EXHIBIT 10.4
GLOBAL ASSIGNMENT AND AMENDMENT AGREEMENT
dated as of July 12, 1999 (this "Agreement"), among
TEREX CORPORATION, a Delaware corporation (the
"Borrower"), the LENDERS listed on the signature
pages hereof under the captions "Existing Lenders"
(the "Existing Lenders") and "Additional Lenders"
(the "Additional Lenders", and, together with the
Existing Lenders, the "Lenders"), CREDIT SUISSE FIRST
BOSTON, a bank organized under the laws of
Switzerland and acting through its New York branch,
as administrative agent (in such capacity, the
"Administrative Agent") and collateral agent (in such
capacity, the "Collateral Agent") for the Lenders.
A. The Borrower, the Existing Lenders, the Administrative Agent and the
Collateral Agent are parties to a Tranche C Credit Agreement dated as of July 2,
1999 (the "Original Credit Agreement").
B. The Existing Lenders wish to assign a portion of their interests in
the outstanding loans (if any) and commitments to make such loans under the
Original Credit Agreement to the Additional Lenders, and the Additional Lenders
are willing to accept such assignments.
C. The Borrower has requested, and the other parties hereto have
agreed, upon the terms and subject to the conditions set forth or referred to
herein, that the Original Credit Agreement be amended and restated upon the
effectiveness of the assignments referred to in paragraph B above in the form of
the Amended and Restated Tranche C Credit Agreement set forth as Exhibit A
hereto (the "Restated Credit Agreement").
D. Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not defined herein
shall have the meanings assigned to such terms in the Restated Credit Agreement.
SECTION 2. Assignments. (a) On and as of the Assignment Date (as defined in
Section 10 below), each of the Existing Lenders and Additional Lenders shall
sell, assign and transfer, or purchase and assume, as the case may be, such
interests in (i) the Commitments (as defined in the Original Credit Agreement)
and (ii) the outstanding Loans (as defined in the Original Credit Agreement), in
each case as shall be necessary in order that, after giving effect to all such
assignments and purchases, the Commitments and the Loans will be held by the
Existing Lenders and Additional Lenders ratably in accordance with their
Commitments as set forth in Schedule 2.01 to the Restated Credit Agreement. Each
Lender purchasing interests of any type under this Section 2 shall be deemed to
have purchased such interests from each Existing Lender selling interests of
such type ratably in accordance with the amounts of such interests sold by them.
The assignments and purchases provided for in this Section 2 shall be without
recourse, warranty or representation, except that each assigning Lender shall be
deemed to have represented that it is the legal and beneficial owner of the
interests assigned by it and that such interests are free and clear of any
adverse claim, and the purchase price for each such assignment and purchase
shall equal the principal amount of the Loans purchased.
CONFORMED COPY
(b) On the Assignment Date, (i) each Additional Lender shall pay the
purchase price for the interests purchased by it pursuant to paragraph (a) above
by wire transfer of immediately available funds to the Administrative Agent, not
later than 12:00 (noon), New York City time, and (ii) the Administrative Agent
shall pay to each Existing Lender, out of the amounts received by the
Administrative Agent from each Additional Lender pursuant to clause (i) of this
paragraph (b), the purchase price for the interests assigned by it pursuant to
paragraph (a) above by wire transfer of immediately available funds not later
than 3:00 p.m., New York City time.
(c) Each of the parties hereto hereby consents to the assignments and
purchases provided for in paragraphs (a) and (b) above and agrees that (i) each
Additional Lender that is purchasing interests in the Commitments and the
outstanding Loans pursuant to paragraph (a) above are assignees of the Existing
Lenders permitted under Section 10.04 of the Original Credit Agreement and (ii)
each Additional Lender and each Existing Lender shall have all the rights and
obligations of a Lender under the Restated Credit Agreement with respect to the
interests purchased by it pursuant to such paragraphs.
SECTION 3. Amendment and Restatement of the Original Credit Agreement. (a)
The Borrower, the Additional Lenders, the Existing Lenders, the Administrative
Agent and the Collateral Agent agree that the Original Credit Agreement
(including all Exhibits and Schedules thereto) is hereby amended and restated,
effective as of the Assignment Date, to read in its entirety as set forth in
Exhibit A hereto. As used in the Restated Credit Agreement, the terms
"Agreement", "this Agreement", "herein", "hereinafter", "hereto", "hereof" and
words of similar import shall, unless the context otherwise requires and except
as provided above, mean the Original Credit Agreement as amended and restated by
this Agreement.
(b) On the Assignment Date, upon the effectiveness of the Restated Credit
Agreement, each Loan outstanding under the Original Credit Agreement shall be
deemed to be a Loan under the Restated Credit Agreement and the amount of the
unused Commitments shall be adjusted accordingly.
SECTION 4. Representations and Warranties. The Borrower hereby makes to
each of the other parties hereto, on the date hereof, each of the
representations and warranties contained in Article III of the Restated Credit
Agreement, and each of such representations and warranties is hereby
incorporated by reference herein.
SECTION 5. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. No Novation. Neither this Agreement nor the execution, delivery
or effectiveness of the Restated Credit Agreement shall extinguish the
obligations for the payment of money outstanding under the Original Credit
Agreement or discharge or release the Lien or priority of any security
agreement, any pledge agreement or any other security therefor. Nothing herein
contained shall be construed as a substitution or novation of the Obligations
outstanding under the Original Credit Agreement or instruments securing the
same, which shall remain in full force and effect, except as modified hereby or
by instruments executed concurrently herewith. Nothing expressed or implied in
this Agreement, the Restated Credit Agreement or any other document contemplated
hereby or thereby shall be construed as a release or other discharge of the
Borrower under the Original Credit Agreement or the Borrower or any other Loan
Party under any Loan Document (as defined in the Original Credit Agreement) from
any of its obligations and liabilities thereunder. Each of the Original Credit
Agreement and the other Loan Documents (as defined in the Original Credit
Agreement) shall remain in full force and effect, until and except as modified
hereby or thereby in connection herewith or therewith. This Agreement shall
constitute a Loan Document for all purposes of the Original Credit Agreement and
the Restated Credit Agreement.
SECTION 7. Notices. All notices hereunder shall be given in accordance with
the provisions of Section 10.01 of the Restated Credit Agreement.
SECTION 8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which when taken together shall constitute but one
contract, and shall become effective as provided in Section 10 hereof. Delivery
of an executed signature page to this Agreement by facsimile transmission shall
be as effective as delivery of a manually signed counterpart hereof.
SECTION 9. Headings. The headings of this Agreement are for convenience of
reference only, are not part of this Agreement and are not to be taken into
consideration in interpreting this Agreement.
SECTION 10. Effectiveness; Amendment. This Agreement shall become effective
on the date (the "Assignment Date") that the Administrative Agent shall have
received counterparts hereof which, when taken together, bear the signatures of
each of the parties hereto. This Agreement may not be amended nor may any
provision hereof be waived except pursuant to a writing signed by each of the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TEREX CORPORATION,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:Senior Vice President
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent and as Collateral Agent,
by
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:Director
by
/s/ ▇▇▇▇ ▇'▇▇▇▇
Name: ▇▇▇▇ ▇'▇▇▇▇
Title:Vice President
Existing Lenders
CREDIT SUISSE FIRST BOSTON,
by /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:Director
by /s/ ▇▇▇▇ ▇'▇▇▇▇
Name: ▇▇▇▇ ▇'▇▇▇▇
Title:Vice President
DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
by /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
ALLSTATE INSURANCE COMPANY,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title Authorized Signatory
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title Authorized Signatory
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
ARES LEVERAGED INVESTMENT FUND, L.P.,
By: ARES MANAGMENT, L.P.,
its General Partner,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
ARES LEVERAGED INVESTMENT
FUND II, L.P.,
By: ARES MANAGMENT II, L.P.,
its General Partner,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BANKBOSTON, N.A.,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
CIBC INC.,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title Executive Director
CIBC World Markets Corp.,
as Agent
CREDIT LYONNAIS NEW YORK BRANCH,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
CYPRESSTREE INSTITUTIONAL FUND, LLC,
By: CypressTree Investment Management
Company, Inc.,
its Managing Member,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
CYPRESSTREE INVESTMENT FUND, LLC,
By: CypressTree Investment Management
Company, Inc.,
its Managing Member,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
CYPRESSTREE SENIOR FLOATING RATE FUND,
By: CypressTree Investment Management
Company, Inc.,
as Portfolio Manager,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
FIRST ALLMERICA FINANCIAL LIFE
INSURANCE COMPANY,
By: CypressTree Investment Management
Company, Inc.,
as Attorney-in-fact and
Portfolio Manager,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
FIRST UNION NATIONAL BANK,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title Sr. Vice President
FRANKLIN FLOATING RATE TRUST,
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title Vice President
FLOATING RATE PORTFOLIO,
By: Invesco Senior Secured
Management, Inc.,
as Attorney-in-Fact
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
FREMONT FINANCIAL CORPORATION,
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title Vice President
GALAXY CLO 1999-1, LTD.,
By: SAI Investment Advisors, Inc.,
its Collateral Manager,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title Authorized Agent
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
by
/s/ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Title Authorized Signatory
▇▇▇▇▇▇ FLOATING RATE FUND,
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title Sr. Vice President
KZH CYPRESSTREE-1 LLC,
by
/s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title Authorized Agent
KZH PONDVIEW LLC,
by
/s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title Authorized Agent
KZH WATERSIDE LLC,
by
/s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title Authorized Agent
LONGLANE MASTER TRUST IV,
By: BankBoston, N.A.,
as Trust Administrator,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC.,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND II, INC.,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
NORTH AMERICAN SENIOR FLOATING RATE
FUND,
By: CypressTree Investment Management
Company, Inc.,
as Portfolio Manager,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
OCTAGON LOAN TRUST,
By: Octagon Credit Investors,
as Manager,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Portfolio Manager
OLYMPIC FUNDING TRUST, SERIES 1999-1,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title Authorized Agent
PACIFICA PARTNERS ENHANCED LOAN
INVESTMENT LTD.,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title Vice President
PILGRIM PRIME RATE TRUST,
By: Pilgrim Investments, Inc.,
as its Investment Manager,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, CFA
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇, CFA
Title Vice President
SENIOR DEBT PORTFOLIO,
By: Boston Management and Research,
as Investment Advisor
by
/s/ ▇▇▇▇▇ ▇. Page
Name: ▇▇▇▇▇ ▇. Page
Title Vice President
STRATEGIC MANAGED LOAN PORTFOLIO,
By: Citibank, N.A., as Manager
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title Vice President
TORONTO DOMINION (NEW YORK), INC.,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title Vice President
