CONFORMED COPY
AMENDMENT No. 6 and CONSENT dated as of August 9,
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"), TEREX MINING (AUSTRALIA) PTY. LTD.
(formerly Unit Rig (Australia) Pty. Ltd.), a company organized
under the laws of New South Wales, Australia (the "Australian
Borrower"), 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. Terex has informed the Administrative Agent that it intends
to acquire (the "Cedarapids Acquisition") all of the outstanding capital stock
of Cedarapids, Inc. ("Cedarapids") from a subsidiary of Raytheon Company for
aggregate consideration of approximately $170,000,000 in cash.
C. In connection with the Cedarapids Acquisition, Terex and
the other Borrowers have requested that certain provisions of the Credit
Agreement be amended to allow Terex, among other things, to incur up to an
additional $125,000,000 of senior secured indebtedness under the Tranche C
Credit Agreement.
D. The Required Lenders are willing so to amend the Credit
Agreement pursuant to the terms and subject to the conditions set forth herein.
E. Each capitalized term used and not otherwise defined herein
shall have the meaning assigned to such term in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended as follows:
(i) The following definitions are hereby inserted in alphabetical order:
(A) ""Cedarapids" shall mean Cedarapids, Inc., an Iowa
corporation.";
(B) ""Cedarapids Acquisition" shall mean the acquisition of
all of the outstanding capital stock of Cedarapids from a subsidiary of
Raytheon Company for aggregate consideration of approximately
$170,000,000 in cash.";
(C) ""Cedarapids Closing Date" shall mean the date upon which
Cedarapids becomes a wholly owned Subsidiary of Terex.";
(D) ""Finsub" shall mean a bankruptcy-remote corporation that
is a wholly owned Subsidiary of Terex organized solely for the purpose
of engaging in the Receivables Program.";
(E) ""Program Receivables"shall mean all trade receivables and
related contract rights originated and owned by the Borrower or any
Subsidiary (other than an Inactive Subsidiary) and sold pursuant to the
Receivables Program.";
(F) ""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 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."; and
(G) ""Receivables Program Documentation" shall mean all
written agreements that may from time to time be entered into by Terex,
any 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.".
(ii) The following definitions are hereby amended as follows:
(A) the definition of the term "Applicable Percentage" is
hereby amended by replacing the words "initial borrowing under the
Tranche C Credit Agreement" contained in the proviso of the first
paragraph of such definition with the words "Cedarapids Closing Date"
and by replacing the number "3" at the end of such proviso with the
number "2";
(B) the grid contained in the definition of the term
"Applicable Percentage" is hereby replaced in its entirety with the
following grid:
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
Eurocurrency ABR
Spread-- Spread-- ABR-- ABR
Tranche A Eurocurrency Tranche A A/C Spread--
Term Loans Spread-- Term Loans Fronted Tranche Facility Fee
and Tranche B and Loan B Term Percentage
Consolidated Revolving Term Loans Revolving Spread Loans
Leverage Ratio Loans Loans
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
Category 1
Greater than or equal to
5.25 to 1.00 2.250% 3.250% 1.250% 1.250% 2.250% 0.500%
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
Category 2
Greater than or equal to
4.50 to 1.00 but less than
5.25 to 1.00 2.000% 3.000% 1.000% 1.000% 2.000% 0.500%
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
Category 3
Greater than or equal to
4.00 to 1.00 but less than
4.50 to 1.00 1.750% 2.750% 0.750% 0.750% 1.750% 0.500%
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
Category 4
Greater than or equal to
3.50 to 1.00 but less than
4.00 to 1.00 1.250% 2.750% 0.250% 0.250% 1.750% 0.500%
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
Category 5
Greater than or equal to
3.00 to 1.00 but less than
3.50 to 1.00 1.125% 2.750% 0.125% 0.125% 1.750% 0.375%
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
Category 6
Less than 3.00 to 1.00 0.875% 2.750% -0.125% 0.000% 1.750% 0.375%
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
(C) the definition of the term "Asset Sale" is hereby amended
by inserting prior to the period at the end of such definition the
additional proviso "; 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";
(D) the definition of the term "Consolidated Interest Expense"
is hereby amended by inserting the following sentence at the end of
such definition:
"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 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.";
(E) the definition of the term "Indebtedness" is hereby
amended by inserting the following sentence at the end of such
definition:
"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").";
(F) the definition of the term "Total Debt" is hereby amended
by replacing the identifier "(i)" in the fourth line of such definition
with the identifier "(j)" and by adding the word "Consolidated" in
front of the words "Leverage Ratio"in the fifth line of such
definition; and
(G) the definition of the term "Tranche C Credit Agreement" is
hereby amended and restated in its entirety to read as follows:
""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, 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.".
(b) Section 5.11(a) of the Credit Agreement is hereby amended by
inserting the words "or Finsub" following the words "Inactive Subsidiary"
contained in the second sentence of such subsection.
(c) Section 6.01 of the Credit Agreement is hereby amended as follows:
(i) by inserting the words "or Finsub (except as expressly
permitted by subsection (q) below)" following the words "Inactive
Subsidiary" contained in the initial clause to such Section 6.01;
(ii) by replacing the number "$325,000,000" contained in
subsection (b) with the number "$450,000,000";
(iii) by amending and restating subsection (e) in its entirety to
read as follows:
"(e) Indebtedness of (i) Terex or any wholly owned
Subsidiary (other than an Inactive Subsidiary or Finsub) to
any other wholly owned Subsidiary (other than an Inactive
Subsidiary or Finsub), (ii) any wholly owned Subsidiary (other
than an Inactive Subsidiary or Finsub) to Terex or (iii)
Finsub to Terex or any wholly owned 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;";
(iv) by deleting the word "and" at the end of subsection (p);
(v) by relettering subsection "(q)" as subsection "(r)"; and
(vi) by inserting the following new subsection (q):
"(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; and".
(d) Section 6.02 of the Credit Agreement is hereby amended as follows:
(i) by inserting the words "or Finsub" following the words
"Inactive Subsidiary" in subsection (i);
(ii) by deleting the word "and" at the end of subsection
(n);
(iii) by replacing the period at the end of subsection (o)
with the words "; and"; and
(iv) by inserting the following new subsection (p):
"(p) Liens on the property of Finsub incurred pursuant
to the Receivables Program Documentation.".
(e) Section 6.04(c) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"(c) Terex may make the Acquisition, the Powerscreen
Acquisition and the Cedarapids Acquisition; provided, however, that
Terex complies with, and causes its Subsidiaries to comply with, the
relevant provisions of Section 5.11 and the Security Documents;".
(f) Section 6.05(a) of the Credit Agreement is hereby amended as
follows:
(i) by inserting the words "or Finsub" following the
words "Inactive Subsidiary" in clause (i);
(ii) by inserting the parenthetical "(other than
Finsub)" following the words "wholly owned Subsidiary" in
clause (ii)(A) and the first occurrence of the words "wholly
owned Subsidiary" in clause (ii)(B); and
(iii) by replacing the words "and (ii)" in the seventh
line of such subsection with the words ", (ii)(A) Terex and
any Subsidiary (other than an Inactive Subsidiary) may sell
Program Receivables to Finsub and (B) Finsub may sell
Program Receivables pursuant to the Receivables Program
Documentation and (iii)".
(g) Section 6.06(b) of the Credit Agreement is hereby amended by
inserting prior to the period at the end of such subsection the words ", except,
in the case of Finsub, for encumbrances or restrictions existing pursuant to the
Receivables Program Documentation".
(h) Section 6.07 of the Credit Agreement is hereby amended by inserting
prior to the period at the end of such section the words " or any transaction
between Terex or any Subsidiary (other than an Inactive Subsidiary) and Finsub
pursuant to the Receivables Program".
(i) Section 6.08 of the Credit Agreement is hereby amended by inserting
prior to the period at the end of such section the words " and 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".
(j) Article VIII of the Credit Agreement is hereby amended by inserting
the words "and the Program Receivables" after the word "Collateral" in the last
sentence of the first paragraph of such Article VIII.
SECTION 2. Consent.
The Required Lenders hereby consent to the amendment and
restatement of the Tranche C Credit Agreement in order to provide for up to an
additional $125,000,000 of senior secured indebtedness and related matters;
provided that such amendment and restatement is substantially in the form of
Exhibit A hereto. The Required Lenders hereby consent to an amendment to the
Borrower's Indenture dated as of March 31, 1998, among the Borrower, the
subsidiary guarantors party thereto and United States Trust Company of New York,
as trustee, whereby the maturity date of the senior subordinated notes governed
by such indenture is accelerated by exactly one week to March 25, 2008.
SECTION 3. Representations and Warranties.
Each of the Borrowers represents and warrants to each other
party hereto that, after giving effect to this Amendment, (a) the
representations and warranties set forth in Article III of the Credit Agreement
are true and correct in all material respects on and as of the Cedarapids
Closing Date, except to the extent such representations and warranties expressly
relate to an earlier date, and (b) no Default or Event of Default has occurred
and is continuing.
SECTION 4. Effectiveness.
This Amendment shall become effective as of the date that the
Administrative Agent or its counsel shall have received counterparts of this
Amendment which, when taken together, bear the signatures of each of the
Borrowers and the Required Lenders; provided, however, that this Amendment shall
not become effective prior to the Cedarapids Closing Date.
SECTION 5. Effect of Amendment.
Except as expressly set forth herein, this Amendment shall not
by implication or otherwise limit, impair, constitute a waiver of, or otherwise
affect the rights and remedies of the Lenders, the Swingline Lender, any Issuing
Bank, the Collateral Agent or the Administrative Agent, under the Credit
Agreement or any other Loan Document, and shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Loan Document, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect. Nothing herein shall be deemed to entitle any Borrower to a consent
to, or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document in similar or different circumstances. This
Amendment shall apply and be effective only with respect to the provisions of
the Credit Agreement specifically referred to herein.
SECTION 6. Counterparts.
This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. Delivery of any
executed counterpart of a signature page of this Amendment by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 7. Applicable Law.
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Headings.
The headings of this Amendment are for purposes of reference
only and shall not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
TEREX CORPORATION,
by
/s/ Eric I. Cohen
Name: Eric I. Cohen
Title: Senior Vice President
TEREX EQUIPMENT LIMITED,
by
/s/ Eric I. Cohen
Name: Eric I. Cohen
Title: Director
P.P.M. S.A.,
by
/s/ Eric I. Cohen
Name: Eric I. Cohen
Title: Director
TEREX MINING (AUSTRALIA) PTY. LTD.,
(f/k/a UNIT RIG (AUSTRALIA) PTY. LTD.),
by
/s/ Eric I. Cohen
Name: Eric I. Cohen
Title: Director
P.P.M. Sp.A,
by
/s/ Fil Filipov
Name: Fil Filipov
Title: President & Director
PICADILLY MASCHINENHANDEL
GMBH & CO. KG,
by
/s/ Eric I. Cohen
Name: Eric I. Cohen
Title: Managing Director
of Managing Partner
'
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent,
Collateral Agent and Swingline Lender,
by
/s/ Kristin Lepri
Name: Kristin Lepri
Title: Associate
by
/s/ Chris Cunningham
Name: Chris Cunningham
Title: Director
ABN AMRO BANK N.V.,
by
/s/ Donald Sutton
Name: Donald Sutton
Title: Vice President
by
/s/ John Hennessy
Name: John Hennessy
Title: Senior Vice President
ARES LEVERAGED INVESTMENT FUND, L.P.,
By: ARES MANAGEMENT, L.P., its General Partner,
by
/s/ David A. Sachs
Name: David A. Sachs
Title: Vice President
ARES LEVERAGED INVESTMENT FUND II, L.P.,
By:ARES MANAGEMENT II, L.P., its General Partner,
by
/s/ David A. Sachs
Name: David A. Sachs
Title: Vice President
BANKBOSTON,
by
/s/ Christopher T. Phelan
Name: Christopher T. Phelan
Title: Director
BANK OF TOKYO - MITSUBISHI
TRUST COMPANY,
by
/s/ Akiko M. Sakamoto
Name: Akiko M. Sakamoto
Title: Assistant Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
by
/s/ Koren Volk
Name: Koren Volk
Title: Authorized Signatory
CIBC, INC.,
by
/s/ Ihor Zaluckyj
Name: Ihor Zaluckyj
Title: Executive Director
CIBC World Markets Corp., as Agent
CREDIT LYONNAIS NEW YORK BRANCH,
by
/s/ Scott R. Chappelka
Name: Scott R. Chappelka
Title: Vice President
CYPRESSTREE INVESTMENT PARTNERS I, LTD.,
By: CypressTree Investment Management Company,
Inc., as Portfolio Manager,
by
/s/ Philip C. Robbins
Name: Philip C. Robbins
Title: Principal
DEBT STRATEGIES FUND II, INC.,
by
/s/ Paul Travers
Name: Paul Travers
Title: Authorized Signatory
DEUTSCHE FINANCIAL SERVICES CORPORATION,
by
/s/ Edwin G. Chewning
Name: Edwin G. Chewning
Title: Vice President
FIRST UNION NATIONAL BANK,
by
/s/ Joel Thomas
Name: Joel Thomas
Title: Vice President
HSBC BANK USA,
by
/s/ Susan L. LeFevre
Name: Susan L. LeFevre
Title: Authorized Signatory
KZH CYPRESSTREE-1 LLC,
by
/s/ Peter Chin
Name: Peter Chin
Title: Authorized Agent
KZH PAMCO LLC,
by
/s/ Peter Chin
Name: Peter Chin
Title: Authorized Agent
KZH SHOSHONE LLC,
by
/s/ Peter Chin
Name: Peter Chin
Title: Authorized Agent
MERRILL LYNCH GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO,
By: Merrill Lynch Asset Management, L.P., as
Investment Advisor,
by
/s/ Paul Travers
Name: Paul Travers
Title: Authorized Signatory
MERRILL LYNCH PRIME RATE PORTFOLIO,
By: Merrill Lynch Asset Management, L.P., as
Investment Advisor,
by
/s/ Paul Travers
Name: Paul Travers
Title: Authorized Signatory
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.,
by
/s/ Paul Travers
Name: Paul Travers
Title: Authorized Signatory
SENIOR DEBT PORTFOLIO,
By: Boston Management and Research, as
Investment Advisor,
by
/s/ Payson F. Swaffield
Name: Payson F. Swaffield
Title: Vice President
EATON VANCE SENIOR INCOME TRUST,
By: Eaton Vance Management,
as Investment Advisor
by
/s/ Payson F. Swaffield
Name: Payson F. Swaffield
Title: Vice President
SENIOR HIGH INCOME PORTFOLIO, INC.,
by
/s/ Paul Travers
Name: Paul Travers
Title: Authorized Signatory
THE CIT GROUP / EQUIPMENT FINANCE
by
/s/ Daniel E. A. Nichols
Name: Daniel E. A. Nichols
Title: Assistant Vice President