UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
F O R M 10 - Q
(Mark One)
|X| Quarterly Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the quarterly period ended September 30, 1999
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 1-10702
Terex Corporation
(Exact name of registrant as specified in its charter)
Delaware 34-1531521
(State of Incorporation) (IRS Employer Identification No.)
500 Post Road East, Suite 320, Westport,Connecticut 06880
(Address of principal executive offices)
(203) 222-7170
(Registrant's telephone number)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months, and (2) has been subject to such filing requirements
for the past 90 days.
YES X NO
------- -------
Number of outstanding shares of common stock: 27.5 million as of November 2,
1999.
The Exhibit Index appears on page 35.
<PAGE>
INDEX
TEREX CORPORATION AND SUBSIDIARIES
GENERAL
This Quarterly Report on Form 10-Q filed by Terex Corporation ("Terex" or the
"Company") includes financial information with respect to the following
subsidiaries of the Company (all of which are wholly-owned except PPM Cranes,
Inc.) which are guarantors (the "Guarantors") of the Company's $150 million
principal amount of 8-7/8% Senior Subordinated Notes due 2008 (the "1998 Senior
Subordinated Notes") and the Company's $100 million principal amount of 8-7/8%
Senior Subordinated Notes due 2008 (the "1999 Senior Subordinated Notes"). See
Note J to the Company's September 30, 1999 Condensed Consolidated Financial
Statements.
State or other jurisdiction of I.R.S. employer
Guarantor incorporation or organization identification number
Terex Cranes, Inc. Delaware 06-1513089
PPM Cranes, Inc. Delaware 39-1611683
Koehring Cranes, Inc. Delaware 06-1423888
Terex-Telelect, Inc. Delaware 41-1603748
Terex-RO Corporation Kansas 44-0565380
Terex Aerials, Inc. Wisconsin 39-1028686
Terex Mining Equipment, Inc. Delaware 06-1503634
Payhauler Corp. Illinois 36-3195008
The American Crane Corporation North Carolina 56-1570091
O & K Orenstein & Koppel, Inc. Delaware 58-2084520
Amida Industries, Inc. South Carolina 57-0531390
Cedarapids, Inc. Iowa 42-0332910
Page No.
PART I FINANCIAL INFORMATION
Item 1 Condensed Consolidated Financial Statements
TEREX CORPORATION
Condensed Consolidated Statement of Operations --
Three months and nine months ended September 30,
1999 and 1998...................................... 3
Condensed Consolidated Balance Sheet - September 30,
1999 and December 31, 1998......................... 4
Condensed Consolidated Statement of Cash Flows --
Nine months ended September 30, 1999 and 1998..................... 5
Notes to Condensed Consolidated Financial Statements
-- September 30, 1999.............................. 6
PPM CRANES, INC.
Condensed Consolidated Statement of Operations --
Three months and nine months ended September 30,
1999 and 1998.....................................18
Condensed Consolidated Balance Sheet - September 30,
1999 and December 31, 1998........................19
Condensed Consolidated Statement of Cash Flows --
Nine months ended September 30, 1999 and 1998.....................20
Notes to Condensed Consolidated Financial Statements
-- September 30, 1999.............................21
Item 2 Management's Discussion and Analysis of
Financial Condition and Results of Operations......23
Item 3 Quantitative and Qualitative Disclosures
About Market Risk..................................31
PART II OTHER INFORMATION
Item 1 Legal Proceedings................................................32
Item 2 Changes in Securities and Use of Proceeds........................32
Item 3 Defaults Upon Senior Securities..................................32
Item 4 Submission of Matters to a Vote of Security Holders..............32
Item 5 Other Information................................................32
Item 6 Exhibits and Reports on Form 8-K.................................33
SIGNATURES .................................................................34
EXHIBIT INDEX ..............................................................35
2
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<TABLE>
<CAPTION>
PART 1. FINANCIAL INFORMATION
ITEM 1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
TEREX CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(in millions, except per share data)
For the Three Months For the Nine Months
Ended September 30, Ended September 30,
--------------------------- ---------------------------
1999 1998 1999 1998
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net sales.....................................................$ 495.6 $ 318.7 $ 1,367.0 $ 912.8
Cost of goods sold............................................ 407.1 260.0 1,130.9 748.7
------------- ------------- ------------- -------------
Gross profit............................................. 88.5 58.7 236.1 164.1
Selling, general and administrative expenses.................. 38.7 26.0 98.8 74.4
------------- ------------- ------------- -------------
Income from operations................................... 49.8 32.7 137.3 89.7
Other income (expense):
Interest income.......................................... 2.5 0.7 3.7 1.5
Interest expense......................................... (20.0) (12.6) (48.9) (33.6)
Other income (expense) - net............................. (1.3) (0.8) (3.2) (2.0)
------------- ------------- ------------- -------------
Income before income taxes and extraordinary items............ 31.0 20.0 88.9 55.6
Provision for income taxes.................................... (1.1) (0.3) (2.6) (0.9)
------------- ------------- ------------- -------------
Income before extraordinary items............................. 29.9 19.7 86.3 54.7
Extraordinary loss on retirement of debt...................... --- --- --- (38.3)
------------- ------------- ------------- -------------
Net income....................................................$ 29.9 $ 19.7 $ 86.3 $ 16.4
============= ============= ============= =============
EARNINGS PER SHARE:
Basic
Income before extraordinary items.......................$ 1.12 $ 0.95 $ 3.74 $ 2.64
Extraordinary loss on retirement of debt................ --- --- --- (1.85)
------------- ------------- ------------- -------------
Net income............................................$ 1.12 $ 0.95 $ 3.74 $ 0.79
============= ============= ============= =============
Diluted
Income before extraordinary items.......................$ 1.07 $ 0.88 $ 3.49 $ 2.44
Extraordinary loss on retirement of debt................ --- --- --- (1.71)
------------- ------------- ------------- -------------
Net income............................................$ 1.07 $ 0.88 $ 3.49 $ 0.73
============= ============= ============= =============
Weighted average number of common and common equivalent
shares outstanding in per share calculation
Basic................................................. 26.6 20.8 23.1 20.7
Diluted............................................... 28.0 22.5 24.7 22.4
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
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<TABLE>
<CAPTION>
TEREX CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEET
(in millions)
September 30, December 31,
1999 1998
----------------- -----------------
ASSETS
Current assets
<S> <C> <C>
Cash and cash equivalents......................................................... $ 154.1 $ 25.1
Trade receivables (net of allowance of $5.5 at September 30, 1999
and $5.6 at December 31, 1998).................................................. 472.6 249.8
Net inventories................................................................... 669.2 472.8
Other current assets.............................................................. 42.1 23.9
------------------ ----------------
Total current assets.......................................................... 1,338.0 771.6
Long-term assets
Property, plant and equipment - net............................................... 190.8 99.5
Goodwill - net.................................................................... 493.5 240.9
Other assets - net................................................................ 55.5 39.2
------------------ ----------------
Total assets........................................................................... $ 2,077.8 $ 1,151.2
================== ================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Notes payable and current portion of long-term debt............................... $ 55.0 $ 44.7
Trade accounts payable............................................................ 330.4 226.9
Accrued compensation and benefits................................................. 28.7 24.7
Accrued warranties and product liability.......................................... 60.3 36.0
Other current liabilities......................................................... 136.7 93.1
------------------ ----------------
Total current liabilities..................................................... 611.1 425.4
Non-current liabilities
Long-term debt, less current portion.............................................. 1,066.0 586.6
Other............................................................................. 47.8 41.1
Commitments and contingencies
Stockholders' equity
Warrants to purchase common stock................................................. 0.8 0.8
Equity rights..................................................................... 0.8 3.1
Common stock, $.01 par value - authorized 150.0 shares;
issued and outstanding 27.5 and 20.8 at September 30, 1999 and December 31,
1998, respectively.............................................................. 0.3 0.2
Additional paid-in capital........................................................ 354.8 179.0
Retained earnings (accumulated deficit)........................................... 5.4 (80.9)
Accumulated other comprehensive income............................................ (9.2) (4.1)
------------------ ----------------
Total stockholders' equity.................................................... 352.9 98.1
------------------ ----------------
Total liabilities and stockholders' equity............................................. $ 2,077.8 $ 1,151.2
================== ================
</TABLE>
The accompanying notes are an integral part of these financial statements.
4
<PAGE>
<TABLE>
<CAPTION>
TEREX CORPORATION AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(in millions)
For the Nine Months
Ended September 30,
---------------------------
1999 1998
-------------- ------------
OPERATING ACTIVITIES
<S> <C> <C>
Net income .................................................................... $ 86.3 $ 16.4
Adjustments to reconcile net income to cash used in operating activities:
Depreciation.............................................................. 10.6 7.4
Amortization.............................................................. 9.3 5.1
Extraordinary loss on retirement of debt.................................. --- 38.3
Gain (loss) of sale of fixed assets....................................... (0.1) ---
Changes in operating assets and liabilities (net of effects of
acquisitions):
Trade receivables....................................................... (114.6) (78.0)
Net inventories......................................................... (34.2) (55.8)
Trade accounts payable.................................................. 39.4 18.1
Other, net.............................................................. 3.7 9.4
-------------- -------------
Net cash provided by (used in) operating activities.................. 0.4 (39.1)
-------------- -------------
INVESTING ACTIVITIES
Acquisition of businesses, net of cash acquired................................ (475.9) (184.9)
Capital expenditures........................................................... (12.8) (7.3)
Proceeds from sale of excess assets............................................ 2.7 2.0
-------------- -------------
Net cash used in investing activities................................ (486.0) (190.2)
-------------- -------------
FINANCING ACTIVITIES
Proceeds from issuance of long-term debt, net of issuance costs................ 505.8 513.6
Proceeds from issuance of common stock......................................... 162.8 ---
Principal repayments of long-term debt......................................... (32.1) (170.3)
Net incremental borrowings (repayments) under revolving line of credit
agreements.................................................................... (29.2) (71.6)
Payment of premiums on early extinguishment of debt............................ --- (29.0)
Other.......................................................................... 8.0 (1.8)
-------------- -------------
Net cash provided by financing activities............................ 615.3 240.9
-------------- -------------
EFFECT OF EXCHANGE RATE CHANGES ON
CASH AND CASH EQUIVALENTS...................................................... (0.7) (1.5)
-------------- -------------
NET INCREASE IN CASH AND
CASH EQUIVALENTS............................................................... 129.0 10.1
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD.................................. 25.1 28.7
-------------- -------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD........................................ $ 154.1 $ 38.8
============== =============
</TABLE>
The accompanying notes are an integral part of these financial statements.
5
<PAGE>
TEREX CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
September 30, 1999
(in millions, unless otherwise noted)
NOTE A -- BASIS OF PRESENTATION
Basis of Presentation. The accompanying unaudited condensed consolidated
financial statements of Terex Corporation and subsidiaries as of September 30,
1999 and for the three months and nine months ended September 30, 1999 and 1998
have been prepared in accordance with generally accepted accounting principles
for interim financial information and the instructions to Form 10-Q and Article
10 of Regulation S-X. Accordingly, they do not include all of the information
and footnotes required by generally accepted accounting principles to be
included in full year financial statements. The accompanying condensed
consolidated balance sheet as of December 31, 1998 has been derived from the
audited consolidated balance sheet as of that date.
The condensed consolidated financial statements include the accounts of Terex
Corporation and its majority owned subsidiaries ("Terex" or the "Company"). All
material intercompany balances, transactions and profits have been eliminated.
In the opinion of management, all adjustments considered necessary for a fair
presentation have been made. Such adjustments consist only of those of a normal
recurring nature. Operating results for the three months and nine months ended
September 30, 1999 are not necessarily indicative of the results that may be
expected for the year ending December 31, 1999. For further information, refer
to the consolidated financial statements and footnotes thereto included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1998.
Cash and cash equivalents at September 30, 1999 include $26.6 of compensating
balances against short-term financing arrangements.
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 133, "Accounting for Derivative
Instruments and Hedging Activities," which establishes a new model for
accounting for derivative and hedging activities and supersedes and amends a
number of existing standards. Upon initial application, all derivatives are
required to be recognized in the statement of financial position as either
assets or liabilities and measured at fair value. Changes in the fair value of
derivatives are recorded each period in current earnings or other comprehensive
income, depending on whether a derivative is designated as part of a hedge
transaction and, if it is, the type of hedge transaction. In addition, all
hedging relationships must be reassessed and documented pursuant to the
provisions of SFAS No. 133. In June 1999, the Financial Accounting Standards
Board delayed the effective date of SFAS No. 133 by one year so that it would be
effective for fiscal years beginning after June 15, 2000. The Company does not
expect adoption of this statement to have a significant impact on its financial
position or results of operations.
NOTE B - ACQUISITIONS
On April 1, 1999, the Company completed the purchase of Amida Industries, Inc.
("Amida"). Amida manufactures and markets light construction equipment
consisting of light towers, concrete products and traffic safety devices at its
facility in Rock Hill, South Carolina.
The Company announced on June 15, 1999 an offer to acquire all of the issued and
to be issued share capital of Powerscreen International plc ("Powerscreen"). On
July 27, 1999, the effective date of acquisition, Terex declared the offer for
Powerscreen unconditional, with respect to all valid acceptances received.
Powerscreen, headquartered in Dungannon, Northern Ireland, is a manufacturer and
marketer of screening and crushing equipment for the quarrying, construction and
demolition industries. The purchase price of GBP 181 (approximately $294) was
financed with a loan under a bank credit facility maturing March 2006 (see Note
E). As of September 30, 1999, Terex owned 95.76% of Powerscreen's issued share
capital and had taken management and operational control of Powerscreen. As of
October 21, 1999, Terex acquired 100% of Powerscreen's issued share capital.
On August 26, 1999, the Company acquired Cedarapids, Inc. ("Cedarapids") for
$170. Cedarapids, headquartered in Cedar Rapids, Iowa, is a manufacturer and
marketer of mobile crushing and screening equipment, asphalt pavers and asphalt
material mixing plants. The acquisition was financed through cash on hand and
approximately $125 in additional debt (see Note E).
On September 20, 1999, the Company completed the acquisition of certain assets
and liabilities of a manufacturer and marketer of concrete finishing equipment
located near Toronto, Canada.
6
<PAGE>
On September 29, 1999, the Company completed the acquisition of certain assets
and liabilities of a manufacturer and marketer of trommels, conveyors, and
picking stations located in Pennsylvania.
The Amida, Powerscreen, Cedarapids and other acquisitions (the "Acquired
Businesses") are being accounted for using the purchase method, with the
purchase price allocated to the assets acquired and the liabilities assumed
based upon their respective estimated fair values at the date of acquisition.
The excess of purchase price over the net assets acquired (approximately $240.4)
is being amortized on a straight-line basis over 40 years.
The preliminary allocation of purchase price based on estimated fair values of
assets and liabilities of the Acquired Businesses are summarized as follows:
Cash.................................................$ 1.4
Accounts receivable.................................. 138.9
Inventories.......................................... 176.5
Other current assets................................. 7.3
Property, plant and equipment........................ 89.9
Goodwill............................................. 240.4
Other assets......................................... 4.5
Accounts payable and other current liabilities....... (118.2)
Other non-current liabilities........................ (22.7)
---------------
$ 518.0
===============
The Company is in the process of completing certain valuations, appraisals and
actuarial and other studies for purposes of determining certain fair values. The
Company is also estimating costs related to plans to integrate the activities of
the Acquired Businesses into the Company, including plans to exit certain
activities and consolidate and restructure certain functions. The Company may
revise its preliminary allocations as additional information is obtained.
The operating results of each of the Acquired Businesses are included in the
Company's consolidated results of operations since the date of its respective
acquisition. The following pro forma summary presents the consolidated results
of operations as though the Company completed the acquisitions of all of the
Acquired Businesses as of the beginning of the respective period, after giving
effect to certain adjustments, including amortization of goodwill, interest
expense and amortization of debt issuance costs:
Pro Forma for the
-------------------------------------------
Nine Months Ended Year Ended December
September 30, 1999 31, 1998
-------------------- ----------------------
Net sales...........................$ 1,759.8 $ 1,829.7
Income from operations.............. 174.4 183.6
Income before extraordinary items... 95.9 86.0
Income before extraordinary items,
per share:
Basic............................$ 3.84 $ 3.72
Diluted..........................$ 3.61 $ 3.47
The pro forma information is not necessarily indicative of what the actual
results of operations of the Company would have been for the periods indicated,
nor does it purport to represent the results of operations for future periods.
NOTE C - INVENTORIES
Net inventories consist of the following:
September 30, December 31,
1999 1998
----------------- ----------------
Finished equipment......................... $ 230.4 $ 148.9
Replacement parts.......................... 159.0 150.9
Work-in-process............................ 84.5 59.4
Raw materials and supplies................. 195.3 113.6
---------------- -----------------
Net inventories............................ $ 669.2 $ 472.8
================ =================
7
<PAGE>
NOTE D -- PROPERTY, PLANT AND EQUIPMENT
Net property, plant and equipment consists of the following:
September 30, December 31,
1999 1998
--------------- -----------------
Property................................... $ 43.6 $ 13.6
Plant...................................... 99.2 44.6
Equipment.................................. 103.2 90.8
--------------- -----------------
246.0 149.0
Less: Accumulated depreciation............ (55.2) (49.5)
--------------- -----------------
Net property, plant and equipment.......... $ 190.8 $ 99.5
=============== =================
NOTE E - LONG-TERM DEBT AND STOCKHOLDERS' EQUITY
On March 9, 1999, the Company issued and sold $100.0 aggregate principal amount
of 8-7/8% Series C Senior Subordinated Notes due 2008 (the "1999 Senior
Subordinated Notes"). The 1999 Senior Subordinated Notes were issued at a
discount with the Company receiving net proceeds of $94.9. The 1999 Senior
Subordinated Notes are jointly and severally guaranteed by certain domestic
subsidiaries (see Note J). The 1999 Senior Subordinated Notes were issued in a
private placement made in reliance upon an exemption from registration under the
Securities Act of 1933, as amended. The net proceeds from the offering were used
to repay a portion of the outstanding indebtedness under Terex's credit
facilities and for acquisitions. During the third quarter of 1999, the 1999
Senior Subordinated Notes were exchanged for 1999 Senior Subordinated Notes
registered under the Securities Act of 1933, as amended.
On June 22, 1999, the Company issued 3.5 million shares of common stock in a
public offering for net proceeds to the Company of $103.7.
On July 2, 1999, the Company entered into a credit agreement for a term loan of
up to $325 to provide the funds necessary to acquire the outstanding share
capital of Powerscreen and for other general corporate purposes. This credit
agreement was subsequently amended and restated on August 23, 1999 to provide an
additional term loan of up to $125 to acquire Cedarapids. As of September 30,
1999, the Company had borrowed $421.2 under this facility. The term loans under
this facility mature in March 2006 and bear interest, at the Company's option,
at a rate of 3.00% to 3.50% per annum in excess of the adjusted Eurodollar rate
or 2.00% to 2.50% in excess of the prime rate.
On July 28, 1999, the Company issued 2 million shares of common stock for net
proceeds to the Company of $59.1. The shares were sold in a transaction
initiated by Wellington Management Company, LLP on behalf of one of its funds.
NOTE F - EARNINGS PER SHARE
<TABLE>
<CAPTION>
Three Months Ended September 30,
(in millions, except per share data)
-------------------------------------------------------------------------
1999 1998
-------------------------------------------------------------------------
Per-Share Per-Share
Income Shares Amount Income Shares Amount
----------- ------------ ------------- ----------- --------- -------------
Basic earnings per share
<S> <C> <C> <C> <C> <C> <C>
Income before extraordinary items...... $ 29.9 26.6 $ 1.12 $ 19.7 20.8 $ 0.95
Effect of dilutive securities
Warrants..............................s --- 0.1 --- 0.1
Stock Options.......................... --- 0.9 --- 0.7
Equity Rights.......................... --- 0.4 --- 0.9
------------ ----------- ---------- ------------
Income available to common
Stockholders - diluted.................. $ 29.9 28.0 $ 1.07 $ 19.7 22.5 $ 0.88
============ =========== =========== ============ ============ ===========
</TABLE>
8
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<TABLE>
<CAPTION>
Nine Months Ended September 30,
(in millions, except per share data)
-------------------------------------------------------------------------
1999 1998
-------------------------------------------------------------------------
Per-Share Per-Share
Income Shares Amount Income Shares Amount
------------ ----------- ------------- ----------- ---------- -----------
Basic earnings per share
<S> <C> <C> <C> <C> <C> <C>
Income before extraordinary items...... $ 86.3 23.1 $ 3.74 $ 54.7 20.7 $ 2.64
Effect of dilutive securities
Warrants..............................s --- 0.1 --- 0.1
Stock Options.......................... --- 0.9 --- 0.8
Equity Rights.......................... --- 0.6 --- 0.8
------------ ----------- ------------- ---------
Income available to common
stockholders - diluted.................. $ 86.3 24.7 $ 3.49 $ 54.7 22.4 $ 2.44
============ =========== =========== ============= =========== ===========
</TABLE>
NOTE G --COMPREHENSIVE INCOME
Total non-shareowner changes in equity (comprehensive income) include all
changes in equity during a period except those resulting from investments by,
and distributions to, shareowners. The specific components include: net income,
deferred gains and losses resulting from foreign currency translation, and
minimum pension liability adjustments. For the three months ended September 30,
1999 and 1998 and the nine months ended September 30, 1999 and 1998, total
comprehensive income was $52.1 and $35.5, $81.2 and $21.4, respectively.
NOTE H -- LITIGATION AND CONTINGENCIES
The Company is subject to a number of contingencies and uncertainties including
product liability claims, self-insurance obligations, tax examinations and
guarantees. Many of the exposures are unasserted or proceedings are at a
preliminary stage, and it is not presently possible to estimate the amount or
timing of any cost to the Company. However, management does not believe that
these contingencies and uncertainties will, in the aggregate, have a material
adverse effect on the Company. When it is probable that a loss has been or will
be incurred and possible to make reasonable estimates of the Company's liability
with respect to such matters, a provision is recorded for the amount of such
estimate or for the minimum amount of a range of estimates when it is not
possible to estimate the amount within the range that is most likely to occur.
The Company generates hazardous and nonhazardous wastes in the normal course of
its operations. As a result, the Company is subject to a wide range of federal,
state, local and foreign environmental laws and regulations, including the
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"),
that (i) govern activities or operations that may have adverse environmental
effects, such as discharges to air and water, as well as handling and disposal
practices for hazardous and nonhazardous wastes, and (ii) impose liability for
the costs of cleaning up, and certain damages resulting from, sites of past
spills, disposals or other releases of hazardous substances. Compliance with
such laws and regulations has, and will, require expenditures by the Company on
a continuing basis.
The Company's federal income tax returns for the years 1987 through 1989 are
currently being audited by the Internal Revenue Service (the "IRS"). In December
1994, the Company received an examination report from the IRS proposing a large
tax deficiency. The examination report raised many issues. Among these issues
are substantiation for certain tax deductions and whether the Company was able
to use certain net operating loss carryovers ("NOLs") to offset taxable income.
In April 1995, the Company filed an administrative appeal to the examination
report. The IRS is currently reviewing information the Company provided to it.
The final outcome of this audit is subject to the resolution of complicated
legal and factual issues.
If the IRS prevails on all the issues raised, the amount of the tax the Company
would have to pay would be approximately $56 plus penalties of approximately
$12.8 and interest through September 30, 1999 of approximately $125.7. The
penalties claimed by the IRS are between 20% and 25% of the amount of the tax
deficiency assessed against the Company. Interest on the amount of tax
deficiency and penalties assessed against the Company is currently accruing at a
rate of 10% per annum. If the Company is required to pay a significant portion
of the tax deficiency claimed by the IRS, it may not have or be able to obtain
the money necessary to pay the tax deficiency and continue in business.
9
<PAGE>
The Company believes that it has provided adequate documentation for a large
part of the tax deductions the IRS has disallowed. In addition, the IRS has
advised the Company that it is no longer challenging the Company's right to use
the NOLs in question, as well as many of the other adjustments raised by the
IRS. As a result, the Company does not believe that the outcome of the audit
will have a material adverse effect on its financial condition or results of
operations. However, the Company may lose or have to use some of its NOLs as a
result of the audit. In addition, there is also a possibility that the Company
will have to pay some amount of tax, penalties and interest to the IRS to
resolve this matter. The final outcome of the audit cannot be determined or
estimated at this time. Accordingly, the Company does not have any additional
reserves for amounts which might be due as a result of the audit because the
loss ranges from zero to $56 plus interest and penalties.
NOTE I - BUSINESS SEGMENT INFORMATION
The Company operates in two industry segments: Terex Lifting and Terex
Earthmoving. Industry segment information is presented below:
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
--------------------------------------------------------
1999 1998 1999 1998
-------------- ------------- ----------- ---------------
Sales
<S> <C> <C> <C> <C>
Terex Lifting...................................... $ 242.5 $ 187.2 $ 746.9 $ 560.9
Terex Earthmoving.................................. 244.2 130.0 599.5 347.4
General/Corporate/Eliminations..................... 8.9 1.5 20.6 4.5
-------------- ------------- -------------- -------------
Total............................................ $ 495.6 $ 318.7 $ 1,367.0 $ 912.8
============== ============= ============== =============
Income (Loss) from Operations
Terex Lifting...................................... $ 22.6 $ 20.5 $ 75.3 $ 60.4
Terex Earthmoving.................................. 26.1 12.4 62.6 31.0
General/Corporate/Eliminations..................... 1.1 (0.2) (0.6) (1.7)
-------------- ------------- -------------- --------------
Total............................................ $ 49.8 $ 32.7 $ 137.3 $ 89.7
============== ============= ============== ==============
</TABLE>
NOTE J -- CONSOLIDATING FINANCIAL STATEMENTS
On March 31, 1998, the Company issued and sold $150.0 aggregate principal amount
of 8-7/8% Senior Subordinated Notes due 2008 (the "1998 Senior Subordinated
Notes"). On March 9, 1999, the Company issued and sold $100.0 aggregate
principal amount of the 1999 Senior Subordinated Notes. The 1998 Senior
Subordinated Notes and the 1999 Senior Subordinated Notes are each jointly and
severally guaranteed by the following wholly-owned subsidiaries of the Company
(the "Wholly-owned Guarantors"): Terex Cranes, Inc., Koehring Cranes, Inc.,
Terex-Telelect, Inc., Terex-RO Corporation, Terex Aerials, Inc., Terex Mining
Equipment, Inc., Payhauler Corp., O & K Orenstein & Koppel, Inc., The American
Crane Corporation, Amida and Cedarapids. The financial results of O & K
Orenstein & Koppel, Inc., The American Crane Corporation, Amida and Cedarapids
are included in the results of the Wholly-owned Guarantors since March 31, 1998,
July 31, 1998, April 1, 1999, and August 26, 1999, their respective dates of
acquisition. The 1998 Senior Subordinated Notes and the 1999 Senior Subordinated
Notes are each also jointly and severally guaranteed by PPM Cranes, Inc., which
is 92.4% owned by Terex.
The following subsidiaries of the Company have not provided a guarantee of
either the 1998 Senior Subordinated Notes nor the 1999 Senior Subordinated
Notes: Terex Equipment Limited, Unit Rig Australia (Pty) Ltd., Unit Rig South
Africa (Pty) Ltd., Unit Rig (Canada) Ltd., PPM S.A., PPM S.p.A., Brimont
Agraire, PPM Deutschland GmbH, PPM of Australia Pty Ltd., PPM Far East Private
Ltd, Terex Aerials Limited, Terex Italia, S.r.l., Sim-Tech Management Limited,
Simon-Tomen Engineering Company Limited, O&K Mining GmbH, Holland Lift
International B.V., American Crane International B.V., Italmacchine S.r.l.,
Terex-Peiner GmbH, Gru Comedil S.p.A. and Powerscreen (collectively, the
"Non-guarantor Subsidiaries"). The financial results of O & K Mining GmbH,
Holland Lift International B.V., American Crane International B.V., Italmacchine
S.r.l., Terex-Peiner GmbH, Gru Comedil S.p.A. and Powerscreen are included in
the results of the Non-guarantor Subsidiaries since March 31, 1998, May 4, 1998,
July 31, 1998, November 3, 1998, November 13, 1998, December 18, 1998, and July
27, 1999, their respective dates of acquisition.
The following summarized condensed consolidating financial information for the
Company segregates the financial information of Terex Corporation, the
Wholly-owned Guarantors, PPM Cranes, Inc. and the Non-guarantor Subsidiaries.
10
<PAGE>
Terex Corporation consists of parent company operations. Subsidiaries of the
parent company are reported on the equity basis.
Wholly-owned Guarantors combine the operations of the Wholly-owned Guarantor
subsidiaries. Subsidiaries of Wholly-owned Guarantors that are not themselves
guarantors are reported on the equity basis.
PPM Cranes, Inc. consists of the operations of PPM Cranes, Inc. Its subsidiaries
(PPM of Australia Pty Ltd and PPM Far East Private Ltd) are reported on an
equity basis.
Non-guarantor Subsidiaries combine the operations of subsidiaries which have not
provided a guarantee of the obligations of Terex Corporation under the 1998
Senior Subordinated Notes and the 1999 Senior Subordinated Notes.
Debt and Goodwill allocated to subsidiaries is presented on an accounting
"push-down" basis.
11
<PAGE>
<TABLE>
<CAPTION>
TEREX CORPORATION
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 1999
(in millions)
Wholly- Non-
Terex owned PPM guarantor Intercompany
Corporation Guarantors Cranes, Inc. Subsidiaries Eliminations Consolidated
-------------- ------------- ------------- ------------ -------------- --------------
<S> <C> <C> <C> <C> <C> <C>
Net sales............................... $ 124.3 $ 151.7 $ 18.9 $ 255.5 $ (54.8) $ 495.6
Cost of goods sold................... 108.6 127.0 16.7 207.1 (52.3) 407.1
------------- ------------- ------------- ------------- ------------- -------------
Gross profit............................ 15.7 24.7 2.2 48.4 (2.5) 88.5
Selling, general & administrative
expenses.......................... 5.9 8.7 1.3 22.8 --- 38.7
------------- ------------- ------------- ------------- ------------- -------------
Income (loss) from operations........... 9.8 16.0 0.9 25.6 (2.5) 49.8
Interest income....................... 1.4 0.1 --- 1.0 --- 2.5
Interest expense...................... (6.3) (2.1) (1.2) (10.4) --- (20.0)
Income (loss) from equity investees... 25.8 (0.2) --- --- (25.6) ---
Other income (expense) - net.......... (0.4) (0.2) (0.1) (0.6) --- (1.3)
------------- ------------- ------------- ------------- ------------- -------------
Income (loss) before income taxes and
extraordinary items................... 30.3 13.6 (0.4) 15.6 (28.1) 31.0
Provision for income taxes............ (0.4) --- --- (0.7) --- (1.1)
------------- ------------- ------------- ------------- ------------- -------------
Income (loss) before extraordinary items 29.9 13.6 (0.4) 14.9 (28.1) 29.9
Extraordinary loss on retirement of debt --- --- --- --- --- ---
------------- ------------- ------------- ------------- ------------- -------------
Net income (loss)....................... $ 29.9 $ 13.6 $ (0.4) $ 14.9 $ (28.1) $ 29.9
============= ============= ============= ============= ============= =============
</TABLE>
<TABLE>
<CAPTION>
TEREX CORPORATION
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 1998
(in millions)
Wholly- Non-
Terex owned PPM guarantor Intercompany
Corporation Guarantors Cranes, Inc. Subsidiaries Eliminations Consolidated
------------- ------------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Net sales............................... $ 57.2 $ 125.0 $ 17.8 $ 180.1 $ (61.4) $ 318.7
Cost of goods sold................... 48.7 101.5 16.5 154.7 (61.4) 260.0
------------- ------------- ------------- ------------- ------------- -------------
Gross profit............................ 8.5 23.5 1.3 25.4 --- 58.7
Selling, general & administrative
expenses........................... 5.3 6.0 1.0 13.7 --- 26.0
------------- ------------- ------------- ------------- ------------- -------------
Income (loss) from operations........... 3.2 17.5 0.3 11.7 --- 32.7
Interest income....................... 0.4 --- --- 0.3 --- 0.7
Interest expense...................... (2.2) (2.1) (1.2) (7.1) --- (12.6)
Income (loss) from equity investees... 18.4 (23.2) 0.1 --- 4.7 ---
Other income (expense) - net.......... (0.1) (0.1) (0.1) (0.5) --- (0.8)
------------- ------------- ------------- ------------- ------------- -------------
Income (loss) before income taxes and
extraordinary items................... 19.7 (7.9) (0.9) 4.4 4.7 20.0
Provision for income taxes............ --- --- --- (0.3) --- (0.3)
------------- ------------- ------------- ------------- ------------- -------------
Income (loss) before extraordinary items 19.7 (7.9) (0.9) 4.1 4.7 19.7
Extraordinary loss on retirement of debt --- --- --- --- --- ---
------------- ------------- ------------- ------------- ------------- -------------
Net income (loss)....................... $ 19.7 $ (7.9) $ (0.9) $ 4.1 $ 4.7 $ 19.7
============= ============= ============= ============= ============= =============
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
TEREX CORPORATION
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1999
(in millions)
Wholly- Non-
Terex owned PPM guarantor Intercompany
Corporation Guarantors Cranes, Inc. Subsidiaries Eliminations Consolidated
------------- ------------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Net sales............................... $ 362.9 $ 445.2 $ 58.1 $ 635.3 $ (134.5) $ 1,367.0
Cost of goods sold................... 316.4 372.4 51.4 519.5 (128.8) 1,130.9
------------- ------------- ------------- ------------- ------------- -------------
Gross profit............................ 46.5 72.8 6.7 115.8 (5.7) 236.1
Selling, general & administrative
expenses........................... 19.2 20.5 4.0 55.1 --- 98.8
------------- ------------- ------------- ------------- ------------- -------------
Income (loss) from operations........... 27.3 52.3 2.7 60.7 (5.7) 137.3
Interest income....................... 1.8 0.2 --- 1.7 --- 3.7
Interest expense...................... (14.2) (5.8) (3.4) (25.5) --- (48.9)
Income (loss) from equity investees... 72.9 (0.8) 0.2 (0.6) (71.7) ---
Other income (expense) - net.......... (0.4) (0.8) (0.2) (1.8) --- (3.2)
------------- ------------- ------------- ------------- ------------- -------------
Income (loss) before income taxes and
extraordinary items................... 87.4 45.1 (0.7) 34.5 (77.4) 88.9
Provision for income taxes............ (1.1) 0.1 --- (1.6) --- (2.6)
------------- ------------- ------------- ------------- ------------- -------------
Income (loss) before extraordinary items 86.3 45.2 (0.7) 32.9 (77.4) 86.3
Extraordinary loss on retirement of debt --- --- --- --- --- ---
------------- ------------- ------------- ------------- ------------- -------------
Net income (loss)....................... $ 86.3 $ 45.2 (0.7) 32.9 (77.4) $ 86.3
============= ============= ============= ============= ============= =============
</TABLE>
<TABLE>
<CAPTION>
TEREX CORPORATION
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1998
(in millions)
Wholly- Non-
Terex owned PPM guarantor Intercompany
Corporation Guarantors Cranes, Inc. Subsidiaries Eliminations Consolidated
------------- ------------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Net sales............................... $ 164.7 $ 345.5 $ 66.0 $ 489.7 $ (153.1) $ 912.8
Cost of goods sold................... 139.5 280.9 59.6 419.6 (150.9) 748.7
------------- ------------- ------------- ------------- ------------- -------------
Gross profit............................ 25.2 64.6 6.4 70.1 (2.2) 164.1
Selling, general & administrative
expenses........................... 14.8 18.7 2.7 38.2 --- 74.4
------------- ------------- ------------- ------------- ------------- -------------
Income (loss) from operations........... 10.4 45.9 3.7 31.9 (2.2) 89.7
Interest income....................... 0.9 --- --- 0.6 --- 1.5
Interest expense...................... (5.9) (6.2) (4.1) (17.4) --- (33.6)
Income (loss) from equity investees... 20.3 (16.3) (0.1) --- (3.9) ---
Other income (expense) - net.......... (0.7) (0.1) (0.2) (1.0) --- (2.0)
------------- ------------- ------------- ------------- ------------- -------------
Income (loss) before income taxes and
extraordinary items................... 25.0 23.3 (0.7) 14.1 (6.1) 55.6
Provision for income taxes............ (0.1) --- --- (0.8) --- (0.9)
------------- ------------- ------------- ------------- ------------- -------------
Income (loss) before extraordinary items 24.9 23.3 (0.7) 13.3 (6.1) 54.7
Extraordinary loss on retirement of debt (8.5) (5.0) (10.4) (14.4) --- (38.3)
------------- ------------- ------------- ------------- ------------- -------------
Net income (loss)....................... $ 16.4 $ 18.3 $ (11.1) $ (1.1) $ (6.1) $ 16.4
============= ============= ============= ============= ============= =============
</TABLE>
13
<PAGE>
<TABLE>
<CAPTION>
TEREX CORPORATION
CONDENSED CONSOLIDATING BALANCE SHEET
SEPTEMBER 30, 1999
(in millions)
Wholly- Non-
Terex owned PPM guarantor Intercompany
Corporation Guarantors Cranes, Inc. Subsidiaries Eliminations Consolidated
------------- -------------- ------------- ------------ ------------- ---------------
Assets
Current assets
<S> <C> <C> <C> <C> <C> <C>
Cash and cash equivalents.......... $ 104.7 $ 4.4 $ 0.1 $ 44.9 $ --- $ 154.1
Trade receivables - net............ 52.2 142.4 21.6 256.4 --- 472.6
Intercompany receivables........... 8.2 23.7 14.8 61.7 (108.4) ---
Net inventories.................... 159.1 201.9 17.1 299.3 (8.2) 669.2
Other current assets............... 3.9 8.7 --- 29.5 --- 42.1
------------- ------------- ------------- ------------- ------------- -------------
Total current assets............. 328.1 381.1 53.6 691.8 (116.6) 1,338.0
Long-term assets
Property, plant & equipment - net.. 16.5 48.7 0.2 125.4 --- 190.8
Investment in and advances
to (from) subsidiaries........... 300.1 (190.0) (16.6) (86.8) (6.7) ---
Goodwill - net..................... 41.8 124.5 12.3 314.9 --- 493.5
Other assets - net................. 8.5 15.5 1.1 30.4 --- 55.5
------------- ------------- ------------- ------------- ------------- -------------
Total assets............................ $ 695.0 $ 379.8 $ 50.6 $ 1,075.7 $ (123.3) $ 2,077.8
============= ============= ============= ============= ============= =============
Liabilities and Stockholders' Equity
(Deficit)
Current liabilities
Notes payable and current portion
of long-term debt................ $ 9.7 $ 4.3 $ 0.8 $ 40.2 $ --- $ 55.0
Trade accounts payable............. 63.6 65.4 10.2 191.2 --- 330.4
Intercompany payables.............. 37.2 17.0 3.2 51.0 (108.4) ---
Accruals and other current
liabilities...................... 69.5 16.1 8.2 131.9 --- 225.7
------------- ------------- ------------- ------------- ------------- -------------
Total current liabilities........ 180.0 102.8 22.4 414.3 (108.4) 611.1
Non-current liabilities
Long-term debt less current portion 148.2 227.1 60.4 630.3 --- 1,066.0
Other long-term liabilities........ 13.9 5.7 0.2 28.0 --- 47.8
Stockholders' equity (deficit)....... 352.9 44.2 (32.4) 3.1 (14.9) 352.9
------------- ------------- ------------- ------------- ------------- -------------
Total liabilities and stockholders'
equity (deficit)..................... $ 695.0 $ 379.8 $ 50.6 $ 1,075.7 $ (123.3) $ 2,077.8
============= ============= ============= ============= ============= =============
</TABLE>
14
<PAGE>
<TABLE>
<CAPTION>
TEREX CORPORATION
CONDENSED CONSOLIDATING BALANCE SHEET
DECEMBER 31, 1998
(in millions)
Wholly- Non-
Terex owned PPM guarantor Intercompany
Corporation Guarantors Cranes, Inc. Subsidiaries Eliminations Consolidated
------------- -------------- ------------ ------------- -------------- --------------
Assets
Current assets
<S> <C> <C> <C> <C> <C> <C>
Cash and cash equivalents.......... $ 9.3 $ 0.5 $ 0.1 $ 15.2 $ --- $ 25.1
Trade receivables - net............ 19.7 51.9 18.0 160.2 --- 249.8
Intercompany receivables........... 7.0 16.9 12.8 96.5 (133.2) ---
Inventories - net.................. 113.9 101.1 30.0 235.2 (7.4) 472.8
Other current assets............... 4.8 4.1 0.1 14.9 --- 23.9
------------- ------------- ------------- ------------- ------------- -------------
Total current assets............. 154.7 174.5 61.0 522.0 (140.6) 771.6
Property, plant & equipment - net.... 10.8 28.4 --- 60.3 --- 99.5
Investment in and advances to
(from) subsidiaries.............. 75.2 (92.7) (1.4) (49.0) 67.9 ---
Goodwill - net....................... 30.3 80.4 13.7 116.5 --- 240.9
Other assets - net................... 9.9 12.7 1.3 15.3 --- 39.2
------------- ------------- ------------- ------------- ------------- -------------
Total assets............................ $ 280.9 $ 203.3 $ 74.6 $ 665.1 $ (72.7) $ 1,151.2
============= ============= ============= ============= ============= =============
Liabilities and Stockholders' Equity
(Deficit)
Current liabilities
Notes payable and current portion
of long-term debt................ $ 13.5 $ 3.4 $ 0.8 $ 27.0 $ --- $ 44.7
Trade accounts payable............. 29.4 53.7 8.4 135.4 --- 226.9
Intercompany payables.............. 13.1 15.2 26.5 78.4 (133.2) ---
Accruals and other current
liabilities...................... 44.8 22.6 9.3 77.1 --- 153.8
------------- ------------- ------------- ------------- ------------- -------------
Total current liabilities........ 100.8 94.9 45.0 317.9 (133.2) 425.4
Non-current liabilities
Long-term debt less current 69.9 100.1 60.8 355.8 --- 586.6
portion..........................
Other long-term liabilities...... 12.1 9.3 0.6 19.1 --- 41.1
Stockholders' equity (deficit)....... 98.1 (1.0) (31.8) (27.7) 60.5 98.1
------------- ------------- ------------- ------------- ------------- -------------
Total liabilities and stockholders'
equity (deficit)..................... $ 280.9 $ 203.3 $ 74.6 $ 665.1 $ (72.7) $ 1,151.2
============= ============= ============= ============= ============= =============
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
TEREX CORPORATION
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
NINE MONTHS ENDED SEPTEMBER 30, 1999
(in millions)
Wholly- Non-
Terex Owned PPM Guarantor Intercompany
Corporation Guarantors Cranes, Inc. Subsidiaries Eliminations Consolidated
------------- ------------ -------------- ------------ -------------- --------------
Net cash provided by (used in)
<S> <C> <C> <C> <C> <C> <C>
operating activities................. $ 332.2 $ (119.7) $ 0.2 $ (212.3) $ --- $ 0.4
------------- ------------- ------------- ------------- ------------- -------------
Cash flows from investing activities
Acquisition of businesses, net of
cash acquired...................... (475.9) --- --- --- --- (475.9)
Capital expenditures................. (0.8) (6.0) (0.2) (5.8) --- (12.8)
Proceeds from sale of excess assets.. --- 2.1 --- 0.6 --- 2.7
------------- ------------- ------------- ------------- ------------- -------------
Net cash provided by (used in)
investing activities.............. (476.7) (3.9) (0.2) (5.2) --- (486.0)
------------- ------------- ------------- ------------- ------------- -------------
Cash flows from financing activities
Proceeds from issuance of long-term
debt, net of issuance costs....... 94.9 128.0 --- 282.9 --- 505.8
Proceeds from issuance of common stock 162.8 --- --- --- --- 162.8
Principal repayments of long-term debt (17.8) (0.2) --- (14.1) --- (32.1)
Net incremental borrowings
(repayments) under
revolving line of credit agreements --- --- --- (29.2) --- (29.2)
Payment of premiums on early
extinguishment of debt............. --- --- --- --- --- ---
Other................................ --- (0.3) --- 8.3 --- 8.0
------------- ------------- ------------- ------------- ------------- -------------
Net cash provided by (used in)
financing activities............. 239.9 127.5 --- 247.9 --- 615.3
------------- ------------- ------------- ------------- ------------- -------------
Effect of exchange rates on cash and
cash equivalents..................... --- --- --- (0.7) --- (0.7)
------------- ------------- ------------- ------------- ------------- -------------
Net increase (decrease) in cash and cash
equivalents.......................... 95.4 3.9 --- 29.7 --- 129.0
Cash and cash equivalents, beginning of
period............................... 9.3 0.5 0.1 15.2 --- 25.1
------------- ------------- ------------- ------------- ------------- -------------
Cash and cash equivalents,
end of period........................ $ 104.7 $ 4.4 $ 0.1 $ 44.9 $ --- $ 154.1
============= ============= ============= ============= ============= =============
</TABLE>
16
<PAGE>
<TABLE>
<CAPTION>
TEREX CORPORATION
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
NINE MONTHS ENDED SEPTEMBER 30, 1998
(in millions)
Wholly- Non-
Terex owned PPM Guarantor Intercompany
Corporation Guarantors Cranes, Inc. Subsidiaries Eliminations Consolidated
------------- ------------- ------------- ------------- ------------- -------------
Net cash provided by (used in)
<S> <C> <C> <C> <C> <C> <C>
operating activities................. $ 17.3 $ (1.6) $ (1.9) $ (52.9) $ --- $ (39.1)
------------- ------------- ------------- ------------- ------------- -------------
Cash flows from investing activities
Acquisition of businesses, net of
cash acquired...................... (184.9) --- --- --- --- (184.9)
Capital expenditures................. (0.9) (2.7) (0.1) (3.6) --- (7.3)
Proceeds from sale of excess assets.. --- 1.9 --- 0.1 --- 2.0
------------- ------------- ------------- ------------- ------------- -------------
Net cash provided by (used in)
investing activities.............. (185.8) (0.8) (0.1) (3.5) --- (190.2)
------------- ------------- ------------- ------------- ------------- -------------
Cash flows from financing activities
Proceeds from issuance of common stock --- --- --- --- --- ---
Proceeds from issuance of long-term
debt, net of issuance costs....... 254.4 90.8 58.6 109.8 --- 513.6
Principal repayments of long-term debt (38.8) (20.1) (47.9) (63.5) --- (170.3)
Net incremental borrowings
(repayments) under
revolving line of credit agreements (17.6) (64.1) --- 10.1 --- (71.6)
Payment of premiums on early
extinguishment of debt............. (6.0) (3.7) (8.6) (10.7) --- (29.0)
Other................................ --- --- --- (1.8) --- (1.8)
------------- ------------- ------------- ------------- ------------- -------------
Net cash provided by (used in)
financing activities............. 192.0 2.9 2.1 43.9 --- 240.9
------------- ------------- ------------- ------------- ------------- -------------
Effect of exchange rates on cash and
cash equivalents..................... (0.5) 0.5 --- (1.5) --- (1.5)
------------- ------------- ------------- ------------- ------------- -------------
Net increase (decrease) in cash and cash
equivalents.......................... 23.0 1.0 0.1 (14.0) --- 10.1
Cash and cash equivalents, beginning of
period............................... 5.6 0.1 --- 23.0 --- 28.7
------------- ------------- ------------- ------------- ------------- -------------
Cash and cash equivalents,
end of period........................ $ 28.6 $ 1.1 $ 0.1 $ 9.0 $ --- $ 38.8
============= ============= ============= ============= ============= =============
</TABLE>
17
<PAGE>
PPM CRANES, INC.
<TABLE>
<CAPTION>
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(in millions)
For the Three Months Ended For the Nine Months
September 30, Ended September 30,
---------------------------- ---------------------------
1999 1998 1999 1998
------------- -------------- ------------ --------------
<S> <C> <C> <C> <C>
Net sales............................................$ 20.3 $ 19.1 $ 63.6 $ 72.4
Cost of goods sold................................... 17.7 17.3 55.8 64.4
------------- -------------- ------------- -------------
Gross profit.................................... 2.6 1.8 7.8 8.0
Engineering, selling and administrative expenses..... 1.6 1.2 4.8 3.5
------------- -------------- ------------- -------------
Income from operations.......................... 1.0 0.6 3.0 4.5
Other income (expense):
Interest expense................................ (1.3) (1.4) (3.5) (4.4)
Amortization of debt issuance costs............. (0.1) (0.1) (0.2) (0.3)
------------- -------------- -------------- ------------
Income (loss) before income taxes and extraordinary
items.............................................. (0.4) (0.9) (0.7) (0.2)
Provision for income taxes........................... --- --- --- ---
------------- -------------- -------------- ------------
Income (loss) before extraordinary items............. (0.4) (0.9) (0.7) (0.2)
Extraordinary loss on retirement of debt............. --- --- --- (10.9)
------------- -------------- ------------- -------------
Net income (loss)....................................$ (0.4) $ (0.9) $ (0.7) $ (11.1)
============= ============= ============== =============
</TABLE>
The accompanying notes are an integral part of these financial statements.
18
<PAGE>
<TABLE>
<CAPTION>
PPM CRANES, INC.
CONDENSED CONSOLIDATED BALANCE SHEET
(in millions, except share amounts)
September 30, December 31,
1999 1998
---------------- ---------------
ASSETS
Current assets:
<S> <C> <C>
Cash and cash equivalents........................................... $ 0.4 ` $ 0.2
Trade accounts receivables (net of allowance of $0.6 at September
30, 1999 and $0.8 at December 31, 1998)........................... 22.5 19.3
Net inventories..................................................... 21.0 30.4
Due from affiliates................................................. 15.2 15.1
Prepaid expenses and other current assets........................... 0.1 0.1
---------------- -----------------
Total current assets.............................................. 59.2 65.1
Property, plant and equipment - net................................. 0.2 ---
Goodwill - net...................................................... 13.5 14.4
Other assets - net.................................................. 1.1 1.3
---------------- -----------------
Total assets........................................................... $ 74.0 $ 80.8
================ =================
LIABILITIES AND SHAREHOLDERS' DEFICIT
Current liabilities:
Trade accounts payable.............................................. $ 10.3 $ 10.6
Accrued warranties and product liability............................ 7.3 8.0
Accrued expenses.................................................... 1.1 1.8
Due to affiliates................................................... 5.8 26.4
Due to Terex Corporation............................................ 16.4 0.3
Current portion of long-term debt................................... 1.1 0.8
---------------- -----------------
Total current liabilities......................................... 42.0 47.9
---------------- -----------------
Non-current liabilities:
Long-term debt, less current portion................................ 63.4 63.9
Other non-current liabilities....................................... 1.0 0.8
---------------- -----------------
Total non-current liabilities..................................... 64.4 64.7
---------------- -----------------
Commitments and contingencies
Shareholders' deficit
Common stock, Class A, $.01 par value -
authorized 8,000 shares; issued and outstanding 5,000 shares...... --- ---
Common stock, Class B, $.01 par value -
authorized 2,000 shares; issued and outstanding 413 shares........ --- ---
Accumulated deficit................................................. (32.4) (31.7)
Foreign currency translation adjustment............................. --- (0.1)
---------------- -----------------
Total shareholders' deficit....................................... (32.4) (31.8)
---------------- -----------------
Total liabilities and shareholders' deficit............................ $ 74.0 $ 80.8
================ =================
</TABLE>
The accompanying notes are an integral part of these financial statements.
19
<PAGE>
<TABLE>
<CAPTION>
PPM CRANES, INC.
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(in millions)
For the Nine Months
Ended September 30,
--------------------------
1999 1998
------------- ------------
OPERATING ACTIVITIES
<S> <C> <C>
Net loss..................................................................... $ (0.7) $ (11.1)
Adjustments to reconcile net loss to cash used in operating activities:
Depreciation and amortization............................................ 1.1 1.4
Extraordinary loss on retirement of debt................................. --- 10.9
Other.................................................................... --- 0.2
Changes in operating assets and liabilities:
Trade accounts receivable.............................................. (3.2) 0.8
Net inventories........................................................ 9.4 (2.9)
Trade accounts payable................................................. (0.3) 1.1
Net amounts due to affiliates.......................................... (4.6) 0.8
Other, net............................................................. (0.8) (0.4)
------------- ---------------
Net cash provided by operating activities............................ 0.9 0.8
------------- ---------------
INVESTING ACTIVITIES
Capital expenditures......................................................... (0.2) (0.1)
------------- ---------------
Net cash used in investing activities...................................... (0.2) (0.1)
------------- ---------------
FINANCING ACTIVITIES
Proceeds from issuance of long-term debt, net of issuance costs.............. --- 60.0
Net repayments under revolving line of credit agreements..................... --- (0.2)
Principal repayments of long-term debt....................................... (0.5) (50.8)
Payment of premiums on early extinguishment of debt.......................... --- (8.6)
Other........................................................................ --- (1.5)
------------- ---------------
Net cash used in financing activities...................................... (0.5) (1.1)
------------- ---------------
EFFECT OF EXCHANGE RATE CHANGES ON
CASH AND CASH EQUIVALENTS.................................................... --- 0.5
------------- ---------------
NET INCREASE IN CASH AND CASH EQUIVALENTS....................................... 0.2 0.1
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD................................ 0.2 0.2
------------- ---------------
CASH AND CASH EQUIVALENTS AT END OF PERIOD...................................... $ 0.4 $ 0.3
============= ===============
</TABLE>
The accompanying notes are an integral part of these financial statements.
20
<PAGE>
PPM CRANES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
September 30, 1999
(in millions unless otherwise noted)
NOTE 1 -- Description of the Business and Basis of Presentation
PPM Cranes, Inc. (sometimes referred to as Terex Cranes - Conway Operations)
(the "Company" or "PPM") is engaged in the design, manufacture, marketing and
worldwide distribution and support of construction equipment, primarily
hydraulic cranes and related spare parts.
On May 9, 1995 (the date of acquisition), Terex Corporation, through its
wholly-owned subsidiary Terex Cranes, Inc., a Delaware corporation, completed
the acquisition of all of the capital stock of Legris Industries, Inc., a
Delaware corporation, which then owned 92.4% of the capital stock of PPM.
The condensed consolidated financial statements reflect Terex Corporation's
basis in the assets and liabilities of the Company which was accounted for as a
purchase transaction. As a result, the debt and goodwill associated with the
acquisition have been "pushed down" to the Company's financial statements.
In the opinion of management, all adjustments considered necessary for a fair
presentation have been made. Such adjustments consist only of those of a normal
recurring nature. Operating results for the three months and nine months ended
September 30, 1999 are not necessarily indicative of the results that may be
expected for the year ending December 31, 1999. For further information, refer
to the Company's consolidated financial statements and footnotes thereto for the
year ended December 31, 1998.
The condensed consolidated financial statements include the accounts of the
Company and its wholly-owned subsidiaries. All material intercompany
transactions and profits have been eliminated.
NOTE 2 -- Inventories
Net inventories consist of the following:
September 30, December 31,
1999 1998
----------------- ----------------
Finished equipment......................... $ 4.6 $ 9.3
Replacement parts.......................... 7.5 9.1
Work-in-process............................ 3.1 1.6
Raw materials and supplies................. 5.8 10.4
---------------- -----------------
$ 21.0 $ 30.4
================ =================
note 3 -- Property, Plant and Equipment
Net property, plant and equipment consists of the following:
September 30, December 31,
1999 1998
------------------ ----------------
Property, plant and equipment.............. $ 0.4 $ 0.2
Less: Accumulated depreciation............ (0.2) (0.2)
----------------- ----------------
Net property, plant and equipment.......... $ 0.2 $ ---
================= =================
21
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NOTE 4 - COMMITMENTS AND Contingencies
The Company is involved in product liability and other lawsuits incident to the
operation of its business. Insurance with third parties is maintained for
certain of these items. It is management's opinion that none of these lawsuits
will have a materially adverse effect on the Company's financial position.
On March 31, 1998, Terex Corporation issued and sold $150.0 aggregate principal
amount of 8-7/8% Senior Subordinated Notes due 2008, which notes were exchanged
by Terex Corporation for 8-7/8% Senior Subordinated Notes due 2008 registered
under the Securities Act of 1933, as amended (the "1998 Senior Subordinated
Notes"). On March 9, 1999, Terex Corporation issued and sold $100.0 aggregate
principal amount of 8-7/8% Series C Senior Subordinated Notes due 2008, which
notes were exchanged by Terex Corporation for 8-7/8% Senior Subordinated Notes
due 2008 registered under the Securities Act of 1933, as amended (the "1999
Senior Subordinated Notes"). The 1998 Senior Subordinated Notes and the 1999
Senior Subordinated Notes are each jointly and severally guaranteed by certain
domestic subsidiaries of Terex Corporation, including PPM.
22
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
Results of Operations
The Company currently operates in two industry segments: Terex Lifting and Terex
Earthmoving.
Three Months Ended September 30, 1999 Compared with the Three Months Ended
September 30, 1998
The table below is a comparison of net sales, gross profit, selling, general and
administrative expenses, and income from operations, by segment, for the three
months ended September 30, 1999 and 1998.
Three Months Ended
September 30,
---------------------- Increase
1999 1998 (Decrease)
---------- ----------- ----------
NET SALES
Terex Lifting...............................$ 242.5 $ 187.2 $ 55.3
Terex Earthmoving........................... 244.2 130.0 114.2
General/Corporate/Eliminations.............. 8.9 1.5 7.4
---------- ----------- ----------
Total.....................................$ 495.6 $ 318.7 $ 176.9
========== =========== ==========
GROSS PROFIT
Terex Lifting...............................$ 38.2 $ 30.9 $ 7.3
Terex Earthmoving........................... 48.5 27.6 20.9
General/Corporate/Eliminations.............. 1.8 0.2 1.6
---------- ----------- ----------
Total.....................................$ 88.5 $ 58.7 $ 29.8
========== =========== ==========
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Terex Lifting...............................$ 15.6 $ 10.4 $ 5.2
Terex Earthmoving........................... 22.4 15.2 7.2
General/Corporate/Eliminations.............. 0.7 0.4 0.3
---------- ----------- ----------
Total.....................................$ 38.7 $ 26.0 $ 12.7
========== =========== ==========
INCOME FROM OPERATIONS
Terex Lifting...............................$ 22.6 $ 20.5 $ 2.1
Terex Earthmoving........................... 26.1 12.4 13.7
General/Corporate/Eliminations.............. 1.1 (0.2) 1.3
---------- ----------- ----------
Total.....................................$ 49.8 $ 32.7 $ 17.1
========== =========== ==========
Net Sales
Sales increased $176.9 million, or approximately 56%, to $495.6 million for the
three months ended September 30, 1999 over the comparable 1998 period.
Internally generated growth represented approximately $68 million of this
revenue increase while businesses acquired contributed approximately $109
million.
23
<PAGE>
Terex Lifting's sales were $242.5 million for the three months ended September
30, 1999, an increase of $55.3 million or 30% from $187.2 million for the three
months ended September 30, 1998. The increase in sales was driven by the impact
of businesses acquired (approximately $32 million) and strong performances
within our utility aerial device and lattice boom crane businesses, offset
somewhat by a decline in the North American aerial work platform and truck crane
businesses. Terex Lifting's backlog was $179.5 million at September 30, 1999 and
$169.5 million at September 30, 1998. Backlog does not include any significant
parts orders which are normally filled in the period ordered. The sales mix was
approximately 9.9% parts for the three months ended September 30, 1999 compared
to approximately 11.6% parts for the comparable 1998 period, reflecting an
increase in machine sales.
Terex Earthmoving sales were $244.2 million for the three months ended September
30, 1999, an increase of $114.2 million or 88% from $130.0 million for the three
months ended September 30, 1998. The increase in sales was driven by the impact
of businesses acquired (approximately $69 million), and strong performances
within our surface mining and off-highway truck businesses. Backlog was $204.2
million at September 30, 1999 compared to $62.3 million at September 30, 1998.
The sales mix was approximately 22.6% parts for the three months ended September
30, 1999 compared to 30.2% for the comparable 1998 period, reflecting an
increase in machine sales.
Net sales for General/Corporate in the three months ended September 30, 1999
represent sales from Amida Industries, Inc. ("Amida") and service revenues
generated by Terex's parts distribution center for services provided to a third
party. Amida was acquired by Terex on April 1, 1999 and produces light
construction equipment consisting of light towers, concrete products and traffic
safety devices. In the comparable 1998 period, net sales consisted of service
revenues generated by Terex's parts distribution center.
Gross Profit
Gross profit for the three months ended September 30, 1999 increased $29.8
million, or approximately 51%, to $88.5 million as a result of acquisitions and
internally generated growth in both the Terex Lifting and Terex Earthmoving
businesses.
Terex Lifting's gross profit increased $7.3 million to $38.2 million for the
three months ended September 30, 1999, compared to $30.9 million for the three
months ended September 30, 1998. The increase in gross profit was driven by the
performance of businesses acquired and internally generated growth, offset by
the decline in the North American aerial work platform business. Gross profit as
a percentage of sales decreased to 15.8% from 16.5% in 1998 due primarily to an
increase in lower-margin machine sales, sales mix and the impact of the North
American aerial work platform business, which reported a deterioration in gross
profit margins during the quarter.
Terex Earthmoving's gross profit increased $20.9 million to $48.5 million for
the three months ended September 30, 1999, compared to $27.6 million for the
three months ended September 30, 1998. The increase in gross profit was due to
the impact of businesses acquired and internally generated growth. The gross
margin percentage decreased to 19.9% from 21.2% in 1998 driven primarily by the
sales mix, as machine sales carry a lower gross margin than part sales.
Selling, General and Administrative Expenses
Selling, general and administrative expenses increased to $38.7 million for the
three months ended September 30, 1999 from $26.0 million for the three months
ended September 30, 1998, principally reflecting the effect of businesses
acquired. As a percentage of sales, however, selling, general and administrative
expenses decreased to 7.8% for the three months ended September 30, 1999 as
compared to 8.2% for the three months ended September 30, 1998.
Terex Lifting's selling, general and administrative expenses increased to $15.6
million for the three months ended September 30, 1999 from $10.4 million for the
three months ended September 30, 1998. This increase in selling, general and
administrative expenses was principally due to businesses acquired. As a
percentage of sales, selling, general and administrative expenses for the period
increased to 6.4% compared to 5.6% in 1998, reflecting the higher selling,
general and administrative expenses as a percentage of sales at the acquired
businesses.
Terex Earthmoving's selling, general and administrative expenses increased to
$22.4 million for the three months ended September 30, 1999 from $15.2 million
for the comparable period in 1998. This increase in selling, general and
administrative expenses was principally due to businesses acquired, somewhat
offset by continuing cost control. Excluding businesses acquired, selling,
general and administrative expenses actually decreased in both dollars and as a
percentage when compared to the comparable period of the prior year.
Income from Operations
On a consolidated basis, the Company had operating income of $49.8 million, or
10.0% of sales, for the three months ended September 30, 1999, compared to
operating income of $32.7 million, or 10.3% of sales, for the three months ended
September 30, 1998, for the reasons mentioned above.
Terex Lifting's income from operations of $22.6 million for the three months
ended September 30, 1999 increased by $2.1 million over the three months ended
September 30, 1998. The increase was principally due to businesses acquired
(approximately $4 million) and strong performances within our utility aerial
device and lattice boom crane businesses, but was offset somewhat by the losses
generated within our North American aerial work platform business.
24
<PAGE>
Terex Earthmoving's income from operations of $26.1 million for the three months
ended September 30, 1999 increased by $13.7 million over the three months ended
September 30, 1998. The increase was driven by the impact of businesses acquired
(approximately $7 million), strong performances within our surface mining and
off-highway truck business and continued improvements in our manufacturing and
selling, general and administrative costs.
Interest Expense
During the three months ended September 30, 1999, the Company's net interest
expense increased $5.6 million to $17.5 million from $11.9 million for the
comparable 1998 period. This increase was due to higher debt levels related to
the 1999 acquisitions of Powerscreen International plc ("Powerscreen") and
Cedarapids, Inc. ("Cedarapids") in the three months ended September 30, 1999
versus the comparable period in 1998.
Nine Months Ended September 30, 1999 Compared with Nine Months Ended September
30, 1998
The table below is a comparison of net sales, gross profit, selling, general and
administrative expenses, and income from operations, by segment, for the nine
months ended September 30, 1999 and 1998.
Nine Months Ended
September 30,
------------------------ Increase
1999 1998 (Decrease)
------------ ----------- ----------
NET SALES
Terex Lifting.............................$ 746.9 $ 560.9 $ 186.0
Terex Earthmoving......................... 599.5 347.4 252.1
General/Corporate/Eliminations............ 20.6 4.5 16.1
------------ ----------- ----------
Total...................................$ 1,367.0 $ 912.8 $ 454.2
============ =========== ==========
GROSS PROFIT
Terex Lifting.............................$ 119.4 $ 93.5 $ 25.9
Terex Earthmoving......................... 112.9 69.8 43.1
General/Corporate/Eliminations............ 3.8 0.8 3.0
------------ ----------- ----------
Total...................................$ 236.1 $ 164.1 $ 72.0
============ =========== ==========
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Terex Lifting.............................$ 44.1 $ 33.1 $ 11.0
Terex Earthmoving......................... 50.3 38.8 11.5
General/Corporate/Eliminations............ 4.4 2.5 1.9
------------ ----------- ----------
Total...................................$ 98.8 $ 74.4 $ 24.4
============ =========== ==========
INCOME FROM OPERATIONS
Terex Lifting.............................$ 75.3 $ 60.4 $ 14.9
Terex Earthmoving......................... 62.6 31.0 31.6
General/Corporate/Eliminations............ (0.6) (1.7) 1.1
------------ ----------- ----------
Total...................................$ 137.3 $ 89.7 $ 47.6
============ =========== ==========
Net Sales
Sales increased $454.2 million, or approximately 50%, to $1,367.0 million for
the nine months ended September 30, 1999 over the comparable 1998 period.
Internally generated growth represented approximately $210 million of this
revenue increase while businesses acquired by the Company contributed
approximately $244 million.
Terex Lifting's sales were $746.9 million for the nine months ended September
30, 1999, an increase of $186.0 million or 33% from $560.9 million for the nine
months ended September 30, 1998. The increase in sales was driven by the impact
of businesses acquired (approximately $108 million), strong performances within
our North American utility aerial device and material handling businesses and
continued growth within our European lifting business. This was somewhat offset
by the decline in the North American aerial work platform business. The sales
mix was 9.4% parts for the nine months ended September 30, 1999 compared to
10.6% parts for the comparable 1998 period, reflecting an increase in machine
sales.
25
<PAGE>
Terex Earthmoving sales were $599.5 million for the nine months ended September
30, 1999, an increase of $252.1 million or 73% from $347.4 million for the nine
months ended September 30, 1998. The increase in sales was driven by the
continuing impact of the 160 rigid off-highway haul truck order received from
Coal India, a government agency for coal management in India, improvements in
the Terex off-highway truck business, and businesses acquired (approximately
$119 million). The sales mix was approximately 24% parts for the nine months
ended September 30, 1999 compared to 30% for the comparable 1998 period,
reflecting the impact of a significant increase in machine sales.
Net sales for General/Corporate in the nine months ended September 30, 1999
represent sales from Amida, acquired by Terex on April 1, 1999, and service
revenues generated by Terex's parts distribution center for services provided to
a third party. In the comparable 1998 period, net sales consisted of service
revenues generated by Terex's parts distribution center.
Gross Profit
Gross profit for the nine months ended September 30, 1999 increased $72.0
million, or approximately 44%, to $236.1 million as a result of acquisitions and
internally generated growth in both the Terex Lifting and Terex Earthmoving
businesses.
Terex Lifting's gross profit increased $25.9 million to $119.4 million for the
nine months ended September 30, 1999, compared to $93.5 million for the nine
months ended September 30, 1998. The increase in gross profit was driven by the
performance of businesses acquired and internally generated growth, offset to
some extent by the decline in the North American aerial work platform business.
Gross profit as a percentage of sales decreased to 16.0% from 16.7% in 1998 due
primarily to an increase in lower-margin machine sales, sales mix and the impact
of Terex's North American aerial work platform business, which reported a
deterioration in gross profit percentage during the period.
Terex Earthmoving's gross profit increased $43.1 million to $112.9 million for
the nine months ended September 30, 1999, compared to $69.8 million for the nine
months ended September 30, 1998. The increase in gross profit was due to the
performance of businesses acquired, and internally generated growth, primarily
the Coal India order. The gross margin percentage decreased to 18.8% from 20.1%
in 1998 driven primarily by the sales mix, as machine sales carry a lower gross
margin than part sales.
Selling, General and Administrative Expenses
Selling, general and administrative expenses increased to $98.8 million for the
nine months ended September 30, 1999 from $74.4 million for the nine months
ended September 30, 1998, principally reflecting the effect of businesses
acquired. However, as a percentage of sales, selling, general and administrative
expenses decreased to 7.2% for the nine months ended September 30, 1999 as
compared to 8.2% for the nine months ended September 30, 1998.
Terex Lifting's selling, general and administrative expenses increased to $44.1
million for the nine months ended September 30, 1999 from $33.1 million for the
nine months ended September 30, 1998. This increase in selling, general and
administrative expenses was principally due to businesses acquired. As a
percentage of sales, however, selling, general and administrative expenses for
the period remained at 5.9%, the same as in 1998. Excluding businesses acquired,
selling, general and administrative expenses actually remained constant in
dollars and decreased as a percentage of sales when compared to the comparable
period of the prior year.
Terex Earthmoving's selling, general and administrative expenses increased to
$50.3 million for the nine months ended September 30, 1999 from $38.8 million
for the comparable period in 1998. This increase was principally due to
businesses acquired. As a percentage of sales, selling, general and
administrative expenses decreased to 8.4% for the nine months ended September
30, 1999 from 11.2% for the comparable 1998 period. Excluding businesses
acquired, selling, general and administrative expenses actually decreased in
both dollars and as a percentage of sales when compared to the comparable 1998
period.
Income from Operations
On a consolidated basis, the Company had operating income of $137.3 million, or
10.0% of sales, for the nine months ended September 30, 1999, compared to
operating income of $89.7 million, or 9.8% of sales, for the nine months ended
September 30, 1998, for the reasons mentioned above.
Terex Lifting's income from operations of $75.3 million for the nine months
ended September 30, 1999 increased by $14.9 million over the nine months ended
September 30, 1998. The increase was the result of internal growth driven by
26
<PAGE>
strong performances within our North American utility aerial and material
handling businesses, continued growth within our European lifting business,
continuing cost control efforts and the impact of businesses acquired
(approximately $11 million), but was somewhat offset by losses at our North
American aerial work platform business.
Terex Earthmoving's income from operations of $62.6 million for the nine months
ended September 30, 1999 increased by $31.6 million over the nine months ended
September 30, 1998, primarily due to the impact of the Coal India order, strong
results in the off-highway truck business, businesses acquired (approximately
$11 million), and continuing cost control efforts.
Interest Expense
During the nine months ended September 30, 1999, the Company's net interest
expense increased $13.1 million to $45.2 million from $32.1 million for the
comparable 1998 period. This increase was due to higher debt levels in the nine
months ended September 30, 1999 versus the comparable period in 1998,
principally due to acquisitions.
Extraordinary Items
The Company recorded a charge of $38.3 million in the nine months ended
September 30, 1998 to recognize a loss on the early extinguishment of debt in
connection with the redemption of certain senior secured notes and the
refinancing of the Company's bank credit facilities.
LIQUIDITY AND CAPITAL RESOURCES
Net cash of $0.4 million was provided by operating activities during the nine
months ended September 30, 1999. This reflects the approximately $40 million in
cash generated by operations during the three months ended September 30, 1999.
Operating results for the nine months before depreciation and amortization
provided $106.2 million, and approximately $105.7 million was invested in
working capital. The increase in working capital reflects the impact of the Coal
India contract and the general increase in business activity. Net cash used in
investing activities was $486.0 million during the nine months ended September
30, 1999 and primarily represents the acquisitions of certain businesses
referred to below. Net cash provided by financing activities of $615.3 million
during the nine months ended September 30, 1999 represents the net proceeds from
the issuance of an aggregate of 5.5 million shares of common stock ($162.8
million) and the 1999 Senior Subordinated Notes ($94.9 million), and borrowings
under the Company's bank credit facilities ($421.2 million) offset by debt issue
costs and the Company's repayment of principal under a bank credit facility.
Cash and cash equivalents totaled $154.1 million at September 30, 1999, an
increase of $129.0 million from December 31, 1998.
On April 1, 1999, the Company acquired Amida, a manufacturer of light
construction equipment, principally mobile light towers, concrete screeds,
motorized front dumpers and directional arrow boards, at its facility in Rock
Hill, South Carolina.
The Company announced on June 15, 1999 an offer to acquire all of the issued and
to be issued share capital of Powerscreen. On July 27, 1999, the effective date
of acquisition, Terex declared the offer for Powerscreen unconditional, with
respect to all valid acceptances received. Powerscreen, headquartered in
Dungannon, Northern Ireland, is a manufacturer and marketer of screening and
crushing equipment for the quarrying, construction and demolition industries.
The purchase price of GBP 181 million (approximately $294 million) was financed
with a loan under a bank credit facility maturing March 2006. As of September
30, 1999, Terex owned 95.76% of Powerscreen's issued share capital and had taken
management and operational control of Powerscreen. As of October 21, 1999, Terex
acquired 100% of Powerscreen's issued share capital.
On August 26, 1999, the Company acquired Cedarapids for $170 million.
Cedarapids, headquartered in Cedar Rapids, Iowa, is a manufacturer and marketer
of mobile crushing and screening equipment, asphalt pavers and asphalt material
mixing plants. The acquisition was financed through cash on hand and
approximately $125 million in additional debt.
On September 20, 1999, the Company completed the acquisition of certain assets
and liabilities of a manufacturer and marketer of concrete finishing equipment
located near Toronto, Canada.
On September 29, 1999, the Company completed the acquisition of certain assets
and liabilities of a manufacturer and marketer of trommels, conveyors, and
picking stations located in Pennsylvania.
On June 22, 1999, the Company issued 3.5 million shares of common stock in a
public offereing for net proceeds to the Company of $103.7 million.
27
<PAGE>
On July 2, 1999, the Company entered into a credit agreement for a term loan of
up to $325 million to provide the funds necessary to acquire the outstanding
share capital of Powerscreen and for other general corporate purposes. This
credit agreement was subsequently amended and restated on August 23, 1999 to
provide an additional term loan of up to $125 million to acquire Cedarapids. As
of September 30, 1999, the Company had borrowed $421.2 million under this
facility. The term loans under this facility mature in March 2006 and bear
interest, at the Company's option, at a rate of 3.00% to 3.50% per annum in
excess of the adjusted Eurodollar rate or 2.00% to 2.50% in excess of the prime
rate.
On July 28, 1999, the Company issued an additional 2 million shares of common
stock for net proceeds to the Company of approximately $59 million. The shares
were sold in a transaction initiated by Wellington Management Company, LLP on
behalf of one of its funds.
On November 3, 1999, the Company acquired the Material Handling Business of
Teledyne Specialty Equipment, a division of Allegheny Teledyne Incorporated.
This business manufactures and markets self propelled, light weight, truck
mountable forklifts at its facilities in Canal Winchester, Ohio and
Vrouwenparochie, The Netherlands.
Since the beginning of 1995, including the acquisitions noted above, the Company
has invested approximately $960 million to strengthen its core businesses
through sixteen strategic acquisitions. The Company expects that acquisitions
and new product development will continue to be important components of its
growth strategy and is continually reviewing acquisition opportunities. Terex
will continue to pursue strategic acquisitions which complement the Company's
core operations, offer cost reduction opportunities as well as distribution and
purchasing synergies and provide product diversification.
Debt reduction and an improved capital structure are major focal points for the
Company. In this regard, the Company regularly reviews its alternatives to
improve its capital structure and to reduce debt service through debt
refinancings, issuance of equity, asset sales, including the sale of business
units, or any combination thereof.
The Company's businesses are working capital intensive and require funding for
purchases of production and replacement parts inventories, capital expenditures
for repair, replacement and upgrading of existing facilities, as well as
financing of receivables from customers and dealers. The Company has significant
debt service requirements including semi-annual interest payments on the 1998
Senior Subordinated Notes and the 1999 Senior Subordinated Notes and monthly
interest payments on the Company's bank credit facilities. Management believes
that cash generated from operations, together with the Company's bank credit
facilities, provides the Company with adequate liquidity to meet the Company's
operating and debt service requirements.
CONTINGENCIES AND UNCERTAINTIES
Internal Revenue Service
The Company's federal income tax returns for the years 1987 through 1989 are
currently being audited by the Internal Revenue Service (the "IRS"). In December
1994, the Company received an examination report from the IRS proposing a large
tax deficiency. The examination report raised many issues. Among these issues
are substantiation for certain tax deductions and whether the Company was able
to use certain net operating loss carryovers ("NOLs") to offset taxable income.
In April 1995, the Company filed an administrative appeal to the examination
report. The IRS is currently reviewing information the Company provided to it.
The final outcome of this audit is subject to the resolution of complicated
legal and factual issues.
If the IRS prevails on all the issues raised, the amount of the tax the Company
would have to pay would be approximately $56 million plus penalties of
approximately $12.8 million and interest through September 30, 1999 of
approximately $125.7 million. The penalties claimed by the IRS are between 20%
and 25% of the amount of the tax deficiency assessed against the Company.
Interest on the amount of tax deficiency and penalties assessed against the
Company is currently accruing at a rate of 10% per annum. If the Company is
required to pay a significant portion of the tax deficiency claimed by the IRS,
it may not have or be able to obtain the money necessary to pay the tax
deficiency and continue in business.
The Company believes that it has provided adequate documentation for a large
part of the tax deductions the IRS has disallowed. In addition, the IRS has
advised the Company that it is no longer challenging the Company's right to use
the NOLs in question, as well as many of the other adjustments raised by the
IRS. As a result, the Company does not believe that the outcome of the audit
will have a material adverse effect on its financial condition or results of
operations. However, the Company may lose or have to use some of its NOLs as a
result of the audit. In addition, there is also a possibility that the Company
28
<PAGE>
will have to pay some amount of tax, penalties and interest to the IRS to
resolve this matter. The final outcome of the audit cannot be determined or
estimated at this time. Accordingly, the Company does not have any additional
reserves for amounts which might be due as a result of the audit because the
loss ranges from zero to $56 million plus interest and penalties.
Year 2000 Issue
The Year 2000 ("Y2K") problem is the result of computer programs being written
using two digits rather than four to define the applicable year. Thus, the year
1999 is represented by the number "99" in many legacy software applications.
Consequently, on January 1, 2000 the year will jump back to "00" for many
non-Y2K compliant applications. To systems that are non-Y2K compliant, the time
will seem to have reverted back 100 years. Accordingly, when computing basic
lengths of time, computer programs, certain building infrastructure components
(including elevators, alarm systems, telephone networks, sprinkler systems,
security access systems and certain HVAC systems) and any additional
time-sensitive software that are non-Y2K compliant may recognize a date using
"00" as the Year 1900. This could result in system failures or miscalculations
which could cause personal injury, property damage, disruption of operations,
and/or delays in payments from the Company's customers, any or all of which
could materially adversely affect the Company's business, financial condition,
liquidity or results of operations.
The Company has conducted a company-wide assessment of its computer systems,
products and operations infrastructure to identify computer hardware, software,
and process control systems that are not Y2K compliant. The Company believes
that it has identified those business-critical computer systems which are not
presently Y2K compliant, and has instituted a plan to replace, upgrade or modify
these systems by the end of 1999. However, the Company acquired thirteen new
companies during 1999 and 1998, six of which are located in Europe. The
business-critical systems of certain of the newly acquired companies, including
O&K Mining GmbH and Powerscreen, were not Y2K compliant at the time of
acquisition. The Company has instituted a plan to replace, upgrade or modify the
systems at these acquired companies and expects to be completed by the end of
1999; however, no assurance can be given that the replacement, upgrade or
modification of the systems at these companies will be timely completed. The
total cost associated with required modifications to become Y2K compliant is not
expected to exceed $5 million, and a significant portion of these costs were
planned upgrades to the current financial and operating systems.
The Company has also initiated communications with third parties whose computer
systems' functionality could impact the Company. These communications will
facilitate coordination of Y2K solutions and will permit the Company to
determine the extent to which the Company may be vulnerable to failures of third
parties to address their own Y2K issues. To date, the Company has not identified
any significant issues with respect to third parties.
The failure to correct a material Y2K problem could result in an interruption
in, or a failure of, certain normal business activities or operations. Such
failures could materially and adversely affect the Company's results of
operations, liquidity and financial condition. Due to the general uncertainty
inherent in the Y2K problem, resulting in part from the uncertainty of the Year
2000 readiness of third-party suppliers and customers, the Company is unable to
determine at this time whether the consequences of Y2K failures will have a
material impact on the Company's results of operations, liquidity or financial
condition, and as such, has not yet established a contingency plan to handle the
most reasonably likely worst case scenario. The Company's Y2K project is
expected to significantly reduce the Company's level of uncertainty about the
Y2K problem, in particular, about the Y2K compliance and readiness of its
material suppliers and customers. The Company believes that, with the
implementation of new business systems and completion of its Y2K project as
scheduled, the possibility of significant interruptions of normal operations
should be reduced.
Euro
On January 1, 1999, 11 of the 15 member countries of the European Union
established fixed conversion rates between their existing currencies ("legacy
currencies") and one common currency, the euro. The euro now trades on currency
exchanges and may be used in business transactions. Beginning in January 2002,
new euro-denominated bills and coins will be issued and legacy currencies will
be withdrawn from circulation. The Company's operating subsidiaries affected by
the euro conversion are assessing the systems and business issues raised by the
euro currency conversion. These issues include, among others, (1) the need to
adapt computer and other business systems and equipment to accommodate
euro-denominated transaction and (2) the competitive impact of cross-border
price transparency, which may make it more difficult for businesses to charge
different prices for the same products on a country-by-country basis,
particularly once the euro currency is issued in 2002. The Company anticipates
that the euro conversion will not have a material adverse impact on its
financial condition or results of operations.
29
<PAGE>
Other
The Company is subject to a number of contingencies and uncertainties, including
product liability claims, self-insurance obligations, tax examinations and
guarantees. Many of the exposures are unasserted or proceedings are at a
preliminary stage, and it is not presently possible to estimate the amount or
timing of any cost to the Company. However, the Company does not believe that
these contingencies and uncertainties will, in the aggregate, have a material
adverse effect on the Company. When it is probable that a loss has been incurred
and possible to make reasonable estimates of the Company's liability with
respect to such matters, a provision is recorded for the amount of such estimate
or for the minimum amount of a range of estimates when it not possible to
estimate the amount within the range that is most likely to occur.
The Company generates hazardous and nonhazardous wastes in the normal course of
its manufacturing operations. As a result, Terex is subject to a wide range of
federal, state, local and foreign environmental laws and regulations. These laws
and regulations govern actions that may have adverse environmental effects and
also require compliance with certain practices when handling and disposing of
hazardous and nonhazardous wastes. These laws and regulations also impose
liability for the costs of, and damages resulting from, cleaning up sites, past
spills, disposals and other releases of hazardous substances. Compliance with
these laws and regulations has, and will continue to require, the Company to
make expenditures. The Company does not expect that these expenditures will have
a material adverse effect on its business or profitability.
30
<PAGE>
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is exposed to certain market risks which exist as part of its
ongoing business operations and the Company uses derivative financial
instruments, where appropriate, to manage these risks. The Company, as a matter
of policy, does not engage in trading or speculative transactions. For further
information on accounting policies related to derivative financial instruments,
refer to the Company's Annual Report on Form 10-K for the year ended December
31, 1998.
Foreign Exchange Risk
The Company is exposed to fluctuations in foreign currency cash flows related to
third party purchases, intercompany product shipments and intercompany loans.
The Company is also exposed to fluctuations in the value of foreign currency
investments in subsidiaries and cash flows related to repatriation of these
investments. Additionally, the Company is exposed to volatility in the
translation of foreign currency earnings to U.S. Dollars. Primary exposures
include the U.S. Dollars versus functional currencies of the Company's major
markets, which include the British Pound, German Mark, French Franc and Italian
Lira. The Company assesses foreign currency risk based on transactional cash
flows and identifies naturally offsetting positions and purchases hedging
instruments to protect anticipated exposures. At September 30, 1999, the Company
had foreign currency contracts which were hedges of firm commitments totaling
approximately $14 million. The fair market value of these arrangements, which
represents the cost to settle these contracts, was an asset of approximately
$0.1 million at September 30, 1999.
Interest Rate Risk
The Company is exposed to interest rate volatility with regard to future
issuances of fixed rate debt and existing issuances of variable rate debt.
Primary exposure includes movements in the U.S. prime rate and the London
Interbank Offer Rate ("LIBOR"). The Company uses interest rate swaps to reduce
interest rate volatility. At September 30, 1999, the Company had approximately
$211 million of interest rate swaps fixing interest rates between 6.6% and 9.5%.
The fair market value of these arrangements, which represents the cost to settle
these contracts, was a liability of approximately $2.0 million at September 30,
1999.
31
<PAGE>
PART II OTHER INFORMATION
Item 1. Legal Proceedings
The Company is involved in certain claims and litigation arising in the ordinary
course of business, which are not considered material to the financial position,
operation or cash flows of the Company. For information concerning contingencies
see "Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Contingencies and Uncertainties."
Item 2. Changes in Securities and Use of Proceeds
Not applicable.
Item 3. Defaults Upon Senior Securities
Not applicable.
Item 4. Submission of Matters to a Vote of Security Holders
Not applicable.
Item 5. Other Information
Forward Looking Information
Certain information in this Quarterly Report includes forward-looking statements
regarding future events or the future financial performance of the Company that
involve certain contingencies and uncertainties, including those discussed above
in the section entitled "Contingencies and Uncertainties." In addition, when
included in this Quarterly Report or in documents incorporated herein by
reference, the words "may," "expects," "intends," "anticipates," "plans,"
"projects," "estimates" and the negatives thereof and analogous or similar
expressions are intended to identify forward-looking statements. Such statements
are inherently subject to a variety of risks and uncertainties that could cause
actual results to differ materially from those reflected in such forward-looking
statements. Such risks and uncertainties, many of which are beyond the Company's
control, include, among others: the sensitivity of construction and mining
activity to interest rates, government spending and general economic conditions;
the success of the integration of acquired businesses; the retention of key
management; foreign currency fluctuations; the ability to meet production and
delivery schedules; the ability of suppliers to provide components on a timely
basis; pricing, product initiatives and other actions taken by competitors; the
effects of changes in laws and regulations; the national and international
political climate; continued use of net operating loss carryovers; the outcome
of the Internal Revenue Service audit; compliance with environmental laws and
regulations; and other factors. Actual events or the actual future results of
the Company may differ materially from any forward-looking statement due to
these and other risks, uncertainties and significant factors. The
forward-looking statements contained herein speak only as of the date of this
Quarterly Report and the forward-looking statements contained in documents
incorporated herein by reference speak only as of the date of the respective
documents. The Company expressly disclaims any obligation or undertaking to
release publicly any updates or revisions to any forward-looking statement
contained or incorporated by reference in this Quarterly Report to reflect any
changes in the Company's expectations with regard thereto or any changes in
events, conditions or circumstances on which any such statement is based.
32
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
(a) The exhibits set forth on the accompanying Exhibit Index have
been filed as part of this Form 10-Q.
(b) Reports on Form 8-K. During the quarter ended September 30,
1999, the Company filed the following Current Reports on Form
8-K:
- - A report on Form 8-K dated July 19, 1999 was filed on July 21,
1999, announcing the signing of a definitive agreement to
acquire all of the outstanding capital stock of Cedarapids,
Inc.
- - A report on Form 8-K dated July 27, 1999 was filed on July 28,
1999, announcing that valid acceptances of the Company's offer
to acquire all issued share capital of Powerscreen
International plc had been received by approximately 61.24% of
the issued share capital of Powerscreen International plc.
- - A report on Form 8-K dated July 27, 1999 was filed on August
9, 1999, announcing that valid acceptances of the Company's
offer to acquire all issued share capital of Powerscreen
International plc had been received by approximately 61.24% of
the issued share capital of Powerscreen International plc.
This report further disclosed that the financial statements
and pro forma financial information required to be filed in
connection with the acquisition of Powerscreen International
plc would be filed within sixty days.
- - A report on Form 8-K dated August 26, 1999 was filed on
September 9, 1999, announcing the completion of the
acquisition of all of the outstanding capital stock of
Cedarapids, Inc.
- - A report on Form 8-K/A dated July 27, 1999 was filed on
October 8, 1999. The amendment provided the financial
statements and pro forma information required to be filed in
connection with the acquisition of Powerscreen International
plc.
33
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TEREX CORPORATION
(Registrant)
Date: November 10, 1999 /s/ Joseph F. Apuzzo
Joseph F. Apuzzo
Chief Financial Officer
(Principal Financial Officer)
Date: November 10, 1999 /s/ Kevin M. O'Reilly
Kevin M. O'Reilly
Controller
(Principal Accounting Officer)
34
<PAGE>
EXHIBIT INDEX
3.1 Restated Certificate of Incorporation of Terex Corporation
(incorporated by reference to Exhibit 3.1 to the Form S-1 Registration
Statement of Terex Corporation, Registration No. 33-52297).
3.2 Certificate of Elimination with respect to the Series B Preferred
Stock (incorporated by reference to Exhibit 4.3 to the Form 10-K for
the year ended December 31, 1998 of Terex Corporation, Commission File
No. 1-10702).
3.3 Certificate of Amendment to Certificate of Incorporation of Terex
Corporation dated June 5, 1998 (incorporated by reference to Exhibit
3.3 to the Form 10-K for the year ended December 31, 1998 of Terex
Corporation, Commission File No. 1-10702).
3.4 Amended and Restated Bylaws of Terex Corporation (incorporated by
reference to Exhibit 3.2 to the Form 10-K for the year ended December
31, 1998 of Terex Corporation, Commission File No. 1-10702).
4.1 Warrant Agreement dated as of December 20, 1993 between Terex
Corporation and Mellon Securities Trust Company, as Warrant Agent
(incorporated by reference to Exhibit 4.40 to the Form S-1
Registration Statement of Terex Corporation, Registration No.
33-52297).
4.2 Form of Series A Warrant (incorporated by reference to Exhibit 4.41 to
the Form S-1 Registration Statement of Terex Corporation, Registration
No. 33-52297).
4.3 Indenture dated as of March 31, 1998 among Terex Corporation, the
Guarantors named therein and United States Trust Company of New York,
as Trustee (incorporated by reference to Exhibit 4.6 of Amendment No.
1 to the Form S-4 Registration Statement of Terex Corporation,
Registration No. 333-53561).
4.4 First Supplemental Indenture, dated as of September 23, 1998, between
Terex Corporation and United States Trust Company of New York, as
Trustee (to Indenture dated as of March 31, 1998) (incorporated by
reference to Exhibit 4.4 to the Form 10-Q for the quarter ended June
30, 1999 of Terex Corporation, Commission File No. 1-10702).
4.5 Second Supplemental Indenture, dated as of April 1, 1999, between
Terex Corporation and United States Trust Company of New York, as
Trustee (to Indenture dated as of March 31, 1998) (incorporated by
reference to Exhibit 4.5 to the Form 10-Q for the quarter ended June
30, 1999 of Terex Corporation, Commission File No. 1-10702).
4.6 Third Supplemental Indenture, dated as of July 29, 1999, between Terex
Corporation and United States Trust Company of New York, as Trustee
(to Indenture dated as of March 31, 1998) (incorporated by reference
to Exhibit 4.6 to the Form 10-Q for the quarter ended June 30, 1999 of
Terex Corporation, Commission File No. 1-10702).
4.7 Fourth Supplemental Indenture, dated as of August 26, 1999, between
Terex Corporation and United States Trust Company of New York, as
Trustee (to Indenture dated as of March 31, 1999).*
4.8 Indenture dated as of March 9, 1999 among Terex Corporation, the
Guarantors named therein and United States Trust Company of New York,
as Trustee (incorporated by reference to Exhibit 4.4 to the Form 10-K
for the year ended December 31, 1998 of Terex Corporation, Commission
File No. 1-10702).
4.9 First Supplemental Indenture, dated as of April 1, 1999, between Terex
Corporation and United States Trust Company of New York, as Trustee
(to Indenture dated as of March 9, 1999) (incorporated by reference to
Exhibit 4.8 to the Form 10-Q for the quarter ended June 30, 1999 of
Terex Corporation, Commission File No. 1-10702).
4.10 Second Supplemental Indenture, dated as of July 30, 1999, between
Terex Corporation and United States Trust Company of New York, as
Trustee (to Indenture dated as of March 9, 1999) (incorporated by
reference to Exhibit 4.9 to the Form 10-Q for the quarter ended June
30, 1999 of Terex Corporation, Commission File No. 1-10702).
4.11 Third Supplemental Indenture, dated as of August 26, 1999, between
Terex Corporation and United States Trust Company of New York, as
Trustee (to Indenture dated as of March 9, 1999).*
10.1 Terex Corporation Incentive Stock Option Plan, as amended
(incorporated by reference to Exhibit 4.1 to the Form S-8 Registration
Statement of Terex Corporation, Registration No. 33-21483).
10.2 1994 Terex Corporation Long Term Incentive Plan (incorporated by
reference to Exhibit 10.2 to the Form 10-K for the year ended December
31, 1994 of Terex Corporation, Commission File No. 1-10702).
10.3 Terex Corporation Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.3 to the Form 10-K for the year ended December
31, 1994 of Terex Corporation, Commission File No. 1-10702).
10.4 1996 Terex Corporation Long Term Incentive Plan (incorporated by
reference to Exhibit 10.1 to Form S-8 Registration Statement of Terex
Corporation, Registration No. 333-03983).
35
<PAGE>
10.5 Common Stock Appreciation Rights Agreement dated as of May 9, 1995
between the Company and United States Trust Company of New York, as
Rights Agents (incorporated by reference to Exhibit 10.29 of the
Amendment No. 1 to the Form S-1 Registration Statement of Terex
Corporation, Registration No. 33-52711).
10.6 SAR Registration Rights Agreement dated as of May 9, 1995 among the
Company and the Purchasers, as defined therein (incorporated by
reference to Exhibit 10.31 of the Amendment No. 1 to the Form S-1
Registration Statement of Terex Corporation, Registration No.
33-52711).
10.7 Agreement dated as of November 2, 1995 between Terex Corporation, a
Delaware corporation, and Randolph W. Lenz (incorporated by reference
to Exhibit 10 to the Form 10-Q for the Three Months ended September
30, 1995, Commission File No. 1-10702).
10.8 Service Agreement, dated as of November 27, 1996, between Terex
Corporation and CLARK Material Handling Company (incorporated by
reference to Exhibit 10.2 of the Form 8-K Current Report, Commission
File No. 1-10702, dated and filed with the Commission on December 11,
1996).
10.9 Standstill Agreement, dated June 27, 1997, among Terex Corporation,
Randolph W. Lenz and the other parties named herein (incorporated by
reference to Exhibit 10.1 of Amendment No. 1 to the Form S-1
Registration Statement of Terex Corporation, Registration No.
333-27749).
10.10 Credit Agreement dated as of March 6, 1998 among Terex Corporation,
certain of its subsidiaries, the lenders named therein, Credit Suisse
First Boston, as Administrative Agent, Bank Boston N.A., as
Syndication Agent and Canadian Imperial Bank of Commerce and First
Union National Bank, as Co-Documentation Agents (incorporated by
reference to Exhibit 10.13 to the Form 10-K for the year ended
December 31, 1998 of Terex Corporation, Commission File No. 1-10702).
10.11 Guarantee Agreement dated as of March 6, 1998 of Terex Corporation and
Credit Suisse First Boston, as Collateral Agent (incorporated by
reference to Exhibit 10.14 to the Form 10-K for the year ended December
31, 1998 of Terex Corporation, Commission File No. 1-10702).
10.12 Guarantee Agreement dated as of March 6, 1998 of Terex Corporation,
each of the subsidiaries of Terex Corporation listed therein and Credit
Suisse First Boston, as Collateral Agent (incorporated by reference to
Exhibit 10.15 to the Form 10-K for the year ended December 31, 1998 of
Terex Corporation, Commission File No. 1-10702).
10.13 Security Agreement dated as of March 6, 1998 of Terex Corporation, each
of the subsidiaries of Terex Corporation listed therein and Credit
Suisse First Boston, as Collateral Agent (incorporated by reference to
Exhibit 10.16 to the Form 10-K for the year ended December 31, 1998 of
Terex Corporation, Commission File No. 1-10702).
10.14 Pledge Agreement dated as of March 6, 1998 of Terex Corporation, each
of the subsidiaries of Terex Corporation listed therein and Credit
Suisse First Boston, as Collateral Agent (incorporated by reference to
Exhibit 10.17 to the Form 10-K for the year ended December 31, 1998 of
Terex Corporation, Commission File No. 1-10702).
10.15 Form Mortgage, Leasehold Mortgage, Assignment of Leases and Rents,
Security Agreement and Financing entered into by Terex Corporation and
certain of the subsidiaries of Terex Corporation, as Mortgagor, and
Credit Suisse First Boston, as Mortgagee (incorporated by reference to
Exhibit 10.18 to the Form 10-K for the year ended December 31, 1998 of
Terex Corporation, Commission File No. 1-10702).
10.16 Share Purchase Agreement dated December 18, 1997 between O&K AG and
Terex Mining Equipment, Inc. (incorporated by reference to Exhibit
10.19 to the Form 10-K for the year ended December 31, 1998 of Terex
Corporation, Commission File No. 1-10702).
10.17 Amendment No. 1 to Credit Agreement dated as of March 6, 1998 among
Terex Corporation, certain of its subsidiaries, the lenders named
therein, Credit Suisse First Boston, as Administrative and Collateral
Agent (incorporated by reference to Exhibit 10.17 to the Form 10-K for
the year ended December 31, 1998 of Terex Corporation, Commission File
No. 1-10702).
10.18 Amendment No. 2 to Credit Agreement dated as of March 6, 1998 among
Terex Corporation, certain of its subsidiaries, the lenders named
therein, Credit Suisse First Boston, as Administrative and Collateral
Agent (incorporated by reference to Exhibit 10.18 to the Form 10-K for
the year ended December 31, 1998 of Terex Corporation, Commission File
No. 1-10702).
10.19 Amendment No. 3 to Credit Agreement dated as of March 6, 1998 among
Terex Corporation, certain of its subsidiaries, the lenders named
therein, Credit Suisse First Boston, as Administrative and Collateral
Agent (incorporated by reference to Exhibit 10.19 to the Form 10-K for
the year ended December 31, 1998 of Terex Corporation, Commission File
No. 1-10702).
36
<PAGE>
10.20 Amendment No. 4 to Credit Agreement dated as of March 6, 1998 among
Terex Corporation, certain of its subsidiaries, the lenders named
therein, and Credit Suisse First Boston, as Administrative and
Collateral Agent (incorporated by reference to Exhibit 10.1 to the Form
8-K Current Report, Commission File No.1-10702, dated July 27, 1999 and
filed with the Commission on August 10, 1999).
10.21 Amendment No. 5 to Credit Agreement dated as of March 6, 1998 among
Terex Corporation, certain of its subsidiaries, the lenders named
therein, and Credit Suisse First Boston, as Administrative and
Collateral Agent (incorporated by reference to Exhibit 10.2 to the Form
8-K Current Report, Commission File No. 1-10702, dated July 27, 1999
and filed with the Commission on August 10, 1999).
10.22 Amendment No. 6 to Credit Agreement dated as of March 6, 1998 among
Terex Corporation, certain of its subsidiaries, the lenders named
therein, and Credit Suisse First Boston, as Administrative and
Collateral Agent.*
10.23 Tranche C Credit Agreement, dated as of July 2, 1999, as amended and
restated as of August 23, 1999, among Terex Corporation, the lenders
named therein, and Credit Suisse First Boston, as Administrative and
Collateral Agent.*
10.24 Purchase Agreement dated as of March 9, 1999 among the Company and the
Initial Purchasers, as defined therein (incorporated by reference to
Exhibit 10.20 to the Form 10-K for the year ended December 31, 1998 of
Terex Corporation, Commission File No. 1-10702).
10.25 Registration Rights Agreement dated as of March 9, 1999 among the
Company and the Purchasers, as defined therein (incorporated by
reference to Exhibit 10.21 to the Form 10-K for the year ended December
31, 1998 of Terex Corporation, Commission File No. 1-10702).
10.26 Underwriting Agreement, dated as of June 17, 1999, between Terex
Corporation and Salomon Smith Barney Inc. (incorporated by reference to
Exhibit 1 of the Form 8-K Current Report, Commission File No. 1-10702,
dated and filed with the Commission on June 18, 1999).
10.27 Stock Purchase Agreement between Raytheon Engineers & Constructors
International, Inc. and Terex Corporation, dated as of July 19, 1999
(incorporated by reference to Exhibit 10.27 to the Form 10-Q for the
quarter ended June 30, 1999 of Terex Corporation, Commission File No.
1-10702).
10.28 Stock Purchase Agreement between Terex Corporation and Hartford Capital
Appreciation Fund, Inc., dated July 23, 1999 (incorporated by reference
to Exhibit 10.28 to the Form 10-Q for the quarter ended June 30, 1999
of Terex Corporation, Commission File No. 1-10702).
10.29 Contract of Employment, dated as of September 1, 1999, between Terex
Corporation and Filip Filipov.*
10.30 Employment and Compensation Agreement, dated as of January 1, 1999,
between Terex Corporation and Ronald M. DeFeo.*
12.1 Calculation of Ratio of Earnings to Fixed Charges.*
27.1 Financial Data Schedule.*
* Exhibit filed with this document.
37
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TEREX CORPORATION
$150,000,000
8-7/8% Senior Subordinated Notes due 2008
---------------------------------
FOURTH SUPPLEMENTAL INDENTURE
Dated as of August 26, 1999
--------------------------------
UNITED STATES TRUST COMPANY OF NEW YORK,
Trustee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
FOURTH SUPPLEMENTAL INDENTURE
FOURTH SUPPLEMENTAL INDENTURE, dated as of August 26, 1999,
between TEREX CORPORATION, a Delaware corporation (the "Company"), and UNITED
STATES TRUST COMPANY OF NEW YORK, a New York corporation, as trustee (the
"Trustee").
WHEREAS, the Company, and Terex Cranes, Inc., Koehring Cranes,
Inc., PPM Cranes, Inc., Payhauler Corp., Terex-Telelect Inc., Terex Aerials,
Inc., Terex-Ro Corporation, Terex Mining Equipment, Inc., O & K Orenstein &
Koppel, Inc., The American Crane Corporation and Amida Industries, Inc., as
guarantors (collectively, the "Subsidiary Guarantors"), and the Trustee are
parties to an Indenture dated as of March 31, 1998, as amended by First
Supplemental Indenture dated as of September 23, 1998, and as further amended by
Second Supplemental Indenture dated as of April 1, 1999, and as further amended
by Third Supplemental Indenture dated as of July 29, 1999 (said Indenture, as it
may heretofore or hereafter from time to time be amended, the "Indenture")
providing for the issuance of the Company's 8-7/8% Senior Subordinated Notes due
2008 (the "Notes")
WHEREAS, the Company has acquired all of the outstanding
capital stock of Cedarapids, Inc. ("Cedarapids");
WHEREAS, pursuant to the terms of the Indenture, Cedarapids
has become a Restricted Subsidiary organized under the laws of the United States
and, as such, the Company is required to cause Cedarapids to execute and deliver
a supplemental indenture and the Subsidiary Guarantee endorsed on the Notes; and
WHEREAS, the Company, the Subsidiary Guarantors and the
Trustee desire to amend the Indenture to add Cedarapids as a Subsidiary
Guarantor under the Indenture.
NOW, THEREFORE, the Company, the Subsidiary Guarantors,
Cedarapids and the Trustee agree as follows for the equal and ratable benefit of
the Holders of the Notes.
ARTICLE 1
AMENDMENT TO THE INDENTURE
Section 1.01. Cedarapids shall hereby become a Subsidiary Guarantor
under the Indenture effective as of the date hereof, and as such shall be
entitled to all the benefits and be subject to all the obligations, of a
Subsidiary Guarantor thereunder. Cedarapids agrees to be bound by all those
provisions of the Indenture binding upon a Subsidiary Guarantor.
ARTICLE 2
MISCELLANEOUS
Section 2.01. The supplement to the Indenture effected hereby shall be
binding upon all Holders of the Notes, their transferees and assigns. All Notes
issued and outstanding on the date hereof shall be deemed to incorporate by
reference or include the supplement to the Indenture effected hereby.
<PAGE>
Section 2.02. All terms used in this Fourth Supplemental Indenture
which are defined in the Indenture shall have the meanings specified in the
Indenture, unless the context of this Fourth Supplemental Indenture otherwise
requires.
Section 2.03. This Fourth Supplemental Indenture shall become a binding
agreement between the parties when counterparts hereof shall have been executed
and delivered by each of the parties hereto.
Section 2.04. This Fourth Supplemental Indenture shall be construed,
interpreted and the rights of the parties determined in accordance with the laws
of the State of New York, as applied to contracts made and performed within the
State of New York, without regard to principles of conflicts of law.
Section 2.05. This Fourth Supplemental Indenture may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same amendment.
Section 2.06. The recitals contained in this Fourth Supplemental
Indenture are made by the Company and not by the Trustee and all of the
provisions contained in the Indenture, in respect of the rights, privileges,
immunities, powers and duties of the Trustee shall be applicable in respect
thereof as fully and with like effect as if set forth herein in full.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed as of the date first above written.
TEREX CORPORATION
By: /s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Vice President-Corporate Finance
/s/ Eric I Cohen
Eric I Cohen, Secretary
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By: /s/ John Guiliano
Name: John Guiliano
ATTEST: Title: Vice President
/s/ Sirojni Dindial
<PAGE>
(Signature Page to Fourth Supplemental Indenture)
SUBSIDIARY GUARANTORS:
KOEHRING CRANES, INC.
By: /s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
PPM CRANES, INC.
By: /s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
TEREX-TELELECT INC.
By: /s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
TEREX AERIALS INC.
By: /s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
<PAGE>
(Signature Page to Fourth Supplemental Indenture)
THE AMERICAN CRANE CORPORATION
By: /s/ Joseph F. Apuzzo_
Name: Joseph F. Apuzzo
ATTEST: Title: Vice President
/s/ Eric I Cohen
Eric I Cohen, Secretary
TEREX-RO CORPORATION
By: /s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
TEREX CRANES, INC.
By: /s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
PAYHAULER CORP.
By: /s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
<PAGE>
(Signature Page to Fourth Supplemental Indenture)
CEDARAPIDS, INC.
By: /s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TEREX CORPORATION
$100,000,000
8-7/8% Senior Subordinated Notes due 2008
---------------------------------
THIRD SUPPLEMENTAL INDENTURE
Dated as of August 26, 1999
--------------------------------
UNITED STATES TRUST COMPANY OF NEW YORK,
Trustee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
THIRD SUPPLEMENTAL INDENTURE, dated as of August 26, 1999,
between TEREX CORPORATION, a Delaware corporation (the "Company"), and UNITED
STATES TRUST COMPANY OF NEW YORK, a New York corporation, as trustee (the
"Trustee").
WHEREAS, the Company, and Terex Cranes, Inc., Koehring Cranes,
Inc., PPM Cranes, Inc., Payhauler Corp., Terex-Telelect Inc., Terex Aerials,
Inc., Terex-Ro Corporation, Terex Mining Equipment, Inc., O & K Orenstein &
Koppel, Inc., The American Crane Corporation and Amida Industries, Inc., as
guarantors (collectively, the "Subsidiary Guarantors"), and the Trustee are
parties to an Indenture dated as of March 9, 1999, as amended by First
Supplemental Indenture dated as of April 1, 1999, and as further amended by
Second Supplemental Indenture dated as of July 29, 1999 (said Indenture, as it
may heretofore or hereafter from time to time be amended, the "Indenture")
providing for the issuance of the Company's 8-7/8% Senior Subordinated Notes due
2008 (the "Notes");
WHEREAS, the Company has acquired all of the outstanding
capital stock of Cedarapids, Inc. ("Cedarapids");
WHEREAS, pursuant to the terms of the Indenture, Cedarapids
has become a Restricted Subsidiary organized under the laws of the United States
and, as such, the Company is required to cause Cedarapids to execute and deliver
a supplemental indenture and the Subsidiary Guarantee endorsed on the Notes; and
WHEREAS, the Company, the Subsidiary Guarantors and the
Trustee desire to amend the Indenture to add Cedarapids as a Subsidiary
Guarantor under the Indenture.
NOW, THEREFORE, the Company, the Subsidiary Guarantors,
Cedarapids and the Trustee agree as follows for the equal and ratable benefit of
the Holders of the Notes.
ARTICLE 1
AMENDMENT TO THE INDENTURE
Section 1.01. Cedarapids shall hereby become a Subsidiary Guarantor
under the Indenture effective as of the date hereof, and as such shall be
entitled to all the benefits and be subject to all the obligations, of a
Subsidiary Guarantor thereunder. Cedarapids agrees to be bound by all those
provisions of the Indenture binding upon a Subsidiary Guarantor.
ARTICLE 2
MISCELLANEOUS
Section 2.01. The supplement to the Indenture effected hereby shall be
binding upon all Holders of the Notes, their transferees and assigns. All Notes
issued and outstanding on the date hereof shall be deemed to incorporate by
reference or include the supplement to the Indenture effected hereby.
Section 2.02. All terms used in this Third Supplemental Indenture which
are defined in the Indenture shall have the meanings specified in the Indenture,
unless the context of this Third Supplemental Indenture otherwise requires.
<PAGE>
Section 2.03. This Third Supplemental Indenture shall become a binding
agreement between the parties when counterparts hereof shall have been executed
and delivered by each of the parties hereto.
Section 2.04. This Third Supplemental Indenture shall be construed,
interpreted and the rights of the parties determined in accordance with the laws
of the State of New York, as applied to contracts made and performed within the
State of New York, without regard to principles of conflicts of law.
Section 2.05. This Third Supplemental Indenture may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same amendment.
Section 2.06. The recitals contained in this Third Supplemental
Indenture are made by the Company and not by the Trustee and all of the
provisions contained in the Indenture, in respect of the rights, privileges,
immunities, powers and duties of the Trustee shall be applicable in respect
thereof as fully and with like effect as if set forth herein in full.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the date first above written.
TEREX CORPORATION
By:/s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Vice President-Corporate Finance
/s/ Eric I Cohen
Eric I Cohen, Secretary
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By: /s/ John Guiliano
Name: John Guiliano
ATTEST: Title: Vice President
/s/ Sirojni Dindial
<PAGE>
(Signature Page to Third Supplemental Indenture)
SUBSIDIARY GUARANTORS:
KOEHRING CRANES, INC.
By:/s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
PPM CRANES, INC.
By:/s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
TEREX-TELELECT INC.
By:/s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
TEREX AERIALS INC.
By:/s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
<PAGE>
(Signature Page to Third Supplemental Indenture)
THE AMERICAN CRANE CORPORATION
By:/s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Vice President
/s/ Eric I Cohen
Eric I Cohen, Secretary
TEREX-RO CORPORATION
By:/s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
TEREX CRANES, INC.
By:/s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
PAYHAULER CORP.
By:/s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
<PAGE>
(Signature Page to Third Supplemental Indenture)
CEDARAPIDS, INC.
By:/s/ Joseph F. Apuzzo
Name: Joseph F. Apuzzo
ATTEST: Title: Treasurer
/s/ Eric I Cohen
Eric I Cohen, Secretary
CONFORMED COPY
AMENDMENT No. 6 and CONSENT dated as of August 9,
1999 (this "Amendment"), to the Credit Agreement dated as of
March 6, 1998, as amended (the "Credit Agreement"), among
TEREX CORPORATION, a Delaware corporation ("Terex"), TEREX
EQUIPMENT LIMITED, a company organized under the laws of
Scotland (the "Scottish Borrower"), P.P.M. S.A., a company
organized under the laws of the Republic of France (the
"French Borrower"), TEREX MINING (AUSTRALIA) PTY. LTD.
(formerly Unit Rig (Australia) Pty. Ltd.), a company organized
under the laws of New South Wales, Australia (the "Australian
Borrower"), P.P.M. Sp.A., a company organized under the laws
of the Republic of Italy (the "Italian Borrower"), PICADILLY
MASCHINENHANDEL GMBH & CO. KG, a partnership organized under
the laws of the Federal Republic of Germany (the "German
Borrower" and, together with Terex, the Scottish Borrower, the
French Borrower, the Australian Borrower and the Italian
Borrower, the "Borrowers"), the LENDERS (as defined in the
Credit Agreement), the ISSUING BANKS (as defined in the Credit
Agreement) and CREDIT SUISSE FIRST BOSTON, a bank organized
under the laws of Switzerland, acting through its New York
branch ("CSFB"), as administrative agent (in such capacity,
the "Administrative Agent") and as collateral agent (in such
capacity, the "Collateral Agent") for the Lenders.
A. Pursuant to the Credit Agreement, the Lenders and the
Issuing Banks have extended credit to the Borrowers, and have agreed to extend
credit to the Borrowers, in each case pursuant to the terms and subject to the
conditions set forth therein.
B. Terex has informed the Administrative Agent that it intends
to acquire (the "Cedarapids Acquisition") all of the outstanding capital stock
of Cedarapids, Inc. ("Cedarapids") from a subsidiary of Raytheon Company for
aggregate consideration of approximately $170,000,000 in cash.
C. In connection with the Cedarapids Acquisition, Terex and
the other Borrowers have requested that certain provisions of the Credit
Agreement be amended to allow Terex, among other things, to incur up to an
additional $125,000,000 of senior secured indebtedness under the Tranche C
Credit Agreement.
D. The Required Lenders are willing so to amend the Credit
Agreement pursuant to the terms and subject to the conditions set forth herein.
E. Each capitalized term used and not otherwise defined herein
shall have the meaning assigned to such term in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
<PAGE>
SECTION 1. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended as follows:
(i) The following definitions are hereby inserted in alphabetical order:
(A) ""Cedarapids" shall mean Cedarapids, Inc., an Iowa
corporation.";
(B) ""Cedarapids Acquisition" shall mean the acquisition of
all of the outstanding capital stock of Cedarapids from a subsidiary of
Raytheon Company for aggregate consideration of approximately
$170,000,000 in cash.";
(C) ""Cedarapids Closing Date" shall mean the date upon which
Cedarapids becomes a wholly owned Subsidiary of Terex.";
(D) ""Finsub" shall mean a bankruptcy-remote corporation that
is a wholly owned Subsidiary of Terex organized solely for the purpose
of engaging in the Receivables Program.";
(E) ""Program Receivables"shall mean all trade receivables and
related contract rights originated and owned by the Borrower or any
Subsidiary (other than an Inactive Subsidiary) and sold pursuant to the
Receivables Program.";
(F) ""Receivables Program"shall mean, collectively, (a) the
sale of, or transfer of interests in, Program Receivables to Finsub in
exchange for consideration equal to the fair market value of such
Program Receivables (i.e., a "true sale") (provided that not less than
95% of such consideration shall be in the form of cash) and (b) the
sale of, or transfer of interests in, such Program Receivables by
Finsub to special purpose trusts or corporations which are not
Affiliates of the Borrower; provided, that all governing terms and
conditions (including, without limitation, any terms or conditions
providing for recourse to the Borrower or any of its Subsidiaries
(other than Finsub)) of the Receivables Program shall be subject to the
prior written approval of the Administrative Agent, which approval
shall not be unreasonably withheld or delayed."; and
(G) ""Receivables Program Documentation" shall mean all
written agreements that may from time to time be entered into by Terex,
any Subsidiary (other than an Inactive Subsidiary) and/or Finsub in
connection with any Receivables Program, as such agreements may be
amended, supplemented or otherwise modified from time to time in
accordance with the provisions thereof and hereof.".
(ii) The following definitions are hereby amended as follows:
(A) the definition of the term "Applicable Percentage" is
hereby amended by replacing the words "initial borrowing under the
Tranche C Credit Agreement" contained in the proviso of the first
paragraph of such definition with the words "Cedarapids Closing Date"
and by replacing the number "3" at the end of such proviso with the
number "2";
(B) the grid contained in the definition of the term
"Applicable Percentage" is hereby replaced in its entirety with the
following grid:
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
Eurocurrency ABR
Spread-- Spread-- ABR-- ABR
Tranche A Eurocurrency Tranche A A/C Spread--
Term Loans Spread-- Term Loans Fronted Tranche Facility Fee
and Tranche B and Loan B Term Percentage
<S> <C> <C> <C> <C> <C> <C>
Consolidated Revolving Term Loans Revolving Spread Loans
Leverage Ratio Loans Loans
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
Category 1
Greater than or equal to
5.25 to 1.00 2.250% 3.250% 1.250% 1.250% 2.250% 0.500%
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
Category 2
Greater than or equal to
4.50 to 1.00 but less than
5.25 to 1.00 2.000% 3.000% 1.000% 1.000% 2.000% 0.500%
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
Category 3
Greater than or equal to
4.00 to 1.00 but less than
4.50 to 1.00 1.750% 2.750% 0.750% 0.750% 1.750% 0.500%
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
Category 4
Greater than or equal to
3.50 to 1.00 but less than
4.00 to 1.00 1.250% 2.750% 0.250% 0.250% 1.750% 0.500%
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
Category 5
Greater than or equal to
3.00 to 1.00 but less than
3.50 to 1.00 1.125% 2.750% 0.125% 0.125% 1.750% 0.375%
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
Category 6
Less than 3.00 to 1.00 0.875% 2.750% -0.125% 0.000% 1.750% 0.375%
- ----------------------------- -------------- -------------- ------------ ----------- ---------- -------------
</TABLE>
<PAGE>
(C) the definition of the term "Asset Sale" is hereby amended
by inserting prior to the period at the end of such definition the
additional proviso "; and provided, further, that, without limiting the
generality of the foregoing and any rights that exist as a result
thereof with respect to the sale of accounts receivable, the sale of
Program Receivables pursuant to the Receivables Program shall be deemed
not to be an "Asset Sale" for the purposes of this Agreement";
(D) the definition of the term "Consolidated Interest Expense"
is hereby amended by inserting the following sentence at the end of
such definition:
"Notwithstanding that the Receivables Program does
not constitute Indebtedness under GAAP, for the purposes of
calculating Consolidated Interest Expense under this
Agreement, Consolidated Interest Expense shall also include,
for any period, any fees, discounts, premiums, expenses or
similar amounts (other than legal fees and expenses) incurred,
without duplication, by Terex or any of its Subsidiaries in
connection with the Receivables Program for such period,
including, without limitation, purchase discounts (net of any
loss reserves), purchase premiums, operating expense fees,
structuring fees, collection agent fees, unutilized purchase
limit fees and other similar fees and expenses.";
(E) the definition of the term "Indebtedness" is hereby
amended by inserting the following sentence at the end of such
definition:
"Notwithstanding that the Receivables Program does
not constitute Indebtedness under GAAP, solely for the
purposes of calculating Indebtedness under this Agreement, the
Indebtedness of Finsub shall also include all consideration
provided to Finsub by the purchaser of Program Receivables
less any amounts collected (or deemed collected) with respect
to such Program Receivables and accounted for as required by
the Receivables Program Documentation (such amount being
referred to in the Receivables Program Documentation as the
"Investment").";
(F) the definition of the term "Total Debt" is hereby amended
by replacing the identifier "(i)" in the fourth line of such definition
with the identifier "(j)" and by adding the word "Consolidated" in
front of the words "Leverage Ratio"in the fifth line of such
definition; and
(G) the definition of the term "Tranche C Credit Agreement" is
hereby amended and restated in its entirety to read as follows:
""Tranche C Credit Agreement" shall mean the Tranche
C Credit Agreement, dated as of July 2, 1999, as amended and
restated as of July 12, 1999, among Terex, the lenders from
time to time party thereto and CSFB, as administrative agent
and as collateral agent for such lenders, as amended,
supplemented or otherwise modified from time to time.".
<PAGE>
(b) Section 5.11(a) of the Credit Agreement is hereby amended by
inserting the words "or Finsub" following the words "Inactive Subsidiary"
contained in the second sentence of such subsection.
(c) Section 6.01 of the Credit Agreement is hereby amended as follows:
(i) by inserting the words "or Finsub (except as expressly
permitted by subsection (q) below)" following the words "Inactive
Subsidiary" contained in the initial clause to such Section 6.01;
(ii) by replacing the number "$325,000,000" contained in
subsection (b) with the number "$450,000,000";
(iii) by amending and restating subsection (e) in its entirety to
read as follows:
"(e) Indebtedness of (i) Terex or any wholly owned
Subsidiary (other than an Inactive Subsidiary or Finsub) to
any other wholly owned Subsidiary (other than an Inactive
Subsidiary or Finsub), (ii) any wholly owned Subsidiary (other
than an Inactive Subsidiary or Finsub) to Terex or (iii)
Finsub to Terex or any wholly owned Subsidiary (other than an
Inactive Subsidiary) incurred pursuant to the Receivables
Program; provided, however, that (i) any Indebtedness of a
Loan Party shall be subordinated to the prior payment in full
of the Obligations and (ii) any Indebtedness of Finsub
incurred pursuant to this subsection (e) shall be permitted
only for such limited period of time as is required to account
for any sale of Program Receivables, which period of time
shall not in any event exceed two Business Days;";
(iv) by deleting the word "and" at the end of subsection (p);
(v) by relettering subsection "(q)" as subsection "(r)"; and
(vi) by inserting the following new subsection (q):
"(q) Indebtedness of Finsub incurred pursuant to the
Receivables Program Documentation in an amount not exceeding
$100,000,000 in the aggregate at any time outstanding; and".
(d) Section 6.02 of the Credit Agreement is hereby amended as follows:
(i) by inserting the words "or Finsub" following the words
"Inactive Subsidiary" in subsection (i);
(ii) by deleting the word "and" at the end of subsection
(n);
(iii) by replacing the period at the end of subsection (o)
with the words "; and"; and
(iv) by inserting the following new subsection (p):
"(p) Liens on the property of Finsub incurred pursuant
to the Receivables Program Documentation.".
(e) Section 6.04(c) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
<PAGE>
"(c) Terex may make the Acquisition, the Powerscreen
Acquisition and the Cedarapids Acquisition; provided, however, that
Terex complies with, and causes its Subsidiaries to comply with, the
relevant provisions of Section 5.11 and the Security Documents;".
(f) Section 6.05(a) of the Credit Agreement is hereby amended as
follows:
(i) by inserting the words "or Finsub" following the
words "Inactive Subsidiary" in clause (i);
(ii) by inserting the parenthetical "(other than
Finsub)" following the words "wholly owned Subsidiary" in
clause (ii)(A) and the first occurrence of the words "wholly
owned Subsidiary" in clause (ii)(B); and
(iii) by replacing the words "and (ii)" in the seventh
line of such subsection with the words ", (ii)(A) Terex and
any Subsidiary (other than an Inactive Subsidiary) may sell
Program Receivables to Finsub and (B) Finsub may sell
Program Receivables pursuant to the Receivables Program
Documentation and (iii)".
(g) Section 6.06(b) of the Credit Agreement is hereby amended by
inserting prior to the period at the end of such subsection the words ", except,
in the case of Finsub, for encumbrances or restrictions existing pursuant to the
Receivables Program Documentation".
(h) Section 6.07 of the Credit Agreement is hereby amended by inserting
prior to the period at the end of such section the words " or any transaction
between Terex or any Subsidiary (other than an Inactive Subsidiary) and Finsub
pursuant to the Receivables Program".
(i) Section 6.08 of the Credit Agreement is hereby amended by inserting
prior to the period at the end of such section the words " and Finsub shall not
engage in any trade or business, or otherwise conduct any business activity,
other than the performance of its obligations pursuant to the Receivables
Program and other incidental activities".
(j) Article VIII of the Credit Agreement is hereby amended by inserting
the words "and the Program Receivables" after the word "Collateral" in the last
sentence of the first paragraph of such Article VIII.
SECTION 2. Consent.
The Required Lenders hereby consent to the amendment and
restatement of the Tranche C Credit Agreement in order to provide for up to an
additional $125,000,000 of senior secured indebtedness and related matters;
provided that such amendment and restatement is substantially in the form of
Exhibit A hereto. The Required Lenders hereby consent to an amendment to the
Borrower's Indenture dated as of March 31, 1998, among the Borrower, the
subsidiary guarantors party thereto and United States Trust Company of New York,
as trustee, whereby the maturity date of the senior subordinated notes governed
by such indenture is accelerated by exactly one week to March 25, 2008.
<PAGE>
SECTION 3. Representations and Warranties.
Each of the Borrowers represents and warrants to each other
party hereto that, after giving effect to this Amendment, (a) the
representations and warranties set forth in Article III of the Credit Agreement
are true and correct in all material respects on and as of the Cedarapids
Closing Date, except to the extent such representations and warranties expressly
relate to an earlier date, and (b) no Default or Event of Default has occurred
and is continuing.
SECTION 4. Effectiveness.
This Amendment shall become effective as of the date that the
Administrative Agent or its counsel shall have received counterparts of this
Amendment which, when taken together, bear the signatures of each of the
Borrowers and the Required Lenders; provided, however, that this Amendment shall
not become effective prior to the Cedarapids Closing Date.
<PAGE>
SECTION 5. Effect of Amendment.
Except as expressly set forth herein, this Amendment shall not
by implication or otherwise limit, impair, constitute a waiver of, or otherwise
affect the rights and remedies of the Lenders, the Swingline Lender, any Issuing
Bank, the Collateral Agent or the Administrative Agent, under the Credit
Agreement or any other Loan Document, and shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Loan Document, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect. Nothing herein shall be deemed to entitle any Borrower to a consent
to, or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document in similar or different circumstances. This
Amendment shall apply and be effective only with respect to the provisions of
the Credit Agreement specifically referred to herein.
SECTION 6. Counterparts.
This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. Delivery of any
executed counterpart of a signature page of this Amendment by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 7. Applicable Law.
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Headings.
The headings of this Amendment are for purposes of reference
only and shall not limit or otherwise affect the meaning hereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
TEREX CORPORATION,
by
/s/ Eric I. Cohen
Name: Eric I. Cohen
Title: Senior Vice President
TEREX EQUIPMENT LIMITED,
by
/s/ Eric I. Cohen
Name: Eric I. Cohen
Title: Director
P.P.M. S.A.,
by
/s/ Eric I. Cohen
Name: Eric I. Cohen
Title: Director
TEREX MINING (AUSTRALIA) PTY. LTD.,
(f/k/a UNIT RIG (AUSTRALIA) PTY. LTD.),
by
/s/ Eric I. Cohen
Name: Eric I. Cohen
Title: Director
P.P.M. Sp.A,
by
/s/ Fil Filipov
Name: Fil Filipov
Title: President & Director
PICADILLY MASCHINENHANDEL
GMBH & CO. KG,
by
/s/ Eric I. Cohen
Name: Eric I. Cohen
Title: Managing Director
of Managing Partner
<PAGE>
'
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent,
Collateral Agent and Swingline Lender,
by
/s/ Kristin Lepri
Name: Kristin Lepri
Title: Associate
by
/s/ Chris Cunningham
Name: Chris Cunningham
Title: Director
ABN AMRO BANK N.V.,
by
/s/ Donald Sutton
Name: Donald Sutton
Title: Vice President
by
/s/ John Hennessy
Name: John Hennessy
Title: Senior Vice President
ARES LEVERAGED INVESTMENT FUND, L.P.,
By: ARES MANAGEMENT, L.P., its General Partner,
by
/s/ David A. Sachs
Name: David A. Sachs
Title: Vice President
ARES LEVERAGED INVESTMENT FUND II, L.P.,
By:ARES MANAGEMENT II, L.P., its General Partner,
by
/s/ David A. Sachs
Name: David A. Sachs
Title: Vice President
<PAGE>
BANKBOSTON,
by
/s/ Christopher T. Phelan
Name: Christopher T. Phelan
Title: Director
BANK OF TOKYO - MITSUBISHI
TRUST COMPANY,
by
/s/ Akiko M. Sakamoto
Name: Akiko M. Sakamoto
Title: Assistant Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
by
/s/ Koren Volk
Name: Koren Volk
Title: Authorized Signatory
CIBC, INC.,
by
/s/ Ihor Zaluckyj
Name: Ihor Zaluckyj
Title: Executive Director
CIBC World Markets Corp., as Agent
CREDIT LYONNAIS NEW YORK BRANCH,
by
/s/ Scott R. Chappelka
Name: Scott R. Chappelka
Title: Vice President
<PAGE>
CYPRESSTREE INVESTMENT PARTNERS I, LTD.,
By: CypressTree Investment Management Company,
Inc., as Portfolio Manager,
by
/s/ Philip C. Robbins
Name: Philip C. Robbins
Title: Principal
DEBT STRATEGIES FUND II, INC.,
by
/s/ Paul Travers
Name: Paul Travers
Title: Authorized Signatory
DEUTSCHE FINANCIAL SERVICES CORPORATION,
by
/s/ Edwin G. Chewning
Name: Edwin G. Chewning
Title: Vice President
FIRST UNION NATIONAL BANK,
by
/s/ Joel Thomas
Name: Joel Thomas
Title: Vice President
HSBC BANK USA,
by
/s/ Susan L. LeFevre
Name: Susan L. LeFevre
Title: Authorized Signatory
KZH CYPRESSTREE-1 LLC,
by
/s/ Peter Chin
Name: Peter Chin
Title: Authorized Agent
<PAGE>
KZH PAMCO LLC,
by
/s/ Peter Chin
Name: Peter Chin
Title: Authorized Agent
KZH SHOSHONE LLC,
by
/s/ Peter Chin
Name: Peter Chin
Title: Authorized Agent
MERRILL LYNCH GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO,
By: Merrill Lynch Asset Management, L.P., as
Investment Advisor,
by
/s/ Paul Travers
Name: Paul Travers
Title: Authorized Signatory
MERRILL LYNCH PRIME RATE PORTFOLIO,
By: Merrill Lynch Asset Management, L.P., as
Investment Advisor,
by
/s/ Paul Travers
Name: Paul Travers
Title: Authorized Signatory
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.,
by
/s/ Paul Travers
Name: Paul Travers
Title: Authorized Signatory
<PAGE>
SENIOR DEBT PORTFOLIO,
By: Boston Management and Research, as
Investment Advisor,
by
/s/ Payson F. Swaffield
Name: Payson F. Swaffield
Title: Vice President
EATON VANCE SENIOR INCOME TRUST,
By: Eaton Vance Management,
as Investment Advisor
by
/s/ Payson F. Swaffield
Name: Payson F. Swaffield
Title: Vice President
SENIOR HIGH INCOME PORTFOLIO, INC.,
by
/s/ Paul Travers
Name: Paul Travers
Title: Authorized Signatory
THE CIT GROUP / EQUIPMENT FINANCE
by
/s/ Daniel E. A. Nichols
Name: Daniel E. A. Nichols
Title: Assistant Vice President
TRANCHE C CREDIT AGREEMENT
dated as of July 2, 1999,
as Amended and Restated as of August 23, 1999,
among
TEREX CORPORATION,
THE LENDERS NAMED HEREIN
and
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
and
as Collateral Agent
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Lead Arranger,
and
DRESDNER KLEINWORT BENSON,
as Co-Lead Arranger for the Powerscreen Facility
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms........................................... 2
SECTION 1.02. Terms Generally......................................... 25
ARTICLE II
The Credits
SECTION 2.01. Commitments............................................. 25
SECTION 2.02. Loans................................................... 25
SECTION 2.03. Borrowing Procedure..................................... 26
SECTION 2.04. Evidence of Debt; Repayment of Loans.................... 27
SECTION 2.05. Fees.................................................... 27
SECTION 2.06. Interest on Loans....................................... 28
SECTION 2.07. Default Interest........................................ 28
SECTION 2.08. Alternate Rate of Interest.............................. 28
SECTION 2.09. Termination and Reduction of Commitments................ 29
SECTION 2.10. Conversion and Continuation of Borrowings............... 29
SECTION 2.11. Repayment of Borrowings................................. 30
SECTION 2.12. Prepayment.............................................. 32
SECTION 2.13. Mandatory Prepayments................................... 33
SECTION 2.14. Reserve Requirements; Change in Circumstances........... 34
SECTION 2.15. Change in Legality...................................... 36
SECTION 2.16. Indemnity............................................... 36
SECTION 2.17. Pro Rata Treatment...................................... 37
SECTION 2.18. Sharing of Setoffs...................................... 37
SECTION 2.19. Payments................................................ 37
SECTION 2.20. Taxes................................................... 38
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate................................... 39
SECTION 2.22. Pro Rata Treatment of Loans and Existing Term Loans..... 40
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.................................... 41
SECTION 3.02. Authorization........................................... 41
SECTION 3.03. Enforceability.......................................... 41
SECTION 3.04. Governmental Approvals.................................. 41
SECTION 3.05. Financial Statements.................................... 42
SECTION 3.06. No Material Adverse Change.............................. 42
SECTION 3.07. Title to Properties; Possession Under Leases............ 42
SECTION 3.08. Subsidiaries............................................ 43
SECTION 3.09. Litigation; Compliance with Laws........................ 43
SECTION 3.10. Agreements.............................................. 44
SECTION 3.11. Federal Reserve Regulations............................. 44
SECTION 3.12. Investment Company Act; Public Utility Holding 44
Company Act.......................................... 44
SECTION 3.13. Use of Proceeds......................................... 44
SECTION 3.14. Tax Returns............................................. 44
SECTION 3.15. No Material Misstatements............................... 44
SECTION 3.16. Employee Benefit Plans.................................. 44
SECTION 3.17. Environmental Matters................................... 45
SECTION 3.18. Insurance............................................... 46
SECTION 3.19. Security Documents...................................... 46
SECTION 3.20. Location of Real Property and Leased Premises........... 47
SECTION 3.21. Labor Matters........................................... 47
SECTION 3.22. Solvency................................................ 47
SECTION 3.23. Year 2000 Matters....................................... 47
SECTION 3.24. Powerscreen Offer Documents............................. 48
ARTICLE IV
Conditions of Lending
SECTION 4.01. Conditions Precedent to Effectiveness................... 48
SECTION 4.02. Conditions Precedent to Each Powerscreen
Acquisition Borrowing................................. 51
SECTION 4.03. Conditions Precedent to Other Borrowings................ 52
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties.................... 53
SECTION 5.02. Insurance............................................... 53
SECTION 5.03. Obligations and Taxes................................... 55
SECTION 5.04. Financial Statements, Reports, etc...................... 55
SECTION 5.05. Litigation and Other Notices............................ 56
SECTION 5.06. Employee Benefits....................................... 56
SECTION 5.07. Maintaining Records; Access to Properties 56
and Inspections...................................... 56
SECTION 5.08. Use of Proceeds......................................... 57
SECTION 5.09. Compliance with Environmental Laws...................... 57
SECTION 5.10. Preparation of Environmental Reports.................... 57
SECTION 5.11. Further Assurances...................................... 57
SECTION 5.12. Interest Rate Protection Agreements..................... 58
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness............................................ 58
SECTION 6.02. Liens................................................... 60
SECTION 6.03. Sale and Lease-Back Transactions........................ 62
SECTION 6.04. Investments, Loans and Advances......................... 62
SECTION 6.05. Mergers, Consolidations, Sales of Assets
and Acquisitions...................................... 63
SECTION 6.06. Dividends and Distributions; Restrictions on
Ability of Subsidiaries to Pay Dividends.............. 64
SECTION 6.07. Transactions with Affiliates............................ 64
SECTION 6.08. Business of Borrower and Subsidiaries................... 65
SECTION 6.09. Other Indebtedness and Agreements....................... 65
SECTION 6.10. Capital Expenditures.................................... 66
SECTION 6.11. Consolidated Leverage Ratio............................. 66
SECTION 6.12. Consolidated Interest Coverage Ratio.................... 66
SECTION 6.13. Consolidated Fixed Charge Coverage Ratio................ 66
SECTION 6.14. Fiscal Year............................................. 67
ARTICLE VII
Powerscreen Offer Covenants
SECTION 7.01. Powerscreen Offer Affirmative Covenants................. 67
SECTION 7.02. Powerscreen Offer Negative Covenants.................... 67
ARTICLE VIII
Events of Default
SECTION 8.01. Events of Default....................................... 68
SECTION 8.02. Acceleration............................................ 70
ARTICLE IX
The Administrative Agent and the Collateral Agent 71
- -------------------------------------------------
ARTICLE X
Miscellaneous
SECTION 10.01. Notices................................................. 73
SECTION 10.02. Survival of Agreement................................... 74
SECTION 10.03. Binding Effect.......................................... 74
SECTION 10.04. Successors and Assigns.................................. 74
SECTION 10.05. Expenses; Indemnity..................................... 77
SECTION 10.06. Right of Setoff......................................... 78
SECTION 10.07. Applicable Law.......................................... 78
SECTION 10.08. Waivers; Amendment...................................... 79
SECTION 10.09. Interest Rate Limitation................................ 79
SECTION 10.10. Entire Agreement........................................ 79
SECTION 10.11. Waiver of Jury Trial.................................... 80
SECTION 10.12. Severability............................................ 80
SECTION 10.13. Counterparts............................................ 80
SECTION 10.14. Headings................................................ 80
SECTION 10.15. Jurisdiction; Consent to Service of Process............. 80
SECTION 10.16. Confidentiality......................................... 81
SECTION 10.17. Rights of Existing Lenders.............................. 81
SECTION 10.18. Designated Senior Indebtedness.......................... 82
- --------------------------------------------------------------------------------
SCHEDULES
Schedule 1.01(a) Powerscreen Offer Conditions Precedent
Schedule 1.01(b) Subsidiary Guarantors
Schedule 1.01(c) Mortgaged Properties
Schedule 1.01(d) Mortgages
Schedule 2.01 Lenders; Commitments
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.18 Insurance
Schedule 3.19 Cedarapids Mortgage Filing Locations
Schedule 3.20(a) Owned Real Property
Schedule 3.20(b) Leased Real Property
Schedule 3.24(a) Powerscreen Press Release
Schedule 3.24(b) Powerscreen Offer Document
Schedule 4.01(a) Local Counsel
EXHIBITS
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D-1 Form of Opinion of General Counsel
Exhibit D-2 Form of Opinion of Local Counsel
<PAGE>
TRANCHE C CREDIT AGREEMENT dated as
of July 2, 1999, as amended and restated as
of August 23, 1999 (this "Agreement"), among
TEREX CORPORATION, a Delaware corporation,
the LENDERS party hereto and CREDIT SUISSE
FIRST BOSTON, a bank organized under the
laws of Switzerland and acting through its
New York branch, as administrative agent and
collateral agent for the Lenders.
Terex Corporation, a Delaware corporation (the "Borrower"), the
Powerscreen Lenders (such term, and each other capitalized term used but not
defined in this preamble, having the definition assigned to it in Article I) and
CSFB are parties to a Tranche C Credit Agreement dated as of July 2, 1999, as
amended and restated as of July 12, 1999, and as amended as of July 23, 1999
(the "Original Tranche C Credit Agreement"), pursuant to which the Powerscreen
Lenders agreed to extend credit in the form of Powerscreen Loans to be made
during the Powerscreen Availability Period in an aggregate principal amount not
in excess of $325,000,000.
The Borrower has informed the Lenders that it intends to acquire all of
the outstanding capital stock of Cedarapids, Inc., an Iowa corporation
("Cedarapids"), from a subsidiary of Raytheon Company for aggregate
consideration of approximately $170,000,000 in cash (the "Cedarapids
Acquisition"). In connection with the Cedarapids Acquisition, the Borrower has
requested (a) that the Original Tranche C Credit Agreement (including all
exhibits and schedules thereto) be amended and restated in the form hereof and
(b) that the Cedarapids Lenders extend credit in the form of Cedarapids Loans to
be made on the Effective Date in an aggregate principal amount not in excess of
$125,000,000.
The proceeds of the Loans will be used as follows:
(a) The proceeds of the Powerscreen Loans will be contributed
or advanced to Bidco and will be used by Bidco solely (a) to finance
the acquisition of Powerscreen Shares (whether pursuant to the
Powerscreen Offer, through open market purchases made in accordance
with applicable law following the Unconditional Date or pursuant to the
provisions of Section 428 et. seq. of the U.K. Companies Act of 1985),
(b) to finance proposals to holders of options over Powerscreen Shares
in accordance with Rule 15 of the City Code, (c) to repay existing net
indebtedness of Powerscreen and (d) to pay related fees and expenses.
To the extent not used pursuant to clauses (a) through (d) above, the
proceeds of the Powerscreen Loans may be used by the Borrower for
general corporate purposes as otherwise permitted herein; provided,
however, that the proceeds from all Powerscreen Loans used for such
general corporate purposes shall not exceed $50,000,000 in the
aggregate.
(b) The proceeds of the Cedarapids Loans will be used solely
to finance the purchase of the outstanding capital stock of Cedarapids
and to pay related fees and expenses.
<PAGE>
The Powerscreen Lenders are willing to so amend and restate the
Original Tranche C Credit Agreement (including all exhibits and schedules
thereto), and the Cedarapids Lenders are willing to extend such additional
credit in the form of Cedarapids Loans to the Borrower, in each case on the
terms and subject to the conditions set forth herein.
Accordingly, 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 Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of
Article II.
"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 Subsidiary of the Borrower or at the time it merges or consolidates
with the Borrower or any of its 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 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 a credit facility, and any
refinancing or replacement of such facility, entered into by the Borrower, one
or more of the Subsidiary Borrowers and one or more Lenders or Existing Lenders
that shall have as its sole purpose the issuance of letters of credit to be used
by the Borrower 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 or Existing Lender
that shall issue Additional Letters of Credit pursuant to the Additional L/C
Facility.
<PAGE>
"Additional Letter of Credit" shall mean each letter of credit issued
pursuant to the Additional L/C Facility.
"Additional Subordinated Notes" shall mean subordinated notes issued
from time to time by the Borrower, or assumed in connection with a Permitted
Acquisition; provided that (a) except in the case of Additional Subordinated
Notes assumed in connection with a Permitted Acquisition, the Net Cash Proceeds
thereof are used either (i) to finance one or more Permitted Acquisitions or
(ii) to prepay Loans in accordance with Section 2.13(c), (b) such subordinated
notes do not require any scheduled payment of principal prior to a date that is
12 months after the Maturity Date and (c) 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 Senior Subordinated Notes.
"Administrative Agent" shall mean CSFB in its capacity as
administrative agent under this Agreement unless and until a successor agent is
appointed pursuant to Article IX.
"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.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A.
"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 IX.
<PAGE>
"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.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurocurrency Loan or ABR Loan, as the case may be, the applicable percentage set
forth below under the caption "Eurocurrency Loan Spread" or "ABR Loan Spread",
as the case may be, based upon the Consolidated Leverage Ratio as of the
relevant date of determination; provided that, until the first day of the month
immediately following the date that is 90 days after the Effective Date, the
Applicable Percentage shall be deemed to be in Category 2:
- --------------------------------------------------------------------------------
Consolidated
Leverage Ratio Eurocurrency Loan ABR Loan
Spread Spread
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Category 1
Greater than or equal to 5.25 to 1.00
3.50% 2.50%
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Category 2
Greater than or equal to 4.50 to 1.00
but less than 5.25 to 1.00 3.25% 2.25%
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Category 3
Less than 4.50 to 1.00 3.00% 2.00%
- --------------------------------------------------------------------------------
Except as provided for in the proviso to the preceding paragraph, each change in
the Applicable Percentage resulting from a change in the Consolidated Leverage
Ratio shall be effective with respect to all Loans on the date of delivery to
the Administrative Agent of the financial statements and certificates required
by Section 5.04(a) or (b) 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 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.
"Approved Fund" shall have the meaning assigned to such term in Section
10.04(b).
"Arrangement and Administrative Fees" shall have the meaning assigned
to such term in Section 2.05(b).
"Arrangers" shall mean Credit Suisse First Boston Corporation and
Dresdner Kleinwort Benson.
<PAGE>
"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 the
Borrower or any Subsidiary to any person other than the Borrower or any
Subsidiary Guarantor of (a) any capital stock of any Subsidiary (other than
directors' qualifying shares) or (b) any other assets of the Borrower or any
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 the Borrower or any 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 $1,000,000 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.
"Bidco" shall mean New Terex Holdings UK Limited, a limited company
incorporated under the laws of England and a wholly owned Subsidiary of the
Borrower.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" shall have the meaning assigned to such term in the preamble
to this Agreement.
"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 the Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C.
"Breakage Event" shall have the meaning assigned to such term in
Section 2.16.
"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 any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"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.
"Cedarapids" shall have the meaning assigned to such term in the
preamble to this Agreement.
<PAGE>
"Cedarapids Acquisition" shall have the meaning assigned to such term
in the preamble to this Agreement.
"Cedarapids Acquisition Documents" shall mean the Stock Purchase
Agreement dated as of July 19, 1999, between Raytheon Engineers & Constructors
International, Inc. and the Borrower, and any other agreement, instrument or
other document to be entered into or delivered by, between or among such parties
and any of their respective Affiliates in connection with the Cedarapids
Acquisition, as each such agreement, instrument or document may be amended,
modified or supplemented from time to time in accordance with the terms thereof
and hereof.
"Cedarapids Borrowing" shall mean a Borrowing comprised of Cedarapids
Loans.
"Cedarapids Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Cedarapids Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Cedarapids 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
10.04.
"Cedarapids Companies" shall mean Cedarapids and each of its
subsidiaries.
"Cedarapids Fee Letter" shall mean the Fee Letter dated as of August 3,
1999, between the Borrower and CSFB.
"Cedarapids Lenders" shall mean the Lenders holding Cedarapids Loans or
having Cedarapids Commitments.
"Cedarapids Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(b).
"Cedarapids Loans" shall mean the loans made by the Lenders to the
Borrower pursuant to clause (b) of Section 2.01.
"Cedarapids Mortgages" shall mean the Mortgages on the properties owned
or leased by the Cedarapids Companies.
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 Effective Date) shall own directly or indirectly,
beneficially or of record, shares representing more than 30% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Borrower; (b) a majority of the seats (other than vacant seats) on the board
of directors of the Borrower shall at any time be occupied by persons who were
neither (i) nominated by the board of directors of the Borrower, nor (ii)
appointed by directors so nominated; (c) any change in control (or similar
event, however denominated) with respect to the Borrower or any of its
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 the Borrower or any of its Subsidiaries is a party; or (d)
any person or group shall otherwise directly or indirectly Control the Borrower.
"Charges" shall have the meaning assigned to such term in Section
10.09.
<PAGE>
"City Code" shall mean The City Code on Takeovers and Mergers (U.K.).
"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.
"Collateral Agent" shall mean CSFB in its capacity as collateral agent
under this Agreement unless and until a successor agent is appointed pursuant to
Article IX.
"Commitment" shall mean, with respect to any Lender, such Lender's
Powerscreen Commitment and Cedarapids Commitment.
"Commitment Fees" shall have the meaning assigned to such term in
Section 2.05(a).
"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 Memoranda" shall mean the Confidential
Information Memorandum of the Borrower dated June 1999 and the Confidential
Information Memorandum of the Borrower dated August 1999.
"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 the Borrower or any of its 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 the Borrower and the Subsidiaries for such period
(including the amount of assets leased by incurring any Capital 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 the Borrower and its
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 Existing Revolver
Loans) that would properly be classified as current liabilities of the Borrower
and its Subsidiaries as of such date, determined on a consolidated basis in
accordance with GAAP.
<PAGE>
"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 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 the Borrower
and the 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 but excluding payments for
inventory to be sold in the ordinary course of business) of the Borrower and its
Subsidiaries on a consolidated basis during such period (other than repayments
of 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 the Borrower and its Subsidiaries
shall mean, for any period, interest expense of the Borrower and its
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 the Borrower and its 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 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.
<PAGE>
"Consolidated Net Income" shall mean, for any period, the sum of net
income (or loss) for such period of the Borrower and its Subsidiaries on a
consolidated basis determined in accordance with GAAP, but excluding: (a) the
income (or loss) of any person accrued prior to the date it became a Subsidiary
of the Borrower or is merged into or consolidated with the Borrower or such
person's assets are acquired by the Borrower or any of its Subsidiaries; (b)
non-recurring gains (or losses) during such period; (c) extraordinary gains (or
losses), as defined under GAAP during such period; and (d) the income of any
Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by the 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 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.
"CSFB" shall mean Credit Suisse First Boston, a bank organized under
the laws of Switzerland, acting through its New York branch.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of
America.
"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.
"Effective Date" shall mean the date that Cedarapids becomes a wholly
owned Subsidiary of the Borrower.
"Engagement Letter" shall mean the Engagement Letter dated June 11,
1999, among the Borrower and the Arrangers.
"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.
<PAGE>
"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 management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. Sections9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. Sections6901 et seq., the Federal Water Pollution Control Act, as amended
by the Clean Water Act of 1977, 33 U.S.C. Sections1251 et seq., the Clean Air
Act of 1970, as amended 42 U.S.C. Sections7401 et seq., the Toxic Substances
Control Act of 1976, 15 U.S.C. Sections2601 et seq., the Occupational Safety and
Health Act of 1970, as amended, 29 U.S.C. Sections651 et seq., the Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Sections11001 et
seq., the Safe Drinking Water Act of 1974, as amended, 42 U.S.C. Sections300(f)
et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Sections5101 et
seq., and any similar or implementing state or local law, and all amendments or
regulations promulgated under any of the foregoing.
"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 the Borrower or any
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 warrant to acquire such securities or such convertible
or exchangeable obligations, except in each case for (a) any issuance or sale to
the Borrower or any Subsidiary, (b) any issuance of directors' qualifying
shares, (c) sales or issuances of common stock to management or employees of the
Borrower or any 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 to the extent that (i) the proceeds from all
sales and issuances described in this clause (c) shall not exceed in the
aggregate $1,000,000 in any fiscal year of the Borrower and (ii) the shares of
common stock issued pursuant to this clause (c) shall not exceed 10% of the
common stock of the Borrower or such Subsidiary, as applicable.
"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 the Borrower, 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.
<PAGE>
"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 the Borrower or any of its ERISA Affiliates from any
Plan or Multiemployer Plan; (f) the receipt by the Borrower 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 the Borrower 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 the Borrower or any of its Subsidiaries is a
"disqualified person" (within the meaning of Section 4975 of the Code) or with
respect to which the Borrower 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 the Borrower; and
(j) any Foreign Benefit Event.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Section 8.01.
"Excess Cash Flow" shall mean, for any fiscal year of the Borrower, the
excess of (a) the sum, without duplication, of (i) Consolidated EBITDA for such
fiscal year, (ii) extraordinary or non-recurring cash receipts of the Borrower
and its Subsidiaries, if any, during such fiscal year and not included in
Consolidated EBITDA and (iii) reductions to non-cash working capital of the
Borrower and its Subsidiaries for such fiscal year (i.e., the decrease, if any,
in Consolidated Current Assets minus Consolidated Current Liabilities from 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 the Borrower
and its Subsidiaries with respect to such fiscal year, (ii) cash interest paid
by the Borrower and its 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 the Borrower
and its Subsidiaries during such fiscal year, (v) optional and mandatory
prepayments of the principal of the Loans and the Existing Term Loans and
reductions of revolving credit commitments under the Existing Credit Agreement
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 or Existing Loans, (vi) extraordinary or non-recurring expenses and
losses to the extent paid in cash by the Borrower and its 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.
"Existing Credit Agreement" shall mean the Credit Agreement, dated as
of March 6, 1998, among the Borrower, the Subsidiary Borrowers, the Existing
Lenders, the issuing banks party thereto and CSFB, as administrative agent and
collateral agent for such lenders and issuing banks, as amended, supplemented or
otherwise modified from time to time.
<PAGE>
"Existing Lenders" shall mean the lenders from time to time party to
the Existing Credit Agreement.
"Existing Loans" shall mean the Existing Term Loans and the Existing
Revolver Loans.
"Existing Revolver Loans" shall mean the Revolving Loans, the A/C
Fronted Loans and the Swingline Loans as such terms are defined in the Existing
Credit Agreement.
"Existing Term Loans" shall mean the Term Loans as such term is defined
in the Existing Credit Agreement.
"Existing Tranche A Term Loans" shall mean the Tranche A Term Loans as
such term is defined in the Existing Credit Agreement.
"Federal Funds Effective Rate" shall have the meaning assigned to such
term in the definition of "Alternate Base Rate".
"Fees" shall mean the Commitment Fees and the Arrangement and
Administrative Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, a Vice President-Finance, principal accounting officer, Treasurer or
Controller of such corporation.
"Finsub" shall mean a bankruptcy-remote corporation that is a wholly
owned Subsidiary of the Borrower 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 the Borrower or a
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 the Borrower or a
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 the Borrower or
such Subsidiary is required to make payment with respect to such Guarantee, the
Borrower or such 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.
<PAGE>
"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 the Borrower 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 the Borrower or any of its
Subsidiaries, or the imposition on the Borrower 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.
"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, 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 10.04(j).
"Group" shall have the meaning assigned to such term in Section 7.02.
"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 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 Borrower's balance sheet.
"Guarantee Agreements" shall mean the Subsidiary Guarantee Agreement
and the Terex Guarantee Agreement.
<PAGE>
"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 the Borrower listed
on Schedule 1.01(f) of the Existing Credit Agreement, other than Bidco, until
such time as such Subsidiary shall become a Subsidiary Guarantor.
"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 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 and (j) all obligations of such person as an account
party in respect of letters of credit and 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").
"Indemnitee" shall have the meaning assigned to such term in Section
10.05(b).
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, dated as of March 6, 1998,
among the Borrower, the Subsidiaries party thereto and the Collateral Agent.
"Information" shall have the meaning assigned to such term in Section
10.16.
<PAGE>
"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 such Borrowing, and, in addition, the date of any prepayment of
such Borrowing or conversion of such Borrowing to a Borrowing of a different
Type.
"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, as the
Borrower may elect and (b) as to any ABR Borrowing, 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, (ii) the Maturity Date and (iii)
the date such Borrowing is converted to a Borrowing of a different Type in
accordance with Section 2.10 or repaid or prepaid in accordance with Section
2.11 or 2.12; 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 designed to protect the Borrower or any
Subsidiary against fluctuations in interest rates, and not entered into for
speculation.
"Irish Facilities" shall mean the credit facilities of Powerscreen.
"Italian Facilities" shall mean the credit facilities of P.P.M. Sp.A.
or any other Subsidiary located in Italy.
"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.
"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 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 (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 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 the beginning of such Interest Period.
<PAGE>
"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.
"Lire" and "Lit" shall mean lire in lawful currency of Italy.
"Loan Documents" shall mean this Agreement, the Guarantee Agreements,
the Security Documents and the Indemnity, Subrogation and Contribution
Agreement.
"Loan Parties" shall mean the Borrower and the Subsidiary Guarantors.
"Loans" shall mean the Powerscreen Loans and the Cedarapids Loans. The
Loans are the Tranche C Loans referred to in the Existing Credit Agreement.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Marks" and "DM" shall mean deutsche marks in lawful currency of
Germany.
"Material Adverse Effect" shall mean (a) a materially adverse effect on
the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its 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.
"Maturity Date" shall mean March 6, 2006.
"Maximum Rate" shall have the meaning assigned to such term in Section
10.09.
"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 listed on Schedule 1.01(d) or delivered pursuant to Section 5.11.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
<PAGE>
"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 the Borrower'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 the Borrower and its 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) the Borrower shall deliver a
certificate of a Financial Officer to the Administrative Agent at the time of
receipt thereof setting forth the Borrower's intent to reinvest such proceeds in
productive assets of a kind then used or usable in the business of the Borrower
and its 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 (b) with respect to any
Equity Issuance or any other 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.
"Non-US Lender" shall have the meaning assigned to such term in Section
2.20.
"Obligations" shall mean all obligations defined as "Obligations" in
any of the Guarantee Agreements and the Security Documents and shall include, in
addition to the obligations described therein, the following: (a) the due and
punctual payment of (i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans by the Borrower, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (ii) each payment required to be made by the Borrower or any
subsidiary borrower under the Additional L/C Facility in respect of any
Additional Letter of Credit, when and as due, including payments in respect of
reimbursement of disbursements, interest thereon and obligations to provide cash
collateral and (iii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Borrower or any
subsidiary borrower to the Secured Parties under this Agreement and/or the
Additional L/C Facility, (b) the due and punctual performance of (i) all
covenants, agreements, obligations and liabilities of the Borrower under or
pursuant to this Agreement and (ii) all covenants, agreements, obligations and
liabilities of the Borrower or any subsidiary borrower under or pursuant to the
Additional L/C Facility and (c) the due and punctual payment and performance of
all the covenants, agreements, obligations and liabilities of each other Loan
Party under or pursuant to any Loan Document.
"Original Tranche C Credit Agreement" shall have the meaning assigned
to such term in the preamble to this Agreement.
"Other Taxes" shall have the meaning assigned to such term in Section
2.20.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
<PAGE>
"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 the Borrower or any of its
Affiliates, (b) the Borrower 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 $2,500,000, (ii) the Borrower 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) the Borrower 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 the Borrower and its
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 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(e) to the Existing Credit Agreement 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 Moody's Investors Service, Inc.;
<PAGE>
(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 the Borrower or
any ERISA Affiliate is (or, if such 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, among the Borrower, the Subsidiaries party thereto and the Collateral
Agent for the benefit of the Secured Parties.
"Powerscreen" shall mean Powerscreen International plc, a public
limited company incorporated under the laws of England.
"Powerscreen Acquisition" shall mean the acquisition of the Powerscreen
Shares by Bidco pursuant to the Powerscreen Offer.
"Powerscreen Availability Period" shall mean the period from and
including the July 2, 1999, to and including the Powerscreen Commitment
Termination Date.
"Powerscreen Borrowing" shall mean a Borrowing comprised of Powerscreen
Loans.
"Powerscreen Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Powerscreen Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Powerscreen 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 10.04.
<PAGE>
"Powerscreen Commitment Termination Date" shall mean the earlier of (a)
January 11, 2000, and (b) the date that is 116 days after the first date on
which Bidco acquires 90% of the outstanding Powerscreen Shares to which the
Powerscreen Offer relates; provided, however, that, notwithstanding the
foregoing, the Powerscreen Commitment Termination Date shall be the date that is
60 days after the first date on which Bidco acquires 90% of the outstanding
Powerscreen Shares to which the Powerscreen Offer relates if Bidco has not
commenced procedures under Section 428 et. seq. of the Companies Act of 1985 by
such date.
"Powerscreen Lenders" shall mean the Lenders holding Powerscreen Loans
or having Powerscreen Commitments.
"Powerscreen Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a).
"Powerscreen Loans" shall mean the loans made by the Lenders to the
Borrower pursuant to clause (a) of Section 2.01.
"Powerscreen Offer" shall mean the recommended cash offer detailed in
the Powerscreen Offer Document.
"Powerscreen Offer Conditions Precedent" shall mean the conditions
listed on Schedule 1.01(a).
"Powerscreen Offer Document" shall have the meaning assigned to such
term in Section 3.24.
"Powerscreen Offer Termination Date" shall mean the earliest date (as
notified by the Borrower to the Administrative Agent in writing) on which all of
the following have occurred: (a) all payments in respect of Powerscreen Shares
or of any proposals to holders of options over Powerscreen Shares in accordance
with Rule 15 of the City Code in the Powerscreen Offer have been made in full;
(b) no further such acceptances are possible; and (c) all procedures pursuant to
Section 428 et seq. of the U.K. Companies Act 1985 that are capable of being
implemented have been completed and all payments pursuant thereto to the
shareholders of Powerscreen have been made in full.
"Powerscreen Press Release" shall mean the U.K. press release of the
Borrower, dated as of June 15, 1999, attached hereto as Schedule 3.24(a).
"Powerscreen Shares" shall mean the outstanding share capital of
Powerscreen.
"Prime Rate" shall have the meaning assigned to such term in the
definition of the term "Alternate Base Rate".
<PAGE>
"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 the Borrower) determined by the Borrower and acceptable to
the Administrative Agent in its reasonable discretion, based upon and derived
from financial information delivered to the 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 the Borrower and acceptable to
the 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.
"Program Receivables" shall mean all trade receivables and related
contract rights originated and owned by the Borrower or any Subsidiary (other
than an Inactive Subsidiary) and sold pursuant to the Receivables Program.
"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, the lease) of any after acquired real or
personal tangible property or assets related to the business of the Borrower or
the Subsidiaries and which is incurred substantially concurrently with such
acquisition and is secured only by the assets so financed.
"Receivables Program" shall mean, collectively, (a) the sale of, or
transfer of interests in, Program Receivables to Finsub in exchange for
consideration equal to the fair market value of such Program Receivables (i.e.,
a "true sale") (provided that not less than 95% of such consideration shall be
in the form of cash) and (b) the sale of, or transfer of interests in, such
Program Receivables by Finsub to special purpose trusts or corporations which
are not Affiliates of the Borrower; provided, that all governing terms and
conditions (including, without limitation, any terms or conditions providing for
recourse to the Borrower or any of its Subsidiaries (other than Finsub)) of the
Receivables Program shall be subject to the prior written approval of the
Administrative Agent, which approval shall not be unreasonably withheld or
delayed.
"Receivables Program Documentation" shall mean all written agreements
that may from time to time be entered into by the Borrower, any Subsidiary
(other than an Inactive Subsidiary) and/or Finsub in connection with any
Receivables Program, as such agreements may be amended, supplemented or
otherwise modified from time to time in accordance with the provisions thereof
and hereof.
"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 10.04(d).
"Regulation T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"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.
<PAGE>
"Related Business" shall mean any business in the manufacture or sale
of capital goods or parts or services, or otherwise reasonably related,
ancillary or complementary to the businesses of the Borrower and the
Subsidiaries on the Effective 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, abate 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 mean any date that is a Powerscreen Loan
Repayment Date or a Cedarapids Loan Repayment Date.
"Required Lenders" shall mean, at any time, Lenders having Loans and
unused Commitments representing at least 51% of the sum of all Loans outstanding
and unused Commitments at such time; provided that so long as at least one of
the Lenders is not an Affiliate of CSFB, the Required Lenders must include at
least one Lender other than CSFB and its Affiliates.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Sale and Leaseback" shall have the meaning set forth in Section 6.03.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement and shall also include the Lenders and the Additional L/C
Issuing Banks.
"Security Agreement" shall mean the Security Agreement, dated as of
March 6, 1998, among the Borrower, 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.
<PAGE>
"Senior Subordinated Notes" shall mean (a) the Borrower's 8-7/8% Senior
Subordinated Notes due 2008 issued under an indenture dated March 31, 1998,
among the Borrower, the guarantors named therein and the United States Trust
Company of New York, as trustee, and (b) the Borrower's 8-7/8% Series C and
Series D Senior Subordinated Notes due 2008 issued under an indenture dated
March 9, 1999, among the Borrower, the guarantors named therein and the United
States Trust Company of New York, as trustee, in each case as amended from time
to time in accordance with the provisions thereof and this Agreement.
"Significant Subsidiary" shall mean any subsidiary that would be a
"Significant Subsidiary" within the meaning of Rule 1-02 under Regulation S-X
promulgated by the Securities and Exchange Commission.
"SPC" shall have the meaning assigned to such term in Section 10.04(j).
"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 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 the Borrower.
"Subsidiary Borrowers" shall mean the Subsidiaries party to the
Existing Credit Agreement as subsidiary borrowers.
"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 the Subsidiary Guarantee
Agreement as a Guarantor, and the permitted successors and assigns of each such
person.
"Syndication Letter" shall mean the Syndication Letter dated July 2,
1999, among the Borrower and the Arrangers.
"Takeover Panel" shall mean The Panel on Takeovers and Mergers (U.K.).
"Taxes" shall have the meaning assigned to such term in Section 2.20.
<PAGE>
"Terex Guarantee Agreement" shall mean the Guarantee Agreement, dated
as of March 6, 1998, made by the Borrower in favor of the Collateral Agent for
the benefit of the Secured Parties.
"Total Debt" shall mean, as of any date of determination, without
duplication, the aggregate principal amount of Indebtedness of the Borrower and
its 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 the Borrower and its consolidated
Subsidiaries on such date exceeds $5,000,000.
"Total Senior Secured Debt" shall mean, as of any date of
determination, the sum of the aggregate principal amount of all (a) Loans
outstanding as of such date, (b) Capital Lease Obligations of the Borrower and
the Subsidiaries outstanding as of such date and (c) other Indebtedness of the
Borrower and the Subsidiaries that is secured by any assets of the Borrower and
the Subsidiaries.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Transferee" shall have the meaning assigned to such term in Section
2.20.
"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. For purposes hereof, the term "Rate" shall include
the Adjusted LIBO Rate and the Alternate Base Rate.
"Unconditional Date" shall mean July 27, 1999.
"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 Terex Cranes,
Inc., P.P.M. Cranes, Inc., P.P.M. S.A., 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 the Borrower 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 Effective
Date or (b) the date such entity is incorporated or acquired by the Borrower 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.
<PAGE>
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 the Borrower notifies the
Administrative Agent that the Borrower 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 the Borrower that the Required Lenders wish
to amend Article VI or any related definition for such purpose), then the
Borrower'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 the Borrower and the Required Lenders.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (a) to make Powerscreen Loans to the Borrower
during the Powerscreen Availability Period in accordance with the terms hereof,
in an aggregate principal amount not to exceed its Powerscreen Commitment and
(b) to make Cedarapids Loans to the Borrower on the Effective Date in accordance
with the terms hereof, in an aggregate principal amount not to exceed its
Cedarapids Commitment. Amounts paid or prepaid in respect of Loans may not be
reborrowed.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
respective Powerscreen Commitment or Cedarapids Commitment, as applicable;
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). The
Loans comprising any Borrowing shall be in an aggregate principal amount that is
(i) an integral multiple of $100,000 and not less than $2,500,000 or (ii) equal
to the remaining available balance of the applicable Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may
request pursuant to Section 2.03; provided that, unless the Borrower shall have
provided an indemnification agreement reasonably satisfactory to the
Administrative Agent, all Cedarapids Borrowings made on the Effective Date must
be made as ABR Borrowings. 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
Borrower to repay such Loan in accordance with the terms of this Agreement.
<PAGE>
(c) Each Lender shall make each 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 the 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 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 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 the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, the Federal Funds Effective Rate. 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, the Borrower
shall not be entitled to request any Interest Period with respect to any
Eurocurrency Borrowing that would end after the Maturity Date.
<PAGE>
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing, the
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, not later than 12:00 (noon), New York City time,
three Business Days before a proposed Borrowing, and (b) 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 the Borrower
and shall specify the following information: (i) whether the Borrowing is to be
a Eurocurrency Borrowing or an ABR Borrowing; (ii) the date of such Borrowing
(which shall be a Business Day); (iii) 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)); (iv) the amount of such Borrowing; (v) if
such Borrowing is to be a Eurocurrency Borrowing, the initial Interest Period
with respect thereto; (vi) whether such Borrowing is a Powerscreen Borrowing or
a Cedarapids Borrowing; and (vii) if such Borrowing is a Powerscreen Borrowing,
whether it is subject to the conditions of Section 4.02 or 4.03; 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 as to the Type of Borrowing is specified in any
such notice, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurocurrency Borrowing is specified in any
such notice, then the 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) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of the Lender entitled thereto the principal amount of each Loan of such
Lender as provided in Section 2.11.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the 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 the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower or any Subsidiary 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 absent manifest error; 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 the
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 10.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
<PAGE>
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender,
through the Administrative Agent, on the last day of March, June, September and
December in each year, on the date of the initial Powerscreen Borrowing and on
each date on which any Powerscreen Commitment of such Lender shall expire or be
terminated as provided herein, a commitment fee (a "Commitment Fee") equal to
0.50% per annum on the daily unused Powerscreen Commitment of such Lender during
the preceding quarter (or other period commencing with the Effective Date or
ending on the date of the initial Powerscreen Borrowing or the date on which the
Powerscreen Commitment of such Lender shall expire or be terminated). All
Commitment Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Commitment Fee due to each Lender shall
commence to accrue on the Effective Date and shall cease to accrue on the date
on which the Powerscreen Commitment of such Lender shall expire or be terminated
as provided herein; provided, however, that no Commitment Fee shall be due and
payable until the occurrence of the initial Powerscreen Borrowing.
(b) The Borrower agrees to pay to the Arrangers and the Administrative
Agent the fees set forth in the Syndication Letter, the Engagement Letter and
the Cedarapids Fee Letter at the times and in the amounts specified therein (the
"Arrangement and Administrative Fees").
(c) 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 and the Arrangers. 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 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, 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) 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.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
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.
SECTION 2.07. Default Interest. If the 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,
the 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, at the
rate that would otherwise be applicable thereto pursuant to Section 2.06 plus
2.00% and (b) in the case of any interest payable on any Loan or any Commitment
Fee or other amount payable hereunder, at a rate per annum equal to the rate
applicable to ABR Loans plus 2.00%.
<PAGE>
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 London interbank 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 Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurocurrency Borrowing 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.
SECTION 2.09. Termination and Reduction of Commitments. (a) The
Powerscreen Commitments shall automatically be reduced on the date of each
Powerscreen Borrowing by an amount equal to the aggregate principal amount of
Powerscreen Loans so borrowed, and any remaining unused Powerscreen Commitments
shall automatically terminate at 5:00 p.m., New York City time, on the last day
of the Powerscreen Availability Period. The Cedarapids Commitments shall
automatically terminate at 5:00 p.m., New York City time, on the Effective Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Powerscreen Commitments; provided, however, that each partial reduction of
the Powerscreen Commitments shall be in an integral multiple of $1,000,000 and
in a minimum amount of $10,000,000.
SECTION 2.10. Conversion and Continuation of Borrowings. The 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 into an
ABR Borrowing, (b) not later than 12:00 (noon), New York City time, three
Business Days prior to conversion or continuation, to convert any ABR Borrowing
into a Eurocurrency Borrowing or to continue any Eurocurrency Borrowing as a
Eurocurrency Borrowing for an additional Interest Period, and (c) not later than
12:00 (noon), New York City time, 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 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 the 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, the
Borrower shall pay, upon demand, any amounts due to the Lenders
pursuant to Section 2.16;
<PAGE>
(v) any portion of a Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as
a Eurocurrency Borrowing;
(vi) any portion of a Eurocurrency Borrowing 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;
(vii) no Interest Period may be selected for any Eurocurrency
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 Borrowings with Interest Periods ending on or prior to
such Repayment Date and (B) the ABR Borrowings would not be at least
equal to the principal amount of Borrowings to be paid on such
Repayment Date; and
(viii) upon notice to the 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 Borrowing may be converted into, or continued as, a
Eurocurrency Borrowing and (B) unless repaid, each Eurocurrency
Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
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 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, the
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 the 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),
automatically be continued into a new Interest Period as an ABR Borrowing.
SECTION 2.11. Repayment of Borrowings. (a) The Borrower shall pay to
the Administrative Agent, for the account of the Powerscreen 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 "Powerscreen Loan Repayment
Date"), a principal amount of the Powerscreen Loans (as adjusted from time to
time pursuant to Sections 2.12(b) and 2.13(e)) equal to the percentage set forth
below opposite such date multiplied by the aggregate principal amount of all
Powerscreen Loans made to the Borrower hereunder and outstanding on the
Powerscreen Commitment Termination 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:
<PAGE>
Date Percentage
---- ----------
March 31, 2000 0.25%
June 30, 2000 0.25%
September 30, 2000 0.25%
December 31, 2000 0.25%
March 31, 2001 0.25%
June 30, 2001 0.25%
September 30, 2001 0.25%
December 31, 2001 0.25%
March 31, 2002 0.25%
June 30, 2002 0.25%
September 30, 2002 0.25%
December 31, 2002 0.25%
March 31, 2003 0.25%
June 30, 2003 0.25%
September 30, 2003 0.25%
December 31, 2003 0.25%
March 31, 2004 0.25%
June 30, 2004 0.25%
September 30, 2004 0.25%
December 31, 2004 0.25%
March 31, 2005 0.25%
June 30, 2005 23.6875%
September 30, 2005 23.6875%
December 31, 2005 23.6875%
Maturity Date 23.6875%
(b) The Borrower shall pay to the Administrative Agent, for the account
of the Cedarapids 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
"Cedarapids Loan Repayment Date"), a principal amount of the Cedarapids Loans
(as adjusted from time to time pursuant to Sections 2.12(b) and 2.13(e)) equal
to the percentage set forth below opposite such date multiplied by the aggregate
principal amount of all Cedarapids Loans made to the Borrower hereunder on the
Effective 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
---- ----------
March 31, 2000 0.25%
June 30, 2000 0.25%
September 30, 2000 0.25%
December 31, 2000 0.25%
March 31, 2001 0.25%
June 30, 2001 0.25%
September 30, 2001 0.25%
December 31, 2001 0.25%
March 31, 2002 0.25%
June 30, 2002 0.25%
September 30, 2002 0.25%
December 31, 2002 0.25%
March 31, 2003 0.25%
June 30, 2003 0.25%
September 30, 2003 0.25%
December 31, 2003 0.25%
March 31, 2004 0.25%
June 30, 2004 0.25%
September 30, 2004 0.25%
December 31, 2004 0.25%
March 31, 2005 0.25%
June 30, 2005 23.6875%
September 30, 2005 23.6875%
December 31, 2005 23.6875%
Maturity Date 23.6875%
(c) To the extent not previously paid, all Loans shall be due and
payable on the Maturity Date, together with accrued and unpaid interest on the
principal amount to be paid to, but excluding, the date of 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) The 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, three Business Days before such prepayment and (ii) in the case of a
prepayment of ABR 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 and not less than
$2,500,000.
(b) Optional prepayments of Loans shall be allocated against the
then-outstanding Powerscreen Loans and Cedarapids Loans pro rata, and such
prepayments shall be applied (i) first, against the remaining scheduled
installments of principal due in respect of the Powerscreen Loans and Cedarapids
Loans under Sections 2.11(a) and (b), respectively, in the next twelve months in
the order of maturity and (ii) second, pro rata against such remaining scheduled
installments of principal.
<PAGE>
(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 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) 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 $250,000 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 the Borrower), the outstanding Loans shall be
prepaid in accordance with Section 2.13(e) in an aggregate principal amount
equal to 100% of such Net Cash Proceeds.
(b) No later than the earlier of (i) 90 days after the end of each
fiscal year of the Borrower and (ii) the date on which the financial statements
with respect to such fiscal year are delivered pursuant to Section 5.04(a),
outstanding Loans shall be prepaid in accordance with Section 2.13(e) 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.
(c) In the event that the Borrower or any Subsidiary shall receive Net
Cash Proceeds from (i) the issuance of any Additional Subordinated Notes or (ii)
the issuance or incurrence of any other 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 fund the consideration for a Permitted
Acquisition, (ii) to prepay outstanding Loans in accordance with Section
2.13(e), and/or (iii) to prepay outstanding revolving loans under the Existing
Credit Agreement, without reducing the commitments to provide such revolving
loans, in an aggregate principal amount equal to 100% of such Net Cash Proceeds.
(d) 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 Loans, then
the outstanding Loans shall be prepaid in accordance with Section 2.13(e) in an
aggregate principal amount equal to 100% of such Casualty Proceeds or
Condemnation Proceeds, as the case may be.
(e) Subject to paragraph (h) below, each prepayment of outstanding
Loans required to be made pursuant to any paragraph of this Section 2.13 shall
be made by the Borrower pro rata among the then-outstanding Powerscreen Loans
and Cedarapids Loans, and shall be applied (i) first against the remaining
scheduled installments of principal due in respect of Powerscreen Loans and
Cedarapids Loans under Sections 2.11(a) and (b), respectively, in the next
twelve months in the order of maturity and (ii) second, pro rata against such
remaining scheduled installments of principal.
<PAGE>
(f) The Borrower 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 the Borrower 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. 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.
(g) To the extent possible consistent with Section 2.13(e), amounts to
be applied pursuant to this Section 2.13 to the prepayment of Loans shall be
applied first to prepay outstanding ABR Loans. Any amounts remaining after each
such application shall, at the option of the Borrower, be applied to prepay
Eurocurrency Loans 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 to prepay Eurocurrency Loans on the last day
of the applicable Interest Periods (or, at the direction of the Borrower, on any
earlier date) until all outstanding Loans have been prepaid or until all the
allocable cash on deposit with respect to the Loans has been exhausted. For
purposes of this Agreement, the term "Prepayment Account" shall mean an account
established by the 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
(g). The Administrative Agent will, at the request of the 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 Borrowings to be prepaid; 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. The 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 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 Section 8.02, the Administrative Agent may, in its sole discretion,
apply all amounts on deposit in the Prepayment Account to satisfy any of the
Obligations. The 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 (g) shall not be
construed to alter the application required by Section 2.13(e).
(h) Any Lender may elect, by notice to the Administrative Agent in
writing (or by telephone or telecopy promptly confirmed in writing) prior to
12:00 (noon), New York City time, at least three Business Days prior to any
prepayment of Loans required to be made by the Borrower for the account of such
Lender pursuant to this Section 2.13, to cause all or a portion of such
prepayment to be applied instead to prepay Tranche A Term Loans in accordance
with the Existing Credit Agreement.
<PAGE>
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement 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 of the
principal of or interest on any Eurocurrency Loan made by such Lender or any
Fees or other amounts payable hereunder (other than changes in respect of taxes
imposed on the overall net income of such Lender by the jurisdiction in which
such Lender 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 (except any such reserve
requirement which is reflected in the Adjusted LIBO Rate) or shall impose on
such Lender or the London interbank market any other condition affecting this
Agreement or Eurocurrency Loans made by such Lender or participation therein,
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or to reduce the amount of
any sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise) by an amount deemed by such Lender to be material, then
the Borrower will pay to such Lender upon demand such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.
(b) If any Lender shall have determined that the adoption after the
Effective Date of any law, rule, regulation, agreement or guideline regarding
capital adequacy, or any change after the Effective 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 Lender'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 capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by such
Lender pursuant hereto to a level below that which such Lender or such Lender's
holding company could have achieved but for such applicability, adoption, change
or compliance (taking into consideration such Lender's policies and the policies
of such Lender's holding company with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time the Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or such Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company as specified in
paragraph (a) or (b) above shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate delivered by it within 10 days after its
receipt of the same.
(d) Failure or delay on the part of any Lender 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
right to demand such compensation. The protection of this Section shall be
available to each Lender 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.
<PAGE>
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if, after the Effective 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 Borrower 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 will not thereafter (for such duration) be converted into
Eurocurrency Loans), whereupon any request for a Eurocurrency Borrowing
(or to convert an ABR Borrowing 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 (or
a request to continue an ABR Loan as such for an additional Interest
Period or to convert a Eurocurrency Loan into an ABR 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 which event all such
Eurocurrency Loans shall be automatically converted to such ABR 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 the Borrower 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 the Borrower.
<PAGE>
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense, including any break-funding cost, that such Lender
may sustain or incur as a consequence of (a) any event, other than a default by
such Lender in the 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 prior to the end of the Interest Period
in effect therefor, (ii) the conversion of any Eurocurrency Loan to an ABR Loan
or the conversion of the Interest Period with respect to any Eurocurrency Loan
other than on the last day of the Interest Period in effect therefor, or (iii)
any Eurocurrency Loan to be made by such Lender (including any Eurocurrency 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 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 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 Borrower and shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided in Sections
2.13(h) and 2.15, each Borrowing, each payment of the Commitment Fees and each
reduction of the Commitments 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). Each payment or prepayment of
principal of the Loans, each payment of interest on the Loans and each
conversion or continuation of any Borrowing shall be allocated pro rata among
the Lenders in accordance with the respective principal amounts of their
outstanding Loans. 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.
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
the 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
Loan or Loans and as a result of which the unpaid principal portion of its Loans
shall be proportionately less than the unpaid principal portion of the Loans or
the Existing Loans of any other Lender or Existing Lender, such Lender shall be
deemed simultaneously to have purchased from such other Lender or Existing
Lender at face value, and shall promptly pay to such other Lender or Existing
Lender the purchase price for, a participation in the Loans or the applicable
Existing Loans, as the case may be, of such other Lender or Existing Lender, so
that the aggregate unpaid principal amount of the Loans or the applicable
Existing Loans and participations in Loans or the applicable Existing Loans held
by each Lender and each Existing Lender shall be in the same proportion to the
aggregate unpaid principal amount of all Loans and Existing Loans then
outstanding as the principal amount of such Lender's Loans and Existing Loans
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Loans and Existing Loans outstanding prior to
such exercise of banker's lien, setoff or counterclaim or other event; 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. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in a
Loan or any Existing Loan 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 the Borrower to such Lender by reason thereof as fully as if
such Lender had made a Loan or Existing Loan, as applicable, directly to the
Borrower in the amount of such participation.
<PAGE>
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder and under any other Loan Document prior to 1:00 p.m., New
York City time, on the date when due in immediately available funds, without
setoff, defense or counterclaim. Each such payment shall be made to such account
as shall from time to time be specified in a writing delivered to the Borrower
by the Administrative Agent.
(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 the
Borrower or any other Loan Party hereunder and under any other Loan Document
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 and all
liabilities with respect thereto, excluding (i) income taxes imposed on the net
income of the Administrative Agent or any Lender (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 or
any Lender (or Transferee), in each case by the jurisdiction under the laws of
which the Administrative Agent or such Lender (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 the Borrower or any other 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 or any Lender (or any
Transferee), (i) the sum payable shall be increased by the amount necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.20) the Administrative Agent or
such Lender (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) the
Borrower or such other Loan Party shall make such deductions and (iii) the
Borrower or such other Loan Party shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the 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 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 ("Other Taxes").
(c) The Borrower will indemnify the Administrative Agent and each
Lender (or Transferee) for the full amount of Taxes and Other Taxes paid by the
Administrative Agent or such Lender (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 or a Lender (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 or any
Lender (or Transferee), as the case may be, makes written demand therefor.
<PAGE>
(d) As soon as practicable after the date of any payment of Taxes or
Other Taxes by the Borrower or any other Loan Party to the relevant Governmental
Authority, the Borrower or such other Loan Party will deliver to the
Administrative Agent, at its address referred to in Section 10.01, 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 United States with respect to
payments by the Borrower under this Agreement and the other Loan Documents shall
deliver to the 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 the
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 the 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) The Borrower shall not 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); provided that
this paragraph (f) shall not apply to any Transferee that becomes a Transferee
as a result of an assignment, participation, transfer or designation made at the
request of the Borrower, 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
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).
<PAGE>
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender delivers a certificate
requesting compensation pursuant to Section 2.14, (ii) any Lender delivers a
notice described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority on account of any
Lender pursuant to Section 2.20, the Borrower may, at its sole expense and
effort (including with respect to the processing and recordation fee referred to
in Section 10.04(b)), upon notice to such Lender and the Administrative Agent,
require such Lender to transfer and assign, without recourse (in accordance with
and subject to the restrictions contained in Section 10.04), 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) the Borrower shall have received
the prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, and (z) the Borrower or such assignee shall have paid
to the affected Lender in immediately available funds an amount equal to the sum
of the principal of and interest accrued to the date of such payment on the
outstanding Loans of such Lender plus all Fees and other amounts accrued for the
account of such Lender 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 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 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
pursuant to paragraph (b) below), or if such Lender 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 shall not thereafter be required to
make any such transfer and assignment hereunder.
(b) If (i) any Lender shall request compensation under Section 2.14,
(ii) any Lender delivers a notice described in Section 2.15 or (iii) the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority on account of any Lender, pursuant to Section 2.20, then
such Lender shall use reasonable efforts (which shall not require such Lender 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 the 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. The Borrower hereby agrees to pay all reasonable costs
and expenses incurred by any Lender in connection with any such filing or
assignment, delegation and transfer.
SECTION 2.22. Pro Rata Treatment of Loans and Existing Term Loans.
Notwithstanding any other provision herein, any funds to be used to prepay Loans
pursuant to Section 2.12 or 2.13 shall be allocated pro rata between the Loans
and the Existing Term Loans based upon the aggregate outstanding principal
amount of the Loans and Existing Term Loans on the date of prepayment. The
Lenders shall also be entitled to share pro rata in any prepayments of the type
described in Section 2.12 or 2.13 that are made to Existing Lenders pursuant to
the Existing Credit Agreement. The pro rata amount allocated to Loans in
accordance with this Section 2.22 shall be applied as otherwise required by this
Agreement.
<PAGE>
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent, the
Collateral Agent and each of the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of the
Subsidiaries (a) is a corporation or partnership duly incorporated or formed, as
the case may be, validly existing and in good standing (if applicable) 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
corporate 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 the
Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Loan Documents, the consummation of the
Powerscreen Acquisition and the Cedarapids Acquisition and the borrowings
hereunder (collectively, the "Transactions") (a) have been duly authorized by
all requisite corporate and, if required, stockholder 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 the Borrower or any Subsidiary, (C) any order of any Governmental
Authority applicable to the Borrower or such Subsidiary or (D) any provision of
any indenture, agreement or other instrument to which the Borrower or any
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 the Borrower or any
Subsidiary (other than any Lien created hereunder or under the Security
Documents).
SECTION 3.03. Enforceability. Each Loan Document has been duly executed
and delivered by each Loan Party party thereto and constitutes 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
(i) recordation of certain amendments of, or modifications to, the Mortgages and
(ii) 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.
<PAGE>
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore
made available to the Lenders (i) its consolidated balance sheets and statements
of income and changes in financial condition as of and for each of the fiscal
years ended December 31, 1996, December 31, 1997 and December 31, 1998, audited
by and accompanied by the opinion of PricewaterhouseCoopers LLP, independent
public accountants, and as of and for the fiscal quarters ended March 31, 1999,
and June 30, 1999, certified by a Financial Officer of the Borrower, (ii)
Powerscreen's consolidated balance sheets and statements of income and changes
in financial condition as of and for each of the fiscal years ended March 31,
1997, March 31, 1998 and March 31, 1999, audited by and accompanied by the
opinion of KPMG, chartered accountants, or Arthur Anderson, independent public
accountants, and (iii) (A) Cedarapids' consolidated balance sheets and
statements of income and changes in financial condition as of and for each of
the fiscal years ended December 31, 1996, December 31, 1997, and December 31,
1998, audited by and accompanied by the opinion of PricewaterhouseCoopers LLP,
independent public accountants and (B) Cedarapids' unaudited consolidated
balance sheet and statement of income and changes in financial condition as of
and for the fiscal quarters ended March 31, 1999, and June 30, 1999. In the case
of the Borrower's financial statements, such financial statements present fairly
in all material respects the financial condition and results of operations and
cash flows of the Borrower and the 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 the Borrower and the 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. The Borrower has examined the financial statements of
Powerscreen and Cedarapids and has no reason to suspect that such financial
statements do not present fairly in all material respects the financial
condition and results of operations and cash flows of (x) Powerscreen and its
consolidated subsidiaries and (y) Cedarapids and its consolidated subsidiaries,
in each case, as of such dates and for such periods.
(b) The Borrower has heretofore delivered to the Lenders (i) its
unaudited pro forma consolidated balance sheet as of March 31, 1999, prepared
giving effect to the Powerscreen Acquisition as if it had occurred on such date
and (ii) its unaudited pro forma consolidated balance sheet as of June 30, 1999,
prepared giving effect to the Powerscreen Acquisition and the Cedarapids
Acquisition as if each such acquisition had occurred on such date. Such pro
forma balance sheets have been prepared in good faith by or on behalf of the
Borrower, based on the assumptions previously provided to the Administrative
Agent (which assumptions are believed by the Borrower on the Effective Date to
be reasonable), are based on the best information available to the Borrower as
of the date of delivery thereof, accurately reflect all adjustments required to
be made to give effect to the Powerscreen Acquisition and/or the Cedarapids
Acquisition, as the case may be, and present fairly on a pro forma basis the
estimated consolidated financial position of the Borrower and the consolidated
Subsidiaries as of such date, assuming that the Powerscreen Acquisition and/or
the Cedarapids Acquisition, as the case may be, had actually occurred at such
date.
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 the Borrower and its
Subsidiaries, taken as a whole, since December 31, 1998.
<PAGE>
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
the Borrower and its 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 the Borrower and its 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 the Borrower
and its Subsidiaries enjoys peaceful and undisturbed possession under all such
material leases.
(c) The Borrower has not 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.
(d) Neither the Borrower nor any of its 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
Effective Date a list of all Subsidiaries and the percentage ownership interest
of the Borrower 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 the Borrower, directly or indirectly through its Subsidiaries, free
and clear of all Liens, except for Liens created under the Security Documents.
Each Inactive Subsidiary (a) owns assets having a fair market value not in
excess of $50,000 in the aggregate, (b) does not conduct any business activity
and (c) is not an obligor with respect to any Indebtedness.
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 the Borrower, threatened against or affecting the Borrower 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 the Borrower 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.
<PAGE>
SECTION 3.10. Agreements. (a) Neither the Borrower nor any of the
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 the Borrower 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.
SECTION 3.11. Federal Reserve Regulations. (a) Neither the Borrower 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 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 T, U or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. Neither the Borrower 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. The Borrower will use the proceeds of
the Loans only for the purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of the Borrower 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 the Borrower 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 Memoranda or (b) any other information, report, financial statement,
exhibit or schedule furnished by or on behalf of the 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, the 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.
<PAGE>
SECTION 3.16. Employee Benefit Plans. (a) Each of the Borrower 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, 1998, exceed by more than
$3,400,000 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, 1998,
exceed by more than $5,200,000 the fair market value of the assets of all such
underfunded Plans.
(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 the Borrower, its
Affiliates or any of its directors, officers, employees or agents has engaged in
a transaction which would subject the Borrower or any of its Subsidiaries,
directly or indirectly, to a material tax or civil penalty. 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. There are no actions, suits or claims (other than
routine claims for benefits) pending or threatened against the Borrower 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. (a) The properties owned, leased
or operated by each of the Borrower 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 the Borrower 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 reasonably be expected to not 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 the Borrower or its Subsidiaries, which Releases or
threatened Releases, in the aggregate, could reasonably be expected to result in
a Material Adverse Effect;
<PAGE>
(d) Neither the Borrower 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 the Borrower or such Subsidiaries or with regard
to any person whose liabilities for environmental matters the Borrower 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 the Borrower or its
Subsidiaries have reason to believe that any such notice will be received or is
being threatened; and
(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 the Borrower 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 insurance maintained by the Borrower or any of its
Subsidiaries as of the Effective Date. As of such date, such insurance is in
full force and effect and all premiums have been duly paid. Each of the Borrower
and its 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 in 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 Effective Date). With respect to
the Intellectual Property owned by any of the Cedarapids Companies, when an
addendum to the Security Agreement specifying such Intellectual Property is
filed in the United States Patent and Trademark Office and the United States
Copyright Office, the Security Agreement shall also constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the grantors
thereunder in the Intellectual Property owned by the Cedarapids Companies, in
each case prior and superior in right to any other person.
<PAGE>
(d) The Mortgages are effective, or, in the case of the Cedarapids
Mortgages, will be 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 constitute, or, in the case of
the Cedarapids Mortgages upon filing in the locations specified in Schedule
3.19(d) 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.
SECTION 3.20. Location of Real Property and Leased Premises. (a)
Schedule 3.20(a) lists completely and correctly as of the Effective Date all
real property owned by the Borrower and the Subsidiaries and the addresses
thereof. The Borrower and the 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 Effective
Date all real property leased by the Borrower and the Subsidiaries and the
addresses thereof. The Borrower and the Subsidiaries have valid leases in all
the real property set forth on Schedule 3.20(b).
SECTION 3.21. Labor Matters. As of the Effective Date, there are no
strikes, lockouts or slowdowns against the Borrower or any of its Subsidiaries
pending or, to the knowledge of the Borrower, threatened. The hours worked by
and payments made to employees of the Borrower and its 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 the Borrower or any of its Subsidiaries, or for which any claim may be made
against the Borrower or any such 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 the Borrower or such 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 the Borrower or any of its Subsidiaries is bound.
SECTION 3.22. Solvency. Immediately after the consummation of the
Transactions and following the making of each Loan and after giving effect to
the application of the proceeds of such Loan, (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 conducted as of the Effective Date and is
proposed to be conducted following the consummation of the Transactions.
<PAGE>
SECTION 3.23. Year 2000. All disclosures in the Borrower's latest Form
10-Q relating to the Borrower's efforts to modify its computer and information
systems and systems containing embedded microchips in order to address Year 2000
compliance, and any risks associated therewith, do not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained therein not materially misleading in the light
of the circumstances under which such statements were made.
SECTION 3.24. Powerscreen Offer Documents. Attached hereto as Schedule
3.24(a) is a true and correct copy of the Powerscreen Press Release, and
attached hereto as Schedule 3.24(b) is a true and correct copy of the definitive
documentation for the Powerscreen Offer (the "Powerscreen Offer Document"). The
Powerscreen Offer Document and any other documents relating to the Powerscreen
Offer furnished to the Lenders contain all the material terms and conditions of
the Powerscreen Offer to the extent required by applicable law, rule or
regulation and correspond to the terms and conditions contained in the
Powerscreen Press Release in all material respects.
ARTICLE IV
Conditions of Lending
SECTION 4.01. Conditions Precedent to Effectiveness. The effectiveness
of this Agreement shall be subject to the satisfaction of each of the following
conditions:
(a) The Administrative Agent shall have received, on behalf of
itself, the Collateral Agent, the Lenders and the Existing Lenders, (i)
a favorable written opinion of Eric Cohen, Esq., General Counsel of the
Borrower, substantially to the effect set forth in Exhibit D-1, and
(ii) a favorable written opinion of each local counsel listed on
Schedule 4.01(a), substantially to the effect set forth in Exhibit D-2,
in each case dated the Effective Date.
(b) All legal matters incident to this Agreement and the other
Loan Documents shall be reasonably satisfactory to the Lenders and to
the Administrative Agent.
(c) The Administrative Agent shall have received (i) a
certificate as to the good standing of the Borrower from the applicable
Governmental Authority; (ii) a certificate of the Secretary or
Assistant Secretary of the Borrower, dated the Effective Date, and
certifying (A) that there has been no amendment to the by-laws of such
corporation since a date satisfactory to the Administrative Agent, (B)
that attached thereto is a true and complete copy of resolutions duly
adopted by the board of directors of such corporation authorizing the
execution, delivery and performance of this Agreement and the
borrowings hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the
articles of incorporation of such Loan Party have not been amended
since the date of the last amendment thereto shown on the certificate
of good standing furnished pursuant to clause (i) above, and (D) as to
the incumbency and specimen signature of each officer executing this
Agreement or any other document delivered in connection herewith on
behalf of the Borrower; and (iii) a certificate of another officer as
to the incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to clause (ii) above.
<PAGE>
(d) The Administrative Agent shall have received (i) a copy of
the certificate of incorporation or articles of incorporation,
including all amendments thereto, and a certificate as to the good
standing of each of the Cedarapids Companies, in each case certified as
of a recent date by the Secretary of State of the state of its
organization; (ii) a certificate of the Secretary or Assistant
Secretary of each of the Cedarapids Companies dated the Effective Date
and certifying (A) that attached thereto is a true and complete copy of
the by-laws of such person as in effect on the Effective Date, (B) that
attached thereto is a true and complete copy of resolutions duly
adopted by the board of directors of such person on the Effective Date
authorizing the execution, delivery and performance of the Loan
Documents to which such person is a party and that such resolutions
have not been modified, rescinded or amended and are in full force and
effect, (C) that the certificate or articles of incorporation of such
person have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to
clause (i) above, and (D) as to the incumbency and specimen signature
of each officer executing any Loan Document or any other document
delivered in connection herewith on behalf of such person; and (iii) a
certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above.
(e) The Administrative Agent shall have received a
certificate, signed by a Financial Officer of the Borrower, dated the
Effective Date, and confirming that (i) the representations and
warranties set forth in Article III hereof are true and correct in all
material respects, (ii) the Borrower and each other Loan Party is in
compliance with the terms and provisions set forth herein and in each
other Loan Document to be observed or performed by the Borrower or such
Loan Party and (iii) no Default or Event of Default has occurred and is
continuing.
(f) The Administrative Agent shall have received all Fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder or under any other Loan Document.
(g) The Administrative Agent or its counsel shall have
received counterparts of this Agreement which, when taken together,
bear the signatures of the Borrower, the Required Lenders under the
Original Tranche C Credit Agreement and each of the Cedarapids Lenders.
(h) Each of the Cedarapids Companies shall have duly executed
and delivered to the Collateral Agent a supplement to the Pledge
Agreement, the Security Agreement, the Indemnity, Subrogation and
Contribution Agreement and the Subsidiary Guarantee Agreement.
(i) The Collateral Agent shall have received a duly executed
Perfection Certificate (as defined in the Security Agreement) with
respect to the Cedarapids Companies dated the Effective Date.
<PAGE>
(j) The Collateral Agent shall have received (i) the results
of a search of the Uniform Commercial Code filings (or other equivalent
filings) made with respect to the Cedarapids Companies in the states
(or other jurisdictions) in which the chief executive office of each
such person is located, any offices of such persons in which records
have been kept relating to Accounts (as defined in the Security
Agreement) and the other jurisdictions in which Uniform Commercial Code
filings (or other equivalent filings) are to be made, (ii) copies of
the financing statements (or similar documents) disclosed by the search
referred to in clause (i) above and (iii) evidence satisfactory to the
Collateral Agent that the Liens indicated in any financing statement
(or similar document) provided pursuant to clause (ii) above would be
permitted under Section 6.02 or have been released.
(k) Each document (including each Uniform Commercial Code
financing statement) required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to
create in favor of the Collateral Agent for the benefit of the Secured
Parties a valid, legal and perfected first-priority security interest
in and lien on the Collateral (as defined in the Security Agreement)
owned by any of the Cedarapids Companies shall have been delivered to
the Collateral Agent.
(l) (i) Each of the Security Documents, in form and substance
reasonably satisfactory to the Lenders, relating to each of the
Mortgaged Properties owned or leased by any of the Cedarapids Companies
shall have been duly executed by the parties thereto and delivered to
the Collateral Agent and shall be in full force and effect, (ii) each
of such Mortgaged Properties shall not be subject to any Lien other
than those permitted under Section 6.02 and (iii) the Collateral Agent
shall have received such other documents, including a policy or
policies of title insurance issued by First American Title Insurance
Company, together with such endorsements, coinsurance and reinsurance
as may be reasonably requested by the Collateral Agent and the Lenders,
insuring the Mortgages relating to such Mortgaged Properties as valid
first liens on such Mortgaged Properties, free of Liens other than
those permitted under Section 6.02, together with such surveys,
abstracts and appraisals reasonably available and legal opinions
required to be furnished pursuant to the terms of such Mortgages or as
reasonably requested by the Collateral Agent or the Lenders.
(m) (i) The Administrative Agent shall have received copies of
and be reasonably satisfied with the terms and conditions of the
Cedarapids Acquisition Documents and (ii) the Cedarapids Acquisition
shall have been consummated, or shall be consummated simultaneously
with the effectiveness of this Agreement, in accordance with applicable
law and the Cedarapids Acquisition Documents, without giving effect to
any material waiver or amendment thereof not approved in writing by the
Administrative Agent.
(n) The Administrative Agent shall be satisfied as to the
amount and nature of any environmental and employee health and safety
exposures to which the Cedarapids Companies may be subject and the
plans of the Borrower or Cedarapids with respect thereto.
(o) All requisite Governmental Authorities and third parties
shall have approved or consented to the Transactions to the extent
required, and there shall be no governmental or judicial action, actual
or threatened, that could reasonably be expected to have a Material
Adverse Effect or restrain, prevent or impose burdensome conditions on
the Transactions.
<PAGE>
(p) The Administrative Agent shall be reasonably satisfied
that not less than $45,000,000 of cash shall have been used to finance
a portion of the consideration paid in connection with the Cedarapids
Acquisition and that except for the proceeds of the Cedarapids Loans,
no other debt (including without limitation any Powerscreen Borrowings
or any borrowings under the Existing Credit Agreement) shall have been
used to finance the Cedarapids Acquisition; provided, however, that the
Borrower shall be entitled to use the proceeds of Powerscreen Loans or
Existing Revolver Loans to finance the Cedarapids Acquisition, but only
to the extent that the Borrower shall have Permitted Investments and/or
cash on its books in excess of $45,000,000 on the Effective Date.
(q) Except as provided for in the Cedarapids Acquisition
Documents, all existing Indebtedness of any of the Cedarapids Companies
shall have been repaid in full, the commitments (if any) thereunder
canceled and all security and guarantees (if any) therefor released and
discharged.
(r) Each Loan Document other than this Agreement shall be in
full force and effect.
(s) Amendment No. 6 and Consent to the Existing Credit Agreement shall
have become effective.
(t) The Lenders shall have received the consolidated
historical and pro forma financial statements described in Section
3.05.
Notwithstanding the foregoing, the Administrative Agent shall have the authority
to waive compliance with, but only for a period of not more than 20 days, the
conditions specified in subsections (i), (j)(iii), (k) and (l)(ii) and (iii)
above.
SECTION 4.02. Conditions Precedent to Each Powerscreen Acquisition
Borrowing. The obligations of the Lenders to make Powerscreen Loans hereunder,
the proceeds of which are to be used to finance either the acquisition of
Powerscreen Shares or payments to holders of options over Powerscreen Shares,
are subject to the satisfaction of the following conditions on the date of each
such Powerscreen Borrowing (with such conditions being the only conditions
applicable):
(a) The Administrative Agent shall have received a notice of
such Powerscreen Borrowing as required by Section 2.03, and, with
respect to the initial Powerscreen Borrowing, such notice shall
include, in addition to the amount necessary to finance the acquisition
of Powerscreen Shares and/or payments to holders of options over
Powerscreen Shares, an additional amount sufficient to fully pay any
Arrangement and Administrative Fees due and payable upon such
Powerscreen Borrowing and, to the extent invoiced, all out-of-pocket
expenses incurred by the Administrative Agent or the Arrangers (in
their capacities as arrangers of the financing for the Powerscreen
Acquisition), including the fees and expenses of counsel incurred in
connection with the Transactions or pursuant to the Existing Credit
Agreement.
<PAGE>
(b) At the time of and immediately after such Powerscreen
Borrowing, (i) no Event of Default described in clause (b), (c), (g) or
(h) of Section 8.01 shall have occurred and be continuing with respect
to the Borrower, (ii) no Event of Default described in clause (g) or
(h) of Section 8.01 shall have occurred and be continuing with respect
to Bidco and (iii) no event of the type described in clause (g) and (h)
of Section 8.01 shall have occurred with respect to Powerscreen or any
of its subsidiaries that would be deemed to be a Significant Subsidiary
if such subsidiary were a subsidiary of the Borrower; provided,
however, that this clause (iii) shall not apply where Bidco is not
permitted to lapse the Powerscreen Offer as a result of such event
having occurred with respect to Powerscreen or any of its Significant
Subsidiaries.
(c) The representations and warranties set forth in Sections
3.01, 3.02 and 3.03, as they relate to the Borrower and Bidco, shall be
true and correct in all material respects on the date of any such
Powerscreen Borrowing with the same effect as though made on such date.
(d) Each of the Powerscreen Offer Conditions Precedent, unless
waived in writing by the Borrower, Bidco and the Required Lenders,
shall have been satisfied.
On the date of each such Powerscreen Borrowing, the Borrower shall be deemed to
have made a representation and warranty as to each of the facts specified in
clauses (b), (c) and (d) of this Section 4.02.
SECTION 4.03. Conditions Precedent to Other Borrowings. The obligations
of the Lenders to make Powerscreen Loans hereunder, the proceeds of which are to
be used other than as described in first sentence of Section 4.02, or to make
Cedarapids Loans hereunder are subject to the satisfaction of the following
conditions on the date of each such Borrowing:
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.03.
(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 Borrowing 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) The 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 Borrowing, no Event of
Default or Default shall have occurred and be continuing.
On the date of each such Borrowing, the Borrower shall be deemed to
have made a representation and warranty as to each of the facts specified in
clauses (b) and (c) of this Section 4.03.
ARTICLE V
Affirmative Covenants
The 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 and all Fees and all other
expenses or amounts payable under any Loan Document shall have been paid in
full, unless the Required Lenders shall otherwise consent in writing, the
Borrower will, and will cause each of its Subsidiaries to:
<PAGE>
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 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 the Borrower or any Domestic 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 Effective 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 the Borrower 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.
<PAGE>
(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 Effective Date, 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 the 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 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) the 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 or their agents or employees. If, however, the insurance
policies do not provide waiver of subrogation rights against such
parties, as required above, then the 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 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 the 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 Borrower 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.
<PAGE>
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 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.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, 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 the Borrower 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 the Borrower 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 the Borrower
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 the Borrower and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments;
<PAGE>
(c) concurrently with any delivery of financial statements
under sub-paragraph (a) or (b) above, 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) (i) 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 (ii) 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 and 6.13;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any 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;
(e) as promptly as practicable, but in no event later than 10
Business Days after the last day of each fiscal year of the Borrower, 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
the Borrower or any 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 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 the Borrower or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse
Effect; and
(c) any development with respect to the Borrower 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 the 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 the Borrower in an aggregate amount exceeding $5,000,000
(or the dollar equivalent thereof in another currency), a statement of a
Financial Officer of the Borrower setting forth details as to such ERISA Event
and the action, if any, that the Borrower proposes to take with respect thereto.
<PAGE>
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
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender to visit and inspect the financial records and the
properties of the Borrower or any 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 the Borrower or any Subsidiary with the officers thereof and
independent accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans only for
the purposes set forth in the preamble to this Agreement.
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 the Borrower and the
Subsidiaries shall not 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 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.
<PAGE>
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. The Borrower will cause any
subsequently acquired or organized Domestic Subsidiary (other than an Inactive
Subsidiary or Finsub) to execute a supplement to the Subsidiary Guarantee
Agreement, the Indemnity Subrogation and Contribution Agreement and each
applicable Security Document in favor of the Collateral Agent. In addition, from
time to time, the Borrower 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 the
Borrower (including real and other properties acquired subsequent to the
Effective 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 the Borrower 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. The Borrower shall cause all
conditions to effectiveness specified in Section 4.01 that have been waived by
the Administrative Agent pursuant to the last sentence of such section to be
satisfied on or prior to the date that is 20 days after the Effective Date.
(b) In the case of the Borrower and the Subsidiary Guarantors, promptly
to notify the Collateral Agent in writing of any change (i) in its corporate
name or in any trade name used to identify it in the conduct of its business or
in the ownership of its properties, (ii) in the location of its chief executive
office, its principal place of business, any office in which it maintains books
or records relating to Collateral owned by it or any office or facility at which
Collateral owned by it is located (including the establishment of any such new
office or facility), (iii) in its identity or corporate structure or (iv) in its
Federal Taxpayer Identification Number. The Borrower 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. The Borrower and each Subsidiary
Guarantor agrees promptly to notify the Collateral Agent if any material portion
of the Collateral owned or held by the Borrower is damaged or destroyed.
SECTION 5.12. Interest Rate Protection Agreements. In the case of the
Borrower, within 90 days following the Effective Date, enter into Interest Rate
Protection Agreements, with counterparties and on terms and conditions
reasonably satisfactory to the Administrative Agent, pursuant to which the
interest rate is fixed with respect to a notional amount equal to at least 50%
of the sum of (a) the Loans, (b) the Existing Term Loans and (c) the Senior
Subordinated Notes and any Additional Subordinated Notes outstanding on such
date.
ARTICLE VI
Negative Covenants
The 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 and all Fees and all
other expenses or amounts payable under any Loan Document have been paid in
full, unless the Required Lenders shall otherwise consent in writing, the
Borrower will not, and will not cause or permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except that the Borrower and any Subsidiary (or Finsub (except
as expressly permitted by subsection (p) below)) may incur, create, assume or
permit to exist:
(a) Indebtedness for borrowed money set forth in Schedule 6.01 to
the Existing Credit Agreement and outstanding on the Effective Date;
(b) Indebtedness created hereunder, under the Existing Credit
Agreement and under the other Loan Documents; provided, however, that
the sum of the Existing Loans and the aggregate available commitments
under the Existing Credit Agreement shall not exceed $468,000,000 at
any time;
<PAGE>
(c) in the case of the Borrower, the Senior Subordinated Notes
and Additional Subordinated Notes; provided that the proceeds of any
Additional Subordinated Notes are used to prepay the Loans pursuant to
Section 2.13(c) or to finance Permitted Acquisitions;
(d) Indebtedness pursuant to (i) Hedging Agreements and (ii) the
Additional L/C Facility; provided, however, that the Additional L/C
Exposure shall not exceed $50,000,000 at any time;
(e) Indebtedness of (i) the Borrower or any wholly owned
Subsidiary (other than an Inactive Subsidiary or Finsub) to any other
wholly owned Subsidiary (other than an Inactive Subsidiary or Finsub),
(ii) any wholly owned Subsidiary (other than an Inactive Subsidiary or
Finsub) to the Borrower or (iii) Finsub to the Borrower or any wholly
owned Subsidiary (other than an Inactive Subsidiary) incurred pursuant
to the Receivables Program; provided, however, that (i) any
Indebtedness of a Loan Party shall be subordinated to the prior
payment in full of the Obligations and (ii) any Indebtedness of Finsub
incurred pursuant to this subsection (e) shall be permitted only for
such limited period of time as is required to account for any sale of
Program Receivables, which period of time shall not in any event
exceed two Business Days;
(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; provided that the aggregate principal
amount of any such Indebtedness pursuant to this paragraph (j) shall
not exceed $85,000,000;
(k) Indebtedness of O&K Mining GmbH; provided that the aggregate
principal amount of any such Indebtedness pursuant to this paragraph
(k) shall not exceed DM17,500,000;
(l) Floor Plan Guarantees;
(m) Indebtedness incurred under (i) the Italian Facilities in an
amount not exceeding Lit12,850,000,000 in the aggregate at any time
outstanding and (ii) the Irish Facilities in an amount not exceeding
GBP10,000,000 in the aggregate at any time outstanding;
<PAGE>
(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;
(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; and
(q) other unsecured Indebtedness in an aggregate principal amount
not exceeding $15,000,000 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 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 the Borrower and its
Subsidiaries as set forth in Schedule 6.02 to the Existing Credit
Agreement and existing on the Effective Date; provided that such Liens
shall secure only those obligations which they secure on the Effective
Date;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any 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 the Borrower or any 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;
<PAGE>
(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 of performance bonds and similar obligations in an
aggregate principal amount not to exceed GBP3,000,000;
(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 the Borrower or any of its Subsidiaries;
(i) purchase money security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the case
of improvements, constructed) by the Borrower or any 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
the Borrower or any 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 the Borrower or the 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 the Borrower or any
Subsidiary;
(m) Liens in favor of the Borrower;
<PAGE>
(n) Liens on the assets of Powerscreen with a fair market
value not in excess of the amount 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 the Borrower or any Subsidiary may enter into 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 the Borrower and its Subsidiaries existing
on the Effective Date in the capital stock of the Subsidiaries and
other investments by the Borrower and its Subsidiaries existing on the
Effective Date and set forth in Schedule 6.04 to the Existing Credit
Agreement;
(b) Permitted Investments;
(c) the Borrower may make the Powerscreen Acquisition and the
Cedarapids Acquisition; provided, however, that the Borrower complies
with, and causes Bidco, Powerscreen and/or the Cedarapids Companies to
comply with, the relevant provisions of Section 5.11, Article VII and
the Security Documents;
(d) the Borrower may make any Permitted Acquisition; provided
that the Borrower 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 Borrower and the 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 $1,000,000 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);
<PAGE>
(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 the Borrower 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 the Borrower approved by the board
of directors of the Borrower and (B) the repurchase of shares of, or
options to purchase shares of, common stock of the Borrower or any of
its Subsidiaries from employees, former employees, directors or former
directors of the Borrower 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
the board of directors of the Borrower 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 during the term of
this Agreement;
(j) accounts receivable arising in the ordinary course of
business from the sale of inventory;
(k) Guarantees constituting Indebtedness permitted by Section
6.01;
(l) investments in joint ventures in Related Businesses in an
aggregate amount not exceeding $15,000,000 at any time outstanding;
(m) intercompany loans and advances constituting Indebtedness
permitted by Section 6.01(e); and
(n) other investments in an aggregate amount not exceeding
$25,000,000 at any time outstanding.
<PAGE>
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) the Borrower and any Subsidiary
(other than an Inactive Subsidiary or Finsub) may purchase and sell inventory in
the ordinary course of business, (ii)(A) the Borrower and any Subsidiary (other
than an Inactive Subsidiary) may sell Program Receivables to Finsub and (B)
Finsub may sell Program Receivables pursuant to the Receivables Program
Documentation and (iii) 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
the Borrower in a transaction in which the Borrower is the surviving
corporation, (B) any wholly owned Subsidiary (other than Finsub) may merge into
or consolidate with any other wholly owned Subsidiary that is a Subsidiary
Guarantor in a transaction in which the surviving entity is a wholly owned
Subsidiary that is a Subsidiary Guarantor and no person other than the Borrower
or a wholly owned Subsidiary that is a Subsidiary Guarantor receives any
consideration, (C) in connection with any Permitted Acquisition pursuant to
Section 6.04(d), the Borrower or any wholly owned Subsidiary that is a
Subsidiary Guarantor 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 the Borrower or a wholly owned Subsidiary that is a
Subsidiary Guarantor and (D) following the initial Powerscreen Borrowing, the
Borrower may contribute, or otherwise transfer, all of the equity in Terex
Equipment Limited (other than directors' qualifying shares) to Bidco.
(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(a); (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, the Borrower
is in compliance on a pro forma basis with the covenants set forth in Sections
6.11, 6.12 and 6.13 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
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 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 Subsidiary may declare and
pay dividends or make other distributions ratably with respect to its capital
stock and (ii) the Borrower 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), during the term of this Agreement
shall not exceed $25,000,000, 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 the Borrower may at any time pay dividends
with respect to its capital stock solely in additional shares of its capital
stock.
(b) Permit its 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 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 the Borrower or the parent of such
Subsidiary, except, in the case of Finsub, for encumbrances or restrictions
existing pursuant to the Receivables Program Documentation.
<PAGE>
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 the Borrower or any 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 the Borrower or such 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 the Borrower
and the Subsidiary Guarantors or any transaction between the Borrower or any
Subsidiary (other than an Inactive Subsidiary) and Finsub pursuant to the
Receivables Program.
SECTION 6.08. Business of the Borrower and Subsidiaries. Engage at any
time in any business or business activity other than the Related Business;
provided, however, that Bidco shall not engage in any trade or business, or
otherwise conduct any business activity, other than the ownership of any Foreign
Subsidiary and activities incidental to such ownership and Finsub shall not
engage in any trade or business, or otherwise conduct any business activity,
other than the performance of its obligations pursuant to the Receivables
Program and other incidental activities.
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 the Borrower or
any 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 the Borrower, any Subsidiary, the Administrative Agent or the
Lenders.
<PAGE>
(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 the Borrower or any Subsidiary
except that (A) the Borrower shall be permitted to use the Net Cash Proceeds of
any Equity Issuance to prepay not more than one-third of the Senior Subordinated
Notes or any other Indebtedness, (B) the Borrower and its 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 Section 6.06(a)(ii),
during the term of this Agreement shall not exceed $25,000,000; 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, 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 and (C) the Borrower may at any time repay Indebtedness of the
Borrower or any Subsidiary solely in shares of its capital stock.
SECTION 6.10. Capital Expenditures. Permit the aggregate amount of
Consolidated Capital Expenditures made by the Borrower and its Subsidiaries,
taken as a whole, in any fiscal year of the Borrower to exceed $25,000,000 plus
75% of all Consolidated Capital Expenditures made by Subsidiaries within twelve
months prior to such 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 the Borrower ending
during any period set forth below to be in excess of the ratio set forth below
for such period:
Period Ratio
Effective Date - March 31, 2000 5.75 to 1.00
April 1, 2000 - March 31, 2001 5.00 to 1.00
April 1, 2001 - March 31, 2002 4.50 to 1.00
April 1, 2002 - March 31, 2003 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 the Borrower ending during any period set forth below to be less
than the ratio set forth below for such period:
Period Ratio
Effective Date - March 31, 2000 2.00 to 1.00
April 1, 2000 - March 31, 2001 2.10 to 1.00
April 1, 2001 - March 31, 2002 2.25 to 1.00
April 1, 2002 - March 31, 2003 2.35 to 1.00
April 1, 2003 - March 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 the Borrower ending during any period set forth below to be
less than the ratio set forth below for such period:
Period Ratio
Effective Date - March 31, 2002 1.15 to 1.00
April 1, 2002 - 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
<PAGE>
SECTION 6.14. Fiscal Year. Permit the fiscal year of the Borrower to
end on a day other than December 31.
ARTICLE VII
Powerscreen Offer Covenants
SECTION 7.01. Powerscreen Offer Affirmative Covenants. (a) The Borrower
shall cause Bidco to promptly (and in any event within five Business Days)
notify the Administrative Agent upon first becoming entitled to implement the
procedures set out in Section 428 et. seq. of the U.K. Companies Act of 1985 in
respect of the Powerscreen Shares not tendered and accepted pursuant to the
Powerscreen Offer. Promptly upon (and in any event within two weeks after)
becoming entitled to initiate the procedures set out in Section 429 of the U.K.
Companies Act of 1985, the Borrower shall cause Bidco to initiate such
procedures and to use commercially reasonable efforts to acquire 100% of the
Powerscreen Shares within six weeks of Bidco's initiation of such procedures.
(b) The Borrower will comply, and will cause each other member of the
Group to comply, with the City Code (subject to any applicable waivers by the
Takeover Panel), the U.K. Financial Services Act of 1986 and the U.K. Companies
Act of 1985 and all other applicable laws in respects material in the context of
the Powerscreen Offer.
(c) The Borrower will keep the Administrative Agent and the Lenders
informed in reasonable detail as to the status of the Powerscreen Offer and the
current level of acceptances of the Powerscreen Offer (including the delivery to
the Administrative Agent of a copy of every certificate delivered by the
receiving agent to Bidco and/or its advisers pursuant to the City Code).
(d) If the Borrower becomes aware of any circumstance or event which is
or could reasonably be construed to be covered by any condition to the
Powerscreen Offer which (if not waived) would entitle, taking account of the
provisions of Note 2 to Rule 13 of the City Code, any member of the Group to
lapse the Powerscreen Offer, the Borrower shall notify the Administrative Agent
promptly thereof and if the Administrative Agent determines that such
circumstance or event would materially and adversely affect the ability of the
Borrower to comply with its obligations hereunder, the Borrower shall request,
or shall cause the appropriate Subsidiary or other Person to request, that the
Takeover Panel allow its Powerscreen Offer to lapse and if the Takeover Panel so
agrees in response to such request, the Borrower shall cause Bidco to
immediately allow the Powerscreen Offer to lapse.
SECTION 7.02. Powerscreen Offer Negative Covenants. Without the consent
of the Required Lenders, the Borrower will not, and will not allow Bidco to, do
any of the following:
(a) waive, amend, extend, revise, withdraw or agree or decide
not to enforce, in whole or in part, any term, which is material, or
condition of the Powerscreen Offer corresponding to those set out in
paragraphs (b) and (c) of Appendix 1, Part A to the Powerscreen Press
Release, except for any extension of time for acceptance of the
Powerscreen Offer;
<PAGE>
(b) decide, declare or accept that valid acceptances in
respect of less than a majority in nominal value of the Powerscreen
Shares to which the Powerscreen Offer relates will be required for
fulfillment of the condition corresponding to that set out in paragraph
(a) of Appendix 1, Part A of the Powerscreen Press Release; or
(c) issue or allow to be issued on behalf of the Borrower or
any of its Affiliates any press release or other publicity which makes
reference to this Agreement or any other Transaction Document or the
financing contemplated hereby or to some or all of the Lenders, the
Arrangers and/or the Administrative Agent except to the extent the
publicity is required by law, the City Code, the Takeover Panel or any
stock exchange (in which case the Borrower shall notify the
Administrative Agent thereof as soon as practicable upon becoming aware
of the requirement, shall consult with the Administrative Agent and the
Arrangers on the terms of the reference and shall have regard to any
timely comments of the Administrative Agent and the Arrangers).
Without limiting the generality of the foregoing, any action by or on
behalf of the Borrower, the Subsidiaries, any Affiliate of the Borrower and any
person working on the behalf of, or in concert with, any of the foregoing (the
"Group") which would result in (i) the revision of the Powerscreen Offer in
accordance with Rule 9 of the City Code or (ii) the offer price exceeding 195
pence per Share (or such other amount as the Required Lenders shall have
otherwise agreed to in writing from time to time) must be approved in writing in
advance by the Required Lenders.
ARTICLE VIII
Events of Default
SECTION 8.01. Events of Default. An "Event of Default" occurs if:
(a) any representation or warranty made or deemed made in or
in connection with any Loan Document or the borrowings 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 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 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 the 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
or VII;
<PAGE>
(e) default shall be made in the due observance or performance
by the Borrower or any 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 the Borrower;
(f) the Borrower or any 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 the Borrower or any
Subsidiary, or of a substantial part of the property or assets of the
Borrower or a 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 the Borrower or any Subsidiary or
for a substantial part of the property or assets of the Borrower or any
Subsidiary or (iii) the winding-up or liquidation of the Borrower or
any 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) the Borrower or any 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 the Borrower or any
Subsidiary or for a substantial part of the property or assets of the
Borrower or any 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 the Borrower, any 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 the Borrower or any
Subsidiary to enforce any such judgment;
<PAGE>
(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 the
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 the
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.
SECTION 8.02. Acceleration. (a) Subject to paragraph (c) below, if an
Event of Default (other than an Event of Default specified in Section 8.01(g) or
(h) with respect to the Borrower) occurs and is continuing, and has not been
waived by the Required Lenders, then the Administrative Agent, with the consent
of the Required Lenders, may, and upon request of the Required Lenders shall, by
written notice to the Borrower, take either or both of the following actions, at
the same or different times: (i) terminate forthwith the Commitments and (ii)
declare the 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 Borrower 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
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding
(b) If an Event of Default specified in Section 8.01(g) or (h) relating
to the Borrower occurs, 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 Borrower 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 Borrower, anything contained
herein or in any other Loan Document to the contrary notwithstanding
<PAGE>
(c) Notwithstanding anything to the contrary in this Agreement, during
the period commencing with the Effective Date and ending on the earlier of the
Powerscreen Commitment Termination Date and the Powerscreen Offer Termination
Date, the Administrative Agent and the Lenders shall not be entitled to
terminate the Powerscreen Commitments, rescind this Agreement or prevent any
funding of the Powerscreen Offer (including the acquisition of Powerscreen
Shares pursuant to the provisions of Section 428 et. seq. of the U.K. Companies
Act of 1985 and the funding of proposals made to holders of options over
Powerscreen Shares in accordance with Rule 15 of the City Code) nor to declare
the Powerscreen Loans due and payable in whole or in part or exercise any other
right or remedy under any Loan Document or exercise any setoff or similar right
arising on the basis of misrepresentation or Event of Default or otherwise if to
do so would prevent the funding of the Powerscreen Offer in accordance with
Section 4.02 unless (i) an Event of Default specified in paragraph (b) (other
than an Event of Default arising solely as a result of the operation of Section
8.01(h)(vi)) shall have occurred; (ii) an event of the kind described in
paragraphs (g) and (h) of Section 8.01 shall have occurred with respect to
Bidco, Powerscreen or any of Powerscreen's subsidiaries that would be deemed to
be a Significant Subsidiary if such subsidiary were a subsidiary of the
Borrower; provided, however, that this clause (ii) shall not apply where Bidco
is not permitted to lapse the Powerscreen Offer as a result of such event having
occurred with respect to Powerscreen or any of its Significant Subsidiaries;
(iii) any of the representations and warranties set forth in Section 3.01, 3.02
or 3.03, as they relate to the Borrower or Bidco, shall not be true and correct
in all material respects on the date of any Powerscreen Borrowing of the type
described in Section 4.02 with the same effect as though made on such date or
(iv) any of the Powerscreen Offer Conditions Precedent, unless waived in writing
by the Required Lenders (such waiver being conclusively evidenced by written
notice from the Administrative Agent to the Borrower) shall not have been
satisfied on the date of any such Powerscreen Borrowing; provided, however, that
this clause (iv) shall not apply where the event or circumstance which would
otherwise cause the relevant Powerscreen Offer Condition Precedent not to be
satisfied is a waiver of a condition of the Powerscreen Offer by Bidco in
circumstances where Bidco would not otherwise have been able to lapse the
Powerscreen Offer in accordance with Note 2 to Rule 13 of the City Code.
ARTICLE IX
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 (for purposes of this Article IX, the Administrative Agent
and the Collateral Agent are referred to collectively as the "Agents"). Each of
the Lenders and each assignee of any such Lender hereby irrevocably authorizes
the Agents to take such actions on behalf of such Lender 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. The Administrative
Agent is hereby expressly authorized by the Lenders, without hereby limiting any
implied authority, (a) to receive on behalf of the Lenders all payments of
principal of and interest on the Loans and all other amounts due to the Lenders
hereunder, and promptly to distribute to each Lender its proper share of each
payment so received; (b) to give notice on behalf of each of the Lenders to the
Borrower of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute to each Lender copies of all notices, financial
statements and other materials delivered by the Borrower or any other Loan Party
pursuant to this Agreement or the other Loan Documents as received by the
Administrative Agent. 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.
<PAGE>
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to the Borrower or any other
Loan Party on account of the failure of or delay in performance or breach by any
Lender of any of its obligations hereunder or to any Lender on account of the
failure of or delay in performance or breach by any other Lender or the Borrower
or any other Loan Party of any of their respective obligations hereunder or
under any other Loan Document or in connection herewith or therewith. Each of
the Agents may execute any and all duties hereunder by or through agents or
employees and shall be entitled to rely upon the advice of legal counsel
selected by it with respect to all matters arising hereunder and shall not be
liable for any action taken or suffered in good faith by it in accordance with
the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the successor to such Agent shall be
selected in accordance with Article VIII of the Existing Credit Agreement and
such successor Agent selected thereunder shall serve as the Administrative Agent
or the Collateral Agent, as the case may be, hereunder. Without limiting the
generality of the foregoing, it is understood and agreed that, at any time,
there shall be only one Collateral Agent for all of the Secured Parties. If all
Existing Loans and other amounts owing under the Existing Credit Agreement have
been repaid and all commitments under the Existing Credit Agreement have been
terminated, the Required Lenders shall have the right to appoint a successor
Agent. 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, 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 any appointment as
Agent hereunder by a successor bank, 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. After the Agent's resignation hereunder, the provisions of this
Article IX and Section 10.05 shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as Agent.
<PAGE>
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 the Borrower or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
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 the 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 the 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 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.
ARTICLE X
Miscellaneous
SECTION 10.01. 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 the Borrower, to it at 500 Post Road East, Westport, CT
06880, Attention of General Counsel (Telecopy No. (203) 227-1647);
(b) if to the Administrative Agent, to Credit Suisse First
Boston, 11 Madison Avenue, New York, New York 10010, Attention of Joe
Barone (Telecopy No. (212) 325-8304;
<PAGE>
(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; and
(d) if to an Existing Lender that is not also a Lender, to it in
care of Credit Suisse First Boston, 11 Madison Avenue, New York, New
York 10010, Attention of Joe Barone (Telecopy No. (212) 325-8304).
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 10.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 10.01.
SECTION 10.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and shall survive the making by the Lenders
of the Loans, regardless of any investigation made by the Lenders 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 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 10.05 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 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 or any
Lender.
SECTION 10.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower, the Administrative Agent and
the Collateral Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
SECTION 10.04. 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 Borrower, the Administrative
Agent or the Lenders that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and assigns.
<PAGE>
(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, (x) the Borrower and the
Administrative Agent 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 $5,000,000 (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 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 10.04(b),
"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 10.04, 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 10.05,
as well as to any Fees accrued for its account and not yet paid).
<PAGE>
(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 Commitments 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 the Borrower or any Subsidiary or the
performance or observance by the 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(a) 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 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 Borrower, 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 Borrower, the Administrative Agent, 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 Borrower, 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 the Borrower and the
Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Lenders. 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 the Borrower 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 Borrower, the Administrative Agent 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
Borrower relating to the Loans 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 the Borrower or any Subsidiary Guarantor or all or any substantial
part of the Collateral or increasing or extending the Commitment applicable to
such participant).
<PAGE>
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the 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 10.16.
(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) The Borrower shall not assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative Agent
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 Borrower, the option to provide to the
Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrower 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 10.04, (i)
any SPC may (x) with notice to, but without the prior written consent of, the
Borrower 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 10.04(j) may not be amended or modified without the written consent of
such SPC.
<PAGE>
SECTION 10.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by the Administrative Agent and the
Collateral Agent 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 hereunder, as
applicable, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Moore and Linklaters & Paines, 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) The Borrower agrees to indemnify the Administrative Agent, the
Collateral Agent, each Lender, each Affiliate of any of the foregoing persons
and each of their respective directors, officers, employees and agents (each
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, (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 the 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 10.05 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 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 or any Lender. All amounts due under this Section 10.05
shall be payable on written demand therefor.
SECTION 10.06. 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 the Borrower against any of and all the
obligations of the 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 10.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 10.07. 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.
<PAGE>
SECTION 10.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent or any Lender 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 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 the 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 the Borrower in any case shall entitle the 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 Borrower 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 waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan, without the prior written
consent of each Lender affected thereby, (ii) change or extend the Commitment or
decrease or extend the date for payment of the Commitment Fee of any Lender
without the prior written consent of such Lender, or (iii) amend or modify the
pro rata sharing provisions of Section 2.17 or the provisions of Section
10.04(i), the provisions of this Section, the definition of the term "Required
Lenders" or release the Borrower or any Subsidiary Guarantor or all or any
substantial part of the Collateral, without the prior written consent of each
Lender; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent or the Collateral Agent
hereunder or under any other Loan Document without the prior written consent of
the Administrative Agent or the Collateral Agent.
SECTION 10.09. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan 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 in accordance with
applicable law, the rate of interest payable in respect of such Loan 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 but were not payable as a result of the
operation of this Section 10.09 shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans 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.
<PAGE>
SECTION 10.10. Entire Agreement. This Agreement, the other Loan
Documents, the Engagement Letter, the Syndication Letter and the Cedarapids Fee
Letter constitute the entire contract among 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. Except as provided in Section 10.17, 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 any rights, remedies,
obligations or liabilities under or by reason of this Agreement or the other
Loan Documents.
SECTION 10.11. 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 10.11.
SECTION 10.12. 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 10.13. 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 become effective as provided in Section
10.03. 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 10.14. 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.
<PAGE>
SECTION 10.15. Jurisdiction; Consent to Service of Process. (a) The
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 or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or the other Loan
Documents against the Borrower or its properties in the courts of any
jurisdiction.
(b) The 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 10.01. 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 10.16. Confidentiality. The Administrative Agent, the
Collateral Agent 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 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 the
Borrower or any of its Subsidiaries and agrees to be bound by the provisions of
this Section 10.16) or (f) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section 10.16 or (ii)
becomes available to the Administrative Agent, any Lender or the Collateral
Agent on a nonconfidential basis from a source other than the 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 or any Lender based on any of the foregoing) that are received from the
Borrower and related to the Borrower, any shareholder of the Borrower or any
employee, customer or supplier of the Borrower, other than any of the foregoing
that were available to the Administrative Agent, the Collateral Agent or any
Lender on a nonconfidential basis prior to its disclosure thereto by the
Borrower, and which are in the case of Information provided after the Effective
Date, clearly identified at the time of delivery as confidential. The provisions
of this Section 10.16 shall remain operative and in full force and effect
regardless of the expiration and term of this Agreement.
<PAGE>
SECTION 10.17. Rights of Existing Lenders. Without the consent of each
Existing Lender, the Borrower 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, any Existing Lender would no longer be entitled to the pro rata
sharing requirements of Section 2.22 or the mandatory participation provisions
of Section 2.18 and any such attempted amendment, modification or waiver shall
be null and void. Each Existing Lender shall be entitled to enforce the
provisions of this Section 10.17.
SECTION 10.18. Designated Senior Indebtedness. For the purposes of each
indenture governing the Senior Subordinated Notes or the Additional Subordinated
Notes, the Loans and all Fees and all other expenses or amounts payable under
this Agreement shall be "Designated Senior Indebtedness" as such term is defined
in such indentures.
<PAGE>
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/Eric I Cohen
Name: Eric I Cohen
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent
and as Collateral Agent,
by: /s/Kristin Lepri
Name: Kristin Lepri
Title: Associate
by
Name:
Title:
<PAGE>
SIGNATURE PAGE to
AMENDED and RESTATED
TRANCHE C CREDIT AGREEMENT
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: ALLSTATE INSURANCE COMPANY
by: /s/Jerry D. Zinkula
Name: Jerry D. Zinkula
Title:
by: /s/Patricia W. Wilson
Name: Patricia W. Wilson
Title:
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: ARES LEVERAGED INVESTMENT FUND, L.P.
by: /s/ David A.Sachs
Name: David A. Sachs
Title: Vice President
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: BANKBOSTON, N.A.
by: /s/ Christopher T. Phelan
Name: Christopher T. Phelan
Title: Director
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: BANK OF AMERICA NA
by: /s/Edward A Hamilton
Name: /s/Edward A. Hamilton
Title: Managing Director
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: CREDIT LYONNAIS NEW YORK BRANCH
by: /s/Scott R. Chappelka
Name: Scott R. Chappelka
Title: Vice President
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: FREMONT FINANCIAL CORPORATION
by: /s/Kannika Viravan
Name: Kannika Viravan
Title: Vice President
<PAGE>
SIGNATURE PAGE to
AMENDED and RESTATED
TRANCHE C CREDIT AGREEMENT
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: GALAXY CLO 1999-1, LTD.
by: /S/Lynn A. Hopton
Name: Lynn A. Hopton
Title: Authorized Signatory
SAI Investment Advisor, Inc. its Collateral Manager
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: HIGHLAND CAPITAL MANAGER, L.P.
by: /S/Todd Travers
Name: Todd Travers
Title: Portfolio Manager
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: KEMPER FLOATING RATE FUND
by: /s/ Mark E. Wittnebel
Name: Mark E. Wittnebel
Title:S.V.P.
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: STEIN ROE & FARNHAM INCORPORATED, AS AGENT FOR KEYPORT LIFE
INSURANCE COMPANY
by: /s/ Stein Roe & Farnham
Name:
Title:
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: KZH CYPRESSTREE-1 LLC
by: /s/ Peter Chin
Name: Peter Chin
Title: Authorized Agent
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: OCTAGON LOAN TRUST
by: /s/ Michael B. Nechamkin
Name: Michael B. Nechamkin
Title:Portfolio Manager
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: OLYMPIC FUNDING TRUST, SERIES 1999-1
by: /s/ Kelly C. Walker
Name: Kelly C. Walker
Title: Authorized Agent
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: SRF TRADING, INC.
by: /s/ Kelly C. Walker
Name: Kelly C. Walker
Title: Vice President
To approve the Amended and Restated Tranche C Credit Agreement as a Powerscreen
Lender:
Name of Institution: TORONTO DOMINION (NEW YORK0, INC.
by: /s/ Jorge A. Garcia
Name: Jorge A. Garcia
Title: Vice President
To approve the Amended and Restated Tranche C Credit Agreement as a Cedarapids
Lender:
Name of Institution: BAYERISCHE HYPO-UND VEREINSBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
by: /s/ Erich Ebner von Eschenbach
Name: Eric Ebner von Eschenbach
Title: Managing Director
by: /s/ Steven Simons
Name: Steven Simons
Title: Associate Director
To approve the Amended and Restated Tranche C Credit Agreement as a Cedarapids
Lender:
Name of Institution: DRESNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
by: /s/ Beverly G. Cason
Name: Beverly G. Cason
Title: Vice President
by: /s/ John R. Morrison
Name: John R. Morrison
Title: Vice President
To approve the Amended and Restated Tranche C Credit Agreement as a Cedarapids
Lender:
Name of Institution: GOLDMAN SACHS CREDIT PARTNERS L.P.
by: /s/ Mark DeNatale
Name: Mark DeNatale
Title: Authorized Signature
To approve the Amended and Restated Tranche C Credit Agreement as a Cedarapids
Lender:
Name of Institution: MORGAN STANLEY DEAN WITTER PRIME INCOME TRUST
by: /s/ Peter Gewirtz
Name: Peter Gewirtz
Title: Authorized Signature
To approve the Amended and Restated Tranche C Credit Agreement as a Cedarapids
Lender:
Name of Institution: NORTH AMERICAN SENIOR FLOATING RATE FUND BY: CYPRESSTREE
INVESTMENT MANAGEMENT COMPANY, INC. AS PORTFOLIO MANAGER
by: /s/ Philip C. Robbins
Name: Philip C. Robbins
Title: Principal
To approve the Amended and Restated Tranche C Credit Agreement as a Cedarapids
Lender:
Name of Institution: VAN KAMPEN SENIOR FLOATING RATE FUND
by: /s/ Van Kampen Investment Advisory Corp.
Name:
Title:
Contract of Employment
Dated as of September 1, 1999
between
1. Terex Corporation
500 Post Road East, Suite 320
Westport, Connecticut 06880
- hereinafter also called "the Company" -
2. Filip Filipov
- hereinafter called "the Executive" -
Contents
Sec. 1 Appointment and Duties
Sec. 2 Powers of Representation of the Company
Sec. 3 Confidentiality
Sec. 4 Remuneration, Car, Expenses
Sec. 5 Holidays
Sec. 6 Continuation of Salary in Case of Illness, Death or Disability
Sec. 7 Health Insurance
Sec. 8 Pension
Sec. 9 Consulting Arrangement
Sec. 10 Terms of Retainer
Sec. 11 Termination or Modification of the Contract
Sec. 12 Concluding Provisions
<PAGE>
Sec. 1 Appointment and Duties
1. Effective September 1, 1999, the Executive will continue his
employment with the Company under this contract.
In this function it is his responsibility to run the Company's
lifting business with the due care of a diligent businessman.
Also, the Executive may be requested to take on additional
special assignments for the Company, which responsibilities will
be agreed upon separately.
2. The Executive shall devote his entire working energy to the
Company. He shall not undertake any incidental employment or work
of any kind which could affect his performance for the Company.
3. For five years until August 31, 2004, the Executive shall not,
whether as an independent business man or otherwise, whether for
his own or third party's account, whether directly or indirectly,
undertake any commercial activity in sectors or territories which
wholly or partially overlap with the business of the Company
other than the purchase of up to 5% of securities normally dealt
on the stock exchange of a competitive business.
Sec. 2 Representation of the Company
1. The Executive is granted shared power to represent the Company in
areas he is directly responsible for together with the
Chairman/CEO of the Company. This power of representation can be
modified by resolution of the Chairman/CEO and Board of
Directors.
2. The Executive shall not undertake any of the following legal or
business actions without prior permission of his superiors:
(a) open or close branch offices,
(b) purchase or sell a company (or business) or shareholdings in
same, or exercise voting rights from a shareholding in
matters falling outside the normal course of that company.
(c) agrees to follow Company policy on modification and
termination of contracts and annual remuneration of anyone
earning $125,000 and above,
(d) perform any legal or business act falling outside the
Company's normal scope of business.
<PAGE>
Sec. 3 Confidentiality
The Executive will preserve unconditional secrecy regarding all confidential
business matters and events, in particular regarding business and bank
relationships, balance-sheets, sales, cost/price breakdown, important
correspondence, lists of customers, prices and business methods. This duty of
secrecy continues after termination of the contract of employment.
Sec. 4 Remuneration, Car, Expenses
1. Remuneration:
(a) The Executive shall receive an annual salary of $360,000
(before deductions), payable bi-weekly. This salary shall be
reviewed annually and adjusted with Board of Directors'
approval.
(b) The Executive will continue to be entitled to receive stock
option grants and restricted stock awards as other employees
of the Company.
(c) Participation in a bonus scheme with a target of
seventy-five percent (75%) of base compensation based on
performance.
(d) The award of 60,000 units in the 1999 Long-Term Incentive
Plan (LTIP) continues to be valid as previously issued.
(e) The Executive shall be entitled to the change-in-control
provisions as stated in the stock option plans and the LTIP.
2. Car: An appropriate car (BMW 740i Series or equivalent) will be
provided for the Executive's use, which can be also used
privately. The costs of the private use will be borne in the
United States or Europe, except for the income tax thereon.
3. Expenses: The Executive will be reimbursed by expense allowance
or against receipts of expenses incurred in the course of his
duties. This means that hotel and air travel (business class)
costs will be reimbursed against receipts, and that other
expenses will be covered by a daily expense allowance oriented to
the tax authorities' guideline figures. Spousal travel with
Executive is authorized, and Executive will be entitled to
reimbursement against receipt of expenses incurred.
4. Country Club membership dues as approved by the Chairman/CEO.
5. The Executive shall be entitled to one transfer of his household
goods as per Company policy and may reside in the location which
he chooses.
6. The Executive shall be entitled, with the approval of the
Chairman/CEO, to a housing allowance or the provision of suitable
housing as his assignments require.
<PAGE>
Sec. 5 Holidays
The Executive has annual recuperation holiday entitlement of twenty working
days.
Sec. 6 Continuation of Salary in Case of Illness, Death or Disability
If the Executive is incapacitated for work due to illness or accident, then the
remuneration of Sec. 4 will be continued for six months. After this period, he
is covered by Voluntary LTD and Executive LTD wrap programs.
Death and disability, see separate insurance agreement.
Sec. 7 Health Insurance
The Executive is entitled to health insurance which covers him and his
dependents outside the United States as a regular employee or as a consultant as
outlined in Section 10.
Sec. 8 Pension
During the term of this contact, the Company will:
1. Contribute annually to the Terex 401(k) Retirement Plan a Company
match the maximum amount in accordance with the terms of the
plan.
2. Contribute to the PPM SA Retirement Plan on behalf of the
Executive in the amount of $30,000 per year each January.
3. Contribute annually to the Terex Corporation Deferred
Compensation Plan $75,000 in Terex Corporation common stock.
Sec. 9 Consulting Arrangement
Unless Executive's employment with the Company is terminated pursuant to Section
11(1), Executive may elect to continue as a consultant by giving the Company
thirty days' notice (except termination for cause) on the terms set for in
Section 10 below.
Sec. 10 Terms of Retainer
The terms upon which Executive shall be retained by the Company as a consultant
shall be as follows:
1. For thirty-six (36) months following the date of notice to
Company, the Executive shall provide services substantially
similar to those provided by him immediately prior, for a total
of twenty-six (26) weeks in each calendar year and governed by
Section 1.3.
<PAGE>
2. In consideration of the Executive's consulting services, the
Company shall pay him an amount equal to sixty percent (60%) of
his Base Salary immediately prior. As a consultant, the
Executive shall be entitled to receive and contribute to
benefits that he currently participates in with the Company.
Sec. 11 Termination or Modification of the Contract
1. This contract shall commence as of September 1, 1999 and shall
continue for a five-year period of time (August 31, 2004). This
contract may be terminated by either the Executive or the
Company with a notice period of two years to the end of the
year. This contract may also be terminated by the Company
immediately upon notice for cause.
2. The Executive may assign the contract to an entity that he
controls as long as such assignment does not increase the cost
of this agreement to the Company, provided (i) Executive shall
continue perform the services and duties hereunder on behalf of
the entity, and (ii) Executive shall continue to be personally
obligated and bound by the terms of this contract.
Sec. 12 Concluding Provisions
If any provision or provisions of this contract are or become legally
ineffective, then the parties undertake to agree a legally effective replacement
provision or provisions which most nearly meet the business intention of the
ineffective provision or provisions.
/s/ Ronald M. DeFeo /s/ Filip Filipov
- ------------------- -----------------
Ronald M. DeFeo Filip Filipov
Chairman/CEO
Westport, CT
THIS EMPLOYMENT AND COMPENSATION AGREEMENT (this "Agreement"), made and
entered into as of January 1, 1999, between Terex Corporation, a Delaware
corporation, with its principal office located at 500 Post Road East, Suite 320,
Westport, CT (together with its successors and assigns permitted under this
Agreement) ("Terex"), and Ronald M. DeFeo ("DeFeo"), whose address is 3 Diamond
Hill Lane, Westport, CT 06880.
W I T N E S S E T H:
WHEREAS, Terex has determined that it is in the best interests of Terex
and its stockholders to enter into this Agreement setting forth the obligations
and duties of both Terex and DeFeo; and
WHEREAS, Terex wishes to assure itself of the services of DeFeo for the
period hereinafter provided, and DeFeo is willing to be employed by Terex for
said period, upon the terms and conditions provided in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, Terex and DeFeo (individually a "Party" and
together the "Parties") agree as follows:
1. DEFINITIONS.
(a) "Affiliate" shall mean an entity
(i) that is directly or indirectly controlled by or under common
control with Terex, or
(ii) that controls Terex.
(b) "Base Salary" shall mean the annual salary provided for in
Section 3 below, as adjusted from time to time by the Board.
(c) "Beneficial Owner" shall have the meaning defined in Rule 13d-3
under the Exchange Act.
(d) "Beneficiary" shall mean the person or persons named by DeFeo
pursuant to Section 21 below or, in the event that no such person
is named and survives DeFeo, his estate.
(e) "Board" shall mean the Board of Directors of Terex.
(f) "Cause" shall mean:
(i) DeFeo's conviction in a court of law of, or guilty plea or
no contest plea to, a felony charge or a misdemeanor charge
involving moral turpitude,
(ii) willful, substantial and continued failure by DeFeo to
perform his duties under this Agreement, (iii) willful
engagement by DeFeo in conduct that is demonstrably and
materially injurious to Terex, (iv) entry by a court or
quasi-judicial governmental agency of the United States or a
political subdivision thereof of an order barring DeFeo from
serving as an officer or director of a public company, (v)
gross negligence resulting in material economic harm to
Terex, or (vi) a breach by DeFeo of Section 10 or Section 11
below. For the purposes of clauses, (ii), (iii) and (v) of
this definition, no act or failure to act on the part of
DeFeo shall be deemed "willful" or "gross negligence" (x) if
caused by a Disability or (y) unless done, or omitted to be
done, by him not in good faith or without reasonable belief
that his act or omission was in the best interest of Terex.
(g) "Change in Control" shall mean
(i) any Person becoming the Beneficial Owner of 40 percent or
more of the combined voting power of the Company's then
outstanding securities;
(ii) a change in the composition of the Board occurring within a
rolling two-year period, as a result of which fewer than a
majority of the directors are Incumbent Directors
("Incumbent Directors" shall mean directors who either (x)
are members of the Board as of the date of this Agreement or
(y) are elected, or nominated for election, to the Board
with the affirmative votes of at least a majority of the
Incumbent Directors at the time of such election or
nomination, but shall not include an individual not
otherwise an Incumbent Director whose election or nomination
is in connection with an actual or threatened proxy contest,
including but not limited to a consent solicitation,
relating to the election of directors to the Board); or
(iii)consummation, in any transaction or series of transactions,
of a complete liquidation or dissolution of the Company or a
merger, consolidation or sale of all or substantially all of
the Company's assets (collectively, a "Business
Combination") other than a Business Combination after which
(x) the stockholders of the Company own more than 80 percent
of the combined voting power of the voting securities of the
company resulting from the Business Combination, (y) at
least a majority of the board of directors of the resulting
corporation were Incumbent Directors or (z) no individual,
entity or group (excluding any corporation resulting from
the Business Combination or any employee benefit plan of
such corporation or of the Company) becomes the Beneficial
Owner of 30 percent or more of the combined voting power of
the securities of the resulting corporation, who did not own
such securities immediately before the Business Combination.
(h) "Code" shall mean the Internal Revenue Code of 1986, as from time
to time amended.
(i) "Committee" shall mean the Compensation Committee of the Board.
(j) "Covenant Period" shall mean the period beginning with
commencement of the Term and ending as provided in Section 11(b)
and, as applicable, Section 12(b).
(k) "Date of Termination" shall mean, with respect to any purported
termination of DeFeo's employment during the Term, (i) if DeFeo's
employment terminates due to Disability, 30 days after a
good-faith determination of Disability by Terex (provided that
DeFeo shall not have returned to full-time performance of his
duties during such 30-day period), and (ii) if DeFeo's employment
terminates for any other reason, the date specified in the Notice
of Termination (which shall be not less than 30 days, and, in the
case of Voluntary Termination by DeFeo, not more than 60 days,
after the date of such Notice of Termination).
(l) "Disability" shall mean DeFeo's inability to perform the
essential duties set forth in this Agreement by reason of a
physical or mental disability or infirmity that has continued for
more than six consecutive months or for such shorter periods as
aggregate more than 24 weeks in any 24-month period.
(m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
from time to time amended. (n) "Good Reason" shall mean the
occurrence (without DeFeo's express written consent) of any one
of the following acts or omissions by Terex unless, in the case
of any act or omission described in paragraph (i), (v) or (vi) of
this Section 1(n) or Section 9(j) below, such act or omission is
corrected prior to the Date of Termination specified in the
Notice of Termination in respect thereof:
(i) assignment to DeFeo of any duties inconsistent with his
status as a senior executive officer of Terex, failure to
maintain him in the position of Chief Executive Officer and
reporting relationship set forth in Section 2(c)(i) below or
a substantial adverse alteration in the nature of his
authority or responsibilities under this Agreement;
(ii) reduction by Terex in DeFeo's Base Salary, in effect on the
date of this Agreement or as the same may be increased from
time to time, except for across-the-board salary reductions
similarly affecting all senior executives of Terex or of any
Person in control of Terex;
(iii)relocation of Terex's principal executive offices to a
location more than 50 miles from the location of such
offices on the date of this Agreement or a requirement that
DeFeo be based anywhere other than at Terex's principal
executive offices except for necessary travel on Terex's
business to an extent substantially consistent with DeFeo's
business travel obligations on the date of this Agreement;
(iv) failure by Terex to pay to DeFeo any portion of his then
current compensation or provide any material benefit except
pursuant to an across-the-board compensation or benefit
deferral or reduction similarly affecting all senior
executives of Terex or of any Person in control of Terex, or
to pay DeFeo any portion of an installment of deferred
compensation under any deferred compensation program of
Terex within seven days after the date when such
compensation is due;
(v) failure by Terex to continue in effect any compensation or
benefit plan or fringe benefit in which DeFeo participates
that is material to his total compensation, unless an
equitable arrangement (embodied in an ongoing substitute or
alternative plan) has been made with respect to such plan,
or failure by Terex to continue DeFeo's participation
therein (or in such substitute or alternative plan) on a
basis not materially less favorable, both in terms of the
amount of benefits provided and the level of his
participation relative to any other participant, than
existed immediately prior to any such failure;
(vi) failure by Terex to continue to provide DeFeo with benefits
substantially similar to those enjoyed by him under any of
the plans described in Section 8 below in which he was a
participant at the time of any such failure.
(o) "Notice of Termination" shall mean delivery of written notice by
one Party and receipt thereof by the other Party in accordance
with Section 25 below, which notice shall indicate the specific
termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of DeFeo's employment hereunder.
(p) "Person" shall have the meaning defined in Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof; provided, however, that a Person shall not include:
(i) Terex or any subsidiary or affiliate (as such term is
defined in Rule 12b-2 promulgated under the Exchange Act),
(ii) a trustee or other fiduciary holding securities under an
employee benefit plan of Terex or any Subsidiary or
Affiliate,
(iii)an underwriter temporarily holding securities pursuant to
an offering of such securities, or (iv) a corporation owned,
directly or indirectly, by the stockholders of Terex in
substantially the same proportion as their ownership of
stock of Terex.
(q) "Spouse" shall mean, during the Term of Employment, the woman who
as of any relevant date is legally married to DeFeo.
(r) "Subsidiary" shall mean a corporation of which Terex owns
directly or indirectly more than 50 percent of its outstanding
securities representing the right, other than as affected by
events of default, to vote for the election of directors.
(s) "Term of Employment" or "Term" shall mean the period specified in
Section 2(b) below during which DeFeo is employed by Terex or any
of its Affiliates.
2. TERM OF EMPLOYMENT, POSITIONS AND DUTIES.
(a) Employment of DeFeo. Terex hereby employs DeFeo, and DeFeo hereby
accepts employment with Terex, in the position and with the duties and
responsibilities set forth below and upon such other terms and conditions as are
hereinafter stated.
(b) Term of Employment. The Term of Employment shall commence on the date
of this Agreement and shall terminate on December 31, 2001, unless it is sooner
terminated as provided in Section 9 below or extended by agreement of the
Parties; provided, however, that, if a Change in Control shall occur on or prior
to December 31, 2001, the Term of Employment shall continue in effect until the
later of (x) 12 months after the month in which such Change in Control occurs or
(y) December 31, 2001.
(c) Title, Duties and Authorities.
(i) Until termination of his employment hereunder, DeFeo shall be
employed as Chief Executive Officer of Terex, reporting to the Board, with
all the authorities and responsibilities that normally accrue to the
position of chief executive officer, and shall hold such other titles as
the Board may grant, including but not limited to President and Chief
Operating Officer of Terex.
(ii) Consistent with its obligations to stockholders, Terex agrees to
use its best efforts to procure the election of DeFeo as a member of and
Chairman of the Board and to ensure DeFeo's re-election to that position
during the Term.
(d) Time and Effort.
(i) DeFeo agrees to devote his best efforts and abilities and his full
business time and attention to the affairs of Terex in order to carry out
his duties and responsibilities under this Agreement.
(ii) Notwithstanding the foregoing, nothing shall preclude DeFeo
from
(A) serving on the boards of (x) a reasonable number of
trade associations and charitable organizations, (y) United
Rentals, Inc. and (z) with the prior consent of the Board, any
other business not in competition with Terex,
(B) engaging in charitable activities and community affairs,
and
(C) managing his personal investments and affairs; provided,
however, that any such activities do not materially interfere
with the proper performance of his duties and responsibilities
specified in Section 2(c) above.
3. BASE SALARY.
DeFeo shall receive from Terex an initial Base Salary, payable in
accordance with the regular payroll practices of Terex, of $600,000. During
the Term, the Board shall review the Base Salary for increase no less often
than annually as of the beginning of each calendar year after 1999.
4. ANNUAL BONUS.
(a) Entitlement. DeFeo shall receive an annual bonus in
respect of each calendar year during the Term of Employment in accordance with
any annual incentive plan or plans established by Terex either for DeFeo alone
or for members of Terex's senior management generally.
(b) Payment. The annual bonus shall be payable as soon as
reasonably practicable after the completion of Terex's audited financial
statements for such calendar year, prepared in accordance with generally
accepted accounting principles, but in no event later than 120 days after the
end of the calendar year.
5. LONG-TERM INCENTIVE COMPENSATION.
During the Term DeFeo shall participate in any long-term incentive plan or
plans established by Terex either for DeFeo alone or for members of Terex's
senior management generally.
6. EQUITY OPPORTUNITY.
During the Term DeFeo shall be eligible to receive grants of options to
purchase shares of Terex's stock and awards of shares of Terex's stock, either
or both as determined by the Committee, under and in accordance with the terms
of applicable plans of Terex and related option and award agreements. DeFeo
shall also be entitled to participate in any equity programs of Subsidiaries or
Affiliates upon such terms and conditions as may be established by the
Committee.
7. EXPENSE REIMBURSEMENT.
DeFeo shall be entitled to prompt reimbursement by Terex for all reasonable
out-of-pocket expenses incurred by him during the Term in performing services
under this Agreement, upon his submission of such accounts and records as may be
reasonably required by Terex.
8. EMPLOYEE BENEFIT PLANS.
During the Term DeFeo shall be entitled to participate in all life
insurance, short-term and long-term disability, accident, health insurance and
savings/retirement plans that are applicable to Terex employees generally or to
the senior executives of Terex. DeFeo shall be entitled to the number of paid
vacation days per year determined by Terex, which, however, shall not be less
than four weeks in any calendar year. DeFeo shall also be entitled to all paid
holidays given by Terex to its employees generally.
9. TERMINATION OF EMPLOYMENT.
(a) General. Notwithstanding anything to the contrary herein, in the event
of termination of DeFeo's employment under this Agreement for any reason
whatsoever, he, his dependents or his Beneficiary, as may be the case, shall be
entitled to receive (in addition to payments and benefits under, and except as
specifically provided in, subsections (b) through (i) below as applicable):
(i) his Base Salary through the Date of Termination;
(ii) payment in lieu of any unused vacation, in accordance with
Terex's vacation policy and applicable laws:
(iii) any annual bonus earned but not yet paid to him for any calendar
year prior to the year in which his termination occurs;
(iv) any deferred compensation under any incentive compensation plan
of Terex or any deferred compensation agreement then in effect;
(v) any other compensation or benefits, including without limitation
long-term incentive compensation described in Section 5 above, benefits
under equity grants and awards described in Section 6 above and employee
benefits under plans described in Section 8 above, that have vested through
the Date of Termination or to which he may then be entitled in accordance
with the applicable terms of each grant, award or plan; and
(vi) reimbursement in accordance with Section 7 above of any business
expenses incurred by DeFeo through the Date of Termination but not yet paid
to him.
(b) Termination due to Death. In the event that DeFeo's employment
terminates due to his death, his Beneficiary shall be entitled, in addition to
the compensation and benefits specified in Section 9(a), to:
(i) his Base Salary, at the rate in effect on the date of his death,
through the end of the month in which his death occurs, and
(ii) an annual bonus under Terex's Annual Incentive Compensation Plan
prorated to the date of death, plus any discretionary payment that may be
awarded, for the year in which his death occurs.
(c) Termination due to Disability. In the event that DeFeo's employment
terminates due to Disability, as determined by Terex based on competent medical
advice, he or his Beneficiary, as the case may be, shall be entitled, in
addition to the compensation and benefits specified in Section 9(a), to an
annual bonus under Terex's Annual Incentive Compensation Plan prorated to the
Date of Termination, plus any discretionary payment that may be awarded, for the
year in which his termination due to Disability occurs.
(d) Termination by Terex for Cause. In the event that DeFeo's employment is
terminated by Terex for Cause, he shall be entitled only to the compensation and
benefits specified in Section 9(a). Notwithstanding the foregoing, termination
for Cause may not occur pursuant to clauses (ii), (iii), (iv), (v) or (vi) of
Section 1(f) above unless and until, with the Board's prior approval, Terex has
delivered to DeFeo Notice of Termination, which shall contain in reasonable
detail the facts purporting to constitute such nonperformance, act, omission or
breach, and afforded him 30 days thereafter to cure the same and/or to respond
in writing to the Board setting forth his position that his termination for
Cause should not occur and requesting reconsideration by the Board, in which
event (x) the effective date of termination of employment shall be deferred
until the Board has had the opportunity to consider whether such nonperformance,
act, omission or breach has been cured and to consider any request by DeFeo for
reconsideration, and (y) the Board shall thereafter cause a written notice to be
delivered on its behalf to DeFeo stating either that it has rescinded its
determination that his employment is to be terminated for Cause or that affirms
its determination that his employment is to be terminated for Cause and that
contains an effective date of termination of employment, which shall be not
earlier than 15 days after such notice is given. Section 1(n)(i) to the contrary
notwithstanding, upon delivery to DeFeo of Notice of Termination under this
Section 9(d), DeFeo shall be suspended from all duties and responsibilities
unless and until the Board rescinds its determination that his employment is to
be terminated for Cause.
(e) Termination by Terex Without Cause or by DeFeo for Good Reason.
(i) Terex shall provide DeFeo 30 days' Notice of Termination of his
employment without Cause, and DeFeo shall provide 30 days' Notice of
Termination of his employment for Good Reason.
(ii) In the event of termination by Terex of DeFeo's employment
without Cause or of termination by DeFeo of his employment for Good Reason,
he shall be entitled, in addition to the compensation and benefits
specified in Section 9(a), to:
(A) two times his Base Salary, at the rate in effect immediately
before such termination,
(B) two times the average of his annual earned bonuses for the
two calendar years in the Term preceding the year in which the Term
ends,
(C) continuing coverage under the life, disability, accident and
health insurance programs for Terex employees generally and under any
supplemental programs covering Terex executives, as from time to time
in effect, for the two-year period from such termination or until
DeFeo becomes eligible for substantially similar coverage under the
employee welfare plans of a new employer, whichever occurs earlier,
provided that DeFeo's right to elect continued medical coverage after
termination of employment under Part 6 of Title I of the Employee
Retirement Income Security Act of 1974, as amended, shall be deemed
satisfied by the coverage provided in this clause (C), and
(D) immediate and unconditional vesting of the unvested stock
options and stock grants previously awarded to DeFeo and, for the
one-year period following either such termination, the right to
exercise any stock options held by him; provided, however, that any
unvested "performance" stock options, stock grants, long-term
incentive awards or other similar awards shall not vest unless their
specified performance objectives are achieved prior to the Date of
Termination and otherwise as provided in the relevant plan documents.
(iii) The payments specified in Section 9(e)(ii)(A) and (B) shall be
made by Terex to DeFeo as follows:
(A) 50 percent of the amounts due shall be paid ratably in cash
over the 12 months following the Date of Termination, and
(B) the remaining 50 percent of these amounts shall be paid in a
cash lump sum at the beginning of the 13th month following the Date of
Termination.
(iv) DeFeo's right to terminate his employment for Good Reason shall
not be affected by his incapacity due to physical or mental illness.
DeFeo's continued employment shall not constitute consent to, or a waiver
of rights with respect to, any act or omission constituting Good Reason.
(f) Voluntary Termination by DeFeo. DeFeo shall have the right voluntarily
to terminate his employment in accordance with Section 1(k) above. If he does
so, he shall be entitled only to the compensation and benefits specified in
Section 9(a).
(g) Termination by Terex Without Cause or by DeFeo for Good Reason
Following a Change in Control. In the event of termination of DeFeo's employment
within one year following a Change in Control (i) by Terex without Cause or (ii)
by DeFeo for Good Reason, he shall be entitled, in addition to the compensation
and benefits specified in Section 9(a), to the amounts specified in Section
9(e)(ii) (A) and (B), payable to him in a cash lump sum not later than five days
after the Date of Termination, and to the additional rights specified in Section
9(e)(ii)(C) and (D).
(h) Terex's Election Not to Extend the Agreement. In the event that Terex
does not extend this Agreement or enter into a new employment and compensation
agreement, commencing at the end of the Term, on terms at least as favorable as
those set forth in this Agreement, DeFeo shall be entitled, in addition to the
compensation and benefits specified in Section 9(a), to the amounts specified in
Section 9(e)(ii)(A) and (B), payable to him as provided in Section 9(e)(iii),
and to the additional rights specified in Section 9(e)(ii)(C) and (D).
(i) DeFeo's Election Not to Extend the Agreement. In the event that DeFeo
does not accept an offer by Terex to extend this Agreement or enter into a new
employment and compensation agreement on terms at least as favorable as those
set forth in this Agreement commencing at the end of the Term, he shall be
deemed to have terminated his employment voluntarily as of the end of the Term
and shall be entitled only to the compensation and benefits specified in Section
9(a).
(j) Determination of Amounts of Payments. If Terex's independent auditors
determine that the amount due DeFeo under Section 9(g) will exceed the amount
permissible under Code Section 280G without imposition of the excise tax imposed
by Code Section 4999, the independent auditors shall then determine (i) the
after-tax amount and (ii) the maximum amount that may be paid under Code Section
280G without imposition of any tax, and Terex shall then pay the greater amount
to DeFeo.
(k) Cessation of Payments. If, during or after the Term, DeFeo commits a
breach of Section 10 or Section 11 below, Terex shall have no further obligation
to make payments to him under this Agreement except as may be required in
accordance with Section 9(a).
(l) Notice Requirements. Any purported termination of DeFeo's employment
that is not effected pursuant to Notice of Termination satisfying the
requirements of Sections 1(k) and 1(o) and Section 25 shall not be effective for
purposes of this Agreement.
10. CONFIDENTIAL INFORMATION.
(a) Acknowledgments. DeFeo acknowledges that:
(i) As a result of his employment with Terex, DeFeo has obtained and
will obtain secret and confidential information concerning the business of
Terex and its Affiliates, including, without limitation, the identity of
customers and sources of supply, their needs and requirements, the nature
and extent of contracts with them, and related cost, price and sales
information.
(ii) Terex and its Affiliates will suffer damage that will be
difficult to compute if, during the Term or thereafter, DeFeo should
divulge secret and confidential information relating to the business of
Terex heretofore or hereafter acquired by him in the course of his
employment with Terex or any of its Affiliates.
(iii) The provisions of this Section 10 are reasonable and necessary
for the protection of the business of Terex and its Affiliates.
(b) Confidential Information. DeFeo agrees that he will not at any time,
either during the Term of Employment or thereafter, divulge to any person, firm
or corporation any information obtained or learned by him during the course of
his employment with Terex or any of its Affiliates, with regard to the
operational, financial, business or other affairs of Terex or its Affiliates,
their officers and directors, including, without limitation, trade "know how,"
secrets, customer lists, sources of supply, pricing policies, operational
methods or technical processes, except
(i) in the course of performing his duties hereunder,
(ii) with Terex's express written consent,
(iii) to the extent that any such information is in the public domain,
is ascertainable from public or published information or is known to any
person who is not subject to a contractual or fiduciary obligation owed to
Terex not to disclose such information, in each case other than as a result
of DeFeo's breach of any of his obligations hereunder, or
(iv) when required to be disclosed by court order, subpoena or other
government process. In the event that DeFeo shall be required to make
disclosure pursuant to the provisions of clause (iv) of the preceding
sentence, he shall promptly, but in no event more than 48 hours after
learning of such court order, subpoena, or other government process, notify
Terex, by personal delivery or by facsimile, confirmed by mail. Further, at
Terex's written request and expense, DeFeo shall
(i) take all reasonably necessary steps requested by Terex to defend
against the enforcement of such court order, subpoena or other government
process, and;
(ii) permit Terex to intervene and participate with counsel of its
choice in any proceeding relating to the enforcement thereof.
(c) Return of Documents and Property. Upon termination of his employment
with Terex, or at any time Terex may so request, DeFeo will promptly deliver to
Terex all files, memoranda, notes, records, reports, manuals, data, drawings,
blueprints and other documents and information (and all copies thereof) relating
to the business of Terex and/or its Affiliates, and all property associated
therewith, that are then in his possession or under his control.
(d) Remedies and Sanctions. In the event that DeFeo is found to be in
violation of Section 10(b) or (c), Terex shall be entitled to relief as provided
in Section 12 below.
11. NONCOMPETITION/NONSOLICITATION.
(a) Acknowledgments. DeFeo acknowledges that:
(i) Terex and its Affiliates will suffer damage that will be difficult
to compute if, during the Term or thereafter, DeFeo should enter a
competitive business.
(ii) The provisions of this Section 11 are reasonable and necessary
for the protection of the business of Terex and its Affiliates.
(b) Noncompetition and Nonsolicitation. During the Covenant Period (which
shall extend for 12 months after the Term) DeFeo, without the prior written
permission of Terex, shall not, directly or indirectly:
(i) enter into the employ of or render any services to any person,
firm or corporation engaged in any business that derives more than 5
percent of its gross sales from products that are interchangeable with or
substitutable for a product sold by one or more of the businesses conducted
by Terex or any of its Affiliates when the Term ends (a "Competitive
Business"),
(ii) engage in any Competitive Business for his own account,
(iii) become associated with or interested in any Competitive Business
as an individual, partner, shareholder, creditor, director, officer,
principal, agent, employee, trustee, consultant, advisor or in any other
relationship or capacity,
(iv) employ or retain, or have or cause any other person or entity to
employ or retain, any person who was employed or retained by Terex or any
of its Affiliates while DeFeo was employed by Terex, or
(v) solicit, endeavor to entice away from or knowingly interfere with
Terex or any of its Affiliates, any of its or their customers or sources of
supply. Notwithstanding, the foregoing, nothing in this Agreement shall
preclude DeFeo from investing his personal assets in the securities of any
corporation or other business entity that is engaged in a Competitive
Business if such securities are traded on a national stock exchange or in
the over-the-counter market and if such investment does not result in his
beneficially owning, at any time, more than 3 percent of the
publicly-traded equity securities of such competitor.
(c) Remedies and Sanctions. In the event that DeFeo is found to be in
violation of Section 11(b), Terex shall be entitled to relief as provided in
Section 12 below.
12. INJUNCTIVE RELIEF.
(a) If DeFeo commits a breach, or threatens to commit a breach, of any of
the provisions of Section 10 or 11 above, Terex shall have the right and remedy
to seek to have the provisions of this Agreement specifically enforced by any
court having equity jurisdiction, it being acknowledged and agreed by DeFeo that
the services being rendered hereunder to Terex are of a special, unique and
extraordinary character and that any such breach or threatened breach will cause
irreparable injury to Terex and that monetary damages will not provide an
adequate remedy to Terex. The rights and remedies enumerated in this Section
12(a) shall be independent of the other and shall be severally enforceable, and
such rights and remedies shall be in addition to, and not in lieu of, any other
damages, rights and remedies available to Terex under law or equity.
(b) If DeFeo shall violate any covenant contained in this Section 12, the
Covenant Period shall automatically extend for 12 months from the date on which
DeFeo permanently ceases such violation or, if later, from the date of entry by
a court of competent jurisdiction of a final order or judgment enforcing such
covenant.
(c) If any provision of this Section 12 is held to be unenforceable because
of the scope, duration or area of its applicability, the tribunal making such
determination shall have the power to modify such scope, duration, or area, or
all of them, and any such provision shall then be applicable in such modified
form.
13. WITHHOLDING TAXES. All payments to DeFeo or his Beneficiary shall be
subject to withholding on account of federal, state and local taxes as required
by law. If any payment under this Agreement is insufficient to provide the
amount of such taxes required to be withheld, Terex may withhold such taxes from
any subsequent payment due DeFeo or his Beneficiary. In the event that all
payments due are insufficient to provide the required amount of such withholding
taxes, DeFeo or his Beneficiary, within five days after written notice from
Terex, shall pay to Terex the amount of such withholding taxes in excess of the
payments due.
14. INDEMNIFICATION AND LIABILITY INSURANCE. Nothing herein is intended to
limit Terex's indemnification of DeFeo, and Terex shall indemnify him to the
fullest extent permitted by applicable law consistent with Terex's Certificate
of Incorporation and By-Laws as in effect on the date of this Agreement, with
respect to any action or failure to act on his part while he is (x) an officer,
director or employee of Terex or any Subsidiary or Affiliate or (y) a director
or officer of any trade association or business enterprise that is not a
subsidiary or Affiliate and in which capacity his service is at Terex's request.
To the extent that directors' and officers' liability insurance is obtainable on
commercially economic terms, Terex shall cause DeFeo to be covered, during the
Term and after the Term in respect of claims arising from any such service
during the Term, by such insurance on terms no less favorable than the
directors' and officers' liability insurance maintained by Terex as in effect on
the date of this Agreement in terms of coverage, limits and reimbursement of
defense costs. In any period during which such insurance coverage is not
obtainable on commercially economic terms, Terex shall cause DeFeo to be covered
by as much of such insurance as may be obtained for the largest premium paid by
Terex for such an insurance policy in effect during the Term.
15. ASSIGNABILITY, SUCCESSORS, BINDING AGREEMENT.
(a) In addition to any obligations imposed by law upon any successor to
Terex, Terex will use its best efforts to persuade any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of Terex to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
Terex would be required to perform it if no such succession had taken place.
Failure of Terex to use its best efforts to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle DeFeo to compensation from Terex in the same amount
and on the same terms as DeFeo would be entitled to hereunder if he were to
terminate his employment for Good Reason after a Change in Control, except that,
for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination.
(b) This Agreement shall inure to the benefit of and be enforceable by
DeFeo's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If DeFeo shall die while
any amount would still be payable to him hereunder (other than amounts which, by
their terms, terminate upon his death) if he had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the executors, personal representatives or
administrators of DeFeo's estate.
16. REPRESENTATIONS.
The Parties respectively represent and warrant that each is fully
authorized and empowered to enter into this Agreement and that the performance
of its or his obligations, as the case may be, under this Agreement will not
violate any agreement between such Party and any other person, firm or
organization. Terex represents and warrants that this Agreement has been duly
authorized by all necessary corporate action and is valid, binding and
enforceable in accordance with its terms.
17. ENTIRE AGREEMENT.
Except to the extent otherwise provided herein, this Agreement contains the
entire understanding and agreement between the Parties concerning the subject
matter hereof and supersedes any prior agreements, whether written or oral,
between the Parties concerning the subject matter hereof. In the event of a
conflict between this Agreement and terms of any benefit plan, grant or award,
the provisions of this Agreement shall govern the determination of DeFeo's
rights. Notwithstanding the previous sentence, to the extent that the provisions
of any benefit plan, grant or award are more favorable to DeFeo than the
provisions of this Agreement, the provisions of such benefit plan, grant or
award shall govern the determination of DeFeo's rights.
18. AMENDMENT OR WAIVER.
No provision in this Agreement may be amended unless such amendment is
agreed to in writing and signed by both DeFeo and an authorized officer of
Terex. No waiver by either Party of any breach by the other Party of any
condition or provision contained in this Agreement to be performed by such other
Party shall be deemed a waiver of a similar or dissimilar condition or provision
at the same or any prior or subsequent time. Any waiver must be in writing and
signed by the Party to be charged with the waiver.
19. SEVERABILITY.
In the event that any provision or portion of this Agreement shall be
determined to be valid or unenforceable for any reason, in whole or in part, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
20. SURVIVAL.
The respective rights and obligations of the Parties under this Agreement
shall survive any termination of DeFeo's employment with Terex.
21. BENEFICIARIES/REFERENCES.
DeFeo shall be entitled to select (and change, to the extent permitted
under any applicable law) a beneficiary or beneficiaries to receive any
compensation or benefit payable under this Agreement following DeFeo's death by
giving Terex written notice thereof. In the event of DeFeo's death or of a
judicial determination of his incompetence, reference in this Agreement to DeFeo
shall be deemed to refer, as appropriate, to his beneficiary, estate or other
legal representative.
22. MITIGATION.
Terex agrees that, if DeFeo's employment by Terex terminates during the
Term, DeFeo is not required to seek other employment or to attempt in any way to
reduce any amounts payable to him due under this Agreement. Further, the amount
of any payment shall not be reduced by any compensation earned by DeFeo as the
result of employment by another employer, by retirement benefits, by offset
against any amount claimed to be owed by DeFeo to Terex, or otherwise.
23. GOVERNING LAW.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of Connecticut, without reference to
principles of conflict of laws.
24. RESOLUTION OF DISPUTES.
(a) Arbitration. Except as provided in Section 24(b), any disputes arising
under or in connection with this Agreement shall be resolved by arbitration, to
be held in Stamford, Connecticut, in accordance with the commercial rules and
procedures of the American Arbitration Association.
(b) Litigation. Notwithstanding the foregoing, DeFeo shall have the right
to waive his rights under Section 24(a) and have any dispute resolved by a court
of competent jurisdiction.
(c) Costs. Except as provided in Section 10(b), each Party shall bear its
or his respective costs, fees (including attorneys' fees) and expenses of any
arbitration or litigation in connection with this Agreement.
(d) Continuation of Payments. Pending the outcome or resolution of any
dispute between the Parties, Terex shall continue to pay to DeFeo all amounts,
and provide on his behalf all benefits, due him under this Agreement.
25. NOTICES.
Any notice given to either Party shall be in writing and shall be deemed to
have been given when delivered either personally, by fax, by overnight delivery
service (such as Federal Express) or sent by certified or registered mail,
postage prepaid, return receipt requested, duly addressed to the Party concerned
at the address indicated below or to such changed address as the Party may
subsequently give notice of.
If to Terex:
Terex Corporation
500 Post Road East
Westport, CT 06880
Attention: General Counsel
Fax: (203) 227-1647
If to DeFeo:
Ronald M. DeFeo
3 Diamond Hill Lane
Westport, CT 06880
Fax: (203) 227-8317
26. HEADINGS.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
27. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts together
shall constitute one and the same instrument. IN WITNESS WHEREOF, the
undersigned have executed this Agreement as of the date first written above.
Terex Corporation
Attest:/s/ Jeff Gershowitz By: /s/ Eric I Cohen
Name: Eric I Cohen
Title: Senior Vice President
Witness: /s/ Cheryl E. England /s/ Ronald M. DeFeo
<TABLE>
<CAPTION>
EXHIBIT 12.1
TEREX CORPORATION
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
(amounts in millions)
Three Months Ended Nine Months Ended
September 30, September 30,
------------------------ -------------------------
1999 1998 1999 1998
------------ ----------- ----------- -------------
Earnings
Income (loss) before taxes and minority
<S> <C> <C> <C> <C>
interest................................ $ 31.0 $ 20.0 $ 88.9 $ 55.6
Adjustments:
Minority interest in losses of
consolidated subsidiaries............. --- --- --- ---
Undistributed (income) loss of less
than 50% owned investments............ --- --- --- ---
Distributions from less than 50% owned
investments........................... --- --- --- ---
Fixed charges........................... 21.8 13.9 53.7 37.2
---------- --------- ---------- -----------
Earnings.................................. 52.8 33.9 142.6 92.8
---------- --------- ---------- -----------
Combined fixed charges, including
preferred accretion
Interest expense, including debt discount
amortization............................ 20.0 12.6 48.9 33.6
Accretion of redeemable convertible
preferred stock........................ --- --- --- ---
Amortization/writeoff of debt issuance
costs................................... 0.6 0.5 1.7 1.5
Portion of rental expense representative
of interest factor (assumed to be 33%)..
1.2 0.8 3.1 2.1
---------- --------- ---------- -----------
Fixed charges............................. $ 21.8 $ 13.9 $ 53.7 $ 37.2
---------- --------- ---------- -----------
Ratio of earnings to combined fixed charges.
2.4x 2.4x 2.7x 2.5x
========== ========= ========== ===========
Amount of earnings deficiency for coverage
of combined fixed charges................
$ --- $ --- $ --- $ ---
========== ========= ========== ===========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 9-mos
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-1-1999
<PERIOD-END> SEP-30-1999
<CASH> 154,100
<SECURITIES> 0
<RECEIVABLES> 478,100
<ALLOWANCES> 5,500
<INVENTORY> 669,200
<CURRENT-ASSETS> 1,338,000
<PP&E> 246,000
<DEPRECIATION> 55,200
<TOTAL-ASSETS> 2,077,800
<CURRENT-LIABILITIES> 611,100
<BONDS> 1,066,000
0
0
<COMMON> 300
<OTHER-SE> 352,600
<TOTAL-LIABILITY-AND-EQUITY> 2,077,800
<SALES> 1,367,000
<TOTAL-REVENUES> 1,367,000
<CGS> 1,130,900
<TOTAL-COSTS> 1,130,900
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 48,900
<INCOME-PRETAX> 88,900
<INCOME-TAX> 2,600
<INCOME-CONTINUING> 86,300
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 86,300
<EPS-BASIC> 3.74
<EPS-DILUTED> 3.49
</TABLE>
