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AMENDMENT No. 2, dated as of October
20, 1998 (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, P.P.M. S.A., a company organized
under the laws of the Republic of France,
UNIT RIG (AUSTRALIA) PTY. LTD., a company
organized under the laws of New South Wales,
Australia, and P.P.M. Sp.A., a company
organized under the laws of the Republic of
Italy, 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 requested that certain provisions of the
Credit Agreement be amended as set forth herein.
C. The Required Lenders are willing to amend the Credit
Agreement, pursuant to the terms and subject to the conditions set forth herein.
D. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment to the Preliminary Statement of the
Credit Agreement. The third sentence of the second paragraph of the preliminary
statement of the Credit Agreement is hereby amended by replacing the amount
"$35,000,000" with the amount "$60,000,000".
SECTION 2. Amendment to Section 2.23(b) of the Credit
Agreement. The last sentence of Section 2.23(b) of the Credit Agreement is
hereby amended by replacing the amount "$35,000,000" with the amount
"$60,000,000".
SECTION 3. Representations and Warranties. Each of the
Borrowers represents and warrants to each other party hereto that, after giving
effect to this Amendment, (a) the representations and warranties set forth in
Article III of the Credit Agreement are true and correct in all material
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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 4. 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 Required Lenders.
SECTION 5. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Swingline Lender, any Issuing Bank, the Collateral Agent or the
Administrative Agent, under the Credit Agreement or any other Loan Document, and
shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed in
all respects and shall continue in full force and effect. Nothing herein shall
be deemed to entitle any Borrower to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein.
SECTION 6. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 7. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
TEREX CORPORATION,
by
/s/ Susan K. Sutherland
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Name: Susan K. Sutherland
Title: Treasurer
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TEREX EQUIPMENT LIMITED,
by
/s/ Eric Cohen
-------------------------------
Name: Eric Cohen
Title: Director
P.P.M. S.A.,
by
/s/ J.M. Fleury
-------------------------------
Name: J.M. Fleury
Title: V.P., General Manager
UNIT RIG (AUSTRALIA) PTY. LTD.,
by
/s/ Eric Cohen
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Name: Eric Cohen
Title: Director
P.P.M. Sp.A,
by
/s/ Michele Hillebrand
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Name: Michele Hillebrand
Title: General Manager
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CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent,
Collateral Agent and Swingline Lender,
by
/s/ William O'Daly
-------------------------------
Name: William O'Daly
Title: Vice President
by
/s/ J. Glodowski
-------------------------------
Name: J. Glodowski
Title: Managing Director
ABN AMRO BANK N.V.,
by
/s/ Donald Sutton
-------------------------------
Name: Donald Sutton
Title: Vice President
by
/s/ Stephen Van Besien
-------------------------------
Name: Stephen Van Besien
Title: Group 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
/s/ Kenneth G. Ostmann
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Name: Kenneth G. Ostmann
Title: Vice President
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ARES LEVERAGED INVESTMENT
FUND L.P.,
by ARES Management, L.P.
by ARES Operating Member, LLC
Its General Partner
by
/s/ David A. Sachs
-------------------------------
Name: David A. Sachs
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
by
/s/ Paul Malecki
-------------------------------
Name: Paul Malecki
Title: Vice President
BANKBOSTON N.A., as Revolver and
Term A Lender,
by
/s/ Garrett Quinn
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Name: Garrett Quinn
Title: Vice President
BANKBOSTON, N.A.,
by
/s/ Garrett Quinn
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Name: Garrett Quinn
Title: Vice President
CIBC INC.,
by
/s/ Timothy Doyle
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Name: Timothy Doyle
Title: Managing Director
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CREDIT LYONNAIS, NEW YORK
BRANCH,
by
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Name:
Title:
CYPRESSTREE INVESTMENT
PARTNERS I, LTD., BY: CYPRESSTREE
INVESTMENT MANAGEMENT
COMPANY INC., as portfolio manager,
by
/s/ Philip C. Robbins
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Name: Philip C. Robbins
Title: Principal
DEBT STRATEGIES FUND II, INC.,
by
-------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES,
by
-------------------------------
Name:
Title:
by
-------------------------------
Name:
Title:
FIRST DOMINION FUNDING I,
by
-------------------------------
Name:
Title:
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FIRST UNION NATIONAL BANK,
by
/s/ Hank Biedrzyscki
-------------------------------
Name: Hank Biedrzyscki
Title: Vice President/Director
GENERAL ELECTRIC CAPITAL
CORPORATION,
by
/s/ Janet K. Williams
-------------------------------
Name: Janet K. Williams
Title: Duly Authorized Signatory
KZH III LLC,
by
/s/ Virginia Conway
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Name: Virginia Conway
Title: Authorized Agent
LEHMAN COMMERCIAL PAPER INC,
by
/s/ Michelle Swanson
-------------------------------
Name: Michelle Swanson
Title: Authorized Signatory
MARINE MIDLAND BANK,
by
/s/ Randolph M. Ross
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Name: Randolph M. Ross
Title: Authorized Signatory
MERRILL LYNCH GLOBAL
INVESTMENT SERIES: INCOME
STRATEGIES PORTFOLIO, by MERRILL
LYNCH ASSET MANAGEMENT, L.P., as
investment advisor,
by
/s/ Paul Travers
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Name: Paul Travers
Title: Vice President
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MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED,
by
/s/ Neil Brisson
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Name: Neil Brisson
Title: Director
MERRILL LYNCH PRIME RATE
PORTFOLIO, by MERRILL LYNCH
ASSET MANAGEMENT, L.P., as
investment advisor,
by
/s/ Paul Travers
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Name: Paul Travers
Title: Vice President
MOUNTAIN CLO TRUST,
by
-------------------------------
Name:
Title:
NATIONAL CITY BANK,
by
/s/ Joseph D. Robison
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Name: Joseph D. Robison
Title: Vice President
PAM CAPITAL FUNDING LP
by HIGHLAND CAPITAL
MANAGEMENT, L.P., as Collateral
Manager
by
/s/ Mark K. Okada
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Name: Mark K. Okada CFA
Title: Executive Vice President
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PUTNAM DIVERSIFIED INCOME
TRUST,
by
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Name:
Title:
PUTNAM FIDUCIARY TRUST
COMPANY, on behalf of PUTNAM HIGH
YIELD MANAGED TRUST,
by
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Name:
Title:
PUTNAM HIGH YIELD TRUST,
by
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Name:
Title:
PUTNAM VARIABLE TRUST, on behalf
of PUTNAM VT DIVERSIFIED INCOME
FUND,
by
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Name:
Title:
SKANDINAVISKA ENSKILDA
BANKEN AB (publ), NEW YORK
BRANCH,
by
/s/ Philip Montemurro
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Name: Philip Montemurro
Title: Vice President
by
/s/ Sveryer Johansson
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Name: Sveryer Johansson
Title: Vice President
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TORONTO DOMINION (TEXAS), INC.,
by
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Name:
Title:
GOLDMAN SACHS CREDIT PARTNERS
LP
by
/s/ Stephen J. McGuinness
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Name: Stephen J. McGuiness
Title: Managing Director
KZH PAMCO LLC,
by
/s/ Virginia Conway
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Name: Virginia Conway
Title: Authorized Agent
PAMCO CAYMAN, LTD.
by HIGHLAND CAPITAL
MANAGEMENT, L.P., as Collateral
Manager
by
/s/ Mark K. Okada
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Name: Mark K. Okada CFA
Title: Executive Vice President
DEUTSCHE FINANCIAL SERVICES
CORPORATION
by
-------------------------------
Name:
Title: