CONFORMED COPY
AMENDMENT No. 7, CONSENT and WAIVER dated as of November 30, 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"),
certain foreign subsidiaries of Terex (the "Subsidiary Borrowers") and, together
with Terex, 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. Terex and the other Borrowers have requested that certain
provisions of the Credit Agreement be amended in the form hereof.
C. The Required Lenders and the A/C Fronting Lenders are
willing so to amend the Credit Agreement pursuant to the terms and subject to
the conditions set forth herein.
D. Each capitalized term used and not otherwise defined herein
shall have the meaning assigned to such term 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 Credit Agreement. (a) The reference to
the company "P.P.M. Sp.A." in the first paragraph to the Credit Agreement is
hereby replaced with a reference to the company "Terex Italia S.r.l".
(b) The definition of "A/C Fronting Commitment" contained in
Section 1.01 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
""A/C Fronting Commitment" shall mean, with respect to any A/C Fronting
Lender, the commitment of such A/C Fronting Lender to make Loans pursuant to
Section 2.24 or in the Assignment and Acceptance pursuant to which such A/C
Fronting 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 A/C Fronting Lender pursuant to Section 9.04. The initial
A/C Fronting Commitment of the Italian Fronting Lender shall be
$10,000,000.00, and the initial A/C Fronting Commitment of the Australian
Fronting Lender shall be $25,000,000.00."
SECTION 2. Consent and Waiver. The Required Lenders hereby (a) consent to
the merger of the P.P.M. Sp.A. into Terex Italia S.r.l and (b) waive any Default
or Event of Default occurring as a result of such merger.
SECTION 3. Agreement. The Borrowers and the Required Lenders agree that,
upon the effectiveness of this Amendment, (a) subject to Section 9.02 of the
Credit Agreement, P.P.M. Sp.A. shall cease to be a Borrower under the Credit
Agreement and (b) upon execution and delivery by Terex Italia S.r.l. of this
Amendment, Terex Italia S.r.l. shall become the Italian Borrower under the
Credit Agreement with all of the rights and obligations of a Borrower
thereunder.
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 effective date of this Amendment, 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
date that (a) the Administrative Agent or its counsel shall have received
counterparts of this Amendment which, when taken together, bear the signatures
of each of the Borrowers, the Required Lenders and the A/C Fronting Lenders and
(b) all obligations of the Italian Borrower (as defined in the Credit Agreement
before giving effect to this Amendment) under the Credit Agreement, including
any accrued and unpaid fees and expenses, shall have been paid in full.
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: Vice President
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
TEREX MINING (AUSTRALIA) PTY. LTD.,
(f/k/a UNIT RIG (AUSTRALIA) PTY. LTD.),
by
/s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Director
TEREX ITALIA S.R.L.,
by
/s/ Fil Filipov
Name: Fil Filipov
Title: Director
PICADILLY MASCHINENHANDEL
GMBH & CO. KG,
by
/s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Director
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative
Agent, Collateral Agent, Swingline
Lender and Australian Fronting Lender,
by
/s/ Xxxx X'Xxxx
Name:Xxxx X'Xxxx
Title: Vice President
by
/s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Vice President
BANKBOSTON, N.A.,
individually and as Italian Fronting
Lender,
by
/s/ Xxxxx X. X'Xxxxxxx
Name:Xxxxx X. X'Xxxxxxx
Title: Managing Director
ABN AMRO BANK N.V.,
by
/s/ Xxxxxx Xxxxxx
Name:Xxxxxx Xxxxxx
Title: Vice President
by
/s/ Juliette Mound
Name: Juliette Mound
Title: Assistant Vice President
ARES LEVERAGED INVESTMENT FUND, L.P.,
By: Ares Management, 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 Management II, L.P.,
its General Manager,
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
CIBC INC.,
by
/s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Executive Director
CIBC World Markets Corp.,
as Agent
CREDIT LYONNAIS NEW YORK BRANCH,
by
/s/ Xxxxx Xxxxxxxxx
Name: Xxxxx 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
CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC.,
As: Attorney-in-Fact and on behalf of
First Allmerica Financial Life Insurance
Company as Portfolio Manager,
by
/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Principal
DEUTSCHE FINANCIAL SERVICES CORPORATION,
by
/s/ Xxxxx X. Chewnin
Name: Xxxxx X. Chewnin
Title: Vice President
DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES,
by
/s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
by
/s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
ELC (CAYMAN) LTD.,
by
/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Managing Director
ELC (CAYMAN) LTD. CDO SERIES 1999-I,
by
/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Managing Director
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
ELF FUNDING TRUST 1,
By: Highland Capital Management, L.P.
as Collateral Manager,
by
/s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Portfolio Manager
HIGHLAND LEGACY LIMITED,
By: Highland Capital Management, L.P.
as Collateral Manager,
by
/s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Portfolio Manager
FIRST UNION NATIONAL BANK,
by
/s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
HSBC BANK USA,
by
/s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Senior Vice President
KZH CYPRESSTREE-1 LLC,
by
/s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Authorized Agent
KZH PAMCO,
by
/s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Authorized Agent
KZH SHOSHONE LLC,
by
/s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Authorized Agent
NATIONAL CITY BANK,
by
/s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
ORIX BUSINESS CREDIT, INC.,
by
/s/ Xxxxxxx X. Xxx
Name: Xxxxxxx X. Xxx
Title: Senior Vice President
SENIOR DEBT PORTFOLIO,
By: Boston Management and Research as
Investment Advisor,
by
/s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
THE CIT GROUP,
by
/s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Assistant Vice President
