Exhibit 4.1


 


EXECUTION COPY


 


Published CUSIP Numbers


Senior Credit Facilities: [                  ]


Revolving Facility: [                  ]


Term Facility: [                  ]


 


CREDIT AGREEMENT


 


Dated as of September 27, 2010


 


among


 


OSHKOSH CORPORATION,


 


VARIOUS FINANCIAL INSTITUTIONS,


 


BANK OF AMERICA, N.A.,


as Administrative Agent, as an Issuer

and as Swing Line Lender,


 


JPMORGAN CHASE BANK, N.A.,


as Syndication Agent and as an Issuer,


 


THE ROYAL BANK OF SCOTLAND plc


and


WELLS FARGO BANK, NATIONAL ASSOCIATION,


as Co-Documentation Agents,


 


and


 


BANC OF AMERICA SECURITIES LLC


J.P. MORGAN SECURITIES LLC


RBS SECURITIES INC.


and


WELLS FARGO SECURITIES, LLC,


as Co-Lead Arrangers and Co-Book Managers


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  I

  	
   

  	
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.01

  	
   

  	
  Certain
  Defined Terms

  	
   

  	
  1

  
	
  1.02

  	
   

  	
  Other
  Interpretive Provisions

  	
   

  	
  33

  
	
  1.03

  	
   

  	
  Accounting
  Principles

  	
   

  	
  34

  
	
  1.04

  	
   

  	
  Currency
  Equivalents Generally

  	
   

  	
  35

  
	
  1.05

  	
   

  	
  Letter
  of Credit Amounts

  	
   

  	
  35

  
	
  1.06

  	
   

  	
  Times
  of Day

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
   

  	
  THE CREDITS

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.01

  	
   

  	
  The
  Credits

  	
   

  	
  35

  
	
  2.02

  	
   

  	
  Loan
  Accounts

  	
   

  	
  35

  
	
  2.03

  	
   

  	
  Procedure
  for Borrowing

  	
   

  	
  36

  
	
  2.04

  	
   

  	
  Conversion
  and Continuation Elections

  	
   

  	
  37

  
	
  2.05

  	
   

  	
  The
  Swing Line Loans

  	
   

  	
  39

  
	
  2.06

  	
   

  	
  Procedure
  for Swing Line Loans

  	
   

  	
  39

  
	
  2.07

  	
   

  	
  The
  Fronted Offshore Currency Loans

  	
   

  	
  41

  
	
  2.08

  	
   

  	
  Utilization
  of Commitments in Offshore Currencies; Valuation

  	
   

  	
  43

  
	
  2.09

  	
   

  	
  Voluntary
  Termination or Reduction of Revolving Commitments

  	
   

  	
  45

  
	
  2.10

  	
   

  	
  Optional
  Prepayments

  	
   

  	
  45

  
	
  2.11

  	
   

  	
  Mandatory
  Prepayments of Loans

  	
   

  	
  46

  
	
  2.12

  	
   

  	
  Repayment

  	
   

  	
  47

  
	
  2.13

  	
   

  	
  Interest

  	
   

  	
  47

  
	
  2.14

  	
   

  	
  Fees

  	
   

  	
  48

  
	
  2.15

  	
   

  	
  Computation
  of Fees and Interest

  	
   

  	
  49

  
	
  2.16

  	
   

  	
  Payments
  by the Borrowers

  	
   

  	
  49

  
	
  2.17

  	
   

  	
  Payments
  by the Lenders to the Agent

  	
   

  	
  49

  
	
  2.18

  	
   

  	
  Sharing
  of Payments, Etc.

  	
   

  	
  50

  
	
  2.19

  	
   

  	
  Subsidiary
  Borrowers

  	
   

  	
  50

  
	
  2.20

  	
   

  	
  Increase
  in Revolving Facility

  	
   

  	
  51

  
	
  2.21

  	
   

  	
  Increase
  in Term Facility

  	
   

  	
  53

  
	
  2.22

  	
   

  	
  Term
  Loan Repurchases

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  	
   

  	
  THE LETTERS OF CREDIT

  	
   

  	
  57

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.01

  	
   

  	
  The
  Letter of Credit Subfacility

  	
   

  	
  57

  
	
  3.02

  	
   

  	
  Issuance,
  Amendment and Renewal of Letters of Credit

  	
   

  	
  59

  
	
  3.03

  	
   

  	
  Risk
  Participations, Drawings and Reimbursements

  	
   

  	
  60

  
	
  3.04

  	
   

  	
  Repayment
  of Participations

  	
   

  	
  62

  
	
  3.05

  	
   

  	
  Role
  of the Issuers

  	
   

  	
  63

  
	
  3.06

  	
   

  	
  Obligations
  Absolute

  	
   

  	
  63

  
	
  3.07

  	
   

  	
  Backup
  Support

  	
   

  	
  64

  
	
  3.08

  	
   

  	
  Letter
  of Credit Fees

  	
   

  	
  64

  
	
  3.09

  	
   

  	
  Applicability
  of ISP98 and UCP

  	
   

  	
  65

  
	
  3.10

  	
   

  	
  Utilization
  of Offshore Currencies

  	
   

  	
  65

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.11

  	
   

  	
  Cash
  Collateral

  	
   

  	
  66

  
	
  3.12

  	
   

  	
  Defaulting
  Lenders

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  	
   

  	
  TAXES, YIELD PROTECTION AND ILLEGALITY

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.01

  	
   

  	
  Taxes

  	
   

  	
  69

  
	
  4.02

  	
   

  	
  Illegality

  	
   

  	
  70

  
	
  4.03

  	
   

  	
  Increased
  Costs and Reduction of Return

  	
   

  	
  71

  
	
  4.04

  	
   

  	
  Funding
  Losses

  	
   

  	
  72

  
	
  4.05

  	
   

  	
  Inability
  to Determine Rates

  	
   

  	
  72

  
	
  4.06

  	
   

  	
  Certificates
  of Lenders

  	
   

  	
  73

  
	
  4.07

  	
   

  	
  Substitution
  of Lenders

  	
   

  	
  73

  
	
  4.08

  	
   

  	
  Survival

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  V

  	
   

  	
  CONDITIONS PRECEDENT

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.01

  	
   

  	
  Conditions
  to Effectiveness and Initial Credit Extension

  	
   

  	
  74

  
	
  5.02

  	
   

  	
  Conditions
  to All Credit Extensions

  	
   

  	
  76

  
	
  5.03

  	
   

  	
  Initial
  Loans to a Subsidiary Borrower

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  	
   

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.01

  	
   

  	
  Corporate
  Existence and Power

  	
   

  	
  78

  
	
  6.02

  	
   

  	
  Corporate
  Authorization; No Contravention

  	
   

  	
  78

  
	
  6.03

  	
   

  	
  Governmental
  and Third-Party Authorization

  	
   

  	
  78

  
	
  6.04

  	
   

  	
  Binding
  Effect

  	
   

  	
  79

  
	
  6.05

  	
   

  	
  Litigation

  	
   

  	
  79

  
	
  6.06

  	
   

  	
  No
  Default

  	
   

  	
  79

  
	
  6.07

  	
   

  	
  ERISA
  Compliance

  	
   

  	
  79

  
	
  6.08

  	
   

  	
  Use
  of Proceeds; Margin Regulations

  	
   

  	
  80

  
	
  6.09

  	
   

  	
  Title
  to Properties

  	
   

  	
  80

  
	
  6.10

  	
   

  	
  Taxes

  	
   

  	
  80

  
	
  6.11

  	
   

  	
  Financial
  Condition

  	
   

  	
  80

  
	
  6.12

  	
   

  	
  Environmental
  Matters

  	
   

  	
  81

  
	
  6.13

  	
   

  	
  Regulated
  Entities

  	
   

  	
  81

  
	
  6.14

  	
   

  	
  Capitalization;
  Subsidiaries

  	
   

  	
  81

  
	
  6.15

  	
   

  	
  Insurance

  	
   

  	
  81

  
	
  6.16

  	
   

  	
  Subsidiary
  Borrower Supplements

  	
   

  	
  81

  
	
  6.17

  	
   

  	
  Full
  Disclosure

  	
   

  	
  81

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  	
   

  	
  AFFIRMATIVE COVENANTS

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.01

  	
   

  	
  Financial
  Statements

  	
   

  	
  82

  
	
  7.02

  	
   

  	
  Certificates;
  Other Information

  	
   

  	
  83

  
	
  7.03

  	
   

  	
  Notices

  	
   

  	
  84

  
	
  7.04

  	
   

  	
  Preservation
  of Corporate Existence, Etc.

  	
   

  	
  85

  
	
  7.05

  	
   

  	
  Maintenance
  of Property

  	
   

  	
  85

  
	
  7.06

  	
   

  	
  Insurance

  	
   

  	
  85

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.07

  	
   

  	
  Payment
  of Taxes

  	
   

  	
  85

  
	
  7.08

  	
   

  	
  Compliance
  with Laws

  	
   

  	
  86

  
	
  7.09

  	
   

  	
  Inspection
  of Property and Books and Records

  	
   

  	
  86

  
	
  7.10

  	
   

  	
  Environmental
  Laws

  	
   

  	
  86

  
	
  7.11

  	
   

  	
  Use
  of Proceeds

  	
   

  	
  86

  
	
  7.12

  	
   

  	
  Guarantors

  	
   

  	
  86

  
	
  7.13

  	
   

  	
  Further
  Assurances

  	
   

  	
  87

  
	
  7.14

  	
   

  	
  Real
  Estate Collateral

  	
   

  	
  89

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  	
   

  	
  NEGATIVE COVENANTS

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.01

  	
   

  	
  Limitation
  on Liens

  	
   

  	
  90

  
	
  8.02

  	
   

  	
  Disposition
  of Assets

  	
   

  	
  93

  
	
  8.03

  	
   

  	
  Consolidations
  and Mergers

  	
   

  	
  94

  
	
  8.04

  	
   

  	
  Restricted
  Investments

  	
   

  	
  95

  
	
  8.05

  	
   

  	
  Indebtedness;
  Securitizations

  	
   

  	
  96

  
	
  8.06

  	
   

  	
  Transactions
  with Affiliates

  	
   

  	
  96

  
	
  8.07

  	
   

  	
  Burdensome
  Agreements

  	
   

  	
  97

  
	
  8.08

  	
   

  	
  Restricted
  Payments; Prepayment of Subordinated Indebtedness

  	
   

  	
  98

  
	
  8.09

  	
   

  	
  Leverage
  Ratio

  	
   

  	
  99

  
	
  8.10

  	
   

  	
  Interest
  Coverage Ratio

  	
   

  	
  99

  
	
  8.11

  	
   

  	
  Senior
  Secured Leverage Ratio

  	
   

  	
  99

  
	
  8.12

  	
   

  	
  Swap
  Contracts

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  	
   

  	
  EVENTS OF DEFAULT

  	
   

  	
  100

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.01

  	
   

  	
  Event
  of Default

  	
   

  	
  100

  
	
  9.02

  	
   

  	
  Remedies

  	
   

  	
  102

  
	
  9.03

  	
   

  	
  Rights
  Not Exclusive

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  X

  	
   

  	
  THE AGENT

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.01

  	
   

  	
  Appointment
  and Authority

  	
   

  	
  103

  
	
  10.02

  	
   

  	
  Rights
  as a Lender

  	
   

  	
  103

  
	
  10.03

  	
   

  	
  Exculpatory
  Provisions

  	
   

  	
  103

  
	
  10.04

  	
   

  	
  Reliance
  by Agent

  	
   

  	
  104

  
	
  10.05

  	
   

  	
  Delegation
  of Duties

  	
   

  	
  104

  
	
  10.06

  	
   

  	
  Resignation
  of Agent

  	
   

  	
  104

  
	
  10.07

  	
   

  	
  Non-Reliance
  on Agent and Other Lenders

  	
   

  	
  105

  
	
  10.08

  	
   

  	
  No
  Other Duties, Etc.

  	
   

  	
  105

  
	
  10.09

  	
   

  	
  Agent
  May File Proofs of Claim

  	
   

  	
  106

  
	
  10.10

  	
   

  	
  Collateral
  and Guaranty Matters

  	
   

  	
  106

  
	
  10.11

  	
   

  	
  Withholding
  Tax

  	
   

  	
  107

  
	
  10.12

  	
   

  	
  Cash
  Management Agreements and Rate Swap Documents

  	
   

  	
  108

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XI

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  108

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.01

  	
   

  	
  Amendments
  and Waivers

  	
   

  	
  108

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.02

  	
   

  	
  Notices

  	
   

  	
  111

  
	
  11.03

  	
   

  	
  No
  Waiver; Cumulative Remedies

  	
   

  	
  112

  
	
  11.04

  	
   

  	
  Costs
  and Expenses; Indemnification

  	
   

  	
  112

  
	
  11.05

  	
   

  	
  Marshalling;
  Payments Set Aside

  	
   

  	
  114

  
	
  11.06

  	
   

  	
  Successors
  and Assigns

  	
   

  	
  114

  
	
  11.07

  	
   

  	
  Assignments,
  Participations, Etc.

  	
   

  	
  114

  
	
  11.08

  	
   

  	
  Confidentiality

  	
   

  	
  119

  
	
  11.09

  	
   

  	
  Set-off

  	
   

  	
  120

  
	
  11.10

  	
   

  	
  Automatic
  Debits of Fees

  	
   

  	
  120

  
	
  11.11

  	
   

  	
  Notification
  of Addresses, Lending Offices, Etc.

  	
   

  	
  120

  
	
  11.12

  	
   

  	
  Counterparts

  	
   

  	
  120

  
	
  11.13

  	
   

  	
  Severability

  	
   

  	
  121

  
	
  11.14

  	
   

  	
  No
  Third Parties Benefited

  	
   

  	
  121

  
	
  11.15

  	
   

  	
  Governing
  Law and Jurisdiction

  	
   

  	
  121

  
	
  11.16

  	
   

  	
  WAIVER
  OF JURY TRIAL

  	
   

  	
  121

  
	
  11.17

  	
   

  	
  Judgment

  	
   

  	
  122

  
	
  11.18

  	
   

  	
  Entire
  Agreement

  	
   

  	
  122

  
	
  11.19

  	
   

  	
  USA
  PATRIOT Act Notice

  	
   

  	
  122

  
	
  11.20

  	
   

  	
  Amendments
  Effecting a Maturity Extension

  	
   

  	
  122

  
	
  11.21

  	
   

  	
  No
  Fiduciary or Implied Duties

  	
   

  	
  124

  
	
  11.22

  	
   

  	
  Termination
  of Existing Credit Agreement; Waiver of Notice of Prepayment

  	
   

  	
  124

  
	
  11.23

  	
   

  	
  Holdco
  Reorganization

  	
   

  	
  124

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  XII

  	
   

  	
  COMPANY GUARANTY

  	
   

  	
  125

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12.01

  	
   

  	
  The
  Guaranty

  	
   

  	
  125

  
	
  12.02

  	
   

  	
  Insolvency

  	
   

  	
  126

  
	
  12.03

  	
   

  	
  Nature
  of Liability

  	
   

  	
  126

  
	
  12.04

  	
   

  	
  Independent
  Obligation

  	
   

  	
  126

  
	
  12.05

  	
   

  	
  Authorization

  	
   

  	
  126

  
	
  12.06

  	
   

  	
  Reliance

  	
   

  	
  127

  
	
  12.07

  	
   

  	
  Subordination

  	
   

  	
  127

  
	
  12.08

  	
   

  	
  Waiver

  	
   

  	
  128

  
	
  12.09

  	
   

  	
  Nature
  of Liability

  	
   

  	
  128

  



 


iv

















 


SCHEDULES


 


	
  Schedule
  1.01(a)

  	
   

  	
  Pricing
  Schedule

  
	
  Schedule
  1.01(b)

  	
   

  	
  Existing
  Bank of America Letters of Credit

  
	
  Schedule
  1.01(c)

  	
   

  	
  Existing
  JPMorgan Letters of Credit

  
	
  Schedule
  2.01

  	
   

  	
  Commitments
  and Percentages

  
	
  Schedule
  2.12

  	
   

  	
  Amortization
  of Term A Loans

  
	
  Schedule
  2.22

  	
   

  	
  Auction
  Procedures

  
	
  Schedule
  6.07

  	
   

  	
  ERISA

  
	
  Schedule
  6.10

  	
   

  	
  Taxes

  
	
  Schedule
  6.12

  	
   

  	
  Environmental
  Matters

  
	
  Schedule
  6.14

  	
   

  	
  Capitalization;
  Subsidiaries and Minority Interests

  
	
  Schedule
  7.14

  	
   

  	
  Mortgaged
  Property

  
	
  Schedule
  8.01

  	
   

  	
  Permitted
  Liens

  
	
  Schedule
  8.02

  	
   

  	
  Dispositions

  
	
  Schedule
  8.04

  	
   

  	
  Permitted
  Investments

  
	
  Schedule
  8.05

  	
   

  	
  Subsidiary
  Indebtedness

  
	
  Schedule
  8.07

  	
   

  	
  Burdensome
  Agreements

  
	
  Schedule
  11.02

  	
   

  	
  Agent’s
  Office; Certain Addresses for Notices

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit
  A

  	
   

  	
  Form
  of Notice of Borrowing

  
	
  Exhibit
  B

  	
   

  	
  Form
  of Notice of Conversion/Continuation

  
	
  Exhibit
  C

  	
   

  	
  Form
  of Compliance Certificate

  
	
  Exhibit
  D

  	
   

  	
  Form
  of Assignment and Assumption

  
	
  Exhibit
  E

  	
   

  	
  Form
  of Note

  
	
  Exhibit
  F

  	
   

  	
  Form
  of Subsidiary Borrower Supplement

  
	
  Exhibit
  G

  	
   

  	
  Form
  of Subsidiary Guaranty

  
	
  Exhibit
  H

  	
   

  	
  Form
  of Offshore Currency Addendum

  
	
  Exhibit
  I

  	
   

  	
  Form
  of Pledge Agreement

  
	
  Exhibit
  J

  	
   

  	
  Form
  of Security Agreement

  



 

















 


CREDIT AGREEMENT


 


This
CREDIT AGREEMENT is entered into as of September 27, 2010 among Oshkosh
Corporation, a Wisconsin corporation (the “Company” or, as applicable, “OSK”),
certain Subsidiaries of the Company from time to time party hereto pursuant to Section
2.19, the financial institutions from time to time party to this Agreement
(collectively, the “Lenders” and each, a “Lender”) and Bank of
America, N.A., as administrative agent for the Lenders.


 


WHEREAS,
pursuant to the Credit Agreement, dated as of December 6, 2006 (as amended,
supplemented or otherwise modified prior to the Effective Date, the “Existing
Credit Agreement”), among the Company, certain lenders party thereto (the “Existing
Lenders”) and the Agent, the Existing Lenders agreed to make extensions of
credit to the Borrowers on the terms and conditions set forth therein,
including making loans (the “Existing Loans”) to the Borrowers.


 


WHEREAS,
the Company has requested that the Lenders make, and the Lenders have agreed to
make, on the terms and conditions set forth herein, certain financial
accommodations to the Company and certain of its Subsidiaries, including Loans,
the proceeds of which will be used by the Company in part to prepay all of the
outstanding Existing Loans.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


1.01         Certain Defined Terms.  The following terms have the following meanings:


 


“Accepting
Lenders” has the meaning specified in Section 11.20(a).


 


“Acquisition”
means any transaction or series of related transactions for the purpose of or
resulting, directly or indirectly, in (a) the acquisition of all or
substantially all of the assets of a Person, or of any business or division of
a Person; (b) the acquisition of in excess of 50% of the capital stock,
partnership interests, membership interests or other equity interests of any
Person, or otherwise causing any Person to become a Subsidiary; or (c) a
merger or consolidation or any other combination with another Person (other
than a Person that is the Company or a Subsidiary); provided that the
Company or a Subsidiary is the surviving entity.


 


“Act”
has the meaning specified in Section 11.19.


 


“Add-On
Term Commitment” means, as to any Add-On Term Lender, such Add-On Term
Lender’s obligation to fund an Add-On Term Loan pursuant to Section 2.21,
and related Add-On Term Joinder Agreement.


 


“Add-On
Term
Facility” means, at any time and as to any particular Class of
Add-On Term Loans, the aggregate principal amount of the Add-On Term Loans of
all Add-On Term Lenders outstanding at such time.


 

















 


“Add-On
Term Joinder Agreement” has the meaning specified in Section
2.21(d)(ii)(A).


 


“Add-On
Effective Date” means, as to any particular Class of Add-On Term Loans, the
effective date of the applicable Add-On Term Joinder Agreement executed and
delivered by the relevant parties (in accordance with Section 2.21) to
institute such Class of Add-On Term Loans.


 


“Add-On
Term Lenders” has the meaning specified in Section 2.21(d)(ii)(A).


 


“Add-On
Term Loans” has the meaning specified in Section 2.21(a).


 


“Add-On
Term Maturity Date” means, as to any particular Class of Add-On Term Loans,
the earlier to occur of (a) the date specified as the stated maturity date for
such Add-On Term Loans in the applicable Add-On Term Joinder Agreement and (b)
the date on which such Add-On Term Loans become due and payable pursuant to Section
9.02.


 


“Add-On
Term Percentage” means, as to any Add-On Term Lender, the percentage which
(a) the Add-On Term Commitment of such Lender as to the particular Class of
Add-On Term Loans (or, after the applicable Add-On Effective Date, the
principal amount of such Lender’s applicable Add-On Term Loan) is of (b) the
aggregate amount of Add-On Term Commitments as to the particular Class of
Add-On Term Loans (or, after the applicable Add-On Effective Date, the
aggregate principal amount of all applicable Add-On Term Loans).


 


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


 


“Affected
Class” has the meaning specified in Section 11.20(a).


 


“Affiliate”
means, as to any Person, any other Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such
Person.  A Person shall be deemed to
control another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and policies
of the other Person, whether through the ownership of voting securities,
membership interests, by contract, or otherwise.


 


“Agent”
means Bank of America in its capacity as administrative agent for the Lenders
hereunder, and any successor administrative agent arising under Section
10.06.


 


“Agent-Related
Persons” means, collectively, Bank of America (and any successor
administrative agent arising under Section 10.06) and the Syndication
Agent, together with their respective Affiliates (including BAS and JPMS), and
the officers, directors, employees, agents and attorneys-in-fact of the
foregoing.


 


“Agent’s
Payment Office” means the address for payments set forth on Schedule
11.02, or such other address as the Agent may from time to time specify.


 


“Aggregate
Commitment” means the aggregate amount of the Commitments of the Lenders.


 


2

















 


“Aggregate
Revolving Commitment” means the aggregate amount of the Revolving
Commitments of the Lenders.


 


“Agreed
Alternative Currency” has the meaning specified in Section 2.08(e).


 


“Agreement”
means this Credit Agreement.


 


“Agreement
Currency” has the meaning specified in Section 11.17.


 


“Alternative
Currency” means any Offshore Currency (and any other currency which is at the
relevant time freely traded in the offshore interbank foreign exchange markets
and is freely transferable and freely convertible into Dollars) which, as
applicable, (a) the applicable Borrower requests the applicable Fronting Lender
to include as an Alternative Currency hereunder and which is acceptable to the
applicable Fronting Lender and with respect to which an Offshore Currency
Addendum has been executed by a Subsidiary Borrower or the Company and the
applicable Fronting Lender in connection therewith; or (b) a Borrower requests
as the currency in which a Letter of Credit is to be denominated and which is
acceptable to the Issuer thereof.


 


“Applicable
Base Rate Margin” - see Schedule 1.01(a).


 


“Applicable
Commitment Fee Percentage” - see Schedule 1.01(a).


 


“Applicable
Currency” means, as to any particular Letter of Credit or Loan, Dollars or
the Offshore Currency or Alternative Currency in which it is denominated or
payable.


 


“Applicable
Letter of Credit Fee Rate” - see Schedule 1.01(a).


 


“Applicable
Offshore Rate Margin” - see Schedule 1.01(a).


 


“Applicable
Percentage” means (a) in respect of the Term A Facility, with respect to
any Term A Lender at any time, the percentage (carried out to the ninth decimal
place) of the Term A Facility represented by (i) on the Effective Date, such
Term A Lender’s Term A Commitment at such time and (ii) thereafter, the
principal amount of such Term A Lender’s Term A Loans at such time (subject to
adjustment as provided in Section 3.12), (b) in respect of any Add-On Term
Facility, with respect to any Add-On Term Lender under such Add-On Term
Facility at any time, the percentage (carried out to the ninth decimal place)
of such Add-On Term Facility represented by (i) on the applicable Add-On
Effective Date, such Add-On Term Lender’s Add-On Term Commitment at such time
and (ii) thereafter, the principal amount of such Add-On Term Lender’s Add-On
Term Loans at such time (subject to adjustment as provided in Section 3.12),
and (c) in respect of the Revolving Credit Facility, with respect to any
Revolving Lender at any time, the percentage (carried out to the ninth decimal
place) of the Revolving Credit Facility represented by such Revolving Lender’s
Revolving Commitment at such time (subject to adjustment as provided in Section
3.12).  If the commitment of each
Lender to make Loans and the obligation of the Issuer to Issue Letters of
Credit have been terminated pursuant to Section 9.02, or if the
Commitments have expired, then the Applicable Percentage of each Lender in
respect of the applicable facility shall be determined based on the Applicable
Percentage of such Lender in respect of such facility most recently in effect,
giving effect to any subsequent assignments. 
The initial Applicable Percentage of each Lender in respect of each
facility is set 


 


3

















 


forth
opposite the name of such Lender on Schedule 2.01 or in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto, as
applicable.


 


“Applicable
Threshold Price” has the meaning specified in Schedule 2.22.


 


“Applicable
Time” means, with respect to any borrowings and payments in any Alternative
Currency, the local time in the place of settlement for such Alternative
Currency as may be determined by the Agent or the Issuer, as the case may be,
to be necessary for timely settlement on the relevant date in accordance with
normal banking procedures in the place of payment.


 


“Approved
Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.


 


“Assignee”
has the meaning specified in Section 11.07(a).


 


“Assignee
Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor or
by affiliated investment advisors.


 


“Assignment
and Assumption” means an assignment and assumption entered into by a Lender
and an Eligible Assignee (with the consent of any party whose consent is
required by Section 11.07(a)), and accepted by the Agent, substantially
in the form of Exhibit D or any other form approved by the Agent.


 


“Attorney
Costs” means and includes all reasonable fees and disbursements of any law
firm or other external counsel.


 


“Auction”
has the meaning specified in Section 2.22(a).


 


“Auction
Amount” has the meaning specified in Schedule 2.22.


 


“Auction
Assignment and Assumption” has the meaning specified in Schedule 2.22.


 


“Auction
Manager” has the meaning specified in Section 2.22(a).


 


“Auction
Notice” has the meaning specified in Schedule 2.22.


 


“Auto-Extension
Letter of Credit” has the meaning specified in Section 3.02(d).


 


“Available
Liquidity” means, on any day, the sum of (a) unrestricted domestic cash on
hand of the Company and its Subsidiaries on such day that is free of all Liens
other than any Lien permitted by clauses (b), (c) and (l)
of Section 8.01, plus (b) the actual aggregate amount by which
the Aggregate Revolving Commitments, on such day, exceed the Total Revolving
Usage.


 


“Backup
Support” means, with respect to any Letter of Credit, to Cash Collateralize
such Letter of Credit or to deliver to the Agent a letter of credit, from a
financial institution and in a 


 


4

















 


form
satisfactory to the Agent and the applicable Issuer, to support the Company’s
obligations with respect to such Letter of Credit.


 


“Bank
of America” means Bank of America, N.A., a national banking association.


 


“Bankruptcy
Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et
seq.).


 


“BAS”
means Banc of America Securities LLC.


 


“Base
Rate” means for any day a fluctuating rate per annum equal to the highest
of (a) the Federal Funds Rate plus 1/2 of 1%; (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its “prime rate”; and (c) the sum of 1.00% plus the Offshore
Rate (without giving effect to any rounding provided for in the definition of “Offshore
Rate”) that would be applicable for an Interest Period of one month beginning
on such day (or if such day is not a Business Day, the immediately preceding
Business Day).  The “prime rate” referred
to in clause (b) above is a rate set by Bank of America based upon
various factors, including Bank of America’s costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced
rate.  Any change in such prime rate
announced by Bank of America shall take effect at the opening of business on
the day specified in the public announcement of such change.


 


“Base
Rate Loan” means a Loan or an L/C Advance that bears interest based on the
Base Rate and is denominated in Dollars.


 


“Borrower”
means either the Company or any Subsidiary Borrower.


 


“Borrowing”
means a borrowing hereunder consisting of Loans of the same Class and Type made
to the Company on the same day by the applicable Lenders or a borrowing
consisting of Revolving Loans of the same type made to a Subsidiary Borrower
under Article II and, in the case of Offshore Rate Loans, having the
same Interest Period and denominated in the same Offshore Currency.  The making of either a Swing Line Loan or a
Fronted Offshore Currency Loan shall not constitute a Borrowing.


 


“Borrowing
Date” means any date on which a Borrowing occurs under Section 2.03.


 


“Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized or required by law to close or are in fact
closed, in the state where the Agent’s Payment Office is located and, if the
applicable Business Day relates to any Offshore Rate Loan denominated in
Dollars, means such a day on which dealings are carried on in the applicable
offshore dollar interbank market and, if the applicable Business Day relates to
any Offshore Rate Loan denominated in any Alternative Currency, a day on which
commercial banks are open for foreign exchange business in London, England, and
on which dealings in the relevant Alternative Currency are carried on in the
applicable offshore foreign exchange interbank market in which disbursements of
or payments in such Alternative Currency will be made or received hereunder.


 


5
















 


“Capital
Adequacy Regulation” means any guideline, request or directive of any
central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.


 


“Capital
Stock” means (a) in the case of a corporation, corporate stock; (b) in the
case of an association or similar business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock; (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and (d) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.


 


“Cash
Collateralize” means to pledge and deposit with or deliver to the Agent,
for the benefit of the Agent, the Issuers, the Swing Line Lender, the Fronting
Lenders, and the Revolving Lenders, as applicable, as additional collateral for
the L/C Obligations, Obligations in respect of Swing Line Loans, Obligations in
respect of Fronted Offshore Currency Loans, or obligations of Lenders to fund
participations in respect of any thereof (as the context may require), cash or
deposit account balances, in each case pursuant to documentation in form and
substance reasonably satisfactory to the Agent, the Issuers, the Swing Line
Lender, and the Fronting Lenders, as applicable (which documents are hereby
consented to by the Revolving Lenders).  “Cash
Collateral” shall have a meaning correlative to the foregoing and shall
include the proceeds of such cash collateral.


 


“Cash
Interest Expense” means, for any period, the sum of (a) consolidated
interest expense of the Company and its Subsidiaries for such period to the
extent paid in cash and (b) amortization during such period of costs incurred
in connection with the initial closing of any Swap Contract minus, to
the extent included in calculating such sum, (i) fees and expenses incurred in
connection with the consummation of this Agreement; (ii) annual administrative
agency fees paid to the Agent; and (iii) capitalized costs incurred in
connection with the initial closing of any Swap Contract.


 


“Cash
Management Agreement” means any agreement to provide cash management
services, including treasury, depository, overdraft, credit or debit card,
electronic funds transfer and other cash management arrangements.


 


“Change
of Control” means the occurrence of any of the following: (a) the sale,
lease, transfer, conveyance or other disposition (other than by way of merger
or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries taken as a
whole to any “person” (as such term is used in Section 13(d)(3) of the Exchange
Act); (b) the adoption of a plan relating to the liquidation or dissolution of
the Company; (c) the consummation of any transaction (including any merger or
consolidation) the result of which is that any “person” (as defined above)
becomes the “beneficial owner” (as such term is defined in Rule 13d-3 and Rule
13d-5 under the Exchange Act, except that a person shall be deemed to have “beneficial
ownership” of all securities that such person has the right to acquire, whether
such right is currently exercisable or is exercisable only upon the occurrence
of a subsequent condition), directly or indirectly of more than 30% of the
Voting Stock of the Company (measured by voting power rather than number of
shares); (d) the Company 


 


6

















 


consolidates
with, or merges with or into, any Person, or any Person consolidates with, or
merges with or into, the Company in any such event pursuant to a transaction in
which any of the outstanding Voting Stock of the Company is converted into or
exchanged for cash, securities or other property, other than any such
transaction where the Voting Stock of the Company outstanding immediately prior
to such transaction is converted into or exchanged for Voting Stock of the
surviving or transferee Person constituting a majority of the outstanding
shares of such Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance); or (e) during any period of 12
consecutive calendar months (or less), commencing on the Effective Date, the
ceasing of those individuals (the “Continuing Directors”) who (i) were
directors of the Company on the first day of each such period or (ii)
subsequently became directors of the Company and whose actual election or
initial nomination for election subsequent to that date was approved by a
majority of the Continuing Directors then on the board of directors of the
Company, to constitute a majority of the board of directors of the
Company.  Notwithstanding any of the
foregoing to the contrary, the Company shall be permitted to consummate the
Holdco Reorganization in accordance with Section 11.23.


 


“Class”
means, with respect to any Loan, its characterization as a Revolving Loan, a
Term A Loan, or any Add-On Term Loan outstanding under a particular Add-On Term
Facility.


 


“Code”
means the Internal Revenue Code of 1986, and regulations promulgated
thereunder.


 


“Collateral”
means all property and interests in property and proceeds thereof now owned or
hereafter acquired by any Loan Party in or upon which a Lien now or hereafter
exists in favor of the Guaranteed Creditors, or the Agent on behalf of the
Guaranteed Creditors.


 


“Collateral
Access Agreement” means an agreement, in form and substance reasonably
acceptable to the Agent, between the Agent and a third party relating to
inventory of the Company or any other Loan Party located on the property of
such third party.


 


“Collateral
Documents” means the Pledge Agreement, the Security Agreement, each
Mortgage and any other agreement pursuant to which any Loan Party grants
collateral to the Agent for the benefit of the Guaranteed Creditors.


 


“Collateral
Release Period” means any period during which the Company has obtained
Investment Grade Ratings and the Agent (on behalf of the Guaranteed Creditors)
has released its security interests in the Collateral at the request of the
Company pursuant to Section 7.13(d).


 


“Commitment”
means a Fronted Offshore Currency Commitment, a Revolving Commitment, a Term
Commitment or a Swing Line Commitment, as the context may require.


 


“Company”
has the meaning specified in the introductory clause hereto; provided,
that upon consummation of the Holdco Reorganization in compliance with Section
11.23, Holdco shall thereafter be the Company for purposes hereof, except
that any reference made to the Company as of a specific date prior to
consummation of the Holdco Reorganization shall continue to refer to OSK.


 


“Compliance
Certificate” means a certificate substantially in the form of Exhibit C.


 


7

















 


“Computation
Date” means (a) any day on which the Aggregate Revolving Commitment is
reduced pursuant to Section 2.09; (b) with respect to matters relating
to Offshore Rate Loans, each day on which a Borrower borrows, converts or
continues any Offshore Rate Loan and each Interest Payment Date with respect to
any Offshore Rate Loan; and (c) with respect to any Letter of Credit, each of
the following:  (i) each date of issuance
of a Letter of Credit denominated in an Alternative Currency, (ii) each date of
an amendment of any such Letter of Credit having the effect of increasing the
amount thereof (solely with respect to the increased amount), (iii) each date
of any payment by the Issuer under any Letter of Credit denominated in an
Alternative Currency, and (iv) such additional dates as the Agent or the Issuer
shall determine or the Required Lenders shall require.


 


“Consolidated
EBITDA” means, for any period, the consolidated net income (or net loss) of
the Company and its Subsidiaries for such period, plus (or minus,
if a credit or a negative number) the following (without duplication), in each
case to the extent included in the determination of such consolidated net
income (or net loss): (a) all amounts treated as expenses for depreciation, all
interest expense and all amortization of intangibles of any kind; (b) all taxes
on or measured by income; (c) all charges arising from “last in first out”
valuation of inventory; (d) the amount of post-retirement health benefits
accrued in such period less the amount of post-retirement health
benefits paid in such period, in an amount of up to $5,000,000; (e) not more
than $15,000,000 in the aggregate of cash charges arising from the write-down
of fixed assets, severance payments and relocation expenses incurred or taken
with respect to Acquisitions; (f) the first $20,000,000 of non-recurring cash
charges for severance payments and plant closings incurred or taken on or after
the Effective Date and through the fiscal year ending September 30, 2012; (g)
all charges or credits arising from the write-off of intangible assets (without
duplication of any amounts set forth in clause (a)); and (h) expenses
relating to stock-based compensation plans resulting from the application of
Financial Accounting Standards Board Statement No. 123R; provided that
consolidated net income (or net loss) and each adjustment described in the
foregoing clauses (a) through (h) shall be computed (i) without
giving effect to extraordinary losses or extraordinary gains; (ii) without
regard to the net income (or net loss) of Leasing Subsidiaries or to the
carrying value of the equity interest of the Company and its Subsidiaries in
Leasing Subsidiaries; (iii) without giving effect to any dividends or other
distributions received by the Company and its Subsidiaries from Leasing
Subsidiaries or any equity contributions made by the Company and its
Subsidiaries to Leasing Subsidiaries; and (iv) excluding any gain or loss
realized in connection with any extinguishment of indebtedness contemplated by Section
2.22; and provided, further, that (A) for purposes of
computing Consolidated EBITDA, Acquisitions and Material Dispositions made by
the Company or any of its Subsidiaries during any relevant four-quarter period
shall be deemed to have occurred (and any Indebtedness incurred or assumed in
connection with an Acquisition, or repaid with the proceeds of a Material
Disposition, shall be deemed to have been incurred, assumed or repaid, as the
case may be) on the first day of such period and Consolidated EBITDA for any
such period shall be calculated to include pro forma adjustments with respect
to income and expense associated with the acquired or disposed of assets or
entity (all consistent with clauses (a) through (h) above);
and (B) all non-cash charges taken in any period shall be added back to
Consolidated EBITDA for such period and all cash payments made in any period
that arise out of non-cash charges taken in a previous period shall be
subtracted from Consolidated EBITDA.


 


8

















 


“Contingent
Obligation” means, as to any Person and without duplication, any direct or
indirect liability of that Person, whether or not contingent, with or without
recourse, (a) with respect to any Indebtedness, lease, dividend, letter of
credit or other obligation (the “primary obligations”) of another Person
(the “primary obligor”), including any obligation of that Person (i) to
purchase, repurchase or otherwise acquire such primary obligations or any
security therefor; (ii) to advance or provide funds for the payment or
discharge of any such primary obligation, or to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency or any balance sheet item, level of income or financial condition of
the primary obligor; (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation; or (iv) otherwise to assure or hold harmless the holder of any such
primary obligation against loss in respect thereof (each, a “Guaranty
Obligation”); (b) with respect to any Surety Instrument issued for the
account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings or payments; (c) to purchase any materials, supplies
or other property from, or to obtain the services of, another Person if the
relevant contract or other related document or obligation requires that payment
for such materials, supplies or other property, or for such services, shall be
made regardless of whether delivery of such materials, supplies or other
property is ever made or tendered, or such services are ever performed or
tendered; or (d) in respect of any Swap Contract (other than in respect of
ordinary course foreign currency hedging arrangements).  The amount of any Contingent Obligation shall
(v) in the case of Guaranty Obligations of the Company and its Subsidiaries of
the type described in the last paragraph of Note 12 to OSK’s audited
consolidated financial statements for the fiscal year ended September 30, 2009,
be deemed to equal 25% of such Guaranty Obligations, (w) in the case of other
Guaranty Obligations, be deemed equal to the lesser of (i) the stated or
determinable amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof, and (ii) the stated amount
of the guaranty, (x) in the case of Contingent Obligations in respect of Swap
Contracts, be deemed equal to the aggregate Swap Termination Value of such Swap
Contracts, (y) in the case of Contingent Obligations in respect of Surety
Instruments other than Non-Surety L/C’s, be deemed equal to the probable amount
of the expected liability thereunder, and (z) in the case of Contingent
Obligations in respect of Non-Surety L/C’s, be deemed equal to (i) the face
amount of outstanding Non-Surety L/C’s which are not Letters of Credit and (ii)
the outstanding amount of L/C Obligations in respect of Non-Surety L/C’s which
are Letters of Credit pursuant to Article III.


 


“Contractual
Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, undertaking, contract, indenture, mortgage,
deed of trust or other instrument, document or agreement to which such Person
is a party or by which it or any of its property is bound.


 


“Conversion/Continuation
Date” means any date on which, under Section 2.04, the Company (a)
converts Revolving Loans or Term Loans of one Type to the other Type or (b)
continues Offshore Rate Loans for a new Interest Period.


 


“Credit
Extension” means and includes (a) the making of any Loan hereunder and (b)
the Issuance of any Letter of Credit hereunder.


 


9

















 


“Debtor
Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.


 


“Default”
means any event or circumstance which, with the giving of notice, the lapse of
time, or both, would (if not cured or otherwise remedied during such time)
constitute an Event of Default.


 


“Defaulting
Lender” means, subject to Section 3.12(b), any Lender that (a) has
failed to perform any of its funding obligations hereunder, including in
respect of its Loans or participations in respect of Letters of Credit, Swing
Line Loans or Fronted Offshore Currency Loans, within three Business Days of
the date required to be funded by it hereunder, unless such obligation is the
subject of a good faith dispute as to the satisfaction of one or more
conditions precedent to funding (specifically identified and including the
particular Default, if any); (b) has notified the Company, the Agent or any
Lender that it does not intend to comply with its funding obligations or has
made a public statement to that effect with respect to its funding obligations
hereunder or generally under other agreements in which it commits to extend
credit; (c) has failed, within three Business Days after request by the Agent
or the Company, to confirm in a manner satisfactory to the Agent (or the
Company, as applicable) that it will comply with, and is financially able to
meet, its funding obligations; or (d) has, or has a direct or indirect parent
company that has, (i) become the subject of a proceeding under any Debtor
Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee
for the benefit of creditors or similar Person charged with reorganization or
liquidation of its business or a custodian appointed for it, or (iii) taken any
action in furtherance of, or indicated its consent to, approval of or
acquiescence in any such proceeding or appointment (provided that a
Lender shall not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any equity interest in, or the exercise of control (outside of the
context of a proceeding of the type described in clause (d) above) of,
that Lender or any direct or indirect parent company thereof by a Governmental
Authority), in each case, as the Agent may reasonably determine based solely on
the foregoing.


 


“Discount
Range” has the meaning specified in Schedule 2.22.


 


“Disposition”
has the meaning specified in Section 8.02.


 


“Dollars”,
“dollars” and “$” each mean lawful money of the United States.


 


“Dollar
Equivalent” means, at any time, (a) as to any amount denominated in
Dollars, the amount thereof at such time, and (b) as to any amount denominated
in an Offshore Currency, the equivalent amount in Dollars as determined by the
Agent or the applicable Issuer at such time on the basis of the Spot Rate for
the purchase of Dollars with such Offshore Currency on the most recent
Computation Date.


 


“Domestic
Subsidiary” means a Subsidiary organized under the laws of (a) the United
States or any political subdivision thereof, or any agency, department or
instrumentality thereof, or (b) any state of the United States.


 


10

















 


“Effective
Date” means the date on which all conditions precedent set forth in Section
5.01 are satisfied or waived by the Required Lenders (or, in the case of Section
5.01(i), waived by the Person entitled to receive such payment).


 


“Eligible
Assignee” means (a) a commercial bank organized under the laws of the
United States, or any state thereof, and having a combined capital and surplus
of at least $100,000,000; (b) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation
and Development, or a political subdivision of any such country, and having a
combined capital and surplus of at least $100,000,000; provided that
such bank is acting through a branch or agency located in the United States;
(c) a Person that is primarily engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit and
that is an Affiliate of a Lender; (d) an Approved Fund; (e) a Lender; (f) any
other entity approved by the Company (which approval shall not be required
during the existence of an Event of Default) and the Agent, such approvals in
each case not to be unreasonably withheld or delayed; and (g) the Company,
solely in connection with a transaction permitted under Section 2.22
(provided that all Loans purchased by the Company pursuant to Section 2.22
shall automatically be cancelled and retired by the Company on the applicable
settlement date of the relevant purchase (and may not remain outstanding or be
resold)).


 


“Environmental
Claims” means all claims, however asserted, by any Governmental Authority
or other Person alleging potential liability or responsibility for violation of
any Environmental Law, or for release or injury to the environment or threat to
public health, personal injury (including sickness, disease or death), property
damage, natural resources damage, or otherwise alleging liability or responsibility
for damages (punitive or otherwise), investigation, cleanup, removal, remedial
or response costs, restitution, civil or criminal penalties, injunctive relief,
or other type of relief, resulting from or based upon the presence, placements,
discharge, emission or release (including intentional and unintentional,
negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental, placements, spills, leaks, discharges, emissions or releases)
of any Hazardous Material at, in, or from any property, whether or not owned by
the Company or any Subsidiary or taken as collateral, or in connection with any
operations of the Company.


 


“Environmental
Laws” means all federal, state, local or foreign (but only in those foreign
jurisdictions where the Company and/or any Subsidiary has material operations)
laws, statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental, land use and related
health and safety matters, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Clean Air Act, the Federal Water
Pollution Control Act of 1972, the Solid Waste Disposal Act, the Federal
Resource Conservation and Recovery Act, the Toxic Substances Control Act and
the Emergency Planning and Community Right-to-Know Act.


 


“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.


 


11

















 


“ERISA”
means the Employee Retirement Income Security Act of 1974.


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated) under
common control with the Company within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).


 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal of the Company or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial
employer” as defined in Section 4001(a)(2) of ERISA or a cessation of
operations which is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Company or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization, in each case the liability with respect to which has not
been satisfied; (d) the filing of a notice of intent to terminate a Pension
Plan that has any Unfunded Pension Liability; (e) the treatment of a Pension
Plan amendment that has any Unfunded Pension Liability as a termination under
Section 4041 or 4041A of ERISA; (f) the institution by the PBGC of proceedings
to terminate a Pension Plan; (g) the determination that any Pension Plan
is considered an at-risk plan or a plan in endangered or critical status within
the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and
305 of ERISA; (h) an event or condition which might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; or (i) the imposition
of any liability under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any ERISA
Affiliate.


 


“Eurocurrency
Reserve Percentage” has the meaning specified in the definition of “Offshore
Rate”.


 


“Event
of Default” means any of the events or circumstances specified in Section
9.01.


 


“Exchange
Act” means the Securities Exchange Act of 1934 and the regulations
promulgated thereunder.


 


“Existing
Credit Agreement” has the meaning specified in the recitals.


 


“Existing
Lenders” has the meaning specified in the recitals.


 


“Existing
Letters of Credit” means the existing letters of credit set forth on Schedules
1.01(b) and (c).


 


“Existing
Loans” has the meaning specified in the recitals.


 


“Expiration
Time” has the meaning specified in Schedule 2.22.


 


“FASB
ASC” means the Accounting Standards Codification of the Financial
Accounting Standards Board.


 


12

















 


“Federal
Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Agent.


 


“Fee
Letter” means the fee letter dated as of August 13, 2010 among the Company,
the Agent and BAS.


 


“Floor
Plan Financing Facility” means any facility entered or to be entered into
by the Company or any Subsidiary pursuant to which such person may (a) incur
indebtedness to purchase vehicles and/or related equipment from certain vendors
for the prompt resale to customers in the ordinary course of business and (b)
grant a security interest in such vehicles and/or related equipment to secure
such borrowings.


 


“Foreign
Lender” has the meaning specified in Section 10.11(a).


 


“Foreign
Subsidiary” means a Subsidiary which is not a Domestic Subsidiary.


 


“FRB”
means the Board of Governors of the Federal Reserve System, and any Governmental
Authority succeeding to any of its principal functions.


 


“Fronted
Offshore Currency Commitment” means, for any Fronting Lender for any
Alternative Currency, the obligation of such Fronting Lender to make Fronted
Offshore Currency Loans in such Alternative Currency not exceeding the Dollar
Equivalent set forth in the applicable Offshore Currency Addendum, as such
amount may be modified from time to time pursuant to the terms of this
Agreement and such Offshore Currency Addendum. 
Any Fronted Offshore Currency Commitment shall be a part of the
Aggregate Revolving Commitment, rather than a separate, independent commitment.


 


“Fronted
Offshore Currency Loan” means a loan made by a Fronting Lender to a
Borrower pursuant to Section 2.07 and an Offshore Currency Addendum.


 


“Fronted
Offshore Currency Note” means a promissory note in such form as may be
required by the applicable Offshore Currency Addendum.


 


“Fronted
Offshore Currency Rate” means, for any day for any Fronted Offshore
Currency Loan, the per annum rate of interest determined under or as set forth
in the applicable Offshore Currency Addendum.


 


“Fronting
Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding
L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s
participation obligation has 


 


13

















 


been
reallocated to other Lenders or Cash Collateralized in accordance with the terms
hereof; (b) with respect to the Swing Line Lender, such Defaulting Lender’s
Applicable Percentage of Swing Line Loans other than Swing Line Loans as to
which such Defaulting Lender’s participation obligation has been reallocated to
other Lenders or Cash Collateralized in accordance with the terms hereof; and
(c) with respect to the Fronting Lenders, such Defaulting Lender’s Applicable
Percentage of Fronted Offshore Currency Loans other than Fronted Offshore
Currency Loans as to which such Defaulting Lender’s participation obligation
has been reallocated to other Lenders or Cash Collateralized in accordance with
the terms hereof.


 


“Fronting
Lender” means any Lender (or any Affiliate, branch or agency thereof) with
a Fronted Offshore Currency Commitment to the extent it is party to an Offshore
Currency Addendum as the “Fronting Lender” thereunder.  If any agency, branch or Affiliate of such
Lender shall be a party to an Offshore Currency Addendum, such agency, branch
or Affiliate shall, to the extent of any commitment extended and any Loans made
by it, have all the rights of such Lender hereunder; provided that such
Lender shall, to the exclusion of such agency, branch or Affiliate, continue to
have all the voting rights vested in it by the terms hereof.


 


“Fund” means any Person (other than a natural
person) that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the
ordinary course.


 


“Further
Taxes” means any and all present or future taxes, levies, assessments,
imposts, duties, deductions, fees, withholdings or similar charges (including,
net income taxes and franchise taxes), and all liabilities with respect
thereto, imposed by any jurisdiction on account of amounts payable or paid
pursuant to Section 4.01.


 


“GAAP”
means, subject to Section 1.03, generally accepted accounting principles
set forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to the
circumstances as of the date of determination.


 


“Governmental
Authority” means (a) any nation or government, any state or other political
subdivision thereof, any central bank (or similar monetary or regulatory
authority) thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing; and (b) the National
Association of Insurance Commissioners.


 


“Guaranteed
Creditors” means and includes the Agent, the Lenders and each Person (other
than the Company or any of its Subsidiaries) which is a party to a Rate Swap
Document or Cash Management Agreement, in each case if such Person is or at the
time of entry into such Rate Swap Document or Cash Management Agreement, as
applicable, was a Lender or an Affiliate of a Lender.


 


14

















 


“Guaranteed
Obligations” means (a) the full and prompt payment when due (whether
at the stated maturity, by acceleration or otherwise) of the principal and
interest (whether such interest is allowed as a claim in a bankruptcy
proceeding with respect to any Subsidiary Borrower or otherwise) of each Loan
made under this Agreement to any Subsidiary Borrower, together with all other
Obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due) and liabilities
(including indemnities, fees and interest thereon) of any Subsidiary Borrower
to the Agent or any Lender now existing or hereafter incurred under, arising
out of or in connection with this Agreement or any other Loan Documents and the
due performance and compliance with all terms, conditions and agreements contained
in the Loan Documents by any Subsidiary Borrower; and (b) the full and prompt
payment when due (whether by acceleration or otherwise) of all Obligations
(including obligations which, but for the automatic stay under Section 362(a)
of the Bankruptcy Code or similar proceeding under applicable law, would become
due) of the Company or any Subsidiary owing under any Rate Swap Document or
Cash Management Agreement entered into by the Company or any Subsidiary with
any Lender or any Affiliate thereof (even if such Lender subsequently ceases to
be a Lender under this Agreement for any reason) so long as such Lender or
Affiliate participates in such Rate Swap Document or Cash Management Agreement
and their subsequent assigns, if any, whether now in existence or hereafter
arising, and the due performance and compliance with all terms, conditions and
agreements contained therein.


 


“Guarantor”
means, at any time, any Subsidiary that is a party to the Subsidiary Guaranty
at such time.


 


“Guarantor
Threshold” means, as of any date of determination, Domestic Subsidiaries
that are Guarantors that, together with the Company, constitute (a) at least
80% of the total assets (excluding assets of Foreign Subsidiaries, and after
intercompany eliminations) of the Company and its Domestic Subsidiaries on a
consolidated basis as of the end of the fiscal quarter most recently ended
prior to such date of determination for which financial statements became due
under Section 7.01 and (b) at least 80% of the total revenues (excluding
revenues of Foreign Subsidiaries, and eliminating any intercompany revenues) of
the Company and its Domestic Subsidiaries on a consolidated basis for the
12-month period ending as of the end of the fiscal quarter most recently ended
prior to such date of determination for which financial statements became due
under Section 7.01.


 


“Guaranty
Obligation” has the meaning specified in the definition of “Contingent
Obligation”.


 


“Hazardous
Materials” means all those substances that are regulated by, or which may
form the basis of liability or a standard of conduct under, any Environmental
Law, including any substance identified under any Environmental Law as a
pollutant, contaminant, hazardous waste, hazardous constituent, special waste,
hazardous substance, hazardous material, or toxic substance, or petroleum or
petroleum-derived substance or waste.


 


“Holdco”
has the meaning specified in Section 11.23.


 


“Holdco
Reorganization” has the meaning specified in Section 11.23.


 


15
















 


“Honor
Date” has the meaning specified in Section 3.03(b).


 


“Indebtedness”
of any Person means, without duplication, (a) all indebtedness for
borrowed money and all Securitization Obligations; (b) all obligations
issued, undertaken or assumed as the deferred purchase price of property or
services (other than (i) trade and similar accounts payable and accrued
expenses, in each case arising in the ordinary course of business, and (ii) accrued
pension costs and other employee benefit and compensation obligations arising
in the ordinary course of business); (c) all Contingent Obligations with
respect to Surety Instruments (other than trade letters of credit);
(d) all obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in connection with the
acquisition of property, assets or businesses; (e) all indebtedness
created or arising under any conditional sale or other title retention
agreement, or incurred as financing, in either case with respect to property
acquired by the Person (even though the rights and remedies of the seller or
bank under such agreement in the event of default are limited to repossession
or sale of such property); (f) all obligations with respect to capital
leases; (g) all indebtedness referred to in subsections (a) through
(f) above secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien upon
or in property (including accounts and contract rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of
such Indebtedness; and (h) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in subsections
(a) through (g) above; provided that “Indebtedness”
shall not include (1) Guaranty Obligations of the Company with respect to
up to $5,000,000 of Indebtedness of Leasing Subsidiaries, (2) Indebtedness
owing to the Company by any Subsidiary or Indebtedness owing to any Subsidiary
by the Company or another Subsidiary, (3) any customary earnout or
holdback in connection with Acquisitions permitted by Section 8.04,
(4) any indebtedness incurred by the Company or any Subsidiary pursuant to
any Floor Plan Financing Facility to the extent that it shall be non-interest
bearing, (5) any obligation incurred by the Company or any Subsidiary in
the ordinary course of business to make payments to a floor plan financier of a
distributor of the Company or such Subsidiary as an incentive for such
financier to provide more favorable payment terms to such distributor, (6) any
obligations of the Company or its Subsidiaries in respect of customer advances
received and held in the ordinary course of business or (7) performance
bonds or performance guaranties (or bank guaranties or letters of credit in
lieu thereof) entered into in the ordinary course of business.  If any of the foregoing Indebtedness is
limited to recourse against a particular asset or assets of such Person, the
amount of the corresponding Indebtedness shall be equal to the lesser of the
amount of such Indebtedness and the fair market value of such asset or assets
at the date for determination of the amount of such Indebtedness.  For all purposes of this Agreement, (A) the
Indebtedness of any Person shall include all recourse Indebtedness of any
partnership or joint venture or limited liability company in which such Person
is a general partner or a joint venturer or a member and as to which such
Person is or may become directly liable and (B) the amount of Indebtedness
of the Company and its Subsidiaries hereunder shall be calculated without
duplication of Guaranty Obligations of the Company or any Subsidiary in respect
thereof.


 


“Indemnitee”
has the meaning specified in Section 11.04(b).


 


“Indenture”
means that certain Indenture, dated as of March 3, 2010, by and among OSK,
as issuer, the guarantors party thereto and Wells Fargo Bank, National
Association, as trustee.


 


16

















 


“Independent
Auditor” has the meaning specified in Section 7.01(a).


 


“Insolvency
Proceeding” means, with respect to any Person, (a) any case, action or
proceeding with respect to such Person before any court or other Governmental
Authority relating to bankruptcy, reorganization, insolvency, liquidation,
receivership, dissolution, winding-up or relief of debtors; or (b) any
general assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors, in each case, undertaken
under U.S. Federal, state or foreign law, including the Bankruptcy Code.


 


“Interest
Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated
EBITDA for the period of four fiscal quarters ending on such date to (b) Cash
Interest Expense for such period.


 


“Interest
Payment Date” means, as to any Offshore Rate Loan, the last day of each
Interest Period applicable to such Loan and, as to any Base Rate Loan, the last
Business Day of each calendar quarter; provided that if any Interest
Period for an Offshore Rate Loan exceeds three months, the date that falls
three months after the beginning of such Interest Period and after each
Interest Payment Date thereafter is also an Interest Payment Date.


 


“Interest
Period” means, as to any Fronted Offshore Currency Loan, the Interest
Period as set forth in, or determined in accordance with, the applicable
Offshore Currency Addendum and, as to any other Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the Conversion/Continuation
Date on which the Loan is converted into or continued as an Offshore Rate Loan,
and ending on the date one, two, three or six (or, if all applicable Lenders
agree, nine or twelve) months thereafter as selected by a Borrower in its
Notice of Borrowing or Notice of Conversion/Continuation, or such other period
as required by the Company and agreed to by all applicable Lenders; provided
that:


 


(a)                                  if any Interest
Period would otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the following Business Day unless the result of
such extension would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the preceding Business
Day;


 


(b)                                 any Interest
Period that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period;


 


(c)                                  no Interest
Period for any Revolving Loan shall extend beyond the scheduled Revolving
Maturity Date; and


 


(d)                                 no Interest
Period for a Term Loan shall extend beyond the scheduled Term Maturity Date.


 


“Internal
Control Event” means a material weakness in the Company’s internal controls
over financial reporting as described in the Securities Laws.


 


17

















 


“Investment
Grade Ratings” has the meaning specified in Section 7.13(d).


 


“IRS”
means the Internal Revenue Service, and any Governmental Authority succeeding
to any of its principal functions under the Code.


 


“ISP98”
has the meaning specified in Section 3.09.


 


“Issuance
Date” has the meaning specified in Section 3.01(a).


 


“Issue”
means, with respect to any Letter of Credit, to issue or to extend the expiry
of, or to renew or increase the amount of, such Letter of Credit; and the terms
“Issued,” “Issuing” and “Issuance” have corresponding
meanings.


 


“Issuer”
means (a) with respect to any Letter of Credit listed on Schedule
1.01(b), Bank of America, (b) with respect to any Letter of Credit
listed on Schedule 1.01(c), JPMorgan Chase Bank, N.A., and (c) with
respect to any other Letter of Credit, Bank of America or any other Revolving
Lender selected by the Company and approved by the Agent (such approval not to
be unreasonably withheld or delayed) that has agreed to act as issuer of such
Letter of Credit hereunder.


 


“Issuer
Commitment” means, with respect to any Issuer, the maximum Stated Amount of
Letters of Credit that such Issuer has committed to have outstanding at any
time as set forth in a written agreement between the Company and such Issuer.


 


“Issuer
Documents” means, with respect to any Letter of Credit, the L/C
Application, and any other document, agreement and instrument entered into by
the Issuer and the Company (or any Subsidiary) or in favor of the Issuer and
relating to such Letter of Credit.


 


“JPMS”
means J.P. Morgan Securities LLC.


 


“Judgment
Currency” has the meaning specified in Section 11.17.


 


“L/C
Advance” means each Revolving Lender’s participation in any L/C Borrowing
in accordance with its Revolving Percentage.


 


“L/C
Amendment Application” means an application form for amendment of
outstanding standby or commercial documentary letters of credit as shall at any
time be in use by the applicable Issuer, with such modifications as the Company
and such Issuer may reasonably approve.


 


“L/C
Application” means an application form for issuances of standby or
commercial documentary letters of credit as shall at any time be in use by the
applicable Issuer, with such modifications as the Company and such Issuer may
reasonably approve.


 


“L/C
Borrowing” means an extension of credit resulting from a drawing under any
Letter of Credit which shall not have been reimbursed on the date when made or
converted into a Borrowing of Revolving Loans under Section 3.03(b).


 


18

















 


“L/C
Commitment” means the commitment of the Issuers to Issue, and the
commitment of the Revolving Lenders severally to participate in, Letters of
Credit from time to time pursuant to Article III, in an aggregate
amount not to exceed on any date the Aggregate Revolving Commitment.  The L/C Commitment is a part of the Aggregate
Revolving Commitment, rather than a separate, independent commitment.


 


“L/C
Obligations” means at any time the sum, without duplication, of (a) the
Stated Amount of all outstanding Letters of Credit plus (b) the
Dollar Equivalent amount of all unreimbursed drawings under all Letters of
Credit, including all outstanding L/C Borrowings.  For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.05.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14
of ISP98, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.


 


“L/C-Related
Documents” means the Letters of Credit, the L/C Applications, the L/C
Amendment Applications and any other document relating to any Letter of Credit,
including any standard form document used by any Issuer for letter of credit
issuances.


 


“Lead
Agents” means, collectively, the Agent and the Syndication Agent, and “Lead
Agent” means either of them.


 


“Lease
Assets” means, with respect to any lease, all of the following property and
interests in property whether now existing or existing in the future or
hereafter acquired or arising: (a) all vehicles or equipment manufactured,
refurbished or sold by the Company or any of its Subsidiaries (and truck
chassis, cement block boom trucks and similar vehicles manufactured or
refurbished by third parties) and acquired by a Leasing Subsidiary in
connection with such assets being leased to a third party; (b) all leases
and other contracts or agreements relating to the lease financing by a customer
of vehicles or equipment manufactured, refurbished or sold by the Company or
any of its Subsidiaries; (c) all accounts receivable and other obligations
incurred by lessees in connection with the foregoing, no matter how evidenced; (d) all
rights to any vehicles or equipment subject to any of the foregoing after or in
connection with creation of the foregoing, including returned or repossessed
goods; (e) all reserves and credit balances with respect to any such lease
contracts or agreements or lessees; (f) all letters of credit, security or
guarantees for any of the foregoing; (g) all insurance policies or reports
relating to any of the foregoing; and (h) all books and records relating
to any of the foregoing.


 


“Leasing
Subsidiary” means Oshkosh/McNeilus Financial Services, Inc.,
Oshkosh/McNeilus Financial Services Partnership, Oshkosh Equipment Finance,
L.L.C. and any other Subsidiary that is designated by the Board of Directors of
the Company as a Leasing Subsidiary and that is exclusively engaged in Leasing
Transactions and activities related thereto. 
If at any time any Leasing Subsidiary should engage in a material
transaction or activity other than those described above, it shall thereafter
cease to be a Leasing Subsidiary hereunder.


 


“Leasing
Transaction” means (a) the formation of Leasing Subsidiaries (whether
in one or a series of related transactions); (b) the sale, lease or other
disposition to a third party of Lease 


 


19

















 


Assets
or an interest therein; (c) the borrowing of money secured by Lease
Assets; or (d) the sale or other disposition of Lease Assets or an
interest therein to a Leasing Subsidiary followed by a financing transaction in
connection with such sale or disposition of such Lease Assets (whether such
financing transaction is effected by such Leasing Subsidiary or by a third
party to whom such Leasing Subsidiary sells such Lease Assets or an interest
therein).


 


“Lender”
has the meaning specified in the introductory clause hereto.


 


“Lending
Office” means, as to any Lender, the office or offices of such Lender
specified as its “Lending Office” or “Domestic Lending Office” or “Offshore
Lending Office”, as the case may be, on Schedule 11.02, or such other
office or offices as such Lender may from time to time notify the Company and
the Agent.


 


“Letter
of Credit” means (a) the Existing Letters of Credit; and (b) any
letter of credit Issued by an Issuer pursuant to Article III.


 


“Letter
of Credit Expiration Date” means the day that is seven days prior to the
Revolving Maturity Date then in effect (or, if such day is not a Business Day,
the next preceding Business Day).


 


“Leverage
Ratio” means, as of any date of determination, the ratio of (a) the
excess of (i) (A) all Indebtedness (including all Obligations other
than any Obligations arising under any Cash Management Agreements) of the
Company and its Subsidiaries determined on a consolidated basis as of such date
(excluding Contingent Obligations in respect of Swap Contracts) and (B) to
the extent included in calculating Contingent Obligations by operation of clause
(v) of the last sentence of the definition thereof, outstanding
Indebtedness of the type characterized as “limited recourse debt” in OSK’s
report on Form 10-K for its fiscal year ended September 30, 2009), minus
(ii) the amount of Cash Collateral held pursuant to Sections 2.11(a),
3.07 and 3.11, if any, to (b) Consolidated EBITDA for the
most recently ended period of four fiscal quarters for which financial
statements are available.


 


“Lien”
means any security interest, mortgage, deed of trust, pledge, hypothecation,
assignment for security, charge or deposit arrangement, encumbrance, lien
(statutory or other) or similar interest of any kind or nature whatsoever in
respect of any property (including those created by, arising under or evidenced
by any conditional sale or other title retention agreement, the interest of a
lessor under a capital lease, any financing lease having substantially the same
economic effect as any of the foregoing and any contingent or other agreement
to provide any of the foregoing, but not including the interest of a lessor
under an operating lease).


 


“Loan”
means an extension of credit by a Lender to a Borrower under Article II
or Article III in the form of a Revolving Loan, a Swing Line Loan,
a Fronted Offshore Currency Loan, a Term Loan or an L/C Advance, as the context
requires.


 


“Loan
Documents” means this Agreement, the Notes, the Fee Letter, the L/C-Related
Documents, the Subsidiary Guaranty, the Collateral Documents, any agreement
creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 3.11
and all other documents delivered to the Agent or any Lender in connection
herewith.


 


20

















 


“Loan
Modification Offer” has the meaning specified in Section 11.20(a).


 


“Loan
Party” means the Company, any Subsidiary Borrower, any Pledgor or any
Guarantor.


 


“local
time” means (a) with respect to any Loan, the time of the office of
the Agent or the applicable Fronting Lender to which payment of such Loan is to
be made; and (b) with respect to any Letter of Credit, the time of the
issuing office of the Issuer of such Letter of Credit.


 


“Margin
Stock” means “margin stock” as such term is defined in Regulation T, U or X
of the FRB.


 


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the business, assets, liabilities (actual or contingent),
consolidated results of operations or consolidated financial condition of (i) the
Loan Parties, taken as a whole, or (ii) the Company and its Subsidiaries
taken as a whole; (b) a material impairment of the ability of any Loan
Party to perform its obligations under any Loan Document; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document; provided
that events, circumstances, changes, effects or conditions with respect to the
Company and its Subsidiaries disclosed in any Form 10-K, Form 10-Q or
Form 8-K filed by the Company with the SEC prior to August 10, 2010
shall not constitute a “Material Adverse Effect”.


 


“Material
Disposition” means any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in the disposition by the
Company or a Subsidiary of (a) all or substantially all of the assets of a
Subsidiary, or of any business or division of the Company or a Subsidiary; or (b) all
of the Equity Interests of a Subsidiary (to the extent owned by the Company
and/or its Subsidiaries) to a Person that is not a Subsidiary.


 


“Material
Domestic Subsidiary” means, at any time, each Domestic Subsidiary other
than (a) any Domestic Subsidiary with total (gross) revenues (after
eliminating intercompany revenues) for the preceding four fiscal quarter period
less than 10% of the total (gross) revenues of the Company and its Domestic
Subsidiaries (excluding Leasing Subsidiaries) for such period based upon the
Company’s most recent annual or quarterly financial statements delivered to the
Agent pursuant to Section 7.01; (b) any Leasing Subsidiary; (c) any
Securitization Subsidiary; and (d) any captive insurance company
Subsidiary.


 


“Material
Foreign Subsidiary” means, at any time, each Foreign Subsidiary other than (a) any
Foreign Subsidiary with total (gross) revenues (after eliminating intercompany
revenues) for the preceding four fiscal quarter period 3% or less of the total
(gross) revenues of the Company and its Subsidiaries (excluding Leasing
Subsidiaries) for such period based upon the Company’s most recent annual or
quarterly financial statements delivered to the Agent pursuant to Section 7.01;
(b) any Leasing Subsidiary; (c) any Securitization Subsidiary; and (d) any
captive insurance company Subsidiary.


 


“Material
Subsidiary” means a Material Domestic Subsidiary or a Material Foreign
Subsidiary.


 


21

















 


“MNPI”
means material non-public information with respect to the Company or any of its
Subsidiaries, or the respective securities of any of the foregoing, as
determined by the Company in its sole discretion.


 


“Moody’s”
means Moody’s Investor Service Inc. or its successors.


 


“Mortgage”
means a mortgage, leasehold mortgage, deed of trust or similar document
granting a Lien on real property (or any interest therein) of the Company or
any other Loan Party in appropriate form for filing or recording in the
applicable jurisdiction and otherwise reasonably satisfactory to the Agent.


 


“Multiemployer
Plan” means a “multiemployer plan”, within the meaning of Section 4001(a)(3) of
ERISA, to which the Company or any ERISA Affiliate makes, is making, or is
obligated to make contributions or, during the preceding three calendar years,
has made, or been obligated to make, contributions.


 


“Multiple
Employer Plan” means a Plan which has two or more contributing sponsors
(including the Company or any ERISA Affiliate) at least two of whom are not
under common control, as such a plan is described in Section 4064 of
ERISA.


 


“Net
Cash Proceeds” means:


 


(a)                                  with respect to
any Disposition, the aggregate cash proceeds (including cash proceeds received
by way of deferred payment of principal pursuant to a note, installment receivable
or otherwise, but only as and when received) received by the Company or any
Subsidiary pursuant to such Disposition, net of (i) the direct costs
relating to such Disposition (including sales commissions and legal, accounting
and investment banking fees), (ii) taxes paid or reasonably estimated by
the Company to be payable as a result thereof (including taxes that are or
would be payable upon repatriation of such proceeds to the United States),
after taking into account any available tax credits or deductions and any tax
sharing arrangements, (iii) amounts required to be applied to the
repayment of any Indebtedness secured by a Lien on the asset subject to such
Disposition (other than Indebtedness hereunder), (iv) the amount of any
reserve established in accordance with GAAP in respect of, without duplication,
(x) earn-outs and other purchase price adjustments associated with the
purchase price of the asset subject to such Disposition and (y) liabilities
associated with such asset that are retained by the Company or such Subsidiary,
including pension and post-employment benefit liabilities, liabilities related
to environmental matters and indemnification obligations, in each case to the
extent described in reasonable detail in a certificate provided by a
Responsible Officer promptly following consummation of such Disposition, and (v) proceeds
that the Company specifies in writing at the time of such Disposition will be
(and in fact are), within 365 days after such Disposition, either (x) reinvested
by the Company or the applicable Subsidiary (A) in revenue-producing
(whether directly or indirectly) assets or (B) in the case of any
Disposition of real estate, in fixed assets useful in the business of the
Company or the applicable Subsidiary or (y) applied towards the purchase
price of a Permitted Acquisition or a Permitted Investment (to the extent that
the Company would be permitted to pay cash to consummate such an Acquisition or
Investment, as the case may be, as of the date of such Disposition); and


 


22

















 


(b)                                 with respect to
any issuance of Indebtedness, the aggregate cash proceeds received by the
Company or any Subsidiary (from a Person other than the Company or any
Subsidiary) pursuant to such issuance, net of (i) the direct costs
relating to such issuance (including sales and underwriter’s discounts and
commissions and legal, accounting and investment banking fees) and (ii) in
the case of any issuance by a Foreign Subsidiary, deductions in respect of
taxes that are or would be payable upon repatriation of such proceeds to the
United States, after taking into account any available tax credits or
deductions and any tax sharing arrangements.


 


“Net
Worth” means the shareholders’ equity of the Company as determined in
accordance with GAAP, but excluding any portion thereof in excess of
$25,000,000 attributable to the equity interest of the Company and its
Subsidiaries in Leasing Subsidiaries.


 


“Non-Material
Foreign Subsidiary” means a Foreign Subsidiary which is not a Material
Foreign Subsidiary.


 


“Non-Surety
L/C’s” means letters of credit which are not Surety L/C’s.


 


“Note”
has the meaning specified in Section 2.02(b).


 


“Notice
of Borrowing” means a notice substantially in the form of Exhibit A.


 


“Notice
of Conversion/Continuation” means a notice substantially in the form of Exhibit B.


 


“Obligations”
means all advances, debts, liabilities, obligations, covenants and duties
arising under any Loan Document, Rate Swap Document or Cash Management
Agreement, in any case, owing by the Company and each Subsidiary Borrower to
any Lender, any Affiliate of a Lender that is a party to any such Rate Swap
Document or Cash Management Agreement, the Agent or any other Indemnitee, in
each case, whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, or now existing or hereafter
arising.


 


“Offshore
Currency” means at any time, Euro, Japanese Yen, Pounds Sterling,
Australian Dollars, Mexican Pesos, Canadian Dollars or Swedish Kronor and, from
and after the time of such approval, any other currency requested by the
Company and approved by each Revolving Lender in accordance with Section 2.08(e).


 


“Offshore
Currency Addendum” means an addendum substantially in the form of Exhibit H
with such modifications thereto as shall be approved by the applicable Fronting
Lender, the Company and the Agent.


 


“Offshore
Currency Loan” means any Offshore Rate Loan denominated in an Offshore
Currency.


 


“Offshore
Rate” means, for any Interest Period, with respect to Offshore Rate Loans
comprising part of the same Borrowing or any Fronted Offshore Currency Loan, as
applicable, 


 


23

















 


the
rate of interest per annum (rounded upward to the next 1/100th of 1%)
determined by the Agent as follows:


 


	
  Offshore
  Rate =

  	
  Offshore Base Rate

  	
   

  
	
   

  	
  1.00 - Eurocurrency Reserve Percentage

  	
   

  



 


Where:


 


“Eurocurrency Reserve Percentage” means, for
any day during any Interest Period, the reserve percentage (expressed as a
decimal, carried out to five decimal places) in effect on such day, whether or
not applicable to any Lender, under regulations issued from time to time by the
FRB for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as “Eurocurrency liabilities”); and


 


“Offshore Base Rate” means, for any Interest
Period with respect to an Offshore Rate Loan, the rate per annum equal to the
British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or other commercially available source providing quotations of BBA
LIBOR as designated by the Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, for deposits in the relevant currency (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period.  If such rate is not available at such time
for any reason, then the “Offshore Base Rate” for such Interest Period shall be
the rate per annum determined by the Agent to be the rate at which deposits in
the relevant currency for delivery on the first day of such Interest Period in
Same Day Funds in the approximate amount of the Offshore Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to such
Interest Period would be offered by Bank of America’s London Branch (or other
Bank of America branch or Affiliate) to major banks in the London or other
offshore interbank market for such currency at their request at approximately
11:00 a.m. (London time) two Business Days prior to the commencement of
such Interest Period.


 


The
Offshore Rate shall be adjusted automatically as to all Offshore Rate Loans
then outstanding as of the effective date of any change in the Eurocurrency
Reserve Percentage.


 


“Offshore
Rate Loan” means a Loan that bears interest based on the Offshore Rate,
which may be denominated in Dollars or, in the case of a Revolving Loan, any
Offshore Currency.


 


“Organization
Documents” means, for any corporation or other organization, as applicable,
the certificate or articles of incorporation or formation, the bylaws, limited
partnership agreement, limited liability company agreement, any certificate of
determination or instrument relating to the rights of preferred shareholders of
such corporation and any shareholder rights agreement or other similar
agreement.


 


“OSK”
has the meaning specified in the introductory clause hereto.


 


24

















 


“Other
Taxes” means any present or future stamp, court or documentary taxes or any
other excise or property taxes, charges or similar levies which arise from any
payment made hereunder or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, this Agreement or
any other Loan Documents.


 


“Participant”
has the meaning specified in Section 11.07(c).


 


“PBGC”
means the Pension Benefit Guaranty Corporation, or any Governmental Authority
succeeding to any of its principal functions under ERISA.


 


“PCAOB”
means the Public Company Accounting Oversight Board.


 


“Pension
Act” means the Pension Protection Act of 2006.


 


“Pension
Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension
Plans and set forth in, with respect to plan years ending prior to the
effective date of the Pension Act, Section 412 of the Code and Section 302
of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412,
430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.


 


“Pension
Plan” means any employee pension benefit plan (including a Multiple
Employer Plan or a Multiemployer Plan) that is maintained or is contributed to
by the Company and any ERISA Affiliate, or with respect to which the Company or
any ERISA Affiliate has any liability and is either covered by Title IV of
ERISA or is subject to the minimum funding standards under Section 412 of
the Code.


 


“Percentage”
means a Revolving Percentage or a Term Percentage, as the context requires.


 


“Permitted
Acquired Debt” means Indebtedness of the Company or any Subsidiary assumed
in connection with, or owing by an acquired entity at the time of, an
Acquisition so long as (a) such Acquisition is permitted hereunder and (b) such
Indebtedness (i) remains outstanding no more than 180 days after the
consummation of such Acquisition or (ii)(x)(A) is not subject to
prepayment or (B) is subject to prepayment with penalty and (y) does
not, as of the last day of the most recently ended fiscal quarter, exceed an
amount equal to 5% of the consolidated tangible assets of the Company and its
Subsidiaries.


 


“Permitted
Acquisition” means an Acquisition that meets the following requirements: (a) if
such Acquisition is of a Person, the board of directors or similar governing
body of such Person has approved such Acquisition; (b) no Default or Event
of Default exists at the time of such Acquisition or will exist immediately
thereafter; (c) the Person or businesses being acquired had positive cash
flow (which shall mean the remainder of earnings before interest expense,
taxes, depreciation and amortization minus capital expenditures) for the most
recent 12-month period for which financial statements are available; (d) immediately
after giving effect to such Acquisition, Available Liquidity shall be at least
$200,000,000; and (e) if the Leverage Ratio, immediately after giving
effect to such Acquisition, would be greater than 3.50 to 1.0, then the
aggregate amount of consideration for such Acquisition (and related
Acquisitions) made in the then current fiscal year (valued at the time of each
applicable Acquisition) shall not exceed 


 


25

















 


$100,000,000
(provided that such limitation shall not apply if the Leverage Ratio,
immediately after giving effect to such Acquisition, would be less than or
equal to 3.50 to 1.0).


 


“Permitted
Amendments” has the meaning specified in Section 11.20(a).


 


“Permitted
Investments” means all Investments (a) in Leasing Subsidiaries and/or
in connection with customer financing, vendor agreements, distribution, sales
and/or service activities, in each case in the ordinary course of business and
substantially consistent with past practice; (b) in joint ventures or
similar entities as contemplated by teaming agreements, sales agreements, sales
representative agreements, distribution agreements, joint development
agreements and/or similar agreements either (i) entered into in the
ordinary course of business and substantially consistent with past practice or (ii) required
by any Requirement of Law; (c) arising from the transfer of inventory,
equipment, intellectual property and/or software to Subsidiaries in the
ordinary course of business and substantially consistent with past practice;
(d) that the Company and/or one or more of its Subsidiaries have committed
to make as of the Effective Date (and any renewal, modification, replacement or
extension thereof, provided that the amount of the original Investment is not
increased except by the terms of such Investment or as otherwise permitted
under Section 8.04), which Investments are described on Schedule 8.04;
and (e) in Foreign Subsidiaries pursuant to tax, governmental and/or
external auditor requirements.


 


“Permitted
Liens” has the meaning specified in Section 8.01.


 


“Permitted
Securitization” means any program providing for (a) the sale,
contribution and/or transfer to a Securitization Subsidiary, in one or more
related and substantially concurrent transactions, of accounts receivable,
general intangibles, chattel paper or other financial assets (including rights
in respect of capitalized leases) and related rights of the Company or any Subsidiary
in transactions intended to constitute (and opined by nationally-recognized
outside legal counsel in connection therewith to constitute) true sales or true
contributions to such Securitization Subsidiary and (b) the provision of
financing secured by the assets so sold, whether in the form of secured loans
or the acquisition of undivided interests in such assets.


 


“Person”
means an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint
venture or Governmental Authority.


 


“Plan”
means any employee benefit plan within the meaning of Section 3(3) of
ERISA (including a Pension Plan), maintained for employees of the Company or
any ERISA Affiliate or any such plan to which the Company or any ERISA
Affiliate is required to contribute on behalf of any of its employees.


 


“Pledge
Agreement” means a pledge agreement among the Company, certain Subsidiaries
of the Company and the Agent substantially in the form of Exhibit I.


 


“Pledgor”
means, at any time, any Subsidiary that is a party to the Pledge Agreement at
such time in accordance with Section 7.13.


 


“Proceeds
Application” has the meaning specified in Section 2.11(c).


 


26
















 


“Qualifying
Bid” has the meaning specified in Schedule 2.22.


 


“Rate
Swap Documents” means, collectively, all Swap Contracts entered into
between (a) the Company or any Subsidiary and (b) any Lender (or any
Affiliate thereof).


 


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


 


“Remarketing
Agreements” means agreements guaranteeing the residual or future resale
value of products sold or leased by the Company or any Subsidiary.


 


“Reply
Amount” has the meaning specified in Schedule 2.22.


 


“Reply
Price” has the meaning specified in Schedule 2.22.


 


“Reportable
Event” means any of the events set forth in Section 4043(c) of
ERISA or the regulations thereunder, other than any such event for which the
30-day notice requirement under ERISA has been waived in regulations issued by
the PBGC.


 


“Required
Add-On Term Lenders” means at any time Add-On Term Lenders under the
applicable Add-On Term Facility having aggregate Add-On Term Percentages under
such Term Facility in excess of 50%.


 


“Required
Lenders” means at any time Lenders having aggregate Total Percentages in
excess of 50%.


 


“Required
Revolving Lenders” means at any time Revolving Lenders having aggregate
Revolving Percentages in excess of 50%.


 


“Required
Term A Lenders” means at any time Term A Lenders having aggregate Term A
Percentages in excess of 50%.


 


“Required
Term Lenders” means at any time Term Lenders having aggregate Term
Percentages in excess of 50%.


 


“Requirement
of Law” means, as to any Person, any law (statutory or common), treaty, rule or
regulation or determination of an arbitrator or of a Governmental Authority, in
each case applicable to or binding upon the Person or any of its property or to
which the Person or any of its property is subject.


 


“Responsible
Officer” means the chief executive officer, the president, the chief
financial officer, the treasurer or the controller of the Company, and solely
for purposes of the delivery of incumbency certificates pursuant to Section 5.01,
the secretary or any assistant secretary of the Company, or any other officer
having substantially the same authority and responsibility, and, for purposes
of Sections 7.03, 9.01(b), 9.01(c) and 9.01(i),
shall also include the general counsel of the Company.


 


27

















 


“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any Capital Stock of any Person or any of its
Subsidiaries, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, defeasance, acquisition, cancellation or termination of
any such Capital Stock, or on account of any return of capital to any Person’s
stockholders, partners or members (or the equivalent of any thereof), or any
option, warrant or other right to acquire any such Capital Stock.


 


“Return
Bid” has the meaning specified in Schedule 2.22.


 


“Revolving
Commitment” means, for any Revolving Lender, the amount set forth on Schedule
2.01 under the heading “Revolving Commitment”, as such amount may be
reduced pursuant to Section 2.09, increased pursuant to Section 2.20,
or reduced or increased as a result of one or more assignments pursuant to Section 11.07.


 


“Revolving Credit
Facility” means, at any time, the aggregate amount of the Revolving
Lenders’ Revolving Credit Commitments at such time.


 


“Revolving
Credit Increase Effective Date” has the meaning specified in Section 2.20(d).


 


“Revolving Lender”
means, at any time, any Lender that has a Revolving Commitment and/or
outstanding Revolving Loans at such time.


 


“Revolving
Loan” has the meaning specified in Section 2.01(a).


 


“Revolving
Maturity Date” means the earlier to occur of (a) October 1, 2015
and (b) the date on which the Revolving Loans become due and payable
pursuant to Section 9.02.


 


“Revolving
Percentage” means, as to any Lender, the percentage which (a) the
Revolving Commitment of such Lender (or, after termination of the Revolving
Commitments, the principal amount of such Lender’s Revolving Loans plus such
Lender’s participation interests in the principal amount of all Swing Line
Loans, Fronted Offshore Currency Loans and the Stated Amount of all Letters of
Credit) is of (b) the Aggregate Revolving Commitment (or, after
termination of the Revolving Commitments, the Total Revolving Usage); provided
that the Revolving Percentage shall be subject to adjustments as provided in Section 3.12.


 


“Revolving
Termination Date” means the earlier to occur of:


 


(a)                                 October 1,
2015; and


 


(b)                                 the date on
which the Revolving Commitments terminate (or are reduced to zero) in
accordance with the provisions of this Agreement.


 


“S&P”
means Standard & Poor’s Ratings Group, a division of the McGraw-Hill
Companies, Inc., or its successors.


 


“Same
Day Funds” means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to
disbursements and payments in an Offshore 


 


28

















 


Currency,
same day or other funds as may be determined by the Agent to be customary in
the place of disbursement or payment for the settlement of international
banking transactions in the relevant Offshore Currency.


 


“Sarbanes-Oxley”
means the Sarbanes-Oxley Act of 2002.


 


“SEC”
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.


 


“Securities
Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley, and the applicable accounting and auditing principles,
rules, standards and practices promulgated, approved or incorporated by the SEC
or the PCAOB.


 


“Securitization
Obligations” means the aggregate investment or claim held at any time by
all purchasers, assignees or transferees of (or of interests in), or holders of
obligations that are supported or secured by, accounts receivable, lease receivables
and other rights to payment in connection with Permitted Securitizations.


 


“Securitization
Subsidiary” means (a) a special purpose, bankruptcy remote, directly
Wholly-Owned Subsidiary of the Company or (b) a special purpose,
bankruptcy remote, Wholly-Owned Subsidiary of any Subsidiary described in subsection
(a) which in each case is formed for the sole and exclusive
purpose of engaging in activities in connection with the purchase,
contribution, transfer, sale and financing of assets and related rights in
connection with and pursuant to a Permitted Securitization.


 


“Security
Agreement” means a security agreement among the Company, the Guarantors and
the Agent substantially in the form of Exhibit J.


 


“Senior Secured Leverage Ratio” means, as of
any date of determination, the ratio of (a) the remainder of (i) all
Indebtedness (including all Obligations other than any
Obligations arising under any Cash Management Agreements) of the Company and its Subsidiaries to the
extent that such Indebtedness is secured by Liens, determined on a consolidated
basis, as of such date (excluding Contingent Obligations in respect of Swap
Contracts) minus (ii) the amount of Cash Collateral held pursuant
to Sections 2.11(a), 3.07 and 3.11, if any, to (b) Consolidated
EBITDA for the most recently ended period of four fiscal quarters for which
financial statements are available.


 


“Specified Default” means (a) a Default
under Section 9.01(a), (b) a Default under Section 9.01(f) or
(g), in either case, with respect to the Company, or (c) any Event
of Default.


 


“Spot
Rate” for a currency means the rate determined by the Agent or the
applicable Issuer to be the rate quoted by Bank of America as the spot rate for
the purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m.,
local time, on the date two Business Days prior to the date as of which the
foreign exchange computation is made; provided that the Agent or the
applicable Issuer may obtain such spot rate from another financial institution
designated by the Agent or such Issuer if Bank of America does not have as of
the date of determination a spot buying rate for any such currency.


 


29

















 


“Stated
Amount” means, with respect to any Letter of Credit, the maximum Dollar
Equivalent amount available to be drawn under such Letter of Credit during the
remaining term thereof under any and all circumstances.


 


“Subsidiary”
of a Person means any corporation, association, partnership, limited liability
company, joint venture or other business entity of which more than 50% of the
voting stock, membership interests or other equity interests is owned or
controlled directly or indirectly by such Person, or one or more of the
Subsidiaries of such Person, or a combination thereof; provided that for
the purposes of Articles VII and VIII hereof (and any definitions
incorporated therein) and of calculating the Leverage Ratio, the Senior Secured
Leverage Ratio, and the Interest Coverage Ratio, “Subsidiary” shall exclude all
Leasing Subsidiaries.  Unless the context
otherwise clearly requires, references herein to a “Subsidiary” refer to a
Subsidiary of the Company.


 


“Subsidiary
Borrower” means any Foreign Subsidiary or Material Domestic Subsidiary that
is designated as a Subsidiary Borrower by the Company pursuant to Section 2.19
with the consent of the Agent, which Subsidiary shall have delivered a
Subsidiary Borrower Supplement in accordance with Section 2.19.


 


“Subsidiary
Borrower Supplement” means a Subsidiary Borrower Supplement substantially
in the form of Exhibit F.


 


“Subsidiary
Guaranty” means, individually and collectively, the Subsidiary Guaranty
substantially in the form of Exhibit G and any other guaranty
executed and delivered by a Guarantor.


 


“Supported
Letter of Credit” means a Letter of Credit for which the Company has
provided Backup Support in an amount equal to the sum of (a) the Stated
Amount of such Letter of Credit and (b) all fees that will be payable with
respect to such Letter of Credit assuming such Letter of Credit is drawn in
full on the scheduled expiration date therefor. 
If a Letter of Credit is denominated in a currency other than Dollars,
then the amount specified in clause (a) shall be in the currency in
which such Letter of Credit is denominated or other arrangements shall be made
so that the Agent and the Issuers are satisfied, in their sole discretion, that
the amount of Backup Support for such Letter of Credit is sufficient to account
for currency fluctuations during the remaining term of such Letter of Credit.


 


“Surety
Bonds” means all bonds issued for the account of the Company or any
Subsidiary to assure the performance thereby (or to the extent issued in the
ordinary course of business, any other Person) under any contract entered into
in the ordinary course of business.


 


“Surety
Instruments” means all letters of credit (including standby and
commercial), banker’s acceptances, bank guaranties, shipside bonds, Surety
Bonds, Remarketing Agreements and similar instruments.


 


“Surety
L/C’s” means letters of credit which are issued for the account of the
Company or any Subsidiary to provide credit support, in the ordinary course of
business, for (a) a contract bid by such Person, (b) the performance
by such Person under any contract, (c) any warranty 


 


30

















 


extended
by such Person, (d) the repayment of advance payments made to such Person
and (e) self-insurance or fully-fronted insurance with respect to the
Company or any Subsidiary.


 


“Swap
Contract” means any agreement, whether or not in writing, relating to any
transaction that is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond,
note or bill option, interest rate option, forward foreign exchange
transaction, cap, collar or floor transaction, currency swap, cross-currency
rate swap, swaption, currency option or any other, similar transaction
(including any option to enter into any of the foregoing) or any combination of
the foregoing, and, unless the context otherwise clearly requires, any master
agreement relating to or governing any or all of the foregoing.


 


“Swap
Termination Value” means, in respect of any one or more Swap Contracts,
after taking into account the effect of any legally enforceable netting
agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s) determined
in accordance therewith, such termination value(s); and (b) for any date
prior to the date referenced in subsection (a) the amount(s) determined
as the mark-to-market value(s) for such Swap Contracts, as determined by
the Company based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts (which may
include any Lender).


 


“Swing
Line Commitment” means at any time, the obligation of the Swing Line Lender
to make Swing Line Loans pursuant to Section 2.05.  The Swing Line Commitment is a part of the
Aggregate Revolving Commitment, rather than a separate, independent commitment.


 


“Swing
Line Lender” means Bank of America, in its capacity as provider of the
Swing Line Loans.


 


“Swing
Line Loan” means a Loan denominated in Dollars made by the Swing Line
Lender.


 


“Swing
Line Rate” means, at any time, for any Swing Line Loan (a) prior to a
request by the Swing Line Lender for participation in such Swing Line Loan by
the Revolving Lenders pursuant to Section 2.06(b), the rate agreed
to by the Company and the Swing Line Lender with respect to such Swing Line
Loan and (b) thereafter, the Base Rate plus the Applicable Base
Rate Margin.


 


“Syndication
Agent” means JPMorgan Chase Bank, N.A. in its capacity as syndication agent
for the Lenders hereunder.


 


“Taxes”
means any and all present or future taxes, levies, assessments, imposts,
duties, deductions, fees, withholdings or similar charges, and all liabilities
with respect thereto, excluding, in the case of each Lender and the Agent,
respectively, taxes (including income taxes and franchise taxes) imposed on or
measured by its net income by the jurisdiction (or any political subdivision
thereof) under the laws of which such Lender or the Agent, as the case may be,
is organized or maintains a lending office.


 


31

















 


“Term
A Commitment” means, as to any Term A Lender, such Term A Lender’s
obligation to fund a Term A Loan pursuant to Section 2.01(b) and/or
2.21.  The amount of the Term A
Commitment of each Term A Lender as of the Effective Date is set forth across
from such Lender’s name on Schedule 2.01 under the heading “Term A
Commitment”.


 


“Term A Facility”
means, at any time, the aggregate principal amount of the Term A Loans of all
Term A Lenders outstanding at such time.


 


“Term
A Lender” means, at any time, any Lender that holds Term A Loans at such
time.


 


“Term
A Loans” has the meaning specified in Section 2.01(b).


 


“Term
A Maturity Date” means the earlier to occur of (a) October 1,
2015 and (b) the date on which the Term A Loans become due and payable
pursuant to Section 9.02.


 


“Term
A Percentage” means, as to any Term A Lender, the percentage which (a) the
Term A Commitment of such Lender (or, after the Effective Date, the principal
amount of such Lender’s Term A Loan) is of (b) the aggregate amount of
Term A Commitments (or, after the Effective Date, the aggregate principal
amount of all Term A Loans).


 


“Term
Commitment” means, as the context may require, either a Term A Commitment
or an Add-On Term Commitment.


 


“Term
Facility” means, at any time, the Term A Facility and each applicable
Add-On Term Facility.


 


“Term
Facility Increase Effective Date” has the meaning specified in Section 2.21(d).


 


“Term
Lender” means, at any time and as the context may require, a Term A Lender
and/or an Add-On Term Lender.


 


“Term
Loan” means, at any time and as the context may require, a Term A Loan
and/or an Add-On Term Loan.


 


“Term
Maturity Date” means, as the context may require, the Term A Maturity Date
and/or the applicable Add-On Term Maturity Date.


 


“Term
Percentage” means, as the context may require, the Term A Percentage and/or
the applicable Add-On Term Percentage.


 


“Threshold
Amount” means, at any time, $60,000,000.


 


“Total
Percentage” means, as to any Lender, the percentage which (a) the
Revolving Commitment of such Lender (or, after the termination of the Revolving
Commitments, the sum of the unpaid principal amount of the Revolving Loans of
such Lender plus the participations of such Lender in all Letters of
Credit, Swing Line Loans and Fronted Offshore Currency Loans) plus the unpaid
principal amount of the Term Loans of such Lender is of (b) the sum of the
Revolving Commitment (or, after the termination of the Revolving Commitments, the
Total 


 


32

















 


Revolving
Usage) plus the unpaid principal amount of all Term Loans; provided
that if and so long as any Lender is a Defaulting Lender, such Lender’s Total
Percentage shall be deemed for purposes of this definition to be reduced to the
extent of the defaulted amount, and the Total Percentage of the applicable
Issuer, Swing Line Lender or Fronting Lender, as applicable, shall be deemed
for purposes of this definition to be increased to such extent.


 


“Total
Revolving Usage” means, at any time, the sum at such time of (a) the
Dollar Equivalent principal amount of all outstanding Revolving Loans and Swing
Line Loans plus (b) the amount of all L/C Obligations plus (c) the
aggregate amount of all Fronted Offshore Currency Commitments.


 


“Type”
of Loan means the status of such Loan as a Base Rate Loan or an Offshore Rate
Loan.


 


“UCC”
means the Uniform Commercial Code as in effect in the State of Illinois.


 


“Unfunded
Pension Liability” means, with respect to any Plan, the excess of such Plan’s
benefit liabilities under Section 4001(a)(16) of ERISA, over the current
value of such Plan’s assets, determined in accordance with the assumptions used
for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.


 


“United
States” and “U.S.” each means the United States of America.


 


“Unreimbursed
Amount” has the meaning specified in Section 3.03(b).


 


“Voting
Stock” of any Person as of any date means the Capital Stock of such Person
that is entitled to vote in the election of the board of directors (or other
governing body) of such Person.


 


“Wholly-Owned
Subsidiary” means any corporation in which (other than directors’
qualifying shares required by law) 100% of the capital stock of each class
having ordinary voting power, and 100% of the capital stock of every other
class, in each case (or, in the case of Persons other than corporations,
membership interests or other equity interests), at the time as of which any
determination is being made, is owned, beneficially and of record, by the
Company, or by one or more of the other Wholly-Owned Subsidiaries, or both.


 


1.02                        Other
Interpretive Provisions.


 


(a)                                 The meanings of
defined terms are equally applicable to the singular and plural forms of the
defined terms.


 


(b)                                 Section, subsection,
clause, Schedule and Exhibit references are to this
Agreement unless otherwise specified.


 


(c)                                  (i)                                     The term “documents”
includes any and all instruments, documents, agreements, certificates,
indentures, notices and other writings, however evidenced.


 


33

















 


(ii)                                  The term “including”
is not limiting and means “including without limitation.”


 


(iii)                               In the
computation of periods of time from a specified date to a later specified date,
the word “from” means “from and including”; the words “to” and “until” each
mean “to but excluding”, and the word “through” means “to and including.”


 


(d)                                 Unless
otherwise expressly provided herein, (i) references to agreements
(including this Agreement) and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications thereto, but only to
the extent such amendments and other modifications are not prohibited by the
terms of any Loan Document, and (ii) references to any statute or
regulation are to be construed as including all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting
the statute or regulation.


 


(e)                                  The captions
and headings of this Agreement are for convenience of reference only and shall
not affect the interpretation of this Agreement.


 


(f)                                   This Agreement
and other Loan Documents may use several different limitations, tests or
measurements to regulate the same or similar matters.  All such limitations, tests and measurements
are cumulative and shall each be performed in accordance with their terms.


 


(g)                                  This Agreement
and the other Loan Documents are the result of negotiations among and have been
reviewed by counsel to the Agent, the Company and the other parties, and are
the products of all parties. 
Accordingly, they shall not be construed against the Lenders or the
Agent merely because of the Agent’s or Lenders’ involvement in their
preparation.


 


1.03                        Accounting
Principles.  (a) Unless
the context otherwise clearly requires, all accounting terms not expressly
defined herein shall be construed, and all financial computations required
under this Agreement shall be made, in accordance with GAAP.  Notwithstanding the foregoing, for purposes
of determining compliance with any covenant (including the computation of any
financial covenant) contained herein, Indebtedness shall be deemed to be
carried at 100% of the outstanding principal amount thereof, and the effect of
FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.


 


(b)                                 References
herein to “fiscal year” and “fiscal quarter” refer to such fiscal periods of
the Company.


 


(c)                                  For purposes of
calculations made pursuant to the terms of this Agreement, GAAP will be deemed
to treat operating leases in a manner consistent with its current treatment
under generally accepted accounting principles as of July 30, 2010,
notwithstanding any modifications or interpretive changes thereto that may
occur thereafter.


 


(d)                                 If any change
in GAAP occurs after the date of this Agreement and such change results in a
material variation in the method of calculation of financial covenants or other
terms of this Agreement or in what Subsidiaries are consolidated for financial
reporting purposes, then the Company, the Agent and the Lenders agree to amend
such provisions of this Agreement so as 


 


34

















 


to equitably reflect such change so that the
criteria for evaluating the Company’s financial condition will be the same
after such change as if such change had not occurred.


 


1.04                        Currency
Equivalents Generally.  For
all purposes of this Agreement (but not for purposes of the preparation of any
financial statements, any schedules pertaining to Foreign Subsidiaries or any
compliance certificates delivered pursuant hereto), the equivalent in any
Offshore Currency or other currency of an amount in Dollars, and the equivalent
in Dollars of an amount in any Offshore Currency or other currency, shall be
determined at the Spot Rate.


 


1.05                        Letter of
Credit Amounts.  Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall
be deemed to be the Stated Amount of such Letter of Credit in effect at such
time; provided that with respect to any Letter of Credit that, by its
terms or the terms of any Issuer Document related thereto, provides for one or
more automatic increases in the Stated Amount thereof, the amount of such
Letter of Credit shall be deemed to be the maximum Stated Amount of such Letter
of Credit after giving effect to all such increases, whether or not such
maximum Stated Amount is in effect at such time.


 


1.06                        Times of Day.  Unless otherwise specified, all references
herein to times of day (including any references to “local time”) shall be
references to Chicago, Illinois time.


 


ARTICLE II


 


THE CREDITS


 


2.01                        The Credits.


 


(a)                                 Each Revolving
Lender severally agrees, on the terms and conditions set forth herein, to make
loans to the Borrowers (each such loan, a “Revolving Loan”) from time to
time on any Business Day during the period from the Effective Date to the
Revolving Termination Date, in Dollars and/or one or more Offshore Currencies
to the Company or to any Subsidiary Borrower, in an aggregate Dollar Equivalent
amount not at any time exceeding such Lender’s Revolving Commitment; provided
that (a) the Total Revolving Usage shall not at any time exceed the
Aggregate Revolving Commitment; and (b) the sum of (i) the Dollar
Equivalent principal amount of all outstanding Revolving Loans of any Revolving
Lender plus (ii) such Revolving Lender’s Revolving Percentage of (x) all
outstanding Swing Line Loans, (y) the amount of all L/C Obligations and (z) the
Dollar Equivalent principal amount of all outstanding Fronted Offshore Currency
Loans shall not at any time exceed such Revolving Lender’s Revolving
Commitment.  Subject to the foregoing and
the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01(a),
prepay under Section 2.10 and reborrow under this Section 2.01(a).


 


(b)                                 Each Term A
Lender will make a term loan (each a “Term A Loan”) to the Company on
the Effective Date in Dollars in such Lender’s Term A Percentage of
$650,000,000.  Amounts repaid with
respect to Term A Loans may not be reborrowed.


 


2.02                        Loan Accounts.  (a) The Loans made by each Lender and
the Letters of Credit Issued by each Issuer shall be evidenced by one or more
accounts or records maintained by such Lender or Issuer, as the case may be, in
the ordinary course of business.  The
accounts or records 


 


35

















 


maintained by the Agent, each Issuer and each Lender
shall be conclusive absent manifest error of the amount of the Loans made by
the applicable Lenders to the Borrowers and the Letters of Credit, and the
interest and payments thereon.  Any
failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrowers hereunder to pay any amount
owing with respect to the Loans or any Letter of Credit.


 


(b)                                 Each Borrower
shall, at the request of any Lender, issue to such Lender a single note (each a
“Note”), substantially in the form of Exhibit E, to evidence
such Lender’s Loans to such Borrower. 
Each Lender may, instead of or in addition to maintaining a loan
account, endorse on the schedule annexed to its Note the date, amount and
maturity of each Loan made by it and the amount of each payment of principal
made by a Borrower with respect thereto. 
Each such Lender is irrevocably authorized by the Borrowers to endorse
its Note and each Lender’s record shall be conclusive absent manifest error; provided
that the failure of a Lender to make, or an error in making, a notation thereon
with respect to any Loan shall not limit or otherwise affect the obligations of
any Borrower hereunder or under any such Note to such Lender.


 


2.03                        Procedure for
Borrowing.  (a) Each
Borrowing shall be made upon the applicable Borrower’s irrevocable notice
delivered to the Agent in the form of a Notice of Borrowing (which notice must
be received by the Agent prior to 11:00 a.m. (local time) (i) two
Business Days prior to the requested Borrowing Date, in the case of Offshore
Rate Loans denominated in Dollars, (ii) four Business Days prior to the
requested Borrowing Date, in the case of Offshore Rate Loans denominated in a
currency specified in the definition of “Offshore Currency” on the Effective
Date, (iii) the number of Business Days determined by the Agent to be
customary for its syndicated credit facilities, if such Offshore Rate Loans are
to be denominated in a currency not covered by the preceding clause (ii),
and (iv) on the requested Borrowing Date, in the case of Base Rate Loans),
specifying:


 


(A)                               the amount of
such Borrowing, which shall (unless such Borrowing is being requested (or
deemed to be requested) pursuant to Section 2.06(b) or 3.03(b))
be (x) a Dollar Equivalent amount not less than $5,000,000 (or such lesser
amount agreed to by the Agent) and (y) a higher integral multiple of
500,000 units of the Applicable Currency;


 


(B)                               the requested
Borrowing Date, which shall be a Business Day;


 


(C)                               the Class and
Type of Loans comprising such Borrowing;


 


(D)                               with respect to
Offshore Rate Loans, the duration of the Interest Period applicable to such
Loans included in such notice (and, if a Notice of Borrowing fails to specify
the duration of the Interest Period for any Borrowing of Offshore Rate Loans,
such Interest Period shall be one month);


 


(E)                                with respect to
Offshore Rate Loans, the Applicable Currency for such Borrowing; and


 


(F)                                 the identity of
the Borrower requesting such Borrowing.


 


36
















 


(b)           The Agent will promptly
notify each applicable Lender of its receipt of any Notice of Borrowing and (i)
in respect of Borrowings of any Class of Term Loans, the amount of each
applicable Term Lender’s Term Percentage of such Borrowing and (ii) in respect
of Borrowings of Revolving Loans (other than Offshore Rate Loans to the extent
covered by Section 2.08), (x) the amount of such Lender’s Revolving
Percentage of such Borrowing and (y) if such Borrowing is in an Offshore
Currency, the aggregate Dollar Equivalent amount of such Borrowing and the
applicable Spot Rate used by the Agent to determine such aggregate Dollar
Equivalent amount.  The Agent shall also
give the Company prompt notice of the matters referred to in clause (ii)(y)
of the preceding sentence.


 


(c)           Each Lender will make the
amount of its applicable Percentage of each Borrowing available to the Agent
for the account of the applicable Borrower at the Agent’s Payment Office by
1:00 p.m. (local time) on the Borrowing Date and in the Applicable Currency
requested by such Borrower in funds immediately available to the Agent.  The proceeds of all such Loans will then be
made available to the applicable Borrower by the Agent at such office by
crediting the account of such Borrower on the books of Bank of America with the
aggregate of the amounts made available to the Agent by the Lenders and in like
funds as received by the Agent.


 


(d)           After giving effect to any
Borrowing, unless the Agent shall otherwise consent, there may not be more than
15 different Interest Periods in effect.


 


(e)           Each Borrower hereby
authorizes the Lenders and the Agent to accept Notices of Borrowing based on
telephonic notices made by any person or persons the Agent or any Lender in
good faith believes to be acting on behalf of such Borrower.  Each Borrower agrees to deliver promptly to
the Agent a written confirmation of each telephonic notice, signed by a
Responsible Officer or an authorized designee. 
If the written confirmation differs in any material respect from the
action taken by the Agent and the Lenders, the records of the Agent and the
Lenders shall govern absent manifest error.


 


2.04         Conversion and Continuation
Elections.  (a) Each
Borrower may, with respect to Loans other than Fronted Offshore Currency Loans,
upon irrevocable notice to the Agent in accordance with Section 2.04(b):


 


(i)            elect to convert Loans
denominated in Dollars from one Type to the other Type; provided that
(x) any partial conversion of Loans shall be in (A) an aggregate amount not
less than $5,000,000 (or such lesser amount agreed to by the Agent) and (B) an
integral multiple of $500,000 and (y) any conversion of Offshore Rate Loans
into Base Rate Loans may occur only on the last day of the applicable Interest
Period therefor; or


 


(ii)           elect as of the last day of
the applicable Interest Period, to continue any Offshore Rate Loans having
Interest Periods expiring on such day (or any part thereof in an aggregate
Dollar Equivalent amount that is (A) not less than $5,000,000 (or such lesser
amount agreed to by the Agent) and (B) an integral multiple of 500,000 units of
the Applicable Currency);


 


37

















 


provided that if at any
time the aggregate amount of Offshore Rate Loans in respect of any Borrowing is
reduced, by payment, prepayment or conversion of part thereof to be less than
the Dollar Equivalent of $5,000,000, such Offshore Rate Loans shall (x) if
denominated in Dollars, be converted into Base Rate Loans, or (y) if
denominated in an Offshore Currency, be prepaid, in each case on the last day
of the Interest Period therefor.


 


(b)           Each Borrower shall deliver
a Notice of Conversion/Continuation to be received by the Agent not later than
10:30 a.m. (local time) at least (i) two Business Days in advance of the
Conversion/Continuation Date, if the applicable Loans are to be converted into
or continued as Offshore Rate Loans denominated in Dollars, (ii) four Business
Days in advance of the Conversion/Continuation Date, if the applicable
Revolving Loans are to be continued as Offshore Rate Loans denominated in a
currency specified in the definition of “Offshore Currency” on the Effective
Date, (iii) the number of Business Days determined by the Agent to be customary
for its syndicated credit facilities, if the applicable Revolving Loans are to
be continued as Offshore Rate Loans in a currency not covered by the preceding clause
(ii), and (iv) on the Conversion/Continuation Date, if the applicable Loans
are to be converted into Base Rate Loans, specifying:


 


(A)          the proposed
Conversion/Continuation Date;


 


(B)           the aggregate amount of
Loans to be converted or continued;


 


(C)           the Type of Loans resulting
from the proposed conversion or continuation; and


 


(D)          other than in the case of
conversions into Base Rate Loans, the duration of the requested Interest
Period.


 


(c)           If upon the expiration of
any Interest Period applicable to Offshore Rate Loans, a Borrower has failed to
select timely a new Interest Period to be applicable to such Offshore Rate
Loans, as the case may be, then such Borrower shall be deemed to have elected
to continue such Loans as Offshore Rate Loans to itself denominated in the same
currency and having a one-month Interest Period effective as of the expiration
date of such expiring Interest Period.


 


(d)           The Agent will promptly
notify each applicable Lender of its receipt of a Notice of
Conversion/Continuation, or, if no timely notice is provided by a Borrower, of
the details of any automatic conversion or continuation.  All conversions and continuations shall be
made ratably according to the respective outstanding principal amounts of the
Loans with respect to which the notice was given held by each Lender.


 


(e)           Unless the Required
Revolving Lenders or Required Term Lenders of the relevant Class of Term Loans,
as applicable, otherwise consent, during the existence of a Specified Default,
no Borrower may elect to have a Revolving Loan or a Term Loan of such Class
converted into or continued as an Offshore Rate Loan.


 


(f)            During the existence of an
Event of Default, the Required Revolving Lenders may require, by notice to the
Borrowers and the Agent, that all outstanding Revolving Loans that are Offshore
Rate Loans denominated in an Alternative Currency be prepaid, or be
redenominated 


 


38

















 


into Dollars in the amount of the Dollar Equivalent
thereof, on the last day of the then current Interest Period with respect
thereto.


 


(g)           After giving effect to any
conversion or continuation of Loans, unless the Agent shall otherwise consent,
there may not be more than 15 different Interest Periods in effect.


 


(h)           Each Borrower hereby
authorizes the Lenders and the Agent to accept Notices of
Conversion/Continuation based on telephonic notices made by any Person, the
Agent or any Lender in good faith believes to be acting on behalf of such
Borrower.  Each Borrower agrees to
deliver promptly to the Agent a written confirmation of each telephonic notice,
signed by a Responsible Officer or an authorized designee.  If the written confirmation differs in any
material respect from the action taken by the Agent and the Lenders, the
records of the Agent and the Lenders shall govern absent manifest error.


 


2.05         The Swing Line Loans.  Subject to the terms and conditions hereof,
the Swing Line Lender may in its sole discretion make Swing Line Loans
denominated in Dollars to the Company from time to time prior to the Revolving
Termination Date in an aggregate principal amount at any one time outstanding
not to exceed $100,000,000; provided that after giving effect to any
such Swing Line Loan, the Total Revolving Usage shall not exceed the Aggregate
Revolving Commitment.  Prior to the
Revolving Termination Date, the Company may use the Swing Line Commitment by
borrowing, prepaying the Swing Line Loans in whole or in part, and reborrowing,
all in accordance with the terms and conditions hereof.  All Swing Line Loans shall bear interest at
the Swing Line Rate and shall not be entitled to be converted into Loans that
bear interest at any other rate.


 


2.06         Procedure for Swing Line
Loans.  (a) The Company may borrow
under the Swing Line Commitment on any Business Day until the Revolving
Termination Date; provided that the Company shall give the Swing Line
Lender irrevocable written notice signed by a Responsible Officer or an
authorized designee (which notice must be received by the Swing Line Lender
prior to 2:00 p.m. (local time)) with a copy to the Agent specifying the amount
of the requested Swing Line Loan, which shall be in an integral multiple of
$100,000.  Unless the Swing Line Lender
has received prior notice (by telephone or in writing) from the Agent on the
date of the proposed Swing Line Loan that one or more of the applicable
conditions specified in Article V is not then satisfied, the proceeds of
a requested Swing Line Loan will be made available by the Swing Line Lender to
the Company in immediately available funds at the office of the Swing Line
Lender by 4:00 p.m. (local time) on the date of such notice of borrowing.  The Company may at any time and from time to
time, prepay the Swing Line Loans, in whole or in part, without premium or
penalty, by notifying the Swing Line Lender prior to 2:00 p.m. (local time) on
any Business Day of the date and amount of prepayment with a copy to the Agent.  If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified
therein.  Partial prepayments shall be in
an integral multiple of $100,000.


 


(b)           If any Swing Line Loan shall
remain outstanding at 11:00 a.m. (local time) on the fifth Business Day
following the date of such Swing Line Loan and if by such time on such fifth
Business Day the Agent shall not have received either (i) a Notice of Borrowing
delivered by the Company pursuant to Section 2.03 requesting that
Revolving Loans be made pursuant to Section 2.01 on the immediately
succeeding Business Day in an amount at least equal to the principal 


 


39

















 


amount of such Swing Line Loan for the purpose of
refunding such Swing Line Loan or (ii) any other notice satisfactory to the
Agent indicating the Company’s intent to repay such Swing Line Loan on or
before the immediately succeeding Business Day with funds obtained from other
sources or to extend such Swing Line Loan, then on such Business Day the Swing
Line Lender shall (and on any Business Day the Swing Line Lender in its sole
discretion may), on behalf of the Company (which hereby irrevocably directs the
Swing Line Lender to act on its behalf) request the Agent to notify each
Revolving Lender to make a Revolving Loan consisting of a Base Rate Loan in an
amount equal to such Revolving Lender’s Revolving Percentage of (A) in the case
of such a request which is required to be made, the amount of the relevant Swing
Line Loan and (B) in the case of such a discretionary request, the aggregate
principal amount of the Swing Line Loans outstanding on the date such notice is
given; provided that absent notice by the Company to the contrary by
such time on such fifth Business Day, the Company shall be deemed to have
requested, at the end of such five Business Day period, that each outstanding
Swing Line Loan be extended for an additional period of five Business Days, so
long as the conditions specified in Section 5.02 would be satisfied at
the beginning of each such additional period, treating each such extension as
if it were the making of a new Loan. 
Unless any of the events described in Section 9.01(f) or (g)
shall have occurred with respect to the Company (in which event the procedures
of subsection (d) of this Section 2.06 shall apply) each
Revolving Lender shall make the proceeds of its Revolving Loan available to the
Agent (and the Agent may during a Specified Default apply Cash Collateral
available with respect to the applicable Swing Line Loan) for the account of
the Swing Line Lender at the Agent’s Payment Office in funds immediately
available prior to 1:00 p.m. (local time) on the Business Day next succeeding
the date such notice is given.  The
proceeds of such Revolving Loans shall be immediately applied to repay the
outstanding Swing Line Loans.  Effective
on the day such Revolving Loans are made, the portion of the Swing Line Loans
so paid shall no longer be outstanding as Swing Line Loans and shall no longer
be due under the Swing Line Note.  The
Company shall pay to the Swing Line Lender, promptly following the Swing Line
Lender’s demand, the amount of its outstanding Swing Line Loans to the extent
amounts received from the Revolving Lenders are not sufficient to repay in full
such outstanding Swing Line Loans.


 


(c)           Notwithstanding anything
herein to the contrary, the Swing Line Lender (i) shall not be obligated to
make any Swing Line Loan if the conditions set forth in Article V have
not been satisfied and (ii) shall not make any requested Swing Line Loan if,
prior to 11:00 a.m. (local time) on the date of such requested Swing Line Loan,
it has received a written notice from the Agent or any Revolving Lender
directing it not to make further Swing Line Loans because any condition
specified in Article V is not then satisfied.


 


(d)           If prior to the making of a
Revolving Loan required to be made by Section 2.06(b) a Specified
Default shall have occurred and be continuing with respect to the Company, each
Revolving Lender will, on the date such Revolving Loan was to have been made
pursuant to the notice described in Section 2.06(b), purchase an
undivided participating interest in all outstanding Swing Line Loans in an
amount equal to its Revolving Percentage of the aggregate principal amount of
all such Swing Line Loans.  Each
Revolving Lender will immediately transfer to the Agent for the benefit of the
Swing Line Lender, in immediately available funds, the amount of its participation.


 


40

















 


(e)           Whenever, at any time after
a Revolving Lender has purchased a participating interest in a Swing Line Loan,
the Swing Line Lender receives any payment on account thereof, the Swing Line
Lender will distribute to the Agent for delivery to each Revolving Lender its
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Revolving
Lender’s participating interest was outstanding and funded); provided
that in the event that such payment received by the Swing Line Lender is
required to be returned, such Revolving Lender will return to the Agent for
delivery to the Swing Line Lender any portion thereof previously distributed by
the Swing Line Lender to it.


 


(f)            Each Revolving Lender’s
obligation to make the Revolving Loans referred to in Section 2.06(b)
and to purchase participating interests pursuant to Section 2.06(d)
shall be absolute and unconditional and shall not be affected by any
circumstance, including, (i) any set-off, counterclaim, recoupment, defense or
other right which such Revolving Lender or the Company may have against the
Swing Line Lender, the Company or any other Person for any reason whatsoever,
(ii) the occurrence or continuance of a Default or an Event of Default, (iii)
any adverse change in the condition (financial or otherwise) of the Company,
(iv) any breach of this Agreement or any other Loan Document by the Company,
any Subsidiary or any other Lender or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.


 


2.07         The Fronted Offshore
Currency Loans.


 


(a)           Upon the satisfaction of the
conditions precedent set forth in Article V and in the applicable
Offshore Currency Addendum, from the later of the date of this Agreement and
the date of execution of the applicable Offshore Currency Addendum to the date
of termination of the Revolving Commitments (or such earlier termination date
as shall be specified in or pursuant to the applicable Offshore Currency
Addendum), each Fronting Lender agrees, on the terms and conditions set forth
in this Agreement and in the applicable Offshore Currency Addendum, to make
Fronted Offshore Currency Loans under such Offshore Currency Addendum to the applicable
Borrower party to such Offshore Currency Addendum from time to time in the
applicable Alternative Currency, in an aggregate Dollar Equivalent principal
amount not to exceed such Fronting Lender’s applicable Fronted Offshore
Currency Commitment (the amount of which shall in no event be, if not zero,
less than the Dollar Equivalent of $10,000,000 or a higher integral multiple of
$1,000,000); provided that, at no time shall the Dollar Equivalent of
the Fronted Offshore Currency Loans for any specific Alternative Currency
exceed the maximum amount specified as the maximum amount for such Alternative
Currency in the applicable Offshore Currency Addendum other than as a result of
currency fluctuations.  Subject to the
terms of this Agreement and the applicable Offshore Currency Addendum, the
applicable Borrowers may borrow, repay and reborrow Fronted Offshore Currency
Loans in the applicable Alternative Currency at any time prior to the
termination of the Revolving Commitments (or such earlier termination date as
shall be specified in or pursuant to the applicable Offshore Currency
Addendum).  Upon the termination of the
Revolving Commitments (or such earlier termination date as shall be specified
in or pursuant to the applicable Offshore Currency Addendum), the outstanding
principal balance of the Fronted Offshore Currency Loans shall be paid in full
by the applicable Borrower; and prior to the termination of the Revolving
Commitments, prepayments of the Fronted Offshore Currency Loans shall be made
by the 


 


41

















 


applicable Borrower if and to the extent required by
Section 2.11(b).  For the
avoidance of doubt, it is understood that no Lender shall have any obligation
to become a Fronting Lender.


 


(b)           The applicable Borrower
shall pay the applicable Fronting Lender a fronting fee in respect of each
Fronted Offshore Currency Loan in accordance with the Offshore Currency
Addendum (or other agreement with such Fronting Lender).


 


(c)           Except as otherwise required
by applicable law, in no event shall any Fronting Lender have the right to
accelerate the Fronted Offshore Currency Loans outstanding under any Offshore
Currency Addendum prior to the stated termination date in respect thereof,
except that each Fronting Lender shall have such right upon an acceleration of
the Revolving Loans pursuant to Article IX.


 


(d)           Each Fronting Lender shall
furnish to the Agent not less frequently than monthly, at the end of each
calendar quarter, and at any other time upon the request of the Agent, a
statement setting forth the outstanding Fronted Offshore Currency Loans made
and repaid during the period since the last such report.


 


(e)           Immediately and
automatically upon the occurrence of a Specified Default, each Revolving Lender
shall be deemed to have unconditionally and irrevocably purchased from the
applicable Fronting Lender, without recourse or warranty, an undivided interest
and participation in each Fronted Offshore Currency Loan ratably in an amount
equal to such Lender’s Revolving Percentage of the amount of principal and
accrued interest of such Loan, and such Fronted Offshore Currency Loans shall,
as the Required Lenders shall direct, either be prepaid, or redenominated into
Dollars in the amount of the Dollar Equivalent thereof, on the last day of the
then current Interest Period with respect thereto.  Each of the Lenders shall pay to the
applicable Fronting Lender not later than two Business Days following a request
for payment from such Fronting Lender, in Dollars, an amount equal to the
undivided interest in and participation in the Fronted Offshore Currency Loan
purchased by such Lender pursuant to this Section 2.07(e), and the Agent
may apply Cash Collateral available with respect to the applicable Fronted
Offshore Currency Loan.  If any Lender
fails to make payment to the applicable Fronting Lender of any amount due under
this Section 2.07(e), the Agent shall be entitled to receive, retain and
apply against such obligation the principal and interest otherwise payable to
such Lender hereunder until the Agent receives from such Lender an amount
sufficient to discharge such Lender’s payment obligation as prescribed in this Section
2.07(e) together with interest thereon at the Federal Funds Rate for each
day during the period commencing on the date of demand by the applicable
Fronting Lender and ending on the date such obligation is fully satisfied.  The Agent will promptly remit all payments
received as provided above to the applicable Fronting Lender.  In consideration of the risk participations
prescribed in this Section 2.07(e), each Lender shall receive, from the
accrued interest paid for periods prior to the conversion of any Fronted
Offshore Currency Loan as described above by the applicable Borrower on each
Fronted Offshore Currency Loan, a fee equal to such Lender’s Revolving
Percentage of the Applicable Offshore Rate Margin component of the interest
accrued on such Loan, as in effect from time to time during the period such
interest accrued.  Such portion of the
interest paid by the applicable Borrower on Fronted Offshore Currency Loans to
the applicable Fronting Lender shall be paid as promptly as possible by such
Fronting Lender to the Agent, and the Agent shall as promptly as possible
convert such amount into Dollars at the Spot Rate and apply such resulting
amount 


 


42

















 


ratably among the Revolving Lenders (including the
Fronting Lenders) in proportion to their respective Revolving Percentages.


 


(f)            Whenever, at any time after
a Revolving Lender has purchased a participating interest in a Fronted Offshore
Currency Loan, the applicable Fronting Lender receives any payment on account
thereof, such Fronting Lender will distribute to the Agent for delivery to each
Revolving Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Revolving Lender’s participating interest was outstanding and
funded); provided that if such payment received by such Fronting Lender
is required to be returned, such Revolving Lender will return to the Agent for
delivery to such Fronting Lender any portion thereof previously distributed to
it by the Agent or such Fronting Lender.


 


(g)           Each Revolving Lender’s obligation
to purchase the participating interests referred to in Section 2.07(e)
shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment, defense or
other right which such Revolving Lender or any Borrower may have against any
Fronting Lender, the Company or any other Person for any reason whatsoever,
(ii) the occurrence or continuance of a Default or an Event of Default, (iii)
any adverse change in the condition (financial or otherwise) of any Borrower,
(iv) any breach of this Agreement or any other Loan Document by any Borrower,
any other Loan Party or any other Lender or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.


 


(h)           The specification of payment
of Fronted Offshore Currency Loans in the related Alternative Currency at a
specific place pursuant to this Agreement is of the essence.  Such Alternative Currency shall, subject to
this Section 2.07, be the currency of account and payment of such Loans
under this Agreement and the applicable Offshore Currency Addendum.  Notwithstanding anything in this Agreement,
the obligation of the applicable Borrower in respect of such Loans shall not be
discharged by an amount paid in any other currency or at another place, whether
pursuant to a judgment or otherwise, to the extent the amount so paid, on
prompt conversion into the applicable Alternative Currency and transfer to such
Lender under normal banking procedure, does not yield the amount of such
Alternative Currency due under this Agreement or the applicable Offshore
Currency Addendum.  If any payment,
whether pursuant to a judgment or otherwise, upon conversion and transfer, does
not result in payment of the amount of such Alternative Currency due under this
Agreement or the applicable Offshore Currency Addendum, the applicable Borrower
shall pay such deficiency to the applicable Lender (and such Lender shall have
an independent cause of action against such Borrower for such deficiency.)  If any payment, upon conversion and transfer,
results in payment in excess of the amount of such Alternative Currency due
under this Agreement or the applicable Offshore Currency Addendum, the
applicable Lender shall refund such excess to the applicable Borrower.


 


2.08         Utilization of Commitments
in Offshore Currencies; Valuation.


 


(a)           The Agent will determine the
Dollar Equivalent amount of each Offshore Rate Loan and each Letter of Credit
denominated in a currency other than Dollars on each Computation Date, and such
determination shall be conclusive absent demonstrable error. The 


 


43

















 


Agent will provide the Company with the amount so
determined upon request and, in any event, promptly following the end of each
month.


 


(b)           Upon receipt of any Notice
of Borrowing of Offshore Currency Loans, the Agent will promptly notify each
Revolving Lender of the approximate amount of such Lender’s Revolving
Percentage of such Borrowing, and the Agent will, upon the determination of the
Dollar Equivalent amount of the Borrowing as specified in the Notice of
Borrowing, promptly notify each Revolving Lender of the exact amount of such
Revolving Lender’s Revolving Percentage of such Borrowing.  In the case of a proposed Borrowing comprised
of Offshore Currency Loans, the Revolving Lenders shall be under no obligation
to make Offshore Currency Loans in the requested Offshore Currency as part of
such Borrowing if the Agent has received notice from any Revolving Lender by
3:00 p.m. (local time) three Business Days prior to the day of such Borrowing
stating that (i) such Lender cannot provide Loans in such Offshore Currency
without adverse tax or legal consequences and/or (ii) such Lender does not
provide loans in such Offshore Currency generally, in which event the Agent
will give notice to the Company no later than 4:00 p.m. (local time) three
Business Days prior to the requested date of such Borrowing that a Borrowing in
such Offshore Currency is not then available, no such Borrowing shall be made
and any request for a Revolving Loan in such Offshore Currency shall be deemed
withdrawn and shall otherwise be without effect.


 


(c)           In the case of a proposed
continuation of Offshore Currency Loans for an additional Interest Period
pursuant to Section 2.04, the Revolving Lenders shall be under no
obligation to continue such Offshore Currency Loans if the Agent has received
notice from any of the Revolving Lenders by 4:00 p.m. (local time) three
Business Days prior to the day of such continuation that such Revolving Lender
cannot continue to provide Loans in the applicable Offshore Currency, in which
event the Agent will give notice to the Company not later than 9:00 a.m. (local
time) on the second Business Day prior to the requested date of such
continuation that the continuation of such Offshore Currency Loans in such
Offshore Currency is not then available, and notice thereof also will be given
promptly by the Agent to the Revolving Lenders. 
If the Agent shall have so notified the Company that any such
continuation of Offshore Currency Loans is not then available, any Notice of
Continuation/Conversion with respect thereto shall be deemed withdrawn and such
Offshore Currency Loans shall be redenominated into Revolving Loans consisting
of Base Rate Loans assumed by the Company in Dollars with effect from the last
day of the Interest Period with respect to any such Offshore Currency
Loans.  The Agent will promptly notify
the Company and the Revolving Lenders of any such redenomination and in such
notice by the Agent to each Revolving Lender the Agent will state the aggregate
Dollar Equivalent amount of the redenominated Offshore Currency Loans assumed
by the Company as of the Computation Date with respect thereto and such
Revolving Lender’s Revolving Percentage thereof.


 


(d)           Notwithstanding anything
herein to the contrary, during the existence of an Event of Default, the
Required Lenders may demand that any or all of the then outstanding Offshore
Currency Loans be prepaid, or redenominated into Dollars in the amount of the
Dollar Equivalent thereof, on the last day of the then current Interest Period
with respect thereto.  The Agent will
promptly notify the applicable Borrower of any such prepayment or
redenomination request.


 


44

















 


(e)           The Company shall be
entitled to request that Revolving Loans hereunder shall also be permitted to
be made in any other lawful currency, in addition to Dollars and the currencies
specified in the definition of “Offshore Currency”, that in the opinion of each
Revolving Lender is at such time freely traded in the offshore interbank
foreign exchange markets and is freely transferable and freely convertible into
Dollars (an “Agreed Alternative Currency”).  The Company shall deliver to the Agent any
request for designation of an Agreed Alternative Currency in accordance with Section
11.02, to be received by the Agent not later than noon (local time) at
least ten Business Days in advance of the date of any Borrowing hereunder
proposed to be made in such Agreed Alternative Currency.  Upon receipt of any such request the Agent
will promptly notify the Revolving Lenders thereof, and each Revolving Lender
will use its best efforts to respond to such request within two Business Days
of receipt thereof.  Each Revolving
Lender may grant or deny such request in its sole discretion.  The Agent will promptly notify the Company of
the acceptance or rejection of any such request.


 


2.09         Voluntary Termination or
Reduction of Revolving Commitments.  (a) The Company may, upon not less than five
Business Days’ prior notice to the Agent (which notice may be conditioned upon
the consummation of replacement financing), terminate the Revolving
Commitments, or permanently reduce the Aggregate Revolving Commitment by
$10,000,000 or any higher integral multiple of $1,000,000; provided that
the Aggregate Revolving Commitment shall not be reduced to an amount less than
the Total Revolving Usage.  Once reduced
in accordance with this subsection (a), the Aggregate Revolving
Commitment may not be increased, except as provided in Section 2.20.  Any reduction of the Aggregate Revolving
Commitment shall be applied to reduce the Revolving Commitment of each
Revolving Lender according to its Revolving Percentage.


 


(b)           At no time shall the sum of
the Swing Line Commitment and the Fronted Offshore Currency Commitments exceed
the Aggregate Revolving Commitment, and any reduction of the Aggregate
Revolving Commitment which reduces the Aggregate Revolving Commitment below the
then-current sum of the Swing Line Commitment and the Fronted Offshore Currency
Commitments shall result in an automatic corresponding reduction of the Swing
Line Commitment and/or the Fronted Offshore Currency Commitments (as specified
by the Company or, in the absence of such specification, pro rata according to
the amounts thereof) so that the sum thereof is equal to the Aggregate
Revolving Commitment, as so reduced.  At
no time shall the sum of the Swing Line Commitment plus any Fronted Offshore
Currency Commitment of any Lender exceed the Revolving Commitment of such
Lender, and any reduction of the Aggregate Revolving Commitment which reduces
the Revolving Commitment of such Lender below the then-current sum of the Swing
Line Commitment plus the Fronted Offshore Currency Commitment of such
Lender shall result in an automatic corresponding reduction of the Swing Line
Commitment and the Fronted Offshore Currency Commitment of such Lender, on a
ratable basis, to the amount of the Revolving Commitment of such Lender, as so
reduced, without any action on the part of such Lender.


 


2.10         Optional Prepayments.  Subject to Section 4.04, any Borrower
may, at any time or from time to time, upon not less than two Business Days’
irrevocable notice to the Agent (which notice may be conditioned upon the
consummation of replacement financing), in respect of Offshore Rate Loans
(other than Fronted Offshore Currency Loans, except as otherwise provided in
the applicable Offshore Currency Addendum), and in respect of Base Rate Loans,
by not later 


 


45

















 


than 10:30 a.m. (local time) on the prepayment date,
prepay Loans in whole or in part, in an aggregate minimum amount that is (a)
not less than the Dollar Equivalent of $5,000,000 (or such lesser amount agreed
to by the Agent) and (b) a higher integral multiple of 500,000 units of the
Applicable Currency.  Such notice of
prepayment shall specify the date and amount of such prepayment, which Loans
are to be prepaid and the Class(es) and Type(s) of such Loans to be prepaid
and, in the case of a prepayment of Term Loans, the installments to which such
prepayment shall be applied.  The Agent
will promptly notify each Lender of its receipt of any such notice, and of such
Lender’s Percentage of such prepayment, subject to Section 3.12, if
applicable.  If such notice is given by
any Borrower, such Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein,
together, in the case of Offshore Rate Loans, with accrued interest to each
such date on the amount prepaid and any amounts required pursuant to Section
4.04.


 


2.11         Mandatory Prepayments of
Loans.  (a) If the Agent notifies the
Company at any time that the Total Revolving Usage at such time exceeds an
amount equal to 105% of the Aggregate Revolving Commitment then in effect,
then, within two Business Days after receipt of such notice, the applicable
Borrowers shall prepay Loans and/or the applicable Borrowers shall Cash
Collateralize (or provide other Backup Support for) the L/C Obligations in an
aggregate amount sufficient to reduce the Total Revolving Usage as of such date
of payment to an amount not to exceed 100% of the Aggregate Revolving Commitment
then in effect.


 


(b)           If at any time of
calculation by the Agent (pursuant to Section 2.08(a) or otherwise) the
Dollar Equivalent principal amount of all outstanding Fronted Offshore Currency
Loans in the same Alternative Currency exceeds the aggregate Fronted Offshore
Currency Commitments with respect thereto as a result of fluctuations in
currency exchange rates, the applicable Borrowers shall, within two Business
Days after receipt of notice thereof, prepay Fronted Offshore Currency Loans in
an amount sufficient to eliminate such excess.


 


(c)           If the Company, any Material
Domestic Subsidiary or any Securitization Subsidiary receives any Net Cash
Proceeds from any of the following events, the Company shall, for so long as
any Term Loans are outstanding, apply such Net Cash Proceeds at the following
times, in the following amounts (in each case rounded down to an integral
multiple of $100,000) and in the order of application set forth in subsection
(d) below (any such application, a “Proceeds Application”):


 


(i)            Within five Business Days
following the receipt of any Net Cash Proceeds from any Disposition (other than
(A) a Disposition of the type described in Section 8.02(a), (b), (c),
(f), (g), (h), (i), (j), (l), (m)
(but only to the extent the property so Disposed was not, at the time of such
Disposition, Collateral) or (n), regardless of whether made by a Loan
Party; (B) at any time that the Leverage Ratio is less than 3.50 to 1.0 on a
pro forma basis immediately after giving effect to any Permitted Securitization,
the first $250,000,000 in Net Cash Proceeds from any Permitted Securitization
made after the Effective Date that is permitted by Section 8.02(d); and
(C) the first $25,000,000 of Net Cash Proceeds from any Disposition made after
the Effective Date that is permitted solely by Section 8.02(o)), whether
by merger, consolidation or otherwise, the Company shall make a Proceeds
Application in an amount (rounded down as provided above) equal to the result
(if positive) of (x) all Net Cash Proceeds from all 


 


46

















 


such Dispositions received
after the Effective Date minus (y) $50,000,000 minus (z) all
amounts previously applied pursuant to this clause (i) after the
Effective Date.


 


(ii)           Within five Business Days
following the receipt of any Net Cash Proceeds from the issuance of any
Indebtedness (other than (A) Indebtedness in respect of Swap Contracts incurred
in the ordinary course of business and not for speculative purposes; (B)
Indebtedness secured by Liens of the type described in Section 8.01(a), (j),
(k), (m), (n), (r) or (u) regardless of
whether made by a Loan Party; (C) Indebtedness in respect of any bankers’
acceptance, letter of credit, warehouse receipt or similar facility entered
into in the ordinary course of business; (D) Indebtedness incurred in the
ordinary course of business in connection with any like-kind exchange under
Section 1031 of the Code that is secured solely by the property subject to the
applicable transaction; (E) Indebtedness arising under the Loan Documents, (F)
Permitted Acquired Debt; (G) Indebtedness permitted under clause (A)(y)
of Section 8.05(b); (H) Indebtedness otherwise permitted hereunder
incurred to finance a Permitted Acquisition; or (I) Indebtedness permitted
hereunder constituting a refinancing, extension or renewal of Indebtedness
permitted hereunder), the Company shall make a Proceeds Application in an
amount (rounded down as provided above) equal to the result of (x) all Net Cash
Proceeds from issuances of all such Indebtedness received after the Effective
Date minus (y) all amounts previously applied pursuant to this clause
(ii).


 


(d)           Each Proceeds Application
shall be applied ratably to the Term Loan(s) in proportion to the original
principal amounts thereof, and shall be applied ratably to the remaining
installments thereof.


 


2.12         Repayment.


 


(a)           The Borrowers shall repay
all Revolving Loans and Swing Line Loans on the Revolving Maturity Date.


 


(b)           The Term A Loans shall be
repaid in installments on the dates, and in the amounts, set forth on Schedule
2.12, with the outstanding principal balance of the Term A Loans payable on
the Term A Maturity Date.


 


2.13         Interest.  (a) Each Revolving Loan denominated in
Dollars and each Term A Loan shall bear interest on the outstanding principal
amount thereof from the applicable Borrowing Date at a rate per annum equal to
(i) the Offshore Rate plus the Applicable Offshore Rate Margin or (ii)
the Base Rate plus the Applicable Base Rate Margin, as the case may be
(and subject to the Borrowers’ right to convert Loans from one Type to the
other).  Each Revolving Loan denominated
in a currency other than Dollars shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Offshore Rate plus the Applicable Offshore Rate
Margin.  Each Fronted Offshore Currency
Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the applicable Fronted Offshore
Currency Rate.


 


(b)           Interest on each Revolving
Loan and Term Loan shall be paid in arrears on each Interest Payment Date and
on (i) the Revolving Maturity Date, in the case of Revolving Loans or 


 


47

















 


(ii) the Term A Maturity Date, in the case of Term A
Loans.  Interest on Offshore Rate Loans
shall also be paid on the date of any prepayment thereof for the portion of the
Loans so prepaid.  During the existence
of any Event of Default, interest on all Loans shall be paid on demand of the
Agent at the request or with the consent of the Required Lenders.


 


(c)           Notwithstanding Section
2.13(a), (i) upon the request of the Required Lenders while any Event of
Default exists or (ii) after acceleration, the applicable Borrower shall pay
interest (after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all outstanding Loans, at a rate
per annum determined by adding 2% per annum to the applicable interest rate otherwise
then in effect for such Loans.


 


(d)           Anything herein to the
contrary notwithstanding, the obligations of any Borrower to any Lender
hereunder shall be subject to the limitation that payments of interest shall
not be required for any period for which interest is computed hereunder to the
extent (but only to the extent) that contracting for or receiving such payment
by such Lender would be contrary to the provisions of any law applicable to
such Lender limiting the highest rate of interest that may be lawfully
contracted for, charged or received by such Lender, and in such event such
Borrower shall pay such Lender interest at the highest rate permitted by
applicable law.


 


2.14         Fees.  In addition to certain fees described in Section
3.08:


 


(a)           Arrangement Fees, Agency
Fees, Upfront Fees and other Fees.  The Company shall pay such fees as are
required by the Fee Letter or as otherwise agreed to by the Company from time
to time in connection herewith.


 


(b)           Commitment Fees.  The Company shall pay to the Agent for the
account of each Revolving Lender a commitment fee on the average daily unused
portion of such Revolving Lender’s Revolving Commitment, computed on a
quarterly basis in arrears on the last Business Day of each calendar quarter
based upon the daily utilization for that quarter as calculated by the Agent,
equal to the Applicable Commitment Fee Percentage.  For purposes of calculating utilization under
this subsection, the Revolving Commitments shall be deemed used to the extent
of the Dollar Equivalent principal amount of Revolving Loans then outstanding
(excluding any outstanding Swing Line Loans), plus the Dollar Equivalent
principal amount of the Fronted Offshore Currency Loans then outstanding plus
the amount of all L/C Obligations then outstanding, subject to adjustment as
provided in Section 3.12.  Such
commitment fee shall accrue from the Effective Date to the Revolving
Termination Date and shall be due and payable quarterly in arrears on the last
Business Day of each calendar quarter commencing on December 31, 2010 through
the Revolving Termination Date, with the final payment to be made on the
Revolving Termination Date; provided that, in connection with any
reduction or termination of Revolving Commitments under Section 2.09,
the accrued commitment fee calculated for the period ending on such date shall
also be paid on the date of such reduction or termination, with the following
quarterly payment being calculated on the basis of the period from such
reduction or termination date to such quarterly payment date.  The commitment fees provided in this
subsection shall accrue at all times after the above-mentioned commencement
date, including at any time during which one or more conditions in Article V
are not met.


 


48
















 


2.15         Computation of Fees and Interest.  (a) Interest on any Loan bearing
interest based upon Bank of America’s prime rate or denominated in Pounds
Sterling shall be computed for the actual number of days elapsed on the basis
of a year of 365 or 366 days, as applicable. 
All other computations of fees and interest shall be made on the basis
of a 360-day year and actual days elapsed (which results in more interest being
paid than if computed on the basis of a 365-day year) or on such other basis as
the Agent shall determine is customary for the relevant currency.  Interest and fees shall accrue during each
period during which interest or such fees are computed from the first day
thereof to the last day thereof.


 


(b)           Each determination of an interest rate by the Agent shall
be conclusive and binding on the applicable Borrower and the applicable Lenders
in the absence of demonstrable error.


 


2.16         Payments by the Borrowers.  (a) All payments to be made by the
Borrowers shall be made without set-off, recoupment or counterclaim.  Except as otherwise specified herein, all
payments by the Borrowers shall be made to the Agent for the account of the
applicable Lenders at the Agent’s Payment Office no later than 11:00 a.m.
(local time) on the date specified herein. 
All such payments shall be made in funds immediately available to the
Agent and (i) in the case of principal and interest payments with respect
to Offshore Rate Loans, in the Applicable Currency, and (ii) in the case
of any other amount, in Dollars or such other currency as shall be specified
herein.  The Agent will promptly
distribute to each applicable Lender its applicable share of such payment in
like funds as received which, except as otherwise expressly provided herein,
shall be based upon such Lender’s Percentage of the Loans in respect of which
such payment has been made.  Any payment
received by the Agent later than 1:00 p.m. (local time) shall be deemed to
have been received on the following Business Day and any applicable interest or
fee shall continue to accrue.


 


(b)           Subject to the provisions set forth in the definition of “Interest
Period” herein, whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day, and such extension of
time shall in such case be included in the computation of interest or fees, as
the case may be.


 


(c)           Unless the Agent receives notice from a Borrower prior to
the date on which any payment is due to the applicable Lenders that such
Borrower will not make such payment in full as and when required, the Agent may
assume that such Borrower has made such payment in full to the Agent on such
date in immediately available funds and the Agent may (but shall not be so
required), in reliance upon such assumption, distribute to each applicable
Lender on such due date an amount equal to the amount then due such
Lender.  If and to the extent a Borrower
has not made such payment in full to the Agent, each Lender shall repay to the
Agent on demand such amount distributed to such Lender, together with interest
thereon at the Federal Funds Rate for each day from the date such amount is
distributed to such Lender until the date repaid.


 


2.17         Payments by the Lenders to the Agent.  (a) Except as otherwise expressly
provided in Section 2.08 with respect to Fronted Offshore Currency
Loans, unless the Agent receives notice from a Lender on or prior to the
Effective Date or, with respect to any Borrowing of Revolving Loans after the
Effective Date, at least one Business Day prior to the date of such Borrowing,
that such Lender will not make available as and when required hereunder to the


 


49

















 


Agent for the account of a Borrower the amount of
that Lender’s Percentage of such Borrowing, the Agent may assume that each
Lender has made such amount available to the Agent in immediately available
funds on the Borrowing Date and the Agent may (but shall not be so required),
in reliance upon such assumption, make available to the applicable Borrower on
such date a corresponding amount.  If and
to the extent any Lender shall not have made its full amount available to the
Agent in immediately available funds and the Agent in such circumstances has
made available to such Borrower such amount, that Lender shall on the Business
Day following such Borrowing Date make such amount available to the Agent,
together with interest at the Federal Funds Rate for each day during such
period.  A notice of the Agent submitted
to any Lender with respect to amounts owing under this subsection (a) shall
be conclusive, absent manifest error.  If
such amount is so made available, such payment to the Agent shall constitute
such Lender’s Loan on the date of Borrowing for all purposes of this
Agreement.  If such amount is not made available
to the Agent on the Business Day following the Borrowing Date, the Agent will
notify the applicable Borrower of such failure to fund and, upon demand by the
Agent, such Borrower shall pay such amount to the Agent for the Agent’s
account, together with interest thereon for each day elapsed since the date of
such Borrowing, at a rate per annum equal to the interest rate applicable at
the time to the Loans comprising such Borrowing.


 


(b)           The failure of any applicable Lender to make any Loan on
any Borrowing Date shall not relieve any other applicable Lender of any
obligation hereunder to make a Loan on such Borrowing Date, but no Lender shall
be responsible for the failure of any other Lender to make the Loan to be made
by such other Lender on any Borrowing Date.


 


2.18         Sharing of Payments, Etc.  If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder), such Lender shall immediately (a) notify the
Agent of such fact and (b) purchase in Dollars from the other applicable
Lenders such participations in the Loans made by them as shall be necessary to
cause such purchasing Lender to share the excess payment pro rata with each of
them; provided that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender, such purchase shall to that
extent be rescinded and each other applicable Lender shall repay to the
purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender’s ratable share (according to the proportion of (i) the
amount of such paying Lender’s required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total amount so
recovered.  Each Borrower agrees that any
Lender so purchasing a participation from another Lender may, to the fullest
extent permitted by law, exercise all its rights of payment (including the
right of set-off, but subject to Section 11.09) with respect to
such participation as fully as if such Lender were the direct creditor of such
Borrower in the amount of such participation. 
The Agent will keep records (which shall be conclusive and binding in
the absence of manifest error) of participations purchased under this Section and
will in each case notify the applicable Lenders following any such purchases or
repayments.


 


2.19         Subsidiary Borrowers. 
(a) On or after the Effective Date, with the consent of the Agent,
the Company may designate any Wholly-Owned Subsidiary (other than any
Securitization Subsidiary and any captive insurance company Subsidiary) as a
Subsidiary 


 


50

















 


Borrower by delivery to the Agent of a Subsidiary
Borrower Supplement executed by such Subsidiary and the Company, together with
Notes in favor of each requesting Lender, and subject to the provisions of clause
(b) such Subsidiary shall for all purposes of this Agreement be a
Subsidiary Borrower and party to this Agreement.  As soon as practicable upon receipt of a
Subsidiary Borrower Supplement, the Agent will deliver a copy thereof to each
Revolving Lender.


 


(b)           Notwithstanding the foregoing clause (a), no
Subsidiary Borrower that is organized under the laws of a jurisdiction other
than the United States, any state thereof or the District of Columbia (i) may
borrow Revolving Loans prior to the tenth Business Day after the Agent has
distributed copies of the applicable Subsidiary Borrower Supplement pursuant to
the last sentence of clause (a) or (ii) may borrow or maintain
Revolving Loans if any Revolving Lender has notified the Agent (which notice
has not been withdrawn) that such Revolving Lender has determined in good faith
that, either (A) on the date on which such Subsidiary Borrower was first
eligible to borrow pursuant to the foregoing clause (i), or (B) as
the result of the introduction of, any change in, or any change in the
interpretation or administration of any applicable law or regulation or any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), in each case after the date on which
such Subsidiary Borrower was first eligible to borrow pursuant to the foregoing
clause (i), such Revolving Lender cannot make or maintain Loans to such
Subsidiary Borrower without (x) adverse tax or legal consequences (unless
such consequences only involve the payment of money, in which case such
Subsidiary Borrower may borrow and maintain Revolving Loans if it agrees to pay
such Lender such amounts as such Lender determines in good faith are necessary
to compensate such Revolving Lender for such consequences) or (y) violating
(or raising a substantial question as to whether such Lender would violate) any
applicable law or regulation or any guideline or request from any central bank
or other Governmental Authority (whether or not having the force of law).  Nothing in this clause (b) shall
prevent a Subsidiary Borrower from borrowing Fronted Offshore Currency Loans.


 


(c)           So long as the principal of and interest on all Loans made
to any Subsidiary Borrower under this Agreement shall have been paid in full
and all other obligations of such Subsidiary Borrower in such capacity (other
than any contingent indemnification or similar obligation not yet due and
payable) shall have been fully performed, such Subsidiary Borrower may, upon
not less than five Business Days’ prior written notice to the Agent (which
shall promptly notify the Revolving Lenders thereof), terminate its status as a
“Subsidiary Borrower”.


 


2.20         Increase in Revolving Facility.  (a) Request for Increase.  Provided there exists no Default or Event of
Default, upon notice to the Agent (which shall promptly notify the Revolving
Lenders), the Company may, from time to time, request an increase in the
Revolving Credit Facility by an aggregate amount (for all such requests,
together with all increases in the Term Facility pursuant to Section 2.21(a))
not exceeding $400,000,000; provided that any such request for an
increase shall be in a minimum amount of $50,000,000 (or, if less, the amount
representing all remaining availability under this sentence) and whole
multiples of $10,000,000 in excess thereof. 
At the time of sending such notice, the Company (in consultation with
the Agent) shall specify the time period within which each Revolving Lender is
requested to respond (which shall in no event be less than ten Business Days
from the date of delivery of such notice to the Revolving Lenders).


 


51

















 


(b)           Lender Elections to Increase.  Each Revolving Lender shall notify the Agent
within such time period whether or not it agrees to increase its Revolving
Commitment and, if so, whether by an amount equal to, greater than, or less
than its Applicable Percentage of such requested increase.  Any Revolving Lender not responding within
such time period shall be deemed to have declined to increase its Revolving
Commitment.


 


(c)           Notification by Agent; Additional Revolving Lenders.  The Agent shall notify the Company and each
Revolving Lender of the Revolving Lenders’ responses to each request made
hereunder.  To achieve the full amount of
a requested increase, and subject to the approval of the Agent, the Issuer and
the Swing Line Lender (which approvals shall not be unreasonably withheld or
delayed), the Company may also invite additional Eligible Assignees to become
Revolving Lenders pursuant to a joinder agreement in form and substance
reasonably satisfactory to the Agent and its counsel, pursuant to which any
such Revolving Lender shall become a party to this Agreement and thereafter
have the rights and obligations of a “Revolving Lender” under this Agreement.


 


(d)           Effective Date and Allocations.  If the Revolving Credit Facility is increased
in accordance with this Section, the Agent and the Company shall determine the
effective date (the “Revolving Credit Increase
Effective Date”), and the Company, the Revolving Lenders increasing
their Revolving Commitments (if any) and the new Revolving Lenders (if any)
shall determine (with the approval of the Agent (such approval not to be
unreasonably withheld or delayed)) the final allocation of such increase.  The Agent shall promptly notify the Company
and the Revolving Lenders of the final allocation of such increase and the
Revolving Credit Increase Effective Date.


 


(e)           Conditions to Effectiveness of Increase.  As a condition precedent to such increase,
the Company shall deliver to the Agent a certificate of each Loan Party dated
as of the Revolving Credit Increase Effective Date (in sufficient copies for
each Lender) signed by a Responsible Officer of such Loan Party (i) certifying
and attaching the resolutions adopted by such Loan Party approving or
consenting to such increase, and (ii) in the case of the Company,
certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article VI and the
other Loan Documents are true and correct on and as of the Revolving Credit
Increase Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this Section 2.20,
the representations and warranties contained in clause (a) of Section 6.11
shall be deemed to refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 7.01, and (B) no
Default or Event of Default exists.  The
Borrowers shall prepay any Revolving Loans outstanding on the Revolving Credit
Increase Effective Date (and pay any additional amounts required pursuant to Section 4.04)
to the extent necessary to keep the outstanding Revolving Loans ratable with
any revised Applicable Percentages arising from any nonratable increase in the
Revolving Commitments under this Section.


 


(f)            Conflicting Provisions.  This Section shall supersede any
provisions in Section 2.18 or 11.01 to the contrary.


 


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2.21         Increase in Term Facility.  (a) Request for Increase.  Provided there exists no Default or Event of
Default, upon notice to the Agent (which shall promptly notify the Term
Lenders) and without requiring the consent of any of the Lenders other than as
specifically set forth in this Section, the Company may from time to time,
request an increase in the Term Loans, in the form of either (i) an
increase in the Term Commitments then in effect under this Agreement or (ii) the
addition of one or more term loan facilities pursuant to which the Borrowers
may borrow a new tranche of term loans (“Add-On Term Loans”), by an
aggregate amount (for all such requests, together with all increases in the
Revolving Credit Facility pursuant to Section 2.20(a)) not
exceeding $400,000,000; provided that any such request for an increase
shall be in a minimum amount of $50,000,000 (or, if less, the amount
representing all remaining availability under this sentence) and whole
multiples of $10,000,000 in excess thereof. 
At the time of sending such notice, the Company (in consultation with
the Agent) shall specify the time period within which each Term Lender is
requested to respond (which shall in no event be less than ten Business Days
from the date of delivery of such notice to the Term Lenders).


 


(b)           Lender Elections to Increase.  Each Term Lender shall notify the Agent
within such time period whether or not it agrees to increase its
Term Loans and, if so, whether by an amount equal to, greater than, or
less than its ratable portion (based on such Term Lender’s Applicable
Percentage in respect of the Term Facility) of such requested increase or,
as applicable, commit to make Add-On Term Loans under a new term loan
facility.  Any Term Lender not
responding within such time period shall be deemed to have declined to increase
its Term Loans or commit to make Add-On Term Loans, as applicable.


 


(c)           Notification by Agent; Additional Term Lenders.  The Agent shall notify the Company and each
Term Lender of the Term Lenders’ responses to each request made
hereunder.  To achieve the full amount of
a requested increase, and subject to the approval of the Agent (which approval
shall not be unreasonably withheld or delayed), the Company may also invite
additional Eligible Assignees to become Term Lenders pursuant to (i) in
the case of an increase in accordance with clause (a)(i), a joinder agreement
in form and substance reasonably satisfactory to the Agent and its counsel,
pursuant to which any such Term Lender shall become a party to this Agreement
and thereafter have the rights and obligations of a “Term Lender” under this
Agreement; or (ii) in the case of an increase in accordance with clause
(a)(ii), an amendment to this Agreement as contemplated by clause (d)(ii) below.


 


(d)           Conditions, etc. to Increase.


 


(i)            If any tranche of Term Loans is increased in
accordance with clause (a)(i), the Agent and the Company shall determine
the effective date (the “Term Facility Increase Effective Date”), and
the Company, the applicable Term Lenders in such tranche increasing their
applicable Term Commitments (if any) and the new Term Lenders (if any) shall
determine (with the approval of the Agent (such approval not to be unreasonably
withheld or delayed)) the final allocation of such increase, and the revised
amortization schedule for such Term Loans after giving effect to such increase.  The Company shall determine, together with
the Term Lenders participating in such increase, the interest rate, upfront
fees and original issue discount, if any, for any increase under this Section,
and this Agreement shall be amended, as appropriate, to reflect such terms
(without the consent of any other Lender but with the consent of the Agent
(such consent


 


53

















 


not to be unreasonably
withheld or delayed)).  The Agent shall
promptly notify the Company and the Term Lenders of the final allocation of
such increase and the Term Facility Increase Effective Date.


 


(ii)           The Company may, at any time, upon prior written notice to
the Agent, institute a new tranche of Add-On Term Loans in accordance with clause
(a)(ii); provided that


 


(A)          the Company (in consultation and coordination with the
Agent) shall obtain commitments for the amount of the Add-On Term Loans from
the Term Lenders or, if necessary to achieve the full amount of the requested
commitments for Add-On Term Loans (and only after the Term Lenders shall have
responded (or not) in accordance with clause (c)), other Eligible
Assignees selected by the Company and reasonably acceptable to the Agent, which
Lenders (collectively, “Add-On Term Lenders”) shall join in this Agreement
as Add-On Term Lenders by executing a joinder agreement reasonably acceptable
to the Agent and the Company (an “Add-On Term Joinder Agreement)”;


 


(B)           no Default or Event of Default shall exist and be
continuing at the time of such Add-On Term Loans;


 


(C)           a Responsible Officer of the Company shall deliver to the
Agent a certificate demonstrating that, upon giving effect to such Add-On Term
Loans on a pro forma basis, the Company would be in compliance with the
covenants set forth in Sections 8.09, 8.10 and 8.11 as of
the most recent fiscal quarter for which the Company was required to deliver
financial statements pursuant to Section 7.01(a) or (b);


 


(D)          the maturity date for Add-On Term Loans shall be as set
forth in the Add-On Term Joinder Agreement, provided that such maturity
date shall not be earlier than the then latest stated maturity date for any
tranche of Term Loans;


 


(E)           the scheduled principal amortization payments under the
Add-On Term Loans shall be as set forth in the Add-On Term Joinder Agreement; provided
that the weighted average maturity of the Add-On Term Loans shall not be less
than the weighted average maturity of the Term Loans made on the later of (I) the
Effective Date and (II) the Add-On Effective Date for the most recently
instituted Class of Add-On Term Loans;


 


(F)           Schedule 2.01 shall be deemed revised to reflect
the commitments and commitment percentages of the Add-On Term Lenders as set
forth in the Add-On Term Joinder Agreement;


 


(G)           as a condition precedent to such institution of the new
tranche of Add-On Term Loans and the effectiveness of the Add-On Term Joinder
Agreement, the Company shall deliver to the Agent a certificate of each Loan
Party, dated as of the date of such institution and effectiveness, signed by a
Responsible Officer of such Loan Party (I) certifying and attaching the
resolutions


 


54

















 


adopted by such Loan Party
approving or consenting to the Add-On Term Loans, and (II) certifying
that, before and after giving effect to the Add-On Term Loans, (x) the
representations and warranties contained in Article VI are true and
correct in all material respects on and as of the date of the making of the
Add-On Term Loans, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
in all material respects as of such earlier date and (y) no Default or
Event of Default exists or would result from the making of such Add-On Term
Loans; and


 


(H)          except for interest rate margins, fees (including upfront
fees and/or original issue discount arrangements) and other pricing terms, and
as otherwise specifically provided in this clause (d)(ii), the terms of the
Add-On Term Facility shall be substantially identical to the terms applicable
to the Term A Facility and shall further include standard and customary tranche
voting provisions (including, if applicable, voting provisions that provide
Revolving Lenders with protections vis-à-vis waivers of conditions precedent to
credit extensions).


 


The
foregoing shall not impair the effectiveness of any other amendment of this
Agreement, including any such amendment entered into simultaneously with the
institution of the new tranche of Add-On Term Loans, in accordance with Section 11.01.


 


(e)           Conditions to Effectiveness of Increase.  As a condition precedent to such increase
(other than the addition of an Add-On Term Loan, which shall be subject to the
requirements of Section 2.21(d)(ii)), the Borrower shall deliver to
the Agent a certificate of each Loan Party dated as of the Term Facility
Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such
increase, and (ii) in the case of the Borrower, certifying that, before
and after giving effect to such increase, (A) the representations and
warranties contained in Article VI and the other Loan Documents are
true and correct on and as of the Term Facility Increase Effective Date,
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such
earlier date, and except that for purposes of this Section 2.21,
the representations and warranties contained in clause (a) of Section 6.11
shall be deemed to refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 7.01, and
(B) no Default or Event of Default exists. 
The additional Term Loans shall be made by the Term Lenders
participating therein pursuant to the procedures set forth in Section 2.02.


 


(f)            Conflicting Provisions.  This Section shall supersede any
provisions in Section 2.18 or 11.01 to the contrary (subject
to the last sentence of clause (d) above).


 


2.22         Term Loan Repurchases.


 


(a)           Notwithstanding anything to the contrary contained in any
Loan Document, the Company may conduct reverse Dutch auctions from time to time
in order to purchase Add-On Term Loans (each, an “Auction”) (each such
Auction to be managed exclusively by the Agent or another investment bank(s) of
recognized standing selected by the Company following 


 


55

















 


consultation with the Agent (in such capacity, the “Auction
Manager”)), so long as the following conditions are satisfied:


 


(i)            each Auction shall be conducted in accordance with the
procedures, terms and conditions set forth in this Section and Schedule
2.22;


 


(ii)           no Default or Event of Default shall have occurred and be
continuing on the date of the delivery of each Auction Notice and at the time
of purchase of any Add-On Term Loans in connection with any Auction;


 


(iii)          the minimum principal amount (calculated on the face amount
thereof) of Add-On Term Loans that the Company offers to purchase in any such
Auction shall be no less than $50,000,000 (unless another amount is agreed to
by the Agent);


 


(iv)          both immediately before and after giving effect to any
purchase of Add-On Term Loans pursuant to this Section, there shall be no
Revolving Loans outstanding;


 


(v)           the aggregate principal amount (calculated on the face
amount thereof) of all Add-On Term Loans so purchased by the Company shall
automatically be cancelled and retired by the Company on the settlement date of
the relevant purchase (and may not be resold);


 


(vi)          prior to commencing an Auction, the Company shall have
discussed the same with each of S&P and Moody’s;


 


(vii)         no more than one Auction may be ongoing at any one time;


 


(viii)        the Company represents and warrants that
no Loan Party shall have any MNPI that both (A) has not been previously
disclosed in writing to the Agent and the Lenders (other than because such
Lender does not wish to receive such MNPI) prior to such time and (B) could
reasonably be expected to have a material effect upon, or otherwise be
material, to a Lender’s decision to participate in the Auction; and


 


(ix)           at the time of each purchase of Add-On Term Loans through
an Auction, the Company shall have delivered to the Auction Manager an officer’s
certificate of an Responsible Officer certifying as to compliance with the
preceding clauses (i) through (viii).


 


(b)           The Company must terminate an Auction if it fails to
satisfy one or more of the conditions set forth above which are required to be
met at the time which otherwise would have been the time of purchase of Add-On
Term Loans pursuant to the respective Auction. 
If the Company commences any Auction (and all relevant requirements set
forth above which are required to be satisfied at the time of the commencement
of the respective Auction have in fact been satisfied), and if at such time of
commencement the Company reasonably believes that all required conditions set
forth above which are required to be satisfied at the time of the purchase of
Add-On Term Loans pursuant to such Auction shall be satisfied, then the Company
shall have no liability to any Term Lender or any other Person for any
termination of the respective Auction as a result of its failure to satisfy one
or more of the conditions set forth above which are 


 


56

















 


required to be met at the time which otherwise would
have been the time of purchase of Add-On Term Loans pursuant to the respective
Auction, and any such failure shall not result in any Default or Event of
Default hereunder.  With respect to all
purchases of Add-On Term Loans made by the Company pursuant to this Section, (i) the
Company shall pay on the settlement date of each such purchase all accrued and
unpaid interest (except to the extent otherwise set forth in the relevant Offer
Documents), if any, on the purchased Add-On Term Loans up to the settlement
date of such purchase and (ii) such purchases (and the payments made by
the Company and the cancellation of the purchased Loans, in each case in
connection therewith) shall not constitute optional or mandatory payments or
prepayments for purposes of Sections 2.10 or 2.11.


 


(c)           The Agent and the Lenders hereby consent to the Auctions
and the other transactions contemplated by this Section (provided
that no Lender shall have any obligation to participate in any such Auctions)
and hereby waive the requirements of any provision of any Loan Document that
may otherwise prohibit any Auction or any other transaction contemplated by
this Section, including Sections 2.10, 2.11 and 2.18 (it
being understood that purchases of Add-On Term Loans by the Company shall not
constitute Investments).  The Auction
Manager acting in its capacity as such hereunder shall be entitled to the
benefits of the provisions of Article X and Section 11.04
mutatis mutandis as if each reference
therein to the “Agent” were a reference to the Auction Manager, and the Agent
shall cooperate with the Auction Manager as reasonably requested by the Auction
Manager in order to enable it to perform its responsibilities and duties in
connection with each Auction.


 


ARTICLE III


 


THE LETTERS OF CREDIT


 


3.01         The Letter of Credit Subfacility.  (a) On the terms and conditions set
forth herein (i) each Issuer agrees (A) from time to time on any
Business Day, during the period from the Effective Date to the day which is
five days prior to the Revolving Termination Date, to issue Letters of Credit
for the account of the Company (or jointly for the account of the Company and
any Subsidiary) in an aggregate Stated Amount in Dollars or any Alternative
Currency at any one time that, the Dollar Equivalent of which, together with
the aggregate Dollar Equivalent of the Stated Amount of all other outstanding
Letters of Credit issued pursuant hereto (including the Existing Letters of
Credit), does not exceed the L/C Commitment, and to amend or renew Letters of
Credit previously issued by it, in accordance with Sections 3.02(c) and
3.02(d), and (B) to honor drafts under the Letters of Credit; and (ii) the
Revolving Lenders severally agree to participate in Letters of Credit
(including the Existing Letters of Credit); provided that no Issuer
shall be obligated to Issue, and no Revolving Lender shall be obligated to
participate in, any Letter of Credit if as of the date of Issuance of such
Letter of Credit (the “Issuance Date”) (1) the amount of all L/C
Obligations, plus the Dollar Equivalent principal amount of all
Revolving Loans and Swing Line Loans plus the Dollar Equivalent
principal amount of all outstanding Fronted Offshore Currency Loans exceeds the
Aggregate Revolving Commitment or (2) the participation of any Revolving
Lender in the amount of all L/C Obligations plus the Dollar Equivalent
principal amount of the Revolving Loans of such Revolving Lender and such
Revolving Lender’s Revolving Percentage of any outstanding Swing Line Loans and
Fronted Offshore Currency Loans exceeds such Lender’s Revolving
Commitment.  Within the foregoing 


 


57

















 


limits, and subject to the other terms and
conditions hereof, the Company’s ability to obtain Letters of Credit shall be
fully revolving, and, accordingly, the Company may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit which have
expired or which have been drawn upon and reimbursed.


 


(b)           No Issuer is under any obligation to, and no Issuer shall, Issue
any Letter of Credit if:


 


(i)            any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain such
Issuer from Issuing such Letter of Credit, or any Requirement of Law applicable
to such Issuer or any request or directive (whether or not having the force of
law) from any Governmental Authority with jurisdiction over such Issuer shall
prohibit, or request that such Issuer refrain from, the Issuance of letters of
credit generally or such Letter of Credit in particular or shall impose upon
such Issuer with respect to such Letter of Credit any restriction, reserve or
capital requirement (for which such Issuer is not otherwise compensated
hereunder) not in effect on the Effective Date, or shall impose upon such
Issuer any unreimbursed loss, cost or expense which was not applicable on the
Effective Date and which such Issuer in good faith deems material to it;


 


(ii)           such Issuer has received written notice from any Revolving
Lender, the Agent or the Company, on or prior to the Business Day prior to the
requested date of Issuance of such Letter of Credit, that one or more of the
applicable conditions contained in Article V is not then satisfied;


 


(iii)          the expiry date of any requested Letter of Credit is (A) more
than 730 days after the date of Issuance or (B) more than 730 days after
the scheduled Revolving Termination Date, unless (1) the Required Lenders
have approved such expiry date in writing or (2) such Letter of Credit is
a Surety L/C;


 


(iv)          any requested Letter of Credit does not provide for drafts,
or is not otherwise in form and substance acceptable to such Issuer, or the
Issuance of a Letter of Credit shall violate any applicable policies of such
Issuer;


 


(v)           such Letter of Credit is to be denominated in a currency
other than Dollars or any Alternative Currency; or


 


(vi)          any Revolving Lender is at that time a Defaulting Lender,
unless the Issuer has entered into arrangements, including the delivery of Cash
Collateral, with the Company or such Revolving Lender to eliminate the Issuer’s
actual or potential Fronting Exposure (after giving effect to Section 3.12(a)(iv))
with respect to the Defaulting Lender arising from either the Letter of Credit
then proposed to be issued or that Letter of Credit and all other L/C
Obligations as to which the Issuer has actual or potential Fronting Exposure,
as it may elect in its sole discretion.


 


(c)           Notwithstanding the foregoing, not more than $25,000,000
in aggregate Stated Amount of Letters of Credit may have expiry dates beyond
the scheduled Revolving Termination Date.


 


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3.02         Issuance, Amendment and Renewal of Letters of Credit.  (a) Each Letter of Credit shall be
issued upon the irrevocable written request of the Company received by the
applicable Issuer (with a copy sent by such Issuer to the Agent) at least three
days (or such shorter time as such Issuer may agree in a particular instance in
its sole discretion) prior to the proposed date of issuance; provided
that five days’ prior notice (or such shorter time as such Issuer may agree in
a particular instance in its sole discretion) shall be required in respect of
each Letter of Credit to be denominated in an Alternative Currency.  Each such request for issuance of a Letter of
Credit shall be by facsimile, confirmed immediately in an original writing (if
required by the applicable Issuer), in the form of an L/C Application (or such
other form as shall be acceptable to such Issuer), or shall be by online letter
of credit software acceptable to such Issuer, and shall specify in form and
detail satisfactory to such Issuer: (i) the proposed date of issuance of
such Letter of Credit (which shall be a Business Day); (ii) the face
amount of such Letter of Credit; (iii) the expiry date of such Letter of
Credit; (iv) the name and address of the beneficiary thereof; (v) the
documents to be presented by the beneficiary of such Letter of Credit in case
of any drawing thereunder; (vi) the full text of any certificate to be
presented by the beneficiary in case of any drawing thereunder; (vii) the
currency in which such Letter of Credit is to be denominated, which shall be
Dollars or an Alternative Currency; and (viii) such other matters as such
Issuer may require.


 


(b)           At least two Business Days prior to the Issuance of any
Letter of Credit (or such shorter time as the Agent may agree in a particular
instance in its sole discretion), the applicable Issuer will confirm with the
Agent (by telephone or in writing) that the Agent has received a copy of the
L/C Application or L/C Amendment Application and, if not, such Issuer will
provide the Agent with a copy thereof. 
Unless the applicable Issuer has received notice on or before the
Business Day immediately preceding the date such Issuer is to issue a requested
Letter of Credit from the Agent (A) directing such Issuer not to issue
such Letter of Credit because such issuance is not then permitted under Section 3.01(a) as
a result of the limitations set forth in clauses (1) and (2) thereof
or Section 3.01(b)(ii); or (B) that one or more conditions
specified in Article V are not then satisfied; then, subject to the
terms and conditions hereof, such Issuer shall, on the requested date, issue a
Letter of Credit for the account of the Company in accordance with such Issuer’s
usual and customary business practices.


 


(c)           From time to time while a Letter of Credit is outstanding
and prior to the Revolving Termination Date, the applicable Issuer will, upon
the written request of the Company received by such Issuer (with a copy sent by
such Issuer to the Agent) at least three days (or such shorter time as such
Issuer may agree in a particular instance in its sole discretion) prior to the
proposed date of amendment, amend any Letter of Credit issued by it.  Each such request for amendment of a Letter
of Credit shall be made by facsimile, confirmed immediately in an original
writing (if required by the applicable Issuer), made in the form of an L/C
Amendment Application or through on-line letter of credit software acceptable
to such Issuer, and shall specify in form and detail satisfactory to such
Issuer:  (i) the Letter of Credit to
be amended; (ii) the proposed date of amendment of such Letter of Credit
(which shall be a Business Day); (iii) the nature of the proposed
amendment; and (iv) such other matters as such Issuer may require.  No Issuer shall be under any obligation to
amend any Letter of Credit if:  (A) such
amendment would extend the expiry date for, or increase the amount of, such
Letter of Credit and such Issuer would have no obligation at such time to issue
such Letter of Credit in its amended form under the terms of this Agreement; or
(B) the beneficiary of such Letter of Credit does not accept such 


 


59

















 


amendment (and no Issuer shall so amend any Letter
of Credit if such Issuer has received a notice of the type described in the
second sentence of Section 3.02(b)).  The Agent will promptly notify the Revolving
Lenders of the receipt by it of any L/C Application or L/C Amendment
Application.


 


(d)                                 If the Company
so requests in any applicable L/C Application or L/C Amendment Application, the
Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”). Unless otherwise required by the terms of the
applicable Letter of Credit, the Company shall not be required to make a
specific request to the Issuer for any such extension.  Once an Auto-Extension Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) the Issuer to permit the extension of such Letter of Credit at any
time to an expiry date not later than the Letter of Credit Expiration Date; provided
that the Issuer shall not permit any such extension if (A) the Issuer has
determined that it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as extended) under the
terms hereof (by reason of the provisions of clause (b) of Section 3.01
or otherwise), or (B) it has received notice (which may be by
telephone or in writing) on or before the day that is seven Business Days
before the scheduled date of such extension  from the
Agent, any Lender or the Company that one or more of the applicable conditions
specified in Section 5.02 is not then satisfied, and in each such
case directing the Issuer not to permit such extension.


 


(e)                                  This Agreement
shall control in the event of any conflict with any L/C-Related Document (other
than any Letter of Credit).


 


(f)                                    Each Issuer
will also deliver to the Agent:


 


(i)            concurrently or promptly following its delivery of a
Letter of Credit, or amendment to or renewal of a Letter of Credit, to an
advising bank or a beneficiary, a true and complete copy of each such Letter of
Credit or amendment to or renewal of a Letter of Credit.


 


(ii)           no later than the third Business Day following the last
day of each month, a schedule of the Letters of Credit issued by it, in form
and substance reasonably satisfactory to Agent, showing the date of issuance of
each Letter of Credit, the account party, the original face amount (if any),
the expiration date, and the reference number of any Letter of Credit
outstanding at any time during such month, and showing the aggregate amount (if
any) payable by the Company to such Issuing Lender during such month.


 


3.03                           Risk
Participations, Drawings and Reimbursements.  (a) Immediately upon the Issuance of a
Letter of Credit by an Issuer, each Revolving Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from such Issuer a
participation in such Letter of Credit and each drawing thereunder in an amount
equal to the product of (i) the Revolving Percentage of such Revolving
Lender, times (ii) the Dollar Equivalent of the maximum amount available
to be drawn under such Letter of Credit and the amount of such drawing,
respectively.  For purposes of Section 2.01,
each Issuance of a Letter of Credit shall be 


 


60

















 


deemed to utilize the Revolving Commitment of each
Revolving Lender by an amount equal to the amount of such participation.


 


(b)           Upon receipt from the beneficiary of any Letter of Credit
of any notice of a drawing under such Letter of Credit, the Issuer shall notify
the Company and the Agent thereof.  In
the case of a Letter of Credit denominated in an Alternative Currency, the
Company shall reimburse the Issuer in such Alternative Currency, unless (A) the
Issuer (at its option) shall have specified in such notice that it will require
reimbursement in Dollars, or (B) in the absence of any such requirement
for reimbursement in Dollars, the Company shall have notified the Issuer
promptly following receipt of the notice of drawing that the Company will
reimburse the Issuer in Dollars.  In the
case of any such reimbursement in Dollars of a drawing under a Letter of Credit
denominated in an Alternative Currency, the Issuer shall notify the Company of
the Dollar Equivalent of the amount of the drawing promptly following the
determination thereof.  Not later than
10:00 a.m. on the date of any payment by the Issuer under a Letter of
Credit to be reimbursed in Dollars, or the Applicable Time on the date of any
payment by the Issuer under a Letter of Credit to be reimbursed in an
Alternative Currency (each such date, an “Honor Date”), the Company
shall reimburse the Issuer in an amount equal to the amount of such drawing and
in the applicable currency; provided that, as to any Letter of Credit
denominated in an Alternative Currency and to be reimbursed in Dollars, if the
Company does not receive notice of the amount in Dollars to be paid to the
Issuer in respect of such Letter of Credit prior to 10:00 a.m. on such
Honor Date, the Company shall (or shall cause the applicable Subsidiary to)
reimburse such Issuer not later than 10:00 a.m. on the Business Day
immediately following the date on which the Company receives such notice (and
such reimbursement shall include interest for the period from the Honor Date to
the date of reimbursement at the Base Rate (or such other rate as the Company
and such Issuer shall agree) on the amount so reimbursed).  If the Company fails to so reimburse the
Issuer by such time, the Agent shall promptly notify each Revolving Lender of
the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in
the amount of the Dollar Equivalent thereof in the case of a Letter of Credit
denominated in an Alternative Currency) (the “Unreimbursed Amount”), and
the amount of such Lender’s Applicable Percentage thereof.  In such event, the Company shall be deemed to
have requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date
in an amount equal to the Unreimbursed Amount, without regard to the minimum
and multiples specified in Section 2.03 for the principal amount of
Base Rate Loans, but subject to the amount of the unutilized portion of the
Aggregate Revolving Commitment and the conditions set forth in Section 5.02
(other than the delivery of a Notice of Borrowing).  Any notice given by the Issuer or the Agent
pursuant to this Section 3.03(b) may be given by telephone if
immediately confirmed in writing in accordance with Section 11.02; provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.


 


(c)           Each Revolving Lender shall upon any notice pursuant to Section 3.03(b) make
available to the Agent (and the Agent may apply Cash Collateral provided for
this purpose) for the account of the relevant Issuer an amount in Dollars and
in immediately available funds equal to its Revolving Percentage of the Dollar
Equivalent of the amount of the drawing, whereupon the participating Revolving
Lenders shall (subject to Section 3.03(d)) each be deemed to have
made a Revolving Loan consisting of a Base Rate Loan to the Company in that amount.  If any Revolving Lender so notified fails to
make available to the Agent for the account of the relevant Issuer the amount
of such Revolving Lender’s Revolving Percentage of the Dollar Equivalent of 


 


61

















 


the amount of the drawing by no later than 12:00
noon (local time) on the Honor Date, then, without limiting the other
provisions of this Agreement, interest shall accrue on such Revolving Lender’s
obligation to make such payment, from the Honor Date to the date such Revolving
Lender makes such payment, at a rate per annum equal to the Federal Funds Rate
in effect from time to time during such period. 
The Agent will promptly give notice of the occurrence of the Honor Date,
but failure of the Agent to give any such notice on the Honor Date or in
sufficient time to enable any Revolving Lender to effect such payment on such
date shall not relieve such Revolving Lender from its obligations under this Section 3.03.


 


(d)           With respect to any unreimbursed drawing that is not
converted into Revolving Loans consisting of Base Rate Loans to the Company in
whole or in part, because of the Company’s failure to satisfy the conditions
set forth in Section 5.02 or for any other reason, the Company
shall be deemed to have incurred from the applicable Issuer an L/C Borrowing in
the Dollar Equivalent of the amount of such drawing, which L/C Borrowing shall
be due and payable on demand (together with interest) and shall bear interest
at a rate per annum equal to the Base Rate plus the Applicable Base Rate
Margin plus 2.0% per annum, and each Revolving Lender’s payment to such
Issuer pursuant to Section 3.03(c) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall constitute an L/C
Advance from such Revolving Lender in satisfaction of its participation
obligation under this Section 3.03.


 


(e)           Each Revolving Lender’s obligation in accordance with this
Agreement to make the Revolving Loans or L/C Advances, as contemplated by this Section 3.03,
as a result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the applicable Issuer and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Lender may have against
such Issuer, the Company or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of a Default, an Event of Default or a Material
Adverse Effect; or (iii) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; provided
that each Revolving Lender’s obligation to make Revolving Loans under this Section 3.03
is subject to the conditions set forth in Section 5.02.


 


3.04         Repayment of Participations.  (a) Upon (and only upon) receipt by the
Agent for the account of the applicable Issuer of immediately available funds
in Dollars from the Company (i) in reimbursement of any payment made by
such Issuer under the Letter of Credit with respect to which any Revolving
Lender has paid the Agent for the account of such Issuer for such Revolving
Lender’s participation in the Letter of Credit pursuant to Section 3.03
or (ii) in payment of interest thereon, the Agent will promptly pay to
each Revolving Lender, in the same funds as those received by the Agent for the
account of such Issuer, the amount of such Revolving Lender’s Revolving
Percentage of such funds, and such Issuer shall receive the amount of the
Revolving Percentage of such funds of any Revolving Lender that did not so pay
the Agent for the account of such Issuer.


 


(b)           If the Agent or an Issuer is required at any time to
return to the Company, or to a trustee, receiver, liquidator, custodian, or any
official in any Insolvency Proceeding, any portion of the payments made by the
Company to the Agent for the account of such Issuer pursuant to Section 3.04(a) in
reimbursement of a payment made under the applicable Letter of Credit or
interest or fee thereon, each Revolving Lender shall, on demand of the Agent,
forthwith return to 


 


62

















 


the Agent or such Issuer the amount of its Revolving
Percentage of any amounts so returned by the Agent or such Issuer plus
interest thereon from the date such demand is made to the date such amounts are
returned by such Revolving Lender to the Agent or such Issuer, at a rate per
annum equal to the Federal Funds Rate in effect from time to time.


 


3.05         Role of the Issuers. 
(a) Each Lender and the Company agree that, in paying any drawing
under a Letter of Credit, the applicable Issuer shall not have any
responsibility to obtain any document (other than any sight draft and
certificates expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.


 


(b)           No Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuers shall be liable to any
Lender for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Revolving Lenders (including the Required
Revolving Lenders or all Revolving Lenders, as applicable); (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.


 


(c)           The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided that this assumption is not intended to, and
shall not, preclude the Company’s pursuing such rights and remedies as it may
have against the beneficiary or transferee at law or under any other
agreement.  No Agent-Related Person, nor
any of the respective correspondents, participants or assignees of any Issuer,
shall be liable or responsible for any of the matters described in clauses (i) through
(vi) of Section 3.06; provided that anything in
such clauses to the contrary notwithstanding, the Company may have a claim
against an Issuer, and an Issuer may be liable to the Company, to the extent,
but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Company which the Company proves were caused
by such Issuer’s willful misconduct or gross negligence, such Issuer’s willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit or such other actions or
omissions as may be agreed between the Company and such Issuer (it being
understood that any such claim shall be solely against the applicable Issuer
and shall not affect the Company’s obligations hereunder to the other parties
hereto).  In furtherance and not in
limitation of the foregoing: (i) any Issuer may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary; and (ii) no
Issuer shall be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason.


 


3.06         Obligations Absolute. 
The obligations of the Company under this Agreement and any L/C-Related
Document to reimburse the applicable Issuer for a drawing under a Letter of Credit,
and to repay any L/C Borrowing and any drawing under a Letter of Credit
converted into Revolving Loans, shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement and each
such other L/C-Related Document under all circumstances, including the
following:


 


63

















 


(i)            any lack of validity or enforceability of this Agreement
or any L/C-Related Document;


 


(ii)           any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Company in respect
of any Letter of Credit or any other amendment or waiver of or any consent to
departure from all or any of the L/C-Related Documents;


 


(iii)          the existence of any claim, set-off, defense or other right
that the Company may have at any time against any beneficiary or any transferee
of any Letter of Credit (or any Person for whom any such beneficiary or any
such transferee may be acting), such Issuer or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by the
L/C-Related Documents or any unrelated transaction;


 


(iv)          any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect; or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit;


 


(v)           any payment by such Issuer under any Letter of Credit
against presentation of a draft or certificate that does not strictly comply
with the terms of any Letter of Credit; or any payment made by such Issuer
under any Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of any Letter of Credit, including any arising in connection
with any Insolvency Proceeding;


 


(vi)          any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from any other
guarantee, for all or any of the obligations of the Company in respect of any
Letter of Credit; or


 


(vii)         any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Company or a guarantor.


 


The
Company shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Company’s instructions or other irregularity, the
Company will promptly notify the Issuer.


 


3.07                           Backup Support.  The Company will, not later than five
Business Days prior to the scheduled Revolving Termination Date (or, if
earlier, the date of termination or reduction to zero of the Aggregate
Revolving Commitment), cause each Letter of Credit to be a Supported Letter of
Credit.


 


3.08                           Letter of
Credit Fees.  (a) The
Company shall pay to the Agent for the account of each of the Revolving Lenders
a letter of credit fee with respect to the Letters of Credit equal to the
Applicable Letter of Credit Fee Rate times the Dollar Equivalent of the average
daily 


 


64

















 


maximum amount available to be drawn of the
outstanding Letters of Credit at any time during the remaining term thereof,
computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter based upon Letters of Credit outstanding for that quarter as
calculated by the Agent; provided that any letter of credit fees
otherwise payable for the account of a Defaulting Lender with respect to any
Letter of Credit as to which such Defaulting Lender has not provided Cash
Collateral satisfactory to the Issuer pursuant to this Article III
shall be payable, to the maximum extent permitted by applicable law, to the
other Revolving Lenders in accordance with the upward adjustments in their
respective Revolving Percentage allocable to such Letter of Credit pursuant to Section 3.12(a)(iv),
with the balance of such fee, if any, payable to the Issuer for its own
account; and provided, further, that upon the request of the
Required Lenders while any Event of Default exists, such letter of credit fees
shall be increased by adding 2% per annum to the Applicable Letter of Credit
Fee Rate then in effect for such Letters of Credit.  Such letter of credit fees shall be due and
payable quarterly in arrears on the last Business Day of each calendar quarter
during which Letters of Credit are outstanding, commencing on the first such
quarterly date to occur after the Effective Date, through the Revolving
Maturity Date (or such later date upon which the outstanding Letters of Credit
shall expire), with the final payment to be made on the Revolving Maturity Date
(or such later expiration date).


 


(b)           The Company shall pay to each Issuer a letter of credit
fronting fee with respect to the Letters of Credit issued by such Issuer in the
amounts and at the times agreed to by the Company and such Issuer.


 


(c)           The Company shall pay to each Issuer from time to time on
demand the normal issuance, presentation, amendment and other processing fees,
and other standard costs and charges, of such Issuer relating to letters of
credit as from time to time in effect.


 


3.09         Applicability of ISP98 and UCP.  Unless otherwise expressly agreed by the
applicable Issuer and the Company when a Letter of Credit is issued (including
any such agreement applicable to a Letter of Credit outstanding on the date
hereof), (a) the rules of the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or
such later version thereof as may be in effect at the time of issuance) (“ISP98”)
shall apply to each standby Letter of Credit, and (b) the rules of
the Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce at the time of issuance (the
“UCP”) shall apply to each commercial Letter of Credit (it being
understood that the Company may request that any particular Letter of Credit be
governed by either ISP98 or the UCP, as selected by the Company).


 


3.10         Utilization of Offshore Currencies.  In the case of a proposed Issuance of a
Letter of Credit denominated in an Offshore Currency, the applicable Issuer
shall be under no obligation to issue such Letter of Credit if such Issuer
cannot issue Letters of Credit denominated in the requested Offshore Currency,
in which event such Issuer will give notice to the Company no later than 10:30 a.m.
(local time) on the third Business Day prior to the date of such issuance that
the Issuance in the requested Offshore Currency is not then available.  If the applicable Issuer shall have so
notified the Company that any such Issuance in a requested Offshore Currency is
not then available, then such requested Letter of Credit shall not be issued
unless the Company, by notice to such Issuer not later than 5:00 p.m.
(local time) three Business Days prior 


 


65

















 


to the requested date of such Issuance, requests
that the Letter of Credit be denominated in Dollars and issued in an equivalent
aggregate amount, in which case the Letter of Credit shall be so denominated
and issued.


 


3.11         Cash Collateral.


 


(a)           Upon the request of the Agent or the Issuer (i) if
the Issuer has honored any full or partial drawing request under any Letter of
Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as
of the expiry date for any Letter of Credit, any L/C Obligation with respect to
such Letter of Credit for any reason remains outstanding, the Company shall, in
each case, immediately Cash Collateralize (or, solely with respect to clause
(ii), provide other Backup Support) in the amount of the then outstanding
amount of all L/C Obligations in respect of such Letter of Credit.  At any time that there shall exist a Defaulting
Lender, promptly upon the request of the Agent, the Issuer, the Swing Line
Lender or the Fronting Lender, the Company shall deliver to the Agent Cash
Collateral in an amount sufficient to cover all Fronting Exposure (after giving
effect to Section 3.12(a)(iv) and any Cash Collateral provided
by the Defaulting Lender).


 


(b)           All Cash Collateral shall be maintained in blocked,
non-interest bearing deposit accounts at the Agent.  The Company, and to the extent provided by
any Lender, such Lender, hereby grants to (and subjects to the control of) the
Agent, for the benefit of the Agent, the Issuer and the Lenders (including the
Swing Line Lender), and agrees to maintain, a first priority security interest
(subject to any Lien permitted pursuant to Section 8.01(c) or (l))
in all such cash, deposit accounts and all balances therein, and all other
property so provided as collateral pursuant hereto, and in all proceeds of the
foregoing, all as security for the obligations to which such Cash Collateral
may be applied pursuant to Section 3.11(c).  If at any time the Agent determines that Cash
Collateral is subject to any right or claim (subject to any Lien permitted
pursuant to Section 8.01(c) or (l)) of any Person other
than the Agent as herein provided, or that the total amount of such Cash
Collateral is less than the applicable Fronting Exposure and other obligations
secured thereby, the Company or the relevant Defaulting Lender will, promptly
upon demand by the Agent (which demand shall include a reasonably detailed
accounting of the amount so demanded), pay or provide to the Agent additional
Cash Collateral in an amount sufficient to eliminate such deficiency.


 


(c)           Notwithstanding anything to
the contrary contained in this Agreement, Cash Collateral provided under any of
this Article III or Section 2.05, 2.07, 2.11
or 9.02 in respect of Letters of Credit, Swing Line Loans or Fronted
Offshore Currency Loans shall be held and applied to the satisfaction of the
specific L/C Obligations, Swing Line Loans, Fronted Offshore Currency Loans,
obligations to fund participations therein (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) and
other obligations for which the Cash Collateral was so provided, prior to any
other application of such property as may be provided for herein.


 


(d)           Cash Collateral (or the appropriate portion thereof)
provided to reduce Fronting Exposure or other obligations shall be released
promptly following (i) the elimination of the applicable Fronting Exposure
or other obligations giving rise thereto (including by the termination of
Defaulting Lender status of the applicable Lender (or, as appropriate, its
assignee 


 


66

















 


following compliance with Section 11.07(a)(vii)))
or (ii) the Agent’s good faith determination that there exists excess Cash
Collateral; provided that (x) that Cash Collateral furnished by or
on behalf of a Loan Party shall not be released during the continuance of a
Default or Event of Default, and (y) the Person providing Cash Collateral
and the Issuer, the Swing Line Lender or the Fronting Lender, as applicable,
may agree that Cash Collateral shall not be released but instead held to
support future anticipated Fronting Exposure or other obligations.


 


3.12                           Defaulting
Lenders.


 


(a)                                  Notwithstanding
anything to the contrary contained in this Agreement, if any Lender becomes a
Defaulting Lender, then, until such time as that Lender is no longer a
Defaulting Lender, to the extent permitted by applicable law:


 


(i)            Such Defaulting Lender’s right to approve or disapprove
any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 11.01.


 


(ii)           Any payment of principal, interest, fees or other amounts
received by the Agent for the account of such Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to Article IX or
otherwise, and including any amounts made available to the Agent by such
Defaulting Lender pursuant to Section 11.09), shall be applied at
such time or times as may be reasonably determined by the Agent as follows
(and, in any case, when due): first, to the payment of any amounts owing
by such Defaulting Lender to the Agent hereunder; second, to the payment
on a pro rata basis of any amounts owing by such Defaulting Lender to any
Issuer, Swing Line Lender or Fronting Lender hereunder; third, if so
determined by the Agent or requested by any Issuer, Swing Line Lender or
Fronting Lender, to be held as Cash Collateral for future funding obligations
of such Defaulting Lender of any participation in any Swing Line Loan, Letter
of Credit or Fronted Offshore Currency Loan; fourth, as the Company may
request (so long as no Specified Default exists), to the funding of any Loan in
respect of which such Defaulting Lender has failed to fund its portion thereof
as required by this Agreement, as determined by the Agent; fifth, if so
determined by the Agent and the Company, to be held in a non-interest bearing
deposit account and released in order to satisfy obligations of such
Defaulting Lender to fund Loans under this Agreement; sixth, to the
payment of any amounts owing to the Lenders or any Issuer, Swing Line Lender or
Fronting Lender as a result of any final and nonappealable judgment of a court
of competent jurisdiction obtained by any Lender, Issuer, Swing Line
Lender or Fronting Lender against such Defaulting Lender as a result of such
Defaulting Lender’s breach of its obligations under this Agreement; seventh,
so long as no Specified Default exists, to the payment of any amounts owing to
the Company as a result of any final and nonappealable judgment of a court of
competent jurisdiction obtained by the Company against such Defaulting Lender
as a result of such Defaulting Lender’s breach of its obligations under this
Agreement; and eighth, to such Defaulting Lender or as otherwise
directed by a court of competent jurisdiction; provided that if (x) such
payment is a payment of the principal amount of any Loans or L/C Borrowings in
respect of which such Defaulting Lender has not fully funded its appropriate
share and (y) such Loans or L/C Borrowings were made at a time when the
conditions set forth in Section 5.02 were satisfied or waived, such
payment 


 


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shall be applied solely to
pay the Loans of, and L/C Borrowings owed to, all non-Defaulting Lenders on a
pro rata basis prior to being applied to the payment of any Loans of, or L/C
Borrowings owed to, such Defaulting Lender. 
Any payments, prepayments or other amounts paid or payable to a
Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender or to post Cash Collateral pursuant to this Section 3.12(a)(ii) shall
be deemed paid to and redirected by such Defaulting Lender, and each Lender
irrevocably consents hereto.


 


(iii)          Such Defaulting Lender (x) shall  not
be entitled to receive any commitment fee pursuant to Section 2.14(b) for
any period during which such Lender is a Defaulting Lender (and the Borrower
shall not be required to pay any such fee that otherwise would have been
required to have been paid to such Defaulting Lender) and (y) shall be
limited in its right to receive Letter of Credit Fees as provided in Section 3.08.


 


(iv)          During any period in which there is a Defaulting Lender,
for purposes of computing the amount of the obligation of each non-Defaulting
Lender to acquire, refinance or fund participations in Letters of Credit, Swing
Line Loans or Fronted Offshore Currency Loans pursuant to this Article III,
Section 2.05 and Section 2.07, the “Revolving
Percentage” of each non-Defaulting Lender shall be computed without giving
effect to the Revolving Commitment of such Defaulting Lender; provided
that (x) each such reallocation shall be given effect only if, at the date
the applicable Lender becomes a Defaulting Lender, no Default or Event of
Default exists, and (y) the aggregate obligation of each non-Defaulting
Lender to acquire, refinance or fund participations in Letters of Credit, Swing
Line Loans and Fronted Offshore Currency Loans shall not exceed the positive
difference, if any, of (1) the Revolving Commitment of such non-Defaulting
Lender minus (2) the aggregate outstanding amount of the Revolving
Loans of such Lender.


 


(b)                                 The Agent agrees
to promptly notify the Company upon any Lender’s becoming a Defaulting Lender
(but the Agent shall have no liability for any failure to give, or any delay in
giving, any such notice).  If the
Company, the Agent, the Issuers, the Swing Line Lenders and the Fronting
Lenders agree in writing in their sole discretion that a Defaulting Lender
should no longer be deemed to be a Defaulting Lender, the Agent will promptly
so notify the parties hereto, whereupon as of the effective date specified in
such notice and subject to any conditions set forth therein (which may include
arrangements with respect to any Cash Collateral), such Lender will, to the
extent applicable, purchase that portion of outstanding Loans of the other
Lenders or take such other actions as the Agent may determine to be necessary
to cause the Revolving Loans and funded and unfunded participations in Letters
of Credit, Swing Line Loans and Fronted Offshore Currency Loans to be held on a
pro rata basis by the Lenders in accordance with their Revolving Percentages
(without giving effect to Section 3.12(a)(iv) as to such
Lender), whereupon such Lender will cease to be a Defaulting Lender; provided
that no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of the Company while such Lender was a Defaulting
Lender; and provided, further, that except to the extent
otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Lender will constitute a waiver or release of any claim of
any party hereunder arising from such Lender’s having been a Defaulting Lender.


 


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ARTICLE IV


 


TAXES, YIELD PROTECTION
AND ILLEGALITY


 


4.01         Taxes.  (a) Any
and all payments by each Borrower to each Lender or the Agent under this
Agreement and any other Loan Document shall be made free and clear of, and
without deduction or withholding for, any Taxes.  In addition, each Borrower shall pay all
Other Taxes.


 


(b)           If any Borrower shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any sum
payable hereunder to any Lender or the Agent, then:


 


(i)            the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section), such
Lender or the Agent, as the case may be, receives and retains an amount equal
to the sum it would have received and retained had no such deductions or
withholdings been made;


 


(ii)           such Borrower shall make such deductions and withholdings;


 


(iii)          such Borrower shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in accordance with
applicable law; and


 


(iv)          such Borrower shall also pay to each Lender or the Agent
for the account of such Lender, at the time interest is paid, Further Taxes in
the amount that such Lender specifies as necessary to preserve the after-tax
yield such Lender would have received if such Taxes, Other Taxes or Further
Taxes had not been imposed.


 


(c)           Each Borrower agrees to indemnify and hold harmless each
Lender and the Agent for the full amount of (i) Taxes, (ii) Other Taxes, and
(iii) Further Taxes in the amount that such Lender or the Agent, respectively,
specifies as necessary to preserve the after-tax yield the Lender would have
received if such Taxes, Other Taxes or Further Taxes had not been imposed, and
any liability (including penalties (except to the extent arising from the gross
negligence or willful misconduct of such Lender or the Agent, respectively),
interest, additions to tax and expenses) arising therefrom or with respect
thereto, whether or not such Taxes, Other Taxes or Further Taxes were correctly
or legally asserted.  Payment under this
indemnification shall be made within 30 days after the date such Lender or the
Agent makes written demand therefor.


 


(d)           Within 30 days after the date of any payment by any
Borrower of Taxes, Other Taxes or Further Taxes, such Borrower shall furnish to
each applicable Lender or the Agent the original or a certified copy of a
receipt evidencing payment thereof, or other evidence of payment satisfactory
to such Lender or the Agent.


 


(e)           If such Borrower is required to pay any amount to any
Lender or the Agent for the account of such Lender pursuant to subsection
(b) or (c) of this Section, then such Lender shall use reasonable
efforts (consistent with legal and regulatory restrictions) to change the
jurisdiction of its Lending Office so as to eliminate any such additional
payment by such Borrower which 


 


69

















 


may thereafter accrue, if such change in the sole
judgment of such Lender is not otherwise disadvantageous to such Lender.


 


(f)            Each Lender shall, promptly upon request by the Company,
deliver to the Company copies of all completed and executed forms reasonably
deemed necessary by any Borrower in connection with the payment of amounts
demanded by such Lender pursuant to the foregoing subsection (c).


 


(g)           FATCA.  In addition, each Lender, on or prior
to the date on which such Lender becomes a Lender hereunder and from time to
time thereafter either upon the request of the Agent or their respective agents
or upon expiration or obsolescence of any previously delivered documentation,
shall furnish the Agent with any documentation that is required under the Code
or applicable Treasury regulations to enable the Borrowers or the Agent to
determine their duties and liabilities  with respect to any Taxes they may
be required to withhold in respect of Section 1471 or 1472 of the Code; provided
that the furnishing of such documentation would not result in a material
adverse consequence to such Lender. In the event that either (i) the
documentation required to be delivered pursuant to the immediately preceding
sentence fails to establish a complete exemption from withholding of amounts under
Section 1471 and 1472 or (ii) no such required documentation is delivered, the
Borrowers shall not be obligated to pay any additional amounts to any Lender
pursuant to clause (b)(iv), or to indemnify any Lender pursuant to clause
(c), in respect of any such withholding imposed under Sections 1471 or
1472.


 


4.02         Illegality. 
(a) If any Lender determines that the introduction after the date hereof
of any Requirement of Law, or any change after the date hereof in any
Requirement of Law or in the interpretation or administration of any
Requirement of Law, has made it unlawful, or that any central bank or other
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Loans whose interest rate
is determined by reference to the Offshore Rate, or to determine or charge
interest rates based upon the Offshore Rate, or any Governmental Authority has
imposed material restrictions on the authority of such Lender to purchase or
sell, or to take deposits of, Dollars in the interbank market, then, on notice
thereof by the Lender to the Company through the Agent, (i) any obligation of
that Lender to make or continue Offshore Rate Loans or to convert Base Rate
Loans to Offshore Rate Loans shall be suspended, and (ii) if such notice
asserts the illegality of such Lender making or maintaining Base Rate Loans the
interest rate on which is determined by reference to the Offshore Rate
component of the Base Rate, the interest rate on which Base Rate Loans of such
Lender shall, if necessary to avoid such illegality, be determined by the Agent
without reference to the Offshore Rate component of the Base Rate, in each case
until such Lender notifies the Agent and the Company that the circumstances
giving rise to such determination no longer exist, at which time such Lender
shall promptly notify the Agent and the Company, and such Lender’s obligation
to make Offshore Rate Loans shall be reinstated.


 


(b)           If a Lender determines that it is unlawful to maintain any
Offshore Rate Loan, the applicable Borrower shall, upon the receipt by the
Company of notice of such fact and demand from such Lender (with a copy to the
Agent), (x) prepay in full such Offshore Rate Loans of that Lender then
outstanding, together with interest accrued thereon and amounts required under Section
4.04, either on the last day of the Interest Period thereof, if the Lender
may lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if the Lender may 


 


70

















 


not lawfully continue to maintain such Offshore Rate
Loan and (y) if such notice asserts the illegality of such Lender determining
or charging interest rates based upon the Offshore Rate, the Agent shall during
the period of such suspension compute the Base Rate applicable to such Lender
without reference to the Offshore Rate component thereof until the Agent is
advised in writing by such Lender that it is no longer illegal  for such Lender to determine or charge
interest rates based upon the Offshore Rate, at which time such Lender shall
promptly notify the Agent and the Company, and the Agent shall return to
computing interest rates based upon the Offshore Rate for such Lender.  If a Borrower is required to so prepay any Offshore
Rate Loan, then concurrently with such prepayment, the Company (regardless of
whether the Company is the initial Borrower) shall borrow from the affected
Lender, in the amount of such repayment, a Base Rate Loan (the interest rate on
which Base Rate Loans of such Lender shall, if necessary to avoid such
illegality, be determined by the Agent without reference to the Offshore Rate
component of the Base Rate).


 


(c)           If the obligation of any Lender to make or maintain
Offshore Rate Loans has been so terminated or suspended, the Company may elect,
by giving notice to the Lender through the Agent that all Loans which would
otherwise be made or maintained by the Lender as Offshore Rate Loans shall be
instead made or maintained as Base Rate Loans.


 


(d)           Before giving any notice to the Agent under this Section,
the affected Lender shall designate a different Lending Office with respect to
its Offshore Rate Loans if such designation will avoid the need for giving such
notice or making such demand and will not, in the good faith judgment of such
Lender, be illegal or otherwise disadvantageous to such Lender.


 


4.03         Increased Costs and Reduction of Return.  (a) If any Lender determines in good faith
that, due to either (i) the introduction of or any change (other than any
change by way of imposition of or increase in reserve requirements included in
the calculation of the Offshore Rate) in or in the interpretation of any law or
regulation made after the Effective Date or (ii) the compliance by that
Lender with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall be
any increase in the cost to such Lender of agreeing to make or making, funding
or maintaining any Loans the interest on which is determined by reference to
the Offshore Rate or participating in Letters of Credit or Fronted Offshore
Currency Loans, as applicable, or any reduction in the amount of any sum
received or receivable by such Lender hereunder, or, in the case of any Issuer,
any increase in the cost to such Issuer of agreeing to issue, issuing or
maintaining any Letter of Credit or of agreeing to make or making, funding or
maintaining any unpaid drawing under any Letter of Credit or any reduction in
the amount of any sum received or receivable by such Issuer hereunder, then
such Borrower shall be liable for, and shall from time to time, within 10 days
after demand (with a copy of such demand to be sent to the Agent), pay to the
Agent for the account of such Lender, additional amounts as are sufficient to
compensate such Lender for such increased costs or reduction.


 


(b)           If any Lender shall have determined that (i) the
introduction of any Capital Adequacy Regulation made after the Effective Date,
(ii) any change in any Capital Adequacy Regulation made after the Effective
Date, (iii) any change in the interpretation or administration of any Capital
Adequacy Regulation by any central bank or other Governmental Authority charged
with the interpretation or administration thereof made after the Effective
Date, or (iv) 


 


71

















 


compliance by such Lender (or its Lending Office) or
any corporation controlling such Lender with any Capital Adequacy Regulation
made after the Effective Date, affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender’s or such
corporation’s policies with respect to capital adequacy and such Lender’s
desired return on capital) determines that the amount of such capital is
increased as a consequence of its Commitments, loans, letters of credit,
credits or obligations under this Agreement, then, within 10 days after demand
of such Lender to the Company through the Agent, the applicable Borrower shall
pay to such Lender, from time to time as specified by such Lender, additional
amounts sufficient to compensate such Lender for such increase.


 


4.04         Funding Losses. 
Each Borrower shall reimburse each Lender upon demand and hold each
Lender harmless from any loss or expense which such Lender may sustain or incur
as a consequence of:


 


(a)           the failure of such Borrower to make on a timely basis any
payment of principal of any Offshore Rate Loan;


 


(b)           the failure of such Borrower to borrow, continue or
convert a Loan after such Borrower has given (or is deemed to have given) a
Notice of Borrowing or a Notice of Conversion/Continuation;


 


(c)           the failure of such Borrower to make any prepayment in
accordance with any notice delivered under Section 2.10;


 


(d)           any continuation, conversion, prepayment (including
pursuant to Section 2.11) or other payment (including after acceleration
thereof or pursuant to Section 2.08(c)) of an Offshore Rate Loan on a
day that is not the last day of the relevant Interest Period;


 


(e)           any assignment of an Offshore Rate Loan on a day other
than the last day of the relevant Interest Period as a result of a request by
the Company pursuant to Section 4.07; or


 


(f)            the automatic conversion under Section 2.04 of any
Offshore Rate Loan to a Base Rate Loan on a day that is not the last day of the
relevant Interest Period;


 


including
any such loss or expense arising from the liquidation or reemployment of funds
obtained by it to maintain its Offshore Rate Loans or from fees payable to
terminate the deposits from which such funds were obtained.  For purposes of calculating amounts payable
by the Borrowers to the Lenders under this Section and under Section 4.03(a),
each Offshore Rate Loan made by a Lender (and each related reserve, special
deposit or similar requirement) shall be conclusively deemed to have been
funded at the Offshore Base Rate used in determining the Offshore Rate for such
Offshore Rate Loan by a matching deposit or other borrowing in the interbank
eurodollar market for a comparable amount and for a comparable period, whether
or not such Offshore Rate Loan was in fact so funded.


 


4.05         Inability to Determine Rates.  If the Agent determines that for any reason
that (a) deposits (whether in Dollars or an Alternative Currency) are not being
offered to banks in the offshore interbank eurodollar market for the applicable
amount and Interest Period of such 


 


72

















 


Offshore Rate Loan, (b) adequate and reasonable
means do not exist for determining the Offshore Rate for an Applicable Currency
for any requested Interest Period with respect to a proposed Offshore Rate Loan
or in connection with an existing or proposed Base Rate Loan, or (c) the Offshore
Rate applicable pursuant to Section 2.13(a) for an Applicable Currency
for any requested Interest Period with respect to a proposed Offshore Rate Loan
does not adequately and fairly reflect the cost to the applicable Lenders of
funding such Loan, the Agent will promptly so notify the Company and each
applicable Lender.  Thereafter, (x) the
obligation of the Lenders to make or maintain Offshore Rate Loans hereunder in
such Applicable Currency shall be suspended, and (y) in the event of a
determination described in the preceding sentence with respect to the Offshore
Rate component of the Base Rate, the utilization of the Offshore Rate component
in determining the Base Rate shall be suspended, in each case until the Agent
revokes such notice in writing, at which time neither the obligation referred
to in clause (x) nor the utilization referred to in clause (y)
shall be suspended.  Upon receipt of such
notice, the Company may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it or any other Borrower.  If the Company does not revoke such Notice,
then the applicable Lenders shall make, convert or continue the Loans, as
proposed by the Company, in the amount specified in the applicable notice
submitted by the Company, but such Loans shall be made, converted or continued
as Base Rate Loans instead of Offshore Rate Loans, as the case may be, and such
Loans shall be assumed by the Company notwithstanding the fact that the Loans
may initially have been made to a Subsidiary Borrower.  The Agent shall, promptly following its
determination that the reason for any suspension under this Section no longer
exists, deliver a notice of revocation of such suspension to the Company and
each applicable Lender.


 


4.06         Certificates of Lenders.  Any Lender claiming reimbursement or
compensation under this Article IV shall deliver to the Company (with a
copy to the Agent) contemporaneously with the demand for payment a certificate
setting forth in reasonable detail the basis for, and a calculation of, the
amount payable to such Lender hereunder and such certificate shall be
conclusive and binding on the applicable Borrower in the absence of manifest
error.


 


4.07         Substitution of Lenders.  Upon any Lender becoming a Defaulting Lender
or upon the receipt by the Company from any Lender (together with any
Defaulting Lender, an “Affected Lender”) of a claim for compensation
under Section 4.03, of notice that it cannot make or maintain Offshore
Rate Loans under Section 4.02, or of a claim for Taxes, Other Taxes or
Further Taxes under Section 4.01, or if any other circumstance exists hereunder that gives the Company the
right to replace a Lender as a party hereto, then the Agent, at the
Company’s direction and at the sole cost and expense of the Company, shall: (i)
request such Affected Lender to use good faith efforts to obtain a replacement
bank or financial institution satisfactory to the Company to acquire and assume
all or a ratable portion of all of such Affected Lender’s Loans and Commitments
at the face amount thereof, together with accrued and unpaid interest, fees and
other amounts due to such Affected Lender with respect to such ratable portion
(a “Replacement Lender”); (ii) request one more of the other applicable
Lenders to acquire and assume all or part of such Affected Lender’s Loans and
Commitments; or (iii) designate a Replacement Lender.  Any such designation of a Replacement Lender
under clause (i) or (iii) shall be subject to the prior written
consent of the Agent (which consent shall not be unreasonably withheld).


 


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4.08         Survival.  The
agreements and obligations of the Borrowers in this Article IV shall
survive the payment of all other Obligations, and no Borrower will have an
obligation to pay any amount hereunder unless a demand is made within 180 days
after the date upon which the Agent’s or applicable Lender’s right to
reimbursement arises.


 


ARTICLE V


 


CONDITIONS PRECEDENT


 


5.01         Conditions to Effectiveness and Initial Credit Extension.  This Agreement shall not become effective,
and no Lender or Issuer shall be required to make the initial Credit Extension
hereunder, unless and until the Agent shall have received all of the following,
in form and substance satisfactory to the Agent and each Lender, and in the
case of documents, in the number of originals requested by the Agent (except
that only one original of each requested Note shall be signed):


 


(a)           Credit Agreement and Notes.  This Agreement and each requested Note
executed by each party thereto.


 


(b)           Resolutions; Incumbency.


 


(i)            Copies of the resolutions of the board of directors (or
similar governing body) of each Loan Party authorizing the transactions
contemplated by the Loan Documents to which it is a party, certified as of the
Effective Date by the Secretary, an Assistant Secretary or a similar officer of
such Loan Party; and


 


(ii)           A certificate of the Secretary, an Assistant Secretary or
a similar officer of each Loan Party certifying the names and true signatures
of the officers of such Loan Party authorized to execute, deliver and perform
all Loan Documents to be delivered by it hereunder.


 


(c)           Organization Documents; Good Standing.  Each of the following documents:


 


(i)            the articles or certificate of formation (or similar
charter document) and the bylaws (or similar governing documents) of each Loan
Party as in effect on the Effective Date, certified by the Secretary or an
Assistant Secretary or a similar officer of such Loan Party as of the Effective
Date; and


 


(ii)           a good standing certificate or certificate of status for
each Loan Party from the Secretary of State (or similar, applicable
Governmental Authority) of its jurisdiction of formation.


 


(d)           Legal Opinions. 
An opinion of Foley & Lardner LLP, counsel to the Loan Parties, addressed
to the Agent and the Lenders.


 


(e)           Security Agreement. 
The Security Agreement executed by the Company and each Guarantor.


 


74

















 


(f)            Pledge Agreement. 
The Pledge Agreement executed by the Company and each other Loan Party
that owns any Capital Stock that is required to be pledged pursuant to the
provisions hereof, together with (to the extent applicable) original stock
certificates representing all shares to be pledged thereunder and corresponding
stock powers executed in blank.


 


(g)           Subsidiary Guaranty.  The Subsidiary Guaranty executed by each
Guarantor.


 


(h)           Insurance. 
Evidence satisfactory to the Agent of the existence of insurance
required to be maintained pursuant to Section 7.06 or the provisions
of any other Loan Document, together with endorsements naming the Agent as (a)
an additional insured (with respect to liability policies) and (b) loss payee
(in the case of casualty policies).


 


(i)            Payment of Fees. 
Evidence of payment by the Company of all accrued and unpaid fees, costs
and expenses to the extent then due and payable on the Effective Date, together
with Attorney Costs of the Agent to the extent invoiced prior to or on the
Effective Date, plus such additional amounts of Attorney Costs as shall
constitute the Agent’s reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude final settling of accounts between the Company
and the Agent), including any such costs, fees and expenses arising under or
referenced in Section 2.14 or 11.04.


 


(j)            Certificate. 
A certificate signed by a Responsible Officer, dated as of the Effective
Date, stating that:


 


(i)            the representations and warranties contained in Article
VI are true and correct on and as of such date, as though made on and as of
such date;


 


(ii)           no Default or Event of Default exists or would result from
any Credit Extension made on such date; and


 


(k)           Search Results; Lien Terminations.  Certified copies of Uniform Commercial Code
Requests for Information or Copies, or similar search reports certified by a
party reasonably acceptable to the Agent, dated a date reasonably near the
Effective Date, listing all effective financing statements that name the
Company or any Guarantor (under its present name and any previous name used by
it in the last five years) as debtors and are filed in the jurisdictions in
which filings are to be made pursuant to the Collateral Documents, together
with (i) copies of such financing statements and (ii) authorized copies of
proper Uniform Commercial Code Form UCC-3 termination statements, if any,
necessary to release all Liens and other rights of any Person in any collateral
described in the Collateral Documents previously granted by any Person (other
than Liens permitted hereunder).


 


(l)            Filings, Registrations and Recordings.  Each document (including Uniform Commercial
Code financing statements) required by the Collateral Documents or under law or
reasonably requested by the Agent to be filed, registered or recorded in order
to create in favor of the Agent, for the benefit of the Lenders, a perfected
Lien on the collateral described therein, prior and superior to the Lien of any
other Person (other than Liens permitted hereunder), in proper form for filing,
registration or recording.


 


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(m)          Existing Credit Agreement.  Evidence that, prior to or concurrently with
the effectiveness of this Agreement, (i) all outstanding obligations of the
Company under the Existing Credit Agreement (other than any Existing Letters of
Credit) shall have been paid in full, and the Existing Credit  Agreement and all commitments thereunder
shall have been terminated.


 


(n)           Ratings. 
Evidence (including by public release thereof by the rating agencies)
that (i) the Company has received a corporate family rating from each of Moody’s
and S&P, and (ii) the credit facilities under this Agreement have received
a debt rating from each of such rating agencies.


 


(o)           Absence of Proceedings.  A certificate from a Responsible Officer
certifying that there is no action, suit, investigation or proceeding
threatened in writing or pending in any court or before any arbitrator or
governmental authority that (i) relates to the credit facilities hereunder and
(ii) has a reasonable possibility of being determined in a manner that would
(A) prohibit the closing of such credit facilities or (B) adversely affect in
any material respect the interests of the Agent or any Lender under or in
respect of such facilities.


 


(p)           Other Documents. 
Such other approvals, opinions, documents or materials as the Agent or
any Lender may reasonably request.


 


Without
limiting the generality of the provisions of Section 10.04, for purposes
of determining compliance with the conditions specified in this Section 5.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Lender unless the Agent shall have received notice from
such Lender prior to the proposed Effective Date specifying its objection
thereto.  The Agent shall promptly notify
the Company and the Lenders of the occurrence of the Effective Date, which
notice shall be conclusive and binding.


 


5.02         Conditions to All Credit Extensions.  The obligation of each Lender to make any
Loan to be made by it and the obligation of any Issuer to Issue any Letter of
Credit is subject to the satisfaction of the following conditions precedent on
the relevant Borrowing Date or Issuance Date:


 


(a)           Notice, Application.  The Agent shall have received a Notice of
Borrowing or in the case of any Issuance of any Letter of Credit, the
applicable Issuer and the Agent shall have received an L/C Application or L/C
Amendment Application, as required under Section 3.02;


 


(b)           Continuation of Representations and Warranties.  The representations and warranties in Article
VI shall be true and correct in all material respects on and as of such
Borrowing Date or Issuance Date with the same effect as if made on and as of
such Borrowing Date or Issuance Date (except to the extent such representations
and warranties expressly refer to an earlier date, in which case they shall be
true and correct as of such earlier date); and


 


(c)           No Existing Default.  No Default or Event of Default shall exist or
shall result from such Borrowing or Issuance.


 


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Each
Notice of Borrowing submitted by a Borrower hereunder and each L/C Application
or L/C Amendment Application submitted by the Company hereunder shall
constitute a representation and warranty by the Company hereunder, as of the
date of each such notice and as of each Borrowing Date or Issuance Date, as
applicable, that the conditions in this Section 5.02 are satisfied.


 


5.03         Initial Loans to a Subsidiary Borrower.  The Revolving Lenders shall not be required
to make the initial Revolving Loan to any Subsidiary Borrower unless and until
such Subsidiary Borrower has furnished to the Agent with sufficient copies for
the Revolving Lenders:


 


(a)           Resolutions; Incumbency.


 


(i)            Copies of the resolutions of the board of directors (or
similar governing body) of such Subsidiary Borrower authorizing the
transactions contemplated hereby, certified as of the Effective Date by the
Secretary or an Assistant Secretary or similar officer of such Subsidiary
Borrower; and


 


(ii)           A certificate of the Secretary or Assistant Secretary or
similar officer of such Subsidiary Borrower certifying the names and true
signatures of the officers of such Subsidiary Borrower authorized to execute,
deliver and perform, as applicable, this Agreement, and all other Loan
Documents to be delivered by it hereunder.


 


(b)           Organization Documents; Good Standing.  Each of the following documents:


 


(i)            the articles or certificate of incorporation (or similar
charter document) and the bylaws (or similar governing documents) of such
Subsidiary Borrower as in effect on the Effective Date, certified by the
Secretary or Assistant Secretary (or the general partner, if applicable) of
such Subsidiary Borrower as of the Effective Date; and


 


(ii)           a good standing certificate or certificate of status for such
Subsidiary Borrower from the Secretary of State (or similar, applicable
Governmental Authority) of its jurisdiction of formation (to the extent
applicable).


 


(c)           Legal Opinion. 
A written opinion of counsel to such Subsidiary Borrower, addressed to
the Agent and the Revolving Lenders and in substance reasonably acceptable to
the Agent.


 


(d)           Notes.  A
Note of such Subsidiary Borrower for each Revolving Lender that has requested a
Note pursuant to Section 2.02(b).


 


(e)           “Know Your Customer” Requirements.  All documentation and other information
requested by the Agent or any Lender that is required under applicable “know
your customer” and anti-money laundering rules and regulations, including all
information required under the Act.


 


(f)            Other Documents. 
Such other approvals, opinions, documents or materials as the Agent or
any Revolving Lender may reasonably request.


 


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ARTICLE VI


 


REPRESENTATIONS AND
WARRANTIES


 


The
Company represents and warrants to the Agent and each Lender that both before
and after giving effect to the consummation of the transactions contemplated by
the Loan Documents:


 


6.01         Corporate Existence and Power.  The Company, each Subsidiary Borrower and
each of its Material Subsidiaries:


 


(a)           is a corporation or other entity duly organized, validly
existing and, to the extent applicable to such entity, in good standing under
the laws of the jurisdiction of its incorporation;


 


(b)           has the power and authority and all governmental licenses,
authorizations, consents and approvals to (i) own its assets and to carry on
its business in all material respects and (ii) to execute, deliver, and perform
its obligations under the Loan Documents to which it is a party;


 


(c)           is duly qualified as a foreign entity in each state in the
United States and is licensed and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification or license, if applicable to such
entity; and


 


(d)           is in compliance with all Requirements of Law;


 


except,
in each case referred to in subsection (b)(i), (c) or (d),
to the extent that the failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


6.02         Corporate Authorization; No Contravention.  The execution, delivery and performance by
each Loan Party of each Loan Document to which such Person is party have been
duly authorized by all necessary corporate or other action, and do not and will
not:


 


(a)           contravene the terms of any of such Person’s Organization
Documents;


 


(b)           conflict with or result in any breach or contravention of,
or the creation of any Lien under, any document evidencing any material
Contractual Obligation to which such Person is a party or any order,
injunction, writ or decree of any Governmental Authority to which such Person
or its property is subject; or


 


(c)           violate any Requirement of Law.


 


6.03         Governmental and Third-Party Authorization.  No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person (except those that have been
obtained and remain in effect and disclosure filings that are required to be
made with the SEC in connection with the transactions contemplated by the Loan
Documents) is necessary or required to be made or obtained by any Loan Party in
connection with the execution, delivery or performance by such Loan Party of
any Loan 


 


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Document to which it is a party or for the
enforcement against such Loan Party of any Loan Document (including, in the
case of the Company, Article XII) to which it is a party.


 


6.04         Binding Effect. 
Each Loan Document to which any Loan Party is a party constitutes the
legal, valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors’ rights generally or by equitable principles relating
to enforceability.


 


6.05         Litigation. 
There are no actions, suits or proceedings pending or, to the best
knowledge of the Company, threatened in writing, at law, in equity, in
arbitration or before any Governmental Authority, against the Company, or its
Subsidiaries or any of their respective properties:


 


(a)           which pertain to this Agreement, any other Loan Document
or any of the transactions contemplated hereby or thereby; or


 


(b)           as to which there exists a substantial likelihood of an
adverse determination, which determination could reasonably be expected to have
a Material Adverse Effect.


 


6.06         No Default. 
Neither the Company nor any Material Subsidiary is in default under or
with respect to any Contractual Obligation which, individually or together with
all such defaults, could reasonably be expected to have a Material Adverse
Effect.


 


6.07         ERISA Compliance. 
Except as specifically disclosed in Schedule 6.07:


 


(a)           Each Plan is in compliance with the applicable provisions
of ERISA, the Code and other federal or state law, except where the failure to
be in compliance could not reasonably be expected to have a Material Adverse
Effect.  Each Pension Plan which is
intended to be a qualified plan under Section 401(a) of the Code has received a
favorable determination letter from the Internal Revenue Service to the effect
that the form of such Pension Plan is qualified under Section 401(a) of the
Code and the trust related thereto has been determined by the Internal Revenue
Service to be exempt from federal income tax under Section 501(a) of the Code,
except to the extent that the failure to receive such letter could not
reasonably be expected to have a Material Adverse Effect, and, to the best knowledge
of the Company, nothing has occurred that would cause the loss of such
tax-qualified status, except to the extent that such loss would not reasonably
be expected to have a Material Adverse Effect.


 


(b)           There are no pending or, to the best knowledge of Company,
threatened (in writing) claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect.  There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan which
has resulted or could reasonably be expected to result in a Material Adverse
Effect.


 


(c)           Except to the extent that the following could not
reasonably be expected to have a Material Adverse Effect, (i) no ERISA Event
has occurred, and neither the Company nor any ERISA Affiliate is aware of any
fact, event or circumstance that could reasonably be expected to 


 


79

















 


constitute or result in an ERISA Event with respect
to any Pension Plan; (ii) the Company and each ERISA Affiliate has met all
applicable requirements under the Pension Funding Rules in respect of each
Pension Plan, and no waiver of the minimum funding standards under the Pension
Funding Rules has been applied for or obtained; (iii) neither the Company nor
any ERISA Affiliate has incurred any liability to the PBGC other than for the
payment of premiums, and there are no premium payments which have become due that
are unpaid; (iv) neither the Company nor any ERISA Affiliate has engaged in a
transaction that could reasonably be expected to subject to Section 4069 or
Section 4212(c) of ERISA; and (v) no Pension Plan has been terminated by the
plan administrator thereof nor by the PBGC, and no event or circumstance has
occurred or exists that could reasonably be expected to cause the PBGC to
institute proceedings under Title IV of ERISA to terminate any Pension Plan.


 


(d)           Neither the Borrower nor any ERISA Affiliate maintains or
contributes to, or has any material unsatisfied obligation to contribute to, or
material liability under, any active or terminated Pension Plan other than (i)
on the Effective Date, those listed on Schedule 6.07(d) hereto, and (ii)
thereafter, any Pension Plan with respect to which the Company provides notice
to Agent pursuant to Section 7.03(d)(ii) hereto.


 


6.08         Use of Proceeds; Margin Regulations.  The proceeds of the Loans are to be used
solely for the purposes set forth in and permitted by Section 7.11.  Neither the Company nor any Material
Subsidiary is generally engaged in the business of purchasing or selling Margin
Stock or extending credit for the purpose of purchasing or carrying Margin
Stock.


 


6.09         Title to Properties. 
The Company and each Material Subsidiary have good record and marketable
title in fee simple to, or valid leasehold or other valid contractual interests
(which contractual interests provide the Company or such Subsidiary, as
applicable, with all reasonably necessary rights to occupy, use, and enjoy the
subject property) in, all real property necessary or used in the ordinary
conduct of their respective businesses, except for such defects in title or
interest as could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.


 


6.10         Taxes.  Except
as disclosed on Schedule 6.10, the Company and its Subsidiaries have
filed all Federal and other material tax returns and reports required to be
filed, and have paid all Federal and other material taxes shown on such returns
and reports and all material assessments imposed by any governmental authority,
except for taxes and assessments that are being contested in good faith by
appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP.  There is no
proposed tax assessment against the Company or any Subsidiary that would have a
Material Adverse Effect.


 


6.11         Financial Condition. 
(a) The audited consolidated financial statements of the Company and its
Subsidiaries dated September 30, 2009, and the related consolidated statements
of income or operations, shareholders’ equity and cash flows for the fiscal
year ended on that date:


 


(x)            were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except for the absence of footnotes and as 


 


80

















 


otherwise
expressly noted therein, subject, in the case of such unaudited financial
statements, to ordinary, good faith year-end and audit adjustments; and


 


(y)           fairly
present the financial condition of the Company and its Subsidiaries as of the
date thereof and results of operations for the period covered thereby.


 


(b)           Since September 30, 2009, there has been no Material
Adverse Effect.


 


6.12         Environmental Matters.  The Company and its Subsidiaries conduct in
the ordinary course of business (in a manner sufficient to enable the Company
to make the representation and warranty set forth in this Section 6.12)
a review of the effect of existing Environmental Laws and Environmental Claims
on their respective businesses, operations and properties, and as a result
thereof the Company has reasonably concluded that, except for matters for which
adequate reserves are maintained or as specifically disclosed in Schedule
6.12, the aggregate effects of such Environmental Laws and Environmental
Claims could not reasonably be expected to have a Material Adverse Effect.


 


6.13         Regulated Entities. 
None of the Company, any Person controlling the Company, or any
Subsidiary, is an “Investment Company” within the meaning of the Investment
Company Act of 1940.  Neither the Company
nor any other Borrower is subject to regulation under the Federal Power Act,
the Interstate Commerce Act, any state public utilities code, or any other U.S.
Federal or state statute or regulation limiting its ability to incur
Indebtedness.


 


6.14         Capitalization; Subsidiaries.  As of the Effective Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
6.14 hereto and has no equity investments in any other corporation or
entity other than those specifically disclosed in part (b) of Schedule 6.14.


 


6.15         Insurance. 
Except to the extent the failure to be so insured could not reasonably
be expected to have a Material Adverse Effect, the properties of the Company
and its Subsidiaries are self-insured in a manner permitted under Section
7.06 or otherwise insured with financially sound and reputable insurance
companies not Affiliates of the Company in such amounts, with such deductibles
and covering such risks as are customarily carried by companies engaged in
similar businesses and are similarly situated.


 


6.16         Subsidiary Borrower Supplements.  For so long as any Subsidiary shall be a
Subsidiary Borrower, the representations and warranties of such Subsidiary in
such Subsidiary’s Subsidiary Borrower Supplement are true and correct in all
material respects.


 


6.17         Full Disclosure. 
None of the representations or warranties made by any Loan Party in the
Loan Documents as of the date such representations and warranties are made or
deemed made, and none of the statements contained in any exhibit, report,
statement or certificate furnished by or on behalf of any Loan Party in
connection with the Loan Documents contains any untrue statement of a material
fact or omits any material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which
they are made, not misleading as of the time when made or delivered (it being
understood that any projections and forecasts provided by the Company or any
Subsidiary are based on good 


 


81

















 


faith estimates and assumptions believed by the
Company or such Subsidiary to be reasonable as of the date of the applicable
projections or forecasts and that actual results during the periods covered by
any such projections and forecasts may differ from projected or forecasted
results).


 


ARTICLE VII


 


AFFIRMATIVE COVENANTS


 


So
long as any Lender shall have any Commitment hereunder, or any Loan or other
Obligation (other than any contingent indemnification or similar obligation not
yet due and payable, and any Obligations arising under any Rate Swap Document
or Cash Management Agreement) shall remain unpaid or unsatisfied, or any Letter
of Credit (other than any Supported Letter of Credit) shall remain outstanding,
unless the Required Lenders waive compliance in writing:


 


7.01         Financial Statements. 
The Company shall deliver to the Agent (which shall promptly make
available to each Lender):


 


(a)           as soon as available, but not later than the earlier of
(i) five Business Days after the filing thereof with the SEC and (ii) 105 days
after the end of each fiscal year (commencing with the fiscal year ending
September 30, 2010), a copy of the audited consolidated balance sheet of the
Company and its Subsidiaries as at the end of such year and the related
consolidated statements of income, shareholders’ equity and cash flows for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, and accompanied by the report of Deloitte & Touche
LLP or another nationally-recognized independent public accounting firm (the “Independent
Auditor”) which report shall (i) state that such consolidated financial
statements present fairly the financial position for the periods indicated in
conformity with GAAP, (ii) to the extent required to be provided pursuant to
the rules and regulations of the SEC, include the attestation report of the
Independent Auditor on management’s assessment of the effectiveness of the
Company’s internal controls over financial reporting as of the end of such
fiscal year as set forth in the Company’s report on Form 10-K for such fiscal
year and (iii) not be qualified or limited because of a restricted or limited
examination by the Independent Auditor of any material portion of the Company’s
or any Subsidiary’s records; provided that if the Independent Auditor’s
report with respect to such consolidated financial statements is a combined
report (that is, one report containing both an opinion on such consolidated
financial statements and an opinion on internal controls over financial
reporting), then such report may include a qualification or limitation relating
to the Company’s system of internal controls over financial reporting due to
the exclusion of any acquired business from the Independent Auditor’s
management report on internal controls over financial reporting to the extent
such exclusion is permitted under provisions published by the SEC or other
applicable Governmental Authority; and


 


(b)           as soon as available, but not later than the earlier of
(i) five Business Days after the filing thereof with the SEC and (ii) 45 days
after the end of each of the first three fiscal quarters of each fiscal year
(commencing with the fiscal quarter ending December 31, 2010), a copy of the
unaudited consolidated balance sheet of the Company and its Subsidiaries as of
the end of such fiscal quarter and the related consolidated statements of
income, shareholders’ equity 


 


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and cash flows for the period commencing on the
first day and ending on the last day of such fiscal quarter, together with a
consolidating income statement for such period, and certified by a Responsible
Officer as fairly presenting, in accordance with GAAP (subject to good faith
year-end and audit adjustments and the absence of footnotes), the financial
position and the results of operations of the Company and the Subsidiaries.


 


7.02         Certificates; Other Information.  The Company shall furnish to the Agent (which
shall promptly make available to each Lender):


 


(a)           concurrently with the delivery of the financial statements
referred to in Section 7.01(a), a certificate of the Independent Auditor
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default, except as specified in such
certificate;


 


(b)           concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a Compliance Certificate
executed by a Responsible Officer (which delivery may, unless the Agent or a
Lender requests executed originals, be by electronic communication including
fax or email and shall be deemed to be an original authentic counterpart
thereof for all purposes);


 


(c)           concurrently with the delivery of the financial statements
referred to in Section 7.01(a), a consolidating income statement for
such year (which need not be audited) setting forth in comparative form the
figures for the previous fiscal year;


 


(d)           promptly, copies of all financial statements and reports
that the Company sends to its shareholders generally, and copies of all
registration statements (other than Exhibits thereto and any registration
statements on Form S-8 or its equivalent) and final reports on Forms 10-K and
10-Q that the Company shall have filed with the SEC; and


 


(e)           promptly, such additional information regarding the
business, financial position or organizational affairs of the Company or any
Subsidiary as the Agent, at the request of any Lender, may from time to time
reasonably request.


 


Documents
required to be delivered pursuant to Section 7.01, Section 7.02(b)
or Section 7.02(d) (to the extent any such documents are included in
materials otherwise filed with the SEC) may be delivered electronically and if
so delivered, shall be deemed to have been delivered on the date (i) on which
the Company posts such documents, or provides a link thereto on the Company’s website
on the Internet at the website address listed on Schedule 11.02; or (ii)
on which such documents are posted on the Company’s behalf on an Internet or
intranet website, if any, to which each Lender and the Agent have access
(whether a commercial, third-party website or whether sponsored by the Agent); provided
that the Company shall notify (which may be by facsimile or electronic mail)
the Agent (which shall notify each Lender) of the posting of any such document
and, promptly upon request by the Agent, provide to the Agent by electronic
mail an electronic version (i.e., a soft copy) of any such document
specifically requested by the Agent.  The
Agent shall have no obligation to request the delivery or to maintain copies of
the documents referred to above, and in any event shall have no responsibility
to monitor 


 


83

















 


compliance
by the Company with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies of
such documents.


 


The
Company hereby acknowledges that (a) BAS and/or Bank of America will make
available to the Lenders and the Issuers materials and/or information provided
by or on behalf of the Company hereunder (collectively, “Borrower Materials”)
to Lenders and potential Lenders by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b)
certain of the Lenders or potential Lenders may be “public-side” Lenders (i.e.,
Lenders that do not wish to receive material non-public information with
respect to the Company or its securities) (each, a “Public Lender”).  The Company hereby agrees that it will use
commercially reasonable efforts to identify that portion of the Borrower
Materials that may be distributed to the Public Lenders and that (w) all
Borrower Materials that are made available to Public Lenders shall be clearly
and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word
“PUBLIC” shall appear prominently on the first page thereof; (x) by marking
Borrower Materials “PUBLIC,” the Company shall be deemed to have authorized
BAS, Bank of America, the Lenders and the proposed Lenders to treat such
Borrower Materials as not containing any material non-public information with
respect to the Company or its securities for purposes of United States Federal
and state securities laws, it being understood that certain of such Borrower
Materials may be subject to the confidentiality requirements of Section
11.08; (y) all Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Investor;” and
(z) BAS and Bank of America shall treat any Borrower Materials that are not
marked “PUBLIC” as being suitable only for posting on, and shall only post such
Borrower Materials on, the portion of the Platform not designated “Public
Investor.”  Notwithstanding the
foregoing, the Company shall be under no obligation to mark any Borrower
Materials “PUBLIC”.


 


7.03         Notices.  The
Company shall notify the Agent (and the Agent shall promptly thereafter notify
each Lender):


 


(a)           promptly after a Responsible Officer obtains knowledge
thereof, of the occurrence of any Default or Event of Default;


 


(b)           promptly after a Responsible Officer obtains knowledge
thereof, of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect; and


 


(c)           promptly after a Responsible Officer obtains knowledge
thereof, of the determination by the Independent Auditor or the Company of the
occurrence or existence of an Internal Control Event that could reasonably be
expected to have a Material Adverse Effect; and


 


(d)           promptly, but in no event more than 10 days after such
event becomes known to a Responsible Officer, (i) the occurrence of any ERISA
Event that could reasonably be expected to result in liability to the Company
and its Subsidiaries in excess of $20,000,000 in the aggregate, and deliver to
the Agent and each Lender a copy of any notice with respect to such event that
is filed with a Governmental Authority and any notice delivered by a
Governmental Authority to the Company or any ERISA Affiliate with respect to
such ERISA Event; and (ii) to the extent not previously disclosed on Schedule
6.07(d), the name of any Pension Plan which the Company or any ERISA
Affiliate begins to maintain or to which it begins to contribute, or with
respect to 


 


84

















 


which the Company or an ERISA Affiliate assumes or
incurs any material liability or material unsatisfied obligation to contribute.


 


Each
notice under this Section shall be accompanied by a written statement by a
Responsible Officer setting forth details of the occurrence referred to
therein, and stating what action the Company or any affected Subsidiary
proposes to take with respect thereto and at what time.  Each notice under Section 7.03(a)
shall describe with particularity any and all clauses or provisions of this
Agreement or other Loan Document that have been breached or violated.


 


7.04         Preservation of Corporate Existence, Etc.  Except as otherwise expressly permitted
hereby, the Company shall, and shall cause each Material Subsidiary to:


 


(a)           preserve and maintain in full force and effect its
corporate or other organizational existence and good standing (if applicable)
under the laws of its state or jurisdiction of formation, except to the extent
otherwise expressly permitted herein;


 


(b)           preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business except
in connection with transactions permitted by Section 8.03 and
Dispositions of assets permitted by Section 8.02 and except for any of
the foregoing the expiration or termination of which could not reasonably be
expected to have a Material Adverse Effect;


 


(c)           use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill except to the
extent otherwise permitted herein; and


 


(d)           preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.


 


7.05         Maintenance of Property.  The Company shall maintain, and shall cause
each Subsidiary to maintain, and preserve all its property which is used or
useful in its business in good working order and condition, ordinary wear and
tear excepted, and make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.


 


7.06         Insurance. 
Except to the extent the failure to so maintain could not reasonably be
expected to have a Material Adverse Effect, the Company shall maintain, and
shall cause each Material Subsidiary to maintain, with financially sound and
reputable independent insurers, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons; provided that self insurance of risks and in amounts customary
in the Company’s and its Material Subsidiaries’ industry shall be permitted.


 


7.07         Payment of Taxes. 
The Company shall, and shall cause each Subsidiary to, pay and discharge
as the same shall become due and payable, all Federal and other material tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, 


 


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unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Company or such Subsidiary.


 


7.08         Compliance with Laws. 
The Company shall comply, and shall cause each Subsidiary to comply,
with all Requirements of Law of any Governmental Authority having jurisdiction
over it or its business (including ERISA and the Federal Fair Labor Standards
Act), except (a) such as may be contested in good faith or as to which a bona
fide dispute may exist or (b) to the extent non-compliance could not reasonably
be expected to have a Material Adverse Effect.


 


7.09         Inspection of Property and Books and Records.  The Company shall maintain, and shall cause
each Subsidiary to maintain, books of record and account sufficient to permit
the preparation of consolidated financial statements in conformity with GAAP.  The Company shall permit, and shall cause
each Material Subsidiary to permit, representatives and independent contractors
of the Agent or any Lender to visit and inspect any of their respective
properties, to examine their respective corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss their
respective affairs, finances and accounts with their respective directors,
officers, and independent public accountants, all at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Company, all at the expense of such Lender or,
if applicable, the Agent; provided that when an Event of Default exists
the Agent or any Lender may do any of the foregoing at the expense of the
Company at any time during normal business hours and without advance notice.


 


7.10         Environmental Laws. 
The Company shall, and shall cause each Subsidiary to, conduct its
operations and keep and maintain its property in compliance with all
Environmental Laws, the violation of which could reasonably be expected to have
a Material Adverse Effect.


 


7.11         Use of Proceeds. 
The Company shall use the proceeds of the Loans (a) to repay certain
outstanding obligations of the Company under the Existing Credit Agreement and
(b) for working capital, capital expenditures and other general corporate
purposes (including financing Acquisitions made in accordance with Section
8.04) not in contravention of any Requirement of Law or of any Loan Document.  Neither the Company nor any Subsidiary shall
use the proceeds of the Loans, directly or indirectly, to purchase or carry
Margin Stock.


 


7.12         Guarantors. 
The Company shall take all steps necessary to ensure that (a) not later
than 45 days after the end of each fiscal quarter during which the Company
creates or acquires (directly or indirectly), or an existing Subsidiary
becomes, (i) a Domestic Subsidiary, such Domestic Subsidiary becomes a party to
the Subsidiary Guaranty (but only to the extent necessary to ensure that, after
giving effect to such Subsidiary becoming party to the Subsidiary Guaranty, all
Guarantors, collectively, satisfy the Guarantor Threshold); and (ii) a Material
Foreign Subsidiary, such Material Foreign Subsidiary becomes a party to the
Subsidiary Guaranty (or a guaranty complying with local law in the jurisdiction
of organization of such Material Foreign Subsidiary) and issues a guaranty of
the Obligations of each Subsidiary Borrower that is a Foreign Subsidiary,
except (in each case described in the foregoing provisions of this clause
(b)(ii)) to the extent that (A) such guaranty by such Material Foreign
Subsidiary would result in material adverse tax consequences to the Company or
(B) such Material Foreign 


 


86

















 


Subsidiary would not be able to issue such guaranty
under applicable law without undue expense or other material adverse
consequences; and (b) if, at any time, any Subsidiary of the Company becomes or
is required to become a guarantor of any Indebtedness under the Indenture or
under any other Indebtedness of the Company or any Subsidiary with an aggregate
principal amount of at least $25,000,000, such Subsidiary shall reasonably
promptly thereafter become a party to the Subsidiary Guaranty (provided,
that any Foreign Subsidiary added as a Subsidiary Guarantor under this clause
shall guarantee only the Obligations of each Subsidiary Borrower that is a
Foreign Subsidiary).


 


7.13         Further Assurances. 
(a) Subject to Section 7.13(d), the Company shall take, execute
and deliver, and cause each Material Subsidiary to take, execute and deliver,
any and all such further acts, security agreements, assignments, financing
statements and continuations thereof, termination statements, notices of
assignment, transfers, certificates, assurances, control agreements and other
instruments, that the Agent or the Required Lenders may reasonably request from
time to time in order (i) to ensure that the Obligations and the Guaranteed
Obligations are secured by a pledge of all (subject to Section 7.13(b)(ii))
of such Person’s interests in any Material Subsidiary (in each case pursuant to
the Pledge Agreement and/or, in the case of the pledge of an interest in a
Material Foreign Subsidiary, a pledge agreement complying with local law in the
jurisdiction of organization of such Material Foreign Subsidiary) and secured
(subject to Section 7.13(b)(i)) by a security interest in substantially
all other personal property of such Person pursuant to the Security Agreement
or, in the case of a Foreign Subsidiary, a comparable agreement under local law
of the jurisdiction of organization of such Foreign Subsidiary (it being
understood that the Agent may, in its sole and complete discretion, waive (or
permit a reasonable time for completion of) any requirement to pledge any
interest in, or grant any security on the assets of, any Foreign Subsidiary
based upon such factors it deems relevant, including the cost or difficulty of
obtaining such pledge or grant); (ii) to perfect and maintain the validity,
effectiveness and priority of the Collateral Documents and the Liens intended
to be created thereby and (iii) to better assure, convey, grant, assign,
transfer, preserve, protect and confirm to the Agent and the Lenders the rights
granted now or hereafter intended to be granted to the Agent and the Lenders
under any Loan Document; provided that (A) each of the Loan Parties
(other than any Pledgor) shall have 30 days following the Effective Date (or
such longer period as the Agent may approve in its discretion) in which to
deliver or cause to be delivered to the Agent a control agreement with respect
to each deposit account and securities account maintained by such Loan Party as
of the Effective Date, to the extent required to be delivered pursuant to this
Agreement or any other Loan Document; (B) no Subsidiary that is not a Borrower
or a Guarantor will be required to deliver or cause to be delivered a control
agreement with respect to any deposit account or securities account maintained
solely by such Subsidiary; (C) no Loan Party or any Subsidiary shall be
required to deliver or cause to be delivered a control agreement with respect
to any accounts facilitating the operation of cash pooling, interest set-off
and/or sweep arrangements; and (D) the Loan Parties may maintain amounts in
deposit accounts and securities accounts that are not subject to control
agreements in favor of the Agent so long as (I) the daily average closing
balance in all such accounts of the Borrowers and the Guarantors does not
exceed $5,000,000 for two consecutive calendar months and (II) if such daily
average closing balance exceeds $5,000,000 for any calendar month, the Company
promptly takes, and causes the other Loan Parties to take, such actions as the
Agent may reasonably request (which may include obtaining new control
agreements, closing accounts and/or taking steps to cause amounts in accounts
not subject to a control agreement to be 


 


87

















 


automatically transferred to accounts subject to
control agreements) to assure that such daily average will not exceed such
amount for subsequent calendar months. 
Contemporaneously with the execution and delivery of any document
referred to above, the Company shall, and the Company shall cause each
Subsidiary to, deliver all resolutions, opinions and corporate documents as the
Agent or the Required Lenders may reasonably request to confirm the
enforceability of such document and the perfection of the security interest
created thereby, if applicable. Promptly upon request by the Agent, the Company
shall, and shall cause each applicable Subsidiary to, use commercially
reasonable efforts to obtain Collateral Access Agreements and landlord waivers
with respect to all material properties specified by the Agent, to the extent
not previously delivered to the Agent.


 


(b)           Notwithstanding anything to the contrary in the Loan
Documents, (i) no amount due from or other obligation of the Company shall be
(directly or indirectly) secured by an asset of any Material Foreign Subsidiary
if such security interest would result in material adverse tax consequences to
the Company, (ii) neither the Company nor any Domestic Subsidiary shall be
required to pledge more than 65% of the voting ownership interests in any
Material Foreign Subsidiary, or any equity in any other Foreign Subsidiary and
(iii) no Loan Party shall be required to pledge Margin Stock.


 


(c)           Notwithstanding any other provision of this Agreement or
any other Loan Document, during the 60-day period (or such longer period as the
Agent agrees in its sole and complete discretion) following the date on which
any Person becomes a party to, or the Equity Interests of any Person are
pledged pursuant to, any Collateral Document, the Agent and such Person (or any
other applicable Loan Party) may (i) enter into such amendments and supplements
(including updates of the schedules) to any Collateral Document as are
necessary or appropriate to cause the representations and warranties therein to
be accurate and complete with respect to such Person and (ii) modify the
covenants and other provisions thereof in such manner as the Agent deems
necessary or appropriate to accommodate the addition of such Person as a party
to, or the pledge of such Person’s Equity Interests under, such Collateral
Document (and neither the inaccuracy or incompleteness of any applicable
representation or warranty nor any non-compliance with any applicable covenant
or other provision in any applicable Loan Document shall give rise to a Default
or Event of Default prior to the end of such period so long as such inaccuracy,
incompleteness or non-compliance does not impair the Agent’s Lien on any
material portion of the applicable Collateral or the Agent’s rights with respect
thereto in any material respect).


 


(d)           Notwithstanding any other provision of this Agreement or
any other Loan Document, in the event that the Company obtains corporate family
ratings of (i) BBB- (stable) or higher from S&P and (ii) Baa3 (stable) or
higher from Moody’s (“Investment Grade Ratings”), (including after any
re-pledge of the Collateral pursuant to the proviso in this paragraph) then the
Company shall have the option (so long as, at the time it exercises such
option, the Company continues to maintain Investment Grade Ratings) to require
the Agent to promptly (and in any event within 30 days) release its Lien (on
behalf of the Guaranteed Creditors) in the Collateral; provided that if
the Company shall subsequently have corporate family ratings of (A) BB+ or
lower from S&P and (B) Ba1 or lower from Moody’s, then, promptly (and in
any event within 30 days (or, in respect of real property Collateral or
Collateral in which the Agent will have a perfected security interest pursuant
to control agreements, such longer period as the Agent 


 


88
















 


determines in its sole and complete discretion)
after such corporate family ratings become publicly released by such rating
agencies, or if the Company shall otherwise elect to do so, the Company shall,
and shall cause its Subsidiaries to, (1) take whatever action (including the
filing of Uniform Commercial Code financing statements) that may be necessary
or advisable in the reasonable opinion of the Agent to vest in the Agent (for
the benefit of the Guaranteed Creditors) valid and subsisting Liens on the Collateral
consistent in all material respects in scope, perfection and priority as those
in effect prior to such release, and (2) provide to the Lenders customary legal
opinions in connection therewith.


 


7.14         Real Estate Collateral.  The Company shall, and shall cause each other
applicable Loan Party to, take all actions necessary to:


 


(a)           within 30 days after the Effective Date, cause each parcel
of real property listed on Schedule 7.14 to be subject to a recorded
Mortgage in favor of the Agent;


 


(b)           concurrently with or promptly after the acquisition (at
any time after the Effective Date) by any Borrower or Guarantor of any real
property with a tax assessed value at the time of such acquisition exceeding
$5,000,000, cause such real property to be subject to a recorded Mortgage in
favor of the Agent;


 


(c)           promptly upon request of the Agent during the existence of
an Event of Default, cause each parcel of real property owned by any Borrower
or Guarantor that is designated in writing by the Agent (and not covered by clause
(a) or (b) above) to be subject to a recorded Mortgage in favor of
the Agent; and


 


(d)           not later than 60 days after the recording of any Mortgage
with respect to any  real property
pursuant to clause (a), (b) or (c) above, deliver to the
Agent (i) an ALTA Loan Title Insurance Policy (or the equivalent thereof),
issued by an insurer acceptable to the Agent, insuring the Agent’s Lien on such
property, which policy shall be in an amount not less than 100% of the
reasonably estimated fair market value of such property and shall contain
endorsements and exceptions to coverage reasonably acceptable to the Agent;
(ii) to the extent reasonably available, copies of all material documents of
record concerning such property as shown on the title insurance policy referred
to above; and (iii) either a flood insurance policy covering such property,
which policy shall be reasonably acceptable to the Agent, or confirmation that
such a policy is not required by the Flood Disaster Protection Act of 1973 or
any other applicable law.


 


Notwithstanding
any other provision of this Agreement, the Agent may, in its sole and complete
discretion, waive (or extend the time for completion of) any requirement set
forth in this Section based upon such factors as it deems relevant, including
the value and/or marketability of the relevant property, the cost (including
legal fees, title insurance premiums, recording taxes and survey expenses) or
difficulty of recording a Mortgage on, or obtaining other items referred to
above with respect to, the relevant property, potential environmental
liabilities with respect to the relevant property and other matters considered
when selecting properties listed on Schedule 7.14).


 


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ARTICLE VIII


 


NEGATIVE COVENANTS


 


So
long as any Lender shall have any Commitment hereunder, or any Loan or other
Obligation (other than any contingent indemnification or similar obligation not
yet due and payable, and any Obligations arising under any Rate Swap Document
or Cash Management Agreement) shall remain unpaid or unsatisfied, or any Letter
of Credit (other than any Supported Letter of Credit) shall remain outstanding,
unless the Required Lenders waive compliance in writing:


 


8.01         Limitation on Liens. 
The Company shall not, and shall not permit any Material Subsidiary to,
directly or indirectly, make, create, incur, assume or suffer to exist any Lien
upon or with respect to any part of its property, whether now owned or
hereafter acquired, other than the following (“Permitted Liens”):


 


(a)           any Lien existing on property of the Company or any
Material Subsidiary on the Effective Date and set forth in Schedule 8.01
securing Indebtedness (or commitments therefor) outstanding  on such date;


 


(b)           any Lien created under any Loan Document, or any Rate Swap
Document or Cash Management Agreement to which a Guaranteed Creditor is a
party;


 


(c)           Liens for taxes, fees, assessments or other governmental
charges which are not delinquent for more than 90 days or remain payable
without penalty, or if and to the extent that non-payment thereof is permitted
by Section 7.07; provided that no notice of lien has been filed
or recorded under the Code;


 


(d)           carriers’, warehousemen’s, mechanics’, landlords’,
materialmen’s, repairmen’s or other similar Liens arising in the ordinary
course of business which are not delinquent or remain payable without penalty
or which are being contested in good faith and by appropriate proceedings,
which proceedings have the effect of preventing the forfeiture or sale of the
property subject thereto;


 


(e)           Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in connection
with workers’ compensation, unemployment and other insurance and other social
security legislation;


 


(f)            Liens on the property of the Company or its Material
Subsidiaries securing (i) the non-delinquent performance of bids, trade
contracts (other than for borrowed money), leases and statutory obligations,
(ii) Contingent Obligations in connection with Surety Bonds and appeal bonds,
and (iii) other non-delinquent obligations of a like nature, in each case,
incurred in the ordinary course of business (and treating as non-delinquent any
delinquency which is being contested in good faith and by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture or
sale of the property subject thereto);


 


(g)           Liens consisting of judgment or judicial attachment liens;
provided that the enforcement of such Liens is effectively stayed and
the obligations secured by all such Liens in 


 


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the aggregate at any time outstanding for the
Company and its Material Subsidiaries do not exceed the greater of (i)
$50,000,000 and (ii) 5% of the consolidated tangible assets of the Company and
its Subsidiaries;


 


(h)           easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the businesses of the Company and its Material
Subsidiaries;


 


(i)            any Lien on property and proceeds thereof existing at the
time of acquisition (by merger or otherwise) of such property by the Company or
a Material Subsidiary, and not created in contemplation of such acquisition; provided
that no such Lien shall extend to or cover additional types of property;


 


(j)            Liens to secure the payment of all or part of the
purchase price of property upon the acquisition of property by the Company or a
Material Subsidiary or to secure any Indebtedness incurred or guaranteed prior
to, at the time of, or within 120 days after the later of the date of
acquisition of such property and the date such property is placed in service,
for the purpose of financing all or any part of the purchase price thereof, or
Liens to secure any Indebtedness incurred or guaranteed for the purpose of financing
the cost to the Company or a Material Subsidiary of improvements to such
acquired property; provided, in each case, that (i) no such Lien shall
at any time encumber any property other than the property financed by such
Indebtedness and the proceeds thereof (provided that individual financings
permitted by this subsection (j) provided by one Person (or an Affiliate
thereof) may be cross-collateralized to other financings provided by such
Person and its Affiliates that are permitted by this subsection (j)) and
(ii) the Indebtedness secured thereby shall not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of
acquisition;


 


(k)           Liens securing Indebtedness or other obligations in
respect of capital leases on assets subject to such leases, provided that such
capital leases are otherwise permitted hereunder;


 


(l)            Liens arising solely by virtue of any statutory or common
law provision or otherwise created in the ordinary course of business relating
to banker’s liens, rights of set-off or similar rights and remedies as to
deposit accounts or other funds maintained with a creditor depository
institution, including to facilitate the operation of cash pooling, interest
set-off and/or sweep accounts; provided that (i) such deposit account is
not a dedicated cash collateral account and is not subject to restrictions
against access by the Company or any Material Subsidiary in excess of those set
forth by regulations promulgated by the FRB and (ii) such deposit account
is not intended by the Company or any Material Subsidiary to provide collateral
to the depository institution;


 


(m)          Liens on vehicles or related property securing obligations
under any Floor Plan Financing Facility incurred in the ordinary course of business;
provided that the aggregate principal amount of all obligations at any
time outstanding under all Floor Plan Financing Facilities after giving effect
to such incurrence does not exceed the total cost of the vehicles and equipment
securing such obligations;


 


91

















 


(n)           Liens on assets acquired with the proceeds of industrial
revenue bonds securing Indebtedness incurred or assumed to acquire such
property; provided that the obligations secured by such Liens do not
exceed in the aggregate at any time outstanding the greater of (i) $50,000,000
and (ii) 5% of the consolidated tangible assets of the Company and its
Subsidiaries;


 


(o)           Liens securing Securitization Obligations;


 


(p)           Liens securing reimbursement obligations incurred in the
ordinary course of business for letters of credit or banker’s acceptances,
which Liens encumber only goods, or documents of title covering goods, which
are purchased in transactions for which such letters of credit or banker’s
acceptances are issued;


 


(q)           Any extension, renewal or substitution of or for any Lien
permitted by subsection (a), (i), (j), (m), (n),
(o) or (s)(i) of this Section, to the extent that (i) the amount
of the Indebtedness or other obligation or liability secured by the applicable
Lien shall not exceed the Indebtedness or other obligation or liability
existing immediately prior to such extension, renewal or substitution and (ii)
the scope of the property subject to such Lien is not increased;


 


(r)            Liens on Lease Assets for which the applicable lessor is
not permitted by applicable law to hold title to such Lease Assets;


 


(s)           Liens securing (i) Permitted Acquired Debt and (ii)
obligations arising with respect to asset-backed commercial paper issued by the
Company and its Material Subsidiaries not to exceed in the aggregate at any one
time outstanding for clauses (i) and (ii) the greater of (x)
$50,000,000 and (y) 5% of the consolidated tangible assets of the Company and
its Subsidiaries;


 


(t)            Escrow rights of the Ministry of Defense of the United
Kingdom relative to drawings and other related intellectual property related to
the Company’s contracts with such Ministry;


 


(u)           Liens securing Indebtedness or other obligations of the
Company and its Material Subsidiaries not to exceed $35,000,000 in the
aggregate at any one time outstanding;


 


(v)           Liens in favor of customs or revenue authorities arising
as a matter of law to secure payment of customs duties in connection with the
importation of goods incurred in the ordinary course of business;


 


(w)          leases, subleases, licenses or sublicenses (including, in
the case of licenses and sublicenses, of intellectual property) granted to
others in the ordinary course of business which do not materially interfere
with the ordinary conduct of the business of the Company or any Material
Subsidiary and do not secure any Indebtedness;


 


(x)            Liens (i) of a collecting bank arising under Section
4-210 of the Uniform Commercial Code on items in the ordinary course of
collection, and (ii) encumbering reasonable customary initial deposits and
margin deposits and attaching to commodity trading accounts or other brokerage
accounts incurred in the ordinary course of business and not for speculative
purposes;


 


92

















 


(y)           any interest or title of (i) an owner of equipment or
inventory on loan or consignment to the Company or any of its Subsidiaries and
Liens arising from precautionary Uniform Commercial Code financing statement
filings made in respect of operating leases entered into by the Company or any
Subsidiary in the ordinary course of business; and (ii) a lessor or secured by
a lessor’s interest under any lease permitted hereunder;


 


(z)            options, put and call arrangements, rights of first
refusal and similar rights relating to Investments in joint ventures,
partnerships and the other similar Investments permitted to be made hereunder;


 


(aa)         contractual rights of set-off and similar rights securing
Swap Contracts so long as any related Indebtedness is permitted to be incurred
hereunder; and


 


(bb)         rights of first refusal, put, call and similar rights
arising in connection with repurchase agreements that constitute Investments
permitted hereunder.


 


Any
Lien permitted above on any property may extend to the identifiable proceeds of
such property.


 


8.02         Disposition of Assets.  The Company shall not, and shall not permit
any other Loan Party to, directly or indirectly, sell, assign, lease, convey,
transfer or otherwise dispose of (whether in one or a series of transactions)
any of its property (any such transaction, excluding, for the avoidance of
doubt, (i) any transfer of cash in the ordinary course of business, (ii) any
issuance by a Person of its own Equity Interests and (iii) any transfer by a
Pledgor of assets not constituting Collateral, a “Disposition”),
including accounts and notes receivable, with or without recourse, and the
Capital Stock in any Subsidiary, or enter into any agreement to do any of the
foregoing, except:


 


(a)           Dispositions of inventory in the ordinary course of
business and Dispositions of used, worn-out, obsolete or surplus assets
(including equipment);


 


(b)           Dispositions of equipment to the extent that such
equipment is exchanged for credit against the purchase price of similar
replacement equipment or the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement equipment;


 


(c)           Dispositions between and among Loan Parties, Dispositions
from any Subsidiary that is not a Loan Party to the Company or a Wholly-Owned
Subsidiary and Dispositions permitted by Section 8.03;


 


(d)           Dispositions of accounts receivable, lease receivables,
other financial assets and other rights and related assets pursuant to a
Permitted Securitization otherwise permitted by Section 8.05(a);


 


(e)           sale/leaseback transactions involving an aggregate
consideration not to exceed $50,000,000 after the date hereof;


 


(f)            the transfer of Lease Assets solely in connection with
Leasing Transactions;


 


93

















 


(g)           Dispositions of cash equivalents or short-term marketable
securities;


 


(h)           the granting of non-exclusive licenses of patents,
trademarks and copyrights by the Company or any Subsidiary and Dispositions of
technical data packages;


 


(i)            Dispositions identified on Schedule 8.02;


 


(j)            Dispositions of accounts receivable arising out of sales
by the Company or its Domestic Subsidiaries to Persons domiciled outside of the
United States, Dispositions of accounts receivable with extended terms and Dispositions
of defaulted accounts receivable without credit recourse in transactions that
do not constitute securitizations, in each case in the ordinary course of
business consistent with past practice;


 


(k)           Dispositions in the ordinary course of business of
tangible property as part of a like-kind exchange under Section 1031 of the
Code;


 


(l)            Dispositions in the ordinary course of business
consisting of the abandonment of intellectual property rights that, in the
reasonable good faith determination of the applicable Loan Party, are not
material to the conduct of its business;


 


(m)          Dispositions of property located outside of the United
States (and not moved outside the United States in anticipation of such
Disposition);


 


(n)           Dispositions to effectuate tax reorganizations otherwise
permitted by Section 8.06(e); and


 


(o)           Dispositions that are not permitted by the foregoing
provisions of this Section 8.02; provided that (i) any such
Disposition is made for fair market value; (ii) no Event of Default shall exist
at the time of or shall result from any such Disposition; and (iii) either (A)
such Disposition is a Material Disposition, at least 90% of the consideration
for such Disposition is payable in cash or cash equivalents and the Company has
notified the Agent prior to such Disposition that the Net Cash Proceeds thereof
(without any reduction pursuant to clause (a)(v) of the definition of
Net Cash Proceeds) shall be applied to prepay Term Loans in accordance with Section
2.11(d) or (B) the aggregate value of all assets disposed of by the Company
and its Subsidiaries pursuant to this subsection (o) (excluding
Dispositions described in the preceding clause (A)) (x) during any
fiscal year, beginning with the Company’s 2011 fiscal year, shall not exceed
the greater of (A) $200,000,000 and (B) 10% of the consolidated tangible assets
of the Company and its Subsidiaries as of the beginning of such fiscal year and
(y) after the Effective Date shall not exceed the greater of (A) $500,000,000
and (B) 25% of the consolidated tangible assets of the Company and its
Subsidiaries as reflected in the most recent financial statements delivered
pursuant to Section 7.01(a); provided that no Event of Default
under the foregoing clause  (x) or (y) shall result from any
Disposition to the extent such Disposition was permitted by this Section 8.02(o)
at the time such Disposition was made.


 


8.03         Consolidations and Mergers.  The Company shall not, and shall not permit
any other Loan Party to, merge with or consolidate with or into any Person,
except the Company or any other Loan Party may merge or consolidate with any
other Person so long as (a) at the time of such merger or consolidation, no
Default or Event of Default shall have occurred and be 


 


94

















 


continuing either before or after giving effect to
such transaction (determined in respect of Sections 8.10 and 8.11
on a pro forma basis as of the last day of the most recent fiscal quarter for
which the financial results or other amounts included in the covenant
calculations in such Sections are available), (b) if such transaction involves
the Company, the Company shall be the continuing or surviving corporation and
(c) subject to the last paragraph of this Section 8.03, (i) if such
transaction involves a Wholly-Owned Subsidiary (and does not involve the
Company), a Wholly-Owned Subsidiary shall be the continuing or surviving Person
and (ii) if such transaction involves a non-Wholly-Owned Material Subsidiary
(and does not involve the Company or a Wholly-Owned Subsidiary), a Material
Subsidiary shall be the continuing or surviving Person.


 


In
addition, any Disposition which would be permitted by Section 8.02 may
also be accomplished via a merger or consolidation of a Loan Party and such
merger or consolidation shall be permitted pursuant to this Section 8.03.


 


8.04         Restricted Investments.  The Company shall not:


 


(a)           make, or permit any Subsidiary to make, any Acquisition
that is not a Permitted Acquisition;


 


(b)           permit the aggregate amount of all Investments in joint
ventures or similar Persons (in each case, that are not Loan Parties and
excluding Permitted Investments) made by the Company and its Domestic
Subsidiaries to exceed $100,000,000 during any fiscal year; or


 


(c)           make, or permit any Domestic Subsidiary to make, any
Investment (other than Permitted Investments) in Foreign Subsidiaries that are
not Guarantors, unless, after giving effect to any such Investment, (i)
Available Liquidity shall be at least $200,000,000 and (ii) the aggregate amount
of such Investments made after the Effective Date shall not exceed $100,000,000
at any one time outstanding (provided that the limitation set forth in
this clause (c)(ii) shall not apply at any time that the Total Leverage
Ratio is less than or equal to 3.50 to 1.0).


 


For
purposes of clauses (b) and (c) above, “Investment” means,
with respect to any Person, any capital contribution (including by way of
forgiveness or capitalization of Indebtedness, but excluding (i) any
forgiveness of intercompany liabilities of a Subsidiary at the time of, or in
contemplation of, a Material Disposition, and (ii) the write-off or
write-down of intercompany liabilities in cases where the tax benefit of such a
write-off or write-down to the Person making such write-off or write-down would
exceed the fair market value of such intercompany liabilities to such Person,
as reasonably determined by the Company) made by such Person to any other
Person, any loan or advance made by such Person to any other Person, the
issuance by such Person of any Guaranty Obligation with respect to financial
obligations of any other Person or any other transaction having substantially
the same economic effect as any of the foregoing, excluding (a) any sale or
lease of goods or the performance of any services on arm’s length terms and (b)
the performance of services customarily provided by a parent company to its
Subsidiaries in the ordinary course of business on terms substantially
consistent with the past practice of the Company and the other Loan Parties.  The amount of any Investment shall be (i) in
the case of a capital contribution, the amount thereof (determined, in the case
of a non-cash capital contribution, based upon the fair market value of the
contributed property on the 


 


95

















 


date
of such contribution as reasonably determined by the Company), reduced by the
amount of any cash equity return, (ii) in the case of a loan or advance, the
amount thereof, reduced by cash repayments of loans and advances (and without
regard to any write-down or write-off thereof, other than any write-down or
write-off described in the first sentence of this paragraph) and (iii) in the
case of a Guaranty Obligation, the amount determined in accordance with the
definition of “Contingent Obligation”, reduced by any reduction in amount of
Guaranty Obligations with respect to joint ventures or similar entities and/or
Foreign Subsidiaries that are not Guarantors.


 


8.05         Indebtedness; Securitizations.  The Company shall not, and shall not permit
any Material Subsidiary to, create, incur, assume, suffer to exist or otherwise
become or remain directly or indirectly liable with respect to any
Indebtedness, other than:


 


(a)           (i) Permitted Securitizations; provided that the
aggregate amount of all Permitted Securitizations entered into by the Company
and the Guarantors after the Effective Date shall not at any one time exceed
$250,000,000; and (ii) obligations (contingent or otherwise) of the Company or
any such Material Subsidiary existing or arising under any Swap Contract
permitted under Section 8.12;


 


(b)           solely with respect to the Material Subsidiaries, (i)
Indebtedness arising under the Loan Documents; (ii) unsecured Permitted
Acquired Debt; (iii) Indebtedness existing on the Effective Date and listed on Schedule
8.05; (iv) unsecured Indebtedness to the extent included in calculating
Contingent Obligations by operation of clause (v) of the last sentence
of the definition thereof; and (v) refinancings, extensions or renewals of Indebtedness
(and Guaranty Obligations in respect thereof) described in the foregoing clauses
(i) through (iv); provided that, in the case of the foregoing
clauses (ii) and (iii), the principal amount thereof is not
increased); and provided, further, that (A) the Domestic
Subsidiaries may collectively have (x) Floor Plan Financing Facilities (to the
extent constituting Indebtedness) in an aggregate outstanding principal amount
not at any time exceeding $25,000,000 and (y) other Indebtedness (excluding
Indebtedness under Floor Plan Financing Facilities) in an aggregate outstanding
principal amount not at any time exceeding $50,000,000 (subject to the
limitations on secured Indebtedness under Section 8.01); and (B) the
Material Foreign Subsidiaries may collectively have Indebtedness in an
aggregate outstanding principal amount not at any time exceeding $50,000,000
(subject to the limitations on secured Indebtedness under Section 8.01);
and


 


(c)           solely with respect to the Company, (i) Indebtedness
arising under the Loan Documents, (ii) other Indebtedness secured by Liens
permitted under Section 8.01; and (iii) unsecured Indebtedness; provided
that (A) if such unsecured Indebtedness is in an aggregate principal amount in
excess of $50,000,000, the stated maturity date for such unsecured Indebtedness
shall not occur prior to the date that is 90 days after the later to occur of
the dates set forth in clause (a) of the definitions of “Revolving
Maturity Date” and “Term A Maturity Date”, and (B) immediately after giving effect
to the incurrence of any such unsecured Indebtedness, the Company shall be in
compliance with the financial covenants set forth in Sections 8.09, 8.10
and, if applicable, 8.11, in each case on a pro forma basis.


 


8.06         Transactions with Affiliates.  The Company shall not, and shall not permit
any other Loan Party (other than any Pledgor) to, enter into any transaction
with any Affiliate of the Company (other than another Loan Party), except upon
fair and reasonable terms no less 


 


96

















 


favorable to the Company or such other Loan Party
would obtain in a comparable arm’s-length transaction with a Person not an
Affiliate of the Company or such other Loan Party and except for the following:


 


(a)           any employment or severance agreement and any amendment
thereto entered into by the Company or any other Loan Party in the ordinary
course of business;


 


(b)           transactions between the Company or any other Loan Party
and any Leasing Subsidiary (including the contribution of overhead costs
consistent with past practice) in the ordinary course of business;


 


(c)           the payment of reasonable directors’ fees and benefits; provided
that the amount of such fees and benefits paid to any Affiliate does not exceed
the amount of such fees and benefits paid to any Person that is not otherwise
an Affiliate of the Company;


 


(d)           the provision of officers’ and directors’ indemnification
and insurance in the ordinary course of business to the extent permitted by
applicable law;


 


(e)           subject to Sections 7.12 and 8.03,
reorganizations of Subsidiaries consummated for the purpose of reducing tax
obligations of the Company and its Subsidiaries, so long as the aggregate value
of assets owned by the Company and its Domestic Subsidiaries is not materially
decreased as a result thereof;


 


(f)            non-interest bearing intercompany loans or other advances
in the ordinary course of business and consistent with past practice;


 


(g)           the payment of employee salaries, bonuses and employee
benefits in the ordinary course of business (including the payment of
commissions on behalf of any Leasing Subsidiary by the Company or any other
Loan Party consistent with past practices and in the ordinary course of
business);


 


(h)           sales or leases of goods to Affiliates in the ordinary
course of business for less than fair market value, but for not less than cost;


 


(i)            any transaction permitted under Section 8.03, any
Investment permitted under Section 8.04 and any Restricted Payment
permitted under Section 8.08;


 


(j)            any contribution of capital to the Company; and


 


(k)           transactions effected as part of a Permitted
Securitization.


 


8.07         Burdensome Agreements.  The Company shall not, and shall not permit
any Domestic Subsidiary (excluding any Leasing Subsidiary or any Securitization
Subsidiary) to, be a party to any Contractual Obligation (other than (x) this
Agreement or any other Loan Document and (y) any financial covenant in any
other agreement evidencing Indebtedness permitted hereunder) that (a) limits
the ability (i) of any Domestic Subsidiary to make Restricted Payments to the
Company or any Guarantor or to make an equity investment in the Company or any
Guarantor, except for any agreement in effect (A) on the date hereof and set
forth on 


 


97

















 


Schedule 8.07 (including any amendment
thereto that is not prohibited by any Loan Document so long as such agreement,
as so amended, is no more materially restrictive with respect to such
limitation than such agreement prior to giving effect to such amendment) or (B)
at the time any Domestic Subsidiary becomes a Subsidiary of the Company, so
long as such agreement was not entered into solely in contemplation of such
Person becoming a Subsidiary of the Company; (ii) of any Domestic Subsidiary to
guarantee any of the Obligations or Guaranteed Obligations or (iii) of the
Company or any Domestic Subsidiary to create, incur, assume or suffer to exist
Liens on property of such Person to secure any of the Obligations or Guaranteed
Obligations or to transfer property of such Person to the Company or any
Guarantor (such limitation, a “Negative Pledge”); provided that
this clause (iii) shall not prohibit any Negative Pledge incurred or
provided in favor of any holder of obligations secured by a Lien permitted
under Section 8.01(e), (f), (g), (i), (j), (k),
(m), (n) or (o) solely to the extent any such Negative
Pledge relates to (A) the property subject to such Lien; (B) the agreement
giving rise to such Negative Pledge but only to the extent, and for so long as,
such Negative Pledge is not terminated or rendered ineffective by the Uniform
Commercial Code or any other applicable law; and/or (C) the proceeds of the
foregoing; provided  further, that the foregoing shall not apply
to Contractual Obligations that (i) are customary provisions in joint venture
agreements and other similar agreements applicable to joint ventures permitted
under Section 8.04 and applicable solely to such joint venture entered
into in the ordinary course of business; (ii) are customary restrictions in
leases, subleases, licenses or asset sale agreements otherwise permitted
hereunder so long as such restrictions relate solely to the assets or entities
subject thereto; (iii) are customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of the Company or any
such Subsidiary; (iv) are restrictions on cash or other deposits imposed by
customers under contracts entered into in the ordinary course of business and
not otherwise prohibited hereunder; or (v) arise solely as a result of a
Requirement of Law or (b) requires the grant of a Lien to secure an obligation
of such Person if a Lien is granted to secure any of the Obligations or
Guaranteed Obligations.


 


8.08         Restricted Payments; Prepayment of Subordinated
Indebtedness.  (a) The Company shall
not, and shall not permit any Subsidiary to, declare or make any Restricted
Payment (other than (1) dividends and distributions payable solely in common
stock of the Company or in rights or options to acquire such common stock, (2)
cash payments in lieu of issuance of fractional shares in connection with the
exercise of warrants, options or other securities convertible into or
exchangeable for Equity Interests of the Company on any of its Subsidiaries,
and (3) that portion of any cash payment actually made by the Company or such
Subsidiary representing the “strike price” for any stock option, warrant or
other convertible or exchangeable security payable by the holder thereof, but
only to the extent such “strike price” was actually received by the Company or
such Subsidiary and no netting of such payment was made by the Company or such
Subsidiary, in each case, prior to the Company or such Subsidiary making any
cash payment in respect of such stock option, warrant or other convertible or
exchangeable security); provided that (i) any Subsidiary may make such
Restricted Payments to the Company or to another Subsidiary; and (ii) so long
as no Event of Default exists or would result therefrom, the Company and its
Subsidiaries may make other such Restricted Payments in an aggregate amount not
exceeding (A) $50,000,000 during any fiscal year (pro rated for the portion of
the fiscal year during which the Effective Date occurs) plus the
positive result of (x) 25% of the cumulative net income of the Company and its
consolidated Subsidiaries for all fiscal quarters ending after the Effective
Date minus (y) the cumulative amount of all such Restricted 


 


98

















 


Payments made in any fiscal year ending after the
Effective Date that exceeded $50,000,000, plus (B)(1) for each of the
first four fiscal quarters ending after the Effective Date, $25,000,000 per
fiscal quarter (provided, that any portion of such amount for any such
fiscal quarter, if not actually used as a Restricted Payment under this clause
(ii) of the proviso to Section 8.08(a) in the fiscal quarter for
which it is permitted, may be carried over for use as Restricted Payments
hereunder in successive fiscal quarters through (and including) the fiscal
quarter ending September 30, 2011); and (2) thereafter, $100,000,000 for the
most recently ended period of four fiscal quarters (not including the amount of
Restricted Payments made pursuant to clause (A)), in each case provided
that the Leverage Ratio as of the last day of the most recently ended fiscal
quarter for which financial statements have been delivered pursuant to Section
7.01 was less than 2.0 to 1.0;


 


(b)           The Company shall not, and shall not permit any Subsidiary
to, make any payment with respect to Indebtedness that is expressly subordinate
to the Obligations or to any other senior Indebtedness of the Company or such
Subsidiary if a Default or an Event of Default exists or would result
therefrom.


 


8.09         Leverage Ratio. 
The Company shall not permit the Leverage Ratio as of the last day of
any fiscal quarter to be greater than (a) 3.75 to 1.0, during any Collateral
Release Period, or (b) 4.50 to 1.0 at any other time.


 


8.10         Interest Coverage Ratio.  The Company shall not permit the Interest
Coverage Ratio as of the last day of any fiscal quarter to be less than 2.50 to
1.0.


 


8.11         Senior Secured Leverage Ratio.  Except during any Collateral Release Period
(during which period this Section 8.11 shall not apply), the Company
shall not permit the Senior Secured Leverage Ratio as of the last day of any
fiscal quarter shown below to be greater than the applicable ratio set forth
opposite such quarter:


 


	
  Fiscal Quarter(s) Ending

  	
   

  	
  Maximum Senior Secured

  Leverage Ratio

  
	
  September 30, 2010; December 31, 2010; March 31, 2011; June 30, 2011;
  and September 30, 2011

  	
   

  	
  3.25 to 1.0

  
	
  December 31, 2011; March 31, 2012; June 30, 2012; and September 30,
  2012

  	
   

  	
  3.00 to 1.0

  
	
  December 31, 2012 and thereafter

  	
   

  	
  2.75 to 1.0

  



 


8.12         Swap Contracts. 
The Company shall not, and shall not permit any Subsidiary to, enter
into any Swap Contract, other than Swap Contracts incurred to hedge bona fide
business risks and not for speculative purposes.


 


99
















 


ARTICLE IX


 


EVENTS OF
DEFAULT


 


9.01        Event
of Default.  Any of the following
shall constitute an “Event of Default”:


 


(a)           Non-Payment.  Any Borrower fails to pay (i) when and
as required to be paid herein, any amount of principal of any Loan or of any
L/C Obligation, or (ii) within five days after the same becomes due, any
interest, fee or any other amount payable hereunder or under any other Loan
Document; or


 


(b)           Representation
or Warranty.  Any representation or
warranty by any Loan Party made or deemed made herein or in any other Loan
Document, or contained in any certificate, document or financial or other
statement by any Loan Party or any Responsible Officer, furnished at any time
under this Agreement, or in or under any other Loan Document, is incorrect in
any material respect on or as of the date made or deemed made; or


 


(c)           Specific
Defaults.  The Company fails to
perform or observe any term, covenant or agreement (i) contained in Section 8.01
and such failure continues unremedied for five Business Days after a
Responsible Officer has knowledge thereof or (ii) contained in Section 7.03(a),
in clause (B)(II) of the proviso to the first sentence of Section 7.13(a) or
in any provision of Article VIII (other than Section 8.01);
or


 


(d)           Other
Defaults.  The Company or any other
Loan Party fails to perform or observe any other term or covenant contained in
this Agreement or any other Loan Document to which such Person is a party, and
such default shall continue unremedied for a period of 30 days after the date
upon which written notice thereof is given to the Company by the Agent or any
Lender; or


 


(e)           Cross-Default.  Any Loan Party (i) fails to make any
payment in respect of any Indebtedness or Guaranty Obligation (including
Indebtedness in respect of Swap Contracts), having an aggregate principal
amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) in
excess of the Threshold Amount when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) and such failure
continues after the applicable grace or notice period, if any, specified in the
relevant document on the date of such failure; or (ii) fails to perform or
observe any other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any such
Indebtedness or Guaranty Obligation, and such failure continues after the
applicable grace or notice period, if any, specified in the relevant document
on the date of such failure if the effect of such failure, event or condition
is to cause, or to permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable, or to be required to be
repurchased, prior to its stated maturity, or such Guaranty Obligation to
become payable or cash collateral in respect thereof to be demanded; or


 


100

















 


(f)            Insolvency;
Voluntary Proceedings.  Any Loan
Party (i) ceases or fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject
to applicable grace periods, if any, whether at stated maturity or otherwise;
(ii) voluntarily ceases to conduct its business in the ordinary course;
(iii) commences any Insolvency Proceeding with respect to itself; or (iv) takes
any action to effectuate or authorize any of the foregoing; or


 


(g)           Involuntary
Proceedings.  (i) Any
involuntary Insolvency Proceeding is commenced or filed against any Loan Party,
or any writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of any Loan Party’s properties, and
any such proceeding or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded within 60 days after commencement, filing or levy; (ii) any
Loan Party admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-U.S.
law) is ordered in any Insolvency Proceeding; or (iii) the Company or any
Loan Party acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its property or business;
or


 


(h)           ERISA.  (i) An ERISA Event shall occur with
respect to a Pension Plan or, to the knowledge of the Company, Multiemployer
Plan which has resulted or could reasonably be expected to result in liability
of the Company or any ERISA Affiliate under Title IV of ERISA to such Pension
Plan or Multiemployer Plan or to the PBGC in an aggregate amount for all such
Pension Plans and Multiemployer Plans in excess of the Threshold Amount; or
(ii) the Company or any ERISA Affiliate shall fail to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or


 


(i)            Judgments.  (i) One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards is entered
against the Company or any Subsidiary and known to a Responsible Officer
involving in the aggregate a liability (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage) as to any single or related series of transactions, incidents or
conditions, in excess of the Threshold Amount, or (ii) one or more
non-monetary final judgments is entered against the Company or any Subsidiary
that has, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case the same shall remain
unsatisfied, unvacated and unstayed pending appeal or otherwise for a period of
30 days after the entry thereof; or


 


(j)            Change
of Control.  There occurs any Change
of Control; or


 


(k)           Invalidity
of Loan Documents.  Any Loan Document
is for any reason partially (including with respect to future advances) or
wholly revoked or invalidated, or otherwise ceases to be in full force and
effect (other than in accordance with its terms); any Loan Party (or any Person
acting on behalf of any Loan Party) contests in any manner the validity or
enforceability of any Loan Document to which it is a party or denies that it
has any further liability or


 


101

















 


obligation thereunder; any Loan Party (or any
Person acting on behalf of any Loan Party) contests in any manner the validity,
perfection or priority of any Lien on a material portion of the Collateral
purported to be covered thereby; or any Collateral Document after delivery
thereof shall for any reason (other than pursuant to the terms thereof) cease
to create a valid and perfected first priority Lien (subject to Liens permitted
by Section 8.01) on a material portion of the Collateral purported
to be covered thereby.


 


9.02        Remedies.  If any Event of Default has occurred and is
continuing, the Agent shall, at the request of, or may, with the consent of,
the Required Lenders:


 


(a)           declare
the Commitments of the applicable Lenders to make Loans and any obligation of
the Issuers to Issue Letters of Credit to be terminated, whereupon such
Commitments and obligation shall be terminated;


 


(b)           declare
an amount equal to the Dollar Equivalent of the maximum aggregate amount that
is or at any time thereafter may become available for drawing under any
outstanding Letters of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letters of Credit) to be immediately due
and payable, and declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by each Borrower;


 


(c)           require
that the Company Cash Collateralize the L/C Obligations, the Swing Line Loans
and the Fronted Offshore Currency Loans (in an amount equal to the then
outstanding amount thereof); and


 


(d)           exercise
on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents or applicable law;


 


provided that upon the occurrence of any event
specified in subsection (f) or (g) of Section 9.01
with respect to the Company (or, in the case of clause (i) of subsection
(g) upon the expiration of the 60-day period mentioned therein), any
obligation of each Lender to make Loans and any obligation of each Issuer to
Issue Letters of Credit shall automatically terminate and the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable without further act of the Agent,
any Issuer or any Lender.


 


9.03        Rights
Not Exclusive.  The rights provided
for in this Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by law
or in equity, or under any other instrument, document or agreement now existing
or hereafter arising.


 


102

















 


ARTICLE X


 


THE AGENT


 


10.01      Appointment
and Authority.  Each of the Lenders
and the Issuers hereby irrevocably appoints Bank of America to act on its
behalf as the Agent hereunder and under the other Loan Documents and authorizes
the Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto.  The provisions of this Article are
solely for the benefit of the Agent, the Lenders and the Issuers, and neither
the Company nor any other Loan Party shall have rights as a third party
beneficiary of any of such provisions.


 


10.02      Rights
as a Lender.  The Person serving as
the 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
Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly
indicated or unless the context otherwise requires, include the Person serving
as the Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the
Company or any Subsidiary or other Affiliate thereof as if such Person were not
the Agent hereunder and without any duty to account therefor to the Lenders.


 


10.03      Exculpatory
Provisions.  The Agent shall not have
any duties or obligations except those expressly set forth herein and in the
other Loan Documents.  Without limiting
the generality of the foregoing, the Agent:


 


(a)           shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default or an Event of Default has occurred and is continuing;


 


(b)           shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Agent is required to
exercise as directed in writing by the Required Lenders (or such other number
or percentage of the Lenders as shall be expressly provided for herein or in
the other Loan Documents); provided that the Agent shall not be required
to take any action that, in its opinion or the opinion of its counsel, may
expose the Agent to liability or that is contrary to any Loan Document or
applicable law; and


 


(c)           shall
not, except as expressly set forth herein and in the other Loan Documents, 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 Affiliates that is
communicated to or obtained by the Person serving as the Agent or any of its
Affiliates in any capacity.


 


The Agent shall not be liable for any action taken or not taken by it
(i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Agent shall believe in good faith shall be necessary, under the circumstances
as provided in Sections 9.02 and 11.01) or (ii) in the
absence of its own gross negligence or willful misconduct.  The Agent shall be deemed not to have
knowledge of any


 


103

















 


Default or Event of Default unless and until notice describing such
Default or Event of Default is given to the Agent by the Company, a Lender or
an Issuer.


 


The 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 this Agreement or any other Loan Document; (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith; (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default or Event of
Default; (iv) the validity, enforceability, effectiveness or genuineness
of this Agreement, any other Loan Document or any other agreement, instrument
or document; or (v) the satisfaction of any condition set forth in Article V
or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Agent.


 


10.04      Reliance
by Agent.  The 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 (including any electronic message, Internet or intranet website
posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person.  The Agent also may rely upon any statement
made to it orally or by telephone and believed by it to have been made by the
proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Lender or an Issuer,
the Agent may presume that such condition is satisfactory to such Lender or
such Issuer unless the Agent shall have received notice to the contrary from
such Lender or such Issuer prior to the making of such Loan or the issuance of
such Letter of Credit.  The Agent may
consult with legal counsel (who may be counsel for the Company), 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.


 


10.05      Delegation
of Duties.  The Agent may perform any
and all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub agents appointed by the
Agent.  The Agent and any such sub agent
may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. 
The exculpatory provisions of this Article shall apply to any such
sub agent and to the Related Parties of the 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 Agent.


 


10.06      Resignation
of Agent.  The Agent may at any time
give notice of its resignation to the Lenders, the Issuers and the
Company.  Upon receipt of any such notice
of resignation, the Required Lenders shall have the right, with the consent of
the Company (which consent shall not be unreasonably withheld or delayed and
which consent shall not be required during the existence of an Event of
Default), to appoint a successor, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United
States.  If no such successor shall have
been so appointed by the Required Lenders and consented to by the Company (such
consent not to be unreasonably withheld or delayed) and shall have accepted
such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the


 


104

















 


retiring Agent may on behalf of the Lenders
and the Issuers, appoint a successor Agent meeting the qualifications set forth
above; provided that if the Agent shall notify the Company and the
Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or
through the Agent shall instead be made by or to each Lender and each Issuer
directly, until such time as the Required Lenders appoint a successor Agent as
provided for above in this Section.  Upon
the acceptance of a successor’s appointment as Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Agent, and the retiring Agent shall be
discharged from all of its duties and obligations hereunder or under the other
Loan Documents (if not already discharged therefrom as provided above in this
Section).  The fees payable by the
Company to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Company and such
successor.  After the retiring Agent’s
resignation hereunder and under the other Loan Documents, the provisions of
this Article and Section 11.04 shall continue in effect
for the benefit of such retiring 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 the retiring Agent was acting as Agent.


 


Any resignation by Bank of America as Agent pursuant to this Section shall
also constitute its resignation as an Issuer and Swing Line Lender.  Upon the acceptance of a successor’s
appointment as Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the
retiring Issuer and Swing Line Lender, (b) the retiring Issuer and Swing
Line Lender shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents, and (c) the
successor Issuer shall issue letters of credit in substitution for the Letters
of Credit, if any, outstanding at the time of such succession or make other
arrangement satisfactory to the retiring Issuer to effectively assume the
obligations of the retiring Issuer with respect to such Letters of Credit.


 


10.07      Non-Reliance
on Agent and Other Lenders.  Each
Lender and each Issuer acknowledges that it has, independently and without
reliance upon the Agent or any other Lender or any of their Related Parties 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 and each Issuer also acknowledges
that it will, independently and without reliance upon the Agent or any other
Lender or any of their Related Parties 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 this
Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.


 


10.08      No
Other Duties, Etc.  Anything
herein to the contrary notwithstanding, no Person listed on the cover page hereof
or elsewhere herein as a Co-Lead Arranger, the Syndication Agent or a
Co-Documentation Agent shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as a Lender or an Issuer hereunder.


 


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10.09      Agent
May File Proofs of Claim.  In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Agent (irrespective of whether the
principal of any Loan or L/C Obligation shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the Agent
shall have made any demand on the Company) shall be entitled and empowered, by
intervention in such proceeding or otherwise


 


(a)           to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders, the Issuers and the
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the Issuers and the Agent and their
respective agents and counsel and all other amounts due the Lenders, the
Issuers and the Agent under Sections 2.14, 3.08 and 11.04)
allowed in such judicial proceeding; and


 


(b)           to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


 


and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Lender and each Issuer to make such payments to the
Agent and, if the Agent shall consent to the making of such payments directly
to the Lenders and the Issuers, to pay to the Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Agent and
its agents and counsel, and any other amounts due the Agent under Sections
2.14 and 11.04.


 


Nothing contained herein shall be deemed to authorize the Agent to
authorize or consent to or accept or adopt on behalf of any Lender or any
Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the Agent
to vote in respect of the claim of any Lender in any such proceeding.


 


10.10      Collateral
and Guaranty Matters.  The Agent
shall, and the Lenders and the Issuers irrevocably authorize the Agent to, at
the sole cost and expense of the Company:


 


(a)           release
any Lien on any property granted to or held by the Agent under any Loan
Document (i) upon termination of the Revolving Commitments and payment in
full in cash of all Obligations (other than contingent indemnification
obligations, and any Obligations arising under any Rate Swap Document or Cash
Management Agreement) and the expiration or termination of all Letters of Credit
(other than Supported Letters of Credit), (ii) that is Disposed of or to
be Disposed of as part of or in connection with any Disposition or Investment
permitted hereunder or under any other Loan Document, (iii) subject to Section 11.01,
if approved, authorized or ratified in writing by the Required Lenders or (iv) pursuant
to Section 7.13(d);


 


(b)           subordinate
any Lien on any property granted to or held by the Agent under any Loan
Document to the holder of any Lien on such property that is permitted by Section 8.01(j) or
(k); and


 


(c)           release
any Guarantor from its obligations under the Subsidiary Guaranty if, after
giving effect to such release, the Company is in compliance with Section 7.12.


 


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Upon request by the Agent at any time, the Required Lenders will
confirm in writing the Agent’s authority to release or subordinate its interest
in particular types or items of property, or to release any Guarantor from its
obligations under the Subsidiary Guaranty pursuant to this Section 10.10.


 


10.11      Withholding
Tax.  (a)(i)  If any Lender is a
“foreign corporation, partnership or trust” within the meaning of the Code (a “Foreign
Lender”) and such Lender claims exemption from, or a reduction of, U.S.
withholding tax under Sections 1441 or 1442 of the Code, such Lender agrees
with and in favor of the Agent and the Company, to deliver to the Agent and the
Company:


 


(A)          if
such Lender claims an exemption from, or a reduction of, withholding tax under
a United States tax treaty, two properly completed and executed copies of IRS
Form W-8BEN before the payment of any interest in the first calendar year
and before the payment of any interest in each third succeeding calendar year
during which interest may be paid under this Agreement;


 


(B)          if
such Lender claims that interest paid under this Agreement is exempt from
United States withholding tax because it is effectively connected with a United
States trade or business of such Lender, two properly completed and executed
copies of IRS Form W-8ECI before the payment of any interest is due in the
first taxable year of such Lender and in each succeeding taxable year of such
Lender during which interest may be paid under this Agreement; and


 


(C)          such
other form or forms as may be required under the Code or other laws of the
United States as a condition to exemption from, or reduction of, United States
withholding tax.


 


Each such Lender agrees to promptly notify the Agent and the Company of
any change in circumstances which would modify or render invalid any claimed
exemption or reduction.


 


(ii)           If
any Foreign Lender claims exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of
“portfolio interest”, such Lender agrees with and in favor of the Agent and the
Company to deliver to the Agent and the Company a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Lender delivers
a Form W-8, a certificate representing that such Lender is not a “bank”
for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code)
of the Company and is not a controlled foreign corporation related to the
Company (within the meaning of Section 864(d)(4) of the Code)).


 


(b)           If
any Lender claims exemption from, or reduction of, withholding tax under a
United States tax treaty by providing IRS Form W-8BEN and such Lender
sells, assigns, grants a participation in, or otherwise transfers all or part
of the Obligations of the Borrowers owing to such Lender, such Lender agrees to
notify the Agent of the percentage amount in which it is no longer the
beneficial owner of such Obligations.  To
the extent of such percentage amount, the Agent will treat such Lender’s IRS Form W-8BEN
as no longer valid.


 


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(c)           If
any Lender claiming exemption from United States withholding tax by filing IRS
Form W-8ECI with the Agent sells, assigns, grants a participation in, or
otherwise transfers all or part of the Obligations of the Borrowers owing to
such Lender, such Lender agrees to undertake sole responsibility for complying
with the withholding tax requirements imposed by Sections 1441 and 1442 of the
Code.


 


(d)           If
any Lender is entitled to a reduction in the applicable withholding tax, the
Agent may withhold from any interest payment to such Lender an amount
equivalent to the applicable withholding tax after taking into account such
reduction.  However, if the forms or
other documentation required by subsection (a) of this Section are
not delivered to the Agent, then the Agent may withhold from any interest
payment to such Lender not providing such forms or other documentation an
amount equivalent to the applicable withholding tax imposed by Sections 1441
and 1442 of the Code, without reduction.


 


(e)           If
the IRS or any other Governmental Authority of the United States or other
jurisdiction asserts a claim that the Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form
was not delivered or was not properly executed, or because such Lender failed
to notify the Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason)
such Lender shall indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the amounts payable to
the Agent under this Section, together with all costs and expenses (including
Attorney Costs).  The obligation of the
Lenders under this subsection shall survive the payment of all Obligations and
the resignation or replacement of the Agent.


 


10.12      Cash
Management Agreements and Rate Swap Documents.  No Guaranteed Creditor (in its capacity as a
party to a Cash Management Agreement and/or Rate Swap Document) that obtains
the benefits of the remedies and application of proceeds provisions contained
in any Loan Document by virtue of the provisions hereof shall have any right to
notice of any action or to consent to, direct or object to any action hereunder
or under any other Loan Document or otherwise in respect of the Collateral
(including the release or impairment of any Collateral) other than in its
capacity as a Lender and, in such case, only to the extent expressly provided
in the Loan Documents.  Notwithstanding
any other provision of this Article X to the contrary, the Agent
shall not be required to verify the payment of, or that other satisfactory
arrangements have been made with respect to, Obligations arising under Cash
Management Agreements and Rate Swap Documents unless the Agent has received
written notice of such Obligations, together with such supporting documentation
as the Agent may request, from the applicable Lender (or Affiliate thereof)
that is party to such Cash Management Agreement or Rate Swap Document, as
applicable and as the case may be.


 


ARTICLE XI


 


MISCELLANEOUS


 


11.01      Amendments
and Waivers.  Except as expressly
provided elsewhere in any Loan Document, no amendment or waiver of any
provision of this Agreement or any other Loan


 


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Document, and no consent with respect to any
departure by the Company or any other Loan Party therefrom, shall be effective
unless the same shall be in writing and signed by the Required Lenders (or by
the Agent at the written request of the Required Lenders) and the Company and
acknowledged by the Agent, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided that:


 


(a)           no
such waiver, amendment, or consent shall, unless in writing and signed by each
Lender directly affected thereby and the Company and acknowledged by the Agent,
do any of the following:


 


(i)            increase
or extend the Commitment of such Lender (or reinstate any Commitment of such
Lender terminated pursuant to Section 9.02), except as otherwise
provided in Sections 2.20 and 2.21 with respect to increases or
extensions of the Commitments;


 


(ii)           postpone
or delay any date fixed by this Agreement or any other Loan Document for any
payment of principal, interest, fees, reimbursement obligations with respect to
Letters of Credit or other amounts due to such Lender hereunder or under any
other Loan Document, including any mandatory prepayment required pursuant to Section 2.11(a) or
(b), or reduce any scheduled or mandatory payment of principal of any
Loan; or


 


(iii)          reduce
or forgive the principal of, or the rate of interest specified herein on any
Loan, any reimbursement obligations with respect to Letters of Credit or
(subject to clause (ix) of the last paragraph of this Section 11.01)
any fees or other amounts payable hereunder or under any other Loan Document;
and


 


(b)           no
such waiver, amendment or consent shall, unless in writing and signed by each
Lender and the Company and acknowledged by the Agent, do any of the following:


 


(i)            reduce
the percentage specified in the definition of “Required Lenders” or the
definition of “Total Percentage”;


 


(ii)           amend
this Section, Section 2.18 or any provision herein providing for
consent or other action by all Lenders; or


 


(iii)          except
pursuant to the Holdco Reorganization, release OSK from its obligations under Article XII;


 


(iv)          release
all or substantially all of the Guarantors from their obligations under the
Subsidiary Guaranty (other than pursuant to a transaction expressly permitted
hereunder) or amend or consent to any waiver of Section 7.12 in a
manner that would adversely affect any Lender; or


 


(v)           release
all or substantially all of the collateral subject to the Collateral Documents,
except pursuant to Section 7.13(d);


 


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and, provided, further, that (i) no amendment,
waiver or consent shall affect the rights or duties of any Issuer under this
Agreement or any L/C-Related Document relating to any Letter of Credit Issued
or to be Issued by it without the written consent of such Issuer; (ii) no
amendment, waiver or consent shall affect the rights or duties of the Agent
under this Agreement or any other Loan Document without the written consent of
the Agent; (iii) no amendment, waiver or consent shall affect the rights
or duties of the Swing Line Lender under this Agreement or any other Loan
Document without the written consent of the Swing Line Lender; (iv) no
amendment, waiver or consent shall affect the rights or duties of any Fronting
Lender under this Agreement or any other Loan Document without the written
consent of such Fronting Lender; (v) no amendment, waiver or consent shall
(A) change the definition of “Supported Letter of Credit” or (B) change
the provisions of Section 3.01(c) or Section 3.07
without, in each case, the written consent of the Required Revolving Lenders;
(vi) no amendment, waiver or consent shall obligate any Revolving Lender
to make a Revolving Loan during the existence of an Event of Default without
the written consent of the Required Revolving Lenders; (vii) no change,
directly or indirectly, in the definition of “Required Revolving Lenders”,
“Required Term Lenders”, “Required Term A Lenders” or “Required Add-On Term
Lenders” shall be effective unless in writing and signed by each Revolving
Lender, each Term Lender (in the case of any amendment to “Required Term
Lenders”) or each Term Lender under the applicable Term Facility (in the case
of any amendment to either “Required Term A Lenders” or “Required Add-On Term
Lenders”), respectively; (viii) no amendment, waiver or consent shall
modify the allocation of any payment between the Term Loans without the consent
of the Required Term Lenders; and (ix) any Rate Swap Document, any Cash
Management Agreement and the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed by the parties thereto.  Notwithstanding the foregoing, upon the
execution and delivery of all documentation required by Section 2.20
or 2.21, as applicable, to be delivered in connection with an increase
to the Revolving Commitments or Term Commitments, this Agreement and each other
applicable Loan Document (if any) shall be deemed amended without further
action by any party to reflect, as applicable, the new Lenders and their new
Commitments and any increase in the Commitment of any existing Lender.


 


Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent
hereunder (and any amendment, waiver or consent which by its terms requires the
consent of all Lenders or each affected Lender may be effected with the consent
of the applicable Lenders other than Defaulting Lenders), except that (x) the
Commitment of any Defaulting Lender may not be increased or extended without
the consent of such Lender and (y) any waiver, amendment or modification
requiring the consent of all Lenders or each affected Lender that by its terms
affects any Defaulting Lender more adversely (other than as a result of the
relative size of its Commitment) than other affected Lenders shall require the
consent of such Defaulting Lender.


 


Notwithstanding any provision herein to the contrary, and in each case
subject to Section 2.21, this Agreement may be amended with the
written consent of the Agent and the Company (in each case, such consent not to
be unreasonably withheld or delayed) (i) to add one or more additional
term loan facilities to this Agreement (and to make any necessary or desirable
changes to implement such additional term loan facilities) and to permit the
extensions of credit and all related obligations and liabilities arising in
connection therewith from time to time outstanding to share ratably (or on a
basis subordinated to the existing facilities hereunder) in the benefits of


 


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this Agreement and the other Loan Documents with the obligations and
liabilities from time to time outstanding in respect of the existing facilities
hereunder, and (ii) in connection with the foregoing, to permit, as deemed
appropriate by the Agent and approved by the Company, the Lenders providing
such additional credit facilities to participate in any required vote or action
required to be approved by the Required Lenders or by any other number,
percentage or class of Lenders hereunder.


 


11.02      Notices.  (a) Except as otherwise provided herein,
all notices, requests, consents, approvals, waivers and other communications
shall be in writing (including, unless the context expressly otherwise
provides, by(i) facsimile transmission, provided that any matter transmitted
by the Company by facsimile (A) shall be immediately confirmed by a
telephone call to the recipient at the number specified on Schedule 11.02
(or, in the case of a Lender other than Bank of America, in such Lender’s
Administrative Questionnaire), and (B) shall be followed promptly by
delivery of a hard copy original thereof, and (ii) electronic
transmission, as more fully set forth in clause (c) below) and
mailed, faxed or delivered, to the address or facsimile number specified for
notices on Schedule 11.02 (or, in the case of a Lender other than Bank
of America, in such Lender’s Administrative Questionnaire then in effect for
the delivery of notices that may contain material non-public information
relating to the Company); or, as directed to the Company or the Agent, to such
other address as shall be designated by such party in a written notice to the
other parties, and as directed to any other party, at such other address as
shall be designated by such party in a written notice to the Company and the
Agent.


 


(b)           All
such notices, requests and communications shall, when transmitted by overnight
delivery, or faxed, be effective when delivered for overnight (next-day)
delivery, or transmitted in legible form by facsimile machine, respectively, or
if mailed or delivered, upon delivery; provided that notices pursuant to
Article II, III or X to the Agent shall not be
effective until actually received by the Agent, and notices pursuant to Article III
to any Issuer shall not be effective until actually received by such Issuer at
the address specified on Schedule 11.02 (or, in the case of an Issuer
other than Bank of America, in such Issuer’s Administrative Questionnaire); and
provided, further, that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient.


 


(c)           Notices
and other communications to the Lenders and the Issuers hereunder may be
delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites, but only by e-mail as to any electronic
communications to any Issuer) pursuant to procedures approved by the Agent,
provided that the foregoing shall not apply to notices to any Lender or Issuer
pursuant to Article II if such Lender or Issuer, as applicable, has
notified the Agent that it is incapable of receiving notices under such Article by
electronic communication.  The Agent or
the Company 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.  Unless the Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed received
upon the sender’s receipt of an acknowledgement from the intended recipient
(such as by the “return receipt requested” function, as available, return
e-mail or other written acknowledgement); provided that if such notice
or other communication is not sent during the normal business hours of the
recipient, such


 


111

















 


notice or communication shall be deemed to
have been sent at the opening of business on the next business day for the
recipient, and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing clause
(i) of notification that such notice or communication is available and
identifying the website address therefor.


 


(d)           Any
agreement of the Agent and the Lenders herein to receive certain notices by
telephone, facsimile or electronic transmission is solely for the convenience
and at the request of the Company.  The
Agent and the Lenders shall be entitled to rely on the authority of any Person
identifying himself or herself as, and reasonably appearing to be, a Person
authorized by the Company to give such notice and the Agent and the Lenders
shall not have any liability to the Company or other Person on account of any
action taken or not taken by the Agent or the Lenders in good faith in reliance
upon such telephonic, facsimile or electronic notice.  The obligation of the Borrowers to repay the
Loans and L/C Obligations shall not be affected in any way or to any extent by
any failure by the Agent and the Lenders to receive written confirmation of any
telephonic, facsimile or electronic notice or the receipt by the Agent and the
Lenders of a confirmation which is at variance with the terms understood by the
Agent and the Lenders to be contained in the telephonic, facsimile or
electronic notice.


 


11.03      No
Waiver; Cumulative Remedies.  No
failure to exercise and no delay in exercising, on the part of the Agent or any
Lender, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof;  nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.


 


11.04      Costs
and Expenses; Indemnification.


 


(a)           The
Company shall pay (i) all reasonable and documented out of pocket expenses
incurred by the Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation,
negotiation, execution and delivery of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby
shall be consummated); (ii) all reasonable out of pocket expenses incurred
by the Issuers 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 Agent, any Lender or any Issuer
(including the fees, charges and disbursements of one counsel for the Agent,
the Lenders and the Issuers in the aggregate, in connection with the
enforcement or protection of their respective rights during the existence of
any Default or Event of Default (A) in connection with this Agreement and
the other Loan Documents, including their rights under this Section, or (B) 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 each Agent-Related Person, each Lender, each Issuing
Bank and each of the Related Parties of such Person (each such Person being
called an “Indemnitee”) against, and hold each Indemnitee harmless from,
any and all losses, claims,


 


112

















 


damages, liabilities and related expenses
(including the fees, charges and disbursements of one counsel for the Lead
Agents and one counsel for all other Indemnitees (except in each case to the
extent that separate counsel would be required as the result of any conflict of
interest)), incurred by any Indemnitee or asserted against any Indemnitee by any
third party or by the Company or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby or, in the case of the Agent (and any sub-agent
thereof) and its Related Parties only, the administration of this Agreement and
the other Loan Documents); (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by an Issuer 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 but excluding, solely as between the Company and such Issuer
and without affecting the liability of the Company to any other Indemnitee, any
action or omission for which such Issuer has agreed in writing it is not
entitled to indemnification hereunder); (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 Claim
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,
whether brought by a third party or by the Company or any other Loan Party, 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 (A) result
from a breach by a Lender of Section 11.08; (B) arise from
disputes between Indemnitees; (C) 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 or the use by such
Indemnitee of confidential information in a manner that violates any Federal or
state securities law; (D) constitute customary expenses for a Lender in
connection with review of credit documentation and the closing of this
Agreement; or (E) result from a claim brought by the Company or any other
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if the Company or such
Loan Party has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction.


 


(c)           To
the extent that the Company for any reason fails to indefeasibly pay any amount
required under subsection (a) or (b) to be paid by it
to any Agent-Related Person or any Related Party of such Agent-Related Person,
each Lender severally agrees to pay to such Agent-Related Person such Lender’s
Total 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 such
Agent-Related Person in its capacity as such, or against any Related Party
acting for such Agent-Related Person in connection with such capacity.  The obligations of the Lenders under this subsection
(c) (i) are subject to the provisions of Section 2.18
and (ii) shall not in any way limit the obligations of the Company under
this Section 11.04.


 


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(d)           To
the fullest extent permitted by applicable law, the Company 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, this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby, the transactions contemplated hereby or thereby, any Loan
or Letter of Credit or the use of the proceeds thereof.  No Indemnitee shall be liable for any damages
arising from the use by third parties of any information or other materials
obtained through IntraLinks or other similar information transmission systems
in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby.


 


(e)           The
obligations in this Section shall survive payment of all other
Obligations.  At the election of any
Indemnitee, the Company shall defend such Indemnitee using legal counsel
satisfactory to such Indemnitee in such Person’s sole discretion, at the sole
cost and expense of the Company.  All
amounts owing under this Section shall be paid within 30 days after demand
(which demand shall be accompanied by a statement from the applicable
Indemnitee setting forth such amounts in reasonable detail).


 


11.05      Marshalling;
Payments Set Aside.  Neither the Agent
nor the Lenders shall be under any obligation to marshall any assets in favor
of any Borrower or any other Person or against or in payment of any or all of
the Obligations.  To the extent that any
Borrower makes a payment to the Agent or the Lenders, or the Agent or the
Lenders exercise their right of set-off, and such payment or the proceeds of
such set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of such
recovery the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such set-off had not occurred, and (b) each Lender
severally agrees to pay to the Agent upon demand its applicable Percentage of
any amount so recovered from or repaid by the Agent.


 


11.06      Successors
and Assigns.  The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Company may not
assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of the Agent and each Lender.


 


11.07      Assignments,
Participations, Etc.


 


(a)           Assignments
by Lenders.  Any Lender may at any
time assign to one or more Eligible Assignees (each an “Assignee”) all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment(s) and the Loans (including for purposes of
this Section 11.07(a), participations in L/C Obligations and in
Swing Line Loans) at the time owing to it); provided that any such
assignment shall be subject to the following conditions:


 


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(i)            Minimum
Amounts.


 


(A)          in
the case of (1) an assignment of the entire remaining amount of the
assigning Lender’s Loans of a particular Class at the time owing to it and
the related Commitment (if any) or (2) an assignment to an Affiliate of a
Lender, no minimum amount need be assigned; and


 


(B)          in
any case not described in clause (A) above, the aggregate amount of
the Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans 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 Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than (1) $5,000,000,
in the case of any assignment of Revolving Loans and/or Revolving Commitments
or (2) $2,500,000, in the case of any assignment in respect of Term Loans
and/or Term Commitments, unless each of the Agent and, so long as no Event of
Default has occurred and is continuing, the Company otherwise consents (each
such consent not to be unreasonably withheld or delayed); provided that
concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or
to an Eligible Assignee and members of its Assignee Group) will be treated as a
single assignment for purposes of determining whether such minimum amount has
been met;


 


(ii)           Proportionate
Amounts.  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 with respect to the Loans
or the Commitment assigned, except that this clause (ii) shall not
(A) apply to the Swing Line Lender’s rights and obligations in respect of
Swing Line Loans, (B) apply to any Fronting Lender’s rights and
obligations in respect of Fronted Offshore Currency Loans and/or Fronted
Offshore Currency Commitments or (C) prohibit any Lender from assigning
all or a portion of its rights and obligations among the separate credit
facilities hereunder on a non-pro rata basis;


 


(iii)          Required
Consents.  No consent shall be
required for any assignment except to the extent required by clause (i)(B) above
and, in addition:


 


(A)          the
consent of the Company (such consent not to be unreasonably withheld or
delayed) shall be required unless (1) an Event of Default has occurred and
is continuing at the time of such assignment or (2) such assignment is to
an Affiliate of the assigning Lender or an Approved Fund;


 


(B)          the
consent of the Agent (such consent not to be unreasonably withheld or delayed)
shall be required for assignments in respect of (i) any Term Commitment or
Revolving Commitment if such assignment is to a Person that is not a Lender
with a Commitment in respect of the applicable facility, an Affiliate of such
Lender or an Approved Fund with respect to such Lender or (ii) any Term


 


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Loan to a
Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and


 


(C)          the
consent of each Issuer, the Swing Line Lender and each Fronting Lender (such
consents not to be unreasonably withheld or delayed) shall be required for any
assignment in respect of Revolving Loans and/or Revolving Commitments to an
Assignee other than a Revolving Lender.


 


(iv)          Assignment
and Assumption.  The parties to each
assignment shall execute and deliver to the Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500; provided that
the Agent may, in its sole discretion, elect to waive such processing and
recordation fee in the case of any assignment. 
The Assignee, if it shall not be a Lender, shall deliver to the Agent an
Administrative Questionnaire.


 


(v)           No
Assignment to Certain Persons.  No
such assignment shall be made (A) to any Borrower or any Affiliate or
Subsidiary of any Borrower or (B) to any Defaulting Lender or any of its
Subsidiaries, or any Person who, upon becoming a Lender hereunder, would
constitute any of the foregoing Persons described in this clause (B).


 


(vi)          No
Assignment to Natural Persons.  No
such assignment shall be made to a natural person.


 


(vii)         Certain
Additional Payments.  In connection
with any assignment of rights and obligations of any Defaulting Lender
hereunder, no such assignment shall be effective unless and until, in addition
to the other conditions thereto set forth herein, the parties to the assignment
shall make such additional payments to the Agent in an aggregate amount sufficient,
upon distribution thereof as appropriate (which may be outright payment,
purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Company and
the Agent, the applicable pro rata share of Loans previously requested but not
funded by the Defaulting Lender, to each of which the applicable assignee and
assignor hereby irrevocably consent), to (x) pay and satisfy in full all
payment liabilities then owed by such Defaulting Lender to the Agent or any
Lender hereunder (and interest accrued thereon) and (y) acquire (and fund
as appropriate) its full pro rata share of all Loans and participations in
Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage.  Notwithstanding the foregoing, in the event
that any assignment of rights and obligations of any Defaulting Lender
hereunder shall become effective under applicable law without compliance with
the provisions of this paragraph, then the assignee of such interest shall be
deemed to be a Defaulting Lender for all purposes of this Agreement until such
compliance occurs.


 


Subject to acceptance and recording thereof by the Agent pursuant to subsection (b) below,
from and after the effective date specified in each Assignment and Assumption,
the Assignee thereunder shall be a party to this Agreement 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


 


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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 4.01, 4.03, 4.04 and 11.04
with respect to facts and circumstances occurring prior to the effective date
of such assignment).  Upon request, the
applicable Borrower (at its expense) shall execute and deliver a Note to the
Assignee.  Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply
with this subsection 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 subsection (c) below.


 


(b)           Register.  The Agent, acting solely for this purpose as
an agent of the Borrower (and such agency being solely for tax purposes), shall
maintain at the Agent’s Payment Office 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 Commitments of, and principal amounts of the Loans and
L/C Obligations owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”).  The
entries in the Register shall be conclusive, and the Borrowers, the Agent 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.  In addition, the Agent shall maintain on the
Register information regarding the designation, and revocation of designation,
of any Lender as a Defaulting Lender.  The Register shall be available for
inspection by the Company and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.


 


(c)           Participations.  Any Lender may at any time, without the
consent of, or notice to, any Borrower or the Agent, sell participations to any
Person (other than a natural person, a Defaulting Lender, any Borrower or any
Affiliate or Subsidiary of any Borrower) (each, 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 (including such
Lender’s participations in L/C Obligations, Swing Line Loans and/or Fronted
Offshore Currency Loans) owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged;
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations; and (iii) the applicable
Borrower, the Agent, the Lenders and the Issuer 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 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, waiver or other modification described in the first
proviso to Section 11.01 that affects such Participant.  Subject to subsection (d) below,
the Borrower agrees that each Participant shall be entitled to the benefits of Sections 4.01
and 4.03  to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section 11.07(a). 
To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 11.09
as though it were a Lender, provided such Participant agrees
to be subject to Section 2.18 as though it were a Lender.  Each Lender that sells a participating
interest under this clause (c) shall, as agent of the Borrower
solely for the purposes of this clause (c), record in book entries
maintained by such Lender the name and the


 


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amount of the participating interest of each
Participant entitled to receive payments in respect of such participating
interests.


 


(d)           Limitations
upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under Section 4.01
or 4.03 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 applicable 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 4.01 unless the applicable Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of such Borrower, to comply with Section 10.11 as
though it were a Lender.


 


(e)           Certain
Pledges.  Any Lender may, without the
consent of the Agent or the Company, at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or Assignee for such
Lender as a party hereto.


 


(f)            Electronic
Execution of Assignments.  The words
“execution,” “signed,” “signature,” and words of like import in any Assignment
and Assumption shall be deemed to include electronic signatures or the keeping
of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.


 


(g)           Resignation
as an Issuer or Swing Line Lender after Assignment.  Notwithstanding anything to the contrary
contained herein, if at any time any Revolving Lender acting as an Issuer or
the Swing Line Lender assigns all of its Revolving Commitment and Revolving
Loans pursuant to subsection (a) above, such Person may, as
applicable, (i) upon 30 days’ notice to the Borrowers, the Lenders and the
Agent, resign as an Issuer and/or (ii) upon 30 days’ notice to the
Borrowers and the Agent, resign as the Swing Line Lender.  In the event of any such resignation of an
Issuer or the Swing Line Lender, the Company shall be entitled to appoint from
among the Revolving Lenders (with the consent of such appointee) a successor
Issuer or Swing Line Lender hereunder, as applicable; provided that no
failure by the Company to appoint any such successor shall affect the
resignation of such Person as an Issuer or as the Swing Line Lender, as the
case may be.  If a Person resigns as an
Issuer, it shall retain all the rights, powers, privileges and duties of an Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as an Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in unreimbursed amounts under Letters of Credit
pursuant to Section 3.03). 
If a Person resigns as the Swing Line Lender, it shall retain all the
rights of the Swing Line Lender provided for hereunder with respect to Swing
Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate Loans
or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.06(b).


 


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Upon the appointment of a successor Issuer,
(a) such successor Issuer shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring Issuer and (b) such
successor Issuer shall issue letters of credit in substitution for the Letters
of Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to the retiring Issuer to effectively assume the
obligations of such retiring Issuer with respect to such Letters of Credit.  Upon the appointment of a successor Swing
Line Lender, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Swing Line Lender.


 


11.08      Confidentiality.  Each Lender agrees to maintain the confidentiality
of all information provided to it by or on behalf of the Company or any
Subsidiary, or by the Agent on the Company’s or such Subsidiary’s behalf, under
this Agreement or any other Loan Document, and neither it nor any of its
Affiliates shall use any such information other than in connection with or in
enforcement of this Agreement and the other Loan Documents or in connection
with other business now or hereafter existing or contemplated with the Company
or any Subsidiary; except to the extent such information (i) was or
becomes generally available to the public other than as a result of disclosure
by the Lender or its Affiliates, or (ii) was or becomes available on a
non-confidential basis from a source other than the Company or a Subsidiary,
provided that such source is not bound by a confidentiality agreement with the
Company known to the Lender; provided that any Lender may disclose such
information (A) at the request or pursuant to any requirement of any
Governmental Authority to which the Lender is subject or in connection with an
examination of such Lender by any such authority; (B) pursuant to subpoena
or other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent
reasonably required in connection with any litigation or proceeding involving
the Company to which the Agent, any Lender or their respective Affiliates may
be party; (E) to the extent reasonably required in connection with the
exercise of any remedy hereunder or under any other Loan Document; (F) to
such Lender’s independent auditors, trustees and other professional advisors;
(G) to any Participant or Assignee, actual or potential, any Eligible Assignee invited to be a Lender
pursuant to Section 2.20(c) or 2.21(c) or to any direct, indirect, actual or prospective
counterparty to any swap, derivative or securitization transaction related to
the Obligations, provided that, in each case, such Person agrees in writing to
keep such information confidential to the same extent required of the Lenders
hereunder; (H) as to any Lender or its Affiliate, as expressly permitted
under the terms of any other document or agreement regarding confidentiality to
which the Company or any Subsidiary is party with such Lender or such
Affiliate; (I) to its Affiliates, provided that such Affiliate is advised
of the confidentiality requirements set forth herein and agrees in writing (for
the benefit of the Company) to keep such information confidential to the same
extent required hereunder (it being understood that each Lender shall be liable
for the breach by any of its Affiliates of any such confidentiality
requirement); and (J) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about such Lender’s investment
portfolio in connection with ratings issued with respect to such Lender.  Each Lender will, so long as not prohibited
from doing so by any Requirement of Law, notify the Company of any request for
information of the type referred to in clause (B) or (C) above
prior to disclosing such information so that the Company may seek appropriate
relief from any applicable court or other Governmental Authority.


 


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11.09      Set-off.  In addition to any rights and remedies of the
Lenders provided by law, if an Event of Default exists or the Loans have been
accelerated, each Lender and each of its Affiliates is authorized at any time and
from time to time, without prior notice to any Borrower, any such notice being
waived by each Borrower 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 by, and other indebtedness at any time owing by, such
Lender or such Affiliate to or for the credit or the account of such Borrower
against any and all Obligations and/or Guaranteed Obligations owing to such
Lender or such Affiliate, now or hereafter existing, irrespective of whether or
not the Agent or such Lender shall have made demand under this Agreement or any
Loan Document and although such Obligations and/or Guaranteed Obligations may
be denominated in a different currency, contingent or unmatured.  Each Lender agrees promptly to notify the
Company and the Agent after any such set-off and application made by such
Lender or such Affiliate; provided that the failure to give such notice
shall not affect the validity of such set-off and application; and provided,
further, that in the event that any Defaulting Lender shall exercise any
such right of setoff, (x) all amounts so set off shall be paid over
immediately to the Agent for further application in accordance with the
provisions of Section 3.12 and, pending such payment, shall be
segregated by such Defaulting Lender from its other funds and deemed held in
trust for the benefit of the Agent and the Lenders, and (y) the Defaulting
Lender shall provide promptly to the Agent a statement describing in reasonable
detail the Obligations and/or Guaranteed Obligations owing to such Defaulting
Lender as to which it exercised such right of setoff.


 


11.10      Automatic
Debits of Fees.  With respect to any
commitment fee, arrangement fee, letter of credit fee or other fee, or any
other cost or expense (including Attorney Costs) due and payable to the Agent,
any Issuer or Bank of America under the Loan Documents, the Company hereby
irrevocably authorizes Bank of America to debit any deposit account of the
Company with Bank of America in an amount such that the aggregate amount
debited from all such deposit accounts does not exceed such fee or other cost
or expense (it being understood and agreed that the Agent may from time to time
in its sole discretion agree to any other methods of payment); provided
that so long as no Event of Default has occurred and is continuing, Bank of
America has given notice to the Company thereof not later than the date prior
to the date of such debit.  If there are
insufficient funds in such deposit accounts to cover the amount of the fee or
other cost or expense then due, such debits will be reversed so as not to
create an overdraft (in whole or in part, in Bank of America’s sole discretion)
and such amount not debited shall be deemed to be unpaid.  No such debit under this Section shall
be deemed a set-off.


 


11.11      Notification
of Addresses, Lending Offices, Etc. 
Each Lender shall notify the Agent in writing of any changes in the
address to which notices to the Lender should be directed, of addresses of any
Lending Office, of payment instructions in respect of all payments to be made
to it hereunder and of such other administrative information as the Agent shall
reasonably request.


 


11.12      Counterparts.  This Agreement may be executed in any number
of separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.


 


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11.13      Severability.  The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.  Without limiting the
foregoing provisions of this Section 11.13, if and to the extent
that the enforceability of any provisions in this Agreement relating to
Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Agent or any Issuer, Swing Line Lender or Fronting Lender, as
applicable, then such provisions shall be deemed to be in effect only to the
extent not so limited.


 


11.14      No
Third Parties Benefited.  This Agreement
is made and entered into for the sole protection and legal benefit of the
Borrowers, the Lenders, the Lead Agents and the Agent-Related Persons, and
their permitted successors and assigns, and no other Person shall be a direct
or indirect legal beneficiary of, or have any direct or indirect cause of
action or claim in connection with, this Agreement or any of the other Loan
Documents.


 


11.15      Governing
Law and Jurisdiction.  (a) THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAW OF THE STATE OF ILLINOIS (WITHOUT REGARD TO CONFLICTS OF LAW
PROVISIONS THEREOF); PROVIDED THAT THE BORROWERS, THE AGENT AND THE
LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.


 


(b)           ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR OF THE
UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWERS, THE AGENT AND THE LENDERS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS.  EACH OF
THE BORROWERS, THE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
DOCUMENT RELATED HERETO.  THE BORROWERS,
THE AGENT AND THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
ILLINOIS LAW.


 


11.16      WAIVER
OF JURY TRIAL.  THE BORROWERS, THE
LENDERS AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT
BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,
OR OTHERWISE.  THE BORROWERS, THE LENDERS
AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED
BY A COURT TRIAL WITHOUT A


 


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JURY. 
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS
TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR
IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.  THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.


 


11.17      Judgment.  If, for the purposes of filing a claim or
obtaining judgment in any court, it is necessary to convert a sum due hereunder
or under any other Loan Document in one currency into another currency, the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Agent could purchase the first currency with such other currency
on the Business Day preceding that on which final judgment is given.  The obligation of each Borrower in respect of
any such sum due from it to the Agent or any Lender hereunder or under the
other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance
with the applicable provisions of this Agreement (the “Agreement Currency”),
be discharged only to the extent that on the Business Day following receipt by
the Agent or such Lender of any sum adjudged to be so due in the Judgment
Currency, the Agent or such Lender may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency.  If the amount of the Agreement Currency so
purchased is less than the sum originally due to the Agent or such Lender in
the Agreement Currency, each Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Agent or such Lender or the
Person to whom such obligation was owing against such loss.  If the amount of the Agreement Currency so
purchased is greater than the sum originally due to the Agent or such Lender in
such currency, the Agent or such Lender agrees to return the amount of any
excess to such Borrower (or to any other Person who may be entitled thereto
under applicable law).


 


11.18      Entire
Agreement.  This Agreement, together
with the other Loan Documents, embodies the entire agreement and understanding
among the Borrowers, the Lenders and the Agent, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.


 


11.19      USA
PATRIOT Act Notice.  Each Lender that
is subject to the Act (as hereinafter defined) and the Agent (for itself and
not on behalf of any 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 each Borrower and other information that will
allow such Lender or the Agent, as applicable, to identify such Borrower in
accordance with the Act.


 


11.20      Amendments
Effecting a Maturity Extension.  In
addition, notwithstanding any other provision of this Agreement to the
contrary:


 


(a)           The
Company may, by written notice to the Agent (who shall forward such notice to
all applicable Lenders) make an offer (each such offer, a “Loan Modification
Offer”) to all the


 


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Lenders of any Class (including any
tranche of Add-On Term Loans) to make one or more amendments or modifications
to allow the maturity of the Loans and/or Commitments of the Accepting Lenders
(as defined below) to be extended, and, in connection with such extension, to
(i) reduce, eliminate or otherwise modify the scheduled amortization of
the applicable Loans of the Accepting Lenders, (ii) increase the
Applicable Percentage and/or fees payable with respect to the applicable Loans
and/or Commitments of the Accepting Lenders and the payment of additional fees
or other consideration to the Accepting Lenders, and/or (iii) change such
additional terms and conditions of this Agreement solely as applicable to the
Accepting Lenders (such additional changed terms and conditions (to the extent
not otherwise approved by the requisite Lenders under Section 11.01)
to be effective only during the period following the original maturity date
prior to its extension by such Accepting Lenders) (collectively, “Permitted
Amendments”) pursuant to procedures reasonably acceptable to each of the
Agent and the Company.  Such notice shall
set forth (i) the terms and conditions of the requested Permitted
Amendment and (ii) the date on which such Permitted Amendment is requested
to become effective (which shall not be less than 10 Business Days nor more
than 45 Business Days after the date of such notice).  Permitted Amendments shall become effective only
with respect to the Loans and/or Commitments of the Lenders that accept the
Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, in
the case of any Accepting Lender, only with respect to such Lender’s Loans
and/or Commitments as to which such Lender’s acceptance has been made.  The Company, each other Loan Party and each
Accepting Lender shall execute and deliver to the Agent a loan modification
agreement (“Loan Modification Agreement”) and such other documentation
as the Agent shall reasonably specify to evidence the acceptance of the
Permitted Amendments and the terms and conditions thereof.  The Agent shall promptly notify each Lender
as to the effectiveness of the Loan Modification Agreement.  Each of the parties hereto hereby agrees
that, upon the effectiveness of the Loan Modification Agreement, this Agreement
shall be deemed amended to the extent (but only to the extent) necessary to
reflect the existence and terms of the Permitted Amendment evidenced thereby
and only with respect to the Loans and Commitments of the Accepting Lenders as
to which such Lenders’ acceptance has been made.  The Company may effectuate no more than one
Loan Modification Agreement as to each Class of Loans.


 


(b)           Any
amendment or waiver of any provision of this Agreement or any other Loan
Document, or consent to any departure by any Loan Party therefrom, made to
effect any Permitted Amendment that by its express terms amends or modifies the
rights or duties under this Agreement or such other Loan Document of one or
more Classes of Lenders (but not of one or more other Classes of Lenders) may
be effected by an agreement or agreements in writing signed by the Agent, the
Company or the applicable Loan Party, as the case may be, and the requisite
percentage in interest of each affected Class of Lenders that would be
required to consent thereto under Section 11.01 as if all such
affected Classes of Lenders were the only Lenders hereunder at the time.


 


(c)           This
Section shall supersede any provisions of this Agreement to the contrary,
including Section 2.18 or 11.01, it being understood,
however, that nothing in this Section shall impair or limit the
effectiveness of any amendment effectuated in accordance with Section 11.01
(including, without limitation, any amendment effectuated simultaneously with
any Permitted Amendment).


 


123

















 


11.21      No
Fiduciary or Implied Duties.  The
Company acknowledges and agrees, and acknowledges its Affiliates’
understanding, that in acting as a Lead Agent, no Lead Agent will have responsibility
except as set forth in this Agreement and shall in no event be subject to any
fiduciary or other implied duties.  The
Company waives and releases, to the fullest extent permitted by law, any claims
that it may have against any Lead Agent with respect to any breach or alleged
breach of agency or fiduciary duty.


 


11.22      Termination
of Existing Credit Agreement; Waiver of Notice of Prepayment.  The Company and the Lenders that are parties
to the Existing Credit Agreement agree that concurrently with the effectiveness
hereof, all “Commitments” under and as defined in the Existing Credit Agreement
shall terminate and the Existing Credit Agreement shall be of no further force
or effect (except for provisions thereof that by their terms survive termination
thereof).  By its signature hereto, each
Lender that is a lender under the Existing Credit Agreement hereby waives the
notice requirement otherwise applicable to the Company under Section 2.09
of the Existing Credit Agreement in respect of the Company’s prepayment of the
loans thereunder.


 


11.23      Holdco
Reorganization.


 


(a)           Subject
to clause (b), the Company may elect to enter into a transaction or
series of related transactions pursuant to which it may implement a new holding
company structure (as detailed in this clause (a), the “Holdco
Reorganization”). In connection with the Holdco Reorganization, the Company
shall take such actions (including the creation of new Persons and the transfer
or other exchange of Capital Stock and/or assets) and consummate such
transactions as its officers and directors deem reasonably necessary or
desirable to create a holding company entity (“Holdco”) that will hold,
directly or indirectly, all of the issued and outstanding Capital Stock of OSK
and its wholly-owned Subsidiaries in existence at such time. 
Simultaneously with the consummation of the Holdco Reorganization, Holdco shall
assume all of the liabilities and obligations of the Company under the Loan
Documents and shall enter into such additional Loan Documents as the Agent may
reasonably require such that Holdco will (i) pledge all of the Capital
Stock of OSK to the Agent, for the benefit of the Lenders, (ii) guarantee
(consistent with the provisions of Article XII) any and all
Obligations and Guaranteed Obligations and (iii) cause those of its
applicable Subsidiaries (including OSK) to comply with the terms of the Loan
Documents (including Sections 7.12 through 7.14).


 


(b)           The
following shall constitute the conditions precedent to (which shall be
satisfied either before or substantially simultaneously with) the consummation
of the Holdco Reorganization:


 


(i)            Holdco
shall have been duly incorporated as a corporation organized under the laws of
any state of the United States, with Organization Documents reasonably satisfactory
in form and substance to the Agent, and, pursuant to such Organization
Documents, Holdco shall have elected a board of directors and Holdco shall have
elected and qualified officers authorized to act for Holdco.


 


(ii)           Holdco
shall have received a tax identification number from the Internal Revenue
Service.


 


124

















 


(iii)          The
Agent shall have received all of the following, in form and substance
reasonably satisfactory to the Agent, each duly executed by all applicable
parties:


 


(A)          an
assumption and amendment agreement satisfactory to Holdco, the Company and the
Agent, together with such other Loan Documents as specified in clause (a) above;


 


(B)          a
certificate signed by a Responsible Officer of each of Holdco and the Company
certifying as to the conditions set forth in Section 5.02;


 


(C)          to
the extent applicable, all documents, instruments and other certificates
required to be delivered under Section 5.03;


 


(D)          copies
of the agreements, instruments and other documents entered into by all
necessary parties pertaining to the transactions effecting the Holdco
Reorganization;


 


(E)           evidence
that upon consummation of the transactions described herein, Holdco and its
Subsidiaries, on a consolidated basis, shall have a corporate family rating
from each of Moody’s and S&P that is the same as or better than the ratings
from each for OSK and its Subsidiaries on a consolidated basis immediately
prior to the consummation of such transactions; and


 


(F)           such
other documents, instruments and other information as any Lead Agent may
reasonably request.


 


(c)           This
Section shall supersede any provision in any Loan Document to the
contrary, including Article VIII and Section 11.01.


 


ARTICLE XII


 


COMPANY
GUARANTY


 


12.01      The
Guaranty.  In order to induce the
Lenders to enter into this Agreement and to extend credit hereunder and in
recognition of the direct benefits to be received by the Company from the
proceeds of the Loans and the issuance of the Letters of Credit, the Company
hereby agrees with the Lenders as follows: the Company hereby unconditionally
and irrevocably guarantees as primary obligor and not merely as surety the full
and prompt payment when due, whether upon maturity, acceleration or otherwise,
of any and all of the Guaranteed Obligations of the Subsidiary Borrowers to the
Guaranteed Creditors.  If any or all of
the Guaranteed Obligations of such Borrowers to the Guaranteed Creditors
becomes due and payable hereunder, the Company unconditionally promises to pay
such indebtedness to the Agent and/or the Lenders, on demand, together with any
and all expenses which may be incurred by the Agent or the Lenders in
collecting any such Guaranteed Obligations. 
If claim is ever made upon any Guaranteed Creditor for repayment or
recovery of any amount or amounts received in payment or on account of any
Guaranteed Obligations of the Subsidiary Borrowers and any of the aforesaid
payees repays all or part of said amount by reason of (i) any judgment,
decree or order of any court or administrative body having jurisdiction over
such payee or any of its property or


 


125

















 


(ii) any settlement or compromise of any
such claim effected by such payee with any such claimant (including the Borrowers),
then and in such event the Company agrees that any such judgment, decree,
order, settlement or compromise shall be binding upon the Company,
notwithstanding any revocation of this Guaranty or other instrument evidencing
any liability of any Borrower, and the Company shall be and remain liable to
the aforesaid payees hereunder for the amount so repaid or recovered to the
same extent as if such amount had never originally been received by any such
payee.


 


12.02      Insolvency.  Additionally, the Company unconditionally and
irrevocably guarantees the payment of the Dollar Equivalent of any and all of
the Guaranteed Obligations of the Subsidiary Borrowers to the Guaranteed
Creditors whether or not due or payable by any Borrower upon the occurrence of
any of the events specified in Section 9.01(f) or (g),
and unconditionally promises to pay the Dollar Equivalent of such Guaranteed
Obligations to the Guaranteed Creditors, or order, on demand, in lawful money
of the United States.


 


12.03      Nature
of Liability.  The liability of the
Company hereunder is exclusive and independent of any security for or other
guaranty of the Guaranteed Obligations of any Borrower whether executed by the
Company, any other guarantor or by any other party, and the liability of the
Company hereunder is not affected or impaired by (a) any direction as to
application of payment by any Borrower or by any other party; or (b) any
other continuing or other guaranty, undertaking or maximum liability of a
guarantor or of any other party as to the Guaranteed Obligations of any
Borrower; or (c) any payment on or in reduction of any such other guaranty
or undertaking; or (d) any dissolution, termination or increase, decrease
or change in personnel by any Borrower; or (e) any payment made to any
Guaranteed Creditor on the Guaranteed Obligations which any such Guaranteed
Creditor repays to any Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
the Company waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding.


 


12.04      Independent
Obligation.  The obligations of the
Company hereunder are independent of the obligations of any other guarantor,
any other party or any Borrower, and a separate action or actions may be
brought and prosecuted against the Company whether or not action is brought
against any other guarantor, any other party or any Borrower and whether or not
any other guarantor, any other party or any Borrower is joined in any such
action or actions.  The Company waives,
to the full extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof.  Any payment by a Borrower or other
circumstance which operates to toll any statute of limitations as to such
Borrower shall operate to toll the statute of limitations as to the Company’s
obligations under this Article XII.


 


12.05      Authorization.  The Company authorizes the Guaranteed
Creditors without notice or demand (except as shall be required by applicable
statute and cannot be waived), and without affecting or impairing its liability
hereunder, from time to time to:


 


(a)           change
the manner, place or terms of payment of, and/or change or extend the time of
payment of, renew, increase, accelerate or alter, any of the Guaranteed
Obligations (including any increase or decrease in the rate of interest
thereon), any security therefor, or any


 


126

















 


liability incurred directly or indirectly in
respect thereof, and the Guaranty herein made shall apply to the Guaranteed
Obligations as so changed, extended, renewed or altered;


 


(b)           take
and hold security for the payment of the Guaranteed Obligations and sell,
exchange, release, surrender, realize upon or otherwise deal with in any manner
and in any order any property by whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, the Guaranteed Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and/or any offset thereagainst;


 


(c)           exercise
or refrain from exercising any rights against any Borrower or others or
otherwise act or refrain from acting;


 


(d)           release
or substitute any one or more endorsers, guarantors, Borrowers or other
obligors;


 


(e)           settle
or compromise any of the Guaranteed Obligations, any security therefor or any
liability (including any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and may subordinate the payment of all or any part
thereof to the payment of any liability (whether due or not) of any Borrower to
its creditors other than the Guaranteed Creditors;


 


(f)            apply
any sums by whomsoever paid or howsoever realized to any liability or
liabilities of any Borrower to the Guaranteed Creditors regardless of what
liability or liabilities of the Company or any Borrower remain unpaid;


 


(g)           consent
to or waive any breach of, or any act, omission or default under, this
Agreement or any of the instruments or agreements referred to herein, or
otherwise amend, modify or supplement this Agreement or any of such other
instruments or agreements; and/or


 


(h)           take
any other action which would, under otherwise applicable principles of common
law, give rise to a legal or equitable discharge of the Company from its
liabilities under this Guaranty;


 


it being understood that the foregoing shall not permit any action by
the Agent or any Lender that is not otherwise permitted by this Agreement or
any other Loan Document.


 


12.06      Reliance.  It is not necessary for any Guaranteed
Creditor to inquire into the capacity or powers of any Borrower or the
officers, directors, partners or agents acting or purporting to act on their
behalf, and any Guaranteed Obligations made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.


 


12.07      Subordination.  Any of the indebtedness of each Borrower
relating to the Guaranteed Obligations now or hereafter owing to the Company is
hereby subordinated to the Guaranteed Obligations of such Borrower owing to the
Guaranteed Creditors, and if the Agent so requests at a time when an Event of
Default exists, all such indebtedness relating to the Guaranteed Obligations of
such Borrower to the Company shall be collected, enforced and received by the
Company for the benefit of the Guaranteed Creditors and be paid over to the
Agent on behalf of the Guaranteed Creditors on account of the Guaranteed
Obligations of such


 


127

















 


Borrower to the Guaranteed Creditors, but
without affecting or impairing in any manner the liability of the Company under
the other provisions of this Guaranty. 
Prior to the transfer by the Company of any note or negotiable
instrument evidencing any of the indebtedness relating to the Guaranteed
Obligations of such Borrower to the Company, the Company shall mark such note
or negotiable instrument with a legend that the same is subject to this
subordination.  Without limiting the
generality of the foregoing, the Company hereby agrees with the Guaranteed
Creditors that it will not exercise any right of subrogation which it may at
any time otherwise have as a result of this Guaranty (whether contractual,
under Section 509 of the Bankruptcy Code or otherwise) until all
Guaranteed Obligations have been irrevocably paid in full in cash.


 


12.08      Waiver.


 


(a)           The
Company waives any right (except as shall be required by applicable statute and
cannot be waived) to require any Guaranteed Creditor to (i) proceed
against any Borrower, any other guarantor or any other party, (ii) proceed
against or exhaust any security held from any Borrower, any other guarantor or
any other party or (iii) pursue any other remedy in any Guaranteed
Creditor’s power whatsoever.  The Company
waives any defense based on or arising out of any defense of any Borrower, any
other guarantor or any other party, other than payment in full of the
Guaranteed Obligations, based on or arising out of the disability of any
Borrower, any other guarantor or any other party, or the validity, legality or
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of any Borrower other
than payment in full of the Guaranteed Obligations.  The Guaranteed Creditors may, at their
election, foreclose on any security held by the Agent or any other Guaranteed
Creditor by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the
Guaranteed Creditors may have against any Borrower or any other party, or any
security, without affecting or impairing in any way the liability of the Company
hereunder except to the extent the Guaranteed Obligations have been paid.  The Company waives any defense arising out of
any such election by the Guaranteed Creditors, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of the Company against any Borrower or any other party or
any security.


 


(b)           Except
as otherwise expressly provided in this Agreement, the Company waives all
presentments, demands for performance, protests and notices, including notices
of nonperformance, notices of protest, notices of dishonor, notices of
acceptance of this Guaranty, and notices of the existence, creation or
incurring of new or additional Guaranteed Obligations.  The Company assumes all responsibility for
being and keeping itself informed of each Borrower’s financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks which
the Company assumes and incurs hereunder, and agrees that the Agent and the
Lenders shall have no duty to advise the Company of information known to them
regarding such circumstances or risks.


 


12.09      Nature
of Liability.  It is the desire and
intent of the Company and the Guaranteed Creditors that this Guaranty shall be
enforced against the Company to the fullest extent permissible under the laws
and public policies applied in each jurisdiction in which enforcement


 


128

















 


is sought. 
If, however, and to the extent that, the obligations of the Company
under this Guaranty shall be adjudicated to be invalid or unenforceable for any
reason (including because of any applicable state or federal law relating to
fraudulent conveyances or transfers), then the amount of the Guaranteed
Obligations shall be deemed to be reduced and the Company shall pay the maximum
amount of the Guaranteed Obligations which would be permissible under
applicable law.


 


[signature pages follow]


 


 


129






 












 


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


 


	
   

  	
   

  	
  OSHKOSH
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  R. Scott Grennier

  
	
   

  	
   

  	
  Name:
  R. Scott Grennier

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  



 


Signature
page to Oshkosh Credit Agreement


 

















 


	
   

  	
   

  	
  BANK
  OF AMERICA, N.A., as Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Linda K. Lov

  
	
   

  	
   

  	
  Name:
  Linda K. Lov

  
	
   

  	
   

  	
  Title:
  Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BANK
  OF AMERICA, N.A., as a Lender, as an Issuer and as Swing Line
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Steven K. Kessler

  
	
   

  	
   

  	
  Name:
  Steven K. Kessler

  
	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as Syndication Agent, as an Issuer and as a
  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
   

  	
  THE
  ROYAL BANK OF SCOTLAND plc, as Co-Documentation
  Agent and as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Angela Reilly

  
	
   

  	
   

  	
  Name:
  Angela Reilly

  
	
   

  	
   

  	
  Title:
  Managing Director

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Co-Documentation
  Agent and as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Thomas P. Trail

  
	
   

  	
   

  	
  Name:
  Thomas P. Trail

  
	
   

  	
   

  	
  Title:
  Director

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
   

  	
  SunTrust
  Bank, as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  David Fournier

  
	
   

  	
   

  	
  Name:
  David Fournier

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
   

  	
  Credit
  Agricole Corporate and Investment Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Joseph Philbin

  
	
   

  	
   

  	
  Name:
  Joseph Philbin

  
	
   

  	
   

  	
  Title:
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Matthias Guillet

  
	
   

  	
   

  	
  Name:
  Matthias Guillet

  
	
   

  	
   

  	
  Title:
  Director

  



 


Signature page to
Oshkosh Credit Agreement


 






 












 


	
   

  	
  TD
  BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Edward (Ted) Hopkinson

  
	
   

  	
  Name:

  	
  Edward
  (Ted) Hopkinson

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  U.S.
  Bank, National Association, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Caroline V. Krider

  
	
   

  	
  Name:

  	
  Caroline
  V. Krider

  
	
   

  	
  Title:

  	
  SVP

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  PNC
  BANK, NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Leong

  
	
   

  	
  Name:

  	
  Michael
  Leong

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  Comerica
  Bank, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Heather Whiting

  
	
   

  	
  Name:

  	
  Heather
  Whiting

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  Sumitomo
  Mitsui Banking Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Yasuhiko Imai

  
	
   

  	
  Name:

  	
  Yasuhiko
  Imai

  
	
   

  	
  Title:

  	
  Group
  Head

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  RAYMOND
  JAMES BANK, FSB

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James M. Armstrong

  
	
   

  	
  Name:

  	
  James
  M. Armstrong

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  BRANCH
  BANKING AND TRUST COMPANY, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Daniel T. Laurenzi

  
	
   

  	
  Name:

  	
  Daniel
  T. Laurenzi

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  CAPITAL
  ONE LEVERAGE FINANCE CORP., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paul Dellova

  
	
   

  	
  Name:

  	
  Paul
  Dellova

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  Caterpillar
  Financial Services Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael M. Ward

  
	
   

  	
  Name:

  	
  Michael
  M. Ward

  
	
   

  	
  Title:

  	
  Credit
  and Operations Manager

  



 


Signature page to
Oshkosh Credit Agreement


 






 












 


	
   

  	
  CREDIT INDUSTRIEL ET COMMERCIAL,

  
	
   

  	
  as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Brian O’Leary

  
	
   

  	
  Name:

  	
  Brian
  O’Leary

  
	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Marcus Edward

  
	
   

  	
  Name:

  	
  Marcus
  Edward

  
	
   

  	
  Title:

  	
  Managing
  Director

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  THE
  HUNTINGTON NATIONAL BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joe Tonges

  
	
   

  	
  Name:

  	
  Joe
  Tonges

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  Mizuho
  Corporate Bank, Ltd., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert Gallagher

  
	
   

  	
  Name:

  	
  Robert
  Gallagher

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  The
  Northern Trust Company, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Roger McDougal

  
	
   

  	
  Name:

  	
  Roger
  McDougal

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  Associated
  Bank, National Association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Brian Cota

  
	
   

  	
  Name:

  	
  Brian
  Cota

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  Bank
  of the West, a California Banking Corporation, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  David Wang

  
	
   

  	
  Name:

  	
  David
  Wang

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  Banco
  de Sabadell, S.A. — Miami Branch, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Maurici Llado

  
	
   

  	
  Name:

  	
  Maurici
  Llado

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
	
   

  	
   

  	
  Corporate &
  Investment Banking Director

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  City
  National Bank, N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Scott Johnson

  
	
   

  	
  Name:

  	
  Scott
  Johnson

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


Signature page to
Oshkosh Credit Agreement


 

















 


	
   

  	
  RZB
  Finance LLC, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christoph Hoedl

  
	
   

  	
  Name:

  	
  Christoph
  Hoedl

  
	
   

  	
  Title:

  	
  First
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Randall Abrams

  
	
   

  	
  Name:

  	
  Randall
  Abrams

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


Signature page to
Oshkosh Credit Agreement


 






 












 


SCHEDULE 1.01(a)


 


PRICING SCHEDULE


 


During
the six-month period immediately following the Effective Date, the Applicable
Offshore Rate Margin shall be 300 bps and the Applicable Base Rate Margin shall
be 200 bps.  Thereafter, the Applicable
Offshore Rate Margin and the Applicable Base Rate Margin, as applicable, with
respect to Revolving Loans, Swing Line Loans and Term A Loans, the Applicable
Letter of Credit Fee Rate and the Applicable Commitment Fee Percentage shall be
the applicable rate per annum set forth in the tables below, subject to the
paragraph below such tables (based on the applicable corporate family ratings
status) opposite the Leverage Ratio.


 


RATINGS STATUS 1:  Corporate
family ratings are lower than BB- (stable) by S&P or lower than Ba3
(stable) by Moody’s:


 


	
  Level

  	
   

  	
  Leverage

  Ratio

  	
   

  	
  Applicable

  Margin for

  Offshore

  Rate Loans

  and Letter

  of Credit

  Fee*

  	
   

  	
  Applicable

  Margin for

  Base Rate

  Loans

  	
   

  	
  Commitment

  Fee

  
	
  I

  	
   

  	
  > 3.75x

  	
   

  	
  350 bps

  	
   

  	
  250 bps

  	
   

  	
  50 bps

  
	
  II

  	
   

  	
  < 3.75x

  	
   

  	
  325 bps

  	
   

  	
  225 bps

  	
   

  	
  50 bps

  
	
  III

  	
   

  	
  < 2.75x

  	
   

  	
  300 bps

  	
   

  	
  200 bps

  	
   

  	
  50 bps

  
	
  IV

  	
   

  	
  < 1.75x

  	
   

  	
  275 bps

  	
   

  	
  175 bps

  	
   

  	
  45 bps

  
	
  V

  	
   

  	
  < 0.75x

  	
   

  	
  250 bps

  	
   

  	
  150 bps

  	
   

  	
  40 bps

  



 


RATINGS STATUS 2:  Corporate
family ratings are BB- (stable) or higher by S&P and Ba3 (stable) or
higher by Moody’s:


 


	
  Level

  	
   

  	
  Leverage

  Ratio

  	
   

  	
  Applicable

  Margin for

  Offshore

  Rate Loans

  and Letter

  of Credit

  Fee*

  	
   

  	
  Applicable

  Margin for

  Base Rate

  Loans

  	
   

  	
  Commitment

  Fee

  
	
  I

  	
   

  	
  > 3.75x

  	
   

  	
  325 bps

  	
   

  	
  225 bps

  	
   

  	
  50 bps

  
	
  II

  	
   

  	
  < 3.75x

  	
   

  	
  300 bps

  	
   

  	
  200 bps

  	
   

  	
  50 bps

  
	
  III

  	
   

  	
  < 2.75x

  	
   

  	
  275 bps

  	
   

  	
  175 bps

  	
   

  	
  50 bps

  
	
  IV

  	
   

  	
  < 1.75x

  	
   

  	
  250 bps

  	
   

  	
  150 bps

  	
   

  	
  45 bps

  
	
  V

  	
   

  	
  < 0.75x

  	
   

  	
  225 bps

  	
   

  	
  125 bps

  	
   

  	
  40 bps

  



 






*                                         The Applicable
Letter of Credit Fee Rate for Letters of Credit to support a Person’s
performance obligations (which shall not include any payment obligation) in 


 

















 


respect
of customer contracts shall equal 50% of the Applicable Letter of Credit Fee
Rate set forth above.


 


After
the six-month period immediately following the Effective Date, the applicable
Level shall be adjusted, to the extent applicable, 45 days (or, in the case of
the last fiscal quarter of any fiscal year, 105 days) after the end of each
fiscal quarter based on the Leverage Ratio as of the last day of such fiscal
quarter; provided that if the Company fails to deliver the financial
statements required by Section 7.01(a) or (b), as applicable,
and the related certificate required by Section 7.02(b) by the
45th day (or, if applicable, the 105th day) after any fiscal quarter, Level I
shall apply until such financial statements are delivered.


 


If,
as a result of any restatement of or other adjustment to the financial
statements of the Company or for any other reason, the Lenders determine that (a) the
Leverage Ratio as calculated by the Company as of any applicable date was
inaccurate and (b) a proper calculation of the Leverage Ratio would have
resulted in different pricing for any period, then (i) if the proper
calculation of the Leverage Ratio would have resulted in higher pricing for
such period, the Company shall automatically and retroactively be obligated to
pay to the Agent for the benefit of the applicable Lenders, promptly following
demand by the Agent (accompanied by supporting materials (which may be in the
form of financial statements prepared by the Company or the Independent
Auditor)), an amount equal to the excess of the amount of interest and fees
that should have been paid for such period over the amount of interest and fees
actually paid for such period; and (ii) if the proper calculation of the
Leverage Ratio would have resulted in lower pricing for such period, the applicable
Lenders shall have no obligation to repay any interest or fees to the Company; provided
that if, as a result of any restatement or other event a proper calculation of
the Leverage Ratio would have resulted in higher pricing for one or more
periods and lower pricing for one or more other periods (due to the shifting of
income or expenses from one period to another period or any similar reason),
then the amount payable by the Company pursuant to clause (i) above
shall be based upon the excess, if any, of the amount of interest and fees that
should have been paid for all applicable periods over the amount of interest
and fees paid for all such periods.


 

















 


SCHEDULE 1.01(b)


 


EXISTING BANK OF AMERICA LETTERS OF CREDIT


 


(See attached)


 

















 


	
  LC Number

  	
   

  	
  Issued by:

  	
   

  	
  Amount

  	
   

  	
  Maturity

  	
   

  	
  Type

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  T00000068021012

  	
   

  	
  Bank
  of America

  	
   

  	
  2,180,612.00

  	
   

  	
  9/30/2010

  	
   

  	
  Financial

  
	
  T00000007404478

  	
   

  	
  Bank
  of America

  	
   

  	
  605,000.00

  	
   

  	
  10/1/2010

  	
   

  	
  Financial

  
	
  T00000007411664

  	
   

  	
  Bank
  of America

  	
   

  	
  50,000.00

  	
   

  	
  5/21/2011

  	
   

  	
  Financial

  
	
  T00000068019231

  	
   

  	
  Bank
  of America

  	
   

  	
  315,000.00

  	
   

  	
  8/1/2011

  	
   

  	
  Financial

  
	
  T00000064508230

  	
   

  	
  Bank
  of America

  	
   

  	
  5,018,656.47

  	
   

  	
  8/15/2011

  	
   

  	
  Financial

  
	
  T00000003020923

  	
   

  	
  Bank
  of America

  	
   

  	
  75,000.00

  	
   

  	
  9/21/2011

  	
   

  	
  Financial

  
	
   

  	
   

  	
   

  	
   

  	
  8,244,268.47

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  T00000068004663

  	
   

  	
  Bank
  of America

  	
   

  	
  798,465.50

  	
   

  	
  9/25/2010

  	
   

  	
  Performance

  
	
  T00000068027460

  	
   

  	
  Bank
  of America

  	
   

  	
  68,345.60

  	
   

  	
  9/30/2010

  	
   

  	
  Performance

  
	
  T00000068004665

  	
   

  	
  Bank
  of America

  	
   

  	
  81,305.67

  	
   

  	
  9/30/2010

  	
   

  	
  Performance

  
	
  T00000068004666

  	
   

  	
  Bank
  of America

  	
   

  	
  81,305.67

  	
   

  	
  9/30/2010

  	
   

  	
  Performance

  
	
  T00000068034869

  	
   

  	
  Bank
  of America

  	
   

  	
  100,561.50

  	
   

  	
  9/30/2010

  	
   

  	
  Performance

  
	
  T00000068035435

  	
   

  	
  Bank
  of America

  	
   

  	
  352,005.91

  	
   

  	
  9/30/2010

  	
   

  	
  Performance

  
	
  T00000068034978

  	
   

  	
  Bank
  of America

  	
   

  	
  119,774.72

  	
   

  	
  10/4/2010

  	
   

  	
  Performance

  
	
  T00000068004668

  	
   

  	
  Bank
  of America

  	
   

  	
  100,243.60

  	
   

  	
  10/7/2010

  	
   

  	
  Performance

  
	
  T00000068004670

  	
   

  	
  Bank
  of America

  	
   

  	
  100,243.60

  	
   

  	
  10/7/2010

  	
   

  	
  Performance

  
	
  T00000068004702

  	
   

  	
  Bank
  of America

  	
   

  	
  18,000.00

  	
   

  	
  10/11/2010

  	
   

  	
  Performance

  
	
  T00000068035428

  	
   

  	
  Bank
  of America

  	
   

  	
  354,146.00

  	
   

  	
  10/22/2010

  	
   

  	
  Performance

  
	
  T00000068025907

  	
   

  	
  Bank
  of America

  	
   

  	
  83,538.40

  	
   

  	
  10/30/2010

  	
   

  	
  Performance

  
	
  T00000068017414

  	
   

  	
  Bank
  of America

  	
   

  	
  194,478.67

  	
   

  	
  10/31/2010

  	
   

  	
  Performance

  



 

















 


	
  LC Number

  	
   

  	
  Issued by:

  	
   

  	
  Amount

  	
   

  	
  Maturity

  	
   

  	
  Type

  
	
  T00000068021980

  	
   

  	
  Bank
  of America

  	
   

  	
  140,363.00

  	
   

  	
  10/31/2010

  	
   

  	
  Performance

  
	
  T00000068021981

  	
   

  	
  Bank
  of America

  	
   

  	
  210,545.00

  	
   

  	
  10/31/2010

  	
   

  	
  Performance

  
	
  T00000068023645

  	
   

  	
  Bank
  of America

  	
   

  	
  104,867.00

  	
   

  	
  10/31/2010

  	
   

  	
  Performance

  
	
  T00000068034982

  	
   

  	
  Bank
  of America

  	
   

  	
  34,339.26

  	
   

  	
  10/31/2010

  	
   

  	
  Performance

  
	
  T00000068035043

  	
   

  	
  Bank
  of America

  	
   

  	
  25,183.50

  	
   

  	
  11/1/2010

  	
   

  	
  Performance

  
	
  T00000068033659

  	
   

  	
  Bank
  of America

  	
   

  	
  8,790.15

  	
   

  	
  11/13/2010

  	
   

  	
  Performance

  
	
  T00000068034282

  	
   

  	
  Bank
  of America

  	
   

  	
  1,156,179.86

  	
   

  	
  11/28/2010

  	
   

  	
  Performance

  
	
  T00000068034987

  	
   

  	
  Bank
  of America

  	
   

  	
  250,000.00

  	
   

  	
  11/29/2010

  	
   

  	
  Performance

  
	
  T00000068028550

  	
   

  	
  Bank
  of America

  	
   

  	
  323,469.10

  	
   

  	
  11/30/2010

  	
   

  	
  Performance

  
	
  T00000068035609

  	
   

  	
  Bank
  of America

  	
   

  	
  70,401.18

  	
   

  	
  11/30/2010

  	
   

  	
  Performance

  
	
  T00000068004662

  	
   

  	
  Bank
  of America

  	
   

  	
  149,693.10

  	
   

  	
  12/1/2010

  	
   

  	
  Performance

  
	
  T00000068035798

  	
   

  	
  Bank
  of America

  	
   

  	
  100,000.00

  	
   

  	
  12/12/2010

  	
   

  	
  Performance

  
	
  T00000068034983

  	
   

  	
  Bank
  of America

  	
   

  	
  111,000.00

  	
   

  	
  12/13/2010

  	
   

  	
  Performance

  
	
  T00000068044514

  	
   

  	
  Bank
  of America

  	
   

  	
  230,982.44

  	
   

  	
  12/20/2010

  	
   

  	
  Performance

  
	
  T00000068034876

  	
   

  	
  Bank
  of America

  	
   

  	
  126,000.00

  	
   

  	
  12/29/2010

  	
   

  	
  Performance

  
	
  T00000068030178

  	
   

  	
  Bank
  of America

  	
   

  	
  69,985.70

  	
   

  	
  1/4/2011

  	
   

  	
  Performance

  
	
  T00000068035047

  	
   

  	
  Bank
  of America

  	
   

  	
  74,069.80

  	
   

  	
  1/6/2011

  	
   

  	
  Performance

  
	
  T00000068004659

  	
   

  	
  Bank
  of America

  	
   

  	
  89,807.88

  	
   

  	
  1/10/2011

  	
   

  	
  Performance

  
	
  T00000068034984

  	
   

  	
  Bank
  of America

  	
   

  	
  48,000.00

  	
   

  	
  1/10/2011

  	
   

  	
  Performance

  
	
  T00000068004674

  	
   

  	
  Bank
  of America

  	
   

  	
  4,827,000.00

  	
   

  	
  1/12/2011

  	
   

  	
  Performance

  
	
  T00000068034874

  	
   

  	
  Bank
  of America

  	
   

  	
  115,500.00

  	
   

  	
  1/15/2011

  	
   

  	
  Performance

  
	
  T00000068034875

  	
   

  	
  Bank
  of America

  	
   

  	
  38,500.00

  	
   

  	
  1/15/2011

  	
   

  	
  Performance

  
	
  T00000068035429

  	
   

  	
  Bank
  of America

  	
   

  	
  18,000.00

  	
   

  	
  1/21/2011

  	
   

  	
  Performance

  



 

















 


	
  LC Number

  	
   

  	
  Issued by:

  	
   

  	
  Amount

  	
   

  	
  Maturity

  	
   

  	
  Type

  
	
  T00000068035430

  	
   

  	
  Bank
  of America

  	
   

  	
  54,000.00

  	
   

  	
  1/21/2011

  	
   

  	
  Performance

  
	
  T00000068023647

  	
   

  	
  Bank
  of America

  	
   

  	
  1,070,682.00

  	
   

  	
  1/30/2011

  	
   

  	
  Performance

  
	
  T00000068035614

  	
   

  	
  Bank
  of America

  	
   

  	
  19,032.00

  	
   

  	
  1/31/2011

  	
   

  	
  Performance

  
	
  T00000068035799

  	
   

  	
  Bank
  of America

  	
   

  	
  70,844.90

  	
   

  	
  1/31/2011

  	
   

  	
  Performance

  
	
  T00000068035800

  	
   

  	
  Bank
  of America

  	
   

  	
  236,800.88

  	
   

  	
  1/31/2011

  	
   

  	
  Performance

  
	
  T00000068035911

  	
   

  	
  Bank
  of America

  	
   

  	
  10,000.00

  	
   

  	
  2/4/2011

  	
   

  	
  Performance

  
	
  T00000068035039

  	
   

  	
  Bank
  of America

  	
   

  	
  370,000.00

  	
   

  	
  2/12/2011

  	
   

  	
  Performance

  
	
  T00000068035040

  	
   

  	
  Bank
  of America

  	
   

  	
  370,000.00

  	
   

  	
  2/12/2011

  	
   

  	
  Performance

  
	
  T00000068035041

  	
   

  	
  Bank
  of America

  	
   

  	
  274,000.00

  	
   

  	
  2/12/2011

  	
   

  	
  Performance

  
	
  T00000068035437

  	
   

  	
  Bank
  of America

  	
   

  	
  65,000.00

  	
   

  	
  2/18/2011

  	
   

  	
  Performance

  
	
  T00000068035803

  	
   

  	
  Bank
  of America

  	
   

  	
  30,000.00

  	
   

  	
  2/20/2011

  	
   

  	
  Performance

  
	
  T00000068034281

  	
   

  	
  Bank
  of America

  	
   

  	
  115,617.99

  	
   

  	
  2/28/2011

  	
   

  	
  Performance

  
	
  T00000068035433

  	
   

  	
  Bank
  of America

  	
   

  	
  578,470.50

  	
   

  	
  2/28/2011

  	
   

  	
  Performance

  
	
  T00000068035611

  	
   

  	
  Bank
  of America

  	
   

  	
  74,069.80

  	
   

  	
  2/28/2011

  	
   

  	
  Performance

  
	
  T00000068033427

  	
   

  	
  Bank
  of America

  	
   

  	
  1,624,635.90

  	
   

  	
  3/25/2011

  	
   

  	
  Performance

  
	
  T00000068033990

  	
   

  	
  Bank
  of America

  	
   

  	
  61,533.00

  	
   

  	
  3/28/2011

  	
   

  	
  Performance

  
	
  T00000068034868

  	
   

  	
  Bank
  of America

  	
   

  	
  343,800.00

  	
   

  	
  4/4/2011

  	
   

  	
  Performance

  
	
  T00000068032957

  	
   

  	
  Bank
  of America

  	
   

  	
  50,073.84

  	
   

  	
  4/10/2011

  	
   

  	
  Performance

  
	
  T00000068035807

  	
   

  	
  Bank
  of America

  	
   

  	
  329,000.00

  	
   

  	
  4/11/2011

  	
   

  	
  Performance

  
	
  T00000068035610

  	
   

  	
  Bank
  of America

  	
   

  	
  71,416.80

  	
   

  	
  4/30/2011

  	
   

  	
  Performance

  
	
  T00000068034119

  	
   

  	
  Bank
  of America

  	
   

  	
  19,309.00

  	
   

  	
  5/16/2011

  	
   

  	
  Performance

  
	
  T00000068035914

  	
   

  	
  Bank
  of America

  	
   

  	
  65,000.00

  	
   

  	
  6/6/2011

  	
   

  	
  Performance

  



 

















 


	
  LC Number

  	
   

  	
  Issued by:

  	
   

  	
  Amount

  	
   

  	
  Maturity

  	
   

  	
  Type

  
	
  T00000068035616

  	
   

  	
  Bank
  of America

  	
   

  	
  106,952.00

  	
   

  	
  6/20/2011

  	
   

  	
  Performance

  
	
  T00000068035608

  	
   

  	
  Bank
  of America

  	
   

  	
  74,846.55

  	
   

  	
  6/28/2011

  	
   

  	
  Performance

  
	
  T00000068029338

  	
   

  	
  Bank
  of America

  	
   

  	
  95,914.54

  	
   

  	
  6/30/2011

  	
   

  	
  Performance

  
	
  T00000068035431

  	
   

  	
  Bank
  of America

  	
   

  	
  116,645.30

  	
   

  	
  7/20/2011

  	
   

  	
  Performance

  
	
  T00000068035613

  	
   

  	
  Bank
  of America

  	
   

  	
  53,540.53

  	
   

  	
  9/1/2011

  	
   

  	
  Performance

  
	
  T00000068004677

  	
   

  	
  Bank
  of America

  	
   

  	
  81,500.60

  	
   

  	
  9/15/2011

  	
   

  	
  Performance

  
	
  T00000068028548

  	
   

  	
  Bank
  of America

  	
   

  	
  42,453.73

  	
   

  	
  9/30/2011

  	
   

  	
  Performance

  
	
  T00000068035038

  	
   

  	
  Bank
  of America

  	
   

  	
  31,330.00

  	
   

  	
  9/30/2011

  	
   

  	
  Performance

  
	
  T00000068035612

  	
   

  	
  Bank
  of America

  	
   

  	
  191,650.74

  	
   

  	
  10/31/2011

  	
   

  	
  Performance

  
	
  T00000068035617

  	
   

  	
  Bank
  of America

  	
   

  	
  38,330.14

  	
   

  	
  10/31/2011

  	
   

  	
  Performance

  
	
  T00000068035806

  	
   

  	
  Bank
  of America

  	
   

  	
  135,968.00

  	
   

  	
  10/31/2011

  	
   

  	
  Performance

  
	
  T00000068034870

  	
   

  	
  Bank
  of America

  	
   

  	
  67,041.00

  	
   

  	
  3/30/2012

  	
   

  	
  Performance

  
	
  T00000068035805

  	
   

  	
  Bank
  of America

  	
   

  	
  418,797.00

  	
   

  	
  4/8/2012

  	
   

  	
  Performance

  
	
  T00000068035912

  	
   

  	
  Bank
  of America

  	
   

  	
  28,895.40

  	
   

  	
  6/30/2012

  	
   

  	
  Performance

  
	
  T00000068035913

  	
   

  	
  Bank
  of America

  	
   

  	
  28,895.40

  	
   

  	
  6/30/2012

  	
   

  	
  Performance

  
	
  T00000068035908

  	
   

  	
  Bank
  of America

  	
   

  	
  29,236.88

  	
   

  	
  7/16/2012

  	
   

  	
  Performance

  
	
  T00000068035615

  	
   

  	
  Bank
  of America

  	
   

  	
  210,000.00

  	
   

  	
  7/19/2012

  	
   

  	
  Performance

  
	
  T00000068035804

  	
   

  	
  Bank
  of America

  	
   

  	
  6,600,289.00

  	
   

  	
  9/3/2012

  	
   

  	
  Performance

  
	
   

  	
   

  	
   

  	
   

  	
  25,030,665.23

  	
   

  	
   

  	
   

  	
   

  



 
















 


SCHEDULE 1.01(c)


 


EXISTING JPMORGAN LETTERS OF CREDIT


 


(See attached)


 

















 


	
  LC Number

  	
   

  	
  Issued by:

  	
   

  	
  Amount

  	
   

  	
  Maturity

  	
   

  	
  Type

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CPCS
  - 762507

  	
   

  	
  JP
  Morgan

  	
   

  	
  15,000.00

  	
   

  	
  4/30/2011

  	
   

  	
  Financial

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  S-523070

  	
   

  	
  JP
  Morgan

  	
   

  	
  156,171.50

  	
   

  	
  1/10/2011

  	
   

  	
  Performance

  
	
  S-523678

  	
   

  	
  JP
  Morgan

  	
   

  	
  29,267.83

  	
   

  	
  1/10/2011

  	
   

  	
  Performance

  
	
  S-482432

  	
   

  	
  JP
  Morgan

  	
   

  	
  523,566.00

  	
   

  	
  7/5/2011

  	
   

  	
  Performance

  
	
  S-523679

  	
   

  	
  JP
  Morgan

  	
   

  	
  2,491,681.00

  	
   

  	
  10/4/2011

  	
   

  	
  Performance

  
	
   

  	
   

  	
   

  	
   

  	
  3,200,686.33

  	
   

  	
   

  	
   

  	
   

  



 

















 


SCHEDULE 2.01


 


COMMITMENTS AND PERCENTAGES


 


(See attached)


 

















 


	
  Lender

  	
   

  	
  Allocation

  	
   

  	
  % of Total

  	
   

  	
  Revolver

  	
   

  	
  % of Revolver

  	
   

  	
  Term Loan

  	
   

  	
  % of Term Loan

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BANK
  OF AMERICA MERRILL LYNCH

  	
   

  	
  130,000,000.00000000

  	
   

  	
  10.83333333

  	
  %

  	
  59,583,333.33333330

  	
   

  	
  10.83333333

  	
  %

  	
  70,416,666.66666670

  	
   

  	
  10.83333333

  	
  %

  
	
  JPMORGAN
  CHASE

  	
   

  	
  130,000,000.00000000

  	
   

  	
  10.83333333

  	
  %

  	
  59,583,333.33333330

  	
   

  	
  10.83333333

  	
  %

  	
  70,416,666.66666670

  	
   

  	
  10.83333333

  	
  %

  
	
  ROYAL
  BANK OF SCOTLAND

  	
   

  	
  130,000,000.00000000

  	
   

  	
  10.83333333

  	
  %

  	
  59,583,333.33333330

  	
   

  	
  10.83333333

  	
  %

  	
  70,416,666.66666670

  	
   

  	
  10.83333333

  	
  %

  
	
  WELLS
  FARGO BANK

  	
   

  	
  130,000,000.00000000

  	
   

  	
  10.83333333

  	
  %

  	
  59,583,333.33333330

  	
   

  	
  10.83333333

  	
  %

  	
  70,416,666.66666670

  	
   

  	
  10.83333333

  	
  %

  
	
  SUNTRUST
  BANK

  	
   

  	
  67,500,000.00000000

  	
   

  	
  5.62500000

  	
  %

  	
  30,937,500.00000000

  	
   

  	
  5.62500000

  	
  %

  	
  36,562,500.00000000

  	
   

  	
  5.62500000

  	
  %

  
	
  CREDIT
  AGRICOLE / CALYON

  	
   

  	
  67,500,000.00000000

  	
   

  	
  5.62500000

  	
  %

  	
  30,937,500.00000000

  	
   

  	
  5.62500000

  	
  %

  	
  36,562,500.00000000

  	
   

  	
  5.62500000

  	
  %

  
	
  TD
  BANK NATIONAL ASSOCIATION

  	
   

  	
  67,500,000.00000000

  	
   

  	
  5.62500000

  	
  %

  	
  30,937,500.00000000

  	
   

  	
  5.62500000

  	
  %

  	
  36,562,500.00000000

  	
   

  	
  5.62500000

  	
  %

  
	
  US
  BANK

  	
   

  	
  67,500,000.00000000

  	
   

  	
  5.62500000

  	
  %

  	
  30,937,500.00000000

  	
   

  	
  5.62500000

  	
  %

  	
  36,562,500.00000000

  	
   

  	
  5.62500000

  	
  %

  
	
  PNC /
  NATIONAL CITY BANK

  	
   

  	
  50,000,000.00000000

  	
   

  	
  4.16666667

  	
  %

  	
  22,916,666.66666670

  	
   

  	
  4.16666667

  	
  %

  	
  27,083,333.33333330

  	
   

  	
  4.16666667

  	
  %

  
	
  COMERICA
  BANK

  	
   

  	
  35,000,000.00000000

  	
   

  	
  2.91666667

  	
  %

  	
  16,041,666.66666670

  	
   

  	
  2.91666667

  	
  %

  	
  18,958,333.33333330

  	
   

  	
  2.91666667

  	
  %

  
	
  SUMITOMO
  MITSUI BANKING CORPORATION

  	
   

  	
  35,000,000.00000000

  	
   

  	
  2.91666667

  	
  %

  	
  16,041,666.66666670

  	
   

  	
  2.91666667

  	
  %

  	
  18,958,333.33333330

  	
   

  	
  2.91666667

  	
  %

  
	
  RAYMOND
  JAMES BANK

  	
   

  	
  30,000,000.00000000

  	
   

  	
  2.50000000

  	
  %

  	
  13,750,000.00000000

  	
   

  	
  2.50000000

  	
  %

  	
  16,250,000.00000000

  	
   

  	
  2.50000000

  	
  %

  
	
  BB&T

  	
   

  	
  25,000,000.00000000

  	
   

  	
  2.08333333

  	
  %

  	
  11,458,333.33333330

  	
   

  	
  2.08333333

  	
  %

  	
  13,541,666.66666670

  	
   

  	
  2.08333333

  	
  %

  
	
  CAPITAL
  ONE BANK

  	
   

  	
  25,000,000.00000000

  	
   

  	
  2.08333333

  	
  %

  	
  11,458,333.33333330

  	
   

  	
  2.08333333

  	
  %

  	
  13,541,666.66666670

  	
   

  	
  2.08333333

  	
  %

  
	
  CATERPILLAR
  FINANCIAL SERVICES CORP

  	
   

  	
  25,000,000.00000000

  	
   

  	
  2.08333333

  	
  %

  	
  11,458,333.33333330

  	
   

  	
  2.08333333

  	
  %

  	
  13,541,666.66666670

  	
   

  	
  2.08333333

  	
  %

  
	
  CREDIT
  INDUSTRIEL ET COMMERCIAL (CIC)

  	
   

  	
  25,000,000.00000000

  	
   

  	
  2.08333333

  	
  %

  	
  11,458,333.33333330

  	
   

  	
  2.08333333

  	
  %

  	
  13,541,666.66666670

  	
   

  	
  2.08333333

  	
  %

  
	
  HUNTINGTON
  NATIONAL

  	
   

  	
  25,000,000.00000000

  	
   

  	
  2.08333333

  	
  %

  	
  11,458,333.33333330

  	
   

  	
  2.08333333

  	
  %

  	
  13,541,666.66666670

  	
   

  	
  2.08333333

  	
  %

  
	
  MIZUHO

  	
   

  	
  25,000,000.00000000

  	
   

  	
  2.08333333

  	
  %

  	
  11,458,333.33333330

  	
   

  	
  2.08333333

  	
  %

  	
  13,541,666.66666670

  	
   

  	
  2.08333333

  	
  %

  
	
  NORTHERN
  TRUST BANK

  	
   

  	
  25,000,000.00000000

  	
   

  	
  2.08333333

  	
  %

  	
  11,458,333.33333330

  	
   

  	
  2.08333333

  	
  %

  	
  13,541,666.66666670

  	
   

  	
  2.08333333

  	
  %

  
	
  ASSOCIATED
  BANK

  	
   

  	
  20,000,000.00000000

  	
   

  	
  1.66666667

  	
  %

  	
  9,166,666.66666667

  	
   

  	
  1.66666667

  	
  %

  	
  10,833,333.33333330

  	
   

  	
  1.66666667

  	
  %

  
	
  BANK
  OF THE WEST

  	
   

  	
  20,000,000.00000000

  	
   

  	
  1.66666667

  	
  %

  	
  9,166,666.66666667

  	
   

  	
  1.66666667

  	
  %

  	
  10,833,333.33333330

  	
   

  	
  1.66666667

  	
  %

  
	
  BANCO
  SABADELL

  	
   

  	
  15,000,000.00000000

  	
   

  	
  1.25000000

  	
  %

  	
  6,875,000.00000000

  	
   

  	
  1.25000000

  	
  %

  	
  8,125,000.00000000

  	
   

  	
  1.25000000

  	
  %

  
	
  CITY
  NATIONAL

  	
   

  	
  15,000,000.00000000

  	
   

  	
  1.25000000

  	
  %

  	
  6,875,000.00000000

  	
   

  	
  1.25000000

  	
  %

  	
  8,125,000.00000000

  	
   

  	
  1.25000000

  	
  %

  
	
  RZB
  FINANCE

  	
   

  	
  15,000,000.00000000

  	
   

  	
  1.25000000

  	
  %

  	
  6,875,000.00000000

  	
   

  	
  1.25000000

  	
  %

  	
  8,125,000.00000000

  	
   

  	
  1.25000000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  1,200,000,000.0

  	
   

  	
  100.00000000

  	
  %

  	
  $

  	
  550,000,000.0

  	
   

  	
  100.00000000

  	
  %

  	
  $

  	
  650,000,000.0

  	
   

  	
  100.00000000

  	
  %

  
																	



 

















 


SCHEDULE 2.12


 


AMORTIZATION OF TERM A LOANS


 




	
  DATE

  	
   

  	
  PRINCIPAL PAYMENT

  (as a percentage of original principal

  amount of Term A Loans)

  
	
  December 31,
  2010

  	
   

  	
  2.5%

  
	
  March 31,
  2011

  	
   

  	
  2.5%

  
	
  June 30,
  2011

  	
   

  	
  2.5%

  
	
  September 30,
  2011

  	
   

  	
  2.5%

  
	
  December 31,
  2011

  	
   

  	
  2.5%

  
	
  March 31,
  2012

  	
   

  	
  2.5%

  
	
  June 30,
  2012

  	
   

  	
  2.5%

  
	
  September 30,
  2012

  	
   

  	
  2.5%

  
	
  December 31,
  2012

  	
   

  	
  2.5%

  
	
  March 31,
  2013

  	
   

  	
  2.5%

  
	
  June 30,
  2013

  	
   

  	
  2.5%

  
	
  September 30,
  2013

  	
   

  	
  2.5%

  
	
  December 31,
  2013

  	
   

  	
  2.5%

  
	
  March 31,
  2014

  	
   

  	
  2.5%

  
	
  June 30,
  2014

  	
   

  	
  2.5%

  
	
  September 30,
  2014

  	
   

  	
  2.5%

  
	
  December 31,
  2014

  	
   

  	
  2.5%

  
	
  March 31,
  2015

  	
   

  	
  2.5%

  
	
  June 30,
  2015

  	
   

  	
  2.5%

  
	
  Term
  A Maturity Date

  	
   

  	
  Remaining Outstanding Principal Balance

  






 

















 


SCHEDULE 2.22


 


AUCTION PROCEDURES


 


This Schedule is intended to summarize certain basic terms of the
reverse Dutch auction procedures pursuant to and in accordance with the terms
and conditions of Section 2.22 of the Credit Agreement, of which this
Schedule is a part. It is not intended to be a definitive statement of all of
the terms and conditions of a reverse Dutch auction, the definitive terms and
conditions for which shall be set forth in the applicable offering document.
None of the Agent, the Auction Manager or any other Agent-Related Person, or
any of their respective affiliates makes any recommendation pursuant to any
offering document as to whether or not any Term Lender should sell its Add-On
Term Loans to the Company pursuant to any offering documents, nor shall the
decision by the Agent, the Auction Manager or any other Agent-Related Person
(or any of their affiliates) in its respective capacity as a Term Lender to
sell its Add-On Term Loans to the Company be deemed to constitute such a
recommendation. Each Term Lender should make its own decision on whether to
sell any of its Add-On Term Loans and, if it decides to do so, the principal
amount of and price to be sought for such Add-On Term Loans. In addition, each
Term Lender should consult its own attorney, business advisor or tax advisor as
to legal, business, tax and related matters concerning each Auction and the
relevant offering documents.


 


Capitalized terms not otherwise defined in this Schedule have the
meanings assigned to them in the Credit Agreement.


 


(a)                                  Notice
Procedures.  In
connection with each Auction, the Company will provide notification to the
Auction Manager (for distribution to the Term Lenders holding the applicable
Add-On Term Loans that will be the subject of such Auction (each, an “Auction
Notice”). Each Auction Notice shall contain (i) the maximum principal
amount (calculated on the face amount thereof) of the Add-On Term Loans that
the Company offers to purchase in such Auction (the “Auction Amount”),
which shall be no less than $50,000,000 (unless another amount is agreed to by
the Agent); (ii) the range of discounts to par (the “Discount Range”),
expressed as a range of prices per $1,000 (in increments of $5), at which the
Company would be willing to purchase Add-On Term Loans in such Auction; and (iii) the
date on which such Auction will conclude, on which date Return Bids (as defined
below) will be due by 1:00 p.m. (as such date and time may be extended by
the Auction Manager at the request of the Company, such time the “Expiration
Time”).  Such Expiration Time may be
extended for a period not exceeding three (3) Business Days upon notice by
the Company to the Auction Manager received not less than 24 hours before the
original Expiration Time; provided, that only one extension per offer
shall be permitted. An Auction shall be regarded as a “failed auction” in the
event that either (i) the Company withdraws such Auction in accordance
with the terms hereof or (ii) the Expiration Time occurs with no
Qualifying Bids (as defined below) having been received.  In the event of a failed auction, the Company
shall not be permitted to deliver a new Auction Notice prior to the date
occurring three (3) Business Days after such withdrawal or Expiration
Time, as the case may be. 
Notwithstanding anything to the contrary contained herein, the Company
shall not initiate any Auction by delivering an Auction Notice to the Auction
Manager until after the conclusion (whether successful or failed) of the
previous Auction (if any), whether such conclusion occurs by withdrawal of such
previous Auction or the occurrence of the Expiration Time of such previous
Auction.


 

















 


(b)                                 Reply
Procedures.  In
connection with any Auction, each Term Lender wishing to participate in such
Auction shall, prior to the Expiration Time, provide the Auction Manager with a
notice of participation, in the form included in the respective offering
document (each, a “Return Bid”) which shall specify (i) a discount
to par that must be expressed as a price per $1,000 (in increments of $5) in
principal amount of the applicable Add-On Term Loans (the “Reply Price”)
within the Discount Range and (ii) the principal amount of such Add-On
Term Loans, in an amount not less than $1,000,000 or an integral multiple of
$100,000 in excess thereof, that such Term Lender offers for sale at its Reply
Price (the “Reply Amount”). A Term Lender may submit a Reply Amount that
is less than the minimum amount and incremental amount requirements described
above only if the Reply Amount comprises the entire amount of the applicable
Add-On Term Loans held by such Term Lender. 
Term Lenders may only submit one Return Bid per Auction but each Return
Bid may contain up to three (3) component bids, each of which may result
in a separate Qualifying Bid and each of which will not be contingent on any
other component bid submitted by such Term Lender resulting in a Qualifying
Bid.  In addition to the Return Bid, the
participating Term Lender must execute and deliver, to be held by the Auction
Manager, an assignment and acceptance in the form included in the offering
document (each, an “Auction Assignment and Assumption”). The Company
will not purchase any Add-On Term Loans at a price that is outside of the
applicable Discount Range, nor will any Return Bids (including any component
bids specified therein) submitted at a price that is outside such applicable
Discount Range be considered in any calculation of the Applicable Threshold
Price.


 


(c)                                  Acceptance
Procedures.  Based on
the Reply Prices and Reply Amounts received by the Auction Manager, the Auction
Manager, in consultation with the Company, will calculate the lowest purchase
price (the “Applicable Threshold Price”) for such Auction within the
Discount Range for such Auction that will allow the Company to complete the
Auction by purchasing the full Auction Amount (or such lesser amount of Add-On
Term Loans for which the Company has received Qualifying Bids). The Company
shall purchase the applicable Add-On Term Loans from each Term Lender whose
Return Bid is within the Discount Range and contains a Reply Price that is
equal to or less than the Applicable Threshold Price (each, a “Qualifying
Bid”). All applicable Add-On Term Loans included in Qualifying Bids
(including multiple component Qualifying Bids contained in a single Return Bid)
received at a Reply Price lower than the Applicable Threshold Price will be
purchased at such applicable Reply Prices and shall not be subject to
proration.


 


(d)                                 Proration
Procedures.  All Add-On
Term Loans offered in Return Bids (or, if applicable, any component thereof)
constituting Qualifying Bids at the Applicable Threshold Price will be
purchased at the Applicable Threshold Price; provided that if the
aggregate principal amount (calculated on the face amount thereof) of all
applicable Add-On Term Loans for which Qualifying Bids have been submitted in
any given Auction at the Applicable Threshold Price would exceed the remaining
portion of the Auction Amount (after deducting all applicable Add-On Term Loans
to be purchased at prices below the Applicable Threshold Price), the Company
shall purchase the Add-On Term Loans for which the Qualifying Bids submitted
were at the Applicable Threshold Price ratably based on the respective
principal amounts offered and in an aggregate amount equal to the amount
necessary to complete the purchase of the Auction Amount.  No Return Bids or any component thereof will
be accepted above the Applicable Threshold Price.


 

















 


(e)                                  Notification
Procedures.  The Auction
Manager will calculate the Applicable Threshold Price and post the Applicable
Threshold Price and proration factor onto an internet or intranet site
(including IntraLinks or another electronic workspace) in accordance with the
Auction Manager’s standard dissemination practices by 3:00 p.m. (local
time) on the same Business Day as the date the Return Bids were due (as such
due date may be extended in accordance with this Schedule).  The Auction Manager will insert the principal
amount of the applicable Add-On Term Loans to be assigned and the applicable
settlement date into each applicable Auction Assignment and Assumption received
in connection with a Qualifying Bid. 
Upon the request of the submitting Term Lender, the Auction Manager will
promptly return any Auction Assignment and Assumption received in connection
with a Return Bid that is not a Qualifying Bid.


 


(f)                                    Auction
Assignment and Assumption.  Each
Auction Notice and Auction Assignment and Assumption shall contain the
following representations and warranties by the Company:


 


“No Default or Event of Default has occurred and is continuing, or would
result from this Auction.


 


As of the date hereof, except as previously disclosed in writing to the
Agent and the Lenders, the Company represents and warrants that no Loan Party,
has any MNPI that both (a) has not been disclosed to the Agent and the
Lenders (other than because any such Lender does not wish to receive such MNPI)
prior to such time and (b) could reasonably be expected to have a material
effect upon, or otherwise be material to, such Lender’s decision to participate
in the Auction.”


 


(g)                                 Additional
Procedures.  Once
initiated by an Auction Notice, the Company may withdraw an Auction only in the
event that, as of such time, no Qualifying Bid has been received by the Auction
Manager or the Company has failed, or in good faith believes it will fail, to
satisfy one or more of the conditions set forth in Section 2.22 of the
Credit Agreement which are required to be met at the time which otherwise would
have been the time of purchase of the Add-On Term Loans pursuant to the
respective Auction. Furthermore, in connection with any Auction with respect to
particular Add-On Term Loans, upon submission by a Term Lender of a Return Bid,
such Term Lender will not have any withdrawal rights.  Any Return Bid (including any component bid
thereof) delivered to the Auction Manager may not be modified, revoked,
terminated or cancelled by a Term Lender. However, an Auction may become void
if the conditions to the purchase of the applicable Add-On Term Loans by the
Company required by the terms and conditions of Section 2.22 of the Credit
Agreement are not met.  The purchase
price in respect of each Qualifying Bid for which purchase by the Company is
required in accordance with the foregoing provisions shall be paid directly by
the Company to the respective assigning Term Lender on a settlement date as
determined jointly by the Company and the Auction Manager (which shall be not
later than ten (10) Business Days after the date Return Bids are due). The
Company shall execute each applicable Auction Assignment and Assumption
received in connection with a Qualifying Bid. 
All questions as to the form of documents and validity and eligibility
of Add-On Term Loans that are the subject of an Auction will be determined by
the Auction Manager, in consultation with the Company, and their determination
will be final and binding so long as such determination is not inconsistent
with the terms of


 

















 


Section 2.22 of the Credit Agreement or this
Schedule. The Auction Manager’s interpretation of the terms and conditions of
the offering document, in consultation with the Company, will be final and
binding so long as such interpretation is not inconsistent with the terms of Section 2.22
of the Credit Agreement or this Schedule. 
None of the Agent, the Auction Manager, any other Agent-Related Person
or any of their respective affiliates assumes any responsibility for the
accuracy or completeness of the information concerning the Company, the other
Loan Parties, or any of their affiliates (whether contained in an offering
document or otherwise) or for any failure to disclose events that may have
occurred and may affect the significance or accuracy of such information.


 


This
Schedule shall not require the Company to initiate any Auction.


 

















 


SCHEDULE 6.07

TO CREDIT AGREEMENT


 


ERISA


 


NONE


 
















 


SCHEDULE 6.10

TO CREDIT AGREEMENT


 


Taxes


 


1.             Matters
contained in Note 16 of the Notes to the Consolidated Financial Statements in
the Company’s most recent report on Form 10-Q.


2.             The Company is
regularly audited by federal, state, and foreign tax authorities.


a.     The Company is
not currently under examination by the Internal Revenue Service.


b.     The Company is
currently under examination by the following state tax authorities:


i.      Arizona —
sales/use tax for the years ended September 30, 2006 through September 30,
2010;


ii.     Maryland — income tax for the years ended September 30,
2005 through September 30, 2008;


iii.    Minnesota — income tax for the years ended September 30,
2007 through September 30, 2008;


iv.    New York - income tax for the years ended September 30,
2006 through September 30, 2008;


v.     New York (JLG
Industries prior to acquisition) - income tax for the years ended July 31,
2005 and December 6, 2006;


vi.    North Dakota (JLG Industries prior to acquisition) -
income tax for the years ended July 31, 2003 through July 31, 2006;
and


vii.   Washington — B&O tax for the years September 30,
2005 through September 30, 2009.


c.     The Company is
currently under examination by the following foreign tax authorities:


i.      Belguim - The
Belgian tax authorities are currently auditing JLG Manufacturing Europe BVBA
for the tax period August 1, 2006 through September 30, 2007, and
have issued a letter proposing disallowance of approximately 25.0 million euro
of beneficial tax return positions. The Company anticipates a settlement of the
audit with a significantly reduced disallowance before September 30, 2010.


 

















 


SCHEDULE 6.12


TO CREDIT AGREEMENT


 


Environmental Matters


 


1.     Oshkosh
Corporation (the “Company”), South Side of Oshkosh Regional Trichloroethylene
(TCE) Groundwater Contamination Issue at  North Plant
Facility, Oshkosh, WI:


The
Company conducted a soil and groundwater contamination study in the area of its
North Plant facility in Oshkosh, Wisconsin, which includes the investigation of
a regional trichloroethylene (TCE) groundwater plume.  In November 1991, TCE was detected above
the maximum contamination level in leaking underground storage tank monitoring
wells located on a neighboring property to the east of the Company’s South
Plant.  As a result, the WDNR asked the
Company and other potentially responsible parties (PRPs) in the area to conduct
soil and groundwater testing.  The
Company has conducted soil and groundwater testing at its facilities in
cooperation with the WDNR.  Other
cooperating property owners in the area have also conducted tests.  Based on the results of these tests, the
Company believes there may be multiple sources in the area.


 


The
Company’s South Plant Complex was removed from the WDNR’s list of PRPs based on
a comprehensive soil and groundwater investigation.  Some non-TCE soil contamination was
discovered as a result of the study and was subsequently remediated. The
WDNR-approved remediation project has since been closed.


 


The
study at the North Plant showed the highest concentrations of TCE were in a
monitoring well and soil boring located near the west property line that is
upgradient from the North Plant facility. 
TCE also was detected off of the Company’s property at the Airport
Property, which is regionally upgradient from the North Plant, and also at
distant side-gradient locations.  Based
on conversations between the Company and the WDNR, the Company conducted a soil
and groundwater study of the Airport Property west of the Canadian National’s
spur property that abuts the edge of the Company’s North Plant. TCE was
detected in the groundwater above the WDNR enforcement standard at the Airport
Property.  Based on the results of the
study, it appears that there is a TCE source on the Airport Property.  Because the groundwater flow system in this
area is complex due to the weathered and fractured bedrock, and because
off-site TCE sources unrelated to the Company have been confirmed, the Company
recommended to the WDNR that it coordinate a regional investigation of the
groundwater flow direction and quality to address the regional scope of the
issue.  It should be noted that the City
of Oshkosh obtains its water supply from Lake Winnebago versus groundwater
wells.


 


Based
on the soil and groundwater studies conducted at the North Plant and at the Airport
Property, the Company submitted a case closure request via the WDNR’s GIS
Registry.  The GIS Registry is a computer
tool available on the Internet used to store information on closed sites and
make if available to the public and WDNR staff. 
On July 13, 2009, the WDNR issued a case closure letter to the
Company.  The case closure is subject to
certain site conditions being met associated with the residual soil TCE
contamination that remains on site and the groundwater impacted by TCE
contamination.  Additionally, the WDNR
has stated that they will continue to investigate the phantom chlorinated (TCE)
solvent contamination in the groundwater in this area of Oshkosh to locate the
source(s).  As such, this case is subject
to being reopened by the WDNR.


 

















 


As
of June 30, 2010, the Company has an environmental reserve of $1,240,077
related to this matter to cover future potential costs should the WDNR reopen
the case.  The Company has put its
current and former insurance carriers on notice of a potential claim.  With the Wisconsin Supreme Court decision in
Johnson Controls v. Employers Ins. of Wausau et al., 665 N.W. 2d 463 (2003),
the Company, with the assistance of outside legal counsel, has prepared and
submitted an insurance claim to Nationwide Insurance/Wausau Insurance Companies
for past costs incurred with this project. 
The Company and Nationwide/Wausau Insurance are currently discussing
issues associated with our claim.


 


2.       Oshkosh
Corporation, Former Town of Algoma Landfill - Regional Trichloroethylene (TCE)
Groundwater Contamination Issue, Oshkosh, WI:


 


In
1972, the Company acquired the former Town of Algoma Landfill, located between
the Company’s North and South Plants, after it had been abandoned.  The subject property is approximately 3.5 acres
in size and was believed to be used for the disposal of household waste
only.  As part of the TCE groundwater
investigation (see Item #1 above), the WDNR named the Town of Algoma, a
registered Wisconsin municipality, a PRP and requested it or the Company
investigate the landfill’s groundwater quality. 
The Company also put the Town of Algoma on notice of its liability.  After discussions with the Town of Algoma,
the Company proceeded alone in a groundwater quality study of the
landfill.  TCE compounds were detected,
but when compared to the regional TCE concentrations in the groundwater it is
believed they do not indicate a release from the landfill.  To confirm this, the WDNR requested that the
Company install one additional groundwater monitoring well next to the fill
area.  The Company installed the
additional monitoring well and the analytical test results support the position
that the landfill is not a source of the TCE contamination.  The WDNR has agreed with this position and
has since closed out the case related to the TCE.


 


In
the future, the WDNR may request the Company to address the former landfill
under the WDNR’s landfill rules.  As
such, as of June 30, 2010, the Company has an environmental reserve of
$100,655 related to future potential work at the former the landfill.


The
Company has put its current and former insurance carriers on notice of a
potential claim.  With the Wisconsin
Supreme Court decision in Johnson Controls v. Employers Ins. of Wausau et al.,
665 N.W. 2d 463 (2003), the Company, with the assistance of outside legal
counsel, has prepared and submitted an insurance claim to Nationwide
Insurance/Wausau Insurance Companies for past costs incurred with this
project.  The Company and Nationwide/Wausau
Insurance are currently discussing issues associated with our claim.


 


3.     JLG Industries, Inc.,
New Philadelphia, OH:


 


JLG Industries, Inc. (“JLG”)
previously owned real property in New Philadelphia, Ohio with respect to which
two separate events took place that could require cleanup under applicable
Environmental Laws.  Both such events
took place prior to the date that JLG acquired the real property by means of a
merger.  The first event related to a
groundwater plume that was contaminated by a release or spill that, to JLG’s
knowledge, occurred on a separate piece of real property (not owned or operated
by JLG or the Seller) and migrated under the real property previously owned by
JLG.  The second event related to
releases of chromium on the real property previously owned by JLG; with respect
to which mitigation and remedial actions were undertaken by JLG, prior to JLG’s
sale of the real property.  The remedial
actions were, to JLG’s knowledge, consistent with the then-publicly available
information pertaining to the Voluntary Action Program adopted by the Ohio
Environmental Protection Agency.  The
real property was sold to NP Real Estate Inc., a subsidiary of the Alamo Group,
on February 3, 2006.  As part of the



 

















 


property transaction
agreement, JLG agreed to provide indemnity in respect of certain environmental
matters, subject to limitations on JLG’s indemnification obligations as set
forth in that certain Asset Purchase Agreement, among JLG, certain of its
Subsidiaries, Alamo Group (OH), Inc., NP Real Estate Inc. and Alamo Group
Inc.  The indemnity is for a 6-year
period commencing on February 3, 2006 with a cap of $10 million and a $1.9
million deductible.


 


4.     JLG Industries, Inc.,
Tonneins, France


 


JLG France SAS (“JLG France”)
manufactures aerial work platforms and telescopic material handlers at two
locations in Tonneins, France, identified as Delta 1 and Delta 2.  JLG
France owns Delta 1 and leases Delta 2.  
JLG France plans to consolidate its Tonneins manufacturing into the Delta
2 site and to sell the Delta 1 property. 
In July of 2010, JLG France commissioned a Phase II Environmental
Site Assessment on the Delta 1 property.  The soil and groundwater test
results show low level impacts of hydrocarbon and metals due to activity that
occurred prior to JLG France’s acquisition of the property.  JLG France’s environmental consultant has
estimated the cost to remediate the site to be less than $100,000.  JLG France is currently evaluating the
remediation options.


 

















 


SCHEDULE 6.14

TO CREDIT AGREEMENT


 


Capitalization;
Subsidiaries and Minority Interests


 


A.                    Capitalization
of the Company and its  Subsidiaries


 


Company


Oshkosh
Corporation is authorized to issue 300,000,000 shares of $.01 par value Common
Stock.  At September 1, 2010,
90,568,211 shares of Common Stock were issued and outstanding,
respectively.  The Company is also
authorized to issue up to 2,000,000 shares of $.01 par value Preferred Stock,
none of which were issued or outstanding at September 1, 2010.


 


	
  Subsidiary

  	
   

  	
  Parent Company

  	
   

  	
  Percent Owned

  	
   

  	
  Class of

  Stock

  	
   

  	
  No. of

  Shares

  Outstanding

  	
   

  
	
  Access Financial Solutions, Inc.

  	
   

  	
  JLG
  Industries, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  10

  	
   

  
	
  AK Specialty Vehicles B.V.

  	
   

  	
  Oshkosh
  Group B.V.

  	
   

  	
  100.00

  	
  %

  	
  Capital
  Stock

  	
   

  	
  18,000

  	
   

  
	
  Atlantic Emergency Solutions, LLC

  	
   

  	
  Pierce
  Manufacturing Inc.

  	
   

  	
  100.00

  	
  %

  	
  —

  	
   

  	
   

  	
   

  
	
  Audubon Manufacturing Corporation

  	
   

  	
  Concrete
  Equipment Company, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  50,000

  	
   

  
	
  Concrete Equipment Company, Inc.

  	
   

  	
  McNeilus
  Companies, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  1.222222

  	
   

  
	
  Fulton Industries, Inc.

  	
   

  	
  JLG
  Industries, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  10

  	
   

  
	
  Fulton International, Inc.

  	
   

  	
  JLG
  Industries, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  250

  	
   

  
	
  Fulton Services Limited

  	
   

  	
  JLG
  Investments, LP

  	
   

  	
  100.00

  	
  %

  	
  Capital
  Stock

  	
   

  	
  1,000

  	
   

  
	
  GI Industries, Inc.

  	
   

  	
  JLG
  Industries, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  100

  	
   

  
	
  Iowa Contract Fabricators, Inc.

  	
   

  	
  McNeilus
  Companies, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  6,737

  	
   

  
	
  Iowa Mold Tooling Co., Inc.

  	
   

  	
  McNeilus
  Companies, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  1,000

  	
   

  
	
  JerrDan Corporation

  	
   

  	
  McNeilus
  Companies, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  1,000

  	
   

  
	
  JLG Deutschland GmbH

  	
   

  	
  JLG
  Industries GmbH

  	
   

  	
  100.00

  	
  %

  	
  Capital
  Stock

  	
   

  	
  6,200,000

  	
   

  
	
  JLG Equipment Services Limited

  	
   

  	
  JLG
  Investments, LP

  	
   

  	
  100.00

  	
  %

  	
  Ordinary

  	
   

  	
  10,000

  	
   

  
	
  JLG Equipment Services, Inc.

  	
   

  	
  JLG
  Industries, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  10

  	
   

  
	
  JLG Europe BV

  	
   

  	
  JLG
  Investments, LP

  	
   

  	
  100.00

  	
  %

  	
  Capital
  Stock

  	
   

  	
  5,450

  	
   

  
	
  JLG France SAS

  	
   

  	
  JLG
  Europe BV

  	
   

  	
  100.00

  	
  %

  	
  Capital
  Stock

  	
   

  	
  299,824

  	
   

  
	
  JLG Industries (Italia) SRL

  	
   

  	
  JLG
  Europe 

  	
   

  	
  99.0

  	
  %

  	
  Capital
  Stock 

  	
   

  	
  10,197

  	
   

  
	
   

  	
   

  	
  JLG
  Industries GmbH

  	
   

  	
  1.0

  	
  %

  	
  Capital
  Stock

  	
   

  	
  103

  	
   

  
	
  JLG Industries (Proprietary) Limited

  	
   

  	
  JLG
  Europe BV

  	
   

  	
  100.00

  	
  %

  	
  Capital
  Stock

  	
   

  	
  1

  	
   

  
	
  JLG Industries (United Kingdom) Limited

  	
   

  	
  JLG
  Europe BV

  	
   

  	
  100.00

  	
  %

  	
  Capital
  Stock

  	
   

  	
  2

  	
   

  
	
  JLG Industries GmbH

  	
   

  	
  JLG
  Europe BV

  	
   

  	
  100.00

  	
  %

  	
  Capital
  Stock

  	
   

  	
  1

  	
   

  
	
  JLG Industries, Inc.

  	
   

  	
  McNeilus
  Companies, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  1,000

  	
   

  



 

















 


	
  Subsidiary

  	
   

  	
  Parent Company

  	
   

  	
  Percent Owned

  	
   

  	
  Class of

  Stock

  	
   

  	
  No. of

  Shares

  Outstanding

  	
   

  
	
  JLG International LLC

  	
   

  	
  JLG
  Industries, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Membership
  Units

  	
   

  	
  100

  	
   

  
	
  JLG Investments, LP

  	
   

  	
  JLG
  Industries, Inc.

  	
   

  	
  95.86

  	
  %

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JLG
  International LLC

  	
   

  	
  4.14

  	
  %

  	
   

  	
   

  	
   

  	
   

  
	
  JLG Latino Americana Ltda.

  	
   

  	
  JLG
  Equipment Services, Inc.

  	
   

  	
  99.80

  	
  %

  	
  Quotas

  	
   

  	
  49,900

  	
   

  
	
   

  	
   

  	
  JLG
  Industries, Inc.

  	
   

  	
  0.2

  	
  %

  	
  Quotas

  	
   

  	
  100

  	
   

  
	
  JLG Manufacturing Europe BVBA

  	
   

  	
  JLG
  Europe BV

  	
   

  	
  99.0

  	
  %

  	
  Shares

  	
   

  	
  99

  	
   

  
	
   

  	
   

  	
  JLG
  Industries GmbH

  	
   

  	
  1.0

  	
  %

  	
   

  	
   

  	
  1

  	
   

  
	
  JLG Manufacturing Services Europe Maatschap

  	
   

  	
  JLG
  Manufacturing Europe BVBA

  	
   

  	
  99.95

  	
  %

  	
  Partnership
  Units

  	
   

  	
  99.95

  	
   

  
	
   

  	
   

  	
  JLG
  Europe BV

  	
   

  	
   0.05

  	
  %

  	
  Partnership
  Units

  	
   

  	
  .05

  	
   

  
	
  JLG Manufacturing, LLC

  	
   

  	
  JLG
  Industries, Inc.

  	
   

  	
  99.0

  	
  %

  	
  Membership
  

  	
   

  	
  99

  	
   

  
	
   

  	
   

  	
  Fulton
  Industries, Inc.

  	
   

  	
  1.0

  	
  %

  	
  Units

  	
   

  	
  1

  	
   

  
	
  JLG MHD, Inc.

  	
   

  	
  JLG
  Industries, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  10

  	
   

  
	
  JLG Polska Sp z.o .o.

  	
   

  	
  JLG
  Europe BV

  	
   

  	
  100.00

  	
  %

  	
  Capital
  Stock

  	
   

  	
  100

  	
   

  
	
  JLG Prolift Pty Limited

  	
   

  	
  JLG
  Industries, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Shares

  	
   

  	
  1

  	
   

  
	
  JLG Properties Australia PTY Limited

  	
   

  	
  JLG
  Industries, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Capital
  Stock

  	
   

  	
  225,000

  	
   

  
	
  JLG Sverige AB

  	
   

  	
  JLG
  Europe BV

  	
   

  	
  100.00

  	
  %

  	
  Capital
  Stock

  	
   

  	
  6,250

  	
   

  
	
  JLG-MHD Indiana, Inc.

  	
   

  	
  JLG
  Industries, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  10

  	
   

  
	
  Kensett Fabricators, Inc.

  	
   

  	
  McNeilus
  Companies, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  1,000

  	
   

  
	
  Kewaunee Fabrications, L.L.C.

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  100.00

  	
  %

  	
  —

  	
   

  	
   

  	
   

  
	
  LMI Finance L.P.

  	
   

  	
  Oshkosh
  Logistics Corporation (General Partner)

  	
   

  	
  0.10

  	
  %

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  McNeilus
  Companies, Inc. (Limited Partner)

  	
   

  	
  99.90

  	
  %

  	
   

  	
   

  	
   

  	
   

  
	
  London (Mtl) Inc.

  	
   

  	
  London
  Machinery Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  1,125

  	
   

  
	
  London Machinery Inc.

  	
   

  	
  McNeilus
  Companies, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  10

  	
   

  
	
  McIntire Fabricators, Inc.

  	
   

  	
  McNeilus
  Companies, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  6,313

  	
   

  
	
  McNeilus Companies, Inc.

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  100.00

  	
  %

  	
  Class A
  Voting

  	
   

  	
  76,061

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Class B
  Non-voting

  	
   

  	
  7,380,264

  	
   

  
	
  McNeilus Financial Services, Inc.

  	
   

  	
  McNeilus
  Companies, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  1,000,000

  	
   

  
	
  McNeilus Financial, Inc.

  	
   

  	
  McNeilus
  Truck and Manufacturing, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  125,000

  	
   

  
	
  McNeilus Truck and Manufacturing, Inc.

  	
   

  	
  McNeilus
  Companies, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  102,950

  	
   

  
	
  Medtec Ambulance Corporation

  	
   

  	
  McNeilus
  Companies, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  38.5875

  	
   

  
	
  Oshkosh Arabia FZE

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  100.00

  	
  %

  	
  Capital
  Stock

  	
   

  	
  1

  	
   

  
	
  Oshkosh Asia Holdings Limited

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  100.00

  	
  %

  	
  Ordinary

  	
   

  	
  100

  	
   

  
	
  Oshkosh Commercial (Beijing) Co., Ltd.

  	
   

  	
  Oshkosh
  Asia Holdings Limited

  	
   

  	
  100.00

  	
  %

  	
  —

  	
   

  	
  100

  	
   

  



 

















 


	
  Subsidiary

  	
   

  	
  Parent Company

  	
   

  	
  Percent Owned

  	
   

  	
  Class of

  Stock

  	
   

  	
  No. of

  Shares

  Outstanding

  	
   

  
	
  Oshkosh Equipment Finance, L.L.C.

  	
   

  	
  Oshkosh/McNeilus
  Financial Services, Inc

  	
  .

  	
  100.00

  	
  %

  	
  —

  	
   

  	
   

  	
   

  
	
  Oshkosh European Holdings S.L.

  	
   

  	
  Windmill
  Ventures C.V.

  	
   

  	
  100.00

  	
  %

  	
  Ordinary

  	
   

  	
  5,006

  	
   

  
	
  Oshkosh Group B.V.

  	
   

  	
  Oshkosh
  European Holdings S.L.

  	
   

  	
  99.5

  	
  %

  	
  Common

  	
   

  	
  199

  	
   

  
	
   

  	
   

  	
  Summit
  Performance Systems, L.L.C.

  	
   

  	
  0.5

  	
  %

  	
  Common

  	
   

  	
  1

  	
   

  
	
  Oshkosh Italy, B.V.

  	
   

  	
  Oshkosh
  Group B.V.

  	
   

  	
  100.00

  	
  %

  	
  Shares

  	
   

  	
  18,300

  	
   

  
	
  Oshkosh JLG (Tianjin) Equipment Technology
  Co., Ltd.

  	
   

  	
  JLG
  Equipment Services Limited

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  	
   

  	
   

  
	
  Oshkosh Logistics Corporation

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  1,000

  	
   

  
	
  Oshkosh Specialty Vehicles (UK) Limited

  	
   

  	
  Oshkosh
  Specialty Vehicles, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Ordinary

  	
   

  	
  1,000

  	
   

  
	
  Oshkosh Specialty Vehicles, Inc.

  	
   

  	
  McNeilus
  Companies, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  1,000

  	
   

  
	
  Oshkosh Truck (UK) Limited

  	
   

  	
  Oshkosh
  Unipower Limited

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  4

  	
   

  
	
  Oshkosh Unipower Limited

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  100.00

  	
  %

  	
  Ordinary

  	
   

  	
  1

  	
   

  
	
  Oshkosh/McNeilus Financial Services Partnership

  	
   

  	
  Oshkosh/McNeilus
  Financial Services, Inc.

  	
  .

  	
  50.00

  	
  %

  	
  —

  	
   

  	
   

  	
   

  
	
  Oshkosh/McNeilus Financial Services, Inc.

  	
   

  	
  McNeilus
  Financial Services, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  104,600

  	
   

  
	
  Oshkosh-JLG (Singapore) Technology Equipment
  Private Limited

  	
   

  	
  JLG
  Investments, LP

  	
   

  	
  100.00

  	
  %

  	
  Ordinary

  	
   

  	
  1

  	
   

  
	
  Pierce Manufacturing Inc.

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  410,079

  	
   

  
	
  Pierce Manufacturing International, Inc.

  	
   

  	
  Pierce
  Manufacturing Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  1,000

  	
   

  
	
  Pierce Western Region Refurbishment
  Center, Inc.

  	
   

  	
  Pierce
  Manufacturing Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  100,000

  	
   

  
	
  Platformas Elevadoras JLG Iberica S.L.

  	
   

  	
  JLG
  Europe BV

  	
   

  	
  100.00

  	
  %

  	
  Capital
  Stock

  	
   

  	
  3,010

  	
   

  
	
  Premco Products Inc.

  	
   

  	
  JLG
  Industries, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  10,000

  	
   

  
	
  SC Medias Industries
  SRL

  	
   

  	
  Oshkosh
  Group B.V.

  	
   

  	
  99.999616546

  	
  %

  	
  Capital
  Stock

  	
   

  	
  2,607,865

  	
   

  
	
   

  	
   

  	
  JLG
  Europe B.V.

  	
   

  	
  0.000383454

  	
  %

  	
  Capital
  Stock

  	
   

  	
  10

  	
   

  
	
  Smit Mobile Equipment B.V.

  	
   

  	
  AK
  Specialty Vehicles B.V.

  	
   

  	
  100.00

  	
  %

  	
  Capital
  Stock

  	
   

  	
  400

  	
   

  
	
  Summit Performance Systems, L.L.C.

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  100.00

  	
  %

  	
  —

  	
   

  	
   

  	
   

  
	
  TGC Industries, Inc.

  	
   

  	
  GI
  Industries, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Class A
  Common

  	
   

  	
  2,138

  	
   

  
	
  Total Mixer Technologies, L.L.C.

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  100.00

  	
  %

  	
  —

  	
   

  	
   

  	
   

  
	
  Viking Truck & Equipment Sales, Inc.
  (Michigan)

  	
   

  	
  McNeilus
  Financial, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  22,500

  	
   

  
	
  Viking Truck & Equipment Sales, Inc.
  (Ohio)

  	
   

  	
  McNeilus
  Financial, Inc.

  	
   

  	
  100.00

  	
  %

  	
  Common

  	
   

  	
  250

  	
   

  



 

















 


	
  Subsidiary

  	
   

  	
  Parent Company

  	
   

  	
  Percent Owned

  	
   

  	
  Class of

  Stock

  	
   

  	
  No. of

  Shares

  Outstanding

  	
   

  
	
  Windmill Ventures C.V.

  	
   

  	
  Summit
  Performance Systems, L.L.C.

  	
   

  	
  1.0

  	
  %

  	
  —

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Total
  Mixer Technologies, L.L.C.

  	
   

  	
  .5

  	
  %

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  98.5

  	
  %

  	
   

  	
   

  	
   

  	
   

  



 

















 


	
  Investment

  	
   

  	
  Parent Company

  	
   

  	
  Percent Owned

  	
   

  	
  Class of Stock

  	
   

  	
  No. of Shares

  Outstanding

  	
   

  
	
  RiRent Europe B.V.

  	
   

  	
  JLG
  Europe B.V.

  	
   

  	
  50

  	
  %

  	
  —

  	
   

  	
   

  	
   

  
	
  Mezcladoras Y Trailers
  de Mexico, S.A. de C.V.

  	
   

  	
  McNeilus
  Truck and Manufacturing, Inc.

  	
   

  	
  49.00

  	
  %

  	
  Fixed
  Capital Series B

  	
   

  	
  24,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Variable
  Capital Series B

  	
   

  	
  379,029

  	
   

  
	
  Chasises Y
  Autopartes Oshmex S.A. de C.V.

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  49.00

  	
  %

  	
  Series A

  	
   

  	
  22,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Series B

  	
   

  	
  4,230,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Series C

  	
   

  	
  56,403,005

  	
   

  
	
  Comercializadora de
  Chasises S.A. de C.V.

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  45.00

  	
  %

  	
  Shares

  	
   

  	
  45

  	
   

  
	
  Enova Systems, Inc.

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  1.00

  	
  %

  	
  Series B
  Convertible Preferred Stock

  	
   

  	
  24,046

  	
   

  
	
  Oshkosh Middle East E.C.

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  19.00

  	
  %

  	
  Common

  	
   

  	
  23,750

  	
   

  
	
  Snozzle Enterprises, Inc.

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  49.00

  	
  %

  	
  Common

  	
   

  	
  490

  	
   

  
	
  Snozzle Limited Partnership

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  49.00

  	
  %

  	
  Partnership
  Units

  	
   

  	
  49

  	
   

  
	
  Crash Rescue Equipment Services, Inc.

  	
   

  	
  Oshkosh
  Corporation

  	
   

  	
  100.00

  	
  %

  	
  Non-voting
  preferred

  	
   

  	
  420,816

  	
   

  



 






 












 


SCHEDULE 7.14


TO AMENDED CREDIT AGREEMENT


 


Material Properties


 


MORTGAGED REAL PROPERTY


 


Oshkosh
Corporation


333
W 29th Ave.


Oshkosh,
WI 54902


500
W Waukau Ave.


Oshkosh,
WI 54902


324
W 29th Ave.


Oshkosh,
WI 54902


370
W Waukau Ave.


Oshkosh,
WI 54902


2307
Oregon St.


Oshkosh,
WI 54902


2737
Harrison St.


Oshkosh,
WI 54901


329
W 20th Ave.


Oshkosh,
WI 54902


2948
Bradley St.


Oshkosh,
WI 54902


4325
South Washburn


Oshkosh,
WI 54901


3135
Oregon St.


Oshkosh,
WI 54902


3740
Fisk Ave.


Oshkosh,
WI 54901


1425
University Dr.


Menasha,
WI 54952


 


Iowa
Mold Tooling Co., Inc.


500
West US Highway 18


Garner, IA
50438


 


Pierce
Manufacturing Inc.


2600
American Dr.


Appleton,
WI 54914


3100
N. McCarthy Rd.


Appleton,
WI 54913


 

















 


Kewaunee
Fabrications, LLC


520
N Main St.


Kewaunee,
WI 54216


 


JLG
Industries, Inc.


1
JLG Drive


McConnellsburg,
PA 17233


560
Walnut Bottom Rd.


Shippensburg,
PA 17257


600
East Chestnut St.


Orrville,
OH 44667


441
Weber Ln.


Bedford,
PA 15522


450
Sunnyside Rd.


Bedford,
PA 15522


 

















 


Schedule 8.01


 


Permitted Liens


 


Oshkosh Corporation


 


	
  JURISDICTION

  	
   

  	
  SECURED

  PARTY

  	
   

  	
  FILE

  NUMBER

  	
   

  	
  FILING

  DATE

  	
   

  	
  SUMMARY

  COLLATERAL

  DESCRIPTION

  	
   

  	
  ADDITIONAL

  FILINGS

  
	
  Wisconsin
  Department of Financial Institutions – UCC Liens

  	
   

  	
  Bank
  of America, N.A. c/o Banc of America Leasing & Capital, LLC, as successor
  in interest to Fleet National Bank

  	
   

  	
  020017449934

  	
   

  	
  9/30/2002

  	
   

  	
  One
  Cessna aircraft, two Rolls Royce aircraft engines and one Garrett auxiliary
  power unit.

  	
   

  	
  Continuation
  filed 4/28/2007, #070006092421

  Amendment filed 5/1/2007, #070006231517

  Amendment filed 3/20/2008, #080003863626

  
	
  Wisconsin
  Department of Financial Institutions – UCC Liens

  	
   

  	
  Banc
  of America Leasing & Capital, LLC

  	
   

  	
  100006830118

  	
   

  	
  6/3/2010

  	
   

  	
  One
  Cessna aircraft, two Rolls Royce aircraft engines and one Allied Signal
  auxiliary power unit.

  	
   

  	
   

  



 

















 


Pierce Manufacturing, Inc.


 


	
  JURISDICTION

  	
   

  	
  SECURED

  PARTY

  	
   

  	
  FILE

  NUMBER

  	
   

  	
  FILING

  DATE

  	
   

  	
  SUMMARY

  COLLATERAL

  DESCRIPTION

  	
   

  	
  ADDITIONAL

  FILINGS

  
	
  Wisconsin
  Department of Financial Institutions – UCC Liens

  	
   

  	
  Navistar
  Financial Corporation

  	
   

  	
  01869289

  	
   

  	
  8/2/1999

  	
   

  	
  All
  International trucks and chassis.

  	
   

  	
  Continuation
  filed 2/4/2004, #040001966628; Amendment filed 6/27/2005, #050009599537;
  Continuation filed 3/10/2009, #090002936828

  
	
  Wisconsin
  Department of Financial Institutions – UCC Liens

  	
   

  	
  Evesham
  Township Fire District No. 1 (muni corp)

  	
   

  	
  090008982532

  	
   

  	
  7/22/2009

  	
   

  	
  Six
  fire truck apparatuses.

  	
   

  	
   

  
	
  Wisconsin
  Department of Financial Institutions – UCC Liens

  	
   

  	
  Town
  of Goshen

  	
   

  	
  090013441013

  	
   

  	
  11/12/2009

  	
   

  	
  One
  fire engine.

  	
   

  	
   

  



 

















 


SCHEDULE 8.02

TO CREDIT AGREEMENT


 


PERMITTED DISPOSITIONS


 


Jerr-Dan,
1080 Hykes Road, Greencastle, PA 17225


Jerr-Dan,
14654 Greenmount Rd., Greencastle, PA 17225


 

















 


SCHEDULE 8.04


 


PERMITTED INVESTMENTS


 


	
  Investment

  	
   

  	
  Total

  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Investments in Joint Ventures

  	
   

  	
   

  	
   

  
	
  Investments by Borrower or Guarantors in contemplated
  joint ventures in consideration of being established, aggregate investment
  amount not to exceed $100 million.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Investments in Foreign Subsidiaries

  	
   

  	
   

  	
   

  
	
  Investments
  in manufacturing facilities

  	
   

  	
  37,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Investments
  in distribution, sales, procurement & service centers

  	
   

  	
  33,500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Investments
  in global systems upgrades

  	
   

  	
  15,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Investments
  by way of asset transfer associated with foreign branch of Guarantor into a
  non-guarantor subsidiary*

  	
   

  	
  98,500,000

  	
   

  



 






* 
These are assets that the lenders do not currently have a lien on, as
they are located outside the U.S.


 

















 


SCHEDULE 8.05

TO CREDIT AGREEMENT


 


Indebtedness of Material Subsidiaries


 


Guaranty
obligations from time to time under the Indenture dated as of March 3,
2010, by and among Oshkosh Corporation, as issuer, Wells Fargo Bank, National
Association, as trustee, and the other parties thereto, and any notes issued
thereunder.


 


JLG INDUSTRIES, INC


 


1.             Overdraft /
Credit Agreement dated June 9, 2008 between JLG Industries, Inc. and
various foreign subsidiaries and ABN AMRO bank in a principal amount of up to
EUR 9.185 million, in support of JLG’s European cash management structure.


 


MCNEILUS FINANCIAL, INC


 


2.             Capital lease
at McNeilus Financial Inc. for Iowa Mold Tooling service trucks with an
outstanding amount of $427,644 as of August 31, 2010.


 


PIERCE MANUFACTURING INC


 


3.             Capital lease
at Pierce for an AS400 network server with an outstanding amount of $10,033 as
of August 31, 2010.


 

















 


SCHEDULE 8.07

TO CREDIT AGREEMENT


 


Burdensome Agreements


 


1.             The OMFSP
partnership agreement dated February 26, 1998, as amended and restated, a
50/50 partnership among Oshkosh Corporation and BA Leasing & Capital
Corporation with limitations on cash distributions based on the agreement.


 


2.             A captive
insurance plan in which Iowa Mold Tooling Co., Inc. is a member of
contains reserve requirements of approximately one years of average claims for
each open claim year.


 

















 


SCHEDULE 11.02


 


AGENT’S OFFICE;


 


CERTAIN ADDRESSES FOR NOTICES


 


OSHKOSH
CORPORATION


 


2307
Oregon Street


Oshkosh,
Wisconsin 54903


Attention:
R. Scott Grennier


Telephone:
(920) 233-9451


Fax:
(920) 233-9251


Electronic
Mail: sgrennier@oshkoshcorp.com


Website
Address: www.oshkoshcorporation.com


 


BANK OF
AMERICA, N.A., AS ADMINISTRATIVE AGENT


Agent’s
Payment Office  

(for payments and Requests for Credit Extensions):


 


Bank
of America, N.A.

901 Main Street

Mail Code TX1-492-14-14

Dallas, Texas 75202


 


Attention:
Karen Puente (Primary)

Telephone: (214) 209-4108

Fax: (214) 290-8378

Electronic Mail:  karen.r.puente@baml.com


 


Attention:  Sharon Stewart (Secondary)


Telephone:  (214) 209-3076


Fax:  (214) 290-9420


Electronic
Mail:  sharon.stewart@baml.com


 


ABA#
026-009-593


Account
No. (for Dollars): 129-2000-883

Attn: Credit Services


Ref:  Oshkosh


 

















 


Other
Notices as Agent:


 


Bank
of America, N.A.

Agency Management

231 South LaSalle St

Mail Code IL1-231-08-30

Chicago, Illinois 60604


 


Attention:  Linda Lov (Primary)


Telephone:
(312) 828-8010


Fax:
(877) 206-1766


Electronic
Mail:   linda.k.lov@baml.com


 


Attention:  Bozena Janociak (Secondary)


Telephone:
(312) 828-3597


Fax:
(877) 207-0732


Electronic
Mail:  bozena.janociak@baml.com


 


BANK OF
AMERICA, N.A., AS ISSUER:


 


Trade
Operations — Scranton


1
Fleet Way


Mail
Code: PA6-580-02-30


Scranton, PA 18507


Attention: 
Alfonso (Al) Malave


Telephone:
(570) 330-4212


Fax:
(570) 330-4186


Email:
alfonso.malave@baml.com


 


BANK OF AMERICA, N.A., AS SWING LINE LENDER:


 


Bank
of America, N.A.

901 Main Street

Mail Code TX1-492-14-14

Dallas, Texas 75202


 


Attention:
Karen Puente (Primary)

Telephone: (214) 209-4108

Fax: (214) 290-8378

Electronic Mail:  karen.r.puente@baml.com


 


Attention:  Sharon Stewart (Secondary)


Telephone:  (214) 209-3076


Fax:  (214) 290-9420


Electronic
Mail:  sharon.stewart@baml.com


 

















 


BANK OF AMERICA, N.A., AS A LENDER:


 


Lending Office:


135 S. LaSalle Street


Chicago, Illinois 60603


Attention:  Steven K. Kessler


Telephone: (312) 992-6323


Fax: (312) 453-3346


Email: steven.kessler@baml.com


 
















 


EXHIBIT A


 


FORM OF NOTICE OF BORROWING


[Date]


 


Bank
of America, N.A., as Agent


for
the Lenders party to the Credit


Agreement
referred to below


901
Main Street


Mail
Code TX1-492-14-14


Dallas,
Texas 75202


 


Attn: Senior Agency Officer


 


Ladies and Gentlemen:


 


The undersigned refers to the Credit Agreement dated as of September 27,
2010 (as amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”; capitalized terms used but not defined
herein shall have the meanings given to them in the Credit Agreement) among
Oshkosh Corporation, a Wisconsin corporation (the “Company”), certain
subsidiaries of the Company from time to time party thereto, the financial
institutions from time to time party thereto (collectively, the “Lenders”),
Bank of America, N.A., as administrative agent for the Lenders (the “Agent”),
and the other parties thereto, and hereby gives you notice pursuant to Section 2.03
of the Credit Agreement that the undersigned hereby requests a Borrowing under
the Credit Agreement.  Set forth below is
the information relating to such Borrowing as required by subsection 2.03(a) of
the Credit Agreement:


 


(i)           The aggregate amount of the
proposed Borrowing is
$                  .


 


(ii)          The requested Borrowing Date
for the proposed Borrowing (which is a Business Day) is
                          ,
        .


 


(iii)         The Class of Loans
comprising the proposed Borrowing is [Revolving][Term] Loans and the Type of
Loans comprising the proposed Borrowing is [Base] [Offshore] Rate  Loans.


 


(iv)         The duration of the Interest
Period for each Offshore Rate Loan made as part of the proposed Borrowing, if
applicable, is          months (which
shall be 1, 2, 3 or 6 (or, if all applicable Lenders agree, 9 or 12) months).


 


(v)          The Applicable Currency for
each Offshore Rate Loan made as part of the proposed Borrowing, if applicable,
is
                                          .


 


The undersigned hereby certifies that the following statements will be
true on the date of the proposed Borrowing, before and after giving effect
thereto and to the application of the proceeds therefrom:


 

















 


(a)           The representations and
warranties in Article VI of the Credit Agreement are true and correct in
all material respects as though made on and as of the date of such proposed
Borrowing (except to the extent such representations and warranties expressly
refer to an earlier date, in which case such representations and warranties are
true and correct as of such earlier date); and


 


(b)           No Default or Event of
Default has occurred and is continuing, or would result from such proposed
Borrowing.


 


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [BORROWER]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
					



 

















 


EXHIBIT B


 


FORM OF NOTICE OF CONVERSION/CONTINUATION


 


[Date]


 


Bank of America, N.A., as Agent


for the Lenders party to the Credit


Agreement referred to below


231 South LaSalle Street


Mail Code IL1-231-08-30


Chicago, Illinois 60604


 


Attn: Senior Agency Officer


 


Ladies and Gentlemen:


 


The undersigned refers to the Credit Agreement dated as of September 27,
2010 (as amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”; capitalized terms used but not defined
herein shall have the meanings given to them in the Credit Agreement) among
Oshkosh Corporation, a Wisconsin corporation (the “Company”), certain
subsidiaries of the Company from time to time party thereto, the financial
institutions from time to time party thereto (collectively, the “Lenders”)
and Bank of America, N.A., as administrative agent for the Lenders (the “Agent”),
and hereby gives you notice pursuant to Section 2.04 of the Credit
Agreement that the undersigned hereby requests a [conversion] [continuation] of
Loans under the Credit Agreement.  Set
forth below is the information relating to such [conversion] [continuation] as
required by subsection 2.04(b) of the Credit Agreement:


 


(i)             The date of the proposed
[conversion] [continuation] is
                                      ,
       (which shall be a Business Day).


 


(ii)            The aggregate amount of the
Loans proposed to be [converted] [continued] is
$                              .
[Specify which part is to be converted and which part is to be continued, if
appropriate.]


 


(iii)           The Loans to be [continued]
[converted] are [Base Rate Loans] [Offshore Rate Loans] and the Loans resulting
from the proposed [conversion] [continuation] will be [Base Rate Loans]
[Offshore Rate Loans].


 


(iv)           The duration of the
requested Interest Period for each Offshore Rate Loan made as part of the
proposed [conversion] [continuation] is       
months (which shall be 1, 2, 3 or 6 (or, if all applicable Lenders agree, 9 or
12) months).


 

















 


(v)            In the case of Offshore Rate
Loans denominated in an Offshore Currency, the Applicable Currency into which
such converted Loans will be denominated is
            .


 


The undersigned hereby certifies that before and after giving effect to
the proposed [conversion] [continuation] and to the application of the proceeds
therefrom, no Default or Event of Default has occurred and is continuing or
would result from such proposed [conversion] [continuation].


 


	
   

  	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [BORROWER]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 

















 


EXHIBIT C


 


FORM OF COMPLIANCE CERTIFICATE


 


Bank of America, N.A., as Agent


for the Lenders party to the Credit


Agreement referred to below


231 South LaSalle Street


Mail Code IL1-231-08-30


Chicago, Illinois 60604


 


Attn:  Senior Agency Officer


 


Ladies and Gentlemen:


 


This
certificate is furnished to you by Oshkosh Corporation, a Wisconsin corporation
(the “Company”), pursuant to Section 7.02(b) of the Credit
Agreement dated as of September 27, 2010 among the Company, certain
subsidiaries of the Company from time to time party thereto, the financial
institutions from time to time party thereto (collectively, the “Lenders”),
Bank of America, N.A., as administrative agent for the Lenders (the “Agent”),
and the other parties thereto (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”), concurrently with
the delivery of the financial statements required pursuant to Section 7.01
of the Credit Agreement. Capitalized terms used but not defined herein
(including on Schedule 1 hereto) shall have the meanings given to them
in the Credit Agreement.


 


The undersigned, on behalf of the Company, hereby certifies that the
financial data and computations set forth in Schedule 1 below, evidencing
compliance with the covenants set forth in Sections 8.09, 8.10 and 8.11 of the
Credit Agreement, are true and correct as of                                   ,
      (1) (the “Computation
Date”).


 






(1) The
last day of the accounting period for which financial statements are being
concurrently delivered.


 

















 


The foregoing certifications, together with the computations set forth
in Schedule 1 hereto and the financial statements delivered with
this Compliance Certificate in support hereof, are made and delivered as of
this             
day of                               ,
          .


 


	
   

  	
  OSHKOSH
  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
					



 

















 


SCHEDULE 1


 


Computations


 


Period:  Last day of fiscal
quarter ended
                          ,
201     (the “Computation Date”).


 


	
  I.              Section 8.09
  Leverage Ratio

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1.             Maximum
  permitted:

  	
   

  	
             :1.0

  	
   

  
	
  2.             Actual:

  	
   

  	
   

  	
   

  
	
  (a)           The remainder
  of (i) (A) all Indebtedness (including all Obligations other than
  any Obligations arising under any Cash Management Agreements) of the Company
  and its Subsidiaries determined on a consolidated basis as of the Computation
  Date (excluding Contingent Obligations in respect of Swap Contracts) and
  (B) to the extent included in calculating Contingent Obligations by
  operation of clause (v) of the last sentence of the definition thereof,
  outstanding Indebtedness of the type characterized as “limited recourse debt”
  in the Company’s report on Form 10-K for its fiscal year ended
  September 30, 2009):

  	
   

  	
  $

  	
   

  
	
  (b)           The amount of
  Cash Collateral held pursuant to Sections 2.11(a), 3.07 and 3.11 of the
  Credit Agreement:

  	
   

  	
  $

  	
   

  
	
  (c)           Consolidated
  EBITDA for the period of four fiscal quarters ending on the Computation Date
  (the “Measurement Period”):

  	
   

  	
  $

  	
   

  
	
  (d)           Leverage
  Ratio (ratio of (a - b) to (c)):

  	
   

  	
             :1.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  II.            Section 8.10
  Interest Coverage Ratio

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1.             Minimum
  required:

  	
   

  	
  2.50:1.0

  	
   

  
	
  2.             Actual:

  	
   

  	
   

  	
   

  
	
  (a)           Consolidated
  EBITDA for the Measurement Period:

  	
   

  	
  $

  	
   

  
	
  (b)           Cash Interest
  Expense for the Measurement Period:

  	
   

  	
  $

  	
   

  
	
  (c)           Interest
  Coverage Ratio (ratio of (a) to (b)):

  	
   

  	
             :
  1.0

  	
   

  
	
  III.           Section 8.11
  Senior Secured Leverage Ratio

  	
   

  	
   

  	
   

  
	
  1.             Maximum
  permitted:

  	
   

  	
             :
  1.0

  	
   

  
	
  2.             Actual:

  	
   

  	
   

  	
   

  



 

















 


	
  (a)           All
  Indebtedness (including all Obligations other than any Obligations arising
  under any Cash Management Agreements) of the Company and its Subsidiaries to
  the extent that such Indebtedness is secured by Liens, determined on a
  consolidated basis, as of the Computation Date (excluding Contingent
  Obligations in respect of Swap Contracts):

  	
   

  	
  $

  	
   

  
	
  (b)           The amount of
  Cash Collateral held pursuant to Sections 2.11(a), 3.07 and 3.11 of the
  Credit Agreement:

  	
   

  	
  $

  	
   

  
	
  (c)           Consolidated
  EBITDA for the Measurement Period:

  	
   

  	
  $

  	
   

  
	
  (d)           Senior
  Secured Leverage Ratio (ratio of (a - b) to (c)):

  	
   

  	
             :1.0

  	
   

  



 
















 


EXHIBIT D


 


FORM OF ASSIGNMENT AND ASSUMPTION


 


This
Assignment and Assumption (this “Assignment and Assumption”) is dated as
of the Effective Date set forth below (the “Effective Date”) and is
entered into by and between [the][each](1) Assignor identified in item 1
below ([the][each, an] “Assignor”) and [the][each](2) Assignee
identified in item 2 below ([the][each, an] “Assignee”).  [It is understood and agreed that the rights
and obligations of [the Assignors] [and] [the Assignees](3) hereunder are
several and not joint.](4)  Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified in
item 5 below (the “Credit Agreement”), receipt of a copy of which is
hereby acknowledged by [the] [each] Assignee. 
The Standard Terms and Conditions set forth in Annex 1 attached hereto
(the “Standard Terms and Conditions”) 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][each] Assignor hereby irrevocably sells and
assigns to [the Assignee][the respective Assignees], and [the][each] Assignee
hereby irrevocably purchases and assumes from [the Assignor][the respective
Assignors], subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the Agent as
contemplated below (i) all of [the Assignor’s][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective
capacities as Lenders] 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][the respective Assignors] under the respective
facilities identified below (including, without limitation, the Letters of
Credit, the Swing Line Loans and the Fronted Offshore Currency Loans included
in such facilities(5)) 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)][the respective Assignors (in
their respective capacities as Lenders)] 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, but not limited to, 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


 






(1) 
For bracketed language here and elsewhere in this form relating to the
Assignor(s), if the assignment is from a single Assignor, choose the first
bracketed language.  If the assignment is
from multiple Assignors, choose the second bracketed language.


(2) 
For bracketed language here and elsewhere in this form relating to the
Assignee(s), if the assignment is to a single Assignee, choose the first
bracketed language.  If the assignment is
to multiple Assignees, choose the second bracketed language.


(3) 
Select as appropriate.


(4) 
Include bracketed language if there are either multiple Assignors or multiple
Assignees.


(5) 
Include all applicable subfacilities.


 

















 


pursuant
to clause (i) above (the rights and obligations sold and assigned by
[the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above
being referred to herein collectively as [the][an] “Assigned Interest”).  Each such sale and assignment is without
recourse to [the][any] Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by [the][any]
Assignor.


 


	
  1.

  	
  Assignor[s]:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee[s]:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [for
  each Assignee, indicate [Affiliate][Approved Fund] of [identify
  Lender]]

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Borrower(s):

  	
  Oshkosh
  Corporation and the Subsidiary Borrowers (if any), collectively

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Agent:

  	
  Bank
  of America, N.A., as the administrative agent under the Credit Agreement

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Credit
  Agreement:

  	
  Credit
  Agreement dated as of September 27, 2010 among Oshkosh Corporation, a
  Wisconsin corporation (the “Company”), certain subsidiaries of the
  Company from time to time party thereto, the financial institutions from time
  to time party thereto (collectively, the “Lenders”) and Bank of
  America, N.A., as administrative agent for the Lenders

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Assigned
  Interest[s]:

  



 


	
  Assignor[s](6)

  	
   

  	
  Assignee[s](7)

  	
   

  	
  Facility

  Assigned(8)

  	
   

  	
  Aggregate

  Amount of

  Commitment/Loans

  for all Lenders(9)

  	
   

  	
  Amount of

  Commitment

  /Loans

  Assigned

  	
   

  	
  Percentage

  Assigned of

  Commitment/

  Loans(10)

  	
   

  	
  CUSIP

  Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  



 


	
  [7.

  	
  Trade
  Date:

  	
   

  	
  ](11)

  	
   

  



 






(6) 
List each Assignor, as appropriate.


(7) 
List each Assignee, as appropriate.


(8) 
Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g. “Revolving
Credit Commitment”, “Term Loan Commitment”, etc.).


(9)  Amounts in this column and in the column
immediately to the right to be adjusted by the counterparties to take into
account any payments or prepayments made between the Trade Date and the
Effective Date.


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


(11)  To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.


 

















 


Effective
Date:
                                    ,
201  [TO BE INSERTED BY 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:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  [Consented
  to and](12) Accepted:

  	
   

  
	
   

  	
   

  
	
  BANK
  OF AMERICA, N.A., as Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  [Consented
  to:](13)

  	
   

  
	
   

  	
   

  
	
  OSHKOSH
  CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 






(12)
To be added only if the consent of the Agent is required by the terms of the
Credit Agreement.


(13)
To be added, as applicable, only if the consent of the Borrower and/or other
parties (e.g. Swing Line Lender, Issuer, Fronting Lender) is required by
the terms of the Credit Agreement.


 

















 


	
  [BANK
  OF AMERICA, N.A., as Swing Line Lender]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  [ISSUER]

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


ANNEX 1 TO ASSIGNMENT AGREEMENT


 


Credit
Agreement dated as of September 27, 2010 among Oshkosh Corporation, a
Wisconsin corporation (the “Company”), certain Subsidiaries of the Company
from time to time party thereto, the financial institutions from time to time
party thereto (collectively, the “Lenders”) and Bank of America, N.A.,
as administrative agent for the Lenders.


 


STANDARD TERMS AND CONDITIONS FOR


ASSIGNMENT AND ASSUMPTION


 


1.         Representations and
Warranties.


 


1.1.      Assignor.  [The][Each] Assignor (a) represents and
warrants that (i) it is the legal and beneficial owner of [the][[the
relevant] Assigned Interest, (ii) [the][such] 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 or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.


 


1.2.      Assignee.  [The][Each] 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 is an Eligible Assignee that meets all the
requirements to be an assignee under Section 11.07(a)(iii), (v),
(vi) and (vii) of the Credit Agreement (subject to such
consents, if any, as may be required under Section 11.07(a)(iii) of
the Credit Agreement), (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][the relevant] Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect
to decisions to acquire assets of the type represented by [the][such] Assigned
Interest and either it, or the Person exercising discretion in making its
decision to acquire [the][such] Assigned Interest, is experienced in acquiring
assets of such type, (v) it has received a copy of the Credit Agreement,
and has received or has been accorded the opportunity to receive copies of the
most recent financial statements delivered pursuant to Section 7.01
thereof, as applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it
has, independently and without reliance upon the 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 Assignment and Assumption
and to purchase [the][such] Assigned Interest, and (vii) if it is a
Foreign Lender, attached hereto is any documentation required to be delivered
by it pursuant to the terms of the Credit Agreement, duly completed and
executed by


 

















 


[the][such]
Assignee; and (b) agrees that (i) it will, independently and without
reliance upon the Agent, [the][any] 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 Agent
shall make all payments in respect of [the][each] Assigned Interest (including
payments of principal, interest, fees and other amounts) to [the][the relevant]
Assignor for amounts which have accrued to but excluding the Effective Date and
to [the][the relevant] Assignee for amounts which have accrued from and after
the Effective Date.


 


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
Illinois.


 

















 


EXHIBIT E


 


FORM OF NOTE


 


, 201 


 


FOR
VALUE RECEIVED, [BORROWER NAME] (the “Company”) HEREBY PROMISES TO PAY
to the order of                            (the
“Lender”) the aggregate unpaid principal amount of all Loans made by the
Lender to the Company pursuant to the Credit Agreement referred to below (as
shown in the records of the Lender or, at the Lender’s option, on the schedule
attached hereto and any continuation thereof).


 


The
undersigned further promises to pay interest on the unpaid principal amount of
each Loan evidenced hereby from the date of such Loan until such Loan is paid
in full, payable at the rates and at the times set forth in the Credit
Agreement referred to below.


 


Both
principal and interest shall be payable in accordance with the Credit Agreement
referred to below to Bank of America, N.A., as administrative agent (in such
capacity, the “Agent”), on behalf of the Lender, at the main office of
the Agent in Dallas, Texas in immediately available funds.


 


This Note is a Note referred to in, and is entitled to the benefits of,
the Credit Agreement dated as of September 27, 2010 among [the Company]
[Oshkosh Corporation, a Wisconsin corporation], certain subsidiaries of [the
Company] [Oshkosh Corporation] from time to time party thereto, the financial
institutions from time to time party thereto (including the Lender) and Bank of
America, N.A., as Agent (as amended, restated, modified or supplemented from
time to time, the “Credit Agreement”), and the other Loan Documents.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified.


 


THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW
OF THE STATE OF ILLINOIS (WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS
THEREOF); PROVIDED THAT THE BORROWERS, THE AGENT AND THE LENDERS SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW.


 

















 


The
Company hereby waives presentment, demand, protest or notice of any kind in
connection with this Note.


 


	
   

  	
  [BORROWER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


Schedule A


 


Promissory
Note


 


Dated
                        ,
201  payable to the order of


 


[Lender]


 


PRINCIPAL
PAYMENTS


 


	
  Date

  	
   

  	
  Class

  	
   

  	
  Amount of

  Principal

  Borrowed

  	
   

  	
  Amount of

  Principal Repaid

  	
   

  	
  Unpaid Principal

  Balance

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 
















 


EXHIBIT F


 


FORM OF SUBSIDIARY BORROWER SUPPLEMENT


 


To Bank of America, N.A., as Agent,

and Lenders party to the Credit

Agreement referred to below


 


Ladies and Gentlemen:


 


Reference
is made to the Credit Agreement dated as of September 27, 2010 among Oshkosh
Corporation, a Wisconsin corporation (the “Company”), certain
subsidiaries of the Company from time to time party thereto, the financial
institutions from time to time party thereto (collectively, the “Lenders”)
and Bank of America, N.A., as administrative agent for the Lenders (the “Agent”)
(as amended, restated, supplemented or otherwise modified from time to time,
the “Credit Agreement”). Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement.


 


The
undersigned,
                          
(the “Subsidiary”), a
                          
[entity], wishes to become a “Subsidiary Borrower” under the Credit Agreement,
and accordingly agrees that from the date hereof it shall become a “Subsidiary
Borrower” under the Credit Agreement and agrees that from the date hereof and
until the payment in full of the principal of and interest on all Loans made to
it under the Credit Agreement and performance of all of its other obligations
thereunder in its capacity as a Subsidiary Borrower (other than contingent
indemnification or similar obligations not yet due and payable), and
termination hereunder of its status as a “Subsidiary Borrower” as provided
below, it shall perform, comply with and be bound by each of the provisions of
the Credit Agreement which are stated to apply to a “Borrower” or a “Subsidiary
Borrower”. Without limiting the generality of the foregoing, the Subsidiary
affirms the jurisdictional and other provisions of Sections 11.15 and 11.16 of
the Credit Agreement and acknowledges that it has heretofore received a true
and correct copy of the Credit Agreement (including any modifications thereof
or supplements or waivers thereto) as in effect on the date hereof. In
addition, the Subsidiary authorizes the Company to act on its behalf as and to
the extent provided for in Article II of the Credit Agreement in
connection with the selection of Types and Interest Periods for Loans and with
the issuance of Letters of Credit, and the conversion and continuation of
Loans.


 


So
long as the principal of and interest on all Loans made to the Subsidiary under
the Credit Agreement shall have been paid in full and all other obligations of
the Subsidiary in its capacity as a Subsidiary Borrower (other than contingent
indemnification or similar obligations not yet due and payable) shall have been
fully performed, the Subsidiary may, upon not less than five Business Days’
prior written notice to the Agent (which shall promptly notify the Lenders
thereof), terminate its status as a “Subsidiary Borrower”.


 

















 


The
Subsidiary makes and confirms all representations and warranties applicable to
it contained in Article VI of the Credit Agreement.


 


CHOICE OF LAW.  THIS
SUBSIDIARY BORROWER SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF ILLINOIS (WITHOUT REGARD TO
THE CONFLICTS OF LAW PROVISIONS THEREOF); PROVIDED THAT THE BORROWERS,
THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.


 

















 


IN WITNESS WHEREOF, the Subsidiary has duly executed and delivered this
Subsidiary Borrower Supplement as of the date and year first above written.


 


 


	
   

  	
   

  	
  [SUBSIDIARY
  NAME]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address
  for Notices under the Credit Agreement:

  
	
   

  	
   

  	
   

  
	
  Consented
  to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  OSHKOSH
  CORPORATION

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Consented
  to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BANK
  OF AMERICA, N.A., as Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 

















 


EXHIBIT G


 


FORM OF SUBSIDIARY GUARANTY


 


SUBSIDIARY
GUARANTY


 


Dated as of September 27, 2010


 


FOR VALUE RECEIVED and in consideration of any loan or other
financial accommodation heretofore or hereafter at any time made or granted to
OSHKOSH CORPORATION, a Wisconsin corporation (the “Company”), the
undersigned (each a “Guarantor” and, together with such other Persons
which become Guarantors by executing a joinder agreement in the form of Exhibit A
hereto, collectively the “Guarantors”) hereby jointly and severally,
absolutely, irrevocably and unconditionally guarantee the full and prompt
payment when due, whether by acceleration or otherwise, and at all times
thereafter, of all “Obligations” (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code or similar
proceeding under applicable law, would become due) under and as defined in the
Credit Agreement dated as of September 27, 2010 among the Company, certain
subsidiaries of the Company from time to time party thereto, the financial
institutions from time to time party thereto (collectively, the “Lenders”)
and Bank of America, N.A., as administrative agent (in such capacity, the “Agent”)
(as restated, amended or otherwise modified from time to time, the “Credit
Agreement”; any term used but not otherwise defined herein shall have the
meaning ascribed to such term in the Credit Agreement) (all such obligations
being hereinafter collectively called the “Guaranteed Obligations”), and
the Guarantors further agree to pay all reasonable and documented out-of-pocket
expenses (including reasonable attorneys’ fees and legal expenses) paid or
incurred by any holder of any Guaranteed Obligation (each, a “Creditor”)
in endeavoring to collect the Guaranteed Obligations, or any part thereof, and
in enforcing any of its rights under this Subsidiary Guaranty; provided
that each Guarantor shall only be liable under this Subsidiary Guaranty for the
maximum amount of such liability that can be incurred without rendering this
Subsidiary Guaranty, as it relates to such Guarantor, void or voidable under
any applicable law relating to fraudulent conveyance or fraudulent transfer,
and not for any greater amount.  This
Subsidiary Guaranty constitutes a guaranty of payment when due and not of
collection, and the Guarantors specifically agree that it shall not be
necessary or required that any Creditor exercise any right, assert any claim or
demand, or enforce any remedy whatsoever against the Company, any Guarantor or
any other Person before or as a condition to the obligations of any Guarantor
hereunder.


 


The Guarantors agree that, if any event specified in Section 9.01(f) or
(g) of the Credit Agreement occurs with respect to the Company or any
Guarantor, and if such event shall occur at a time when an Event of Default has
occurred and is continuing, but any or all of the Guaranteed Obligations may
not then be due and payable, the Guarantors will promptly pay to the relevant
Creditor the full amount that would be payable hereunder by the Guarantors if
all Guaranteed Obligations were then due and payable.


 

















 


In addition to any rights and remedies of the Creditors
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Creditor is authorized at any time and from time to time,
without prior notice to any Guarantor, any such notice being waived by each
Guarantor 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 by, and other indebtedness at any time owing by, such Creditor to or
for the credit or the account of such Guarantor against any and all Guaranteed
Obligations owing to such Creditor, now or hereafter existing, irrespective of
whether or not the Agent or such other Creditor shall have made demand under
this Subsidiary Guaranty and although such Guaranteed Obligations may be
contingent or unmatured.  By accepting
the benefits hereof, each Creditor agrees promptly to notify the Company and
the Agent after any such set-off and application made by such Creditor; provided
that the failure to give such notice shall not affect the validity of such
set-off and application.


 


This Subsidiary Guaranty shall in all respects be a
continuing, absolute and unconditional guaranty, and shall remain in full force
and effect (notwithstanding, without limitation, the dissolution, release or
insolvency of any Guarantor or that at any time or from time to time all
Guaranteed Obligations that had been outstanding may have been paid in full),
subject to discontinuance as to any Guarantor only upon execution by the Agent
of a written notice, delivered in accordance with the terms of the Credit
Agreement, acknowledging the termination of all obligations of such Guarantor
arising hereunder.


 


The Guarantors further agree that, if at any time all or any
part of any payment theretofore applied by any Creditor to any of the
Guaranteed Obligations is or must be rescinded or returned by such Creditor for
any reason whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of the Company or any Guarantor), such Guaranteed
Obligations shall, for the purposes of this Subsidiary Guaranty, to the extent
that such payment is or must be rescinded or returned, be deemed to have
continued in existence, notwithstanding such application by such Creditor, and
this Subsidiary Guaranty shall continue to be effective or be reinstated, as
the case may be, as to such Guaranteed Obligations, all as though such
application by such Creditor had not been made.


 


Any Creditor may, from time to time, whether before or after
any discontinuance of this Subsidiary Guaranty, at its sole discretion and
without notice to the Guarantors (or any of them), take any or all of the
following actions: (a) retain or obtain a security interest in any
property of any third party to secure any of the Guaranteed Obligations or any
obligation hereunder; (b) retain or obtain the primary or secondary
obligation of any obligor or obligors, in addition to the Guarantors, with
respect to any of the Guaranteed Obligations; (c) extend or renew for one
or more periods (whether or not longer than the original period), alter, amend
or exchange any of the Guaranteed Obligations or any of the documentation
pertaining thereto, or release or compromise any obligation of any Guarantor
hereunder or any obligation of any nature of any other obligor with respect to
any of the Guaranteed Obligations; (d) release its security interest in, or
surrender, release or permit any substitution or exchange for, all or any part
of any property securing any of the Guaranteed Obligations or any obligation
hereunder, or extend or renew for one or more periods (whether or not longer
than the original period) or release, compromise, alter or exchange any
obligations of any nature of any obligor with respect to any such property; and
(e) resort to any Guarantor for payment of any of the Guaranteed
Obligations, whether or not such Creditor (i) shall have resorted to any
property securing any of the Guaranteed Obligations


 

















 


or any obligation hereunder or (ii) shall have proceeded
against any other obligor primarily or secondarily obligated with respect to
any of the Guaranteed Obligations (all of the actions referred to in the
preceding clauses (i) and (ii) being hereby expressly
waived by the Guarantors).


 


The creation or existence from time to time of additional
Guaranteed Obligations is hereby authorized, without notice to the Guarantors
(or any of them), and shall in no way affect or impair the rights of the Agent
or any other Creditor or the obligations of the Guarantors under this
Subsidiary Guaranty.


 


Any amount received by a Creditor from whatsoever source on
account of the Guaranteed Obligations may be applied by it toward the payment
of such of the Guaranteed Obligations, and in such order of application, as set
forth in the Credit Agreement.


 


Until such time as this Subsidiary Guaranty shall have been
terminated in respect of all Guarantors, no payment made by or for the account
of any Guarantor pursuant to this Subsidiary Guaranty shall entitle such
Guarantor by subrogation or otherwise to any payment by the Company or from or
out of any property of the Company, and such Guarantor shall not exercise any
right or remedy against the Company or any property of the Company by reason of
any performance by such Guarantor of this Subsidiary Guaranty.


 


The Guarantors hereby expressly waive: (a) notice of the
acceptance by any Creditor of this Subsidiary Guaranty, (b) notice of the
existence or creation or nonpayment of all or any of the Guaranteed
Obligations, (c) presentment, demand, notice of dishonor, protest, and all
other notices whatsoever, and (d) all diligence in collection or
protection of or realization upon the Guaranteed Obligations or any thereof,
any obligation hereunder, or any security for or guaranty of any of the
foregoing.


 


Until the irrevocable payment in full of all of the
Guaranteed Obligations (other than Guaranteed Obligations under the relevant
agreement with a Creditor which expressly survive the termination of such
agreement and are not then due and payable) and termination of the Commitments,
(a) each Guarantor waives any right of subrogation, reimbursement,
indemnification and contribution (contractual, statutory or otherwise),
including any claim or right of subrogation under the Bankruptcy Code or any successor
statute, against the Company arising from the existence or performance of this
Subsidiary Guaranty and (b) each Guarantor waives any right to enforce any
remedy which any Creditor now has or may hereafter have against the Company,
and waives any benefit of, and any right to participate in, any security now or
hereafter held by a Creditor securing the Guaranteed Obligations.  Upon such irrevocable payment and
termination, the Company shall indemnify such Guarantor for the full amount of
any payment made by such Guarantor under this Subsidiary Guaranty and such
Guarantor shall be subrogated to the rights of the Person to whom such payment
shall have been made to the extent of such payment.  By its acceptance hereof, the Agent agrees
that it will, promptly upon request by the Company (which request shall be
accompanied by any documentation the Agent may reasonably request to confirm
that any applicable conditions to the Agent’s acting upon such request have
been satisfied (on which documentation the Agent may conclusively rely absent
written notice to the contrary)), release any of
the undersigned from its obligations hereunder if, after giving effect to such
release, no Default or Event of Default exists or would result therefrom.


 

















 


Each Guarantor (a “Contributing Guarantor”) agrees
that, if a payment is made by any other Guarantor under this Subsidiary
Guaranty and such other Guarantor (the “Claiming Guarantor”) has not
been fully indemnified by the Company as provided in the paragraph above, the
Contributing Guarantor shall indemnify the Claiming Guarantor in an amount
equal to the amount of such payment multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Guarantor as of the date
hereof and the denominator shall be the aggregate net worth of all the
Guarantors on such date.  Any
Contributing Guarantor making any payment to a Claiming Guarantor pursuant to
this section shall be subrogated to the rights of such Claiming Guarantor to
the extent of such payment.  All rights
of contribution and subrogation of any Guarantor hereunder shall be fully
subordinated in time and priority of payment to the Guaranteed Obligations and
all other indebtedness of the Company to each the Creditors.


 


Subject to the terms of the Credit Agreement, any Creditor
may, from time to time, whether before or after any discontinuance of this
Subsidiary Guaranty, without notice to the Guarantors (or any of them), assign
or transfer any or all of the Guaranteed Obligations or any interest therein;
and, notwithstanding any such assignment or transfer or any subsequent
assignment or transfer thereof, such Guaranteed Obligations shall be and remain
Guaranteed Obligations for the purposes of this Subsidiary Guaranty, and each
and every immediate and successive assignee or transferee of any of the
Guaranteed Obligations or of any interest therein shall, to the extent of the
interest of such assignee or transferee in the Guaranteed Obligations, be
entitled to the benefits of this Subsidiary Guaranty to the same extent as if
such assignee or transferee were a Creditor.


 


Each Guarantor hereby represents and warrants to the Agent
and the other Creditors that:


 


(a)           such Guarantor is duly organized,
validly existing and, to the extent applicable to such entity, in good standing
under the laws of the jurisdiction of its incorporation and is licensed and in
good standing as a foreign entity under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business requires
such qualification or license, if applicable to such Guarantor, except to the
extent that the failure to be so qualified could not reasonably be expected to
have a Material Adverse Effect;


 


(b)           such Guarantor has the power and
authority to execute and deliver this Subsidiary Guaranty and to perform its
obligations hereunder;


 


(c)           the execution and delivery by such
Guarantor of this Subsidiary Guaranty and the performance of its obligations
hereunder have been duly authorized by all necessary corporate or other action,
and this Subsidiary Guaranty constitutes the legal, valid and binding
obligation of such Guarantor, enforceable against such Guarantor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors’
rights generally or by equitable principles relating to enforceability; and


 


(d)           neither the execution and delivery by
such Guarantor of this Subsidiary Guaranty nor the compliance by such Guarantor
with the provisions of this Subsidiary Guaranty will (i) contravene the
terms of such Guarantor’s Organization Documents, (ii)


 

















 


conflict
with or result in any breach or contravention of, or the creation of any Lien
under, any document evidencing any material Contractual Obligation to which
such Guarantor is a party or any order, injunction, writ or decree of any
Governmental Authority to which such Guarantor or its property is subject or (iii) violate
any Requirement of Law.


 


It is understood that while the amount of the Guaranteed
Obligations guaranteed hereby is not limited, if in any action or proceeding
involving any state, federal or foreign bankruptcy, insolvency or other law
affecting the rights of creditors generally, this Subsidiary Guaranty would be
held to be void, invalid or unenforceable on account of the amount of the
aggregate liability under this Subsidiary Guaranty with respect to one or more
of the Guarantors, then, notwithstanding any other provision of this Subsidiary
Guaranty to the contrary, the aggregate amount of such liability shall, with
respect to any such Guarantor, without any further action of the Agent, the
other Creditors or any other Person, be automatically limited and reduced with
respect to any such Guarantor to the highest amount which is valid and
enforceable as determined in such action or proceeding.


 


Each Guarantor hereby warrants to each Creditor that such
Guarantor now has and will continue to have independent means of obtaining
information concerning the affairs, financial condition and business of the
Company.  No Creditor shall have any duty
or responsibility to provide the Guarantors with any credit or other
information concerning the affairs, financial condition or business of the
Company that may come into the possession of such Creditor.


 


No delay on the part of any Creditor in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by any Creditor of any right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy; nor shall any
modification or waiver of any of the provisions of this Subsidiary Guaranty be
binding upon any Creditor except as expressly set forth in a writing duly
signed and delivered (or consented to) by or on behalf of each Guarantor and
the Agent (on behalf of the Lenders or the Required Lenders, as the case may
be, pursuant to Section 11.01 of the Credit Agreement).  No action of any Creditor permitted hereunder
shall in any way affect or impair the rights of any Creditor and the
obligations of the Guarantors under this Subsidiary Guaranty.  For the purposes of this Subsidiary Guaranty,
the Guaranteed Obligations shall include all obligations of the Company to the
Creditors arising under or in connection with the agreements relating to the
Guaranteed Obligations, notwithstanding any right or power of the Company or
anyone else to assert any claim or defense as to the invalidity or
unenforceability of any such Guaranteed Obligation, and no such claim or
defense shall affect or impair the obligations of the Guarantors
hereunder.  The obligations of the
Guarantors under this Subsidiary Guaranty shall be absolute and unconditional
irrespective of any circumstance whatsoever that might constitute a legal or
equitable discharge or defense of the Guarantors.  The Guarantors hereby acknowledge that there
are no conditions to the effectiveness of this Subsidiary Guaranty.


 


Each other Subsidiary that is required to become party to
this Agreement shall become a Guarantor hereunder upon the execution of a
joinder agreement in the form of Exhibit A hereto and delivery
thereof to the Agent.


 

















 


This Subsidiary Guaranty shall be binding upon the Guarantors
and upon the legal representatives, successors and assigns of the Guarantors;
and all references herein to the Company and to the Guarantors, respectively,
shall be deemed to include any successor or successors, whether immediate or
remote, to such entities.  All
obligations of the Guarantors hereunder shall be joint and several.  This Subsidiary Guaranty shall inure to the
benefit of the Agent and each other Creditor and their respective successors
and permitted assigns.


 


All notices to the Guarantors shall be made in accordance
with the terms of Section 11.02 of the Credit Agreement to the address
listed on Schedule I hereto.


 


THIS SUBSIDIARY GUARANTY SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS (WITHOUT REGARD
TO CONFLICT OF LAWS PROVISIONS THEREOF). 
WHEREVER POSSIBLE EACH PROVISION OF THIS SUBSIDIARY GUARANTY SHALL BE
INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW,
BUT IF ANY PROVISION OF THIS SUBSIDIARY GUARANTY SHALL BE PROHIBITED BY OR
INVALID UNDER SUCH LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE EXTENT OF
SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF SUCH
PROVISION OR THE REMAINING PROVISIONS OF THIS SUBSIDIARY GUARANTY.


 


EACH GUARANTOR AND BY ITS ACCEPTANCE HEREOF, EACH CREDITOR,
HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS SUBSIDIARY GUARANTY OR
UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY FINANCING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS SUBSIDIARY GUARANTY, AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.


 


[signature page follows]


 

















 


IN WITNESS WHEREOF, each Guarantor has executed this
Subsidiary Guaranty by its duly authorized officer as of the day and year first
written above.


 


	
   

  	
  JLG INDUSTRIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  R. Scott Grennier

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MCNEILUS FINANCIAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  R. Scott Grennier

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PIERCE MANUFACTURING INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  R. Scott Grennier

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  



 


 


Signature
page to Subsidiary Guaranty


 
















 


SCHEDULE I


TO


GUARANTY


 


Notice
Addresses


 


One copy to:


 


OSHKOSH CORPORATION


 


2307
Oregon Street


Oshkosh,
Wisconsin 54903


Attention:
R. Scott Grennier


Telephone:
(920) 233-9451


Fax:
(920) 233-9251


Electronic
Mail: sgrennier@oshkoshcorp.com


Website
Address: www.oshkoshcorporation.com


 

















 


EXHIBIT A


 


JOINDER AGREEMENT


 


This Joinder Agreement dated as of
                      ,
         is delivered pursuant to the
Subsidiary Guaranty dated as of September 27, 2010 by various subsidiaries
of Oshkosh Corporation (as amended, supplemented or otherwise modified from
time to time, the “Subsidiary Guaranty”). 
The undersigned hereby agrees that on and after the date hereof it shall
be a “Guarantor” under the Subsidiary Guaranty and be obligated to perform all
of the obligations of a Guarantor thereunder.


 


	
   

  	
  [GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  [address
  for notices]

  



 

















 


EXHIBIT H


 


FORM OF OFFSHORE CURRENCY ADDENDUM


 


[CURRENCY]


 


[CURRENCY] ADDENDUM (including the Schedules hereto, the “Addendum”)
dated as of                             ,
201    to the Credit Agreement (as defined below).


 


ARTICLE I


Definitions


 


SECTION 1.01. Defined Terms.  As used in this Addendum, the following terms
shall have the meanings specified below:


 


[“Associated Costs Rate” means for any Fronted Offshore Currency
Loan denominated in [currency] for any Interest Period, a percentage rate per
annum, as determined in accordance with Annex I attached hereto on the first
day of such Interest Period, determined by the Fronting Lender as reflecting
the cost, loss or difference in return which would be suffered or incurred by
the Fronting Lender as a result of: (a) funding (at the Offshore Rate and
on a match funded basis) any special deposit or cash ratio deposit required to
be placed with the [applicable central bank] (or any other authority which
replaces all or any of its functions) and/or (b) any charge imposed by the
[applicable Governmental Authority] (or any other authority which replaces it
or any of its functions).]


 


“Credit
Agreement” means the Credit Agreement dated as of September 27, 2010
among Oshkosh Corporation, a Wisconsin corporation (the “Company”),
certain subsidiaries of the Company from time to time party thereto, the
financial institutions from time to time party thereto (collectively, the “Lenders”)
and Bank of America, N.A., as administrative agent for the Lenders (the “Agent”),
as the same may be amended, waived, modified or restated from time to time.


 


“Currency” means [specify Alternate Currency].


 


SECTION 1.02. Terms Generally.  Unless otherwise defined herein, capitalized
terms used but not defined herein shall have the meanings given to them in the
Credit Agreement. Wherever 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”. All


 

















 


references herein to Sections and Schedules shall be deemed references
to Sections of and Schedules to this Addendum unless the context shall
otherwise require.


 


ARTICLE II


The Credits


 


SECTION 2.01.
Fronted Offshore Currency Loans.  (a) This
Addendum (as the same may be amended, waived, modified or restated from time to
time) is an “Offshore Currency Addendum” as defined in the Credit Agreement and
is, together with the borrowings made hereunder, subject in all respects to the
terms and provisions of the Credit Agreement except to the extent that the
terms and provisions of the Credit Agreement are modified by this Addendum. The
Fronting Lender party to this Addendum is set forth on Schedule I.


 


(b)            Any modifications to the interest
payment dates, Interest Periods, interest rates and any other special
provisions applicable to Fronted Offshore Currency Loans under this Addendum
are set forth on Schedule II. If Schedule II states “Same as
Credit Agreement” with respect to any item listed thereon, then the
corresponding provisions of the Credit Agreement, without modification (but
treating Fronted Offshore Currency Loans as if they were Revolving Loans),
shall govern this Addendum and the Fronted Offshore Currency Loans made
pursuant to this Addendum.


 


(c)            Any special borrowing procedure or
funding arrangement for Fronted Offshore Currency Loans under this Addendum,
any provision for the issuance of promissory notes to evidence the Fronted
Offshore Currency Loans made hereunder and any additional information
requirement applicable to Fronted Offshore Currency Loans under this Addendum
are set forth on Schedule III. If no such special procedures, funding
arrangements, provisions or additional requirements are set forth on Schedule
III, then the corresponding procedures, funding arrangements, funding
conditions, provisions and information requirements set forth in the Credit
Agreement shall govern this Addendum as if expressly stated to be applicable
hereto and to the borrowings hereunder.


 


SECTION 2.02. Maximum Borrowing Amounts.  (a) The Fronted Offshore Currency
Commitment of the Fronting Lender is set forth on Schedule I.


 


(b)            The Company or the applicable
Subsidiary Borrower may permanently reduce the Fronted Offshore Currency
Commitment under this Addendum in whole, or in part, in an aggregate minimum
Dollar Equivalent equal to $1,000,000 (or any larger multiple of $1,000,000) upon
at least one Business Day’s prior written notice to the Fronting Lender, which
notice shall be given not later than 11:00 a.m. (local time) and shall
specify the amount of such reduction; provided that the amount of the
Fronted Offshore Currency Commitment may not be reduced below the lesser of
$10,000,000 and the aggregate principal amount of the outstanding Fronted
Offshore Currency Loans with respect thereto.


 

















 


ARTICLE III


Representations and Warranties


 


The
Subsidiary Borrower represents and warrants to the Fronting Lender that no
Default or Event of Default has occurred and is continuing, and no Default or
Event of Default shall arise as a result of the making of Fronted Offshore
Currency Loans hereunder or any other transaction contemplated hereby.


 


ARTICLE IV


Miscellaneous Provisions


 


SECTION 4.01. Effectiveness; Amendment; Termination.  (a) This Addendum shall not become
effective until executed by the parties hereto and acknowledged by the Agent.


 


(b)          This Addendum may not
be amended without the prior written consent of the Fronting Lender.


 


(c)            This Addendum may not be terminated
without the prior written consent of the Fronting Lender unless there are no
Fronted Offshore Currency Loans outstanding hereunder, in which case no such
consent shall be required; provided that all obligations of the Fronting
Lender to lend hereunder shall automatically terminate on the Revolving
Termination Date.


 


SECTION 4.02.
Assignments.  Sections 11.07 and
11.08 of the Credit Agreement shall apply to assignments by the Fronting Lender
of obligations, commitments and Loans hereunder; provided that the
Fronting Lender may not assign any obligations, commitments or rights hereunder
to any Person who is not (and does not simultaneously become) a Lender under
the Credit Agreement.


 


SECTION 4.03.
Notices.  Notices and other
communications provided for herein shall be in writing and shall be delivered
in accordance with Section 11.02 of the Credit Agreement:


 


(a)          if to the [Subsidiary
Borrower] [Borrower], to it at:


 


 


Attention:


Facsimile:


 


(b)          if to the Fronting
Lender, to it at:


 

















 


Attention:


Facsimile:


 


with
a copy to the Agent at its address or facsimile number referenced in the Credit
Agreement.


 


SECTION 4.04.
Applicable  Law.  THIS
ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAW OF THE STATE OF ILLINOIS (WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS
THEREOF); PROVIDED THAT THE BORROWERS, THE AGENT AND THE LENDERS SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW.


 


[Remainder
of this Page Intentionally Blank]


 

















 


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


 


	
   

  	
  [BORROWER
  NAME], as the

  
	
   

  	
  [Subsidiary
  Borrower] [Borrower] under this Addendum

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [LENDER
  NAME], as the Fronting Lender under this Addendum

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Acknowledged
  this          day of

  	
   

  
	
                                 ,
  201

  	
   

  
	
   

  	
   

  
	
  BANK
  OF AMERICA, N.A., as Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 

















 


ANNEX I


TO OFFSHORE CURRENCY ADDENDUM


 


[To be provided as to
specific currency]


 
















 


EXHIBIT I


 


FORM OF
PLEDGE AGREEMENT


 


PLEDGE
AGREEMENT


 


This PLEDGE AGREEMENT, dated as of September 27, 2010 (as amended, restated or otherwise modified from time to time, this “Agreement”)
is between OSHKOSH CORPORATION, a Wisconsin corporation (the “Company”),
each subsidiary of the Company listed on the signature pages hereof and
each other person or entity which from time to time becomes a party hereto
(collectively, including the Company, the “Pledgors” and individually
each a “Pledgor”) and BANK of AMERICA, N.A., as Agent (as defined below)
for the Guaranteed Creditors (as defined in the Credit Agreement referred to
below).


 


R E C I T A L S:


 


WHEREAS,
the Company, certain subsidiaries of the Company from time to time party
thereto, various financial institutions from time to time party thereto
(together with their respective successors and permitted assigns, the “Lenders”)
and Bank of America, N.A., as administrative agent for the Lenders (together
with its successors and permitted assigns in such capacity, the “Agent”),
have entered into the Credit Agreement dated as of September 27, 2010 (as amended, restated or otherwise
modified from time to time, the “Credit Agreement”);


 


WHEREAS,
each Pledged Entity (as defined below) has executed and delivered a Subsidiary
Guaranty dated as of September 27, 2010 (as
amended, restated or otherwise modified from time to time, the “Subsidiary
Guaranty”) of certain obligations of the Company, including all obligations
of the Company under the Credit Agreement; and


 


WHEREAS,
as a condition to entering into the Credit Agreement and extending credit to
the Company under the Credit Agreement and under certain hedging and cash
management arrangements, the Lenders have required that each Pledgor grant to
the Agent, for the ratable benefit of itself and the other Guaranteed
Creditors, a security interest in its Pledged Collateral (as defined below) on
the terms and conditions set forth below;


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:


 


W  I  T
N  E  S  S  E  T  H:


 


(e)           Definitions. 
In addition to terms defined in the introductory paragraph and the
recitals, (a) terms used but not defined herein have the respective
meanings set forth in the Credit Agreement and (b) the following terms
have the following respective meanings (such meanings being equally applicable
to both the singular and plural forms of the terms defined):


 


“Acces
Bonds” has the meaning ascribed to it in Section 2(iii).


 

















 


“Act”
has the meaning ascribed to it in Section 8.


 


“Cash
Management Obligations” means all liabilities under or in connection with
any arrangement in respect of overdraft protection, Automated Clearing House
services and other treasury, depositary and cash management services.


 


“JLG”
has the meaning ascribed to it in Section 2(iii).


 


“MCI”
has the meaning ascribed to it in Section 2(iii).


 


“Pledge
Amendment” has the meaning ascribed to it in Section 6.


 


“Pledged
Collateral” has the meaning ascribed to it in Section 2.


 


“Pledged
Entity” means, with respect to any Pledgor, each Material Domestic
Subsidiary of such Pledgor the equity interests of which are pledged pursuant
to this Agreement.


 


“Pledged
Notes” means, with respect to any Pledgor, (i) those promissory notes
and instruments listed opposite such Pledgor’s name on Schedule I and (ii) each
additional promissory note and instrument delivered or to be delivered, by such
Pledgor to the Agent pursuant to Section 2(iv).


 


“Pledged
Shares” means, with respect to any Pledgor, (i) all of the issued and
outstanding shares of capital stock of each Material Domestic Subsidiary of
such Pledgor at any time owned by such Pledgor, (ii) 65% of the issued and
outstanding voting shares of capital stock of each Material Foreign Subsidiary
of such Pledgor at any time owned by such Pledgor, except to the extent such
security interest would result in material adverse tax consequences to the
Company and (iii) each additional share of capital stock delivered, or to
be delivered, by such Pledgor to the Agent pursuant to Section 2(ii).


 


“Secured
Obligations” means (a) with respect to the Company, all Obligations of
the Company (including pursuant to Article XII of the Credit Agreement)
and (b) with respect to any other Pledgor, (i) all obligations of
each Pledged Entity, the equity interests of which are pledged by such Pledgor
pursuant to this Agreement, under the Subsidiary Guaranty and each other Loan
Document to which such Pledged Entity is a party, in each case as the same may
be amended, modified, extended or renewed from time to time, and (ii) all
obligations of such Pledged Entity owing to a Guaranteed Creditor pursuant to a
Rate Swap Document and all Cash Management Obligations of such Pledged Entity
owing to any Guaranteed Creditor; provided that no Pledgor shall have
any obligation hereunder in excess of the maximum amount of the Secured
Obligations which such Pledgor may incur without violating any fraudulent
conveyance or fraudulent transfer law.


 


“Shareholder
Agreement” has the meaning ascribed to it in Section 2(iii).


 


(f)            Pledge. 
Each Pledgor hereby pledges to the Agent, for the benefit of itself and
the other Guaranteed Creditors, and grants to the Agent, for the benefit of
itself and the other Guaranteed Creditors, a first priority security interest
in all of such Pledgor’s right, title and


 

















 


interest in the following, whether now owned
or hereafter acquired (collectively for all Pledgors, the “Pledged
Collateral”):


 


(1)           the Pledged Shares of such Pledgor and all dividends,
distributions, cash, instruments and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of the Pledged Shares of such Pledgor;


 


(2)           the certificates representing any additional shares of
capital stock of a Pledged Entity from time to time acquired by such Pledgor in
any manner (which shares shall be deemed to be part of the Pledged Shares of
such Pledgor) and all dividends, distributions, cash, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares; provided
that no Pledgor shall be required to pledge additional shares of any Material
Foreign Subsidiary if such pledge would result in (a) more than 65% of the
voting shares of such Material Foreign Subsidiary being pledged hereunder or (b) material
adverse tax consequences to the Company;


 


(3)           the Pledged Notes of such Pledgor and all interest, cash,
instruments and other property and assets from time to time received,
receivable or otherwise distributed in respect of such Pledged Notes; provided
that (x) neither McNeilus Companies, Inc. (“MCI”) nor JLG
Industries, Inc. (“JLG”) shall be required to pledge the
convertible bonds issued to JLG by Financiere Acces Industrie (the “Acces
Bonds”) if such pledge would violate (1) applicable law or (2) the
Financiere AI/JLG Shareholders’ Agreement dated February 7, 2006 among
Financiere Acces Industrie, JLG and Butler Capital Partners, FPE III (the “Shareholder
Agreement”) and (y) if such pledge would not violate applicable law,
MCI shall cause JLG to, and JLG shall, (1) obtain all consents to such
pledge that are required under the Shareholder Agreement and (2) take all
steps necessary to perfect the Agent’s Lien on the Acces Bonds;


 


(4)           all promissory notes or other instruments evidencing
additional Indebtedness arising after the date hereof and owing to such Pledgor
and all interest, cash, instruments and other property and assets from time to
time received, receivable or otherwise distributed in respect thereof; and


 


(5)           all proceeds of the foregoing.


 


(g)           Security for Secured Obligations.  This Agreement secures, and the Pledged
Collateral is security for, all Secured Obligations.


 


(h)           Delivery of Pledged Collateral.  Each Pledgor shall cause all existing
certificated Pledged Shares and Pledged Notes, together with duly executed
instruments of transfer or assignment in blank, all in form and substance
reasonably satisfactory to the Agent, to be delivered to the Agent or its
designee not later than the later of October 1,
2010 with respect to Pledged Shares and Pledged Notes existing on the date
hereof and within 10 days after the date on which such Pledgor becomes a
party to this Agreement after the date hereof; provided that (a) no
Pledgor shall be required to deliver any check or similar instrument received,
and to be


 

















 


deposited, in the ordinary course of business; and (b) no
Pledgor shall be required to deliver to the Agent any original Instrument with
a principal amount of less than $2,000,000 so long as the aggregate principal
amount of all other original Instruments of all Pledgors that have not been
delivered to the Agent does not exceed $10,000,000.


 


(i)            Representations and Warranties.  Each Pledgor represents and warrants to the
Agent and each other Guaranteed Creditor, with respect to its Pledged
Collateral, that:


 


(a)           such Pledgor is, and at the time of delivery of the
Pledged Collateral to the Agent pursuant to Section 4 will be, the
sole holder of record and the sole beneficial owner of the Pledged Collateral
pledged by it free and clear of any Lien thereon or affecting the title
thereto, except for any Lien created by this Agreement;


 


(b)           all of the Pledged Shares have been duly authorized and
validly issued and are fully paid and non-assessable (except as provided by law);


 


(c)           each Pledged Note has been duly authorized, authenticated
or issued and delivered by, and is the legal, valid and binding obligation of,
the issuer thereof (except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’
rights generally or by equitable principles relating to enforceability), and
such issuer is not in default thereunder;


 


(d)           none of the Pledged Shares or Pledged Notes has been
issued or transferred in violation of the securities registration, securities
disclosure or similar laws of any jurisdiction to which such issuance or
transfer may be subject;


 


(e)           except as noted on Schedule I, all of the Pledged
Shares are presently owned by such Pledgor, and are presently represented by
the stock certificates listed opposite such Pledgor’s name on Schedule I,
and there are no existing options, warrants, calls or commitments of any
character whatsoever relating to the Pledged Shares;


 


(f)            no consent, approval, authorization or other order of any
Person and no consent, authorization, approval, or other action by, and no
notice to or filing with, any Governmental Authority is required for the
exercise by the Agent of the voting or other rights provided for in this
Agreement or the remedies in respect of the Pledged Collateral pursuant to this
Agreement, except as may be required with respect to the Acces Bonds or in
connection with such disposition by laws affecting the offering and sale of
securities generally;


 


(g)           the Pledged Shares of each Material Domestic Subsidiary
that is a Pledged Entity constitute 100% of the issued and outstanding shares
of stock of such Subsidiary owned by such Pledgor (except as otherwise
permitted in the Credit Agreement), and the Pledged Shares of each Material
Foreign Subsidiary that is a Pledged Entity constitute not less than 65% (or
such lesser percentage as the Agent has agreed to prevent material adverse tax
consequences to the Company) of the issued and outstanding shares of stock of
such Subsidiary owned by such Pledgor (except as otherwise permitted in the
Credit Agreement); and


 

















 


(h)           assuming the Agent has possession of the original
certificates (if any) evidencing the Pledged Shares and the original Pledged
Notes, the pledge, assignment and delivery of the Pledged Collateral pursuant
to this Agreement creates a valid, continuing, first perfected Lien on the Pledged
Collateral in favor of the Agent, for the benefit of itself and the other
Guaranteed Creditors, subject to no prior Lien of any other Person, and no
further actions or procedures are required to maintain such first perfected
Lien status.


 


The
representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.


 


(j)            Covenants. 
From the date of this Agreement, and thereafter until this Agreement is
terminated, each Pledgor:


 


·              will defend the title to the Pledged
Collateral and the Liens of the Agent on the Pledged Collateral against the
claim of any Person and will maintain and preserve such title and Liens; and


 


·              will, upon obtaining any
additional shares of stock of a Pledged Entity or, subject to the proviso in Section 4,
promissory notes or instruments, which shares, notes or instruments are not
already Pledged Collateral, promptly (and in any event within 10 Business Days
deliver to the Agent a Pledge Amendment, duly executed by such Pledgor, in
substantially the form of Schedule II hereto (a “Pledge Amendment”))
in respect of any such additional shares pledging to the Agent, on behalf of
itself and the other Guaranteed Creditors, all of such additional shares, notes
or instruments.  Each Pledgor hereby
consents to any and all such amendments, authorizes the Agent to attach each
Pledge Amendment to this Agreement and agrees that all Pledged Shares and/or
Pledged Notes listed on any Pledge Amendment delivered to the Agent shall for
all purposes hereunder be considered Pledged Collateral.


 


(k)           Pledgor’s Rights. 
As long as no Event of Default shall have occurred and be continuing and
until written notice shall be given to the Pledgors in accordance with Section 8(a):


 


(a)           each Pledgor shall have the right, from time to time, to
vote and give consents with respect to its Pledged Collateral, or any part
thereof for all purposes not inconsistent with the provisions of this
Agreement, any other Loan Document and any other document executed in
connection herewith or therewith; provided that no vote shall be cast,
and no consent shall be given or action taken, which would have the effect of
impairing the position or interest of the Agent or any other Guaranteed
Creditor in respect of the Pledged Collateral or which would authorize or
effect (except as and to the extent permitted by the Loan Documents): (i) the
dissolution or liquidation, in whole or in part, of a Pledged Entity; (ii) the
consolidation or merger of a Pledged Entity with any other Person; (iii) the
sale, disposition or encumbrance of all or substantially all of the assets of a
Pledged Entity, except for Liens in favor of the Agent; (iv) any change in
the authorized number of shares, the stated capital or the authorized share
capital of a Pledged Entity or 


 

















 


the issuance of any additional shares of its stock;
or (v) the alteration of the voting rights with respect to the stock of a
Pledged Entity; and


 


(b)           (1)       each Pledgor
shall be entitled, from time to time, to collect and receive for its own use
all cash dividends, principal and interest paid in respect of its Pledged
Collateral to the extent not in violation of any Loan Document, other than: (A) dividends
and other distributions paid or payable in cash in respect of any Pledged
Collateral in connection with a partial or total liquidation or dissolution;
and (B) cash paid, payable or otherwise distributed, in connection with
the redemption of, or in exchange for, any Pledged Collateral; provided
that until actually paid all rights to such distributions shall remain subject
to the Lien created by this Agreement; and


 


(2)           all dividends, principal, interest and other distributions
(other than (x) cash dividends, principal and interest permitted to be
paid to the applicable Pledgor in accordance with clause (i) above
and (y) capitalized interest on any Pledged Note) in respect of any of the
Pledged Collateral, whenever paid or made, shall be delivered to the Agent to
hold as Pledged Collateral and shall, if received by a Pledgor, be received in
trust for the benefit of the Agent, for the benefit of itself and the other
Guaranteed Creditors, be segregated from the other property or funds of such
Pledgor, and be forthwith delivered to the Agent as Pledged Collateral in the
same form as so received (with any necessary indorsement).


 


(l)            Defaults and Remedies.  (a) Upon the occurrence and during the
continuance of an Event of Default, the Agent may exercise from time to time
any rights and remedies available to it under the Uniform Commercial Code as in
effect from time to time in the State of Illinois or otherwise available to
it.  Without limiting the foregoing, on
or at any time after the declaration of an Event of Default by the Agent
(provided that such declaration is not rescinded in accordance with the terms
of the Credit Agreement) and upon written notice to the Pledgors, the Agent
(personally or through an agent) is hereby authorized and empowered (subject to
instructions agreeable to the Guaranteed Creditors) to transfer and register in
its name or in the name of its nominee the whole or any part of the Pledged
Collateral, to exchange certificates or instruments representing or evidencing
Pledged Shares for certificates or instruments of smaller or larger
denominations, to exercise the voting and all other rights as a stockholder
with respect thereto, to collect and receive all cash dividends, interest and
principal and other distributions made thereon, to sell in one or more sales
after 10 days’ notice of the time and place of any public sale or of the time
after which a private sale is to take place (which notice each Pledgor agrees
is commercially reasonable) the whole or any part of the Pledged Collateral and
to otherwise act with respect to the Pledged Collateral as though the Agent
were the outright owner thereof, each Pledgor hereby irrevocably constituting
and appointing the Agent as the proxy and attorney-in-fact of such Pledgor,
with full power of substitution to do so, and which shall remain in effect
until the Secured Obligations are paid in full in cash; provided that
the Agent shall not have any duty to exercise any such right or to preserve the
same and shall not be liable for any failure to do so or for any delay in doing
so.  Any sale shall be made at a public
or private sale at the Agent’s place of business, or at any place to be named
in the notice of sale, either for cash or upon credit or for future delivery at
such price as the Agent may deem fair, and the Agent or any other Guaranteed
Creditor may be the purchaser of the whole or any part of the Pledged
Collateral so sold and hold the same thereafter in its own right free from any
claim of any


 

















 


Pledgor or any right of redemption.  Each sale shall be made to the highest
bidder, but the Agent reserves the right to reject any and all bids at such
sale which, in its discretion, it shall deem inadequate.  Demands of performance, except as otherwise
herein specifically provided for, notices of sale, advertisements and the
presence of property at sale are hereby waived and any sale hereunder may be
conducted by an auctioneer or any officer or agent of the Agent.


 


(b)           If, at the original time or times appointed for the sale
of the whole or any part of the Pledged Collateral, (i) the highest bid,
if there is only one sale, is inadequate to discharge in full all the Secured
Obligations, or (ii) if the Pledged Collateral is offered for sale in
lots, if at any of such sales, the highest bid for the lot offered for sale,
would indicate to the Agent, in its discretion, the unlikelihood of the proceeds
of the sales of the whole of the Pledged Collateral being sufficient to
discharge all the Secured Obligations, the Agent may, on one or more occasions
and in its discretion, postpone any of such sales by public announcement at the
time of sale or the time of previous postponement of sale, and no other notice
of such postponement or postponements of sale need be given, any other notice
being hereby waived; provided that any sale made after such postponement
shall be after 10 days’ notice to the applicable Pledgor.


 


(c)           The proceeds of any sale, disposition or other realization
upon all or any part of the Pledged Collateral shall be distributed by the
Agent in accordance with Section 9 of the Security Agreement, and the
Pledgors shall remain liable for any deficiency as set forth therein.


 


(d)           If, at any time when the Agent in its sole discretion
determines, following the occurrence and during the continuance of an Event of
Default, that, in connection with any actual or contemplated exercise of its
rights (when permitted under this Section 8), to sell the whole or
any part of the Pledged Collateral hereunder, it is necessary or advisable to
effect a public registration of all or part of the Pledged Collateral pursuant
to the Securities Act of 1933, as amended (or any similar statute then in
effect) (the “Act”), the applicable Pledgor shall, in an expeditious
manner, cause the applicable Pledged Entities to:


 


(1)           prepare and file with the SEC a registration statement
with respect to such Pledged Collateral and in good faith use commercially
reasonable efforts to cause such registration statement to become and remain
effective;


 


(2)           prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Act with respect to the sale or other
disposition of the Pledged Collateral covered by such registration statement
whenever the Agent shall desire to sell or otherwise dispose of such Pledged
Collateral;


 


(3)           furnish to the Agent such numbers of copies of a
prospectus and a preliminary prospectus, in conformity with the requirements of
the Act, and such other documents as the Agent may request in order to
facilitate the public sale or other disposition of such Pledged Collateral by
the Agent;


 

















 


(4)           use commercially reasonable efforts to register or qualify
the Pledged Collateral covered by such registration statement under such other
securities or blue sky laws of such jurisdictions within the United States as
the Agent shall request, and do such other reasonable acts and things as may be
required of it to enable the Agent to consummate the public sale or other
disposition in such jurisdictions of such Pledged Collateral by the Agent;


 


(5)           furnish, at the request of the Agent, on the date that any
Pledged Shares are delivered to the underwriters for sale pursuant to such
registration or, if the security is not being sold through underwriters, on the
date that the registration statement with respect to such Pledged Shares
becomes effective: (A) an opinion, dated such date, of the independent
counsel representing such registrant for the purposes of such registration,
addressed to the underwriters, if any, and in the event such Pledged Collateral
is not being sold through underwriters, then to the Agent, in customary form
and covering matters of the type customarily covered in such legal opinions;
and (B) a comfort letter, dated such date, from the independent certified
public accountants of such registrant, addressed to the underwriters, if any,
and in the event such Pledged Collateral is not being sold through
underwriters, then to the Agent, in a customary form and covering matters of
the type customarily covered by such comfort letters and as the underwriters or
the Agent shall reasonably request.  The
opinion of counsel referred to above shall additionally cover such other legal
matters with respect to the registration in respect of which such opinion is
being given as the Agent may reasonably request.  The letter referred to above from the
independent certified public accountants shall additionally cover such other
financial matters (including information as to the period ending not more than
five Business Days prior to the date of such letter) with respect to the
registration in respect of which such letter is being given as the Agent may
reasonably request; and


 


(6)           otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the SEC, and make available
to its security holders, as soon as reasonably practicable but not later than
18 months after the effective date of the registration statement, an earnings
statement covering the period of at least 12 months beginning with the first
full month after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of
the Act.


 


(e)           All expenses incurred in complying with Section 8(d),
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the National Association of Securities Dealers, Inc.),
printing expenses, fees and disbursements of counsel for the registrant, the
fees and expenses of counsel for the Agent, expenses of the independent
certified public accountants (including any special audits incident to or
required by any such registration) and expenses of complying with the
securities or blue sky laws or any jurisdiction, shall be paid by the
applicable Pledgor.


 


(f)            If, at any time when the Agent shall determine to
exercise its right to sell the whole or any part of the Pledged Collateral
hereunder, such Pledged Collateral or the


 

















 


part thereof to be sold
shall not, for any reason whatsoever, be effectively registered under the Act,
the Agent may, in its discretion (subject only to applicable requirements of
law), sell such Pledged Collateral or part thereof by private sale in such
manner and under such circumstances as the Agent may deem necessary or
advisable, but subject to the other requirements of this Section 8,
and shall not be required to effect such registration or to cause the same to
be effected.  Without limiting the
generality of the foregoing, in any such event, the Agent in its discretion (x) may,
in accordance with applicable securities laws, proceed to make such private
sale notwithstanding that a registration statement for the purpose of
registering such Pledged Collateral or part thereof could be or shall have been
filed under the Act (or similar statute), (y) may approach and negotiate
with a single possible purchaser to effect such sale, and (z) may restrict
such sale to a purchaser who is an accredited investor under the Act and who
will represent and agree that such purchaser is purchasing for its own account,
for investment and not with a view to the distribution or sale of such Pledged
Collateral or part thereof.  In addition
to a private sale as provided above in this Section 8, if any of
the Pledged Collateral is not freely distributable to the public without
registration under the Act (or similar statute) at the time of any proposed
sale pursuant to this Section 8, then the Agent shall not be
required to effect such registration or cause the same to be effected but, in
its discretion (subject only to applicable requirements of law), may require
that any sale hereunder (including a sale at auction) be conducted subject to
restrictions: (i) as to the financial sophistication and ability of any
Person permitted to bid or purchase at any such sale; (ii) as to the
content of legends to be placed upon any certificates representing the Pledged
Collateral sold in such sale, including restrictions on future transfer
thereof; (iii) as to the representations required to be made by each
Person bidding or purchasing at such sale relating to that Person’s access to
financial information about the applicable Pledgor and such Person’s intentions
as to the holding of the Pledged Collateral so sold for investment for its own
account and not with a view to the distribution thereof; and (iv) as to
such other matters as the Agent may, in its discretion, deem necessary or
appropriate in order that such sale (notwithstanding any failure so to
register) may be effected in compliance with the Bankruptcy Code and other laws
affecting the enforcement of creditors’ rights and the Act and all applicable
state securities laws.


 


(g)           Each Pledgor recognizes that the Agent may be unable to
effect a public sale of any or all the Pledged Collateral and may be compelled
to resort to one or more private sales thereof in accordance with clause (f) above.  Each Pledgor also acknowledges that any such
private sale may result in prices and other terms less favorable to the seller
than if such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner.  The
Agent shall be under no obligation to delay a sale of any of the Pledged
Collateral for the period of time necessary to permit the registrant to
register such securities for public sale under the Act, or under applicable
state securities laws, even if the applicable Pledgor would agree to do so.


 


(h)           Each Pledgor agrees to the maximum extent permitted by applicable
law that following the occurrence and during the continuance of an Event of
Default it will not at any time plead, claim or take the benefit of any
appraisal, valuation, stay, extension, moratorium or redemption law now or
hereafter in force in order to prevent or


 

















 


delay the enforcement of
this Agreement, or the absolute sale of the whole or any part of the Pledged
Collateral or the possession thereof by any purchaser at any sale hereunder,
and each Pledgor waives the benefit of all such laws to the extent it lawfully
may do so.  Each Pledgor agrees that it
will not interfere with any right, power and remedy of the Agent provided for
in this Agreement or now or hereafter existing at law or in equity or by
statute or otherwise, or the exercise or beginning of the exercise by the Agent
of any one or more of such rights, powers or remedies.  No failure or delay on the part of the Agent
to exercise any such right, power or remedy and no notice or demand which may
be given to or made upon any Pledgor by the Agent with respect to any such
remedies shall operate as a waiver thereof, or limit or impair the Agent’s
right to take any action or to exercise any power or remedy hereunder, without
notice or demand, or prejudice its rights as against any Pledgor in any
respect.


 


(i)            Each Pledgor further agrees that a breach of any of the
covenants contained in this Section 8 will cause irreparable injury
to the Agent and the other Guaranteed Creditors, that the Agent and the other
Guaranteed Creditors shall have no adequate remedy at law in respect of such
breach and, as a consequence, agrees that each and every covenant contained in
this Section 8 shall be specifically enforceable against each
Pledgor, and each Pledgor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except for a
defense that the Secured Obligations are not then due and payable in accordance
with the agreements and instruments governing and evidencing such obligations.


 


(m)          Waiver.  No
delay on the Agent’s or any other Guaranteed Creditor’s part in exercising any
power of sale, Lien, option or other right hereunder, and no notice or demand
which may be given to or made upon any Pledgor by the Agent or another
Guaranteed Creditor with respect to any power of sale, Lien, option or other
right hereunder, shall constitute a waiver thereof, or limit or impair the
Agent’s or any other Guaranteed Creditor’s right to take any action or to
exercise any power of sale, Lien, option, or any other right hereunder, without
notice or demand, or prejudice the Agent’s or any other Guaranteed Creditor’s
rights as against any Pledgor in any respect. 
No amendment, modification or waiver of, or consent with respect to, any
provision of this Agreement shall in any event be effective unless the same
shall be in writing signed and delivered by the Agent and the Required Lenders
(or, to the extent required pursuant to Section 11.01 of the Credit
Agreement, all Lenders).  Any waiver of
any provision of this Agreement, and any consent to any departure by any
Pledgor from the terms of any provision of this Agreement, shall be effective
only in the specific instance and for the specific purpose for which given.


 


(n)           Assignment. 
The Agent and the other Guaranteed Creditors may assign, indorse or
transfer any instrument evidencing all or any part of the Secured Obligations
as provided in, and in accordance with, the applicable Loan Document and the
holder of such instrument shall be entitled to the benefits of this Agreement.


 


(o)           Termination; Release of Collateral.


 


(a) This Agreement
shall continue in effect (notwithstanding the fact that from time to time there
may be no Secured Obligations or commitments therefor outstanding)


 
















 


until the payment in full of the Secured Obligations
and the termination of the Credit Agreement in accordance with its terms, at
which time the security interests granted hereby shall terminate and any and
all rights to the Pledged Collateral shall revert to the applicable
Pledgor.  Upon such termination, the
Agent shall promptly return to the applicable Pledgor, at such Pledgor’s
expense, such of the Pledged Collateral held by the Agent as shall not have
been sold or otherwise applied pursuant to the terms hereof.  The Agent will promptly execute and deliver
to the applicable Pledgor such other documents as such Pledgor shall reasonably
request to evidence such termination.


 


(b)                                 The Agent will,
promptly upon request of any Pledgor (which request shall be accompanied by any
documentation the Agent may reasonably request to confirm that any applicable
conditions to the Agent’s acting upon such request have been satisfied (on
which documentation the Agent may conclusively rely absent written notice to
the contrary)), release its security interest in any Pledged Collateral (i) that
is disposed of by such Pledgor as part of or in connection with any Disposition
permitted under the Credit Agreement or (ii) so long as no Default or
Event of Default exists or would result therefrom, representing equity
interests of a Subsidiary (other than a Subsidiary that is a Subsidiary
Borrower) that has ceased to be a Material Domestic Subsidiary or a Material
Foreign Subsidiary, as the case may be.


 


(p)                                 Lien Absolute.  All rights of the Agent hereunder, and all
obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of:


 


(a)                                 any lack of
validity or enforceability of any Loan Document, any other document executed in
connection with any Loan Document                               or any other agreement or
instrument governing or evidencing any Secured Obligations;


 


(b)                                 any change in
the time, manner or place of payment of, or in any other term of, all or any
part of the Secured Obligations, or any other amendment or waiver of or any
consent to any departure from any Loan Document or any other agreement or
instrument governing or evidencing any Secured Obligations;


 


(c)                                  any exchange,
release or non-perfection of any other collateral, or any release or amendment
or waiver of or consent to departure from any guaranty, for all or any of the
Secured Obligations; or


 


(d)                                 any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, any Pledgor.


 


(q)                                 Release.  Each Pledgor consents and agrees that the
Agent and the other Guaranteed Creditors may at any time, or from time to time,
in their discretion (a) renew, extend or change the time of payment,
and/or the manner, place or terms of payment of all or any part of the Secured
Obligations and (b) exchange, release and/or surrender all or any of the
Pledged Collateral, or any part thereof, by whomsoever deposited, which is now
or may hereafter be held by the Agent in connection with all or any of the
Secured Obligations; all in such manner and upon such terms as the Agent and
the other Guaranteed Creditors may deem proper, and without notice to or
further assent from any Pledgor, it being hereby agreed that each Pledgor shall
be


 

















 


and remain bound upon this Agreement, irrespective
of the value or condition of any of the Pledged Collateral, and notwithstanding
any such change, exchange, settlement, compromise, surrender, release, renewal
or extension, and notwithstanding also that the Secured Obligations may, at any
time, exceed the aggregate principal amount thereof set forth in the relevant
Loan Document or any other agreement governing any Secured Obligations.  Each Pledgor hereby waives notice of
acceptance of this Agreement, and also presentment, demand, protest and notice
of dishonor of any and all of the Secured Obligations, and promptness in
commencing suit against any party hereto or liable hereon, and in giving any
notice to or of making any claim or demand hereunder upon any Pledgor.  No act or omission of any kind on the Agent’s
part shall in any event affect or impair this Agreement.


 


(r)                                    Reinstatement.  This Agreement shall remain in full force and
effect and continue to be effective if any petition is filed by or against any
Pledgor or any Pledged Entity for liquidation or reorganization, if any Pledgor
or any Pledged Entity becomes insolvent or makes an assignment for the benefit
of creditors or if a receiver or trustee is appointed for all or any
significant part of a Pledgor’s or a Pledged Entity’s assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Secured Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be restored or returned by any obligee of the Secured Obligations, whether as a  “voidable preference”, “fraudulent
conveyance”, or otherwise, all as though such payment or performance had not
been made.  In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Secured Obligations shall be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.


 


(s)                                   Miscellaneous.  (a) The Agent may execute any of its
duties hereunder by or through agents or employees and shall be entitled to
advice of counsel concerning all matters pertaining to its duties hereunder.


 


(b)                                 Each Pledgor
agrees to promptly reimburse the Agent for actual out-of-pocket expenses,
including, without limitation, reasonable counsel fees, incurred by the Agent
in connection with the administration and enforcement of this Agreement.  Each Pledgor’s obligation to reimburse the
Agent pursuant to the preceding sentence shall be a Secured Obligation of such
Pledgor payable on demand.


 


(c)                                  None of the
Agent, any other Guaranteed Creditor nor any of their respective officers,
directors, employees, agents or counsel shall be liable for any action lawfully
taken or omitted to be taken by it or them hereunder or in connection herewith,
except for its or their own gross negligence or willful misconduct.


 


(d)                                 Each Pledgor
hereby irrevocably appoints the Agent as such Pledgor’s attorney-in-fact, with
full authority in the place and stead of such Pledgor and in the name of such
Pledgor or otherwise, from time to time in the Agent’s discretion reasonably
exercised after the occurrence and during the continuance of an Event of
Default, to take any action and to execute any instrument that the Agent deems
reasonably necessary or advisable to accomplish the purposes of this Agreement,
including, without limitation, to receive, endorse and collect all instruments
made payable to such Pledgor representing any dividend, or other proceeds or
distribution in respect of the Pledged Collateral or any


 

















 


part thereof and to give full discharge for
the same, when and to the extent permitted by this Agreement.


 


(e)                                  The terms and
provisions of this Agreement shall be binding upon and inure to the benefit of
each Pledgor, the Agent and the other Guaranteed Creditors and their respective
successors and assigns, except that the Assignor shall not have the right to
assign its rights or obligations under this Agreement or any interest herein,
without the prior written consent of the Agent and the other Guaranteed
Creditors.


 


(t)                                    Severability.  If for any reason any provision or provisions
hereof are determined to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of or effect those portions of
this Agreement which are valid.


 


(u)                                 Notices.  Any notice required or permitted to be given
under this Agreement shall be given in accordance with the Credit Agreement.


 


(v)                                 CHOICE OF LAW AND
JURISDICTION.  (a) THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS, WITHOUT
REGARD TO CONFLICT OF LAWS PROVISIONS, OF THE STATE OF ILLINOIS, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.


 


(b)                                 ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF ILLINOIS, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
PLEDGOR, THE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) EACH OTHER GUARANTEED
CREDITOR CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. 
EACH PLEDGOR, THE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) EACH
OTHER GUARANTEED CREDITOR IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
DOCUMENT RELATED HERETO.  EACH OF EACH
PLEDGOR, THE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) EACH OTHER GUARANTEED
CREDITOR WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.


 


(c)                                  EACH OF EACH PLEDGOR, THE AGENT AND (BY ITS ACCEPTANCE HEREOF) EACH OTHER
GUARANTEED CREDITOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR
UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY FINANCING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS


 

















 


AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.


 


(w)                               Section Titles.  The Section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.


 


(x)                                 Counterparts; Additional
Pledgors.  This
Agreement may be executed in any number of counterparts, which shall, collectively
and separately, constitute one agreement. 
At any time after the date of this Agreement, one or more additional
Persons may become parties hereto by executing and delivering to the Agent a
counterpart of this Agreement (including supplements to the Schedules
hereto).  Immediately upon such execution
and delivery (and without any further action), each such additional Person will
become a party to, and will be bound by all the terms of, this Agreement.


 


(y)                                 Limitation on Duty of the
Agent with Respect to Collateral.  Bank of America, N.A. has been appointed as
Agent for the Guaranteed Creditors hereunder, and the Agent has agreed to act
(and any successor Agent shall act) as such hereunder only on the express
conditions contained in Article X of the Credit Agreement.  Any successor Agent appointed pursuant to Article X
of the Credit Agreement shall be entitled to all the rights, interests and
benefits of the Agent hereunder.  Beyond
the safe custody thereof, the Agent shall not have any duty with respect to any
Pledged Collateral in its possession or control (or in the possession or
control of any agent or bailee) or with respect to any income thereon or the
preservation of rights against prior parties or any other rights pertaining
thereto.  The Agent shall be deemed to
have exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
substantially equal to that which it accords its own property.  The Agent shall not be liable or responsible
for any loss or damage to any of the Pledged Collateral, or for any diminution
in the value thereof, by reason of the act or omission of any agent or bailee
selected by the Agent in good faith.


 


[signature page follows]


 

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.


 


	
   

  	
  BANK
  OF AMERICA, N.A., as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OSHKOSH
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  R. Scott Grennier

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MCNEILUS
  COMPANIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  R. Scott Grennier

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MCNEILUS
  TRUCK AND

  
	
   

  	
  MANUFACTURING, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  R. Scott Grennier

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  



 


Signature page to Pledge
Agreement


 

















 


	
   

  	
  Signature page for
  the Pledge Agreement dated as of September 27, 2010 (as amended, restated or otherwise modified, the “Pledge
  Agreement”) among Oshkosh Corporation (the “Company”), various subsidiaries
  of the Company and Bank of America, N.A., as Agent (as defined therein).

  
	
   

  	
   

  
	
   

  	
  The undersigned is
  executing a counterpart hereof for purposes of becoming a party to the Pledge
  Agreement (and the undersigned has attached hereto supplements to the Schedules
  to the Pledge Agreement setting forth all information necessary to make the
  representations and warranties set forth in the Pledge Agreement with respect
  to the undersigned accurate as of the date of the execution and delivery
  hereof (except to the extent such representations and warranties specifically
  refer to an earlier date, in which case they shall be true and correct as of
  such earlier date))

  
	
   

  	
   

  
	
   

  	
  [SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Signature page to Pledge
Agreement


 

















 


SCHEDULE I

TO PLEDGE AGREEMENT


 


	
  PLEDGED SHARES

  
	
   

  
	
  Stock Issuer

  	
   

  	
  Class of

  Stock

  	
   

  	
  # of Shares

  Issued

  	
   

  	
  # of Shares

  to be Pledged

  	
   

  	
  Percentage of

  Outstanding

  	
   

  	
  Registered Owner

  	
   

  	
  Stock

  Certificate

  No.

  	
   

  	
  Outstanding

  Options,

  Warrants, Etc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  PLEDGED  NOTES

  
	
   

  
	
  Issuer

  	
   

  	
  Issue Date

  	
   

  	
  Maturity Date

  	
   

  	
  Interest Rate

  	
   

  	
  Payee

  	
   

  
	
  Acces

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [OTHERS]

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


SCHEDULE II


TO PLEDGE AGREEMENT


 


PLEDGE AMENDMENT


 


This
Pledge Amendment, dated
                      ,
             is
delivered pursuant to Section 6(b) of the Pledge Agreement
referred to below. The undersigned hereby certifies that the representations
and warranties in Section 5 of the Pledge Agreement are and
continue to be true and correct in all material respects as of the date hereof,
except to the extent such representations and warranties specifically refer to
an earlier date, in which case they shall be true and correct as of such
earlier date, both as  to the Pledged Collateral pledged
prior to this Pledge Amendment and as to the Pledged Collateral pledged
pursuant to this Pledge Amendment. The undersigned further agrees that this
Pledge Amendment may be attached to the Pledge Agreement dated as of September 27, 2010 among the undersigned
(the “Pledgor”), various affiliates thereof and Bank of America, N.A.,
as administrative agent, and that the Pledged Collateral listed on this Pledge
Amendment shall be and become a part of the Pledged Collateral referred to in
such Pledge Agreement and shall secure all Secured Obligations referred to in
such Pledge Agreement.  The undersigned
acknowledges that any shares of capital stock in the Pledged Entities not
included in the Pledged Shares or promissory notes or instruments not included
in the Pledged Notes at the discretion of the Agent may not otherwise be
pledged or otherwise used as Collateral by the Pledgor.


 


 


	
   

  	
  [
  PLEDGOR ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
  Title:

  



 


Pledged Shares


 


	
  Pledgor

  	
   

  	
  Issuer

  	
   

  	
  Class

  of Stock

  	
   

  	
  Certificate

  Number(s)

  	
   

  	
  Number

  of Shares

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Pledged Notes


 


	
  Pledgor

  	
   

  	
  Issuer

  	
   

  	
  Initial

  Principal

  Amount

  	
   

  	
  Issue Date

  	
   

  	
  Maturity Date

  	
   

  	
  Interest Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 
















 


EXHIBIT J


 


FORM OF SECURITY AGREEMENT


 


 


SECURITY AGREEMENT


 


DATED AS OF SEPTEMBER 27, 2010


 


AMONG


 


OSHKOSH CORPORATION,


 


VARIOUS SUBSIDIARIES


 


AND


 


BANK OF AMERICA, N.A.,

AS AGENT


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS AND INTERPRETATION OF AGREEMENT

  	
  1

  
	
  2.

  	
  GRANT
  OF SECURITY INTEREST

  	
  4

  
	
  3.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  5

  
	
  4.

  	
  USE
  OF COLLATERAL

  	
  6

  
	
  5.

  	
  PROCESSING,
  SALE AND COLLECTIONS

  	
  6

  
	
  6.

  	
  CERTIFICATES,
  SCHEDULES AND REPORTS

  	
  8

  
	
  7.

  	
  COVENANTS

  	
  8

  
	
  8.

  	
  REMEDIES

  	
  11

  
	
  9.

  	
  APPLICATION
  OF PROCEEDS; DEFICIENCY

  	
  14

  
	
  10.

  	
  REMEDIES
  CUMULATIVE

  	
  14

  
	
  11.

  	
  DISCONTINUANCE
  OF PROCEEDINGS

  	
  15

  
	
  12.

  	
  CUSTODY
  AND PRESERVATION OF COLLATERAL

  	
  15

  
	
  13.

  	
  AUTHORIZATION
  FOR THE AGENT TO TAKE CERTAIN ACTION

  	
  15

  
	
  14.

  	
  NOTICES

  	
  15

  
	
  15.

  	
  WAIVER
  AND AMENDMENTS

  	
  15

  
	
  16.

  	
  TERMINATION;
  RELEASE OF COLLATERAL

  	
  16

  
	
  17.

  	
  LIEN
  ABSOLUTE

  	
  16

  
	
  18.

  	
  RELEASE

  	
  17

  
	
  19.

  	
  REINSTATEMENT

  	
  17

  
	
  20.

  	
  CHOICE
  OF LAW AND JURISDICTION

  	
  17

  
	
  21.

  	
  SEVERABILITY

  	
  18

  
	
  22.

  	
  SUCCESSORS
  AND ASSIGNS

  	
  18

  
	
  23.

  	
  COUNTERPARTS;
  ADDITIONAL DEBTORS

  	
  18

  
	
  24.

  	
  AGENT

  	
  18

  



 


SCHEDULES


 


	
  SCHEDULE A

  	
  –

  	
  Locations of Equipment, Inventory,
  Fixtures and other Goods

  	
   

  
	
  SCHEDULE B

  	
  –

  	
  Organizational Information

  	
   

  
	
  SCHEDULE C

  	
  –

  	
  Prior Legal Names

  	
   

  
	
  SCHEDULE D

  	
  –

  	
  Tort
  Claims

  	
   

  



 


i

















 


SECURITY AGREEMENT


 


THIS
SECURITY AGREEMENT (as amended, restated or otherwise modified from time to
time, this “Agreement”) dated as of September 27, 2010 is among
OSHKOSH CORPORATION, a Wisconsin corporation (the “Company”), each
subsidiary of the Company listed on the signature pages hereof and each
other Person which from time to time becomes a party hereto (collectively,
including the Company, the “Debtors” and individually, each a “Debtor”),
and BANK OF AMERICA, N.A., in its capacity as Agent (as defined below) for
itself and the other Guaranteed Creditors (as defined in the Credit Agreement
referred to below).


 


W I T N E S S E T H:


 


WHEREAS,
the Company, certain subsidiaries of the Company from time to time party
thereto, various financial institutions from time to time party thereto
(together with their respective successors and permitted assigns, the “Lenders”)
and Bank of America, N.A., as administrative agent for the Lenders (together
with its successors and permitted assigns in such capacity, the “Agent”),
have entered into the Credit Agreement dated as of September 27, 2010 (as
amended, restated or otherwise modified from time to time, the “Credit
Agreement”);


 


WHEREAS,
each Debtor other than the Company has executed and delivered a Subsidiary
Guaranty dated as of September 27, 2010 (as amended, restated or otherwise
modified from time to time, the “Subsidiary Guaranty”) of certain
obligations of the Company, including all obligations of the Company under the
Credit Agreement; and


 


WHEREAS,
as a condition to entering into the Credit Agreement and extending credit to
the Company under the Credit Agreement and under certain hedging and cash
management arrangements, the Lenders have required that each Debtor grant to
the Agent, for the ratable benefit of itself and the other Guaranteed
Creditors, a security interest in its Collateral (as defined below) on the
terms and conditions set forth below;


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:


 


(z)            Definitions and Interpretation of Agreement.  In addition to terms defined in the
introductory paragraph and the recitals, (a) the terms Account, Account
Debtor, Certificated Security, Chattel Paper, Commercial Tort Claim, Commodity
Account, Commodity Contract, Consignee, Consignment, Consignor, Deposit
Account, Document, Equipment, Fixture, Goods, Instrument, Inventory, Investment
Property, Securities Account, Security, Security Entitlement and Uncertificated
Security shall have the respective meanings assigned to such terms in Article 8
or Article 9, as applicable, of the UCC (as defined below); (b) other
capitalized terms used but not defined in this Agreement have the respective
meanings set forth in the Credit Agreement; and (c) the following have the
following respective meanings (such meanings being equally applicable to both
the singular and plural form of the terms defined):


 


“Assignee
Deposit Account” has the meaning ascribed to it in Section 5.


 


1

















 


“Cash
Management Obligations” means all liabilities under or in connection with
any arrangement in respect of overdraft protection, Automated Clearing House
services and other treasury, depositary and cash management services.


 


“Collateral”
has the meaning ascribed to it in Section 2.


 


“Computer
Hardware and Software” means (i) all computer and other electronic
data processing hardware, whether now or hereafter owned, licensed or leased,
including all integrated computer systems, central processing units, memory
units, display terminals, printers, features, computer elements, card readers,
tape drives, hard and soft disk drives, cables, electrical supply hardware,
generators, power equalizers, accessories and all peripheral devices and other
related computer hardware; (ii) all software programs, whether now or
hereafter owned, licensed or leased, designed for use on the computers and
electronic data processing hardware described in clause (i) including
all operating system software, utilities and application programs in whatsoever
form (source code and object code in magnetic tape, disk or hard copy format or
any other listing whatsoever); (iii) all firmware associated with the
foregoing, whether now or hereafter owned, licensed or leased; (iv) all
rights with respect thereto, including any and all licenses, options,
warranties, service contracts, program services, test rights, maintenance
rights, support rights, improvement rights, renewal rights and
indemnifications, and any substitution, replacement, addition or model
conversion of any of the foregoing; and (v) all documentation for such
hardware, software and firmware described in the preceding clauses (i), (ii) and
(iii), whether now or hereafter owned, licensed or leased, including
flow charts, logic diagrams, manuals, specifications, training materials,
charts and pseudo codes.


 


“Contract
Right” shall mean any right of any Debtor to payment under a contract for
the sale or lease of goods or the rendering of services, which right is at the
time not yet earned by performance.


 


“Entrusted
Goods” means, for any Debtor, Goods of such Debtor that (i) have been
placed on Consignment with, or sold on a secured basis or leased pursuant to a
finance lease to, a Person (other than another Debtor) and (ii) constitute
Inventory of such Debtor.


 


“Entrustor”
means a Debtor in its capacity as Consignor, seller or lessor of Entrusted
Goods.


 


“General
Intangibles” means all “general intangibles” as defined in the UCC and, in
any event, includes all general intangibles (including all general and limited
partnership interests and limited liability company interests), contract
rights, rights to receive payments of money, choses in action, judgments, tax
refunds and tax refund claims, copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, trade names, trade secrets, drawings or plans
with respect to trade secrets, copyrights, licenses, franchises, leasehold
interests in real or personal property, rights to receive rentals of real or
personal property and guarantee claims.


 


“Holder”
means the Consignee, debtor or lessee with respect to any Entrusted Goods.


 


“including”
means “including without limitation”.


 


2

















 


“Intellectual
Property” means all past, present and future: trade secrets and other
proprietary information; customer lists; trademarks, service marks,
business  names, trade names, designs,
logos, indicia, and/or other source and/or business identifiers and the
goodwill of the business relating thereto and all registrations or applications
for registrations which have heretofore been or may hereafter be issued thereon
throughout the world; copyrights (including copyrights for computer programs)
and copyright registrations or applications for registrations which have
heretofore been or may hereafter be issued throughout the world and all
tangible property embodying copyrights; unpatented inventions (whether or not
patentable); patent applications and patents; industrial designs, industrial
design applications and registered industrial designs; license agreements
related to any of the foregoing and income therefrom; mask works, books,
records, writings, computer tapes or disks, flow diagrams, specification
sheets, source codes, object codes and other physical manifestations,
embodiments or incorporations of any of the foregoing; the right to sue for all
past, present and future infringements of any of the foregoing; and all common
law and other rights throughout the world in and to all of the foregoing.


 


“Non-Goods
Collateral” shall mean all Collateral other than Inventory, Equipment,
Fixtures and other Goods.


 


“Permitted
Liens” means Liens permitted under Section 8.01 of the Credit
Agreement; provided that the aggregate amount of all Liens of all
Debtors of the types identified in clauses (g), (n), (s) and
(u) thereof shall not exceed the amounts or percentages set forth
in such clauses.


 


“Secured
Obligations” means (a) with respect to the Company, all Obligations of
the Company (including pursuant to Article XII of the Credit Agreement)
and (b) with respect to any other Debtor, (i) all obligations of such
Debtor under the Subsidiary Guaranty and each other Loan Document to which it
is a party, in each case as the same may be amended, modified, extended or renewed
from time to time, and (ii) all obligations of such Debtor owing to a
Guaranteed Creditor pursuant to a Rate Swap Document and all Cash Management
Obligations of such Debtor owing to any Guaranteed Creditor; provided
that no Debtor shall have any obligation hereunder in excess of the maximum
amount of the Secured Obligations which such Debtor may incur without violating
any fraudulent conveyance or fraudulent transfer law.


 


“UCC”
means the Uniform Commercial Code as in effect from time to time in the State
of Illinois.


 


A Section or a Schedule is, unless otherwise stated,
a reference to a section hereof or a schedule hereto, as the case may be.  Section captions used in this Agreement
are for convenience only, and shall not affect the construction of this
Agreement.  The words “hereof,” “herein,”
“hereto” and “hereunder” and words of similar purport when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement.  Unless
otherwise defined therein, all terms defined in this Agreement shall have the
defined meanings when used in any certificate or other documents made or
delivered pursuant hereto.


 


3

















 


(aa)         Grant of Security Interest.  As security for the payment and performance
of all Secured Obligations, each Debtor hereby assigns to the Agent for the
benefit of itself and the other Guaranteed Creditors, and grants to the Agent
for the benefit of itself and the other Guaranteed Creditors, a continuing
security interest in, all of such Debtor’s right, title, and interest in the
following, whether now owned or existing, or hereafter acquired or coming into
existence, and wherever now or hereafter located (collectively for all Debtors,
the “Collateral”):


 


(a)           all Accounts, Contract Rights and Documents of such
Debtor;


 


(b)           all Chattel Paper and instruments evidencing any
obligation to such Debtor for payment for goods sold or leased or for services
rendered;


 


(c)           All Goods of such Debtor (including all of its Equipment,
Fixtures and Inventory), together with all accessions, additions, attachments,
improvements, substitutions and replacements thereto and therefor;


 


(d)           all Deposit Accounts of such Debtor;


 


(e)           all General Intangibles of such Debtor;


 


(f)            all Instruments of such Debtor (together with all
guaranties thereof and security therefor);


 


(g)           all Intellectual Property of such Debtor;


 


(h)           all Investment Property of such Debtor (including
Commodity Accounts, Commodity Contracts, Securities (whether Certificated
Securities or Uncertificated Securities), Security Entitlements and Securities
Accounts);


 


(i)            all Computer Hardware and Software of such Debtor;


 


(j)            the Commercial Tort Claims of such Debtor listed on Schedule
D;


 


(k)           any and all balances, credits, deposits (general or
special, time or demand, provisional or final), accounts or monies of or in the
name of such Debtor now or hereafter with the Agent or any other Guaranteed
Creditor and any and all property of every kind or description of or in the
name of such Debtor now or hereafter, for any reason or purpose whatsoever, in
the possession or control of, or in transit to, or standing to such Debtor’s
credit on the books of, the Agent or such other Guaranteed Creditor or any
agent or bailee for the Agent or any other Guaranteed Creditor;


 


(l)            to the extent not included in the foregoing, other
personal property of such Debtor of any kind or description;


 


(m)          to the extent related to the property described in clauses
(a) through (l) above, all books, correspondence, credit
files, records, invoices and other papers and documents, including, to the
extent so related, all tapes, cards, computer runs, computer programs (to the
extent such Debtor may grant a security interest therein without a breach of the
terms thereof) 


 


4

















 


and other papers and documents in the possession or
control of such Debtor or any computer bureau from time to time acting for such
Debtor, and, to the extent so related, (i) all rights in, to and under all
policies of insurance, including claims of rights to payments thereunder and
proceeds therefrom, including any credit insurance and (ii) all dividends,
distributions, cash, instruments and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of such property; and


 


(n)           all proceeds and products of any of the foregoing;


 


provided that “Collateral”
of a Debtor shall not include (i) such Debtor’s right, title and interest
in (x) any Intellectual Property, Computer Hardware and Software or other
intangible personal property that is subject to a written licensing agreement
between such Debtor and a licensor, any such licensing agreement or any
proceeds of the foregoing to the extent that, in each case, such licensing
agreement prohibits the grant by such Debtor of a Lien in such property or (y) any
other personal property that was acquired by such Debtor with the proceeds of
financing provided by another Person (or any refinancing of such a financing so
long as (I) the amount of the Indebtedness or other obligation under such
refinancing does not exceed the Indebtedness or other obligation existing
immediately prior to such refinancing and (II) the scope of the Property
securing such financing is not increased), any related financing agreement and
any proceeds of the foregoing to the extent that, in each case, such financing
agreement prohibits the grant by such Debtor of a Lien in the property so
financed, but only to the extent, and for so long as, any applicable agreement
described in the foregoing clause (x) or (y) is not
terminated or rendered ineffective by the UCC or any other applicable law; (ii) any
Margin Stock unless the Agent has received all relevant documentation required
to comply with the Federal Reserve Board’s margin regulations (and each Debtor
agrees that, upon request of the Agent at any time that (A) a Default or
an Event of Default exists or (B) the aggregate fair market value of all
Margin Stock held by the Debtors exceeds $5,000,000, it will promptly provide
to the Agent all documents that the Agent reasonably requests to comply with
such regulations); or (iii) any stock or other equity interest in any
Person except to the extent required to be pledged pursuant to the Pledge
Agreement.


 


(bb)         Representations and Warranties.  Each Debtor represents and warrants to the
Agent and the other Guaranteed Creditors that:


 


(a)           no financing statement (other than (i) any that the
Company or the Agent are authorized to file on the date hereof in connection
with the Loan Documents or (ii) in respect of any Permitted Lien) covering
any of its Collateral is on file in any public office;


 


(b)           none of its Collateral is of a type in which a Lien may be
filed under, or notice thereof given under, any federal statute relating
exclusively to Collateral of that type rather than property generally, other
than corporate aircraft owned by a Debtor and registered Intellectual Property
of a Debtor, to which federal filing statutes relate;


 


(c)           all Equipment, Fixtures and Inventory are located at the
locations shown on Schedule A (or at other locations permitted under Section 7);


 


5

















 


(d)           during the last five years, such Debtor has not conducted
business under any legal name other than the name in which it has executed this
Agreement, except for legal names listed on Schedule C;


 


(e)           such Debtor’s true legal name as registered in the
jurisdiction in which such Debtor is organized, jurisdiction of organization,
federal employer identification number, organizational identification number,
if any, as designated by the state of its organization, chief executive office
and principal place of business are set forth on Schedule B (or, in the
case of the chief executive office and principal place of business, at such
other address provided to the Agent in accordance with Section 7);


 


(f)            none of the Equipment (other than vehicles) owned by such
Debtor and none of such Debtor’s Inventory (other than vehicles manufactured by
such Debtor and returned by customers from time to time in the ordinary course
of business) is covered by any certificate of title;


 


(g)           such Debtor is and will be the lawful owner of, or has and
will have a valid leasehold interest or license in, all of its Collateral, free
of all Liens and claims whatsoever, other than Permitted Liens, with full power
and authority to execute this Agreement and perform such Debtor’s obligations
hereunder, and to subject such Collateral to the security interest granted
hereunder;


 


(h)           upon the filing of financing statements on Form UCC-1
in the appropriate governmental offices and the payment of all required filing
fees with respect thereto, the Agent will have a valid lien upon and perfected
security interest in all of such Debtor’s Collateral in which a security
interest can be perfected by filing under the Uniform Commercial Code as in
effect in such Debtor’s jurisdiction of organization; and


 


(i)            all information with respect to Collateral and Account
Debtors set forth in any schedule, certificate or other writing at any time
heretofore or hereafter furnished by such Debtor to the Agent or any other
Guaranteed Creditor, and all other written information heretofore or hereafter
furnished by such Debtor to the Agent or any other Guaranteed Creditor, is and
will be true and correct in all material respects as of the date furnished.


 


(cc)         Use of Collateral. 
Until an Event of Default has occurred and is continuing, such Debtor
may have possession of its Collateral and use such Collateral in any manner not
inconsistent with this Agreement or with any policy of insurance on such
Collateral.


 


(dd)         Processing, Sale and Collections.  Until such time as the Agent shall notify the
Company of the revocation of such power and authority while an Event of Default
is continuing, each Debtor:


 


(a)           may sell, lease, use or furnish under contracts of service
any of the Inventory normally held by such Debtor for such purpose, and use and
consume any raw materials, work in process or materials normally held by such
Debtor for such purpose;


 


(b)           will endeavor to collect, as and when due, in a manner
consistent with past practices, all amounts due with respect to any of the
Non-Goods Collateral, including (while an 


 


6

















 


Event of Default is continuing) the taking of such
action with respect to such collection as the Agent may reasonably request or,
in the absence of such request, as such Debtor may deem advisable;


 


(c)           may grant, in the ordinary course of business, to any
party obligated on or with respect to any of its Collateral, any rebate, refund
or allowance to which such party may be lawfully entitled, and may accept, in
connection therewith, the return of goods, the sale or lease of which shall
have given rise to such Collateral; and


 


(d)           may sell, use or lease furniture, Equipment, Fixtures and
other property to the extent not prohibited by the Credit Agreement.


 


The Agent, however, may at any time while an Event of Default is
continuing, whether before or after any revocation of such power and authority
or the maturity of any of the Secured Obligations, notify any party obligated
on or with respect to any of the Non-Goods Collateral to make payment directly
to the Agent of any amounts due or to become due thereunder and enforce
collection of any of the Non-Goods Collateral by suit or otherwise and
surrender, release or exchange all or any part thereof, or compromise or extend
or renew for any period (whether or not longer than the original period) any
indebtedness or other obligations thereunder or evidenced thereby.  Upon request of the Agent, while an Event of
Default is continuing, each Debtor will, at its own expense, notify any parties
obligated on or with respect to any of the Non-Goods Collateral to make payment
to the Agent of any amounts due or to become due thereunder.


 


Each Debtor will, during the continuance of an Event of Default,
forthwith, upon receipt of written demand of the Agent, transmit and deliver to
the Agent, in the form received, all cash, checks, drafts, Chattel Paper and
other Instruments or writings for the payment of money (properly endorsed,
where required, so that such items may be collected by the Agent) which may be
received by such Debtor at any time in full or partial payment or otherwise as
proceeds of any of the Collateral. 
Except as the Agent may otherwise consent in writing, any such items
which may be received by a Debtor following such demand of the Agent will not
be commingled with any other of its funds or property, but will be held
separate and apart from its own funds or property and upon express trust for
the Agent, for the benefit of itself and the other Guaranteed Creditors, until
delivery is made to the Agent.  All items
or amounts which are delivered by a Debtor to the Agent on account of partial
or full payment by an Account Debtor or otherwise as proceeds of any of the
Collateral shall be deposited to the credit of a non-interest bearing deposit
account over which such Debtor shall have no control (each an “Assignee Deposit
Account”) of such Debtor with the Agent, as security for payment of the Secured
Obligations.  The Agent shall promptly
upon request of the applicable Debtor (and may at any time in its discretion)
apply all or any of the then balance, representing collected funds, in the
Assignee Deposit Accounts, toward payment of the Secured Obligations, whether
or not then due.


 


The Agent is authorized to endorse, in the name of the applicable
Debtor, any item, howsoever received by the Agent, representing any payment on
or other proceeds of any of the Collateral.


 


7

















 


(ee)         Certificates, Schedules and Reports.  Each Debtor will furnish to the Agent from
time to time such additional schedules and such certificates and reports
respecting all or any of its Collateral and the items or amounts received by
such Debtor in full or partial payment or otherwise as proceeds of any of its
Collateral, all to such extent as the Agent may reasonably request.  Each of the foregoing schedules,
certificates, reports and notices shall be executed by a duly authorized
officer of such Debtor and shall be in such form and detail as the Agent may
reasonably specify.


 


(ff)           Covenants. 
From the date of this Agreement, and thereafter until this Agreement is
terminated, each Debtor:


 


(a)           will, from time to time, execute (as applicable) and
deliver such financing statements and other documents (and pay the cost of
filing or recording the same in all applicable offices) and do such other acts
and things (including, to the extent required pursuant to the terms of the
Pledge Agreement, delivery to the Agent of any Instrument or Certificated
Security that constitutes Collateral), as are necessary or as the Agent may
from time to time reasonably request, to establish and maintain a valid and
perfected security interest in its Collateral (free of all other Liens, claims
and rights of third parties whatsoever, other than Permitted Liens) to secure
the payment of the Secured Obligations;


 


(b)           will keep all Inventory (other than Inventory that is in
transit in the normal course of business) at the locations shown on Schedule
A; provided that such Debtor may keep Inventory at any other
location so long as (i) if such location is owned by such Debtor or any
other Debtor, such Debtor has given the Agent not less than 15 days’ prior
written notice that Inventory of such Debtor will be located at such location, (ii) if
such location is leased by such Debtor or any other Debtor, the Agent has
received a waiver and consent reasonably satisfactory to the Agent from the
landlord of such location, and (iii) if such location is neither owned nor
leased by such Debtor or any other Debtor, the Agent shall have received a
Collateral Access Agreement from the bailee, processor, warehouseman or other
third party that has possession of such Inventory; and provided, further,
that any Debtor may temporarily keep Inventory at other locations in the
ordinary course of business, consistent with past practices, but such Debtor
will, upon request of the Agent during the existence of an Event of Default,
return such Inventory (other than Inventory leased to such Debtor’s customers
in the ordinary course of business to the extent relocation would violate the
relevant lease) to one of the locations shown on Schedule A;


 


(c)           will maintain its chief executive office and principal
place of business at the respective addresses shown on Schedule B,
unless such Debtor gives the Agent 30 days’ prior written notice of any new
address;


 


(d)           (i) will keep all Equipment (except (x) Equipment
that is normally used in more than one State (referred to in this clause (d) as
“mobile goods”) and (y) Equipment that is located outside the continental
United States with an aggregate fair market value not in excess of $35,000,000)
at the locations shown on Schedule A; provided that such Debtor
may keep Equipment at any other location so long as (i) if such location
is owned by such Debtor or any other Debtor, such Debtor has given the Agent
not less than 15 days’ prior written notice that Equipment of such Debtor will
be located at such location, (ii) if such location is leased by such
Debtor or any other Debtor, the Agent has received a waiver and consent
reasonably satisfactory


 


8
















 


to the Agent from the landlord of such location, and
(iii) if such location is neither owned nor leased by such Debtor or any other
Debtor, the Agent shall have received a satisfactory agreement from the bailee,
warehouseman or other third party that has possession of such Equipment
acknowledging the Agent’s Lien on such Equipment and granting the Agent access
to such location to remove such Equipment upon notice during the existence of
an Event of Default; and provided, further, that (A) any Debtor
may keep tooling at any supplier in the ordinary course of business consistent
with past practice so long as the aggregate value of all tooling of all Debtors
so kept with suppliers does not at any time exceed $10,000,000; and (B) any
Debtor may keep Equipment at any other location so long as the aggregate value
of all Equipment of all Debtors at all such other locations (excluding
locations shown on Schedule A or referred to in the parenthetical clause
beginning in the first line of this Section 7(d), in the first proviso
to this Section 7(d) or in clause (A) of this proviso) does not
at any time exceed $25,000,000; and (ii) will not use any mobile goods outside
the continental United States unless the Agent shall otherwise consent in
writing;


 


(e)           will not change its
jurisdiction of organization or incorporation or its name, identity or
corporate structure such that any financing statement filed to perfect the
Agent’s interests under this Agreement would become seriously misleading,
unless such Debtor shall have given the Agent not less than 30 days’ prior
notice of such change (provided that this Section 7(e) shall not
be deemed to authorize any change or transaction prohibited under the Credit
Agreement);


 


(f)            if such Debtor is organized
under the laws of the United States or any State or other political subdivision
thereof, will keep all Deposit Accounts (except for (i) Deposit Accounts that
do not, individually or collectively, hold deposits in excess of $7,500,000 for
more than five consecutive Business Days (or, solely in the case of Deposit
Accounts maintained by JLG Industries, Inc. Australia Branch, deposits in
excess of $15,000,000 for more than ten Business Days) and (ii) any accounts
facilitating the operation of cash pooling, interest set-off and/or sweep
arrangements) and Investment Property in the United States;


 


(g)           will, promptly upon any
officer of such Debtor obtaining knowledge that such Debtor has acquired a
Commercial Tort Claim with a reasonably anticipated value in excess of
$1,000,000, promptly notify the Agent in a writing signed by such Debtor of the
details thereof and grant to the Agent in such writing a security interest
therein and in the proceeds thereof, with such writing to be in form and
substance reasonably satisfactory to the Agent;


 


(h)           will furnish the Agent such
information concerning such Debtor, the Collateral and the Account Debtors as
the Agent may from time to time reasonably request;


 


(i)            will, upon request of the
Agent, stamp on its records concerning the Collateral a notation, in form and
substance reasonably satisfactory to the Agent, of the security interest of the
Agent hereunder;


 


(j)            will reimburse the Agent
promptly following demand for all reasonable costs and expenses, including
reasonable fees of attorneys (who may be employees of the Agent) and legal
expenses, incurred by the Agent in seeking to collect or enforce any rights
under the Collateral and, in case of an Event of Default, in seeking to collect
any Secured Obligations and 


 


9

















 


to enforce rights hereunder, including expenses of
any repairs to any realty or other property to which any of the Equipment may
be affixed or be a part;


 


(k)           will pay, when due, all
taxes, assessments, governmental charges and other similar charges levied
against any of the Collateral, except and so long as such Debtor is contesting
such taxes, assessments or charges in good faith and by appropriate proceedings
and such Debtor has set aside on its books such reserves or other appropriate
provisions therefor as may be required by generally accepted accounting
principles;


 


(l)            will do nothing to impair in
any material respect the rights of the Agent or the other Guaranteed Creditors
in the Collateral (provided that this clause (l) will not prohibit any
transaction permitted by the Credit Agreement);


 


(m)          will at all times keep its
Collateral insured in compliance with the requirements of the Credit Agreement
(and such Debtor assumes all liability and responsibility in connection with
the Collateral acquired by it, and agrees that the liability of such Debtor to
pay its obligations shall in no way be affected or diminished by reason of the
fact that such Collateral may be lost, stolen, damaged or for any reason
whatsoever unavailable to such Debtor);


 


(n)           will, during the continuance
of an Event of Default, (i) notify the Agent of any Collateral which, to its
knowledge, constitutes a claim against the United States government or any
instrumentality or agency thereof (except for claims against any state
government, unless requested by the Agent), the assignment of which claim is
restricted by federal law, and (ii) promptly upon the request of the Agent,
take such steps as may be necessary to comply with any applicable federal
assignment of claims laws;


 


(o)           at any time during the
continuance of an Event of Default, upon request, will give the Agent
information as to ownership of any vehicle or other Equipment covered by a
certificate of title and, promptly upon request of the Agent at any time during
the continuance of an Event of Default, such Debtor will deliver any such
certificate of title to the Agent and/or will cause the Lien of the Agent, on
behalf of itself and the other Guaranteed Creditors, to be noted thereupon;


 


(p)           will defend title to the
Collateral and the Liens of the Agent on the Collateral against the claim of
any Person, other than to the extent such claim is a Permitted Lien, and will
maintain and preserve such Liens of the Agent; and


 


(q)           will, with respect to each
Holder (i) within 120 days after the end of each fiscal quarter during which
the aggregate amount of Entrusted Goods of all Debtors with such Holder exceeds
$3,000,000 (or, if later, the date on which such Debtor first delivers
Entrusted Goods to such Holder), perfect its interest as Entrustor in all
Entrusted Goods of such Debtor held by such Holder by filing a UCC financing
statement (or the equivalent in Ontario or any other jurisdiction in Canada
that has a filing system similar to the system established under Ontario
Personal Property Security Act) in each applicable jurisdiction against such
Holder; (ii) take such actions as are necessary from time to time to continue
the effectiveness of each financing statement (or equivalent document) filed
pursuant to the foregoing clause (i) (unless such Debtor no longer has,
and does not reasonably expect to have, any Entrusted Goods in an 


 


10

















 


aggregate amount in excess of $3,000,000 with such
Holder); and (iii) prior to or promptly after such Debtor files any financing
statement against a Holder pursuant to clause (i) above (and not less
than once every five years thereafter so long as such Debtor has, or reasonably
expects to have, Entrusted Goods in an aggregate amount in excess of $3,000,000
with such Holder), send a notice to each Person that (as of the date of such
filing) has a financing statement on file in the relevant office covering
Inventory of such Holder (other than a filing against specific Goods that do
not constitute Entrusted Goods), stating that such Debtor has or expects to
acquire a purchase-money security interest in (or, as applicable, to place on
Consignment with or lease to such Holder) Goods that will be Inventory of such
Holder and describing such Goods.  Each
Debtor hereby authorizes the Agent to file any financing statement,
continuation statement or amendment to financing statement in any jurisdiction
and with any filing office as the Agent may determine, in its sole discretion,
is necessary to perfect the security interest granted to the Agent hereunder or
in connection herewith.  Any such
financing statement or amendment may describe the Collateral in the same manner
as described in any security agreement or pledge agreement entered into by the
parties in connection herewith, or may contain an indication or description of
collateral that describes such property in any other manner as the Agent may
determine, in its sole discretion, is necessary, advisable or prudent to ensure
the perfection of the security interest in the Collateral or in connection
herewith, including describing such property as “all assets” or “all personal
property”, whether now owned or hereafter acquired and wherever located.


 


The Agent may from time to time, at its option, perform any agreement
of a Debtor hereunder which such Debtor shall fail to perform when due and take
any other action which the Agent deems necessary for the maintenance or
preservation of any of the Collateral or its interest therein, and such Debtor
agrees to forthwith reimburse the Agent for all expenses of the Agent in
connection with the foregoing, together with interest thereon from the date
incurred until reimbursed by such Debtor at a rate per annum equal to the Base
Rate plus the Applicable Base Rate Margin applicable to Revolving Loans in
effect from time to time.  The applicable
Debtor’s obligation to reimburse the Agent pursuant to the preceding sentence
shall be a Secured Obligation of such Debtor payable on demand.


 


(gg)         Remedies.


 


(a)           Remedies Upon an Event of
Default.  Whenever an Event of Default
exists, the Agent may exercise from time to time any rights and remedies
available to it under the UCC and any other applicable law (in addition to
those described below).  Without limiting
the foregoing, the Agent may, during the existence of an Event of Default:


 


(1)           personally, or by agents or
attorneys, immediately take possession of the Collateral or any part thereof,
from such Debtor or any other Person which then has possession of any part
thereof with or without notice or process of law (unless the same shall be
required by applicable law), and for that purpose may enter in an orderly and
lawful manner upon such Debtor’s premises where any of the Collateral is
located and remove the same and use in connection with such removal any and all
services, supplies, aids and other facilities of such Debtor;


 


11

















 


(2)           instruct the obligor or
obligors on any contract, agreement, instrument or other obligation (including
Accounts) constituting the Collateral to make any payment required by the terms
thereof directly to the Agent, on behalf of itself and the other Guaranteed
Creditors;


 


(3)           sell or otherwise liquidate,
or direct such Debtor to sell or otherwise liquidate, any or all investments
made in whole or in part with the Collateral or any part thereof, and take
possession of the proceeds of any such sale or liquidation;


 


(4)           with respect to Secured
Obligations which are contingent and cannot be accelerated by their nature,
require such Debtor to deposit cash or other acceptable collateral in an amount
sufficient to cover principal, interest and fees which will have accrued by the
maturity date on such Secured Obligations to be held as security for such Secured
Obligations in such Debtor’s Assignee Deposit Account;


 


(5)           to the extent applicable
thereto, exercise the voting and other rights as a holder of such Collateral,
and collect and receive all dividends, interest and principal and other
distributions made thereon; and


 


(6)           take possession of the
Collateral or any part thereof, by directing such Debtor in writing to deliver
the same to the Agent, on behalf of itself and the other Guaranteed Creditors,
at any reasonable place or places designated by the Agent, in which event such
Debtor shall at its own expense:


 


a.             forthwith cause the same to
be delivered to the Agent, on behalf of itself and the other Guaranteed
Creditors, at the place or places so designated by the Agent;


 


b.             store and keep any
Collateral so delivered to the Agent, on behalf of itself and the other
Guaranteed Creditors, at such place or places pending further action by the
Agent; and


 


c.             while any Collateral shall
be so stored and kept, provide such safeguards and maintenance services as shall
be necessary to protect such Collateral and to preserve and maintain such
Collateral in good condition;


 


it
being understood that such Debtor’s obligation so to deliver Collateral is of
the essence of this Agreement and that, accordingly, upon application to a
court of equity having jurisdiction, the Agent, on behalf of itself and the
other Guaranteed Creditors, shall be entitled to a decree requiring specific
performance by such Debtor of such obligation.


 


(b)           Disposition of the
Collateral.


 


(1)           Any Collateral repossessed
by the Agent, on behalf of itself and the other Guaranteed Creditors, under or
pursuant to Section 8(a), and any other Collateral whether or not so
repossessed by the Agent, on behalf of itself and the other 


 


12

















 


Guaranteed Creditors, upon
the occurrence and during the continuance of an Event of Default may be sold,
leased or otherwise disposed of under one or more contracts or as an entirety
and without the necessity of gathering at the place of sale the property to be
sold, and in general in such manner, at such time or times, at such place or
places and on such terms and for such prices as the Agent may, in compliance
with any mandatory requirements of applicable law, determine to be commercially
reasonable.  Upon the occurrence and
during the continuance of any Event of Default, the Agent, on behalf of itself
and the other Guaranteed Creditors, shall have the power to foreclose a Debtor’s
right of redemption in the applicable Collateral by sale, lease or other
disposition of such Collateral in accordance with the Uniform Commercial Code
as enacted in each state where such Collateral is located.  Any of the Collateral may be sold, leased or
otherwise disposed of in the condition in which such Collateral existed when
taken by the Agent, on behalf of itself and the other Guaranteed Creditors, or
after any overhaul or repair which the Agent shall determine to be commercially
reasonable and the Agent shall be entitled to reimbursement for the payment of
any costs or expenses of such overhaul or repair.  Any such disposition made by a private sale
or other private proceeding permitted by the requirements of applicable law
shall be made after written notice to the applicable Debtor specifying the time
at which such disposition is to be made and the intended sale price or other
consideration therefor.  Any such
disposition made by a public sale permitted by such requirements of applicable
law shall be made after written notice to the applicable Debtor specifying the
time and place of such sale and, in the absence of applicable requirements of
law, shall be by public auction.  To the
extent permitted by any such requirement of law, the Agent, on behalf of itself
and the other Guaranteed Creditors, or any other Guaranteed Creditor may itself
bid for and become the purchaser of the Collateral, or any item thereof,
offered for sale in accordance with this Section 8(b) without
accountability to such Debtor.  In the
payment of the purchase price of the Collateral the purchaser shall be entitled
to have credit on account of the purchase price thereof of amounts owing to
such purchaser on account of any of the Secured Obligations held by such
purchaser and any such purchaser may deliver notes, claims for interest, or
claims for other payment with respect to such Secured Obligations in lieu of
cash up to the amount which would, upon distribution of the net proceeds of
such sale, be payable thereon.  Such
notes, if the amount payable hereunder shall be less than the amount due
thereon, shall be returned to the holder thereof after being appropriately
stamped to show partial payment.  If,
under mandatory requirements of applicable law, the Agent, on behalf of itself
and the other Guaranteed Creditors, shall be required to make disposition of
the Collateral within a period of time which does not permit the giving of
notice to the applicable Debtor as specified above, the Agent need give such
Debtor only such notice of disposition as shall be reasonably practicable in
view of such mandatory requirements of applicable law.


 


(2)           No notification need be
given to a Debtor (x) if such Debtor has signed, after an Event of Default, a
statement renouncing or modifying any right to notification of sale or other
intended disposition, or (y) with respect to Collateral that is (A) perishable
or threatens to decline speedily in value or (B) is of a type customarily sold
on a recognized market (including Investment Property).  Each Debtor hereby agrees and acknowledges
that a commercially reasonable disposition of Inventory, Equipment, Computer
Hardware and Software or Intellectual Property may be by lease or license of, 


 


13

















 


in addition to the sale of,
such Collateral.  Each Debtor further
agrees and acknowledges that (1) a disposition made in the usual manner on any
recognized market, at the price current in any recognized market at the time of
disposition or in conformity with reasonable commercial practices among dealers
in the type of property subject to the disposition shall, in each case, be
deemed commercially reasonable, and (2) to the extent notice of a proposed
disposition of Collateral is required to be given, notification sent after an
Event of Default and at least ten days before such proposed disposition
provides notice within a reasonable time before disposition.


 


(hh)         Application of Proceeds;
Deficiency.  The
proceeds of the Collateral realized upon the exercise of remedies hereunder
shall be applied by the Agent to payment of the Secured Obligations in the
following order unless a court of competent jurisdiction shall otherwise
direct:


 


(a)           FIRST, to payment of all
reasonable costs and expenses of the Agent incurred in connection with the
collection and enforcement of the Secured Obligations or of the security
interest granted to the Agent pursuant to this Agreement, including all costs
and expenses of any sale pursuant to this Agreement, and of any judicial or
private proceedings in which such sale may be made, and of all other expenses,
Secured Obligations and advances made or incurred by the Agent;


 


(b)           SECOND, to payment, pro
rata, of that portion of the Secured Obligations constituting accrued
and unpaid interest and fees, together with (to the extent permitted by law)
interest owing thereon at the applicable default rate from the date due, owing
or unpaid until paid in full;


 


(c)           THIRD, to payment, pro
rata, of the principal of the Secured Obligations and the aggregate Swap
Termination Value under all Rate Swap Documents, in each case then due, owing
or unpaid;


 


(d)           FOURTH, to payment, pro
rata, of any other Secured Obligations then due, owing or unpaid until
paid in full including any Secured Obligations incurred pursuant to this
Agreement; and


 


(e)           FIFTH, the balance, if any,
after all of the Secured Obligations have been satisfied, shall be remitted as
required by law.


 


The
Debtors shall remain liable for any deficiency if the proceeds of any sale or
other disposition of the Collateral are insufficient to pay the Secured
Obligations, including the fees and disbursements of any attorneys engaged by
the Agent or any other Guaranteed Creditor to collect such deficiency.


 


(ii)           Remedies Cumulative.  Each and every right, power and remedy hereby
specifically given to the Agent, for the benefit of itself and the other
Guaranteed Creditors, shall be in addition to every other right, power and
remedy specifically given to the Agent or the other Guaranteed Creditors under
this Agreement or any other Loan Document now or hereafter existing at law or
in equity, or by statute and each and every right, power and remedy whether
specifically herein given or otherwise existing may be exercised from time to
time or simultaneously and as often and in such order as may be deemed
expedient by the Agent.  All 


 


14

















 


such rights, powers and remedies shall be cumulative
and the exercise or the beginning of exercise of one shall not be deemed a
waiver of the right to exercise any of the others.  No delay or omission of the Agent in the
exercise of any such right, power or remedy and no renewal or extension of any
of the Secured Obligations shall impair any such right, power or remedy or
shall be construed to be a waiver of any Default or Event of Default or an
acquiescence therein.  In the event that
the Agent or any other Guaranteed Creditor shall bring any suit to enforce any
of its rights hereunder and shall be entitled to judgment, then in such suit
the Agent or such other Guaranteed Creditor may recover reasonable expenses,
including attorneys’ fees, which attorneys may be employees of the Agent, and
the amounts thereof shall be included in such judgment.


 


(jj)           Discontinuance of
Proceedings.  In case the
Agent or any other Guaranteed Creditor shall have instituted any proceeding to
enforce any right, power or remedy under this Agreement by foreclosure, sale,
entry or otherwise, and such proceeding shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the Agent
or such other Guaranteed Creditor, then and in every such case the applicable
Debtor and the Agent or such other Guaranteed Creditor shall be restored to
their respective former positions and rights hereunder with respect to the
Collateral, and all rights, remedies and powers of the Agent or such other
Guaranteed Creditor shall continue as if no such proceeding had been
instituted.


 


(kk)         Custody and Preservation of
Collateral.  The Agent
shall be deemed to have exercised reasonable care in the custody and
preservation of any of the Collateral in its possession if it takes such action
for that purpose as the applicable Debtor requests in writing, but failure of
the Agent to comply with any such request shall not of itself be deemed a
failure to exercise reasonable care, and no failure of the Agent to preserve or
protect any rights with respect to such Collateral against prior parties, or to
do any act with respect to the preservation of such Collateral not so requested
by such Debtor, shall be deemed a failure to exercise reasonable care in the
custody or preservation of such Collateral.


 


(ll)           Authorization for the Agent
to Take Certain Action.  Each
Debtor irrevocably authorizes the Agent, at any time and from time to time
while an Event of Default is continuing, in the sole discretion of the Agent,
and appoints the Agent as its attorney-in-fact to act on behalf of such Debtor,
(a) to endorse and collect any cash proceeds of the Collateral, (b) to enforce
payment of the Accounts in the name of the Agent, any other Guaranteed Creditor
or such Debtor, and (c) to apply the proceeds of any Collateral received by the
Agent to the Secured Obligations as provided in Section 9.  This appointment as attorney-in-fact is
coupled with an interest and shall be irrevocable for so long as any Secured
Obligations are outstanding.


 


(mm)       Notices.  Any notice required or permitted to be given
under this Agreement shall be given in the case of each Debtor or the Agent in
accordance with the Credit Agreement. 
Any Debtor or the Agent may change its address for service of notice
upon it by a notice in writing to the other parties hereto.


 


(nn)         Waiver and Amendments.  No amendment, modification or waiver of, or
consent with respect to, any provision of this Agreement shall in any event be
effective unless the same shall be in writing and signed and delivered by the
Agent and the Required Lenders (or such 


 


15

















 


greater number of Lenders as may be required by the
Credit Agreement).  Any waiver of any
provision of this Agreement, and any consent to any departure by any Debtor
from the terms of any provision of this Agreement, shall be effective only in
the specific instance and for the specific purpose for which given.


 


(oo)         Termination; Release of
Collateral.


 


(a) This Agreement shall
continue in effect (notwithstanding the fact that from time to time there may
be no Secured Obligations or commitments therefor outstanding) until the
payment in full of the Secured Obligations and the termination of the Credit
Agreement in accordance with its terms, at which time the security interests
granted hereby shall terminate and any and all rights to the Collateral shall
revert to the applicable Debtor.  Upon such
termination, the Agent shall promptly return to the applicable Debtor, at such
Debtor’s expense, such of the Collateral held by the Agent as shall not have
been sold or otherwise applied pursuant to the terms hereof.  The Agent will promptly execute and deliver
to the applicable Debtor such other documents as such Debtor shall reasonably
request to evidence such termination.


 


(b)           The Agent will, promptly
upon request of any Debtor (which request shall be accompanied by any
documentation the Agent may reasonably request to confirm that any applicable
conditions to the Agent’s acting upon such request have been satisfied (on
which documentation the Agent may conclusively rely absent written notice to
the contrary)), release its security interest in (i) any Collateral of such
Debtor that is disposed of by such Debtor as part of or in connection with any
Disposition permitted under the Credit Agreement or (ii) so long as no Default
or Event of Default exists or would result therefrom, all Collateral granted by
any Person that ceases to be a Guarantor in accordance with the terms of the
Credit Agreement.


 


(pp)         Lien Absolute.  All rights of the Agent hereunder, and all
obligations of each Debtor hereunder, shall be absolute and unconditional
irrespective of:


 


(a)           any lack of validity or
enforceability of any Loan Document, any other document executed in connection
with any Loan Document or any other agreement or instrument governing or
evidencing any Secured Obligations;


 


(b)           any change in the time,
manner or place of payment of, or in any other term of, all or any part of the
Secured Obligations, or any other amendment or waiver of or any consent to any
departure from any Loan Document or any other agreement or instrument governing
or evidencing any Secured Obligations;


 


(c)           any exchange, release or non-perfection
of any other collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations; or


 


(d)           any other circumstance which
might otherwise constitute a defense available to, or a discharge of, any
Debtor.


 


16

















 


(qq)         Release.  Each Debtor consents and agrees that the
Agent and the other Guaranteed Creditors may at any time, or from time to time,
in their discretion (a) renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Secured Obligations
and (b) exchange, release and/or surrender all or any of the Collateral, or any
part thereof, by whomsoever deposited, which is now or may hereafter be held by
the Agent in connection with all or any of the Secured Obligations; all in such
manner and upon such terms as the Agent and the other Guaranteed Creditors may
deem proper, and without notice to or further assent from any Debtor, it being
hereby agreed that each Debtor shall be and remain bound upon this Agreement,
irrespective of the value or condition of any of the Collateral, and
notwithstanding any such change, exchange, settlement, compromise, surrender,
release, renewal or extension, and notwithstanding also that the Secured
Obligations may, at any time, exceed the aggregate principal amount thereof set
forth in the relevant Loan Document or any other agreement governing any
Secured Obligations.  Each Debtor hereby
waives notice of acceptance of this Agreement, and also presentment, demand,
protest and notice of dishonor of any and all of the Secured Obligations, and
promptness in commencing suit against any party hereto or liable hereon, and in
giving any notice to or of making any claim or demand hereunder upon any
Debtor.  No act or omission of any kind
on the Agent’s part shall in any event affect or impair this Agreement.


 


(rr)           Reinstatement.  This Agreement shall remain in full force and
effect and continue to be effective if any petition is filed by or against any
Debtor for liquidation or reorganization, if any Debtor becomes insolvent or
makes an assignment for the benefit of creditors or if a receiver or trustee is
appointed for all or any significant part of a Debtor’s assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Secured Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be restored or returned by any obligee of the Secured Obligations, whether as a  “voidable preference”, “fraudulent
conveyance”, or otherwise, all as though such payment or performance had not
been made.  In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Secured Obligations shall be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.


 


(ss)         CHOICE OF LAW AND
JURISDICTION.  (a) THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS, WITHOUT
REGARD TO CONFLICT OF LAWS PROVISIONS, OF THE STATE OF ILLINOIS, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.


 


(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY
BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR OF THE UNITED STATES FOR
THE NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH DEBTOR, THE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) EACH
OTHER GUARANTEED CREDITOR CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.  EACH DEBTOR, THE AGENT AND (BY ACCEPTING THE
BENEFITS HEREOF) EACH OTHER GUARANTEED CREDITOR IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY 


 


17

















 


NOW
OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.  EACH OF EACH DEBTOR, THE AGENT AND (BY
ACCEPTING THE BENEFITS HEREOF) EACH OTHER GUARANTEED CREDITOR WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY ILLINOIS LAW.


 


(c)           EACH OF EACH DEBTOR, THE AGENT AND (BY ITS ACCEPTANCE HEREOF) EACH OTHER
GUARANTEED CREDITOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR
UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY FINANCING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.


 


(tt)           Severability.  Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.


 


(uu)         Successors and Assigns.  The rights and privileges of each Debtor, the
Agent and the other Guaranteed Creditors hereunder shall inure to the benefit
of their respective successors and permitted assigns.


 


(vv)         Counterparts; Additional
Debtors.  This Agreement may be executed
in any number of counterparts, which shall, collectively and separately,
constitute one agreement.  At any time
after the date of this Agreement, one or more additional Persons may become
parties hereto by executing and delivering to the Agent a counterpart of this
Agreement (including supplements to the Schedules hereto).  Immediately upon such execution and delivery
(and without any further action), each such additional Person will become a
party to, and will be bound by all the terms of, this Agreement.


 


(ww)       Agent.  Bank of America, N.A. has been appointed as
Agent for the Guaranteed Creditors hereunder, and the Agent has agreed to act
(and any successor Agent shall act) as such hereunder only on the express
conditions contained in Article X of the Credit Agreement.  Any successor Agent appointed pursuant to
Article X of the Credit Agreement shall be entitled to all the rights,
interests and benefits of the Agent hereunder.


 


18
















 


IN WITNESS WHEREOF, this Agreement has been duly
executed as of the day and year first above written.


 


	
   

  	
  BANK
  OF AMERICA, N.A., as Agent

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  OSHKOSH
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  R. Scott Grennier

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JLG
  INDUSTRIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  R. Scott Grennier

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MCNEILUS
  FINANCIAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  R. Scott Grennier

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PIERCE
  MANUFACTURING INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  R. Scott Grennier

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  



 


Signature page to Security Agreement


 

















 


	
   

  	
  Signature
  page for the Security Agreement dated as of September 27, 2010 (as
  amended, restated or otherwise modified, the “Security Agreement”) among
  Oshkosh Corporation (the “Company”), various subsidiaries of the Company and
  Bank of America, N.A., as Agent (as defined therein).

  
	
   

  	
   

  
	
   

  	
  The
  undersigned is executing a counterpart hereof for purposes of becoming a
  party to the Security Agreement (and the undersigned has attached hereto
  supplements to the Schedules to the Security Agreement setting forth all
  information necessary to make the representations and warranties set forth in
  the Security Agreement with respect to the undersigned accurate as of the
  date of the execution and delivery hereof (except to the extent such
  representations and warranties specifically refer to an earlier date, in
  which case they shall be true and correct as of such earlier date))

  
	
   

  	
   

  
	
   

  	
  [SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


Signature page to
Security Agreement


 

















 


SCHEDULE A


TO THE SECURITY AGREEMENT


 

















 


SCHEDULE B


TO THE SECURITY AGREEMENT


 


EXECUTIVE OFFICE LOCATIONS


 

















 


SCHEDULE C


TO THE SECURITY AGREEMENT


 


PRIOR LEGAL NAMES


 

















 


SCHEDULE D


TO THE SECURITY AGREEMENT


 


COMMERCIAL TORT CLAIMS