EXHIBIT A
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AMENDED AND RESTATED CREDIT AGREEMENT
dated as of July 3, 2002
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 XXXXXX INC.,
as Co-Lead Arrangers
and Joint Bookrunners,
XXXXXXX XXXXX BARNEY INC.,
as Syndication Agent,
and
DRESDNER BANK AG, NEW YORK BRANCH
and
FLEET NATIONAL BANK,
as Co-Documentation Agents
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TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Terms Generally................................................30
SECTION 1.03. Exchange Rates.................................................30
SECTION 1.04. Classification of Loans and Borrowings.........................31
ARTICLE II
The Credits
SECTION 2.01. Commitments and Loans..........................................31
SECTION 2.02. Loans ......................................................31
SECTION 2.03. Borrowing Procedure............................................34
SECTION 2.04. Evidence of Debt; Repayment of Loans...........................35
SECTION 2.05. Fees ......................................................35
SECTION 2.06. Interest on Loans..............................................37
SECTION 2.07. Default Interest...............................................38
SECTION 2.08. Alternate Rate of Interest.....................................38
SECTION 2.09. Termination and Reduction of Commitments.......................38
SECTION 2.10. Conversion and Continuation of Borrowings.....................39
SECTION 2.11. Repayment of Term Borrowings...................................40
SECTION 2.12. Prepayment.....................................................42
SECTION 2.13. Mandatory Prepayments..........................................42
SECTION 2.14. Reserve Requirements; Change in Circumstances..................44
SECTION 2.15. Change in Legality.............................................46
SECTION 2.16. Indemnity......................................................46
SECTION 2.17. Pro Rata Treatment.............................................47
SECTION 2.18. Sharing of Setoffs.............................................47
SECTION 2.19. Payments ......................................................48
SECTION 2.20. Taxes ......................................................48
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate..........................................50
SECTION 2.22. Swingline Loans................................................52
SECTION 2.23. Letters of Credit..............................................53
SECTION 2.24. A/C Fronted Loans..............................................57
SECTION 2.25. Reporting Requirements of A/C Fronting Lenders
and Issuing Banks.........................................59
SECTION 2.26. Additional Issuing Banks.......................................60
SECTION 2.27. Incremental Term Loan Commitments..............................60
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers...........................................61
Table of Contents, p. 2
SECTION 3.02. Authorization..................................................61
SECTION 3.03. Enforceability.................................................62
SECTION 3.04. Governmental Approvals.........................................62
SECTION 3.05. Financial Statements...........................................62
SECTION 3.06. No Material Adverse Change.....................................62
SECTION 3.07. Title to Properties; Possession Under Leases...................62
SECTION 3.08. Subsidiaries...................................................63
SECTION 3.09. Litigation; Compliance with Laws...............................63
SECTION 3.10. Agreements.....................................................63
SECTION 3.11. Federal Reserve Regulations....................................64
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act.....64
SECTION 3.13. Use of Proceeds................................................64
SECTION 3.14. Tax Returns....................................................64
SECTION 3.15. No Material Misstatements......................................64
SECTION 3.16. Employee Benefit Plans.........................................64
SECTION 3.17. Environmental Matters..........................................65
SECTION 3.18. Insurance......................................................66
SECTION 3.19. Security Documents.............................................66
SECTION 3.20. Location of Real Property and Leased Premises..................67
SECTION 3.21. Labor Matters..................................................67
SECTION 3.22. Solvency ......................................................67
ARTICLE IV
Conditions of Lending
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties...........................68
SECTION 5.02. Insurance......................................................69
SECTION 5.03. Obligations and Taxes..........................................70
SECTION 5.04. Financial Statements, Reports, etc.............................71
SECTION 5.05. Litigation and Other Notices...................................72
SECTION 5.06. Employee Benefits..............................................72
SECTION 5.07. Maintaining Records; Access to Properties and Inspections......72
SECTION 5.08. Use of Proceeds................................................73
SECTION 5.09. Compliance with Environmental Laws.............................73
SECTION 5.10. Preparation of Environmental Reports...........................73
SECTION 5.11. Further Assurances.............................................73
Table of Contents, p. 3
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness...................................................74
SECTION 6.02. Liens ......................................................76
SECTION 6.03. Sale and Lease-Back Transactions...............................77
SECTION 6.04. Investments, Loans and Advances................................78
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions......79
SECTION 6.06. Dividends and Distributions; Restrictions on Ability
of Restricted Subsidiaries to Pay Dividends...............80
SECTION 6.07. Transactions with Affiliates...................................81
SECTION 6.08. Business of Borrowers and Restricted Subsidiaries..............81
SECTION 6.09. Other Indebtedness and Agreements..............................81
SECTION 6.10. Capital Expenditures...........................................82
SECTION 6.11. Consolidated Leverage Ratio....................................82
SECTION 6.12. Consolidated Interest Coverage Ratio...........................82
SECTION 6.13. Consolidated Fixed Charge Coverage Ratio.......................82
SECTION 6.14. Senior Secured Debt Leverage Ratio.............................83
SECTION 6.15. Fiscal Year....................................................83
SECTION 6.16. Designation of Unrestricted Subsidiaries.......................83
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent and the Collateral Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ......................................................89
SECTION 9.02. Survival of Agreement..........................................90
SECTION 9.03. Binding Effect.................................................90
SECTION 9.04. Successors and Assigns.........................................90
SECTION 9.05. Expenses; Indemnity............................................94
SECTION 9.06. Right of Setoff................................................95
SECTION 9.07. Applicable Law.................................................95
SECTION 9.08. Waivers; Amendment.............................................96
SECTION 9.09. Interest Rate Limitation.......................................96
Table of Contents, p. 4
SECTION 9.10. Entire Agreement...............................................97
SECTION 9.11. WAIVER OF JURY TRIAL...........................................97
SECTION 9.12. Severability...................................................97
SECTION 9.13. Counterparts...................................................97
SECTION 9.14. Headings ......................................................98
SECTION 9.15. Jurisdiction; Consent to Service of Process....................98
SECTION 9.16. Conversion of Currencies.......................................98
SECTION 9.17. Confidentiality................................................99
SECTION 9.18. European Monetary Union........................................99
SECTION 9.19. Rights of Additional L/C Issuing Banks........................100
SECTION 9.20. Effect of Restatement.........................................100
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 1.01(f) Certain Countries
Schedule 2.01 Lenders; Commitments
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 of Assignment 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 Form of Opinion of Xxxx Xxxxx
Exhibit K Form of Reaffirmation of Guarantee and Security Documents
AMENDED AND RESTATED CREDIT AGREEMENT dated as of
July 3, 2002 (this "Agreement"), among TEREX CORPORATION,
a Delaware corporation ("Terex"), NEW TEREX HOLDINGS UK
LIMITED, a limited company organized under the laws of
England (the "Scottish Borrower"), TEREX INTERNATIONAL
FINANCIAL SERVICES COMPANY, a company organized under the
laws of the Republic of Ireland (the "European Borrower"),
POWERSCREEN INTERNATIONAL LIMITED, 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 New South
Wales, Australia (the "Australian Borrower"), TEREX
GERMANY 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 ("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.
2
"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 Multicurrency 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, and
the initial A/C Fronting Commitment of the Australian Fronting Lender shall be
$25,000,000.
"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, 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.
3
"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 any letter of credit facility
entered into by Terex, one or more of the Subsidiary Borrowers and one or more
Additional L/C Issuing Banks from time to time 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 that shall issue
Additional Letters of Credit pursuant to an Additional L/C Facility.
"Additional Letter of Credit" shall mean each letter of credit issued
pursuant to an 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 Term Loan 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 Existing Senior 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, 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.
"Agents" shall have the meaning assigned to such term in Article VIII.
4
"Aggregate Domestic Revolving Credit Exposure" shall mean the aggregate
amount of the Lenders' Domestic Revolving Credit Exposures.
"Aggregate Multicurrency Revolving Credit Exposure" shall mean the
aggregate amount of the Lenders' Multicurrency 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 Multicurrency
Revolving Loans and Multicurrency Letters of Credit, Pounds and Euro, (b) with
respect to A/C Fronted Loans and Multicurrency Letters of Credit, Australian
Dollars and Euro, and (c) with respect to Multicurrency 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.
5
"Amendment Agreement" shall mean the Amendment Agreement dated as of
the date of this Agreement, among the Borrowers, the Administrative Agent, the
Collateral Agent, the Issuing Banks, the Lenders and certain lenders under the
Existing Credit Agreements.
"Applicable Percentage" shall mean, for any day (a) with respect to any
Term Loan, (i) 2.00% per annum, in the case of a Eurocurrency Term Loan, or (ii)
1.00% per annum, in the case of an ABR Term Loan, and (b) with respect to any
Eurocurrency Revolving Loan, ABR Revolving 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", "ABR
Spread--Revolving Loans", "A/C Fronted Base Rate 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 A/C Fronted
Consolidated Leverage Spread-- ABR Spread-- Base Rate Facility Fee
Ratio Revolving Loans Revolving Loans Loan Spread Percentage 1/
--------------------- --------------- --------------- ------------ -------------
Category 1
-----------
Greater than or equal to 2.50% 1.50% 1.00% 0.500%
4.50 to 1.00
Category 2
-----------
Greater than or equal to 2.25% 1.25% 0.750% 0.500%
4.00 to 1.00 but less
than 4.50 to 1.00
Category 3
------------
Greater than or equal to 1.75% 0.75% 0.250% 0.500%
3.50 to 1.00 but less
than 4.00 to 1.00
Category 4
-------------
Greater than or equal to 1.625% 0.625% 0.125% 0.375%
3.00 to 1.00 but less
than 3.50 to 1.00
Category 5
----------
Less than 3.00 to 1.00 1.375% 0.375% 0.000% 0.375%
================================================================================
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) and Section 5.04(c), respectively, 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
--------
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 is less than ion 15%. n
6
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 the lawful currency of Australia.
"Australian Fronting Lender" shall mean Credit Suisse First Boston,
acting through its Melbourne 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
Restatement 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.
7
"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, extension or renewal 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 35% 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 Multicurrency
Revolving Loans, Domestic Revolving Loans, Term Loans, A/C Fronted Loans,
Swingline Loans or Incremental Term Loans and, when used in reference to any
Commitment, refers to whether
8
such Commitment is a Multicurrency Revolving Credit Commitment, Domestic
Revolving Credit Commitment, A/C Fronting Commitment, Swingline Commitment or
Incremental Term Loan 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
Multicurrency Revolving Credit Commitment, Domestic Revolving Credit Commitment,
Term Loan Commitment, A/C Fronting Commitment, Swingline Commitment and
Incremental Term Loan Commitment (if any).
"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 May 2002.
"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 or Synthetic 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
9
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 and Synthetic 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 Existing Credit
Agreements 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
10
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 Article
IV.
"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 L/C Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Domestic Letters of Credit at such
time and (b) the aggregate principal amount of all Domestic L/C Disbursements
that have not yet been reimbursed at such time. The Domestic L/C Exposure of any
Domestic Revolving Credit Lender at any time shall mean its Pro Rata Percentage
of the total Domestic L/C Exposure at such time.
"Domestic Revolving Credit Borrowing" shall mean a Borrowing comprised
of Domestic Revolving Loans.
"Domestic Revolving Credit Commitment" shall mean, with respect to each
Lender, the commitment of such Lender to make Domestic Revolving Loans and to
acquire participations in Domestic L/C Disbursements and Swingline Loans
hereunder as set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender assumed its Domestic Revolving Credit Commitment,
as applicable, as the same may be
11
(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. The aggregate principal amount of the Domestic
Revolving Credit Commitments on the Restatement Closing Date is $190,000,000.
"Domestic Revolving Credit Exposure" shall mean, with respect to any
Lender at any time, the sum of (a) the aggregate principal amount of all
outstanding Domestic Revolving Loans of such Lender at such time and (b) the
aggregate amount of such Lender's Domestic L/C Exposure and Swingline Exposure
at such time.
"Domestic Revolving Credit Lender" shall mean a Lender with a Domestic
Revolving Credit Commitment or an outstanding Domestic Revolving Loan.
"Domestic Revolving Loans" shall mean the revolving loans made by the
Lenders to Terex pursuant to clause (ii) of Section 2.01(a). Each Domestic
Revolving Loan shall be denominated in dollars and shall be a Eurocurrency
Revolving Loan or an ABR Revolving Loan.
"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 presence,
management, Release or threatened Release of any Hazardous Material or to health
and safety matters.
"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
12
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 and
(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.
"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
13
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 and reductions of 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, (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 Credit Agreements" shall mean (a) the Original Credit
Agreement and (b) the Tranche C Credit Agreement dated as of July 2, 1999, as
amended and restated as of July 12, 1999 and as of March 29, 2001, and as
further amended prior to the Restatement Closing Date, among Terex, the lenders
party thereto and CSFB, as administrative agent and collateral agent.
"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 Senior Subordinated Notes" shall mean Terex's (i) 8-7/8%
Senior Subordinated Notes due 2008, in an initial aggregate principal amount of
$250,000,000, (ii) 9-1/4% Senior Subordinated Notes due 2011, in an initial
aggregate principal amount of $200,000,000, and (iii) 10-3/8% Senior
Subordinated Notes due 2011, in an initial aggregate
14
principal amount of $300,000,000, issued pursuant to the Existing Subordinated
Note Indentures.
"Existing Subordinated Note Indentures" shall mean the indentures dated
as of March 31, 1998, as of March 9, 1999, as of March 29, 2001 and as of
December 17, 2001, as applicable, among Terex, the Guarantors identified therein
and The Bank of New York, as trustee, in each case 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.
"Facility Fee" shall have the meaning assigned to such term in Section
2.05(a).
"Federal Funds Effective Rate" shall have the meaning assigned to such
term in the definition of "Alternate Base Rate".
"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.
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
16
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 balance sheet of
Terex and its consolidated Restricted Subsidiaries.
"Guarantee Agreements" shall mean the Subsidiary Guarantee Agreement,
the Terex Guarantee Agreement and the North Atlantic 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 that (a) owns
assets having a fair market value not in excess of $100,000 in the aggregate,
(b) does not conduct any business activity and (c) is not an obligor with
respect to any Indebtedness, until such time as such Subsidiary becomes a
Subsidiary Guarantor, if ever.
"Incremental Term Lender" shall mean a Lender with an Incremental Term
Loan Commitment or an outstanding Incremental Term Loan.
"Incremental Term Loan Amount" shall mean $250,000,000.
"Incremental Term Loan Assumption Agreement" shall mean an Incremental
Term Loan Assumption Agreement in form and substance reasonably satisfactory to
the Administrative Agent and Terex, among Terex, the Administrative Agent and
one or more Incremental Term Lenders.
"Incremental Term Loan Commitment" shall mean the commitment of any
Lender, established pursuant to Section 2.27, to make Incremental Term Loans to
Terex.
"Incremental Term Loan Maturity Date" shall mean the final maturity
date of any Incremental Term Loan, as set forth in the applicable Incremental
Term Loan Assumption Agreement.
"Incremental Term Loan Repayment Date" shall mean each date regularly
scheduled for the payment of principal of any Incremental Term Loan, as set
forth in the applicable Incremental Term Loan Assumption Agreement.
"Incremental Term Loans" shall mean term loans made by one or more
Lenders to Terex pursuant to Section 2.01(b). Incremental Term Loans may be made
in the form of additional Term Loans or, to the extent permitted by Section 2.27
and provided for in the relevant Incremental Term Loan Assumption Agreement,
Other Term Loans.
17
"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 and Synthetic 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, (j) all obligations of
such person as an account party in respect of letters of credit and (k) all
obligations of such person as an account party in respect of 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 any Borrowing, and, in addition, the date of any prepayment of any
Eurocurrency Borrowing or A/C Fronted Fixed Rate Loan or conversion of any such
Borrowing or Loan to an ABR Borrowing or an A/C Fronted Base Rate Loan,
respectively.
"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, and (ii) the Revolving Credit Maturity Date or the
Term Loan Maturity Date, as applicable, (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
18
but not more than 92 days thereafter) as the Australian Borrower may elect and
(d) as to any A/C Fronted Fixed Rate 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 entered into in the ordinary course of business
of any Borrower or any Restricted Subsidiary and not solely 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, (c) ABN Amro N.V. or (d) 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, and its
successors and assigns in such capacity.
"Judgment Currency" shall have the meaning assigned to such term in
Section 9.16.
19
"XX Xxxxx" shall mean a special purpose entity, in which Terex or a
Restricted Subsidiary owns an equity interest, with the balance owned by one or
more financial institutions, formed primarily for the purpose of financing
purchases by customers of Terex and the Restricted Subsidiaries of goods and
services offered by Terex and its Subsidiaries.
"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. An L/C Disbursement shall be a
"Domestic L/C Disbursement" if made in respect of a Domestic Letter of Credit
and a "Multicurrency L/C Disbursement" if made in respect of a Multicurrency
Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the Domestic L/C
Exposure and (b) the Multicurrency L/C Exposure. 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 (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". A Letter of Credit shall be a
"Domestic Letter of Credit" if issued or deemed issued under the Domestic
Revolving Credit Commitments and shall be a "Multicurrency Letter of Credit" if
issued or deemed issued under the Multicurrency Revolving Credit Commitments.
"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.
20
"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, each Incremental Term Loan
Assumption Agreement, the Indemnity, Subrogation and Contribution Agreement and
the Reaffirmation of Guarantee and Security Documents.
"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.
"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) of the Original
Credit Agreement (as it read as of March 6, 1998) or pursuant to Section 5.11,
each substantially in the form of Exhibit F.
"Multicurrency L/C Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Multicurrency Letters of Credit
denominated in dollars at such time, (b) the Dollar Equivalent of the aggregate
undrawn amount of all outstanding Multicurrency Letters of Credit denominated in
Alternative Currencies at such time, (c) the aggregate principal amount of all
L/C Disbursements in respect of Multicurrency 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 Multicurrency Letters of Credit denominated in Alternative Currencies that
have not yet been reimbursed at such time. The Multicurrency L/C Exposure of any
Revolving Credit Lender at any time shall mean its Pro Rata Percentage of the
total Multicurrency L/C Exposure at such time.
"Multicurrency Revolving Credit Borrowing" shall mean a Borrowing
comprised of Multicurrency Revolving Loans.
"Multicurrency Revolving Credit Commitment" shall mean, with respect to
each Lender, the commitment of such Lender to make Multicurrency Revolving Loans
and to acquire participations in Multicurrency L/C Disbursements and A/C Fronted
Loans
21
hereunder as set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender assumed its Multicurrency 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. The aggregate
principal amount of the Multicurrency Revolving Credit Commitments on the
Restatement Closing Date is $110,000,000.
"Multicurrency Revolving Credit Exposure" shall mean, with respect to
any Lender at any time, the sum of (a) the aggregate principal amount of all
outstanding Multicurrency Revolving Loans of such Lender at such time
denominated in dollars, (b) the Dollar Equivalent of the aggregate principal
amount of all outstanding Multicurrency Revolving Loans of such Lender that are
Alternative Currency Loans at such time and (c) the aggregate amount of such
Lender's Multicurrency L/C Exposure and A/C Fronted Exposure at such time.
"Multicurrency Revolving Credit Lender" shall mean a Lender with a
Multicurrency Revolving Credit Commitment or an outstanding Multicurrency
Revolving Loan.
"Multicurrency Revolving Loans" shall mean the revolving loans made by
the Lenders to any Borrower pursuant to clause (iii) of Section 2.01(a).
Multicurrency Revolving Loans may be denominated in dollars or Alternative
Currencies.
"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
22
(b) with respect to any 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.
"North Atlantic Guarantee Agreement" shall mean the North Atlantic
Guarantee Agreement dated as of October 16, 2000, among Terex Equipment Limited,
Powerscreen (formerly named Powerscreen International plc), the European
Borrower and CSFB.
"Obligations" shall mean all obligations defined as "Obligations" in
any of the Guarantee Agreements and the Security Documents.
"Original Credit Agreement" shall mean the Credit Agreement dated as of
March 6, 1998, as amended and restated as of March 29, 2001, and as further
amended prior to the Restatement Closing Date, among the borrowers party
thereto, the lenders party thereto and CSFB, as administrative agent and
collateral agent.
"Other Term Loans" shall have the meaning assigned to such term in
Section 2.27(a).
"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.
"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 $15,000,000, (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
23
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(f) 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 $1,000,000 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
24
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 "GPB" shall mean pounds sterling in lawful currency of
the United Kingdom.
"Prime Rate" shall have the meaning assigned to such term in the
definition of the term "Alternate Base Rate".
"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 Aggregate Domestic Revolving Credit Commitments or
the Aggregate Multicurrency Revolving Credit Commitments, as the case may be,
represented by such Lender's Domestic Revolving Credit Commitment or
Multicurrency Revolving Credit Commitment.
"Program Receivables" shall mean all trade receivables and related
contract rights originated and owned by Terex 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 or Synthetic 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.
"Reaffirmation of Guarantee and Security Documents" shall mean the
Reaffirmation of Guarantee and Security Documents, substantially in the form of
Exhibit K, among Terex, the Subsidiaries party thereto and the Collateral Agent
for the benefit of the Secured Parties.
25
"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 Terex; provided, that all governing terms and conditions
(including, without limitation, any terms or conditions providing for recourse
to Terex 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 that is the same, similar 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.
"Repayment Date" shall have the meaning given such term in Section
2.11. Unless the context shall otherwise require, the term "Repayment Date"
shall include any Incremental Term Loan Repayment Dates.
"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
26
Exposure and unused Revolving Credit Commitments and Term Loan 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 and Term Loan
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 July 3, 2002.
"Restricted Subsidiary" shall mean (i) each direct or indirect
Subsidiary of Terex that is not an Unrestricted Subsidiary of Terex on the
Restatement Closing Date and (ii) each direct or indirect Subsidiary of Terex
organized or acquired after the Restatement Closing Date that has not been
designated an Unrestricted Subsidiary in accordance with the provisions of
Section 6.16. 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 Multicurrency Revolving
Credit Borrowing or a Domestic Revolving Credit Borrowing.
"Revolving Credit Commitment" shall mean a Multicurrency Revolving
Credit Commitment or a Domestic Revolving Credit Commitment.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the sum of such Lender's Domestic Revolving Credit Exposure and
Multicurrency Revolving Credit Exposure.
"Revolving Credit Lender" shall mean a Multicurrency Revolving Credit
Lender or a Domestic Revolving Credit Lender.
"Revolving Credit Maturity Date" shall mean July 3, 2007.
"Revolving Loans" shall mean the Domestic Revolving Loans and the
Multicurrency Revolving Loans.
"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.
27
"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.
"Senior Secured Debt" shall mean as of any date of determination the
aggregate amount of outstanding Loans on such date under, and as defined in,
this Agreement. For purposes of calculating the Senior Secured Debt Leverage
Ratio on any date, the amount of Senior Secured 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.
"Senior Secured Debt Leverage Ratio" shall mean, as of any date of
determination, the ratio of (a) Senior Secured 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 Senior Secured Debt Leverage
Ratio as of any date, if any portion of the Senior Secured 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 Senior Secured Debt
denominated in such other currency.
"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
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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 Domestic 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.
"Synthetic Lease" shall mean a lease of property or assets (other than
inventory) designed to permit the lessee (a) to claim depreciation on such
property or assets under U.S. tax law and (b) to treat such lease as an
operating lease or not to reflect the leased property or assets on the lessee's
balance sheet under GAAP.
"Synthetic Lease Obligations" shall mean, as to any person, an amount
equal to the sum of (a) the obligations of such person to pay rent or other
amounts under any Synthetic Lease which are attributable to principal and,
without duplication, (b) the amount of any purchase price payment under any
Synthetic Lease assuming the lessee exercises the option to purchase the leased
property at the end of the lease term.
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"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 Borrowing" shall mean a Borrowing comprised of Term Loans.
"Term Loan Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Term Loans hereunder as set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed
its Term Loan 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. The
total amount of the initial Term Loan Commitments is $375,000,000. Unless the
context shall otherwise require, after the effectiveness of any Incremental Term
Loan Commitment, the term "Term Loan Commitment" shall include such Incremental
Term Loan Commitment.
"Term Loan Maturity Date" shall mean July 3, 2009.
"Term Loans" shall mean the Term Loans made by the Lenders to Terex
pursuant to this Agreement. Each Term Loan shall be either a Eurocurrency Term
Loan or an ABR Term Loan. Unless the context shall otherwise require, the term
"Term Loans" shall include any Incremental 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 Domestic Revolving Credit Commitment" shall mean, at any time,
the aggregate amount of the Domestic Revolving Credit Commitments, as in effect
at such time.
"Total Multicurrency Revolving Credit Commitment" shall mean, at any
time, the aggregate amount of the Multicurrency Revolving Credit Commitments, as
in effect at such time.
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
"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.
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"Unrestricted Subsidiary" shall mean EarthKing Performance and Safety
Solutions, Inc., Econstructionparts, LLC and any Subsidiary of Terex that has
been designated as an Unrestricted Subsidiary by Terex pursuant to and in
compliance with Section 6.16. No Unrestricted Subsidiary may own any capital
stock of a Restricted Subsidiary.
"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 P.P.M. Cranes,
Inc. and P.P.M. S.A.S., 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 Restatement 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.
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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) Subject to the terms and
conditions and relying upon the representations and warranties herein set forth,
each Lender agrees, severally and not jointly, (i) to make Term Loans to Terex,
in dollars, on the Restatement Closing Date in accordance with the terms hereof,
in an aggregate principal amount not to exceed its Term Loan Commitment, (ii) to
make Domestic Revolving Loans to Terex, in dollars, 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 Domestic Revolving
Credit Commitment of such Lender in accordance with the terms hereof, in an
aggregate principal amount at any time outstanding that will not result in such
Lender's Domestic Revolving Credit Exposure exceeding such Lender's Domestic
Revolving Credit Commitment, and (iii) to make Multicurrency 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 Multicurrency 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,
the 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 Multicurrency Revolving Credit
Exposure exceeding such Lender's Multicurrency Revolving Credit Commitment.
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. Amounts paid or prepaid in respect of Term
Loans may not be reborrowed.
(b) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally
and not jointly, if such Lender has so committed pursuant to Section 2.27, to
make Incremental Term Loans to Terex, in an aggregate principal amount not to
exceed its Incremental Term Loan Commitment and otherwise on the terms and
subject to the conditions set forth in any Incremental Term Loan Assumption
Agreement to which such Lender may become a party. Amounts paid or prepaid in
respect of Incremental Term Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan (other than A/C Fronted Loans and
Swingline Loans) shall be made as part of a Borrowing consisting of Loans made
by the Lenders ratably in accordance with their applicable Term Loan Commitments
or 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
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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) (except with respect to any Incremental
Term Loan, to the extent otherwise provided in the applicable Incremental Term
Loan Assumption Agreement) 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
33
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, the Term Loan Maturity Date or the Incremental
Term Loan 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 Domestic Revolving Credit Lender or Multicurrency Revolving
Credit Lender, as applicable, of such L/C Disbursement and its Pro Rata
Percentage thereof. In the case of Letters of Credit denominated in dollars,
each applicable 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 Domestic Revolving Loan or Multicurrency
Revolving Loan, as applicable, 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 Pounds or Euro,
each Multicurrency 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 Multicurrency 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 Multicurrency
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 Multicurrency
Revolving Loan of such Lender and such payment shall be deemed to have reduced
the Multicurrency 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.
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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 Term Borrowing, a Domestic
Revolving Credit Borrowing or a Multicurrency Revolving Credit Borrowing, (ii)
if such Borrowing is to be a Multicurrency Revolving Credit Borrowing, whether
such Borrowing is to be a Dollar Borrowing or an Alternative Currency Borrowing;
(iii) if such Borrowing is to be denominated in dollars, whether it is to be a
Eurocurrency Borrowing or an ABR Borrowing; (iv) the date of such Borrowing
(which shall be a Business Day); (v) 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)); (vi) the amount of such Borrowing (which
shall be specified in dollars, even if such Borrowing is to be made in an
Alternative Currency); (vii) if such Borrowing is to be an Alternative Currency
Borrowing, the Alternative Currency of such Borrowing; and (viii) 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 is made as to
whether a Revolving Credit Borrowing is to be a Domestic Revolving Credit
Borrowing or a Multicurrency Revolving Credit Borrowing, then such Borrowing
shall be deemed to be a Domestic Revolving Credit Borrowing if denominated in
dollars and a Multicurrency Revolving Credit Borrowing if denominated in an
Alternative Currency. 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
35
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 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 Business 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
36
Revolving Credit Commitments of such Lender (but not the A/C Fronting
Commitments or the Swingline Commitments) during the preceding quarter (or other
period commencing on the Restatement Closing Date or ending with the Revolving
Credit Maturity Date or ending with 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 shall
commence to accrue on and including the Restatement 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 from time to time agreed to in
writing by the Borrowers and the Administrative Agent (the "Administrative Agent
Fees").
(c) Each Borrower agrees to pay (i) to each Domestic Revolving Credit
Lender and each Multicurrency Revolving Credit Lender, through the
Administrative Agent, on the last Business 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 daily
aggregate Domestic L/C Exposure and Multicurrency L/C Exposure, respectively
(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 ending with
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 Business 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
commencing on the Restatement Closing Date or ending with the Revolving Credit
Maturity Date or ending with 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 Multicurrency 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 Multicurrency 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.
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(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 Business 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
Restatement Closing Date or ending with the Revolving Credit Maturity Date or
ending with 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 365 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 any Loans outstanding
on the Restatement Closing Date under the Existing Credit Agreements as a result
of the Amendment Agreement shall be effective on and as of the Restatement
Closing Date.
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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 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
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 Term
Loan Commitments (other than any Incremental Term Loan Commitments) shall
automatically terminate at 5:00 p.m., New York City time, on the Restatement
Closing Date. 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. Any Incremental Term Loan Commitment shall
terminate as provided in the applicable Incremental Term Loan Assumption
Agreement.
(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 Term
Loan Commitments, the Domestic Revolving Credit Commitments or the Multicurrency
Revolving Credit Commitments; provided, however, that (i) each partial reduction
of the Term Loan Commitments, the Domestic Revolving Credit Commitments or the
Multicurrency Revolving Credit
39
Commitments shall be in an integral multiple of $1,000,000 and in a minimum
amount of $5,000,000, (ii) the Total Domestic Revolving Credit Commitment shall
not be reduced to an amount that is less than the Aggregate Domestic Revolving
Credit Exposure at the time and (iii) the Total Multicurrency Revolving Credit
Commitment shall not be reduced to an amount that is less than the Aggregate
Multicurrency Revolving Credit Exposure at the time.
(c) Each reduction in the Term Loan Commitments or the Revolving Credit
Commitments hereunder shall be made ratably among the Lenders in accordance with
their applicable 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;
40
(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
Term Borrowing that would end later than a 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 Term Borrowings with Interest Periods ending on or prior
to such Repayment Date and (B) the ABR Term Borrowings would not be at
least equal to the principal amount of Term Borrowings to be paid on
such 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 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 "Repayment Date"), a principal amount of
the Term Loans (as adjusted from time to time
41
pursuant to Sections 2.12(b) and 2.13(f)) equal to the percentage set forth
below opposite such date of the aggregate principal amount of The Term Loans
made on the Restatement Closing 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
---- ----------
September 30, 2002 .25%
December 31, 2002 .25%
March 31, 2003 .25%
June 30, 2003 .25%
September 30, 2003 .25%
December 31, 2003 .25%
March 31, 2004 .25%
June 30, 2004 .25%
September 30, 2004 .25%
December 31, 2004 .25%
March 31, 2005 .25%
June 30, 2005 .25%
September 30, 2005 .25%
December 31, 2005 .25%
March 31, 2006 .25%
June 30, 2006 .25%
September 30, 2006 .25%
December 31, 2006 .25%
March 31, 2007 .25%
June 30, 2007 .25%
September 30, 2007 .25%
December 31, 2007 .25%
March 31, 2008 .25%
June 30, 2008 .25%
September 30, 2008 23.5%
December 31, 2008 23.5%
March 31, 2009 23.5%
Term Loan Maturity Date 23.5%
(b) To the extent not previously paid, all Term Loans shall be due and
payable on the Term Loan Maturity Date, together with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of
payment.
(c) Terex shall pay to the Administrative Agent, for the account of the
Lenders, on each Incremental Term Loan Repayment Date, a principal amount of the
Other Term Loans (as adjusted from time to time pursuant to Sections 2.12(b) and
2.13(f)) equal to the amount set forth in the applicable Incremental Term Loan
Assumption Agreement, together in each
42
case with accrued and unpaid interest on the principal amount to be paid to, but
excluding, the date of such payment.
(d ) 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 Term Loans shall be allocated pro rata
between the Term Loans and Other Term Loans (if any) and applied (i) first,
against the remaining scheduled installments of principal due in respect of the
Term Loans and Other Term Loans (if any) under Sections 2.11(a) and 2.11(c),
respectively, 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 Domestic Revolving Credit Commitments or Multicurrency
Revolving Credit Commitments, each Borrower shall repay or prepay all its
outstanding Domestic Revolving Credit Borrowings or Multicurrency Revolving
Credit Borrowings, as applicable, all outstanding Swingline Loans (in the case
of a termination of the Domestic Revolving Credit Commitments) and all
outstanding A/C Fronted Loans (in the case of a termination of the Multicurrency
Revolving Credit Commitments) on the date of such termination. In the event of
any partial reduction of the Domestic Revolving Credit Commitments or
Multicurrency Revolving Credit Commitments, then at or prior to the effective
date of such reduction, the Administrative Agent shall notify the Borrowers and
the applicable Revolving Credit Lenders of the Aggregate Domestic Revolving
Credit Exposure or Aggregate Multicurrency Revolving Credit Exposure, as
applicable, 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, (i) the Aggregate Domestic Revolving Credit Exposure would exceed
the Total Domestic Revolving Credit Commitment, (ii) the Aggregate Multicurrency
Revolving Credit Exposure would exceed the Total Multicurrency Revolving Credit
Commitment or (iii) the A/C Fronted Exposure of any A/C Fronting Lender would
exceed the A/C Fronting Commitment of such Lender, then the Borrowers shall (x)
on the date of such reduction or
43
termination of Revolving Credit Commitments or (y) 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, in each
case except to the extent that the proceeds would otherwise be required to be
used to make an offer to repurchase Existing Senior Subordinated Notes), the
outstanding Term Loans shall be prepaid in accordance with Section 2.13(f) in an
aggregate principal amount equal to 100% of such Net Cash Proceeds.
(c) 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(f) 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.
(d) 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(f), and/or (ii) to prepay outstanding
Revolving Loans, without reducing the Revolving Credit Commitments, in an
aggregate principal amount equal to 100% of such Net Cash Proceeds.
(e) 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(f) in an aggregate principal amount equal to 100% of such Casualty Proceeds
or Condemnation Proceeds, as the case may be.
(f) Each prepayment of outstanding Term Loans required to be made
pursuant to any paragraph of this Section 2.13 shall be allocated pro rata
between the Term Loans and the Other Term Loans (if any) and applied (i) first
against the remaining scheduled installments of principal due in respect of Term
Loans and Other Term Loans (if any) under Sections 2.11(a) and 2.11(c),
respectively, in the next twelve months in the order of maturity and (ii)
second, pro rata against such remaining scheduled installments of principal.
Each prepayment of Revolving Loans required to be made pursuant to paragraph (d)
above shall be allocated between the Domestic Revolving Loans and the
Multicurrency Revolving Loans as determined by Terex.
(g) 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.
44
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.
(h) To the extent possible consistent with Section 2.13(f), amounts to
be applied pursuant to this Section 2.13 to the prepayment of Term Loans and
Revolving Loans shall be applied, as applicable, first to prepay outstanding ABR
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 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 Term Loans to prepay Eurocurrency 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 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 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 (h) shall not be construed to alter the
application required by Section 2.13(f).
SECTION 2.14. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision of this Agreement, if after the
Restatement 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
45
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 Restatement Closing Date of any law, rule, regulation,
agreement or guideline regarding capital adequacy, or any change after the
Restatement 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.
46
(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 Restatement 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
47
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 Section 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 Term Loan Commitments, the Domestic Revolving Credit
Commitments or the Multicurrency 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 Domestic
Revolving Credit Commitments of the Lenders at any time, each outstanding
Swingline Loan shall be deemed to have utilized the Domestic Revolving Credit
Commitments of the Lenders (including those Lenders which shall not have made
Swingline Loans) pro rata in accordance with such respective Domestic 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 of
its Loans or participations in L/C Disbursements, Swingline Loans or A/C Fronted
Loans as a result of which the unpaid principal portion of its Loans and
participations in L/C Disbursements, Swingline Loans and A/C Fronted Loans and
accrued interest thereon shall be proportionately less than the unpaid portion
of the Loans and participations in L/C
48
Disbursements, Swingline Loans and A/C Fronted Loans and accrued interest
thereon of any other Lender, it shall be deemed simultaneously to have purchased
from such other Lender at face value, and shall promptly pay to such other
Lender the purchase price for, a participation in the Loans and participations
in L/C Disbursements, Swingline Loans and A/C Fronted Loans, as the case may be,
and interest thereon of such other Lender, so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of the principal of and accrued interest on their respective Loans and
participations in L/C Disbursements, Swingline Loans and A/C Fronted Loans;
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
Loan or L/C Disbursement 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 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
49
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
50
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
51
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 (if such Revolving Credit Commitment is a Domestic Revolving Credit
Commitment) 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.
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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 $35,000,000
in the aggregate or (ii) the Aggregate Domestic Revolving Credit Exposure, after
giving effect to any Swingline Loan, exceeding the Total Domestic 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 Domestic Revolving
Credit Lender, and each Domestic Revolving Credit Lender hereby agrees to
acquire from the Swingline Lender, a participation in such defaulted Swingline
Loan equal to such Domestic Revolving Credit Lender's Pro Rata Percentage of the
aggregate principal amount of such defaulted Swingline Loan. In furtherance of
the foregoing, each Domestic 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 Domestic
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
Domestic 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 Domestic Revolving Credit Lender
53
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 Domestic Revolving Credit Lender (and Section
2.02(c) shall apply, mutatis mutandis, to the payment obligations of the
Domestic Revolving Credit Lenders) and the Administrative Agent shall promptly
pay to the Swingline Lender the amounts so received by it from the Domestic
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 Domestic 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 either a Domestic Letter of Credit or a Multicurrency Letter of
Credit hereunder, as set forth in Schedule 1.01(d), 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, specifying whether such
Letter of Credit is to be a Domestic Letter of Credit or a Multicurrency Letter
of Credit, 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 in the case of a Domestic
Letter of Credit or an Alternative Currency in the case of a Multicurrency
Letter of Credit) 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 sum of the L/C Exposure and the Additional L/C Exposure shall
not exceed $200,000,000, (B) the Aggregate Domestic Revolving Credit Exposure
shall not exceed the Total Domestic Revolving Credit Commitment and (C) the
Aggregate
54
Multicurrency Revolving Credit Exposure shall not exceed the Total Multicurrency
Revolving Credit Commitment.
(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; provided, that a Letter of Credit may, upon the
request of the applicable Borrower, include a provision whereby such Letter of
Credit shall be renewed automatically for additional consecutive periods of 12
months or less (but not beyond the date that is five Business Days prior to the
Revolving Credit Maturity Date) unless the applicable Issuing Bank notifies the
beneficiary thereof at least 30 days prior to the then-applicable expiration
date that such Letter of Credit will not be renewed.
(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 Domestic Revolving Credit Lender (with respect to
each Domestic Letter of Credit) and to each Multicurrency Revolving Credit
Lender (with respect to each Multicurrency Letter of Credit), 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 such 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) in respect of such Letter of Credit forthwith on the date
due as provided in Section 2.02(f) and in the same currency as such L/C
Disbursement. Each Domestic Revolving Credit Lender and each Multicurrency
Revolving Credit Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Domestic Letters of
Credit and Multicurrency Letters of Credit, respectively, 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
55
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
56
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.
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(j) Cash Collateralization. If (i) any Event of Default shall occur and
be continuing or (ii) to the extent and so long as the Aggregate Domestic L/C
Exposure exceeds the Total Domestic Revolving Credit Commitment or the Aggregate
Multicurrency L/C Exposure exceeds the Total Multicurrency 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 Restatement 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 Multicurrency Revolving Credit Exposure, after giving effect to any
A/C Fronted Loan, exceeding the Total Multicurrency Revolving Credit Commitment.
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.
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(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, three Business Days before the date 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 Australian Borrower or the Italian Borrower, as
applicable, 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, (i) in the case
of the Australian Borrower, before 12:00 (noon), Sydney time, two Business Days
before the date of prepayment, or (ii) in the case of the Italian Borrower,
before 12:00 (noon), local time on the date of prepayment, in each case at the
applicable A/C Fronting Lender's address for notices specified on Schedule 2.01.
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, (i) in the case of a Loan to the
Australian Borrower, 365 days, or (ii) in the case of a Loan to the Italian
Borrower, 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, (i) in the case of a Loan to the Australian
Borrower, 365 days, or (ii) in the case of a Loan to the Italian Borrower, 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
59
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
Multicurrency 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 Multicurrency
Revolving Credit Lender, and each Multicurrency 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 Multicurrency 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
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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. Incremental Term Loan Commitments. (a) Terex may, from
time to time, by written notice to the Administrative Agent, request Incremental
Term Loan Commitments in an amount not to exceed the Incremental Term Loan
Amount from one or more Incremental Term Lenders, which may include any existing
Lender; provided that each Incremental Term Lender, if not already a Lender
hereunder, shall be subject to the approval of the Administrative Agent (which
approval shall not be unreasonably withheld and shall be given or withheld
within three Business Days and, if withheld, the reason therefor shall be
specified in writing promptly thereafter). Such notice shall set forth (i) the
amount of the Incremental Term Loan Commitments being requested (which shall be
in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal
to the remaining Incremental Term Loan Amount), (ii) the date on which such
Incremental Term Loan Commitments are requested to become effective (which shall
not be less than 10 Business Days nor more than 60 calendar days after the date
of such notice) and (iii) whether such Incremental Term Loan Commitments are to
be Term Loan Commitments or commitments to make term loans with terms different
from the Term Loans ("Other Term Loans").
(b) Terex and each Incremental Term Lender shall execute and deliver to
the Administrative Agent an Incremental Term Loan Assumption Agreement and such
other documentation as the Administrative Agent shall reasonably specify to
evidence the Term Loan Commitment of such Incremental Term Lender. Each
Incremental Term Loan Assumption Agreement shall specify the terms of the
Incremental Term Loans to be made thereunder; provided that, without the prior
written consent of the Required Lenders, the interest rate spreads in respect of
any Other Term Loans shall not exceed by more than 50 basis points the
Applicable Percentage for the Term Loans; provided further that, without the
prior written consent of Lenders holding two thirds in interest of the
outstanding Loans and unused Commitments of each adversely affected Class, (i)
the final maturity date of any Other Term Loans shall be no earlier than the
Term Loan Maturity Date and (ii) the average life to maturity of any Other Term
Loans shall be no shorter than the average life to maturity of the Term Loans.
The Administrative Agent shall promptly notify each Lender as to the
effectiveness of each Incremental Term Loan Assumption Agreement. Each of the
parties hereto hereby agrees that, upon the effectiveness of any Incremental
Term Loan Assumption Agreement, this Agreement shall be deemed amended to the
extent (but only to the extent) necessary to reflect the existence and terms of
the Incremental Term Loan Commitment evidenced thereby. Any such deemed
amendment may be memorialized in writing by the Administrative Agent with
Terex's consent (not to be unreasonably withheld) and furnished to the other
parties hereto.
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(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment
shall become effective under this Section 2.27 unless (i) on the date of such
effectiveness, the conditions set forth in paragraphs (b) and (c) of Article IV
shall be satisfied and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer
of Terex, (ii) each of the Consolidated Leverage Ratio and the Senior Secured
Debt Leverage Ratio as of the last day of the preceding fiscal quarter would be
less than the ratios required on such date by at least a 0.25 to 1.00 ratio, as
if the Incremental Term Loan Commitments requested were incurred as Incremental
Term Loans on such date (and any Indebtedness to be repaid or Permitted
Acquisitions to be made with the proceeds thereof were repaid or made on such
date), and (iii) the Administrative Agent shall have received (with sufficient
copies for each of the Incremental Term Lenders) closing certificates and
documentation reasonably specified by the Administrative Agent.
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, partnership, limited liability
company or other entity, duly incorporated or formed, as the case may be,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, (b) has all requisite 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 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 organizational 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).
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SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by each Borrower and constitutes, and each other Loan Document has
either been duly executed and delivered by each Loan Party thereto and
constitutes or, when executed and delivered by each Loan Party thereto, will
constitute, 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
(a) the filing of Uniform Commercial Code financing statements or "in lieu"
continuation statements, (b) recordation of the Mortgages and (c) 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, 1999, December 31, 2000 and December 31, 2001, 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, 2001.
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.
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(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(e) is a domestic Inactive Subsidiary on
the Restatement Closing Date.
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.
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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 the financing of
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, 2001, exceed by more than
$5,700,000 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, 2001,
exceed by more than $5,700,000 the fair market value of the assets of all such
underfunded Plans.
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(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; the present value of the
aggregate accumulated benefit liabilities of all such Foreign Pension Plans
(based on those assumptions used to fund each such Foreign Pension Plan) did
not, as of December 31, 2001, exceed by more than $55,400,000 the fair market
value of the assets of all such Foreign Pension Plans. 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 not reasonably be expected to 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
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(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 date of the Security Agreement).
(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 when the
Mortgages referred to in Section 3.04(b) are recorded in the offices specified
in Schedule 3.19(d), the Mortgages will constitute 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.
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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 domestic 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 domestic 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 obligation of each Lender to make Loans (including Swingline Loans
and A/C Fronted Loans) hereunder, and the obligation of each Issuing Bank to
issue, amend, extend or renew any Letter of Credit hereunder (each, a "Credit
Event") is subject to the satisfaction of the following conditions on the date
of each Credit Event:
(a) The Administrative Agent shall have received a notice of such
Credit Event 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
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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 Article IV.
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
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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,
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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.
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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, 6.13 and 6.14, including but not limited to a
detailed schedule of the calculation of Pro Forma Acquisition EBITDA
and Total Debt, in a form reasonably satisfactory to the Administrative
Agent;
(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;
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(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.
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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 Restatement
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 legal name, (ii)
in its jurisdiction of organization, (iii) in its corporate or legal structure
or (iv) in its Federal Taxpayer
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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 Terex and any Restricted Subsidiary (other than an
Inactive Subsidiary or Finsub (except as expressly permitted by subsection (p)
below)) may incur, create, assume or permit to exist:
(a) Indebtedness existing on the Restatement Closing Date as set forth
in Schedule 6.01;
(b) Indebtedness created under this Agreement and the other Loan
Documents;
(c) The Existing Senior Subordinated Notes and the Additional
Subordinated Notes;
(d) Indebtedness pursuant to (i) Hedging Agreements and (ii) any
Additional L/C Facility; provided, however, that (x) the Additional L/C
Exposure shall not exceed $75,000,000 at any time and (y) the sum of the
L/C Exposure and the Additional L/C Exposure shall not exceed $200,000,000
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;
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(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 Restatement Closing Date; provided
that the aggregate principal amount of any such Indebtedness pursuant to
this paragraph (j) shall not exceed $150,000,000;
(k) Indebtedness of the German Borrower and its subsidiaries; provided
that the aggregate principal amount of any such Indebtedness pursuant to
this paragraph (k) shall not exceed 9,000,000 Euro;
(l) Floor Plan Guarantees;
(m) Indebtedness incurred under (i) the Italian Facilities in an
amount not exceeding 7,000,000 Euro in the aggregate at any time
outstanding and (ii) the Irish Facilities in an amount not exceeding
GPB 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;
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(p) 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;
(q) other unsecured Indebtedness in an aggregate principal amount not
exceeding $25,000,000 at any time outstanding; and
(r) Indebtedness of Foreign Subsidiaries acquired on and after the
Restatement Closing Date under local credit lines not exceeding $40,000,000
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
Terex Equipment Limited to secure Indebtedness of Terex Equipment
Limited in respect
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of performance bonds and similar obligations in an aggregate principal
amount not to exceed 3,000,000 GBP;
(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) Liens on the assets of Powerscreen to the extent
reasonably required to fully secure the Irish Facilities; and
(o) 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
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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) investments in XX Xxxxx not exceeding $25,000,000 at any time
outstanding;
(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 its 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 its 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 on and after the
Restatement Closing Date;
(j) accounts receivable arising in the ordinary course of business from
the sale of inventory;
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(k) Guarantees constituting Indebtedness permitted by Section 6.01;
(l) investments in joint ventures in Related Businesses and investments
in Unrestricted Subsidiaries (including XX Xxxxx) 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);
(n) provided that no Default or Event of Default shall have occurred
and be continuing or would result therefrom, investments made by Terex or any
Restricted Subsidiary to the extent the consideration paid by Terex or such
Restricted Subsidiary for such investment consists of equity of Terex; and
(o) other investments in an aggregate amount (without giving effect to
any write down or write off thereof) not exceeding $75,000,000 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
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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, 6.13 and 6.14 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 Restatement 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
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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) 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 (b) 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) of any Borrower or any Restricted
Subsidiary 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, except that
(A) 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 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
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Section 6.06(a)(ii), since the Restatement 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, 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
Restatement Closing Date - September 30, 2002 5.00 to 1.00
October 1, 2002 - September 30, 2003 4.50 to 1.00
October 1, 2003 - March 31, 2004 4.25 to 1.00
April 1, 2004 - June 30, 2004 4.00 to 1.00
July 1, 2004 - September 30, 2004 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
Restatement Closing Date - September 30, 2003 2.00 to 1.00
October 1, 2003 - March 31, 2004 2.25 to 1.00
April 1, 2004 - December 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:
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Period Ratio
Restatement Closing Date - 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. Senior Secured Debt Leverage Ratio. Permit the Senior
Secured Debt 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
Restatement Closing Date - December 31, 2003 2.25 to 1.00
January 1, 2004 - September 30, 2004 2.00 to 1.00
Thereafter Not Applicable
SECTION 6.15. Fiscal Year. Permit the fiscal year of Terex to end on
a day other than December 31.
SECTION 6.16. 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, 6.13 and 6.14; 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, 6.13 and 6.14;
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(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.
(e) Terex shall not, and shall not permit any Restricted Subsidiary to,
furnish any funds to or make any investment in any Unrestricted Subsidiary or
any other person for purposes of enabling it to make any payment or distribution
that could not be made by Terex or the Restricted Subsidiaries in accordance
with the provisions of Section 6.06(a) or 6.09(b).
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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
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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
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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. 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 Agent shall have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) neither Agent shall be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) neither Agent shall have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that such Agent is required to exercise in writing
by the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 9.08), and (c)
except as expressly set forth in the Loan Documents, neither Agent shall have
any duty to disclose, nor shall it be liable for the failure to disclose, any
information relating to any Borrower or any of the Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent and/or
Collateral Agent or any of its Affiliates in any capacity. Neither Agent shall
be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.08) or in the absence of its own gross negligence or wilful misconduct.
Neither Agent shall be deemed to have knowledge of any Default unless and until
written notice thereof is given to such Agent by Terex or a Lender, and neither
Agent shall be
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responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered thereunder
or in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper person. Each Agent may also rely
upon any statement made to it orally or by telephone and believed by it to have
been made by the proper person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for the
Borrowers), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by it. Each Agent
and any such sub-agent may perform any and all its duties and exercise its
rights and powers by or through their respective directors, officers, employees,
agents and advisors ("Related Parties"). The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders,
the Issuing Bank and Terex. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor. 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 and the Issuing Bank, 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. Upon the acceptance of its appointment as Agent hereunder by a
successor, 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. The fees
payable by the Borrower to a successor Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After an Agent's resignation hereunder, the provisions of this
Article and Section 9.05 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while 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.
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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.
Each party to this Agreement acknowledges that neither the syndication
agent nor any of the co-lead arrangers shall have any separate duties,
responsibilities, obligations or authority under this Agreement in such
capacity.
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.
(000) 000-0000);
(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,
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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);
and
(c) if to a Lender, to it at its address (or telecopy number) set
forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.
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 Existing Credit Agreements, 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 or any Fee or any other amount payable under this
Agreement or any other Loan Document or the Additional L/C Facility is
outstanding and unpaid or any Letter of Credit or Additional Letter of Credit is
outstanding and unpaid and so long as the 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 (unless the
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proposed assignment is of a Revolving Credit Commitment and the proposed
assignee is not then a Revolving Credit Lender or an Affiliate thereof), (x)
Terex (unless an Event of Default specified in paragraph (b), (c), (g) or (h) of
Article VII shall have occurred and be continuing) and the Administrative Agent
(and, in the case of any assignment of a Revolving Credit Commitment, the
Issuing Banks and (in the case of a Domestic Revolving Commitment) 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
$1,000,000 (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
(except in the case of any assignment to an Affiliate or an Approved Fund) 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), the term "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
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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 accept such Assignment and Acceptance and record the
information contained therein in the Register. 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).
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(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.
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(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.
(l) Notwithstanding the foregoing, the processing and recordation fee
payable to the Administrative Agent pursuant to paragraph (b) above shall be
waived in connection with any assignment made to either (i) a person that is not
a bank, an investment bank or an Affiliate of a bank or an investment bank or
(ii) a bank, an investment bank or an Affiliate of a bank or an investment bank
(a "Financial Institution") which has, to the satisfaction of the Administrative
Agent, announced and adopted a general policy that (x) is in effect on the date
of the proposed assignment, (y) is binding on such Financial Institution and (z)
provides that such Financial Institution has agreed to waive its rights to
receive all similar processing, recordation or assignment fees which would be
payable as a result of an assignment by any person of any commitments, loans or
other extensions of credit under a syndicated leveraged credit facility.
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, agents, trustees and advisors (each
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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 MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE DATE SUCH LETTER OF CREDIT
WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE (THE "UNIFORM CUSTOMS")
AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF
NEW YORK.
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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) increase 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 pro rata sharing
provisions of Section 2.17 or the provisions of Section 9.04(j), the provisions
of this Section, the definition of the term "Required Lenders" or release the
Borrowers or any Guarantor or all or any substantial part of the Collateral,
without the prior written consent of each Lender, (iv) change the provisions of
any Loan Document in a manner that by its terms adversely affects the rights in
respect of payments due to Lenders holding Loans of one Class differently from
the rights of Lenders holding Loans of any other Class without the prior written
consent of Lenders holding a majority in interest of the outstanding Loans and
unused Commitments of each adversely affected Class, (v) modify, amend or waive
any conditions precedent set forth in Article IV, or directly or indirectly
waive any Event of Default, in each case without the written consent of Lenders
holding a majority of the Revolving Credit Commitments, (vi) (x) amend, modify
or waive compliance by Terex with the provisions of Section 6.11, 6.12, 6.13 or
6.14 or (y) amend, modify or waive any Event of Default under Article VII, in
each case if the result of such amendment, modification or waiver would be to
require or allow the making of additional Revolving Loans or Swingline Loans or
the issuance, extension or renewal of Letters of Credit, in each case without
the prior written consent of Revolving Credit Lenders holding a majority in
interest of the Revolving Credit Commitments or (vii) modify the protections
afforded to an SPC pursuant to the provisions of Section 9.04(j) without the
written consent of such SPC; 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
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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 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, the respective successors and assigns permitted hereunder and, to
the extent expressly contemplated hereby, the Indemnitees (as defined in Section
9.05(b)) 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
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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
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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
Restatement 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 the Euro, then any
amount payable hereunder by any party hereto in such currency shall instead be
payable in Euro and the amount so payable shall be determined by translating the
amount payable in such currency to Euro at the exchange rate recognized by the
European Central Bank for the purpose of integrating such currency into the
Euro, or (b) any currency and the Euro 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 Euro and (ii) any other amount payable by any party hereto in such
currency shall be payable in such currency or in Euro (in an amount determined
as set forth in clause (a)), at the election of the obligor. Prior to the
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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 integration of any
additional currency into the Euro, 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 therefrom and to
place the parties hereto in the position they would have been in had such
integration not occurred, the intent being that neither party will be adversely
affected economically as a result of such integration and that reasonable
provisions may be adopted to govern the borrowing, maintenance and repayment of
Loans denominated in any Alternative Currency or Euro after the occurrence of
the event or events described in clause (a) or (b) of the preceding sentence.
SECTION 9.19. Rights of Additional L/C Issuing Banks. Without the
consent of 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 Additional L/C Issuing Bank
would no longer be entitled to its ratable share in the benefits of the
Collateral, (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 Additional L/C Issuing Bank shall be
entitled to enforce the provisions of this Section 9.19 and shall be deemed to
have issued Additional Letters of Credit 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 Existing Credit Agreements
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
Existing Credit Agreements and the other Loan Documents as in effect immediately
prior to the Restatement Closing Date (except as provided for herein and in the
Amendment Agreement with respect to the borrowing of the Term Loans and the
prepayment of the outstanding term loans under the Existing Credit Agreements),
(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.
