EXECUTION COPY
AMENDMENT No. 1 dated as of December 13, 2001 (this "Amendment"),
to the Amended and Restated Tranche C Credit Agreement dated as of
March 29, 2001, as amended (the "Tranche C Credit Agreement"), among
TEREX CORPORATION, a Delaware corporation ("Terex"), the LENDERS (as
defined in the Tranche C Credit Agreement), the ISSUING BANKS (as
defined in the Tranche C Credit Agreement) and CREDIT SUISSE FIRST
BOSTON, a bank organized under the laws of Switzerland, acting through
its New York branch ("CSFB"), as administrative agent (in such
capacity, the "Administrative Agent") and as collateral agent (in such
capacity, the "Collateral Agent") for the Lenders.
A. Pursuant to the Tranche C Credit Agreement, the Lenders and the
Issuing Banks have extended credit to the Borrower, and have agreed to
extend credit to the Borrower, in each case pursuant to the terms and
subject to the conditions set forth therein.
B. The Borrower has requested, and the Required Lenders have agreed,
to amend certain provisions of the Tranche C Credit Agreement pursuant to
the terms and subject to the conditions set forth herein..
C. Each capitalized term used and not otherwise defined herein shall
have the meaning assigned to such term in the Tranche C Credit Agreement.
Accordingly, in consideration of the mutual agreements herein contained and
other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to Tranche C Credit Agreement.
(a) Section 1.01 of the Tranche C Credit Agreement is hereby amended
as follows:
(i) The following definitions are hereby inserted in the proper
alphabetical order:
(A) "'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 and the Existing Credit 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.";
(B) "'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.".
(b) Section 5.04(c) is hereby amended by deleting "and 6.13" at the
end thereof and substituting therefore the words ", 6.13 and 6.14".
(c) Section 6.05(b) is hereby amended by deleting "and 6.13" in clause
(iv) therein and substituting therefore the words", 6.13 and 6.14".
(d) Section 6.11 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"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
------ -----
October 1, 2001 - December 31, 2001 4.50 to 1.00
January 1, 2002 - September 30, 2002 5.00 to 1.00
October 1, 2002 - December 31, 2003 4.50 to 1.00
January 1, 2003 - June 30, 2003 4.25 to 1.00
July 1, 2003 - September 30, 2003 4.00 to 1.00
October 1, 2003 - December 31, 2003 3.75 to 1.00
Thereafter 3.50 to 1.00"
(e) Section 6.12 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"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
------ -----
October 1, 2001 - June 30, 2002 1.75 to 1.00
July 1, 2002 - December 31, 2002 2.00 to 1.00
January 1, 2003 - June 30, 2003 2.25 to 1.00
July 1, 2003 - March 31, 2005 2.50 to 1.00
Thereafter 2.75 to 1.00"
(f) The following new Section 6.14 is hereby added to the Credit
Agreement:
"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
------ -----
October 1, 2001 - March 31, 2003 2.25 to 1.00
April 1, 2003 - December 31, 2003 2.00 to 1.00
Thereafter Not Applicable"
(g) Section 6.15(a)(iii) is hereby amended by deleting "and 6.13" at
the end thereof and substituting therefore the words ", 6.13 and 6.14".
(h) Section 6.15(b)(i) is hereby amended by deleting "and 6.13" at the
end thereof and substituting therefore the words ", 6.13 and 6.14"
SECTION 2. Representations and Warranties.
The Borrower represents and warrants to each other party hereto that, after
giving effect to this Amendment, (a) the representations and warranties set
forth in Article III of the Tranche C Credit Agreement are true and correct in
all material respects with the same effect as though made on and as of the date
hereof, except to the extent such representations and warranties expressly
relate to an earlier date, and (b) no Default or Event of Default has occurred
and is continuing.
SECTION 3. Effectiveness.
This Amendment shall become effective as of the date first written above on
the date (the "Closing Date") that the following conditions precedent shall have
been satisfied:
(a) the Administrative Agent shall have received counterparts of this
Amendment which, when taken together, bear the signatures of the Borrower
and the Required Lenders;
(b) On or prior to December 31, 2001, Terex shall have issued not less
than $200,000,000 aggregate principal amount of Additional Subordinated
Notes and shall have used the Net Cash Proceeds thereof to voluntarily
prepay Term Loans and Tranche C Term Loans pursuant to Section 2.12 of the
Tranche C Credit Agreement;
(c) Terex shall have paid to the Administrative Agent, for the
accounts of the Lenders entitled thereto, a fee (the "Amendment Fee") in an
amount equal to (i) 0.30% of the sum of (a) the outstanding Tranche C Term
Loans and (b) the outstanding Revolving Credit Commitments, whether used or
unused, of such Lender on the Closing Date (after giving effect to the
prepayments of Tranche C Term Loans made on or prior to the Closing Date),
to all such Lenders that execute and deliver to the Administrative Agent
(or its counsel) a signature page to this Amendment no later than 5:00
p.m., New York City time, on Tuesday, December 11, 2001, and (ii) in an
amount equal to 0.20% of the sum of (a) the outstanding Tranche C Term
Loans and (b) the outstanding Revolving Credit Commitments, whether used or
unused, of such Lender on the Closing Date (after giving effect to the
prepayments of Tranche C Term Loans made on or prior to the Closing Date),
to all such Lenders that execute and deliver to the Administrative Agent
(or its counsel) a signature page to this Amendment after 5:00 p.m., New
York City time, on December 11, 2001 and prior to 5:00 p.m., New York City
time on December 14, 2001. The Amendment Fee shall be payable on the
Closing Date in immediately available funds. Once paid, the Amendment Fee
shall not be refundable under any circumstances.
SECTION 4. Effect of Amendment.
Except as expressly set forth herein, this Amendment shall not by
implication or otherwise limit, impair, constitute a waiver of, or otherwise
affect the rights and remedies of the Lenders, the Swingline Lender, any Issuing
Bank, the Collateral Agent or the Administrative Agent, under the Tranche C
Credit Agreement or any other Loan Document, and shall not alter, modify, amend
or in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Tranche C Credit Agreement or any other Loan
Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Nothing herein shall be deemed to entitle the
Borrower to a consent to, or a waiver, amendment, modification or other change
of, any of the terms, conditions, obligations, covenants or agreements contained
in the Tranche C Credit Agreement or any other Loan Document in similar or
different circumstances. This Amendment shall apply and be effective only with
respect to the provisions of the Tranche C Credit Agreement specifically
referred to herein. This Amendment shall constitute a Loan Document for all
purposes of the Tranche C Credit Agreement and the other Loan Documents.
SECTION 5. Counterparts.
This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. Delivery of an
executed counterpart of a signature page of this Amendment by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 6. Applicable Law.
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
SECTION 7. Headings.
The headings of this Amendment are for purposes of reference only and shall
not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
TEREX CORPORATION,
by
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Name:
Title:
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent,
Collateral Agent and Swingline Lender,
by
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Name:
Title:
by
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Name:
Title:
SIGNATURE PAGE to
AMENDMENT No. 1
To approve the Amendment:
Name of Lender:
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by
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Name:
Title: