EXHIBIT 10.1
AMENDMENT No. 4 and CONSENT, dated as of June 22,
1999 (this "Amendment"), to the Credit Agreement dated as of
March 6, 1998, as amended (the "Credit Agreement"), among
TEREX CORPORATION, a Delaware corporation ("Terex"), TEREX
EQUIPMENT LIMITED, a company organized under the laws of
Scotland (the "Scottish Borrower"), P.P.M. S.A., a company
organized under the laws of the Republic of France (the
"French Borrower"), TEREX MINING (AUSTRALIA) PTY. LTD.
(formerly Unit Rig (Australia) Pty. Ltd.), a company organized
under the laws of New South Wales, Australia (the "Australian
Borrower"), P.P.M. Sp.A., a company organized under the laws
of the Republic of Italy (the "Italian Borrower"), PICADILLY
MASCHINENHANDEL GMBH & CO. KG, a partnership organized under
the laws of the Federal Republic of Germany (the "German
Borrower" and, together with Terex, the Scottish Borrower, the
French Borrower, the Australian Borrower and the Italian
Borrower, the "Borrowers"), the LENDERS (as defined in the
Credit Agreement), the ISSUING BANKS (as defined in the Credit
Agreement) and CREDIT SUISSE FIRST BOSTON, a bank organized
under the laws of Switzerland, acting through its New York
branch ("CSFB"), as administrative agent (in such capacity,
the "Administrative Agent") and as collateral agent (in such
capacity, the "Collateral Agent") for the Lenders.
A. Pursuant to the Credit Agreement, the Lenders and the
Issuing Banks have extended credit to the Borrowers, and have agreed to extend
credit to the Borrowers, in each case pursuant to the terms and subject to the
conditions set forth therein.
B. Pursuant to the Loan Documents other than the Credit
Agreement (the "Security and Guarantee Documents"), certain of the Loan Parties
have, among other things, provided certain guarantees and granted certain
security interests to the Lenders and the Issuing Banks.
C. Terex has informed the Administrative Agent that it
intends, through New Terex Holdings UK Limited, a newly formed and wholly owned
limited company incorporated under the laws of England, to acquire (the
"Powerscreen Acquisition") all of the outstanding share capital (the "Shares")
of Powerscreen International plc, a public company incorporated under the laws
of England ("Powerscreen"), pursuant to a recommended cash offer, announced on
June 15, 1999, at a price of 195 xxxxx per share.
D. In connection with the Powerscreen Acquisition, Terex has
entered into a senior subordinated credit agreement, dated as of June 14, 1999
(the "Bridge Credit Agreement"), among Terex, the lenders party thereto and
CSFB, as administrative agent for such lenders, the proceeds of which are to be
used, among other things, to finance the Powerscreen Acquisition.
E. In lieu of borrowing under the Bridge Credit Agreement,
Terex and the other Borrowers have requested that the Credit Agreement be
amended to permit Terex to enter into a new senior secured Tranche C Credit
Agreement in the aggregate principal amount of up to $325,000,000 (the "Tranche
C Credit Agreement"), the proceeds of which will be used, among other things, to
finance the Powerscreen Acquisition.
F. The Borrowers also have requested that certain other
provisions of the Credit Agreement be further amended as set forth herein.
G. The Required Lenders are willing to grant such amendments
pursuant to the terms and subject to the conditions set forth herein.
H. Each capitalized term used and not otherwise defined herein
shall have the meaning assigned to such term in the Credit Agreement, as amended
by this Amendment.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to Credit Agreement.
(a) Section 1.01 is hereby amended as follows:
(i) The following definitions are hereby inserted in
alphabetical order:
(A) ""Additional L/C Exposure" shall mean at any time
the sum of (a) the aggregate undrawn amount of all outstanding
Additional Letters of Credit denominated in dollars at such
time, (b) the Dollar Equivalent of the aggregate undrawn
amount of all outstanding Additional Letters of Credit
denominated in any currency other than dollars at such time,
(c) the aggregate principal amount of all disbursements in
respect of Additional 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
disbursements in respect of Additional Letters of Credit
denominated in any currency other than dollars that have not
yet been reimbursed at such time.";
(B) ""Additional L/C Facility" shall mean a credit
facility, and any refinancing or replacement of such facility,
entered into by Terex, one or more of the Subsidiary Borrowers
and one or more Additional L/C Issuing Banks that shall have
as its sole purpose the issuance of letters of credit to be
used by Terex and one or more of the Subsidiary Borrowers in
the ordinary course of business and that shall require prompt
reimbursement upon any funding of any such letter of credit.";
(C) ""Additional L/C Issuing Bank" shall mean any
Lender or Tranche C Lender that shall issue Additional Letters
of Credit pursuant to the Additional L/C Facility.";
(D) ""Additional Letter of Credit" shall mean each
letter of credit issued pursuant to the Additional L/C
Facility.";
(E) ""Irish Borrower" shall mean Powerscreen, but
only following its accession to this Agreement pursuant to the
terms of Section 9.20.";
(F) ""Irish Facilities" shall mean the credit
facilities of the Irish Borrower.";
(G) ""Powerscreen" shall mean Powerscreen
International plc, a public company incorporated under the
laws of England.";
(H) ""Powerscreen Acquisition" shall mean the
acquisition of at least 75% in nominal amount of the share
capital of Powerscreen pursuant to a recommended cash offer
for all of the outstanding share capital of Powerscreen;
provided, however, that the Powerscreen Acquisition shall be
consummated on the terms and conditions, without material
amendment or waiver, contained in Terex's U.K. press release
of June 15, 1999.";
(I) ""Tranche C Commitment" shall mean the commitment
of each Tranche C Lender to make Tranche C Loans pursuant to
the Tranche C Credit Agreement.";
(J) ""Tranche C Credit Agreement" shall mean the
definitive senior secured credit agreement to be entered into
by Terex, CSFB and certain other financial institutions, as
amended from time to time, the loan proceeds of which shall be
used to purchase the shares of Powerscreen, to repay certain
existing Indebtedness of Powerscreen, to pay related
transaction costs and, as provided for therein, for general
corporate purposes.";
(K) ""Tranche C Lenders" shall mean the lenders from
time to time party to the Tranche C Credit Agreement."; and
(L) ""Tranche C Loans" shall mean the loans made by
the Tranche C Lenders to Terex pursuant to the Tranche C
Credit Agreement.".
(M) ""UK Holdings" shall mean New Terex Holdings UK
Limited, a limited company incorporated under the laws of
England."
(ii) The following definitions are hereby amended as follows:
(A) the definition of "Additional Cost" is hereby
amended by inserting the words "or the Irish Borrower" after
the words "by the Scottish Borrower";
(B) the definition of "Adjusted LIBO Rate" is hereby
amended by inserting the words "or the Irish Borrower" after
the words "by the Scottish Borrower";
(C) the definition of "Applicable Percentage" is
hereby amended by replacing (1) the words "delivery of Terex's
financial statements pursuant to Section 5.04(a) with respect
to its fiscal year ended December 31, 1997" in the proviso to
the first paragraph of such definition with the words "the
first day of the month immediately following the date that is
90 days after the initial borrowing under the Tranche C Credit
Agreement", (2) the number "4.75" in Category 2 in the grid
contained therein with the number "4.50", (3) the number
"4.75" in Category 3 in the grid contained therein with the
number "4.50" and (4) the word "Each" at the beginning of the
second paragraph of such definition with the words "Except as
provided for in the proviso to the preceding paragraph, each";
(D) the definition of "Borrowers" is hereby amended
by inserting the words ", the German Borrower" after the words
"the Italian Borrower" and replacing the words "Section 9.19,
the German Borrower" with the words "Section 9.20, the Irish
Borrower";
(E) the definition of "Commitment" is hereby amended
by inserting at the end of such definition the sentence "For
the purposes of each Loan Document other than this Agreement,
the term "Commitment" shall also include, with respect to any
Tranche C Lender, such Tranche C Lender's Tranche C
Commitment.";
(F) the definition of "Excess Cash Flow" is hereby
amended by inserting (i) the words "or Tranche C Loans" after
the words "Term Loans" on the thirteenth line of such
definition and (ii) the words "or Tranche C Loans" after the
word "Loans" on the sixteenth line of such definition;
(G) the definition of "Issuing Bank" is hereby
amended by inserting at the end of such definition the
sentence "For the purposes of each Loan Document other than
this Agreement, the term "Issuing Bank" shall also include
each Additional L/C Issuing Bank.";
(H) the definition of "L/C Exposure" is hereby
amended by inserting at the end of such definition the
sentence "For the purposes of each Loan Document other than
this Agreement, the term "L/C Exposure" shall also include the
Additional L/C Exposure.";
(I) the definition of "Letter of Credit" is hereby
amended by inserting at the end of such definition the
sentence "For the purposes of each Loan Document other than
this Agreement, the term "Letter of Credit" shall also include
any Additional Letter of Credit.";
(J) the definition of "Loan Document" is hereby
amended by inserting at the end of such definition the
sentence "For the purposes of each Loan Document other than
this Agreement, the term "Loan Document" shall also include
the Tranche C Credit Agreement and the definitive
documentation for the Additional L/C Facility.";
(K) the definition of "Loans" is hereby amended by
inserting at the end of such definition the sentence "For the
purposes of each Loan Document other than this Agreement, the
term "Loans" shall also include the Tranche C Loans.";
(L) the definition of "Permitted Acquisitions" is
hereby amended by inserting the parenthetical "(in a single
transaction or a series of related transactions)" after the
word "acquisitions" in the first line of such definition;
(M) the definition of "Secured Parties" is hereby
amended by inserting the words "and shall also include each
Additional L/C Issuing Bank and each Tranche C Lender" before
the period in such definition; and
(N) the definition of "Subsidiary Borrowers" is
hereby amended by inserting the words ", the German Borrower"
after the words "the Italian Borrower" and replacing the words
"Section 9.19, the German Borrower" with the words "Section
9.20, the Irish Borrower".
(b) Section 2.01 of the Credit Agreement is hereby amended by inserting
the words "and the Irish Borrower" following the words "the Scottish Borrower"
at the end of the parenthetical following the word "Pounds" in the fourth and
eighteenth lines of such Section.
(c) Section 2.13(b) of the Credit Agreement is hereby amended by
replacing the number "$5,000,000" contained therein with the number
"$10,000,000".
(d) Section 2.13(i) of the Credit Agreement is hereby amended by
replacing the words "Issuing Banks, the Swingline Lender and the Lenders"
contained in the penultimate sentence of such Section with the words "Secured
Parties".
(e) Section 2.18 of the C redit Agreement is hereby replaced in its
entirety by the following new Section 2.18:
"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, Tranche C
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,
Tranche C Loans and Revolving Loans and participations in L/C
Disbursements and A/C Fronted Loans of any other Lender or Tranche C
Lender, it shall be deemed simultaneously to have purchased from such
other Lender or Tranche C Lender at face value, and shall promptly pay
to such other Lender or Tranche C Lender the purchase price for, a
participation in the Tranche A Term Loans, Tranche B Term Loans,
Tranche C Loans and Revolving Loans and L/C Exposure and A/C Fronted
Exposure, as the case may be, of such other Lender or Tranche C Lender,
so that the aggregate unpaid principal amount of the Tranche A Term
Loans, Tranche B Term Loans, Tranche C Loans and Revolving Loans and
L/C Exposure and A/C Fronted Exposure and participations in Tranche A
Term Loans, Tranche B Term Loans, Tranche C Loans and Revolving Loans
and L/C Exposure and A/C Fronted Exposure held by each Lender and each
Tranche C Lender shall be in the same proportion to the aggregate
unpaid principal amount of all Tranche A Term Loans, Tranche B Term
Loans, Tranche C 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, Tranche C 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,
Tranche C 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, Tranche C Loan, Revolving Loan, L/C
Disbursement or 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 or
Tranche C Loan, as applicable, directly to such Borrower in the amount
of such participation.".
(f) The following new Section 2.27 is hereby added to the Credit
Agreement:
"SECTION 2.27. Pro Rata Treatment of Term Loans and Tranche C
Loans. Notwithstanding any other provision herein, any funds to be used
to prepay Term Loans pursuant to Section 2.12 or Section 2.13 shall be
allocated pro rata between the Term Loans and the Tranche C Loans based
upon the aggregate outstanding principal amount of the Term Loans and
Tranche C Loans on the date of prepayment; provided, however, that the
Tranche C Lenders shall have the same allocation rights afforded to
holders of Tranche B Term Loans in Section 2.13(j). The Lenders shall
also be entitled to share pro rata in any prepayments of the type
described in Section 2.12 or 2.13 that are made to Tranche C Lenders
pursuant to the Tranche C Credit Agreement. The pro rata amount
allocated to Term Loans in accordance with this Section 2.27 shall be
applied as otherwise required by this Agreement."
(g) The following new Section 3.23 is hereby added to the Credit
Agreement:
"SECTION 3.23. Year 2000. All disclosures in Terex's latest
Form 10-Q relating to its efforts to modify its computer and
information systems and systems containing embedded microchips in order
to address Year 2000 compliance, and any risks associated therewith, do
not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained
therein not materially misleading in the light of the circumstances
under which such statements were made.".
(h) Section 6.01(b) is hereby replaced in its entirety by the following
new subsection (b):
"(b) Indebtedness created under (i) this Agreement, (ii) the
Tranche C Credit Agreement and (iii) the other Loan Documents;
provided, however, that the sum of the Tranche C Loans and the undrawn
Tranche C Commitments shall not exceed $325,000,000 at any time;".
(i) Section 6.01(d) is hereby replaced in its entirety by the following
new subsection (d):
"(d) Indebtedness pursuant to (i) Hedging Agreements and (ii)
the Additional L/C Facility; provided, however, that the Additional L/C
Exposure shall not exceed $50,000,000 at any time;".
(j) Section 6.01(j) of the Credit Agreement is hereby amended by
replacing the number "$70,000,000" contained therein with the number
"$85,000,000".
(k) Section 6.01(m) is hereby replaced in its entirety by the
following new subsection (m):
"(m) Indebtedness incurred under (i) the Italian Facilities in
an amount not exceeding Lit12,850,000,000 in the aggregate at any time
outstanding and (ii) the Irish Facilities in an amount not exceeding
(pound)10,000,000 in the aggregate at any time outstanding;"
(l) Section 6.01(q) of the Credit Agreement is hereby amended by
replacing the number "$10,000,000" contained therein with the number
"$15,000,000".
(m) Section 6.02 of the Credit Agreement is hereby amended by deleting
the word "and" at the end of subsection (m), replacing the period at the end of
subsection (n) with the words "; and" and inserting the following new subsection
(o):
"(o) Liens on the assets of the Irish Borrower not in excess
of the amount reasonably required to fully secure the Irish Facilities."
(n) Section 6.04(c) is hereby replaced in its entirety by the
following new subsection (c):
"(c) Terex may make the Acquisition and the Powerscreen
Acquisition; provided, however, that Terex complies with, and causes
O&K Mining and Powerscreen to comply with, the relevant provisions of
Section 5.11 and, in the case of the Powerscreen Acquisition, Amendment
No. 4 and Consent to this Agreement dated as of June 22, 1999;".
(o) Section 6.04(i) of the Credit Agreement is hereby amended by
replacing the numbers "$1,200,000" and "$8,400,000" contained therein with the
numbers "$2,400,000" and "$16,800,000", respectively.
(p) Section 6.04(n) of the Credit Agreement is hereby amended by
replacing the number "$10,000,000" contained therein with the number
"$25,000,000".
(q) Section 6.05(a) of the Credit Agreement is hereby amended by
replacing the word "and" prior to the identifier "(C)" in the fourteenth line of
such subsection with a comma and by inserting the following new clause (D) at
the end of such subsection:
"and (D) Terex may contribute, or otherwise transfer, all of
the equity in the Scottish Borrower (other than directors' qualifying
shares) to UK Holdings".
(r) Section 6.08 of the Credit Agreement is hereby amended by
inserting at the end of such Section the following proviso:
"provided, however, that UK Holdings shall not engage in any
trade or business, or otherwise conduct any business activity, other
than the ownership of any Foreign Subsidiary and activities incidental
to such ownership".
(s) Section 6.10 of the Credit Agreement is hereby amended by replacing
the number "$17,500,000" contained therein with the number "$25,000,000".
(t) Section 6.11 of the Credit Agreement is hereby amended by replacing
the table contained therein with the following table:
"Period Ratio
Effective Date - March 31, 2000 5.75 to 1.00
April 1, 2000 - March 31, 2001 5.00 to 1.00
April 1, 2001 - March 31, 2002 4.50 to 1.00
April 1, 2002 - March 31, 2003 3.75 to 1.00
Thereafter 3.50 to 1.00".
(u) Section 6.12 of the Credit Agreement is hereby amended by replacing
the table contained therein with the following table:
"Period Ratio
Effective Date - March 31, 2000 2.00 to 1.00
April 1, 2000 - March 31, 2001 2.10 to 1.00
April 1, 2001 - March 31, 2002 2.25 to 1.00
April 1, 2002 - March 31, 2003 2.35 to 1.00
April 1, 2003 - March 31, 2005 2.50 to 1.00
Thereafter 2.75 to 1.00".
(v) Section 6.13 of the Credit Agreement is hereby amended by replacing
the table contained therein with the following table:
"Period Ratio
Effective Date - March 31, 2002 1.15 to 1.00
April 1, 2002 - March 31, 2004 1.20 to 1.00
April 1, 2004 - March 31, 2005 1.25 to 1.00
Thereafter 1.50 to 1.00".
(w) Article VIII of the Credit Agreement is hereby amended (i) by
inserting before the period in the second and third sentences of the fourth
paragraph of such Article VIII the proviso "; provided that such successor Agent
shall also agree to serve in the equivalent position under the Tranche C Credit
Agreement" and (ii) by replacing the parenthetical in the second line of the
sixth paragraph of such Section VIII with the parenthetical "(based on the sum
of its aggregate available Commitments and outstanding Loans hereunder)".
(x) Section 9.01 of the Credit Agreement is hereby amended by deleting
the word "and" at the end of subsection (b), replacing the period at the end of
subsection (c) with the words "; and" and inserting the following new subsection
(d):
"(d) if to a Tranche C Lender that is not also a Lender, to it
in care of Credit Suisse First Boston, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Xxx Xxxxxx (Telecopy No. (000) 000-0000)."
(y) Section 9.02 of the Credit Agreement is hereby amended by inserting
(i) the words ", Tranche C Loan" after the words "any Loan" on the eighth line
of such Section, (ii) the words ", the Tranche C Credit Agreement or the
Additional L/C Facility" after the words "other Loan Document" on the ninth line
of such Section, (iii) the words "or Additional Letter of Credit" after the
words "Letter of Credit" on the ninth and tenth lines of such Section and (iv)
the words "and the Tranche C Commitments" after the word "Commitments" on the
tenth line of such Section.
(z) The following new Section 9.20 is hereby added to the Credit
Agreement:
"SECTION 9.20. Irish Borrower. Terex may designate Powerscreen
to be a Subsidiary Borrower under this Agreement on or after the date
upon which Powerscreen becomes a wholly owned Subsidiary by delivering
a written notice to the Administrative Agent together with (i) an
accession agreement reasonably satisfactory to the Administrative Agent
and duly executed by Terex and Powerscreen, (ii) upon request of the
Administrative Agent, a guarantee agreement reasonably satisfactory to
the Administrative Agent and duly executed by the Scottish Borrower and
Powerscreen and (iii) an opinion of counsel reasonably satisfactory to
the Administrative Agent. Upon the execution of such accession
agreement by the Administrative Agent, Powerscreen shall become the
Irish Borrower under this Agreement with all of the rights and
obligations of a Borrower hereunder.".
(aa) The following new Section 9.21 is hereby added to the Credit
Agreement:
"SECTION 9.21. Rights of Tranche C Lenders and Additional L/C
Issuing Banks. Without the consent of each Tranche C Lender and each
Additional L/C Issuing Bank, the Borrowers and the Lenders shall not
enter into, consent to or approve of any amendment, modification or
waiver of any provision of this Agreement or any other Loan Document
if, as a result of such amendment, waiver or modification, (a) any
Tranche C Lender or Additional L/C Issuing Bank, as applicable, would
no longer be entitled to (i) its ratable share in the benefits of the
Collateral, (ii) the pro rata sharing requirements of Section 2.27 or
(iii) the mandatory participation provisions of Section 2.18, (b) all
or substantially all of the Collateral would be released or (c) any
Guarantor would be released from its obligations under the applicable
Loan Document or Loan Documents, and any such attempted amendment,
modification or waiver shall be null and void. Each Tranche C Lender
and each Additional L/C Issuing Bank shall be entitled to enforce the
provisions of this Section 9.21 and shall be deemed to have provided
Tranche C Commitments, made Tranche C Loans or issued Additional
Letters of Credit, as applicable, in reliance on this Section 9.21.".
SECTION 2. Agreements.
(a) The Borrowers agree to enter into, and cause each
Subsidiary Guarantor to enter into, such amendments and modifications of each
Security and Guarantee Document that the Administrative Agent or the Collateral
Agent shall reasonably determine is necessary to account for the Powerscreen
Acquisition. The Required Lenders hereby consent to any such amendments or
modifications.
(b) Each Loan Party hereby ratifies and affirms its
obligations, covenants and agreements under each Security and Guarantee Document
to which it is party and each Loan Party hereby agrees that the definition of
"Obligations" contained in each Security and Guarantee Document shall include
the following obligations: (a) the due and punctual payment of (i) the principal
of and premium, if any, and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Tranche C Loans by Terex, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, (ii) each
payment required to be made by any Borrower under the Additional L/C Facility in
respect of any Additional Letter of Credit, when and as due, including payments
in respect of reimbursement of disbursements, interest thereon and obligations
to provide cash collateral and (iii) all other monetary obligations, including
fees, costs, expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
any Borrower to the Secured Parties under the Tranche C Credit Agreement and/or
the Additional L/C Facility, (b) the due and punctual performance of (i) all
covenants, agreements, obligations and liabilities of Terex under or pursuant to
the Tranche C Credit Agreement and (ii) all covenants, agreements, obligations
and liabilities of any Borrower under or pursuant to the Additional L/C Facility
and (c) the due and punctual payment and performance of all the covenants,
agreements, obligations and liabilities of each other Loan Party under or
pursuant to any Loan Document.
(c) CSFB, in its role as Administrative Agent and Collateral
Agent, hereby consents to the amendments contained in this Amendment and
confirms that it shall serve as Administrative Agent and Collateral Agent for
the Tranche C Lenders and as Collateral Agent for the Additional L/C Issuing
Banks. Each party hereto agrees that, at any time and from time to time, there
shall be only one Collateral Agent for all of the Secured Parties.
SECTION 3. Fees.
Each Lender that shall execute a counterpart hereof and return
such counterpart to the Administrative Agent or its counsel prior to 5:00 p.m.,
New York City time, on the later of (i) June 29, 1999, or (ii) the date that the
Administrative Agent or its counsel shall have received counterparts of this
Amendment which, when taken together, bear the signatures of the Administrative
Agent, the Collateral Agent, each of the Loan Parties and the Required Lenders
(such later date, the "Amendment Date"), shall be entitled to an amendment fee
(an "Amendment Fee" and, collectively, the "Amendment Fees") equal to 0.125% of
the sum of (a) the aggregate principal amount of such Lender's Loans and (b) the
aggregate amount of such Lender's available Commitments, in each case, as
calculated on the Amendment Date. The Amendment Fees shall become due and
payable on the date of the initial borrowing under the Tranche C Credit
Agreement (the "Tranche C Funding Date"). The Amendment Fee payable to a Lender
shall be paid to the Administrative Agent for the account of such Lender, shall
be paid in immediately available funds and once paid shall not be refundable
under any circumstances.
SECTION 4. 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 Amendment Date
with the same effect as though made on and as of the date hereof, except to the
extent such representations and warranties expressly relate to an earlier date,
and (b) no Default or Event of Default has occurred and is continuing.
SECTION 5. Effectiveness.
This Amendment shall become effective as of the Amendment
Date; provided, however, that the amendments contained in Section 1 shall not
become effective until, and subject to, the Tranche C Funding Date.
Notwithstanding the proviso to the preceding sentence, Terex shall be permitted
to enter into the Tranche C Credit Agreement and purchase Shares pursuant to the
Powerscreen Acquisition on or after the Amendment Date.
SECTION 6. 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 7. 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 8. Applicable Law.
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. 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.
TEREX CORPORATION,
by
/s/ Xxxx X. Xxxxx
------------------
Name: Xxxx X. Xxxxx
Title:Senior Vice President
TEREX EQUIPMENT LIMITED,
by
/s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title:Director
P.P.M. S.A.,
by
/s/ Fil Filipov
---------------
Name: Fil Filipov
Title:President
TEREX MINING (AUSTRALIA) PTY. LTD.,
(f/k/a 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
PICADILLY MASCHINENHANDEL
GMBH & CO. KG,
by
/s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title:Managing Director
[PG NUMBER]
EACH OF THE FOLLOWING LOAN PARTIES:
THE AMERICAN CRANE CORPORATION,
AMIDA INDUSTRIES, INC., KOEHRING
CRANES, INC., O & K XXXXXXXXX &
XXXXXX, INC., PAYHAULER CORP.,
PPM CRANES, INC., TEREX AERIALS,
INC., TEREX CRANES, INC., TEREX
MINING EQUIPMENT, INC., TEREX-RO
CORPORATION, TEREX-TELELECT,
INC.,
by
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title:Assistant Secretary
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent,
Collateral Agent and Swingline Lender,
by
/s/ Xxxx X'Xxxx
---------------
Name: Xxxx X'Xxxx
Title:Vice President
by
/s/ Xxxxxx Xxxx
---------------
Name: Xxxxxx Xxxx
Title:Vice President
18
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: Assistant Vice President
ALLIANCE CAPITAL FUNDING LLC,
as Assignee,
By ALLIANCE CAPITAL MANAGEMENT L.P.,
as Manager,
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, its General Partner,
by /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
ARES LEVERAGED INVESTMENT FUND, L.P.,
By: ARES MANAGMENT, L.P.,
its General Partner,
by /s/ Xxxxx X. Xxxxx
-------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ARES LEVERAGED INVESTMENT FUND II, L.P.,
By: ARES MANAGMENT II, L.P.,
its General Partner,
by /s/ Xxxxx X. Xxxxx
-------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
28
BANKBOSTON,
by /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: SVP
BANK OF TOKYO - MITSUBISHI
TRUST COMPANY,
by /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
BLACK DIAMOND CLO 1998-I LTD,
by /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Analyst
CIBC/ATL,
by /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
CIBC, INC.,
by /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
CREDIT LYONNAIS NEW YORK BRANCH,
by /s/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
CYPRESSTREE INVESTMENT PARTNERS I, LTD.,
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager,
by /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Principal
DEBT STRATEGIES FUND II, INC.,
by /s/ Xxxx Xxxxxxx
-----------------
Name: Xxxx Xxxxxxx
Title: Authorized Signatory
DEUTSCHE FINANCIAL SERVICES CORPORATION,
by /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES,
by /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title Vice President
by /s/ Xxxx X. Xxxxxxx
--------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
ELC (CAYMAN) LTD. CDO SERIES 1999-I,
by /s/ Xxxxxx X. Xxxxx
--------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
ELC (CAYMAN) LTD.,
by /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
FIRST DOMINION FUNDING I,
by /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
FIRST UNION NATIONAL BANK,
by /s/ Xxxx Xxxxxx
----------------
Name: Xxxx Xxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
by /s/ Xxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxx X. Xxxxx
Title: Duly Authorized Signatory
HSBC BANK USA,
(formerly known as Marine Midland
Bank USA)
by /s/ Xxxxx X. XxXxxxx
--------------------
Name: Xxxxx X. XxXxxxx
Title: Authorized Signatory
KZH PAMCO LLC,
by /s/ Xxxxx Xxxx
---------------
Name: Xxxxx Xxxx
Title: Authorized Agent
KZH SHOSHONE LLC,
by /s/ Xxxxxxxx Xxxxxx
--------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC,
by /s/ Xxxxxxxx Xxxxxx
--------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
XXXXXXX XXXXX GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO,
By: Xxxxxxx Xxxxx Asset Management,
L.P., as
Invesment Advisor,
by /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX PRIME RATE PORTFOLIO,
By: Xxxxxxx Xxxxx Asset Management,
L.P., as
Investment Advisor,
by /s/ Xxxx Xxxxxxx
-----------------
Name: Xxxx Xxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.,
by /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
Title: Authorized Signatory
MOUNTAIN CAPITAL CLO I LTD.,
by /s/ Xxxxxx X. Xxxxx
--------------------
Name: Xxxxxx X. Xxxxx
Title: Director
NATIONAL CITY BANK,
by /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXX CAPITAL FUNDING, L.P.,
By:Highland Capital Management, L.P.,
as Collateral Manager,
by /s/ Xxxx Xxxxxxx
-----------------
Name: Xxxx Xxxxxxx
Title: Senior Portfolio Manager
PAMCO CAYMAN LTD.,
By: Highland Capital Management, L.P.,
as Collateral Manager,
by /s/ Xxxx Xxxxxxx
-----------------
Name: Xxxx Xxxxxxx
Title: Senior Portfolio Manager
XXXXXX DIVERSIFIED INCOME TRUST,
by /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: X.X.
XXXXXX HIGH YIELD ADVANTAGE FUND,
by /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: X.X.
XXXXXX HIGH YIELD TRUST,
by /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: X.X.
XXXXXX VARIABLE TRUST - PVT
HIGH YIELD FUND,
by /s/ Xxxx X. Xxxxxx
-------------------
Name: Xxxx X. Xxxxxx
Title: V.P.
SENIOR DEBT PORTFOLIO,
By: Boston Management and Research, as
Investment Advisor,
by /s/ Payson X. Xxxxxxxxx
Name: Payson X. Xxxxxxxxx
Title: Vice President
SENIOR HIGH INCOME PORTFOLIO INC.,
by /s/ Xxxx Xxxxxxx
-----------------
Name: Xxxx Xxxxxxx
Title: Authorized Signatory
