AMENDMENT NO. 1 and AGREEMENT dated as of November 25,
2003 (this "Amendment"), to the AMENDED AND RESTATED CREDIT
AGREEMENT dated as of July 3, 2002 (the "Credit Agreement"),
among TEREX CORPORATION, a Delaware corporation ("Terex"),
NEW TEREX HOLDINGS UK LIMITED, a limited company organized
under the laws of England (the "Scottish Borrower"), TEREX
INTERNATIONAL FINANCIAL SERVICES COMPANY, a company
organized under the laws of the Republic of Ireland (the
"European Borrower"), POWERSCREEN INTERNATIONAL LIMITED, a
company organized under the laws of England ("Powerscreen"),
P.P.M. S.A.S., a company organized under the laws of the
Republic of France (the "French Borrower"), TEREX MINING
AUSTRALIA PTY LTD, a company organized under the laws of New
South Wales, Australia (the "Australian Borrower"), TEREX
GERMANY GMBH & CO. KG, a partnership founded under the laws
of the Federal Republic of Germany (the "German Borrower"),
and TEREX ITALIA S.R.L., a company organized under the laws
of the Republic of Italy (the "Italian Borrower" and,
together with Terex, the Scottish Borrower, the European
Borrower, Powerscreen, the French Borrower, the Australian
Borrower and the German Borrower, the "Borrowers"), the
Lenders (as defined in Article I of the Credit Agreement),
the Issuing Banks (as defined in Article I of the Credit
Agreement) and CREDIT SUISSE FIRST BOSTON ("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 and the Issuing Banks have
extended, and have agreed to extend, credit to the Borrowers, in each case
pursuant to the terms and subject to the conditions set forth in the Credit
Agreement.
B. Pursuant to the Incremental Term Loan Assumption Agreement dated as of
September 13, 2002, among Terex, Credit Suisse First Boston, Cayman Islands
Branch, Citicorp USA, Inc. and the Administrative Agent, the Incremental Term
Lenders party thereto (the "Tranche C Lenders") have made Other Term Loans to
Terex in an initial aggregate principal amount of $210,000,000 (the "Tranche C
Term Loans").
C. Terex intends to issue and sell Additional Subordinated Notes pursuant
to Section 6.01(c) of the Credit Agreement for gross cash proceeds of not less
than $300,000,000 on or prior to the Amendment No. 1 Effective Date (as defined
below)(the "Note Issuance").
D. The net proceeds of the Note Issuance will be used by Terex (a) to
redeem all of its outstanding 8-7/8% Senior Subordinated Notes due 2008 (the
"Note Redemption") and (b) on or prior to the Amendment No. 1 Effective Date, to
prepay
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$100,000,000 in aggregate principal amount of outstanding Term Loans (the
"Note-Financed Prepayment").
E. On or prior to the Amendment No. 1 Effective Date and in conjunction
with the Note-Financed Prepayment, Terex intends to prepay an additional
$100,000,000 in aggregate principal amount of outstanding Term Loans with cash
on hand (together with the Note-Financed Prepayment, the "Term Loan
Prepayment").
F. The Borrowers have requested that certain other provisions of the Credit
Agreement be amended as provided herein, including that the Incremental Term
Loan Amount be reset to $250,000,000.
G. The Requisite Lenders (as defined below), on the terms and subject to
the conditions set forth herein, are willing so to amend the Credit Agreement.
H. Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Credit Agreement, as amended hereby.
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. Amendments to the Credit Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended as follows:
(i) The following new definitions are inserted in the appropriate
alphabetical order therein:
'"Amendment No. 1 Effective Date' shall have the meaning assigned
to such term in Amendment No. 1 dated as of November 25, 2003, to this
Agreement.
'Designated Additional Subordinated Note Issuance' shall mean the
issuance and sale by Terex on or prior to the Amendment No. 1
Effective Date of Additional Subordinated Notes pursuant to Section
6.01(c) of this Agreement for gross cash proceeds of not less than
$300,000,000."
(ii) The definition of the term "Net Cash Proceeds" is amended by
deleting the words "with respect to the proceeds of any Asset Sale or
series of related Asset Sales in an amount of less than or equal to
$50,000,000 in the aggregate" in the second proviso therein and
substituting therefor the words "with respect to up to $50,000,000 in the
aggregate of proceeds of any Asset Sale or series of related Asset Sales".
(iii) The definition of the term "Total Debt" is amended by amending
and restating the parenthetical therein as follows:
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"(other than Indebtedness of the type referred to in clauses (i) and
(j) of the definition of the term 'Indebtedness', except to the extent
of any unreimbursed drawings under Indebtedness of the type referred
to in clause (j) of such definition)".
(b) Section 2.27 of the Credit Agreement is hereby amended as follows:
(i) Section 2.27(a) is amended by replacing the words "in an amount
not to exceed the Incremental Term Loan Amount" in the first sentence
therein with the words "(in addition to the Incremental Term Loan
Commitments established prior to the Amendment No. 1 Effective Date) in an
aggregate amount on or after the Amendment No. 1 Effective Date not to
exceed the Incremental Term Loan Amount".
(ii) The provisos in Section 2.27(b) are hereby amended and restated
in their entirety as follows:
"provided that, without the prior written consent of the Required
Lenders, if the initial yield on any Other Term Loans (as determined
by the Administrative Agent to be equal to the sum of (x) the Adjusted
LIBOR margins on the Other Term Loans plus (y) if the Other Term Loans
are initially made at a discount or the lenders making the same
receive a fee (other than routine amendment fees) from Terex or any of
its Subsidiaries for doing so (the amount of such discount or fee,
expressed as a percentage of the Other Term Loans, being referred to
herein as "OID"), the amount of such OID divided by the lesser of (A)
the average life to maturity of such Other Term Loans and (B) 4)
exceeds by more than 50 basis points (the amount of such excess above
50 basis points being referred to herein as the "Yield Differential")
the Applicable Percentage then in effect for Eurodollar Term Loans of
any Class, then each Applicable Percentage for each adversely affected
Class of Term Loans shall automatically be increased by the Yield
Differential, effective upon the making of the Other Term Loans;
provided further that, without the prior written consent of Lenders
holding two-thirds in interest of the outstanding Loans and
Commitments of any Class of Term Loans, (i) the final maturity date of
any Other Term Loans shall be no earlier than (x) the final maturity
date of any other Class of Term Loans and (y) if the initial yield
(determined as provided above) on such Other Term Loans exceeds the
Applicable Percentage then in effect for Eurodollar Term Loans of any
Class, the date falling six months after the final maturity date of
each such adversely affected Class, and (ii) the average life to
maturity of any Other Term Loans shall be no shorter than (x) the
average life to maturity of any other Class of Term Loans and (y) if
the initial yield (determined as provided above) on such Other Term
Loans exceeds the
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Applicable Percentage then in effect for Eurodollar Term Loans of any
Class, six months longer than the average life to maturity of each
such adversely affected Class."
(iii) The penultimate sentence of Section 2.27(b) is hereby amended by
adding to the end thereof the following:
"and any increase to the Applicable Percentages required by the
foregoing provisions of this paragraph".
(c) Section 6.03 of the Credit Agreement is hereby amended by deleting the
words "the Capital Lease Obligations and Liens associated therewith would be
permitted" therein and substituting therefor the words "any lease obligations
and Liens associated therewith would not be prohibited".
(d) Section 6.05(a) of the Credit Agreement is hereby amended by deleting
the words "all or any substantial part of its assets" in the third line therein
and substituting therefor the words "all or substantially all of the assets of
Terex and the Restricted Subsidiaries".
(e) Section 6.06 of the Credit Agreement is hereby amended as follows:
(i) Section 6.06(a)(ii)(B) is hereby amended by deleting the words
"pursuant to Section 6.09(b)(i), since the Restatement Closing Date shall
not exceed $50,000,000" set forth therein and substituting therefor the
words "pursuant to Section 6.09(b)(ii), on or after the Amendment No. 1
Effective Date shall not exceed $75,000,000"; and
(ii) Section 6.06(a)(ii)(C) is hereby amended by deleting the words
"pursuant to this clause (a) and Section 6.09(b)(i)" set forth therein and
substituting therefor the words "pursuant to this clause (a) and Section
6.09(b)(ii)".
(f) Section 6.09 of the Credit Agreement is hereby amended as follows:
(i) Section 6.09(b) is hereby amended and restated in its entirety as
follows:
"(b) Make any distribution, whether in cash, property, securities
or a combination thereof, other than regular scheduled payments of
principal and interest as and when due (to the extent not prohibited
by applicable subordination provisions), in respect of, or pay, or
offer or commit to pay, or directly or indirectly redeem, repurchase,
retire or otherwise acquire for consideration, or set apart any sum
for the aforesaid purposes, any Indebtedness for borrowed money (other
than the Loans) of any Borrower or any Restricted Subsidiary or pay in
cash any amount in respect of such Indebtedness that may at the
obligor's option be paid in kind or in
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other securities, except that (i) Terex and its Restricted
Subsidiaries shall be permitted to do any of the foregoing with the
Net Cash Proceeds of any Equity Issuance or Refinancing Indebtedness
or the Designated Additional Subordinated Note Issuance, (ii) Terex
and its Restricted Subsidiaries shall be permitted to do any of the
foregoing if all of the following conditions are satisfied: (x) at the
time of such distribution or payment and after giving effect thereto,
no Default or Event of Default has occurred and is continuing or would
arise as a result thereof; (y) the amount of all such distributions
and payments made pursuant to this clause (ii), together with all
dividends, redemptions and purchases made pursuant to Section
6.06(a)(ii), on or after the Amendment No. 1 Effective Date shall not
exceed $75,000,000; and (z) on a pro forma basis and after giving
effect to such distribution or payment and all other distributions or
payments pursuant to this clause (ii) and Section 6.06(a)(ii) made
after the last day of the most recent fiscal quarter for which
financial statements have been delivered pursuant to Section 5.04(a)
or (b), as applicable, as if such payments or distributions were made
in the four-fiscal-quarter period ending on such last day of such
fiscal quarter, the Consolidated Leverage Ratio as of the end of such
four-fiscal-quarter period shall be less than 3.85 to 1.00, and (iii)
Terex may at any time repay Indebtedness of any Borrower or any
Restricted Subsidiary solely in shares of its capital stock."
(ii) Section 6.09 of the Credit Agreement is hereby further amended by
adding at the end thereof the following:
"(c) In addition to amounts allowed under Section 6.09(b), at any
time on or after April 1, 2006, Terex may expend up to $210,375,000 to
repurchase, redeem, prepay or otherwise acquire for value its 10-3/8%
Senior Subordinated Notes due 2011; provided, however, that at the
time thereof and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing."
(g) Section 6.11 of the Credit Agreement is hereby amended and restated in
its entirety as follows:
"SECTION 6.11. Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio on the last day of any fiscal quarter of Terex ending during
any period set forth below to be in excess of the ratio set forth below for
such period:
Period Ratio
------ -----
Restatement Closing Date - September 30, 2002 5.00 to 1.00
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October 1, 2002 - September 30, 2003 4.50 to 1.00
October 1, 2003 - March 31, 2004 4.25 to 1.00
April 1, 2004 - December 31, 2004 4.00 to 1.00
January 1, 2005 - June 30, 2005 3.75 to 1.00
Thereafter 3.50 to 1.00
(h) Section 6.14 of the Credit Agreement is hereby amended and restated in
its entirety as follows:
"SECTION 6.14. Senior Secured Debt Leverage Ratio. Permit the Senior
Secured Debt Leverage Ratio on the last day of any fiscal quarter of Terex
ending during any period set forth below to be in excess of the ratio set
forth below for such period:
Period Ratio
------ -----
Restatement Closing Date - December 31, 2003 2.25 to 1.00
January 1, 2004 - June 30, 2005 2.00 to 1.00
Thereafter Not Applicable
SECTION 2. Agreements. (a) The parties hereto hereby agree that so long as
and to the extent that any Term Loans (other than Tranche C Term Loans) remain
outstanding, any Tranche C Lender may elect, by notice to the Administrative
Agent by telephone (confirmed by telecopy) delivered on or prior to 12:00 p.m.
(Noon), New York City time, on November 20, 2003, to decline all or any portion
of the Term Loan Prepayment in respect of its Tranche C Term Loans, in which
case the aggregate amount of the prepayment that otherwise would have been
applied to prepay the Tranche C Term Loans of such Lender shall be applied pro
rata to prepay outstanding Term Loans (other than Tranche C Term Loans).
(b) Terex agrees to deliver irrevocable notice to redeem the 8-7/8%
Senior Subordinated Notes in accordance with the redemption provisions
contained in the Indenture dated as of March 31, 1998 (as amended,
supplemented or otherwise modified from time to time), among Terex, the
Guarantors identified therein and The Bank of New York, as trustee, by the
date that is no later than 10 Business Days following the Amendment No. 1
Effective Date.
SECTION 3. Representations and Warranties. To induce the other parties
hereto to enter into this Amendment, each of the Borrowers represents and
warrants to the Administrative Agent, the Collateral Agent, the Issuing Banks
and each of the Lenders that:
(a) This Amendment has been duly authorized, executed and delivered by
it and constitutes its legal, valid and binding obligation, enforceable in
accordance with its terms except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding at
law or in equity).
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(b) After giving effect to this Amendment, 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 date hereof with the same
effect as though made on and as of the date hereof, except to the extent
such representations and warranties expressly relate to an earlier date.
(c) After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing.
SECTION 4. Effectiveness. This Amendment shall become effective on the date
that the following conditions are satisfied (the "Amendment No. 1 Effective
Date"):
(a) The Administrative Agent shall have received counterparts of this
Amendment that, when taken together, bear the signatures of (i) the
Borrowers, (ii) the Subsidiary Guarantors and (iii) the Required Lenders
and Revolving Credit Lenders holding a majority of the outstanding
Revolving Credit Commitments (whether used or unused) (the "Requisite
Lenders");
(b) The Note Issuance shall have been completed and the Term Loan
Prepayment shall have been made in full;
(c) The Lenders shall have received the Amendment Fees payable
pursuant to Section 5 of this Amendment.
SECTION 5. Amendment Fee. Terex agrees to pay to each Lender that executes
and delivers to the Administrative Agent (or its counsel) a copy of this
Amendment at or prior to 12:00 p.m. (Noon), New York City time, on November 20,
2003, an amendment fee (the "Amendment Fee") in an amount equal to 0.20% of the
sum of such Lender's Revolving Credit Commitment (whether used or unused) and
the principal amount of such Lender's outstanding Term Loans, in each case as
the Amendment No. 1 Effective Date after giving effect to the Term Loan
Prepayment to be made on the Amendment No. 1 Effective Date. The Amendment Fee
shall be payable upon and subject to the effectiveness of this Amendment in
accordance with Section 4 hereof. Once paid, the Amendment Fee shall not be
refundable under any circumstances.
SECTION 6. 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
Administrative Agent or the Borrowers 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 the Borrowers 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. After the date
hereof, any
8
reference to the Credit Agreement shall mean the Credit Agreement as modified
hereby. This Amendment shall constitute a "Loan Document" for all purposes of
the Credit Agreement and the other Loan Documents.
SECTION 7. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Counterparts. This Amendment may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute a
single contract. Delivery of an executed signature page to this Amendment by
facsimile transmission shall be effective as delivery of a manually signed
counterpart of this Amendment.
SECTION 9. Notices. All notices hereunder or in connection herewith shall
be given in accordance with the provisions of Section 9.01 of the Credit
Agreement.
SECTION 10. Headings. The headings of this Amendment are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 11. Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby
acknowledges receipt of and consents to the terms of this Amendment.
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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
----------------------------
Name:
Title:
NEW TEREX HOLDINGS UK LIMITED,
by
----------------------------
Name:
Title:
TEREX INTERNATIONAL FINANCIAL SERVICES COMPANY,
by
----------------------------
Name:
Title:
POWERSCREEN INTERNATIONAL LIMITED,
by
----------------------------
Name:
Title:
P.P.M. S.A.S.,
by
----------------------------
Name:
Title:
10
TEREX MINING AUSTRALIA PTY LTD,
by
----------------------------
Name:
Title:
TEREX GERMANY GMBH & CO. KG,
BY ITS PARTNERS
TEREX VERWALTUNGS GMBH and
TEREX EUROPEAN HOLDINGS B.V.
by
----------------------------
Name:
Title:
TEREX ITALIA S.R.L.,
by
----------------------------
Name:
Title:
EACH SUBSIDIARY GUARANTOR LISTED
ON SCHEDULE I HERETO,
by
----------------------------
Name:
Title: Authorized Signatory
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands branch, individually
and as Administrative Agent and as Collateral
Agent,
by
----------------------------
Name:
Title:
by
----------------------------
Name:
Title:
11
SIGNATURE PAGE TO AMENDMENT NO. 1
AND AGREEMENT DATED AS OF
NOVEMBER 25, 2003, TO THE TEREX
CORPORATION AMENDED AND RESTATED
CREDIT AGREEMENT DATED AS OF JULY 3,
2002.
NAME OF LENDER:________________________________
By
-----------------------------------------
Name:
Title:
Subsidiary Guarantors
The American Crane Corporation
Amida Industries, Inc.
BL-Pegson USA, Inc.
Xxxxxxx America, Inc.
CMI Dakota Company
CMI Terex Corporation
Cedarapids, Inc.
Xxxxxxx Engineering, Inc.
EarthKing, Inc.
Finlay Hydrascreen USA, Inc.
Xxxxx Terex, Inc.
Genie Access Services, Inc.
Genie Financial Services, Inc.
Genie Holdings, Inc.
Genie Industries, Inc.
Genie International, Inc.
Genie Lease Management LLC
Genie Manufacturing, Inc.
Genie Portfolio Management LLC
Genie China, Inc.
GFS Commercial LLC
GFS National, Inc.
Go Credit Corporation
Koehring Cranes, Inc.
Lease Servicing & Funding Corp.
O&K Xxxxxxxxx & Xxxxxx, Inc.
PPM Cranes, Inc.
Payhauler Corp.
Powerscreen Holdings USA Inc.
Powerscreen International LLC
Powerscreen North America, Inc.
Powerscreen USA, LLC
Product Support, Inc.
Xxxxx Industries, Inc.
Schaeff Incorporated
Spinnaker Insurance Company
Standard Xxxxxx Products, Inc.
Standard Xxxxxx, Inc.
Telelect Southeast Distribution, Inc.
Terex Advance Mixer, Inc.
Terex Cranes, Inc.
Terex Financial Services, Inc.
Terex Mining Equipment, Inc.
Terex-RO Corporation
Terex-Telelect, Inc.
Terex Utilities, Inc.
Terex Utilities South, Inc.
Utility Equipment, Inc.
