INCREMENTAL REVOLVING CREDIT
ASSUMPTION AGREEMENT
dated as of June 28,
2011,
relating to the
CREDIT AGREEMENT
dated as of April 30,
2011,
among
TEREX CORPORATION,
THE SUBSIDIARIES OF TEREX PARTY
THERETO,
THE LENDERS PARTY
THERETO
and
CREDIT SUISSE AG,
as Administrative Agent and
Collateral Agent
________________
CREDIT SUISSE SECURITIES (USA)
LLC,
GOLDMAN SACHS LENDING PARTNERS
LLC,
RBS SECURITIES INC.
and
UBS SECURITIES LLC,
as Co-Lead Arrangers
and Joint Bookrunners
INCREMENTAL REVOLVING CREDIT
ASSUMPTION AGREEMENT dated as of June 28, 2011 (this “
Agreement ”), among TEREX CORPORATION, a Delaware
corporation (“ Terex ”), NEW TEREX HOLDINGS UK
LIMITED, with company number 02962659, a limited company organized
under the laws of England (the “ U.K. Borrower
”), TEREX INTERNATIONAL FINANCIAL SERVICES COMPANY, with
company number 327184, a company organized under the laws of the
Republic of Ireland (the “ European Borrower ”),
TEREX LIFTING AUSTRALIA PTY LTD (ACN 010 671 048), a company
organized under the laws of Australia and registered in Queensland,
Australia (the “ Australian Borrower ”), and
TEREX ITALIA S.R.L., a company organized under the laws of the
Republic of Italy (the “ Italian Borrower ” and,
together with the U.K. Borrower, the European Borrower and the
Australian Borrower, the “ Existing Subsidiary
Borrowers ”; Terex, together with the Existing Subsidiary
Borrowers, the “ Borrowers ”), the Incremental
Revolving Credit Lenders (as defined below) and CREDIT SUISSE AG,
as administrative agent (in such capacity, the “
Administrative Agent ”).
A. Reference is made to
the Credit Agreement dated as of April 30, 2011 (as amended,
supplemented or otherwise modified prior to the date hereof, the
“ Credit Agreement ”), among Terex, the lenders
from time to time party thereto and the Administrative
Agent.
B. Pursuant to Section
2.27 of the Credit Agreement, Terex has requested that the persons
set forth on Schedule I hereto (the “ Incremental
Revolving Credit Lenders ”) provide Revolving Credit
Commitments under the Credit Agreement (the “ Incremental
Revolving Credit Commitments ”) to the Borrowers in an
aggregate amount equal to $500,000,000, consisting of Domestic
Revolving Credit Commitments in an aggregate amount equal to
$250,000,000 and Multicurrency Revolving Credit Commitments in an
aggregate amount equal to $250,000,000.
C. The Incremental
Revolving Credit Lenders are willing to provide the Borrowers with
the Incremental Revolving Credit Commitments on the terms and
subject to the conditions set forth herein and in the Credit
Agreement.
D. Accordingly, in
consideration of the mutual agreements herein contained and other
good and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, the parties hereto agree as
follows:
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SECTION 1. Defined
Terms; Terms Generally. Capitalized terms used but not defined
herein are used with the meanings assigned to them in the Credit
Agreement. The rules of construction set forth in Section 1.02 of
the Credit Agreement shall apply equally to this Agreement. This
Agreement shall be an “Incremental Assumption
Agreement” for all purposes of the Credit Agreement and the
other Loan Documents.
SECTION 2. Terms and
Conditions. The Incremental Revolving Credit Commitments
evidenced hereby shall have the following terms and
conditions:
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Each Incremental
Revolving Credit Lender shall have the Incremental Revolving Credit
Commitment set forth opposite its name on Schedule I
hereto.
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Revolving Credit Commitment
Effective Date :
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June 28, 2011 (the
“ Revolving Credit Commitment Effective Date
”).
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The Applicable Percentages for
Revolving Loans and the Facility Fee shall be based upon the
Consolidated Leverage Ratio as set forth below.
Category 1
If the Consolidated Leverage Ratio
is greater than or equal to 3.00 to 1.00, the Applicable Percentage
shall be 4.00% for Eurocurrency Loans, 3.00% for ABR Loans and
0.50% for the Facility Fee.
Category 2
If the Consolidated Leverage Ratio
is greater than or equal to 1.50 to 1.00 but less than 3.00 to
1.00, the Applicable Percentage shall be 3.75% for Eurocurrency
Loans, 2.75% for ABR Loans and 0.50% for the Facility
Fee.
Category 3
If the Consolidated Leverage Ratio
is less than 1.50 to 1.00, the Applicable Percentage shall be 3.50%
for Eurocurrency Loans, 2.50% for ABR Loans and 0.50% for the
Facility Fee.
Each change in the Applicable
Percentage resulting from a change in the Consolidated Leverage
Ratio shall be effective with respect to all Loans, Commitments and
Letters of
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Credit on the date of
delivery to the Administrative Agent of the financial statements
and certificate required by Section 5.04(a) or (b) and
Section 5.04(c) of the Credit Agreement, respectively, based
upon the Consolidated Leverage Ratio as of the end of the most
recent fiscal quarter included in such financial statements so
delivered, and shall remain in effect until the date immediately
preceding the next date of delivery of such financial statements
and certificate 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.
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Terex will pay upfront fees to each
Incremental Revolving Credit Lender on the later of the Funding
Date and the Revolving Credit Commitment Effective Date in an
amount equal to 1.0% of the aggregate principal amount of
Incremental Revolving Credit Commitments held by such Incremental
Revolving Credit Lender on such date.
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The Incremental Revolving Credit
Commitments described above shall constitute “Revolving
Credit Commitments” for all purposes of the Credit Agreement
and the other Loan Documents, and each Incremental Revolving Credit
Lender shall be a Revolving Credit Lender with respect to its
Incremental Revolving Credit Commitment for all purposes of the
Credit Agreement and the other Loan Documents.
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SECTION 3. Certain
Agreements . Notwithstanding anything to the contrary set forth
in the Credit Agreement:
(a) Neither the Italian
Borrower nor the Australian Borrower shall be entitled to request
any Borrowing pursuant to Section 2.01(b) of the Credit Agreement,
it
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being agreed that the making of A/C
Fronted Loans pursuant to Section 2.24 of the Credit Agreement is
the exclusive method for the funding of Loans to such Borrowers
under the Credit Agreement;
(b) Terex shall provide
the Administrative Agent and the Revolving Credit Lenders of the
applicable Class at least five Business Days' notice of the
designation of a new Subsidiary Borrower pursuant to Section 9.22.
Any proposed Subsidiary Borrower that is a Domestic Subsidiary or
that is organized in the same jurisdiction as an existing Borrower
(subject to paragraph (a) of this Section, in the case of
Subsidiary Borrowers organized in Australia or Italy) may become a
Subsidiary Borrower in accordance with Sec
