AMENDMENT No. 1, dated as of July 14, 1998 (this "Amendment"), to the Credit Agreement dated as of March 6, 1998 (the "Credit Agreement"), among TEREX CORPORATION, a Delaware corporation ("Terex"), TEREX EQUIPMENT LIMITED, a company organized under...
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AMENDMENT No. 1, dated as of July
14, 1998 (this "Amendment"), to the Credit
Agreement dated as of March 6, 1998 (the
"Credit Agreement"), among TEREX
CORPORATION, a Delaware corporation
("Terex"), TEREX EQUIPMENT LIMITED, a
company organized under the laws of
Scotland, P.P.M. S.A., a company organized
under the laws of the Republic of France,
UNIT RIG (AUSTRALIA) PTY. LTD., a company
organized under the laws of New South Wales,
Australia, and P.P.M. Sp.A., a company
organized under the laws of the Republic of
Italy, the Lenders (as defined in the Credit
Agreement), the Issuing Banks (as defined in
the Credit Agreement) and CREDIT SUISSE
FIRST BOSTON, a bank organized under the
laws of Switzerland, acting through its New
York branch ("CSFB"), as administrative
agent (in such capacity, the "Administrative
Agent") and as collateral agent (in such
capacity, the "Collateral Agent") for the
Lenders.
A. Pursuant to the Credit Agreement, the Lenders and the
Issuing Banks have extended credit to the Borrowers, and have agreed to extend
credit to the Borrowers, in each case pursuant to the terms and subject to the
conditions set forth therein.
B. Terex, through its indirect, wholly-owned subsidiary
Picadilly Maschinenhandel GmbH & Co. KG, a partnership organized under the laws
of the Federal Republic of Germany ("Picadilly"), has acquired all the
outstanding capital shares of O&K Mining from O&K Xxxxxxxxx & Xxxxxx XX ("O&K
Xxxxxxxxx XX") pursuant to the Share Purchase Agreement dated as of December 18,
1997, between O&K Xxxxxxxxx XX and Terex Mining Equipment, Inc.
C. Terex intends (a) to designate O&K Mining as a Subsidiary
Borrower under the Credit Agreement pursuant to the procedures set forth in
Section 9.19 thereof and (b) following such designation, to merge O&K Mining
with and into Picadilly with Picadilly as the surviving entity. Terex desires
that following such merger, Picadilly will succeed O&K Mining as a Subsidiary
Borrower.
D. Terex, having acquired all the outstanding capital shares
of O&K Mining indirectly, is unable to pledge 65% of such shares for the benefit
of the Secured Parties as contemplated by Section 9.19 of the Credit Agreement.
Picadilly, as a Foreign Subsidiary, is exempt from the share pledge requirement
of Section 5.11 of the Credit Agreement because such a pledge by a Foreign
Subsidiary could result in adverse tax consequences to Terex.
E. The Borrowers have requested that certain provisions of the
Credit Agreement be amended as set forth herein.
F. The Required Lenders are willing to amend the Credit
Agreement, pursuant to the terms and subject to the conditions set forth herein.
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G. The Borrowers and the Required Lenders have agreed to amend
certain provisions of the Credit Agreement with respect to the sale of
participations under the Credit Agreement as set forth herein.
H. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment to the Preliminary Statement of the
Credit Agreement. The last sentence of the first paragraph of the preliminary
statement of the Credit Agreement is hereby amended by inserting the phrase ",
through one or more direct or indirect wholly-owned Subsidiaries," after the
phrase "(the "Acquisition")" in such sentence.
SECTION 2. Amendment to Section 1.01 of the Credit Agreement.
(a) The definition of the term "German Borrower" set forth in Section 1.01 of
the Credit Agreement is hereby amended and restated in its entirety as follows:
""German Borrower" shall mean (a) prior to such time as O&K
Mining is merged with and into Picadilly with Picadilly as the
surviving entity, O&K Mining and (b) after such time as O&K Mining is
merged with and into Picadilly with Picadilly as the surviving entity,
Picadilly, but only, in each case, following the consummation of the
Acquisition and the accession to this Agreement by O&K Mining or
Picadilly, as applicable, pursuant to Section 9.19."
(b) Section 1.01 of the Credit Agreement is hereby amended by
inserting, in the appropriate alphabetical order, the following definition:
"Picadilly" shall mean Picadilly Xxxxxxxxxxxxxxx XxxX & Xx.
XX,x partnership founded under the laws of the Federal Republic of Germany.
SECTION 3. Amendment to Section 9.19 of the Credit Agreement.
Section 9.19 of the Credit Agreement is hereby amended by (a) deleting the comma
from the first sentence of such Section and inserting the word "and" in lieu
thereof and (b) deleting the phrase "and (iii) a pledge by Terex of 65% of the
capital stock of the German Borrower for the benefit of the Secured Parties"
from such sentence.
SECTION 4. Amendment to Section 9.04 of the Credit Agreement.
Section 9.04(f) of the Credit Agreement is hereby amended by inserting the
phrase ", releasing any Guarantor or all or any substantial part of the
Collateral" after the word "Loans" in the last line of such Section.
SECTION 5. Representations and Warranties. Each of the
Borrowers represents and warrants to each other party hereto that, after giving
effect to this Amendment, (a) the representations and warranties set forth in
Article III of the Credit Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as though made on and
as of the date hereof, except to the extent such representations and warranties
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expressly relate to an earlier date, and (b) no Default or Event of Default has
occurred and is continuing.
SECTION 6. Conditions to Effectiveness. This Amendment shall
become effective as of the date first written above on the date that the
Administrative Agent shall have received counterparts of this Amendment which,
when taken together, bear the signatures of the Required Lenders.
SECTION 7. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Swingline Lender, any Issuing Bank, the Collateral Agent or the
Administrative Agent, under the Credit Agreement or any other Loan Document, and
shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed in
all respects and shall continue in full force and effect. Nothing herein shall
be deemed to entitle any Borrower to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein.
SECTION 8. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 9. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
TEREX CORPORATION,
by
/s/Xxxx X Xxxxx
-------------------------------
Name: Xxxx X Xxxxx
Title: Senior Vice President
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TEREX EQUIPMENT LIMITED,
by
/s/Xxxx X Xxxxx
-------------------------------
Name: Xxxx X Xxxxx
Title: Director
P.P.M. S.A.,
by
/s/Xxxx X Xxxxx
-------------------------------
Name: Xxxx X Xxxxx
Title: Director
UNIT RIG (AUSTRALIA) PTY. LTD.,
by
/s/Xxxx X Xxxxx
-------------------------------
Name: Xxxx X Xxxxx
Title: Director
P.P.M. Sp.A,
by
/s/Fil Filipov
-------------------------------
Name: Fil Filipov
Title: President and Director
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent,
Collateral Agent and Swingline Lender,
by
/s/Xxxx X. Fatto
-------------------------------
Name: Xxxx X. Fatto
Title: Assistant Vice President
by
/s/Xxxxx Xxxxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Director
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ABN AMRO BANK N.V.,
by
/s/Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
by
/s/Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Corporate Banking Officer
ALLIANCE CAPITAL MANAGEMENT
L.P., as Manager on behalf of ALLIANCE
CAPITAL FUNDING, L.L.C. by:
ALLIANCE CAPITAL MANAGEMENT
CORPORATION, General Partner of
Alliance Capital Management L.P.,
by
/s/Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
ARES LEVERAGED INVESTMENT
FUND L.P.,
by ARES Management, L.P.
by ARES Operating Member, LLC
Its General Partner
by
/s/Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
by
/s/Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
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BANKBOSTON N.A., as Revolver and
Term A Lender,
by
/s/Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
BANKBOSTON, N.A.,
by
/s/Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
CHASE SECURITIES INC., as agent for
THE CHASE MANHATTAN BANK,
by
-------------------------------
Name:
Title:
CIBC INC.,
by
/s/Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
CIBC Xxxxxxxxxxx Corp.
AS AGENT
CREDIT LYONNAIS, NEW YORK
BRANCH,
by
/s/Xxxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxxx Xxxxx
Title: First Vice President-Manager
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CYPRESSTREE INVESTMENT
PARTNERS I, LTD., BY: CYPRESSTREE
INVESTMENT MANAGEMENT
COMPANY INC., as portfolio manager,
by
-------------------------------
Name:
Title:
DEBT STRATEGIES FUND II, INC.,
by
-------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES,
by
-------------------------------
Name:
Title:
by
-------------------------------
Name:
Title:
FIRST DOMINION FUNDING I,
by
/s/Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
FIRST UNION NATIONAL BANK,
by
/s/Xxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
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GENERAL ELECTRIC CAPITAL
CORPORATION,
by
/s/Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Duly Authorized Signatory
KZH HOLDING CORPORATION III,
by
/s/Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Agent
XXXXXX COMMERCIAL PAPER INC,
by
-------------------------------
Name:
Title:
MARINE MIDLAND BANK,
by
/s/Xxxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Authorized Signatory
XXXXXXX XXXXX GLOBAL
INVESTMENT SERIES: INCOME
STRATEGIES PORTFOLIO, by XXXXXXX
XXXXX ASSET MANAGEMENT, L.P., as
investment advisor,
by
-------------------------------
Name:
Title:
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XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED,
by
/s/Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Director
XXXXXXX XXXXX PRIME RATE
PORTFOLIO, by XXXXXXX XXXXX
ASSET MANAGEMENT, L.P., as
investment advisor,
by
-------------------------------
Name:
Title:
MOUNTAIN CLO TRUST,
by
/s/Xxxxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Authorized Signatory
NATIONAL CITY BANK,
by
/s/Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXX CAPITAL FUNDING LP,
by
-------------------------------
Name:
Title:
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XXXXXX DIVERSIFIED INCOME
TRUST,
by
-------------------------------
Name:
Title:
XXXXXX FIDUCIARY TRUST
COMPANY, on behalf of XXXXXX HIGH
YIELD MANAGED TRUST,
by
-------------------------------
Name:
Title:
XXXXXX HIGH YIELD TRUST,
by
-------------------------------
Name:
Title:
XXXXXX VARIABLE TRUST, on behalf
of XXXXXX VT DIVERSIFIED INCOME
FUND,
by
-------------------------------
Name:
Title:
SKANDINAVISKA ENSKILDA XXXXXX
XX (publ), NEW YORK BRANCH,
by
-------------------------------
Name:
Title:
by
-------------------------------
Name:
Title:
00
XXXXXXX XXXXXXXX (XXXXX), INC.,
by
-------------------------------
Name:
Title:
