AMENDMENT No. 3, CONSENT AND WAIVER dated as of February 26, 1999 (this "Amendment"), to the Credit Agreement dated as of March 6, 1998, as amended (the "Credit Agreement"), among TEREX CORPORATION, a Delaware corporation ("Terex"), TEREX EQUIPMENT...
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AMENDMENT No. 3, CONSENT AND WAIVER dated as of
February 26, 1999 (this "Amendment"), to the Credit Agreement
dated as of March 6, 1998, as amended (the "Credit
Agreement"), among TEREX CORPORATION, a Delaware corporation
("Terex"), TEREX EQUIPMENT LIMITED, a company organized under
the laws of Scotland (the "Scottish Borrower"), P.P.M. S.A., a
company organized under the laws of the Republic of France
(the "French Borrower"), UNIT RIG (AUSTRALIA) PTY. LTD., a
company organized under the laws of New South Wales, Australia
(the "Australian Borrower"), and P.P.M. SP.A., a company
organized under the laws of the Republic of Italy (the
"Italian Borrower"), PICADILLY MASCHINENHANDEL GMBH & CO. KG,
a partnership organized under the laws of the Federal Republic
of Germany (the "German Borrower", and together with Terex,
the Scottish Borrower, the French Borrower, the Australian
Borrower and the Italian Borrower, the "Borrowers"), the
Lenders (as defined in the Credit Agreement), the Issuing
Banks (as defined in the Credit Agreement) and CREDIT SUISSE
FIRST BOSTON, a bank organized under the laws of Switzerland,
acting through its New York branch ("CSFB"), as administrative
agent (in such capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the "Collateral Agent")
for the Lenders.
A. Pursuant to the Credit Agreement, the Lenders and the
Issuing Banks have extended credit to the Borrowers, and have agreed to extend
credit to the Borrowers, in each case pursuant to the terms and subject to the
conditions set forth therein.
B. The Borrowers have informed the Administrative Agent that
they propose to issue on or prior to April 30, 1999, Additional Subordinated
Notes (the "New Notes"), as permitted by Section 6.01(c) of the Credit
Agreement.
C. The Borrowers propose to (i) use the proceeds of the New
Notes to (a) prepay the scheduled amortization payments for the Term Loans
through and including March 31, 2000, and (b) prepay not less than $15,000,000
of the outstanding Revolving Loans, without reducing the Revolving Credit
Commitments, and (ii) use the balance of such proceeds to finance Permitted
Acquisitions and related fees and expenses.
D. The Borrowers have requested that the Required Lenders
consent to the use of proceeds of the New Notes as described in the preceding
paragraph and grant such waivers and agree to such modifications of the Credit
Agreement as are necessary to effectuate the same.
E. The Borrowers have requested that certain provisions of the
Credit Agreement be further amended as set forth herein.
F. The Required Lenders are willing to grant such amendments,
consents and waivers pursuant to the terms and subject to the conditions set
forth herein.
G. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to them in the Credit Agreement.
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Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Consent and Waiver. The German Borrower hereby
consents to Amendment No. 2, dated as of October 20, 1998, to the Credit
Agreement and agrees to be bound thereby.
SECTION 2. Amendment to Section 1.01 (Defined Terms) of the
Credit Agreement. (a) The definition of "Additional Subordinated Notes" in
Section 1.01 of the Credit Agreement is hereby amended by (i) deleting the words
"in an aggregate principal amount at any time outstanding not to exceed
$150,000,000 and" in the first two lines thereof, and (ii) deleting the word
"Term" in the seventh line thereof.
(b) After the definition of "Alternative Currency Term Loan"
in Section 1.01 of the Credit Agreement, the following definition is hereby
inserted:
"'Amendment No. 3' shall mean Amendment No. 3, Consent
and Waiver dated as of February 26,1999, to this Agreement,
among the Borrowers, the Lenders and CSFB."
(c) The definition of "Asset Sale" in Section 1.01 of the
Credit Agreement is hereby amended by deleting the words "and accounts
receivable" and inserting the words ", accounts receivable and/or letters of
credit supporting accounts receivable issued to Terex or any Subsidiary" in the
sixth line of such definition.
(d) The definition of "Italian Facilities" in Section 1.01 of
the Credit Agreement is hereby amended and restated in its entirety as follows:
"'Italian Facilities' shall mean the credit facilities of the
Italian Borrower or any other Subsidiary located in Italy."
SECTION 3. Amendment to Section 2.13 (Mandatory Prepayments)
of the Credit Agreement. Section 2.13 of the Credit Agreement is hereby amended
by (a) deleting the word "either" in the sixth line of paragraph (e), and (b)
replacing the words "and/or (ii) to prepay outstanding Term Loans in accordance
with Section 2.13(g)" in paragraph (e) with the following:
"(ii) to prepay outstanding Term Loans in accordance with
Section 2.13(g), and/or (iii) to prepay outstanding Revolving
Loans, without reducing the Revolving Credit Commitments
thereby,"
Section 2.13 of the Credit Agreement is hereby further amended by adding to the
end of paragraph (e) the following:
"Notwithstanding the foregoing, the Net Cash Proceeds from the
issuance of the New Notes (as defined in Amendment No. 3) will
be applied as set forth in Section 7 of Amendment No. 3."
SECTION 4. Amendment to Section 6.01 (Indebtedness) of the
Credit Agreement. Section 6.01 of the Credit Agreement is hereby amended by (a)
deleting the word "Term" in the second line of paragraph (c), (b) replacing the
amount of "$30,000,000" in paragraph (j) with the amount of "$70,000,000", (c)
deleting the words "existing on the date the Acquisition is consummated" in
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paragraph (k), and (d) replacing the amount of "$5,000,000" in paragraph (q)
with the amount of "$10,000,000".
SECTION 5. Amendment to Section 6.04 (Investments, Loans and
Advancements) of the Credit Agreement. Section 6.04 of the Credit Agreement is
hereby amended by inserting the word "Consolidated" before the words "Capital
Expenditures" in paragraph (f).
SECTION 6. Amendment to Section 6.10 (Capital Expenditures) of
the Credit Agreement. Section 6.10 of the Credit Agreement is hereby amended by
(a) inserting, at the end of the first sentence thereof, the words "plus 75% of
all Consolidated Capital Expenditures made by Subsidiaries within twelve months
prior to such Subsidiaries being acquired as Permitted Acquisitions", and (b)
inserting the word "Consolidated" before the words "Capital Expenditures" in
each place such term appears in the second sentence.
SECTION 7. Agreements. The Borrowers agree that, substantially
simultaneously with (and in any event not later than the Business Day next
following) the receipt of the Net Cash Proceeds of the New Notes, they will use
the proceeds thereof (a) to prepay the Term Loans scheduled to be paid through
and including March 31, 2000, pursuant to Sections 2.11(a) and (b) of the Credit
Agreement in the direct order of maturity, (b) thereafter, to prepay not less
than $15,000,000 of the outstanding Revolving Loans and (c) thereafter, at the
discretion of the Borrowers, to make Permitted Acquisitions pursuant to Section
6.04(d). To the extent the remaining Net Cash Proceeds are not used to finance
such Permitted Acquisitions and related fees and expenses on or prior to April
30, 1999, then such proceeds (but not any investment earnings, if any, thereon,
which shall be for the account of the Borrowers) shall be applied by the
Administrative Agent to the prepayment of Loans in accordance with Section
2.13(e) of the Credit Agreement, as amended hereby. If the maturity of the Loans
has been accelerated pursuant to Article VII of the Credit Agreement, then the
Administrative Agent may, in its discretion, require the Borrowers to apply the
remaining proceeds (and all investment earnings, if any, thereon) to any of the
Obligations in accordance with the terms of the Credit Agreement and the other
Loan Documents.
SECTION 8. Representations and Warranties. Each of the
Borrowers represents and warrants to each other party hereto that, after giving
effect to this Amendment, (a) the representations and warranties set forth in
Article III of the Credit Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as though made on and
as of the date hereof, except to the extent such representations and warranties
expressly relate to an earlier date, and (b) no Default or Event of Default has
occurred and is continuing.
SECTION 9. Conditions to Effectiveness. This Amendment shall
become effective as of the date first written above on the date that the
Administrative Agent shall have received counterparts of this Amendment which,
when taken together, bear the signatures of the Borrowers and the Required
Lenders.
SECTION 10. Effect of Amendment. Except as expressly set
forth herein, this Amendment shall not by implication or otherwise limit,
impair, constitute a waiver of, or otherwise affect the rights and remedies of
the Lenders, the Swingline Lender, any Issuing Bank, the Collateral Agent or
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the Administrative Agent, under the Credit Agreement or any other Loan Document,
and shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed in
all respects and shall continue in full force and effect. Nothing herein shall
be deemed to entitle any Borrower to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein.
SECTION 11. Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. Delivery of any executed counterpart of a signature page of
this Amendment by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof.
SECTION 12. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 13. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
TEREX CORPORATION,
by
/s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
TEREX EQUIPMENT LIMITED,
by
/s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Director
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P.P.M. S.A.,
by
/s/ Fil Filipov
-------------------------------
Name: Fil Filipov
Title: CEO
UNIT RIG (AUSTRALIA) PTY. LTD.,
(now known as Terex Mining (Austrialia)
Pty. Ltd.),
by
/s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Director
P.P.M. SP.A,
by
/s/ Fil Filipov
-------------------------------
Name: Fil Filipov
Title: Chairman
PICADILLY MASCHINENHANDEL
GMBH & CO. KG,
by
/s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Director
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent,
Collateral Agent and Swingline Lender,
by
/s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
by
/s/ Xxxx X'Xxxx
-------------------------------
Name: Xxxx X'Xxxx
Title: Vice President
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ABN AMRO BANK N.V.,
by
/s/ Xxxx Megeaski
-------------------------------
Name: Xxxx Megeaski
Title: Vice President
by
/s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
ALLIANCE CAPITAL MANAGEMENT
L.P., as Manager on behalf of ALLIANCE
CAPITAL FUNDING, L.L.C. by:
ALLIANCE CAPITAL MANAGEMENT
CORPORATION, General Partner of
Alliance Capital Management L.P.,
by
-------------------------------
Name:
Title:
ARES LEVERAGED INVESTMENT
FUND L.P.,
by ARES Management, L.P.
by ARES Operating Member, LLC
Its General Partner
by
/s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
by
/s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
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BANKBOSTON N.A., as Revolver and
Term A Lender,
by
/s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
BANKBOSTON, N.A.,
by
/s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
BLACK DIAMOND CAPITAL
MANAGEMENT,LLC,
AS COLLATERAL MANAGER FOR:
BLACK DIAMOND CLO 1998-1 LTD.,
by
-------------------------------
Name:
Title:
CIBC INC.,
by
/s/ Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
Title: Executive Director
CIBC Xxxxxxxxxxx Corp.,
as Agent
THE CIT GROUP/EQUIPMENT
FINANCING, INC.,
by
/s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
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CREDIT LYONNAIS, NEW YORK
BRANCH,
by
/s/ Xxxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxxx Xxxxx
Title: First Vice President-Manager
CYPRESSTREE INVESTMENT
PARTNERS I, LTD., BY: CYPRESSTREE
INVESTMENT MANAGEMENT
COMPANY INC., as portfolio manager,
by
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Principal
DEBT STRATEGIES FUND II, INC.,
by
/s/ Xxxxxx X. Pelrose
-------------------------------
Name: Xxxxxx X. Pelrose
Title: Authorized Signatory
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES,
by
/s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
by
/s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Assistant Vice President
DEUTSCHE FINANCIAL SERVICES
CORPORATION
by
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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ELC (CAYMAN) LTD.,
by
/s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
FIRST DOMINION FUNDING I,
by
-------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
by
/s/ Xxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION,
by
-------------------------------
Name:
Title:
KZH III LLC,
by
/s/ Xxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
KZH PAMCO LLC,
by
/s/ Xxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
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MARINE MIDLAND BANK,
by
/s/ Xxxxx X. XxXxxxx
-------------------------------
Name: Xxxxx X. XxXxxxx
Title: Authorized Signatory
XXXXXXX XXXXX GLOBAL
INVESTMENT SERIES: INCOME
STRATEGIES PORTFOLIO, by XXXXXXX
XXXXX ASSET MANAGEMENT, L.P., as
investment advisor,
by
/s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.,
by
/s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX PRIME RATE
PORTFOLIO, by XXXXXXX XXXXX
ASSET MANAGEMENT, L.P., as
investment advisor,
by
/s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
MOUNTAIN CLO TRUST,
by
/s/ Xxxxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Authorized Signatory
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NATIONAL CITY BANK,
by
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXX CAPITAL FUNDING LP
by HIGHLAND CAPITAL
MANAGEMENT, L.P., as Collateral
Manager
by
/s/ Xxxx X. Xxxxx CFA
-------------------------------
Name: Xxxx X. Xxxxx CFA
Title: Executive Vice President
Highland Capital Management
L.P.
PAMCO CAYMAN, LTD.
by HIGHLAND CAPITAL
MANAGEMENT, L.P., as Collateral
Manager
by
/s/ Xxxx X. Xxxxx CFA
-------------------------------
Name: Xxxx X. Xxxxx CFA
Title: Executive Vice President
Highland Capital Management
X.X.
XXXXXX DIVERSIFIED INCOME
TRUST,
by
-------------------------------
Name:
Title:
12
XXXXXX FIDUCIARY TRUST
COMPANY, on behalf of XXXXXX HIGH
YIELD MANAGED TRUST,
by
-------------------------------
Name:
Title:
XXXXXX HIGH YIELD TRUST,
by
-------------------------------
Name:
Title:
XXXXXX VARIABLE TRUST, on behalf
of PUTNAM VT DIVERSIFIED INCOME
FUND,
by
-------------------------------
Name:
Title:
XXXXXX VT HIGH YIELD FUND,
by
-------------------------------
Name:
Title:
SENIOR HIGH INCOME PORTFOLIO,
INC.
by
/s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
00
XXXXXXXXXXXXX XXXXXXXX
XXXXXX XX (xxxx), XXX XXXX
BRANCH,
by
/s/ Sverker Johansson
-------------------------------
Name: Sverker Johansson
Title: Vice President
by
/s/ Xxxxxxx Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
TORONTO DOMINION (TEXAS), INC.,
by
/s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
KZH SHOSHONE LLC,
by
/s/ Xxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
CANADIAN IMPERIAL BANK OF
COMMERCE,
by
/s/ Xxxxx Xxxx
-------------------------------
Name: Xxxxx Xxxx
Title: Authorized Signatory
