Exhibit 4.1


 


SECOND AMENDMENT


 


THIS
SECOND AMENDMENT dated as of March 6, 2009 (this “Amendment”)
amends the Credit Agreement dated as of December 6, 2006 (as previously
amended, the “Credit Agreement”) among OSHKOSH CORPORATION (formerly
known as Oshkosh Truck Corporation), various financial institutions and BANK OF
AMERICA, N.A., as Administrative Agent. 
Capitalized terms used but not defined herein have the respective
meanings set forth in the Credit Agreement.


 


WHEREAS, the parties hereto
have agreed to amend the Credit Agreement in certain respects as more fully set
forth below;


 


NOW, THEREFORE, the parties
hereto agree as follows:


 


SECTION 1.                                Amendments.  Effective on, and subject to
the occurrence of, the Second Amendment Effective Date (as defined below), the
Credit Agreement shall be amended as follows:


 


1.1                               Amended Definitions.  The
following defined terms in Section 1.01 are amended in their entirety to
read as follows:


 


“Base Rate” means for any day a fluctuating rate per annum equal
to (a) in the case of amounts denominated in Dollars, the highest of (i) the
Federal Funds Rate plus 1/2 of 1%; (ii) the rate of interest in
effect for such day as publicly announced from time to time by Bank of America
as its “prime rate”; or (iii) 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); and (b) in the case of amounts denominated in any Alternate
Currency, the comparable rate for such Alternate Currency, as reasonably
determined by the Agent or the applicable Fronting Lender.  The “prime rate” referred to in clause (a)(ii) 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 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.


 


“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.


 


“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


 


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interest expense, any loss on extinguishment
of debt in connection with the Second Amendment to this Agreement, all usage
fees payable pursuant to Section 2.14(c) 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; (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 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 Second Amendment Effective Date; (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 on
extinguishment of debt; 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.


 


“Excess Cash Flow” means, for any period, the excess (if any) of
(a) the sum of (i) Consolidated EBITDA (calculated without giving
effect to the last proviso of the definition thereof) for such period plus
(ii) to the extent not included in the calculation of such Consolidated
EBITDA, the absolute value of any net decrease in Working Capital during such
period over (b) the sum, without duplication, for such period of (i) Cash
Interest Expense, (ii) the cash portion of any loss on extinguishment of
debt in connection with the Second Amendment to this Agreement, (iii) usage
fees paid pursuant to Section 2.14(c), (iv) voluntary
prepayments of Term Loans and, to the extent accompanied by a permanent
decrease in the Revolving Commitments, Revolving Loans, (v) mandatory


 


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prepayments
of Term Loans pursuant to Section 2.11(d)(i), (ii) or (iii),
(vi) regularly scheduled principal payments of any other long-term
Indebtedness of the Company and its Subsidiaries (including any Indebtedness
that was long-term but is within one year of final maturity), (vii) the
aggregate amount of all cash payments by the Company and its Subsidiaries on
account of taxes on or measured by income, (viii) cash capital
expenditures actually made by the Company and its Subsidiaries, (ix) expenditures
of the type characterized as “purchases of equipment held for rental” in JLG’s
audited consolidated financial statements for the fiscal year ended July 31,
2006 and (x) to the extent not included in calculating any other amount in
this clause (b), any net increase in Working Capital during such period.


 


“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 least of (a) the Aggregate
Revolving Commitment, (b) $350,000,000 (or such other amount, not
exceeding $550,000,000, as may be agreed to from time to time by the Company
and the Lead Agents) and (c) the total amount of the Issuer
Commitments.  The L/C Commitment is a
part of the Aggregate Revolving Commitment, rather than a separate, independent
commitment.


 


“Leverage Ratio” means, as of any date of determination, the
ratio of (a) the remainder of (x) all Indebtedness of the Company and
its Subsidiaries (other than Leasing Subsidiaries) determined on a consolidated
basis as of such date (excluding (i) Contingent Obligations in respect of
Swap Contracts and (ii) 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 JLG’s report on Form 10-K for its fiscal year ended July 31,
2006) minus (y) the amount of cash collateral held pursuant to Section 2.06(g),
Section 2.11(b), Section 3.07 and Section 3.11, if any, to (b) Consolidated
EBITDA for the most recently ended period of four fiscal quarters for which
financial statements are available.


 


“Material Foreign Subsidiary” means, at any time, any Foreign
Subsidiary that, as of the end of the most recent fiscal quarter for which
financial statements have been delivered pursuant to Section 7.01,
had total (gross) revenues for the preceding four fiscal quarter period equal
to 3% or more of the total (gross) revenues of the Company and its Subsidiaries
for such period.


 


“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


 


3

















 


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 (x) the
sale price of the asset subject to such Disposition or (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 180 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 (to the extent that the Company would be
permitted to pay cash to consummate such an Acquisition as of the date of such
Disposition); and


 


(b)                                 with respect to any issuance of Indebtedness
or Equity Interests (excluding Equity Interests issued as consideration for a
Permitted Acquisition), the aggregate cash proceeds received by 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.


 


“Working Capital” means, at any time, the remainder of (a) the
consolidated current assets of the Company and its Subsidiaries (excluding cash
and cash equivalents) minus (b) the consolidated current
liabilities of the Company and its Subsidiaries (excluding Indebtedness).  The calculation of any increase or decrease
in Working Capital during any period shall be made giving pro forma effect to
any Material Dispositions made during such period.


 


1.2                               Definition of Cash Interest Expense.  The
definition of “Cash Interest Expense” is amended by (a) deleting the word “and”
after clause (ii) and substituting a comma therefor; and (b) deleting
the period at the end of clause (iii) and substituting the following
therefor: “and (iv) usage fees payable pursuant to Section 2.14(c).”


 


1.3                               Definition of Material Adverse Effect.  The
definition of “Material Adverse Effect” is amended by adding the following
proviso before the period at the end thereof:


 


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; 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 February 28, 2009 shall not constitute a “Material
Adverse Effect”.


 


1.4                               Definition of Offshore Rate.  The
definition of “Offshore Base Rate”, which is included in the definition of “Offshore
Rate”, is amended by deleting the language “with a term equivalent to such
Interest Period” each time such language appears therein and substituting the
following language therefor “with a term of three months (or, if longer, with a
term equivalent to such Interest Period)”.


 


1.5                               New Definitions.  The
following definitions are added to Section 1.01 in appropriate
alphabetical sequence:


 


“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.


 


“Impacted Lender” means (a) a Defaulting Lender or (b) a
Revolving Lender as to which (i) the Swing Line Lender or an Issuer has a
good faith belief that such Revolving Lender has defaulted in fulfilling its
obligations under one or more other syndicated credit facilities or (ii) an
entity that controls such Lender has been deemed insolvent or become subject to
a bankruptcy or other similar proceeding.


 


“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.


 


“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.


 


“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.


 


“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


 


5

















 


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) if the Leverage Ratio
immediately before or immediately after giving effect to such Acquisition is or
will be greater than 4.00 to 1.0, then (i) the sole consideration for such
Acquisition shall be Equity Interests of the Company and (ii) after giving
effect to such Acquisition, the aggregate amount of all consideration for all
Acquisitions made in the then current fiscal year (valued at the time of each
applicable Acquisition) will not exceed $100,000,000; (e) if the Leverage
Ratio immediately before or immediately after giving effect to such Acquisition
is or will be greater than 3.50 to 1.0 (and the preceding clause (d) does
not apply), then after giving effect to such Acquisition (i) the aggregate
amount of cash consideration for all Acquisitions made in the then current
fiscal year will not exceed $100,000,000 and (ii) the aggregate amount of
non-cash consideration for all Acquisitions made in the then current fiscal
year (valued at the time of each applicable Acquisition) will not exceed
$150,000,000; and (f) if the Leverage Ratio immediately before or
immediately after giving effect to such Acquisition is or will be greater than
3.0 to 1 (and the preceding clauses (d) and (e) do not
apply), then after giving effect to such Acquisition, (i) the aggregate
amount of cash consideration for all Acquisitions made in the then current
fiscal year will not exceed $150,000,000 and (ii) the aggregate amount of
non-cash consideration for all Acquisitions made in the then current fiscal
year (valued at the time of each applicable Acquisition) will not exceed
$150,000,000.  For purposes of the
foregoing, any assumption of Indebtedness in connection with an Acquisition
shall be considered cash consideration in an amount equal to the principal
amount of such Indebtedness.


 


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


 


“Second Amendment Effective Date” means March 9, 2009.


 


1.6                               Deletion of Definition.  Section 1.01
is amended by deleting the definition of “Additional Lender”.


 


1.7                               Accounting Matters. 
Subsection 1.03(a) is amended by adding the following sentence at
the end thereof:


 


Notwithstanding the foregoing, no change in
the amount of any Indebtedness for accounting purposes resulting from a gain or
loss on the extinguishment of debt shall be considered in determining the
amount of such Indebtedness (and any such Indebtedness shall be deemed to be
outstanding in the contractual amount thereof).


 


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1.8                               Swing Line Loans.  Section 2.05
is amended by adding the following language immediately after the language “; provided
that” therein:


 


(a)  the Swing Line Lender shall not be
under any obligation to make any Swing Line Loan if any Revolving Lender is at
such time an Impacted Lender hereunder, unless the Company is in compliance
with its obligations under Section 2.06(g); and (b).


 


1.9                               Cash Collateral for Swing Line Lender.  Section 2.06
is amended by adding the following clause (g) at the end thereof:


 


(g)  The Swing Line
Lender may require, as a condition to the making of any Swing Line Loan at any
time that any Revolving Lender is an Impacted Lender, that the Company deliver
to the Agent, as collateral for the benefit of the Swing Line Lender, cash or
deposit account balances in an aggregate amount equal to such Impacted Lender’s
Revolving Percentage of the amount of all outstanding Swing Line Loans pursuant
to arrangements and documentation in form and substance reasonably satisfactory
to the Agent and the Swing Line Lender, which arrangements and documents are
hereby consented to by all Lenders.  The
Company grants to the Agent, for the benefit of the Swing Line Lender, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing.  If
the applicable Impacted Lender fails to make any payment required pursuant to Section 2.06(b) or
(d), the Agent shall (without limiting in any way the obligations of
such Impacted Lender) use any cash collateral held pursuant to this subsection
(g) to make such payment.  If
the circumstances giving rise to a requirement that the Company provide cash
collateral pursuant to this subsection (g) cease to exist (or the
amount of cash collateral required pursuant to this subsection (g) is
reduced), then the Agent shall, promptly upon request of the Company, return
such cash collateral (or the relevant portion thereof) to the Company.


 


1.10                         Removal of Accordion.  (a) Section 2.09
is amended by (i) changing the caption to read: “Voluntary Termination
or Reduction of Revolving Commitments.”; (ii) deleting the language “,
except as provided in subsection (c)” at the end of the second sentence
of subsection (a); and (iii) deleting subsection (c); and (b) Exhibit I
is deleted in its entirety.


 


1.11                         Mandatory Prepayments. 
Subsections (d) and (e) of Section 2.11 are amended in
their entirety to read as follows:


 


(d)                                 If the Company or any Subsidiary receives any
Net Cash Proceeds from any of the following events, the Company shall 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 (e) 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


 


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described in Section 8.02(a),
(b), (c), (d), (f), (g), (h), (i), (j) or
(l), regardless of whether made by a Loan Party, and (B) 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(m)), 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 such Dispositions
received during the then-current fiscal year minus (y) $10,000,000 minus (z) all
amounts previously applied pursuant to this clause (i) during such
fiscal year.


 


(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(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 or (G) Indebtedness permitted under clause (y) of
Section 8.05(b)), 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).


 


(iii)                               Within five Business Days following the
receipt of any Net Cash Proceeds from the issuance of any Equity Interests
(excluding any issuance by a Subsidiary to the Company or another Subsidiary
and any Equity Interests issued as consideration for a Permitted Acquisition),
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 Equity Interests received after the Second Amendment
Effective Date minus (y) all amounts previously applied pursuant to this clause
(iii).


 


(iv)                              Within five Business Days following the
delivery of the Compliance Certificate with respect to each of the second
quarter and the fourth quarter of any fiscal year pursuant to subsection
7.02(b), beginning with the fiscal quarter ending September 30, 2009,
the Company shall make a Proceeds Application in an amount (rounded down as
provided above) equal to the excess, if any, of (A) the Specified
Percentage of (x) in the case of a Proceeds Application at the end of the
second fiscal quarter of a year, the amount of Excess Cash Flow for the first
two quarters of


 


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such year or (y) in the
case of a Proceeds Application at the end of a fiscal year, the amount of
Excess Cash Flow for such year minus the amount previously applied pursuant to
the preceding clause (x) at the end of the second quarter of such
year over (B) the sum of all voluntary prepayments of Term Loans, the
prepayment of Term Loans made in connection with the Second Amendment to this
Agreement and, to the extent accompanied by a permanent decrease in the
Revolving Commitments, all voluntary prepayments of Revolving Loans, in each
case to the extent made during the applicable two-quarter period or fiscal
year, as the case may be; provided that if any calculation under the
immediately preceding clause (A)(y) results in a negative
number in any fiscal year, then the aggregate amount due under this clause (iv) with
respect to future periods shall be reduced by the absolute value of such
negative number (with such reduction applied to future periods in chronological
order).  For purposes of the foregoing, “Specified
Percentage” means the percentage specified in the table below as of the
relevant second quarter or fourth quarter, as applicable, opposite the Leverage
Ratio in effect on the last day of such quarter.


 


	
  Leverage

  Ratio

  	
   

  	
  Second Quarter

  Specified Percentage

  	
   

  	
  Fourth Quarter

  Specified Percentage

  	
   

  
	
  Greater than or
  equal to 5.00 to 1.0

  	
   

  	
  35%

  	
   

  	
  85%

  	
   

  
	
  Less than 5.00
  to 1.0 but greater than or equal to 4.00 to 1.0

  	
   

  	
  35%

  	
   

  	
  75%

  	
   

  
	
  Less than 4.00
  to 1.0 but greater than or equal to 3.75 to 1.0

  	
   

  	
  25%

  	
   

  	
  50%

  	
   

  
	
  Less than 3.75
  to 1.0 but greater than or equal to 3.50 to 1.0

  	
   

  	
  0%

  	
   

  	
  25%

  	
   

  
	
  Less than 3.50
  to 1.0

  	
   

  	
  0%

  	
   

  	
  0%

  	
   

  



 


(e)                                  Each Proceeds Application shall be applied ratably
to the Term A Loans and the Term B Loans in proportion to the original
principal amounts thereof, and within each such Class shall be applied to
the remaining installments thereof in the inverse order of the maturity of such
installments.


 


9
















 


1.12                         Usage Fees.  Section 2.14 is amended
by adding the following subsection (c) in appropriate sequence:


 


(c)                                  Usage Fees.  For any day on which the
Company has a corporate family rating from Moody’s of B3 with negative watch or
lower (or, subject to the last two sentences of this subsection, has no such
rating) or a corporate credit rating from S&P of B- with negative watch or
lower (or, subject to the last two sentences of this subsection, has no such
rating), the Company shall pay (at the times set forth below) to the Agent, for
the account of each Lender (other than any Lender that is a Defaulting Lender
on such day) a usage fee of 0.50% per annum on the aggregate principal amount
of all outstanding Loans of each Lender. 
Accrued and unpaid usage fees shall be due and payable in arrears on the
last Business Day of each calendar quarter, on the Revolving Termination Date,
on the Term A Maturity Date, on the Term B Maturity Date and, if all Loans have
become due and payable (by acceleration or otherwise), on demand.  If Moody’s or S&P ceases to issue the
applicable type of ratings described above or materially changes its
methodology for determining such type of ratings, then the usage fee shall be
determined based upon the applicable rating of the other rating agency.  If both Moody’s and S&P cease to issue
the applicable type of ratings described above or materially change their
respective methodologies for determining such ratings, then the Company and the
Lead Agents shall agree in writing on an equitable alternative method for
determining the applicability of the usage fee (with a view toward replicating,
to the extent possible, the criteria and methodology used by Moody’s and
S&P for the applicable types of ratings as in effect on the Second
Amendment Effective Date).


 


1.13                         Letter of Credit Subfacility. Section 3.01(b)(vii) is amended
in its entirety to read as follows:


 


(vii)                           any Revolving Lender is at such time an Impacted Lender hereunder,
unless the Company is in compliance with its obligations under Section 3.11
with respect to such Impacted Lender.


 


1.14                         Cash Collateral for Impacted Lender.  Article III
is amended by adding the following new Section 3.11 at the end thereof:


 


3.11                           Cash Collateral for Issuer.  Upon
the request of any Issuer to the Agent and the Company at any time that any
Revolving Lender is an Impacted Lender, the Company shall immediately deliver
to the Agent, as collateral for the benefit of such Issuer, cash or deposit
account balances in an aggregate amount equal to such Impacted Lender’s
Revolving Percentage of the Stated Amount of all Letters of Credit issued by
such Issuer pursuant to arrangements and documentation in form and substance
reasonably satisfactory to the Agent and such Issuer, which arrangements and
documents are hereby consented to by all Lenders.  The Company grants to the Agent, for the
benefit of each applicable Issuer, a security interest in all such cash,
deposit accounts and all balances therein and all proceeds of the foregoing.  If, upon a draw under a Letter of


 


10

















 


Credit, the applicable Impacted Lender fails
to make any payment required pursuant to Section 3.03(c) or (d),
the Agent shall (without limiting in any way the obligations of such Impacted
Lender) use any cash collateral held pursuant to this Section 3.11
to make such payment.  If the
circumstances giving rise to a requirement that the Company provide cash
collateral pursuant to this Section 3.11 cease to exist (or the
amount of cash collateral required pursuant to this Section 3.11 is
reduced), then the Agent shall, promptly upon request of the Company, return
such cash collateral (or the relevant portion thereof) to the Company.


 


1.15                         Substitution of Lenders.  Section 4.07
is amended by deleting each reference to “Defaulting Lender” therein and
substituting therefor a reference to “Impacted Lender”.


 


1.16                         Notice of Impacted Lender.  Section 4.08
is amended in its entirety to read as follows:


 


4.08                         Notice of Impacted Lender.  The Agent agrees to notify the
Company upon (a) any Lender becoming an Impacted Lender or (b) the
occurrence of any Lender no longer being an Impacted Lender (but the Agent
shall have no liability for any failure to give, or any delay in giving, any
such notice).


 


1.17                         Notice of Ratings Change.  Section 7.02
is amended by (a) deleting the word “and” after clause (d); (b) re-lettering
the existing clause (e) to be clause (f); and (c) inserting the
following new clause (e) in appropriate sequence:


 


(e)                                  promptly upon such change being publicly
released by any rating agency, any adverse change in a rating referred to in Section 2.14(c) to
a rating at or below the applicable threshold specified in Section 2.14(c);
and


 


1.18                         Guarantors.  Section 7.13 is amended
in its entirety to read as follows:


 


7.13                         Guarantors.  The Company shall take all steps necessary to
ensure that (a) all Domestic Subsidiaries of the Company (other than any
Subsidiary that conducts no business and has no material assets) are parties to
the Subsidiary Guaranty; and (b) not later than 30 days after the end of
the calendar month in which the Company creates or acquires, or an existing
Subsidiary becomes, 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)) to the extent that (i) such
guaranty by such Material Foreign Subsidiary would result in material adverse
tax consequences to the Company or (ii) such Material Foreign Subsidiary
would not be able to issue such guaranty under applicable law without undue
expense or other material adverse consequences.


 


11

















 


1.19                         Further Assurances.  Section 7.14
is amended by (a) deleting the existing subsection (a)(i) and
substituting the following therefor:


 


(i)  to ensure that the obligations of
the Borrowers under the Loan Documents and of each applicable Subsidiary under
the Subsidiary Guaranty are secured by a pledge of all (subject to Section 7.14(b)(ii))
of such Person’s interests in any 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 7.14(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);


 


; and (b) replacing the
existing subsection (b) with the following subsections (b) and (c):


 


(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


 


12

















 


applicable Collateral or the Agent’s rights
with respect thereto in any material respect).


 


1.20                         Real Estate Collateral.  Article VII
is amended by adding the following new Section 7.15 at the end thereof:


 


7.15                           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 Second Amendment
Effective Date, cause each parcel of real property listed on Schedule 7.15
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 Second Amendment Effective Date) by any Loan
Party of any real property with a tax assessed value at the time of such
acquisition exceeding $2,000,000, 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 Loan Party 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 7.15 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


 


13

















 


liabilities
with respect to the relevant property and other matters considered when
selecting properties listed on Schedule 7.15).


 


1.21                         Lien Baskets. 
Subsection 8.01(g), subsection 8.01(n) and subsection 8.01(s) are
each amended by replacing the percentage “5%” with the percentage “2.5%”.


 


1.22                         Dispositions.  Section 8.02
is amended by (a) deleting the parenthetical clause “(any such
transaction, a “Disposition”)” therein and substituting the following
therefor:


 


(any such transaction, excluding, for the
avoidance of doubt, (i) any transfer of cash in the ordinary course of
business and (ii) any issuance by a Person of its own Equity Interests, a “Disposition”)


 


;
(b) deleting the parenthetical clause that reads “(but, for the avoidance
of doubt, excluding cash that is transferred in the ordinary course of business
and treasury stock of such Loan Party)”; and (c) amending subsections (d) and
(n) in their entirety and substituting the following therefor,
respectively:


 


(d)                                 [Intentionally deleted].


 


(n)                                 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(e) or (B) the aggregate
value of all assets disposed of by the Company and its Subsidiaries pursuant to
this subsection (n) (excluding Dispositions described in the
preceding clause (A)) (x) during any fiscal year, beginning with
the Company’s 2009 fiscal year, shall not exceed the greater of (A) $100,000,000
and (B) 5% of the consolidated tangible assets of the Company and its
Subsidiaries as of the beginning of such fiscal year and (y) after the
Second Amendment Effective Date shall not exceed the greater of (A) $350,000,000
and (B) 18% 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 (y) shall result from any
Disposition to the extent such Disposition was permitted by this Section 8.02(n) at
the time such Disposition was made.


 


1.23                         Restricted Investments.  Section 8.04
is amended in its entirety to read as follows:


 


8.04                         Restricted Investments.  The Company shall not:


 


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


 


14

















 


(b)  permit the aggregate amount of all Investments (as defined
below) in joint ventures or similar entities (in each case, that are not Loan
Parties) made by the Company and the other Loan Parties after the Second
Amendment Effective Date (other than Investments (i) 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, (ii) 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 (A) entered into
in the ordinary course of business and substantially consistent with past
practice or (B) required by law or any Governmental Authority, (iii) arising
from the transfer of inventory, equipment, intellectual property and/or
software to Foreign Subsidiaries in the ordinary course of business and
substantially consistent with past practice, (iv) that the Company and/or
one or more of its Subsidiaries have committed to make as of the Second Amendment
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 this Section 8.04),
which Investments are described on Schedule 8.04, and (v) in
Foreign Subsidiaries pursuant to tax, governmental and/or external auditor
requirements (collectively, “Permitted Investments”)) to at any one time
exceed $15,000,000;


 


(c)  permit the aggregate amount of all Investments (other than
Permitted Investments as defined above) in Foreign Subsidiaries that are not
Guarantors made by the Company and the Guarantors after the Second Amendment
Effective Date to at any one time exceed $50,000,000; or


 


(d)                                 change its investment policy (as in effect on
January 1, 2009) in any material respect in a manner that liberalizes the
investments permitted thereunder; and not, and not permit any Subsidiary to,
make any material investment in violation of such investment policy.


 


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


 


15

















 


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 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.


 


1.24                         Debt Limitations.  Section 8.05
is amended by (a) changing the caption to read “Subsidiary Indebtedness.”;
(b) deleting the phrase “, other than Permitted Securitizations” in
subsection (a); and (c) amending subsection (b) in its entirety to
read as follows:


 


(b)  The Company 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 (excluding (i) Indebtedness
arising under the Loan Documents; (ii) unsecured Permitted Acquired Debt; (iii) Indebtedness
existing on the Second Amendment 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 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); provided
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 $25,000,000; and (B) the Material Foreign Subsidiaries may
collectively have Indebtedness in an aggregate outstanding principal amount not
at any time exceeding $50,000,000.


 


1.25                         Transactions with Affiliates.  Section 8.06
is amended by (a) deleting the word “and” at the end of subsection (f) thereof,
(b) deleting the period at the end of subsection (g) thereof and
replacing such period with a semi-colon; and (c) adding new subsections (h) and
(i) at the end thereof reading in their entirety as follows:


 


(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; and


 


(i)                                     any Investment permitted under Section 8.04
or otherwise under


 


16

















 


this
Agreement.


 


1.26                         Restricted Payments. 
Subsection 8.09(a) is amended in its entirety as follows:


 


(a)  The Company shall
not, and shall not permit any Subsidiary to, declare or make any Restricted
Payment (other than dividends and distributions payable solely in common stock
of the Company or in rights or options to acquire such common stock); 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 during any fiscal year in an aggregate amount not exceeding
(A) during the Company’s 2009 fiscal year, $19,945,000 (which represents
amounts paid prior to the Second Amendment Effective Date plus $5,000,000); and
(B) during any subsequent fiscal year, $40,000,000 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 Payments made
in any fiscal year ending after the Effective Date that exceeded $40,000,000; provided,
further, that if at the time of any proposed Restricted Payment pursuant
to the foregoing clause (ii)(B), 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 greater than 2.5 to
1.0, then such Restricted Payment may not be made if, after giving effect
thereto, the aggregate amount of all such Restricted Payments made in the
applicable fiscal year would exceed the amount shown opposite the then-applicable
Leverage Ratio in the table below (and, without limiting the foregoing,
if such Leverage Ratio was greater than 4.0 to 1.0, then no such Restricted
Payment may be made if, after giving effect thereto, the aggregate amount of
all such Restricted Payments made in any applicable fiscal quarter would exceed
the sum of $0.01 per outstanding share of the Company’s common stock plus
$250,000):


 


	
  If Leverage

  Ratio is:

  	
   

  	
  Then after giving effect to a proposed Restricted

  Payment the total Restricted Payments in the

  applicable fiscal year cannot exceed:

  	
   

  
	
  >2.5 to 1.0

  but

  <3.5 to 1.0

  	
   

  	
  $40,000,000

  	
   

  
	
  >3.5 to 1.0

  but

  <4.0 to 1.0

  	
   

  	
  $10,000,000

  	
   

  
	
  >4.0 to 1.0

  	
   

  	
  $3,850,000

  	
   

  



 


17
















 


1.27                           Amendment of Existing Financial Covenants. 
Sections 8.10 and 8.11 are amended in their entirety to read as follows,
respectively:


 


8.10                           Leverage Ratio.  The
Company shall not permit the Leverage Ratio as of the last day of any fiscal
quarter to be greater than the applicable ratio set forth below:


 


	
  Fiscal Quarter(s) Ending

  	
   

  	
  Maximum Leverage

  Ratio

  
	
   

  	
   

  	
   

  
	
  March 31, 2009

  	
   

  	
  5.75 to 1.0

  
	
   

  	
   

  	
   

  
	
  June 30, 2009 and
  September 30, 2009

  	
   

  	
  7.25 to 1.0

  
	
   

  	
   

  	
   

  
	
  December 31, 2009

  	
   

  	
  7.00 to 1.0

  
	
   

  	
   

  	
   

  
	
  March 31, 2010

  	
   

  	
  6.75 to 1.0

  
	
   

  	
   

  	
   

  
	
  June 30, 2010 through
  June 30, 2011

  	
   

  	
  6.50 to 1.0

  
	
   

  	
   

  	
   

  
	
  September 30, 2011
  through June 30, 2012

  	
   

  	
  5.50 to 1.0

  
	
   

  	
   

  	
   

  
	
  September 30, 2012
  through June 30, 2013

  	
   

  	
  4.25 to 1.0

  
	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
  3.75 to 1.0.

  



 


8.11                           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 the applicable ratio set forth below:


 


	
  Fiscal Quarter(s) Ending

  	
   

  	
  Minimum Interest

  Coverage Ratio

  
	
   

  	
   

  	
   

  
	
  March 31, 2009

  	
   

  	
  1.95 to 1.0

  
	
   

  	
   

  	
   

  
	
  June 30, 2009

  	
   

  	
  1.64 to 1.0

  
	
   

  	
   

  	
   

  
	
  September 30, 2009

  	
   

  	
  1.58 to 1.0

  
	
   

  	
   

  	
   

  
	
  December 31, 2009

  	
   

  	
  1.49 to 1.0

  
	
   

  	
   

  	
   

  
	
  March 31, 2010

  	
   

  	
  1.52 to 1.0

  
	
   

  	
   

  	
   

  
	
  June 30, 2010,
  September 30, 2010 and December 31, 2010

  	
   

  	
  1.56 to 1.0

  
	
   

  	
   

  	
   

  
	
  March 31, 2011 and
  June 30, 2011

  	
   

  	
  1.70 to 1.0

  
	
   

  	
   

  	
   

  
	
  September 30, 2011 through
  June 30, 2012

  	
   

  	
  1.88 to 1.0

  
	
   

  	
   

  	
   

  
	
  September 30, 2012
  through June 30, 2013

  	
   

  	
  2.48 to 1.0

  
	
   

  	
   

  	
   

  
	
  Thereafter

  	
   

  	
  2.47 to 1.0.

  



 


18

















 


1.28                           Additional Covenants.  Article VIII
is amended by adding the following Sections 8.13 and 8.14 at the end thereof:


 


8.13                           Senior Secured Leverage Ratio.  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

  
	
   

  	
   

  	
   

  
	
  June 30, 2011

  	
   

  	
  5.00 to 1.0

  
	
   

  	
   

  	
   

  
	
  September 30, 2011
  through June 30, 2012

  	
   

  	
  4.50 to 1.0

  
	
   

  	
   

  	
   

  
	
  September 30, 2012
  through June 30, 2013

  	
   

  	
  3.25 to 1.0

  
	
   

  	
   

  	
   

  
	
  September 30, 2013

  	
   

  	
  3.00 to 1.0

  



 


For purposes of the foregoing, “Senior Secured Leverage Ratio” means,
as of the last day of any fiscal quarter, the ratio of (a) the aggregate
principal amount of all outstanding Loans on such day to (b) Consolidated
EBITDA for the period of four consecutive fiscal quarters ending on such day.


 


8.14                           Capital Expenditures.  The
Company shall not permit the aggregate amount of all capital expenditures
(excluding expenditures for “equipment held for rental” as shown in the Company’s
consolidated financial statements) made by the Company and its Subsidiaries on
a consolidated basis in any fiscal year set forth in the table below to exceed
the sum of (a) the amount shown in the table below opposite such fiscal
year plus (b) beginning in fiscal year 2010, 50% of the remainder of (i) the
amount of capital expenditures permitted in the prior fiscal year pursuant to
this Section 8.14 less (ii) the actual amount of capital expenditures
in such prior fiscal year:


 


	
  Fiscal Year 2009

  	
   

  	
  $

  	
  80,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fiscal Year 2010

  	
   

  	
  $

  	
  80,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fiscal Year 2011

  	
   

  	
  $

  	
  90,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fiscal Year 2012

  	
   

  	
  $

  	
  90,000,000

  	
   

  



 


19

















 


1.29                           New Pricing Schedule. 
Schedule 1.01(a) is replaced by Schedule 1.01(a) hereto.


 


1.30                           Mortgaged Property Schedule.  The
attached Schedule 7.15 is added as Schedule 7.15 to the Credit Agreement
in appropriate sequence.


 


1.31                           Permitted Investments Schedule.  The
attached Schedule 8.04 is added as Schedule 8.04 to the Credit Agreement
in appropriate sequence.


 


1.32                           Subsidiary Indebtedness Schedule. 
Schedule 8.05 is replaced by Schedule 8.05 hereto.


 


SECTION 2.                                Representations and Warranties.  The
Company represents and warrants to the Agent and each Lender as of the date
hereof and as of the Second Amendment Effective Date (as defined below) that:


 


2.1                                 The execution, delivery and performance by
the Company of this Amendment and the performance by the Company of the Credit
Agreement as amended hereby have been duly authorized by all necessary corporate
action, and do not and will not: (a) contravene the terms of the Company’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 the Company is a party or any
order, injunction, writ or decree of any Governmental Authority to which the
Company or its property is subject; or (c) violate any Requirement of Law.


 


2.2                                 Each representation and warranty made by the
Company in the Credit Agreement or any other Loan Document is true and correct
in all material respects with the same effect as though made on and as the date
hereof and as of the Second Amendment Effective Date, except to the extent any
such representation or warranty expressly relates to an earlier date (in which
case it was true and correct in all material respects as of such earlier date).


 


2.3                                 To the knowledge of the Company, no event,
circumstance, change, effect or condition with respect to the Company and its
Subsidiaries that is disclosed in any Form 10-K, Form 10-Q or Form 8-K
filed by the Company with the SEC prior to the Second Amendment Effective Date
(as defined in Section 1) is reasonably expected to result in a
Material Adverse Effect occurring after the Second Amendment Effective Date.


 


2.4                                 No Default or Event of Default has occurred
and is continuing.


 


SECTION 3.                                Conditions to Effectiveness.  This
Amendment shall become effective on the date (the “Second Amendment
Effective Date”) on which each of the following conditions is satisfied:


 


20

















 


3.1                                 Documents.  The Agent shall have received:


 


(a)                                  counterparts of this Amendment signed by the
Company;


 


(b)                                 Second Amendment Addendums in the form
attached hereto signed by the Required Lenders; and


 


(b)                                 a confirmation, substantially in the form of Exhibit B,
signed by all existing Loan Parties.


 


3.2                                 Prepayment of Term Loans.  The
Agent shall have received, for the account of the applicable Lenders, a
voluntary prepayment of the Term Loans in an amount equal to $100,000,000,
which prepayment (a) shall be applied pro rata (according to the current
principal amounts thereof) to all Term Loans in the inverse order of the
maturity of the installments thereof and (b) shall be distributed by the
Agent to the applicable Lenders promptly upon receipt thereof.


 


3.3                                 Amendment Fee.  An
amendment fee for each Lender that delivers a signed Lender Addendum for this
Amendment to the Agent, prior to 12:00 p.m. (New York time) on March 6,
2009, in an amount equal to the product of 0.50% multiplied by the sum
of (i) such Lender’s Revolving Commitment and (ii) the outstanding
principal amount of such Lender’s Term Loans after taking account of the
prepayment pursuant to Section 3.2 (it being understood that the
Company shall have no obligation to pay such fee if the Second Amendment
Effective Date does not occur).


 


3.4                                 Absence of Default.  No
Default or Event of Default shall exist.


 


SECTION 4.                                Miscellaneous.


 


4.1                                 Expenses.  The Company agrees to pay all
reasonable out-of-pocket expenses incurred by the Lead Agents (including the
reasonable fees, charges and disbursements of counsel for the Lead Agents) in
connection with this Amendment and the transactions contemplated hereby.


 


4.2                                 Governing Law.  THIS
AGREEMENT 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.


 


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


 


4.4                                 Effect of Amendment. 
Except as expressly set forth herein, this Amendment shall not, by
implication or otherwise, (a) limit, impair, constitute a waiver of or
otherwise affect the rights and remedies of the Lenders or the Agent under the
Credit Agreement or any other Loan Document or (b) alter, modify, amend or
in any way affect any of the terms, conditions, 


 


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obligations, covenants or agreements contained in the Credit Agreement
or any other Loan Document, all of which are ratified and affirmed in all
respects and shall continue in full force and effect.  By executing and delivering a copy hereof,
the Company agrees and confirms that all Loans and other Obligations shall be
fully guaranteed by the Guarantors pursuant to the Subsidiary Guaranty and
shall be fully secured pursuant to the Collateral Documents.


 


[Signature pages follow.]


 


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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first above written.


 


	
   

  	
  OSHKOSH CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ R. Scott Grennier

  
	
   

  	
  Name:

  	
  R. Scott Grennier

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A., as
  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Brashler

  
	
   

  	
  Name:

  	
  Michael Brashler

  
	
   

  	
  Title:

  	
  Vice President

  
							



 


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