AMENDMENT No. 1 dated as of June 16, 2000 (this
"Amendment"), to the Tranche C Credit Agreement dated as of
July 2, 1999, as amended and restated as of August 23, 1999
(the "Credit Agreement"), among TEREX CORPORATION, a
Delaware corporation (the "Borrower"), the LENDERS party
thereto and CREDIT SUISSE FIRST BOSTON, a bank organized
under the laws of Switzerland, acting through its New York
branch ("CSFB"), as administrative agent (in such capacity,
the "Administrative Agent") and as collateral agent (in such
capacity, the "Collateral Agent") for the Lenders.
A. Pursuant to the Credit Agreement, the Lenders have extended
credit to the Borrower pursuant to the terms and subject to the conditions set
forth therein.
B. The Borrower has requested that certain provisions of the
Credit Agreement be amended in the form hereof.
C. The Required Lenders are willing so to amend the Credit
Agreement pursuant to the terms and subject to the conditions set forth herein.
D. Each capitalized term used and not otherwise defined herein
shall have the meaning assigned to such term in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment to Credit Agreement. (a) The following
definitions are added to Section 1.01 of the Credit Agreement in their
appropriate alphabetical positions:
"Foreign Subsidiary Issuer" shall mean any Foreign Subsidiary,
65% or more of the equity interest in which has been pledged to secure
the Obligations pursuant to the Pledge Agreement.
"Second-Tier Foreign Subsidiary" shall mean any Foreign
Subsidiary that is not a Foreign Subsidiary Issuer or a Special
Purpose Foreign Holding Subsidiary.
"Special Purpose Foreign Holding Subsidiary" shall mean (a) any
Foreign Subsidiary Issuer that does not engage in any trade or
business or otherwise conduct any business activity other than (i) the
ownership of any Foreign Subsidiary and activities incidental to such
ownership, (ii) the incurrence of Indebtedness permitted by Section
6.01 and (iii) the making of investments, loans and advances permitted
by Section 6.04 or (b) any direct and wholly owned subsidiary of a
Special Purpose Foreign Holding Subsidiary as defined in clause (a) of
this definition if such direct and wholly owned subsidiary does not
engage in any trade or business or otherwise conduct any business
activity other than (i) the ownership of any Foreign Subsidiary and
activities incidental to such ownership, (ii) the incurrence of
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Indebtedness permitted by Section 6.01 and (iii) the making of
investments, loans and advances permitted by Section 6.04.
(b) Section 6.05(a) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. (a) Merge into or consolidate with any other person, or
permit any other person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) all or any substantial part of its assets
(whether now owned or hereafter acquired) or any capital stock of any
Subsidiary, or purchase, lease or otherwise acquire (in one transaction
or a series of transactions) all or substantially all of the assets of
any other person, except that (i) the Borrower and any Subsidiary
(other than an Inactive Subsidiary or Finsub) may purchase and sell
inventory in the ordinary course of business, (ii)(A) the Borrower and
any Subsidiary (other than an Inactive Subsidiary) may sell Program
Receivables to Finsub and (B) Finsub may sell Program Receivables
pursuant to the Receivables Program Documentation and (iii) if at the
time thereof and immediately after giving effect thereto no Event of
Default or Default shall have occurred and be continuing (A) any wholly
owned Subsidiary (other than Finsub) may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (B) any
wholly owned Subsidiary (other than Finsub) may merge into or
consolidate with any other wholly owned Subsidiary in a transaction in
which the surviving entity is a wholly owned Subsidiary and no person
other than the Borrower or a wholly owned Subsidiary receives any
consideration; provided that, if either of the wholly owned
Subsidiaries party to such merger or consolidation is a Guarantor, then
the surviving entity shall be or become a Guarantor, (C) in connection
with any Permitted Acquisition pursuant to Section 6.04(d), the
Borrower or any wholly owned Subsidiary may acquire or merge into or
consolidate with any entity acquired pursuant to such Permitted
Acquisition in a transaction in which the surviving entity is the
Borrower or a wholly owned Subsidiary; provided that, (x) if the
Borrower is a party to such merger or consolidation, the Borrower shall
be the surviving corporation, and (y) if any wholly owned Subsidiary
that is a Guarantor merges into or consolidates with any entity
acquired pursuant to such Permitted Acquisition, then the surviving
entity shall be or become a Guarantor, (D) following the initial
Powerscreen Borrowing, the Borrower may contribute, or otherwise
transfer, all of the equity in Terex Equipment Limited (other than
directors' qualifying shares) to Bidco, (E) the Borrower or any
Subsidiary may transfer not less than 100% of the capital stock of, or
assets of, a Domestic Subsidiary to the Borrower or to any wholly owned
Domestic Subsidiary where no person other than the Borrower or a wholly
owned Subsidiary receives any consideration; provided that, if (x) such
capital stock or such assets being transferred is capital stock of, or
assets of, a Guarantor, then the recipient thereof shall be or become a
Guarantor, and (y) if the transferor of such capital stock or such
assets is a Guarantor, then the recipient thereof shall be or become a
Guarantor, (F) the Borrower or any Subsidiary may transfer not less
than 100% of the capital stock of, or assets of, a Foreign Subsidiary
Issuer to any Special Purpose Foreign Holding Subsidiary where no
person other than the Borrower or a wholly owned Subsidiary receives
any consideration, (G) any Second-Tier Foreign Subsidiary may transfer
not less than 100% of the capital stock of, or assets of, a Second-Tier
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Foreign Subsidiary to the Borrower or any wholly owned Subsidiary where
no person other than the Borrower or a wholly owned Subsidiary receives
any consideration and (H) the Borrower or any Subsidiary may transfer
not less than 100% of the capital stock of, or assets of, any
Second-Tier Foreign Subsidiary to any Special Purpose Foreign Holding
Subsidiary or any Foreign Subsidiary Issuer where no person other than
the Borrower or a wholly owned Subsidiary receives any consideration.
(c) Section 6.08 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
SECTION 6.08. Business of Borrowers and Subsidiaries. Engage
at any time in any business or business activity other than the Related
Business; provided, however, that (a) Bidco shall not engage in any
trade or business, or otherwise conduct any business activity, other
than the ownership of any Foreign Subsidiary and activities incidental
to such ownership, (b) Finsub shall not engage in any trade or
business, or otherwise conduct any business activity, other than the
performance of its obligations pursuant to the Receivables Program and
other incidental activities and (c) each Special Purpose Foreign
Holding Subsidiary shall not engage in any trade or business or
otherwise conduct any business activity, other than as permitted by the
definition of Special Purpose Foreign Holding Subsidiary.
SECTION 2. Representations and Warranties. Each of the
Borrowers represents and warrants to each other party hereto that, after giving
effect to this Amendment, (a) the representations and warranties set forth in
Article III of the Credit Agreement are true and correct in all material
respects on and as of the effective date of this Amendment, except to the extent
such representations and warranties expressly relate to an earlier date, and (b)
no Default or Event of Default has occurred and is continuing.
SECTION 3. Effectiveness. This Amendment shall become
effective as of the date that the Administrative Agent or its counsel shall have
received counterparts of this Amendment which, when taken together, bear the
signatures of each of the Borrowers and the Required Lenders under each Credit
Agreement.
SECTION 4. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Swingline Lender, any Issuing Bank, the Collateral Agent or the
Administrative Agent, under the Credit Agreement or any other Loan Document, and
shall not alter, modify, amend or in any way affect any of the terms,
conditions, 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. Nothing herein shall
be deemed to entitle any Borrower to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein.
SECTION 5. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
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each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 6. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
TEREX CORPORATION,
by /s/ Xxxxxx X. XxXxx
Name: Xxxxxx X. XxXxx
Title: President, Chief Executive Officer
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent, Collateral
Agent and Swingline Lender,
by /s/ Xxxx X'Xxxx
Name: Xxxx X'Xxxx
Title: Vice President
by /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
FORM OF SIGNATURE PAGE TO
AMENDMENT NO. 1 TO
TRANCHE C CREDIT
AGREEMENT
To approve the Amendment:
Name of Institution:
by
Name:
Title:
