.

  	
  Successors
  and Assigns

  	
  63

  
	
  Section
  12.05.

  	
  Survival

  	
  66

  
	
  Section
  12.06.

  	
  Counterparts;
  Integration; Effectiveness

  	
  66

  
						



 


iii





















 


	
  Section
  12.07.

  	
  Severability

  	
  67

  
	
  Section
  12.08.

  	
  Right
  of Set-off

  	
  67

  
	
  Section
  12.09.

  	
  Governing
  Law; Jurisdiction; Consent to Service of Process

  	
  67

  
	
  Section
  12.10.

  	
   WAIVER OF JURY TRIAL

  	
  68

  
	
  Section
  12.11.

  	
  Judgment
  Currency

  	
  68

  
	
  Section
  12.12.

  	
  Headings

  	
  68

  
	
  Section
  12.13.

  	
  Confidentiality

  	
  68

  
	
  Section
  12.14.

  	
  USA
  Patriot Act Notification

  	
  69

  



 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule
  1.01A

  	
  –

  	
  Pricing
  Schedule

  
	
  Schedule
  1.01B

  	
  –

  	
  Mandatory
  Costs

  
	
  Schedule
  2.01

  	
  –

  	
  Commitments

  
	
  Schedule 2.05

  	
  –

  	
  Existing Letters of Credit

  
	
  Schedule 3.07

  	
  –

  	
  Subsidiaries

  
	
  Schedule 3.09(c)

  	
  –

  	
  Certain Agreements

  
	
  Schedule 3.09(d)

  	
  –

  	
  Priority Indebtedness

  
	
  Schedule 3.09(e)

  	
  –

  	
  Existing Guarantees

  
	
  Schedule 3.13

  	
  –

  	
  Disclosed Matters

  
	
  Schedule 6.01

  	
  –

  	
  Equipment Leases

  
	
  Schedule 6.07

  	
  –

  	
  Existing Restrictions

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  –

  	
  Form of Assignment and Assumption

  
	
  Exhibit B-1

  	
  –

  	
  Form of Opinion of Company’s External
  Counsel

  
	
  Exhibit B-2

  	
  –

  	
  Form of Opinion of Company’s Internal
  Counsel

  
	
  Exhibit B-3

  	
  –

  	
  Form of Opinion of Original Subsidiary
  Borrowers’ Counsel

  
	
  Exhibit C

  	
  –

  	
  Form of Opinion of Administrative Agent’s
  Counsel

  
	
  Exhibit D

  	
  –

  	
  Election to Participate

  
	
  Exhibit E

  	
  –

  	
  Election to Terminate

  
	
  Exhibit F

  	
  –

  	
  Form of Opinion of Eligible Subsidiary’s
  Counsel

  
	
  Exhibit G

  	
  –

  	
  Form of Compliance Certificate

  
	
  Exhibit H

  	
  –

  	
  Joinder Agreement

  



 


iv





















 


CREDIT
AGREEMENT dated as of December 1, 2004 among CUMMINS INC., CUMMINS ENGINE CO.
LTD., CUMMINS POWER GENERATION LTD., NEWAGE INTERNATIONAL LIMITED, the ELIGIBLE
SUBSIDIARIES referred to herein, the ORIGINAL SUBSIDIARY GUARANTORS referred to
herein, the LENDERS party hereto, JPMORGAN CHASE BANK, N.A. (formerly known as
JPMorgan Chase Bank) as Administrative Agent, CITICORP USA, INC., as
Syndication Agent, and BANK OF AMERICA, N.A., THE BANK OF NOVA SCOTIA and THE
ROYAL BANK OF SCOTLAND plc., as Co-Documentation Agents.


 


The parties
hereto agree as follows:


 


ARTICLE 1

DEFINITIONS


 


Section 1.01.  Defined Terms. 
As used in this Agreement, the following terms have the
meanings specified below:


 


“1986 Indenture” means the indenture dated
as of March 1, 1986 between the Company and JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank, successor by merger to The Chase Manhattan Bank
(National Association)).


 


“2002 Indenture” means the indenture dated as of November 20, 2002 between the
Company and BNY Midwest Trust Company, as trustee, register and paying agent.


 


“ABR”, when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the Alternate Base
Rate.


 


“Additional Letter of Credit” means a letter
of credit issued hereunder by the Issuing Bank on or after the Effective Date.


 


“Adjusted LIBO Rate” means, with respect to
any Euro-Currency Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a)(i) the
LIBO Rate for such Interest Period multiplied by (ii) the Statutory
Reserve Rate plus (b) in the case of a Euro-Currency Loan of a Lender which is
lent from a branch or office in England or a Participating Member State, the
Mandatory Costs.


 


“Administrative Agent” means JPMorgan Chase
Bank, N.A. (formerly known as JPMorgan Chase Bank) in its capacity as
administrative agent for the Lenders hereunder.


 


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


 


“Affiliate” means, with respect to a
specified Person, another Person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or is under common Control
with the Person specified.


 





















 


“Agents” means the Administrative Agent, the
Syndication Agent and each Co-Documentation Agent.


 


“Alternate Base Rate” means, for any day, a
rate per annum equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1⁄2 of 1%.  Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.


 


“Alternative Currency” means Euro or Pound
Sterling.


 


“Alternative Currency Loan” means a
Revolving Loan that is made in an Alternative Currency pursuant to the
applicable Borrowing Request.  Any Loan
made in the currency of a Participating Member State before the date on which
such Participating Member State adopts the Euro as its currency (the “Entry Date”) and still outstanding on the
Entry Date shall be prepaid on the last day of the Interest Period applicable
thereto on the Entry Date.


 


“Alternative Currency Exposure” means the
sum of (a) the aggregate Dollar Amount of outstanding Alternative Currency
Loans plus (b) the aggregate Dollar Amount of LC Exposure with respect to
Letters of Credit which are denominated in an Alternative Currency.


 


“Alternative Currency Sublimit” means
$60,000,000.


 


“Applicable Lending Office” means, with
respect to any Lender, (a) in the case of its ABR Loans, its Domestic Lending
Office, (b) in the case of its Euro-Currency Loans, its Euro-Currency Lending
Office and (c) in the case of its Swingline Loans, its Swingline Lending
Office.


 


“Applicable Percentage” means, with respect
to any Lender, the percentage of the total Commitments represented by such
Lender’s Commitment.  If the Commitments
have terminated or expired, the Applicable Percentages shall be determined
based upon the Commitments most recently in effect, giving effect to any
assignments.


 


“Applicable Rate” means, for any day, with
respect to any ABR Loan or Euro-Currency Loan, or with respect to the
commitment fees payable hereunder, as the case may be, the applicable rate per
annum for ABR Loans and Euro-Currency Loans or the Commitment Fee Rate,
respectively, in each case as determined for such day in accordance with the
Pricing Schedule.


 


“Approved Fund” has the meaning assigned to
such term in Section 12.04.


 


“Assignment and Assumption” means an
assignment and assumption entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section 12.04), and accepted
by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent and the Company.


 


“Attributable Value” of any Sale and
Lease-Back Transaction means, at any time, an amount equal to the product of
(a) the greater of (i) the net proceeds of the sale of the property


 


2





















 


subject thereto and (ii) the
fair market value of such property at the time of such sale (as determined by
the board of directors of the Company or by an independent appraiser) and (b) a
fraction the numerator of which equals the number of full years in the term of
the relevant lease remaining at such time and the denominator of which equals
the number of full years in the term of such lease at such time, in each case
computed without regard to any renewal or extension options (other than those
at the option of the lessor) contained in such lease.


 


“Availability Period” means the period from
and including the Effective Date to but excluding the earlier of the Maturity
Date and the date of termination of the Commitments.


 


“Board” means the Board of Governors of the
Federal Reserve System of the United States of America.


 


“Borrower” means the Company, any Original
Subsidiary Borrower or any Eligible Subsidiary, as the context may require, and
their respective successors, and “Borrowers”
means all of the foregoing.  When used in
relation to any Loan or Letter of Credit, references to “the Borrower” are to
the particular Borrower to which such Loan is or is to be made or at whose
request such Letter of Credit is or is to be issued.


 


“Borrowing” means (a) Revolving Loans of the
same Type, made, converted or continued on the same date and, in the case of
Euro-Currency Loans, denominated in the same currency and as to which a single
Interest Period is in effect or (b) a Swingline Loan.


 


“Borrowing Request” means a request by the
Borrower for a Revolving Borrowing in accordance with Section 2.03.


 


“Capital Expenditures” means, for any
period, without duplication, (a) the additions to property, plant and equipment
and other capital expenditures of the Company and its Subsidiaries that are (or
would be) set forth in a consolidated statement of cash flows of the Company and
its Subsidiaries for such period prepared in accordance with GAAP and (b) any
Capital Lease Obligations incurred by the Company and its Subsidiaries during
such period.


 


“Capital Lease Obligations” of any Person
means the obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
Person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.


 


“Change in Control” means that (a) any
Person or group of persons within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934 becomes the beneficial owner, directly or
indirectly, of 30% or more of the outstanding common stock of the Company or
(b) individuals who constitute the Continuing Directors cease for any reason to
constitute at least a majority of the board of directors of the Company (which,
for the purpose of this definition, shall be deemed not to mean any committee
of the board of directors of the Company).


 


“Change in Law” means (a) the adoption of
any law, rule or regulation after the date of this Agreement, (b) any change in
any law, rule or regulation or in the interpretation or


 


3





















 


application thereof by any
Governmental Authority after the date of this Agreement or (c) compliance by
any Lender or the Issuing Bank (or, for purposes of Section 2.14(b), by any
Applicable Lending Office of such Lender or by such Lender’s or the Issuing
Bank’s holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.


 


“Class”, when used in reference to any Loan
or Borrowing, refers to whether such Loan, or the Loans comprising such
Borrowing, are Revolving Loans or Swingline Loans.


 


“CLO” has the meaning assigned to such term
in Section 12.04.


 


“Co-Documentation Agents” means Bank of
America, N.A., The Bank of Nova Scotia and The Royal Bank of Scotland plc., in
their capacity as co-documentation agents in respect of this Agreement.


 


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


 


“Collections” has the meaning specified in
Annex X to the RPA.


 


“Commitment” means, with respect to each
Lender, the commitment of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate Dollar Amount of such Lender’s
Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.08 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section
12.04.  The initial amount of each Lender’s
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Commitment, as
applicable.  The initial aggregate amount
of the Lenders’ Commitments is $650,000,000.


 


“Commitment Fee Rate” means the applicable
rate determined in accordance with the Pricing Schedule.


 


“Company” means Cummins Inc., an Indiana
corporation.


 


“Consolidated” means, as applied to any
financial or accounting term with respect to any Person, such term determined
on a consolidated basis in accordance with GAAP for such Person and all
consolidated subsidiaries thereof.


 


“Consolidated EBITDA” means, for any period,
Consolidated Net Income for such period plus (a) without duplication and to the
extent deducted in determining such Consolidated Net Income, the sum of (i)
consolidated interest expense for such period, (ii) consolidated income tax
expense for such period, (iii) all amounts attributable to depreciation and
amortization for such period and (iv) any extraordinary or non-recurring
non-cash charges for such period and minus (b) without duplication and to the
extent included in determining such Consolidated Net Income, (i) any
extraordinary gains for such period and (ii) any income of any joint venture,
except to the extent that dividends or other distributions were actually paid
by such joint venture to the Company and its Subsidiaries during such period,
all determined on a consolidated basis in accordance with GAAP.


 


4





















 


 “Consolidated
Interest Expense” means, for any period, the interest expense
(including imputed interest expense in respect of Capital Lease Obligations) of
the Company and its Subsidiaries for such period, determined on a Consolidated
basis in accordance with GAAP.


 


“Consolidated Net Income” means, for any
period, the net earnings (loss) of the Company and its Subsidiaries for such
period, computed and Consolidated in accordance with GAAP.


 


“Consolidated Subsidiary” means, at any
date, any Subsidiary or other entity the accounts of which would be
Consolidated with those of the Company in its consolidated financial statements
if such statements were prepared as of such date.


 


“Continuing Director” means any member of
the board of directors of the Company who is (i) a director of the Company on
the date of this Agreement, (ii) nominated by the board of directors of the
Company or (iii) appointed by directors so nominated.


 


“Control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting power, by
contract or otherwise.  “Controlling” and “Controlled” have meanings correlative
thereto.


 


“Credit Party” means each Borrower and each
Subsidiary Guarantor.


 


“Default” means any event or condition which
constitutes an Event of Default or which upon notice, lapse of time or both
would, unless cured or waived, become an Event of Default.


 


“Disclosed Matters” means the actions, suits
and proceedings and the environmental matters disclosed in Schedule 3.13.


 


“Dollars” or “$” refers to lawful money of the United States of America.


 


“Dollar Amount” means, at any time:


 


(a)  with respect to any
Dollar-Denominated Loan, the principal amount thereof then outstanding;


 


(b)  with respect to any
Alternative Currency Loan, the principal amount thereof then outstanding in the
relevant Alternative Currency, converted to Dollars in accordance with Section
2.20(a); and


 


(c)  with respect to any Letter
of Credit or LC Disbursement, (A) if denominated in Dollars, the amount thereof
and (B) if denominated in an Alternative Currency, the amount thereof converted
to Dollars in accordance with Section 2.20(b).


 


“Dollar-Denominated Loan”  means a Loan that is made in Dollars.


 


“Dollar-Denominated Revolving Borrowing”
means a Revolving Borrowing denominated in Dollars.


 


5





















 


“Domestic Business Day” means any day except
a Saturday, Sunday or other day on which commercial banks in New York City are
authorized by law to close.


 


“Domestic Lending Office” means, as to each
Lender, its office located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Domestic Lending Office) or such other office as such Lender may hereafter
designate as its Domestic Lending Office by notice to the Company and the
Administrative Agent.


 


“Effective Date” means the date on which the
conditions specified in Section 4.01 are satisfied (or waived in accordance
with Section 12.02).


 


“Election to Participate” means an Election
to Participate substantially in the form of Exhibit D.


 


“Election to Terminate” means an Election to
Terminate substantially in the form of Exhibit E.


 


“Eligible Subsidiary” means any Wholly-Owned
Consolidated Subsidiary (i) as to which an Election to Participate shall have
been delivered to the Administrative Agent, (ii) as to which an Election to
Terminate with respect to such Election to Participate shall not have been
delivered to the Administrative Agent and (iii) in the case of a Wholly-Owned
Subsidiary that is incorporated under the laws of a jurisdiction other than the
United States or England and Wales in the United Kingdom, which has been
approved by each of the Lenders.  Each
such Election to Participate and Election to Terminate shall be duly executed
on behalf of such Wholly-Owned Consolidated Subsidiary and the Company in such
number of copies as the Administrative Agent may request.  If at any time a Subsidiary theretofore
designated as an Eligible Subsidiary no longer qualifies as a Wholly-Owned
Consolidated Subsidiary, the Company shall cause to be delivered to the
Administrative Agent an Election to Terminate terminating the status of such
Subsidiary as an Eligible Subsidiary. 
The delivery of an Election to Terminate shall not affect any obligation
of an Eligible Subsidiary theretofore incurred or the Company’s guarantee
thereof.  The Administrative Agent shall
promptly give notice to the Lenders of the receipt of any Election to
Participate or Election to Terminate.


 


“Environmental Laws” means all laws, rules,
regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, release or threatened release
of any Hazardous Material or to health and safety matters.


 


“Environmental Liability” means any
liability, contingent or otherwise (including any liability for damages, costs
of environmental remediation, fines, penalties or indemnities), of the Company
or any Subsidiary directly or indirectly resulting from or based upon
(a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release
or threatened release of any Hazardous Materials into the environment or (e)
any contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.


 


6





















 


“Equity Interests” means shares of capital
stock, partnership interests, membership interests in a limited liability
company, beneficial interests in a trust or other equity ownership interests in
a Person, and any warrants, options or other rights entitling the holder
thereof to purchase or acquire any such equity interest.


 


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


 


“ERISA Affiliate” means any trade or
business (whether or not incorporated) that, together with the Borrower, is
treated as a single employer under Section 414(b) or (c) of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.


 


“ERISA Event” means (a) any “reportable
event”, as defined in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived), (b) the existence with respect to any Plan of an
“accumulated funding deficiency” (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived, (c) the filing pursuant
to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan, (d) the incurrence by the Company or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of
any Plan, (e) the receipt by the Company or any ERISA Affiliate from the
PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan, (f)
the incurrence by the Company or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan, or (g) the receipt by the Company or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Company or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.


 


“Euro” means the single currency of the
Participating Member States.


 


“Euro-Currency Business Day” means a Euro
Dollar Business Day; provided
that (a) when used in connection with an Alternative Currency Loan or LC
Exposure denominated in an Alternative Currency, the term “Euro-Currency
Business Day” shall exclude any day on which banks are not open for dealings in
deposits in the applicable currency in the London interbank market and (b) when
used in connection with any Loan or LC Exposure denominated in Euro, the term “Euro-Currency
Business Day” shall exclude any day on which the TARGET payment system is not
open for the settlement of payment in Euro.


 


“Euro-Currency Lending Office” means, as to
each Lender, its office, branch or affiliate located at its address set forth
in its Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Euro-Currency Lending Office) or such other office, branch
or affiliate of such Lender as it may hereafter designate as its Euro-Currency
Lending Office by notice to the Company and the Administrative Agent; provided that any Lender may from time to
time by notice to the Borrower and the Administrative Agent designate separate
Euro-Currency Lending Offices for its Loans in different currencies, in which
case all references


 


7





















 


herein to the Euro-Currency
Lending Office of such Lender shall be deemed to refer to any or all of such
offices, as the context may require.


 


“Euro-Currency Loan” means either a Euro-Dollar
Loan or an Alternative Currency Loan.


 


“Euro-Dollar”, when used in reference to any
Loan or Borrowing made in Dollars, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.


 


“Euro-Dollar Business Day” means any
Domestic Business Day on which commercial banks are open for international
business (including dealings in Dollar deposits) in London.


 


“Event of Default” has the meaning assigned
to such term in Article 8.


 


“Evergreen Letter of Credit” means a Letter
of Credit that is automatically extended unless the Issuing Bank gives notice
to the beneficiary thereof stating that such Letter of Credit will not be
extended.


 


“Excluded Taxes” means, with respect to the
Administrative Agent, any Lender, the Issuing Bank or any other recipient of
any payment to be made by or on account of any obligation of the Borrower under
any Loan Document, (a) income or franchise taxes imposed on (or measured by)
its net income by the United States of America, or by the jurisdiction under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its Applicable Lending
Office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction described in
clause (a) above and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.19(b)), any
withholding tax that (i) is imposed on amounts payable to such Foreign Lender
at the time such Foreign Lender becomes a party to this Agreement (or
designates a new Applicable Lending Office), except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new Applicable Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.16(a) or (ii) is attributable to such Foreign Lender’s
failure to comply with Section 2.16(e).


 


“Exempt SPV” means Cummins, LLC Member,
Inc., Cummins Trade Receivables, LLC and any other special purpose entity that
is (a) created and utilized by the Company or any Subsidiary solely to effect a
securitization transaction, (b) identified by the Company in written notice to
the Administrative Agent as an Exempt SPV and (c) approved in writing by the
Administrative Agent (such approval not to be unreasonably withheld), and their
respective successors.


 


 “Existing
Credit Agreement” means the Credit Agreement dated as of November 5,
2002, as amended, among the Company, Cummins Engine Co. Ltd., Cummins Power
Generation Ltd., Newage International Limited, the Eligible Subsidiaries
referred to therein, the banks parties thereto and JPMorgan Chase Bank, as
Administrative Agent and Collateral Agent, Citicorp USA, Inc., as Syndication
Agent and Bank of America, N.A. and Bank of Nova Scotia, as Co-Documentation
Agents.


 


8





















 


“Existing Letters of Credit” means the
letters of credit issued by the Issuing Bank before the Effective Date and
listed in Schedule 2.05.


 


“Federal Funds Effective Rate” means, for
any day, the weighted average (rounded upwards, if necessary, to the next 1/100
of 1%) of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Domestic Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Domestic Business
Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of
the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.


 


“Financial Officer” means the chief
financial officer, principal accounting officer, treasurer or assistant
treasurer.


 


“Foreign Lender” means any Lender that is
organized under the laws of a jurisdiction other than that in which the Company
is located.  For purposes of this
definition, the United States of America, each State thereof and the District
of Columbia shall be deemed to constitute a single jurisdiction.


 


“Foreign Subsidiary” means any Subsidiary
which is a “controlled foreign corporation” within the meaning of the Code.


 


“GAAP” means generally accepted accounting
principles in the United States as described in Section 1.04.


 


“Governmental Authority” means the
government of the United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government.


 


“Guarantor” means the Company and each
Subsidiary Guarantor.


 


“Guarantee” of or by any Person means any
obligation, contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any Indebtedness of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary obligor so
as to enable the primary obligor to pay such Indebtedness; provided, however, that, the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course
of business.


 


“Hazardous Materials”  means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum


 


9





















 


distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.


 


“Indebtedness” of any Person means, without
duplication, (a) all obligations of such Person for borrowed money or with
respect to deposits or advances of any kind, (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid,
(d) all obligations of such Person under conditional sale or other title
retention agreements relating to property or assets purchased by such Person,
(e) all obligations of such Person issued or assumed as the deferred purchase
price of property or services, (f) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person (i) all obligations of such Person as an account
party in respect of letters of credit and bankers’ acceptances and (j) net
obligations under Swap Agreements.  The
Indebtedness of any Person shall also include the Indebtedness of any
partnership in which such Person is a general partner, except to the extent
that recourse against such general partner (as a general partner) has been
contractually waived or limited. 
Notwithstanding the foregoing, the term “Indebtedness”, in respect of
the Company and its Subsidiaries, shall not include (i) deferred compensation
for officers and employees of the Company or any of its Subsidiaries and (ii)
trade payables incurred in the ordinary course of business.


 


“Indemnified Taxes” means Taxes other than
Excluded Taxes.


 


“Indentures” means each of the 1986
Indenture and the 2002 Indenture.


 


 “Information
Memorandum” means the Confidential Information Memorandum dated
October 2004 relating to the Company and the Transactions.


 


 “Interest
Election Request” means a request by the Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.07.


 


“Interest Payment Date” means (a) with
respect to any ABR Loan (other than a Swingline Loan), the last day of each
March, June, September and December, (b) with respect to any Euro-Currency
Loan, the last day of the Interest Period applicable to the Borrowing of which
such Loan is a part and, in the case of a Euro-Currency Borrowing with an
Interest Period of more than three months’ duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months’ duration
after the first day of such Interest Period and (c) with respect to any
Swingline Loan, the day that such Loan is required to be repaid.


 


“Interest Period” means, with respect to any
Euro-Currency Borrowing, the period commencing on the date of such Borrowing
and ending on the numerically corresponding day in the calendar month that is
one, two, three or six months, or (subject to the availability of matching
deposits for such periods in the London interbank market) nine or
twelve months thereafter, as the Borrower may elect; provided, that: (a) if any Interest Period
would end on a


 


10





















 


day other than a Euro-Currency
Business Day, such Interest Period shall be extended to the next succeeding
Euro-Currency Business Day unless such next succeeding Euro-Currency Business
Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Euro-Currency Business Day; and (b) any
Interest Period pertaining to a Euro-Currency Borrowing that commences on the
last Euro-Currency Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Euro-Currency Business Day of the last
calendar month of such Interest Period. 
For purposes hereof, the date of a Borrowing initially shall be the date
on which such Borrowing is made and thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.


 


“Issuing Bank” means JPMorgan Chase Bank,
N.A. (formerly known as JPMorgan Chase Bank) in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.05(j).  The Issuing Bank may,
in its discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.


 


“Joinder Agreement” means an agreement
substantially in the form of Exhibit H hereto.


 


“LC Disbursement” means a payment made by
the Issuing Bank pursuant to a Letter of Credit.


 


“LC Exposure” means, at any time, the sum of
(a) the aggregate Dollar Amount of the undrawn amount of all outstanding
Letters of Credit at such time plus (b) the aggregate Dollar Amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Borrower
at such time.  The LC Exposure of any
Lender at any time shall be its Applicable Percentage of the total LC Exposure
at such time.


 


“Lenders” means the Persons listed on
Schedule 2.01 and any other Person that shall have become a party hereto
pursuant to an Assignment and Assumption, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and Assumption.  Unless the context otherwise requires, the
term “Lenders” includes the
Swingline Lender.


 


“Letter of Credit” means any Existing Letter
of Credit or Additional Letter of Credit.


 


“LIBO Rate” means, with respect to any
Euro-Currency Borrowing for any Interest Period, the rate appearing on the
Screen at approximately 11:00 a.m., London time, two Euro-Currency Business
Days prior to the commencement of such Interest Period, as the rate for
deposits in Dollars or the relevant Alternative Currency with a maturity
comparable to such Interest Period.  In
the event that such rate is not available for such currency at such time for
any reason, then the “LIBO Rate”
with respect to such Euro-Currency Borrowing for such Interest Period shall be
the rate at which deposits of the relevant currency with a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Euro-Currency
Business Days prior to the commencement of such Interest Period.


 


11





















 


“Lien” means, with respect to any asset, (a)
any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge
or security interest in or on such asset, (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities.


 


“Loan Documents” means this Agreement, each
Joinder Agreement, each Election to Participate and any promissory notes issued
to any Lender hereunder.


 


“Loans” means the loans made by the Lenders
to the Borrowers pursuant to this Agreement.


 


“Mandatory Cost” means an amount determined
in accordance with Schedule 1.01B hereto.


 


“Material Adverse Effect” means a material
adverse effect on (a) the business, assets, operations, prospects or
condition, financial or otherwise, of the Company and the Subsidiaries taken as
a whole, (b) the ability of the Company in any material respect to perform
any of its obligations under the Loan Documents or (c) the rights of or
benefits available to the Lenders under the Loan Documents.


 


“Material Subsidiary” means (i) each of
Cummins Engine IP, Inc., Cummins Filtration IP, Inc., Cummins Intellectual
Property, Inc., Cummins PowerGen IP, Inc., Fleetguard, Inc., Onan Corporation
and Universal Silencer, Inc.; (ii) any other Subsidiary of the Company
organized under the laws of a jurisdiction in the United States which owns
total assets exceeding 5% of the Consolidated total assets of the Company and
its subsidiaries as of the end of the most recent completed fiscal year of the
Company for which financial statements have been delivered pursuant to Section
5.04(a) other than Cummins International Finance Corp., Cummins Trade
Receivables, LLC, Consolidated Diesel Company and Cummins Capital Trust I; provided that an Exempt SPV shall not be a
“Material Subsidiary” by virtue of the operation of this clause (ii); and (iii)
any Subsidiary of the Company that is a guarantor of any notes issued pursuant
to the terms of the Indentures.


 


“Maturity Date” means December 1, 2009, or,
if such day is not a Euro-Currency Business Day, the next preceding
Euro-Currency Business Day.


 


“Moody’s” means Moody’s Investors Service,
Inc.


 


“Multiemployer Plan” means a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.


 


“Original Subsidiary Borrower” means each of
Cummins Engine Co. Ltd., a company incorporated under the laws of England and
Wales in the United Kingdom, Cummins Power Generation Ltd., a company
incorporated under the laws of England and Wales in the United Kingdom, and
Newage International Limited, a company incorporated under the laws of England
and Wales in the United Kingdom.


 


12





















 


“Original Subsidiary Guarantor” has the
meaning set forth in Section 3.03.


 


“Other Taxes” means any and all present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made under any Loan Document
or from the execution, delivery or enforcement of, or otherwise with respect
to, any Loan Document.


 


“Participant” has the meaning set forth in
Section 12.04.


 


“Participating Member States” means those
members of the European Union from time to time which adopt a single, shared
currency.


 


“PBGC” means the Pension Benefit Guaranty
Corporation referred to and defined in ERISA and any successor entity
performing similar functions.


 


“Permitted Onan Lease Obligations” has the
meaning set forth in Section 6.04(b).


 


“Permitted
Receivables Financing” means the receivables financing
to be provided pursuant to the RPA and the RSA.


 


“Permitted Receivables Financing Indebtedness”
has the meaning set forth in Section 6.04(a).


 


“Person” means any natural person,
corporation, limited liability company, trust, joint venture, association,
company, partnership, Governmental Authority or other entity.


 


“Plan” means any employee pension benefit
plan (other than a Multiemployer Plan) subject to the provisions of
Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if
such plan were terminated, would under Section 4069 of ERISA be deemed to
be) an “employer” as defined in Section 3(5) of ERISA.


 


“Pound Sterling” means the lawful currency
of the United Kingdom.


 


“Pricing Schedule” means Schedule 1.01A.


 


“Prime Rate” means the rate of interest per
annum publicly announced from time to time by JPMorgan Chase Bank, N.A. as its
prime rate in effect at its principal office in New York City.  Each change in the Prime Rate shall be effective
from and including the date such change is publicly announced as being
effective.


 


“Priority Indebtedness” shall mean, at any
time, without duplication, (i) the aggregate principal amount of all
Indebtedness of the Company then outstanding which Indebtedness is secured by
Liens on property and assets of the Company or any Subsidiary (other than
Indebtedness secured by Liens described in paragraphs (a) through (k) or (m) of
Section 6.01), (ii) the Attributable Value at such time of all Sale and
Lease-Back Transactions which are restricted by Section 6.02 and (iii) the
aggregate principal amount of all outstanding Indebtedness of all Subsidiaries
(other than (x) Indebtedness hereunder, (y) Indebtedness of


 


13





















 


Subsidiaries payable to the
Company or any Wholly-Owned Consolidated Subsidiary and (z) any unsecured
Guarantee of Indebtedness under notes or bonds issued by the Company; provided that such Subsidiary shall also
have guaranteed the obligations hereunder on or prior to the date on which such
Guarantee is given); provided
that Priority Indebtedness shall not include (a) the Permitted Receivables
Financing Indebtedness or (b) the Permitted Onan Lease Obligations.


 


“Purchasers” has the meaning specified in
the RPA.


 


“Receivables Agent” means General Electric
Capital Corporation, as administrative agent under the RPA.


 


“Receivables Seller” means, collectively,
(i) Cummins Trade Receivables, LLC, a special purpose limited liability company
formed under the laws of Delaware that is wholly-owned by the Company, (ii)
Fleetguard, Inc., (iii) Onan Corporation and (iv) Cummins LLC Member, Inc., a
Delaware corporation that is a wholly-owned subsidiary of the Company.


 


“Register” has the meaning set forth in
Section 12.04.


 


“Regulation D”
shall mean Regulation D of the Board, as the same is from time to time in
effect, and all official rulings and interpretations thereunder or thereof.


 


“Regulation U” shall mean Regulation U of
the Board, as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.


 


“Regulation X” shall mean Regulation X of
the Board, as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.


 


“Related Parties” means, with respect to any
specified Person, such Person’s Affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such Person’s
Affiliates.


 


“Related Security” has the meaning specified
in Annex X to the RPA.


 


“RPA” means that certain Receivables
Purchase and Servicing Agreement dated as of January 15, 2004  among the Receivables Seller, the Company, as
Servicer, the Receivables Agent, Cummins LLC Member, Inc. and the Purchasers,
as such Receivables Purchase and Servicing Agreement may be amended, extended,
renewed, restated, replaced, supplemented or otherwise modified from time to
time with the approval of the Administrative Agent.


 


“RSA” means that certain Receivables Sale
and Contribution Agreement dated as of January 15, 2004  among the Company, the Transferring
Subsidiary and the Receivables Seller, as such Receivables Sale and
Contribution Agreement may be amended, extended, renewed, restated, replaced,
supplemented or otherwise modified from time to time with the approval of the Administrative
Agent.


 


“Required Lenders” means, at any time,
Lenders having Revolving Credit Exposures and unused Commitments representing
more than 50% of the sum of the total Revolving Credit Exposures and unused
Commitments at such time.


 


14





















 


“Restricted Subsidiary” has the meaning set
forth in the 1986 Indenture.


 


“Revolving Credit Exposure” means, with
respect to any Lender at any time, the sum of the outstanding Dollar Amount of
such Lender’s Revolving Loans and the aggregate Dollar Amount of its LC
Exposure and Swingline Exposure at such time.


 


“Revolving Loan” means a Loan made pursuant
to Section 2.03.


 


“S&P” means Standard & Poor’s.


 


“Sale and Lease-Back Transaction” has the
meaning set forth in Section 6.02.


 


“Screen” means (a) with respect to
Dollar-Denominated Loans, Telerate Page 3750 and (b) with respect to
Alternative Currency Loans, the Telerate Page selected by the Administrative
Agent that displays rates for interbank deposits in the appropriate Alternative
Currency or, in the case of either (a) or (b), any successor or substitute
Telerate Page or any successor to or substitute source for such rates,
providing rate quotations comparable to those currently provided on such
Telerate Page, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to deposits in
the London interbank market.


 


“Securitization Financing” means, at any
date, the aggregate amount of financing raised through securitization
transactions by the Company and its Consolidated Subsidiaries and outstanding
at such date to the extent the same do not give rise to Indebtedness of the
Company or a Consolidated Subsidiary.


 


“Significant Subsidiary” means any Material
Subsidiary and any Subsidiary (which term, as used in this definition, includes
such Subsidiary’s subsidiaries) which meets any of the following conditions:


 


(i)                                     the
Company’s and the other Subsidiaries’ investments in and advances to such
Subsidiary exceed 10% of the Consolidated total assets of the Company as of the
end of the most recently completed fiscal year of the Company for which
financial statements have been delivered pursuant to Section 5.04(a);


 


(ii)                                  the
total assets (after intercompany eliminations) of such Subsidiary exceed 10% of
the Consolidated total assets of the Company as of the end of the most recently
completed fiscal year of the Company for which financial statements have been
delivered pursuant to Section 5.04(a);


 


(iii)                               the
net sales of such Subsidiary exceed 10% of the Consolidated net sales of the
Company for the most recently completed fiscal year of the Company for which
financial statements have been delivered pursuant to Section 5.04(a); or


 


(iv)                              such
Subsidiary is deemed to be a Significant Subsidiary pursuant to Section
6.03(b)(i).


 


15





















 


“Spot Rate” means, for any Alternative
Currency on any day, the average of the Administrative Agent’s spot buying and
selling rates for the exchange of such Alternative Currency and Dollars as of
approximately 11:00 A.M. (London time) on such day.


 


“Statutory Reserve Rate” means a fraction
(expressed as a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject for eurocurrency funding (currently referred to
as “Eurocurrency Liabilities” in Regulation D).  Such reserve percentages shall include those
imposed pursuant to Regulation D. 
Euro-Currency Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.


 


“subsidiary” means, with respect to any
Person (herein referred to as the “parent”),
any corporation, association or other business entity (a) of which securities
or other ownership interests representing more than 50% of the ordinary voting
power are, at the time any determination is being made, owned, controlled or
held by the parent or one or more subsidiaries of the parent or (b) which is,
at the time any determination is made, otherwise controlled (by contract or
agreement or otherwise) by the parent or one or more subsidiaries of the
parent.


 


“Subsidiary” means any subsidiary of the
Company.


 


“Subsidiary Guarantor” means each Subsidiary
listed on the signature pages hereof under the caption “Subsidiary Guarantors”
and each Subsidiary that shall, at any time after the date hereof, become a “Subsidiary
Guarantor” pursuant to Section 5.09.


 


“Swap Agreement” means any agreement with
respect to any swap, forward, future or derivative transaction or option or
similar agreement involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk
or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar
plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Company or the
Subsidiaries shall be a Swap Agreement.


 


“Swingline Exposure” means, at any time, the
aggregate Dollar Amount of all Swingline Loans outstanding at such time.  The Swingline Exposure of any Lender at any
time shall be its Applicable Percentage of the total  Swingline Exposure at such time.


 


“Swingline Lender” means JPMorgan Chase
Bank, N.A. (formerly known as JPMorgan Chase Bank) in its capacity as lender of
Swingline Loans hereunder.


 


“Swingline Lending Office” means, as to the
Swingline Lender, its office located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Swingline Lending Office) or such other office as such Lender may
hereafter


 


16





















 


designate as its Swingline
Lending Office by notice to the Company and the Administrative Agent.


 


“Swingline Loan” means a Loan made pursuant
to Section 2.04.


 


“Syndication Agent” means Citicorp USA,
Inc., in its capacity as syndication agent in respect of this Agreement.


 


“Taxes” means any and all present or future
taxes, levies, imposts, duties, deductions, charges or withholdings imposed by
any Governmental Authority.


 


“Total Debt” means the Indebtedness of the
Company and its Subsidiaries, Consolidated in accordance with GAAP; provided that the term “Total Debt” shall
in any event exclude (i) contingent obligations of the Company or any
Subsidiary in respect of letters of credit, unless such letter of credit
supports other Indebtedness of any Person other than the Company and its
Subsidiaries and (ii) net obligations under Swap Agreements.


 


“Transactions” means the execution, delivery
and performance by the Credit Parties of the Loan Documents, the borrowing of
Loans, the use of the proceeds thereof and the issuance of Letters of Credit
hereunder.


 


“Transferred Receivables” has the meaning
specified in Annex X to the RPA.


 


“Transferring Subsidiary” means,
collectively, Onan Corporation and Fleetguard, Inc.


 


“Type”, when used in reference to any Loan
or Borrowing, refers to whether the rate of interest on such Loan, or on the
Loans comprising such Borrowing, is determined by reference to the Adjusted
LIBO Rate or the Alternate Base Rate.


 


“United States” or “U.S.” means the United States of America,
including the States thereof and the District of Columbia, but excluding its
territories and possessions.


 


“Unrestricted Subsidiary” has the meaning
set forth in the 1986 Indenture.


 


“Wholly-Owned Consolidated Subsidiary” means
any Consolidated Subsidiary all of the shares of capital stock or other
ownership interests of which (except directors’ qualifying shares) are at the
time owned by the Company or one or more Wholly-Owned Consolidated
Subsidiaries.


 


“Withdrawal Liability” means liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E
of Title IV of ERISA.


 


Section 1.02.  Classification of Loans and
Borrowings.  For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving
Loan”) or by Type (e.g.,
an “ABR Loan”) or by Class and
Type (e.g., an “ABR Revolving Loan”).  Borrowings also may be classified and
referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., an “ABR Borrowing”) or by Class and Type (e.g., an “ABR Revolving Borrowing”).


 


17





















 


Section 1.03.  Terms Generally.  The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have
the same meaning and effect as the word “shall” and the word “permit” shall be
construed to have the same meaning and effect as the word “suffer”.  Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, amended and restated, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the
words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words “asset” and “property” shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


 


Section 1.04.  Accounting Terms; GAAP.  Unless otherwise specified herein,
all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required
to be delivered hereunder shall be prepared in accordance with GAAP; provided that, if the Company notifies the
Administrative Agent that the Company wishes to amend any provision hereof to
eliminate the effect of any change in GAAP (or if the Administrative Agent
notifies the Company that the Required Lenders wish to amend any provision
hereof for such purpose), then such provision shall be applied on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such provision is amended in a manner
satisfactory to the Company and the Required Lenders.


 


ARTICLE 2

THE CREDITS


 


Section 2.01.  Commitments.  Subject to the terms and
conditions set forth herein, each Lender agrees to make Revolving Loans
denominated in Dollars or in an Alternative Currency as the Borrower elects
pursuant to Section 2.03 to the Borrower from time to time during the
Availability Period; provided
that, immediately after each such Loan is made, (x) the amount of each Lender’s
Revolving Credit Exposure shall not exceed such Lender’s Commitment and (y) the
Alternative Currency Exposure shall not exceed the Alternative Currency
Sublimit.  Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Revolving Loans.


 


Section 2.02.  Loans and Borrowings.  (a)  Each Revolving Loan shall be made
as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments.  The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the


 


18





















 


Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender’s failure to
make Loans as required.


 


(b)                                 Subject
to Section 2.13, each Revolving Borrowing shall be comprised entirely of ABR
Loans or Euro-Currency Loans as the Borrower may request in accordance
herewith.  Each Lender at its option may
make any Euro-Currency Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided
that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.


 


(c)                                  At
the time that any Revolving Borrowing is made, such Borrowing shall be in an
aggregate Dollar Amount that is not less than $10,000,000 and, in the case of a
Dollar-Denominated Borrowing, an integral multiple of $1,000,000; provided that an ABR Revolving Borrowing
may be in an aggregate amount that is equal to the entire unused balance of the
total Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(f).  Each Swingline Loan shall be in a Dollar
Amount that is an integral multiple of $100,000 and not less than
$500,000.  Borrowings of more than one
Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total
of six Euro-Currency Borrowings outstanding.


 


(d)                                 Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to
request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Maturity Date.


 


Section 2.03.  Requests for Revolving Borrowings.  To request a Revolving Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone
(a) in the case of a Euro-Dollar Borrowing, not later than 11:00 a.m., New
York City time, three Euro-Dollar Business Days before the date of the
proposed Borrowing, (b) in the case of an Alternative Currency Borrowing, at
its London office not later than 3:00 p.m. London time, three Euro-Currency Business
Days before the date of the proposed Borrowing or (c) in the case of an
ABR Borrowing, not later than 11:00 a.m., New York City time, one Domestic
Business Day before the date of the proposed Borrowing; provided that any such notice of an ABR
Revolving Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(f) may be given not later than 10:00 a.m., New
York City time, on the date of the proposed Borrowing.  Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery or facsimile to
the Administrative Agent of a written Borrowing Request in a form approved by
the Administrative Agent and signed by the Borrower.  Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section
2.02:


 


(i)                                     the
currency and the aggregate amount (in such currency) of the requested
Borrowing;


 


(ii)                                  the
date of such Borrowing, which shall be a Domestic Business Day in the case of
an ABR Revolving Borrowing and a Euro-Currency Business Day in the case of a
Euro-Currency Borrowing;


 


19





















 


(iii)                               in
the case of a Revolving Borrowing in Dollars, whether such Borrowing is to be
an ABR Borrowing or a Euro-Dollar Borrowing;


 


(iv)                              in
the case of a Euro-Currency Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of
the term “Interest Period”; and


 


(v)                                 the
location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06.


 


If no election
as to the Type of Revolving Borrowing is specified, then the requested
Revolving Borrowing shall be an ABR Borrowing. 
If no Interest Period is specified with respect to any requested
Euro-Currency Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. 
Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the
requested Borrowing.


 


Section 2.04.  Swingline Loans.  (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Borrower in Dollars or in an Alternative Currency, as the Borrower
elects, from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding a Dollar
Amount equal to $50,000,000, (ii) the total Revolving Credit Exposures of all
Lenders exceeding the total Commitments or (iii) the Alternative Currency
Exposure exceeding the Alternative Currency Sublimit; provided that the Swingline Lender shall
not be required to make a Swingline Loan to refinance an outstanding Swingline
Loan.  Within the foregoing limits and
subject to the terms and conditions set forth herein, the Company may borrow,
prepay and reborrow Swingline Loans.


 


(b)                                 To
request a Swingline Loan, the Borrower shall notify the Administrative Agent of
such request by telephone (confirmed by facsimile), (i) in the case of an
Alternative Currency Borrowing, at its London office no later than 12:00 p.m.
London time on the date of the proposed Swingline Loan, and (ii) in the case of
a Dollar-Denominated Borrowing, not later than 2:00 p.m., New York City
time, on the day of a proposed Swingline Loan. 
Each such notice shall be irrevocable and shall specify the requested
date (which shall be a Domestic Business Day in the case of Dollar-Denominated
Loans or a Euro-Currency Business Day in the case of an Alternative Currency
Loan), currency and amount of the requested Swingline Loan and the location and
number of the Borrower’s account to which the funds are to be disbursed.  The Administrative Agent will promptly advise
the Swingline Lender of any such notice received from the Borrower.  The Swingline Lender shall make each Swingline
Loan available to the Borrower by means of a credit to the account designated
by the Borrower for such purpose (or, in the case of a Swingline Loan made to
finance the reimbursement of an LC Disbursement as provided in Section 2.05(f),
by remittance to the Issuing Bank) by (i) 4:00 p.m. London time, in the case of
Alternative Currency Loans and (ii) 4:00 p.m., New York City time, on the
requested date of such Swingline Loan.


 


20





















 


(c)                                  The
Swingline Lender may by written notice given to the Administrative Agent not
later than (i) 10:00 a.m., London time, on any Euro-Currency Business Day, in
the case of Alternative Currency Loans or (ii) 10:00 a.m., New York City time,
on any Domestic Business Day, in the case of Dollar-Denominated Loans, require
the Lenders to acquire participations on such Euro-Currency Business Day or
Domestic Business Day (as applicable) in all or a portion of the Swingline
Loans outstanding.  Such notice shall specify
the aggregate amount of Swingline Loans in which Lenders will participate.  Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each  Lender, specifying in such notice such Lender’s
Applicable Percentage of such Swingline Loan or Swingline Loans.  Each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s
Applicable Percentage of such Swingline Loan or Swingline Loans.  Each Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.  Each Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Lenders.  The Administrative Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender
from the Borrower (or other party on behalf of the Borrower) in respect of a
Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear; provided
that any such payment so remitted shall be repaid to the Swingline Lender or to
the Administrative Agent, as applicable, if and to the extent such payment is
required to be refunded to the Borrower for any reason.  The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not relieve the Borrower of any default
in the payment thereof.


 


Section 2.05.  Letters of Credit.  (a) Existing Letters of Credit.  On the Effective Date, without further action
by any party hereto, the Issuing Bank shall be deemed to have granted to each
Lender, and each Lender shall be deemed to have acquired from the Issuing Bank,
a participation in each Existing Letter of Credit equal to such Lender’s
Applicable Percentage of (i) the aggregate amount available to be drawn
thereunder and (ii) the aggregate unpaid amount of any outstanding
reimbursement obligations in respect thereof. 
Such participations shall be on all the same terms and conditions as
participations granted in Additional Letters of Credit under Section 2.05(e).


 


(b)                                 General.  Subject to the terms and conditions set forth
herein, any Borrower may request the issuance of Additional Letters of Credit
denominated in Dollars or in an Alternative Currency for its own account in a
form acceptable to the Administrative Agent and the Issuing


 


21





















 


Bank, at any time and from time
to time during the Availability Period. 
In the event of any inconsistency between the terms and conditions of
this Agreement and the terms and conditions of any form of letter of credit application
or other agreement submitted by the Borrower to, or entered into by the
Borrower with, the Issuing Bank relating to any Additional Letter of Credit,
the terms and conditions of this Agreement shall control.


 


(c)                                  Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of an Additional
Letter of Credit (or the amendment, renewal or extension of an outstanding
Letter of Credit), the Borrower shall hand deliver or facsimile (or transmit by
electronic communication, if arrangements for doing so have been approved by
the Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably
in advance of the requested date of issuance, amendment, renewal or extension)
a notice requesting the issuance of an Additional Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall
be a Euro-Currency Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (d) of this Section), the
currency and amount in such currency of such Additional Letter of Credit, the
name and address of the beneficiary thereof and such other information as shall
be necessary to prepare, amend, renew or extend such Letter of Credit.  If requested by the Issuing Bank, the
Borrower also shall submit a letter of credit application on the Issuing Bank’s
standard form in connection with any request for a Letter of Credit.  A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension
(i) the LC Exposure shall not exceed $200,000,000 (ii) the Alternative
Currency Exposure shall not exceed the Alternative Currency Sublimit and (iii)
the total Revolving Credit Exposures of all Lenders shall not exceed the total
Commitments.


 


(d)                                 Expiration
Date.  Each Letter of Credit shall expire
at or prior to the close of business on the earlier of (i) the date one
year after the date of the issuance of such Additional Letter of Credit or, in
the case of any renewal or extension thereof, one year after such renewal or
extension (or, if any such day is not a Euro-Currency Business Day, the next
preceding Euro-Currency Business Day) and (ii) the date that is five
Euro-Currency Business Days prior to the Maturity Date.  The expiry date of any Letter of Credit may be extended from time
to time (i) at the Borrower’s request in accordance with (c) above or (ii) in the
case of an Evergreen Letter of Credit, automatically, in each case so long as
such extension is for a period not exceeding one year, does not extend beyond
the date referred to in clause (ii) of the immediately preceding sentence and
is granted (or the last day on which notice can be given to prevent such
extension occurs) no earlier than three months before the then existing expiry
date thereof.


 


(e)                                  Participations.  By the issuance of an Additional Letter of
Credit (or an amendment to a Letter of Credit increasing the amount thereof)
and without any further action on the part of the Issuing Bank or the Lenders,
the Issuing Bank hereby grants to each Lender, and each Lender hereby acquires
from the Issuing Bank, a participation in such Letter of Credit equal to such
Lender’s Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit.  In
consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank in the applicable currency, such Lender’s
Applicable Percentage of each LC Disbursement


 


22





















 


made by the Issuing Bank and
not reimbursed by the Borrower on the date due as provided in paragraph (f) of
this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason.  Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.


 


(f)                                    Reimbursement.  If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement in the currency of such LC Disbursement (i) if such LC
Disbursement shall have been denominated in Dollars, not later than
2:00 p.m., New York City time, on the date that such LC Disbursement is
made, if the Borrower shall have received notice of such LC Disbursement prior
to 9:00 a.m., New York City time, on such date, or, if such notice has not been
received by the Borrower prior to such time on such date, then not later than
2:00 p.m., New York City time, on (x) the Domestic Business Day that the
Borrower receives such notice, if such notice is received prior to 9:00 a.m.,
New York City time, on the day of receipt or (y) the Domestic Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt and (ii) if
such LC Disbursement shall have been denominated in an Alternative Currency,
not later than 12:00 noon, London time, on the Euro-Currency Business Day
following the date that such LC Disbursement is made, if the Borrower shall
have received notice of such LC Disbursement prior to 4:00 p.m., London time,
on the date such LC Disbursement is made, or, if such notice has not been
received by the Borrower prior to such time on such date, then not later than
12:00 noon, London time, on (x) the Euro-Currency Business Day following the
date that the Borrower receives such notice, if such notice is received prior
to 4:00 p.m., London time, on the day of receipt or (y) the second
Euro-Currency Business Day immediately following the day that the Borrower
receives such notice, if such notice is not received prior to such time on the
day of receipt; provided that the
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03 or 2.04 that such payment be financed with (A)
in the case of LC Disbursements denominated in Dollars, an ABR Revolving
Borrowing (of not less than $10,000,000) or a Swingline Loan (of not less than
$500,000) in an equivalent Dollar amount and (B) in the case of LC
Disbursements denominated in an Alternative Currency, a Euro-Currency Borrowing
for an equivalent amount in such currency and, to the extent so financed, the
Borrower’s obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan or Euro-Currency
Loan.  If the Borrower fails to make such
payment when due, the Administrative Agent shall notify each Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender’s Applicable Percentage thereof.  Promptly following receipt of such notice,
each Lender shall pay to the Administrative Agent its Applicable Percentage of
the payment then due from the Borrower, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall
apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Issuing Bank the amounts so received by it from the
Lenders.  Promptly following receipt by
the Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
Issuing Bank or, to the extent that


 


23





















 


Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear.  Any payment made by a Lender pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the
funding of ABR Revolving Loans or a Swingline Loan as contemplated above) shall
not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.


 


(g)                                 Obligations
Absolute.  The Borrower’s obligation
to reimburse LC Disbursements as provided in paragraph (f) of this Section
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability
of any Letter of Credit or this Agreement, or any term or provision therein,
(ii) any draft or other document presented under a Letter of Credit proving to
be forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a
Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower’s obligations
hereunder.  Neither the Administrative
Agent, the Lenders nor the Issuing Bank, nor any of their Related Parties,
shall have any liability or responsibility by reason of or in connection with
the issuance or transfer of any Letter of Credit or any payment or failure to
make any payment thereunder (irrespective of any of the circumstances referred
to in the preceding sentence), or any error, omission, interruption, loss or
delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank; provided that the foregoing shall not be
construed to excuse the Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Bank’s
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that, in
the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such
determination.  In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.


 


(h)                                 Disbursement
Procedures.  The Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit.  The Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by facsimile) of
such demand for payment and whether the Issuing Bank has made or will make an
LC Disbursement thereunder; provided
that any failure to give or delay


 


24





















 


in giving such notice shall not
relieve the Borrower of its obligation to reimburse the Issuing Bank and the
Lenders with respect to any such LC Disbursement.


 


(i)                                     Interim
Interest.  If the Issuing Bank shall
make any LC Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses
such LC Disbursement, (i) if such amount is denominated in Dollars, at the rate
per annum then applicable to ABR Revolving Loans, (ii) if such amount is
denominated in an Alternative Currency, at the rate per annum equal to the sum
of the Applicable Rate with respect to Euro-Currency Loans plus the rate per
annum at which one-day deposits in relevant currency in an amount approximately
equal to such unpaid amount are offered by the principal London office of the
Administrative Agent in the London Interbank market for such day; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (f) of this
Section, then Section 2.12(d) shall apply. 
Interest accrued pursuant to this paragraph shall be for the account of
the Issuing Bank, except that interest accrued on and after the date of payment
by any Lender pursuant to paragraph (f) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.


 


(j)                                     Replacement
of the Issuing Bank.  The Issuing
Bank may be replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank.  The Administrative Agent shall
notify the Lenders of any such replacement of the Issuing Bank.  At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for the account of
the replaced Issuing Bank pursuant to Section 2.11(b).  From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term “Issuing
Bank” shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require.  After the replacement of an
Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement with respect to Letters of Credit issued by it prior to
such replacement, but shall not be required to issue additional Letters of
Credit.


 


(k)                                  Cash
Collateralization.  If any Event of
Default shall occur and be continuing, on the Domestic Business Day that the
Company receives notice from the Administrative Agent on behalf of the Required
Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC
Exposure representing greater than 50% of the total LC Exposure) demanding the
deposit of cash collateral pursuant to this paragraph, the Company shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash in
the relevant currency equal to the LC Exposure as of such date plus any accrued
and unpaid interest thereon; provided
that the obligation to deposit such cash collateral will become effective
immediately, and such deposit will become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to any Borrower described in clause (g) or (h) of Article 8.  Such deposit shall be held by the Administrative
Agent as collateral for the payment and performance of the obligations of the
Borrower under this Agreement. The Company hereby grants a lien and


 


25





















 


security interest in, and sole
and exclusive dominion and control, including the exclusive right of
withdrawal, over such account to the Administrative Agent.  Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
sole discretion of the Administrative Agent and at the Borrowers’ risk and
expense, such deposits shall not bear interest. 
Interest or profits, if any, on such investments shall accumulate in
such account.  Moneys in such account
shall be applied by the Administrative Agent to reimburse the Issuing Bank for
LC Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrowers for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrowers under this Agreement.  If the Company is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event
of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Company within three Business Days after all Events of Default
have been cured or waived.


 


Section 2.06.  Funding of Borrowings. (a)  Each Lender shall make each Loan to be made by
it hereunder on the proposed date thereof:


 


(i)                                     if
such Borrowing is to be made in Dollars, not later than 12:00 Noon (New York
City time), in funds immediately available in New York City, to the account of
the Administrative Agent most recently designated for such purpose by notice to
the Lenders; provided that
Swingline Loans shall be made as provided in Section 2.04; or


 


(ii)                                  if
such Borrowing is to be made in an Alternative Currency, not later than 12:00
Noon (London time), in such Alternative Currency (in such funds as may then be
customary for the settlement of international transactions in such Alternative
Currency) to the account of the Administrative Agent as shall have most
recently been designated by the Administrative Agent for such purpose by notice
to the Lenders.


 


The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
designated by the Borrower in the applicable Borrowing Request; provided that Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(f) shall be
remitted by the Administrative Agent to the Issuing Bank.


 


(b)                                 Unless
the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate (if such amount was
distributed in


 


26





















 


Dollars) or the rate per annum
at which one-day deposits in the relevant currency are offered by the principal
London office of the Administrative Agent in the London interbank market (if
such amount was distributed in an Alternative Currency).


 


Section 2.07.  Interest Elections.  (a) Each Dollar-Denominated
Revolving Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Euro-Dollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request.  Thereafter, the Borrower may elect to convert
such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Euro-Dollar Borrowing, may elect Interest Periods therefor, all as
provided in this Section.  The Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.  This Section shall not apply to Swingline
Borrowings, which may not be converted or continued.


 


(b)                                 To
make an election pursuant to Section 2.07(a), the Borrower shall notify the Administrative
Agent of such election by telephone by the time that a Borrowing Request would
be required under Section 2.03 if the Borrower were requesting a
Dollar-Denominated Loan of the Type resulting from such election to be made on
the effective date of such election. 
Each such telephonic Interest Election Request shall be irrevocable and
shall be confirmed promptly by hand delivery or facsimile to the Administrative
Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.


 


(c)                                  Each
telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:


 


(i)                       the
Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to paragraphs (iii) and (iv) below shall
be specified for each resulting Borrowing);


 


(ii)                    the effective
date of the election made pursuant to such Interest Election Request, which
shall be a Domestic Business Day in the case of an ABR Borrowing and a
Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing;


 


(iii)                 whether the
resulting Borrowing is to be an ABR Borrowing or a Euro-Dollar Borrowing; and


 


(iv)                if the resulting
Borrowing is a Euro-Dollar Borrowing, the Interest Period to be applicable
thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.


 


If any such
Interest Election Request requests a Euro-Dollar Borrowing but does not specify
an Interest Period, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration.


 


27





















 


(d)                                 Promptly
following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of
each resulting Borrowing.


 


(e)                                  If
the Borrower fails to deliver a timely Interest Election Request with respect
to a Euro-Dollar Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at the end
of such Interest Period such Borrowing shall be converted to an ABR
Borrowing.  Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Revolving Borrowing may be converted to or continued as a Euro-Dollar Borrowing
and (ii) unless repaid, each Euro-Dollar Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.


 


(f)                                    Each
Alternative Currency Loan shall have an initial Interest Period as specified in
the applicable Borrowing Request. 
Thereafter, the Borrower may elect to continue such Borrowing and may
elect Interest Periods therefore, by notifying the Administrative Agent of such
election by telephone by the time and at the office that a Borrowing Request
would be required under Section 2.03 if the Borrower were requesting an
Alternative Currency Loan to be made on the effective date of such
election.  The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing.  Promptly following receipt of such Interest
Election Request the Administrative Agent shall advise each Lender of the details
thereof and of such Lender’s portion of each resulting Borrowing.  If the Borrower fails to deliver a timely
Interest Election Request with respect to an Alternative Currency Borrowing
prior to the end of the Interest Period applicable thereto, or any Interest
Election Request fails to specify an Interest Period, then unless such
Borrowing is repaid as provided herein, the Borrower shall be deemed to have
elected a subsequent Interest Period of one month’s duration.


 


Section 2.08.  Termination and Reduction of
Commitments.  (a) Unless previously
terminated, the Commitments shall terminate on the Maturity Date.


 


(b)                                 The
Company may at any time terminate, or from time to time reduce, the
Commitments; provided that (i)
each reduction of the Commitments shall be in an amount that is an integral
multiple of $5,000,000 and not less than $10,000,000 and (ii) the Company shall
not terminate or reduce the Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.10, the total
Revolving Credit Exposures of all Lenders would exceed the total Commitments.


 


(c)                                  The
Company shall notify the Administrative Agent of any election to terminate or
reduce the Commitments under paragraph (b) of this Section at least five
Domestic Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Company pursuant
to this Section shall be irrevocable; provided
that a notice of termination of the Commitments


 


28





















 


delivered by the Company may
state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Company (by notice
to the Administrative Agent on or prior to the specified effective date) if
such condition is not satisfied.  Any
termination or reduction of the Commitments shall be permanent.  Each reduction of the Commitments shall be
made ratably among the Lenders in accordance with their respective Commitments.


 


Section 2.09.  Repayment of Loans; Evidence of
Debt.  (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Revolving Loan on the
Maturity Date, and (ii) to the Swingline Lender the then unpaid principal
amount of each Swingline Loan on the earlier of the Maturity Date and the date
which is 15 Domestic Business Days after such Swingline Loan is made.


 


(b)                                 Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.


 


(c)                                  The
Administrative Agent shall maintain accounts in which it shall record
(i) the currency and amount of each Loan made hereunder, the Class and
Type thereof and the Interest Period applicable thereto, (ii) the amount
of any principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of the Lenders
and each Lender’s share thereof.


 


(d)                                 The
entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima
facie evidence of the existence and amounts of the obligations
recorded therein; provided that
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrowers to repay the Loans in accordance with the terms of this Agreement.


 


(e)                                  Any
Lender may request that Loans made by it to any Borrower be evidenced by a
promissory note.  In such event, such
Borrower shall prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form approved by the Administrative
Agent and the Borrower.  Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 12.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and
its registered assigns).


 


Section 2.10.  Prepayment of Loans.  (a)  The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to prior notice in accordance with paragraph (b) of this
Section.


 


(b)                                 The
Borrower shall notify the Administrative 
Agent (and, in the case of prepayment of a Swingline Loan, the Swingline
Lender) by telephone (confirmed by facsimile)


 


29





















 


of any prepayment hereunder (i)
in the case of prepayment of a Euro-Dollar Borrowing, not later than 11:00
a.m., New York City time, three Euro-Dollar Business Days before the date of
prepayment, (ii) in the case of prepayment of an Alternative Currency
Borrowing, to its London office not later than 11:00 a.m. London time three
Euro-Currency Business Days before the date of prepayment, (iii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York
City time, one Domestic Business Day before the date of prepayment or
(iv) in the case of prepayment of a Swingline Loan, not later than 12:00
noon, New York City time (London time if such Swingline Loan is denominated in
Alternative Currencies or made to a Borrower other than the Company), on the
date of prepayment.  Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment
is given in connection with a conditional notice of termination of the
Commitments as contemplated by Section 2.08, then such notice of prepayment may
be revoked if such notice of termination is revoked in accordance with Section
2.08.  Promptly following receipt of any
such notice relating to a Revolving Borrowing, the Administrative Agent shall
advise the Lenders of the contents thereof.  
Each partial prepayment of any Revolving Borrowing shall be in an amount
that would be permitted in the case of an advance of a Revolving Borrowing of
the same Type as provided in Section 2.02. 
Each prepayment shall be applied ratably to the Loans included in the
prepaid Borrowing.  Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.12.


 


Section 2.11.  Fees. (a)  The Company
agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee in Dollars, which shall accrue at the Applicable Rate on the
average daily unused amount of the Commitment of such Lender during the period
from and including the Effective Date to but excluding the date on which such
Commitment terminates.  Accrued
commitment fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date
hereof.  All commitment fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).


 


(b)                                 The
Borrower agrees to pay (i) to the Administrative Agent for the account of each
Lender a participation fee in Dollars with respect to its participations in
Letters of Credit, which shall accrue at the same Applicable Rate used to
determine the interest rate applicable to Euro-Dollar Loans on such Lender’s
average daily LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender’s
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure and (ii) to the Issuing Bank a fronting fee in Dollars, which shall
accrue at the rate of 0.125% per annum on the average daily LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date of termination of the Commitments and the date on which there
ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees with respect
to the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. 
Participation fees and fronting fees accrued through and including the
last day of March, June, September and December of each year shall be payable
on the third Domestic Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees shall be payable on the date on
which the Commitments terminate and


 


30





















 


any such fees accruing after
the date on which the Commitments terminate shall be payable on demand.  Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand.  All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).


 


(c)                                  All
fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees
payable to it) for distribution, in the case of commitment fees and
participation fees, to the Lenders.  Fees
paid shall not be refundable under any circumstances.


 


Section 2.12.  Interest.  (a) The Loans comprising each
ABR Borrowing shall bear interest at the Alternate Base Rate plus the
Applicable Rate.


 


(b)                                 The
Loans comprising each Euro-Currency Borrowing shall bear interest at the Adjusted
LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate.


 


(c)                                  The
Loans comprising each Swingline Borrowing shall bear interest, at the election
of the applicable Borrower, at (x) solely in the case of Swingline Loans denominated
in Dollars, the Alternative Base Rate plus the Applicable Rate, (y) the
Adjusted LIBO Rate that would be applicable to Euro-Currency Loans with a
one-month Interest Period commencing on the date such loan is made, plus the
Applicable Rate, or (z) at such other rate as shall from time to time be agreed
between the Swingline Lender and the applicable Borrower.


 


(d)                                 Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or other
amount payable by the Borrower hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the  rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section or (ii) in the case of any
other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph
(a) of this Section.


 


(e)                                  Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the
Commitments; provided that (i)
interest accrued pursuant to paragraph (d) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan (other
than a prepayment of an ABR Revolving Loan prior to the end of the Availability
Period), accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Euro-Currency Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.


 


(f)                                    All
interest hereunder shall be computed on the basis of a year of 360 days, except
that (i) interest computed by reference to the Alternate Base Rate at times
when the Alternate Base Rate is based on the Prime Rate shall be computed on
the basis of a year of 365 days (or 366 days in a leap year) and (ii) interest
computed with respect to Loans denominated in Pound


 


31





















 


Sterling shall be computed on
the basis of a year of 365 days, and in each case shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).  The applicable Alternate Base Rate
or Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.


 


Section 2.13.  Alternate Rate of Interest.  If prior to the commencement of
any Interest Period for a Euro-Currency Borrowing:


 


(a)                                  the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for
ascertaining the Adjusted LIBO Rate for deposits in the relevant currency for
such Interest Period; or


 


(b)                                 the
Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate applicable to Euro-Currency Borrowings in the relevant currency for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
(or Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;


 


then the
Administrative Agent shall give notice thereof to the Company and the Lenders
by telephone or facsimile as promptly as practicable thereafter and, until the
Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist (which the
Administrative Agent shall do promptly after becoming aware thereof), (i) any
Interest Election Request that requests the conversion of any Revolving
Borrowing to, or continuation of any Revolving Borrowing as, a Euro-Currency
Borrowing of the affected currency shall be ineffective and (ii) if any
Borrowing Request requests a Euro-Currency Borrowing in the affected currency,
such Borrowing shall be made as an ABR Borrowing in an equal Dollar Amount.


 


Section 2.14.  Increased Costs.  (a) If any Change in Law shall


 


(i)                                     impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender or its Applicable Lending Office (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank; or


 


(ii)                                  impose
on any Lender (or its Applicable Lending Office) or the Issuing Bank or the
London interbank market any other condition affecting this Agreement or
Euro-Currency Loans made by such Lender or any Letter of Credit or
participation therein;


 


and the result
of any of the foregoing shall be to increase the cost to such Lender (or its
Applicable Lending Office) of making or maintaining any Euro-Currency Loan (or
of maintaining its obligation to make any such Loan) or to increase the cost to
such Lender (or its Applicable Lending Office) or the Issuing Bank of
participating in, issuing or maintaining any Letter of Credit or to reduce the
amount of any sum received or receivable by such Lender (or its Applicable
Lending Office) or the Issuing Bank hereunder (whether of principal, interest
or otherwise), then the Company will pay (or will cause the relevant Borrower
to pay) to such Lender or the Issuing Bank, as the case may be, such additional
amount or amounts as will


 


32





















 


compensate
such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.


 


(b)                                 If
any Lender or the Issuing Bank determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of
return on such Lender’s or the Issuing Bank’s capital or on the capital of such
Lender’s or the Issuing Bank’s holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a
level below that which such Lender or the Issuing Bank or such Lender’s or the
Issuing Bank’s holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s or the Issuing Bank’s policies and the
policies of such Lender’s or the Issuing Bank’s holding company with respect to
capital adequacy), then from time to time the Company will pay (or will cause
the relevant Borrower to pay) to such Lender or the Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any
such reduction suffered.


 


(c)                                  A
certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company,
as the case may be, as specified in paragraph (a) or (b) of this Section
and the calculation of such amount or amounts in reasonable detail shall be
delivered to the Company and shall be conclusive absent manifest error.  The Company or the relevant Borrower, as the
case may be, shall pay such Lender or the Issuing Bank, as the case may be, the
amount shown as due on any such certificate within 10 days after receipt
thereof.


 


(d)                                 Failure
or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the
Issuing Bank’s right to demand such compensation, as the case may be; provided that the Borrower shall not be
required to compensate a Lender or the Issuing Bank pursuant to this Section
2.14 for any increased costs or reductions incurred more than 120 days prior to
the date that such Lender or the Issuing Bank, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s or the Issuing Bank’s intention to claim compensation
therefor; provided  further that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the 120-day
period referred to above shall be extended to include the period of retroactive
effect thereof.


 


Section 2.15.  Break Funding Payments.  In the event of (a) the payment of
any principal of any Euro-Currency Loan (or Swingline Loan that is not an ABR
Loan) other than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion of any
Euro-Currency Loan other than on the last day of the Interest Period applicable
thereto, (c) the failure to borrow, convert, continue or prepay any
Euro-Currency Loan on the date specified in any notice delivered pursuant
hereto (regardless of whether such notice may be revoked under Section 2.10(b)
and is revoked in accordance therewith) or (d) the assignment of any
Euro-Currency Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19,
then, in any such event, the relevant Borrower shall compensate each Lender for
the loss, cost and expense attributable to such event.  Such loss, cost or expense to any Lender
shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which


 


33





















 


would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement
of such period, for deposits in Dollars or other applicable currency of a
comparable amount and period from other banks in the London interbank
market.  A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error.  The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.


 


Section 2.16.  Taxes. (a) Any and all payments by or on
account of any obligation of any Borrower under the Loan Documents shall be
made free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if any
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Borrower shall
make such deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.


 


(b)                                 In
addition, each Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.


 


(c)                                  The
relevant Borrower shall indemnify the Administrative Agent, each Lender and the
Issuing Bank, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by the Administrative Agent, such
Lender or the Issuing Bank, as the case may be, on or with respect to any payment
by or on account of any obligation of such Borrower under the Loan Documents
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority; provided, that the relevant Borrower shall not be obligated
to indemnify the Administrative Agent, such Lender or the Issuing Bank, as the
case may be, pursuant to this Section in respect of penalties, interest or
similar liabilities arising therefrom or with respect thereto to the extent
such penalties, interest or similar liabilities are attributable to the gross
negligence or willful misconduct by the Administrative Agent, such Lender or
the Issuing Bank.  A certificate as to
the amount of such payment or liability delivered to the relevant Borrower by a
Lender or the Issuing Bank, or by the Administrative Agent on its own behalf or
on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest
error.


 


(d)                                 As
soon as practicable after any payment of Indemnified Taxes or Other Taxes by
any Borrower to a Governmental Authority, such Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority


 


34





















 


evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.


 


(e)                                  Any
Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which a Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under any Loan Document shall deliver to the Company (with a copy to
the Administrative Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
or reasonably requested by the Company as will permit such payments to be made
without withholding or at a reduced rate.


 


(f)                                    If
the Administrative Agent or a Lender determines, in its sole discretion, that
it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by any Borrower or with respect to which any Borrower has paid
additional amounts pursuant to this Section 2.16, it shall pay over such refund
to such Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by such Borrower under this Section 2.16 with respect
to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses with respect to such refund of the Administrative Agent
or such Lender and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided, that such Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent or
such Lender in the event the Administrative Agent or such Lender is required to
repay such refund to such Governmental Authority. This Section shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.


 


Section 2.17.  Foreign Subsidiary Costs.  If the cost to any Lender of
making or maintaining any Loan to or of issuing or maintaining any Letter of
Credit for the account of an Eligible Subsidiary is increased, or (except as
permitted by Section 2.16), the amount of any sum received or receivable by any
Lender (or its Applicable Lending Office) is reduced in each case by an amount
deemed by such Lender to be material, by reason of the fact that such Eligible
Subsidiary is incorporated in, or conducts business in, a jurisdiction outside
the United States, the Company shall indemnify such Lender for such increased
cost or reduction within 10 days after demand by such Lender (with a copy to
the Administrative Agent).  A certificate
of such Lender claiming compensation under this Section 2.17 and setting forth
the additional amount or amounts to be paid to it hereunder shall be conclusive
in the absence of manifest error.


 


Section 2.18.  Payments Generally; Pro Rata Treatment;
Sharing of Set-offs. (a) The Borrower shall make each payment of
principal of, and interest on, the Dollar-Denominated Loans, of LC Exposures
denominated in Dollars and of fees hereunder, not later than 12:00 Noon (New
York City time) on the date when due, in Dollars in funds immediately available
in New York City.  The Borrower shall
make each payment of principal of, and interest on, the Alternative Currency
Loans and of LC Exposures denominated in an Alternative Currency in the
relevant Alternative Currency in such funds as may then be customary for the
settlement of international transactions in such Alternative Currency.  Each such payment shall be made without
reduction by reason of any set-off or counterclaim.  Any amounts received after such


 


35





















 


time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Domestic Business Day (in the case of amounts denominated in
Dollars) or Euro-Currency Business Day (in the case of amounts denominated in
an Alternative Currency) for purposes of calculating interest thereon.  All such payments shall be made to the
Administrative Agent at its offices at 270 Park Avenue, New York, New York,
except payments to be made directly to the Issuing Bank or Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.14,
2.15, 2.16, 2.17 and 12.03 shall be made directly to the Persons entitled
thereto.  The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof.  If any payment hereunder shall be due on a
day that is not a Domestic Business Day (in the case of ABR Loans and LC
Exposures denominated in Dollars) or a Euro-Currency Business Day (in the case
of Euro-Currency Loans and LC Exposures denominated in an Alternative
Currency), the date for payment shall be extended to the next succeeding
Domestic Business Day (in the case of ABR Loans and LC Exposures denominated in
Dollars) or Euro-Currency Business Day 
(in the case of Euro-Currency Loans and LC Exposures denominated an
Alternative Currency), and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension.


 


(b)                                 If
at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.


 


(c)                                  If
any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Revolving Loans or participations in LC Disbursements or Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the aggregate
amount of its Revolving Loans and participations in LC Disbursements and
Swingline Loans and accrued interest thereon than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans and
participations in LC Disbursements and Swingline Loans of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans and participations in LC
Disbursements and Swingline Loans; provided
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, 
such participations shall be rescinded and the purchase price restored
to the extent of such recovery, without interest, and (ii) the provisions of
this paragraph shall not be construed to apply to any payment made by any
Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Loans or participations in LC
Disbursements to any assignee or participant, other than to the Company or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply).  Each Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender


 


36





















 


acquiring a participation
pursuant to the foregoing arrangements may exercise against such Borrower
rights of set-off and counterclaim with respect to such participation as fully
as if such Lender were a direct creditor of such Borrower in the amount of such
participation.


 


(d)                                 Unless
the Administrative Agent shall have received notice from the Company or the
applicable Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that a Borrower will not make such payment, the Administrative Agent
may assume that such Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
or the Issuing Bank, as the case may be, the amount due.  In such event, if such Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at (i) the
Federal Funds Effective Rate (if such distribution was made in Dollars) or (ii)
the rate per annum at which one-day deposits in the relevant currency are
offered by the principal London office of the Administrative Agent in the
London interbank market (if such distribution was made in an Alternative
Currency).


 


(e)                                  If
any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(e), 2.05(f), 2.06(b) or 2.18(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender’s obligations under such Sections
until all such unsatisfied obligations are fully paid.


 


Section 2.19.  Mitigation Obligations; Replacement of
Lenders. (a)  If any Lender requests compensation under Section
2.14 or 2.17, or if any Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 2.16, then such Lender shall use reasonable efforts to designate a
different Applicable Lending Office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.14, 2.16 or 2.17, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender.  The
Company hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.


 


(b)                                 If
any Lender requests compensation under Section 2.14 or 2.17, or if any Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, or if any
Lender defaults in its obligation to fund Loans hereunder, then the Company
may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 12.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (i) the Company shall have
received the prior written consent of the Administrative Agent, which consent
shall not unreasonably be withheld, (ii) such Lender shall have received


 


37





















 


payment of an amount equal to
the outstanding principal of its Loans and participations in LC Disbursements
and Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Company or the
relevant Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.14 or 2.17 or payments required to be made pursuant to Section 2.16, such assignment
will result in a reduction in such compensation or payments.  A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Company to require
such  assignment and delegation cease to
apply.


 


Section 2.20.  Currency Equivalents.  (a) The Administrative Agent shall
determine the Dollar Amount of each Alternative Currency Loan as of the first
day of each Interest Period applicable thereto and, in the case of any such
Interest Period of more than three months, at three-month intervals after the
first day thereof, and shall promptly notify the Borrower and the Lenders of
each Dollar Amount so determined by it. 
Each such determination shall be based on the Spot Rate (i) on the date
of the related Borrowing Request for purposes of the initial such determination
for any Alternative Currency Loan and (ii) on the fourth Euro-Currency Business
Day prior to the date as of which such Dollar Amount is to be determined, for
purposes of any subsequent determination.


 


(b)                                 The
Administrative Agent shall determine the LC Exposure related to each Letter of
Credit as of the date of issuance thereof and at three-month intervals after
the date of issuance thereof.  Each such
determination shall be based on the Spot Rate (i) on the date of the related
notice of issuance, in the case of the initial determination in respect of any
Letter of Credit and (ii) on the fourth Euro-Currency Business Day prior to the
date as of which such Dollar Amount is to be determined, in the case of any
subsequent determination with respect to an outstanding Letter of Credit.


 


(c)                                  If
after giving effect to any such determination of a Dollar Amount, the total
Revolving Credit Exposures of all Lenders exceed the aggregate amount of the
Commitments or the aggregate Dollar Amount of Alternative Currency Loans and LC
Exposures denominated in an Alternative Currency exceeds 105% of the
Alternative Currency Sublimit, the Borrowers shall within five Euro-Currency
Business Days prepay outstanding Loans (as selected by the Company and notified
to the Lenders through the Administrative Agent not less than three
Euro-Currency Business Days prior to the date of prepayment) or take other
action to the extent necessary to eliminate any such excess.


 


ARTICLE 3

REPRESENTATIONS AND WARRANTIES


 


The Company
and each Original Subsidiary Borrower represents and warrants to the
Administrative Agent and the Lenders that:


 


Section 3.01.  Organization; Powers.  The Company and each Subsidiary (a)
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its


 


38





















 


organization, (b) has all
requisite power and authority to own its property and assets and to carry on
its business as now conducted and as proposed to be conducted, (c) is qualified
to do business in every jurisdiction where such qualification is required,
except where the failure so to qualify could not reasonably be expected to
result in a Material Adverse Effect, and (d) has the power and authority to
execute, deliver and perform its obligations under each Loan Document to which
it is a party and under each other agreement or instrument contemplated thereby
to which it is or will be a party and, in the case of any Borrower, to borrow
hereunder.


 


Section 3.02.  Authorization.  The Transactions (a) have been
duly authorized by all requisite corporate, partnership, limited liability
company or analogous and, if required, stockholder, partner, member or
analogous action and (b) will not (i) materially violate any provision of law,
statute, rule or regulation, or of the certificate or articles of incorporation
or other constitutive documents or by-laws of the Company or any Subsidiary,
(ii) materially violate any order of any Governmental Authority or (iii)
materially violate any provision of any material indenture, agreement or other
instrument to which the Company or any Subsidiary is a party or by which any of
them or any of their property is or may be bound, (iv) be in material conflict
with, result in a material breach of or constitute (alone or with notice or
lapse of time or both) a material default under any such indenture, agreement
or other instrument or (v) result in the creation or imposition of any Lien
(other than the Transaction Liens) upon any property or assets of the Company
or any Subsidiary.


 


Section 3.03.  Enforceability.  This Agreement has been duly
executed and delivered by the Company, each Original Subsidiary Borrower and
each Guarantor (each an “Original Subsidiary
Guarantor”) listed on the signature pages hereof as a “Subsidiary
Guarantor” and constitutes, and each other Loan Document to which any Credit
Party is party, when executed and delivered by such Credit Party, will
constitute, a legal, valid and binding obligation of each such Credit Party
enforceable against each such Credit Party in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors’ rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.  The Loans and all
other obligations or liabilities of the Company and each Original Subsidiary
Guarantor or Original Subsidiary Borrower hereunder shall not be subordinated
in right of payment to any other Indebtedness of the Company or such Original
Subsidiary Guarantor or Original Subsidiary Borrower, respectively.


 


Section 3.04.  Governmental Approvals.  No action, consent or approval of,
registration or filing with or other action by any Governmental Authority is or
will be required in connection with the Transactions, except such as will have
been made or obtained on or before the Effective Date and thereafter will be in
full force and effect.


 


Section 3.05.  Financial Statements.  (a) The Company has heretofore
furnished to the Lenders (i) its Consolidated balance sheet and related
Consolidated statements of earnings, cash flows and shareholders’ equity as of
and for the fiscal year ended December 31, 2003, audited by and
accompanied by the opinion of Pricewaterhouse Coopers LLP, independent public
accountants and (ii) its Consolidated balance sheet and related Consolidated
statements of earnings and cash flows as of and for the fiscal quarter ended
June 27, 2004, certified by its chief financial officer.  Such financial statements present fairly in
all material respects the financial


 


39





















 


position of the Company and its
Consolidated Subsidiaries as of such dates and their results of operations and
cash flows for such periods.  Such
statements of financial position and the notes thereto disclose all material
liabilities, direct or contingent, of the Company and its Consolidated
Subsidiaries as of the dates thereof. 
Such financial statements were prepared in accordance with GAAP applied
on a consistent basis.


 


(b)                                 Since
December 31, 2003, there has been no material adverse change in the business, assets,
property, condition (financial or otherwise) or prospects of the Company and
its Subsidiaries taken as whole.


 


Section 3.06.  Title to Properties; Possession Under
Leases.  (a) The Company and
each of the Subsidiaries has good and marketable title to, or valid leasehold
interests in, all its material properties and assets, except for minor defects
in title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties and assets for their intended
purposes.  All such material properties
and assets are free and clear of Liens, other than Liens expressly permitted by
Section 6.01.


 


(b)                                 The
Company and each of the Subsidiaries has complied with all obligations under
all material leases to which it is a party and all such leases are in full
force and effect.  The Company and each
of the Subsidiaries enjoys peaceful and undisturbed possession under all such
material leases.


 


Section 3.07.  Subsidiaries. Schedule 3.07
sets forth as of the Effective Date a list of each Subsidiary of the Company
that is a Significant Subsidiary, a Material Subsidiary, an Excluded SPV or an
Unrestricted Subsidiary and identifies them as such, and sets forth the
percentage ownership interest of the Company and any intermediate Subsidiary
therein.


 


Section 3.08.  Litigation; Compliance with Laws.  (a) There are not any actions, suits, proceedings, inquiries or
investigations at law or in equity or by or before any Governmental Authority
now pending or, to the knowledge of the Company or Original Subsidiary
Borrower, threatened against or affecting the Company or any Subsidiary or any
business, property or rights of any such Person (i) which involve the Loan
Documents or the Transactions or (ii) as to which there is a reasonable possibility
of an adverse determination and which, if adversely determined, could,
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.


 


(b)                                 Neither
the Company nor any of the Subsidiaries is in violation of any law, rule or
regulation, or in default with respect to any judgment, writ, injunction or
decree of any Governmental Authority, where such violation or default could
reasonably be expected to result in a Material Adverse Effect.


 


Section 3.09.  Non-existence of Certain Types of
Agreements or Obligations.  (a) As of the Effective Date, neither the
Company nor any of the Subsidiaries is a party to any agreement or instrument
or subject to any corporate restriction that has resulted or could reasonably
be expected to result in a Material Adverse Effect.


 


(b)                                 Neither
the Company nor any of the Subsidiaries is in default in any manner under any
provision of any material agreement or instrument (excluding any indenture or
other


 


40





















 


agreement or instrument
evidencing Indebtedness) to which it is a party or by which it or any of its
properties or assets are or may be bound, where such default could reasonably
be expected to result in a Material Adverse Effect.


 


(c)                                  Except
as set forth in Schedule 3.09(c), as of the Effective Date neither the Company
nor any Subsidiary is a party to or is bound by the terms of (i) any indenture
or other agreement or instrument evidencing Indebtedness or (ii) any
certificate of designation or other certificate, agreement or instrument
relating to any capital stock, in either case which contains a provision
granting the holders thereof the right to require the Company or any Subsidiary
to buy all or any part of such Indebtedness or capital stock (or any other
provision having substantially the same effect) other than sinking fund and
conversion provisions and provisions requiring repayment upon default.


 


(d)                                 Schedule
3.09(d) sets forth the total amount of each category of Priority Indebtedness (as
set forth in the definition thereof) of the Company and its Subsidiaries
existing as of the Effective Date.


 


(e)                                  Schedule
3.09(e) sets forth the total amount of all Guarantees by the Company and its
Subsidiaries of Indebtedness (other than Indebtedness under the Loan Documents
and Indebtedness of the Company or any Subsidiary owing to the Company or any
Subsidiary) existing as of the Effective Date.


 


Section 3.10.  Federal Reserve Regulations.  The making of the Loans hereunder
and the use of the proceeds thereof as contemplated hereby will not violate or
be inconsistent with Regulation U or Regulation X.


 


Section 3.11.  No Regulatory Restrictions on
Borrowing.  Neither the
Company nor any Original Subsidiary Borrower is (a) an “investment company” as defined in, or
subject to regulation under, the Investment Company Act of 1940, as amended,
(b) a “holding company” or a “subsidiary company” of a holding company as
defined in, or subject to regulation under, the Public Utility Holding Company
Act of 1935 or (c) subject to any other applicable regulatory scheme which
restricts its ability to incur the indebtedness to be incurred hereunder.


 


Section 3.12.  Tax Returns.  The Company and each Subsidiary
has filed or caused to be filed all Federal, state and local tax returns
required to have been filed by it and has paid or caused to be paid all taxes
shown to be due and payable on such returns or on any assessments received by
it, except (a) taxes that are being contested in accordance with Section 5.03
or (b) to the extent that the failure to do so could not reasonably be expected
to result in a Material Adverse Effect.


 


Section 3.13.  Environmental Matters.  Except for the Disclosed Matters
and except with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Company nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has
received written notice of any claim with respect to any Environmental
Liability or (iv) knows of any basis for any Environmental Liability.


 


41





















 


Section 3.14.  ERISA. 
No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.  The
excess, if any, of the present value of all accumulated benefit obligations
under each Plan (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) over the fair market value of the
assets of such Plan, as of the date of the most recent financial statements
reflecting such amounts, could not reasonably be expected to have a Material
Adverse Effect.


 


Section 3.15.  No Material Misstatements.  (a) As of the Effective Date, the
Information Memorandum does not contain any material misstatement of fact or
omit to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they are made, not materially misleading,
and (b) no other information, report, financial statement, exhibit or schedule
furnished by or on behalf of the Company or any Subsidiary to the
Administrative Agent or any Lender in connection with the negotiation of the
Loan Documents or included therein or delivered pursuant thereto, when taken
together with all other such information, reports, financial statements,
exhibits or schedules, contained, contains or will contain any material
misstatement of fact or omitted, omits or will omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were, are or will be made, not materially misleading.


 


Section 3.16.  Solvency.  Immediately following the making
of each Borrowing and after giving effect to the application of the proceeds of
such Borrowing, the Company and its Subsidiaries on a consolidated basis will
be Solvent.  The Company and its
Subsidiaries on a consolidated basis do not intend to, and do not believe that
the Company and its Subsidiaries on a consolidated basis will, incur debts
beyond their ability to pay such debts as they mature, taking into account the
timing of and amounts of cash anticipated to be received by the Company and its
Subsidiaries on a consolidated basis and the timing of the amounts of cash
anticipated to be payable on or in respect of the Indebtedness of the Company
and its Subsidiaries on a consolidated basis. 
For the purpose of this Section, “Solvent”
means, with respect to any Person on a particular date, that on such date (a)
the fair value of the property owned by such Person is greater than the total
amount of liabilities, including, without limitation, contingent liabilities,
of such Person, (b) such Person is able to meet its obligations as those
obligations mature and (c) such Person is not engaged in business or a
transaction for which such Person’s property would constitute an unreasonably
small capital.  The amount of contingent
liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.


 


ARTICLE 4

CONDITIONS


 


Section 4.01.  Effective Date.  The obligations of the Lenders to make Loans
and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 12.02):


 


42





















 


(a)                                  The
Administrative Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such
party or (ii) written evidence satisfactory to the Administrative Agent (which
may include facsimile transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.


 


(b)                                 The
Administrative Agent shall have received a favorable written opinion (addressed
to the Administrative Agent and the Lenders and dated the Effective Date) of
Cravath, Swaine & Moore LLP, special New York counsel for the Company,
substantially in the form of Exhibit B-1, Marya M. Rose, internal counsel to
the Company, substantially in the form of Exhibit B-2 and Raymond J. Eyres,
internal counsel to the Original Subsidiary Borrowers, substantially in the
form of Exhibit B-3, in each case covering such other matters relating to the
Credit Parties, the Loan Documents or the Transactions as the Administrative
Agent shall reasonably request.  The
Company and each Original Subsidiary Borrower hereby requests such counsel to
deliver such opinions.


 


(c)                                  The
Administrative Agent shall have received an opinion of Davis Polk &
Wardwell, special counsel for the Administrative Agent, substantially in the
form of Exhibit C and covering such additional matters relating to the
transactions contemplated by the Loan Documents as the Administrative Agent may
reasonably require.


 


(d)                                 The
Administrative Agent shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of the Borrowers and the Subsidiary
Guarantors, the authorization of the Transactions and any other legal matters relating
to the Borrowers and the Subsidiary Guarantors, the Loan Documents or the
Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.


 


(e)                                  The
Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial Officer of
the Company, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.


 


(f)                                    The
Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrowers under the Loan Documents.


 


(g)                                 The Administrative Agent shall have
received evidence reasonably satisfactory to it of the payment of all
principal of and interest on any loans outstanding under, and all accrued
commitment fees under the Existing Credit Agreement.


 


The
Administrative Agent shall notify the Company and the Lenders of the Effective
Date, and such notice shall be conclusive and binding.  The Company and the Lenders party to the
Existing Credit Agreement  hereby agree
that upon Effective Date:  (i) the
commitments of the banks under the Existing Credit Agreement shall terminate in
their entirety immediately and automatically on the Effective Date, and such
Existing Credit Agreement shall be terminated, without further action by any
party to the Existing Credit Agreement, (ii) all accrued facility fees


 


43





















 


under the
Existing Credit Agreement shall be due and payable at such time and (iii)
subject to Section 2.15 of the Existing Credit Agreement, the Company may
prepay any and all loans outstanding thereunder on the Effective Date and any
requirement for notice of such prepayment shall be waived.


 


Section 4.02.  Each Credit Event.  The obligation of each Lender to
make a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of
the following conditions:


 


(a)                                  The
representations and warranties of each Credit Party set forth in each Loan
Document to which it is party (other than, solely in the case of a Borrowing to
be made to repay maturing commercial paper of the Company, that set forth in
Section 3.05(b)) shall be true and correct on and as of the date of such
Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, except to the extent such representations and
warranties expressly relate to an earlier date in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date.


 


(b)                                 At
the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing.


 


Each Borrowing
and each issuance, amendment, renewal or extension of a Letter of Credit shall
be deemed to constitute a representation and warranty by the Borrower on the
date thereof as to the matters specified in paragraphs (a) and (b) of this
Section.


 


Section 4.03.  First Borrowing by Each Eligible
Subsidiary.  The obligation of
each Lender to make a Loan, and the obligation of an Issuing Bank to issue a
Letter of Credit, on the occasion of the first Borrowing by or issuance of a
Letter of Credit for the account of each Eligible Subsidiary is subject to the
satisfaction of the following further conditions:


 


(a)                                  Receipt
by the Administrative Agent of an opinion of counsel for such Eligible
Subsidiary reasonably acceptable to the Administrative Agent, substantially to
the effect of Exhibit F hereto and covering such other matters relating to
the transactions contemplated hereby as the Required Lenders may reasonably
require.


 


(b)                                 Receipt
by the Administrative Agent of all documents which it may reasonably request
relating to the existence of such Eligible Subsidiary, the corporate authority
for and the validity of the Election to Participate of such Eligible Subsidiary
and this Agreement of such Eligible Subsidiary, and any other matters relevant
thereto, all in form and substance reasonably satisfactory to the Administrative
Agent.


 


ARTICLE 5

AFFIRMATIVE COVENANTS


 


Until the
Commitments have expired or been terminated and the principal of and interest
on each Loan and all fees payable hereunder shall have been paid in full and
all Letters of Credit


 


44





















 


shall have expired or
terminated and all LC Disbursements shall have been reimbursed, the Company
covenants and agrees with the Lenders that it will, and will cause each of its
Subsidiaries to:


 


Section 5.01.  Existence; Businesses and
Properties.  (a) Do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence, except (i) in the case of each Subsidiary that is not a Borrower to
the extent that the failure to take any such action could not reasonably be
expected to have a Material Adverse Effect or (ii) as otherwise expressly
permitted under Section 6.03.


 


(b)                                 Do
or cause to be done all things necessary to (i) obtain, preserve, renew, extend
and keep in full force and effect the rights, licenses, permits, franchises,
authorizations, patents, copyrights, trademarks and trade names material to the
conduct of its business; (ii) comply in all material respects with all
applicable laws, rules, regulations and orders of any Governmental Authority,
whether now in effect or hereafter enacted and (iii) at all times maintain and
preserve all property material to the conduct of such business and keep such
property in good repair, working order and condition (ordinary wear and tear
excepted) and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
properly conducted at all times.


 


Section 5.02.  Insurance.  Keep its insurable properties
insured at all times by financially sound and reputable insurers in such
amounts (with no greater risk retention) and against such risks as are
customarily maintained by companies of established repute engaged in the same
or similar businesses operating in the same or similar locations; maintain such
other insurance, to such extent and against such risks, including fire and
other risks insured against by extended coverage, as is customary with
companies in the same or similar businesses, including public liability
insurance against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by it; and maintain such other insurance as may
be required by law.


 


Section 5.03.  Obligations and Taxes.  Pay its obligations (other than
Indebtedness) promptly and in accordance with their terms and pay and discharge
promptly all taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits or in respect of its property, before the same
shall become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided
that such payment and discharge shall not be required with respect
to any such tax, assessment, charge, levy or claim so long as the validity or
amount thereof shall be contested in good faith by appropriate proceedings and
the Company or such Subsidiary shall, to the extent required by GAAP applied on
a consistent basis, set aside on its books adequate reserves with respect
thereto.


 


Section 5.04.  Financial Statements, Reports, Etc.  In the case of the Company,
furnish to the Administrative Agent and each Lender:


 


(a)                                  within
90 days after the end of each fiscal year, its Consolidated balance sheet and
related Consolidated statements of earnings, cash flows and shareholders’
equity, showing the


 


45





















 


financial position of the
Company and its Consolidated Subsidiaries as of the close of such fiscal year
and their results of operations and cash flows for such year, all audited by
PricewaterhouseCoopers LLP or other independent public accountants of
recognized national standing and accompanied by an opinion of such accountants
(which shall not be qualified in any material respect except with the consent
of the Required Lenders) to the effect that such Consolidated financial
statements fairly present in all material respects the financial position,
results of operations and cash flows of the Company on a Consolidated basis in
accordance with GAAP consistently applied;


 


(b)                                 within
45 days after the end of each of the first three fiscal quarters of each fiscal
year, its Consolidated balance sheet and related Consolidated statements of
earnings and cash flows showing the financial position of the Company and its
Consolidated Subsidiaries as of the close of such fiscal quarter and their
results of operations for such fiscal quarter and the then elapsed portion of
the fiscal year and their cash flows for the then elapsed portion of the fiscal
year, all certified by one of its Financial Officers as fairly presenting the
financial position, results of operations and cash flows of the Company on a
Consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments;


 


(c)                                  concurrently
with any delivery of financial statements under paragraph (a) or (b) above, a
certificate, substantially in the form of Exhibit G hereto, of the accounting
firm or Financial Officer opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to accounting
matters and disclaim responsibility for legal interpretations) (i) certifying
that no Default has occurred or, if such Default has occurred, specifying the
nature and extent thereof and any corrective action taken or proposed to be taken
with respect thereto and (ii) setting forth computations in reasonable detail
reasonably satisfactory to the Administrative Agent demonstrating compliance
with the covenants contained in Sections 7.01 and 7.02;


 


(d)                                 promptly
after the occurrence of any event or condition which makes the information
thereon inaccurate, incomplete or untrue, an update to Schedule 3.07;


 


(e)                                  promptly
after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by it with the Securities
and Exchange Commission, or any governmental authority succeeding to any of or
all the functions of such Commission, or with any national securities exchange,
or distributed to its shareholders, as the case may be; and


 


(f)                                    promptly,
from time to time, such other information regarding the operations, business
affairs and financial condition of the Company or any Subsidiary, or compliance
with the terms of the Loan Documents, as the Administrative Agent may
reasonably request.


 


Information
required to be delivered pursuant to paragraphs 5.04(a), 5.04(b) or 5.04(e)
above shall be deemed to have been delivered on the date on which the Company
provides notice to the Lenders that such information has been posted on the
Company’s website on the Internet at www.cummins.com, at
sec.gov/edaux/searches.htm or at another website identified in such notice and
accessible by the Lenders without charge; provided
that (i) such notice may be included in a certificate delivered pursuant to
paragraph 5.04(c) and (ii) the Borrower shall


 


46





















 


deliver paper
copies of the information referred to in paragraphs 5.04(a), 5.04(b) or 5.04(e)
to any Lender which requests such delivery.


 


Section 5.05.  Litigation and Other Notices.  Furnish to the Administrative
Agent and each Lender prompt written notice of the following:


 


(a)                                  any
Default, specifying the nature and extent thereof and the corrective action (if
any) proposed to be taken with respect thereto;


 


(b)                                 the
filing or commencement of, or any written threat or notice of intention of any
Person to file or commence, any action, suit or proceeding, whether at law or
in equity or by or before any Governmental Authority, against the Company or
any Affiliate thereof as to which there is a reasonable possibility of an
adverse determination and which, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;


 


(c)                                  the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events which have occurred, could reasonably be expected to result in a
Material Adverse Effect;


 


(d)                                 any
development that has resulted in, or could reasonably be expected to result in,
a Material Adverse Effect; and


 


(e)                                  any
change in the Company’s senior unsecured debt rating from S&P or Moody’s or
in its corporate credit rating from S&P.


 


Section 5.06.  Maintaining Records; Access to
Properties and Inspections.  Maintain
all financial records in accordance with GAAP and permit any representatives designated
by the Administrative Agent or any Lender, upon reasonable prior notice, to
visit and inspect the financial records and the properties of the Company or
any Subsidiary at reasonable times and as often as reasonably requested and to
make extracts from and copies of such financial records, and permit any
representatives designated by any Administrative Agent or any Lender to discuss
the affairs, finances and condition of the Company or any Subsidiary with the
officers thereof and independent accountants therefor; provided that (i) the Company or such
Subsidiary may require that a representative appointed by it be present at such
inspections or discussions and (ii) the obligations of the Company and its
Subsidiaries under this Section are subject to, and the Administrative Agent
and any such Lender shall comply with, all applicable confidentiality
restrictions.


 


Section 5.07.  Use of Proceeds and Letters of
Credit.  Use the proceeds of
the Loans and request the issuance of Letters of Credit only for the general
corporate purposes of the Company and its Subsidiaries.  No part of the proceeds of any Loan will be
used, whether directly or indirectly, (a) for any purpose that entails a
violation of any of the Regulations of the Board, including Regulation T,
Regulation U and Regulation X, or (b) in any hostile acquisition of
another Person.


 


Section 5.08.  Compliance with Laws.  Comply with all applicable laws,
statutes, rules and regulations (including all applicable Environmental Laws)
and obtain, maintain and comply with, in each case in all material respects,
any and all licenses, approvals, notifications,


 


47





















 


registrations or permits
required by applicable laws, statutes, rules and regulations (including all
applicable Environmental Laws) except to the extent that, in any such case,
failure to do so could not be reasonably expected to have a Material Adverse
Effect.


 


Section 5.09.  Additional Subsidiaries.  In the case of the Company, if any
additional Material Subsidiary is formed or acquired, or any existing
Subsidiary becomes a Material Subsidiary, in either case after the Effective
Date, within ten Domestic Business Days after such Subsidiary becomes a
Material Subsidiary, notify the Administrative Agent thereof and cause such
Subsidiary to become a Subsidiary Guarantor by executing and delivering a
Joinder Agreement.


 


ARTICLE 6

NEGATIVE COVENANTS


 


Until the
Commitments have expired or terminated and the principal of and interest on
each Loan and all fees payable hereunder have been paid in full and all Letters
of Credit have expired or terminated and all LC Disbursements shall have been
reimbursed, the Company covenants and agrees with the Lenders that it will not,
and will not cause or permit any of its Subsidiaries to:


 


Section 6.01.  Negative Pledge.  Create, incur, assume or permit to
exist any Lien on any property or assets (including stock or other securities
of Subsidiaries) now owned or hereafter acquired by it or on any income or
rights in respect of any thereof, except:


 


(a)                                  Liens
imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.03;


 


(b)                                 carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens
imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being contested in
compliance with Section 5.03;


 


(c)                                  pledges
and deposits and other Liens made in the ordinary course of business in
compliance with workers’ compensation, unemployment insurance and other social
security laws or regulations;


 


(d)                                 Liens
(including deposits) to secure the performance of bids, tenders, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of like nature, in each case in the ordinary course of
business;


 


(e)                                  easements,
zoning restrictions, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from the value of the
affected property or interfere materially with the ordinary conduct of business
of the Company or any Subsidiary;


 


(f)                                    any
Lien existing on any property or asset prior to the acquisition thereof by the
Company or any Subsidiary; provided
that (i) such Lien is not created in contemplation of or in


 


48





















 


connection with such
acquisition and (ii) such Lien does not apply to any other property or assets
of the Company or any Subsidiary;


 


(g)                                 Liens
(including deposits) in connection with self-insurance;


 


(h)                                 judgment
or other similar Liens in connection with legal proceedings in an aggregate
principal amount (net of amounts for which relevant insurance providers have
delivered written acknowledgements of coverage) not to exceed $125,000,000, provided that the execution or other
enforcement of such liens is effectively stayed and the claims secured thereby
are being actively contested in good faith by appropriate proceedings;


 


(i)                                     Liens
arising in connection with advances or progress payments under government
contracts;


 


(j)                                     Liens
on assets of Subsidiaries securing Indebtedness payable to the Company or any
Wholly-Owned Consolidated Subsidiary;


 


(k)                                  Liens
on Transferred Receivables, Related Security and Collections securing the
Permitted Receivables Financing Indebtedness;


 


(l)                                     Liens
on the equipment identified in Schedule 6.01 securing the Permitted Onan Lease
Obligations; and


 


(m)                               Liens
securing Indebtedness other than Indebtedness described in paragraphs (a)
through (l) above, to the extent and only to the extent that the aggregate
amount of Priority Indebtedness shall not exceed $425,000,000 at any time.


 


Section 6.02.  Sale and Lease-Back Transactions.  Enter into any arrangement,
directly or indirectly, with any Person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned
or hereafter acquired, and thereafter rent or lease such property or other
property which it intends to use for substantially the same purpose or purposes
as the property being sold or transferred (a “Sale
and Lease-Back Transaction”), unless, after giving effect to such
Sale and Lease-Back Transaction, the aggregate amount of Priority Indebtedness
shall not exceed $425,000,000; provided
except that the Company or any Subsidiary may enter into Sale and Lease-Back
Transactions without restriction if the property subject to such Sale and
Lease-Back Transaction was purchased by the Company or any Subsidiary within
six months of the date of such Sale and Leaseback Transaction.


 


Section 6.03.  Mergers, Consolidations, and Sales of
Assets.  In the case of the
Company and any Significant Subsidiary, merge with or into or consolidate with
any other Person, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or any substantial part of its
assets (whether now owned or hereafter acquired), except (a) that the Company
and any Significant Subsidiary may sell inventory or receivables in the
ordinary course of business, (b) that if at the time thereof and immediately
after giving effect thereto no Default has occurred and is continuing (i) any
Significant Subsidiary which is not a Subsidiary Guarantor may merge with or
into, or sell, transfer, lease or otherwise dispose of all or any substantial
part of its assets to, the Company or a Wholly-Owned Consolidated Subsidiary; provided that such Wholly-Owned
Consolidated Subsidiary shall thereafter be deemed a Significant Subsidiary


 


49





















 


hereunder and (ii) any
Subsidiary may merge with or into, or sell, transfer, lease or otherwise
dispose of all or any substantial part of its assets to the Company or any
Subsidiary Guarantor and (iii) any Credit Party or any other Significant
Subsidiary may merge with or into or consolidate with any other Person if the
surviving corporation in such merger or consolidation shall be such Credit Party
or such Significant Subsidiary; provided  that in each case under clause (b) above the
Company shall have delivered to the Banks a certificate of a Financial Officer
of the Company and an opinion of counsel for the Company, each stating that
such consolidation, merger, sale, transfer, lease or other disposition complies
with this Section 6.03 and that all conditions precedent herein provided for
relating to such transaction have been complied with and (c) as otherwise
permitted by Section 5.01(a); and provided
further that it is understood that this Section 6.03 does not place
any restriction on securitization transactions (including the Permitted
Receivables Financing) which are not otherwise prohibited hereunder.


 


Section 6.04.  Priority Indebtedness.  In the case of the Subsidiaries,
incur, create, assume or permit to exist any Indebtedness except:


 


(a)                                  Indebtedness,
if any, arising under the Permitted Receivables Financing in an aggregate
principal amount (or an investment amount or purchase amount equivalent to a
principal amount) not to exceed $200,000,000 (the “Permitted Receivables Financing Indebtedness”);


 


(b)                                 Capital
Lease Obligations, if any, arising under any of the leases identified on
Schedule 6.01 (as amended or modified from time to time), in an aggregate
amount not greater than $150,000,000 (the “Permitted
Onan Lease Obligations”); and


 


(c)                                  other
Indebtedness if, after giving effect thereto, Priority Indebtedness would not
exceed $425,000,000.


 


Section 6.05.  Amendments of Certain Agreements.  In any respect material and
adverse to the Lenders, amend, modify, supplement or waive any of the
provisions of the Indentures or any instrument evidencing or relating to any
subordinated Indebtedness unless such amendment, modification, supplement or waiver
is approved in writing by the Required Lenders.


 


Section 6.06.   Swap Agreements.  Enter into any Swap Agreement,
except (a) Swap Agreements entered into to hedge or mitigate risks to which the
Company or any Subsidiary has actual exposure (other than those in respect of
Equity Interests  of the Company or any
of its Subsidiaries), and (b) Swap Agreements entered into in order to
effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with
respect to any interest-bearing liability or investment of the Company or any
Subsidiary.


 


Section 6.07.  Restrictive Agreements.  Directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of the
Company or any Subsidiary to create, incur or permit to exist any Lien upon any
of its property or assets or (b) the ability of any Subsidiary to pay dividends
or other distributions with respect to any shares of its capital stock or to
make or repay loans or advances to the Company or any other Subsidiary or to
Guarantee Indebtedness of the Company or any


 


50





















 


other Subsidiary; provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by the Loan Documents,
(ii) the foregoing shall not apply to restrictions and conditions existing on
the date hereof identified on Schedule 6.07 (or any extension or renewal of, or
any amendment or modification to, or any other restriction or condition
contained in the agreements governing future Indebtedness of the Company that
is substantially identical in substance to, such restriction or condition that
does not expand the scope of such restriction or condition), (iii) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary or other asset pending such
sale, provided such restrictions and conditions apply only to the Subsidiary or
other asset that is to be sold and such sale is permitted hereunder, (iv)
clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to assets securing any Indebtedness, (v)
clause (a) of the foregoing shall not apply to customary provisions in leases
and other contracts restricting the assignment thereof,  (vi) clause (b) of the foregoing shall not
apply to customary restrictions contained in senior unsecured notes or bonds
issued by the Company and (vii) the foregoing shall not apply to restrictions
and conditions set forth in the Permitted Receivables Financing, but shall
apply to any amendment or modification expanding the scope of any such
restriction or condition.


 


Section 6.08.  Ownership of Significant
Subsidiaries.  Cease to
maintain at any time direct or indirect ownership of securities or other
ownership interests representing not less than the greater of (a) a majority of
the ordinary voting power of each Significant Subsidiary and (b) such voting
power as provides effective control of the policy and direction of each
Significant Subsidiary.


 


Section 6.09.  Fundamental Changes.  Engage to any material extent in
any business except businesses of the types conducted by the Borrowers and
their respective Subsidiaries on the date of this Agreement and businesses
reasonably related thereto.


 


Section 6.10.  Unrestricted Subsidiaries.  In the case of the Company, (i)
permit any Unrestricted Subsidiary (or any Subsidiary formed or acquired after
the Effective Date) to be designated as a Restricted Subsidiary or (ii) permit
any Unrestricted Subsidiary to merge or consolidate with or into, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or any substantial part of its assets (whether now owned or
hereafter acquired) to any other Subsidiary except (x) dispositions of assets
in the ordinary course of business or (y) a transaction otherwise permitted
hereunder in which an Unrestricted Subsidiary is the resulting, surviving or
transferee entity.


 


ARTICLE 7

FINANCIAL COVENANTS


 


Section 7.01.  Leverage.  The Company will not permit the
ratio, on any date, of (a) the sum of Total Debt plus Securitization
Financing, in each case on such date to (b) Consolidated EBITDA for the four
fiscal quarters most recently ended on or prior to such date to be greater than
(i) at any time prior to December 31, 2006, 3.25:1 and (ii) at any time on or
after December 31, 2006, 3.0:1.


 


51





















 


Section 7.02. 
Coverage Ratio. The
Company will not permit the ratio of (a) Consolidated EBITDA minus Capital
Expenditures to (b) Consolidated Interest Expense, in each case for any period
of four consecutive fiscal quarters ending on any date on or after the
Effective Date, to be less than 1.50:1.


 


 


ARTICLE 8

EVENTS OF DEFAULT


 


If any of the
following events (“Events of Default”)
shall occur:


 


(a)                                  any
representation or warranty made, or deemed made, in or in connection with the
Loan Documents or the Borrowings hereunder, or any representation, warranty,
statement or information contained in any report, certificate, financial
statement or other instrument furnished in connection with or pursuant to the
Loan Documents, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished;


 


(b)                                 default
shall be made in the payment of any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or pursuant to any provision of the Loan Documents or
otherwise;


 


(c)                                  default
shall be made in the payment of any interest on any Loan or any fee or any
other amount (other than an amount referred to in (b) above) due under the Loan
Documents, when and as the same shall become due and payable, and such default
shall continue unremedied for a period of five Domestic Business Days;


 


(d)                                 default
shall be made in the due observance or performance by the Company or any
Subsidiary of any covenant, condition or agreement contained in Section 5.05(a)
or Section 5.05(b), Section 5.07, Article 6 or Article 7 and such default shall
continue unremedied for a period of five Domestic Business Days after the
earlier of (i) a Financial Officer of the Company becoming aware thereof and
(ii) notice thereof from the Administrative Agent or any Lender to the
Company;


 


(e)                                  default
shall be made in the due observance or performance by the Company or any Subsidiary
of any covenant, condition or agreement contained in the Loan Documents (other
than those specified in (b), (c) or (d) above) and such default shall continue
unremedied for a period of ten Domestic Business Days after notice thereof from
the Administrative Agent or any Lender to the Company;


 


(f)                                    the
Company or any Subsidiary shall (i) fail to pay any of its Indebtedness in
excess of $10,000,000 in the aggregate when due and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Indebtedness or (ii) fail to observe or perform any
term, covenant or condition on its part to be observed or performed under any
agreement or instrument relating to any such Indebtedness, when required to be
observed or performed, and such failure shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the effect
of such failure is to 


 


52





















 


accelerate, or
permit the acceleration of, the maturity of such Indebtedness or such
Indebtedness has been accelerated and such acceleration has not been rescinded;
or any amount of Indebtedness in excess of $10,000,000 shall be required to be
prepaid, defeased, purchased or otherwise acquired by the Company or any
Subsidiary (other than by a regularly scheduled required prepayment and other
than secured Indebtedness that becomes due as a result of the voluntary
transfer of assets securing such Indebtedness), prior to the stated maturity
thereof;


 


(g)                                 an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect of the
Company or any Subsidiary, or of a substantial part of the property or assets
of the Company or any Subsidiary, under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other Federal or state bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Company or any
Subsidiary, or for a substantial part of the property or assets of the Company
or any Subsidiary, or (iii) the winding-up or liquidation of the Company or any
Subsidiary; and such proceeding or petition shall continue undismissed for 60
days, or an order or decree approving or ordering any of the foregoing shall be
entered;


 


(h)                                 the
Company or any Subsidiary shall (i) voluntarily commence any proceeding or file
any petition seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other Federal or state bankruptcy,
insolvency, receivership or similar law, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or the
filing of any petition described in (g) above, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any Subsidiary, or for a substantial part
of the property or assets of the Company or any Subsidiary, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors, (vi) admit
in writing its inability or fail generally to pay its debts as they become due
or (vii) take any action for the purpose of effecting any of the foregoing;


 


(i)                                     one
or more judgments for the payment of money in an aggregate amount in excess of
$10,000,000 shall be rendered against the Company, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed;


 


(j)                                     a
Change in Control shall occur;


 


(k)                                  the
provisions of Article 11 shall cease to constitute valid, binding and
enforceable obligations of any Guarantor for any reason, or any Guarantor or
any Eligible Subsidiary shall have so asserted in writing; or


 


(l)                                     an
ERISA Event shall have occurred that, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in a Material
Adverse Effect;


 


then, and in every such event (other than an event with respect to any
Borrower described in paragraph (g) or (h) above), and at any time thereafter
during the continuance of such event, the 


 


53





















 


Administrative Agent shall, at the request of the Required Lenders, by
notice to the Company, take either or both of the following actions at the same
or different times: (i) terminate forthwith the Commitments and (ii) declare
the Loans then outstanding to be forthwith due and payable, whereupon the
principal of the Loans, together with accrued interest thereon and any unpaid accrued
fees and all other liabilities of any Borrower accrued hereunder, shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by each Borrower,
anything contained herein to the contrary notwithstanding; and upon the
occurrence of any event described in paragraph (g) or (h) above with respect to
any Borrower, the Commitments shall automatically terminate and the principal
of all Loans then outstanding, together with accrued interest thereon and any
unpaid accrued fees and all other liabilities of the Borrowers accrued
hereunder, shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by each Borrower, anything contained herein to the contrary
notwithstanding.


 


ARTICLE 9

THE AGENTS


 


Section 9.01.  Appointment and Authorization
of Administrative Agent.  Each
of the Lenders and the Issuing Bank hereby irrevocably appoints the
Administrative Agent as its agent and authorizes it to take such actions on its
behalf and to exercise such powers as are delegated to it by the terms of the
Loan Documents, together with such actions and powers as are reasonably
incidental thereto.


 


Section 9.02.  Rights and Powers of Administrative Agent as a Lender.  The bank serving as the
Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it
were not the Administrative Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Company or any Subsidiary or other Affiliate thereof as if it were not the
Administrative Agent hereunder.


 


Section 9.03.  Limited Duties and
Responsibilities of Administrative Agent. 
The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the Loan Documents.  Without limiting the generality of the foregoing,
(a) the Administrative Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Administrative Agent shall not have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby that the Administrative Agent is required
to exercise in writing as directed by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 12.02) and (c) except as expressly set
forth in any Loan Document, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Company or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates
in any capacity.  The Administrative
Agent shall not be liable for any action taken or not taken by it with the
consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the 


 


54





















 


circumstances
as provided in Section 12.02) or in the absence of its own gross negligence or
willful misconduct.  The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Company or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered under any Loan
Document or in connection therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth in
any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness
of any Loan Document or any other agreement, instrument or document or
(v) the satisfaction of any condition set forth in Article 4 or elsewhere
in any Loan Document, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.


 


Section 9.04.  Authority of Administrative
Agent to Rely on Certain Writings, Statements and Advice.  The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the
proper Person.  The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon.  The Administrative
Agent may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.


 


Section 9.05.  Sub-Agents and Related
Parties.  The Administrative
Agent may perform any and all its duties and exercise its rights and powers by
or through any one or more sub-agents appointed by the Administrative
Agent.  The Administrative Agent and any
such sub-agent may perform any and all its duties and exercise its rights and
powers through their respective Related Parties.  The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.


 


Section 9.06.  Resignation; Successor
Administrative Agent.  Subject
to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time by
notifying the Lenders, the Issuing Bank and the Borrower.  Upon any such resignation, the Required
Lenders shall have the right, in consultation with the Company, to appoint a
successor.  If no successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative
Agent which shall be a bank with an office in New York, New York, or an
Affiliate of any such bank.  Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder.  The fees payable by the
Company to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise 


 


55





















 


agreed between
the Company and such successor.  After
the Administrative Agent’s resignation hereunder, the provisions of this
Article and Section 12.03 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Administrative Agent.


 


Section 9.07.  Credit Decisions by Lenders.  Each
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to
enter into this Agreement.  Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon the Loan
Documents, any related agreement or any document furnished hereunder or
thereunder.


 


Section 9.08.  Administrative Agent’s
Fee.  The Company agrees to
pay to the Administrative Agent, for its own account, fees payable in the
amounts and at the times separately agreed upon between the Company and the
Administrative Agent.


 


Section 9.09.  Other Agents.  Nothing
in the Loan Documents shall impose on any Agent other than the Administrative
Agent, in its capacity as Administrative Agent, any obligation or liability
whatsoever.


 


ARTICLE 10

REPRESENTATIONS AND WARRANTIES OF ELIGIBLE SUBSIDIARIES


 


Each Eligible
Subsidiary shall be deemed by the execution and delivery of its Election to
Participate to have represented and warranted as of the date thereof that:


 


Section 10.01.  Organization; Powers.  Such
Eligible Subsidiary  (a)  is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the power and authority to execute, deliver and perform its obligations
hereunder and under each other agreement or instrument contemplated thereby to
which it is or will be a party and to borrow hereunder and (c)  is a Wholly-Owned Consolidated Subsidiary.


 


Section 10.02.  Authorization.  The
Transactions and the execution and delivery by such Eligible Subsidiary of its
Election to Participate and the performance by such Eligible Subsidiary of this
Agreement, (a) have been duly authorized by all requisite corporate,
partnership, limited liability company or analogous and, if required,
stockholder, partner, member or analogous action and (b) will not
(i) materially violate any provision of law, statute, rule or regulation,
or of the certificate or articles of incorporation or other constitutive
documents or by-laws of the Company or any Subsidiary, (ii) materially violate
any order of any Governmental Authority or (iii) materially violate any
provision of any material indenture, agreement or other instrument to which the
Company or any Subsidiary is a party or by which any of them or any of their
property is or may be bound, (iv) be in material conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or both) a
material default under any such indenture, agreement or


 


56





















 


other
instrument or (v) result in the creation or imposition of any Lien (other than
the Transaction Liens) upon any property or assets of the Company or any
Subsidiary.


 


Section 10.03.  Enforceability.  Its
Election to Participate has been duly executed and delivered by such Eligible
Subsidiary, and this Agreement constitutes 
a legal, valid and binding obligation of such Eligible Subsidiary
enforceable against such Eligible Subsidiary in accordance with its terms.


 


Section 10.04.  Taxes.  Except as disclosed in such
Election to Participate, there is no income, stamp or other tax of any country,
or any taxing authority thereof or therein, imposed by or in the nature of
withholding or otherwise, which is imposed on any payment to be made by such
Eligible Subsidiary pursuant hereto, or is imposed on or by virtue of the execution,
delivery or enforcement of its Election to Participate.


 


ARTICLE 11

GUARANTIES


 


Section 11.01.  The Guaranties.  Each Guarantor hereby
unconditionally and absolutely guarantees the full and punctual payment
(whether at stated maturity, upon acceleration or otherwise) of the principal
of and interest on each Loan made to and each obligation to reimburse any LC
Disbursement incurred by each Borrower pursuant to this Agreement, and the full
and punctual payment of all other amounts payable by each Borrower under this
Agreement.  Upon failure by any Borrower
to pay punctually any such amount, each Guarantor agrees that it shall
forthwith on demand pay the amount not so paid at the place and in the manner
specified in this Agreement.


 


Section 11.02.  Guaranties Unconditional.  The obligations of each Guarantor
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:


 


(a)                                  any
extension, renewal, settlement, compromise, waiver or release in respect of any
obligation of any Borrower, any other Guarantor or any other Person under any Loan
Document or by operation of law or otherwise;


 


(b)                                 any
modification or amendment of or supplement to any Loan Document;


 


(c)                                  any
release, impairment, non-perfection or invalidity of any direct or indirect
security for any obligation of any Borrower, any other Guarantor or any other
Person under any Loan Document;


 


(d)                                 any
change in the corporate existence, structure or ownership of any Borrower, any other
Guarantor or any other Person or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting any Borrower, any other Guarantor or any
other Person or its assets or any resulting release or discharge of any
obligation of any Borrower, any other Guarantor or any other Person contained
in any Loan Document;


 


57





















 


(e)                                  the
existence of any claim, set-off or other rights which such Guarantor may have
at any time against any Borrower, any other Guarantor, the Administrative
Agent, any Lender or any other Person, whether in connection herewith or any
unrelated transactions; provided that
nothing herein shall prevent the assertion of any such claim by separate suit
or compulsory counterclaim;


 


(f)                                    any
invalidity or unenforceability relating to or against any Borrower, any other
Guarantor or any other Person for any reason of any Loan Document, or any
provision of applicable law or regulation purporting to prohibit the payment by
any Borrower of the principal of or interest or any other amount payable by it
under any Loan Document; or


 


(g)                                 any
other act or omission to act or delay of any kind by any Borrower, any other
Guarantor, the Administrative Agent, any Lender or any other Person or any
other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of such Guarantor’s
obligations hereunder (in each case other than payment in full of the
obligations guaranteed hereunder).


 


Section 11.03.  Discharge Only Upon Payment in
Full; Reinstatement in Certain Circumstances. 
(i) Each of the Guarantor’s obligations hereunder shall
remain in full force and effect until the Commitments shall have terminated and
the principal of and interest on the Loans and all other amounts payable
hereunder by the Guarantor and each Borrower under this Agreement shall have
been paid in full in cash and all LC Disbursements shall have been
reimbursed.  If at any time any payment
of the principal of or interest on any Loan or any other amount payable by any
Borrower under this Agreement is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of any Borrower or
otherwise, the Guarantors’ obligations hereunder with respect to such payment
shall be reinstated at such time as though such payment had been due but not
made at such time.


 


(ii)                                  If
all the capital stock of a Subsidiary Guarantor or all the assets of a
Subsidiary Guarantor are sold to a Person other than the Company or one of its
Subsidiaries in a transaction not prohibited hereunder (any such sale, a “Sale of Guarantor”), such Subsidiary Guarantor will
automatically without any further action by any Person be released from its
guarantee hereunder.


 


Section 11.04.  Waiver by Guarantor.  Each Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against any Borrower, any other Guarantor or any other Person.


 


Section 11.05.  Subrogation.  Upon making any payment with
respect to any Borrower hereunder, a Guarantor shall be subrogated to the
rights of the payee against such Borrower with respect to such payment; provided that no Guarantor shall enforce any payment by way
of subrogation unless all amounts of principal of and interest on the Loans to
such Borrower and all other amounts payable by such Borrower under this
Agreement have been paid in full in cash.


 


Section 11.06.  Stay of Acceleration.  If acceleration of the time for
payment of any amount payable by any Borrower under this Agreement is stayed
upon insolvency, bankruptcy or 


 


58





















 


reorganization
of such Borrower, all such amounts otherwise subject to acceleration under the
terms of this Agreement shall nonetheless be payable by the Guarantors
hereunder forthwith on demand by the Administrative Agent made at the request
of the Required Lenders.


 


Section 11.07.  Continuing Guaranty.  Each Guarantor’s Guaranty
hereunder is a continuing guarantee, shall be binding on each Guarantor and its
successors and assigns, and shall be enforceable by the Lenders.  If all or part of any Lender’s interest in
any obligation guaranteed by any Guarantor is assigned or otherwise
transferred, the transferor’s rights under the Guarantor’s guarantee, to the
extent applicable to the obligation so transferred, shall automatically be
transferred with such obligation.


 


Section 11.08.  Limitation
on Obligations of Subsidiary Guarantor.  (a) The obligations of each Subsidiary
Guarantor under its Guaranty at any time shall be limited to an aggregate
amount equal to the largest amount that (i) would not render such Guaranty subject
to avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provisions of applicable law and (ii) is permissible under Section
11.08(b) hereof.


 


(b)                                 It
is the intention of the parties that the Guaranties given by Restricted Subsidiaries
shall not contravene the limitations on Funded Debt (as defined in the
Indentures) of Restricted Subsidiaries set forth in the Indentures, and the
amount of such Subsidiary Guarantors’ obligations under their Guaranties shall
be limited to an aggregate amount equal to the maximum amount that may be
guaranteed by them without contravention of such restrictions contained in the
Indentures (the “Maximum Guaranteed Amount”), in
each case to the extent that such restriction is in effect under the Indentures
or any newly executed indenture containing a restriction on “Funded Debt” on
the same terms as the restriction set forth in the Indentures.  The Maximum Guaranteed Amount shall, to the
extent permitted by the Indenture, be determined as of the date which results
in the greatest amount.


 


(c)                                  The
Company represents and warrants that, as of the Effective Date, the Maximum
Guaranteed Amount shall be an amount not less than $125,000,000.  Without limiting the effect of Section
11.08(b) above, unless and until the contrary is established to their
satisfaction, the Lenders and the Administrative Agent may assume for purposes
of the Loan Documents that the Maximum Guaranteed Amount is $125,000,000, and
shall incur no liability for any action or inaction taken in reliance on such
assumption.  Without limiting the effect
of this Section 11.08(c), the Lenders and the Administrative Agent may in any
case rely upon the advice of counsel as to the Maximum Guaranteed Amount, and
shall incur no liability for any action or inaction taken in reliance on such
advice.


 


(d)                                 In
the event of any inconsistency between the provisions of any Loan Document and
this Section 11.08, the provisions of this Section 11.08 shall prevail.


 


59





















 


ARTICLE 12

MISCELLANEOUS


 


Section 12.01.  Notices.  (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b)
below), all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by facsimile, as follows:


 


(i)                                     if
to the Company, to it at Cummins Inc., 500 Jackson Street, Box 3005, Columbus,
Indiana  47202-3005, Attention of Vice
President-Treasurer (Facsimile No. (812) 377-3347);


 


(ii)                                  if
to any other Borrower or Eligible Subsidiary, to it care of the Company;


 


(iii)                               if
to the Administrative Agent:


 


(A)                    if
such notice is required by the terms hereof to be given to the Administrative
Agent at its London office, to J.P. Morgan Europe Limited, 125 London Wall,
London EC24 5AJ, Attention of Steve Clark/Nichola Hall, (Facsimile No. 44 207
777 2360), with a copy to JPMorgan Chase Bank, N.A., 270 Park Avenue, New York,
New York 10017, Attention of Frank Giacalone (Facsimile No. 212-552-5650);


 


(B)                      otherwise
to JPMorgan Chase Bank, N.A., 1 Chase Manhattan Plaza, New York, New York
10081, Attention of Frank Giacalone (Facsimile No. 212-552-5650);


 


(iv)                              if
to the Issuing Bank, to it at JPMorgan Chase Bank, N.A., 10420 Highland Manor
Drive, Tampa, Florida 33610, Attention of Standby LC Dept. James Alonzo/Ralph
Davis (Facsimile No. 813-432-5161);


 


(v)                                 if
to the Swingline Lender, to it at JPMorgan Chase Bank, N.A., 1 Chase Manhattan
Plaza, New York, New York 10081, Attention of Frank Giacalone (Facsimile No.
212-552-5650); and


 


(vi)                              if
to any other Lender, to it at its address (or facsimile number) set forth in
its Administrative Questionnaire.


 


(b)                                 Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that
the foregoing shall not apply to notices pursuant to Article 2 unless otherwise
agreed by the Administrative Agent and the applicable Lender.  The Administrative Agent or the Borrower may,
in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to
particular notices or communications.


 


60





















 


(c)                                  Any
party hereto may change its address or facsimile number for notices and other
communications hereunder by notice to the other parties hereto.  All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt.


 


Section 12.02.  Waivers; Amendments.  (a) No
failure or delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power under any Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power.  The rights and remedies
of the Administrative Agent, the Issuing Bank and the Lenders under the Loan
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have.  No waiver of
any provision of any Loan Document or consent to any departure by any Borrower
or any Subsidiary Guarantor therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given.  Without
limiting the generality of the foregoing, the making of a Loan or issuance of a
Letter of Credit shall not be construed as a waiver of any Default, regardless
of whether the Administrative Agent, any Lender or the Issuing Bank may have
had notice or knowledge of such Default at the time.


 


(b)                                 No
Loan Document nor any provision thereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Company and the Required Lenders; provided that
no such agreement shall


 


(i)                           (A)
increase the Commitment of any Lender without the written consent of such
Lender, (B) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (C) postpone the
scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Commitment, without the written consent of each Lender
affected thereby, (D) change Section 2.18(b) or Section 2.18(c) in a manner
that would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (E) change any of the provisions of this
Section or the definition of “Required Lenders” or any other provision of any
Loan Document specifying the number or percentage of Lenders required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder, without the  written
consent of each Lender, or (F) release any Guarantor from its guarantee under Article
11 hereof (except as expressly permitted by Article 11), or limit its liability
in respect of such guarantee, without the written consent of each Lender;


 


(ii)                        amend,
modify or otherwise affect the rights or duties of the Administrative Agent,
the Issuing Bank or the Swingline Lender under any Loan Document without the
prior written consent of the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be; or


 


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(iii)                     (A)
subject any Eligible Subsidiary or Original Subsidiary Borrower to any
additional obligation without the written consent of such Borrower,
(B) increase the principal of or rate of interest on any outstanding Loan
of any Eligible Subsidiary or Original Subsidiary Borrower without the written
consent of such Borrower, (C) accelerate the stated maturity of any outstanding
Loan of any Eligible Subsidiary or Original Subsidiary Borrower without the
written consent of such Borrower or (D) change this proviso (iii) without the prior written consent of each Eligible
Subsidiary and each Original Subsidiary Borrower.


 


Section 12.03.  Expenses; Indemnity; Damage Waiver. 
(a) The Company
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, and its Affiliates, including the reasonable fees,
charges and disbursements of one counsel for the Administrative Agent, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, the Issuing Bank or any Lender, including the
fees, charges and disbursements of any counsel for the Administrative Agent,
the Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection with the Loan Documents, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during  any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.


 


(b)                                 The
Company shall indemnify the Administrative Agent, the Issuing Bank and each
Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of the Loan Documents or any
agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions or any other transactions contemplated thereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or
operated by the Company or any of its Subsidiaries, or any Environmental
Liability related in any way to the Company or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee.


 


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(c)                                  To
the extent that the Company fails to pay any amount required to be paid by it
to the Administrative Agent, the Issuing Bank or the Swingline Lender under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to
the Administrative Agent, the Issuing Bank or the Swingline Lender, as the case
may be, such Lender’s Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent, the
Issuing Bank or the Swingline Lender in its capacity as such.


 


(d)                                 To
the extent permitted by applicable law, each Credit Party shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability,
for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, the Loan
Documents or any agreement or instrument contemplated thereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.


 


(e)                                  All
amounts due under this Section shall be payable promptly after written demand
therefor.


 


Section 12.04.  Successors and Assigns.  (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of Credit),
except that (i) no Credit Party may assign or otherwise transfer any of their
rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by any Credit Party without
such consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section.  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of the Issuing Bank that issues any Letter of Credit),
Participants (to the extent provided in paragraph (c) of this Section) and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


(b)                                 (i)
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans at the time owing to it) with the prior written consent (such consent not
to be unreasonably withheld or delayed) of:


 


(A)                              the
Company; provided that no consent of the Company
shall be required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund (as defined below) or, if an Event of Default under paragraph
(b), (c), (g) or (h) of Article 8 has occurred and is continuing, any other
assignee; and


 


(B)                                the
Administrative Agent, the Issuing Bank and the Swingline Lender; provided that no consent of the Administrative Agent, the
Issuing Bank 


 


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or the Swingline Lender, shall be required
for an assignment to an assignee that is a Lender immediately prior to giving
effect to such assignment.


 


(ii)                                  Assignments
shall be subject to the following additional conditions:


 


(A)                    except
in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Commitment,
the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $1,000,000 unless each of the Company and the Administrative Agent
otherwise consent; provided that
no such consent of the Company shall be required if an Event of Default under
paragraph (b), (c), (g) or (h) of Article 8 has occurred and is continuing;


 


(B)                      each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender’s rights and obligations under this Agreement;


 


(C)                      the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation
fee of $3,500;


 


(D)                     the
assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire; and


 


(E)                       in
the case of an assignment to a CLO (as defined below), the assigning Lender
shall retain the sole right to approve any amendment, modification or waiver of
any provision of this Agreement, provided that
the Assignment and Assumption between such Lender and such CLO may provide that
such Lender will not, without the consent of such CLO, agree to any amendment,
modification or waiver described in paragraph (i) of the first proviso to Section
12.02(b) that affects such CLO.


 


For the purposes of this Section 12.04(b), the terms “Approved Fund” and “CLO” have the
following meanings:


 


“Approved Fund” means (a) a CLO and (b)
with respect to any Lender that is a fund which invests in bank loans and
similar extensions of credit, any other fund that invests in bank loans and
similar extensions of credit and is managed by the same investment advisor as
such Lender or by an Affiliate of such investment advisor.


 


“CLO” means any entity (whether a
corporation, partnership, trust or otherwise) that is engaged in making,
purchasing, holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course of its business and is administered or managed
by a Lender or an Affiliate of such Lender.


 


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(iii)                               Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.14,
2.15, 2.16, 2.17 and 12.03).  Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section 12.04 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.


 


(iv)                              The
Administrative Agent, acting for this purpose as an agent of the Borrowers,
shall maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitment of, and principal amount of the Loans and LC
Disbursements owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”).  The entries in the Register shall be
conclusive absent manifest error, and each Borrower, the Administrative Agent,
the Issuing Bank and the Lenders may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection
by the Company, the Issuing Bank and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.


 


(v)                                 Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this
Section and any written consent to such assignment required by paragraph (b) of
this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register.  No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in
this paragraph.


 


(c)                                  (i)
Any Lender may, without the consent of any Borrower, the Administrative Agent,
the Issuing Bank or the Swingline Lender, sell participations to one or more
banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans owing
to it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (C) each Borrower, the Administrative Agent, the
Issuing Bank and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under
this Agreement.  Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right 


 


65





















 


to enforce
this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in paragraph (i) of the first proviso to Section 12.02(b) that
affects such Participant.  Subject to
paragraph (c)(ii) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.14, 2.15, 2.16 and Section 2.17
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 12.08 as though
it were a Lender, provided such Participant agrees
to be subject to Section 2.18(c) as though it were a Lender.


 


(ii)                                  A
Participant shall not be entitled to receive any greater payment under Section 2.14,
2.16 or 2.17 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower’s prior written
consent.  A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section
2.16 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.16(e) as though it were a Lender.


 


(d)                                 Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that
no such pledge or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.


 


Section 12.05.  Survival.  All covenants, agreements,
representations and warranties made by the Company and any Borrower herein and
in the certificates or other instruments 
delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or
any other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated.  The provisions of
Sections 2.14, 2.15, 2.16, 2.17 and 12.03 and Article 9 shall survive and
remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.


 


Section 12.06.  Counterparts; Integration; Effectiveness.  This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.  This
Agreement, the other Loan Documents and any separate letter agreements with 


 


66





















 


respect to
fees payable to the Administrative Agent constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof.  Except as
provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof which, when taken together, bear
the signatures of each of the other parties hereto, and thereafter shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.  Delivery
of an executed counterpart of a signature page of this Agreement by facsimile
shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


Section 12.07.  Severability.  Any
provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.


 


Section 12.08.  Right of Set-off.  If
an Event of Default shall have occurred and be continuing, each Lender and each
of its Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set-off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of the Borrower or any Subsidiary Guarantor against any
of and all the obligations of such Borrower or such Subsidiary Guarantor now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. 
The rights of each Lender under this Section are in addition to other
rights and remedies (including other rights of setoff) which such Lender may
have.


 


Section 12.09.  Governing Law; Jurisdiction; Consent to Service of Process.  (a) This
Agreement shall be construed in accordance with and governed by the law of the
State of New York.


 


(b)                                 Each
Credit Party hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of
New York sitting in New York County and of the United States District Court of
the Southern District of New York, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to any Loan Document, or
for recognition or enforcement of any judgment arising out of or relating to
any Loan Document, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court. 
Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.  Nothing in any Loan Document shall
affect any right that the Administrative Agent, the Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to any Loan
Document against any Borrower or Subsidiary Guarantor or its properties in the
courts of any jurisdiction.


 


67





















 


(c)                                  Each
Credit Party hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to any Loan Document in any court referred to in paragraph
(b) of this Section.  Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.


 


(d)                                 Each
party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 12.01. 
Nothing in any Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.


 


Section 12.10.  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). 
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


Section 12.11.  Judgment Currency.  If,
under any applicable law and whether pursuant to a judgment being made or
registered against any Borrower or for any other reason, any payment under or in
connection with any Loan Document is made or satisfied in a currency (the “Other Currency”) other than that in which the relevant
payment is due (the “Required Currency”)
then, to the extent that the payment (when converted into the Required Currency
at the rate of exchange on the date of payment or, if it is not practicable for
the party entitled thereto (the “Payee”) to purchase the Required Currency with
the Other Currency on the date of payment, at the rate of exchange as soon
thereafter as it is practicable for it to do so) actually received by the Payee
falls short of the amount due under the terms of any Loan Document, such
Borrower shall, to the extent permitted by law, as a separate and independent
obligation, indemnify and hold harmless the Payee against the amount of such
short-fall.  For the purpose of this
Section, “rate of exchange” means the rate at which the Payee is able on the
relevant date to purchase the Required Currency with the Other Currency and
shall take into account any premium and other costs of exchange.


 


Section 12.12.  Headings.  Article and
Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.


 


Section 12.13.  Confidentiality.  Each
of the Administrative Agent, the Issuing Bank and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors,
officers, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the 


 


68





















 


Persons to
whom such disclosure is made will be informed of the confidential nature of
such Information and will agree to keep such Information confidential),
(b) to the extent requested by any regulatory authority having
jurisdiction over it, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to any Loan Agreement or
the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of
its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations under this Agreement,
(g) with the consent of the Borrower or (h) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other than the
Borrower.  For the purposes of this
Section, “Information” means all information
received from the Borrower relating to the Borrower or its business, other than
any such information that is available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrower; provided that, in the case of
information received from the Borrower after the date hereof, such information
is clearly identified at the time of delivery as confidential.  Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.


 


Section 12.14.  USA Patriot Act Notification.  Each
Lender hereby notifies the Borrowers 
that, pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of the Borrowers and
other information that will allow such Lender to identify the Borrowers in
accordance with the Act.  The Borrowers
agree to cooperate with each Lender and provide true, accurate and complete
information to such Lender in response to any such request.


 


69





















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


 


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
   

  	
  CUMMINS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Richard E. Harris

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Richard E. Harris

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President - Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CUMMINS ENGINE CO. LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Richard E. Harris

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Richard E. Harris

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CUMMINS POWER GENERATION LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Richard E. Harris

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Richard E. Harris

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NEWAGE INTERNATIONAL LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Richard E. Harris

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Richard E. Harris

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer

  
						



 


 





















 


 


	
   

  	
  SUBSIDIARY GUARANTORS:

  
	
   

  	
   

  
	
   

  	
   

  	
  FLEETGUARD, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Richard E. Harris

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Richard E. Harris

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ONAN CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Richard E. Harris

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Richard E. Harris

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  UNIVERSAL SILENCER, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Richard E. Harris

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Richard E. Harris

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CUMMINS ENGINE IP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Richard E. Harris

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Richard E. Harris

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CUMMINS FILTRATION IP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Richard E. Harris

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Richard E. Harris

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer

  
						



 





















 


	
   

  	
   

  	
  CUMMINS POWERGEN IP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Richard E. Harris

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Richard E. Harris

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CUMMINS INTELLECTUAL PROPERTY,

  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Richard E. Harris

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Richard E. Harris

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer

  
						



 





















 


	
   

  	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  as Administrative Agent, Swingline Lender,

  Issuing Bank and Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Karen M. Sharf

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Karen M. Sharf

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
						



 





















 


	
   

  	
   

  	
  CITICORP USA, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  as Syndication Agent and Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Judith Green

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Judith Green

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
						



 





















 


	
   

  	
   

  	
  BANK OF
  AMERICA, N.A.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  as Co-Documentation Agent and Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Chris McDonnell

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Chris McDonnell

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
						



 





















 


	
   

  	
   

  	
  THE BANK OF NOVA SCOTIA

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  as Co-Documentation Agent and Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ V.H. Gibson

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  V. Gibson

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant Agent

  
						



 





















 


	
   

  	
   

  	
  The ROYAL BANK OF SCOTLAND plc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  as Co-Documentation Agent and Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Frank Guerra

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Frank Guerra

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
							



 





















 


	
   

  	
   

  	
  LENDERS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE BANK OF TOKYO-MITSUBISHI

  LTD., CHICAGO BRANCH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Shinichiro Munechika

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Shinichiro Munechika

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Deputy General Manager

  
							



 





















 


	
   

  	
   

  	
  ING CAPITAL LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ John Kippax

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John Kippax

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  
							



 





















 


	
   

  	
   

  	
  SUNTRUST BANKS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ William C. Humphries

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  William C. Humphries

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Director

  
							



 





















 


	
   

  	
   

  	
  SUMITOMO MITSUI BANKING CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Yasuhiko Imai

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Yasuhiko Imai

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
							



 





















 


	
   

  	
   

  	
  ABN AMRO BANK N.V.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Pradeep Bhatia

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Pradeep Bhatia

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
							



 





















 


	
   

  	
   

  	
  BARCLAYS PLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Vincent Muldoon

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Vincent Muldoon

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director- MCT

  
							



 





















 


	
   

  	
   

  	
  EXPORT DEVELOPMENT CANADA

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Karen Morandin

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Karen Morandin

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Financial Services Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Marc Blondin

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Marc Blondin

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Financial Services Manager

  
							



 





















 


	
   

  	
   

  	
  FIFTH THIRD BANCORP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ David O’Neal

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  David O’Neal

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
							



 





















 


	
   

  	
   

  	
  MIZUHO CORPORATE BANK, LTD.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Robert P. Gallagher

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Robert P. Gallagher

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior V.P. and Team Leader

  
								



 





















 


	
   

  	
   

  	
  NATIONAL AUSTRALIA BANK LIMITED

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Scott Tuhy

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Scott Tuhy

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  
									



 





















 


	
   

  	
   

  	
  STANDARD CHARTERED BANK

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ David B. Edwards

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  David B. Edwards

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Robert Reddington

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Robert Reddingtion

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  
								



 





















 


	
   

  	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ John M. Lokay, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John M. Lokay, Jr.

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
							



 





















 


	
   

  	
   

  	
  THE NORTHERN TRUST COMPANY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Ashish S. Bhagwat

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Ashish S. Bhagwat

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
							



 





















 


	
   

  	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Heather Hinkelman

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Heather Hinkelman

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Banking Officer

  
								



 





















 


	
   

  	
   

  	
  NATIONAL CITY BANK OF INDIANA

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /S/ Tracy J. Venable

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Tracy J. Venable

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
									



 





















 


Schedule 1.01A


 


PRICING SCHEDULE


 


The Applicable
Rate means, for any day with respect to any ABR Loan or any Euro-Currency Loan
or with respect to the commitment fees payable hereunder, the rate set forth below
in the row opposite the term “ABR Spread,” “Euro-Currency Spread” and “Commitment
Fee Rate,” respectively, and in the column corresponding to the “Pricing Level” that applies on such day:


 


	
   

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  	
  Level III

  	
   

  	
  Level IV

  	
   

  	
  Level V

  	
   

  	
  Level VI

  	
   

  
	
  Commitment Fee Rate

  	
   

  	
  0.20

  	
  %

  	
  0.25

  	
  %

  	
  0.30

  	
  %

  	
  0.35

  	
  %

  	
  0.40

  	
  %

  	
  0.50

  	
  %

  
	
  Euro-Currency Spread

  	
   

  	
  1.00

  	
  %

  	
  1.25

  	
  %

  	
  1.50

  	
  %

  	
  1.625

  	
  %

  	
  1.75

  	
  %

  	
  2.00

  	
  %

  
	
  ABR Spread

  	
   

  	
  0.00

  	
  %

  	
  0.25

  	
  %

  	
  0.50

  	
  %

  	
  0.625

  	
  %

  	
  0.75

  	
  %

  	
  1.00

  	
  %

  



 


For purposes
of this Schedule, the following terms have the following meanings, subject to
the concluding paragraph of this Schedule:


 


“Level I Pricing” applies at any date if, at
such date, the Company’s senior unsecured long-term debt is rated BBB or higher
by S&P or Baa2 or higher by Moody’s, except as provided below under “Split
Rating Pricing”.


 


“Level II Pricing” applies at any date if,
at such date, the Company’s senior unsecured long-term debt is rated BBB- by
S&P or Baa3 by Moody’s, except as provided below under “Split Rating
Pricing”.


 


“Level III Pricing” applies at any date if,
at such date, the Company’s senior unsecured long-term debt is (x) rated BB+ by
S&P and Ba1 by Moody’s.


 


“Level IV Pricing” applies at any date if,
at such date, the Company’s senior unsecured long-term debt is rated (x) BB+ by
S&P and Ba2 by Moody’s or (y) BB by S&P and Ba1 by Moody’s.


 


“Level V Pricing” applies at any date if, at such date, the
Company’s senior unsecured long-term debt is rated BB by S&P or Ba2 by
Moody’s, except as provided below under “Split Rating Pricing”.


 


“Level VI Pricing” applies at any date if,
at such date, no other Pricing Level applies.


 


“Pricing Level” refers to the determination
of which of Level I, Level II, Level III, Level IV, Level V or Level VI Pricing
applies at any date.


 


1





















 


“Split Rating Pricing” applies if the
Company has a split rating, in which case (x) if the ratings differential is
one level, the higher of the two ratings shall apply and, (y) if the ratings
differential is two levels or more, the rating which is one level below the
higher of the two ratings shall apply; provided that
the foregoing shall not apply for purposes of determining whether the Pricing
Level is Level III or Level IV.


 


The credit
ratings to be utilized for purposes of this Schedule are those assigned by
S&P or Moody’s to the senior unsecured long-term debt securities of the
Company without third-party credit enhancement, and any rating assigned to any
other debt security of the Company shall be disregarded.  The rating in effect at any date is that in
effect at the close of business on such date. 
Notwithstanding the definition of Level VI Pricing above, if the
rating system of Moody’s or S&P shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations,
the Company and the Administrative Agent shall negotiate in good faith to amend
this Pricing Schedule to reflect such changed rating system or the
nonavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Pricing Level shall be determined by reference to
the rating most recently in effect prior to such change or cessation.


 


2





















 


Schedule
1.01B


 


APPLICABLE
LENDING

OFFICE SCHEDULE


 


MANDATORY
COST


 


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


 


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


 


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


 


4.                                       The
Associated Costs Rate for any Lender lending from an Applicable Lending Office
in the United Kingdom will be calculated by the Administrative Agent as
follows:


 


(a)                                  in
relation to a Loan in Pounds Sterling:


 




	
  AB + C(B-D) + E × 0.01

  	
   

  	
  per cent. per annum

  
	
  100 – (A + C)

  






 


(b)                                 in
relation to a Loan in any currency other than Pounds Sterling:


 




	
  E × 0.01

  	
   

  	
  per cent. per annum.

  
	
  300

  






 


Where:


 


A                                      is
the percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Lender is from time to time required to maintain as 


 


1





















 


an interest
free cash ratio deposit with the Bank of England to comply with cash ratio
requirements.


 


B                                        is
the percentage rate of interest (excluding the Applicable Rate and the
Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of
interest specified in Section 2.12(d) payable for the relevant Interest Period
on the Loan.


 


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


 


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


 


E                                         is
designed to compensate Lenders for amounts payable under the Fees Rules and is
calculated by the Administrative Agent as being the average of the most recent
rates of charge supplied by the Reference Banks to the Administrative Agent
pursuant to paragraph 7 below and expressed in pounds per £1,000,000.


 


5.                                       For
the purposes of this Schedule:


 


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


 


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


 


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


 


(d)                                 “Reference Banks” means, in relation to Mandatory Cost, the
principal London offices of JPMorgan Chase Bank, N.A. and Citibank, N.A. and,
in relation to EURIBOR, the principal offices of JPMorgan Chase Bank and
Citibank, N.A. in the relevant jurisdiction or such other banks as may be
appointed by the Administrative Agent in consultation with the Borrowers.


 


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


 


(f)                                    “Unpaid Sum” means any sum due and payable but unpaid by a
Borrower under the Loan Documents.


 


2





















 


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


 


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


 


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


 


(a)                                  the
jurisdiction of its Applicable Lending Office; and


 


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


 


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


 


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


 


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


 


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


 


3





















 


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


 


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


 


4





















 


Schedule 2.01


 


COMMITMENTS




	
   

  	
   

  	
  Commitment

  	
   

  	
  Percentage

  of Total

  Commitment

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  JPMorgan Chase Bank, N.A.

  	
   

  	
  $

  	
  55,000,000.00

  	
   

  	
  8.46

  	
  %

  
	
  Citicorp USA, Inc.

  	
   

  	
  $

  	
  55,000,000.00

  	
   

  	
  8.46

  	
  %

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  45,000,000.00

  	
   

  	
  6.92

  	
  %

  
	
  The Bank of Nova Scotia

  	
   

  	
  $

  	
  45,000,000.00

  	
   

  	
  6.92

  	
  %

  
	
  The Royal Bank of Scotland plc.

  	
   

  	
  $

  	
  45,000,000.00

  	
   

  	
  6.92

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Bank of Tokyo-Mitsubishi Ltd., Chicago
  Branch

  	
   

  	
  $

  	
  45,000,000.00

  	
   

  	
  6.92

  	
  %

  
	
  ING Capital LLC

  	
   

  	
  $

  	
  35,000,000.00

  	
   

  	
  5.38

  	
  %

  
	
  SunTrust Banks, Inc.

  	
   

  	
  $

  	
  35,000,000.00

  	
   

  	
  5.38

  	
  %

  
	
  Sumitomo Mitsui Banking Corporation

  	
   

  	
  $

  	
  30,000,000.00

  	
   

  	
  4.62

  	
  %

  
	
  ABN AMRO Bank N.V.

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  3.85

  	
  %

  
	
  Barclays PLC

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  3.85

  	
  %

  
	
  Export Development Canada

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  3.85

  	
  %

  
	
  Fifth Third Bancorp

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  3.85

  	
  %

  
	
  Mizuho Corporate Bank, Ltd.

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  3.85

  	
  %

  
	
  National Australia Bank Limited

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  3.85

  	
  %

  
	
  Standard Chartered Bank

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  3.85

  	
  %

  
	
  The Bank of New York

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  3.85

  	
  %

  
	
  The Northern Trust Company

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  3.85

  	
  %

  
	
  U.S. Bank National Association

  	
   

  	
  $

  	
  25,000,000.00

  	
   

  	
  3.85

  	
  %

  
	
  National City Bank of Indiana

  	
   

  	
  $

  	
  10,000,000.00

  	
   

  	
  1.54

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  650,000,000.00

  	
   

  	
  100

  	
  %

  



 


1










 













EXHIBIT A


 


ASSIGNMENT AND ASSUMPTION


 


This Assignment and Assumption (the “Assignment
and Assumption”) is dated as of the Effective Date set forth below
and is entered into by and between [                                  ]
(the “Assignor”) and [                                  ]  (the “Assignee”).  Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified below
(as amended, the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth
in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.


 


For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor’s rights
and obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below (including any letters of credit, guarantees, and
swingline loans included in such facilities) and (ii) to the extent permitted
to be assigned under applicable law, all claims, suits, causes of action and
any other right of the Assignor (in its capacity as a Lender) against any
Person, whether known or unknown, arising under or in connection with the
Credit Agreement, any other documents or instruments delivered pursuant thereto
or the loan transactions governed thereby or in any way based on or related to
any of the foregoing, including contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the “Assigned
Interest”).  Such sale and
assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or warranty
by the Assignor.


 


	
  1.

  	
   

  	
  Assignor:

  	
   

  	
                                                                       

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Assignee:

  	
   

  	
                                                                       

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [and is an
  Affiliate/Approved Fund of [identify Lender](1)]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Borrower(s):

  	
   

  	
  Cummins Inc.,
  Cummins Engine Co. Ltd., Cummins Power Generation Ltd. and Newage
  International Limited

  



 










(1) Select
as applicable.


 





















 


	
  4.

  	
   

  	
  Administrative
  Agent:

  	
   

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

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Credit Agreement:

  	
   

  	
  The Credit
  Agreement dated as of December 1, 2004 among Cummins, Inc., Cummins Engine
  Co. Ltd., Cummins Power Generation Ltd. and Newage International Limited, the
  Eligible Subsidiaries and Subsidiary Guarantors referred to therein, the
  Lenders parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent,
  Issuing Bank and Swingline Lender, and the other agents parties thereto

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Assigned
  Interest:

  	
   

  	
   

  



 


	
  Aggregate
  Amount of

  Commitment/Loans for all

  Lenders

  	
   

  	
  Amount
  of

  Commitment/Loans Assigned

  	
   

  	
  Percentage
  Assigned of 

  Commitment/Loans(2)

  
	
  $

  	
   

  	
  $

  	
   

  	
  %

  
	
  $

  	
   

  	
  $

  	
   

  	
  %

  
	
  $

  	
   

  	
  $

  	
   

  	
  %

  



 


 


Effective Date:                      
        , 20        
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE
OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


The terms set forth in this Assignment and Assumption are hereby agreed
to:


 


	
   

  	
  ASSIGNOR

  
	
   

  	
   

  
	
   

  	
  [NAME OF
  ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
   

  
	
   

  	
  [NAME OF
  ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
				



 










(2) Set forth,
to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders
thereunder.


 


2





















 


	
  Consented to and Accepted:

  	
   

  
	
   

  	
   

  
	
  JPMORGAN CHASE BANK, N.A., as

  Administrative Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  [Consented to:]

  	
   

  
	
   

  	
   

  
	
  [NAME OF RELEVANT PARTY]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


3





















 


ANNEX 1


 


STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION


 


1.  Representations and
Warranties.


 


1.1           Assignor.  The
Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of
any lien, encumbrance or other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the Credit
Agreement or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents
thereunder, (iii) the financial condition of the Borrowers, any of their
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan
Document or (iv) the performance or observance by the Borrowers, any of their
Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.


 


1.2.          Assignee.  The
Assignee (a) represents and warrants that (i) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the Credit Agreement, (ii) it satisfies the requirements, if
any, specified in the Credit Agreement that are required to be satisfied by it
in order to acquire the Assigned Interest and become a Lender, (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest,
shall have the obligations of a Lender thereunder, (iv) it has received a copy
of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.04 thereof, as applicable, and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and
to purchase the Assigned Interest on the basis of which it has made such
analysis and decision independently and without reliance on the Administrative
Agent or any other Lender, and (v) if it is a Foreign Lender, attached to the
Assignment and Assumption is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.


 


2.             Payments.  From
and after the Effective Date, the Administrative Agent shall make all payments
in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.


 


A-1





















 


3.             General
Provisions.  This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns.  This Assignment
and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. 
Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be
governed by, and construed in accordance with, the law of the State of New
York.


 


A-2





















 


EXHIBIT B-1


FORM OF OPINION OF COMPANY’S EXTERNAL COUNSEL


 


 


[TO BE PROVIDED BY CRAVATH]


 


B1-1





















 


EXHIBIT B-2


 


FORM OF OPINION OF INTERNAL COUNSEL FOR THE
COMPANY


 


December 1, 2004


JPMorgan Chase Bank, N.A.,


as Administrative Agent,


and the Lenders, care of the


Administrative Agent


270 Park Avenue


New York, NY 10017


 


Ladies and Gentlemen:


 


Reference is made to the Credit Agreement dated as of December 1, 2004
(the “Credit Agreement”), among the Company, and Cummins Engine Co. Ltd.,
Cummins Power Generation Ltd. and Newage International Limited (collectively,
the “Original Subsidiary Borrowers”), the Original Subsidiary Guarantors, the
Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent,
Issuing Bank and Swingline Lender, Citicorp USA, Inc., as Syndication Agent,
and Bank of America, N.A., The Bank of Nova Scotia and The Royal Bank of
Scotland plc., as Co-Documentation Agents. 
This opinion is being delivered to you pursuant to Section 4.01(b)
of the Credit Agreement.  Capitalized
terms used but not defined herein shall have the meanings assigned to them in
the Credit Agreement.


 


As chief legal officer of the Company and each Subsidiary listed on
Schedule 1 hereto (“Subsidiary Guarantor”) and each Subsidiary listed on
Schedule 2 hereto (“Delaware Subsidiary Guarantor”), I advise you that, in my
opinion:


 


1.             The Company and
each Subsidiary Guarantor is a corporation duly organized, validly existing and
in good standing under the laws of Indiana; the Company and each Subsidiary
Guarantor is duly qualified as a foreign corporation and in good standing in
every other jurisdiction in which the failure to qualify would adversely affect
the business, assets, operations, prospects or conditions (financial or
otherwise) of the Company or such Subsidiary Guarantor or would impair the
validity or enforceability of or the ability of the Company and each Subsidiary
Guarantor to perform its obligations under the Loan Documents and the Notes or
the rights and benefits of the Lenders under the Loan Documents or the Notes.


 


2.             Each of the Company
and each Subsidiary Guarantor has all requisite power and authority to own its
property and assets and to carry on its business as now conducted and as
proposed to be conducted, and to execute, deliver and perform the Loan
Documents and all transactions contemplated thereby, to execute and deliver the
Notes and, in the case of the Company, make the contemplated borrowings
thereunder.


 


B2-1





















 


3.             The Transactions
(a) have been duly authorized by all necessary corporate action (including
any necessary stockholder action) on the part of the Company, each Subsidiary
Guarantor and each Delaware Subsidiary Guarantor and (b) will not
(i) materially violate any provision of any law, rule or regulation
applicable to the Company, any Subsidiary Guarantor or any Delaware Subsidiary
Guarantor, (ii) to the best of my knowledge, materially violate any order,
writ, judgment, decree, determination or award having applicability to the
Company, any Subsidiary Guarantor or any Delaware Subsidiary Guarantor,
(iii) materially violate any provision of the Certificate or Articles of
Incorporation or By-Laws of the Company, of any Subsidiary Guarantor or of any
Delaware Subsidiary Guarantor, (iv) to the best of my knowledge, constitute
a material default under any material indenture or loan or credit agreement, or
any other material agreement or instrument, to which the Company, any
Subsidiary Guarantor or any Delaware Subsidiary Guarantor is a party or by
which any of them or their properties may be bound or affected or
(v) result in, or require, the creation or imposition of any Lien (other
than a Transaction Lien) of any nature upon it with respect to any of the
properties now owned or hereafter acquired by the Company, Subsidiary Guarantor
or any Delaware Subsidiary Guarantor.  To
the best of my knowledge, the Company, each Subsidiary Guarantor and each
Delaware Subsidiary Guarantor is not in default under or in violation of its
Certificate or Articles of Incorporation or other organizing document or its
By-Laws or any such law, rule, or regulation, order, writ, judgment, decree,
determination, award, indenture or agreement pertaining to borrowed money or
similar instrument.


 


4.             No authorization,
consent, approval, license or exemption from, nor any filing, declaration or
registration with, any court, governmental agency or regulatory authority
(Federal, state or local), including, without limitation, the Securities and
Exchange Commission (other than routine disclosure) or any public utility
regulatory agency, or with any securities exchange, is or will be required in
connection with the making and performance by the Company and each Subsidiary
Guarantor of the Loan Documents or the contemplated borrowings thereunder
except filings required to be made under the Security Agreement to perfect the
Transaction Liens.


 


5.             There are no
actions, suits or proceedings pending or, to the best of my knowledge,
threatened, against or affecting the Company or any Subsidiary or any of their
respective assets in any court or before any arbitrator, commission, board,
bureau or other administrative agency which if, in any such case, adversely
determined, would be likely to have a material adverse effect on the
businesses, assets, operations, prospects or condition (financial or otherwise)
of the Company or of any Subsidiary Guarantor or would impair the validity or
enforceability of or the ability of the Company or any Subsidiary Guarantor to
perform its obligations under the Loan Documents or any of the Notes.


 


6.             The Company is not
(a) an “investment company” as defined in, or subject to regulation under,
the Investment Company Act of 1940, as amended, (b) ”holding company” or a
“subsidiary company” of a holding company as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935 or
(c) subject to any other applicable regulatory scheme which restricts its
ability to incur the indebtedness to be incurred under the Loan Documents and
the Notes.


 


B2-2





















 


7.             The making of the
Loans under the Credit Agreement and the use of the proceeds thereof as
contemplated by the Credit Agreement will not violate or be inconsistent with
any of the provisions of Regulation U or Regulation X of the Board.


 


No opinion is expressed herein as to (i) Section 12.09(b) of
the Credit Agreement and insofar as such Section relates to the subject matter
jurisdiction of the United States District Court for the Southern District of
New York to adjudicate any controversy related to the Credit Agreement,
(ii) the waiver of inconvenient forum set forth in Section 12.09(c)
of the Credit Agreement with respect to proceedings in the United States
District Court for the Southern District of New York or (iii) Section 2.18(c)
of the Credit Agreement.


 


The opinions expressed herein are limited to the laws of the State of
Indiana and federal law.


 


	
   

  	
  Very truly yours,

  



 


B2-3





















 


EXHIBIT B-3


 


FORM OF OPINION OF COUNSEL FOR ORIGINAL 

SUBSIDIARY BORROWERS


 


TO:


The Lenders and Agents Referred to Below

c/o  J. P. Morgan Chase Bank

270 Park Avenue

New York,


New York 10017, USA


 


Dear Sirs:


 


LEGAL OPINION


Credit Agreement dated December 1, 2004


 


I am Counsel to Cummins Engine Company Limited, Cummins Power
Generation Limited and Newage International Limited, each a UK limited
liability company (the “Original Subsidiary Borrowers”) and give this opinion
pursuant to Section 4.01 of the Credit Agreement (the “Credit Agreement”) dated
December 1, 2004 among Cummins Inc., the other Original Subsidiary Borrowers,
the Original Subsidiary Guarantors and Lenders party thereto, J.P.Morgan Chase
Bank, as Administrative Agent, Citicorp USA, Inc., as Syndication Agent and Bank
of America, N.A., The Bank of Nova Scotia and The Royal Bank of Scotland plc.,
as Co-Documentation Agents.  Terms
defined in the Credit Agreement are used herein as therein defined.


 


I have examined originals or
copies, certified or otherwise identified to my satisfaction, of such
documents, corporate records, certificates of public officials and other
instruments and have conducted such other investigations of fact and law as I
have deemed necessary or advisable for purposes of this opinion.


 


Upon the basis of the foregoing, I am of the opinion:


 


1.                                       THAT the Original Subsidiary
Borrowers


(a)                                  are companies duly organized,
validly existing and in good standing under the laws of the jurisdiction of the
England and Wales;  and


(b)                                 each is a Wholly-Owned Consolidated
Subsidiary;


 


2.                                       THAT each Original Subsidiary
Borrower has the corporate power to execute and perform the Credit Agreement by
authority of its Memorandum & Articles of Association;


 


3.                                       THAT by virtue of board resolutions
passed by the directors of the Original Subsidiary Borrowers:


 


B3-1





















 


(a)                                  execution by, and delivery of and
performance of, its obligations under the Credit Agreement has been duly
approved;


(b)                                 the Credit Agreement shall be
construed in accordance with and governed by the law of the State of New York,
USA;  and


(c)                                  Cummins, Inc. has been validly
appointed by each of the Original Subsidiary Borrowers for the service and/or
enforcement of judgment in respect of the Credit Agreement;


 


4.                                       THAT execution and delivery of and
performance of its obligations under, the Credit Agreement would not conflict
with any statutory, regulatory or corporate obligations (including under its
Memorandum and Articles of Association) nor constitute a breach of contract
currently binding upon the Original Subsidiary Borrowers;


 


5.                                       THAT no requirement exists for the
Credit Agreement to be registered with, nor sanction or consent obtained from,
any regulatory body;


 


6.                                       AND THAT there is no tax, levy,
impost, deduction, charge or withholding imposed by the United Kingdom or any
governmental authority therein either (i) on or by virtue of the execution,
delivery, performance, enforcement or admissibility into evidence of the Loan
Documents;  or (ii) on any payment to be
made by the Original Subsidiary Borrowers pursuant to any Loan Document, except
that a withholding tax is imposed by the United Kingdom on payments of interest
on any Loan made to a Lender that is a non-resident of the United Kingdom for
tax purposes.


 


Yours
faithfully,


 


B3-2





















 


EXHIBIT C


 


FORM OF OPINION OF COUNSEL FOR
 ADMINISTRATIVE AGENT


 


To the Lenders and the Administrative Agent

  Referred to Below

c/o JPMorgan Chase Bank, N.A., as Administrative Agent

270 Park Avenue

New York, New York  10017


 


Ladies and Gentlemen:


 


We have participated in the preparation of the Credit Agreement (the “Credit Agreement”) dated as of December 1,
2004 among Cummins, Inc., an Indiana corporation (the “Company”), the other Borrowers, the Original
Subsidiary Guarantors and Lenders parties thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as
Administrative Agent (the “Administrative
Agent”), Citicorp USA, Inc., as Syndication Agent and Bank of
America, N.A., The Bank of Nova Scotia and The Royal Bank of Scotland plc., as
Co-Documentation Agents, and have acted as special counsel for the
Administrative Agent for the purpose of rendering this opinion pursuant to
Section 4.01(c) of the Credit Agreement. 
Terms defined in the Credit Agreement are used herein as therein
defined.


 


We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other investigations
of fact and law as we have deemed necessary or advisable for purposes of this
opinion.  In our examination, we have
assumed the (a) genuineness of all signatures, (b) the legal capacity of all
natural persons executing documents, (c) the due existence of each Credit
Party, (d) that each Credit Party has all necessary corporate power and
authority to execute and deliver the Credit Agreement and to perform its
obligations thereunder, (e) the due authorization, execution, and delivery of
the Credit Agreement, (f) the authenticity of all documents submitted to us as
originals, and (g) the conformity to originals of all documents submitted to us
as copies.


 


Upon the basis of the foregoing, we are of the opinion that the Credit
Agreement constitutes a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws relating to or affecting creditors’ rights generally from
time to time in effect and to general principles of equity (including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing), regardless of whether considered in a proceeding in equity or at law.


 


1





















 


We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of
the United States of America.  In giving
the foregoing opinion, we express no opinion as to the effect (if any) of any
law of any jurisdiction (except the State of New York) in which any Lender is
located which limits the rate of interest that such Bank may charge or collect.


 


This opinion is rendered solely to you in connection with the above
matter.  This opinion may not be relied
upon by you for any other purpose or relied upon by any other person without
our prior written consent.


 


Very truly
yours,


 


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EXHIBIT D


 


ELECTION TO PARTICIPATE


 


                              
, 200   


 


JPMorgan Chase Bank, N.A., as 

Administrative Agent for

the Lenders party to the Credit

Agreement referred to below


 


Dear Sirs:


 


Reference is made to the Credit Agreement dated as of December 1, 2004
among Cummins, Inc., the other Borrowers, the Original Subsidiary Guarantors
and the Lenders described therein, JPMorgan Chase Bank, N.A.,  as Administrative Agent, Citicorp USA, Inc.,
as Syndication Agent, and Bank of America, N.A., The Bank of Nova Scotia and
The Royal Bank of Scotland plc., as Co-Documentation Agents (as the same may be
amended from time to time, the “Credit
Agreement”).  Terms not
defined herein which are defined in the Credit Agreement have for purposes
hereof the meanings provided therein.


 


The undersigned, [Name of Eligible Subsidiary], a [Jurisdiction of
Incorporation] corporation, hereby elects to be an Eligible Subsidiary for
purposes of the Credit Agreement, effective from the date hereof until an
Election to Terminate shall have been delivered on behalf of the undersigned in
accordance with the Credit Agreement. 
The undersigned confirms that the representations and warranties set
forth in Article 10 of the Credit Agreement are true and correct as to the
undersigned as of the date hereof, and the undersigned agrees to perform all
the obligations of an Eligible Subsidiary under, and to be bound in all
respects by the terms of, the Credit Agreement, including without limitation
Section 12.09 thereof, as if the undersigned were a signatory party thereto.


 


[Tax disclosure pursuant to Section 10.04]


 


The address to which all notices to the undersigned under the Credit
Agreement should be directed is:


 


[Address]


 


 


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This instrument shall be construed in accordance with and governed by
the laws of the State of New York.


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  [NAME OF
  ELIGIBLE SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


The undersigned confirms that [Name of Eligible Subsidiary] is an Eligible
Subsidiary for purposes of the Credit Agreement described above.


 


	
   

  	
  CUMMINS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Receipt of the above Election to Participate is acknowledged on and as
of the date set forth above.


 


	
   

  	
  JPMORGAN CHASE BANK, N.A.

  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


2





















 


EXHIBIT E


 


ELECTION TO TERMINATE


 


                              
, 200   


 


JPMorgan Chase Bank, N.A., as 

Administrative Agent for

the Lenders party to the Credit

Agreement referred to below


 


Dear Sirs:


 


Reference is made to the Credit Agreement dated as of December 1, 2004
among Cummins, Inc., the other Borrowers, the Original Subsidiary Guarantors
and the Lenders described therein, JPMorgan Chase Bank, N.A., as Administrative
Agent, Citibank USA, Inc., as Syndication Agent, and Bank of America, N.A., The
Bank of Nova Scotia and The Royal Bank of Scotland plc., as Co-Documentation
Agents (as the same may be amended from time to time, the “Credit Agreement”).  Terms not defined herein which are defined in
the Credit Agreement have for purposes hereof the meanings provided therein.


 


The undersigned, [Name of Eligible Subsidiary], a [Jurisdiction of
Incorporation] corporation, hereby elects to terminate its status as an
Eligible Subsidiary for purposes of the Credit Agreement, effective as of the
date hereof.  The undersigned represents
and warrants that all principal and interest on all Loans made to the
undersigned and all other amounts payable by the undersigned pursuant to the
Credit Agreement have been paid in full on or before the date hereof.  Notwithstanding the foregoing, this Election
to Terminate shall not affect any obligation of the undersigned heretofore
incurred under the Credit Agreement.


 


This instrument shall be construed in accordance with and governed by
the laws of the State of New York.


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  [NAME OF
  ELIGIBLE SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


1





















 


The undersigned confirms that the status of [Name of Eligible
Subsidiary] as an Eligible Subsidiary for purposes of the Credit Agreement
described above is terminated as of the date hereof.


 


	
   

  	
  CUMMINS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Receipt of the above Election to Terminate is acknowledged on and as of
the date set forth above.


 


	
   

  	
  JPMORGAN CHASE BANK, N.A., as

  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


2





















 


EXHIBIT F


 


FORM OF OPINION OF COUNSEL FOR AN ELIGIBLE
SUBSIDIARY


 


To the Lenders and Agents


Referred to Below


c/o          JPMorgan Chase Bank,
N.A.


270 Park Avenue


New York, New York  10017


 


Dear Sirs:


 


I am counsel to [Name of Eligible Subsidiary], a [Jurisdiction of
Incorporation] corporation (the “Borrower”) and give this opinion pursuant to
Section 4.03 of the Credit Agreement (the “Credit Agreement”) dated as of
December 1, 2004 among Cummins Inc., the other Borrowers, the Original
Subsidiary Guarantors and Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative
Agent, Citicorp USA, Inc., as Syndication Agent and Bank of America, N.A., The
Bank of Nova Scotia and The Royal Bank of Scotland plc., as Co-Documentation
Agents.  Terms defined in the Credit
Agreement are used herein as therein defined.


 


I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as I have deemed necessary or advisable for
purposes of this opinion.


 


Upon the basis of the foregoing, I am of the opinion that:


 


1.             The [Eligible
Subsidiary] (a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and (b) is a
Wholly-Owned Consolidated Subsidiary.


 


2.             The Transactions
and the execution and delivery by [Eligible Subsidiary] of its Election to
Participate and the performance by [Eligible Subsidiary] of the Credit
Agreement, (a) have been duly authorized by all requisite [corporate]
(including any requisite [stockholder] action) and (b) will not (i) materially
violate any provision of law, statute, rule or regulation, or of the
certificate or articles of incorporation or other constitutive documents or
bylaws of [Eligible Subsidiary], (ii) materially violate any order of any
Governmental Authority or (iii) materially violate any provision of any
material indenture, agreement or other instrument to which the [Eligible
Subsidiary] is a party or by which any of them or any of their property is or
may be bound, (iv) be in material conflict with, result in a material breach of
or constitute (alone or with notice or lapse of time or both) a default under
any such indenture, agreement or other


 


1





















 


instrument or (v) result in or
require the creation or imposition of any Lien upon any property or assets of
the Company or any Subsidiary.


 


3.             [Eligible
Subsidiary’s] Election to Participate, and the Credit Agreement constitutes a
legal, valid and binding obligation of such [Eligible Subsidiary] enforceable
against such [Eligible Subsidiary] in accordance with its terms.


 


4.             Except as disclosed
in such Election to Participate, there is no income, stamp or other tax of any
country, or any taxing authority thereof or therein, imposed by or in the
nature of withholding or otherwise, which is imposed on any payment to be made
by [Eligible Subsidiary] pursuant hereto, or is imposed on or by virtue of the
execution, delivery or enforcement of its Election to Participate.


 


Very truly
yours,


 


2





















 


EXHIBIT G


 


FORM OF COMPLIANCE CERTIFICATE


 


[Letterhead of Cummins Inc.]


 


	
   

  	
   

  	
   

  
	
  Agreement:

  	
   

  	
  Credit
  Agreement

  
	
   

  	
   

  	
   

  
	
  Date of
  Agreement:

  	
   

  	
  December 1,
  2004

  
	
   

  	
   

  	
   

  
	
  Description:

  	
   

  	
  Five Year
  Multicurrency Revolving Facility

  
	
   

  	
   

  	
   

  
	
  Relevant
  Section:

  	
   

  	
  Section
  5.04(c) of the Credit Agreement requires a

  Financial Officer’s certificate to be delivered with

  quarterly and annual financial statements

  
	
   

  	
   

  	
   

  
	
  Date of
  financial statements:

  	
   

  	
  [                                        ]

  
	
   

  	
   

  	
   

  
	
  Date of
  Certification:

  	
   

  	
  [                                        ]

  



 


Certification:


 


I [                          ],
the [                                                  ]
of Cummins Inc., certify that no Default as defined in the Credit Agreement has
occurred [other than those set forth in Schedule [       ]
hereto, as to which the corrective actions set forth in such Schedule are being
or are proposed to be taken].


 


I further certify the following statements of position relative to
Sections 6.04, 7.01 and 7.02, in each case as more fully set forth on Annex 1
hereto:


 


1.               The ratio of Total Debt plus
Securitization Financing to Consolidated EBITDA for the four fiscal quarters
most recently ended on or prior to this date was [          ]
to 1.0.


 


2.               The ratio of Consolidated EBITDA minus
Capital Expenditures to Consolidated Interest Expense, in each case for the
four consecutive fiscal quarters ended on or prior to this date, was [                  ]
to 1.0.


 



Information required to be delivered
pursuant to Section 5.04(a), (b) and (c) has been posted to the Company’s
website at www.cummins.com and at the Edgar Database at www.sec.gov.


 


	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


1





















 


ANNEX 1


 


Credit Agreement

Dated as of December 1, 2004


 


1.    Onan Lease Obligations (Section 6.04)


	
  ONAN LEASE OBLIGATIONS

  	
   

  	
  $

  
	
   

  	
   

  	
  Maximum
  Permitted amount is $150 million

  



 


2.    Receivables Financing Indebtedness (Section 6.04)


	
  RECEIVABLES FINANCING
  INDEBTEDNESS

  	
   

  	
  $

  
	
   

  	
   

  	
  Maximum
  Permitted amount is $200 million

  



 


1





















 


3.    Leverage Ratio (Section 7.01)


	
  TOTAL DEBT (1)

  	
   

  	
  = $

  
	
   

  	
   

  	
   

  
	
  SECURITIZATION FINANCING
  (2)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Consolidated Net Income

  	
   

  	
  $

  
	
  Interest Expense

  	
   

  	
  + $

  
	
  plus consolidated income
  tax expense

  	
   

  	
  + $

  
	
  plus all amounts
  attributable to depreciation and amortization

  	
   

  	
  + $

  
	
  plus extraordinary or
  non-recurring cash charges

  	
   

  	
  + $

  
	
  minus extraordinary gains

  	
   

  	
  - $

  
	
  minus income from joint ventures, except to the extent dividends or distributions
  were actually paid by such joint venture

  	
   

  	
  - $

  
	
  CONSOLIDATED EBITDA for the four fiscal quarters most recently ended
  on or prior to this date (3)

  	
   

  	
  = $

  
	
   

  	
   

  	
   

  
	
  LEVERAGE RATIO (((1)+(2))/(3))

  	
   

  	
   

  
	
  REQUIRED RATIO

  	
   

  	
  < 3.25 to 1.0 at any
  date prior to December 31, 2006; OR < 3.0 to 1.0 at any time on or after
  December 31, 2006

  



 


2





















 


 


4.    Coverage Ratio  (Section 7.02)


	
  CONSOLIDATED EBITDA (3
  above)

  	
   

  	
  = $

  
	
   

  	
   

  	
   

  
	
  CAPITAL EXPENDITURES (4)

  	
   

  	
  = $

  
	
   

  	
   

  	
   

  
	
  CONSOLIDATED INTEREST
  EXPENSE (5)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  CALCULATED RATIO (((3) –(4))/(5))

  	
   

  	
   

  
	
  REQUIRED RATIO

  	
   

  	
  1.5:1

  



 


3





















 


EXHIBIT H


 


JOINDER AGREEMENT


 


JOINDER AGREEMENT (the “Joinder
Agreement”), dated as of [                              ]
between [                                         ]
(the “New Subsidiary Guarantor”),
Cummins Inc. (the “Company”) and
JPMorgan Chase Bank, N.A., as Administrative Agent (the “Agent”).


 


WHEREAS, Cummins Inc., Cummins Engine Co. Ltd., Cummins Power
Generation Ltd., Newage International Limited (collectively, the “Borrowers”), the Original Subsidiary
Guarantors and the Lenders party thereto (the “Lenders”), the Agent, Citicorp USA, Inc. as Syndication Agent
and Bank of America, N.A., The Bank of Nova Scotia and The Royal Bank of
Scotland plc., as Co-Documentation Agents, entered into a Credit Agreement
dated as of December 1, 2004 (as amended, supplemented or otherwise modified
from time to time, the “Credit Agreement”);


 


WHEREAS, unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement; and


 


WHEREAS, the New Subsidiary Guarantor is a Material Subsidiary of the
Company;


 


NOW, THEREFORE,  for good and
valid consideration, the sufficiency of which hereby is acknowledged, the
parties hereto agree as follows:


 


1.             Guaranty.  The
New Subsidiary Guarantor unconditionally guarantees the full and punctual payment
(whether at stated maturity, upon acceleration or otherwise) of the principal
of and interest on each Loan made to and each obligation to reimburse any LC
Disbursement incurred by each Borrower pursuant to the Credit Agreeement, and
the full and punctual payment of all other amounts payable by each Borrower
under this Agreement.


 


2.             Party to the Credit Agreement.   The New Subsidiary Guarantor acknowledges
that, by signing this Joinder Agreement and delivering it to the Administrative
Agent, the New Guarantor: (a) shall be a Subsidiary Guarantor for all purposes
under the Credit Agreement, and, as such, shall be deemed to be a Subsidiary
Guarantor for such purposes and  (b)
shall (i) be bound by all covenants, agreements, acknowledgements and other
terms and provisions applicable to it as a Subsidiary Guarantor pursuant to the
Credit Agreement and the documents executed in connection therewith to the same
extent, and in the same manner, as if it (in its capacity as a Subsidiary
Guarantor) were a direct party thereto and (ii) perform all obligations
required of it pursuant to the Credit Agreement and the documents executed in
connection therewith.


 


3.             Review of Credit Agreement.  The New Subsidiary Guarantor
hereby acknowledges that it has received and reviewed a copy (in execution
form) of the Credit Agreement and the documents executed in connection
therewith (including, without limitation, all amendments, supplements and other
modifications thereto).


 


4.             Representations and Warranties.  The New Subsidiary Guarantor
hereby represents and warrants that (a) all representations and warranties
contained in the Credit


 


1





















 


Agreement and such other
documents which are applicable to it (after giving effect to this Joinder
Agreement) are true and correct in all material respects and (b) immediately
prior to and immediately after the effectiveness of this Joinder Agreement, no
Default or Event of Default shall have occurred and be continuing.


 


5.             Governing Law. 
This Joinder Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.


 


2





















 


IN WITNESS HEREOF, the undersigned has caused this Joinder Agreement to
be duly executed and delivered by its proper and duly authorized officer as of
the date of this Joinder Agreement.


 


	
   

  	
  [Name of New
  Subsidiary Guarantor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  ACKNOWLEDGED AND AGREED TO:

  	
   

  
	
   

  	
   

  
	
  JPMorgan
  Chase Bank, N.A.,

  as Administrative Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
						



 


3