UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 13, 2012
OSHKOSH CORPORATION
(Exact name of registrant as specified in its charter)
Wisconsin |
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1-31371 |
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39-0520270 |
(State or other |
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(Commission File |
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(IRS Employer |
jurisdiction of |
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Number) |
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Identification No.) |
incorporation) |
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P.O. Box 2566, Oshkosh, Wisconsin 54903
(Address of principal executive offices, including zip code)
(920) 235-9151
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On July 13, 2012, Oshkosh Corporation (the Company) entered into a First Amendment (the Amendment) to its Credit Agreement, dated as of September 27, 2010, among the Company, various subsidiaries of the Company party thereto as borrowers and various lenders and agents party thereto (such credit agreement, prior to giving effect to the Amendment, the Credit Agreement).
The Amendment reduces the specified margin for borrowings under the Credit Agreement subject to the LIBOR interest rate from a range of 2.25% to 3.50% per annum to a range of 1.50% to 2.50% per annum. The Amendment also reduces the specified margin for borrowings under the Credit Agreement subject to the base interest rate from a range of 1.25% to 2.50% per annum to a range of 0.50% to 1.50% per annum.
The Amendment reduces the initial maximum aggregate amount of availability under the revolving credit facility provided for by the Credit Agreement from $550 million to $525 million maturing in October 2015. The Amendment also updates the amortization schedule for the term loan facility provided for by the Credit Agreement to give effect to prior prepayments the Company has made. The outstanding amount of the term loan facility is currently $455 million. Pursuant to the Amendment, the term loan facility will be due in quarterly principal installments of $16.25 million commencing December 31, 2013 with a balloon payment in an amount equal to the then remaining outstanding balance of the term loan facility due at maturity in October 2015.
The Amendment reduces the unused commitment fee payable by the Company from a range of 0.40% to 0.50% per annum of the average daily unused portion of the aggregate revolving credit commitments under the Credit Agreement to a range of 0.25% to 0.50% per annum of the average daily unused portion of the aggregate revolving credit commitments under the Credit Agreement as amended by the Amendment. The Amendment also reduces the fee payable by the Company with respect to the maximum amount available to be drawn for each letter of credit issued and outstanding under the Credit Agreement from a range of 1.125% to 3.50% per annum to a range of 0.75% to 2.50% per annum.
The Amendment modifies the restricted payments covenant in the Credit Agreement. Under the Amendment, so long as no event of default exists under the Credit Agreement as amended by the Amendment or would result from such payment and so long as, after giving effect to such dividend or distribution on a pro forma basis, the Company would be permitted to incur at least $1.00 of additional indebtedness under the Credit Agreement as so amended, the Company may pay dividends and other distributions in an aggregate amount (excluding the amount of any permitted restricted payments under the Credit Agreement as so amended) not exceeding the sum of:
(i) $484.956 million; plus
(ii) 50% of the consolidated net income of the Company and its subsidiaries (or if such consolidated net income shall be a deficit, minus 100% of such deficit), accrued on a cumulative basis during the period (taken as one accounting period) beginning on April 1, 2012 and ending on the last day of the fiscal quarter immediately preceding the date of the applicable proposed dividend or distribution; plus
(iii) 100% of the aggregate net proceeds (including the fair market value of property other than cash, as determined in good faith by the Company) received by the Company subsequent to March 31, 2012 either (A) as a contribution to the Companys common equity capital or (B) from the issuance and sale of the Companys equity interests, including equity interests issued upon the conversion of indebtedness or redeemable equity interests of the
Company and equity interests issued in connection with the exercise of options, warrants or other rights to purchase such equity interests (other than, in each case, equity interests issued or sold to a subsidiary of the Company).
The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment filed herewith as Exhibit 4.1 and incorporated herein by reference and the Credit Agreement, which was filed as Exhibit 4.1 to the Companys Current Report on Form 8-K, dated September 29, 2010.
Item 3.03. Material Modification to Rights of Security Holders.
The information provided in Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 3.03.
Item 9.01. Financial Statements and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Not applicable.
(d) Exhibits. The following exhibit is being filed herewith:
(4.1) First Amendment to Credit Agreement, dated as of July 13, 2012, among Oshkosh Corporation and various lenders and agents party thereto.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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OSHKOSH CORPORATION | |
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Date: July 16, 2012 |
By: |
/s/ David M. Sagehorn |
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David M. Sagehorn |
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Executive Vice President, Chief Financial Officer |
Exhibit 4.1
EXECUTION COPY
FIRST AMENDMENT
TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of July 13, 2012 (this Amendment), to the Existing Credit Agreement is among Oshkosh Corporation, a Wisconsin corporation (the Company), the financial institutions party hereto and Bank of America, N.A., as administrative agent for the Lenders (all capitalized terms used herein and defined in Section 1.1 are used herein as therein defined).
W I T N E S S E T H:
WHEREAS, the Company, certain Subsidiaries of the Company from time to time party thereto, the financial institutions party thereto immediately prior to the effectiveness of this Amendment (collectively, the Existing Lenders) and the Agent are all parties to the Credit Agreement, dated as of September 27, 2010 (as amended or otherwise modified prior to the date hereof, the Existing Credit Agreement, and as amended by this Amendment and as the same may be further amended, supplemented, amended and restated or otherwise modified from time to time, the Credit Agreement); and
WHEREAS, the Company has requested that the Lenders agree to amend the Existing Credit Agreement, and the Lenders are willing, on the terms and subject to the conditions hereinafter set forth, to agree to the amendments set forth below;
NOW, THEREFORE, the parties hereto hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms when used in this Amendment shall have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof):
Amendment is defined in the preamble.
Amendment Effective Date is defined in Article III.
Company is defined in the preamble.
Credit Agreement is defined in the first recital.
Existing Credit Agreement is defined in the first recital.
Existing Lenders is defined in the first recital.
Terminating Lender is defined in Section 4.1(a).
SECTION 1.2. Other Definitions. Capitalized terms for which meanings are provided in the Existing Credit Agreement are, unless otherwise defined herein or the context otherwise requires, used in this Amendment with such meanings.
ARTICLE II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Subject to the occurrence of the Amendment Effective Date, the Existing Credit Agreement is hereby amended in accordance with this Article II.
SECTION 2.1.1. Amendments to Section 1.01.
(a) Section 1.01 of the Existing Credit Agreement is hereby amended by amending the following definitions as follows:
(i) The definition of Agent-Related Parties is hereby amended and restated in its entirety as follows:
Agent-Related Persons means, collectively, the Agent (and any successor administrative agent arising under Section 10.06) and the Syndication Agent, together with their respective Affiliates (including MLPFS and JPMS), and the officers, directors, employees, agents and attorneys-in-fact of the foregoing.
(ii) The definition of BAS is hereby deleted in its entirety.
(iii) The definition of Contingent Obligation is hereby amended by replacing the words the last paragraph of Note 12 to OSKs audited consolidated financial statements for the fiscal year ended September 30, 2009 with the words the second paragraph of Note 13 to OSKs audited consolidated financial statements for the fiscal year ended September 30, 2011 where they appear therein.
(iv) The definition of Fee Letter is hereby amended and restated in its entirety as follows:
Fee Letters means the fee letters, each dated as of June 18, 2012, among (a) the Company, the Agent and MLPFS; and (b) the Company, the Syndication Agent and JPMS.
(v) The definition of Letter of Credit is hereby amended and restated in its entirety as follows:
Letter of Credit means (a) the Existing Letters of Credit; and (b) any letter of credit Issued by an Issuer pursuant to Article III; provided that any commercial letter of credit issued hereunder shall provide solely for cash payment upon presentation of a sight draft.
(vi) The definition of Leverage Ratio is hereby amended by replacing the words outstanding Indebtedness of the type characterized as limited recourse debt in OSKs
report on Form 10-K for its fiscal year ended September 30, 2009 with the words outstanding Indebtedness of the type characterized as customer financing guarantees to third parties in OSKs report on Form 10-K for its fiscal year ended September 30, 2011 where they appear therein.
(vii) The definition of Material Adverse Effect is hereby amended by replacing the date August 10, 2010 with the date September 30, 2011 where it appears therein.
(b) Section 1.01 of the Existing Credit Agreement is hereby amended by adding the following definitions in appropriate alphabetical sequence:
MLPFS means Merrill Lynch, Pierce, Fenner & Smith Incorporated.
Permitted Restricted Payments means Restricted Payments in respect of one or more of the following:
(a) the purchase, repurchase, redemption, defeasance or other acquisition or retirement of any Equity Interests of the Company by conversion into, or by or in exchange for, Equity Interests, or out of net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of other Equity Interests of the Company;
(b) the redemption, defeasance, repurchase or acquisition or retirement for value of any Indebtedness of the Company or a Guarantor that is subordinate in right of payment to the Obligations out of the net cash proceeds of a substantially concurrent issue and sale (other than to a Subsidiary of the Company) of (x) new subordinated Indebtedness of the Company or such Guarantor, as the case may be, incurred in accordance with this Agreement or (y) Equity Interests of the Company;
(c) the purchase, redemption, retirement or other acquisition for value of Equity Interests in the Company held by employees or former employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) upon death, disability, retirement or termination of employment or alteration of employment status or pursuant to the terms of any agreement under which such Equity Interests were issued; provided that the aggregate cash consideration paid for such purchase, redemption, retirement or other acquisition of such Equity Interests does not exceed $15,000,000 in any calendar year; and provided, further, that any unused amounts in any calendar year may be carried forward to one or more future periods subject to a maximum aggregate amount of repurchases made pursuant to this clause (c) not to exceed $20,000,000 in any calendar year (provided that such amount in any calendar year may be increased by an amount not to exceed (i) the cash proceeds received by the Company or any of its Subsidiaries from the sale of Equity Interests of the Company or any direct or indirect parent company of the Company (to the extent contributed to the Company) to employees of the Company and its Subsidiaries that occurs after the
Effective Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement, other acquisition or dividend will not increase the amount available for Restricted Payments under the proviso to Section 8.08); plus (ii) the cash proceeds of key man life insurance policies received by the Company and its Subsidiaries after the Effective Date) (provided that to the extent any payment described under this clause (c) is made by delivery of Indebtedness and not in cash, such payment shall be deemed to occur only when, and to the extent, the obligor on such Indebtedness makes payments with respect to such Indebtedness); and/or
(d) the repurchase of Equity Interests deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities.
SECTION 2.2. Amendment to Section 2.11. Clause (c)(ii)(B) of Section 2.11 of the Existing Credit Agreement is hereby amended and restated as follows:
(B) Indebtedness secured by Liens of the type described in Section 8.01(a), (j), (k), (m), (n), (o), (r) or (u) regardless of whether made by a Loan Party;
SECTION 2.3. Amendment to Section 2.15. Clause (a) of Section 2.15 of the Existing Credit Agreement is hereby amended by replacing the words based upon Bank of Americas prime rate with the words at the Base Rate option where they appear therein.
SECTION 2.4. Amendment to Section 6.11. Section 6.11 of the Existing Credit Agreement is hereby amended by replacing the date September 30, 2009 with the date September 30, 2011 in each place where it appears therein.
SECTION 2.5. Amendments to Section 8.05. Clause (c) of Section 8.05 of the Existing Credit Agreement is hereby amended by (a) deleting the word and after clause (ii); (b) re-lettering the existing clause (iii) to be clause (iv); (c) adding the word other to the beginning of clause (iv); and (d) inserting the following new clause (iii) in appropriate sequence:
(iii) unsecured Indebtedness to the extent included in calculating Contingent Obligations by operation of clause (v) of the last sentence of the definition thereof; and
SECTION 2.6. Amendment to Section 8.08. The proviso at the end of clause (a) of Section 8.08 of the Existing Credit Agreement is hereby amended and restated in its entirety as follows:
provided that (i) any Subsidiary may make such Restricted Payments to the Company or to another Subsidiary; (ii) the Company and its Subsidiaries may make Permitted Restricted Payments; and (iii) so long as (A) no Event of Default exists or would result therefrom and (B) after giving effect to such Restricted Payment on a pro forma basis, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 8.05, the Company and its
Subsidiaries may make other such Restricted Payments in an aggregate amount during the term of this Agreement (excluding the amount of any Permitted Restricted Payments) not exceeding an amount equal to $484,956,000, plus the sum of:
(i) 50% of the consolidated net income of the Company and its Subsidiaries (or if such consolidated net income shall be a deficit, minus 100% of such deficit), accrued on a cumulative basis during the period (taken as one accounting period) from the beginning of the full fiscal quarter ending on June 30, 2012 and ending on the last day of the fiscal quarter immediately preceding the date of the applicable proposed Restricted Payment; and
(ii) 100% of the aggregate net proceeds (including the fair market value of property other than cash, as determined in good faith by the Company) received by the Company subsequent to March 31, 2012 either (A) as a contribution to its common equity capital or (B) from the issuance and sale (other than to a Subsidiary) of its Equity Interests, including Equity Interests issued upon the conversion of Indebtedness or redeemable Equity Interests of the Company, and from the exercise of options, warrants or other rights to purchase such Equity Interests (other than, in each case, Equity Interests or Indebtedness sold to a Subsidiary of the Company)..
SECTION 2.7. Amendment to Section 11.04. Clause (a) of Section 11.04 of the Existing Credit Agreement is hereby amended and restated in its entirety as follows:
(a) The Company shall pay (i) all reasonable and documented out of pocket expenses incurred by the Lead Agents and their respective Affiliates (including the reasonable fees, charges and disbursements of one counsel for the Lead Agents), 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 Lead Agents, any Lender or any Issuer (including the fees, charges and disbursements of one counsel for the Lead Agents, 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.
SECTION 2.8. Amendment to Section 11.07. Clause (a)(iii)(A) of Section 11.07 of the Existing Credit Agreement is hereby amended by adding the following proviso at the end thereof:
provided that the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Agent within ten (10) Business Days after having received notice thereof.
SECTION 2.9. Amendment to Section 11.23. Clause (a) of Section 11.23 of the Existing Credit Agreement is hereby amended by inserting the words or its successor immediately following the word OSK in each place where it appears therein.
SECTION 2.10. Amendment to Schedule 1.01(a). Schedule 1.01(a) of the Existing Credit Agreement is hereby deleted in its entirety and replaced with Exhibit A attached hereto.
SECTION 2.11. Amendment to Schedule 2.01. Schedule 2.01 of the Existing Credit Agreement is hereby deleted in its entirety and replaced with Exhibit B attached hereto.
SECTION 2.12. Amendment to Schedule 2.12. Schedule 2.12 of the Existing Credit Agreement is hereby deleted in its entirety and replaced with Exhibit C attached hereto.
SECTION 2.13. Amendment to Schedule 11.02. Schedule 11.02 of the Existing Credit Agreement is hereby deleted in its entirety and replaced with Exhibit D attached hereto.
SECTION 2.14. Amendments to Existing Credit Agreement. To the extent not previously amended pursuant to this Article II, the Existing Credit Agreement is hereby amended as follows:
(a) The Existing Credit Agreement is hereby amended by replacing the word BAS with the word MLPFS where it appears therein.
(b) The Existing Credit Agreement is hereby amended by replacing the words Fee Letter with the words Fee Letters where they appear therein.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.1. This Amendment shall become effective on the date (the Amendment Effective Date) when the Agent shall have received all of the following, in form and substance satisfactory to the Lead Agents and each Lender:
(a) counterparts of this Amendment, in each case duly executed and delivered on behalf of the parties thereto;
(b) copies of the resolutions of the board of directors (or similar governing body) of the Company authorizing the transactions contemplated by this Amendment, certified as of the Amendment Effective Date by the Secretary, an Assistant Secretary or a similar officer of the Company;
(c) a certificate of the Secretary, an Assistant Secretary or a similar officer of the Company certifying the names and true signatures of the officers of the Company authorized to execute, deliver and perform this Amendment;
(d) the articles or certificate of formation (or similar charter document) and the bylaws (or similar governing documents) of the Company as in effect on the Amendment Effective Date (or a certification that such documents have not been amended or revoked since the Effective Date), certified by the Secretary or an Assistant Secretary or a similar officer of the Company as of the Amendment Effective Date;
(e) a good standing certificate or certificate of status for the Company from the Secretary of State (or similar, applicable Governmental Authority) of the Companys jurisdiction of formation;
(f) an opinion of Foley & Lardner LLP, counsel to the Company, addressed to the Agent and the Lenders;
(g) evidence of payment by the Company of all accrued and unpaid fees, costs and expenses to the extent then due and payable on the Amendment Effective Date, together with Attorney Costs of one counsel representing both of the Lead Agents, to the extent invoiced reasonably in advance of the Amendment Effective Date, plus such additional amounts of Attorney Costs as shall constitute the reasonable estimate of Attorney Costs of one counsel representing both of the Lead Agents incurred or to be incurred by it through the closing proceedings of this Amendment (provided that such estimate shall not thereafter preclude final settling of accounts among the Company and the Lead Agents), including any such costs, fees and expenses arising under or referenced in Section 2.14 or 11.04 of the Credit Agreement;
(h) a certificate signed by a Responsible Officer, dated as of the Amendment Effective Date, stating that:
(i) the representations and warranties contained in Article VI of the Credit Agreement are true and correct in all material respects on and as of such date, as though made on and as of such date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct as of such earlier date);
(ii) no Default or Event of Default exists or would result from any Credit Extension made on such date; and
(iii) there is no action, suit, investigation or proceeding threatened in writing or pending in any court or before any arbitrator or governmental authority that (A) relates to the credit facilities under the Credit Agreement and (B) has a reasonable possibility of being determined in a manner that would (1) prohibit the closing of such credit facilities or (2) adversely affect in any material respect the interests of the Lead Agents or any Lender under or in respect of such facilities; and
(i) such other approvals, opinions, documents or materials as the Lead Agents or any Lender may reasonably request.
ARTICLE IV
REALLOCATION OF LENDER COMMITMENTS AND LOANS
SECTION 4.1. Reallocation of Lender Commitments and Loans.
(a) Each of the parties hereto severally and for itself agrees that, on the Amendment Effective Date, each Existing Lender (including, without limitation, any Existing Lender that, after giving effect to this Amendment, has an Applicable Percentage of zero and holds no portion of the Loans (each, a Terminating Lender)) hereby irrevocably sells, transfers, conveys and assigns, without recourse, representation or warranty (except as expressly set forth herein), to each Lender, and each such Lender hereby irrevocably purchases from such Existing Lender, a portion of the rights and obligations of such Existing Lender under the Existing Credit Agreement and each other Loan Document in respect of such Existing Lenders Loans and Commitments under the Existing Credit Agreement as of the day immediately preceding the Amendment Effective Date such that, after giving effect to the foregoing assignment and delegation, each Lenders Applicable Percentage of the Commitments and portion of the Loans for the purposes of the Credit Agreement and each other Loan Document will be as set forth opposite such Persons name on Schedule 2.01 of the Credit Agreement. Upon the effectiveness of this Amendment, each Terminating Lender shall cease to be a Lender for all purposes under the Credit Agreement; provided that each Terminating Lender shall continue to be entitled to the benefits of Sections 4.01, 4.03, 4.04 and 11.04 of the Credit Agreement with respect to facts and circumstances occurring prior the effectiveness of this Amendment.
(b) Each Existing Lender hereby represents and warrants to each Lender that, immediately before giving effect to the provisions of this Section 4.1, (i) such Existing Lender is the legal and beneficial owner of the portion of its rights and obligations in respect of its Loans being assigned to each Lender as set forth above; and (ii) such rights and obligations being assigned and sold by such Existing Lender are free and clear of any adverse claim or encumbrance created by such Existing Lender.
(c) Each of the Lenders hereby acknowledges and agrees that (i) other than the representations and warranties contained above, no Lender nor any of the Lead Agents has made any representations or warranties or assumed any responsibility with respect to (A) any statements, warranties or representations made in or in connection with this Amendment or the Credit Agreement or the execution, legality, validity, enforceability, genuineness or sufficiency of this Amendment, the Credit Agreement, the Existing Credit Agreement or any other Loan Document, or (B) the financial condition of any Loan Party or the performance by any Loan Party of the Obligations; (ii) it has received such information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; and (iii) it has made and continues to make its own credit decisions in taking or not taking action under the Credit Agreement, independently and without reliance upon any of the Lead Agents or any other Lender.
(d) The Company, each of the Lenders and the Agent also agree that each of the Lenders shall, as of the Amendment Effective Date, have all of the rights and interests as a Lender in respect of the Loans purchased and assumed by it, to the extent of the rights and obligations so purchased and assumed by it.
(e) Each Lender which is purchasing any portion of the Loans shall deliver to the Agent immediately available funds in the full amount of the purchase made by it and the Agent shall, to the extent of the funds so received, disburse such funds to the Existing Lenders that are making sales and assignments in the amount of the portions so sold and assigned.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Cross-References. References in this Amendment to any Article or Section are, unless otherwise specified, to such Article or Section of this Amendment.
SECTION 5.2. Loan Document Pursuant to Existing Credit Agreement. This Amendment is a Loan Document executed pursuant to the Existing Credit Agreement and shall (unless otherwise expressly indicated therein) be construed, administered and applied in accordance with all of the terms and provisions of the Existing Credit Agreement, as amended hereby, including Article XI thereof.
SECTION 5.3. Successors and Assigns. The provisions of this Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
SECTION 5.4. Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and shall be binding upon all parties, their successors and assigns, and all of which taken together shall constitute one and the same agreement. Delivery of any executed counterpart of a signature page of this Amendment by facsimile or e-mail shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 5.5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF ILLINOIS.
SECTION 5.6. Full Force and Effect; Limited Amendment. Except as expressly amended hereby, all of the representations, warranties, terms, covenants, conditions and other provisions of the Existing Credit Agreement and the Loan Documents shall remain unchanged and shall continue to be, and shall remain, in full force and effect in accordance with their respective terms. The amendments set forth herein shall be limited precisely as provided for herein to the provisions expressly amended herein and shall not be deemed to be an amendment to, waiver of, consent to or modification of any other term or provision of the Existing Credit Agreement or any other Loan Document or of any transaction or further or future action on the part of any Loan Party which would require the consent of the Lenders under the Existing Credit Agreement or any of the Loan Documents.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the date first above written.
COMPANY: |
OSHKOSH CORPORATION | |
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By: |
/s/ R. Scott Grennier |
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Name: |
R. Scott Grennier |
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Title: |
Senior Vice President and Treasurer |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
AGENT: |
BANK OF AMERICA, N.A., as | |
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Agent | |
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By: |
/s/ Linda Lou |
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Name: |
Linda Lou |
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Title: |
Associate Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
LENDERS: |
BANK OF AMERICA, N.A., as a Lender, as an Issuer and as Swing Line Lender | |
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By: |
/s/ Steven K. Kessler |
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Name: |
Steven K. Kessler |
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Title: |
Senior Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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JPMORGAN CHASE BANK, N.A., as Syndication Agent, as an Issuer and as a Lender | |
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By: |
/s/ Suzanne Ergastolo |
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Name: |
Suzanne Ergastolo |
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Title: |
Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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THE ROYAL BANK OF SCOTLAND PLC, as a Lender | |
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By: |
/s/ Jonathan Lasner |
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Name: |
Jonathan Lasner |
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Title: |
Director |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Co-Documentation Agent and as a Lender | |
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By: |
/s/ Mark Holm |
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Name: |
Mark Holm |
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Title: |
Managing Director |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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U.S. BANK, NATIONAL ASSOCIATION, as Co-Documentation Agent and as a Lender | |
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By: |
/s/ Caroline V. Krider |
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Name: |
Caroline V. Krider |
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Title: |
Senior Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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TD BANK, N.A., as Co-Documentation Agent and as a Lender | |
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By: |
/s/ Mark Hogan |
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Name: |
Mark Hogan |
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Title: |
Senior Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Co-Documentation Agent and as a Lender | |
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By: |
/s/ Blake Wright |
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Name: |
Blake Wright |
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Title: |
Managing Director |
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By: |
/s/ Corey Billups |
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Name: |
Corey Billups |
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Title: |
Managing Director |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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PNC BANK, NATIONAL ASSOCIATION, as a Lender | |
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By: |
/s/ Michael Leong |
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Name: |
Michael Leong |
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Title: |
Senior Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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HSBC Bank USA, N.A., as a Lender | |
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By: |
/s/ Joseph Philbin |
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Name: |
Joseph Philbin |
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Title: |
Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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SUMITOMO MITSUI BANKING CORPORATION, as a Lender | |
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By: |
/s/ David W. Kee |
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Name: |
David W. Kee |
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Title: |
Managing Director |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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Comerica Bank, as a Lender | |
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By: |
/s/ Heather A. Whiting |
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Name: |
Heather A. Whiting |
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Title: |
Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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THE NORTHERN TRUST COMPANY, as a Lender | |
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By: |
/s/ Patrick Cowan |
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Name: |
Patrick Cowan |
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Title: |
Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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Capital One Leverage Finance, Corp., as a Lender | |
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By: |
/s/ Ron Walker |
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Name: |
Ron Walker |
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Title: |
Senior Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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Associated Bank, National Association, as a Lender | |
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By: |
/s/ Mark J. Fischer |
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Name: |
Mark J. Fischer |
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Title: |
Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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Bank of the West, a California Banking Corporation, as a Lender | |
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By: |
/s/ David Wang |
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Name: |
David Wang |
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Title: |
Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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SABADELL UNITED BANK, N.A., as a Lender | |
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By: |
/s/ Maurici Lladó |
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Name: |
Maurici Lladó |
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Title: |
Executive Director |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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City National Bank, as a Lender | |
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By: |
/s/ Jeanine A. Smith |
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Name: |
Jeanine A. Smith |
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Title: |
Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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National Penn Bank, as a Lender | |
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By: |
/s/ Lori L. Meixell |
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Name: |
Lori L. Meixell |
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Title: |
Associate Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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AMALGAMATED BANK, as an Existing Lender | |
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By: |
/s/ Jackson Eng |
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Name: |
Jackson Eng |
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Title: |
First Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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ACCEPTED AND AGREED TO: | |
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BANCO DE SABADELL, S.A. MIAMA BRANCH, as an Existing Lender | |
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By: |
s/s Maurici Lladó |
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Name: |
Maurici Lladó |
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Title: |
Executive Director |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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ACCEPTED AND AGREED TO: | |
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BRANCH BANKING AND TRUST COMPANY, as an Existing Lender | |
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By: |
/s/ Bradley B. Sands |
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Name: |
Bradley B. Sands |
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Title: |
Assistant Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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ACCEPTED AND AGREED TO: | |
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CATERPILLAR FINANCIAL SERVICES CORPORATION, as an Existing Lender | |
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By: |
/s/ Michael W. Ward |
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Name: |
Michael W. Ward |
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Title: |
Credit & Operations Manager |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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ACCEPTED AND AGREED TO: | |
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CRÉDIT INDUSTRIEL ET COMMERCIAL, as an Existing Lender | |
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By: |
/s/ Brian OLeary |
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Name: |
Brian OLeary |
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Title: |
Managing Director |
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By: |
/s/ Marcus Edward |
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Name: |
Marcus Edward |
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Title: |
Managing Director |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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ING BANK N.V. Dublin Branch, as an Existing Lender | |
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By: |
/s/ Sean Hassett |
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Name: |
Sean Hassett |
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Title: |
Director |
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By: |
/s/ Aidan Neill |
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Name: |
Aidan Neill |
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Title: |
Director |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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ACCEPTED AND AGREED TO: | |
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THE HUNTINGTON NATIONAL BANK, as an Existing Lender Subject to The Huntington National Bank being designated as a Terminating Lender | |
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By: |
/s/ Lori Cummins-Meyer |
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Name: |
Lori Cummins-Meyer |
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Title: |
Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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ACCEPTED AND AGREED TO: | |
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MIZUHO CORPORATE BANK, LTD., as an Existing Lender | |
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By: |
/s/ Tenya Mitsuboshi |
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Name: |
Tenya Mitsuboshi |
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Title: |
Deputy General Manager |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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ACCEPTED AND AGREED TO: | |
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RAYMOND JAMES BANK, FSB, as an Existing Lender | |
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By: |
/s/ Cormac Mac Lochlainn |
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Name: |
Cormac Mac Lochlainn |
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Title: |
Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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ACCEPTED AND AGREED TO: | |
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RB INTERNATIONAL FINANCE, as an Existing Lender | |
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By: |
/s/ John A. Valiska |
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Name: |
John A. Valiska |
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Title: |
First Vice President |
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By: |
/s/ Christoph Hoedl |
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Name: |
Christoph Hoedl |
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Title: |
First Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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ACCEPTED AND AGREED TO: | |
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SUNTRUST BANK, as an Existing Lender | |
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By: |
/s/ David Simpson |
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Name: |
David Simpson |
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Title: |
Vice President |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
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TAIWAN COOPERATIVE BANK, LTD. SEATTLE BRANCH, as an Existing Lender | |
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By: |
/s/ Ming-Chih Chen |
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Name: |
Ming-Chih Chen |
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Title: |
VP & General Manager |
[SIGNATURE PAGE TO FIRST AMENDMENT OSHKOSH]
EXHIBIT A TO
FIRST AMENDMENT
SCHEDULE 1.01(a)
PRICING SCHEDULE
During the six-month period immediately following the Amendment Effective Date (as defined in the First Amendment to Credit Agreement, dated as of July 13, 2012, among the Company, the financial institutions party thereto and the Agent), the Applicable Offshore Rate Margin shall not be less than 175 bps, the Applicable Base Rate Margin shall not be less than 75 bps and the Commitment Fee shall be 30.0 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 opposite the Leverage Ratio.
Level |
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Leverage |
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Applicable |
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Applicable |
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Commitment |
I |
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> 4.00x |
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250 bps |
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150 bps |
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50.0 bps |
II |
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< 4.00x |
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225 bps |
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125 bps |
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45.0 bps |
III |
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< 3.50x |
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200 bps |
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100 bps |
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37.5 bps |
IV |
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< 2.50x |
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175 bps |
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75 bps |
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30.0 bps |
V |
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< 1.50x |
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150 bps |
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50 bps |
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25.0 bps |
* The Applicable Letter of Credit Fee Rate for Letters of Credit to support a Persons 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 Amendment 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.
EXHIBIT B TO
FIRST AMENDMENT
SCHEDULE 2.01
COMMITMENTS AND PERCENTAGES
Oshkosh Corporation
Schedule 2.01
July 13, 2012
Allocations
Lender |
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Title |
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Revolver |
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Term Loan |
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Total Allocation |
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% of |
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% of Term |
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% of Total |
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1 |
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JPMorgan Chase |
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Syndication Agent |
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$ |
68,720,777.80 |
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$ |
59,201,097.20 |
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$ |
127,921,875.00 |
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13.1 |
% |
13.0 |
% |
13.1 |
% |
2 |
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Bank of America |
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Administrative Agent |
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$ |
68,720,777.80 |
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$ |
59,201,097.20 |
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$ |
127,921,875.00 |
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13.1 |
% |
13.0 |
% |
13.1 |
% |
3 |
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The Royal Bank of Scotland plc |
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Co-Doc Agent |
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$ |
68,287,050.36 |
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$ |
59,634,824.64 |
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$ |
127,921,875.00 |
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13.0 |
% |
13.1 |
% |
13.1 |
% |
4 |
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Wells Fargo Bank |
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Co-Doc Agent |
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$ |
68,287,050.36 |
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$ |
59,634,824.64 |
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$ |
127,921,875.00 |
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13.0 |
% |
13.1 |
% |
13.1 |
% |
5 |
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US Bank |
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Co-Doc Agent |
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$ |
34,431,286.66 |
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$ |
30,068,713.34 |
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$ |
64,500,000.00 |
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6.6 |
% |
6.6 |
% |
6.6 |
% |
6 |
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TD Bank |
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Co-Doc Agent |
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$ |
34,431,286.66 |
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$ |
30,068,713.34 |
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$ |
64,500,000.00 |
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6.6 |
% |
6.6 |
% |
6.6 |
% |
7 |
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Credit Agricole / Calyon |
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Co-Doc Agent |
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$ |
34,431,286.66 |
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$ |
30,068,713.34 |
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$ |
64,500,000.00 |
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6.6 |
% |
6.6 |
% |
6.6 |
% |
8 |
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PNC Bank |
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Lender |
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$ |
32,029,103.87 |
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$ |
27,970,896.13 |
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$ |
60,000,000.00 |
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6.1 |
% |
6.1 |
% |
6.1 |
% |
9 |
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HSBC Bank |
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Lender |
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$ |
26,690,919.89 |
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$ |
23,309,080.11 |
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$ |
50,000,000.00 |
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5.1 |
% |
5.1 |
% |
5.1 |
% |
10 |
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Sumitomo Mitsui |
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Lender |
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$ |
16,041,666.67 |
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$ |
13,270,833.33 |
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$ |
29,312,500.00 |
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3.1 |
% |
2.9 |
% |
3.0 |
% |
11 |
|
Comerica |
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Lender |
|
$ |
16,041,666.67 |
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$ |
13,270,833.33 |
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$ |
29,312,500.00 |
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3.1 |
% |
2.9 |
% |
3.0 |
% |
12 |
|
Capital One |
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Lender |
|
$ |
11,458,333.33 |
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$ |
9,479,166.67 |
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$ |
20,937,500.00 |
|
2.2 |
% |
2.1 |
% |
2.1 |
% |
13 |
|
Northern Trust |
|
Lender |
|
$ |
13,345,459.95 |
|
$ |
11,654,540.05 |
|
$ |
25,000,000.00 |
|
2.5 |
% |
2.6 |
% |
2.6 |
% |
14 |
|
Associated Bank |
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Lender |
|
$ |
9,166,666.67 |
|
$ |
7,583,333.33 |
|
$ |
16,750,000.00 |
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1.7 |
% |
1.7 |
% |
1.7 |
% |
15 |
|
Bank of the West |
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Lender |
|
$ |
9,166,666.67 |
|
$ |
7,583,333.33 |
|
$ |
16,750,000.00 |
|
1.7 |
% |
1.7 |
% |
1.7 |
% |
16 |
|
Banco Sabadell |
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Lender |
|
$ |
6,875,000.00 |
|
$ |
5,687,500.00 |
|
$ |
12,562,500.00 |
|
1.3 |
% |
1.2 |
% |
1.3 |
% |
17 |
|
City National |
|
Lender |
|
$ |
6,875,000.00 |
|
$ |
5,687,500.00 |
|
$ |
12,562,500.00 |
|
1.3 |
% |
1.2 |
% |
1.3 |
% |
18 |
|
National Penn Bank |
|
Lender |
|
|
|
$ |
1,625,000.00 |
|
$ |
1,625,000.00 |
|
0.0 |
% |
0.4 |
% |
0.2 |
% | |
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|
|
|
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| |||
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Totals |
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$ |
525,000,000.00 |
|
$ |
455,000,000.00 |
|
$ |
980,000,000.00 |
|
100.0 |
% |
100.0 |
% |
100.0 |
% |
EXHIBIT C TO
FIRST AMENDMENT
SCHEDULE 2.12
AMORTIZATION OF TERM A LOANS
DATE |
|
PRINCIPAL PAYMENT |
| |
December 31, 2013 |
|
$ |
16,250,000 |
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March 31, 2014 |
|
$ |
16,250,000 |
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June 30, 2014 |
|
$ |
16,250,000 |
|
September 30, 2014 |
|
$ |
16,250,000 |
|
December 31, 2014 |
|
$ |
16,250,000 |
|
March 31, 2015 |
|
$ |
16,250,000 |
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June 30, 2015 |
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$ |
16,250,000 |
|
Term A Maturity Date |
|
Remaining Outstanding Principal Balance |
|