AMENDMENT No. 8 dated as of June 16, 2000 (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, the
ISSUING BANKS 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 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 following
definitions are added to Section 1.01 of the Credit Agreement in their
appropriate alphabetical positions:
"Euro" shall mean the single currency of the European Union as
constituted by the Treaty on European Union.
"European Borrower" shall mean Xxxxx, but only following its accession
to this Agreement pursuant to the terms of Section 9.22.
"Xxxxx" shall mean Terex International Financial Services Company, a
company incorporated under the laws of the Republic of Ireland.
"Foreign Subsidiary Issuer" shall mean any Foreign Subsidiary, 65% or
more of the equity interest in which has been pledged to secure the
Obligations pursuant to the Pledge Agreement.
"Second-Tier Foreign Subsidiary" shall mean any Foreign Subsidiary
that is not a Foreign Subsidiary Issuer or a Special Purpose Foreign
Holding Subsidiary.
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"Special Purpose Foreign Holding Subsidiary" shall mean (a) any
Foreign Subsidiary Issuer that does not engage in any trade or business or
otherwise conduct any business activity other than (i) the ownership of any
Foreign Subsidiary and activities incidental to such ownership, (ii) the
incurrence of Indebtedness permitted by Section 6.01 and (iii) the making
of investments, loans and advances permitted by Section 6.04 or (b) any
direct and wholly owned subsidiary of a Special Purpose Foreign Holding
Subsidiary as defined in clause (a) of this definition if such direct and
wholly owned subsidiary does not engage in any trade or business or
otherwise conduct any business activity, other than (i) the ownership of
any Foreign Subsidiary and activities incidental to such ownership, (ii)
the incurrence of Indebtedness permitted by Section 6.01 and (iii) the
making of investments, loans and advances permitted by Section 6.04.
(b) The following definition in Section 1.01 is hereby amended
to read in its entirety as follows:
"Subsidiary Borrowers" shall mean, collectively, (a) the Scottish
Borrower, (b) the French Borrower, (c) the Australian Borrower, (d) the
Italian Borrower, (e) the German Borrower, (f) after its accession to this
Agreement pursuant to Section 9.20, the Irish Borrower, and (g) after its
accession to this Agreement pursuant to Section 9.22, the European
Borrower.
(c) Section 2.01 of the Credit Agreement is hereby amended by
inserting the phrase ", in Euros (in the case of the European Borrower)"
immediately after the words "Pounds (in the case of the Scottish Borrower, the
Irish Borrower and the European Borrower)" in clause (c) of the first sentence
of such Section.
(d) Section 6.05(a) of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. (a) Merge into or consolidate with any other person, or
permit any other person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) all or any substantial part of its assets
(whether now owned or hereafter acquired) or any capital stock of any
Subsidiary, or purchase, lease or otherwise acquire (in one transaction
or a series of transactions) all or substantially all of the assets of
any other person, except that (i) any Borrower and any Subsidiary
(other than an Inactive Subsidiary or Finsub) may purchase and sell
inventory in the ordinary course of business, (ii)(A) Terex and any
Subsidiary (other than an Inactive Subsidiary) may sell Program
Receivables to Finsub and (B) Finsub may sell Program Receivables
pursuant to the Receivables Program Documentation and (iii) if at the
time thereof and immediately after giving effect thereto no Event of
Default or Default shall have occurred and be continuing (A) any wholly
owned Subsidiary (other than Finsub) may merge into Terex in a
transaction in which Terex is the surviving corporation, (B) any wholly
owned Subsidiary (other than Finsub) may merge into or consolidate with
any other wholly owned Subsidiary in a transaction in which the
surviving entity is a wholly owned Subsidiary and no person other than
Terex or a wholly owned Subsidiary receives any consideration; provided
that, if either of the wholly owned Subsidiaries party to such merger
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or consolidation is a Guarantor, then the surviving entity shall be or
become a Guarantor, (C) in connection with any Permitted Acquisition
pursuant to Section 6.04(d), Terex or any wholly owned Subsidiary may
acquire or merge into or consolidate with any entity acquired pursuant
to such Permitted Acquisition in a transaction in which the surviving
entity is Terex or a wholly owned Subsidiary; provided that, (x) if
Terex is a party to such merger or consolidation, Terex shall be the
surviving corporation, and (y) if any wholly owned Subsidiary that is a
Guarantor merges into or consolidates with any entity acquired pursuant
to such Permitted Acquisition, then the surviving entity shall be or
become a Guarantor, (D) Terex may contribute, or otherwise transfer,
all of the equity in the Scottish Borrower (other than directors'
qualifying shares) to UK Holdings, (E) Terex or any Subsidiary may
transfer not less than 100% of the capital stock of, or assets of, a
Domestic Subsidiary to Terex or to any wholly owned Domestic Subsidiary
where no person other than Terex or a wholly owned Subsidiary receives
any consideration; provided that, if (x) such capital stock or such
assets being transferred is capital stock of, or assets of, a
Guarantor, then the recipient thereof shall be or become a Guarantor,
and (y) if the transferor of such capital stock or such assets is a
Guarantor, then the recipient thereof shall be or become a Guarantor,
(F) Terex or any Subsidiary may transfer not less than 100% of the
capital stock of a Foreign Subsidiary Issuer to any Special Purpose
Foreign Holding Subsidiary where no person other than Terex or a wholly
owned Subsidiary receives any consideration, (G) any Second-Tier
Foreign Subsidiary may transfer not less than 100% of the capital stock
of, or assets of, a Second-Tier Foreign Subsidiary to Terex or any
wholly owned Subsidiary where no person other than Terex or a wholly
owned Subsidiary receives any consideration and (H) Terex or any
Subsidiary may transfer not less than 100% of the capital stock of, or
assets of, a Second-Tier Foreign Subsidiary to any Special Purpose
Foreign Holding Subsidiary or any Foreign Subsidiary Issuer where no
person other than Terex or a wholly owned subsidiary receives any
consideration.
(e) Section 6.08 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
SECTION 6.08. Business of Borrowers and Subsidiaries. Engage
at any time in any business or business activity other than the Related
Business; provided, however, that (a) 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, (b) Finsub shall not engage in any trade
or business, or otherwise conduct any business activity, other than the
performance of its obligations pursuant to the Receivables Program and
other incidental activities and (c) each Special Purpose Foreign
Holding Subsidiary shall not engage in any trade or business, or
otherwise conduct any business activity, other than as permitted by the
definition of Special Purpose Foreign Holding Subsidiary.
(f) A new Section 9.22 is hereby inserted into the Credit
Agreement after Section 9.21 and shall read as follows:
SECTION 9.22. European Borrower. Terex may designate Xxxxx to
be a Subsidiary Borrower under this Agreement by delivering a written
notice to the Administrative Agent together with (i) an accession
agreement satisfactory to the Administrative Agent and duly executed by
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Terex and Xxxxx, (ii) upon request of the Administrative Agent, a
guarantee agreement reasonably satisfactory to the Administrative Agent
and duly executed by the Scottish Borrower, the Irish Borrower and
Xxxxx, in which the parties thereto guarantee each other's obligations
hereunder, and (iii) an opinion of counsel reasonably satisfactory to
the Administrative Agent. Upon the execution of such accession
agreement by the Administrative Agent, Xxxxx shall become the European
Borrower under this Agreement with all of the rights and obligations of
a Borrower hereunder.
SECTION 2. Schedule 2.01(b). Schedule 2.01(b) to the Credit
Agreement is hereby replaced with Schedule 2.01(b) hereto.
SECTION 3. 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 4. Effectiveness. This Amendment shall become
effective as of the date that 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 and the Required Lenders under each Credit
Agreement.
SECTION 5. 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 6. 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 7. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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SECTION 8. 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/ Xxxxxx X. XxXxx
Name: Xxxxxx X. XxXxx
Title: President, Chief Executive Officer
TEREX EQUIPMENT LIMITED,
by /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Finance Director, Director
P.P.M.S.A.S.,
by /s/ Xxxxxx X. XxXxx
Name: Xxxxxx X. XxXxx
Title: Director
TEREX MINING (AUSTRALIA) PTY. LTD.,
(f/k/a UNIT RIG (AUSTRALIA) PTY. LTD.),
by /s/ Xxxxxx X. XxXxx
Name: Xxxxxx X. XxXxx
Title: Director
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TEREX ITALIA S.R.L.,
by /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Director
PICADILLY MASCHINENHANDEL
GMBH & CO. KG,
PPM Deutchland GmbH, as general partner
by /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
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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/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
FORM OF SIGNATURE PAGE TO
AMENDMENT NO. 8 TO
CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:_________________________________
by _____________________________________
Name:
Title:
Schedule 2.01(b)
Sublimits for Alternative Currency Extensions of Credit1
--------------------------------------------------------------------------------
Dollar Equivalent Sublimit
-----------------------------------------
Revolving Credit2 Tranche A Term Loans3
Borrower Currency Exposure
--------------------------------------------------------------------------------
Scottish Borrower GBP $20,000,000 $12,000,000
--------------------------------------------------------------------------------
French Borrower Ffr/Euro $17,500,000 $20,000,000
--------------------------------------------------------------------------------
Australian Borrower Australian Dollars $25,000,000 -0-
--------------------------------------------------------------------------------
Italian Borrower Lit/Euro $10,000,000 -0-
--------------------------------------------------------------------------------
German Borrower DM/Euro $25,000,000 $48,000,000
--------------------------------------------------------------------------------
Irish Borrower GPB $10,000,000 -0-
--------------------------------------------------------------------------------
European Borrower Euro/GBP $75,000,000 -0-
--------------------------------------------------------------------------------
Maximum permitted
Revolving Credit Any currency other
Exposure to all than dollars $85,000,000 ---
Borrowers in any and Australian
currency other than Dollars
in dollars or
Australian Dollars.
--------------------------------------------------------------------------------
--------
1 The aggregate Revolving Credit Exposure in all currencies other than
dollars and Australian Dollars shall at no time exceed the Dollar
Equivalent of $85,000,000. Within the limitation contained in the previous
sentence, each of the Borrowers listed in the table may borrow in the
specified currencies up to the aggregate limit set forth opposite its name.
2 Expressed as the maximum aggregate Revolving Credit Exposure to the
applicable Borrower permitted at any time.
3 Tranche A Term Loans originally funded in an Alternative Currency remain
denominated in such Alternative Currency, except to the extent such
Alternative Currency was or is in the future replaced by the Euro.
