EXECUTION COPY
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INCREMENTAL TERM LOAN ASSUMPTION AGREEMENT
dated as of September 13, 2002,
relating to the
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of July 3, 2002,
among
TEREX CORPORATION,
CERTAIN OF ITS SUBSIDIARIES,
THE LENDERS PARTY THERETO
and
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
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CREDIT SUISSE FIRST BOSTON
and
XXXXXXX XXXXX XXXXXX INC.,
as Co-Lead Arrangers
and Joint Bookrunners
and
XXXXXXX XXXXX BARNEY INC.,
as Syndication Agent
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INCREMENTAL TERM LOAN ASSUMPTION AGREEMENT
dated as of September 13, 2002, (this "Agreement"),
among TEREX CORPORATION, a Delaware corporation
("Terex"), CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS
BRANCH ("CSFB Cayman"), CITICORP USA, INC. ("CUSA"),
and CREDIT SUISSE FIRST BOSTON ("CSFB"), as
administrative agent (in such capacity, the
"Administrative Agent").
A. Reference is made to the Amended and Restated Credit Agreement dated
as of July 3, 2002 (the "Credit Agreement"), among Terex, the subsidiaries of
Terex party thereto, the Lenders party thereto, the Administrative Agent and
CSFB, as Collateral Agent.
B. Pursuant to Section 2.27 of the Credit Agreement, Terex has
requested that CSFB Cayman and CUSA and/or any affiliate thereof, including
Xxxxxxx Xxxxx Xxxxxx Inc. ( "SSBI") and Citibank N.A., as CUSA shall deem
appropriate (together with CUSA, "Citi/SSB", and, together with CSFB Cayman, the
"Incremental Lenders") provide Terex with an Incremental Term Loan Commitment.
C. Each Incremental Lender is willing to provide Terex with an
Incremental Term Loan Commitment, on the terms and subject to the conditions set
forth herein and in the Credit Agreement.
D. 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 hereby agree as follows:
SECTION 1. Defined Terms; etc.. Capitalized terms used and not defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The rules of construction set forth in Section 1.02 of the Credit Agreement
shall apply equally to this Agreement. This Agreement shall be an "Incremental
Term Loan Assumption Agreement" for all purposes of the Credit Agreement and the
other Loan Documents.
SECTION 2. Terms and Conditions. The Incremental Term Loan Commitment
evidenced hereby shall be a commitment to make Other Term Loans to Terex having
the following terms and conditions:
Incremental Term Loan Commitment $210,000,000, 50% of which shall be
Amount: provided by CSFB Cayman and 50% of
which shall be provided by Citi/SSB.
The Incremental Term Loan
Commitments of the Incremental
Lenders are several and not joint.
Incremental Term Loan Closing Date: The full amount of the Incremental Term
Loans to be made under this Agreement
shall be made on September 13, 2002, or
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such other date as may be agreed upon by
CSFB Cayman, Citi/SSB and Terex (such
date, the "Incremental Term Loan Closing
Date"). If the Incremental Term Loan
Closing Date shall not have occurred on or
prior to September 16, 2002, then the
Incremental Term Loan Commitment hereunder
shall terminate unless each of CSFB
Cayman and Citi/SSB, in each of their
respective discretion, shall agree to an
extension.
Incremental Term Loan Maturity Date: December 31, 2009.
Incremental Term Loan Repayment
Dates and Amounts: As set forth in Annex I hereto.
Applicable Percentage: 2.50% per annum, in the case of any
Eurocurrency Incremental Term Loan.
1.50% per annum, in the case of any
ABR Incremental Term Loan.
Special Mandatory Prepayment:
If the Incremental Term Loans shall have
been funded hereunder but Terex shall
not have consummated its proposed
acquisition of Genie Holdings, Inc. (the
"Acquisition") on or prior to October 15,
2002, then on October 16, 2002, Terex
shall prepay Term Loans and Other Term Loans
in accordance with Section 2.13(f)
of the Credit Agreement by an amount equal
to at least $200,000,000 (the
"Prepayment"); provided, however, that if on
October 15, 2002 each of CSFB
Cayman, Citi/SSB and the Administrative
Agent shall reasonably determine that
Terex has not consummated the Acquisition
solely on account of a delay by the
applicable French regulatory agency or other
French governmental organization to
approve the consummation of the Acquisition,
then Terex shall not be required to
make the Prepayment on October 16, 2002;
provided further that in any case if
the Acquisition has not been consummated by
November 15, 2002, Terex shall make
the Prepayment on November 16, 2002.
General: The Incremental Term Loans described
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above shall constitute "Incremental Term
Loans" for all purposes of the Credit
Agreement and the other Loan Documents, and
the Incremental Lenders shall be
Lenders with respect to such Incremental
Term Loans for all purposes of the
Credit Agreement and the other Loan
Documents.
SECTION 3. Conditions Precedent. The obligation of each of CSFB Cayman and
Citi/SSB to make Incremental Term Loans hereunder shall be subject to
satisfaction of the following conditions precedent:
(a) On the Incremental Term Loan Closing Date, each of the
conditions set forth in paragraphs (b) and (c) of Article IV of the
Credit Agreement shall be satisfied, and the Administrative Agent shall
have received a certificate to that effect dated such date and executed
by a Financial Officer of Terex;
(b) The condition set forth in Section 2.27(c)(ii) of the
Credit Agreement shall have been satisfied, and the Administrative
Agent shall have received a certificate to that effect dated the
Incremental Term Loan Closing Date, executed by a Financial Officer of
Terex and containing a reasonably detailed calculation of the ratios
contemplated thereby;
(c) The Administrative Agent shall have received, on behalf of
itself, CSFB Cayman and Citi/SSB, a favorable written opinion of Xxxx
Xxxxx, General Counsel of Terex, substantially to the effect set forth
in Exhibit A, (i) dated the Incremental Term Loan Closing Date, (ii)
addressed to the Administrative Agent, CSFB Cayman and Citi/SSB and
(iii) covering such matters relating to the Loan Documents as the
Administrative Agent shall reasonably request, and Terex hereby
requests such counsel to deliver such opinion.
(d) The Administrative Agent shall have received (i) a copy of
the certificate of incorporation, including all amendments thereto, of
Terex, certified as of a recent date by the Secretary of State of the
State of Delaware (or a certificate of a Responsible Officer of Terex
to the effect that there has been no change to such documents since the
last such documents previously delivered to the Administrative Agent),
and a certificate as to the good standing of Terex as of a recent date
from such Secretary of State; (ii) a certificate of the Secretary or
Assistant Secretary of Terex dated the Incremental Term Loan Closing
Date and certifying (A) that attached thereto is a true and complete
copy of the by-laws of Terex as in effect on the Incremental Term Loan
Closing Date and at all times since a date prior to the date of the
resolutions described in clause (B) below (or a certificate of a
Responsible Officer of Terex to the effect there has been no change to
such documents since the last such documents previously delivered to
the Administrative Agent), (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the board of directors of
Terex authorizing the execution, delivery and performance of this
Agreement and 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 of incorporation of
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Terex has 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 this Agreement on behalf of Terex; (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
CSFB Cayman, Citi/SSB or the Administrative Agent may reasonably
request;
(e) (i) Each of the amendments or modifications to the
Security Documents reasonably requested by, and in form and substance
reasonably satisfactory to, the Administrative Agent 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 Security Documents shall have
been delivered to First American Title Insurance Company of New York
("FATICO"), with instructions to file and record such Security
Documents in the recording office as specified on Schedule 3.19(d) of
the Credit Agreement as promptly as practicable after the Incremental
Term Loan Closing Date and (iii) FATICO shall have received from Terex
all recording fees and mortgage taxes due upon filing.
(f) The Administrative Agent shall have received all fees due
and payable pursuant to the fee letter dated the date hereof among
Terex, CSFB Cayman, CSFB, CUSA and SSBI and all other amounts due and
payable on or prior to the Incremental Term Loan Closing Date,
including, to the extent invoiced, reimbursement or payment of all
reasonable out-of-pocket expenses required to be reimbursed or paid by
Terex hereunder or under any other Loan Document.
SECTION 4. Certain Agreements. (a) Terex acknowledges that the
Incremental Lenders intend to syndicate the Incremental Term Loans made
hereunder and agrees to actively assist the Incremental Lenders in completing a
satisfactory syndication. Such assistance shall include direct contact between
senior management, representatives and advisors of Terex and the proposed
syndicate members and the assistance by Terex in the preparation of marketing
materials to be used in connection with the syndication. Terex further agrees
that all information prepared or furnished by it to the Incremental Lenders in
connection with this Agreement or for use in connection with the syndication of
the Incremental Term Loans shall be subject to the representation set forth in
Section 3.15 of the Credit Agreement.
(b) Terex agrees that, until the Incremental Lenders shall have
notified Terex of the completion of the syndication of the Incremental Term
Loans (which notice shall be given as promptly as practicable and, in any event,
shall be deemed given on the 30th day following the Incremental Term Loan
Closing Date), Terex shall not engage or participate in any competing offering,
placement or arrangement of any debt securities of, or bank financing by, Terex
or any of its subsidiaries in the U.S. capital or bank markets; provided,
however, that the foregoing shall not prohibit (i) the borrowing of Revolving
Loans, Swingline Loans or the issuance of Letters of Credit under the Credit
Agreement, (ii) any sale of receivables permitted by the Credit Agreement or
(iii) the establishment of, or borrowings under, local lines of credit by
Foreign Subsidiaries.
(c) For the avoidance of doubt and without limiting the application
thereof, the parties hereto hereby agree that the provisions of Section 9.05 of
the Credit Agreement
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shall apply to the execution and delivery of, and the performance of the
parties' respective obligations under, this Agreement, the making and
syndication of the Incremental Term Loans, the use of the proceeds thereof and
the other transactions contemplated hereby.
SECTION 5. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Notices. All notices hereunder shall be given in accordance with
the provisions of Section 9.01 of the Credit Agreement.
SECTION 7. Counterparts. This Agreement may be executed in one or more
counterparts, each of which when taken together shall constitute but one
contract, and shall become effective as provided in Section 9 hereof. Delivery
of an executed signature page to this Agreement by facsimile transmission shall
be as effective as delivery of a manually signed counterpart hereof.
SECTION 8. Headings. The headings and cover page of this Agreement are for
convenience of reference only, are not part of this Agreement and are not to be
taken into consideration in interpreting this Agreement.
SECTION 9. Effectiveness. This Agreement shall become effective as of
September 13, 2002, on the date that the Administrative Agent shall have
received counterparts of this Agreement which, when taken together, bear the
signatures of Terex, CSFB Cayman, CUSA and the Administrative Agent. This
Agreement may not be amended, supplemented or otherwise modified other than in a
writing signed by each of the parties hereto.
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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
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Name:
Title:
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH,
by
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Name:
Title:
by
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Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent,
by
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Name:
Title:
by
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Name:
Title:
CITICORP USA, INC.,
by
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Name:
Title:
ANNEX I
Pursuant to Section 2.11(c) of the Credit Agreement, the following
table sets forth the Incremental Term Loan Repayment Dates and the scheduled
amortization of the Incremental Term Loans (expressed as a percentage of the
aggregate principal amount of the Incremental Term Loans outstanding on the
Incremental Term Loan Closing Date):
Incremental Term Loan Percentage
Repayment Date
December 31, 2002 .25%
March 31, 2003 .25%
June 30, 2003 .25%
September 30, 2003 .25%
December 31, 2003 .25%
March 31, 2004 .25%
June 30, 2004 .25%
September 30, 2004 .25%
December 31, 2004 .25%
March 31, 2005 .25%
June 30, 2005 .25%
September 30, 2005 .25%
December 31, 2005 .25%
March 31, 2006 .25%
June 30, 2006 .25%
September 30, 2006 .25%
December 31, 2006 .25%
March 31, 2007 .25%
June 30, 2007 .25%
September 30, 2007 .25%
December 31, 2007 .25%
March 31, 2008 .25%
June 30, 2008 .25%
September 30, 2008 .25%
December 31, 2008 .25%
March 31, 2009 23.4375%
June 30, 2009 23.4375%
September 30, 2009 23.4375%
Incremental Term Loan 23.4375%
Maturity Date
