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CREDIT AGREEMENT
dated as of March 6, 1998
among
TEREX CORPORATION,
CERTAIN OF ITS SUBSIDIARIES,
THE LENDERS NAMED HEREIN,
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent,
BANKBOSTON N.A.,
as Syndication Agent,
and
CANADIAN IMPERIAL BANK OF COMMERCE and
FIRST UNION NATIONAL BANK
as Co-Documentation Agents
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TABLE OF CONTENTS
ARTICLE I
Definitions Page
SECTION 1.01. Defined Terms............................................... 2
SECTION 1.02. Terms Generally............................................. 28
SECTION 1.03. Exchange Rates.............................................. 29
ARTICLE II
The Credits
SECTION 2.01. Commitments................................................. 29
SECTION 2.02. Loans....................................................... 30
SECTION 2.03. Borrowing Procedure......................................... 32
SECTION 2.04. Evidence of Debt; Repayment of Loans........................ 33
SECTION 2.05. Fees........................................................ 33
SECTION 2.06. Interest on Loans........................................... 35
SECTION 2.07. Default Interest............................................ 35
SECTION 2.08. Alternate Rate of Interest.................................. 36
SECTION 2.09. Termination and Reduction of Commitments.................... 36
SECTION 2.10. Conversion and Continuation of Borrowings................... 37
SECTION 2.11. Repayment of Term Borrowings................................ 39
SECTION 2.12. Prepayment.................................................. 40
SECTION 2.13. Mandatory Prepayments....................................... 41
SECTION 2.14. Reserve Requirements; Change in Circumstances............... 44
SECTION 2.15. Change in Legality.......................................... 45
SECTION 2.16. Indemnity................................................... 46
SECTION 2.17. Pro Rata Treatment.......................................... 46
SECTION 2.18. Sharing of Setoffs.......................................... 47
SECTION 2.19. Payments.................................................... 47
SECTION 2.20. Taxes....................................................... 48
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate......................................... 50
SECTION 2.22. Swingline Loans............................................. 51
SECTION 2.23. Letters of Credit........................................... 52
SECTION 2.24. A/C Fronted Loans........................................... 56
SECTION 2.25. Reporting Requirements of A/C Fronting Lenders
and Issuing Banks........................................ 58
SECTION 2.26. Additional Issuing Banks.................................... 59
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ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers........................................ 59
SECTION 3.02. Authorization............................................... 59
SECTION 3.03. Enforceability.............................................. 60
SECTION 3.04. Governmental Approvals...................................... 60
SECTION 3.05. Financial Statements........................................ 60
SECTION 3.06. No Material Adverse Change.................................. 60
SECTION 3.07. Title to Properties; Possession Under Leases................ 60
SECTION 3.08. Subsidiaries................................................ 61
SECTION 3.09. Litigation; Compliance with Laws............................ 61
SECTION 3.10. Agreements.................................................. 62
SECTION 3.11. Federal Reserve Regulations................................. 62
SECTION 3.12. Investment Company Act; Public Utility Holding
Company Act.............................................. 62
SECTION 3.13. Use of Proceeds............................................. 62
SECTION 3.14. Tax Returns................................................. 62
SECTION 3.15. No Material Misstatements................................... 62
SECTION 3.16. Employee Benefit Plans...................................... 63
SECTION 3.17. Environmental Matters....................................... 63
SECTION 3.18. Insurance................................................... 64
SECTION 3.19. Security Documents.......................................... 64
SECTION 3.20. Location of Real Property and Leased Premises............... 65
SECTION 3.21. Labor Matters............................................... 65
SECTION 3.22. Solvency.................................................... 65
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events........................................... 66
SECTION 4.02. First Credit Event.......................................... 66
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties........................ 70
SECTION 5.02. Insurance................................................... 70
SECTION 5.03. Obligations and Taxes....................................... 72
SECTION 5.04. Financial Statements, Reports, etc. ........................ 72
SECTION 5.05. Litigation and Other Notices................................ 73
SECTION 5.06. Employee Benefits........................................... 73
SECTION 5.07. Maintaining Records; Access to Properties
and Inspections.......................................... 74
SECTION 5.08. Use of Proceeds............................................. 74
SECTION 5.09. Compliance with Environmental Laws.......................... 74
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SECTION 5.10. Preparation of Environmental Reports........................ 74
SECTION 5.11. Further Assurances.......................................... 74
SECTION 5.12. Interest Rate Protection Agreements......................... 75
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness................................................ 76
SECTION 6.02. Liens....................................................... 77
SECTION 6.03. Sale and Lease-Back Transactions............................ 79
SECTION 6.04. Investments, Loans and Advances............................. 79
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions... 80
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends............................ 81
SECTION 6.07. Transactions with Affiliates................................ 81
SECTION 6.08. Business of Borrowers and Subsidiaries...................... 81
SECTION 6.09. Other Indebtedness and Agreements........................... 82
SECTION 6.10. Capital Expenditures........................................ 82
SECTION 6.11. Consolidated Leverage Ratio................................. 83
SECTION 6.12. Consolidated Interest Coverage Ratio........................ 83
SECTION 6.13. Consolidated Fixed Charge Coverage Ratio.................... 83
SECTION 6.14. Fiscal Year................................................. 83
ARTICLE VII
Events of Default........................... 84
ARTICLE VIII
The Administrative Agent and the Collateral Agent............ 86
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices..................................................... 88
SECTION 9.02. Survival of Agreement....................................... 89
SECTION 9.03. Binding Effect.............................................. 89
SECTION 9.04. Successors and Assigns...................................... 89
SECTION 9.05. Expenses; Indemnity......................................... 92
SECTION 9.06. Right of Setoff............................................. 93
SECTION 9.07. Applicable Law.............................................. 93
SECTION 9.08. Waivers; Amendment.......................................... 94
SECTION 9.09. Interest Rate Limitation.................................... 94
SECTION 9.10. Entire Agreement............................................ 95
SECTION 9.11. WAIVER OF JURY TRIAL........................................ 95
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SECTION 9.12. Severability................................................ 95
SECTION 9.13. Counterparts................................................ 95
SECTION 9.14. Headings.................................................... 95
SECTION 9.15. Jurisdiction; Consent to Service of Process................. 95
SECTION 9.16. Conversion of Currencies.................................... 96
SECTION 9.17. Confidentiality............................................. 97
SECTION 9.18. European Monetary Union..................................... 97
SECTION 9.19. German Borrower............................................. 98
SCHEDULES
Schedule 1.01(a) Additional Cost
Schedule 1.01(b) Subsidiary Guarantors
Schedule 1.01(c) Mortgaged Properties
Schedule 1.01(d) Existing Letters of Credit
Schedule 1.01(e) Certain Countries
Schedule 1.01(f) Inactive Subsidiaries
Schedule 1.01(g) Subordination Provisions
Schedule 2.01(a) Lenders; Commitments
Schedule 2.01(b) Sublimits for Alternative Currency Extensions of Credit
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.17 Environmental Matters
Schedule 3.18 Insurance
Schedule 3.19(d) Mortgage Filing Offices
Schedule 3.20(a) Owned Real Property
Schedule 3.20(b) Leased Real Property
Schedule 4.02(a) Local Counsel
Schedule 6.01 Indebtedness
Schedule 6.02 Liens
Schedule 6.04 Investments
EXHIBITS
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Borrowing Request
Exhibit C Form of Indemnity, Subrogation and Contribution Agreement
Exhibit D Form of Mortgage
Exhibit E Form of Pledge Agreement
Exhibit F Form of Security Agreement
Exhibit G Form of Subsidiary Guarantee Agreement
Exhibit H Form of Terex Guarantee
Exhibit I-1 Form of Opinion of Xxxx Xxxxx
Exhibit I-2 Form of Local Counsel Opinion
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CREDIT AGREEMENT dated as of March
6, 1998, 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"), UNIT RIG (AUSTRALIA) PTY. LTD.,
a company organized under the laws of the
New South Wales, Australia (the "Australian
Borrower"), and P.P.M. Sp.A., a company
organized under the laws of the Republic of
Italy (the "Italian Borrower"), the Lenders
(as defined in Article I), the Issuing Banks
(as defined in Article I) 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.
Terex intends to (a) refinance indebtedness outstanding under the
Existing Credit Agreement (such term and each other capitalized term used but
not defined herein having the meaning given it in Article I) and (b) offer to
purchase (the "Debt Tender Offer") all its outstanding 13-1/4% Senior Secured
Notes due 2002 (the "Existing Notes") and, in connection therewith, seek the
consent (the "Consent Solicitation") of the holders of the Existing Notes to
amend certain of the provisions of the indenture (the "Existing Note Indenture")
governing the Existing Notes. Certain of the Subsidiary Borrowers intend to
refinance (together with the refinancing referred to in clause (a) of the
preceding sentence, the "Refinancing") certain of their existing indebtedness.
In addition, following the Closing Date, Terex intends to acquire (the
"Acquisition") all the outstanding capital shares of O&K Mining from O&K
Xxxxxxxxx & Xxxxxx XX and to issue the Senior Subordinated Notes.
The Borrowers have requested the Lenders to extend credit in the form
of (a) Tranche A Term Loans to be made on the Closing Date and on one other day
during the Tranche A Term Loan Availability Period, in an aggregate principal
amount not in excess of $175,000,000 (or the Dollar Equivalent thereof in
Alternative Currencies), (b) Tranche B Term Loans to be made on the Closing
Date, in an aggregate principal amount not in excess of $200,000,000, and (c)
Revolving Loans to be made at any time and from time to time during the period
from the Closing Date to the Revolving Credit Maturity Date, in an aggregate
principal amount at any time outstanding not in excess of $125,000,000 (or the
Dollar Equivalent thereof in Alternative Currencies). The Borrowers have
requested the A/C Fronting Lenders and the Swingline Lender to extend credit, at
any time and from time to time during the period from the Closing Date to the
Revolving Credit Maturity Date, in the form of A/C Fronted Loans and Swingline
Loans, respectively. The Borrowers have requested the Issuing Banks to issue
letters of credit, in an aggregate face amount at any time outstanding not in
excess of $35,000,000 (or the Dollar Equivalent thereof in Alternative
Currencies), to support payment obligations incurred in the ordinary course of
business by the Borrowers and their respective Subsidiaries. The proceeds of the
Term Loans, together with a portion of the Revolving Loans, are to be used
solely (a) on the Closing Date, (i) to effect the Refinancing, (ii) to finance
the Debt Tender Offer, (iii) to pay related fees and expenses and (iv) for
working capital purposes and (b) on the date on which the Acquisition is
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consummated, to fund a portion of the cash consideration therefor and to pay
related fees and expenses, and the proceeds of the Revolving Loans, A/C Fronted
Loans and Swingline Loans (other than the Loans used for the purposes previously
specified in this sentence) are to be used solely for working capital and other
general corporate purposes, including the financing of the Acquisition and other
Permitted Acquisitions.
The Lenders are willing to extend such credit to the Borrowers and the
Issuing Banks are willing to issue letters of credit for the account of the
Borrowers on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan or ABR Revolving Loan.
"ABR Revolving Loan" shall mean any Revolving Loan bearing interest at
a rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR Term Borrowing" shall mean a Borrowing comprised of ABR Term
Loans.
"ABR Term Loan" shall mean any ABR Tranche A Term Loan or any ABR
Tranche B Term Loan.
"ABR Tranche A Term Loan" shall mean any Tranche A Term Loan bearing
interest at a rate determined by reference to the Alternate Base Rate in
accordance with the provisions of Article II.
"ABR Tranche B Term Loan" shall mean any Tranche B Term Loan bearing
interest at a rate determined by reference to the Alternate Base Rate in
accordance with the provisions of Article II.
"A/C Fronted Base Rate" shall mean, for any day, with respect to any
A/C Fronted Loan, a rate per annum (rounded upwards, if necessary, to the next
1/16 of 1%) equal to the average rate at which overnight deposits in the
currency in which the applicable A/C Fronted Loan is denominated and
approximately equal in principal amount to such A/C Fronted Loan are obtainable
by the applicable A/C Fronting Lender on such day at its lending office for such
A/C Fronted Loan in the interbank market (or any other market for overnight
funds in such currency utilized by such A/C Fronting Lender), adjusted to
reflect any direct or indirect costs of obtaining such deposits (including
reserve and assessment costs, to the extent applicable). The A/C Fronted Base
Rate applicable to any A/C Fronted Loan shall be determined for each day by the
A/C Fronting Lender in respect of such Loan and such determination shall be
conclusive absent manifest error. The applicable A/C Fronting Lender shall
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notify the applicable Borrower and the Administrative Agent promptly upon
establishing the A/C Fronted Base Rate for any A/C Fronted Loan, or upon any
change thereto.
"A/C Fronted Base Rate Loans" shall mean any A/C Fronted Loan bearing
interest at a rate determined by reference to the A/C Fronted Base Rate in
accordance with the provisions of Article II.
"A/C Fronted Exposure" shall mean, at any time, the Dollar Equivalent
of the aggregate principal amount of all outstanding A/C Fronted Loans at such
time. The A/C Fronted Exposure of any Revolving Credit Lender at any time shall
equal its Pro Rata Percentage of the aggregate A/C Fronted Exposure at such
time.
"A/C Fronted Fixed Rate Loan" shall mean any A/C Fronted Loan bearing
interest at a rate determined by reference to the Bank Xxxx Rate or the Italian
Fixed Rate in accordance with the provisions of Article II.
"A/C Fronted Loan" shall mean any loan made by an A/C Fronting Lender
pursuant to its A/C Fronting Commitment.
"A/C Fronting Commitment" shall mean, with respect to any Lender, the
commitment of such Lender to make Loans pursuant to Section 2.24, as set forth
on Schedule 2.01(a), or in the Assignment and Acceptance pursuant to which such
Lender assumed its A/C Fronting Commitment, as applicable, as the same may be
reduced from time to time pursuant to Section 2.24(f) and pursuant to
assignments by such Lender pursuant to Section 9.04.
"A/C Fronting Fees" shall have the meaning assigned to such term in
Section 2.05(e).
"A/C Fronting Lender" shall mean (a) with respect to Australian
Dollars, the Australian Fronting Lender, and (b) with respect to Lire, the
Italian Fronting Lender.
"A/C Participation Fees" shall have the meaning assigned to such term
in Section 2.05(d).
"Acquired Indebtedness" shall mean Indebtedness of a person or any of
its subsidiaries (the "Acquired Person") (a) existing at the time such person
becomes a Subsidiary of Terex or at the time it merges or consolidates with
Terex or any of its Subsidiaries or (b) assumed in connection with the
acquisition of assets from such person; provided in each case that (i) such
Indebtedness was not created in contemplation of such acquisition, merger or
consolidation and (ii) such acquisition, merger or consolidation is otherwise
permitted under this Agreement.
"Acquired Person" shall have the meaning assigned to such term in the
definition of the term "Acquired Indebtedness".
"Acquisition" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Additional Cost" shall mean, in relation to any Borrowing that is
denominated in Pounds and is made by the Scottish Borrower, for any Interest
Period, the cost as calculated by the Administrative Agent in accordance with
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Schedule 1.01(a) imputed to each Lender participating in such Borrowing of
compliance with the mandatory liquid assets requirements of the Bank of England
during that Interest Period, expressed as a percentage.
"Additional Subordinated Notes" shall mean subordinated notes in an
aggregate principal amount at any time outstanding not to exceed $150,000,000
and issued from time to time by Terex, or assumed in connection with a Permitted
Acquisition, after the issuance of the Senior Subordinated Notes; provided that
(a) except in the case of Additional Subordinated Notes assumed in connection
with a Permitted Acquisition, the Net Cash Proceeds thereof are used either (i)
to finance one or more Permitted Acquisitions or (ii) to prepay Term Loans in
accordance with Section 2.13(e), (b) such subordinated notes do not require any
scheduled payment of principal prior to a date that is 12 months after the
Tranche B Maturity Date and (c) the subordination provisions and other
non-pricing terms and conditions of such subordinated notes are no less
favorable to the Loan Parties and the Lenders than the analogous provisions of
the Senior Subordinated Notes.
"Adjusted LIBO Rate" shall mean, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the LIBO Rate in effect for such
Interest Period multiplied by Statutory Reserves; provided, however, that, if
such Eurocurrency Borrowing is denominated in Pounds and is made by the Scottish
Borrower, then the "Adjusted LIBO Rate" shall be the LIBO Rate in effect for
such Interest Period plus Additional Cost.
"Administrative Agent Fees" shall have the meaning assigned to such
term in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"Agreement Currency" shall have the meaning assigned to such term in
Section 9.16.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. If for any reason the Administrative
Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms of the definition
thereof, the Alternate Base Rate shall be determined without regard to clause
(b) of the preceding sentence until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively. The term "Prime Rate" shall mean the rate of interest per
5
annum publicly announced from time to time by the Administrative Agent as its
prime rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective on the date such change is publicly announced
as being effective. The term "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day,
the average of the quotations for the day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Alternative Currency" shall mean (a) with respect to Tranche A Term
Loans, Revolving Loans and Letters of Credit, Marks, Pounds and Francs, (b) with
respect to A/C Fronted Loans and Letters of Credit, Australian Dollars and Lire
and (c) with respect to Letters of Credit, any other foreign currency which is
approved by the applicable A/C Fronting Lender and the applicable Issuing Bank,
in each case in its sole discretion.
"Alternative Currency Borrowing" shall mean a Borrowing comprised of
Alternative Currency Loans.
"Alternative Currency Equivalent" shall mean, on any date of
determination, with respect to any amount denominated in dollars in relation to
any specified Alternative Currency, the equivalent in such specified Alternative
Currency of such amount in dollars, determined by the Administrative Agent
pursuant to Section 1.03 using the applicable Exchange Rate then in effect.
"Alternative Currency Loan" shall mean any Loan denominated in an
Alternative Currency.
"Alternative Currency Revolving Credit Exposure" shall mean, at any
time with respect to any Alternative Currency, the sum of (a) the Dollar
Equivalent of the aggregate principal amount of all A/C Fronted Loans and
outstanding Revolving Loans that are denominated in such Alternative Currency at
such time, (b) the Dollar Equivalent of the aggregate undrawn amount of all
outstanding Letters of Credit that are denominated in such Alternative Currency
at such time and (c) the Dollar Equivalent of the aggregate principal amount of
all L/C Disbursements in respect of Letters of Credit that are denominated in
such Alternative Currency at such time.
"Alternative Currency Revolving Loan" shall mean a Revolving Loan
denominated in an Alternative Currency.
"Alternative Currency Term Loan" shall mean a Tranche A Term Loan
denominated in an Alternative Currency. Each Alternative Currency Term Loan must
be a Eurocurrency Term Loan.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurocurrency Revolving Loan, Eurocurrency Tranche A Term Loan, Eurocurrency
Tranche B Term Loan, ABR Revolving Loan, ABR Tranche A Term Loan, ABR Tranche B
Term Loan, A/C Fronted Loan or with respect to the Facility Fees, as the case
may be, the applicable percentage set forth below under the caption
"Eurocurrency Spread--Tranche A Term Loans and Revolving Loans", "Eurocurrency
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Spread--Tranche B Term Loans", "ABR Spread--Tranche A Term Loans and Revolving
Loans", "ABR Spread--Tranche B Term Loans", "A/C Fronted Loan Spread" or
"Facility Fee Percentage", as the case may be, based upon the Consolidated
Leverage Ratio as of the relevant date of determination; provided that, until
delivery of Terex's financial statements pursuant to Section 5.04(a) with
respect to its fiscal year ended December 31, 1997, the Applicable Percentage
shall be deemed to be in Category 3:
ABR
Eurocurrency Spread--
Spread-- Tranche A
Tranche A Term Eurocurrency Term Loans ABR
Consolidated Loans and Spread-- and ABR-- Spread--
Leverage Ratio Revolving Tranche B Revolving A/C Fronted Tranche B Facility Fee
Loans Term Loans Loans Loan Spread Term Loans Percentage
Category 1
Greater than or equal 2.00% 3.00% 1.00% 1.00% 2.00% 0.5000%
to 5.25 to 1.00
Category 2
Greater than or equal 1.75% 2.75% 0.75% 0.75% 1.75% 0.5000%
to 4.75 to 1.00 but less
than 5.25 to 1.00
Category 3
Greater than or equal 1.50% 2.50% 0.50% 0.50% 1.50% 0.5000%
to 4.00 to 1.00 but less
than 4.75 to 1.00
Category 4
Greater than or equal 1.25% 2.50% 0.25% 0.25% 1.50% 0.5000%
to 3.50 to 1.00 but less
than 4.00 to 1.00
Category 5
Greater than or equal 1.125% 2.50% 0.125% 0.125% 1.50% 0.375%
to 3.00 to 1.00 but less
than 3.50 to 1.00
Category 6 0.875% 2.25% -0.125% 0.000% 1.25% 0.375%
Less than 3.00 to 1.00
Each change in the Applicable Percentage resulting from a change in the
Consolidated Leverage Ratio shall be effective with respect to all Loans,
Commitments and Letters of Credit on the date of delivery to the Administrative
Agent of the financial statements and certificates required by Section 5.04(a)
or (b) based upon the Consolidated Leverage Ratio as of the end of the most
7
recent fiscal quarter included in such financial statements so delivered, and
shall remain in effect until the date immediately preceding the next date of
delivery of such financial statements and certificates indicating another such
change. Notwithstanding the foregoing, at any time after the occurrence and
during the continuance of an Event of Default, the Consolidated Leverage Ratio
shall be deemed to be in Category 1 for purposes of determining the Applicable
Percentage.
"Asset Sale" shall mean the sale, transfer or other disposition (by way
of merger or otherwise and including by way of a Sale and Leaseback) by any
Borrower or any Subsidiary to any person other than any Borrower or any
Guarantor of (a) any capital stock of any Subsidiary (other than directors'
qualifying shares) or (b) any other assets of any Borrower or any Subsidiary
(other than inventory, excess, damaged, obsolete or worn out assets, scrap,
Permitted Investments and accounts receivable, in each case disposed of in the
ordinary course of business and, in the case of accounts receivable, consistent
with past practice); provided that any asset sale or series of related asset
sales described in clause (b) above having a value not in excess of $1,000,000
shall be deemed not to be an "Asset Sale" for purposes of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Australian Dollars" shall mean dollars in lawful currency of
Australia.
"Australian Fronting Lender" shall mean Credit Suisse First Boston,
acting through its Sydney office branch, and its successors and assigns in such
capacity.
"Bank Xxxx Rate" shall mean, in relation to an Interest Period for any
A/C Fronted Fixed Rate Loan denominated in Australian Dollars, the rate
determined by the A/C Fronting Lender to be the average bid rate displayed at or
about 10:10 a.m. (Sydney time) on the first day of such Interest Period on the
Reuters screen BBSY page for a term equivalent to such Interest Period. If (a)
for any reason there is no rate displayed for a period equivalent to such
Interest Period or (b) the basis on which such rate is displayed is changed and
in the reasonable opinion of the A/C Fronting Lender such rate ceases to reflect
the A/C Fronting Lender's cost of funding to the same extent as at the date of
this Agreement, then the Bank Xxxx Rate shall be the rate determined by the A/C
Fronting Lender to be the average of the buying rates quoted to the A/C Fronting
Lender by three reference banks selected by it at or about that time on that
date for bills of exchange that are accepted by an Australian bank and that have
a term equivalent to the Interest Period. If there are no such buying rates the
rate shall be the rate reasonably determined by the A/C Fronting Lender to be
its cost of funds. Rates will be expressed as a yield percent per annum to
maturity and rounded up, if necessary, to the nearest two decimal places.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrowers" shall mean, collectively, Terex, the Scottish Borrower, the
French Borrower, the Australian Borrower, the Italian Borrower and, after its
accession to this Agreement pursuant to Section 9.19, the German Borrower.
8
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by any Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurocurrency Loan, the
term "Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market, and, when used in
connection with any Calculation Date or determining any date on which any amount
is to be paid or made available in an Alternative Currency, the term "Business
Day" shall also exclude any day on which commercial banks and foreign exchange
markets are not open for business in the principal financial center in the
country of such Alternative Currency.
"Calculation Date" shall mean (a) the date of delivery of each
Borrowing Request, (b) the date of issuance of any Letter of Credit, (c) the
date of conversion or continuation of any Borrowing pursuant to Section 2.10 or
(d) such additional dates as the Administrative Agent or the Required Lenders
shall specify.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Casualty" shall have the meaning assigned to such term in the
Mortgages.
"Casualty Proceeds" shall have the meaning assigned to such term in the
Mortgages.
A "Change in Control" shall be deemed to have occurred if (a) any
person or group (within the meaning of Rule 13d-5 of the Securities Exchange Act
of 1934 as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing more than 30% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
Terex; (b) a majority of the seats (other than vacant seats) on the board of
directors of Terex shall at any time be occupied by persons who were neither (i)
nominated by the board of directors of Terex, nor (ii) appointed by directors so
nominated; (c) any change in control (or similar event, however denominated)
with respect to Terex or any of its Subsidiaries shall occur under and as
defined in any indenture or agreement in respect of Indebtedness in an
outstanding principal amount in excess of $5,000,000 to which Terex or any of
its Subsidiaries is a party; or (d) any person or group shall otherwise directly
or indirectly Control Terex.
"Closing Date" shall mean the date of the first Credit Event.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
9
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall also include the Mortgaged Properties. Notwithstanding any
contrary provision contained herein, until such time as the condition described
in Section 5.11(c) has been satisfied, the term "Collateral" shall not include
any inventory or parts therefor of the Company which was manufactured or sold by
Fiatallis Latino American, Ltda, Fiat-Hitachi Excavators, S.p.A or any of their
subsidiaries or affiliated companies or inventory or parts therefor which bears
the tradename "Fiatallis", and any proceeds therefrom, including without
limitation accounts, contract rights, chattel paper and general intangibles
generated in any manner from the sale, lease demonstration or other disposition
of the inventory or parts therefor (collectively, the "Fiat Collateral").
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Term Loan Commitments, A/C Fronting Commitment and
Swingline Commitment.
"Condemnation" shall have the meaning assigned to such term in the
Mortgages.
"Condemnation Proceeds" shall have the meaning assigned to such term in
the Mortgages.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrowers dated February 1998.
"Consent Solicitation" shall have the meaning assigned to such term in
the preamble to this Agreement.
"Consolidated Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability) by Terex or any of its Subsidiaries during such period
that, in accordance with GAAP, are or should be included in "additions to
property, plant and equipment" or similar items reflected in the consolidated
statement of cash flows of Terex and the Subsidiaries for such period (including
the amount of assets leased by incurring any Capital Lease Obligation); provided
that expenditures for Permitted Acquisitions shall not constitute Consolidated
Capital Expenditures.
"Consolidated Current Assets" shall mean, as of any date of
determination, the total assets that would properly be classified as current
assets (other than cash and cash equivalents) of Terex and its Subsidiaries as
of such date, determined on a consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" shall mean, as of any date of
determination, the total liabilities (other than, without duplication, (a) the
current portion of long-term Indebtedness and (b) outstanding Revolving Loans,
A/C Fronted Loans and Swingline Loans) that would properly be classified as
current liabilities of Terex and its Subsidiaries as of such date, determined on
a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net
Income for such period, plus, without duplication and to the extent deducted
from revenues in determining Consolidated Net Income for such period, the sum of
(a) the aggregate amount of Consolidated Interest Expense for such period, (b)
the aggregate amount of letter of credit fees paid during such period, (c) the
10
aggregate amount of income and franchise tax expense for such period, (d) all
amounts attributable to depreciation and amortization for such period, (e) all
non-recurring non-cash charges during such period and (f) all non-cash
adjustments made to translate foreign assets and liabilities for changes in
foreign exchange rates made in accordance with FASB No. 52, and minus, without
duplication and to the extent added to revenues in determining Consolidated Net
Income for such period, (i) all non-recurring non-cash gains during such period
and (ii) all non-cash adjustments made to translate foreign assets and
liabilities for changes in foreign exchange rates made in accordance with FASB
No. 52, all as determined on a consolidated basis with respect to Terex and the
Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" shall mean, for any period,
the ratio of (a) Consolidated EBITDA for such period to (b) the sum, without
duplication, of (i) Consolidated Interest Expense for such period; (ii) income
or franchise taxes paid in cash during such period; (iii) scheduled and
voluntary payments of principal with respect to all Indebtedness (including the
principal portion of Capital Lease Obligations but excluding payments for
inventory to be sold in the ordinary course of business) of Terex and its
Subsidiaries on a consolidated basis during such period (other than repayments
of Indebtedness (x) pursuant to the Refinancing on or prior to the Closing Date
or (y) with the proceeds of other Indebtedness permitted to be incurred
hereunder or equity); (iv) payments permitted pursuant to Section 6.06 made in
cash during such period; and (v) Consolidated Capital Expenditures made in cash
during such period.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" of Terex and its Subsidiaries shall
mean, for any period, interest expense of Terex and its Subsidiaries for such
period, net of interest income, included in the determination of Consolidated
Net Income. For purposes of the foregoing, interest expense shall be determined
after giving effect to any net payments made or received by Terex and its
Subsidiaries under Interest Rate Protection Agreements.
"Consolidated Leverage Ratio" shall mean, as of any date of
determination, the ratio of (a) Total Debt on such date to (b) the sum of (i)
Consolidated EBITDA for the most recent period of four consecutive fiscal
quarters ended on or prior to such date and (ii) the Pro Forma Acquisition
EBITDA of all Acquired Persons acquired during such period of four consecutive
fiscal quarters. For purposes of calculating the Consolidated Leverage Ratio as
of any date, if any portion of the Total Debt outstanding on such date is
denominated in a currency other than dollars, then the portion, if any, of
Consolidated EBITDA or Pro Forma Acquisition EBITDA during the period of four
consecutive fiscal quarters ending on or prior to such date and denominated in
any such other currency shall be translated to dollars using the same exchange
rate as is used to translate such portion of the Total Debt denominated in such
other currency.
"Consolidated Net Income" shall mean, for any period, the sum of net
income (or loss) for such period of Terex and its Subsidiaries on a consolidated
basis determined in accordance with GAAP, but excluding: (a) the income (or
loss) of any person accrued prior to the date it became a Subsidiary of Terex or
is merged into or consolidated with Terex or such person's assets are acquired
by Terex or any of its Subsidiaries; (b) non-recurring gains (or losses) during
such period; (c) extraordinary gains (or losses), as defined under GAAP during
11
such period; and (d) the income of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by the Subsidiary
of that income is prohibited by operation of the terms of its charter or any
agreement, instrument, judgment, decree, statute, rule or governmental
regulation applicable to the Subsidiary.
"Consolidated Senior Secured Leverage Ratio" shall mean, as of any date
of determination, the ratio of (a) Total Senior Secured Debt on such date to (b)
the sum of (i) Consolidated EBITDA for the most recent period of four
consecutive fiscal quarters ended on or prior to such date and (ii) the Pro
Forma Acquisition EBITDA of all Acquired Persons acquired during such period of
four consecutive fiscal quarters. For purposes of calculating the Consolidated
Senior Secured Leverage Ratio as of any date, if any portion of the Total Senior
Secured Debt outstanding on such date is denominated in a currency other than
dollars, then the portion, if any, of Consolidated EBITDA or Pro Forma
Acquisition EBITDA during the period of four consecutive fiscal quarters ending
on or prior to such date and denominated in any such other currency shall be
translated to dollars using the same exchange rate as is used to translate such
portion of the Total Debt denominated in such other currency.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"Debt Tender Offer" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Dollar Borrowing" shall mean a Borrowing comprised of Dollar Loans.
"Dollar Equivalent" shall mean, on any date of determination, with
respect to any amount denominated in any currency other than dollars, the
equivalent in dollars of such amount, determined by the Administrative Agent
pursuant to Section 1.03 using the applicable Exchange Rate with respect to such
currency at the time in effect.
"Dollar Loan" shall mean a Dollar Revolving Loan or a Dollar Term Loan.
"Dollar Revolving Loan" shall mean a Revolving Loan denominated in
dollars and made pursuant to Section 2.01.
Dollar Term Loan" shall mean a Term Loan denominated in dollars. Each
Dollar Term Loan shall be either a Eurocurrency Term Loan or an ABR Term Loan.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
12
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases), (b) exposure to any Hazardous Material,
(c) the presence, use, handling, transportation, storage, treatment or disposal
of any Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and
future treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. xx.xx. 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. Section. 6901 et seq., the Federal Water Pollution Control Act, as
amended by the Clean Water Act of 1977, 33 U.S.C. Section. 1251 et seq., the
Clean Air Act of 1970, as amended 42 U.S.C. Section. 7401 et seq., the Toxic
Substances Control Act of 1976, 15 U.S.C. Section. 2601 et seq., the
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. Section. 651
et seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Section. 11001 et seq., the Safe Drinking Water Act of 1974, as amended,
42 U.S.C. Section. 300(f) et seq., the Hazardous Materials Transportation Act,
49 U.S.C. Section. 5101 et seq., and any similar or implementing state or local
law, and all amendments or regulations promulgated under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Issuance" shall mean any issuance or sale by any Borrower or
any Subsidiary of any shares of capital stock or other equity securities of any
such person or any obligations convertible into or exchangeable for, or giving
any person a right, option or warrant to acquire such securities or such
convertible or exchangeable obligations, except in each case for (a) any
issuance or sale to any Borrower or any Subsidiary, (b) any issuance of
directors' qualifying shares, (c) sales or issuances of common stock to
management or employees of any Borrower or any Subsidiary under any employee
stock option plan, stock purchase plan, retirement plan, deferred compensation
plan or other employee benefit plan in existence from time to time to the extent
that (i) the proceeds from all sales and issuances described in this clause (c)
shall not exceed in the aggregate $1,000,000 in any fiscal year of Terex and
13
(ii) the shares of common stock issued pursuant to this clause (c) shall not
exceed 10% of the common stock of such Borrower or such Subsidiary, as
applicable.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with Terex, is treated as a single employer under
Section 414(b) or (c) of the Code, or solely for purposes of Section 302 of
ERISA and Section 412 of the Code, is treated as a single employer under Section
414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 401(a)(29) of the Code or Section 307
of ERISA; (c) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (d) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (e) the incurrence of any liability under
Title IV of ERISA with respect to the termination of any Plan or the withdrawal
or partial withdrawal of Terex or any of its ERISA Affiliates from any Plan or
Multiemployer Plan; (f) the receipt by Terex or any ERISA Affiliate from the
PBGC or a plan administrator of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g)
the receipt by Terex or any ERISA Affiliate of any notice concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the occurrence of a "prohibited transaction" with respect
to which Terex or any of its Subsidiaries is a "disqualified person" (within the
meaning of Section 4975 of the Code) or with respect to which Terex or any such
Subsidiary could otherwise be liable; (i) any other event or condition with
respect to a Plan or Multiemployer Plan that could reasonably be expected to
result in liability of any Borrower; and (j) any Foreign Benefit Event.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Loan" shall mean any Eurocurrency Revolving Loan or
Eurocurrency Term Loan.
"Eurocurrency Revolving Borrowing" shall mean a Eurocurrency Borrowing
comprised of Eurocurrency Revolving Loans.
"Eurocurrency Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurocurrency Term Borrowing" shall mean a Borrowing comprised of
Eurocurrency Term Loans.
"Eurocurrency Term Loan" shall mean any Eurocurrency Tranche A Term
Loan or Eurocurrency Tranche B Term Loan.
14
"Eurocurrency Tranche A Term Loan" shall xxxxx any Tranche A Term Loan
bearing interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurocurrency Tranche B Term Loan" shall mean any Tranche B Term Loan
bearing interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excess Cash Flow" shall mean, for any fiscal year of Terex, the excess
of (a) the sum, without duplication, of (i) Consolidated EBITDA for such fiscal
year, (ii) extraordinary or non-recurring cash receipts of Terex and its
Subsidiaries, if any, during such fiscal year and not included in Consolidated
EBITDA and (iii) reductions to non-cash working capital of Terex and its
Subsidiaries for such fiscal year (i.e., the decrease, if any, in Consolidated
Current Assets minus Consolidated Current Liabilities from the beginning to the
end of such fiscal year), over (b) the sum, without duplication, of (i) the
amount of any cash income taxes payable by Terex and its Subsidiaries with
respect to such fiscal year, (ii) cash interest paid by Terex and its
Subsidiaries during such fiscal year, (iii) Consolidated Capital Expenditures
committed or made in cash in accordance with Section 6.10 during such fiscal
year (and not deducted from Excess Cash Flow in any prior year), (iv) scheduled
principal repayments of Indebtedness made by Terex and its Subsidiaries during
such fiscal year, (v) optional and mandatory prepayments of the principal of
Term Loans and reductions of Revolving Credit Commitments during such fiscal
year, but only to the extent that such prepayments and reductions do not occur
in connection with a refinancing of all or any portion of the Loans, (vi)
extraordinary or non-recurring expenses and losses to the extent paid in cash by
Terex and its Subsidiaries, if any, during such fiscal year and not included in
Consolidated EBITDA and (vii) additions to non-cash working capital for such
fiscal year (i.e., the increase, if any, in Consolidated Current Assets minus
Consolidated Current Liabilities from the beginning to the end of such Fiscal
Year); provided that, to the extent otherwise included therein, the Net Cash
Proceeds of Asset Sales and Equity Issuances shall be excluded from the
calculation of Excess Cash Flow.
"Exchange Rate" shall mean, on any day, with respect to any currency
other than dollars (for purposes of determining the Dollar Equivalent) or any
Alternative Currency (for purposes of determining the Alternative Currency
Equivalent with respect to such Alternative Currency), the rate at which such
currency may be exchanged into dollars or the applicable Alternative Currency,
as the case may be, as set forth at approximately 11:00 a.m., New York City
time, on such date on the applicable Bloomberg Key Cross Currency Rates Page. In
the event that any such rate does not appear on any Bloomberg Key Cross Currency
Rates Page, the Exchange Rate shall be determined by reference to such other
publicly available service for displaying exchange rates selected by the
Administrative Agent for such purpose, or, at the discretion of the
Administrative Agent, such Exchange Rate shall instead be the arithmetic average
of the spot rates of exchange of the Administrative Agent in the market where
its foreign currency exchange operations in respect of such currency are then
being conducted, at or about 10:00 a.m., local time, on such date for the
purchase of dollars or the applicable Alternative Currency, as the case may be,
for delivery two Business Days later; provided that, if at the time of any such
determination, for any reason, no such spot rate is being quoted, the
Administrative Agent may use any other reasonable method it deems appropriate
15
to determine such rate, and such determination shall be presumed correct absent
manifest error.
"Existing Credit Agreement" shall mean the Revolving Credit Agreement
dated as of April 7, 1997, among Terex, the Subsidiaries listed therein, the
lenders party thereto and BankBoston, N.A., as agent.
"Existing Issuing Bank" shall mean BankBoston, N.A.
"Existing Letter of Credit" shall mean each letter of credit that is
(a) issued by an Existing Issuing Bank, (b) outstanding on the Closing Date and
(c) listed in Schedule 1.01(d).
"Existing Note Indenture" shall have the meaning assigned to such term
in the preamble to this Agreement.
"Existing Notes" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Facility Fee" shall have the meaning assigned to such term in Section
2.05(a).
"Fee Letter" shall mean the Fee Letter dated January 30, 1998, between
Terex and the Administrative Agent.
"Fees" shall mean the Facility Fees, the Administrative Agent's Fees,
the A/C Participation Fees, the A/C Fronting Fees, the L/C Participation Fees
and the Issuing Bank Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, a Vice President-Finance, principal accounting officer, Treasurer or
Controller of such corporation.
"Floor Plan Guarantees" shall mean Guarantees (including but not
limited to repurchase or remarketing obligations) by Terex or a Subsidiary
incurred in the ordinary course of business consistent with past practice of
Indebtedness incurred by a franchise dealer, or other purchaser or lessor, for
the purchase of inventory manufactured or sold by Terex or a Subsidiary, the
proceeds of which Indebtedness is used solely to pay the purchase price of such
inventory to such franchise dealer or other purchaser or lessor and any related
reasonable fees and expenses (including financing fees); provided, however, that
(a) to the extent commercially practicable, the Indebtedness so Guaranteed is
secured by a perfected first priority Lien on such inventory in favor of the
holder of such Indebtedness and (b) if Terex or such Subsidiary is required to
make payment with respect to such Guarantee, Terex or such Subsidiary will have
the right to receive either (i) title to such inventory, (ii) a valid assignment
of a perfected first priority Lien in such inventory or (iii) the net proceeds
of any resale of such inventory.
"Foreign Base Rate Loans" shall mean Loans (other than A/C Fronted
Loans) in any Alternative Currency the rate of interest applicable to which is
based upon the rate of interest per annum maintained by the Administrative Agent
as the rate of interest (in the absence of a eurocurrency rate) determined by it
with the approval of a majority in interest of the Lenders participating in such
Loan to be the average rate charged to borrowers of similar quality as the
16
applicable Borrower of such Loans in such Alternative Currency. Notwithstanding
anything to the contrary contained herein, Loans may be made or maintained as
Foreign Base Rate Loans only to the extent specified in Section 2.02(f), 2.08 or
2.15.
"Foreign Benefit Event" shall mean, with respect to any Foreign Pension
Plan, (a) the existence of unfunded liabilities in excess of the amount
permitted under any applicable law, or in excess of the amount that would be
permitted absent a waiver from a Governmental Authority, (b) the failure to make
the required contributions or payments, under any applicable law, on or before
the due date for such contributions or payments, (c) the receipt of a notice by
a Governmental Authority relating to the intention to terminate any such Foreign
Pension Plan or to appoint a trustee or similar official to administer any such
Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension
Plan and (d) the incurrence of any liability in excess of $5,000,000 (or the
Dollar Equivalent thereof in another currency) by Terex or any of its
Subsidiaries under applicable law on account of the complete or partial
termination of such Foreign Pension Plan or the complete or partial withdrawal
of any participating employer therein, or (e) the occurrence of any transaction
that is prohibited under any applicable law and could reasonably be expected to
result in the incurrence of any liability by Terex or any of its Subsidiaries,
or the imposition on Terex or any of its Subsidiaries of any fine, excise tax or
penalty resulting from any noncompliance with any applicable law, in each case
in excess of $5,000,000 (or the Dollar Equivalent thereof in another currency).
"Foreign Pension Plan" shall mean any benefit plan which under
applicable law is required to be funded through a trust or other funding vehicle
other than a trust or funding vehicle maintained exclusively by a Governmental
Authority.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"Francs" and "Ffr" shall mean francs in lawful currency of the Republic
of France.
"GAAP" shall mean generally accepted accounting principles in effect in
the United States applied on a consistent basis.
"German Borrower" shall mean O&K Mining, but only following the
consummation of the Acquisition and the accession to this Agreement by O&K
Mining pursuant to Section 9.19.
"Governmental Authority" shall mean the government of the United States
of America, the United Kingdom, Germany, France, Italy, Australia, any other
nation or any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
17
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that the
term "Guarantee" shall not include (i) endorsements for collection or deposit in
the ordinary course of business and (ii) Floor Plan Guarantees except to the
extent that they appear as debt on the Borrower's balance sheet.
"Guarantee Agreements" shall mean the Subsidiary Guarantee Agreement
and the Terex Guarantee Agreement.
"Guarantors" shall mean Terex and the Subsidiary Guarantors.
"Hazardous Materials" shall mean all explosive or radioactive
materials, substances or wastes, hazardous or toxic materials, substances or
wastes, pollutants, solid, liquid or gaseous wastes, including petroleum or
petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls ("PCBs") or PCB-containing materials or equipment,
radon gas, infectious or medical wastes and all other substances or wastes of
any nature regulated pursuant to any Environmental Law.
"Hedging Agreement" shall mean any Interest Rate Protection Agreement
or any foreign currency exchange agreement, commodity price protection agreement
or other interest or currency exchange rate or commodity price hedging
arrangement not entered into for speculation.
"Inactive Subsidiary" shall mean each Subsidiary of Terex listed on
Schedule 1.01(f) until such time as such Subsidiary shall become a Subsidiary
Guarantor.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or advances of any kind, (b) all
obligations of such person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such person upon which interest charges are
customarily paid, (d) all obligations of such person under conditional sale or
other title retention agreements relating to property or assets purchased by
such person, (e) all obligations of such person issued or assumed as the
deferred purchase price of property or services (excluding trade accounts
payable and accrued obligations incurred in the ordinary course of business),
(f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (g) all Guarantees by such person
of Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange
rate hedging arrangements and (j) all obligations of such person as an account
party in respect of letters of credit and bankers' acceptances. The Indebtedness
of any person shall include the Indebtedness of any partnership in which such
person is a general partner, to the extent such Indebtedness is recourse to such
person either expressly or by operation of law.
18
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit D, among the Borrowers, the Subsidiary Guarantors and the Collateral
Agent.
"Interest Payment Date" shall mean, with respect to any Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurocurrency Borrowing with an Interest Period of
more than three months' duration, each day that would have been an Interest
Payment Date had successive Interest Periods of three months' duration been
applicable to such Borrowing, and, in addition, the date of any prepayment of
such Borrowing or conversion of such Borrowing to a Borrowing of a different
Type.
"Interest Period" shall mean (a) as to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter (and, in the
case of an Alternative Currency Borrowing maturing or required to be repaid in
less than one month, the date thereafter requested by the applicable Borrower
and agreed to by the Administrative Agent), as the applicable Borrower may
elect, (b) as to any ABR Borrowing or Borrowing bearing interest by reference to
the A/C Fronted Base Rate, the period commencing on the date of such Borrowing
and ending on the earliest of (i) the next succeeding March 31, June 30,
September 30 or December 31, (ii) the Revolving Credit Maturity Date, the
Tranche A Maturity Date or the Tranche B Maturity Date, as applicable, and (iii)
the date such Borrowing is converted to a Borrowing of a different Type in
accordance with Section 2.10 or repaid or prepaid in accordance with Section
2.11 or 2.12, (c) as to any A/C Fronted Fixed Rate Loan bearing interest by
reference to the Bank Xxxx Rate, the period commencing on the date of such Loan
and ending on the date (more than 7 but not more than 92 days thereafter) as the
Australian Borrower may elect and (d) as to any A/C Fronted Loan bearing
interest by reference to the Italian Fixed Rate, the period commencing on the
date of such Loan and ending on the numerically corresponding day (or, if there
is no numerically corresponding day, on the last day) in the calendar that is 1,
2 or 3 months thereafter, as the Italian Borrower may elect; provided, however,
that if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
similar agreement or arrangement designed to protect any Borrower or any
Subsidiary against fluctuations in interest rates, and not entered into for
speculation.
"Issuing Bank" shall mean CSFB and BankBoston, N.A.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(c).
"Italian Facilities" shall mean the credit facilities of the Italian
Borrower existing on the date of this agreement with Medio Credito, Min
Industria, PO MI, Carisp, Rolobanca, Banco Sicilia, First S. Paolo Torino,
19
Credito Bergamasco, X. Xxxxxxxxx, Banco Nazionale del Lavaro and Pop Xxxxxx.
"Italian Fixed Rate" shall mean, with respect to any A/C Fronted Fixed
Rate Loan denominated in Lire, the rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1% and adjusted for reserve requirements, if any)
determined by the Italian Fronting Lender at approximately 11:00 a.m. (London
time) on the date which is two Business Days prior to or the beginning of the
relevant Interest Period (as specified in the applicable Borrowing Request) by
reference to page 3740 of the Telerate screen, or such other page as may replace
such rate as the Telerate screen which displays the British Bankers' Association
Interest Settlement Rates for deposits in Lire, for a period equal to such
Interest Period; provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the
"Italian Fixed Rate" shall be the interest rate per annum determined by the
Italian Fronting Lender to be the average of the rates per annum (rounded
upwards, if necessary, to the next 1/16 of 1% and adjusted for reserve
requirements, if any) at which deposits in Lire are offered for such relevant
Interest Period to major banks in the London interbank market in London, England
by the Italian Fronting Lender at approximately 11:00 a.m. (London time) on the
date which is two Business Days prior to the beginning of such Interest Period.
"Italian Fronting Lender" shall mean BankBoston, N.A., and its
successors and assigns in such capacity.
"Judgment Currency" shall have the meaning assigned to such term in
Section 9.16.
"L/C Commitment" shall mean the commitment of each Issuing Bank to
issue Letters of Credit pursuant to Section 2.23.
"L/C Disbursement" shall mean a payment or disbursement made by an
Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit denominated in dollars at
such time, (b) the Dollar Equivalent of the aggregate undrawn amount of all
outstanding Letters of Credit denominated in Alternative Currencies at such
time, (c) the aggregate principal amount of all L/C Disbursements in respect of
Letters of Credit denominated in dollars that have not yet been reimbursed at
such time and (d) the Dollar Equivalent of the aggregate principal amount of all
L/C Disbursements in respect of Letters of Credit denominated in Alternative
Currencies that have not yet been reimbursed at such time. The L/C Exposure of
any Revolving Credit Lender at any time shall mean its Pro Rata Percentage of
the total L/C Exposure at such time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01(a) (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance. Unless the context clearly indicates otherwise, the term "Lenders"
shall include the A/C Fronting Lenders and the Swingline Lender.
20
"Letter of Credit" shall mean (a) any letter of credit issued pursuant
to Section 2.23 and (b) any Existing Letter of Credit.
"LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing, the
rate per annum determined by the Administrative Agent at approximately 11:00
a.m. (London time) on the date which is two Business Days prior to or, with
respect to Eurocurrency Borrowings denominated in Pounds, at approximately 11:00
a.m. (London time) on the same day as, the beginning of the relevant Interest
Period (as specified in the applicable Borrowing Request) by reference to the
British Bankers' Association Interest Settlement Rates for deposits in dollars
or the relevant Alternative Currency, as applicable (as set forth by any service
selected by the Administrative Agent which has been nominated by the British
Bankers' Association as an authorized information vendor for the purpose of
displaying such rates), for a period equal to such Interest Period; provided
that, to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the "LIBO Rate" shall be the interest
rate per annum determined by the Administrative Agent to be the average of the
rates per annum at which deposits in dollars or the relevant Alternative
Currency, as applicable, are offered for such relevant Interest Period to major
banks in the London interbank market in London, England by the Administrative
Agent at approximately 11:00 a.m. (London time) on the date which is two
Business Days prior to or, with respect to Eurocurrency Borrowings denominated
in Pounds, at approximately 11:00 a.m. (London time) on the same day as, the
beginning of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Lire" and "Lit" shall mean lire in lawful currency of Italy.
"Loan Documents" shall mean this Agreement, the Guarantee Agreements,
the Security Documents and the Indemnity, Subrogation and Contribution
Agreement.
"Loan Parties" shall mean the Borrowers and the Guarantors.
"Loans" shall mean the Revolving Loans, the Term Loans, the A/C Fronted
Loans and the Swingline Loans.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Marks" and "DM" shall mean deutsche marks in lawful currency of
Germany.
"Material Adverse Effect" shall mean (a) a materially adverse effect on
the business, assets, operations, prospects or condition, financial or
otherwise, of Terex and its Subsidiaries, taken as a whole, (b) material
impairment of the ability of the Loan Parties to perform their obligations under
the Loan Documents or (c) material impairment of the rights of or benefits
available to the Lenders under any Loan Document.
21
"Mortgaged Properties" shall mean the owned real properties and
leasehold and subleasehold interests specified on Schedule 1.01(c).
"Mortgages" shall mean the mortgages, deeds of trust, leasehold
mortgages, assignments of leases and rents, modifications and other security
documents delivered pursuant to clause (i) of Section 4.02(j) or pursuant to
Section 5.11, each substantially in the form of Exhibit F.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the
cash proceeds (including cash proceeds subsequently received (as and when
received) in respect of non-cash consideration initially received and including
all insurance settlements and condemnation awards in excess of $250,000 from any
single event or series of related events), net of (i) transaction expenses
(including reasonable broker's fees or commissions, legal fees, accounting fees,
investment banking fees and other professional fees, transfer and similar taxes
and Terex's good faith estimate of income taxes paid or payable in connection
with the receipt of such cash proceeds), (ii) amounts provided as a reserve, in
accordance with GAAP, including pursuant to any escrow arrangement, against any
liabilities under any indemnification obligations associated with such Asset
Sale (provided that, to the extent and at the time any such amounts are released
from such reserve, such amounts shall constitute Net Cash Proceeds), (iii) in
the case of insurance settlements and condemnation awards, amounts previously
paid by Terex and its Subsidiaries to replace or restore the affected property,
and (iv) the principal amount, premium or penalty, if any, interest and other
amounts on any Indebtedness for borrowed money which is secured by the asset
sold in such Asset Sale and is required to be repaid with such proceeds (other
than any such Indebtedness assumed by the purchaser of such asset); provided,
however, that, 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, if (A) Terex shall deliver a certificate of a Financial Officer to
the Administrative Agent at the time of receipt thereof setting forth Terex's
intent to reinvest such proceeds in productive assets of a kind then used or
usable in the business of Terex and its Subsidiaries within 300 days of receipt
of such proceeds and (B) no Default or Event of Default shall have occurred and
shall be continuing at the time of such certificate or at the proposed time of
the application of such proceeds, such proceeds shall not constitute Net Cash
Proceeds except to the extent not so used at the end of such 300-day period, at
which time such proceeds shall be deemed to be Net Cash Proceeds, and (b) with
respect to any Equity Issuance or any other issuance or disposition of
Indebtedness, the cash proceeds thereof, net of all taxes and customary fees,
commissions, costs and other expenses (including reasonable broker's fees or
commissions, legal fees, accounting fees, investment banking fees and other
professional fees, and underwriter's discounts and commissions) incurred in
connection therewith.
"O&K Mining" shall mean O&K Mining GmbH, a company organized under the
laws of the Federal Republic of Germany.
"Obligations" shall mean all obligations defined as "Obligations" in
any of the Guarantee Agreements and the Security Documents.
22
"Payment Location" shall mean an office, branch or other place of
business of any Borrower.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Perfection Certificate" shall mean the Perfection Certificate
substantially in the form of Annex 2 to the Security Agreement.
"Permitted Acquisitions" shall mean acquisitions of not less than 100%
(other than directors' qualifying shares) of the outstanding capital stock or
other equity interests of any corporation, partnership, a division of any
corporation or any similar business unit (or of all or substantially all the
assets and business of any of the foregoing) engaged in a Related Business so
long as (a) in the case of each such acquisition of capital stock or other
equity interests, such acquisition was not preceded by an unsolicited tender
offer for such capital stock or other equity interests by Terex or any of its
Affiliates, (b) Terex shall have delivered to the Administrative Agent a
certificate certifying that at the time of and immediately after giving effect
to such acquisition, no Default or Event of Default shall have occurred and be
continuing, and (c) either (i) the total consideration with respect to such
acquisition shall not exceed $2,500,000, (ii) Terex shall have delivered to the
Administrative Agent a certificate certifying that at the time of and
immediately after giving effect to such acquisition, the Pro Forma Acquisition
EBITDA of the entity acquired pursuant to such acquisition shall not exceed 25%
of the sum of such Pro Forma Acquisition EBITDA plus Consolidated EBITDA, in
each case for the period of four fiscal quarters ended on the last day of the
most recent fiscal quarter ended prior to the date of such acquisition or (iii)
(A) Terex shall have delivered to the Administrative Agent a certificate
certifying that at the time of and immediately after giving effect to such
acquisition, the ratio of (1) 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 (2)
the sum of (x) Pro Forma Acquisition EBITDA of the entity acquired pursuant to
such acquisition, (y) 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 (z) Consolidated
EBITDA, in each case for the period of four fiscal quarters most recently ended
prior to the date of such acquisition, shall be at least 0.15 to 1.00 less than
the Consolidated Leverage Ratio required pursuant to Section 6.11 on such date
and (B) such corporation, partnership, division, business or assets, as
applicable, are located in the United States (or the principal place of business
with respect thereto and substantially all of the applicable assets are located
in the United States) or in any country included on Schedule 1.01(e) or on a
list approved by the Required Lenders prior to the date of such acquisition. For
purposes of determining compliance with clause (c)(i) above, the principal
amount of Indebtedness assumed in connection with an acquisition shall be
included in calculating the consideration therefor.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
23
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard &
Poor's Ratings Service or from Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within one year from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, (i) the Administrative
Agent or any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof or (ii) a
commercial banking institution organized and located in a country
recognized by the United States of America, in each case that has a
combined capital and surplus and undivided profits of not less than
$250,000,000 (or the Dollar Equivalent thereof in another currency);
(d) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clause (a)
above entered into with any bank meeting the qualifications specified
in clause (c) above;
(e) investments in money market funds which invest
substantially all their assets in securities of the types described in
clauses (a) through (d) above; and
(f) other short-term investments utilized by Foreign
Subsidiaries in accordance with normal investment practices for cash
management not exceeding $1.0 million in aggregate principal amount
outstanding at any time.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, limited liability company, partnership,
other business entity or government, or any agency or political subdivision
thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which Terex or any
ERISA Affiliate is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in
the form of Exhibit G, between Terex, its Subsidiaries party thereto and the
Collateral Agent for the benefit of the Secured Parties.
"Pounds" and "(pound)" shall mean pounds sterling in lawful currency of
the United Kingdom.
"Pro Forma Acquisition EBITDA" shall mean with respect to any entity or
business unit acquired or to be acquired in a Permitted Acquisition, the amount
of Consolidated EBITDA of such entity or business unit (as if such entity or
business unit were Terex) determined by Terex and acceptable to the
Administrative Agent in its reasonable discretion, based upon and derived from
financial information delivered to Administrative Agent prior to consummation of
such Permitted Acquisition for the four-quarter period ending on the last day of
the immediately preceding fiscal quarter of such entity or business unit for
24
which such financial information for such entity or business unit has been
delivered to the Administrative Agent, adjusted by the estimated amount of
non-recurring revenues and expenditures with respect to the business of such
entity or business unit, as calculated by Terex and acceptable to Administrative
Agent in its reasonable discretion. On each subsequent determination date
occurring within one year after the consummation of a Permitted Acquisition, the
entity's Pro Forma Acquisition EBITDA shall include the Pro Forma Acquisition
EBITDA only for those fiscal quarters in the trailing four-quarter period
occurring prior to the closing of such Permitted Acquisition.
"Pro Rata Percentage" of any Revolving Credit Lender at any time shall
mean the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment.
"Purchase Money Indebtedness" shall mean any Indebtedness of a person
to any seller or other person incurred to finance the acquisition (including in
the case of a Capital Lease Obligation, the lease) of any after acquired real or
personal tangible property or assets related to the business of Terex or the
Subsidiaries and which is incurred substantially concurrently with such
acquisition and is secured only by the assets so financed.
"Refinancing Indebtedness" shall have the meaning assigned to such term
in Section 6.01(n).
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation G" shall mean Regulation G of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Business" shall mean any business in the manufacture or sale
of capital goods or parts or services, or otherwise reasonably related,
ancillary or complementary to the businesses of Terex and the Subsidiaries on
the date hereof.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"Remedial Action" shall mean (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any Governmental Authority or voluntarily undertaken to: (i) clean
up, remove, treat, xxxxx or in any other way address any Hazardous Material in
the environment; (ii) prevent the Release or threat of Release, or minimize the
further Release of any Hazardous Material so it does not migrate or endanger or
threaten to endanger public health, welfare or the environment; or (iii) perform
studies and investigations in connection with, or as a precondition to, (i) or
(ii) above.
25
"Required Lenders" shall mean, at any time, Lenders having Loans
(excluding Swingline Loans and A/C Fronted Loans), L/C Exposure, Swingline
Exposure, A/C Fronted Exposure and unused Revolving Credit and Term Loan
Commitments representing at least 51% of the sum of all Loans outstanding
(excluding Swingline Loans and A/C Fronted Loans), L/C Exposure, Swingline
Exposure, A/C Fronted Exposure and unused Revolving Credit and Term Loan
Commitments at such time. For purposes of determining the Required Lenders on
any date, any amounts denominated in an Alternative Currency shall be translated
into dollars at the Dollar Equivalent in effect on the most recent Calculation
Date.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans and to acquire
participations in L/C Disbursements, Swingline Loans and A/C Fronted Loans
hereunder as set forth on Schedule 2.01(a), or in the Assignment and Acceptance
pursuant to which such Lender assumed its Revolving Credit Commitment, as
applicable, as the same may be (a) reduced from time to time pursuant to Section
2.09 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the sum of (a) the aggregate principal amount of all outstanding
Dollar Revolving Loans of such Lender at such time, (b) the Dollar Equivalent of
the aggregate principal amount of all outstanding Revolving Loans of such Lender
that are Alternative Currency Loans at such time and (c) the aggregate amount of
such Lender's L/C Exposure, Swingline Exposure and A/C Fronted Exposure at such
time.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment.
"Revolving Credit Maturity Date" shall mean March 6, 2004.
"Revolving Loans" shall mean the revolving loans made by the Lenders to
any Borrower pursuant to clause (c) of Section 2.01. Each Revolving Loan shall
be a Eurocurrency Revolving Loan or an ABR Revolving Loan.
"Sale and Leaseback" shall have the meaning set forth in Section 6.03.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
"Security Agreement" shall mean the Security Agreement, substantially
in the form of Exhibit H, between Terex, its Subsidiaries party thereto and the
Collateral Agent for the benefit of the Secured Parties.
26
"Security Documents" shall mean the Mortgages, the Security Agreement,
the Pledge Agreement and each of the security agreements, mortgages and other
instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.11.
"Senior Subordinated Notes" shall mean the senior subordinated notes to
be issued by Terex in an aggregate principal amount not to exceed $200,000,000;
provided that such senior subordinated notes shall (a) require no scheduled
payments of principal prior to the date that is 12 months later than the Tranche
B Maturity Date, (b) be subject to subordination provisions no less favorable to
the Lenders than those described in Schedule 1.01(g) and be reasonably
satisfactory in all other respects to the Administrative Agent.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by any Governmental Authority to which banks are subject for any
category of deposits or liabilities customarily used to fund loans or by
reference to which interest rates applicable to Loans are determined. Such
reserve, liquid asset or similar percentages shall include those imposed
pursuant to Regulation D of the Board (and for purposes of Regulation D,
Eurocurrency Loans denominated in dollars shall be deemed to constitute
Eurocurrency Liabilities). Loans shall be deemed to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under Regulation D or any
other applicable law, rule or regulation. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of Terex.
"Subsidiary Borrowers" shall mean, collectively, the Scottish Borrower,
the French Borrower, the Australian Borrower, the Italian Borrower and, after
its accession to this Agreement pursuant to Section 9.19, the German Borrower.
"Subsidiary Guarantee Agreement" shall mean the Guarantee Agreement,
substantially in the form of Exhibit I, made by the Subsidiary Guarantors in
favor of the Collateral Agent for the benefit of the Secured Parties.
"Subsidiary Guarantors" shall mean each person listed on Schedule
1.01(b) and each other person that becomes party to a Subsidiary Guarantee
Agreement as a Guarantor, and the permitted successors and assigns of each such
person.
27
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make loans pursuant to Section 2.22.
"Swingline Exposure" shall mean at any time the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline Exposure
of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage
of the aggregate Swingline Exposure at such time.
"Swingline Lender" shall mean CSFB.
"Swingline Loan" shall mean any loan made by the Swingline Lender
pursuant to its Swingline Commitment.
"Terex Guarantee Agreement" shall mean the Guarantee Agreement
substantially in the form of Exhibit K, made by Terex in favor of the Collateral
Agent for the benefit of the Secured Parties.
"Term Borrowing" shall mean a Borrowing comprised of Tranche A Term
Loans or Tranche B Term Loans.
"Term Loan Commitments" shall mean the Tranche A Commitments and the
Tranche B Commitments.
"Term Loan Repayment Dates" shall mean the Tranche A Term Loan
Repayment Dates and the Tranche B Term Loan Repayment Dates.
"Term Loans" shall mean the Tranche A Term Loans and the Tranche B Term
Loans.
"Total Debt" shall mean, as of any date of determination, without
duplication, the aggregate principal amount of Indebtedness of Terex and its
Subsidiaries outstanding as of such date, determined on a consolidated basis
(other than Indebtedness of the type referred to in clause (i) of the definition
of the term "Indebtedness", except to the extent of any unreimbursed drawings
thereunder). For purposes of calculating the Leverage Ratio on any date, the
amount of Total Debt on such date shall be reduced by the amount, if any, that
cash on the balance sheet of Terex and its consolidated Subsidiaries on such
date exceeds $5,000,000.
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
"Total Senior Secured Debt" shall mean, as of any date of
determination, the sum of the aggregate principal amount of all (a) Loans
outstanding as of such date, (b) unreimbursed L/C Disbursements as of such date,
(c) Capital Lease Obligations of Terex and the Subsidiaries outstanding as of
such date and (d) other Indebtedness of Terex and the Subsidiaries that is
secured by any assets of Terex and the Subsidiaries.
"Tranche A Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche A Term Loans hereunder as set forth on
Schedule 2.01(a), or in the Assignment and Acceptance pursuant to which such
Lender assumed its Tranche A Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
28
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.
"Tranche A Maturity Date" shall mean March 6, 2004.
"Tranche A Term Borrowing" shall mean a Borrowing comprised of Tranche
A Term Loans.
"Tranche A Term Loan Availability Period" shall mean the period from
and including the Closing Date, to and including the earlier of (a) the date of
consummation of the Acquisition and (b) June 30, 1998.
"Tranche A Term Loan Closing Date" shall mean each date on which
Tranche A Term Loans are made.
"Tranche A Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(i).
"Tranche A Term Loans" shall mean the term loans made by the Lenders to
any Borrower pursuant to clause (a) of Section 2.01. Each Tranche A Term Loan
shall be either a Eurocurrency Term Loan or an ABR Term Loan.
"Tranche B Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche B Term Loans hereunder as set forth on
Schedule 2.01(a), or in the Assignment and Acceptance pursuant to which such
Lender assumed its Tranche B Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.
"Tranche B Maturity Date" shall mean March 6, 2005.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of Tranche
B Term Loans.
"Tranche B Term Loan Closing Date" shall mean the Closing Date.
"Tranche B Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(ii).
"Tranche B Term Loans" shall mean the term loans made by the Lenders to
Terex pursuant to clause (b) of Section 2.01. Each Tranche B Term Loan shall be
either a Eurocurrency Term Loan or an ABR Term Loan.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined and the currency in which such Loan or the Loans
comprising such Borrowing is denominated. For purposes hereof, the term "Rate"
shall include the Adjusted LIBO Rate, the Alternate Base Rate and the rate with
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respect to any Foreign Base Rate Loan, and currency shall include dollars and
any Alternative Currency permitted hereunder.
"wholly owned Subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such person or one or
more wholly owned subsidiaries of such person or by such person and one or more
wholly owned subsidiaries of such person; provided that each of Terex Cranes,
Inc., P.P.M. Cranes, Inc., P.P.M. S.A., and any future wholly owned subsidiaries
of any of the foregoing shall be deemed to be wholly owned Subsidiaries, in each
case so long as Terex or one or more wholly owned Subsidiaries maintains a
percentage ownership interest in such entity equal to or greater than such
ownership interest (on a fully diluted basis) on the later of (a) the date
hereof or (b) the date such entity is incorporated or acquired by Terex or one
or more wholly owned Subsidiaries.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that if Terex notifies the Administrative Agent
that Terex wishes to amend any covenant in Article VI or any related definition
to eliminate the effect of any change in GAAP occurring after the date of this
Agreement on the operation of such covenant (or if the Administrative Agent
notifies Terex that the Required Lenders wish to amend Article VI or any related
definition for such purpose), then Terex's compliance with such covenant shall
be determined on the basis of GAAP in effect immediately before the relevant
change in GAAP became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to Terex and the Required Lenders.
SECTION 1.03. Exchange Rates. On each Calculation Date, the
Administrative Agent shall determine the Exchange Rate as of such Calculation
Date to be used for calculating relevant Dollar Equivalent and Alternative
Currency Equivalent amounts. The Exchange Rates so determined shall become
effective on such Calculation Date, shall remain effective until the next
succeeding Calculation Date and shall for all purposes of this Agreement (other
than any provision expressly requiring the use of a current Exchange Rate) be
the Exchange Rates employed in converting any amounts between the applicable
currencies.
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ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (a) to make Tranche A Term Loans to the
Borrowers, in dollars (in the case of Terex), Marks (in the case of the German
Borrower), Pounds (in the case of the Scottish Borrower) and Francs (in the case
of the French Borrower) on the Closing Date and on a single additional date
prior to the earlier of the expiration of the Tranche A Term Loan Availability
Period and the termination of the Tranche A Term Commitment of such Lender in
accordance with the terms hereof, in an aggregate principal amount not to exceed
its Tranche A Term Commitment; provided, however, that the Dollar Equivalent of
the Alternative Currency Term Loans in any Alternative Currency made by all
Tranche A Lenders shall not exceed the sublimit for such Alternative Currency
set forth on Schedule 2.01(b), (b) to make Tranche B Term Loans to Terex, in
dollars, on the Closing Date in accordance with the terms hereof, in an
aggregate principal amount not to exceed its Tranche B Term Commitment, and (c)
to make Revolving Loans to the Borrowers, at any time and from time to time on
or after the date hereof, and until the earlier of the Revolving Credit Maturity
Date and the termination of the Revolving Credit Commitment of such Lender in
accordance with the terms hereof, in dollars (in the case of Terex), Marks (in
the case of the German Borrower), Pounds (in the case of the Scottish Borrower)
and Francs (in the case of the French Borrower) in an aggregate principal amount
at any time outstanding that will not result in such Lender's Revolving Credit
Exposure exceeding such Lender's Revolving Credit Commitment; provided, however,
that the Alternative Currency Revolving Credit Exposure with respect to any
Alternative Currency shall not exceed the sublimit for such Alternative Currency
set forth in Schedule 2.01(b). Within the limits set forth in clause (c) of the
preceding sentence and subject to the terms, conditions and limitations set
forth herein, the Borrowers may borrow, pay or prepay and reborrow Revolving
Loans. Amounts paid or prepaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan (other than A/C Fronted Loans and
Swingline Loans) shall be made as part of a Borrowing consisting of Loans made
by the Lenders ratably in accordance with their applicable Tranche A
Commitments, Tranche B Commitments or Revolving Credit Commitments, as
applicable; provided, however, that the failure of any Lender to make any Loan
shall not in itself relieve any other Lender of its obligation to lend hereunder
(it being understood, however, that no Lender shall be responsible for the
failure of any other Lender to make any Loan required to be made by such other
Lender). Except for Loans deemed made pursuant to Section 2.02(f), the Loans
comprising any Borrowing shall be in an aggregate principal amount that is (i)
an integral multiple of $100,000 (or the Alternative Currency Equivalent
thereof) and not less than $2,500,000 (or the Alternative Currency Equivalent
thereof) or (ii) equal to the remaining available balance of the applicable
Commitments. As provided in Section 2.03, each request for a Borrowing shall
state the amount requested in dollars (whether or not such Borrowing is to be an
Alternative Currency Borrowing). To the extent any Tranche A Term Loans are made
as Alternative Currency Loans, such Loans shall continue to be Alternative
Currency Loans (denominated and payable in the Alternative Currency in which
such Loans are advanced) for as long as they are outstanding under this
Agreement.
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(b) Subject to Sections 2.08, 2.15 and 2.24, (i) each Dollar Borrowing
shall be comprised entirely of ABR Loans or Eurocurrency Loans as Terex may
request pursuant to Section 2.03 and (ii) each Alternative Currency Borrowing
shall be comprised entirely of Eurocurrency Loans. Each Lender may at its option
make any Eurocurrency Loan by causing any domestic or foreign branch of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the applicable Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that no Borrower shall
be entitled to request any Borrowing that, if made, would result in more than 15
Eurocurrency Borrowings outstanding hereunder at any time. For purposes of the
foregoing, Borrowings having different Interest Periods or denominated in
different currencies, regardless of whether they commence on the same date,
shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Dollar Loan to be made by it hereunder on the proposed
date thereof by wire transfer of immediately available funds to such account in
New York City as the Administrative Agent may designate not later than 11:00
a.m., New York City time, and the Administrative Agent shall, promptly upon
receipt thereof, credit the amounts so received to an account as designated by
Terex, in the applicable Borrowing Request or, if a Borrowing shall not occur on
such date because any condition precedent herein specified shall not have been
met, return the amounts so received to the respective Lenders. Each Lender shall
make each Alternative Currency Loan to be made by it hereunder on the proposed
date thereof by wire transfer of immediately available funds to such account in
the jurisdiction of the applicable Alternative Currency as the Administrative
Agent may designate for such purposes not later than 11:00 a.m., local time of
such jurisdiction, and the Administrative Agent shall, promptly upon receipt
thereof, credit the amounts so received to an account as designated by the
applicable Borrower in the applicable Borrowing Request or, if a Borrowing shall
not occur on such date because any condition precedent herein specified shall
not have been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the applicable Borrower on such
date a corresponding amount. If the Administrative Agent shall have so made
funds available then, to the extent that such Lender shall not have made such
portion available to the Administrative Agent, such Lender and the applicable
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Administrative Agent at (i) in the case of any Borrower,
the interest rate applicable at the time to the Loans comprising such Borrowing
and (ii) in the case of such Lender, a rate determined by the Administrative
Agent to represent its cost of overnight or short-term funds in the applicable
currency (which determination shall be conclusive absent manifest error). If
such Lender shall repay to the Administrative Agent such corresponding amount,
such amount shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement.
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(e) Notwithstanding any other provision of this Agreement, no Borrower
shall be entitled to request any Interest Period with respect to any
Eurocurrency Borrowing or A/C Fronted Fixed Rate Loan that would end after the
Revolving Credit Maturity Date or the Tranche A Maturity Date or the Tranche B
Maturity Date, as the case may be.
(f) If any Issuing Bank shall not have received from any Borrower the
payment required to be made by it pursuant to Section 2.23(e) within the time
specified in such Section, such Issuing Bank will promptly notify the
Administrative Agent of the L/C Disbursement and the Administrative Agent will
promptly notify each Revolving Credit Lender of such L/C Disbursement and its
Pro Rata Percentage thereof. In the case of Letters of Credit denominated in
dollars, each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 2:00 p.m., New York
City time, on such date (or, if such Revolving Credit Lender shall have received
such notice later than 12:00 (noon), New York City time, on any day, not later
than 10:00 a.m., New York City time, on the immediately following Business Day),
an amount in dollars equal to such Lender's Pro Rata Percentage of such L/C
Disbursement (it being understood that such amount shall be deemed to constitute
an ABR Revolving Loan of such Lender and such payment shall be deemed to have
reduced the L/C Exposure), and the Administrative Agent will promptly pay to the
applicable Issuing Bank amounts so received by it from the Revolving Credit
Lenders. In the case of Letters of Credit denominated in Marks, Pounds or
Francs, each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 2:00 p.m., local time
of the jurisdiction of such Alternative Currency, on such date (or if such
Revolving Credit Lender shall have received such notice later than 12:00 (noon),
local time of such jurisdiction, on the immediately following Business Day), an
amount in such Alternative Currency equal to such Lender's Pro Rata Percentage
of such L/C Disbursement (it being understood that such amount shall be deemed
to constitute an Alternative Currency Revolving Loan of such Lender and such
payment shall be deemed to have reduced the L/C Exposure), and the
Administrative Agent will promptly pay to the applicable Issuing Bank amounts so
received by it from the Revolving Credit Lenders. In the case of Letters of
Credit denominated in any Alternative Currency except for Marks, Pounds or
Francs, the Administrative Agent shall notify each Revolving Credit Lender of
the Dollar Equivalent of the L/C Disbursement and of such Revolving Credit
Lender's Pro Rata Percentage thereof, and each Revolving Credit Lender shall pay
by wire transfer of immediately available funds to the Administrative Agent not
later than 2:00 p.m., New York City time, on such date (or, if such Revolving
Credit Lender shall have received such notice later than 12:00 (noon), New York
City time, on any day, not later than 10:00 a.m., New York city time, on the
immediately following Business Day), an amount in dollars equal to such Lender's
Pro Rata Percentage of such L/C Disbursement (it being understood that such
amount shall be deemed to constitute an ABR Revolving Loan of such Lender and
such payment shall be deemed to have reduced the L/C Exposure), and the
Administrative Agent will promptly pay to the applicable Issuing Bank amounts so
received by it from the Revolving Credit Lenders. The Administrative Agent will
promptly pay to the applicable Issuing Bank any amounts received by it from any
Borrower pursuant to Section 2.23(e) prior to the time that any Revolving Credit
Lender makes any payment pursuant to this paragraph (f); any such amounts
received by the Administrative Agent thereafter will be promptly remitted by the
Administrative Agent to the Revolving Credit Lenders that shall have made such
payments and to the applicable Issuing Bank, as their interests may appear. If
any Revolving Credit Lender shall not have made its Pro Rata Percentage of such
L/C Disbursement available to the Administrative Agent as provided above, such
Lender and the applicable Borrower severally agree to pay interest on such
33
amount, for each day from and including the date such amount is required to be
paid in accordance with this paragraph to but excluding the date such amount is
paid, to the Administrative Agent for the account of the applicable Issuing Bank
at (i) in the case of any Borrower, a rate per annum equal to the interest rate
applicable to Revolving Loans pursuant to Section 2.06(a), and (ii) in the case
of such Lender, for the first such day, a rate determined by the Administrative
Agent to represent its cost of overnight funds in the applicable currency, and
for each day thereafter, (x) if such L/C Disbursement is denominated in dollars,
the Alternate Base Rate, and (y) if such L/C Disbursement is denominated in an
Alternative Currency, the applicable Foreign Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing
(other than a Swingline Loan, an A/C Fronted Loan or a deemed Borrowing pursuant
to Section 2.02(f), as to which this Section 2.03 shall not apply), the
applicable Borrower shall hand deliver or telecopy to the Administrative Agent a
duly completed Borrowing Request (or telephone the Administrative Agent,
promptly confirmed with a written and duly completed Borrowing Request) (a) in
the case of a Eurocurrency Borrowing (other than an Alternative Currency
Borrowing), not later than 12:00 (noon), New York City time, three Business Days
before a proposed Borrowing, (b) in the case of an Alternative Currency
Borrowing, not later than 12:00 (noon), local time of the jurisdiction of such
Alternative Currency, three Business Days before the date of the proposed
Borrowing and (c) in the case of an ABR Borrowing, not later than 1:00 p.m., New
York City time, one Business Day before a proposed Borrowing. Each Borrowing
Request (including a telephonic Borrowing Request) shall be irrevocable, shall
be signed by or on behalf of such Borrower and shall specify the following
information: (i) whether such Borrowing is to be a Dollar Borrowing or an
Alternative Currency Borrowing; (ii) whether the Borrowing then being requested
is to be a Tranche A Term Borrowing, Tranche B Term Borrowing or a Revolving
Credit Borrowing; (iii) if such Borrowing is to be denominated in dollars,
whether it is to be a Eurocurrency Borrowing or an ABR Borrowing; (iv) the date
of such Borrowing (which shall be a Business Day); (v) the number and location
of the account to which funds are to be disbursed (which shall be an account
that complies with the requirements of Section 2.02(c)); (vi) the amount of such
Borrowing (which shall be specified in dollars, even if such Borrowing is to be
made in an Alternative Currency); (vii) subject to the limitations of Section
2.01, the currency of such Borrowing; and (viii) if such Borrowing is to be a
Eurocurrency Borrowing, the initial Interest Period with respect thereto;
provided, however, that, notwithstanding any contrary specification in any
Borrowing Request, each requested Borrowing shall comply with the requirements
set forth in Section 2.02. If no election as to the currency of Borrowing is
specified in any such notice, then the requested Borrowing shall be denominated
in the only currency permitted to be borrowed by such Borrower pursuant to
Section 2.01. If no election as to the Type of Borrowing is specified in any
such notice, then the requested Borrowing shall be an ABR Borrowing if
denominated in dollars or a Eurocurrency Borrowing if denominated in an
Alternative Currency. If no Interest Period with respect to any Eurocurrency
Borrowing is specified in any such notice, then such Borrower shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise the applicable Lenders of any notice given pursuant
to this Section 2.03 (and the contents thereof), of each Lender's portion of the
requested Borrowing and the account to which Loans made in connection with the
requested Borrowing are to be wired.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) Each Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of the Swingline Lender or each other Lender entitled thereto (i) the
then unpaid principal amount of each Swingline Loan, on the last day of the
34
Interest Period applicable to such Loan or, if earlier, on the Revolving Credit
Maturity Date, (ii) the principal amount of each Term Loan of such Lender as
provided in Section 2.11 and (iii) the then unpaid principal amount of each
Revolving Loan and A/C Fronted Loan on the Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of each Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from each Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from each Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) above shall be prima facie evidence of the existence and amounts of
the obligations therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of any Borrower to repay
the Loans in accordance with their terms.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall execute and deliver to such
Lender a promissory note payable to the order of such Lender (or, if requested
by such Lender, to such Lender and its registered assigns) and in a form and
substance reasonably acceptable to the Administrative Agent and the Borrower.
Notwithstanding any other provision of this Agreement, in the event any Lender
shall request and receive a promissory note payable to such Lender and its
registered assigns, the interests represented by such note shall at all times
(including after any assignment of all or part of such interests pursuant to
Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) Terex agrees to pay to each Lender in dollars,
through the Administrative Agent, on the last day of March, June, September and
December in each year and on each date on which any Tranche A Commitment or
Revolving Credit Commitment of such Lender shall expire or be terminated as
provided herein, a facility fee (a "Facility Fee") equal to the Applicable
Percentage per annum in effect from time to time on the total amount of the
Tranche A Commitments and, without duplication, Tranche A Term Loans and the
total amount (whether used or unused) of the Revolving Credit Commitments of
such Lender (but not the Tranche B Commitments, the A/C Fronting Commitments or
the Swingline Commitments) during the preceding quarter (or other period
commencing with the date hereof or ending with the Revolving Credit Maturity
Date or Tranche A Maturity Date, as applicable, or the date on which the Tranche
A Commitments and Revolving Credit Commitments of such Lender shall expire or be
terminated); provided, however, that if any Revolving Credit Exposure remains
outstanding following any such expiration or termination of the Revolving Credit
Commitments, the Facility Fees with respect to such Revolving Credit Exposure
shall continue to accrue for so long as such Revolving Credit Exposure remains
outstanding and shall be payable on demand. All Facility Fees shall be computed
on the basis of the actual number of days elapsed in a year of 360 days. The
35
Facility Fee due to each Lender shall commence to accrue on the date hereof and
shall cease to accrue on the date on which the Tranche A Commitment or Revolving
Credit Commitment, as the case may be, of such Lender shall expire or be
terminated as provided herein and there is not any remaining Revolving Credit
Exposure.
(b) Each Borrower agrees to pay to the Administrative Agent in dollars,
for its own account, the administrative fees set forth in the Fee Letter at the
times and in the amounts specified therein (the "Administrative Agent Fees").
(c) Each Borrower agrees to pay (i) to each Revolving Credit Lender,
through the Administrative Agent, on the last day of March, June, September and
December of each year and on the date on which the Revolving Credit Commitment
of such Lender shall be terminated as provided herein, a fee (an "L/C
Participation Fee") calculated on such Lender's Pro Rata Percentage of the
average daily aggregate L/C Exposure (excluding the portion thereof attributable
to unreimbursed L/C Disbursements) during the preceding quarter (or shorter
period commencing with the date hereof or ending with the Revolving Credit
Maturity Date or the date on which all Letters of Credit have been canceled or
have expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate equal to the Applicable Percentage from time to time used
to determine the interest rate on Revolving Credit Borrowings comprised of
Eurocurrency Loans pursuant to Section 2.06, and (ii) to each Issuing Bank with
respect to each Letter of Credit issued by it on the last day of March, June,
September and December in each year and on each date on which any Revolving
Credit Commitment shall expire or be terminated as set forth herein a fronting
fee equal to 0.125% per annum on the amount of Letters of Credit issued by such
Issuing Bank and outstanding during the preceding quarter (or other period
commencing on the date hereof or ending with the Revolving Credit Maturity Date
or the date on which the Revolving Credit Commitments shall expire or be
terminated) (the "Issuing Bank Fees"). All L/C Participation Fees and Issuing
Bank Fees shall be computed on the basis of the actual number of days elapsed in
a year of 360 days and shall be payable in dollars.
(d) Except as provided in Section 2.24(e), each A/C Fronting Lender
agrees to pay to each Revolving Credit Lender, through the Administrative Agent,
on each Interest Payment Date with respect to each A/C Fronted Loan made by such
A/C Fronting Lender, a fee (an "A/C Participation Fee") equal to such Revolving
Credit Lender's Pro Rata Percentage of the Applicable Percentage received by
such A/C Fronting Lender from or on behalf of the applicable Borrower on such
Interest Payment Date in respect of such A/C Fronted Loan. All A/C Participation
Fees shall be payable (i) in the currency in which they were received by the A/C
Fronting Lender and (ii) only to the extent received by the A/C Fronting Lender.
(e) Each of the Australian Borrower and the Italian Borrower severally
agrees to pay to the Australian Fronting Lender and the Italian Fronting Lender,
respectively, on the last day of March, June, September and December in each
year and on each date on which the A/C Fronting Commitment of such Lender shall
expire or be terminated as set forth herein a fronting fee equal to 0.125% per
annum on the aggregate principal amount of A/C Fronted Loans of such Lender
outstanding during the preceding quarter (or other period commencing on the date
hereof or ending with the Revolving Credit Maturity Date or the date on which
the A/C Fronting Commitment shall expire or be terminated) (the "A/C Fronting
Fees"). All A/C Fronting Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days and shall be payable in Australian
Dollars or Lire, as the case may be.
36
(f) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the applicable Issuing Bank. Once paid, none of the Fees shall be refundable
under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing, including each Swingline
Loan, shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be, when the Alternate
Base Rate is determined by reference to the Prime Rate and over a year of 360
days at all other times) at a rate per annum equal to the sum of (i) the
Alternate Base Rate and (ii) the Applicable Percentage for such Loans in effect
from time to time.
(b) Subject to the provisions of Section 2.07, each Foreign Base Rate
Loan shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 360 days or, in the case of Foreign Base Rate Loans
denominated in Pounds, 365 or 366 days, as the case may be) at a rate per annum
equal to the sum of (i) the rate set forth in the definition of the term
"Foreign Base Rate Loans" and (ii) the Applicable Percentage for ABR Revolving
Loans in effect from time to time.
(c) Subject to the provisions of Section 2.07, the Loans comprising
each Eurocurrency Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days or, in the case of
Eurocurrency Loans denominated in Pounds, 365 or 366 days, as the case may be)
at a rate per annum equal to the sum of (i) the Adjusted LIBO Rate for the
Interest Period in effect for such Borrowing and (ii) the Applicable Percentage
for such Loans in effect from time to time.
(d) Interest on each Loan shall be payable (i) on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement and
(ii) in the currency in which such Loan is denominated. The applicable Alternate
Base Rate or Adjusted LIBO Rate for each Interest Period or day within an
Interest Period, as the case may be, shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.07. Default Interest. If any Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
such Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) (a) in the case of the Loans, the
rate that would otherwise be applicable thereto pursuant to Section 2.06 plus
2%, (b) in the case of reimbursement obligations with respect to L/C
Disbursements owing in dollars, the rate applicable to ABR Revolving Loans plus
2% and (c) in the case of reimbursement obligations with respect to L/C
Disbursements owing in Alternative Currencies, the rate applicable to Foreign
Base Rate Loans that are Revolving Credit Loans for the Applicable Alternative
Currency plus 2%, (d) in the case of any interest payable on any Loan or
reimbursement obligation with respect to any L/C Disbursement or any Facility
Fee or other amount payable hereunder, at a rate per annum equal to the rate
applicable to ABR Loans (or, in the case of interest, fees or amounts owing on
account of obligations denominated in Alternative Currencies, Foreign Base Rate
Loans) that are Tranche A Term Loans, Tranche B Term Loans or Revolving Loans,
as applicable, plus 2% (or, in the case of fees, reimbursements or any such
37
other amounts that do not relate to Tranche A Term Loans, Tranche B Term Loans
or the Revolving Credit Exposure, the Alternate Base Rate plus 3.00%).
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurocurrency Borrowing the Administrative Agent shall have
determined that (a) deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the relevant market, or (b) the
rates at which such deposits are being offered will not adequately and fairly
reflect the cost to any Lender of making or maintaining its Eurocurrency Loan
during such Interest Period, or (c) reasonable means do not exist for
ascertaining the Adjusted LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopy notice explaining such
determination to the applicable Borrower and the Lenders. In the event of any
such determination, until the Administrative Agent shall have advised such
Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist, any request by such Borrower for a Eurocurrency Borrowing
denominated in dollars pursuant to Section 2.03 or 2.10 shall be deemed to be a
request for an ABR Borrowing. Each determination by the Administrative Agent
hereunder shall be conclusive absent manifest error and any request by such
Borrower for a Eurocurrency Borrowing denominated in any Alternative Currency
pursuant to Section 2.03 or 2.10 shall be deemed to be a request for a Foreign
Base Rate Loan.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Tranche
B Commitments shall automatically terminate at 5:00 p.m., New York City time, on
the Closing Date. The Tranche A Commitments shall automatically be reduced on
the date of each borrowing of Tranche A Term Loans by an amount equal to the
Dollar Equivalent of the aggregate principal amount of Tranche A Term Loans so
borrowed, and any remaining unused Tranche A Commitments shall automatically
terminate at 5:00 p.m., New York City time, on the last day of the Tranche A
Term Loan Availability Period; provided, however, that upon not less than five
Business Days' prior irrevocable written or telecopy notice from Terex, Terex
may elect to convert the unused Tranche A Commitments to Revolving Credit
Commitments on or prior to the last day of the Tranche A Term Loan Availability
Period. The Revolving Credit Commitments, the Swingline Commitments, the A/C
Fronting Commitments and the L/C Commitment shall automatically terminate on the
Revolving Credit Maturity Date. Notwithstanding the foregoing, all the
Commitments shall automatically terminate at 5:00 p.m., New York City time, on
April 30, 1998, if the initial Credit Event shall not have occurred by such
time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, Terex may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Tranche A Commitments, the Tranche B Commitments or the Revolving Credit
Commitments; provided, however, that (i) each partial reduction of either of the
Term Loan Commitments or the Revolving Credit Commitments shall be in an
integral multiple of $1,000,000 and in a minimum amount of $5,000,000 and (ii)
the Total Revolving Credit Commitment shall not be reduced to an amount that is
less than the sum of the Aggregate Revolving Credit Exposure at the time.
(c) Each reduction in either of the Term Loan Commitments or the
Revolving Credit Commitments hereunder shall be made ratably among the Lenders
in accordance with their respective applicable Commitments. Terex shall pay to
the Administrative Agent for the account of the applicable Lenders, on the date
38
of each termination or reduction, the Facility Fees on the amount of any Tranche
A Commitments or Revolving Credit Commitments so terminated or reduced accrued
to but excluding the date of such termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. Each Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 1:00 p.m., New York City time, one
Business Day prior to conversion, to convert any Eurocurrency Borrowing
denominated in dollars into an ABR Borrowing, (b) not later than 12:00 (noon),
New York City time (or local time in the jurisdiction of the applicable
Alternative Currency, in the case of a continuation of the Interest Period for a
Eurocurrency Borrowing in an Alternative Currency), three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurocurrency
Borrowing denominated in dollars or to continue any Eurocurrency Borrowing as a
Eurocurrency Borrowing in the same currency for an additional Interest Period,
and (c) not later than 12:00 (noon), New York City time (or local time in the
jurisdiction of the applicable Alternative Currency), three Business Days prior
to conversion, to convert the Interest Period with respect to any Eurocurrency
Borrowing to another permissible Interest Period, subject in each case to the
following:
(i) each conversion or continuation shall be made pro rata
among the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and 2.02(b) regarding the principal amount and maximum number of
Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the
new Loan of such Lender resulting from such conversion and reducing the
Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurocurrency Loan
(or portion thereof) being converted shall be paid by such Borrower at
the time of conversion;
(iv) if any Eurocurrency Borrowing is converted at a time
other than the end of the Interest Period applicable thereto, such
Borrower shall pay, upon demand, any amounts due to the Lenders
pursuant to Section 2.16;
(v) any portion of a Borrowing (other than an Alternative
Currency Borrowing) maturing or required to be repaid in less than one
month may not be converted into or continued as a Eurocurrency
Borrowing;
(vi) any portion of a Eurocurrency Borrowing denominated in
dollars that cannot be converted into or continued as a Eurocurrency
Borrowing by reason of the immediately preceding clause shall be
automatically converted at the end of the Interest Period in effect for
such Borrowing into an ABR Borrowing, and any portion of an Alternative
Currency Borrowing required to be repaid in less than one month may be
converted, with the consent of the Administrative Agent (which shall
not be unreasonably withheld), to an Interest Period ending on the
39
date that such Borrowing is required to be repaid;
(vii) no Interest Period may be selected for any Eurocurrency
Borrowing that is a Tranche A Term Borrowing or a Tranche B Term
Borrowing that would end later than a Tranche A Term Loan Repayment
Date or Tranche B Term Loan Repayment Date, respectively, occurring on
or after the first day of such Interest Period if, after giving effect
to such selection, the aggregate outstanding amount of (A) the
Eurocurrency Term Borrowings that are Tranche A Term Borrowings or
Tranche B Term Borrowings, as applicable, with Interest Periods ending
on or prior to such Tranche A Term Loan Repayment Date or Tranche B
Term Loan Repayment Date and (B) the ABR Term Borrowings would not be
at least equal to the principal amount of Term Borrowings to be paid on
such Tranche A Term Loan Repayment Date or Tranche B Term Loan
Repayment Date; and
(viii) upon notice to any Borrower from the Administrative
Agent given at the request of the Required Lenders, after the
occurrence and during the continuance of a Default or Event of Default,
(A) no outstanding Dollar Borrowing may be converted into, or continued
as, a Eurocurrency Borrowing, (B) unless repaid, each Eurocurrency
Borrowing denominated in dollars shall be converted to an ABR Borrowing
at the end of the Interest Period applicable thereto and (C) no
Interest Period in excess of one month may be selected for any
Alternative Currency Borrowing.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the applicable Borrower requests be converted or continued, (ii)
whether such Borrowing is to be converted to or continued as a Eurocurrency
Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such
Borrowing is to be converted to or continued as a Eurocurrency Borrowing, the
Interest Period with respect thereto. If no Interest Period is specified in any
such notice with respect to any conversion to or continuation as a Eurocurrency
Borrowing, such Borrower shall be deemed to have selected an Interest Period of
one month's duration. The Administrative Agent shall advise the Lenders of any
notice given pursuant to this Section 2.10 and of each Lender's portion of any
converted or continued Borrowing. If such Borrower shall not have given notice
in accordance with this Section 2.10 to continue any Borrowing into a subsequent
Interest Period (and shall not otherwise have given notice in accordance with
this Section 2.10 to convert such Borrowing), such Borrowing shall, at the end
of the Interest Period applicable thereto (unless repaid pursuant to the terms
hereof), (i) in the case of a Dollar Borrowing, automatically be continued into
a new Interest Period as an ABR Borrowing and (ii) in the case of an Alternative
Currency Borrowing, automatically be continued into a new Interest Period of one
month. Notwithstanding any contrary provisions herein, the currency of an
outstanding Borrowing may not be changed in connection with any conversion or
continuation of such Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) (i) Each Borrower shall
pay to the Administrative Agent, for the account of the Lenders, on the dates
set forth below, or if any such date is not a Business Day, on the next
succeeding Business Day (each such date being a "Tranche A Term Loan Repayment
Date"), a principal amount of the Tranche A Term Loans (as adjusted from time to
time pursuant to Sections 2.12(b) and 2.13(g)) equal to the percentage set
40
forth below opposite such date multiplied by the aggregate principal amount of
all Tranche A Term Loans made to such Borrower hereunder and outstanding on the
last Tranche A Term Loan Closing Date, together in each case with accrued and
unpaid interest on the principal amount to be paid to but excluding the date of
such payment:
Date Percentage
---- ----------
June 30, 1999 4.00%
September 30, 1999 4.00%
December 31, 1999 4.00%
March 31, 2000 4.00%
June 30, 2000 4.00%
September 30, 2000 4.00%
December 31, 2000 4.00%
March 31, 2001 4.00%
June 30, 2001 5.25%
September 30, 2001 5.25%
December 31, 2001 5.25%
March 31, 2002 5.25%
June 30, 2002 5.25%
September 30, 2002 5.25%
December 31, 2002 5.25%
March 31, 2003 5.25%
June 30, 2003 6.50%
September 30, 2003 6.50%
December 31, 2003 6.50%
Tranche A Maturity Date 6.50%
(ii) Terex shall pay to the Administrative Agent, for the account of
the Lenders, on the dates set forth below or, if any such date is not a Business
Day, on the next succeeding Business Day (each such date being a "Tranche B Term
Loan Repayment Date"), a principal amount of the Tranche B Term Loans (as
adjusted from time to time pursuant to Sections 2.12(b) and 2.13(g)) equal to
the percentage set forth below opposite such date multiplied by the aggregate
principal amount of all Tranche B Term Loans made on the Closing Date, together
in each case with accrued and unpaid interest on the principal amount to be paid
to but excluding the date of such payment:
Date Percentage
---- ----------
June 30, 1998 0.25%
September 30, 1998 0.25%
December 31, 1998 0.25%
March 31, 1999 0.25%
June 30, 1999 0.25%
41
Date Percentage
---- ----------
June 30, 1998 0.25%
September 30, 1999 0.25%
December 31, 1999 0.25%
March 31, 2000 0.25%
June 30, 2000 0.25%
September 30, 2000 0.25%
December 31, 2000 0.25%
March 31, 2001 0.25%
June 30, 2001 0.25%
September 30, 2001 0.25%
December 31, 2001 0.25%
March 31, 2002 0.25%
June 30, 2002 0.25%
September 30, 2002 0.25%
December 31, 2002 0.25%
March 31, 2003 0.25%
June 30, 2003 0.25%
September 30, 2003 0.25%
December 31, 2003 0.25%
March 31, 2004 0.25%
June 30, 2004 23.5%
September 30, 2004 23.5%
December 31, 2004 23.5%
Tranche B Maturity Date 23.5%
(b) To the extent not previously paid, all Tranche A Term Loans and
Tranche B Term Loans shall be due and payable on the Tranche A Maturity Date and
Tranche B Matu rity Date, respectively, together with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of
payment.
(c) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Prepayment. (a) Each Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon
prior written or telecopy notice (or telephone notice promptly confirmed by
written or telecopy notice) to the Administrative Agent (i) in the case of a
prepayment of a Eurocurrency Borrowing, given before 12:00 (noon), New York City
time (or, in the case of prepayment of an Alternative Currency Borrowing, local
time of the jurisdiction of such Alternative Currency) three Business Days
before such prepayment and (ii) in the case of a prepayment of ABR Loans or
Foreign Base Rate Loans, given before 1:00 p.m. local time, one Business Day
before such prepayment; provided, however, that each partial prepayment shall be
in an amount that is an integral multiple of $100,00 (or the Alternative
42
Currency Equivalent thereof) and not less than $2,500,000 (or the Alternative
Currency Equivalent thereof).
(b) Optional prepayments of Term Loans shall be allocated against the
then-outstanding Tranche A Term Loans and Tranche B Term Loans pro rata, and
such prepayments shall be applied (i) first, against the remaining scheduled
installments of principal due in respect of the Tranche A Term Loans and Tranche
B Term Loans under Sections 2.11(a)(i) and (ii), respectively, in the next
twelve months in the order of maturity and (ii) second, pro rata against such
remaining scheduled installments of principal.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the applicable Borrower to prepay such Borrowing by
the amount stated therein on the date stated therein. All prepayments under this
Section 2.12 shall be subject to Section 2.16 but otherwise without premium or
penalty. All prepayments under this Section 2.12 shall be accompanied by accrued
interest on the principal amount being prepaid to the date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any
termination of all the Revolving Credit Commitments, each Borrower shall repay
or prepay all its outstanding Revolving Credit Borrowings, all outstanding
Swingline Loans and all outstanding A/C Fronted Loans on the date of such
termination. In the event of any partial reduction of the Revolving Credit
Commitments, then at or prior to the effective date of such reduction, the
Administrative Agent shall notify the Borrowers and the Revolving Credit Lenders
of the Aggregate Revolving Credit Exposure after giving effect thereto. If at
any time, as a result of such a partial reduction or termination, as a result of
fluctuations in exchange rates or otherwise, the Aggregate Revolving Credit
Exposure would exceed the Total Revolving Credit Commitment or the Alternative
Currency Revolving Credit Exposure in any Alternative Currency would exceed the
sublimit for such Alternative Currency set forth on Schedule 2.01(b), then the
Borrowers shall (i) on the date of such reduction or termination of Revolving
Credit Commitments or (ii) within three Business Day following notice from the
Administrative Agent of any such fluctuation in exchange rate or otherwise,
repay or prepay Revolving Credit Borrowings, Swingline Loans or A/C Fronted
Loans (or a combination thereof) in an amount sufficient to eliminate such
excess.
(b) Not later than the third Business Day following the receipt of Net
Cash Proceeds in respect of any Asset Sale (other than (i) any Asset Sale the
Net Cash Proceeds of which are not greater than $250,000 from any single event
or series of related events and (ii) Asset Sales the aggregate Net Cash Proceeds
of which are not greater than $5,000,000 in any fiscal year of Terex), the
outstanding Term Loans shall be prepaid in accordance with Section 2.13(g) in an
aggregate principal amount equal to 100% of such Net Cash Proceeds.
(c) In the event and on each occasion that an Equity Issuance occurs,
then substantially simultaneously with (and in any event not later than the
third Business Day next following) the receipt of Net Cash Proceeds in respect
of such Equity Issuance, outstanding Term Loans shall be prepaid in accordance
with Section 2.13(g) in an aggregate principal amount equal to 100% of such Net
Cash Proceeds; provided, however, that no such prepayment shall be required if
(i) the Consolidated Leverage Ratio as of the end of the most recent four fiscal
quarters for which financial statements shall have been delivered pursuant to
Section 5.04(a) or (b), as applicable, shall be less than 3.00 to 1.00, (ii)
Terex shall have received at least $150,000,000 in gross cash proceeds from
43
the issuance of Senior Subordinated Notes and shall have used the Net Cash
Proceeds thereof either to prepay Term Loans pursuant to Section 2.13(e) or to
finance the Acquisition or another Permitted Acquisition or (iii) (A) Terex
shall have received at least $100,000,000 in gross cash proceeds from the
issuance of Senior Subordinated Notes and shall have used the Net Cash Proceeds
thereof to prepay Term Loans pursuant to Section 2.13(e) and (B) the
Consolidated Senior Secured Leverage Ratio as of the end of the most recent four
fiscal quarters for which financial statements have been delivered pursuant to
Section 5.04(a) or (b), as applicable, shall be less than 2.75 to 1.00.
(d) No later than the earlier of (i) 90 days after the end of each
fiscal year of Terex, commencing with the fiscal year ending on December 31,
1998, and (ii) the date on which the financial statements with respect to such
fiscal year are delivered pursuant to Section 5.04(a), outstanding Term Loans
shall be prepaid in accordance with Section 2.13(g) in an aggregate principal
amount equal to 50% of Excess Cash Flow for the fiscal year then ended;
provided, however, that no such prepayment shall be required if the Consolidated
Leverage Ratio as of the end of such fiscal year shall be less than 3.85 to
1.00.
(e) In the event that Terex or any Subsidiary shall receive Net Cash
Proceeds from (i) the issuance of any Senior Subordinated Notes or Additional
Subordinated Notes or (ii) the issuance or incurrence of any other Indebtedness
for money borrowed (other than Indebtedness for money borrowed permitted
pursuant to Section 6.01), then, substantially simultaneously with (and in any
event not later than the third Business Day next following) the receipt of such
Net Cash Proceeds, 100% of such Net Cash Proceeds shall be used either (i) to
fund the consideration for the Acquisition or, in the case of the Senior
Subordinated Notes or Additional Subordinated Notes, another Permitted
Acquisition, and/or (ii) to prepay outstanding Term Loans in accordance with
Section 2.13(g) in an aggregate principal amount equal to 100% of such Net Cash
Proceeds.
(f) In the event that there shall occur any Casualty or Condemnation
and, pursuant to the applicable Mortgage, the Casualty Proceeds or Condemnation
Proceeds, as the case may be, are required to be used to prepay the Term Loans,
then the outstanding Term Loans shall be prepaid in accordance with Section
2.13(g) in an aggregate principal amount equal to 100% of such Casualty Proceeds
or Condemnation Proceeds, as the case may be.
(g) Subject to paragraph (j) below, each prepayment of outstanding Term
Loans required to be made pursuant to any paragraph of this Section 2.13 shall
be made by all Borrowers of their respective Term Loans pro rata among the
then-outstanding Tranche A Term Loans and Tranche B Term Loans, and, subject to
paragraph (j) below, shall be applied (i) first against the remaining scheduled
installments of principal due in respect of Tranche A Term Loans and Tranche B
Term Loans under Sections 2.11(a)(i) and (ii), respectively, in the next twelve
months in the order of maturity and (ii) second, pro rata against such remaining
scheduled installments of principal.
(h) Terex shall deliver to the Administrative Agent, at the time of
each prepayment required under this Section 2.13, (i) a certificate signed by a
Financial Officer of Terex setting forth in reasonable detail the calculation of
the amount of such prepayment and (ii) to the extent practicable, at least three
Business Days' prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid.
44
All pre payments of Borrowings under this Section 2.13 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
(i) To the extent possible consistent with Section 2.13(g), amounts to
be applied pursuant to this Section 2.13 to the prepayment of Term Loans and
Revolving Loans shall be applied, as applicable, first to prepay outstanding ABR
Term Loans and ABR Revolving Loans. Any amounts remaining after each such
application shall, at the option of the applicable Borrower, be applied to
prepay Eurocurrency Term Loans or Eurocurrency Revolving Loans, as the case may
be, immediately and/or shall be deposited in the Pre payment Account (as defined
below). The Administrative Agent shall apply any cash deposited in the
Prepayment Account (i) allocable to Term Loans to prepay Eurocurrency Term Loans
and (ii) allocable to Revolving Loans to prepay Eurocurrency Revolving Loans, in
each case on the last day of their respective Interest Periods (or, at the
direction of such Borrower, on any earlier date) until all outstanding Term
Loans or Revolving Loans, as the case may be, have been prepaid or until all the
allocable cash on deposit with respect to such Loans has been exhausted. For
purposes of this Agreement, the term "Prepayment Account" shall mean an account
established by such Borrower with the Administrative Agent and over which the
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal for application in accordance with this paragraph
(i). The Administrative Agent will, at the request of such Borrower, invest
amounts on deposit in the Prepayment Account in Permitted Investments that
mature prior to the last day of the applicable Interest Periods of the
Eurocurrency Term Borrowings or Eurocurrency Revolving Borrowings to be prepaid,
as the case may be; provided, however, that (i) the Administrative Agent shall
not be required to make any investment that, in its sole judgment, would require
or cause the Administrative Agent to be in, or would result in any, violation of
any law, statute, rule or regulation and (ii) the Administrative Agent shall
have no obligation to invest amounts on deposit in the Prepayment Account if a
Default or Event of Default shall have occurred and be continuing. Such Borrower
shall indemnify the Administrative Agent for any losses relating to the
investments so that the amount available to prepay Eurocurrency Borrowings on
the last day of the applicable Interest Period is not less than the amount that
would have been available had no investments been made pursuant thereto. Other
than any interest earned on such investments (which shall be for the account of
the applicable Borrower, to the extent not necessary for the prepayment of
Eurocurrency Loans in accordance with this Section 2.13), the Prepayment Account
shall not bear interest. Interest or profits, if any, on such investments shall
be deposited in the Prepayment Account and reinvested and disbursed as specified
above. If the maturity of the Loans has been accelerated pursuant to Article
VII, the Administrative Agent may, in its sole discretion, apply all amounts on
deposit in the Prepayment Account to satisfy any of the Obligations. Each
Borrower hereby grants to the Administrative Agent, for its benefit and the
benefit of the Issuing Banks, the Swingline Lender and the Lenders, a security
interest in its Prepay ment Account to secure the Obligations. This paragraph
(i) shall not be construed to alter the application required by Section 2.13(g).
(j) Any Tranche B Lender may elect, by notice to the Administrative
Agent in writing (or by telephone or telecopy promptly confirmed in writing)
prior to 12:00 (noon), New York City time, at least three Business Days prior to
any prepayment of Tranche B Term Loans required to be made by any Borrower for
the account of such Lender pursuant to this Section 2.13, to cause all or a
portion of such prepayment to be applied instead to prepay Tranche A Term Loans
in accordance with paragraph (g) above. Any such prepayment of Tranche A Term
Loans shall be made by all Borrowers of their respective Tranche A Term Loans
45
pro rata among the then outstanding Tranche A Term Loans and in the order set
forth in Section 2.13(g).
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender or any Issuing
Bank of the principal of or interest on any Eurocurrency Loan or A/C Fronted
Fixed Rate Loan made by such Lender or any Fees or other amounts payable
hereunder (other than changes in respect of taxes imposed on the overall net
income of such Lender or such Issuing Bank by the jurisdiction in which such
Lender or such Issuing Bank has its principal office or by any political
subdivision or taxing authority therein), or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by any Lender or any
Issuing Bank (except any such reserve requirement which is reflected in the
Adjusted LIBO Rate, the Bank Xxxx Rate or the Italian Fixed Rate, as the case
may be) or shall impose on such Lender or such Issuing Bank or the London
interbank market (or other relevant interbank market) any other condition
affecting this Agreement or Eurocurrency Loans or A/C Fronted Fixed Rate Loans
made by such Lender or any Letter of Credit or participation therein, and the
result of any of the foregoing shall be to increase the cost to such Lender or
such Issuing Bank of making or maintaining any Eurocurrency Loan or A/C Fronted
Fixed Rate Loan or increase the cost to any Lender of issuing or maintaining any
Letter of Credit or purchasing or maintaining a participation therein or to
reduce the amount of any sum received or receivable by such Lender or such
Issuing Bank hereunder (whether of principal, interest or otherwise) by an
amount deemed by such Lender or such Issuing Bank to be material, then the
Borrowers will pay to such Lender or such Issuing Bank, as the case may be, upon
demand such additional amount or amounts as will compensate such Lender or such
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or any Issuing Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in any
such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or any Issuing Bank or any Lender's or any
Issuing Bank's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental Authority
has or would have the effect of reducing the rate of return on such Lender's or
such Issuing Bank's capital or on the capital of such Lender's or such Issuing
Bank's holding company, if any, as a consequence of this Agreement or the Loans
made or participations in Letters of Credit purchased by such Lender pursuant
hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a
level below that which such Lender or such Issuing Bank or such Lender's or such
Issuing Bank's holding company could have achieved but for such applicability,
adoption, change or compliance (taking into consideration such Lender's or such
Issuing Bank's policies and the policies of such Lender's or such Issuing Bank's
holding company with respect to capital adequacy) by an amount deemed by such
Lender or such Issuing Bank to be material, then from time to time the Borrowers
shall pay to such Lender or such Issuing Bank, as the case may be, such
46
additional amount or amounts as will compensate such Lender or such Issuing Bank
or such Lender's or such Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or such Issuing Bank or
its holding company, as applicable, as specified in paragraph (a) or (b) above
shall be delivered to the Borrowers and shall be conclusive absent manifest
error. The Borrowers shall pay such Lender or such Issuing Bank the amount shown
as due on any such certificate delivered by it within 10 days after its receipt
of the same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation. The
protection of this Section shall be available to each Lender and each Issuing
Bank regardless of any possible contention of the invalidity or inapplicability
of the law, rule, regulation, agreement, guideline or other change or condition
that shall have occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurocurrency Loan or to give effect to
its obligations as contemplated hereby with respect to any Eurocurrency Loan,
then, by written notice to the Borrowers and to the Administrative Agent:
(i) such Lender may declare that Eurocurrency Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
ABR Loans and Foreign Base Rate Loans will not thereafter (for such
duration) be converted into Eurocurrency Loans), whereupon any request
for a Eurocurrency Borrowing (or to convert an ABR Borrowing or a
Foreign Base Rate Loan to a Eurocurrency Borrowing or to continue a
Eurocurrency Borrowing for an additional Interest Period) shall, as to
such Lender only, be deemed a request for an ABR Loan (in the case of
Dollar Loans) or Foreign Base Rate Loans (in the case of Alternative
Currency Loans) (or a request to continue an ABR Loan or a Foreign Base
Rate Loan as such for an additional Interest Period or to convert a
Eurocurrency Loan into an ABR Loan or a Foreign Base Rate Loan, as the
case may be), unless such declaration shall be subsequently withdrawn;
and
(ii) such Lender may require that all outstanding
Eurocurrency Loans made by it be converted to ABR Loans (in the case of
Dollar Loans) or Foreign Base Rate Loans (in the case of Alternative
Currency Loans) in which event all such Eurocurrency Loans shall be
automatically converted to such ABR Loans or Foreign Base Rate Loans as
of the effective date of such notice as provided in paragraph (b)
below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurocurrency Loans that would have been made by such Lender or the
converted Eurocurrency Loans of such Lender shall instead be applied to repay
47
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurocurrency Loans.
(b) For purposes of this Section 2.15, a notice to Terex by any Lender
shall be effective as to each Eurocurrency Loan made by such Lender, if lawful,
on the last day of the Interest Period currently applicable to such Eurocurrency
Loan; in all other cases such notice shall be effective on the date of receipt
by Terex.
SECTION 2.16. Indemnity. Each Borrower shall indemnify each Lender
against any loss or expense, including any break-funding cost or any loss
sustained in converting between any Alternative Currency and dollars, as the
case may be, that such Lender may sustain or incur as a consequence of (a) any
event, other than a default by such Lender in the performance of its obligations
hereunder, which results in (i) such Lender receiving or being deemed to receive
any amount on account of the principal of any Eurocurrency Loan or A/C Fronted
Fixed Rate Loan prior to the end of the Interest Period in effect therefor, (ii)
the conversion of any Eurocurrency Loan or A/C Fronted Fixed Rate Loan to an ABR
Loan, or Fronted Base Rate Loan, respectively, or the conversion of the Interest
Period with respect to any Eurocurrency Loan or A/C Fronted Fixed Rate Loan, in
each case other than on the last day of the Interest Period in effect therefor,
or (iii) any Eurocurrency Loan or A/C Fronted Fixed Rate Loan to be made by such
Lender (including any Eurocurrency Loan or A/C Fronted Fixed Rate Loan to be
made pursuant to a conversion or continuation under Section 2.10) not being made
after notice of such Loan shall have been given by the applicable Borrower
hereunder (any of the events referred to in this clause (a) being called a
"Breakage Event") or (b) any default in the making of any payment or prepayment
required to be made hereunder. In the case of any Breakage Event, such loss
shall include an amount equal to the excess, as reasonably determined by such
Lender, of (i) its cost of obtaining funds for the Eurocurrency Loan or A/C
Fronted Fixed Rate Loan that is the subject of such Breakage Event for the
period from the date of such Breakage Event to the last day of the Interest
Period in effect (or that would have been in effect) for such Loan over (ii) the
amount of interest likely to be realized by such Lender in redeploying the funds
released or not utilized by reason of such Breakage Event for such period. A
certificate of any Lender setting forth any amount or amounts which such Lender
is entitled to receive pursuant to this Section 2.16, together with a reasonably
detailed calculation thereof, shall be delivered to the applicable Borrower and
shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided below in this
Section 2.17 with respect to Swingline Loans and as required under Sections
2.13(j) and 2.15, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of the Facility
Fees, each reduction of the Term Loan Commitments or the Revolving Credit
Commitments and each conversion of any Borrowing to or continuation of any
Borrowing as a Borrowing of any Type shall be allocated pro rata among the
Lenders in accordance with their respective applicable Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans). For purposes of
determining the available Revolving Credit Commitments of the Lenders at any
time, each outstanding Swingline Loan shall be deemed to have utilized the
Revolving Credit Commitments of the Lenders (including those Lenders which shall
not have made Swingline Loans) pro rata in accordance with such respective
Revolving Credit Commitments. Each Lender agrees that in computing such Lender's
portion of any Borrowing to be made hereunder, the Administrative Agent may, in
its discretion, round each Lender's percentage of such Borrowing to the next
48
higher or lower whole dollar or applicable Alternative Currency amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
any Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Tranche A Term Loans, Tranche B Term Loans and Revolving Loans
and participations in L/C Disbursements and A/C Fronted Loans shall be
proportionately less than the unpaid principal portion of the Tranche A Term
Loans, Tranche B Term Loans and Revolving Loans and participations in L/C
Disbursements and A/C Fronted Loans of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in the
Tranche A Term Loans, Tranche B Term Loans and Revolving Loans and L/C Exposure
and A/C Fronted Exposure, as the case may be of such other Lender, so that the
aggregate unpaid principal amount of the Tranche A Term Loans, Tranche B Term
Loans and Revolving Loans and L/C Exposure and A/C Fronted Exposure and
participations in Tranche A Term Loans, Tranche B Term Loans and Revolving Loans
and L/C Exposure and A/C Fronted Exposure held by each Lender shall be in the
same proportion to the aggregate unpaid principal amount of all Tranche A Term
Loans, Tranche B Term Loans and Revolving Loans and L/C Exposure and A/C Fronted
Exposure then outstanding as the principal amount of its Tranche A Term Loans,
Tranche B Term Loans and Revolving Loans and L/C Exposure and A/C Fronted
Exposure prior to such exercise of banker's lien, setoff or counterclaim or
other event was to the principal amount of all Tranche A Term Loans, Tranche B
Term Loans and Revolving Loans and L/C Exposure and A/C Fronted Exposure
outstanding prior to such exercise of banker's lien, setoff or counterclaim or
other event; provided, however, that if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.18 and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. Each Borrower expressly
consents to the foregoing arrangements and agrees that any Lender holding a
participation in a Term Loan or Revolving Loan or L/C Disbursement and A/C
Fronted Loan deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by such Borrower to such Lender by reason thereof as fully as if such Lender had
made a Loan directly to such Borrower in the amount of such participation.
SECTION 2.19. Payments. (a) Each Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document from a
Payment Location in the United States or the jurisdiction of any Alternative
Currency prior to (i) 1:00 p.m., New York City time on the date when due, in the
case of any amount payable in dollars, and (ii) 12:00 (noon), local time of such
other jurisdiction, on the date when due, in the case of any amount payable in
any Alternative Currency, in each case, in immediately available funds, without
setoff, defense or counterclaim. Each such payment (other than (i) Issuing Bank
Fees, which shall be paid directly to applicable Issuing Bank, (ii) principal of
and interest on Swingline Loans, which shall be paid directly to the Swingline
Lender except as otherwise provided in Section 2.22 (e) and (iii) A/C Fronting
49
Fees, which shall be paid directly to the applicable A/C Fronting Lender except
as otherwise provided in Section 2.24(e)) shall be made to such account as shall
from time to time be specified in a writing delivered to Terex and each Borrower
by the Administrative Agent. Except as provided in Section 2.24 (Conversion of
A/C Fronted Loans) with respect to defaulted A/C Fronted Loans, all Alternative
Currency Loans hereunder shall be denominated and made, and all payments
hereunder or under any other Loan Document in respect thereof (whether of
principal, interest, fees or otherwise) shall be made, in such Alternative
Currency. All Dollar Loans hereunder shall be denominated and made, and all
payments of principal and interest, Fees or otherwise hereunder or under any
other Loan Document in respect thereof shall be made, in dollars, except as
otherwise expressly provided herein. Unless otherwise agreed by the applicable
Borrower and each Lender to receive any such payment, all other amounts due
hereunder or under any other Loan Document shall be payable in dollars.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on behalf of any
Borrower or any Loan Party (or, with respect to payments by an A/C Fronting
Lender of the A/C Participation Fee, an A/C Fronting Lender) hereunder and under
any other Loan Document shall be made, in accordance with Section 2.19, free and
clear of and without deduction for any and all current or future taxes, levies,
imposts, deductions, charges or withholdings imposed by any Governmental
Authority in the United States, the jurisdiction of any Alternative Currency or
the jurisdiction of any Payment Location, and all liabilities with respect
thereto, excluding (i) income taxes imposed on the net income of the
Administrative Agent, any Lender or an Issuing Bank (or any transferee or
assignee thereof, including a participation holder (any such entity a
"Transferee")) and (ii) franchise taxes imposed on the net income of the
Administrative Agent, any Lender or an Issuing Bank (or Transferee), in each
case by the jurisdiction under the laws of which the Administrative Agent, such
Lender or an Issuing Bank (or Transferee) is organized or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities, collectively or individually, being
called "Taxes"). If any Borrower or any Loan Party shall be required to deduct
any Taxes from or in respect of any sum payable hereunder or under any other
Loan Document to the Administrative Agent, any Lender or an Issuing Bank (or any
Transferee), (i) the sum payable shall be increased by the amount (an
"additional amount") necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.20) the Administrative Agent, such Lender or such Issuing Bank (or
Transferee), as the case may be, shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii) such Borrower or such
Loan Party shall make such deductions and (iii) such Borrower or such Loan Party
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law. If any A/C Fronting Lender shall be required to
deduct any Taxes from or in respect of any A/C Participation Fee, Terex or the
applicable Borrower shall pay to the applicable Revolving Credit Lender the
"additional amount" referred to in the preceding sentence.
50
(b) In addition, each Borrower agrees to pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies (including, without limitation, mortgage recording taxes and similar
fees) that arise from any payment made hereunder or under any other Loan
Document or from the execution, delivery, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Document imposed by
any Governmental Authority in the United States, the jurisdiction of any
Alternative Currency or the jurisdiction of any Payment Location ("Other
Taxes").
(c) Each Borrower will indemnify the Administrative Agent, each Lender
and each Issuing Bank (or Transferee) for the full amount of Taxes and Other
Taxes paid by the Administrative Agent, such Lender or such Issuing Bank (or
Transferee), as the case may be, and any liability (including penalties,
interest and expenses (including reasonable attorney's fees and expenses))
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability prepared by the
Administrative Agent, a Lender or an Issuing Bank (or Transferee), or the
Administrative Agent on its behalf, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Administrative Agent, any Lender or an Issuing
Bank (or Transferee), as the case may be, makes written demand therefor.
(d) As soon as practicable after the date of any payment of Taxes or
Other Taxes by any Borrower or any other Loan Party to the relevant Governmental
Authority, such Borrower or such other Loan Party will deliver to the
Administrative Agent, at its address referred to in Section 9.01, the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing payment thereof.
(e) Each Lender (or Transferee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "Non-U.S. Lender") that is entitled to an exemption from, or
reduction of, withholding tax under the law of the jurisdiction in which any
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments by such Borrower under this Agreement and the other Loan
Documents shall deliver to such Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by such Borrower as will permit such payments to be made without
withholding or at a reduced rate; provided that such Non-U.S. Lender has
received written notice from such Borrower advising it of the availability of
such exemption or reduction and containing all applicable documentation. In
addition, each Non-U.S. Lender shall deliver such documentation promptly upon
the obsolescence or invalidity of any documentation previously delivered by such
Non-U.S. Lender. Notwithstanding any other provision of this Section 2.20(e), a
Non-U.S. Lender shall not be required to deliver any documentation pursuant to
this Section 2.20(e) that such Non-U.S. Lender is not legally able to deliver.
(f) No Borrower shall be required to indemnify any Non-U.S. Lender or
to pay any additional amounts to any Non-U.S. Lender, in respect of United
States Federal withholding tax pursuant to paragraph (a) or (c) above to the
extent that (i) the obligation to withhold amounts with respect to United States
Federal withholding tax existed and would apply to payments made to such
Non-U.S. Lender on the date such Non-U.S. Lender became a party to this
51
Agreement (or, in the case of a Transferee that is a participation holder, on
the date such participation holder became a Transferee hereunder) or, with
respect to payments to a New Lending Office, the date such Non-U.S. Lender
designated such New Lending Office with respect to a Loan; provided, however,
that this paragraph (f) shall not apply (x) to any Transferee or New Lending
Office that becomes a Transferee or New Lending Office as a result of an
assignment, participation, transfer or designation made at the request of any
Borrower and (y) to the extent the indemnity payment or additional amounts any
Transferee, or any Lender (or Transferee), acting through a New Lending Office,
would be entitled to receive (without regard to this paragraph (f)) do not
exceed the indemnity payment or additional amounts that the person making the
assignment, participation or transfer to such Transferee, or Lender (or
Transferee) making the designation of such New Lending Office, would have been
entitled to receive in the absence of such assignment, participation, transfer
or designation or (ii) the obligation to pay such additional amounts would not
have arisen but for a failure by such Non-U.S. Lender to comply with the
provisions of paragraph (e) above.
(g) Nothing contained in this Section 2.20 shall require any Lender or
an Issuing Bank (or any Transferee) or the Administrative Agent to make
available any of its tax returns (or any other information that it deems to be
confidential or proprietary).
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender or an Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
an Issuing Bank delivers a notice described in Section 2.15 or (iii) any
Borrower is required to pay any additional amount to any Lender or an Issuing
Bank or any Governmental Authority on account of any Lender or an Issuing Bank
pursuant to Section 2.20, such Borrower may, at its sole expense and effort
(including with respect to the processing and recordation fee referred to in
Section 9.04(b)), upon notice to such Lender or such Issuing Bank and the
Administrative Agent, require such Lender or such Issuing Bank to transfer and
assign, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all of its interests, rights and obligations under
this Agreement to an assignee that shall assume such assigned obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (x) such assignment shall not conflict with any law, rule or regulation or
order of any court or other Governmental Authority having jurisdiction, (y) such
Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Credit Commitment is being assigned, of the Issuing
Banks and the Swingline Lender), which consent shall not unreasonably be
withheld, and (z) such Borrower or such assignee shall have paid to the affected
Lender or Issuing Bank in immediately available funds (and in the currency or
currencies in which payment would be required if all amounts were to be paid by
such Borrower) an amount equal to the sum of the principal of and interest
accrued to the date of such payment on the outstanding Loans or L/C
Disbursements of such Lender or such Issuing Bank, respectively, plus all Fees
and other amounts accrued for the account of such Lender or such Issuing Bank
hereunder (including any amounts under Section 2.14 and Section 2.16); provided
further that, if prior to any such transfer and assignment the circumstances or
event that resulted in such Lender's or such Issuing Bank's claim for
compensation under Section 2.14 or notice under Section 2.15 or the amounts paid
pursuant to Section 2.20, as the case may be, cease to cause such Lender or such
Issuing Bank to suffer increased costs or reductions in amounts received or
receivable or reduction in return on capital, or cease to have the consequences
specified in Section 2.15, or cease to result in amounts being payable under
Section 2.20, as the case may be (including as a result of any action taken by
such Lender or such Issuing Bank pursuant to paragraph (b) below), or it such
52
Lender or such Issuing Bank shall waive its right to claim further compensation
under Section 2.14 in respect of such circumstances or event or shall withdraw
its notice under Section 2.15 or shall waive its right to further payments under
Section 2.20 in respect of such circumstances or event, as the case may be, then
such Lender or such Issuing Bank shall not thereafter be required to make any
such transfer and assignment hereunder.
(b) If (i) any Lender or an Issuing Bank shall request compensation
under Section 2.14, (ii) any Lender or an Issuing Bank delivers a notice
described in Section 2.15 or (iii) any Borrower is required to pay any
additional amount to any Lender or an Issuing Bank or any Governmental Authority
on account of any Lender or an Issuing Bank, pursuant to Section 2.20, then such
Lender or such Issuing Bank shall use reasonable efforts (which shall not
require such Lender or such Issuing Bank to incur an unreimbursed loss or
unreimbursed cost or expense or otherwise take any action inconsistent with its
internal policies or legal or regulatory restrictions or suffer any disadvantage
or burden deemed by it to be significant) (x) to file any certificate or
document reasonably requested in writing by such Borrower or (y) to assign its
rights and delegate and transfer its obligations hereunder to another of its
offices, branches or affiliates, if such filing or assignment would materially
reduce its claims for compensation under Section 2.14 or enable it to withdraw
its notice pursuant to Section 2.15 or would materially reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. Terex hereby agrees
to pay all reasonable costs and expenses incurred by any Lender or any Issuing
Bank in connection with any such filing or assignment, delegation and transfer.
SECTION 2.22. Swingline Loans. (a) Swingline Commitment. Subject to the
terms and conditions and relying upon the representations and warranties herein
set forth, the Swingline Lender agrees to make loans, in dollars, to Terex at
any time and from time to time on and after the Closing Date and until the
earlier of the Revolving Credit Maturity Date and the termination of the
Revolving Credit Commitments in accordance with the terms hereof, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of all Swingline Loans exceeding $10,000,000 in
the aggregate or (ii) the Aggregate Revolving Credit Exposure, after giving
effect to any Swingline Loan, exceeding the Total Revolving Credit Commitment.
Each Swingline Loan shall be in a principal amount that is an integral multiple
of $250,000. The Swingline Commitments may be terminated or reduced from time to
time as provided herein. Within the foregoing limits, Terex may borrow, pay or
prepay and reborrow Swingline Loans hereunder, subject to the terms, conditions
and limitations set forth herein.
(b) Swingline Loans. Terex shall notify the Swingline Lender, with a
copy to the Administrative Agent, by telecopy, or by telephone (confirmed by
telecopy), not later than 2:00 p.m., New York City time, on the day of a
proposed Swingline Loan. Such notice shall be delivered on a Business Day, shall
be irrevocable and shall refer to this Agreement and shall specify the requested
date (which shall be a Business Day) and amount of such Swingline Loan.
(c) Prepayment. Terex shall have the right at any time and from time to
time to prepay any Swingline Loan, in whole or in part, upon giving written or
telecopy notice (or telephone notice promptly confirmed by written, or telecopy
notice) to the Swingline Lender and to the Administrative Agent before 1:00
p.m., New York City time, on the date of prepayment at the Swingline Lender's
address for notices specified on Schedule 2.01. All principal payments of
53
Swingline Loans shall be accompanied by accrued interest on the principal amount
being repaid to the date of payment.
(d) Interest. Each Swingline Loan shall be an ABR Loan and, subject to
the provisions of Section 2.07, shall bear interest as provided in Section
2.06(a).
(e) Participations. If Terex does not fully repay a Swingline Loan on
or prior to the last day of the Interest Period with respect thereto, the
Swingline Lender shall notify the Administrative Agent thereof by 2:00 p.m., New
York City time (by telecopy or by telephone, confirmed in writing), and the
Administrative Agent shall promptly notify each Revolving Credit Lender thereof
(by telecopy or by telephone, confirmed in writing) and of its Pro Rata
Percentage of such Swingline Loan. Upon such notice but without any further
action, the Swingline Lender hereby agrees to grant to each Revolving Credit
Lender, and each Revolving Credit Lender hereby agrees to acquire from the
Swingline Lender, a participation in such defaulted Swingline Loan equal to such
Revolving Credit Lender's Pro Rata Percentage of the aggregate principal amount
of such defaulted Swingline Loan. In furtherance of the foregoing, each
Revolving Credit Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for the
account of the Swingline Lender, such Revolving Credit Lender's Pro Rata
Percentage of each Swingline Loan that is not repaid on the last day of the
Interest Period with respect thereto. Each Revolving Credit Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Revolving Credit Lender shall comply with its obligation under
this paragraph by wire transfer of immediately available funds, in the same
manner as provided in Section 2.02(c) with respect to Loans made by such
Revolving Credit Lender (and Section 2.02(c) shall apply, mutatis mutandis, to
the payment obligations of the Revolving Credit Lenders) and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Revolving Credit Lenders. The Administrative Agent shall notify Terex
of any participations in any Swingline Loan acquired pursuant to this paragraph
and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from Terex (or other party on behalf of Terex) in respect
of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a
sale of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Revolving Credit Lenders that shall
have made their payments pursuant to this paragraph and to the Swingline Lender,
as their interests may appear. The purchase of participations in a Swingline
Loan pursuant to this paragraph shall not relieve Terex (or other party liable
for obligations of Terex) of any default in the payment thereof.
SECTION 2.23. Letters of Credit. (a) Subject to the terms and
conditions set forth herein, (i) each of the Existing Letters of Credit shall,
upon the initial funding of Loans on the Closing Date and without any further
action on the part of the applicable Issuing Bank or any other person, be deemed
for all purposes to have been issued by the applicable Issuing Bank on the
Closing Date as a Letter of Credit hereunder and (ii) any Borrower may request
the issuance of a Letter of Credit for its own account, in a form reasonably
acceptable to the Administrative Agent and the applicable Issuing Bank, at any
time and from time to time while the Revolving Credit Commitments remain in
54
effect. This Section shall not be construed to impose an obligation upon an
Issuing Bank to issue any Letter of Credit that is inconsistent with the terms
and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to amend,
renew or extend an existing Letter of Credit), the applicable Borrower shall
hand deliver or telecopy to the applicable Issuing Bank and the Administrative
Agent (three Business Days in advance of the requested date of issuance,
amendment, renewal or extension, or such shorter period as the applicable
Borrower, the Administrative Agent and the applicable Issuing Bank shall agree)
a notice requesting the issuance of a Letter of Credit, or identifying the
Letter of Credit to be amended, renewed or extended, the date of issuance,
amendment, renewal or extension, the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) below), the amount and currency
(which must be dollars or an Alternative Currency) of such Letter of Credit, the
name and address of the beneficiary thereof and such other information as shall
be necessary to prepare such Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if, and upon issuance, amendment,
renewal or extension of each Letter of Credit the applicable Borrower shall be
deemed to represent and warrant that, after giving effect to such issuance,
amendment, renewal or extension (A) the L/C Exposure shall not exceed
$35,000,000, (B) the Aggregate Revolving Credit Exposure shall not exceed the
Total Revolving Credit Commitment and (C) the Alternative Currency Revolving
Credit Exposure with respect to any Alternative Currency shall not exceed the
sublimit for such Alternative Currency set forth in Schedule 2.01(b).
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date.
(d) Participations. By the issuance of a Letter of Credit (or, in the
case of the Existing Letters of Credit, deemed issuance) and without any further
action on the part of such Issuing Bank or the Lenders, the applicable Issuing
Bank hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the applicable Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Pro Rata Percentage of the aggregate amount
available to be drawn under such Letter of Credit, effective upon the issuance
of such Letter of Credit. In consideration and in furtherance of the foregoing,
each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay
to the Administrative Agent, for the account of the applicable Issuing Bank,
such Lender's Pro Rata Percentage of each L/C Disbursement made by such Issuing
Bank and not reimbursed by the applicable Borrower (or, if applicable, another
party pursuant to its obligations under any other Loan Document) forthwith on
the date due as provided in Section 2.02(f) and in the same currency as such L/C
Disbursement. Each Revolving Credit Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default or the fact that, as a result of fluctuations in exchange
rates, such Revolving Credit Lender's Revolving Credit Exposure at any time
might exceed its Revolving Credit Commitment at such time (in which case Section
2.13(a) would apply), and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
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(e) Reimbursement. If an Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit denominated in dollars, the applicable Borrower
shall pay to the Administrative Agent an amount equal to such L/C Disbursement
not later than two hours after such Borrower shall have received notice from the
applicable Issuing Bank that payment of such draft will be made, or, if such
Borrower shall have received such notice later than 10:00 a.m., New York City
time, on any Business Day, not later than 10:00 a.m., New York City time, on the
immediately following Business Day. If an Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit denominated in any Alternative
Currency, the applicable Borrower shall pay to the Administrative Agent an
amount equal to such L/C Disbursement not later than two hours after such
Borrower shall have received notice from the applicable Issuing Bank that
payment of such draft will be made, or, if such Borrower shall have received
such notice later than 10:00 a.m., London time, on any Business Day, not later
than 10:00 a.m., London time, on the immediately following Business Day.
(f) Obligations Absolute. Each Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other
right that any Borrower, any other party guaranteeing, or otherwise
obligated with, such Borrower, any Subsidiary or other Affiliate
thereof or any other person may at any time have against the
beneficiary under any Letter of Credit, the applicable Issuing Bank,
the Administrative Agent or any Lender or any other person, whether in
connection with this Agreement, any other Loan Document or any other
related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by an Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
an Issuing Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of any
Borrower's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of each
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
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gross negligence or wilful misconduct of an Issuing Bank. However, the foregoing
shall not be construed to excuse an Issuing Bank from liability to any Borrower
to the extent of any direct damages (as opposed to consequential damages, claims
in respect of which are hereby waived by each Borrower to the extent permitted
by applicable law) suffered by any Borrower that are caused by an Issuing Bank's
gross negligence or wilful misconduct in determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof; it
is understood that an Issuing Bank may accept documents that appear on their
face to be in order, without responsibility for further investigation and, in
making any payment under any Letter of Credit (i) an Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of an Issuing Bank.
(g) Disbursement Procedures. The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. Such Issuing Bank shall
as promptly as possible give telephonic notification, confirmed by telecopy, to
the Administrative Agent and the applicable Borrower of such demand for payment
and whether such Issuing Bank has made or will make an L/C Disbursement
thereunder; provided that any failure to give or delay in giving such notice
shall not relieve any Borrower of its obligation to reimburse such Issuing Bank
and the Revolving Credit Lenders with respect to any such L/C Disbursement. The
Administrative Agent shall promptly give each Revolving Credit Lender notice
thereof.
(h) Interim Interest. If an Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the applicable
Borrower shall reimburse such L/C Disbursement in full on such date, the unpaid
amount thereof shall bear interest for the account of such Issuing Bank, for
each day from and including the date of such L/C Disbursement, to but excluding
the earlier of the date of payment by such Borrower or the date on which
interest shall commence to accrue thereon as provided in Section 2.02(f), at the
rate per annum that would apply to such amount if such amount were (i) in the
case of a Dollar Loan, an ABR Revolving Loan and (ii) in the case of an
Alternative Currency, a Eurocurrency Revolving Loan with an Interest Period of
one month's duration.
(i) Resignation or Removal of an Issuing Bank. An Issuing Bank may
resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and Terex, and may be removed at any time by
Terex by notice to such Issuing Bank, the Administrative Agent and the Lenders.
Subject to the next succeeding paragraph, upon the acceptance of any appointment
as an Issuing Bank hereunder by a Lender that shall agree to serve as a
successor Issuing Bank, such successor shall succeed to and become vested with
all the interests, rights and obligations of the retiring Issuing Bank and the
retiring Issuing Bank shall be discharged from its obligations to issue
additional Letters of Credit hereunder. At the time such removal or resignation
shall become effective, the Borrowers shall pay all accrued and unpaid fees
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pursuant to Section 2.05(c)(ii). The acceptance of any appointment as an Issuing
Bank hereunder by a successor Lender shall be evidenced by an agreement entered
into by such successor, in a form satisfactory to the Borrowers and the
Administrative Agent, and, from and after the effective date of such agreement,
(i) such successor Lender shall have all the rights and obligations of the
previous Issuing Bank under this Agreement and the other Loan Documents and (ii)
references herein and in the other Loan Documents to the term "Issuing Bank"
shall be deemed to refer to such successor or to any previous Issuing Bank, or
to such successor and all previous Issuing Banks, as the context shall require.
After the resignation or removal of an Issuing Bank hereunder, the retiring
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
(j) Cash Collateralization. If (i) any Event of Default shall occur and
be continuing or (ii) to the extent and so long as the L/C Exposure exceeds the
Total Revolving Credit Commitment, the Borrowers shall, on the Business Day
after Terex receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Revolving Credit
Lenders holding participations in outstanding Letters of Credit representing
greater than 50% of the aggregate undrawn amount of all outstanding Letters of
Credit) thereof and of the amount to be deposited, deposit in an account with
the Collateral Agent, for the benefit of the Revolving Credit Lenders, an amount
in cash in the currency determined by the Collateral Agent equal to the L/C
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse any Issuing Bank for L/C
Disbursements for which it has not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrowers for the L/C
Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit), be applied
to satisfy the Obligations. If any Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to such
Borrower within three Business Days after all Events of Default have been cured
or waived. If any Borrower is required to provide an amount of cash collateral
pursuant to clause (ii) of the first sentence of this paragraph (j), such amount
shall be returned to such Borrower from time to time to the extent that the
amount of such cash collateral held by the Collateral Agent exceeds the excess,
if any, of the L/C Exposure over the Total Revolving Credit Commitment so long
as no Event of Default shall have occurred and be continuing.
SECTION 2.24. A/C Fronted Loans. (a) Subject to the terms and
conditions and relying upon the representations and warranties herein set forth,
(i) the Australian Fronting Lender agrees to make loans to the Australian
Borrower in Australian Dollars and (ii) the Italian Fronting Lender agrees to
make loans to the Italian Borrower in Lire, in each case, at any time and from
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time to time on and after the Closing Date and until the earlier of the
Revolving Credit Maturity Date and the termination of the A/C Fronting
Commitment of such A/C Fronting Lender in accordance with the terms hereof, in
an aggregate principal amount at any time outstanding that will not result in
(i) the Dollar Equivalent of the aggregate principal amount of such A/C Fronting
Lender's A/C Fronting Loans exceeding its A/C Fronting Commitment or (ii) the
Aggregate Revolving Credit Exposure, after giving effect to any A/C Fronted
Loan, exceeding the Total Revolving Credit Commitment; provided however that the
Italian Borrower shall not be entitled to make any Borrowings hereunder until
all amounts under the Italian Facilities shall have been paid in full and the
commitments thereunder terminated. Each A/C Fronted Loan shall be in a principal
amount that is an integral multiple of the Alternative Currency Equivalent of
$100,000 and not less than $2,500,000. The A/C Fronting Commitments may be
terminated or reduced from time to time as provided herein. Within the foregoing
limits, the applicable Borrower may borrow, pay or prepay and reborrow A/C
Fronted Loans hereunder, subject to the terms, conditions and limitations set
forth herein.
(b) A/C Fronted Loans. The Australian Borrower or the Italian Borrower,
as applicable, shall notify the applicable A/C Fronting Lender, with a copy to
the Administrative Agent, by telecopy, or by telephone (confirmed by telecopy)
(i) in the case of the Australian Borrower, not later than 10:00 a.m., Sydney
time, on the day of a proposed A/C Fronted Loan or (ii) in the case of the
Italian Borrower, not later than 10:00 a.m., Boston time, three Business Days
before the date of a proposed A/C Fronted Loan. Such notice shall be delivered
on a Business Day, shall be irrevocable and shall refer to this Agreement, shall
specify the requested date (which shall be a Business Day) and amount of such
A/C Fronted Loan (which shall be expressed in dollars), shall specify whether
such A/C Fronted Loan is to be an A/C Fronted Base Rate Loan or an AC/ Fronted
Fixed Rate Loan and, if such Loan is to be an A/C Fronted Fixed Rate Loan, the
Interest Period therefor (which shall comply with the definition of the term
"Bank Xxxx Rate" or "Italian Fixed Rate", as applicable. If no Rate is selected
with respect to any A/C Fronted Loan, the applicable Borrower shall be deemed to
have selected an A/C Fronted Base Rate Loan.
(c) Prepayment. The applicable Borrower shall have the right at any
time from time to time to prepay any A/C Fronted Loan, in whole or in part, upon
giving written or telecopy notice (or telephone notice promptly confirmed by
written, or telecopy notice) to the applicable A/C Fronting Lender and to the
Administrative Agent before 12:00 (noon), local time on the date of prepayment
at the applicable A/C Fronting Lender's address for notices specified on
Schedule 2.01(a). All principal payments of A/C Fronted Loans shall be
accompanied by accrued interest on the principal amount being repaid to the date
of payment. All prepayments of A/C Fronted Loans shall be subject to Section
2.16 but otherwise without premium or penalty.
(d) Interest. Subject to the provisions of Section 2.07, each A/C
Fronted Base Rate Loan shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
A/C Fronted Base Rate with respect to such A/C Fronted Loan plus the Applicable
Percentage with respect to such Loan. Subject to the provisions of Section 2.07,
each A/C Fronted Fixed Rate Loan shall bear interest (computed on the basis of
the actual number of days elapsed over a year of 360 days) at a rate per annum
equal to the A/C Fronted Fixed Rate for the Interest Period in effect for such
Loan plus the Applicable Percentage with respect to such Loan. Interest on each
A/C Fronted Loan shall be payable on the Interest Payment Date with respect
thereto. Each A/C Fronting Lender shall notify the applicable Borrower and the
59
Administrative Agent of the A/C Fronting Base Rate or the A/C Fronted Fixed Rate
applicable to such A/C Fronting Lender's A/C Fronted Loans promptly following
each determination thereof.
(e) Participations. If the applicable Borrower shall default in the
payment of principal of or interest on any A/C Fronted Loan when and as the same
shall become due and payable, whether at the due date thereof or by acceleration
or otherwise, then the applicable A/C Fronting Lender shall promptly notify the
Administrative Agent thereof and, upon notice from the Administrative Agent or
the applicable A/C Fronting Lender to the applicable Borrower, the principal
amount of all A/C Fronted Loans to such Borrower, together with all accrued and
unpaid interest thereon, shall be converted to Dollar Loans and obligations to
pay interest in dollars, respectively, at the Exchange Rate prevailing on the
date of such default, and the Administrative Agent shall promptly notify each
Revolving Credit Lender of such default (by telecopy or by telephone, confirmed
in writing) and of its Pro Rata Percentage in dollars of such A/C Fronted Loan.
Upon such notice but without any further action, the applicable A/C Fronting
Lender hereby agrees to grant to each Revolving Credit Lender, and each
Revolving Credit Lender hereby agrees to acquire from the applicable A/C
Fronting Lender, a participation in such defaulted A/C Fronted Loan equal to
such Lender's Pro Rata Percentage in dollars of the aggregate principal amount
of such defaulted A/C Fronting Loan. In furtherance of the foregoing, each
Revolving Credit Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for the
account of the applicable A/C Fronting Lender, such Lender's Pro Rata Percentage
of each such defaulted A/C Fronted Loan. Each Lender acknowledges and agrees
that its obligation to acquire participations in A/C Fronted Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds in the same manner as provided in Section 2.02(c) with respect
to Loans made by such Lender (and Section 2.02(c) shall apply, mutatis mutandis,
to the payment obligations of the Lenders) and the Administrative Agent shall
promptly pay to the applicable A/C Fronting Lender the amounts so received by it
from the Lenders. The Administrative Agent shall notify the applicable Borrower
of any participations in any A/C Fronted Loan acquired pursuant to this
paragraph and thereafter payments in respect of such A/C Fronted Loan shall be
made in dollars and to the Administrative Agent and not to the applicable A/C
Fronting Lender. Any amounts received by an A/C Fronting Lender from any
Borrower (or other party on behalf of such Borrower) in respect of an A/C
Fronted Loan after receipt by such A/C Fronting Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall have made their
payments pursuant to this paragraph and to the applicable A/C Fronting Lender,
as their interests may appear. The purchase of participations in an A/C Fronted
Loan pursuant to this paragraph shall not relieve any Borrower (or other party
liable for obligations of such Borrower) of any default in the payment thereof.
(f) Termination and Reduction of A/C Fronting Commitments. Upon written
or telecopy notice to the applicable A/C Fronting Lender and to the
Administrative Agent, Terex may at any time permanently terminate, or from time
to time in part permanently reduce, the A/C Fronting Commitment of any A/C
Fronting Lender; provided, however, that the A/C Fronting Commitment of such
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A/C Fronting Lender shall not be reduced to an amount that is less than the A/C
Fronting Loans of such A/C Fronting Lender at such time.
SECTION 2.25. Reporting Requirements of A/C Fronting Lenders and
Issuing Banks. (a) Within two Business Days following the last day of each
calendar month, each A/C Fronting Lender shall deliver to the Administrative
Agent a statement showing the average daily principal amount of the A/C Fronted
Loans outstanding in each currency during the calendar quarter most recently
ended.
(b) Within two Business Days following the last day of each calendar
month, each Issuing Bank shall deliver to the Administrative Agent a report
detailing all activity during the preceding month with respect to any Letters of
Credit issued by such Issuing Bank, including the face amount, the account
party, the beneficiary and the expiration date of such Letters of Credit and any
other information with respect thereto as may be requested by the Administrative
Agent.
SECTION 2.26. Additional Issuing Banks. The Borrowers may, at any time
and from time to time with the consent of the Administrative Agent (which
consent shall not be unreasonably withheld) and such Lender, designate one or
more additional Lenders to act as an issuing bank under the terms of this
Agreement solely for the purpose of issuing Letters of Credit denominated in
Alternative Currencies other than Marks, Pounds, Francs, Australian Dollars and
Lire. Any Lender designated as an issuing bank pursuant to this Section 2.26
shall be deemed to be an "Issuing Bank" (in addition to being a Lender) in
respect of Letters of Credit issued or to be issued by such Lender and, with
respect to such Letters of Credit, such term shall thereafter apply to the
Issuing Bank and such Lender.
ARTICLE III
Representations and Warranties
Each Borrower represents and warrants to the Administrative Agent, the
Collateral Agent, each of the Issuing Banks and each of the Lenders that:
SECTION 3.01. Organization; Powers. Terex and each of the Subsidiaries
(including each Borrower) (a) is a corporation or partnership duly incorporated
or formed, as the case may be, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, (b) has all requisite corporate
power and authority to own its property and assets and to carry on its business
as now conducted and as proposed to be conducted, (c) is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
corporate power and authority to execute, deliver and perform its obligations
under each of the Loan Documents and each other agreement or instrument
contemplated hereby to which it is or will be a party and, in the case of each
Borrower, to borrow hereunder. Each Borrower (other than Terex) is a wholly
owned Subsidiary.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Loan Documents and the borrowings hereunder
(collectively, the "Transactions") (a) have been duly authorized by all
requisite corporate and, if required, stockholder action and (b) will not
61
(i) violate (A) any provision of law, statute, rule or regulation, (B) the
certificate or articles of incorporation or other constitutive documents or
By-laws of Terex or any Subsidiary, (C) any order of any Governmental Authority
applicable to Terex or such Subsidiary or (D) any provision of any indenture,
agreement or other instrument to which Terex or any Subsidiary is a party or by
which any of them or any of their property is or may be bound, (ii) result in a
breach of or constitute (alone or with notice or lapse of time or both) a
default under, or give rise to any right to accelerate or to require the
prepayment, repurchase or redemption of any obligation under any such indenture,
agreement or other instrument, except, in the case of each of clause (i)(A),
(i)(D) and (ii), where such violation, breach or default could not reasonably be
expected to result in a Material Adverse Effect or (iii) result in the creation
or imposition of any Lien upon or with respect to any property or assets now
owned or hereafter acquired by Terex or any Subsidiary (other than any Lien
created hereunder or under the Security Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by each Borrower and constitutes, and each other Loan Document when
executed and delivered by each Loan Party thereto will constitute, a legal,
valid and binding obligation of such Loan Party enforceable against such Loan
Party in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
(a) the filing of Uniform Commercial Code financing statements and filings with
the United States Patent and Trademark Office and the United States Copyright
Office, (b) recordation of the Mortgages and (c) such as have been made or
obtained and are in full force and effect, except where the failure to obtain
the same could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.05. Financial Statements. (a) Terex has heretofore furnished
to the Lenders its consolidated and consolidating balance sheets and statements
of income and changes in financial condition as of and for each of the fiscal
years ended December 31, 1994, December 31, 1995 and December 31, 1996, audited
by and accompanied by the opinion of Price Waterhouse L.L.P., independent public
accountants, and as of and for the fiscal quarter and the portion of the fiscal
year ended September 30, 1997, certified by a Financial Officer. Such financial
statements present fairly in all material respects the financial condition and
results of operations and cash flows of Terex and its consolidated Subsidiaries
as of such dates and for such periods. Such balance sheets and the notes thereto
disclose all material liabilities, direct or contingent, of Terex and its
consolidated Subsidiaries as of the dates thereof required to be reflected in
accordance with GAAP. Such financial statements were prepared in accordance with
GAAP applied on a consistent basis.
(b) Terex has heretofore delivered to the Lenders its unaudited pro
forma consolidated balance sheet as of December 31, 1997, prepared giving effect
to the Refinancing and the Debt Tender Offer as if they had occurred on such
date. Such pro forma balance sheet has been prepared in good faith by Terex,
based on the assumptions used to prepare the pro forma financial information
contained in the Confidential Information Memorandum (which assumptions are
believed by Terex on the date hereof and on the Closing Date to be reasonable),
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is based on the best information available to Terex as of the date of delivery
thereof, accurately reflects all adjustments required to be made to give effect
to the Refinancing and the Debt Tender Offer and presents fairly on a pro forma
basis the estimated consolidated financial position of Terex and its
consolidated Subsidiaries as of such date, assuming that the Refinancing and the
Debt Tender Offer had actually occurred at such date.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations, prospects, condition,
financial or otherwise, or material agreements of Terex and its Subsidiaries,
taken as a whole, since December 31, 1996.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
Terex and its Subsidiaries has fee title to, or valid leasehold interests in,
all its material properties and assets (including all Mortgaged Property),
except for defects in title that do not interfere with its ability to conduct
its business as currently conducted or to utilize such properties and assets for
their intended purposes. All such material properties and assets are free and
clear of Liens, other than Liens expressly permitted by Section 6.02.
(b) Each of Terex and its Subsidiaries has complied in all material
respects with all obligations under all material leases to which it is a party
and all such leases are in full force and effect. Each of Terex and its
Subsidiaries enjoys peaceful and undisturbed possession under all such material
leases.
(c) No Borrower has received any written notice of, nor has any
knowledge of, any pending or contemplated condemnation proceeding affecting the
Mortgaged Properties or any sale or disposition thereof in lieu of condemnation.
(d) Neither Terex nor any of its Subsidiaries is obligated under any
right of first refusal, option or other contractual right to sell, assign or
otherwise dispose of any Mortgaged Property or any interest therein.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing
Date a list of all Subsidiaries and the percentage ownership interest of Terex
therein. The shares of capital stock or other ownership interests so indicated
on Schedule 3.08 are fully paid and non assessable and are owned by Terex,
directly or indirectly through its Subsidiaries, free and clear of all Liens,
except for Liens created under the Security Documents. Each Subsidiary
identified on Schedule 1.01(f) as an Inactive Subsidiary (a) owns assets having
a fair market value not in excess of $50,000 in the aggregate, (b) does not
conduct any business activity and (c) is not an obligor with respect to any
Indebtedness.
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth
on Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of any Borrower, threatened against or affecting Terex or any of its
Subsidiaries or any business, property or rights of any such person (i) that
involve any Loan Document or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined in the ordinary course of such action, suit or proceeding, at the
time of such determination, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.
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(b) None of Terex or any of its Subsidiaries or any of their respective
material properties or assets is in violation of, nor will the continued
operation of their material properties and assets as currently conducted
violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits) or any
restrictions of record or agreements affecting the Mortgaged Property, or is in
default with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
(c) Certificates of occupancy and permits are in effect for each
Mortgaged Property as currently constructed, except where the failure to have
the same could not reasonably be expected to result in a Material Adverse
Effect.
(d) No exchange control law or regulation materially restricts any
Borrower from complying with its obligations in respect of any Alternative
Currency Loan or Letter of Credit or any other Loan Party with respect to its
obligations under any Loan Document.
SECTION 3.10. Agreements. (a) Neither Terex nor any of the Subsidiaries
is a party to any agreement or instrument or subject to any corporate
restriction that has resulted or could reasonably be expected to result in a
Material Adverse Effect.
(b) Neither Terex nor any of its Subsidiaries is in default in any
manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other material agreement or instrument to which
it is a party or by which it or any of its properties or assets are or may be
bound, where such default could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) Neither Terex nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of buying or carrying Margin
Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation G, U
or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. Neither Terex nor any of its Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. Each Borrower will use the proceeds of
the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of Terex and its Subsidiaries has filed
or caused to be filed all Federal, state, local and foreign tax returns or
materials required to have been filed by it and has paid or caused to be paid
all taxes due and payable by it and all assessments received by it (in each case
giving effect to applicable extensions), except taxes that are being contested
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in good faith by appropriate proceedings and for which Terex or such Subsidiary,
as applicable, shall have set aside on its books reserves in accordance with
GAAP.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of any Borrower in
writing to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading; provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, such Borrower represents only that it
acted in good faith and utilized assumptions believed by it to be reasonable and
due care in the preparation of such information, report, financial statement,
exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. (a) Each of Terex and its
respective ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in a Material Adverse Effect. The present
value of all benefit liabilities under each Plan (based on those assumptions
used to fund such Plan) did not, as of December 31, 1997, exceed by more than
$3,200,000 the fair market value of the assets of such Plan, and the present
value of all benefit liabilities of all underfunded Plans (based on those
assumptions used to fund each such Plan) did not, as of December 31, 1997,
exceed by more than $2,700,000 the fair market value of the assets of all such
underfunded Plans.
(b) Each Foreign Pension Plan is in compliance in all material respects
with all requirements of law applicable thereto and the respective requirements
of the governing documents for such plan except to the extent such
non-compliance could not reasonably be expected to result in a Material Adverse
Effect. With respect to each Foreign Pension Plan, none of Terex, its Affiliates
or any of its directors, officers, employees or agents has engaged in a
transaction which would subject Terex or any of its Subsidiaries, directly or
indirectly, to a material tax or civil penalty. With respect to each Foreign
Pension Plan, reserves have been established in the financial statements
furnished to Lenders in respect of any unfunded liabilities in accordance with
applicable law and prudent business practice or, where required, in accordance
with ordinary accounting practices in the jurisdiction in which such Foreign
Pension Plan is maintained. The aggregate unfunded liabilities, with respect to
such Foreign Pension Plans could not reasonably be expected to result in a
Material Adverse Effect. There are no actions, suits or claims (other than
routine claims for benefits) pending or threatened against Terex or any of its
Affiliates with respect to any Foreign Pension Plan which could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect.
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SECTION 3.17. Environmental Matters. Except as set forth in Schedule
3.17:
(a) The properties owned, leased or operated by each of Terex and its
Subsidiaries (the "Properties") do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation of,
(ii) require Remedial Action under, or (iii) could give rise to liability under,
Environmental Laws, which violations, Remedial Actions and liabilities, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(b) The Properties and all operations of each of Terex and its
Subsidiaries are in compliance in all material respects, and in the last five
years have been in compliance, with all Environmental Laws, and all necessary
Environmental Permits have been obtained and are in effect, except to the extent
that such non-compliance or failure to obtain any necessary permits, in the
aggregate, could reasonably be expected to not result in a Material Adverse
Effect;
(c) There have been no Releases or threatened Releases at, from, under
or proximate to the Properties or otherwise in connection with the current or
former operations of Terex or its Subsidiaries, which Releases or threatened
Releases, in the aggregate, could reasonably be expected to result in a Material
Adverse Effect;
(d) Neither Terex nor any of its Subsidiaries has received any notice
of an Environmental Claim in connection with the Properties or the current or
former operations of Terex or such Subsidiaries or with regard to any person
whose liabilities for environmental matters Terex or such Subsidiaries has
retained or assumed, in whole or in part, contractually, by operation of law or
otherwise, which, in the aggregate, could reasonably be expected to result in a
Material Adverse Effect, nor do Terex or its Subsidiaries have reason to believe
that any such notice will be received or is being threatened; and
(e) Hazardous Materials have not been transported from the Properties,
nor have Hazardous Materials been generated, treated, stored or disposed of at,
on or under any of the Properties in a manner that could give rise to liability
under any Environmental Law, nor have Terex or its Subsidiaries retained or
assumed any liability, contractually, by operation of law or otherwise, with
respect to the generation, treatment, storage or disposal of Hazardous
Materials, which liabilities, in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by Terex or any of its
Subsidiaries as of the date hereof and the Closing Date. As of each such date,
such insurance is in full force and effect and all premiums have been duly paid.
Each of Terex and its Subsidiaries has insurance in such amounts and covering
such risks and liabilities as are in accordance with normal industry practice.
SECTION 3.19. Security Documents. (a) The Pledge Agreement is effective
to create in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when the Collateral is
delivered to the Collateral Agent, the Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
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interest of the pledgors thereunder in such Collateral, in each case prior and
superior in right to any other person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement) and, when financing statements in appropriate form are filed in the
appropriate filing offices relating to the locations specified on Schedule 2 to
the Perfection Certificate, the Security Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the grantors thereunder in such Collateral (other than the Intellectual
Property, as defined in the Security Agreement), in each case prior and superior
in right to any other person, other than with respect to Liens expressly
permitted by Section 6.02.
(c) When the Security Agreement is filed in the United States Patent
and Trademark Office and the United States Copyright Office, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in the Intellectual
Property (as defined in the Security Agreement), in each case prior and superior
in right to any other person (it being understood that subsequent recordings in
the United States Patent and Trademark Office and the United States Copyright
Office may be necessary to perfect a lien on registered trademarks, trademark
applications and copyrights acquired by the grantors after the date hereof).
(d) The Mortgages are effective to create in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable Lien on all of the Loan Parties' right, title and interest in and to
the Mortgaged Property thereunder and the proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule 3.19(d), the Mortgages
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Mortgaged Property and the
proceeds thereof, in each case prior and superior in right to any other person,
other than with respect to the rights of persons pursuant to Liens expressly
permitted by Section 6.02.
SECTION 3.20. Location of Real Property and Leased Premises.
(a) Schedule 3.20(a) lists completely and correctly as of the Closing Date all
real property owned by Terex and the Subsidiaries and the addresses thereof.
Terex and the Subsidiaries own in fee all the real property set forth on
Schedule 3.20(a).
(b) Schedule 3.20(b) lists completely and correctly as of the Closing
Date all real property leased by Terex and the Subsidiaries and the addresses
thereof. Terex and the Subsidiaries have valid leases in all the real property
set forth on Schedule 3.20(b).
SECTION 3.21. Labor Matters As of the date hereof and the Closing Date,
there are no strikes, lockouts or slowdowns against Terex or any of its
Subsidiaries pending or, to the knowledge of any Borrower, threatened. The hours
worked by and payments made to employees of Terex and its Subsidiaries have not
been in violation of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters. All payments due
from Terex or any of its Subsidiaries, or for which any claim may be made
against Terex or any such Subsidiary, on account of wages and employee health
and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of Terex or such Subsidiary. The consummation of the
Transactions will not give rise to any right of termination or right of
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renegotiation on the part of any union under any collective bargaining agreement
to which Terex or any of its Subsidiaries is bound.
SECTION 3.22. Solvency. Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan and after giving effect to the application of the proceeds of such
Loans, (a) the fair value of the assets of the Loan Parties, at a fair
valuation, will exceed their debts and liabilities, subordinated, contingent or
otherwise; (b) the present fair saleable value of the property of the Loan
Parties will be greater than the amount that will be required to pay the
probable liability of their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute and
matured; (c) each Loan Party will be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) each Loan Party will not have unreasonably small
capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted following the Closing
Date.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Banks
to issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing,
including each Borrowing of a Swingline Loan or an A/C Fronted Loan, and on the
date of each issuance, amendment or renewal of a Letter of Credit (each such
event being called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03) or, in the case of the issuance,
amendment or renewal of a Letter of Credit, the applicable Issuing Bank and the
Administrative Agent shall have received a notice requesting the issuance of
such Letter of Credit as required by Section 2.23(b) or, in the case of the
Borrowing of a Swingline Loan, the Swingline Lender and the Administrative Agent
shall have received a notice requesting such Swingline Loan as required by
Section 2.22(b) or, in the case of a Borrowing of an A/C Fronted Loan, the
applicable A/C Fronting Lender and the Administrative Agent shall have received
a notice requesting such A/C Fronted Loan as required by Section 2.24(b).
(b) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the date of such
Credit Event with the same effect as though made on and as of such date, except
to the extent such representations and warranties expressly relate to an earlier
date.
(c) Each Borrower and each other Loan Party shall be in compliance with
all the terms and provisions set forth herein and in each other Loan Document on
its part to be observed or performed, and at the time of and immediately after
such Credit Event, no Event of Default or Default shall have occurred and be
continuing.
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Each Credit Event shall be deemed to constitute a representation and
warranty by each Borrower on the date of such Credit Event as to the matters
specified in paragraphs (b) (except as aforesaid) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself, the Lenders and the Issuing Banks, a favorable written opinion
of (i) Xxxx Xxxxx, General Counsel of Terex, and counsel for the other
Borrowers, substantially to the effect set forth in Exhibit L-1, and
(ii) each local counsel listed on Schedule 4.02(a), substantially to
the effect set forth in Exhibit L-2, in each case (A) dated the Closing
Date, (B) addressed to the Issuing Banks, the Administrative Agent and
the Lenders, and (C) covering such other matters relating to the Loan
Documents and the Transactions as the Administrative Agent shall
reasonably request, and each Borrower hereby requests such counsel to
deliver such opinions.
(b) All legal matters incident to this Agreement, the
Borrowings and extensions of credit hereunder and the other Loan
Documents shall be reasonably satisfactory to the Lenders, to the
Issuing Banks and to the Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of
the certificate or articles of incorporation or other organizational
documents, including all amendments thereto, of each Loan Party,
certified as of a recent date by the Secretary of State or other
Governmental Authority of the state or other jurisdiction of its
organization, and a certificate as to the good standing of each Loan
Party as of a recent date, from such Secretary of State or other
Governmental Authority; (ii) a certificate of the Secretary or
Assistant Secretary of each Loan Party dated the Closing Date and
certifying (A) that attached thereto is a true and complete copy of the
By-laws or other organizational documents of such Loan Party as in
effect on the Closing Date and at all times since a date prior to the
date of the resolutions described in clause (B) below, (B) that
attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of such Loan Party authorizing the
execution, delivery and performance of the Loan Documents to which such
person is a party and, in the case of each Borrower, the borrowings
hereunder, and that such resolutions have not been modified, rescinded
or amended and are in full force and effect, (C) that the certificate
or articles of incorporation of such Loan Party have not been amended
since the date of the last amendment thereto shown on the certificate
of good standing furnished pursuant to clause (i) above, and (D) as to
the incumbency and specimen signature of each officer executing any
Loan Document or any other document delivered in connection herewith on
behalf of such Loan Party; (iii) a certificate of another officer as to
the incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to (ii) above; and (iv)
such other documents as the Lenders, the Issuing Banks or the
Administrative Agent may reasonably request.
(d) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer
of Terex, confirming compliance with the conditions precedent set forth
in paragraphs (b) and (c) of Section 4.01.
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(e) The Administrative Agent shall have received all Fees and
other amounts due and payable on or prior to the Closing Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by any
Borrower hereunder or under any other Loan Document.
(f) The Pledge Agreement shall have been duly executed by the
parties thereto and delivered to the Collateral Agent and shall be in
full force and effect, and all the outstanding capital stock of the
Subsidiaries shall have been duly and validly pledged thereunder to the
Collateral Agent for the ratable benefit of the Secured Parties and
certificates representing such shares, accompanied by instruments of
transfer and stock powers endorsed in blank, shall be in the actual
possession of the Collateral Agent; provided that to the extent to do
so would cause adverse tax consequences to Terex, (i) neither Terex nor
any Domestic Subsidiary of Terex shall be required to pledge more than
65% of the capital stock of any Foreign Subsidiary and (ii) no Foreign
Subsidiary shall be required to pledge the capital stock of any of its
Foreign Subsidiaries.
(g) The Security Agreement shall have been duly executed by
the Loan Parties party thereto and shall have been delivered to the
Collateral Agent and shall be in full force and effect on such date and
each document (including each Uniform Commercial Code financing
statement) required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to
create in favor of the Collateral Agent for the benefit of the Secured
Parties a valid, legal and perfected first-priority security interest
in and lien on the Collateral (subject to any Lien expressly permitted
by Section 6.02) described in such agreement shall have been delivered
to the Collateral Agent.
(h) The Collateral Agent shall have received and shall be
reasonably satisfied with the results of a search of the Uniform
Commercial Code (or equivalent filings) filings made with respect to
the Loan Parties in the states (or other jurisdictions) in which the
chief executive office of each such person is located, any offices of
such persons in which records have been kept relating to Accounts (as
defined in the Security Agreement) and the other jurisdictions in which
Uniform Commercial Code filings (or equivalent filings) are to be made
pursuant to the preceding paragraph, together with copies of the
financing statements (or similar documents) disclosed by such search.
(i) The Collateral Agent shall have received a Perfection
Certificate with respect to the Loan Parties dated the Closing Date and
duly executed by a Responsible Officer of Terex.
(j)(i) Each of the Security Documents, in form and substance
reasonably satisfactory to the Lenders, relating to each of the
Mortgaged Properties shall have been duly executed by the parties
thereto and delivered to the Collateral Agent and shall be in full
force and effect, (ii) each of such Mortgaged Properties shall not be
subject to any Lien other than those permitted under Section 6.02,
(iii) each of such Security Documents shall have been filed and
recorded in the recording office as specified on Schedule 3.19(d) (or a
lender's title insurance policy, in form and substance acceptable to
the Collateral Agent, insuring such Security Document as a first lien
on such Mortgaged Property (subject to any Lien permitted by Section
6.02) shall have been received by the Collateral Agent) and, in
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connection therewith, the Collateral Agent shall have received evidence
reasonably satisfactory to it of each such filing and recordation and
(iv) the Collateral Agent shall have received such other documents,
including a policy or policies of title insurance issued by a
nationally recognized title insurance company, together with such
endorsements, coinsurance and reinsurance as may be reasonably
requested by the Collateral Agent and the Lenders, insuring the
Mortgages as valid first liens on the Mortgaged Properties, free of
Liens other than those permitted under Section 6.02, together with such
surveys, abstracts and appraisals reasonably available and legal
opinions required to be furnished pursuant to the terms of the
Mortgages or as reasonably requested by the Collateral Agent or the
Lenders.
(k) The Guarantee Agreements shall have been duly executed by
the parties thereto, shall have been delivered to the Collateral Agent
and shall be in full force and effect.
(l) The Indemnity, Subrogation and Contribution Agreement
shall have been duly executed by the parties thereto, shall have been
delivered to the Collateral Agent and shall be in full force and
effect.
(m) The Administrative Agent shall have received a copy of, or
a certificate as to coverage under, the insurance policies required by
Section 5.02 and the applicable provisions of the Security Documents,
each of which with respect to Terex or any Domestic Subsidiary shall be
endorsed or otherwise amended to include a "standard" or "New York"
lender's loss payable endorsement and to name the Collateral Agent as
additional insured, in form and substance reasonably satisfactory to
the Administrative Agent.
(n) The Lenders shall be reasonably satisfied as to the amount
and nature of any environmental and employee health and safety
exposures to which any of Terex and its Subsidiaries may be subject and
the plans of Terex with respect thereto.
(o) The Lenders shall have received evidence satisfactory to
them that (i) Terex shall have purchased, or with the proceeds of the
first Credit Event will purchase, at least 75% of the Existing Notes
for a purchase price per Existing Note not to exceed the amount
provided therefor in the Debt Tender Offer by any material amount on
the date hereof and (ii) if less than all the Existing Notes are
purchased in the Debt Tender Offer, the Existing Note Indenture shall
have been modified as provided in the Consent Solicitation to eliminate
all of the significant negative covenants contained therein and to
either (A) release all collateral securing the Existing Notes or (B)
permit junior liens in favor of the Collateral Agent on the collateral
securing the Existing Notes and make cash collateral or other
arrangements reasonably satisfactory to the Administrative Agent with
respect thereto and to eliminate any limitation contained therein on
the Borrowers' ability to consummate the Transactions and the Debt
Tender Offer.
(p)(i) After giving effect to the Refinancing and the other
transactions contemplated hereby, the Borrowers and their respective
Subsidiaries shall have outstanding no Indebtedness or preferred stock
other than (A) the extensions of credit under this Agreement, (B) the
Existing Notes in an aggregate principal amount not to exceed $100,000
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and (C) the Indebtedness listed on Schedule 6.01 and (ii) the
Administrative Agent shall have received evidence satisfactory to it
that all Indebtedness under the Existing Credit Agreement and the other
Indebtedness to be refinanced pursuant to the Refinancing shall have
been repaid in full or are being repaid in full with the proceeds of
the first Credit Event and any commitments thereunder shall have been
terminated and all Liens with respect thereto shall have been released.
(q) All requisite Governmental Authorities and third parties,
if any, shall have approved or consented to the Debt Tender Offer, the
Refinancing, the Transactions and the other transactions contemplated
hereby to the extent required, all applicable appeal periods shall have
expired and there shall be no governmental or judicial action, actual
or threatened, that has or could have a reasonable likelihood of
restraining, preventing or imposing materially burdensome conditions on
the Debt Tender Offer, the Refinancing, the Transactions or the other
transactions contemplated hereby.
ARTICLE V
Affirmative Covenants
Each Borrower covenants and agrees with each Lender that so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document shall have been paid
in full and all Letters of Credit have been canceled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, each Borrower will, and will cause
each of its Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated or in
an otherwise prudent manner; comply in all material respects with all applicable
laws, rules, regulations (including any zoning, building, Environmental Law,
ordinance, code or approval or any building permits or any restrictions of
record or agreements affecting the Mortgaged Properties) and decrees and orders
of any Governmental Authority, whether now in effect or hereafter enacted unless
failure to comply could not reasonably be expected to result in a Material
Adverse Effect; and at all times maintain and preserve all property material to
the conduct of such business and keep such property in working order and
condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
conducted at all times in a commercially reasonably manner.
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SECTION 5.02. Insurance. (a) Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance (including self insurance), to such extent and against such
risks, including fire and other risks insured against by extended coverage, as
is customary with companies in the same or similar businesses operating in the
same or similar locations and of same or similar size, including public
liability insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by it; and maintain such other insurance as may be
required by law.
(b) Cause all such policies of Terex or any Domestic Subsidiary to be
endorsed or otherwise amended to include a "standard" or "New York" lender's
loss payable endorsement, in form and substance reasonably satisfactory to the
Administrative Agent and the Collateral Agent, which endorsement shall provide
that, from and after the Closing Date, if the insurance carrier shall have
received written notice from the Administrative Agent or the Collateral Agent of
the occurrence of an Event of Default, the insurance carrier shall pay all
proceeds otherwise payable to Terex or any such Loan Parties under such policies
directly to the Collateral Agent; cause all such policies to provide that no
Borrower, the Administrative Agent, the Collateral Agent nor any other party
shall be a coinsurer thereunder and to contain a "Replacement Cost Endorsement",
without any deduction for depreciation, and such other provisions as the
Administrative Agent or the Collateral Agent may reasonably require from time to
time to protect their interests; deliver original or certified copies of all
such policies to the Collateral Agent; cause each such policy to provide that it
shall not be canceled, modified or not renewed for any other reason upon not
less than 30 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent; deliver to the Administrative
Agent and the Collateral Agent, prior to the cancelation, modification or
nonrenewal of any such policy of insurance, a copy of a renewal or replacement
policy (or other evidence of renewal of a policy previously delivered to the
Administrative Agent and the Collateral Agent) together with evidence
satisfactory to the Administrative Agent and the Collateral Agent of payment of
the premium therefor.
(c) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated (i) a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), obtain flood insurance in such total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may from time
to time require, and otherwise comply with the National Flood Insurance Program
as set forth in the Flood Disaster Protection Act of 1973, as it may be amended
from time to time, or (ii) a "Zone 1" area, obtain earthquake insurance in such
total amount as the Administrative Agent, the Collateral Agent or the Required
Lenders may from time to time require.
(d) With respect to any Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in no event for a
combined single limit of less than that in effect on the Closing Date, naming
the Collateral Agent as an additional insured, on forms reasonably satisfactory
to the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or contributing
in the event of loss with that required to be maintained under this Section 5.02
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is taken out by any Borrower; and promptly deliver to the Administrative Agent
and the Collateral Agent a duplicate original copy of such policy or policies.
(f) In connection with the covenants set forth in this Section 5.02, it
is understood and agreed that:
(i) none of the Administrative Agent, the Lenders, the Issuing
Banks, or their respective agents or employees shall be liable for any
loss or damage insured by the insurance policies required to be
maintained under this Section 5.02, it being understood that (A) each
Borrower and the other Loan Parties shall look solely to their
insurance companies or any other parties other than the aforesaid
parties for the recovery of such loss or damage and (B) such insurance
companies shall have no rights of subrogation against the
Administrative Agent, the Collateral Agent, the Lenders, the Issuing
Banks or their agents or employees. If, however, the insurance policies
do not provide waiver of subrogation rights against such parties, as
required above, then each Borrower hereby agrees, to the extent
permitted by law, to waive its right of recovery, if any, against the
Administrative Agent, the Collateral Agent, the Lenders, the Issuing
Banks and their agents and employees; and
(ii) the designation of any form, type or amount of insurance
coverage by the Administrative Agent, the Collateral Agent or the
Required Lenders under this Section 5.02 shall in no event be deemed a
representation, warranty or advice by the Administrative Agent, the
Collateral Agent or the Lenders that such insurance is adequate for the
purposes of the business of any Borrower and its Subsidiaries or the
protection of their properties and the Administrative Agent, the
Collateral Agent and the Required Lenders shall have the right from
time to time to require the Borrowers and the other Loan Parties to
keep other insurance in such form and amount as the Administrative
Agent, the Collateral Agent or the Required Lenders may reasonably
request; provided that such insurance shall be obtainable on
commercially reasonable terms.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, could
reasonably be expected to give rise to a Lien upon such properties or any part
thereof; provided, however, that such payment and discharge shall not be
required with respect to any such obligation, tax, assessment, charge, levy or
claim so long as the validity or amount thereof shall be contested in good faith
by appropriate proceedings and the applicable Borrower shall have set aside on
its books reserves with respect thereto in accordance with GAAP and such contest
operates to suspend collection of the contested obligation, tax, assessment or
charge and enforcement of a Lien and, in the case of a Mortgaged Property, there
is no risk of forfeiture of such property.
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SECTION 5.04. Financial Statements, Reports, etc. In the case of Terex,
furnish to the Administrative Agent for distribution by the Administrative Agent
to each Lender:
(a) within 90 days after the end of each fiscal year, its
consolidated and consolidating balance sheets and related statements of
operations, stockholders' equity and cash flows showing the financial
condition of Terex and its consolidated Subsidiaries as of the close of
such fiscal year and the results of its operations and the operations
of such Subsidiaries during such year, all audited by Price Waterhouse
L.L.P. or other independent public accountants of recognized national
standing or otherwise reasonably acceptable to the Required Lenders and
accompanied by an opinion of such accountants (which shall not be
qualified in any material respect) to the effect that such consolidated
financial statements fairly present the financial condition and results
of operations of Terex and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated and consolidating
balance sheets and related statements of operations, stockholders'
equity and cash flows showing the financial condition of Terex and its
consolidated Subsidiaries as of the close of such fiscal quarter and
the results of its operations and the operations of such Subsidiaries
during such fiscal quarter and the then elapsed portion of the fiscal
year, all certified by one of its Financial Officers as fairly
presenting in all material respects the financial condition and results
of operations of Terex and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements
under sub- paragraph (a) or (b) above, a certificate of the accounting
firm (unless at such time it is the practice and policy of such
accounting firm not to deliver such certificates) or Financial Officer
opining on or certifying such statements (which certificate, when
furnished by an accounting firm, may be limited to accounting matters
and disclaim responsibility for legal interpretations) (i) certifying
that no Event of Default or Default has occurred or, if such an Event
of Default or Default has occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be taken with
respect thereto; and (ii) in the case of any such letter from such
Financial Officer, setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.10, 6.11, 6.12 and 6.13;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by Terex or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of
the functions of said Commission, or with any national securities
exchange, or distributed to its shareholders, as the case may be;
(e) as promptly as practicable, but in no event later than 10
Business Days after the last day of each fiscal year of Terex, a copy
of the budget for its consolidated balance sheet and related statements
of income and selected working capital and capital expenditure analyses
for each quarter of the following fiscal year; and
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(f) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
Terex or any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent, the Issuing Banks and each Lender, promptly after
obtaining knowledge thereof, written notice of the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to
be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against any Borrower or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse
Effect; and
(c) any development with respect to Terex or any Subsidiary
that has resulted in, or could reasonably be expected to result in, a
Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and the laws applicable to
any Foreign Benefit Plan and (b) furnish to the Administrative Agent (i) as soon
as possible after, and in any event within 10 days after any Responsible Officer
of any Borrower or any Affiliate knows that any ERISA Event has occurred that,
alone or together with any other ERISA Event could reasonably be expected to
result in liability of any Borrower in an aggregate amount exceeding $5,000,000
(or the Dollar Equivalent thereof in another currency), a statement of a
Financial Officer of such Borrower setting forth details as to such ERISA Event
and the action, if any, that such Borrower proposes to take with respect
thereto.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity in all material respects with GAAP and all
requirements of law are made of all dealings and transactions in relation to its
business and activities. Each Loan Party will, and will cause each of its
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender to visit and inspect the financial records and the
properties of any Borrower or any Subsidiary at reasonable times and as often as
reasonably requested (but in no event more than twice annually unless an Event
of Default shall have occurred and be continuing) and to make extracts from and
copies of such financial records, and permit any representatives designated by
the Administrative Agent or any Lender to discuss the affairs, finances and
condition of any Borrower or any Subsidiary with the officers thereof and
independent accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
SECTION 5.09. Compliance with Environmental Laws. Comply, and cause all
lessees and other persons occupying its Properties to comply, in all material
respects with all Environmental Laws and Environmental Permits applicable to its
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operations and Properties; obtain and renew all Environmental Permits necessary
for its operations and Properties; and conduct any Remedial Action in accordance
with Environmental Laws; provided, however, that no Borrower nor any of the
Subsidiaries shall be required to undertake any Remedial Action to the extent
that its obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to such
circumstances in accordance with GAAP.
SECTION 5.10. Preparation of Environmental Reports. If an Event of
Default caused by reason of a breach of Section 3.17 or 5.09 shall have occurred
and be continuing, at the request of the Required Lenders through the
Administrative Agent, provide to the Lenders within 45 days after such request,
at the expense of the applicable Borrower, an environmental site assessment
report for the Properties which are the subject of such default, prepared by an
environmental consulting firm reasonably acceptable to the Administrative Agent
and indicating the presence or absence of Hazardous Materials and the estimated
cost of any Remedial Action or any other activity required to bring the
Properties into compliance with Environmental Laws in connection with such
Properties.
SECTION 5.11. Further Assurances. (a) Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority of the security interests created or
intended to be created by the Security Documents. Terex will cause any
subsequently acquired or organized Domestic Subsidiary (other than an Inactive
Subsidiary) to execute a Subsidiary Guarantee Agreement, Indemnity Subrogation
and Contribution Agreement and each applicable Security Document in favor of the
Collateral Agent. In addition, from time to time, Terex will, at its cost and
expense, promptly secure the Obligations by pledging or creating, or causing to
be pledged or created, perfected security interests with respect to such of its
assets and properties as the Administrative Agent or the Required Lenders shall
reasonably designate (it being understood that it is the intent of the parties
that the Obligations shall be secured by, among other things, substantially all
the assets of Terex (including real and other properties acquired subsequent to
the Closing Date)). Such security interests and Liens will be created under the
Security Documents and other security agreements, mortgages, deeds of trust and
other instruments and documents in form and substance reasonably satisfactory to
the Collateral Agent, and Terex shall deliver or cause to be delivered to the
Lenders all such instruments and documents (including legal opinions, title
insurance policies and lien searches) as the Collateral Agent shall reasonably
request to evidence compliance with this Section.
(b) In the case of Terex and the Subsidiary Guarantors, promptly to
notify the Collateral Agent in writing of any change (i) in its corporate name
or in any trade name used to identify it in the conduct of its business or in
the ownership of its properties, (ii) in the location of its chief executive
office, its principal place of business, any office in which it maintains books
or records relating to Collateral owned by it or any office or facility at which
Collateral owned by it is located (including the establishment of any such new
office or facility), (iii) in its identity or corporate structure or (iv) in its
Federal Taxpayer Identification Number. Terex and each Subsidiary Guarantor
agrees not to effect or permit
77
any change referred to in the preceding sentence unless all filings have been
made under the Uniform Commercial Code or otherwise that are required in order
for the Collateral Agent to continue at all times following such change to have
a valid, legal and perfected first priority security interest in all the
Collateral. Terex and each Subsidiary Guarantor agrees promptly to notify the
Collateral Agent if any material portion of the Collateral owned or held by such
Borrower is damaged or destroyed.
(c) On or before the date that is 90 days after the date of this
Agreement, the Borrowers shall cause all Indebtedness with respect to the Fiat
Collateral to be repaid in full and the financing arrangements existing on the
date hereof with respect to such Fiat Collateral to be terminated.
(d) On or before the date that is 180 days after the date of this
Agreement, Terex will either (i) if the Acquisition is consummated, cause its
wholly owned Subsidiary Unit Rig (S.A.) Pty. Ltd. to be merged with and into the
German Borrower with the German Borrower as the surviving entity or (ii) pledge
65% of the capital stock of Unit Rig (S.A.) Pty. Ltd. to the Secured Parties.
SECTION 5.12. Interest Rate Protection Agreements. In the case of
Terex, within 90 days following the Closing Date, enter into Interest Rate
Protection Agreements, with counterparties and on terms and conditions
reasonably satisfactory to the Administrative Agent, pursuant to which the
interest rate with respect to a notional amount equal to at least 50% of the sum
of (a) the Term Loans and (b) the Senior Subordinated Notes, if any, is fixed.
ARTICLE VI
Negative Covenants
Each Borrower covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document have been paid in full
and all Letters of Credit have been cancelled or have expired and all amounts
drawn thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, such Borrower will not, and will not cause or
permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except that the Borrower and any Subsidiary (other than an
Inactive Subsidiary) may incur, create, assume or permit to exist:
(a) Indebtedness for borrowed money existing on the date
hereof and set forth in Schedule 6.01;
(b) Indebtedness created hereunder and under the other Loan
Documents;
(c) in the case of Terex, the Senior Subordinated Notes and
Additional Subordinated Notes; provided that the proceeds thereof are
used to prepay the Term Loans pursuant to Section 2.13(e) or to finance
78
the Acquisition or other Permitted Acquisitions;
(d) Indebtedness pursuant to Hedging Agreements;
(e) Indebtedness of Terex or any wholly owned Subsidiary
(other than an Inactive Subsidiary) to any other wholly owned
Subsidiary (other than an Inactive Subsidiary), or of any wholly owned
Subsidiary (other than an Inactive Subsidiary) to Terex; provided that
any such Indebtedness of a Loan Party shall be subordinated to the
prior payment in full of the Obligations;
(f) Indebtedness resulting from endorsement of negotiable
instruments for collection in the ordinary course of business;
(g) Indebtedness arising under indemnity agreements to title
insurers to cause such title insurers to issue to the Collateral Agent
mortgagee title insurance policies;
(h) Indebtedness arising with respect to customary
indemnification and purchase price adjustment obligations incurred in
connection with Asset Sales and Permitted Acquisitions permitted
hereunder;
(i) Indebtedness incurred in the ordinary course of business
with respect to surety and appeal bonds, performance, insurance and
return-of-money bonds and other similar obligations;
(j) Indebtedness consisting of (i) Acquired Indebtedness or
(ii) Purchase Money Indebtedness or Capital Lease Obligations incurred
in the ordinary course of business after the Closing Date; provided
that the aggregate principal amount of any such Indebtedness pursuant
to this paragraph (j) shall not exceed $30,000,000;
(k) Indebtedness of O&K Mining existing on the date the
Acquisition is consummated; provided that the aggregate principal
amount of any such Indebtedness pursuant to this paragraph (k) shall
not exceed DM17,500,000;
(l) Floor Plan Guarantees;
(m) Indebtedness incurred under the Italian Facilities in an
amount not exceeding Lit12,850,000,000 in the aggregate at any time
outstanding;
(n) Indebtedness incurred to extend, renew or refinance
Indebtedness described in paragraph (a), (c), (j), (k) or (l) above
("Refinancing Indebtedness") so long as (i) such Refinancing
Indebtedness is in an aggregate principal amount not greater than the
aggregate principal amount of the Indebtedness being extended, renewed
or refinanced, plus the amount of any interest or premiums required to
be paid thereon plus fees and expenses associated therewith, (ii) such
Refinancing Indebtedness has a later or equal final maturity and a
longer or equal weighted average life than the Indebtedness being
extended, renewed or refinanced, (iii) if the Indebtedness being
extended, renewed or refinanced is subordinated to the Obligations, the
Refinancing Indebtedness is subordinated to the Obligations to the
extent of the Indebtedness being extended, renewed or refinanced and
(iv) the covenants, events of default and other non-pricing provisions
79
of the Refinancing Indebtedness shall be no less favorable to the
Lenders than those contained in the Indebtedness being extended,
renewed or refinanced;
(o) Indebtedness classified as Capital Lease Obligations
incurred in connection with the purchase of inventory to be sold in the
ordinary course of business;
(p) Indebtedness related to the Fiat Collateral; and
(q) other unsecured Indebtedness in an aggregate principal
amount not exceeding $5,000,000 at any time outstanding.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of any Borrower and its
Subsidiaries existing on the date hereof and set forth in Schedule
6.02; provided that such Liens shall secure only those obligations
which they secure on the date hereof;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by any Borrower or any Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition, (ii) such Lien does not apply to any other property
or assets of any Borrower or any Subsidiary and (iii) such Lien does
not (A) materially interfere with the use, occupancy and operation of
any Mortgaged Property, (B) materially reduce the fair market value of
such Mortgaged Property but for such Lien or (C) result in any material
increase in the cost of operating, occupying or owning or leasing such
Mortgaged Property;
(d) Liens for taxes not yet due or which are being contested
in compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations that are not due and payable or which
are being contested in compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of
business in compliance with workmen's compensation, unemployment
insurance and other social security laws or regulations;
(g) (i) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital
Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business and (ii) Liens on the receivables of
the Scottish Borrower to secure Indebtedness of the Scottish Borrower
80
in respect of performance bonds and similar obligations in an aggregate
principal amount not to exceed (pound)3,000,000;
(h) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate,
are not substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the ordinary
conduct of the business of any Borrower or any of its Subsidiaries;
(i) purchase money security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the case
of improvements, constructed) by any Borrower or any Subsidiary (other
than an Inactive Subsidiary) or in respect of Capital Lease
Obligations; provided that (i) such security interests secure
Indebtedness permitted by Section 6.01(j), (ii) such security interests
are incurred, and the Indebtedness secured thereby is created, within
90 days after such acquisition (or construction), (iii) the
Indebtedness secured thereby does not exceed 100% of the lesser of the
cost or the fair market value of such real property, improvements or
equipment at the time of such acquisition (or construction) and (iv)
such security interests do not apply to any other property or assets of
any Borrower or any Subsidiary;
(j) Liens arising from the rendering of a final judgment or
order that does not give rise to an Event of Default;
(k) Liens securing Acquired Indebtedness; provided that (i)
such Acquired Indebtedness was secured by such Liens at the time of the
relevant Permitted Acquisition and such Liens were not incurred in
contemplation thereof and (ii) such Liens do not extend to (x) any
property of Terex or the Subsidiaries (other than the Acquired Person)
or (y) to any property of the Acquired Person other than the property
securing such Liens on the date of the relevant Permitted Acquisition;
(l) Liens securing Refinancing Indebtedness, to the extent
that the Indebtedness being refinanced was originally secured in
accordance with this Section 6.02; provided that such Lien does not
apply to any additional property or assets of Terex or any Subsidiary;
(m) Liens in favor of Terex; and
(n) Liens relating to the Fiat Collateral.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred (a "Sale and Leaseback");
provided that any Borrower or any Subsidiary may enter into any such transaction
to the extent that the Capital Lease Obligations and Liens associated therewith
would be permitted under this Agreement.
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SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments by Terex and its Subsidiaries existing on the
date hereof in the capital stock of the Subsidiaries and other
investments by Terex and its Subsidiaries existing on the date hereof
and set forth in Schedule 6.04;
(b) Permitted Investments;
(c) Terex may make the Acquisition; provided that Terex
complies and causes O&K Mining to comply, with the applicable
provisions of Section 5.11;
(d) Terex may make any Permitted Acquisition; provided that
Terex complies, and causes any acquired entity to comply, with the
applicable provisions of Section 5.11 and the Security Documents with
respect to the person or assets so acquired;
(e) the Borrowers and their respective Subsidiaries (other
than Inactive Subsidiaries) may make loans and advances to employees
for moving, entertainment, travel and other similar expenses in the
ordinary course of business not to exceed $1,000,000 in the aggregate
at any time outstanding;
(f) Capital Expenditures permitted pursuant to Section 6.10;
(g) cash collateral provided to the Collateral Agent pursuant
to the Loan Documents;
(h) promissory notes issued by any purchaser in connection
with any Asset Sale permitted pursuant to Section 6.05(b);
(i) provided that no Default or Event of Default shall have
occurred and be continuing at the time of such payment or after giving
effect thereto, (A) the purchase by Terex of shares of its common stock
(for not more than fair market value) in connection with the delivery
of such stock to grantees under any stock option plan (upon the
exercise by such grantees of their stock options) or any other deferred
compensation plan of Terex approved by the Board of Directors and (B)
the repurchase of shares of, or options to purchase shares of, common
stock of Terex or any of its Subsidiaries from employees, former
employees, directors or former directors of Terex or any of its
Subsidiaries (or permitted transferees of such employees, former
employees, directors or former directors) pursuant to the terms of the
agreements (including employment agreements) or plans (or amendments
thereto) approved by the Board of Directors under which such
individuals purchase or sell or are granted the option to purchase or
sell, such common stock; provided that the aggregate amount of all such
purchases and repurchases permitted under this paragraph (i) shall not
exceed $1,200,000 per year or $8,400,000 in the aggregate during the
term of this Agreement;
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(j) accounts receivable arising in the ordinary course of
business from the sale of inventory;
(k) Guarantees constituting Indebtedness permitted by Section
6.01;
(l) investments in joint ventures in Related Businesses in an
aggregate amount not exceeding $15,000,000 at any time outstanding;
(m) intercompany loans and advances constituting Indebtedness
permitted by Section 6.01(e); and
(n) other investments in an aggregate amount not exceeding
$10,000,000 at any time outstanding.
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) any Borrower and any Subsidiary
(other than an Inactive Subsidiary) may purchase and sell inventory in the
ordinary course of business and (ii) 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 may merge into Terex in a
transaction in which Terex is the surviving corporation, (B) any wholly owned
Subsidiary may merge into or consolidate with any other wholly owned Subsidiary
that is a Guarantor in a transaction in which the surviving entity is a wholly
owned Subsidiary that is a Guarantor and no person other than Terex or a wholly
owned Subsidiary that is a Guarantor receives any consideration and (C) in
connection with any Permitted Acquisition pursuant to Section 6.04(d), Terex or
any wholly owned Subsidiary that is a Guarantor 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 Terex or a wholly owned Subsidiary
that is a Guarantor.
(b) Engage in any Asset Sale not otherwise prohibited by Section
6.05(a) unless all of the following conditions are met: (i) the consideration
received is at least equal to the fair market value of such assets; (ii) at
least 80% of the consideration received is cash; (iii) the Net Cash Proceeds of
such Asset Sale are applied as required by Section 2.13(b); (iv) after giving
effect to the sale or other disposition of the assets included within the Asset
Sale and the repayment of Indebtedness with the proceeds thereof, Terex is in
compliance on a pro forma basis with the covenants set forth in Sections 6.11,
6.12 and 6.13 recomputed for the most recently ended fiscal quarter for which
information is available and is in compliance with all other terms and
conditions contained in this Agreement; and (v) no Default or Event of Default
shall result from such Asset Sale.
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends. (a) Declare or pay, directly or indirectly, any
dividend or make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with respect to
any shares of its capital stock or directly or indirectly redeem, purchase,
retire or otherwise acquire for value (or permit any Subsidiary to purchase
83
or acquire) any shares of any class of its capital stock or set aside any amount
for any such purpose; provided, however, that (i) any Subsidiary may declare and
pay dividends or make other distributions to the Borrower of which it is a
Subsidiary and (ii) Terex may pay dividends on, and redeem and repurchase its
capital stock, provided that all of the following conditions are satisfied: (A)
at the time of such dividend, redemption or purchase and after giving effect
thereto, no Default or Event of Default has occurred and is continuing or would
arise as a result thereof; (B) the amount of all dividends, redemptions and
purchases made pursuant to this clause (ii) together with all distributions and
payments made pursuant to Section 6.09(b)(i), during the term of this Agreement
shall not exceed $25,000,000, and (c) on a pro forma basis and after giving
effect to such payment and all other payments pursuant to this clause (a) and
Section 6.09(b)(i) 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 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 provided further that Terex may at any time pay dividends with
respect to its capital stock solely in additional shares of its capital stock.
(b) Permit its Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Subsidiary to (i) pay any dividends or
make any other distributions on its capital stock or any other interest or (ii)
make or repay any loans or advances to Terex or the parent of such Subsidiary.
SECTION 6.07. Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
that any Borrower or any Subsidiary may engage in any of the foregoing
transactions in the ordinary course of business at prices and on terms and
conditions not less favorable to such Borrower or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties, and except that
this Section shall not apply to any transaction between or among Borrowers and
Guarantors.
SECTION 6.08. Business of Borrowers and Subsidiaries. Engage at any
time in any business or business activity other than the Related Business.
SECTION 6.09. Other Indebtedness and Agreements. (a) Permit any waiver,
supplement, modification, amendment, termination or release of any indenture,
instrument or agreement pursuant to which any Indebtedness of any Borrower or
any Subsidiary in an aggregate principal amount in excess of $5,000,000 is
outstanding if the effect of such waiver, supplement, modification, amendment,
termination or release is to (i) increase the interest rate on such
Indebtedness; (ii) accelerate the dates upon which payments of principal or
interest are due on such Indebtedness; (iii) add or change any event of default
or add any material covenant with respect to such Indebtedness; (iv) change the
prepayment provisions of such Indebtedness in any manner adverse to the Lenders;
(v) change the subordination provisions thereof (or the subordination terms of
any Guarantee thereof); or (vi) change or amend any other term if such change or
amendment would materially increase the obligations of the obligor or confer
additional material rights on the holder of such Indebtedness in a manner
adverse to any Borrower, any Subsidiary, the Administrative Agent or the
Lenders.
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(b)(i) 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 Subsidiary
except that (A) subject to Section 2.13(c), Terex shall be permitted to use the
Net Cash Proceeds of any Equity Issuance to prepay not more than one-third of
the Senior Subordinated Notes or any other Indebtedness, (B) Terex and its
Subsidiaries shall be permitted to make any such distribution or payment if all
of the following conditions are satisfied: (1) 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; (2) the amount of
all such distributions and payments made pursuant to this clause (i), together
with all dividends, redemptions and purchases made pursuant to Section
6.06(a)(ii), during the term of this Agreement shall not exceed $25,000,000; and
(3) on a pro forma basis and after giving effect to such distribution or payment
and all other distributions or payments pursuant to this clause (i) and Section
6.06(a) 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, or (ii) pay in cash any amount in respect of
such Indebtedness that may at the obligor's option be paid in kind or in other
securities and (C) Terex may at any time repay Indebtedness of any Borrower or
any Subsidiary solely in shares of its capital stock.
SECTION 6.10. Capital Expenditures. Permit the aggregate amount of
Consolidated Capital Expenditures made by Terex and its Subsidiaries, taken as a
whole, in any fiscal year of Terex to exceed $17,500,000. The amount of
permitted Capital Expenditures set forth in the immediately preceding sentence
in respect of any fiscal year shall be increased by (a) the amount of unused
permitted Capital Expenditures for the immediately preceding fiscal year less
(b) an amount equal to unused Capital Expenditures carried forward to such
preceding fiscal year.
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
Effective Date - March 31, 1999 5.75 to 1.0
April 1, 1999 - March 31, 2000 5.00 to 1.0
April 1, 2000 - March 31, 2001 4.50 to 1.0
April 1, 2001 - March 31, 2002 3.75 to 1.0
Thereafter 3.50 to 1.0
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SECTION 6.12. Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of Terex ending during any period set forth below to be less than the
ratio set forth below for such period:
Period Ratio
Effective Date - March 31, 1999 2.00 to 1.0
April 1, 1999 - March 31, 2000 2.10 to 1.0
April 1, 2000 - March 31, 2001 2.25 to 1.0
April 1, 2001 - March 31, 2002 2.35 to 1.0
April 1, 2002 - March 31, 2004 2.50 to 1.0
Thereafter 2.75 to 1.0
SECTION 6.13. Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of Terex ending during any period set forth below to be less
than the ratio set forth below for such period:
Period Ratio
Effective Date - March 31, 2001 1.15 to 1.0
April 1, 2001 - March 31, 2003 1.20 to 1.0
April 1, 2003 - March 31, 2004 1.25 to 1.0
Thereafter 1.50 to 1.0
SECTION 6.14. Fiscal Year. Permit the fiscal year of Terex to end on a
day other than December 31.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or
in connection with any Loan Document or the borrowings or issuances of
Letters of Credit hereunder, or any representation, warranty, statement
or information contained in any report, certificate, financial
statement or other instrument furnished in connection with or pursuant
to any Loan Document, shall prove to have been false or misleading in
any material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of
any Loan or the reimbursement with respect to any L/C Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
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(c) default shall be made in the payment of any interest on
any Loan or any Fee or L/C Disbursement or any other amount (other than
an amount referred to in (b) above) due under any Loan Document, when
and as the same shall become due and payable, and such default shall
continue unremedied for a period of three Business Days after notice;
(d) default shall be made in the due observance or performance
by any Borrower or any Subsidiary of any covenant, condition or
agreement contained in Section 5.01(a), 5.05 or 5.07 or in Article VI;
(e) default shall be made in the due observance or performance
by any Borrower or any Subsidiary of any covenant, condition or
agreement contained in any Loan Document (other than those specified in
(b), (c) or (d) above) and such default shall continue unremedied for a
period of 15 days after notice thereof from the Administrative Agent or
any Lender to Terex;
(f) any Borrower or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $5,000,000, when and as
the same shall become due and payable, or (ii) fail to observe or
perform any other term, covenant, condition or agreement contained in
any agreement or instrument evidencing or governing any such
Indebtedness if the effect of any failure referred to in this clause
(ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee on its or their behalf (with or without the
giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of any Borrower or any
Subsidiary, or of a substantial part of the property or assets of any
Borrower or a Subsidiary, under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other Federal, state or
foreign bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Borrower or any Subsidiary or
for a substantial part of the property or assets of any Borrower or any
Subsidiary or (iii) the winding-up or liquidation of any Borrower or
any Subsidiary; and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any
of the foregoing shall be entered;
(h) any Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended,
or any other Federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or
the filing of any petition described in (g) above, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for any Borrower or any
Subsidiary or for a substantial part of the property or assets of any
Borrower or any Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become
unable, admit in writing its inability or fail generally to pay its
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debts as they become due or (vii) take any action for the purpose of
effecting any of the foregoing;
(i) one or more judgments for the payment of money the
aggregate amount which is not covered by insurance is in excess of
$5,000,000 shall be rendered against any Borrower, any Subsidiary or
any combination thereof and the same shall remain undischarged for a
period of 45 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment
creditor to levy upon assets or properties of any Borrower or any
Subsidiary to enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other such ERISA
Events, could reasonably be expected to result in liability of any
Borrower and its ERISA Affiliates in an aggregate amount exceeding
$5,000,000;
(k) any security interest purported to be created by any
Security Document shall cease to be, or shall be asserted by any
Borrower or any other Loan Party not to be, a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or
such Security Document) security interest in the securities, assets or
properties covered thereby, except to the extent that any such loss of
perfection or priority results from the failure of the Collateral Agent
to maintain possession of certificates representing securities pledged
under the Pledge Agreement and except to the extent that such loss is
covered by a lender's title insurance policy and the related insurer
promptly after such loss shall have acknowledged in writing that such
loss is covered by such title insurance policy; or
(l) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to any Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, with the consent of the
Required Lenders, may, and at the request of the Required Lenders shall, by
notice to Terex, take either or both of the following actions, at the same or
different times: (i) terminate forthwith the Commitments and (ii) declare the
Loans then outstanding to be forthwith due and payable in whole or in part,
whereupon the principal of the Loans so declared to be due and payable, together
with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrowers accrued hereunder and under any other Loan
Document, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrowers, anything contained herein or in any other Loan Document
to the contrary notwithstanding; and in any event with respect to any Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrowers accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrowers, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
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ARTICLE VIII
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement,
CSFB is hereby appointed to act as Administrative Agent and Collateral Agent on
behalf of the Lenders and the Issuing Banks (for purposes of this Article VIII,
the Administrative Agent and the Collateral Agent are referred to collectively
as the "Agents"). Each of the Lenders, the Issuing Banks, and each assignee of
any such Lender or Issuing Bank, hereby irrevocably authorizes the Agents to
take such actions on behalf of such Lender, Issuing Bank or assignee and to
exercise such powers as are specifically delegated to the Agents by the terms
and provisions hereof and of the other Loan Documents, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders and the Issuing Banks,
without hereby limiting any implied authority, (a) to receive on behalf of the
Lenders and the Issuing Banks all payments of principal of and interest on the
Loans, all payments in respect of L/C Disbursements and all other amounts due to
the Lenders hereunder, and promptly to distribute to each Lender or each Issuing
Bank its proper share of each payment so received; (b) to give notice on behalf
of each of the Lenders to the Borrowers of any Event of Default specified in
this Agreement of which the Administrative Agent has actual knowledge acquired
in connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by any
Borrower or any other Loan Party pursuant to this Agreement or the other Loan
Documents as received by the Administrative Agent. Without limiting the
generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases) with respect to the
Collateral and the rights of the Secured Parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and the
Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by any
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to any Borrower or any other
Loan Party on account of the failure of or delay in performance or breach by any
Lender or an Issuing Bank of any of its obligations hereunder or to any Lender
or an Issuing Bank on account of the failure of or delay in performance or
breach by any other Lender or an Issuing Bank or any Borrower or any other Loan
Party of any of their respective obligations hereunder or under any other Loan
Document or in connection herewith or therewith. Each of the Agents may execute
any and all duties hereunder by or through agents or employees and shall be
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entitled to rely upon the advice of legal counsel selected by it with respect to
all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agree ment unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
Terex. Upon any such resignation, the Required Lenders shall have the right to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent which shall be a bank with
an office in New York, New York, having a combined capital and surplus of at
least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its duties and
obligations hereunder. After the Agent's resignation hereunder, the provisions
of this Article and Section 9.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with any Borrower or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on its aggregate Commitments hereunder) of
any expenses incurred for the benefit of the Lenders by the Agents, including
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, that shall not have been reimbursed by any Borrower
and (b) to indemnify and hold harmless each Agent and any of its directors,
officers, employees or agents, on demand, in the amount of such pro rata share,
from and against any and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by or asserted
against it in its capacity as Agent or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or any action taken or
omitted by it or any of them under this Agreement or any other Loan Document, to
the extent the same shall not have been reimbursed by any Borrower or any other
Loan Party; provided that no Lender shall be liable to an Agent or any such
other indemnified person for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Agent or any of its directors, officers, employees or agents.
Each Revolving Credit Lender agrees to reimburse each of the Issuing Banks and
their directors, employees and agents, in each case, to the same extent and
subject to the same limitations as provided above for the Agents.
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Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to any Borrower, to it in care of Terex at 000 Xxxx
Xxxx Xxxx, Xxxxxxxx, XX 00000, Attention of General Counsel (Telecopy
No. (000) 000-0000);
(b) if to the Administrative Agent, to Credit Suisse First
Boston, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxx
Xxxxxx (Telecopy No. (000) 000-0000, and with respect to Alternative
Currencies in Marks, Pounds, Francs or Lire, Credit Suisse First
Boston, One Xxxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxxx, Attention of Xxxxx
Xxxxxx (Telecopy No. 00-000-000-0000), and with respect to Alternative
Currencies in Australian Dollars, Credit Suisse First Boston, Level 14,
000 Xxxxxxx Xxxxxx, Xxxxxxxxx XXX 0000, Xxxxxxxxx, Attention of Xxxxxxx
Xxxxx (Telecopy No. 613-9653-3450); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth on Schedule 2.01(a) or in the Assignment and Acceptance
pursuant to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Banks and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Banks, regardless of any investigation made by the Lenders or the
Issuing Banks or on their behalf, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any Fee or any
other amount payable
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under this Agreement or any other Loan Document is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not been
terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05 shall remain
operative and in full force and effect regardless of the expiration of the term
of this Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Collateral Agent, any
Lender or any Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrowers and the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrowers, the Administrative
Agent, the Issuing Banks or the Lenders that are contained in this Agreement
shall bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate of such Lender or an Approved Fund, (x) Terex and the Administrative
Agent (and, in the case of any assignment of a Revolving Credit Commitment, the
Issuing Banks and the Swingline Lender) must give their prior written consent to
such assignment (which consent shall not be unreasonably withheld) and (y) the
amount of the Commitment or Loans, as applicable, of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 (or, if less, the entire remaining
amount of such Lender's Commitment or Loans, as applicable), (ii) the parties to
each such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500, (iii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire and (iv) prior to the end
of the Term Loan Availability Period, any such assignment of Tranche A
Commitments or Revolving Credit Commitments shall be made so that, after giving
effect thereto, each of the assignee and the assignor, if such assignor retains
any such Commitments, shall have the same percentage of the Tranche A
Commitments as such person has of the Revolving Credit Commitments. For purposes
of this Section 9.04(b), "Approved Fund" shall mean, with respect to any Lender
that is a fund that invests in bank loans, any other fund that invests in bank
loans which is managed or advised by the same investment advisor as such Lender
or by an affiliate of such investment advisor. Upon acceptance and recording
pursuant to paragraph (e) of this Section 9.04, from and after the effective
date specified in each Assignment and Acceptance, which effective date shall be
at least five Business Days after the execution thereof, (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
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by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16,
2.20 and 9.05, as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Term Loan Commitments and Revolving Credit Commitment, and the outstanding
balances of its Term Loans and Revolving Loans, in each case without giving
effect to assignments thereof which have not become effective, are as set forth
in such Assignment and Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of any Borrower or any Subsidiary or the
performance or observance by any Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred
to in Section 3.05(a) or delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Collateral Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Administrative
Agent and the Collateral Agent, respectively, by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrowers, the Administrative Agent, the Issuing Banks, the
Collateral Agent and the Lenders may treat each person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for
93
inspection by the Borrowers, any Issuing Bank, the Collateral Agent and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of Terex, the Swingline Lender,
the Issuing Banks and the Administrative Agent to such assignment, the
Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Lenders, the Issuing Banks and the Swingline Lender. No
assignment shall be effective unless it has been recorded in the Register as
provided in this paragraph (e).
(f) Each Lender may without the consent of any Borrower, the Swingline
Lender, the Issuing Banks or the Administrative Agent sell participations to one
or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.14, 2.16 and 2.20 to the same extent as if they were Lenders and (iv) the
Borrowers, the Administrative Agent, the Issuing Banks and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrowers relating to
the Loans or L/C Disbursements and to approve any amendment, modification or
waiver of any provision of this Agreement (other than amendments, modifications
or waivers decreasing any fees payable hereunder or the amount of principal of
or the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans or
increasing or extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to any Borrower furnished to such Lender by
or on behalf of any Borrower; provided that, prior to any such disclosure of
information designated by any Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.17.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank to secure extensions of credit by
such Federal Reserve Bank to such Lender; provided that no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, each Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to such Borrower by the assigning Lender
hereunder.
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(i) No Borrower shall assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent, each
Issuing Bank and each Lender, and any attempted assignment without such consent
shall be null and void.
(j) In the event that Standard & Poor's Ratings Group, Xxxxx'x
Investors Service, Inc., and Xxxxxxxx'x BankWatch (or Insurance Watch Ratings
Service, in the case of Lenders that are insurance companies (or Best's
Insurance Reports, if such insurance company is not rated by Insurance Watch
Ratings Service)) shall, after the date that any Lender becomes a Revolving
Credit Lender, downgrade the long-term certificate deposit ratings of such
Lender, and the resulting ratings shall be below BBB-, Baa3 and C (or BB, in the
case of a Lender that is an insurance company (or B, in the case of an insurance
company not rated by Insurance Watch Ratings Service)), then each Issuing Bank
shall have the right, but not the obligation, at its own expense, upon notice to
such Lender and the Administrative Agent, to replace (or to request Terex to use
its reasonable efforts to replace) such Lender with an assignee (in accordance
with and subject to the restrictions contained in paragraph (b) above), and such
Lender hereby agrees to transfer and assign without recourse (in accordance with
and subject to the restrictions contained in paragraph (b) above) all its
interests, rights and obligations in respect of its Revolving Credit Commitment
to such assignee; provided, however, that (i) no such assignment shall conflict
with any law, rule and regulation or order of any Governmental Authority and
(ii) the applicable Issuing Bank or such assignee, as the case may be, shall pay
to such Lender in immediately available funds on the date of such assignment the
principal of and interest accrued to the date of payment on the Loans made by
such Lender hereunder and all other amounts accrued for such Lender's account or
owed to it hereunder.
SECTION 9.05. Expenses; Indemnity. (a) Each Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by the Administrative Agent, the
Collateral Agent, the Issuing Banks and the Swingline Lender in connection with
the syndication of the credit facilities provided for herein and the preparation
and administration of this Agreement and the other Loan Documents or in
connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby or thereby
contemplated shall be consummated) or incurred by the Administrative Agent, the
Collateral Agent or any Lender in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Loan Documents or
in connection with the Loans made or Letters of Credit issued hereunder, as
applicable, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent and the Collateral Agent,
and, in connection with any such enforcement or protection, the fees, charges
and disbursements of any other counsel for the Administrative Agent, the
Collateral Agent or any Lender.
(b) Each Borrower agrees to indemnify the Administrative Agent, the
Collateral Agent, each Lender and each Issuing Bank, each Affiliate of any of
the foregoing persons and each of their respective directors, officers,
employees and agents (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans or issuance of
95
Letters of Credit, (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto, or (iv) any actual or alleged presence, Release or threat of Release of
Hazardous Materials on any Properties, or any Environmental Claim related in any
way to any Borrower or the Subsidiaries; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Collateral Agent, any
Lender or an Issuing Bank. All amounts due under this Section 9.05 shall be
payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, except to the extent prohibited by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of any Borrower against any of and all the
obligations of such Borrower now or hereafter existing under this Agreement and
other Loan Documents held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS
OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500
(THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS,
THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or an Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
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of any provision of this Agreement or any other Loan Document or consent to any
departure by any Borrower or any other Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on any Borrower in any case
shall entitle such Borrower to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan or any date for reimbursement of an L/C Disbursement,
or waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement, without the prior written consent of
each Lender affected thereby, (ii) change or extend the Commitment or decrease
or extend the date for payment of the Facility Fees of any Lender without the
prior written consent of such Lender, (iii) amend or modify the provisions of
Section 2.17 or 9.04(i), the provisions of this Section, the definition of the
term "Required Lenders", increase the total Commitments or release any Guarantor
or all or any substantial part of the Collateral, without the prior written
consent of each Lender, (iv) change the allocation between Tranche A Term Loans
and Tranche B Term Loans of any prepayment pursuant to Section 2.12 or 2.13
without the prior written consent of (A) Lenders holding a majority of the
aggregate outstanding principal amount of the Tranche A Term Loans and (B)
Lenders holding a majority of the aggregate outstanding principal amount of the
Tranche B Term Loans or (v) amend Section 2.13(j) without the prior written
consent of the Lenders holding a majority of the aggregate outstanding principal
amount of the Tranche B Term Loans; provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Collateral Agent, any Issuing Bank, any A/C Fronting
Lender or the Swingline Lender hereunder or under any other Loan Document
without the prior written consent of the Administrative Agent, the Collateral
Agent, such Issuing Bank, such A/C Fronting Lender or the Swingline Lender.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the parties
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with respect to the subject matter hereof is superseded by this Agreement and
the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforce able provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement 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, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or preceeding shall be conclusive and may be
98
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against any Borrower or its properties in the courts of
any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01; provided, however,
that each Subsidiary Borrower hereby appoints Xxxxxx X. Xxxxxx, Esq., Xxxxxxxx
Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
XX 00000, as its agent for service of process. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
SECTION 9.16. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of each party in respect of any sum due to any
other party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such party agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the Loan Parties contained in
this Section 9.16 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.
SECTION 9.17. Confidentiality. The Administrative Agent, the Collateral
Agent, each Issuing Bank and each of the Lenders agrees to keep confidential
(and to use its best efforts to cause its respective agents and representatives
to keep confidential) the Information (as defined below) and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that
the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers,
99
directors, employees, agents, affiliates and representatives as need to know
such Information, (b) to the extent requested by any regulatory authority
(provided such authority shall be advised of the confidential nature of the
Information), (c) to the extent otherwise required by applicable laws and
regulations or by any subpoena or similar legal process, (d) in connection with
any suit, action or proceeding relating to the enforcement of its rights
hereunder or under the other Loan Documents, (e) to any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty (or its
affiliates) is not a competitor of Terex or any of its Subsidiaries and agrees
to be bound by the provisions of this Section 9.17) or (f) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section 9.17 or (ii) becomes available to the Administrative Agent, any
Issuing Bank, any Lender or the Collateral Agent on a nonconfidential basis from
a source other than any Borrower. For the purposes of this Section,
"Information" shall mean all financial statements, certificates, reports,
agreements and information (including all analyses, compilations and studies
prepared by the Administrative Agent, the Collateral Agent, any Issuing Bank or
any Lender based on any of the foregoing) that are received from any Borrower
and related to any Borrower, any shareholder of any Borrower or any employee,
customer or supplier of any Borrower, other than any of the foregoing that were
available to the Administrative Agent, the Collateral Agent, any Issuing Bank or
any Lender on a nonconfidential basis prior to its disclosure thereto by any
Borrower, and which are in the case of Information provided after the date
hereof, clearly identified at the time of delivery as confidential. The
provisions of this Section 9.17 shall remain operative and in full force and
effect regardless of the expiration and term of this Agreement.
SECTION 9.18. European Monetary Union. If, as a result of the
implementation of European monetary union, (a) any currency ceases to be lawful
currency of the nation issuing the same and is replaced by a European common
currency, then any amount payable hereunder by any party hereto in such currency
shall instead be payable in the European common currency and the amount so
payable shall be determined by translating the amount payable in such currency
to such European common currency at the exchange rate recognized by the European
Central Bank for the purpose of implementing European monetary union, or (b) any
currency and a European common currency are at the same time recognized by the
central bank or comparable authority of the nation issuing such currency as
lawful currency of such nation, then (i) any Loan made at such time shall be
made in such European common currency and (ii) any other amount payable by any
party hereto in such currency shall be payable in such currency or in such
European common currency (in an amount determined as set forth in clause (a)),
at the election of the obligor. Prior to the occurrence of the event or events
described in clause (a) or (b) of the preceding sentence, each amount payable
hereunder in any currency will continue to be payable only in that currency.
Each Borrower agrees, at the request of the Required Lenders, at the time of or
at any time following the implementation of European monetary union, to enter
into an agreement amending this Agreement in such manner as the Required Lenders
shall reasonably request in order to avoid any unfair burden or disadvantage
resulting from the implementation of such monetary union and to place the
parties hereto in the position they would have been in had such monetary union
not been implemented, the intent being that neither party will be adversely
affected economically as a result of such implementation and
100
that reasonable provisions may be adopted to govern the borrowing, maintenance
and repayment of Loans denominated in any Alternative Currency or a European
common currency after the occurrence of the event or events described in clause
(a) or (b) of the preceding sentence.
SECTION 9.19. German Borrower. Terex may designate the German Borrower
to be a Subsidiary Borrower under this Agreement on or after the consummation of
the Acquisition by delivering a written notice to the Administrative Agent
together with (i) an accession agreement satisfactory to the Administrative
Agent and duly executed by Terex and the German Borrower, (ii) an opinion of
counsel reasonably satisfactory to the Administrative Agent and (iii) a pledge
by Terex of 65% of the capital stock of the German Borrower for the benefit of
the Secured Parties. Upon the execution of such accession agreement by the
Administrative Agent, the German Borrower shall become a Borrower under this
Agreement with all of the rights and obligations of a Borrower.
101
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TEREX CORPORATION,
by
Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Senior Vice President
TEREX EQUIPMENT LIMITED,
by
Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Director
P.P.M. S.A.,
by
Fil Filipov
Name: Fil Filipov
Title: President & Director
UNIT RIG (AUSTRALIA) PTY. LTD.,
by
Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Secretary
P.P.M. S.p.A,
by
Fil Filipov
Name: Fil Filipov
Title: President
102
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent,
Collateral Agent and Swingline Lender,
by
Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Associate
by
Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
ABN AMRO BANK N.V.,
by
Xxxxxx Dry
Name: Xxxxxx Dry
Title: Group Vice President
by
Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Corporate Banking Officer
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
by
Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
BANKBOSTON N.A., as Revolver and Term
A Lender,
by
Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Managing Director
103
BANKBOSTON, N.A.,
by
Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Managing Director
CIBC INC.,
by
Xxxxxxx X. Xxxxx, Xx.
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Executive Director
CREDIT LYONNAIS, NEW YORK BRANCH,
by
Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: First Vice President-Manager
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES,
by
Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
by
Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
by
Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: Vice President-Director
104
GENERAL ELECTRIC CAPITAL CORPORATION,
by
Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Duly Authorized Signatory
MARINE MIDLAND BANK,
by
Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Authorized Signatory
NATIONAL CITY BANK,
by
Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
KZH HOLDING CORPORATION III,
by
Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Authorized Agent
SKANDINAVISKA ENSKILDA XXXXXX
XX (publ), NEW YORK BRANCH,
by
Sverker Johansson
Name: Sverker Johansson
Title: Vice President
by
Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
105
KZH-CRESCENT-2 CORPORATION,
by
Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Authorized Agent
TORONTO DOMINION (TEXAS), INC.,
by
Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
