INCREMENTAL TERM LOAN ASSUMPTION
AGREEMENT dated as of
July 22, 2009 (this " Agreement "), among TEREX
CORPORATION, a Delaware corporation (" Terex "), J.P.
MORGAN CHASE INTERNATIONAL FINANCING LIMITED (" JPM
") and CREDIT SUISSE (" CS "), as administrative
agent (in such capacity, the " Administrative Agent
").
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A.
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Reference is made to the Credit
Agreement dated as of July 14, 2006 (as amended by Amendment No. 1
thereto dated as of January 11, 2008, Amendment No. 2 thereto dated
as of February 24, 2009 and Amendment No. 3 thereto dated as of May
27, 2009, and as further amended or otherwise modified and in
effect from time to time, the " Credit Agreement "),
among Terex, the subsidiaries of Terex party thereto, the Lenders
party thereto, the Administrative Agent and CS as collateral agent
(in such capacity, the " Collateral Agent
").
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B.
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Pursuant to Section 2.27 of the
Credit Agreement, Terex has requested that JPM and/or any affiliate
thereof, as JPM shall deem appropriate (together with JPM, the "
Incremental Lender ") provide Terex with an
Incremental Term Loan Commitment.
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C.
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The Incremental Lender is willing to
provide Terex with an Incremental Term Loan Commitment, on the
terms and subject to the conditions set forth herein and in the
Credit Agreement.
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D.
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Accordingly, in consideration of the
mutual agreements herein contained and other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
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Capitalized terms used and not
defined herein shall have the meanings assigned to such terms 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.
The Incremental Term Loan Commitment
evidenced hereby shall be a commitment to make Other Term Loans to
Terex having the following terms and conditions:
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Incremental Term Loan Commitment
Amount:
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The Dollar Equivalent of
€46,625,000.00 determined as of two Business Days prior to the
Incremental Term Loan Closing Date; provided ,
however , that to the extent such Dollar Equivalent would
exceed the then available Incremental Amount, it shall be reduced
to the then available Incremental Amount.
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Incremental Term Loan Closing
Date:
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The full amount of the Incremental
Term Loan to be made under this Agreement shall be made on the
first date on which each of the conditions set forth in Section 3
is satisfied or such later date on which such conditions are
satisfied as may be agreed upon by JPM and Terex, in each case with
notice to the Administrative Agent (such date, the "Incremental
Term Loan Closing Date"). If the Incremental Term Loan Closing Date
shall not have occurred on or prior to July 31, 2009, then the
Incremental Term Loan Commitment hereunder may be terminated by
JPM, in its sole discretion.
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Use of Proceeds:
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For working capital and other
general corporate purposes.
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Incremental Term Loan Maturity
Date:
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The Term Loan Maturity
Date.
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Incremental Term Loan Repayment
Dates and Amounts:
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As set forth in Annex I
hereto.
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Applicable Percentage:
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3.75% per annum, in the case of any
Eurocurrency Incremental Term Loan.
2.75% per annum, in the case of any
ABR Incremental Term Loan.
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Certain Representations:
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Terex hereby confirms that, as of
the Incremental Term Loan Closing Date, assuming satisfaction of
the conditions set forth in Section 3 below, all terms and
conditions for the making of this Incremental Term Loan under the
Credit Agreement will have been satisfied, including all such terms
and conditions set forth in Section 2.27 of the Credit
Agreement.
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General:
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The Incremental Term Loans described
above shall constitute "Incremental Term Loans" and “Other
Term Loans” for all purposes of the Credit Agreement and the
other Loan Documents, and the Incremental Lender shall be a Lender
with respect to such Incremental Term Loans for all purposes of the
Credit Agreement and the other Loan Documents.
No Borrowing Request delivered in
connection with this Agreement shall be effective unless such
Borrowing Request specifies “Eurocurrency Borrowing” as
the “Type of Borrowing.” Notwithstanding any right of
the Borrower under Section 2.10 of the Credit Agreement to convert
any Eurocurrency Borrowing denominated in dollars into an ABR
Borrowing, no such right shall be applicable with respect to any
Borrowing under this Agreement and the Borrower shall not deliver
any notice to the Administrative Agent seeking to exercise any such
right.
Notwithstanding Section 2.02 of the Credit
Agreement, JPM shall not be required to transfer funds to the
account designated by the Administrative Agent on the date proposed
in the applicable Borrowing Request unless each of the conditions
set forth in Section 3 is satisfied by no later than 10:30 a.m.
Local Time on such date. If the Incremental Term Loan Closing Date
does not occur on the date specified in any Borrowing Request, such
Borrowing Request shall cease to be effective.
The Incremental Lender hereby
acknowledges that the Credit Agreeme
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