Contract
AMENDMENT
NO. 4 dated as of January 14, 2010 (this “Amendment”), to the CREDIT
AGREEMENT dated as of July 14, 2006, as amended by AMENDMENT NO. 1 dated as of
January 11, 2008, AMENDMENT NO. 2 dated as of February 24, 2009, and AMENDMENT
NO. 3 dated as of May 27, 2009 (as so amended, the “Credit Agreement”), among
TEREX CORPORATION, a Delaware corporation (“Terex”), NEW TEREX HOLDINGS
UK LIMITED, a limited company organized under the laws of England (the “U.K. Borrower”), TEREX
INTERNATIONAL FINANCIAL SERVICES COMPANY, a company organized under the laws of
the Republic of Ireland (the “European Borrower”), TEREX
MINING AUSTRALIA PTY LTD, a company organized under the laws of Australia and
registered in New South Wales, Australia (the “Old Australian Borrower”),
TEREX LIFTING AUSTRALIA PTY LTD, a company organized under the laws of Australia
and registered in Queensland, Australia (“Terex Lifting” or the “Australian Borrower”), and
TEREX ITALIA S.R.L., a company organized under the laws of the Republic of Italy
(the “Italian Borrower”
and, together with Terex, the U.K. Borrower, the European Borrower, and the
Australian Borrower, the “Borrowers”), the Lenders (as
defined in Article I of the Credit Agreement), the Issuing Banks (as
defined in Article I of the Credit Agreement) and CREDIT SUISSE AG (formerly
known as Credit Suisse), as administrative agent (in such capacity, the “Administrative Agent”) and as
collateral agent (in such capacity, the “Collateral Agent”) for the
Lenders.
A. Pursuant
to the Credit Agreement, the Lenders and the Issuing Banks have extended, and
have agreed to extend, credit to the Borrowers, in each case pursuant to the
terms and subject to the conditions set forth in the Credit
Agreement.
B. The
Borrowers have requested that certain provisions of the Credit Agreement be
amended as provided herein.
C. The
Required Lenders, on the terms and subject to the conditions set forth herein,
are willing so to amend the Credit Agreement.
D. Capitalized
terms used but not defined herein shall have the meanings assigned to them in
the Credit Agreement, as amended hereby.
Accordingly,
in consideration of the mutual agreements herein contained and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION
1. Amendments to
the Credit Agreement. (a) The preamble of the Credit Agreement
is hereby amended by replacing the words “TEREX MINING AUSTRALIA PTY LTD” with
the words “TEREX LIFTING AUSTRALIA PTY LTD”.
(b) Section
1.01 of the Credit Agreement is hereby amended by inserting the following
defined terms in the appropriate alphabetical order therein:
“Bucyrus”
shall mean Bucyrus International, Inc.
“Bucyrus Purchase
Agreement” shall mean the Asset and Stock Purchase Agreement dated as of
December 20, 2009, between Terex and Bucyrus and any separate agreements for the
purchase of Bucyrus Stock contemplated thereby.
“Bucyrus
Stock” shall mean the shares of common stock of Bucyrus acquired by Terex
(if any) pursuant to the Bucyrus Purchase Agreement as consideration, in part,
for the Bucyrus Transactions.
“Bucyrus
Transactions” shall mean the sale by Terex of its mining business to
Bucyrus pursuant to the Bucyrus Purchase Agreement for consideration of
approximately $1,300,000,000 in cash and, at the election of Terex, Bucyrus
Stock.
(c) The
definition of the term “Hedging Agreement” set forth in Section 1.01 of the
Credit Agreement is hereby amended by inserting the words “or any hedging
agreement for the purpose of managing risk as a result of Terex’s investment in
the Bucyrus Stock” immediately after the words “commodity price hedging
arrangement”.
(d) Section
6.04(q) of the Credit Agreement is hereby amended by deleting the word “and”
from the end thereof.
(e) Section
6.04(r) of the Credit Agreement is hereby amended by replacing the period at the
end thereof with “; and”.
(f) Section
6.04 of the Credit Agreement is hereby amended by adding the following
paragraph (s) at the end thereof:
(s)
investments by Terex consisting of Bucyrus Stock and in Hedging Agreements with
respect thereto.
(g) Section
6.05(b)(ii) of the Credit Agreement is hereby amended by inserting at the
beginning thereof the words, “except for the Bucyrus Transactions,”
SECTION
2. Amendment
Fee. In consideration of the agreements of the Lenders
contained in this Amendment, the Borrowers agree to pay to each Lender that
executes and delivers a copy of this Amendment to the Administrative Agent (or
its
counsel)
at or prior to 3:00 p.m., New York City time, on January 14, 2010 through the
Administrative Agent, an amendment fee (the “Amendment Fee”) in an amount
equal to 0.15% of the sum of the aggregate principal amount outstanding of such
Lender’s Term Loans and Revolving Credit Commitments (whether used or unused) as
of such date. The Amendment Fee shall be payable in immediately
available funds on, and subject to the occurrence of, the Amendment Effective
Date (as defined below).
SECTION
3. Representations
and Warranties. To induce the other parties hereto to enter
into this Amendment, each of the Borrowers represents and warrants to the
Administrative Agent, the Collateral Agent, the Issuing Banks and each of the
Lenders that:
(a) This
Amendment has been duly authorized, executed and delivered by it and constitutes
its legal, valid and binding obligation, enforceable in accordance with its
terms except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
(b) After
giving effect to this Amendment, the representations and warranties set forth in
Article III of the Credit Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as though made on and
as of the date hereof, except to the extent such representations and warranties
expressly relate to an earlier date.
(c) After
giving effect to this Amendment, no Default or Event of Default has occurred and
is continuing.
SECTION 4. Substitution of Australian
Borrower. On or prior to the closing date of the Bucyrus
Transactions (the “Bucyrus
Closing Date”), Terex shall ensure that the Old Australian Borrower shall
have repaid in full all outstanding Loans made to it under the Credit Agreement,
and returned or cash collateralized to the satisfaction of the Administrative
Agent and the Issuing Bank all Letters of Credit (if any) outstanding with
respect to which the Old Australian Borrower is the account
party. Following such repayment and return or cash collateralization
(if required), upon the Bucyrus Closing Date, the Old Australian Borrower shall
be released from all its obligations, and shall cease to be entitled to any of
the benefits of being, a Borrower under the Credit Agreement. Upon
delivery to the Administrative Agent of such corporate documents, board
resolutions, legal opinions and other information (including all applicable
“know your customer” information) as the Administrative Agent may reasonably
request, Terex Lifting shall become the Australian Borrower for all purposes of
the Credit Agreement and the other Loan Documents, all without affecting the
obligations of the other Borrowers, the Subsidiary Guarantors and the
Multicurrency Revolving Credit Lenders.
SECTION
4. Effectiveness. This
Amendment shall become effective as of the date set forth above on the date (the
“Amendment Effective
Date”) on which the following conditions shall be satisfied:
(a) The
Administrative Agent shall have received counterparts of this Amendment that,
when taken together, bear the signatures of (i) the Borrowers,
(ii) the Subsidiary Guarantors and (iii) the Required
Lenders.
(b) The
Administrative Agent shall have received the Amendment Fee.
SECTION
5. Effect of
Amendment and Subsidiary Guarantors. Except as expressly set
forth herein, this Amendment shall not by implication or otherwise limit,
impair, constitute a waiver of, or otherwise affect the rights and remedies of
the Lenders, the Administrative Agent or the Borrowers under the Credit
Agreement or any other Loan Document, and shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Loan Document, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect. Nothing herein shall be deemed to entitle the Borrowers
to a consent to, or a waiver, amendment, modification or other change of, any of
the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other Loan Document in similar or different
circumstances. After the date hereof, any reference to the Credit
Agreement shall mean the Credit Agreement as modified hereby. This
Amendment shall constitute a “Loan Document” for all purposes of the Credit
Agreement and the other Loan Documents. Each Loan Party hereby consents to this
Amendment and the transactions contemplated hereby, and each Loan Party hereby
(a) agrees that, notwithstanding the effectiveness of this Amendment, each
of the Security Documents to which such Loan Party is a party continues to be in
full force and effect, (b) confirms its guarantee of the Obligations (with
respect to each Guarantor) and its grant of a security interest in its assets as
Collateral therefor (with respect to each Loan Party that has granted a security
interest in any Collateral), all as provided in the Loan Documents, and (c)
acknowledges that such guarantee and/or grant continue in full force and effect
in respect of, and to secure, the Obligations under the Credit Agreement (as
amended hereby) and the other Loan Documents. Without limiting the
foregoing, each Guarantor confirms its joint and several liability for the
Obligations of Terex Lifting.
SECTION
6. Authorization of
Release. The Lenders hereby authorize the Administrative Agent
to, at Terex’s expense, take such action and execute any such documents as may
be reasonably requested by any Borrower to release (i) the Old Australian
Borrower and any other Subsidiaries of Terex being sold pursuant to the Bucyrus
Transactions from their obligations under any Loan Documents and (ii) any Liens
created by any Loan Document in respect of any Collateral being sold pursuant to
the Bucyrus Transactions.
SECTION
7. Applicable
Law. THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
SECTION
8. Counterparts. This
Amendment may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single
contract. Delivery of an executed signature page to this Amendment by
facsimile transmission shall be effective as delivery of a manually signed
counterpart of this Amendment.
SECTION
9. Notices. All
notices hereunder or in connection herewith shall be given in accordance with
the provisions of Section 9.01 of the Credit Agreement.
SECTION
10. Headings. The
headings of this Amendment are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
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TEREX
CORPORATION,
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By:
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Name:
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Title:
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NEW
TEREX HOLDINGS UK LIMITED,
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By:
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Name:
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Title:
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TEREX
INTERNATIONAL FINANCIAL SERVICES COMPANY
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By:
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Name:
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Title:
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TEREX
MINING AUSTRALIA PTY LTD,
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By:
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Name:
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TEREX
LIFTING AUSTRALIA PTY LTD,
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By:
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Name:
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[Terex
Amendment No. 4 to the Credit Agreement Signature Page]
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TEREX
ITALIA S.R.L.,
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By:
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Name:
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[Terex Amendment No. 4 to the Credit Agreement Signature Page]
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EACH
SUBSIDIARY GUARANTOR LISTED ON SCHEDULE I HERETO
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by
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Name:
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Title: Authorized
Signatory
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[Terex
Amendment No. 4 to the Credit Agreement Signature Page]
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CREDIT
SUISSE AG, CAYMAN ISLANDS BRANCH, INDIVIDUALLY AND AS ADMINISTRATIVE
AGENT, COLLATERAL AGENT, ISSUING BANK AND SWINGLINE
LENDER,
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by
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Name:
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Title:
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by
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Name:
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Title:
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[Terex
Amendment No. 4 to the Credit Agreement Signature Page]
SIGNATURE
PAGE TO AMENDMENT NO. 4 DATED AS OF JANUARY 14, 2010, TO THE TEREX
CORPORATION CREDIT AGREEMENT DATED AS OF JULY 14, 2006, AS AMENDED.
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NAME
OF LENDER:
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By
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Name:
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Title:
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[Terex
Amendment No. 4 to the Credit Agreement Signature Page]
SIGNATURE
PAGE TO AMENDMENT NO. 4 DATED AS OF JANUARY 14, 2010, TO THE TEREX
CORPORATION CREDIT AGREEMENT DATED AS OF JULY 14, 2006, AS AMENDED.
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NAME
OF LENDER:
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By
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Name:
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Title:
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By
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Name:
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Title:
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[Terex
Amendment No. 4 to the Credit Agreement Signature Page
ANNEX
I
Subsidiary
Guarantors
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Amida
Industries, Inc.
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A.S.V.,
Inc.
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CMI
Terex Corporation
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Genie
Holdings, Inc.
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Genie
Industries, Inc.
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Genie
International, Inc.
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Genie
Manufacturing, Inc.
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Xxxxxxxxx
Mfg. Inc.
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Powerscreen
Holdings USA Inc.
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Powerscreen
North America, Inc.
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Powerscreen
USA, LLC
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Terex
Advance Mixer, Inc.
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Terex
USA, LLC
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Terex
Utilities, Inc.
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Terex-Telelect,
Inc.
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