EXECUTION COPY
AMENDMENT AGREEMENT dated as of March 29, 2001 (this
"Agreement"), among TEREX CORPORATION, a Delaware
corporation ("Terex"), certain foreign subsidiaries of Terex
(the "Subsidiary Borrowers" and, together with Terex, the
"Borrowers"), the LENDERS listed on the signature pages
hereof, 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 collateral agent (in such
capacity, the "Collateral Agent") for the Lenders.
A. Reference is made to (i) the Credit Agreement dated as of March 6, 1998,
as amended prior to the date hereof (the "Original Credit Agreement"), among the
Borrowers, the lenders party thereto (the "Lenders") and the Administrative
Agent and the Collateral Agent, and (ii) the Tranche C Credit Agreement dated as
of July 2, 1999, as amended prior to the date hereof (the "Original Tranche C
Credit Agreement" and, together with the Original Credit Agreement, the
"Existing Credit Agreements"), among Terex, the lenders party thereto (the
"Tranche C Lenders") and CSFB, as administrative agent and collateral agent for
the Tranche C Lenders.
B. Terex has informed the Administrative Agent that it intends to issue
$300,000,000 aggregate principal amount of new senior subordinated notes (the
"New Subordinated Notes") and to use the Net Cash Proceeds from the first
$200,000,000 of such notes to (i) prepay in full the Tranche A Term Loans (as
defined in the Original Credit Agreement) and (ii) to apply the balance of such
amount pro rata to prepay the Tranche B Term Loans and the Tranche C Term Loans
(as defined in the Original Credit Agreement and the Original Tranche C Credit
Agreement, as applicable).
C. The Borrowers have requested that the Original Credit Agreement be
amended and restated in the form of the Amended and Restated Credit Agreement
set forth as Exhibit A hereto (the "Restated Credit Agreement").
D. The Required Lenders (as defined in and under the Original Credit
Agreement) are willing so to amend and restate the Original Credit Agreement on
the terms and subject to the conditions set forth or referred to herein.
E. 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. Capitalized terms used and not defined herein
shall have the meanings assigned to such terms in the Restated Credit Agreement.
SECTION 2. Amendment and Restatement of the Original Credit Agreement. (a)
The Borrowers, the Required Lenders, the Administrative Agent and the Collateral
Agent agree that the Original Credit Agreement (including all Exhibits and
Schedules thereto) is hereby amended and restated, effective as of the
Restatement Closing Date (as defined below), to read in its entirety as set
forth in Exhibit A hereto. As used in the Restated Credit Agreement, the terms
"Agreement", "this Agreement", "herein", "hereinafter", "hereto", "hereof" and
words of similar import shall, unless the context otherwise requires, mean the
Original Credit Agreement as amended and restated by this Agreement.
(b) On the Restatement Closing Date, upon the effectiveness of this
Agreement, each Loan and each Letter of Credit (in each case, as defined in and
outstanding under the Original Credit Agreement) shall be deemed to be a Loan or
Letter of Credit, as applicable, under the Restated Credit Agreement.
SECTION 3. Representations and Warranties. The Borrowers hereby make to
each of the other parties hereto, on and as of the Restatement Closing Date,
each of the representations and warranties contained in Article III of the
Restated Credit Agreement, and each of such representations and warranties is
hereby incorporated by reference herein.
SECTION 4. Fees. On the Restatement Closing Date, upon the effectiveness of
this Agreement, the Borrowers agree to pay a fee (the "Amendment Fee") to each
Lender that executes and delivers to the Administrative Agent (or its counsel) a
signature page to this Agreement on or prior to the Restatement Closing Date,
through the Administrative Agent, in an amount equal to 0.25% of the aggregate
amount of the sum of (a) the outstanding Tranche B Term Loans (as defined in the
Original Credit Agreement) and (b) the outstanding Revolving Credit Commitments
(as defined in the Original Credit Agreement), whether used or unused, of such
Lender, in each case (i) immediately prior to the effectiveness of this
Agreement but (ii) after giving effect to the prepayments referred to in Section
5(g) below. The Amendment Fee shall be payable on the Restatement Closing Date
in immediately available funds. Once paid, the Amendment Fee shall not be
refundable under any circumstances.
SECTION 5. Conditions to Effectiveness. The effectiveness of this Agreement
and the amendment and restatement of the Original Credit Agreement shall be
subject to the satisfaction on a single date (the "Restatement Closing Date") on
or prior to March 31, 2001, of the following conditions precedent:
(a) The Administrative Agent shall have received, on behalf of itself, the
Lenders and the Issuing Banks, a favorable written opinion of Xxxx Xxxxx,
General Counsel of Terex, and counsel for the other Borrowers, substantially to
the effect set forth in Exhibit L of the Restated Credit Agreement, (i) dated
the Restatement Closing Date, (ii) addressed to the Issuing Banks, the
Administrative Agent and the Lenders, and (iii) covering such other matters
relating to this Agreement and the Loan Documents as the Administrative Agent
shall reasonably request, and each Borrower hereby requests such counsel to
deliver such opinion.
(b) All legal matters incident to this Agreement, the Restated Credit
Agreement and the other Loan Documents shall be reasonably satisfactory to the
Required Lenders, to the Issuing Banks and to the Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation or other organizational documents,
including all amendments thereto, of each Loan Party, certified as of a recent
date by the Secretary of State or other Governmental Authority of the state or
other jurisdiction of its organization, if Terex or a Domestic Subsidiary, or
certified by an appropriate officer of such entity if a Foreign Subsidiary Loan
Party, and a certificate as to the good standing of each Loan Party as of a
recent date, from such Secretary of State or other Governmental Authority (with
respect to Terex or any Domestic Subsidiary Loan Parties); (ii) a certificate of
the Secretary or Assistant Secretary of each Loan Party dated the Restatement
Closing Date and certifying (A) that attached thereto is a true and complete
copy of the By-laws or other organizational documents of such Loan Party as in
effect on the Restatement Closing Date and at all times since a date prior to
the date of the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board of
Directors or other appropriate party of such Loan Party authorizing the
execution, delivery and performance of the Loan Documents to which such person
is a party and, in the case of each Borrower, the borrowings thereunder, and
that such resolutions have not been modified, rescinded or amended and are in
full force and effect, (C) that the certificate or articles of incorporation or
other organizational documents of such Loan Party have not been amended since
the date of the last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above (or since the date set forth on the
officer's certificate referred to above, in the case of a Foreign Subsidiary
Loan Party), (D) as to the incumbency and specimen signature of each officer
executing any Loan Document or any other document delivered in connection
herewith on behalf of such Loan Party, and (E) as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing such certificate;
and (iv) such other documents as the Lenders, the Issuing Banks or the
Administrative Agent may reasonably request.
(d) The Administrative Agent shall have received a certificate, dated the
Restatement Closing Date and signed by a Financial Officer of Terex, confirming
that (i) the representations and warranties set forth in Article III of the
Restated Credit Agreement are true and correct in all material respects on and
as of the Restatement Closing Date, (ii) each Loan Party is in compliance with
the terms and provisions set forth in each Loan Document to which it is a party
and (iii) no Default or Event of Default has occurred and is continuing.
(e) The Administrative Agent shall have received the Amendment Fee and all
other amounts due and payable by the Borrowers on or prior to the Restatement
Closing Date, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by any Borrower under
the Restated Credit Agreement or under any other Loan Document.
(f) Each of the Loan Documents (other than the Restated Credit Agreement)
shall be in full force and effect.
(g) Terex shall have issued the New Subordinated Notes and shall have
applied the Net Cash Proceeds substantially concurrent therewith from the first
$200,000,000 thereof to the prepayment of the Term Loans and the Loans under and
as defined in the Original Credit Agreement and the Original Tranche C Credit
Agreement, respectively. The application of such Net Cash Proceeds to the
outstanding Term Loans and Loans shall be as set forth on Schedule 1 hereto, and
the Required Lenders hereby consent to such application.
SECTION 6. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. No Novation. Neither this Agreement nor the effectiveness of the
Restated Credit Agreement shall extinguish the obligations for the payment of
money outstanding under the Original Credit Agreement or discharge or release
the Lien or priority of any security agreement, any pledge agreement or any
other security therefor. Nothing herein contained shall be construed as a
substitution or novation of the Obligations outstanding under the Original
Credit Agreement or instruments securing the same, which shall remain in full
force and effect, except as modified hereby or by instruments executed
concurrently herewith. Nothing expressed or implied in this Agreement, the
Restated Credit Agreement or any other document contemplated hereby or thereby
shall be construed as a release or other discharge of the Borrowers under the
Original Credit Agreement or the Borrowers or any other Loan Party under any
Loan Document (as defined in the Original Credit Agreement) from any of its
obligations and liabilities thereunder. Each of the Original Credit Agreement
and the other Loan Documents shall remain in full force and effect, until and
except as modified hereby or in connection herewith. This Agreement shall
constitute a Loan Document for all purposes of the Original Credit Agreement and
the Restated Credit Agreement.
SECTION 8. Notices. All notices hereunder shall be given in accordance with
the provisions of Section 9.01 of the Restated Credit Agreement.
SECTION 9. 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 11 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 10. Headings. The headings 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 11 Effectiveness. This Agreement shall become effective on the date
that the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each Borrower and the Required
Lenders.
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
Name:
Title:
TEREX EQUIPMENT LIMITED,
by
Name:
Title:
P.P.M. S.A.S.,
by
Name:
Title:
TEREX MINING AUSTRALIA PTY LTD,
by
Name:
Title:
TEREX ITALIA S.R.L.,
by
Name:
Title:
PICADILLY MASCHINENHANDEL GMBH & CO. KG,
by
Name:
Title:
TEREX INTERNATIONAL FINANCIAL SERVICES COMPANY,
by
Name:
Title:
POWERSCREEN INTERNATIONAL PLC,
by
Name:
Title:
'CREDIT SUISSE FIRST BOSTON,
as Administrative Agent, as Collateral Agent,
and as an Issuing Bank
by
Name:
Title:
by
Name:
Title:
SIGNATURE PAGE TO THE
AMENDMENT AGREEMENT DATED
AS OF MARCH 29, 2001, TO THE
CREDIT AGREEMENT DATED AS OF
MARCH 6, 1998, AS AMENDED,
OF TEREX CORPORATOIN AND
VARIOUS SUBSIDIARY BORROWERS
NAME OF INSTITUTION:
-------------------------------
by
Name:
Title:
Schedule 1
(Dollars in millions)
--------------------------------------------------------------------------------
Term Loans Outstanding Prior Net Cash Proceeds Outstanding
---------- to Prepayment Applied Toward After Prepayment
------------- Prepayment ----------------
----------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Tranche A $41.0 '$41.0' $0
--------------------------------------------------------------------------------
Tranche B '$169.5' '$45.8' $123.7
--------------------------------------------------------------------------------
Tranche C '$398.9' '$107.7' '$291.2'
--------------------------------------------------------------------------------
Total '$609.4' '$194.5' $414.9'
--------------------------------------------------------------------------------
EXHIBIT A
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of March 29, 2001
among
TEREX CORPORATION,
CERTAIN OF ITS SUBSIDIARIES,
THE LENDERS NAMED HEREIN
and
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
----------------
CREDIT SUISSE FIRST BOSTON
and
XXXXXXX XXXXX BARNEY INC.,
as Joint Lead Arrangers
and Joint Bookrunners
XXXXXXX XXXXX XXXXXX INC.,
as Syndication Agent
================================================================================
[CS&M Ref No. 5865-043]
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined Terms..................................................1
SECTION 1.02. Terms Generally...............................................28
SECTION 1.03. Exchange Rates................................................29
SECTION 1.04. Classification of Loans and Borrowings........................29
ARTICLE II
The Credits
SECTION 2.01. Commitments and Loans.........................................29
SECTION 2.02. Loans.........................................................30
SECTION 2.03. Borrowing Procedure...........................................32
SECTION 2.04. Evidence of Debt; Repayment of Loans..........................33
SECTION 2.05. Fees..........................................................33
SECTION 2.06. Interest on Loans.............................................35
SECTION 2.07. Default Interest..............................................35
SECTION 2.08. Alternate Rate of Interest....................................36
SECTION 2.09. Termination and Reduction of Commitments......................36
SECTION 2.10. Conversion and Continuation of Borrowings....................36
SECTION 2.11. Repayment of Term Borrowings..................................38
SECTION 2.12. Prepayment....................................................39
SECTION 2.13. Mandatory Prepayments.........................................39
SECTION 2.14. Reserve Requirements; Change in Circumstances.................41
SECTION 2.15. Change in Legality............................................43
SECTION 2.16. Indemnity.....................................................44
SECTION 2.17. Pro Rata Treatment............................................44
SECTION 2.18. Sharing of Setoffs............................................44
SECTION 2.19. Payments......................................................45
SECTION 2.20. Taxes.........................................................46
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate............................................48
SECTION 2.22. Swingline Loans...............................................49
SECTION 2.23. Letters of Credit.............................................50
SECTION 2.24. A/C Fronted Loans.............................................54
SECTION 2.25. Reporting Requirements of A/C Fronting Lenders and Issuing
Banks.......................................................56
SECTION 2.26. Additional Issuing Banks......................................56
SECTION 2.27. Pro Rata Treatment of Term Loans and Tranche C Loans..........57
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers..........................................57
SECTION 3.02. Authorization.................................................57
SECTION 3.03. Enforceability................................................58
SECTION 3.04. Governmental Approvals........................................58
SECTION 3.05. Financial Statements..........................................58
SECTION 3.06. No Material Adverse Change....................................58
SECTION 3.07. Title to Properties; Possession Under Leases..................58
SECTION 3.08. Subsidiaries..................................................59
SECTION 3.09. Litigation; Compliance with Laws..............................59
SECTION 3.10. Agreements....................................................59
SECTION 3.11. Federal Reserve Regulations...................................60
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act....60
SECTION 3.13. Use of Proceeds...............................................60
SECTION 3.14. Tax Returns...................................................60
SECTION 3.15. No Material Misstatements.....................................60
SECTION 3.16. Employee Benefit Plans........................................60
SECTION 3.17. Environmental Matters.........................................61
SECTION 3.18. Insurance.....................................................62
SECTION 3.19. Security Documents............................................62
SECTION 3.20. Location of Real Property and Leased Premises.................62
SECTION 3.21. Labor Matters.................................................63
SECTION 3.22. Solvency......................................................63
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events.............................................63
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties..........................64
SECTION 5.02. Insurance.....................................................65
SECTION 5.03. Obligations and Taxes.........................................66
SECTION 5.04. Financial Statements, Reports, etc............................67
SECTION 5.05. Litigation and Other Notices..................................68
SECTION 5.06. Employee Benefits.............................................68
SECTION 5.07. Maintaining Records; Access to Properties and Inspections.....68
SECTION 5.08. Use of Proceeds...............................................68
SECTION 5.09. Compliance with Environmental Laws............................69
SECTION 5.10. Preparation of Environmental Reports..........................69
SECTION 5.11. Further Assurances............................................69
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness..................................................70
SECTION 6.02. Liens.........................................................72
SECTION 6.03. Sale and Lease-Back Transactions..............................74
SECTION 6.04. Investments, Loans and Advances...............................74
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions.....75
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Restricted Subsidiaries to Pay Dividends....................76
SECTION 6.07. Transactions with Affiliates..................................77
SECTION 6.08. Business of Borrowers and Restricted Subsidiaries.............77
SECTION 6.09. Other Indebtedness and Agreements.............................77
SECTION 6.10. Capital Expenditures..........................................78
SECTION 6.11. Consolidated Leverage Ratio...................................78
SECTION 6.12. Consolidated Interest Coverage Ratio..........................78
SECTION 6.13. Consolidated Fixed Charge Coverage Ratio......................78
SECTION 6.14. Fiscal Year...................................................79
SECTION 6.15. Designation of Unrestricted Subsidiaries......................79
ARTICLE VII
Events of Default .......................................................80
ARTICLE VIII
The Administrative Agent and the Collateral Agent............................83
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices.......................................................85
SECTION 9.02. Survival of Agreement.........................................85
SECTION 9.03. Binding Effect................................................86
SECTION 9.04. Successors and Assigns........................................86
SECTION 9.05. Expenses; Indemnity...........................................89
SECTION 9.06. Right of Setoff...............................................90
SECTION 9.07. Applicable Law................................................90
SECTION 9.08. Waivers; Amendment............................................90
SECTION 9.09. Interest Rate Limitation......................................91
SECTION 9.10. Entire Agreement..............................................91
SECTION 9.11. WAIVER OF JURY TRIAL..........................................91
SECTION 9.12. Severability..................................................92
SECTION 9.13. Counterparts..................................................92
SECTION 9.14. Headings......................................................92
SECTION 9.15. Jurisdiction; Consent to Service of Process...................92
SECTION 9.16. Conversion of Currencies......................................93
SECTION 9.17. Confidentiality...............................................93
SECTION 9.18. European Monetary Union.......................................94
SECTION 9.19. Rights of Tranche C Lenders and Additional L/C Issuing Banks..94
SECTION 9.20. Effect of Restatement.........................................95
SCHEDULES
Schedule 1.01(a) Additional Cost
Schedule 1.01(b) Subsidiary Guarantors
Schedule 1.01(c) Mortgaged Properties
Schedule 1.01(d) Existing Letters of Credit
Schedule 1.01(e) Inactive Subsidiaries
Schedule 2.01(a) Lenders; Commitments
Schedule 2.01(b) Sublimits for Alternative Currency Extensions of Credit
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.17 Environmental Matters
Schedule 3.18 Insurance
Schedule 3.20(a) Owned Real Property
Schedule 3.20(b) Leased Real Property
Schedule 3.21 Labor Matters
Schedule 6.01 Indebtedness
Schedule 6.02 Liens
Schedule 6.04 Investments
EXHIBITS
Exhibit A Form of Administrative Questionnaire
Exhibit B Form ofAssignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Indemnity, Subrogation and Contribution Agreement
Exhibit E Form of Mortgage
Exhibit F Pledge Agreement
Exhibit G Security Agreement
Exhibit H Subsidiary Guarantee Agreement
Exhibit I Terex Guarantee Agreement
Exhibit J Opinion of Xxxx Xxxxx
AMENDED AND RESTATED CREDIT AGREEMENT dated as of March
29, 2001 (this "Agreement"), among TEREX CORPORATION, a
Delaware corporation ("Terex"), TEREX EQUIPMENT LIMITED, a
company organized under the laws of Scotland (the "Scottish
Borrower"), TEREX INTERNATIONAL FINANCIAL SERVICES COMPANY,
a company organized under the laws of the Republic of
Ireland (the "European Borrower"), POWERSCREEN INTERNATIONAL
PLC, a company organized under the laws of England
("Powerscreen"), P.P.M. S.A.S., a company organized under
the laws of the Republic of France (the "French Borrower"),
TEREX MINING AUSTRALIA PTY LTD, a company organized under
the laws of the New South Wales, Australia (the "Australian
Borrower"), PICADILLY MASCHINENHANDEL GMBH & CO. KG, a
partnership founded under the laws of the Federal Republic
of Germany (the "German Borrower"), and TEREX ITALIA S.R.L.,
a company organized under the laws of the Republic of Italy
(the "Italian Borrower"), the Lenders (as defined in Article
I), the Issuing Banks (as defined in Article I) 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.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"A/C Fronted Base Rate" shall mean, for any day, with respect to any A/C
Fronted Loan, a rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the average rate at which overnight deposits in the currency in
which the applicable A/C Fronted Loan is denominated and approximately equal in
principal amount to such A/C Fronted Loan are obtainable by the applicable A/C
Fronting Lender on such day at its lending office for such A/C Fronted Loan in
the interbank market (or any other market for overnight funds in such currency
utilized by such A/C Fronting Lender), adjusted to reflect any direct or
indirect costs of obtaining such deposits (including reserve and assessment
costs, to the extent applicable). The A/C Fronted Base Rate applicable to any
A/C Fronted Loan shall be determined for each day by the A/C Fronting Lender in
respect of such Loan and such determination shall be conclusive absent manifest
error. The applicable A/C Fronting Lender shall notify the applicable Borrower
and the Administrative Agent promptly upon establishing the A/C Fronted Base
Rate for any A/C Fronted Loan, or upon any change thereto.
"A/C Fronted Base Rate Loans" shall mean any A/C Fronted Loan bearing
interest at a rate determined by reference to the A/C Fronted Base Rate in
accordance with the provisions of Article II.
"A/C Fronted Exposure" shall mean, at any time, the Dollar Equivalent of
the aggregate principal amount of all outstanding A/C Fronted Loans at such
time. The A/C Fronted Exposure of any Revolving Credit Lender at any time shall
equal its Pro Rata Percentage of the aggregate A/C Fronted Exposure at such
time.
"A/C Fronted Fixed Rate Loan" shall mean any A/C Fronted Loan bearing
interest at a rate determined by reference to the Bank Xxxx Rate, in the case of
Loans to the Australian Borrower, or the Italian Fixed Rate, in the case of
Loans to the Italian Borrower, in each case in accordance with the provisions of
Article II.
"A/C Fronted Loan" shall mean any loan made by an A/C Fronting Lender
pursuant to its A/C Fronting Commitment.
"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."
"A/C Fronting Fees" shall have the meaning assigned to such term in Section
2.05(e).
"A/C Fronting Lender" shall mean (a) with respect to Loans to the
Australian Borrower, the Australian Fronting Lender, and (b) with respect to
Loans to the Italian Borrower, the Italian Fronting Lender.
"A/C Participation Fees" shall have the meaning assigned to such term in
Section 2.05(d).
"Acquired Indebtedness" shall mean Indebtedness of a person or any of its
subsidiaries (the "Acquired Person") (a) existing at the time such person
becomes a Restricted Subsidiary of Terex or at the time it merges or
consolidates with Terex or any of its Restricted Subsidiaries or (b) assumed in
connection with the acquisition of assets from such person; provided in each
case that (i) such Indebtedness was not created in contemplation of such
acquisition, merger or consolidation and (ii) such acquisition, merger or
consolidation is otherwise permitted under this Agreement.
"Acquired Person" shall have the meaning assigned to such term in the
definition of the term "Acquired Indebtedness".
"Additional Cost" shall mean, in relation to any Borrowing that is
denominated in Pounds and is made by the Scottish Borrower, the European
Borrower or Powerscreen, for any Interest Period, the cost as calculated by the
Administrative Agent in accordance with Schedule 1.01(a) imputed to each Lender
participating in such Borrowing of compliance with the mandatory liquid assets
requirements of the Bank of England during that Interest Period, expressed as a
percentage.
"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.
"Additional L/C Facility" shall mean the letter of credit subfacility under
the Tranche C Credit Agreement or any other 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.
"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.
"Additional Letter of Credit" shall mean each letter of credit issued
pursuant to the Additional L/C Facility.
"Additional Subordinated Notes" shall mean subordinated notes issued from
time to time by Terex, or assumed in connection with a Permitted Acquisition,
after the Restatement Closing Date; provided that (a) such subordinated notes do
not require any scheduled payment of principal prior to a date that is 12 months
after the Tranche B Maturity Date and (b) the subordination provisions and other
non-pricing terms and conditions of such subordinated notes are no less
favorable to the Loan Parties and the Lenders than the analogous provisions of
the New Subordinated Notes.
"Adjusted LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the LIBO Rate in effect for such
Interest Period multiplied by Statutory Reserves; provided, however, that, if
such Eurocurrency Borrowing is denominated in Pounds and is made by the Scottish
Borrower or Powerscreen, then the "Adjusted LIBO Rate" shall be the LIBO Rate in
effect for such Interest Period plus Additional Cost.
"Administrative Agent Fees" shall have the meaning assigned to such term in
Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A, or such other form as shall be supplied by the
Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount of
the Lenders' Revolving Credit Exposures.
"Agreement Currency" shall have the meaning assigned to such term in
Section 9.16.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate for any
reason, including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of the definition thereof,
the Alternate Base Rate shall be determined without regard to clause (b) of the
preceding sentence until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively. The term "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective on the date such change is publicly announced as
being effective. The term "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day,
the average of the quotations for the day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Alternative Currency" shall mean (a) with respect to Revolving Loans and
Letters of Credit, Pounds and Euro, (b) with respect to A/C Fronted Loans and
Letters of Credit, Australian Dollars and Euro and (c) with respect to Letters
of Credit, any other foreign currency which is approved by the applicable A/C
Fronting Lender and the applicable Issuing Bank, in each case in its sole
discretion.
"Alternative Currency Borrowing" shall mean a Borrowing comprised of
Alternative Currency Loans.
"Alternative Currency Equivalent" shall mean, on any date of determination,
with respect to any amount denominated in dollars in relation to any specified
Alternative Currency, the equivalent in such specified Alternative Currency of
such amount in dollars, determined by the Administrative Agent pursuant to
Section 1.03 using the applicable Exchange Rate then in effect.
"Alternative Currency Loan" shall mean any Loan denominated in an
Alternative Currency.
"Alternative Currency Revolving Credit Exposure" shall mean, at any time
with respect to any Alternative Currency, the sum of (a) the Dollar Equivalent
of the aggregate principal amount of all A/C Fronted Loans and outstanding
Revolving Loans that are denominated in such Alternative Currency at such time,
(b) the Dollar Equivalent of the aggregate undrawn amount of all outstanding
Letters of Credit that are denominated in such Alternative Currency at such time
and (c) the Dollar Equivalent of the aggregate principal amount of all L/C
Disbursements in respect of Letters of Credit that are denominated in such
Alternative Currency at such time.
"Alternative Currency Revolving Loan" shall mean a Revolving Loan
denominated in an Alternative Currency.
"Amendment Agreement" shall mean the Amendment Agreement dated as of the
Restatement Closing Date, among the Borrowers, the Administrative Agent, the
Collateral Agent, the Issuing Banks and certain Lenders.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurocurrency Revolving Loan, Eurocurrency Tranche B Term Loan, ABR Revolving
Loan, ABR Tranche B Term Loan, A/C Fronted Loan or with respect to the Facility
Fees, as the case may be, the applicable percentage set forth below under the
caption "Eurocurrency Spread--Revolving Loans", "Eurocurrency Spread--Tranche B
Term Loans", "ABR Spread--Revolving Loans", "ABR Spread--Tranche B Term Loans",
"A/C Fronted Loan Spread" or "Facility Fee Percentage", as the case may be,
based upon the Consolidated Leverage Ratio as of the relevant date of
determination:
==============================================================================================================
Eurocurrency Eurocurrency ABR
Consolidated Spread-- Spread-- ABR Spread-- ABR-- Spread--
Leverage Revolving Tranche B Revolving A/C Fronted Tranche B Facility Fee
Ratio Loans Term Loans Loans Loan Spread Term Loans Percentage 1/
----- ----- ---------- ----------- ----------- ---------- -------------
--------------------------------------------------------------------------------------------------------------
Category 1
Greater than or
equal to 4.50 to 1.00 2.50% 3.00% 1.50% 1.00% 2.00% 0.500%
---------------------------------------------------------------------------------------------------------------
Category 2
Greater than or
equal to 4.00 to
1.00 but less than
4.50 to 1.00 2.25% 2.75% 1.25% 0.750% 1.75% 0.500%
---------------------------------------------------------------------------------------------------------------
Category 3
Greater than or
equal to 3.50 to
1.00 but less than
4.00 to 1.00 1.75% 2.75% 0.75% 0.250% 1.75% 0.500%
---------------------------------------------------------------------------------------------------------------
Category 4
Greater than or
equal to 3.00 to
1.00 but less than
3.50 to 1.00 1.625% 2.75% 0.625% 0.125% 1.75% 0.375%
---------------------------------------------------------------------------------------------------------------
Category 5
Less than 3.00 to 1.00 1.375% 2.75% 0.375% 0.000% 1.75% 0.375%
===============================================================================================================
--------------------
1/ Provided that Facility Fees shall increase by 0.125% at all times that
utilization under the Total Revolving Credit Commitments pursuant to this
Agreement and the Tranche C Credit Agreement is less than 15%.
Each change in the Applicable Percentage resulting from a change in the
Consolidated Leverage Ratio shall be effective with respect to all Loans,
Commitments and Letters of Credit on the date of delivery to the Administrative
Agent of the financial statements and certificates required by Section 5.04(a)
or (b) based upon the Consolidated Leverage Ratio as of the end of the most
recent fiscal quarter included in such financial statements so delivered, and
shall remain in effect until the date immediately preceding the next date of
delivery of such financial statements and certificates indicating another such
change. Notwithstanding the foregoing, at any time after the occurrence and
during the continuance of an Event of Default, the Consolidated Leverage Ratio
shall be deemed to be in Category 1 for purposes of determining the Applicable
Percentage.
"Asset Sale" shall mean the sale, transfer or other disposition (by way of
merger or otherwise and including by way of a Sale and Leaseback) by any
Borrower or any Restricted Subsidiary to any person other than any Borrower or
any Guarantor of (a) any capital stock of any Subsidiary (other than directors'
qualifying shares) or (b) any other assets of any Borrower or any Restricted
Subsidiary (other than inventory, excess, damaged, obsolete or worn out assets,
scrap, Permitted Investments, accounts receivable and/or letters of credit
supporting accounts receivable issued to Terex or any Restricted Subsidiary, in
each case disposed of in the ordinary course of business and, in the case of
accounts receivable, consistent with past practice); provided that any asset
sale or series of related asset sales described in clause (b) above having a
value not in excess of $5,000,000 shall be deemed not to be an "Asset Sale" for
purposes of this Agreement; and provided, further, that, without limiting the
generality of the foregoing and any rights that exist as a result thereof with
respect to the sale of accounts receivable, the sale of Program Receivables
pursuant to the Receivables Program shall be deemed not to be an "Asset Sale"
for the purposes of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Australian Dollars" shall mean dollars in lawful currency of Australia.
"Australian Fronting Lender" shall mean Credit Suisse First Boston, acting
through its Sydney office branch, and its successors and assigns in such
capacity.
"Bank Xxxx Rate" shall mean, in relation to an Interest Period for any A/C
Fronted Fixed Rate Loan denominated in Australian Dollars, the rate determined
by the A/C Fronting Lender to be the average bid rate displayed at or about
10:10 a.m. (Sydney time) on the first day of such Interest Period on the Reuters
screen BBSY page for a term equivalent to such Interest Period. If (a) for any
reason there is no rate displayed for a period equivalent to such Interest
Period or (b) the basis on which such rate is displayed is changed and in the
reasonable opinion of the A/C Fronting Lender such rate ceases to reflect the
A/C Fronting Lender's cost of funding to the same extent as at the Original
Closing Date, then the Bank Xxxx Rate shall be the rate determined by the A/C
Fronting Lender to be the average of the buying rates quoted to the A/C Fronting
Lender by three reference banks selected by it at or about that time on that
date for bills of exchange that are accepted by an Australian bank and that have
a term equivalent to the Interest Period. If there are no such buying rates the
rate shall be the rate reasonably determined by the A/C Fronting Lender to be
its cost of funds. Rates will be expressed as a yield percent per annum to
maturity and rounded up, if necessary, to the nearest two decimal places.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrowers" shall mean, collectively, Terex, the Scottish Borrower, the
European Borrower, Powerscreen, the French Borrower, the Australian Borrower,
the Italian Borrower and the German Borrower.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by any Borrower in accordance with
the terms of Section 2.03 and substantially in the form of Exhibit C.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurocurrency Loan, the
term "Business Day" shall also exclude (a) any day on which banks are not open
for dealings in dollar deposits in the London interbank market (if such
Eurocurrency Loan is denominated in dollars) and (b) any day that is not a
TARGET Day (if such Eurocurrency Loan is denominated in Euro), and, when used in
connection with any Calculation Date or determining any date on which any amount
is to be paid or made available in an Alternative Currency other than Euro, the
term "Business Day" shall also exclude any day on which commercial banks and
foreign exchange markets are not open for business in the principal financial
center in the country of such Alternative Currency.
"Calculation Date" shall mean (a) the date of delivery of each Borrowing
Request, (b) the date of issuance of any Letter of Credit, (c) the date of
conversion or continuation of any Borrowing pursuant to Section 2.10 or (d) such
additional dates as the Administrative Agent or the Required Lenders shall
specify.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Casualty" shall have the meaning assigned to such term in the Mortgages.
"Casualty Proceeds" shall have the meaning assigned to such term in the
Mortgages.
A "Change in Control" shall be deemed to have occurred if (a) any person or
group (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934
as in effect on the Restatement Closing Date) shall own directly or indirectly,
beneficially or of record, shares representing more than 30% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
Terex; (b) a majority of the seats (other than vacant seats) on the board of
directors of Terex shall at any time be occupied by persons who were neither (i)
nominated by the board of directors of Terex, nor (ii) appointed by directors so
nominated; (c) any change in control (or similar event, however denominated)
with respect to Terex or any of its Restricted Subsidiaries shall occur under
and as defined in any indenture or agreement in respect of Indebtedness in an
outstanding principal amount in excess of $5,000,000 to which Terex or any of
its Restricted Subsidiaries is a party; or (d) any person or group shall
otherwise directly or indirectly Control Terex.
"Class", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Tranche
B Term Loans, A/C Fronted Loans or Swingline Loans and, when used in reference
to any Commitment, refers to whether such Commitment is a Revolving Credit
Commitment, A/C Fronting Commitment or Swingline Commitment.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall also include the Mortgaged Properties.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, A/C Fronting Commitment and Swingline Commitment.
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 Revolving Credit Commitment.
"Condemnation" shall have the meaning assigned to such term in the
Mortgages.
"Condemnation Proceeds" shall have the meaning assigned to such term in the
Mortgages.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrowers dated March 2001.
"Consolidated Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability) by Terex or any of its Restricted Subsidiaries during
such period that, in accordance with GAAP, are or should be included in
"additions to property, plant and equipment" or similar items reflected in the
consolidated statement of cash flows of Terex and the Restricted Subsidiaries
for such period (including the amount of assets leased by incurring any Capital
Lease Obligation); provided that expenditures for Permitted Acquisitions shall
not constitute Consolidated Capital Expenditures.
"Consolidated Current Assets" shall mean, as of any date of determination,
the total assets that would properly be classified as current assets (other than
cash and cash equivalents) of Terex and its Restricted Subsidiaries as of such
date, determined on a consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" shall mean, as of any date of
determination, the total liabilities (other than, without duplication, (a) the
current portion of long-term Indebtedness and (b) outstanding Revolving Loans,
A/C Fronted Loans and Swingline Loans) that would properly be classified as
current liabilities of Terex and its Restricted Subsidiaries as of such date,
determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net Income
for such period, plus, without duplication and to the extent deducted from
revenues in determining Consolidated Net Income for such period, the sum of (a)
the aggregate amount of Consolidated Interest Expense for such period, (b) the
aggregate amount of letter of credit fees paid during such period, (c) the
aggregate amount of income and franchise tax expense for such period, (d) all
amounts attributable to depreciation and amortization for such period, (e) all
non-recurring non-cash charges during such period and (f) all non-cash
adjustments made to translate foreign assets and liabilities for changes in
foreign exchange rates made in accordance with FASB No. 52, and minus, without
duplication and to the extent added to revenues in determining Consolidated Net
Income for such period, (i) all non-recurring non-cash gains during such period
and (ii) all non-cash adjustments made to translate foreign assets and
liabilities for changes in foreign exchange rates made in accordance with FASB
No. 52, all as determined on a consolidated basis with respect to Terex and its
Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) the sum, without
duplication, of (i) Consolidated Interest Expense for such period; (ii) income
or franchise taxes paid in cash during such period; (iii) scheduled and
voluntary payments of principal with respect to all Indebtedness (including the
principal portion of Capital Lease Obligations but excluding payments for
inventory to be sold in the ordinary course of business) of Terex and its
Restricted Subsidiaries on a consolidated basis during such period (other than
repayments of (x) Loans under the Original Credit Agreement made on the
Restatement Closing Date or (y) Indebtedness with the proceeds of other
Indebtedness permitted to be incurred hereunder or equity); (iv) payments
permitted pursuant to Section 6.06 made in cash during such period; and (v)
Consolidated Capital Expenditures made in cash during such period.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" of Terex and its Restricted Subsidiaries
shall mean, for any period, interest expense of Terex and its Restricted
Subsidiaries for such period, net of interest income, included in the
determination of Consolidated Net Income. For purposes of the foregoing,
interest expense shall be determined after giving effect to any net payments
made or received by Terex and its Restricted Subsidiaries under Interest Rate
Protection Agreements. Notwithstanding that the Receivables Program does not
constitute Indebtedness under GAAP, for the purposes of calculating Consolidated
Interest Expense under this Agreement, Consolidated Interest Expense shall also
include, for any period, any fees, discounts, premiums, expenses or similar
amounts (other than legal fees and expenses) incurred, without duplication, by
Terex or any of its Restricted Subsidiaries in connection with the Receivables
Program for such period, including, without limitation, purchase discounts (net
of any loss reserves), purchase premiums, operating expense fees, structuring
fees, collection agent fees, unutilized purchase limit fees and other similar
fees and expenses.
"Consolidated Leverage Ratio" shall mean, as of any date of determination,
the ratio of (a) Total Debt on such date to (b) the sum of (i) Consolidated
EBITDA for the most recent period of four consecutive fiscal quarters ended on
or prior to such date and (ii) the Pro Forma Acquisition EBITDA of all Acquired
Persons acquired during such period of four consecutive fiscal quarters. For
purposes of calculating the Consolidated Leverage Ratio as of any date, if any
portion of the Total Debt outstanding on such date is denominated in a currency
other than dollars, then the portion, if any, of Consolidated EBITDA or Pro
Forma Acquisition EBITDA during the period of four consecutive fiscal quarters
ending on or prior to such date and denominated in any such other currency shall
be translated to dollars using the same exchange rate as is used to translate
such portion of the Total Debt denominated in such other currency.
"Consolidated Net Income" shall mean, for any period, the sum of net income
(or loss) for such period of Terex and its Subsidiaries on a consolidated basis
determined in accordance with GAAP, but excluding: (a) any income of any person
if such person is not a Restricted Subsidiary, except that Terex's equity in the
net income of any such person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually distributed
by such person during such period to Terex or a Restricted Subsidiary as a
dividend or other distribution; (b) the income (or loss) of any person accrued
prior to the date it became a Restricted Subsidiary of Terex or is merged into
or consolidated with Terex or such person's assets are acquired by Terex or any
of its Restricted Subsidiaries; (c) non-recurring gains (or losses) during such
period; (d) extraordinary gains (or losses), as defined under GAAP during such
period; and (e) the income of any Restricted Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by the Restricted
Subsidiary of that income is prohibited by operation of the terms of its charter
or any agreement, instrument, judgment, decree, statute, rule or governmental
regulation applicable to the Restricted Subsidiary.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Dollar Borrowing" shall mean a Borrowing comprised of Dollar Loans.
"Dollar Equivalent" shall mean, on any date of determination, with respect
to any amount denominated in any currency other than dollars, the equivalent in
dollars of such amount, determined by the Administrative Agent pursuant to
Section 1.03 using the applicable Exchange Rate with respect to such currency at
the time in effect.
"Dollar Loan" shall mean a Loan denominated in dollars. Dollar Loans may be
Dollar Revolving Loans or Dollar Term Loans.
"dollars" or "$" shall mean lawful money of the United States of America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation, notice
of violation, claim, demand, order, directive, cost recovery action or other
cause of action by, or on behalf of, any Governmental Authority or any person
for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases), (b) exposure to any Hazardous Material,
(c) the presence, use, handling, transportation, storage, treatment or disposal
of any Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and future
treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 X.X.X.xx.xx. 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
X.X.X.xx.xx. 6901 et seq., the Federal Water Pollution Control Act, as amended
by the Clean Water Act of 1977, 33 X.X.X.xx.xx. 1251 et seq., the Clean Air Act
of 1970, as amended 42 X.X.X.xx.xx. 7401 et seq., the Toxic Substances Control
Act of 1976, 15 X.X.X.xx.xx. 2601 et seq., the Occupational Safety and Health
Act of 1970, as amended, 29 X.X.X.xx.xx. 651 et seq., the Emergency Planning and
Community Right-to-Know Act of 1986, 42 X.X.X.xx.xx. 11001 et seq., the Safe
Drinking Water Act of 1974, as amended, 42 X.X.X.xx.xx. 300(f) et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. xx.xx. 5101 et seq., and any
similar or implementing state or local law, and all amendments or regulations
promulgated under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Issuance" shall mean any issuance or sale by any Borrower or any
Restricted Subsidiary of any shares of capital stock or other equity securities
of any such person or any obligations convertible into or exchangeable for, or
giving any person a right, option or warrant to acquire such securities or such
convertible or exchangeable obligations, except in each case for (a) any
issuance or sale to any Borrower or any Restricted Subsidiary, (b) any issuance
of directors' qualifying shares, (c) sales or issuances of common stock to
management or employees of any Borrower or any Restricted Subsidiary under any
employee stock option plan, stock purchase plan, retirement plan, deferred
compensation plan or other employee benefit plan in existence from time to time
to the extent that (i) the proceeds from all sales and issuances described in
this clause (c) shall not exceed in the aggregate $5,000,000 in any fiscal year
of Terex and (ii) the shares of common stock issued pursuant to this clause (c)
shall not exceed 10% of the common stock of such Borrower or such Restricted
Subsidiary, as applicable.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with Terex, is treated as a single employer under
Section 414(b) or (c) of the Code, or solely for purposes of Section 302 of
ERISA and Section 412 of the Code, is treated as a single employer under Section
414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to a Plan; (b)
the adoption of any amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (c)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (d) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (e) the incurrence of any liability under Title IV of ERISA
with respect to the termination of any Plan or the withdrawal or partial
withdrawal of Terex or any of its ERISA Affiliates from any Plan or
Multiemployer Plan; (f) the receipt by Terex or any ERISA Affiliate from the
PBGC or a plan administrator of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g)
the receipt by Terex or any ERISA Affiliate of any notice concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the occurrence of a "prohibited transaction" with respect
to which Terex or any of its Subsidiaries is a "disqualified person" (within the
meaning of Section 4975 of the Code) or with respect to which Terex or any such
Subsidiary could otherwise be liable; (i) any other event or condition with
respect to a Plan or Multiemployer Plan that could reasonably be expected to
result in liability of any Borrower; and (j) any Foreign Benefit Event.
"Euro" shall mean the single currency of the European Union as constituted
by the Treaty on European Union.
"Eurocurrency" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" shall have the meaning assigned to such term in Article
VII.
"Excess Cash Flow" shall mean, for any fiscal year of Terex, the excess of
(a) the sum, without duplication, of (i) Consolidated EBITDA for such fiscal
year, (ii) extraordinary or non-recurring cash receipts of Terex and its
Restricted Subsidiaries, if any, during such fiscal year and not included in
Consolidated EBITDA and (iii) reductions to non-cash working capital of Terex
and its Restricted Subsidiaries for such fiscal year (i.e., the decrease, if
any, in Consolidated Current Assets minus Consolidated Current Liabilities from
the beginning to the end of such fiscal year), over (b) the sum, without
duplication, of (i) the amount of any cash income taxes payable by Terex and its
Restricted Subsidiaries with respect to such fiscal year, (ii) cash interest
paid by Terex and its Restricted Subsidiaries during such fiscal year, (iii)
Consolidated Capital Expenditures committed or made in cash in accordance with
Section 6.10 during such fiscal year (and not deducted from Excess Cash Flow in
any prior year), (iv) scheduled principal repayments of Indebtedness made by
Terex and its Restricted Subsidiaries during such fiscal year, (v) optional and
mandatory prepayments of the principal of Term Loans or Tranche C Term Loans and
reductions of Revolving Credit Commitments and Tranche C Revolving Credit
Commitments during such fiscal year, but only to the extent that such
prepayments and reductions do not occur in connection with a refinancing of all
or any portion of the Loans or Tranche C Loans, (vi) extraordinary or
non-recurring expenses and losses to the extent paid in cash by Terex and its
Restricted Subsidiaries, if any, during such fiscal year and not included in
Consolidated EBITDA and (vii) additions to non-cash working capital for such
fiscal year (i.e., the increase, if any, in Consolidated Current Assets minus
Consolidated Current Liabilities from the beginning to the end of such fiscal
year); provided that, to the extent otherwise included therein, the Net Cash
Proceeds of Asset Sales and Equity Issuances shall be excluded from the
calculation of Excess Cash Flow.
"Exchange Rate" shall mean, on any day, with respect to any currency other
than dollars (for purposes of determining the Dollar Equivalent) or any
Alternative Currency (for purposes of determining the Alternative Currency
Equivalent with respect to such Alternative Currency), the rate at which such
currency may be exchanged into dollars or the applicable Alternative Currency,
as the case may be, as set forth at approximately 11:00 a.m., New York City
time, on such date on the applicable Bloomberg Key Cross Currency Rates Page. In
the event that any such rate does not appear on any Bloomberg Key Cross Currency
Rates Page, the Exchange Rate shall be determined by reference to such other
publicly available service for displaying exchange rates selected by the
Administrative Agent for such purpose, or, at the discretion of the
Administrative Agent, such Exchange Rate shall instead be the arithmetic average
of the spot rates of exchange of the Administrative Agent in the market where
its foreign currency exchange operations in respect of such currency are then
being conducted, at or about 10:00 a.m., local time, on such date for the
purchase of dollars or the applicable Alternative Currency, as the case may be,
for delivery two Business Days later; provided that, if at the time of any such
determination, for any reason, no such spot rate is being quoted, the
Administrative Agent may use any other reasonable method it deems appropriate to
determine such rate, and such determination shall be presumed correct absent
manifest error.
"Existing Letter of Credit" shall mean each letter of credit that is (a)
issued by an Issuing Bank, (b) outstanding on the Restatement Closing Date and
(c) listed in Schedule 1.01(d).
"Existing Subordinated Note Indentures" shall mean the indentures dated as
of March 31, 1998 and as of March 9, 1999, as applicable, between Terex, the
Guarantors identified therein and United States Trust Company of New York, as
trustee, as in effect on the Restatement Closing Date and as thereafter amended
from time to time in accordance with the requirements thereof and hereof,
pursuant to which the Existing Senior Subordinated Notes were issued.
"Existing Senior Subordinated Notes" shall mean Terex's 8.875% Senior
Subordinated Notes due 2008, in an aggregate principal amount of $250,000,000,
issued pursuant to the Existing Subordinated Note Indentures.
"Facility Fee" shall have the meaning assigned to such term in Section
2.05(a).
"Fee Letter" shall mean the Fee Letter dated January 30, 1998, between
Terex and the Administrative Agent.
"Fees" shall mean the Facility Fees, the Administrative Agent Fees, the A/C
Participation Fees, the A/C Fronting Fees, the L/C Participation Fees and the
Issuing Bank Fees.
"Financial Officer" of any person shall mean the chief financial officer, a
Vice President-Finance, principal accounting officer, Treasurer or Controller of
such person.
"Finsub" shall mean a bankruptcy-remote corporation that is a wholly owned
Restricted Subsidiary of Terex organized solely for the purpose of engaging in
the Receivables Program.
"Floor Plan Guarantees" shall mean Guarantees (including but not limited to
repurchase or remarketing obligations) by Terex or a Restricted Subsidiary
incurred in the ordinary course of business consistent with past practice of
Indebtedness incurred by a franchise dealer, or other purchaser or lessor, for
the purchase of inventory manufactured or sold by Terex or a Restricted
Subsidiary, the proceeds of which Indebtedness is used solely to pay the
purchase price of such inventory to such franchise dealer or other purchaser or
lessor and any related reasonable fees and expenses (including financing fees);
provided, however, that (a) to the extent commercially practicable, the
Indebtedness so Guaranteed is secured by a perfected first priority Lien on such
inventory in favor of the holder of such Indebtedness and (b) if Terex or such
Restricted Subsidiary is required to make payment with respect to such
Guarantee, Terex or such Restricted Subsidiary will have the right to receive
either (i) title to such inventory, (ii) a valid assignment of a perfected first
priority Lien in such inventory or (iii) the net proceeds of any resale of such
inventory.
"Foreign Base Rate Loans" shall mean Loans (other than A/C Fronted Loans)
in any Alternative Currency the rate of interest applicable to which is based
upon the rate of interest per annum maintained by the Administrative Agent as
the rate of interest (in the absence of a eurocurrency rate) determined by it
with the approval of a majority in interest of the Lenders participating in such
Loan to be the average rate charged to borrowers of similar quality as the
applicable Borrower of such Loans in such Alternative Currency. Notwithstanding
anything to the contrary contained herein, Loans may be made or maintained as
Foreign Base Rate Loans only to the extent specified in Section 2.02(f), 2.08 or
2.15.
"Foreign Benefit Event" shall mean, with respect to any Foreign Pension
Plan, (a) the existence of unfunded liabilities in excess of the amount
permitted under any applicable law, or in excess of the amount that would be
permitted absent a waiver from a Governmental Authority, (b) the failure to make
the required contributions or payments, under any applicable law, on or before
the due date for such contributions or payments, (c) the receipt of a notice by
a Governmental Authority relating to the intention to terminate any such Foreign
Pension Plan or to appoint a trustee or similar official to administer any such
Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension
Plan and (d) the incurrence of any liability in excess of $5,000,000 (or the
Dollar Equivalent thereof in another currency) by Terex or any of its
Subsidiaries under applicable law on account of the complete or partial
termination of such Foreign Pension Plan or the complete or partial withdrawal
of any participating employer therein, or (e) the occurrence of any transaction
that is prohibited under any applicable law and could reasonably be expected to
result in the incurrence of any liability by Terex or any of its Subsidiaries,
or the imposition on Terex or any of its Subsidiaries of any fine, excise tax or
penalty resulting from any noncompliance with any applicable law, in each case
in excess of $5,000,000 (or the Dollar Equivalent thereof in another currency).
"Foreign Pension Plan" shall mean any benefit plan which under applicable
law is required to be funded through a trust or other funding vehicle other than
a trust or funding vehicle maintained exclusively by a Governmental Authority.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"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.
"GAAP" shall mean generally accepted accounting principles in effect in the
United States applied on a consistent basis.
"Governmental Authority" shall mean the government of the United States of
America, the United Kingdom, Germany, France, Italy, Australia, Ireland, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Granting Lender" shall have the meaning assigned to such term in Section
9.04(j).
"Guarantee" of or by any person shall mean any obligation, contingent or
otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that the
term "Guarantee" shall not include (i) endorsements for collection or deposit in
the ordinary course of business and (ii) Floor Plan Guarantees except to the
extent that they appear as debt on the Borrower's balance sheet.
"Guarantee Agreements" shall mean the Subsidiary Guarantee Agreement and
the Terex Guarantee Agreement.
"Guarantors" shall mean Terex and the Subsidiary Guarantors.
"Hazardous Materials" shall mean all explosive or radioactive materials,
substances or wastes, hazardous or toxic materials, substances or wastes,
pollutants, solid, liquid or gaseous wastes, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls ("PCBs") or PCB-containing materials or equipment, radon gas,
infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Hedging Agreement" shall mean any Interest Rate Protection Agreement or
any foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement
not entered into for speculation.
"Inactive Subsidiary" shall mean each Subsidiary of Terex listed on
Schedule 1.01(f) until such time as such Subsidiary shall become a Subsidiary
Guarantor.
"Incremental Loans" shall have the meaning assigned to such term in the
Tranche C Credit Agreement.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or advances of any kind, (b) all
obligations of such person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such person upon which interest charges are
customarily paid, (d) all obligations of such person under conditional sale or
other title retention agreements relating to property or assets purchased by
such person, (e) all obligations of such person issued or assumed as the
deferred purchase price of property or services (excluding trade accounts
payable and accrued obligations incurred in the ordinary course of business),
(f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (g) all Guarantees by such person
of Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange
rate hedging arrangements and (j) all obligations of such person as an account
party in respect of letters of credit and bankers' acceptances. The Indebtedness
of any person shall include the Indebtedness of any partnership in which such
person is a general partner, to the extent such Indebtedness is recourse to such
person either expressly or by operation of law. Notwithstanding that the
Receivables Program does not constitute Indebtedness under GAAP, solely for the
purposes of calculating Indebtedness under this Agreement, the Indebtedness of
Finsub shall also include all consideration provided to Finsub by the purchaser
of Program Receivables less any amounts collected (or deemed collected) with
respect to such Program Receivables and accounted for as required by the
Receivables Program Documentation (such amount being referred to in the
Receivables Program Documentation as the "Investment").
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, dated as of March 6, 1998,
among the Borrowers, the Subsidiary Guarantors and the Collateral Agent.
"Interest Payment Date" shall mean, with respect to any Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurocurrency Borrowing with an Interest Period of more
than three months' duration, each day that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to such Borrowing, and, in addition, the date of any prepayment of such
Borrowing or conversion of such Borrowing to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter (and, in the
case of an Alternative Currency Borrowing maturing or required to be repaid in
less than one month, the date thereafter requested by the applicable Borrower
and agreed to by the Administrative Agent), as the applicable Borrower may
elect, (b) as to any ABR Borrowing or Borrowing bearing interest by reference to
the A/C Fronted Base Rate, the period commencing on the date of such Borrowing
and ending on the earliest of (i) the next succeeding March 31, June 30,
September 30 or December 31, (ii) the Revolving Credit Maturity Date or the
Tranche B Maturity Date, as applicable, and (iii) the date such Borrowing is
converted to a Borrowing of a different Type in accordance with Section 2.10 or
repaid or prepaid in accordance with Section 2.11 or 2.12, (c) as to any A/C
Fronted Fixed Rate Loan bearing interest by reference to the Bank Xxxx Rate, the
period commencing on the date of such Loan and ending on the date (more than 7
but not more than 92 days thereafter) as the Australian Borrower may elect and
(d) as to any A/C Fronted Loan bearing interest by reference to the Italian
Fixed Rate, the period commencing on the date of such Loan and ending on the
numerically corresponding day (or, if there is no numerically corresponding day,
on the last day) in the calendar month that is 1, 2 or 3 months thereafter, as
the Italian Borrower may elect; provided, however, that if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day. Interest shall accrue from
and including the first day of an Interest Period to but excluding the last day
of such Interest Period.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
similar agreement or arrangement designed to protect any Borrower or any
Restricted Subsidiary against fluctuations in interest rates, and not entered
into for speculation.
"Irish Facilities" shall mean the credit facilities of Powerscreen.
"Issuing Bank" shall mean, as the context may require, (a) CSFB, (b) Fleet
National Bank, N.A. or (c) any other Lender that may become an Issuing Bank
pursuant to Section 2.23(i) or 2.26, with respect to Letters of Credit issued by
such Lender. For the purposes of each Loan Document other than this Agreement,
the term "Issuing Bank" shall also include each Additional L/C Issuing Bank.
"Issuing Bank Fees" shall have the meaning assigned to such term in Section
2.05(c).
"Italian Facilities" shall mean the credit facilities of the Italian
Borrower or any other Restricted Subsidiary located in Italy.
"Italian Fixed Rate" shall mean, with respect to any A/C Fronted Fixed Rate
Loan made to the Italian Borrower, the rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1% and adjusted for reserve requirements, if any)
determined by the Italian Fronting Lender at approximately 11:00 a.m. (London
time) on the date which is two Business Days prior to or the beginning of the
relevant Interest Period (as specified in the applicable Borrowing Request) by
reference to the British Bankers' Association Interest Settlement Rates for
deposits in Euro, for a period equal to such Interest Period; provided that, to
the extent that an interest rate is not ascertainable pursuant to the foregoing
provisions of this definition, the "Italian Fixed Rate" shall be the interest
rate per annum determined by the Italian Fronting Lender to be the average of
the rates per annum (rounded upwards, if necessary, to the next 1/16 of 1% and
adjusted for reserve requirements, if any) at which deposits in Euro are offered
for such relevant Interest Period to major banks in the London interbank market
in London, England by the Italian Fronting Lender at approximately 11:00 a.m.
(London time) on the date which is two Business Days prior to the beginning of
such Interest Period.
"Italian Fronting Lender" shall mean Fleet National Bank, N.A., and its
successors and assigns in such capacity.
"Judgment Currency" shall have the meaning assigned to such term in Section
9.16.
"L/C Commitment" shall mean the commitment of each Issuing Bank to issue
Letters of Credit pursuant to Section 2.23.
"L/C Disbursement" shall mean a payment or disbursement made by an Issuing
Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit denominated in dollars at such time,
(b) the Dollar Equivalent of the aggregate undrawn amount of all outstanding
Letters of Credit denominated in Alternative Currencies at such time, (c) the
aggregate principal amount of all L/C Disbursements in respect of 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 L/C
Disbursements in respect of Letters of Credit denominated in Alternative
Currencies that have not yet been reimbursed at such time. The L/C Exposure of
any Revolving Credit Lender at any time shall mean its Pro Rata Percentage of
the total L/C Exposure at such time. For the purpose of each Loan Document other
than this Agreement, the term "L/C Exposure" shall also include the Additional
L/C Exposure.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01(a) (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance. Unless the context clearly indicates otherwise, the term "Lenders"
shall include the A/C Fronting Lenders and the Swingline Lender.
"Letter of Credit" shall mean (a) any letter of credit issued pursuant to
Section 2.23 and (b) any Existing Letter of Credit. For the purpose of each Loan
Document other than this Agreement, the term Letter of Credit" shall also
include any "Additional Letter of Credit".
"LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing, the
rate per annum determined by the Administrative Agent at approximately 11:00
a.m. (London time) on the date which is two Business Days prior to or, with
respect to Eurocurrency Borrowings denominated in Pounds, at approximately 11:00
a.m. (London time) on the same day as, the beginning of the relevant Interest
Period (as specified in the applicable Borrowing Request) by reference to the
British Bankers' Association Interest Settlement Rates for deposits in dollars
or the relevant Alternative Currency, as applicable (as set forth by any service
selected by the Administrative Agent which has been nominated by the British
Bankers' Association as an authorized information vendor for the purpose of
displaying such rates), for a period equal to such Interest Period; provided
that, to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the "LIBO Rate" shall be the interest
rate per annum determined by the Administrative Agent to be the average of the
rates per annum at which deposits in dollars or the relevant Alternative
Currency, as applicable, are offered for such relevant Interest Period to major
banks in the London interbank market in London, England by the Administrative
Agent at approximately 11:00 a.m. (London time) on the date which is two
Business Days prior to or, with respect to Eurocurrency Borrowings denominated
in Pounds, at approximately 11:00 a.m. (London time) on the same day as, the
beginning of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Amendment Agreement, the
Guarantee Agreements, the Security Documents and the Indemnity, Subrogation and
Contribution Agreement. 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.
"Loan Parties" shall mean the Borrowers and the Guarantors.
"Loans" shall mean the Revolving Loans, the Term Loans, the A/C Fronted
Loans and the Swingline Loans. For the purposes of each Loan Document other than
this Agreement, the term "Loans" shall also include the Tranche C Loans.
"Margin Stock" shall have the meaning assigned to such term in Regulation
U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on the
business, assets, operations, prospects or condition, financial or otherwise, of
Terex and the Restricted Subsidiaries, taken as a whole, (b) material impairment
of the ability of the Loan Parties to perform their obligations under the Loan
Documents or (c) material impairment of the rights of or benefits available to
the Lenders under any Loan Document.
"Mortgaged Properties" shall mean the owned real properties and leasehold
and subleasehold interests specified on Schedule 1.01(c).
"Mortgages" shall mean the mortgages, deeds of trust, leasehold mortgages,
assignments of leases and rents, modifications and other security documents
delivered pursuant to clause (i) of Section 4.02(j) or pursuant to Section 5.11,
each substantially in the form of Exhibit F.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the cash
proceeds (including cash proceeds subsequently received (as and when received)
in respect of non-cash consideration initially received and including all
insurance settlements and condemnation awards in excess of $250,000 from any
single event or series of related events), net of (i) transaction expenses
(including reasonable broker's fees or commissions, legal fees, accounting fees,
investment banking fees and other professional fees, transfer and similar taxes
and Terex's good faith estimate of income taxes paid or payable in connection
with the receipt of such cash proceeds), (ii) amounts provided as a reserve, in
accordance with GAAP, including pursuant to any escrow arrangement, against any
liabilities under any indemnification obligations associated with such Asset
Sale (provided that, to the extent and at the time any such amounts are released
from such reserve, such amounts shall constitute Net Cash Proceeds), (iii) in
the case of insurance settlements and condemnation awards, amounts previously
paid by Terex and its Restricted Subsidiaries to replace or restore the affected
property, and (iv) the principal amount, premium or penalty, if any, interest
and other amounts on any Indebtedness for borrowed money which is secured by the
asset sold in such Asset Sale and is required to be repaid with such proceeds
(other than any such Indebtedness assumed by the purchaser of such asset);
provided, however, that, with respect to the proceeds of any Asset Sale or
series of related Asset Sales in an amount of less than or equal to $50,000,000
in the aggregate, if (A) Terex shall deliver a certificate of a Financial
Officer to the Administrative Agent at the time of receipt thereof setting forth
Terex's intent to reinvest such proceeds in productive assets of a kind then
used or usable in the business of Terex and its Restricted Subsidiaries within
300 days of receipt of such proceeds and (B) no Default or Event of Default
shall have occurred and shall be continuing at the time of such certificate or
at the proposed time of the application of such proceeds, such proceeds shall
not constitute Net Cash Proceeds except to the extent not so used at the end of
such 300-day period, at which time such proceeds shall be deemed to be Net Cash
Proceeds, and (b) with respect to any Equity Issuance or any other issuance or
disposition of Indebtedness, the cash proceeds thereof, net of all taxes and
customary fees, commissions, costs and other expenses (including reasonable
broker's fees or commissions, legal fees, accounting fees, investment banking
fees and other professional fees, and underwriter's discounts and commissions)
incurred in connection therewith.
"New Subordinated Note Indenture" shall mean the indenture dated as of
March 29, 2001, between Terex, the Guarantors identified therein and United
States Trust Company of New York, as trustee, as in effect on the Restatement
Closing Date and as thereafter amended from time to time in accordance with the
requirements thereof and hereof, pursuant to which the New Subordinated Notes
are issued.
"New Subordinated Notes" shall mean Terex's 10.375% Senior Subordinated
Notes due 2011, in an initial aggregate principal amount of $300,000,000 issued
pursuant to the New Subordinated Note Indenture.
"Obligations" shall mean all obligations defined as "Obligations" in any of
the Guarantee Agreements and the Security Documents.
"Original Closing Date" shall mean March 6, 1998.
"Original Credit Agreement" shall mean the Credit Agreement dated as of
March 6, 1998, as amended prior to the date hereof, among the Borrowers, the
Lenders and Credit Suisse First Boston, as administrative agent and collateral
agent.
"Payment Location" shall mean an office, branch or other place of business
of any Borrower.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Perfection Certificate" shall mean the Perfection Certificate
substantially in the form of Annex 2 to the Security Agreement.
"Permitted Acquisitions" shall mean acquisitions (in a single transaction
or a series of related transactions) of not less than 100% (other than
directors' qualifying shares) of the outstanding capital stock or other equity
interests of any corporation, partnership, a division of any corporation or any
similar business unit (or of all or substantially all the assets and business of
any of the foregoing) engaged in a Related Business so long as (a) in the case
of each such acquisition of capital stock or other equity interests, such
acquisition was not preceded by an unsolicited tender offer for such capital
stock or other equity interests by Terex or any of its Affiliates, (b) Terex
shall have delivered to the Administrative Agent a certificate certifying that
at the time of and immediately after giving effect to such acquisition, no
Default or Event of Default shall have occurred and be continuing, and (c)
either (i) the total consideration with respect to such acquisition shall not
exceed $2,500,000, (ii) Terex shall have delivered to the Administrative Agent a
certificate certifying that at the time of and immediately after giving effect
to such acquisition, the Pro Forma Acquisition EBITDA of the entity acquired
pursuant to such acquisition shall not exceed 25% of the sum of such Pro Forma
Acquisition EBITDA plus Consolidated EBITDA, in each case for the period of four
fiscal quarters ended on the last day of the most recent fiscal quarter ended
prior to the date of such acquisition or (iii) (A) Terex shall have delivered to
the Administrative Agent a certificate certifying that at the time of and
immediately after giving effect to such acquisition, the ratio of (1) the Total
Debt of Terex and its Restricted Subsidiaries on the date of such acquisition
(including all Indebtedness incurred in connection with or resulting from such
acquisition that would constitute Total Debt) to (2) the sum of (x) Pro Forma
Acquisition EBITDA of the entity acquired pursuant to such acquisition, (y) Pro
Forma Acquisition EBITDA for all other Acquired Persons acquired during the
period of four consecutive fiscal quarters most recently ended prior to the date
of such acquisition and (z) Consolidated EBITDA, in each case for the period of
four fiscal quarters most recently ended prior to the date of such acquisition,
shall be at least 0.15 to 1.00 less than the Consolidated Leverage Ratio
required pursuant to Section 6.11 on such date and (B) such corporation,
partnership, division, business or assets, as applicable, are located in the
United States (or the principal place of business with respect thereto and
substantially all of the applicable assets are located in the United States) or
in any country included on Schedule 1.01(e) or on a list approved by the
Required Lenders prior to the date of such acquisition. For purposes of
determining compliance with clause (c)(i) above, the principal amount of
Indebtedness assumed in connection with an acquisition shall be included in
calculating the consideration therefor.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from Standard & Poor's Ratings Service or
from Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within one year from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, (i) the Administrative Agent or any domestic office
of any commercial bank organized under the laws of the United States of
America or any State thereof or (ii) a commercial banking institution
organized and located in a country recognized by the United States of
America, in each case that has a combined capital and surplus and undivided
profits of not less than $250,000,000 (or the Dollar Equivalent thereof in
another currency);
(d) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (a) above entered
into with any bank meeting the qualifications specified in clause (c)
above;
(e) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (a) through
(d) above; and
(f) other short-term investments utilized by Foreign Subsidiaries in
accordance with normal investment practices for cash management not
exceeding $1.0 million in aggregate principal amount outstanding at any
time.
"person" shall mean any natural person, corporation, business trust, joint
venture, association, company, limited liability company, partnership, other
business entity or government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which Terex or any
ERISA Affiliate is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, dated as of March 6,
1998, between Terex, its Subsidiaries party thereto and the Collateral Agent for
the benefit of the Secured Parties.
"Pounds" and "," shall mean pounds sterling in lawful currency of the
United Kingdom.
"Pro Forma Acquisition EBITDA" shall mean with respect to any entity or
business unit acquired or to be acquired in a Permitted Acquisition, the amount
of Consolidated EBITDA of such entity or business unit (as if such entity or
business unit were Terex) determined by Terex and acceptable to the
Administrative Agent in its reasonable discretion, based upon and derived from
financial information delivered to Administrative Agent prior to consummation of
such Permitted Acquisition for the four-quarter period ending on the last day of
the immediately preceding fiscal quarter of such entity or business unit for
which such financial information for such entity or business unit has been
delivered to the Administrative Agent, adjusted by the estimated amount of
non-recurring revenues and expenditures with respect to the business of such
entity or business unit, as calculated by Terex and acceptable to Administrative
Agent in its reasonable discretion. On each subsequent determination date
occurring within one year after the consummation of a Permitted Acquisition, the
entity's Pro Forma Acquisition EBITDA shall include the Pro Forma Acquisition
EBITDA only for those fiscal quarters in the trailing four-quarter period
occurring prior to the closing of such Permitted Acquisition.
"Pro Rata Percentage" of any Revolving Credit Lender at any time shall mean
the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment.
"Program Receivables"shall mean all trade receivables and related contract
rights originated and owned by the Borrower or any Restricted Subsidiary (other
than an Inactive Subsidiary) and sold pursuant to the Receivables Program.
"Purchase Money Indebtedness" shall mean any Indebtedness of a person to
any seller or other person incurred to finance the acquisition (including in the
case of a Capital Lease Obligation, the lease) of any after acquired real or
personal tangible property or assets related to the business of Terex or its
Restricted Subsidiaries and which is incurred substantially concurrently with
such acquisition and is secured only by the assets so financed.
"Receivables Program"shall mean, collectively, (a) the sale of, or transfer
of interests in, Program Receivables to Finsub in exchange for consideration
equal to the fair market value of such Program Receivables (i.e., a "true sale")
(provided that not less than 95% of such consideration shall be in the form of
cash) and (b) the sale of, or transfer of interests in, such Program Receivables
by Finsub to special purpose trusts or corporations which are not Affiliates of
the Borrower; provided, that all governing terms and conditions (including,
without limitation, any terms or conditions providing for recourse to the
Borrower or any of its Restricted Subsidiaries (other than Finsub)) of the
Receivables Program shall be subject to the prior written approval of the
Administrative Agent, which approval shall not be unreasonably withheld or
delayed.
"Receivables Program Documentation" shall mean all written agreements that
may from time to time be entered into by Terex, any Restricted Subsidiary (other
than an Inactive Subsidiary) and/or Finsub in connection with any Receivables
Program, as such agreements may be amended, supplemented or otherwise modified
from time to time in accordance with the provisions thereof and hereof.
"Refinancing Indebtedness" shall have the meaning assigned to such term in
Section 6.01(n).
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Business" shall mean any business in the manufacture or sale of
capital goods or parts or services, or otherwise reasonably related, ancillary
or complementary to the businesses of Terex and its Restricted Subsidiaries on
the Restatement Closing Date.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"Remedial Action" shall mean (a) "remedial action" as such term is defined
in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions required by any
Governmental Authority or voluntarily undertaken to: (i) clean up, remove,
treat, xxxxx or in any other way address any Hazardous Material in the
environment; (ii) prevent the Release or threat of Release, or minimize the
further Release of any Hazardous Material so it does not migrate or endanger or
threaten to endanger public health, welfare or the environment; or (iii) perform
studies and investigations in connection with, or as a precondition to, (i) or
(ii) above.
"Required Lenders" shall mean, at any time, Lenders having Loans (excluding
Swingline Loans and A/C Fronted Loans), L/C Exposure, Swingline Exposure, A/C
Fronted Exposure and unused Revolving Credit Commitments representing at least
51% of the sum of all Loans outstanding (excluding Swingline Loans and A/C
Fronted Loans), L/C Exposure, Swingline Exposure, A/C Fronted Exposure and
unused Revolving Credit Commitments at such time. For purposes of determining
the Required Lenders on any date, any amounts denominated in an Alternative
Currency shall be translated into dollars at the Dollar Equivalent in effect on
the most recent Calculation Date.
"Responsible Officer" of any person shall mean any executive officer or
Financial Officer of such person and any other officer or similar official
thereof responsible for the administration of the obligations of such person in
respect of this Agreement.
"Restatement Closing Date" shall mean March 29, 2001.
"Restricted Subsidiary" shall mean (i) each direct or indirect Subsidiary
of the Borrower that is not an Unrestricted Subsidiary of the Borrower on the
Restatement Closing Date and (ii) each direct or indirect Subsidiary of the
Borrower organized or acquired after the Restatement Closing Date that has not
been designated an Unrestricted Subsidiary in accordance with the provisions of
Section 6.15. A Restricted Subsidiary may be referred to herein as a "Restricted
Domestic Subsidiary" or as a "Restricted Foreign Subsidiary", as applicable.
"Revolving Credit Availability Period" shall mean the period commencing
with the Restatement Closing Date and ending on the Revolving Credit Maturity
Date.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of Revolving
Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire participations
in L/C Disbursements, Swingline Loans and A/C Fronted Loans hereunder as set
forth on Schedule 2.01(a), or in the Assignment and Acceptance pursuant to which
such Lender assumed its Revolving Credit Commitment, as applicable, as the same
may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at any
time, the sum of (a) the aggregate principal amount of all outstanding Dollar
Revolving Loans of such Lender at such time, (b) the Dollar Equivalent of the
aggregate principal amount of all outstanding Revolving Loans of such Lender
that are Alternative Currency Loans at such time and (c) the aggregate amount of
such Lender's L/C Exposure, Swingline Exposure and A/C Fronted Exposure at such
time.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment or an outstanding Revolving Loan.
"Revolving Credit Maturity Date" shall mean March 6, 2004.
"Revolving Loans" shall mean the revolving loans made by the Lenders to any
Borrower pursuant to this Agreement. Each Revolving Loan shall be a Eurocurrency
Revolving Loan or an ABR Revolving Loan.
"Sale and Leaseback" shall have the meaning set forth in Section 6.03.
"Second-Tier Foreign Subsidiary" shall mean any Foreign Subsidiary that is
not a Foreign Subsidiary Issuer or a Special Purpose Foreign Holding Subsidiary.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement and shall also include each Additional L/C Issuing Bank and
each Tranche C Lender.
"Security Agreement" shall mean the Security Agreement, dated as of March
6, 1998, among Terex, the Subsidiaries party thereto and the Collateral Agent
for the benefit of the Secured Parties.
"Security Documents" shall mean the Mortgages, the Security Agreement, the
Pledge Agreement and each of the security agreements, mortgages and other
instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.11.
"SPC" shall have the meaning assigned to such term in Section 9.04(j).
"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.
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by any Governmental Authority to which banks are subject for any
category of deposits or liabilities customarily used to fund loans or by
reference to which interest rates applicable to Loans are determined. Such
reserve, liquid asset or similar percentages shall include those imposed
pursuant to Regulation D of the Board (and for purposes of Regulation D,
Eurocurrency Loans denominated in dollars shall be deemed to constitute
Eurocurrency Liabilities). Loans shall be deemed to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under Regulation D or any
other applicable law, rule or regulation. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" shall mean, with respect to any person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of Terex.
"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) Powerscreen and (g) the European Borrower.
"Subsidiary Guarantee Agreement" shall mean the Guarantee Agreement, dated
as of March 6, 1998, made by the Subsidiary Guarantors in favor of the
Collateral Agent for the benefit of the Secured Parties.
"Subsidiary Guarantors" shall mean each person listed on Schedule 1.01(b)
and each other person that becomes party to a Subsidiary Guarantee Agreement as
a Guarantor, and the permitted successors and assigns of each such person.
"Swingline Commitment" shall mean the commitment of the Swingline Lender to
make loans pursuant to Section 2.22.
"Swingline Exposure" shall mean at any time the aggregate principal amount
at such time of all outstanding Swingline Loans. The Swingline Exposure of any
Revolving Credit Lender at any time shall equal its Pro Rata Percentage of the
aggregate Swingline Exposure at such time.
"Swingline Lender" shall mean CSFB.
"Swingline Loan" shall mean any loan made by the Swingline Lender pursuant
to its Swingline Commitment.
"Terex Guarantee Agreement" shall mean the Guarantee Agreement dated as of
March 6, 1998, made by Terex in favor of the Collateral Agent for the benefit of
the Secured Parties.
"Term Loans" shall mean the Tranche B Term Loans and, unless the context
otherwise requires, the Tranche C Term Loans.
"Total Debt" shall mean, as of any date of determination, without
duplication, the aggregate principal amount of Indebtedness of Terex and its
Restricted Subsidiaries outstanding as of such date, determined on a
consolidated basis (other than Indebtedness of the type referred to in clause
(j) of the definition of the term "Indebtedness", except to the extent of any
unreimbursed drawings thereunder). For purposes of calculating the Consolidated
Leverage Ratio on any date, the amount of Total Debt on such date shall be
reduced by the amount, if any, that cash on the balance sheet of Terex and its
consolidated Restricted Subsidiaries on such date exceeds $5,000,000.
"Total Revolving Credit Commitment" shall mean, at any time, the aggregate
amount of the Revolving Credit Commitments, as in effect at such time.
"Tranche B Maturity Date" shall mean March 6, 2005.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of Tranche B
Term Loans.
"Tranche B Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a).
"Tranche B Term Loans" shall mean the Tranche B Term Loans made by the
Lenders to Terex pursuant to the Original Credit Agreement. Each Tranche B Term
Loan shall be either a Eurocurrency Tranche B Term Loan or an ABR Tranche B Term
Loan.
"Tranche C Commitment" shall mean the Tranche C Revolving Credit
Commitments and any Incremental Term Loan Commitment (as defined in the Tranche
C Credit Agreement).
"Tranche C Credit Agreement" shall mean the Tranche C Credit Agreement
dated as of July 2, 1999, as amended and restated as of July 12, 1999 and as of
the Restatement Closing Date, among Terex, the lenders from time to time party
thereto and CSFB, as administrative agent and as collateral agent for such
lenders, as amended, supplemented or otherwise modified from time to time.
"Tranche C Lenders" shall mean the lenders from time to time party to
the Tranche C Credit Agreement.
"Tranche C Loans" shall mean the Tranche C Term Loans and the Tranche C
Revolving Loans.
"Tranche C Revolving Credit Commitments" shall mean the commitments of the
Tranche C Lenders to make Tranche C Revolving Loans to Terex pursuant to the
Tranche C Credit Agreement.
"Tranche C Revolving Loans" shall mean the revolving loans made to Terex by
the Tranche C Lenders from time to time under the Tranche C Credit Agreement.
"Tranche C Term Loans" shall mean the term loans (including Incremental
Term Loans, as defined in the Tranche C Credit Agreement) made by the Tranche C
Lenders to Terex pursuant to the Tranche C Credit Agreement.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined and the currency in which such Loan or the Loans
comprising such Borrowing is denominated. For purposes hereof, the term "Rate"
shall include the Adjusted LIBO Rate, the Alternate Base Rate and the rate with
respect to any Foreign Base Rate Loan, and currency shall include dollars and
any Alternative Currency permitted hereunder.
"Unrestricted Subsidiary" shall mean any Subsidiary of the Borrower that
has been designated as an Unrestricted Subsidiary by the Borrower pursuant to
and in compliance with Section 6.15. No Unrestricted Subsidiary may own any
capital stock of a Restricted Subsidiary.
"UK Holdings" shall mean New Terex Holdings UK Limited, a limited company
incorporated under the laws of England.
"wholly owned Subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such person or one or
more wholly owned subsidiaries of such person or by such person and one or more
wholly owned subsidiaries of such person; provided that each of Terex Cranes,
Inc., P.P.M. Cranes, Inc., P.P.M. S.A., and any future wholly owned subsidiaries
of any of the foregoing shall be deemed to be wholly owned Subsidiaries, in each
case so long as Terex or one or more wholly owned Subsidiaries maintains a
percentage ownership interest in such entity equal to or greater than such
ownership interest (on a fully diluted basis) on the later of (a) the Original
Closing Date or (b) the date such entity is incorporated or acquired by Terex or
one or more wholly owned Subsidiaries.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise expressly
provided herein, (a) any reference in this Agreement to any Loan Document shall
mean such document as amended, restated, supplemented or otherwise modified from
time to time and (b) all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that if Terex notifies the Administrative Agent that Terex wishes to
amend any covenant in Article VI or any related definition to eliminate the
effect of any change in GAAP occurring after the date of this Agreement on the
operation of such covenant (or if the Administrative Agent notifies Terex that
the Required Lenders wish to amend Article VI or any related definition for such
purpose), then Terex's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to Terex and the Required Lenders.
SECTION 1.03. Exchange Rates. On each Calculation Date, the Administrative
Agent shall determine the Exchange Rate as of such Calculation Date to be used
for calculating relevant Dollar Equivalent and Alternative Currency Equivalent
amounts. The Exchange Rates so determined shall become effective on such
Calculation Date, shall remain effective until the next succeeding Calculation
Date and shall for all purposes of this Agreement (other than any provision
expressly requiring the use of a current Exchange Rate) be the Exchange Rates
employed in converting any amounts between the applicable currencies.
SECTION 1.04. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type (e.g., a
"Eurocurrency Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurocurrency
Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving Borrowing").
ARTICLE II
The Credits
SECTION 2.01. Commitments and Loans. (a) The Borrowers and the Lenders
acknowledge the making of the Tranche B Term Loans on the Original Closing Date
pursuant to the Original Credit Agreement and agree that the Tranche B Term
Loans shall continue to be outstanding pursuant to the terms and conditions of
this Agreement and the other Loan Documents. The aggregate principal amount of
the Tranche B Term Loans of each Lender outstanding on the Restatement Closing
Date (after giving effect to the prepayments thereof to be made on the
Restatement Closing Date) is set forth on Schedule 2.01. Amounts paid or prepaid
in respect of Tranche B Term Loans may not be reborrowed.
(b) The Borrowers and the Lenders acknowledge the making of the Tranche A
Term Loans under and as defined in the Original Credit Agreement. On the
Restatement Closing Date, all the outstanding Tranche A Term Loans shall have
been prepaid.
(c) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally
and not jointly to make Revolving Loans to the Borrowers, at any time and from
time to time during the Revolving Credit Availability Period, and until the
earlier of the Revolving Credit Maturity Date and the termination of the
Revolving Credit Commitment of such Lender in accordance with the terms hereof,
in dollars (in the case of Terex), Euro (in the case of the European Borrower,
the French Borrower, the Italian Borrower and the German Borrower), Pounds (in
the case of the European Borrower, Scottish Borrower and Powerscreen) and
Australian Dollars (in the case of the Australian Borrower) in an aggregate
principal amount at any time outstanding that will not result in such Lender's
Revolving Credit Exposure exceeding such Lender's Revolving Credit Commitment;
provided, however, that the Alternative Currency Revolving Credit Exposure with
respect to any Alternative Currency or Borrower, as the case may be, shall not
exceed the sublimit for such Alternative Currency or Borrower, as the case may
be, set forth in Schedule 2.01(b). Within the limits set forth in the preceding
sentence and subject to the terms, conditions and limitations set forth herein,
the Borrowers may borrow, pay or prepay and reborrow Revolving Loans.
SECTION 2.02. Loans. (a) Each Loan (other than A/C Fronted Loans and
Swingline Loans) to be made on or after the Restatement Closing Date shall be
made as part of a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their Revolving Credit Commitments; provided, however, that the
failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.02(f), the Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $100,000 (or the
Alternative Currency Equivalent thereof) and not less than $2,500,000 (or the
Alternative Currency Equivalent thereof) or (ii) equal to the remaining
available balance of the applicable Commitments. As provided in Section 2.03,
each request for a Borrowing shall state the amount requested in dollars
(whether or not such Borrowing is to be an Alternative Currency Borrowing).
(b) Subject to Sections 2.08, 2.15 and 2.24, (i) each Dollar Borrowing
shall be comprised entirely of ABR Loans or Eurocurrency Loans as Terex may
request pursuant to Section 2.03 and (ii) each Alternative Currency Borrowing
shall be comprised entirely of Eurocurrency Loans. Each Lender may at its option
make any Eurocurrency Loan by causing any domestic or foreign branch of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the applicable Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that no Borrower shall
be entitled to request any Borrowing that, if made, would result in more than 15
Eurocurrency Borrowings outstanding hereunder at any time. For purposes of the
foregoing, Borrowings having different Interest Periods or denominated in
different currencies, regardless of whether they commence on the same date,
shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Dollar Loan to be made by it hereunder on the proposed
date thereof by wire transfer of immediately available funds to such account in
New York City as the Administrative Agent may designate not later than 11:00
a.m., New York City time, and the Administrative Agent shall, promptly upon
receipt thereof, credit the amounts so received to an account as designated by
Terex, in the applicable Borrowing Request or, if a Borrowing shall not occur on
such date because any condition precedent herein specified shall not have been
met, return the amounts so received to the respective Lenders. Each Lender shall
make each Alternative Currency Loan to be made by it hereunder on the proposed
date thereof by wire transfer of immediately available funds to such account in
the jurisdiction of the applicable Alternative Currency as the Administrative
Agent may designate for such purposes not later than 11:00 a.m., local time of
such jurisdiction, and the Administrative Agent shall, promptly upon receipt
thereof, credit the amounts so received to an account as designated by the
applicable Borrower in the applicable Borrowing Request or, if a Borrowing shall
not occur on such date because any condition precedent herein specified shall
not have been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the applicable Borrower on such
date a corresponding amount. If the Administrative Agent shall have so made
funds available then, to the extent that such Lender shall not have made such
portion available to the Administrative Agent, such Lender and the applicable
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Administrative Agent at (i) in the case of any Borrower,
the interest rate applicable at the time to the Loans comprising such Borrowing
and (ii) in the case of such Lender, a rate determined by the Administrative
Agent to represent its cost of overnight or short-term funds in the applicable
currency (which determination shall be conclusive absent manifest error). If
such Lender shall repay to the Administrative Agent such corresponding amount,
such amount shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, no Borrower
shall be entitled to request any Interest Period with respect to any
Eurocurrency Borrowing or A/C Fronted Fixed Rate Loan that would end after the
Revolving Credit Maturity Date or the Tranche B Maturity Date, as the case may
be.
(f) If any Issuing Bank shall not have received from any Borrower the
payment required to be made by it pursuant to Section 2.23(e) within the time
specified in such Section, such Issuing Bank will promptly notify the
Administrative Agent of the L/C Disbursement and the Administrative Agent will
promptly notify each Revolving Credit Lender of such L/C Disbursement and its
Pro Rata Percentage thereof. In the case of Letters of Credit denominated in
dollars, each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 2:00 p.m., New York
City time, on such date (or, if such Revolving Credit Lender shall have received
such notice later than 12:00 (noon), New York City time, on any day, not later
than 10:00 a.m., New York City time, on the immediately following Business Day),
an amount in dollars equal to such Lender's Pro Rata Percentage of such L/C
Disbursement (it being understood that such amount shall be deemed to constitute
an ABR Revolving Loan of such Lender and such payment shall be deemed to have
reduced the L/C Exposure), and the Administrative Agent will promptly pay to the
applicable Issuing Bank amounts so received by it from the Revolving Credit
Lenders. In the case of Letters of Credit denominated in Marks, Pounds or
Francs, each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 2:00 p.m., local time
of the jurisdiction of such Alternative Currency, on such date (or if such
Revolving Credit Lender shall have received such notice later than 12:00 (noon),
local time of such jurisdiction, on the immediately following Business Day), an
amount in such Alternative Currency equal to such Lender's Pro Rata Percentage
of such L/C Disbursement (it being understood that such amount shall be deemed
to constitute an Alternative Currency Revolving Loan of such Lender and such
payment shall be deemed to have reduced the L/C Exposure), and the
Administrative Agent will promptly pay to the applicable Issuing Bank amounts so
received by it from the Revolving Credit Lenders. In the case of Letters of
Credit denominated in any Alternative Currency other than Pounds or Euro, the
Administrative Agent shall notify each Revolving Credit Lender of the Dollar
Equivalent of the L/C Disbursement and of such Revolving Credit Lender's Pro
Rata Percentage thereof, and each Revolving Credit Lender shall pay by wire
transfer of immediately available funds to the Administrative Agent not later
than 2:00 p.m., New York City time, on such date (or, if such Revolving Credit
Lender shall have received such notice later than 12:00 (noon), New York City
time, on any day, not later than 10:00 a.m., New York city time, on the
immediately following Business Day), an amount in dollars equal to such Lender's
Pro Rata Percentage of such L/C Disbursement (it being understood that such
amount shall be deemed to constitute an ABR Revolving Loan of such Lender and
such payment shall be deemed to have reduced the L/C Exposure), and the
Administrative Agent will promptly pay to the applicable Issuing Bank amounts so
received by it from the Revolving Credit Lenders. The Administrative Agent will
promptly pay to the applicable Issuing Bank any amounts received by it from any
Borrower pursuant to Section 2.23(e) prior to the time that any Revolving Credit
Lender makes any payment pursuant to this paragraph (f); any such amounts
received by the Administrative Agent thereafter will be promptly remitted by the
Administrative Agent to the Revolving Credit Lenders that shall have made such
payments and to the applicable Issuing Bank, as their interests may appear. If
any Revolving Credit Lender shall not have made its Pro Rata Percentage of such
L/C Disbursement available to the Administrative Agent as provided above, such
Lender and the applicable Borrower severally agree to pay interest on such
amount, for each day from and including the date such amount is required to be
paid in accordance with this paragraph to but excluding the date such amount is
paid, to the Administrative Agent for the account of the applicable Issuing Bank
at (i) in the case of any Borrower, a rate per annum equal to the interest rate
applicable to Revolving Loans pursuant to Section 2.06(a), and (ii) in the case
of such Lender, for the first such day, a rate determined by the Administrative
Agent to represent its cost of overnight funds in the applicable currency, and
for each day thereafter, (x) if such L/C Disbursement is denominated in dollars,
the Alternate Base Rate, and (y) if such L/C Disbursement is denominated in an
Alternative Currency, the applicable Foreign Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing (other
than a Swingline Loan, an A/C Fronted Loan or a deemed Borrowing pursuant to
Section 2.02(f), as to which this Section 2.03 shall not apply), the applicable
Borrower shall hand deliver or telecopy to the Administrative Agent a duly
completed Borrowing Request (or telephone the Administrative Agent, promptly
confirmed with a written and duly completed Borrowing Request) (a) in the case
of a Eurocurrency Borrowing (other than an Alternative Currency Borrowing), not
later than 12:00 (noon), New York City time, three Business Days before a
proposed Borrowing, (b) in the case of an Alternative Currency Borrowing, not
later than 12:00 (noon), local time of the jurisdiction of such Alternative
Currency, three Business Days before the date of the proposed Borrowing and (c)
in the case of an ABR Borrowing, not later than 1:00 p.m., New York City time,
one Business Day before a proposed Borrowing. Each Borrowing Request (including
a telephonic Borrowing Request) shall be irrevocable, shall be signed by or on
behalf of such Borrower and shall specify the following information: (i) whether
such Borrowing is to be a Dollar Borrowing or an Alternative Currency Borrowing;
(ii) if such Borrowing is to be denominated in dollars, whether it is to be a
Eurocurrency Borrowing or an ABR Borrowing; (iii) the date of such Borrowing
(which shall be a Business Day); (iv) the number and location of the account to
which funds are to be disbursed (which shall be an account that complies with
the requirements of Section 2.02(c)); (v) the amount of such Borrowing (which
shall be specified in dollars, even if such Borrowing is to be made in an
Alternative Currency); (vi) subject to the limitations of Section 2.01, the
currency of such Borrowing; and (vii) if such Borrowing is to be a Eurocurrency
Borrowing, the initial Interest Period with respect thereto; provided, however,
that, notwithstanding any contrary specification in any Borrowing Request, each
requested Borrowing shall comply with the requirements set forth in Section
2.02. If no election as to the currency of Borrowing is specified in any such
notice, then the requested Borrowing shall be denominated in the only currency
permitted to be borrowed by such Borrower pursuant to Section 2.01. If no
election as to the Type of Borrowing is specified in any such notice, then the
requested Borrowing shall be an ABR Borrowing if denominated in dollars or a
Eurocurrency Borrowing if denominated in an Alternative Currency. If no Interest
Period with respect to any Eurocurrency Borrowing is specified in any such
notice, then such Borrower shall be deemed to have selected an Interest Period
of one month's duration. The Administrative Agent shall promptly advise the
applicable Lenders of any notice given pursuant to this Section 2.03 (and the
contents thereof), of each Lender's portion of the requested Borrowing and the
account to which Loans made in connection with the requested Borrowing are to be
wired.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) Each Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of the Swingline Lender or each other Lender entitled thereto (i) the
then unpaid principal amount of each Swingline Loan, on the last day of the
Interest Period applicable to such Loan or, if earlier, on the Revolving Credit
Maturity Date, (ii) the principal amount of each Tranche B Term Loan of such
Lender as provided in Section 2.11 and (iii) the then unpaid principal amount of
each Revolving Loan and A/C Fronted Loan on the Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of each Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from each Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from each Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of any Borrower to repay the Loans in
accordance with their terms.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall execute and deliver to such
Lender a promissory note payable to the order of such Lender (or, if requested
by such Lender, to such Lender and its registered assigns) and in a form and
substance reasonably acceptable to the Administrative Agent and the Borrower.
Notwithstanding any other provision of this Agreement, in the event any Lender
shall request and receive a promissory note payable to such Lender and its
registered assigns, the interests represented by such note shall at all times
(including after any assignment of all or part of such interests pursuant to
Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) Terex agrees to pay to each Lender in dollars,
through the Administrative Agent, on the last day of March, June, September and
December in each year and on each date on which any Revolving Credit Commitment
of such Lender shall expire or be terminated as provided herein, a facility fee
(a "Facility Fee") equal to the Applicable Percentage per annum in effect from
time to time on the total amount of the Revolving Credit Commitments of such
Lender (but not the A/C Fronting Commitments or the Swingline Commitments)
during the preceding quarter (or other period ending with the Revolving Credit
Maturity Date, or the date on which the Revolving Credit Commitments of such
Lender shall expire or be terminated); provided, however, that if any Revolving
Credit Exposure remains outstanding following any such expiration or termination
of the Revolving Credit Commitments, the Facility Fees with respect to such
Revolving Credit Exposure shall continue to accrue for so long as such Revolving
Credit Exposure remains outstanding and shall be payable on demand. All Facility
Fees shall be computed on the basis of the actual number of days elapsed in a
year of 360 days. The Facility Fee due to each Lender commenced to accrue on and
including the Original Closing Date and shall cease to accrue on the date on
which the Revolving Credit Commitment of such Lender shall expire or be
terminated as provided herein and there is not any remaining Revolving Credit
Exposure.
(b) Each Borrower agrees to pay to the Administrative Agent in dollars, for
its own account, the administrative fees set forth in the Fee Letter at the
times and in the amounts specified therein (the "Administrative Agent Fees").
(c) Each Borrower agrees to pay (i) to each Revolving Credit Lender,
through the Administrative Agent, on the last day of March, June, September and
December of each year and on the date on which the Revolving Credit Commitment
of such Lender shall be terminated as provided herein, a fee (an "L/C
Participation Fee") calculated on such Lender's Pro Rata Percentage of the
average daily aggregate L/C Exposure (excluding the portion thereof attributable
to unreimbursed L/C Disbursements) during the preceding quarter (or shorter
period commencing with the Restatement Closing Date or ending with the Revolving
Credit Maturity Date or the date on which all Letters of Credit have been
canceled or have expired and the Revolving Credit Commitments of all Lenders
shall have been terminated) at a rate equal to the Applicable Percentage from
time to time used to determine the interest rate on Revolving Credit Borrowings
comprised of Eurocurrency Loans pursuant to Section 2.06, and (ii) to each
Issuing Bank with respect to each Letter of Credit issued by it on the last day
of March, June, September and December in each year and on each date on which
any Revolving Credit Commitment shall expire or be terminated as set forth
herein a fronting fee equal to 0.125% per annum on the amount of Letters of
Credit issued by such Issuing Bank and outstanding during the preceding quarter
(or other period ending with the Revolving Credit Maturity Date or the date on
which the Revolving Credit Commitments shall expire or be terminated) (the
"Issuing Bank Fees"). All L/C Participation Fees and Issuing Bank Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360 days
and shall be payable in dollars.
(d) Except as provided in Section 2.24(e), each A/C Fronting Lender agrees
to pay to each Revolving Credit Lender, through the Administrative Agent, on
each Interest Payment Date with respect to each A/C Fronted Loan made by such
A/C Fronting Lender, a fee (an "A/C Participation Fee") equal to such Revolving
Credit Lender's Pro Rata Percentage of the Applicable Percentage received by
such A/C Fronting Lender from or on behalf of the applicable Borrower on such
Interest Payment Date in respect of such A/C Fronted Loan. All A/C Participation
Fees shall be payable (i) in the currency in which they were received by the A/C
Fronting Lender and (ii) only to the extent received by the A/C Fronting Lender.
(e) Each of the Australian Borrower and the Italian Borrower severally
agrees to pay to the Australian Fronting Lender and the Italian Fronting Lender,
respectively, on the last day of March, June, September and December in each
year and on each date on which the A/C Fronting Commitment of such Lender shall
expire or be terminated as set forth herein a fronting fee equal to 0.125% per
annum on the aggregate principal amount of A/C Fronted Loans of such Lender
outstanding during the preceding quarter (or other period commencing on the date
hereof or ending with the Revolving Credit Maturity Date or the date on which
the A/C Fronting Commitment shall expire or be terminated) (the "A/C Fronting
Fees"). All A/C Fronting Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days and shall be payable in Australian
Dollars or Euro, as the case may be.
(f) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the applicable Issuing Bank. Once paid, none of the Fees shall be refundable
under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of Section
2.07, the Loans comprising each ABR Borrowing, including each Swingline Loan,
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 365 or 366 days, as the case may be, when the Alternate Base Rate
is determined by reference to the Prime Rate and over a year of 360 days at all
other times) at a rate per annum equal to the sum of (i) the Alternate Base Rate
and (ii) the Applicable Percentage for such Loans in effect from time to time.
(b) Subject to the provisions of Section 2.07, each Foreign Base Rate Loan
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days or, in the case of Foreign Base Rate Loans denominated
in Pounds, 365 or 366 days, as the case may be) at a rate per annum equal to the
sum of (i) the rate set forth in the definition of the term "Foreign Base Rate
Loans" and (ii) the Applicable Percentage for ABR Revolving Loans in effect from
time to time.
(c) Subject to the provisions of Section 2.07, the Loans comprising each
Eurocurrency Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days or, in the case of Eurocurrency
Loans denominated in Pounds, 365 or 366 days, as the case may be) at a rate per
annum equal to the sum of (i) the Adjusted LIBO Rate for the Interest Period in
effect for such Borrowing and (ii) the Applicable Percentage for such Loans in
effect from time to time.
(d) Interest on each Loan shall be payable (i) on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement and
(ii) in the currency in which such Loan is denominated. The applicable Alternate
Base Rate or Adjusted LIBO Rate for each Interest Period or day within an
Interest Period, as the case may be, shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.
(e) Any changes to interest rates applicable to the Loans outstanding on
the Restatement Closing Date under the Original Credit Agreement as a result of
the Amendment Agreement shall be effective on and as of the Restatement Closing
Date.
SECTION 2.07. Default Interest. If any Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
such Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to but excluding the date of actual
payment (after as well as before judgment) (a) in the case of the Loans, the
rate that would otherwise be applicable thereto pursuant to Section 2.06 plus
2%, (b) in the case of reimbursement obligations with respect to L/C
Disbursements owing in dollars, the rate applicable to ABR Revolving Loans plus
2% and (c) in the case of reimbursement obligations with respect to L/C
Disbursements owing in Alternative Currencies, the rate applicable to Foreign
Base Rate Loans that are Revolving Credit Loans for the Applicable Alternative
Currency plus 2%, (d) in the case of any interest payable on any Loan or
reimbursement obligation with respect to any L/C Disbursement or any Facility
Fee or other amount payable hereunder, at a rate per annum equal to the rate
applicable to ABR Loans (or, in the case of interest, fees or amounts owing on
account of obligations denominated in Alternative Currencies, Foreign Base Rate
Loans) that are Tranche B Term Loans or Revolving Loans, as applicable, plus 2%
(or, in the case of fees, reimbursements or any such other amounts that do not
relate to Tranche B Term Loans or the Revolving Credit Exposure, the Alternate
Base Rate plus 3.00%).
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurocurrency Borrowing the Administrative Agent shall have
determined that (a) deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the relevant market, or (b) the
rates at which such deposits are being offered will not adequately and fairly
reflect the cost to any Lender of making or maintaining its Eurocurrency Loan
during such Interest Period, or (c) reasonable means do not exist for
ascertaining the Adjusted LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopy notice explaining such
determination to the applicable Borrower and the Lenders. In the event of any
such determination, until the Administrative Agent shall have advised such
Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist, any request by such Borrower for a Eurocurrency Borrowing
denominated in dollars pursuant to Section 2.03 or 2.10 shall be deemed to be a
request for an ABR Borrowing. Each determination by the Administrative Agent
hereunder shall be conclusive absent manifest error and any request by such
Borrower for a Eurocurrency Borrowing denominated in any Alternative Currency
pursuant to Section 2.03 or 2.10 shall be deemed to be a request for a Foreign
Base Rate Loan.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Revolving
Credit Commitments, the Swingline Commitments, the A/C Fronting Commitments and
the L/C Commitment shall automatically terminate on the Revolving Credit
Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, Terex may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Commitments; provided, however, that (i) each partial reduction of either of the
Revolving Credit Commitments shall be in an integral multiple of $1,000,000 and
in a minimum amount of $5,000,000 and (ii) the Total Revolving Credit Commitment
shall not be reduced to an amount that is less than the sum of the Aggregate
Revolving Credit Exposure at the time.
(c) Each reduction in the Revolving Credit Commitments hereunder shall be
made ratably among the Lenders in accordance with their respective Revolving
Credit Commitments. Terex shall pay to the Administrative Agent for the account
of the applicable Lenders, on the date of each termination or reduction, the
Facility Fees on the amount of any Revolving Credit Commitments so terminated or
reduced accrued to but excluding the date of such termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. Each Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 1:00 p.m., New York City time, one
Business Day prior to conversion, to convert any Eurocurrency Borrowing
denominated in dollars into an ABR Borrowing, (b) not later than 12:00 (noon),
New York City time (or local time in the jurisdiction of the applicable
Alternative Currency, in the case of a continuation of the Interest Period for a
Eurocurrency Borrowing in an Alternative Currency), three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurocurrency
Borrowing denominated in dollars or to continue any Eurocurrency Borrowing as a
Eurocurrency Borrowing in the same currency for an additional Interest Period,
and (c) not later than 12:00 (noon), New York City time (or local time in the
jurisdiction of the applicable Alternative Currency), three Business Days prior
to conversion, to convert the Interest Period with respect to any Eurocurrency
Borrowing to another permissible Interest Period, subject in each case to the
following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing
shall satisfy the limitations specified in Sections 2.02(a) and 2.02(b)
regarding the principal amount and maximum number of Borrowings of the
relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new
Loan of such Lender resulting from such conversion and reducing the Loan
(or portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on any Eurocurrency Loan (or portion
thereof) being converted shall be paid by such Borrower at the time of
conversion;
(iv) if any Eurocurrency Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, such Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.16;
(v) any portion of a Borrowing (other than an Alternative Currency
Borrowing) maturing or required to be repaid in less than one month may not
be converted into or continued as a Eurocurrency Borrowing;
(vi) any portion of a Eurocurrency Borrowing denominated in dollars
that cannot be converted into or continued as a Eurocurrency Borrowing by
reason of the immediately preceding clause shall be automatically converted
at the end of the Interest Period in effect for such Borrowing into an ABR
Borrowing, and any portion of an Alternative Currency Borrowing required to
be repaid in less than one month may be converted, with the consent of the
Administrative Agent (which shall not be unreasonably withheld), to an
Interest Period ending on the date that such Borrowing is required to be
repaid;
(vii) no Interest Period may be selected for any Eurocurrency Tranche
B Term Borrowing that would end later than a Tranche B Term Loan Repayment
Date, occurring on or after the first day of such Interest Period if, after
giving effect to such selection, the aggregate outstanding amount of (A)
the Eurocurrency Tranche B Term Borrowings with Interest Periods ending on
or prior to such Tranche B Term Loan Repayment Date and (B) the ABR Tranche
B Term Borrowings would not be at least equal to the principal amount of
Tranche B Term Borrowings to be paid on such Tranche B Term Loan Repayment
Date; and
(viii) upon notice to any Borrower from the Administrative Agent given
at the request of the Required Lenders, after the occurrence and during the
continuance of a Default or Event of Default, (A) no outstanding Dollar
Borrowing may be converted into, or continued as, a Eurocurrency Borrowing,
(B) unless repaid, each Eurocurrency Borrowing denominated in dollars shall
be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto and (C) no Interest Period in excess of one month may be
selected for any Alternative Currency Borrowing.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the applicable Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurocurrency Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurocurrency Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurocurrency Borrowing, such
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If such Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
(i) in the case of a Dollar Borrowing, automatically be continued into a new
Interest Period as an ABR Borrowing and (ii) in the case of an Alternative
Currency Borrowing, automatically be continued into a new Interest Period of one
month. Notwithstanding any contrary provisions herein, the currency of an
outstanding Borrowing may not be changed in connection with any conversion or
continuation of such Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) Terex shall pay to the
Administrative Agent, for the account of the Lenders, on the dates set forth
below or, if any such date is not a Business Day, on the next succeeding
Business Day (each such date being a "Tranche B Term Loan Repayment Date"), a
principal amount of the Tranche B Term Loans (as adjusted from time to time
pursuant to Sections 2.12(b) and 2.13(g)) equal to the amount set forth below
opposite such date, together in each case with accrued and unpaid interest on
the principal amount to be paid to but excluding the date of such payment:
Date Percentage
---- ----------
December 31, 2001 .26%
March 31, 2002 .26%
June 30, 2002 .26%
September 30, 2002 .26%
December 31, 2002 .26%
March 31, 2003 .26%
June 30, 2003 .26%
September 30, 2003 .26%
December 31, 2003 .26%
March 31, 2004 .26%
June 30, 2004 24.35%
September 30, 2004 24.35%
December 31, 2004 24.35%
Tranche B Maturity Date 24.35%
(b) To the extent not previously paid, all Tranche B Term Loans shall be
due and payable on the Tranche B Maturity Date, together with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of
payment.
(c) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Prepayment. (a) Each Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon
prior written or telecopy notice (or telephone notice promptly confirmed by
written or telecopy notice) to the Administrative Agent (i) in the case of a
prepayment of a Eurocurrency Borrowing, given before 12:00 (noon), New York City
time (or, in the case of prepayment of an Alternative Currency Borrowing, local
time of the jurisdiction of such Alternative Currency) three Business Days
before such prepayment and (ii) in the case of a prepayment of ABR Loans or
Foreign Base Rate Loans, given before 1:00 p.m. local time, one Business Day
before such prepayment; provided, however, that each partial prepayment shall be
in an amount that is an integral multiple of $100,000 (or the Alternative
Currency Equivalent thereof) and not less than $2,500,000 (or the Alternative
Currency Equivalent thereof).
(b) Optional prepayments of Tranche B Term Loans shall be applied (i)
first, against the remaining scheduled installments of principal due in respect
of the Tranche B Term Loans under Sections 2.11(a) in the next twelve months in
the order of maturity and (ii) second, pro rata against such remaining scheduled
installments of principal.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the applicable Borrower to prepay such Borrowing by
the amount stated therein on the date stated therein. All prepayments under this
Section 2.12 shall be subject to Section 2.16 but otherwise without premium or
penalty. All prepayments under this Section 2.12 shall be accompanied by accrued
interest on the principal amount being prepaid to the date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any termination of
all the Revolving Credit Commitments, each Borrower shall repay or prepay all
its outstanding Revolving Credit Borrowings, all outstanding Swingline Loans and
all outstanding A/C Fronted Loans on the date of such termination. In the event
of any partial reduction of the Revolving Credit Commitments, then at or prior
to the effective date of such reduction, the Administrative Agent shall notify
the Borrowers and the Revolving Credit Lenders of the Aggregate Revolving Credit
Exposure after giving effect thereto. If at any time, as a result of such a
partial reduction or termination, as a result of fluctuations in exchange rates
or otherwise, the Aggregate Revolving Credit Exposure would exceed the Total
Revolving Credit Commitment or the Alternative Currency Revolving Credit
Exposure in any Alternative Currency would exceed the sublimit for such
Alternative Currency set forth on Schedule 2.01(b), then the Borrowers shall (i)
on the date of such reduction or termination of Revolving Credit Commitments or
(ii) within three Business Day following notice from the Administrative Agent of
any such fluctuation in exchange rate or otherwise, repay or prepay Revolving
Credit Borrowings, Swingline Loans or A/C Fronted Loans (or a combination
thereof) in an amount sufficient to eliminate such excess.
(b) Not later than the third Business Day following the receipt of Net Cash
Proceeds in respect of any Asset Sale (other than (i) any Asset Sale the Net
Cash Proceeds of which are not greater than $5,000,000 from any single event or
series of related events and (ii) Asset Sales the aggregate Net Cash Proceeds of
which are not greater than $10,000,000 in any fiscal year of Terex), the
outstanding Term Loans shall be prepaid in accordance with Section 2.13(g) in an
aggregate principal amount equal to 100% of such Net Cash Proceeds.
(c) [Intentionally Omitted].
(d) No later than the earlier of (i) 90 days after the end of each fiscal
year of Terex, and (ii) the date on which the financial statements with respect
to such fiscal year are delivered pursuant to Section 5.04(a), outstanding Term
Loans shall be prepaid in accordance with Section 2.13(g) in an aggregate
principal amount equal to 50% of Excess Cash Flow for the fiscal year then
ended; provided, however, that no such prepayment shall be required if the
Consolidated Leverage Ratio as of the end of such fiscal year shall be less than
3.85 to 1.00.
(e) In the event that Terex or any Restricted Subsidiary shall receive Net
Cash Proceeds from the issuance or incurrence of any Indebtedness for money
borrowed (other than Indebtedness for money borrowed permitted pursuant to
Section 6.01), then, substantially simultaneously with (and in any event not
later than the third Business Day next following) the receipt of such Net Cash
Proceeds, 100% of such Net Cash Proceeds shall be used (i) to prepay outstanding
Term Loans in accordance with Section 2.13(g), and/or (ii) to prepay outstanding
Revolving Loans or Tranche C Revolving Loans, without reducing the Revolving
Credit Commitments or Tranche C Revolving Credit Commitments, in an aggregate
principal amount equal to 100% of such Net Cash Proceeds.
(f) In the event that there shall occur any Casualty or Condemnation and,
pursuant to the applicable Mortgage, the Casualty Proceeds or Condemnation
Proceeds, as the case may be, are required to be used to prepay the Term Loans,
then the outstanding Term Loans shall be prepaid in accordance with Section
2.13(g) in an aggregate principal amount equal to 100% of such Casualty Proceeds
or Condemnation Proceeds, as the case may be.
(g) Each prepayment of outstanding Term Loans required to be made pursuant
to any paragraph of this Section 2.13 shall be applied (i) first against the
remaining scheduled installments of principal due in respect of Tranche B Term
Loans under Sections 2.11(a) in the next twelve months in the order of maturity
and (ii) second, pro rata against such remaining scheduled installments of
principal.
(h) Terex shall deliver to the Administrative Agent, at the time of each
prepayment required under this Section 2.13, (i) a certificate signed by a
Financial Officer of Terex setting forth in reasonable detail the calculation of
the amount of such prepayment and (ii) to the extent practicable, at least three
Business Days' prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
(i) To the extent possible consistent with Section 2.13(g), amounts to be
applied pursuant to this Section 2.13 to the prepayment of Tranche B Term Loans
and Revolving Loans shall be applied, as applicable, first to prepay outstanding
ABR Tranche B Term Loans and ABR Revolving Loans. Any amounts remaining after
each such application shall, at the option of the applicable Borrower, be
applied to prepay Eurocurrency Tranche B Term Loans or Eurocurrency Revolving
Loans, as the case may be, immediately and/or shall be deposited in the
Prepayment Account (as defined below). The Administrative Agent shall apply any
cash deposited in the Prepayment Account (i) allocable to Tranche B Term Loans
to prepay Eurocurrency Tranche B Term Loans and (ii) allocable to Revolving
Loans to prepay Eurocurrency Revolving Loans, in each case on the last day of
their respective Interest Periods (or, at the direction of such Borrower, on any
earlier date) until all outstanding Tranche B Term Loans or Revolving Loans, as
the case may be, have been prepaid or until all the allocable cash on deposit
with respect to such Loans has been exhausted. For purposes of this Agreement,
the term "Prepayment Account" shall mean an account established by such Borrower
with the Administrative Agent and over which the Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal for
application in accordance with this paragraph (i). The Administrative Agent
will, at the request of such Borrower, invest amounts on deposit in the
Prepayment Account in Permitted Investments that mature prior to the last day of
the applicable Interest Periods of the Eurocurrency Tranche B Term Borrowings or
Eurocurrency Revolving Borrowings to be prepaid, as the case may be; provided,
however, that (i) the Administrative Agent shall not be required to make any
investment that, in its sole judgment, would require or cause the Administrative
Agent to be in, or would result in any, violation of any law, statute, rule or
regulation and (ii) the Administrative Agent shall have no obligation to invest
amounts on deposit in the Prepayment Account if a Default or Event of Default
shall have occurred and be continuing. Such Borrower shall indemnify the
Administrative Agent for any losses relating to the investments so that the
amount available to prepay Eurocurrency Borrowings on the last day of the
applicable Interest Period is not less than the amount that would have been
available had no investments been made pursuant thereto. Other than any interest
earned on such investments (which shall be for the account of the applicable
Borrower, to the extent not necessary for the prepayment of Eurocurrency Loans
in accordance with this Section 2.13), the Prepayment Account shall not bear
interest. Interest or profits, if any, on such investments shall be deposited in
the Prepayment Account and reinvested and disbursed as specified above. If the
maturity of the Loans has been accelerated pursuant to Article VII, the
Administrative Agent may, in its sole discretion, apply all amounts on deposit
in the Prepayment Account to satisfy any of the Obligations. Each Borrower
hereby grants to the Administrative Agent, for its benefit and the benefit of
the Secured Parties, a security interest in its Prepayment Account to secure the
Obligations. This paragraph (i) shall not be construed to alter the application
required by Section 2.13(g).
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the Original
Closing Date any change in applicable law or regulation or in the interpretation
or administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender or any Issuing
Bank of the principal of or interest on any Eurocurrency Loan or A/C Fronted
Fixed Rate Loan made by such Lender or any Fees or other amounts payable
hereunder (other than changes in respect of taxes imposed on the overall net
income of such Lender or such Issuing Bank by the jurisdiction in which such
Lender or such Issuing Bank has its principal office or by any political
subdivision or taxing authority therein), or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by any Lender or any
Issuing Bank (except any such reserve requirement which is reflected in the
Adjusted LIBO Rate, the Bank Xxxx Rate or the Italian Fixed Rate, as the case
may be) or shall impose on such Lender or such Issuing Bank or the London
interbank market (or other relevant interbank market) any other condition
affecting this Agreement or Eurocurrency Loans or A/C Fronted Fixed Rate Loans
made by such Lender or any Letter of Credit or participation therein, and the
result of any of the foregoing shall be to increase the cost to such Lender or
such Issuing Bank of making or maintaining any Eurocurrency Loan or A/C Fronted
Fixed Rate Loan or increase the cost to any Lender of issuing or maintaining any
Letter of Credit or purchasing or maintaining a participation therein or to
reduce the amount of any sum received or receivable by such Lender or such
Issuing Bank hereunder (whether of principal, interest or otherwise) by an
amount deemed by such Lender or such Issuing Bank to be material, then the
Borrowers will pay to such Lender or such Issuing Bank, as the case may be, upon
demand such additional amount or amounts as will compensate such Lender or such
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or any Issuing Bank shall have determined that the
adoption after the Original Closing Date of any law, rule, regulation, agreement
or guideline regarding capital adequacy, or any change after the Original
Closing Date in any such law, rule, regulation, agreement or guideline (whether
such law, rule, regulation, agreement or guideline has been adopted) or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof, or compliance by any Lender
(or any lending office of such Lender) or any Issuing Bank or any Lender's or
any Issuing Bank's holding company with any request or directive regarding
capital adequacy (whether or not having the force of law) of any Governmental
Authority has or would have the effect of reducing the rate of return on such
Lender's or such Issuing Bank's capital or on the capital of such Lender's or
such Issuing Bank's holding company, if any, as a consequence of this Agreement
or the Loans made or participations in Letters of Credit purchased by such
Lender pursuant hereto or the Letters of Credit issued by such Issuing Bank
pursuant hereto to a level below that which such Lender or such Issuing Bank or
such Lender's or such Issuing Bank's holding company could have achieved but for
such applicability, adoption, change or compliance (taking into consideration
such Lender's or such Issuing Bank's policies and the policies of such Lender's
or such Issuing Bank's holding company with respect to capital adequacy) by an
amount deemed by such Lender or such Issuing Bank to be material, then from time
to time the Borrowers shall pay to such Lender or such Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Lender or such
Issuing Bank or such Lender's or such Issuing Bank's holding company for any
such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or such Issuing Bank or its
holding company, as applicable, as specified in paragraph (a) or (b) above shall
be delivered to the Borrowers and shall be conclusive absent manifest error. The
Borrowers shall pay such Lender or such Issuing Bank the amount shown as due on
any such certificate delivered by it within 10 days after its receipt of the
same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation. The
protection of this Section shall be available to each Lender and each Issuing
Bank regardless of any possible contention of the invalidity or inapplicability
of the law, rule, regulation, agreement, guideline or other change or condition
that shall have occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision
of this Agreement, if, after the Original Closing Date, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurocurrency Loan or to give effect to
its obligations as contemplated hereby with respect to any Eurocurrency Loan,
then, by written notice to the Borrowers and to the Administrative Agent:
(i) such Lender may declare that Eurocurrency Loans will not
thereafter (for the duration of such unlawfulness) be made by such Lender
hereunder (or be continued for additional Interest Periods and ABR Loans
and Foreign Base Rate Loans will not thereafter (for such duration) be
converted into Eurocurrency Loans), whereupon any request for a
Eurocurrency Borrowing (or to convert an ABR Borrowing or a Foreign Base
Rate Loan to a Eurocurrency Borrowing or to continue a Eurocurrency
Borrowing for an additional Interest Period) shall, as to such Lender only,
be deemed a request for an ABR Loan (in the case of Dollar Loans) or
Foreign Base Rate Loans (in the case of Alternative Currency Loans) (or a
request to continue an ABR Loan or a Foreign Base Rate Loan as such for an
additional Interest Period or to convert a Eurocurrency Loan into an ABR
Loan or a Foreign Base Rate Loan, as the case may be), unless such
declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurocurrency Loans
made by it be converted to ABR Loans (in the case of Dollar Loans) or
Foreign Base Rate Loans (in the case of Alternative Currency Loans) in
which event all such Eurocurrency Loans shall be automatically converted to
such ABR Loans or Foreign Base Rate Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurocurrency Loans that would have been made by such Lender or the
converted Eurocurrency Loans of such Lender shall instead be applied to repay
the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurocurrency Loans. (b) For purposes of this Section 2.15, a notice to
Terex by any Lender shall be effective as to each Eurocurrency Loan made by such
Lender, if lawful, on the last day of the Interest Period currently applicable
to such Eurocurrency Loan; in all other cases such notice shall be effective on
the date of receipt by Terex.
SECTION 2.16. Indemnity. Each Borrower shall indemnify each Lender against
any loss or expense, including any break-funding cost or any loss sustained in
converting between any Alternative Currency and dollars, as the case may be,
that such Lender may sustain or incur as a consequence of (a) any event, other
than a default by such Lender in the performance of its obligations hereunder,
which results in (i) such Lender receiving or being deemed to receive any amount
on account of the principal of any Eurocurrency Loan or A/C Fronted Fixed Rate
Loan prior to the end of the Interest Period in effect therefor, (ii) the
conversion of any Eurocurrency Loan or A/C Fronted Fixed Rate Loan to an ABR
Loan, or Fronted Base Rate Loan, respectively, or the conversion of the Interest
Period with respect to any Eurocurrency Loan or A/C Fronted Fixed Rate Loan, in
each case other than on the last day of the Interest Period in effect therefor,
or (iii) any Eurocurrency Loan or A/C Fronted Fixed Rate Loan to be made by such
Lender (including any Eurocurrency Loan or A/C Fronted Fixed Rate Loan to be
made pursuant to a conversion or continuation under Section 2.10) not being made
after notice of such Loan shall have been given by the applicable Borrower
hereunder (any of the events referred to in this clause (a) being called a
"Breakage Event") or (b) any default in the making of any payment or prepayment
required to be made hereunder. In the case of any Breakage Event, such loss
shall include an amount equal to the excess, as reasonably determined by such
Lender, of (i) its cost of obtaining funds for the Eurocurrency Loan or A/C
Fronted Fixed Rate Loan that is the subject of such Breakage Event for the
period from the date of such Breakage Event to the last day of the Interest
Period in effect (or that would have been in effect) for such Loan over (ii) the
amount of interest likely to be realized by such Lender in redeploying the funds
released or not utilized by reason of such Breakage Event for such period. A
certificate of any Lender setting forth any amount or amounts which such Lender
is entitled to receive pursuant to this Section 2.16, together with a reasonably
detailed calculation thereof, shall be delivered to the applicable Borrower and
shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided below in this Section
2.17 with respect to Swingline Loans and as required under Sections 2.13(j) and
2.15, each Borrowing, each payment or prepayment of principal of any Borrowing,
each payment of interest on the Loans, each payment of the Facility Fees, each
reduction of the Revolving Credit Commitments and each conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Loans). For purposes of determining the available Revolving Credit
Commitments of the Lenders at any time, each outstanding Swingline Loan shall be
deemed to have utilized the Revolving Credit Commitments of the Lenders
(including those Lenders which shall not have made Swingline Loans) pro rata in
accordance with such respective Revolving Credit Commitments. Each Lender agrees
that in computing such Lender's portion of any Borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round each Lender's percentage
of such Borrowing to the next higher or lower whole dollar or applicable
Alternative Currency amount.
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 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 B Term
Loans, Tranche C Loans and Revolving Loans and participations in L/C
Disbursements Tranche B 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 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 B Term
Loans, Tranche C Loans and Revolving Loans and L/C Exposure and A/C Fronted
Exposure and participations in 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 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 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 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.
SECTION 2.19. Payments. (a) Each Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document from a
Payment Location in the United States or the jurisdiction of any Alternative
Currency prior to (i) 1:00 p.m., New York City time on the date when due, in the
case of any amount payable in dollars, and (ii) 12:00 (noon), local time of such
other jurisdiction, on the date when due, in the case of any amount payable in
any Alternative Currency, in each case, in immediately available funds, without
setoff, defense or counterclaim. Each such payment (other than (i) Issuing Bank
Fees, which shall be paid directly to applicable Issuing Bank, (ii) principal of
and interest on Swingline Loans, which shall be paid directly to the Swingline
Lender except as otherwise provided in Section 2.22(e) and (iii) A/C Fronting
Fees, which shall be paid directly to the applicable A/C Fronting Lender except
as otherwise provided in Section 2.24(e)) shall be made to such account as shall
from time to time be specified in a writing delivered to Terex and each Borrower
by the Administrative Agent. Except as provided in Section 2.24 (Conversion of
A/C Fronted Loans) with respect to defaulted A/C Fronted Loans, all Alternative
Currency Loans hereunder shall be denominated and made, and all payments
hereunder or under any other Loan Document in respect thereof (whether of
principal, interest, fees or otherwise) shall be made, in such Alternative
Currency. All Dollar Loans hereunder shall be denominated and made, and all
payments of principal and interest, Fees or otherwise hereunder or under any
other Loan Document in respect thereof shall be made, in dollars, except as
otherwise expressly provided herein. Unless otherwise agreed by the applicable
Borrower and each Lender to receive any such payment, all other amounts due
hereunder or under any other Loan Document shall be payable in dollars.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on behalf of any
Borrower or any Loan Party (or, with respect to payments by an A/C Fronting
Lender of the A/C Participation Fee, an A/C Fronting Lender) hereunder and under
any other Loan Document shall be made, in accordance with Section 2.19, free and
clear of and without deduction for any and all current or future taxes, levies,
imposts, deductions, charges or withholdings imposed by any Governmental
Authority in the United States, the jurisdiction of any Alternative Currency or
the jurisdiction of any Payment Location, and all liabilities with respect
thereto, excluding (i) income taxes imposed on the net income of the
Administrative Agent, any Lender or an Issuing Bank (or any transferee or
assignee thereof, including a participation holder (any such entity a
"Transferee")) and (ii) franchise taxes imposed on the net income of the
Administrative Agent, any Lender or an Issuing Bank (or Transferee), in each
case by the jurisdiction under the laws of which the Administrative Agent, such
Lender or an Issuing Bank (or Transferee) is organized or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities, collectively or individually, being
called "Taxes"). If any Borrower or any Loan Party shall be required to deduct
any Taxes from or in respect of any sum payable hereunder or under any other
Loan Document to the Administrative Agent, any Lender or an Issuing Bank (or any
Transferee), (i) the sum payable shall be increased by the amount (an
"additional amount") necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.20) the Administrative Agent, such Lender or such Issuing Bank (or
Transferee), as the case may be, shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii) such Borrower or such
Loan Party shall make such deductions and (iii) such Borrower or such Loan Party
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law. If any A/C Fronting Lender shall be required to
deduct any Taxes from or in respect of any A/C Participation Fee, Terex or the
applicable Borrower shall pay to the applicable Revolving Credit Lender the
"additional amount" referred to in the preceding sentence.
(b) In addition, each Borrower agrees to pay to the relevant Governmental
Authority in accordance with applicable law any current or future stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies (including, without limitation, mortgage recording taxes and similar
fees) that arise from any payment made hereunder or under any other Loan
Document or from the execution, delivery, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Document imposed by
any Governmental Authority in the United States, the jurisdiction of any
Alternative Currency or the jurisdiction of any Payment Location ("Other
Taxes").
(c) Each Borrower will indemnify the Administrative Agent, each Lender and
each Issuing Bank (or Transferee) for the full amount of Taxes and Other Taxes
paid by the Administrative Agent, such Lender or such Issuing Bank (or
Transferee), as the case may be, and any liability (including penalties,
interest and expenses (including reasonable attorney's fees and expenses))
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability prepared by the
Administrative Agent, a Lender or an Issuing Bank (or Transferee), or the
Administrative Agent on its behalf, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Administrative Agent, any Lender or an Issuing
Bank (or Transferee), as the case may be, makes written demand therefor.
(d) As soon as practicable after the date of any payment of Taxes or Other
Taxes by any Borrower or any other Loan Party to the relevant Governmental
Authority, such Borrower or such other Loan Party will deliver to the
Administrative Agent, at its address referred to in Section 9.01, the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing payment thereof.
(e) Each Lender (or Transferee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "Non-U.S. Lender") that is entitled to an exemption from, or
reduction of, withholding tax under the law of the jurisdiction in which any
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments by such Borrower under this Agreement and the other Loan
Documents shall deliver to such Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by such Borrower as will permit such payments to be made without
withholding or at a reduced rate; provided that such Non-U.S. Lender has
received written notice from such Borrower advising it of the availability of
such exemption or reduction and containing all applicable documentation. In
addition, each Non-U.S. Lender shall deliver such documentation promptly upon
the obsolescence or invalidity of any documentation previously delivered by such
Non-U.S. Lender. Notwithstanding any other provision of this Section 2.20(e), a
Non-U.S. Lender shall not be required to deliver any documentation pursuant to
this Section 2.20(e) that such Non-U.S. Lender is not legally able to deliver.
(f) No Borrower shall be required to indemnify any Non-U.S. Lender or to
pay any additional amounts to any Non-U.S. Lender, in respect of United States
Federal withholding tax pursuant to paragraph (a) or (c) above to the extent
that (i) the obligation to withhold amounts with respect to United States
Federal withholding tax existed and would apply to payments made to such
Non-U.S. Lender on the date such Non-U.S. Lender became a party to this
Agreement (or, in the case of a Transferee that is a participation holder, on
the date such participation holder became a Transferee hereunder) or, with
respect to payments to a New Lending Office, the date such Non-U.S. Lender
designated such New Lending Office with respect to a Loan; provided, however,
that this paragraph (f) shall not apply (x) to any Transferee or New Lending
Office that becomes a Transferee or New Lending Office as a result of an
assignment, participation, transfer or designation made at the request of any
Borrower and (y) to the extent the indemnity payment or additional amounts any
Transferee, or any Lender (or Transferee), acting through a New Lending Office,
would be entitled to receive (without regard to this paragraph (f)) do not
exceed the indemnity payment or additional amounts that the person making the
assignment, participation or transfer to such Transferee, or Lender (or
Transferee) making the designation of such New Lending Office, would have been
entitled to receive in the absence of such assignment, participation, transfer
or designation or (ii) the obligation to pay such additional amounts would not
have arisen but for a failure by such Non-U.S. Lender to comply with the
provisions of paragraph (e) above.
(g) Nothing contained in this Section 2.20 shall require any Lender or an
Issuing Bank (or any Transferee) or the Administrative Agent to make available
any of its tax returns (or any other information that it deems to be
confidential or proprietary).
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty
to Mitigate. (a) In the event (i) any Lender or an Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
an Issuing Bank delivers a notice described in Section 2.15, (iii) any Borrower
is required to pay any additional amount to any Lender or an Issuing Bank or any
Governmental Authority on account of any Lender or an Issuing Bank pursuant to
Section 2.20 or (iv) any Lender refuses to consent to a proposed amendment,
waiver, consent or other modification of this Agreement or any other Loan
Documents which has been approved by the Required Lenders and which additionally
requires the consent of such Lender for approval pursuant to Section 9.08(b),
such Borrower may, at its sole expense and effort (including with respect to the
processing and recordation fee referred to in Section 9.04(b)), upon notice to
such Lender or such Issuing Bank and the Administrative Agent, require such
Lender or such Issuing Bank to transfer and assign, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all
of its interests, rights and obligations under this Agreement to an assignee
that shall assume such assigned obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (x) such assignment
shall not conflict with any law, rule or regulation or order of any court or
other Governmental Authority having jurisdiction, (y) such Borrower shall have
received the prior written consent of the Administrative Agent (and, if a
Revolving Credit Commitment is being assigned, of the Issuing Banks and the
Swingline Lender), which consent shall not unreasonably be withheld, and (z)
such Borrower or such assignee shall have paid to the affected Lender or Issuing
Bank in immediately available funds (and in the currency or currencies in which
payment would be required if all amounts were to be paid by such Borrower) an
amount equal to the sum of the principal of and interest accrued to the date of
such payment on the outstanding Loans or L/C Disbursements of such Lender or
such Issuing Bank, respectively, plus all Fees and other amounts accrued for the
account of such Lender or such Issuing Bank hereunder (including any amounts
under Section 2.14 and Section 2.16); provided further that, if prior to any
such transfer and assignment the circumstances or event that resulted in such
Lender's or such Issuing Bank's claim for compensation under Section 2.14 or
notice under Section 2.15 or the amounts paid pursuant to Section 2.20, as the
case may be, cease to cause such Lender or such Issuing Bank to suffer increased
costs or reductions in amounts received or receivable or reduction in return on
capital, or cease to have the consequences specified in Section 2.15, or cease
to result in amounts being payable under Section 2.20, as the case may be
(including as a result of any action taken by such Lender or such Issuing Bank
pursuant to paragraph (b) below), or if such Lender or such Issuing Bank shall
waive its right to claim further compensation under Section 2.14 in respect of
such circumstances or event or shall withdraw its notice under Section 2.15 or
shall waive its right to further payments under Section 2.20 in respect of such
circumstances or event, as the case may be, then such Lender or such Issuing
Bank shall not thereafter be required to make any such transfer and assignment
hereunder.
(b) If (i) any Lender or an Issuing Bank shall request compensation under
Section 2.14, (ii) any Lender or an Issuing Bank delivers a notice described in
Section 2.15 or (iii) any Borrower is required to pay any additional amount to
any Lender or an Issuing Bank or any Governmental Authority on account of any
Lender or an Issuing Bank, pursuant to Section 2.20, then such Lender or such
Issuing Bank shall use reasonable efforts (which shall not require such Lender
or such Issuing Bank to incur an unreimbursed loss or unreimbursed cost or
expense or otherwise take any action inconsistent with its internal policies or
legal or regulatory restrictions or suffer any disadvantage or burden deemed by
it to be significant) (x) to file any certificate or document reasonably
requested in writing by such Borrower or (y) to assign its rights and delegate
and transfer its obligations hereunder to another of its offices, branches or
affiliates, if such filing or assignment would materially reduce its claims for
compensation under Section 2.14 or enable it to withdraw its notice pursuant to
Section 2.15 or would materially reduce amounts payable pursuant to Section
2.20, as the case may be, in the future. Terex hereby agrees to pay all
reasonable costs and expenses incurred by any Lender or any Issuing Bank in
connection with any such filing or assignment, delegation and transfer.
SECTION 2.22. Swingline Loans. (a) Swingline Commitment. Subject to the
terms and conditions and relying upon the representations and warranties herein
set forth, the Swingline Lender agrees to make loans, in dollars, to Terex at
any time and from time to time during the Revolving Credit Availability Period,
in an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of all Swingline Loans exceeding $25,000,000
in the aggregate or (ii) the Aggregate Revolving Credit Exposure, after giving
effect to any Swingline Loan, exceeding the Total Revolving Credit Commitment.
Each Swingline Loan shall be in a principal amount that is an integral multiple
of $250,000. The Swingline Commitments may be terminated or reduced from time to
time as provided herein. Within the foregoing limits, Terex may borrow, pay or
prepay and reborrow Swingline Loans hereunder, subject to the terms, conditions
and limitations set forth herein.
(b) Swingline Loans. Terex shall notify the Swingline Lender, with a copy
to the Administrative Agent, by telecopy, or by telephone (confirmed by
telecopy), not later than 2:00 p.m., New York City time, on the day of a
proposed Swingline Loan. Such notice shall be delivered on a Business Day, shall
be irrevocable and shall refer to this Agreement and shall specify the requested
date (which shall be a Business Day) and amount of such Swingline Loan.
(c) Prepayment. Terex shall have the right at any time and from time to
time to prepay any Swingline Loan, in whole or in part, upon giving written or
telecopy notice (or telephone notice promptly confirmed by written, or telecopy
notice) to the Swingline Lender and to the Administrative Agent before 1:00
p.m., New York City time, on the date of prepayment at the Swingline Lender's
address for notices specified on Schedule 2.01. All principal payments of
Swingline Loans shall be accompanied by accrued interest on the principal amount
being repaid to the date of payment.
(d) Interest. Each Swingline Loan shall be an ABR Loan and, subject to the
provisions of Section 2.07, shall bear interest as provided in Section 2.06(a).
(e) Participations. If Terex does not fully repay a Swingline Loan on or
prior to the last day of the Interest Period with respect thereto, the Swingline
Lender shall notify the Administrative Agent thereof by 2:00 p.m., New York City
time (by telecopy or by telephone, confirmed in writing), and the Administrative
Agent shall promptly notify each Revolving Credit Lender thereof (by telecopy or
by telephone, confirmed in writing) and of its Pro Rata Percentage of such
Swingline Loan. Upon such notice but without any further action, the Swingline
Lender hereby agrees to grant to each Revolving Credit Lender, and each
Revolving Credit Lender hereby agrees to acquire from the Swingline Lender, a
participation in such defaulted Swingline Loan equal to such Revolving Credit
Lender's Pro Rata Percentage of the aggregate principal amount of such defaulted
Swingline Loan. In furtherance of the foregoing, each Revolving Credit Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to the Administrative Agent, for the account of the Swingline
Lender, such Revolving Credit Lender's Pro Rata Percentage of each Swingline
Loan that is not repaid on the last day of the Interest Period with respect
thereto. Each Revolving Credit Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Revolving Credit
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.02(c)
with respect to Loans made by such Revolving Credit Lender (and Section 2.02(c)
shall apply, mutatis mutandis, to the payment obligations of the Revolving
Credit Lenders) and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Revolving Credit Lenders. The
Administrative Agent shall notify Terex of any participations in any Swingline
Loan acquired pursuant to this paragraph and thereafter payments in respect of
such Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from Terex (or
other party on behalf of Terex) in respect of a Swingline Loan after receipt by
the Swingline Lender of the proceeds of a sale of participations therein shall
be promptly remitted to the Administrative Agent; any such amounts received by
the Administrative Agent shall be promptly remitted by the Administrative Agent
to the Revolving Credit Lenders that shall have made their payments pursuant to
this paragraph and to the Swingline Lender, as their interests may appear. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall
not relieve Terex (or other party liable for obligations of Terex) of any
default in the payment thereof.
SECTION 2.23. Letters of Credit. (a) Subject to the terms and conditions
set forth herein, (i) each of the Existing Letters of Credit shall, upon the
effectiveness of this Agreement on the Restatement Closing Date and without any
further action on the part of the applicable Issuing Bank or any other person,
be deemed for all purposes to have been issued by the applicable Issuing Bank as
a Letter of Credit hereunder and (ii) any Borrower may request the issuance of a
Letter of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, at any time and from time
to time while the Revolving Credit Commitments remain in effect. This Section
shall not be construed to impose an obligation upon an Issuing Bank to issue any
Letter of Credit that is inconsistent with the terms and conditions of this
Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
In order to request the issuance of a Letter of Credit (or to amend, renew or
extend an existing Letter of Credit), the applicable Borrower shall hand deliver
or telecopy to the applicable Issuing Bank and the Administrative Agent (three
Business Days in advance of the requested date of issuance, amendment, renewal
or extension, or such shorter period as the applicable Borrower, the
Administrative Agent and the applicable Issuing Bank shall agree) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), the amount and currency (which
must be dollars or an Alternative Currency) of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare such Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if, and upon issuance, amendment, renewal or
extension of each Letter of Credit the applicable Borrower shall be deemed to
represent and warrant that, after giving effect to such issuance, amendment,
renewal or extension (A) the L/C Exposure shall not exceed $60,000,000, (B) the
Aggregate Revolving Credit Exposure shall not exceed the Total Revolving Credit
Commitment and (C) the Alternative Currency Revolving Credit Exposure with
respect to any Alternative Currency shall not exceed the sublimit for such
Alternative Currency set forth in Schedule 2.01(b).
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date.
(d) Participations. By the issuance of a Letter of Credit (or, in the case
of the Existing Letters of Credit, deemed issuance) and without any further
action on the part of such Issuing Bank or the Lenders, the applicable Issuing
Bank hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the applicable Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Pro Rata Percentage of the aggregate amount
available to be drawn under such Letter of Credit, effective upon the issuance
of such Letter of Credit. In consideration and in furtherance of the foregoing,
each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay
to the Administrative Agent, for the account of the applicable Issuing Bank,
such Lender's Pro Rata Percentage of each L/C Disbursement made by such Issuing
Bank and not reimbursed by the applicable Borrower (or, if applicable, another
party pursuant to its obligations under any other Loan Document) forthwith on
the date due as provided in Section 2.02(f) and in the same currency as such L/C
Disbursement. Each Revolving Credit Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default or the fact that, as a result of fluctuations in exchange
rates, such Revolving Credit Lender's Revolving Credit Exposure at any time
might exceed its Revolving Credit Commitment at such time (in which case Section
2.13(a) would apply), and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit denominated in dollars, the applicable Borrower
shall pay to the Administrative Agent an amount equal to such L/C Disbursement
not later than two hours after such Borrower shall have received notice from the
applicable Issuing Bank that payment of such draft will be made, or, if such
Borrower shall have received such notice later than 10:00 a.m., New York City
time, on any Business Day, not later than 10:00 a.m., New York City time, on the
immediately following Business Day. If an Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit denominated in any Alternative
Currency, the applicable Borrower shall pay to the Administrative Agent an
amount equal to such L/C Disbursement not later than two hours after such
Borrower shall have received notice from the applicable Issuing Bank that
payment of such draft will be made, or, if such Borrower shall have received
such notice later than 10:00 a.m., London time, on any Business Day, not later
than 10:00 a.m., London time, on the immediately following Business Day.
(f) Obligations Absolute. Each Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or
any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right that
any Borrower, any other party guaranteeing, or otherwise obligated with,
such Borrower, any Subsidiary or other Affiliate thereof or any other
person may at any time have against the beneficiary under any Letter of
Credit, the applicable Issuing Bank, the Administrative Agent or any Lender
or any other person, whether in connection with this Agreement, any other
Loan Document or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(v) payment by an Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of an
Issuing Bank, the Lenders, the Administrative Agent or any other person or
any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of any Borrower's obligations
hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of each
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of an Issuing Bank. However, the foregoing
shall not be construed to excuse an Issuing Bank from liability to any Borrower
to the extent of any direct damages (as opposed to consequential damages, claims
in respect of which are hereby waived by each Borrower to the extent permitted
by applicable law) suffered by any Borrower that are caused by an Issuing Bank's
gross negligence or wilful misconduct in determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof; it
is understood that an Issuing Bank may accept documents that appear on their
face to be in order, without responsibility for further investigation and, in
making any payment under any Letter of Credit (i) an Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of an Issuing Bank.
(g) Disbursement Procedures. The applicable Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. Such Issuing Bank shall as promptly
as possible give telephonic notification, confirmed by telecopy, to the
Administrative Agent and the applicable Borrower of such demand for payment and
whether such Issuing Bank has made or will make an L/C Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve any Borrower of its obligation to reimburse such Issuing Bank and the
Revolving Credit Lenders with respect to any such L/C Disbursement. The
Administrative Agent shall promptly give each Revolving Credit Lender notice
thereof.
(h) Interim Interest. If an Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, then, unless the applicable Borrower shall
reimburse such L/C Disbursement in full on such date, the unpaid amount thereof
shall bear interest for the account of such Issuing Bank, for each day from and
including the date of such L/C Disbursement, to but excluding the earlier of the
date of payment by such Borrower or the date on which interest shall commence to
accrue thereon as provided in Section 2.02(f), at the rate per annum that would
apply to such amount if such amount were (i) in the case of a Dollar Loan, an
ABR Revolving Loan and (ii) in the case of an Alternative Currency, a
Eurocurrency Revolving Loan with an Interest Period of one month's duration.
(i) Resignation or Removal of an Issuing Bank. An Issuing Bank may resign
at any time by giving 180 days' prior written notice to the Administrative
Agent, the Lenders and Terex, and may be removed at any time by Terex by notice
to such Issuing Bank, the Administrative Agent and the Lenders. Subject to the
next succeeding paragraph, upon the acceptance of any appointment as an Issuing
Bank hereunder by a Lender that shall agree to serve as a successor Issuing
Bank, such successor shall succeed to and become vested with all the interests,
rights and obligations of the retiring Issuing Bank and the retiring Issuing
Bank shall be discharged from its obligations to issue additional Letters of
Credit hereunder. At the time such removal or resignation shall become
effective, the Borrowers shall pay all accrued and unpaid fees pursuant to
Section 2.05(c)(ii). The acceptance of any appointment as an Issuing Bank
hereunder by a successor Lender shall be evidenced by an agreement entered into
by such successor, in a form satisfactory to the Borrowers and the
Administrative Agent, and, from and after the effective date of such agreement,
(i) such successor Lender shall have all the rights and obligations of the
previous Issuing Bank under this Agreement and the other Loan Documents and (ii)
references herein and in the other Loan Documents to the term "Issuing Bank"
shall be deemed to refer to such successor or to any previous Issuing Bank, or
to such successor and all previous Issuing Banks, as the context shall require.
After the resignation or removal of an Issuing Bank hereunder, the retiring
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
(j) Cash Collateralization. If (i) any Event of Default shall occur and be
continuing or (ii) to the extent and so long as the L/C Exposure exceeds the
Total Revolving Credit Commitment, the Borrowers shall, on the Business Day
after Terex receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Revolving Credit
Lenders holding participations in outstanding Letters of Credit representing
greater than 50% of the aggregate undrawn amount of all outstanding Letters of
Credit) thereof and of the amount to be deposited, deposit in an account with
the Collateral Agent, for the benefit of the Revolving Credit Lenders, an amount
in cash in the currency determined by the Collateral Agent equal to the L/C
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse any Issuing Bank for L/C
Disbursements for which it has not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrowers for the L/C
Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit), be applied
to satisfy the Obligations. If any Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to such
Borrower within three Business Days after all Events of Default have been cured
or waived. If any Borrower is required to provide an amount of cash collateral
pursuant to clause (ii) of the first sentence of this paragraph (j), such amount
shall be returned to such Borrower from time to time to the extent that the
amount of such cash collateral held by the Collateral Agent exceeds the excess,
if any, of the L/C Exposure over the Total Revolving Credit Commitment so long
as no Event of Default shall have occurred and be continuing.
SECTION 2.24. A/C Fronted Loans. (a) Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, (i) the
Australian Fronting Lender agrees to make loans to the Australian Borrower in
Australian Dollars and (ii) the Italian Fronting Lender agrees to make loans to
the Italian Borrower in Euro, in each case, at any time and from time to time on
and after the Original Closing Date and until the earlier of the Revolving
Credit Maturity Date and the termination of the A/C Fronting Commitment of such
A/C Fronting Lender in accordance with the terms hereof, in an aggregate
principal amount at any time outstanding that will not result in (i) the Dollar
Equivalent of the aggregate principal amount of such A/C Fronting Lender's A/C
Fronting Loans exceeding its A/C Fronting Commitment or (ii) the Aggregate
Revolving Credit Exposure, after giving effect to any A/C Fronted Loan,
exceeding the Total Revolving Credit Commitment; provided however that the
Italian Borrower shall not be entitled to make any Borrowings hereunder until
all amounts under the Italian Facilities shall have been paid in full and the
commitments thereunder terminated. Each A/C Fronted Loan shall be in a principal
amount that is an integral multiple of the Alternative Currency Equivalent of
$100,000 and not less than $2,500,000. The A/C Fronting Commitments may be
terminated or reduced from time to time as provided herein. Within the foregoing
limits, the applicable Borrower may borrow, pay or prepay and reborrow A/C
Fronted Loans hereunder, subject to the terms, conditions and limitations set
forth herein.
(b) A/C Fronted Loans. The Australian Borrower or the Italian Borrower, as
applicable, shall notify the applicable A/C Fronting Lender, with a copy to the
Administrative Agent, by telecopy, or by telephone (confirmed by telecopy) (i)
in the case of the Australian Borrower, not later than 10:00 a.m., Sydney time,
on the day of a proposed A/C Fronted Loan or (ii) in the case of the Italian
Borrower, not later than 10:00 a.m., Boston time, three Business Days before the
date of a proposed A/C Fronted Loan. Such notice shall be delivered on a
Business Day, shall be irrevocable and shall refer to this Agreement, shall
specify the requested date (which shall be a Business Day) and amount of such
A/C Fronted Loan (which shall be expressed in dollars), shall specify whether
such A/C Fronted Loan is to be an A/C Fronted Base Rate Loan or an AC/ Fronted
Fixed Rate Loan and, if such Loan is to be an A/C Fronted Fixed Rate Loan, the
Interest Period therefor (which shall comply with the definition of the term
"Bank Xxxx Rate" or "Italian Fixed Rate", as applicable. If no Rate is selected
with respect to any A/C Fronted Loan, the applicable Borrower shall be deemed to
have selected an A/C Fronted Base Rate Loan.
(c) Prepayment. The applicable Borrower shall have the right at any time
from time to time to prepay any A/C Fronted Loan, in whole or in part, upon
giving written or telecopy notice (or telephone notice promptly confirmed by
written, or telecopy notice) to the applicable A/C Fronting Lender and to the
Administrative Agent before 12:00 (noon), local time on the date of prepayment
at the applicable A/C Fronting Lender's address for notices specified on
Schedule 2.01(a). All principal payments of A/C Fronted Loans shall be
accompanied by accrued interest on the principal amount being repaid to the date
of payment. All prepayments of A/C Fronted Loans shall be subject to Section
2.16 but otherwise without premium or penalty.
(d) Interest. Subject to the provisions of Section 2.07, each A/C Fronted
Base Rate Loan shall bear interest (computed on the basis of the actual number
of days elapsed over a year of 360 days) at a rate per annum equal to the A/C
Fronted Base Rate with respect to such A/C Fronted Loan plus the Applicable
Percentage with respect to such Loan. Subject to the provisions of Section 2.07,
each A/C Fronted Fixed Rate Loan shall bear interest (computed on the basis of
the actual number of days elapsed over a year of 360 days) at a rate per annum
equal to the A/C Fronted Fixed Rate for the Interest Period in effect for such
Loan plus the Applicable Percentage with respect to such Loan. Interest on each
A/C Fronted Loan shall be payable on the Interest Payment Date with respect
thereto. Each A/C Fronting Lender shall notify the applicable Borrower and the
Administrative Agent of the A/C Fronting Base Rate or the A/C Fronted Fixed Rate
applicable to such A/C Fronting Lender's A/C Fronted Loans promptly following
each determination thereof.
(e) Participations. If the applicable Borrower shall default in the payment
of principal of or interest on any A/C Fronted Loan when and as the same shall
become due and payable, whether at the due date thereof or by acceleration or
otherwise, then the applicable A/C Fronting Lender shall promptly notify the
Administrative Agent thereof and, upon notice from the Administrative Agent or
the applicable A/C Fronting Lender to the applicable Borrower, the principal
amount of all A/C Fronted Loans to such Borrower, together with all accrued and
unpaid interest thereon, shall be converted to Dollar Loans and obligations to
pay interest in dollars, respectively, at the Exchange Rate prevailing on the
date of such default, and the Administrative Agent shall promptly notify each
Revolving Credit Lender of such default (by telecopy or by telephone, confirmed
in writing) and of its Pro Rata Percentage in dollars of such A/C Fronted Loan.
Upon such notice but without any further action, the applicable A/C Fronting
Lender hereby agrees to grant to each Revolving Credit Lender, and each
Revolving Credit Lender hereby agrees to acquire from the applicable A/C
Fronting Lender, a participation in such defaulted A/C Fronted Loan equal to
such Lender's Pro Rata Percentage in dollars of the aggregate principal amount
of such defaulted A/C Fronting Loan. In furtherance of the foregoing, each
Revolving Credit Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for the
account of the applicable A/C Fronting Lender, such Lender's Pro Rata Percentage
of each such defaulted A/C Fronted Loan. Each Lender acknowledges and agrees
that its obligation to acquire participations in A/C Fronted Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds in the same manner as provided in Section 2.02(c) with respect
to Loans made by such Lender (and Section 2.02(c) shall apply, mutatis mutandis,
to the payment obligations of the Lenders) and the Administrative Agent shall
promptly pay to the applicable A/C Fronting Lender the amounts so received by it
from the Lenders. The Administrative Agent shall notify the applicable Borrower
of any participations in any A/C Fronted Loan acquired pursuant to this
paragraph and thereafter payments in respect of such A/C Fronted Loan shall be
made in dollars and to the Administrative Agent and not to the applicable A/C
Fronting Lender. Any amounts received by an A/C Fronting Lender from any
Borrower (or other party on behalf of such Borrower) in respect of an A/C
Fronted Loan after receipt by such A/C Fronting Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall have made their
payments pursuant to this paragraph and to the applicable A/C Fronting Lender,
as their interests may appear. The purchase of participations in an A/C Fronted
Loan pursuant to this paragraph shall not relieve any Borrower (or other party
liable for obligations of such Borrower) of any default in the payment thereof.
(f) Termination and Reduction of A/C Fronting Commitments. Upon written or
telecopy notice to the applicable A/C Fronting Lender and to the Administrative
Agent, Terex may at any time permanently terminate, or from time to time in part
permanently reduce, the A/C Fronting Commitment of any A/C Fronting Lender;
provided, however, that the A/C Fronting Commitment of such A/C Fronting Lender
shall not be reduced to an amount that is less than the A/C Fronting Loans of
such A/C Fronting Lender at such time.
SECTION 2.25. Reporting Requirements of A/C Fronting Lenders and Issuing
Banks. (a) Within two Business Days following the last day of each calendar
month, each A/C Fronting Lender shall deliver to the Administrative Agent a
statement showing the average daily principal amount of the A/C Fronted Loans
outstanding in each currency during the calendar quarter most recently ended.
(b) Within two Business Days following the last day of each calendar month,
each Issuing Bank shall deliver to the Administrative Agent a report detailing
all activity during the preceding month with respect to any Letters of Credit
issued by such Issuing Bank, including the face amount, the account party, the
beneficiary and the expiration date of such Letters of Credit and any other
information with respect thereto as may be requested by the Administrative
Agent.
SECTION 2.26. Additional Issuing Banks. The Borrowers may, at any time and
from time to time with the consent of the Administrative Agent (which consent
shall not be unreasonably withheld) and such Lender, designate one or more
additional Lenders to act as an issuing bank under the terms of this Agreement
solely for the purpose of issuing Letters of Credit denominated in Alternative
Currencies other than Pounds, Euro and Australian Dollars. Any Lender designated
as an issuing bank pursuant to this Section 2.26 shall be deemed to be an
"Issuing Bank" (in addition to being a Lender) in respect of Letters of Credit
issued or to be issued by such Lender and, with respect to such Letters of
Credit, such term shall thereafter apply to the Issuing Bank and such Lender.
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
Tranche B Term Loans pursuant to Section 2.12 or Section 2.13 shall be allocated
pro rata between the Tranche B Term Loans and the Tranche C Term Loans based
upon the aggregate outstanding principal amount of the Tranche B Term Loans and
Tranche C Term Loans on the date of prepayment. The Lenders shall also be
entitled to share pro rata in any prepayments of the type described in Section
2.12 or 2.13 in respect of Tranche C Term Loans that are made to Tranche C
Lenders pursuant to the Tranche C Credit Agreement. The pro rata amount
allocated to Tranche B Term Loans in accordance with this Section 2.27 shall be
applied as otherwise required by this Agreement.
ARTICLE III
Representations and Warranties
Each Borrower represents and warrants to the Administrative Agent, the
Collateral Agent, each of the Issuing Banks and each of the Lenders that:
SECTION 3.01. Organization; Powers. Terex and each of the Subsidiaries
(including each Borrower) (a) is a corporation or partnership duly incorporated
or formed, as the case may be, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, (b) has all requisite corporate
power and authority to own its property and assets and to carry on its business
as now conducted and as proposed to be conducted, (c) is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
corporate power and authority to execute, deliver and perform its obligations
under each of the Loan Documents and each other agreement or instrument
contemplated hereby to which it is or will be a party and, in the case of each
Borrower, to borrow hereunder. Each Borrower (other than Terex) is a wholly
owned Subsidiary.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Loan Documents and the borrowings hereunder
(collectively, the "Transactions") (a) have been duly authorized by all
requisite corporate and, if required, stockholder action and (b) will not (i)
violate (A) any provision of law, statute, rule or regulation, (B) the
certificate or articles of incorporation or other constitutive documents or
By-laws of Terex or any Subsidiary, (C) any order of any Governmental Authority
applicable to Terex or such Subsidiary or (D) any provision of any indenture,
agreement or other instrument to which Terex or any Restricted Subsidiary is a
party or by which any of them or any of their property is or may be bound, (ii)
result in a breach of or constitute (alone or with notice or lapse of time or
both) a default under, or give rise to any right to accelerate or to require the
prepayment, repurchase or redemption of any obligation under any such indenture,
agreement or other instrument, except, in the case of each of clause (i)(A),
(i)(D) and (ii), where such violation, breach or default could not reasonably be
expected to result in a Material Adverse Effect or (iii) result in the creation
or imposition of any Lien upon or with respect to any property or assets now
owned or hereafter acquired by Terex or any Restricted Subsidiary (other than
any Lien created hereunder or under the Security Documents).
SECTION 3.03. Enforceability. This Agreement and each other Loan Document
has been duly executed and delivered by each Borrower and Loan Party party
thereto and constitutes a legal, valid and binding obligation of such Loan Party
enforceable against such Loan Party in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.04. Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions, except for such as have
been made or obtained and are in full force and effect, except where the failure
to obtain the same could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.05. Financial Statements. Terex has heretofore furnished to the
Lenders its consolidated and consolidating balance sheets and statements of
income and changes in financial condition as of and for each of the fiscal years
ended December 31, 1998, December 31, 1999 and December 31, 2000, audited by and
accompanied by the opinion of PricewaterhouseCoopers LLP, independent public
accountants. Such financial statements present fairly in all material respects
the financial condition and results of operations and cash flows of Terex and
its consolidated Subsidiaries as of such dates and for such periods. Such
balance sheets and the notes thereto disclose all material liabilities, direct
or contingent, of Terex and its consolidated Subsidiaries as of the dates
thereof required to be reflected in accordance with GAAP. Such financial
statements were prepared in accordance with GAAP applied on a consistent basis.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations, prospects, condition,
financial or otherwise, or material agreements of Terex and its Restricted
Subsidiaries, taken as a whole, since December 31, 2000.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
Terex and its Restricted Subsidiaries has fee title to, or valid leasehold
interests in, all its material properties and assets (including all Mortgaged
Property), except for defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties and
assets for their intended purposes. All such material properties and assets are
free and clear of Liens, other than Liens expressly permitted by Section 6.02.
(b) Each of Terex and its Restricted Subsidiaries has complied in all
material respects with all obligations under all material leases to which it is
a party and all such leases are in full force and effect. Each of Terex and its
Restricted Subsidiaries enjoys peaceful and undisturbed possession under all
such material leases.
(c) No Borrower has received any written notice of, nor has any knowledge
of, any pending or contemplated condemnation proceeding affecting the Mortgaged
Properties or any sale or disposition thereof in lieu of condemnation.
(d) Neither Terex nor any of its Restricted Subsidiaries is obligated under
any right of first refusal, option or other contractual right to sell, assign or
otherwise dispose of any Mortgaged Property or any interest therein.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Restatement
Closing Date a list of all Subsidiaries and the percentage ownership interest of
Terex therein. The shares of capital stock or other ownership interests so
indicated on Schedule 3.08 are fully paid and non assessable and are owned by
Terex, directly or indirectly through its Subsidiaries, free and clear of all
Liens, except for Liens created under the Security Documents. Each Subsidiary
identified on Schedule 1.01(f) as an Inactive Subsidiary (a) owns assets having
a fair market value not in excess of $50,000 in the aggregate, (b) does not
conduct any business activity and (c) is not an obligor with respect to any
Indebtedness.
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth on
Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of any Borrower, threatened against or affecting Terex or any of its
Subsidiaries or any business, property or rights of any such person (i) that
involve any Loan Document or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined in the ordinary course of such action, suit or proceeding, at the
time of such determination, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.
(b) None of Terex or any of its Subsidiaries or any of their respective
material properties or assets is in violation of, nor will the continued
operation of their material properties and assets as currently conducted
violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits) or any
restrictions of record or agreements affecting the Mortgaged Property, or is in
default with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
(c) Certificates of occupancy and permits are in effect for each Mortgaged
Property as currently constructed, except where the failure to have the same
could not reasonably be expected to result in a Material Adverse Effect.
(d) No exchange control law or regulation materially restricts any Borrower
from complying with its obligations in respect of any Alternative Currency Loan
or Letter of Credit or any other Loan Party with respect to its obligations
under any Loan Document.
SECTION 3.10. Agreements. (a) Neither Terex nor any of its Subsidiaries is
a party to any agreement or instrument or subject to any corporate restriction
that has resulted or could reasonably be expected to result in a Material
Adverse Effect.
(b) Neither Terex nor any of its Subsidiaries is in default in any manner
under any provision of any indenture or other agreement or instrument evidencing
Indebtedness, or any other material agreement or instrument to which it is a
party or by which it or any of its properties or assets are or may be bound,
where such default could reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.11. Federal Reserve Regulations. (a) Neither Terex nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of buying or carrying Margin
Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation U or
X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act.
Neither Terex nor any of its Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. Each Borrower will use the proceeds of the
Loans and will request the issuance of Letters of Credit only for working
capital and other general corporate purposes (including financing Permitted
Acquisitions).
SECTION 3.14. Tax Returns. Each of Terex and its Subsidiaries has filed or
caused to be filed all Federal, state, local and foreign tax returns or
materials required to have been filed by it and has paid or caused to be paid
all taxes due and payable by it and all assessments received by it (in each case
giving effect to applicable extensions), except taxes that are being contested
in good faith by appropriate proceedings and for which Terex or such Subsidiary,
as applicable, shall have set aside on its books reserves in accordance with
GAAP.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of any Borrower in
writing to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading; provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, such Borrower represents only that it
acted in good faith and utilized assumptions believed by it to be reasonable and
due care in the preparation of such information, report, financial statement,
exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. (a) Each of Terex and its respective
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in a Material Adverse Effect. The present
value of all benefit liabilities under each Plan (based on those assumptions
used to fund such Plan) did not, as of December 31, 2000, exceed by more than
$5,600,000 the fair market value of the assets of such Plan, and the present
value of all benefit liabilities of all underfunded Plans (based on those
assumptions used to fund each such Plan) did not, as of December 31, 2000,
exceed by more than $5,600,000 the fair market value of the assets of all such
underfunded Plans.
(b) Each Foreign Pension Plan is in compliance in all material respects
with all requirements of law applicable thereto and the respective requirements
of the governing documents for such plan except to the extent such
non-compliance could not reasonably be expected to result in a Material Adverse
Effect. With respect to each Foreign Pension Plan, none of Terex, its Affiliates
or any of its directors, officers, employees or agents has engaged in a
transaction which would subject Terex or any of its Subsidiaries, directly or
indirectly, to a tax or civil penalty which could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect. With
respect to each Foreign Pension Plan, reserves have been established in the
financial statements furnished to Lenders in respect of any unfunded liabilities
in accordance with applicable law and prudent business practice or, where
required, in accordance with ordinary accounting practices in the jurisdiction
in which such Foreign Pension Plan is maintained. The aggregate unfunded
liabilities, with respect to such Foreign Pension Plans could not reasonably be
expected to result in a Material Adverse Effect. There are no actions, suits or
claims (other than routine claims for benefits) pending or threatened against
Terex or any of its Affiliates with respect to any Foreign Pension Plan which
could reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule 3.17:
(a) The properties owned, leased or operated by each of Terex and its
Subsidiaries (the "Properties") do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation of,
(ii) require Remedial Action under, or (iii) could give rise to liability under,
Environmental Laws, which violations, Remedial Actions and liabilities, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(b) The Properties and all operations of each of Terex and its Subsidiaries
are in compliance in all material respects, and in the last five years have been
in compliance, with all Environmental Laws, and all necessary Environmental
Permits have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate,
could reasonably be expected to not result in a Material Adverse Effect;
(c) There have been no Releases or threatened Releases at, from, under or
proximate to the Properties or otherwise in connection with the current or
former operations of Terex or its Subsidiaries, which Releases or threatened
Releases, in the aggregate, could reasonably be expected to result in a Material
Adverse Effect;
(d) Neither Terex nor any of its Subsidiaries has received any notice of an
Environmental Claim in connection with the Properties or the current or former
operations of Terex or such Subsidiaries or with regard to any person whose
liabilities for environmental matters Terex or such Subsidiaries has retained or
assumed, in whole or in part, contractually, by operation of law or otherwise,
which, in the aggregate, could reasonably be expected to result in a Material
Adverse Effect, nor do Terex or its Subsidiaries have reason to believe that any
such notice will be received or is being threatened; and
(e) Hazardous Materials have not been transported from the Properties, nor
have Hazardous Materials been generated, treated, stored or disposed of at, on
or under any of the Properties in a manner that could give rise to liability
under any Environmental Law, nor have Terex or its Subsidiaries retained or
assumed any liability, contractually, by operation of law or otherwise, with
respect to the generation, treatment, storage or disposal of Hazardous
Materials, which liabilities, in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all material insurance maintained by Terex or any of its
Restricted Subsidiaries as of the Restatement Closing Date. As of such date,
such insurance is in full force and effect and all premiums have been duly paid.
Each of Terex and its Restricted Subsidiaries has insurance in such amounts and
covering such risks and liabilities as are in accordance with normal industry
practice.
SECTION 3.19. Security Documents. (a) The Pledge Agreement is effective to
create in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral (as
defined in the Pledge Agreement) and, with respect to all Collateral previously
delivered to and in the possession of the Collateral Agent, constitutes, or in
the case of Collateral to be delivered in the future, will constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgors thereunder in such Collateral, in each case prior and
superior in right to any other person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement) and, together with the financing statements previously filed or to be
filed in the future, constitutes, or in the case of any future filing, will
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the grantors thereunder in such Collateral (other than the
Intellectual Property, as defined in the Security Agreement), in each case prior
and superior in right to any other person, other than with respect to Liens
expressly permitted by Section 6.02.
(c) The Security Agreement currently on file with the United States Patent
and Trademark Office and the United States Copyright Office constitutes a fully
perfected Lien on, and security interest in, all right, title and interest of
the grantors thereunder in the Intellectual Property (as defined in the Security
Agreement), in each case prior and superior in right to any other person (it
being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a lien on registered trademarks, trademark applications and copyrights
acquired by the grantors after the Original Closing Date).
(d) The Mortgages are effective to create in favor of the Collateral Agent,
for the ratable benefit of the Secured Parties, a legal, valid and enforceable
Lien on all of the Loan Parties' right, title and interest in and to the
Mortgaged Property thereunder and the proceeds thereof, and a fully perfected
Lien on, and security interest in, all right, title and interest of the Loan
Parties in such Mortgaged Property and the proceeds thereof, in each case prior
and superior in right to any other person, other than with respect to the rights
of persons pursuant to Liens expressly permitted by Section 6.02.
SECTION 3.20. Location of Real Property and Leased Premises. (a) Schedule
3.20(a) lists completely and correctly as of the Restatement Closing Date all
real property owned by Terex and the Restricted Subsidiaries and the addresses
thereof. Terex and the Restricted Subsidiaries own in fee all the real property
set forth on Schedule 3.20(a).
(b) Schedule 3.20(b) lists completely and correctly as of the Restatement
Closing Date all real property leased by Terex and the Restricted Subsidiaries
and the addresses thereof. Terex and the Restricted Subsidiaries have valid
leases in all the real property set forth on Schedule 3.20(b).
SECTION 3.21. Labor Matters. Except as set forth on Schedule 3.21, as of
the Restatement Closing Date, there are no strikes, lockouts or slowdowns
against Terex or any of its Restricted Subsidiaries pending or, to the knowledge
of any Borrower, threatened. The hours worked by and payments made to employees
of Terex and its Restricted Subsidiaries have not been in violation of the Fair
Labor Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters. All payments due from Terex or any of its Restricted
Subsidiaries, or for which any claim may be made against Terex or any such
Restricted Subsidiary, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on the
books of Terex or such Restricted Subsidiary. The consummation of the
Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which Terex or any of its Restricted Subsidiaries is bound on the Restatement
Closing Date.
SECTION 3.22. Solvency. Immediately after the consummation of the
Transactions and immediately following the making of each Loan and after giving
effect to the application of the proceeds of such Loans, (a) the fair value of
the assets of the Loan Parties, at a fair valuation, will exceed their debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of the Loan Parties will be greater than the
amount that will be required to pay the probable liability of their debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) each Loan Party will be able
to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) each Loan Party will
not have unreasonably small capital with which to conduct the business in which
it is engaged as such business is now conducted and is proposed to be conducted
following the Restatement Closing Date.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Banks to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing, including
each Borrowing of a Swingline Loan or an A/C Fronted Loan, and on the date of
each issuance, amendment or renewal of a Letter of Credit (each such event being
called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of such Borrowing
as required by Section 2.03 (or such notice shall have been deemed given in
accordance with Section 2.03) or, in the case of the issuance, amendment or
renewal of a Letter of Credit, the applicable Issuing Bank and the
Administrative Agent shall have received a notice requesting the issuance of
such Letter of Credit as required by Section 2.23(b) or, in the case of the
Borrowing of a Swingline Loan, the Swingline Lender and the Administrative Agent
shall have received a notice requesting such Swingline Loan as required by
Section 2.22(b) or, in the case of a Borrowing of an A/C Fronted Loan, the
applicable A/C Fronting Lender and the Administrative Agent shall have received
a notice requesting such A/C Fronted Loan as required by Section 2.24(b).
(b) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the date of such
Credit Event with the same effect as though made on and as of such date, except
to the extent such representations and warranties expressly relate to an earlier
date.
(c) Each Borrower and each other Loan Party shall be in compliance with all
the terms and provisions set forth herein and in each other Loan Document on its
part to be observed or performed, and at the time of and immediately after such
Credit Event, no Event of Default or Default shall have occurred and be
continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by each Borrower on the date of such Credit Event as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.
ARTICLE V
Affirmative Covenants
Each Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under any Loan Document shall have been paid in full and all
Letters of Credit have been canceled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, each Borrower will, and will cause each of its
Restricted Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence, except as otherwise expressly permitted under Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve, renew,
extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated or in
an otherwise prudent manner; comply in all material respects with all applicable
laws, rules, regulations (including any zoning, building, Environmental Law,
ordinance, code or approval or any building permits or any restrictions of
record or agreements affecting the Mortgaged Properties) and decrees and orders
of any Governmental Authority, whether now in effect or hereafter enacted unless
failure to comply could not reasonably be expected to result in a Material
Adverse Effect; and at all times maintain and preserve all property material to
the conduct of such business and keep such property in working order and
condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
conducted at all times in a commercially reasonably manner.
SECTION 5.02. Insurance. (a) Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance (including self insurance), to such extent and against such
risks, including fire and other risks insured against by extended coverage, as
is customary with companies in the same or similar businesses operating in the
same or similar locations and of same or similar size, including public
liability insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by it; and maintain such other insurance as may be
required by law.
(b) Cause all such policies of Terex or any Domestic Restricted Subsidiary
to be endorsed or otherwise amended to include a "standard" or "New York"
lender's loss payable endorsement, in form and substance reasonably satisfactory
to the Administrative Agent and the Collateral Agent, which endorsement shall
provide that, from and after the Restatement Closing Date, if the insurance
carrier shall have received written notice from the Administrative Agent or the
Collateral Agent of the occurrence of an Event of Default, the insurance carrier
shall pay all proceeds otherwise payable to Terex or any such Loan Parties under
such policies directly to the Collateral Agent; cause all such policies to
provide that no Borrower, the Administrative Agent, the Collateral Agent nor any
other party shall be a coinsurer thereunder and to contain a "Replacement Cost
Endorsement", without any deduction for depreciation, and such other provisions
as the Administrative Agent or the Collateral Agent may reasonably require from
time to time to protect their interests; deliver original or certified copies of
all such policies to the Collateral Agent; cause each such policy to provide
that it shall not be canceled, modified or not renewed for any other reason upon
not less than 30 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent; deliver to the Administrative
Agent and the Collateral Agent, prior to the cancelation, modification or
nonrenewal of any such policy of insurance, a copy of a renewal or replacement
policy (or other evidence of renewal of a policy previously delivered to the
Administrative Agent and the Collateral Agent) together with evidence
satisfactory to the Administrative Agent and the Collateral Agent of payment of
the premium therefor.
(c) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated (i) a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), obtain flood insurance in such total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may from time
to time require, and otherwise comply with the National Flood Insurance Program
as set forth in the Flood Disaster Protection Act of 1973, as it may be amended
from time to time, or (ii) a "Zone 1" area, obtain earthquake insurance in such
total amount as the Administrative Agent, the Collateral Agent or the Required
Lenders may from time to time require.
(d) With respect to any Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in no event for a
combined single limit of less than that in effect on the Restatement Closing
Date, naming the Collateral Agent as an additional insured, on forms reasonably
satisfactory to the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent immediately
whenever any separate insurance concurrent in form or contributing in the event
of loss with that required to be maintained under this Section 5.02 is taken out
by any Borrower; and promptly deliver to the Administrative Agent and the
Collateral Agent a duplicate original copy of such policy or policies.
(f) In connection with the covenants set forth in this Section 5.02, it is
understood and agreed that:
(i) none of the Administrative Agent, the Lenders, the Issuing Banks,
or their respective agents or employees shall be liable for any loss or
damage insured by the insurance policies required to be maintained under
this Section 5.02, it being understood that (A) each Borrower and the other
Loan Parties shall look solely to their insurance companies or any other
parties other than the aforesaid parties for the recovery of such loss or
damage and (B) such insurance companies shall have no rights of subrogation
against the Administrative Agent, the Collateral Agent, the Lenders, the
Issuing Banks or their agents or employees. If, however, the insurance
policies do not provide waiver of subrogation rights against such parties,
as required above, then each Borrower hereby agrees, to the extent
permitted by law, to waive its right of recovery, if any, against the
Administrative Agent, the Collateral Agent, the Lenders, the Issuing Banks
and their agents and employees; and
(ii) the designation of any form, type or amount of insurance coverage
by the Administrative Agent, the Collateral Agent or the Required Lenders
under this Section 5.02 shall in no event be deemed a representation,
warranty or advice by the Administrative Agent, the Collateral Agent or the
Lenders that such insurance is adequate for the purposes of the business of
any Borrower and its Subsidiaries or the protection of their properties and
the Administrative Agent, the Collateral Agent and the Required Lenders
shall have the right from time to time to require the Borrowers and the
other Loan Parties to keep other insurance in such form and amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may
reasonably request; provided that such insurance shall be obtainable on
commercially reasonable terms.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, could
reasonably be expected to give rise to a Lien upon such properties or any part
thereof; provided, however, that such payment and discharge shall not be
required with respect to any such obligation, tax, assessment, charge, levy or
claim so long as the validity or amount thereof shall be contested in good faith
by appropriate proceedings and the applicable Borrower shall have set aside on
its books reserves with respect thereto in accordance with GAAP and such contest
operates to suspend collection of the contested obligation, tax, assessment or
charge and enforcement of a Lien and, in the case of a Mortgaged Property, there
is no risk of forfeiture of such property.
SECTION 5.04. Financial Statements, Reports, etc. In the case of Terex,
furnish to the Administrative Agent for distribution by the Administrative Agent
to each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated
and consolidating balance sheets and related statements of operations,
stockholders' equity and cash flows showing the financial condition of
Terex and its consolidated Subsidiaries as of the close of such fiscal year
and the results of its operations and the operations of such Subsidiaries
during such year, all audited by PricewaterhouseCoopers LLP or other
independent public accountants of recognized national standing or otherwise
reasonably acceptable to the Required Lenders and accompanied by an opinion
of such accountants (which shall not be qualified in any material respect)
to the effect that such consolidated financial statements fairly present
the financial condition and results of operations of Terex and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated and consolidating balance
sheets and related statements of operations, stockholders' equity and cash
flows showing the financial condition of Terex and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of its
operations and the operations of such Subsidiaries during such fiscal
quarter and the then elapsed portion of the fiscal year, all certified by
one of its Financial Officers as fairly presenting in all material respects
the financial condition and results of operations of Terex and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under
sub-paragraph (a) or (b) above, (i) if there shall have been any
Unrestricted Subsidiaries during the relevant period, comparable financial
statements (which need not be audited or contain footnotes) for such period
covering Terex and its Restricted Subsidiaries, and (ii) a certificate of
the accounting firm (unless at such time it is the practice and policy of
such accounting firm not to deliver such certificates) or Financial Officer
opining on or certifying such statements (which certificate, when furnished
by an accounting firm, may be limited to accounting matters and disclaim
responsibility for legal interpretations) (x) certifying that no Event of
Default or Default has occurred or, if such an Event of Default or Default
has occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto; and (y) in the
case of any such letter from such Financial Officer, setting forth
reasonably detailed calculations demonstrating compliance with Sections
6.10, 6.11, 6.12 and 6.13;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
Terex or any Restricted Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed to its shareholders, as the case may be;
(e) as promptly as practicable, but in no event later than 10 Business
Days after the last day of each fiscal year of Terex, a copy of the budget
for its consolidated balance sheet and related statements of income and
selected working capital and capital expenditure analyses for each quarter
of the following fiscal year; and
(f) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of Terex or any
Restricted Subsidiary, or compliance with the terms of any Loan Document,
as the Administrative Agent or any Lender may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative
Agent, the Issuing Banks and each Lender, promptly after obtaining knowledge
thereof, written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against any Borrower or any Affiliate thereof that could
reasonably be expected to result in a Material Adverse Effect; and
(c) any development with respect to Terex or any Subsidiary that has
resulted in, or could reasonably be expected to result in, a Material
Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects with
the applicable provisions of ERISA and the Code and the laws applicable to any
Foreign Benefit Plan and (b) furnish to the Administrative Agent (i) as soon as
possible after, and in any event within 10 days after any Responsible Officer of
any Borrower or any Affiliate knows that any ERISA Event has occurred that,
alone or together with any other ERISA Event could reasonably be expected to
result in liability of any Borrower in an aggregate amount exceeding $5,000,000
(or the Dollar Equivalent thereof in another currency), a statement of a
Financial Officer of such Borrower setting forth details as to such ERISA Event
and the action, if any, that such Borrower proposes to take with respect
thereto.
SECTION 5.07. Maintaining Records; Access to Properties and Inspections.
Keep proper books of record and account in which full, true and correct entries
in conformity in all material respects with GAAP and all requirements of law are
made of all dealings and transactions in relation to its business and
activities. Each Loan Party will, and will cause each of its Restricted
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender to visit and inspect the financial records and the
properties of any Borrower or any Restricted Subsidiary at reasonable times and
as often as reasonably requested (but in no event more than twice annually
unless an Event of Default shall have occurred and be continuing) and to make
extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances and condition of any Borrower or any Restricted Subsidiary
with the officers thereof and independent accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and request
the issuance of Letters of Credit only for working capital and other general
corporate purposes (including the financing of Permitted Acquisitions).
SECTION 5.09. Compliance with Environmental Laws. Comply, and cause all
lessees and other persons occupying its Properties to comply, in all material
respects with all Environmental Laws and Environmental Permits applicable to its
operations and Properties; obtain and renew all Environmental Permits necessary
for its operations and Properties; and conduct any Remedial Action in accordance
with Environmental Laws; provided, however, that no Borrower nor any of the
Restricted Subsidiaries shall be required to undertake any Remedial Action to
the extent that its obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained with respect to
such circumstances in accordance with GAAP.
SECTION 5.10. Preparation of Environmental Reports. If an Event of Default
caused by reason of a breach of Section 3.17 or 5.09 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to the Lenders within 45 days after such request, at the expense
of the applicable Borrower, an environmental site assessment report for the
Properties which are the subject of such default, prepared by an environmental
consulting firm reasonably acceptable to the Administrative Agent and indicating
the presence or absence of Hazardous Materials and the estimated cost of any
Remedial Action or any other activity required to bring the Properties into
compliance with Environmental Laws in connection with such Properties.
SECTION 5.11. Further Assurances. (a) Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority of the security interests created or
intended to be created by the Security Documents. Terex will cause any
subsequently acquired or organized Domestic Restricted Subsidiary (other than an
Inactive Subsidiary or Finsub) to execute a Subsidiary Guarantee Agreement,
Indemnity Subrogation and Contribution Agreement and each applicable Security
Document in favor of the Collateral Agent. In addition, from time to time, Terex
will, at its cost and expense, promptly secure the Obligations by pledging or
creating, or causing to be pledged or created, perfected security interests with
respect to such of its assets and properties as the Administrative Agent or the
Required Lenders shall reasonably designate (it being understood that it is the
intent of the parties that the Obligations shall be secured by, among other
things, substantially all the assets of Terex and the Subsidiary Guarantors
(including real and other properties acquired subsequent to the Original Closing
Date)). Such security interests and Liens will be created under the Security
Documents and other security agreements, mortgages, deeds of trust and other
instruments and documents in form and substance reasonably satisfactory to the
Collateral Agent, and Terex shall deliver or cause to be delivered to the
Lenders all such instruments and documents (including legal opinions, title
insurance policies and lien searches) as the Collateral Agent shall reasonably
request to evidence compliance with this Section.
(b) In the case of Terex and the Subsidiary Guarantors, promptly to notify
the Collateral Agent in writing of any change (i) in its corporate name or in
any trade name used to identify it in the conduct of its business or in the
ownership of its properties, (ii) in the location of its chief executive office,
its principal place of business, any office in which it maintains books or
records relating to Collateral owned by it or any office or facility at which
Collateral owned by it is located (including the establishment of any such new
office or facility), (iii) in its identity or corporate structure or (iv) in its
Federal Taxpayer Identification Number. Terex and each Subsidiary Guarantor
agrees not to effect or permit any change referred to in the preceding sentence
unless all filings have been made under the Uniform Commercial Code or otherwise
that are required in order for the Collateral Agent to continue at all times
following such change to have a valid, legal and perfected first priority
security interest in all the Collateral. Terex and each Subsidiary Guarantor
agrees promptly to notify the Collateral Agent if any material portion of the
Collateral owned or held by such Borrower is damaged or destroyed.
ARTICLE VI
Negative Covenants
Each Borrower covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under any Loan Document have been paid in full and all
Letters of Credit have been cancelled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, such Borrower will not, and will not cause or
permit any of the Restricted Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, except that the Borrower and any Restricted Subsidiary (other than
an Inactive Subsidiary or Finsub (except as expressly permitted by subsection
(q) below)) may incur, create, assume or permit to exist:
(a) Indebtedness for borrowed money existing on the Restatement
Closing Date and set forth in Schedule 6.01;
(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 $566,200,000 at any time;
(c) The Existing Senior Subordinated Notes, the New Subordinated Notes
and the Additional Subordinated Notes;
(d) Indebtedness pursuant to (i) Hedging Agreements and (ii) the
Additional L/C Facility; provided, however, that the Additional L/C
Exposure (whether created under the Tranche C Credit Agreement or
otherwise) shall not exceed $50,000,000 at any time;
(e) Indebtedness of (i) Terex or any wholly owned Restricted
Subsidiary (other than an Inactive Subsidiary or Finsub) to any other
wholly owned Restricted Subsidiary (other than an Inactive Subsidiary or
Finsub), (ii) any wholly owned Restricted Subsidiary (other than an
Inactive Subsidiary or Finsub) to Terex or (iii) Finsub to Terex or any
wholly owned Restricted Subsidiary (other than an Inactive Subsidiary)
incurred pursuant to the Receivables Program; provided, however, that (i)
any Indebtedness of a Loan Party shall be subordinated to the prior payment
in full of the Obligations and (ii) any Indebtedness of Finsub incurred
pursuant to this subsection (e) shall be permitted only for such limited
period of time as is required to account for any sale of Program
Receivables, which period of time shall not in any event exceed two
Business Days;
(f) Indebtedness resulting from endorsement of negotiable instruments
for collection in the ordinary course of business;
(g) Indebtedness arising under indemnity agreements to title insurers
to cause such title insurers to issue to the Collateral Agent mortgagee
title insurance policies;
(h) Indebtedness arising with respect to customary indemnification and
purchase price adjustment obligations incurred in connection with Asset
Sales and Permitted Acquisitions permitted hereunder;
(i) Indebtedness incurred in the ordinary course of business with
respect to surety and appeal bonds, performance, insurance and
return-of-money bonds and other similar obligations;
(j) Indebtedness consisting of (i) Acquired Indebtedness or (ii)
Purchase Money Indebtedness or Capital Lease Obligations incurred in the
ordinary course of business after the Original Closing Date; provided that
the aggregate principal amount of any such Indebtedness pursuant to this
paragraph (j) shall not exceed $125,000,000;
(k) Indebtedness of O&K Mining; provided that the aggregate principal
amount of any such Indebtedness pursuant to this paragraph (k) shall not
exceed DM17,500,000 or the Euro equivalent;
(l) Floor Plan Guarantees;
(m) Indebtedness incurred under (i) the Italian Facilities in an
amount not exceeding Lit12,850,000,000 or the Euro equivalent in the
aggregate at any time outstanding and (ii) the Irish Facilities in an
amount not exceeding ,10,000,000 in the aggregate at any time outstanding;
(n) Indebtedness incurred to extend, renew or refinance Indebtedness
described in paragraph (a), (c), (j), (k) or (l) above ("Refinancing
Indebtedness") so long as (i) such Refinancing Indebtedness is in an
aggregate principal amount not greater than the aggregate principal amount
of the Indebtedness being extended, renewed or refinanced, plus the amount
of any interest or premiums required to be paid thereon plus fees and
expenses associated therewith, (ii) such Refinancing Indebtedness has a
later or equal final maturity and a longer or equal weighted average life
than the Indebtedness being extended, renewed or refinanced, (iii) if the
Indebtedness being extended, renewed or refinanced is subordinated to the
Obligations, the Refinancing Indebtedness is subordinated to the
Obligations to the extent of the Indebtedness being extended, renewed or
refinanced and (iv) the covenants, events of default and other non-pricing
provisions of the Refinancing Indebtedness shall be no less favorable to
the Lenders than those contained in the Indebtedness being extended,
renewed or refinanced;
(o) Indebtedness classified as Capital Lease Obligations incurred in
connection with the purchase of inventory to be sold in the ordinary course
of business;
(p) [Intentionally Omitted];
(q) Indebtedness of Finsub incurred pursuant to the Receivables
Program Documentation in an amount not exceeding $100,000,000 in the
aggregate at any time outstanding;
(r) other unsecured Indebtedness in an aggregate principal amount not
exceeding $15,000,000 at any time outstanding; and
(s) Indebtedness of Foreign Subsidiaries acquired after the
Restatement Closing Date under local credit lines not exceeding $25,000,000
in the aggregate at any time outstanding;
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on
any property or assets (including stock or other securities of any person,
including any Restricted Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of any Borrower and its Restricted
Subsidiaries existing on the Restatement Closing Date and set forth in
Schedule 6.02; provided that such Liens shall secure only those obligations
which they secure on the Restatement Closing Date;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by any Borrower or any Restricted Subsidiary; provided
that (i) such Lien is not created in contemplation of or in connection with
such acquisition, (ii) such Lien does not apply to any other property or
assets of any Borrower or any Restricted Subsidiary and (iii) such Lien
does not (A) materially interfere with the use, occupancy and operation of
any Mortgaged Property, (B) materially reduce the fair market value of such
Mortgaged Property but for such Lien or (C) result in any material increase
in the cost of operating, occupying or owning or leasing such Mortgaged
Property;
(d) Liens for taxes not yet due or which are being contested in
compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in
compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other
social security laws or regulations;
(g) (i) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases (other than Capital Lease
Obligations), statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business and (ii) Liens on the receivables of the Scottish
Borrower to secure Indebtedness of the Scottish Borrower in respect of
performance bonds and similar obligations in an aggregate principal amount
not to exceed ,3,000,000;
(h) zoning restrictions, easements, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, are not substantial in amount
and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of any
Borrower or any of its Restricted Subsidiaries;
(i) purchase money security interests in real property, improvements
thereto or equipment hereafter acquired (or, in the case of improvements,
constructed) by any Borrower or any Restricted Subsidiary (other than an
Inactive Subsidiary or Finsub) or in respect of Capital Lease Obligations;
provided that (i) such security interests secure Indebtedness permitted by
Section 6.01(j), (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such
acquisition (or construction), (iii) the Indebtedness secured thereby does
not exceed 100% of the lesser of the cost or the fair market value of such
real property, improvements or equipment at the time of such acquisition
(or construction) and (iv) such security interests do not apply to any
other property or assets of any Borrower or any Restricted Subsidiary;
(j) Liens arising from the rendering of a final judgment or order that
does not give rise to an Event of Default;
(k) Liens securing Acquired Indebtedness; provided that (i) such
Acquired Indebtedness was secured by such Liens at the time of the relevant
Permitted Acquisition and such Liens were not incurred in contemplation
thereof and (ii) such Liens do not extend to (x) any property of Terex or
the Restricted Subsidiaries (other than the Acquired Person) or (y) to any
property of the Acquired Person other than the property securing such Liens
on the date of the relevant Permitted Acquisition;
(l) Liens securing Refinancing Indebtedness, to the extent that the
Indebtedness being refinanced was originally secured in accordance with
this Section 6.02; provided that such Lien does not apply to any additional
property or assets of Terex or any Restricted Subsidiary; (m) Liens in
favor of Terex;
(n) [Intentionally Omitted];
(o) Liens on the assets of Powerscreen not in excess of the amount
reasonably required to fully secure the Irish Facilities; and
(p) Liens on the property of Finsub incurred pursuant to the
Receivables Program Documentation.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred (a "Sale and Leaseback"); provided that any
Borrower or any Restricted Subsidiary may enter into any such transaction to the
extent that the Capital Lease Obligations and Liens associated therewith would
be permitted under this Agreement.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or acquire
any capital stock, evidences of indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments by Terex and its Restricted Subsidiaries existing on
the Restatement Closing Date in the capital stock of the Subsidiaries and
other investments by Terex and its Restricted Subsidiaries existing on the
Restatement Closing Date and set forth in Schedule 6.04;
(b) Permitted Investments;
(c) [Intentionally Omitted];
(d) Terex may make any Permitted Acquisition; provided that Terex
complies, and causes any acquired entity to comply, with the applicable
provisions of Section 5.11 and the Security Documents with respect to the
person or assets so acquired;
(e) the Borrowers and their respective Restricted Subsidiaries (other
than Inactive Subsidiaries) may make loans and advances to employees for
moving, entertainment, travel and other similar expenses in the ordinary
course of business not to exceed $5,000,000 in the aggregate at any time
outstanding;
(f) Consolidated Capital Expenditures permitted pursuant to Section
6.10;
(g) cash collateral provided to the Collateral Agent pursuant to the
Loan Documents;
(h) promissory notes issued by any purchaser in connection with any
Asset Sale permitted pursuant to Section 6.05(b);
(i) provided that no Default or Event of Default shall have occurred
and be continuing at the time of such payment or after giving effect
thereto, (A) the purchase by Terex of shares of its common stock (for not
more than fair market value) in connection with the delivery of such stock
to grantees under any stock option plan (upon the exercise by such grantees
of their stock options) or any other deferred compensation plan of Terex
approved by the Board of Directors and (B) the repurchase of shares of, or
options to purchase shares of, common stock of Terex or any of its
Subsidiaries from employees, former employees, directors or former
directors of Terex or any of its Subsidiaries (or permitted transferees of
such employees, former employees, directors or former directors) pursuant
to the terms of the agreements (including employment agreements) or plans
(or amendments thereto) approved by the Board of Directors under which such
individuals purchase or sell or are granted the option to purchase or sell,
such common stock; provided that the aggregate amount of all such purchases
and repurchases permitted under this paragraph (i) shall not exceed
$2,400,000 per year or $16,800,000 in the aggregate during the term of this
Agreement;
(j) accounts receivable arising in the ordinary course of business
from the sale of inventory;
(k) Guarantees constituting Indebtedness permitted by Section 6.01;
(l) investments in joint ventures in Related Businesses and
investments in Unrestricted Subsidiaries in a combined aggregate amount
(without giving effect to any write down or write off thereof) not
exceeding $75,000,000 at any time outstanding;
(m) intercompany loans and advances constituting Indebtedness
permitted by Section 6.01(e); and
(n) other investments in an aggregate amount (without giving effect to
any write down or write off thereof) not exceeding $50,000,000 at any time
outstanding.
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 Restricted Subsidiary
(other than an Inactive Subsidiary or Finsub) may purchase and sell inventory in
the ordinary course of business, (ii)(A) Terex and any Restricted 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 Restricted 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 Restricted Subsidiary and no person other
than Terex or a wholly owned Restricted Subsidiary receives any consideration;
provided that, if either of the wholly owned Subsidiaries party to such merger
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 Restricted
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 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, (E) 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,
(F) 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 Restricted Subsidiary where no person other than Terex or a wholly
owned Restricted Subsidiary receives any consideration and (G) 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; provided, however, that
any merger, consolidation or transfer of assets by or between Terex or a
Restricted Subsidiary, on the one hand, and an Unrestricted Subsidiary, on the
other hand, shall be subject to the limitation set forth in Section 6.04(l).
(b) Engage in any Asset Sale not otherwise prohibited by Section 6.05(a)
unless all of the following conditions are met: (i) the consideration received
is at least equal to the fair market value of such assets; (ii) at least 80% of
the consideration received is cash; (iii) the Net Cash Proceeds of such Asset
Sale are applied as required by Section 2.13(b); (iv) after giving effect to the
sale or other disposition of the assets included within the Asset Sale and the
repayment of Indebtedness with the proceeds thereof, Terex is in compliance on a
pro forma basis with the covenants set forth in Sections 6.11, 6.12 and 6.13
recomputed for the most recently ended fiscal quarter for which information is
available and is in compliance with all other terms and conditions contained in
this Agreement; and (v) no Default or Event of Default shall result from such
Asset Sale.
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Restricted Subsidiaries to Pay Dividends. (a) Declare or pay, directly or
indirectly, any dividend or make any other distribution (by reduction of capital
or otherwise), whether in cash, property, securities or a combination thereof,
with respect to any shares of its capital stock or directly or indirectly
redeem, purchase, retire or otherwise acquire for value (or permit any
Restricted Subsidiary to purchase or acquire) any shares of any class of its
capital stock or set aside any amount for any such purpose; provided, however,
that (i) any Restricted Subsidiary may declare and pay dividends or make other
distributions to the Borrower of which it is a Restricted Subsidiary and (ii)
Terex may pay dividends on, and redeem and repurchase its capital stock,
provided that all of the following conditions are satisfied: (A) at the time of
such dividend, redemption or purchase and after giving effect thereto, no
Default or Event of Default has occurred and is continuing or would arise as a
result thereof; (B) the amount of all dividends, redemptions and purchases made
pursuant to this clause (ii) together with all distributions and payments made
pursuant to Section 6.09(b)(i), since the Original Closing Date shall not exceed
$50,000,000, and (c) on a pro forma basis and after giving effect to such
payment and all other payments pursuant to this clause (a) and Section
6.09(b)(i) made after the last day of the most recent fiscal quarter for which
financial statements have been delivered pursuant to Section 5.04(a) or (b), as
applicable, as if such payments were made in the four-fiscal-quarter period
ending on such last day of such fiscal quarter, the Consolidated Leverage Ratio
as of the end of such four-fiscal-quarter period shall be less than 3.85 to 1.00
and provided further that Terex may at any time pay dividends with respect to
its capital stock solely in additional shares of its capital stock.
(b) Permit its Restricted Subsidiaries to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Restricted Subsidiary to (i) pay any
dividends or make any other distributions on its capital stock or any other
interest or (ii) make or repay any loans or advances to Terex or the parent of
such Restricted Subsidiary, except, in the case of Finsub, for encumbrances or
restrictions existing pursuant to the Receivables Program Documentation.
SECTION 6.07. Transactions with Affiliates. Sell or transfer any property
or assets to, or purchase or acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates, except that any
Borrower or any Restricted Subsidiary may engage in any of the foregoing
transactions in the ordinary course of business at prices and on terms and
conditions not less favorable to such Borrower or such Restricted Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
and except that this Section shall not apply to any transaction between or among
Borrowers and Guarantors or any transaction between Terex or any Restricted
Subsidiary (other than an Inactive Subsidiary) and Finsub pursuant to the
Receivables Program.
SECTION 6.08. Business of Borrowers and Restricted 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.
SECTION 6.09. Other Indebtedness and Agreements. (a) Permit any waiver,
supplement, modification, amendment, termination or release of any indenture,
instrument or agreement pursuant to which any Indebtedness of any Borrower or
any Restricted Subsidiary in an aggregate principal amount in excess of
$5,000,000 is outstanding if the effect of such waiver, supplement,
modification, amendment, termination or release is to (i) increase the interest
rate on such Indebtedness; (ii) accelerate the dates upon which payments of
principal or interest are due on such Indebtedness; (iii) add or change any
event of default or add any material covenant with respect to such Indebtedness;
(iv) change the prepayment provisions of such Indebtedness in any manner adverse
to the Lenders; (v) change the subordination provisions thereof (or the
subordination terms of any Guarantee thereof); or (vi) change or amend any other
term if such change or amendment would materially increase the obligations of
the obligor or confer additional material rights on the holder of such
Indebtedness in a manner adverse to any Borrower, any Restricted Subsidiary, the
Administrative Agent or the Lenders.
(b)(i) Make any distribution, whether in cash, property, securities or a
combination thereof, other than regular scheduled payments of principal and
interest as and when due (to the extent not prohibited by applicable
subordination provisions), in respect of, or pay, or offer or commit to pay, or
directly or indirectly redeem, repurchase, retire or otherwise acquire for
consideration, or set apart any sum for the aforesaid purposes, any Indebtedness
for borrowed money (other than the Loans or the Tranche C Loans) of any Borrower
or any Restricted Subsidiary except that (A) subject to Section 2.13(c), Terex
shall be permitted to use the Net Cash Proceeds of any Equity Issuance to prepay
not more than one-third of the Existing Senior Subordinated Notes, the New
Subordinated Notes or any other Indebtedness, (B) Terex and its Restricted
Subsidiaries shall be permitted to make any such distribution or payment if all
of the following conditions are satisfied: (1) at the time of such distribution
or payment and after giving effect thereto, no Default or Event of Default has
occurred and is continuing or would arise as a result thereof; (2) the amount of
all such distributions and payments made pursuant to this clause (i), together
with all dividends, redemptions and purchases made pursuant to Section
6.06(a)(ii), since the Original Closing Date shall not exceed $50,000,000; and
(3) on a pro forma basis and after giving effect to such distribution or payment
and all other distributions or payments pursuant to this clause (i) and Section
6.06(a) made after the last day of the most recent fiscal quarter for which
financial statements have been delivered pursuant to Section 5.04(a) or (b), as
applicable, as if such payments or distributions were made in the
four-fiscal-quarter period ending on such last day of such fiscal quarter, the
Consolidated Leverage Ratio as of the end of such four-fiscal-quarter period
shall be less than 3.85 to 1.00, or (ii) pay in cash any amount in respect of
such Indebtedness that may at the obligor's option be paid in kind or in other
securities and (C) Terex may at any time repay Indebtedness of any Borrower or
any Restricted Subsidiary solely in shares of its capital stock.
SECTION 6.10. Capital Expenditures. Permit the aggregate amount of
Consolidated Capital Expenditures made by Terex and its Restricted Subsidiaries,
taken as a whole, in any fiscal year of Terex to exceed $25,000,000 plus 75% of
all Consolidated Capital Expenditures made by Restricted Subsidiaries within
twelve months prior to such Restricted Subsidiaries being acquired as Permitted
Acquisitions. The amount of permitted Consolidated Capital Expenditures set
forth in the immediately preceding sentence in respect of any fiscal year shall
be increased by (a) the amount of unused permitted Consolidated Capital
Expenditures for the immediately preceding fiscal year less (b) an amount equal
to unused Consolidated Capital Expenditures carried forward to such preceding
fiscal year.
SECTION 6.11. Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio on the last day of any fiscal quarter of Terex ending during any period
set forth below to be in excess of the ratio set forth below for such period:
Period Ratio
------ -----
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
SECTION 6.12. Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio for any period of four consecutive fiscal quarters of
Terex ending during any period set forth below to be less than the ratio set
forth below for such period:
Period Ratio
------ -----
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
SECTION 6.13. Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of Terex ending during any period set forth below to be less
than the ratio set forth below for such period:
Period Ratio
------ -----
March 29, 2001 - 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
SECTION 6.14. Fiscal Year. Permit the fiscal year of Terex to end on a day
other than December 31.
SECTION 6.15. Designation of Unrestricted Subsidiaries. (a) Terex may not
designate any Restricted Subsidiary that is a Loan Party (other than Earthking,
Inc. and its subsidiaries) as an Unrestricted Subsidiary; provided, that Terex
may designate any Subsidiary created or acquired after the Restatement Closing
Date as an Unrestricted Subsidiary under this Agreement (a "Designation") only
if:
(i) such Subsidiary does not own any capital stock or other equity
interests of any Restricted Subsidiary;
(ii) no Event of Default shall have occurred and be continuing at the
time of or after giving effect to such Designation;
(iii) after giving effect to such Designation and any related
investment to be made in such designated Subsidiary by Terex or any
Restricted Subsidiary, Terex and its Restricted Subsidiaries would be in
compliance with Section 6.04 and with each of the covenants set forth in
Sections 6.11, 6.12 and 6.13; and
(iv) Terex has delivered to the Administrative Agent (x) written
notice of such Designation and (y) a certificate, dated the effective date
of such Designation, of a Financial Officer certifying compliance with the
conditions set forth in subclause (iii) above and setting forth reasonably
detailed calculations demonstrating such compliance.
(b) Terex may designate any Unrestricted Subsidiary as a Restricted
Subsidiary under this Agreement (an "RS Designation") only if:
(i) no Event of Default shall have occurred and be continuing at the
time of or after giving effect to such RS Designation, and after giving
effect thereto, Terex would be in compliance with each of the covenants set
forth in Sections 6.11, 6.12 and 6.13;
(ii) all Liens on assets of such Unrestricted Subsidiary and all
Indebtedness of such Unrestricted Subsidiary outstanding immediately
following the RS Designation would, if initially incurred at such time,
have been permitted to be incurred pursuant to Sections 6.01 and 6.02,
respectively;
(iii) such designation would meet the applicable criteria of the
term"Permitted Acquisition" were Terex acquiring 100% of the capital stock
of such Unrestricted Subsidiary at such time; and
(iv) Terex has delivered to the Administrative Agent (x) written
notice of such RS Designation and (y) a certificate, dated the effective
date of such RS Designation, of a Financial Officer certifying compliance
with the conditions set forth in subclause (iii) above and setting forth
reasonably detailed calculations demonstrating such compliance.
(c) Upon any such RS Designation with respect to an Unrestricted Subsidiary
(i) Terex and its Restricted Subsidiaries shall be deemed to have received a
return of their investment in such Unrestricted Subsidiary equal to the lesser
of (x) the amount of such Investment immediately prior to such RS Designation
and (y) the fair market value (as reasonably determined by Terex) of the net
assets of such Subsidiary at the time of such RS Designation and (ii) for
purposes of Section 6.04(l) Terex and its Restricted Subsidiaries shall be
deemed to have maintained an investment in an Unrestricted Subsidiary equal to
the excess, if positive, of the amount referred to in clause (i)(x) above over
the amount referred to in clause (i)(y) above.
(d) Neither Terex nor any Restricted Subsidiary shall at any time (x)
provide a Guarantee of any Indebtedness of any Unrestricted Subsidiary, (y) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any other Indebtedness
which provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon (or cause such Indebtedness or the payment thereof to
be accelerated, payable or subject to repurchase prior to its final scheduled
maturity) upon the occurrence of a default with respect to any other
Indebtedness that is Indebtedness of an Unrestricted Subsidiary, except in the
case of clause (x) or (y) to the extent permitted under Section 6.01 and Section
6.04 hereof. Except as provided in paragraph (c) above, each Designation shall
be irrevocable, and no Unrestricted Subsidiary may become a Restricted
Subsidiary, be merged with or into Terex or a Restricted Subsidiary or liquidate
into or transfer substantially all its assets to Terex or a Restricted
Subsidiary.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings or issuances of Letters
of Credit hereunder, or any representation, warranty, statement or
information contained in any report, certificate, financial statement or
other instrument furnished in connection with or pursuant to any Loan
Document, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan
or the reimbursement with respect to any L/C Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan
or any Fee or L/C Disbursement or any other amount (other than an amount
referred to in (b) above) due under any Loan Document, when and as the same
shall become due and payable, and such default shall continue unremedied
for a period of three Business Days after notice;
(d) default shall be made in the due observance or performance by any
Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 5.01(a), 5.05 or 5.07 or in Article VI;
(e) default shall be made in the due observance or performance by any
Borrower or any Restricted Subsidiary of any covenant, condition or
agreement contained in any Loan Document (other than those specified in
(b), (c) or (d) above) and such default shall continue unremedied for a
period of 15 days after notice thereof from the Administrative Agent or any
Lender to Terex;
(f) any Borrower or any Restricted Subsidiary shall (i) fail to pay
any principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $5,000,000, when and as the
same shall become due and payable, or (ii) fail to observe or perform any
other term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness if the effect of
any failure referred to in this clause (ii) is to cause, or to permit the
holder or holders of such Indebtedness or a trustee on its or their behalf
(with or without the giving of notice, the lapse of time or both) to cause,
such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of any Borrower or any Restricted Subsidiary, or of a
substantial part of the property or assets of any Borrower or a Restricted
Subsidiary, under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for any Borrower or any Restricted Subsidiary or for a substantial part of
the property or assets of any Borrower or any Restricted Subsidiary or
(iii) the winding-up or liquidation of any Borrower or any Restricted
Subsidiary; and such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(h) any Borrower or any Restricted Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or the filing of any petition
described in (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for any Borrower or any Restricted Subsidiary or for a substantial part of
the property or assets of any Borrower or any Restricted Subsidiary, (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) become unable, admit in writing its inability or
fail generally to pay its debts as they become due or (vii) take any action
for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money the aggregate
amount which is not covered by insurance is in excess of $5,000,000 shall
be rendered against any Borrower, any Restricted Subsidiary or any
combination thereof and the same shall remain undischarged for a period of
45 consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of any Borrower or any Restricted Subsidiary to
enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other such ERISA Events,
could reasonably be expected to result in liability of any Borrower and its
ERISA Affiliates in an aggregate amount exceeding $5,000,000;
(k) any security interest purported to be created by any Security
Document shall cease to be, or shall be asserted by any Borrower or any
other Loan Party not to be, a valid, perfected, first priority (except as
otherwise expressly provided in this Agreement or such Security Document)
security interest in the securities, assets or properties covered thereby,
except to the extent that any such loss of perfection or priority results
from the failure of the Collateral Agent to maintain possession of
certificates representing securities pledged under the Pledge Agreement and
except to the extent that such loss is covered by a lender's title
insurance policy and the related insurer promptly after such loss shall
have acknowledged in writing that such loss is covered by such title
insurance policy; or
(l) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to any Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, with the consent of the
Required Lenders, may, and at the request of the Required Lenders shall, by
notice to Terex, take either or both of the following actions, at the same or
different times: (i) terminate forthwith the Commitments and (ii) declare the
Loans then outstanding to be forthwith due and payable in whole or in part,
whereupon the principal of the Loans so declared to be due and payable, together
with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrowers accrued hereunder and under any other Loan
Document, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrowers, anything contained herein or in any other Loan Document
to the contrary notwithstanding; and in any event with respect to any Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrowers accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrowers, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE VIII
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement, CSFB
is hereby appointed to act as Administrative Agent and Collateral Agent on
behalf of the Lenders and the Issuing Banks (for purposes of this Article VIII,
the Administrative Agent and the Collateral Agent are referred to collectively
as the "Agents"). Each of the Lenders, the Issuing Banks, and each assignee of
any such Lender or Issuing Bank, hereby irrevocably authorizes the Agents to
take such actions on behalf of such Lender, Issuing Bank or assignee and to
exercise such powers as are specifically delegated to the Agents by the terms
and provisions hereof and of the other Loan Documents, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders and the Issuing Banks,
without hereby limiting any implied authority, (a) to receive on behalf of the
Lenders and the Issuing Banks all payments of principal of and interest on the
Loans, all payments in respect of L/C Disbursements and all other amounts due to
the Lenders hereunder, and promptly to distribute to each Lender or each Issuing
Bank its proper share of each payment so received; (b) to give notice on behalf
of each of the Lenders to the Borrowers of any Event of Default specified in
this Agreement of which the Administrative Agent has actual knowledge acquired
in connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by any
Borrower or any other Loan Party pursuant to this Agreement or the other Loan
Documents as received by the Administrative Agent. Without limiting the
generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases) with respect to the
Collateral and the Program Receivables and the rights of the Secured Parties
with respect thereto, as contemplated by and in accordance with the provisions
of this Agreement and the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by any
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to any Borrower or any other
Loan Party on account of the failure of or delay in performance or breach by any
Lender or an Issuing Bank of any of its obligations hereunder or to any Lender
or an Issuing Bank on account of the failure of or delay in performance or
breach by any other Lender or an Issuing Bank or any Borrower or any other Loan
Party of any of their respective obligations hereunder or under any other Loan
Document or in connection herewith or therewith. Each of the Agents may execute
any and all duties hereunder by or through agents or employees and shall be
entitled to rely upon the advice of legal counsel selected by it with respect to
all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so by
the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as provided
below, either Agent may resign at any time by notifying the Lenders and Terex.
Upon any such resignation, the Required Lenders shall have the right to appoint
a successor; provided that such successor Agent shall also agree to serve in the
equivalent position under the Tranche C Credit Agreement. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent which shall be a bank with an office in New York, New York,
having a combined capital and surplus of at least $500,000,000 or an Affiliate
of any such bank; provided that such successor Agent shall also agree to serve
in the equivalent position under the Tranche C Credit Agreement. Upon the
acceptance of any appointment as Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations hereunder. After the Agent's
resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with any Borrower or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of
its pro rata share (based on the sum of its aggregate available Commitments and
outstanding Loans hereunder) of any expenses incurred for the benefit of the
Lenders by the Agents, including counsel fees and compensation of agents and
employees paid for services rendered on behalf of the Lenders, that shall not
have been reimbursed by any Borrower and (b) to indemnify and hold harmless each
Agent and any of its directors, officers, employees or agents, on demand, in the
amount of such pro rata share, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by or asserted against it in its capacity as Agent or any of them
in any way relating to or arising out of this Agreement or any other Loan
Document or any action taken or omitted by it or any of them under this
Agreement or any other Loan Document, to the extent the same shall not have been
reimbursed by any Borrower or any other Loan Party; provided that no Lender
shall be liable to an Agent or any such other indemnified person for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of such Agent or any of its directors,
officers, employees or agents. Each Revolving Credit Lender agrees to reimburse
each of the Issuing Banks and their directors, employees and agents, in each
case, to the same extent and subject to the same limitations as provided above
for the Agents.
Each Lender acknowledges that it has, independently and without reliance
upon the Agents or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Agents or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to any Borrower, to it in care of Terex at 000 Xxxx Xxxx Xxxx,
Xxxxxxxx, XX 00000, Attention of General Counsel (Telecopy No. (203)
227-1647);
(b) if to the Administrative Agent, to Credit Suisse First Boston, 00
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxx Xxxxxxxx
(Telecopy No. (000) 000-0000, and with respect to Alternative Currencies
(other than Australian Dollars), Credit Suisse First Boston, One Xxxxx
Xxxxxx, Xxxxxx X00 0XX, Xxxxxxx, Attention of Xxxx Xxxxxxxx (Telecopy Xx.
00 00 0000 0000), and with respect to Alternative Currencies in Australian
Dollars, Credit Suisse First Boston, Level 14, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx XXX 0000, Xxxxxxxxx, Attention of Xxxxxxx Xxxxx (Telecopy No. 61
3 9653 3444);
(c) if to a Lender, to it at its address (or telecopy number) set
forth on Schedule 2.01(a) or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto; and
(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 Xxxxxxxx (Telecopy No. (000) 000-0000).
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to the Original Credit Agreement, this Agreement or any other Loan
Document shall be considered to have been relied upon by the Lenders and the
Issuing Banks and shall survive the making by the Lenders of the Loans and the
issuance of Letters of Credit by the Issuing Banks, regardless of any
investigation made by the Lenders or the Issuing Banks or on their behalf, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan, Tranche C Loan or any Fee or any other amount
payable under this Agreement or any other Loan Document, the Tranche C Credit
Agreement or the Additional L/C Facility is outstanding and unpaid or any Letter
of Credit or Additional Letter of Credit is outstanding and so long as the
Commitments and the Tranche C Commitments have not been terminated. The
provisions of Sections 2.14, 2.16, 2.20 and 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent, the Collateral Agent, any
Lender or any Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective as
provided in the Amendment Agreement, and thereafter shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
permitted successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of the Borrowers, the Administrative Agent, the
Issuing Banks or the Lenders that are contained in this Agreement shall bind and
inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate of such Lender or an Approved Fund, (x) Terex and the Administrative
Agent (and, in the case of any assignment of a Revolving Credit Commitment, the
Issuing Banks and the Swingline Lender) must give their prior written consent to
such assignment (which consent shall not be unreasonably withheld) and (y) the
amount of the Commitment or Loans, as applicable, of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 (or, if less, the entire remaining
amount of such Lender's Commitment or Loans, as applicable), (ii) the parties to
each such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500, and (iii) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire. For purposes of this
Section 9.04(b), "Approved Fund" shall mean, with respect to any Lender that is
a fund that invests in bank loans, any other fund that invests in bank loans
which is managed or advised by the same investment advisor as such Lender or by
an affiliate of such investment advisor. Upon acceptance and recording pursuant
to paragraph (e) of this Section 9.04, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution thereof, (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16,
2.20 and 9.05, as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balances of its Loans, in each case without
giving effect to assignments thereof which have not become effective, are as set
forth in such Assignment and Acceptance, (ii) except as set forth in (i) above,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of any Borrower or any Subsidiary or the
performance or observance by any Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred
to in Section 3.05 or delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Collateral Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Administrative
Agent and the Collateral Agent, respectively, by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the
Borrowers, shall maintain at one of its offices in The City of New York a copy
of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrowers, the Administrative Agent, the Issuing Banks, the
Collateral Agent and the Lenders may treat each person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers, any Issuing Bank, the Collateral
Agent and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of Terex, the Swingline Lender,
the Issuing Banks and the Administrative Agent to such assignment, the
Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Lenders, the Issuing Banks and the Swingline Lender. No
assignment shall be effective unless it has been recorded in the Register as
provided in this paragraph (e).
(f) Each Lender may without the consent of any Borrower, the Swingline
Lender, the Issuing Banks or the Administrative Agent sell participations to one
or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.14, 2.16 and 2.20 to the same extent as if they were Lenders and (iv) the
Borrowers, the Administrative Agent, the Issuing Banks and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrowers relating to
the Loans or L/C Disbursements and to approve any amendment, modification or
waiver of any provision of this Agreement (other than amendments, modifications
or waivers decreasing any fees payable hereunder or the amount of principal of
or the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans,
releasing any Guarantor or all or any substantial part of the Collateral or
increasing or extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to any Borrower furnished to such Lender by
or on behalf of any Borrower; provided that, prior to any such disclosure of
information designated by any Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.17.
(h) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest, provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(i) No Borrower shall assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent, each
Issuing Bank and each Lender, and any attempted assignment without such consent
shall be null and void.
(j) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC"),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrowers, the option to provide to the Borrowers
all or any part of any Loan that such Granting Lender would otherwise be
obligated to make to the Borrowers pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPC to make any Loan and
(ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 9.04, (i) any
SPC may (x) with notice to, but without the prior written consent of, the
Borrowers and the Administrative Agent and without paying any processing fee
therefore, assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions providing liquidity and/or credit
support to or for the account of such SPC to support the funding or maintenance
of Loans and (y) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPC, and
(ii) the protections afforded to any SPC pursuant to the provisions of this
Section 9.04(j) may not be amended or modified without the written consent of
such SPC.
(k) In the event that Standard & Poor's Ratings Group, Xxxxx'x Investors
Service, Inc., and Xxxxxxxx'x BankWatch (or Insurance Watch Ratings Service, in
the case of Lenders that are insurance companies (or Best's Insurance Reports,
if such insurance company is not rated by Insurance Watch Ratings Service))
shall, after the date that any Lender becomes a Revolving Credit Lender,
downgrade the long-term certificate deposit ratings of such Lender, and the
resulting ratings shall be below BBB-, Baa3 and C (or BB, in the case of a
Lender that is an insurance company (or B, in the case of an insurance company
not rated by Insurance Watch Ratings Service)), then each Issuing Bank shall
have the right, but not the obligation, at its own expense, upon notice to such
Lender and the Administrative Agent, to replace (or to request Terex to use its
reasonable efforts to replace) such Lender with an assignee (in accordance with
and subject to the restrictions contained in paragraph (b) above), and such
Lender hereby agrees to transfer and assign without recourse (in accordance with
and subject to the restrictions contained in paragraph (b) above) all its
interests, rights and obligations in respect of its Revolving Credit Commitment
to such assignee; provided, however, that (i) no such assignment shall conflict
with any law, rule and regulation or order of any Governmental Authority and
(ii) the applicable Issuing Bank or such assignee, as the case may be, shall pay
to such Lender in immediately available funds on the date of such assignment the
principal of and interest accrued to the date of payment on the Loans made by
such Lender hereunder and all other amounts accrued for such Lender's account or
owed to it hereunder.
SECTION 9.05. Expenses; Indemnity. (a) Each Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by the Administrative Agent, the
Collateral Agent, the Issuing Banks and the Swingline Lender in connection with
the syndication of the credit facilities provided for herein and the preparation
and administration of this Agreement and the other Loan Documents or in
connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby or thereby
contemplated shall be consummated) or incurred by the Administrative Agent, the
Collateral Agent or any Lender in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Loan Documents or
in connection with the Loans made or Letters of Credit issued hereunder, as
applicable, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent and the Collateral Agent,
and, in connection with any such enforcement or protection, the fees, charges
and disbursements of any other counsel for the Administrative Agent, the
Collateral Agent or any Lender.
(b) Each Borrower agrees to indemnify the Administrative Agent, the
Collateral Agent, each Lender and each Issuing Bank, each Affiliate of any of
the foregoing persons and each of their respective directors, officers,
employees and agents (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans or issuance of
Letters of Credit, (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto, or (iv) any actual or alleged presence, Release or threat of Release of
Hazardous Materials on any Properties, or any Environmental Claim related in any
way to any Borrower or the Subsidiaries; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the expiration of the Commitments, the expiration of any Letter of
Credit, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf
of the Administrative Agent, the Collateral Agent, any Lender or an Issuing
Bank. All amounts due under this Section 9.05 shall be payable on written demand
therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, except to the extent prohibited by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of any Borrower against any of and all the obligations of
such Borrower now or hereafter existing under this Agreement and other Loan
Documents held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement or such other Loan Document and
although such obligations may be unmatured. The rights of each Lender under this
Section 9.06 are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH
LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS
OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500
(THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS,
THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or an Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by any Borrower or any other Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on any Borrower in any case
shall entitle such Borrower to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrowers and the Required Lenders; provided, however, that no such
agreement shall (i) decrease the principal amount of, or extend the maturity of
or any scheduled principal payment date or date for the payment of any interest
on any Loan or any date for reimbursement of an L/C Disbursement, or waive or
excuse any such payment or any part thereof, or decrease the rate of interest on
any Loan or L/C Disbursement, without the prior written consent of each Lender
affected thereby, (ii) change or extend the Commitment or decrease or extend the
date for payment of the Facility Fees of any Lender without the prior written
consent of such Lender, (iii) amend or modify the provisions of Section 2.17 or
9.04(i), the provisions of this Section, the definition of the term "Required
Lenders", increase the total Commitments or release any Guarantor or all or any
substantial part of the Collateral, without the prior written consent of each
Lender, (iv) change the allocation between Tranche A Term Loans and Tranche B
Term Loans of any prepayment pursuant to Section 2.12 or 2.13 without the prior
written consent of (A) Lenders holding a majority of the aggregate outstanding
principal amount of the Tranche A Term Loans and (B) Lenders holding a majority
of the aggregate outstanding principal amount of the Tranche B Term Loans or (v)
amend Section 2.13(j) without the prior written consent of the Lenders holding a
majority of the aggregate outstanding principal amount of the Tranche B Term
Loans; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Collateral Agent,
any Issuing Bank, any A/C Fronting Lender or the Swingline Lender hereunder or
under any other Loan Document without the prior written consent of the
Administrative Agent, the Collateral Agent, such Issuing Bank, such A/C Fronting
Lender or the Swingline Lender.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement and
the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement 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, and shall become effective as provided in Section 9.03.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against any Borrower or its properties in the courts of
any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.01; provided, however, that each
Subsidiary Borrower hereby appoints Terex, 000 Xxxx Xxxx Xxxx, Xxxxxxxx, XX
00000 (Attention of General Counsel), as its agent for service of process.
Nothing in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
SECTION 9.16. Conversion of Currencies. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of each party in respect of any sum due to any other
party hereto or any holder of the obligations owing hereunder (the "Applicable
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to be due
hereunder (the "Agreement Currency"), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such party agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the Loan Parties contained in
this Section 9.16 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.
SECTION 9.17. Confidentiality. The Administrative Agent, the Collateral
Agent, each Issuing Bank and each of the Lenders agrees to keep confidential
(and to use its best efforts to cause its respective agents and representatives
to keep confidential) the Information (as defined below) and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that
the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information, (b) to the extent requested by any regulatory
authority (provided such authority shall be advised of the confidential nature
of the Information), (c) to the extent otherwise required by applicable laws and
regulations or by any subpoena or similar legal process, (d) in connection with
any suit, action or proceeding relating to the enforcement of its rights
hereunder or under the other Loan Documents, (e) to any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty (or its
affiliates) is not a competitor of Terex or any of its Subsidiaries and agrees
to be bound by the provisions of this Section 9.17) or (f) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section 9.17 or (ii) becomes available to the Administrative Agent, any
Issuing Bank, any Lender or the Collateral Agent on a nonconfidential basis from
a source other than any Borrower. For the purposes of this Section,
"Information" shall mean all financial statements, certificates, reports,
agreements and information (including all analyses, compilations and studies
prepared by the Administrative Agent, the Collateral Agent, any Issuing Bank or
any Lender based on any of the foregoing) that are received from any Borrower
and related to any Borrower, any shareholder of any Borrower or any employee,
customer or supplier of any Borrower, other than any of the foregoing that were
available to the Administrative Agent, the Collateral Agent, any Issuing Bank or
any Lender on a nonconfidential basis prior to its disclosure thereto by any
Borrower, and which are in the case of Information provided after the Original
Closing Date, clearly identified at the time of delivery as confidential. The
provisions of this Section 9.17 shall remain operative and in full force and
effect regardless of the expiration and term of this Agreement.
SECTION 9.18. European Monetary Union. If, as a result of the
implementation of European monetary union, (a) any currency ceases to be lawful
currency of the nation issuing the same and is replaced by a European common
currency, then any amount payable hereunder by any party hereto in such currency
shall instead be payable in the European common currency and the amount so
payable shall be determined by translating the amount payable in such currency
to such European common currency at the exchange rate recognized by the European
Central Bank for the purpose of implementing European monetary union, or (b) any
currency and a European common currency are at the same time recognized by the
central bank or comparable authority of the nation issuing such currency as
lawful currency of such nation, then (i) any Loan made at such time shall be
made in such European common currency and (ii) any other amount payable by any
party hereto in such currency shall be payable in such currency or in such
European common currency (in an amount determined as set forth in clause (a)),
at the election of the obligor. Prior to the occurrence of the event or events
described in clause (a) or (b) of the preceding sentence, each amount payable
hereunder in any currency will continue to be payable only in that currency.
Each Borrower agrees, at the request of the Required Lenders, at the time of or
at any time following the implementation of European monetary union, to enter
into an agreement amending this Agreement in such manner as the Required Lenders
shall reasonably request in order to avoid any unfair burden or disadvantage
resulting from the implementation of such monetary union and to place the
parties hereto in the position they would have been in had such monetary union
not been implemented, the intent being that neither party will be adversely
affected economically as a result of such implementation and that reasonable
provisions may be adopted to govern the borrowing, maintenance and repayment of
Loans denominated in any Alternative Currency or a European common currency
after the occurrence of the event or events described in clause (a) or (b) of
the preceding sentence.
SECTION 9.19. 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 9.19 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 9.19.
SECTION 9.20. Effect of Restatement. This Agreement shall, except as
otherwise expressly set forth herein, supersede the Original Credit Agreement
from and after the Restatement Closing Date with respect to the transactions
hereunder and with respect to the outstanding Loans and Letters of Credit. The
parties hereto acknowledge and agree, however, that (i) this Agreement and all
other Loan Documents executed and delivered herewith do not constitute a
novation, payment and reborrowing or termination of the Obligations under the
Original Credit Agreement and the other Loan Documents as in effect immediately
prior to the Restatement Closing Date, (ii) such Obligations are in all respects
continuing with only the terms being modified as provided in this Agreement and
the other Loan Documents, (iii) the liens and security interests in favor of the
Agent for the benefit of the Lenders and the other Secured Parties securing
payment of such Obligations are in all respects continuing and in full force and
effect with respect to all Obligations and (iv) all references in the other Loan
Documents to this Agreement shall be deemed to refer without further amendment
to this Agreement.
