EXHIBIT 10.2 AMENDMENT No. 5 AND AGREEMENT dated as of July 23, 1999 (this "Amendment"), to the Credit Agreement dated as of March 6, 1998, as amended (the "Credit Agreement"), among TEREX CORPORATION, a Delaware corporation ("Terex"), TEREX EQUIPMENT...
EXHIBIT 10.2
AMENDMENT No. 5 AND AGREEMENT dated as of July 23,
1999 (this "Amendment"), to the Credit Agreement dated as of
March 6, 1998, as amended (the "Credit Agreement"), among
TEREX CORPORATION, a Delaware corporation ("Terex"), TEREX
EQUIPMENT LIMITED, a company organized under the laws of
Scotland (the "Scottish Borrower"), P.P.M. S.A., a company
organized under the laws of the Republic of France (the
"French Borrower"), TEREX MINING (AUSTRALIA) PTY. LTD.
(formerly Unit Rig (Australia) Pty. Ltd.), a company organized
under the laws of New South Wales, Australia (the "Australian
Borrower"), P.P.M. Sp.A., a company organized under the laws
of the Republic of Italy (the "Italian Borrower"), PICADILLY
MASCHINENHANDEL GMBH & CO. KG, a partnership organized under
the laws of the Federal Republic of Germany (the "German
Borrower" and, together with Terex, the Scottish Borrower, the
French Borrower, the Australian Borrower and the Italian
Borrower, the "Borrowers"), the LENDERS (as defined in the
Credit Agreement), the ISSUING BANKS (as defined in the Credit
Agreement) 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 and the
Issuing Banks have extended credit to the Borrowers, and have agreed to extend
credit to the Borrowers, in each case pursuant to the terms and subject to the
conditions set forth therein.
B. The Borrowers have requested, and the Required Lenders have
agreed, to amend certain provisions of the Credit Agreement pursuant to the
terms and subject to the conditions set forth herein.
C. 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. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended by replacing
the words "at least 75%" contained in the definition of the term "Powerscreen
Acquisition" set forth therein with the words "more than 50%".
(b) Section 9.04(h) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
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"(h) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest,
provided that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute
any such pledgee or assignee for such Lender as a party hereto."
SECTION 2. Agreement.
The Borrowers hereby agree that, notwithstanding anything to
the contrary contained in the Credit Agreement, until the date on which Terex
acquires, directly or indirectly, 75% or more of the outstanding shares of
Powersceen, Terex will not, directly or indirectly, consummate any Permitted
Acquisition (other than the Powerscreen Acquisition) if, immediately after
giving effect thereto, the ratio of (a) the Total Debt of Terex and its
Subsidiaries on the date of such acquisition (including all Indebtedness
incurred in connection with or resulting from such acquisition that would
constitute Total Debt) to (b) the sum of (i) Pro Forma Acquisition EBITDA of the
entity acquired pursuant to such acquisition, (ii) Pro Forma Acquisition EBITDA
for all other Acquired Persons acquired during the period of four consecutive
fiscal quarters most recently ended prior to the date of such acquisition and
(iii) Consolidated EBITDA, in each case for the period of four fiscal quarters
most recently ended prior to the date of such acquisition, shall exceed 5.0 to
1.0. The foregoing requirement is in addition to, and not in limitation of, any
of the other requirements set forth in the Credit Agreement, including in the
definition of the term "Permitted Acquisitions".
SECTION 3. 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 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, and (b) no Default or Event of
Default has occurred and is continuing.
SECTION 4. Effectiveness.
This Amendment shall become effective as of the date first
written above on the date that the Administrative Agent shall have received
counterparts of this Amendment which, when taken together, bear the signatures
of the Borrowers and the Required Lenders.
SECTION 5. 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. This Amendment shall
constitute a Loan Document for all purposes of the Credit Agreement and the
other Loan Documents.
SECTION 6. 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 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 7. Applicable Law.
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Headings.
The headings of this Amendment are for purposes of reference
only and shall not limit or otherwise affect the meaning hereof.
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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 /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:Senior Vice President
TEREX EQUIPMENT LIMITED,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:Director
P.P.M. S.A.,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:Director
TEREX MINING (AUSTRALIA) PTY. LTD.,
(f/k/a UNIT RIG (AUSTRALIA) PTY. LTD.),
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:Director
P.P.M. Sp.A,
by /s/ Fil Filipov
-----------
Name: Fil Filipov
Title:President
PICADILLY MASCHINENHANDEL
GMBH & CO. KG,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:Managing Director
[PG NUMBER]
EACH OF THE FOLLOWING LOAN PARTIES:
THE AMERICAN CRANE CORPORATION,
AMIDA INDUSTRIES, INC., KOEHRING
CRANES, INC., O & K ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, INC., PAYHAULER CORP.,
PPM CRANES, INC., TEREX AERIALS,
INC., TEREX CRANES, INC., TEREX
MINING EQUIPMENT, INC., TEREX-RO
CORPORATION, TEREX-TELELECT,
INC.,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:Director
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent,
Collateral Agent and Swingline Lender,
by /s/ ▇▇▇▇ ▇'▇▇▇▇
-----------
Name: ▇▇▇▇ ▇'▇▇▇▇
Title:Vice President
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:Associate
7
ABN AMRO BANK N.V.,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title Vice President
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
ALLIANCE CAPITAL FUNDING L.L.C.,
as Assignee,
By: ALLIANCE CAPITAL MANAGEMENT L.P.,
as Manager,
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, its General Partner,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
ARES LEVERAGED INVESTMENT FUND, L.P.,
By: ARES MANAGMENT, L.P., its
General Partner,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
ARES LEVERAGED INVESTMENT FUND II, L.P.,
By: ARES MANAGMENT II, L.P., its
General Partner,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
12
BANKBOSTON, N.A.,
by
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CIBC, INC.,
By: CIBC WORLD MARKETS CORP.,
as Agent,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
THE CIT GROUP/EQUIPMENT FINANCING,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
DEBT STRATEGIES FUND II, INC.,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
DEUTSCHE FINANCIAL SERVICES CORPORATION,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title Vice President
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ ▇▇▇▇▇ INSTITUTIONAL SENIOR LOAN FUND,
By: ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT, as
Investment Advisor,
by
/s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
-------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST,
By: ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT, as
Investment Advisor,
by
/s/ Payson ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Name: Payson ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
ELC (CAYMAN) LTD. CDO SERIES 1999-I,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
ELC (CAYMAN) LTD.,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
FIRST UNION NATIONAL BANK,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
KZH SHOSHONE LLC,
by
/s/ ▇▇▇▇▇ ▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
▇▇▇▇▇▇▇ ▇▇▇▇▇ GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO,
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET
MANAGEMENT, L.P., as Invesment Advisor,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO,
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET
MANAGEMENT, L.P., as Investment
Advisor,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC.,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
NATIONAL CITY BANK,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇ CAPITAL FUNDING, L.P.,
By: HIGHLAND CAPITAL MANAGEMENT, L.P.,
as Collateral Manager,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Portfolio Manager
PAMCO CAYMAN LTD.,
By: HIGHLAND CAPITAL MANAGEMENT, L.P.,
as Collateral Manager,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Portfolio Manager
SENIOR DEBT PORTFOLIO,
By: BOSTON MANAGEMENT AND RESEARCH, as
Investment Advisor,
by
/s/ ▇▇▇▇▇ ▇. Page
------------------------
Name: ▇▇▇▇▇ ▇. Page
Title: Vice President
SENIOR HIGH INCOME PORTFOLIO INC.,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory