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EXHIBIT 10.9
FIRST AMENDMENT
FIRST AMENDMENT (the "FIRST AMENDMENT") dated as of July 31, 1992 by
and between XXXXX EQUIPMENT COMPANY ("CEC") and TEREX CORPORATION
("Purchaser"). Except as otherwise defined herein, capitalized terms used
herein and defined in the Stock Purchase Agreement referred to below shall be
used herein as therein defined.
W I T N E S S E T H :
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WHEREAS, the parties hereto have entered into a Stock Purchase
Agreement, dated as of May 27, 1992 (the "Stock Purchase Agreement"), as amended
hereby; and
WHEREAS, the parties to the Stock Purchase Agreement desire to amend
the Stock Purchase Agreement;
NOW THEREFORE, it is agreed:
1. The definition of "Ancillary Agreements" contained in Section 1.01
of the Stock Purchase Agreement is hereby amended by deleting the term "Korean
Mortgage" and inserting in lieu thereof the term "Korean Pledge Agreement".
2. The definition of "Clarklift/Samsung Entities" contained in Section
1.01 of the Stock Purchase Agreement is hereby amended by inserting immediately
following the phrase "Clarklift of Washington/Alaska, Inc.," the phrase
"Midland Clarklift, Inc.,".
3. The definition of "Group Stock" contained in Section 1.01 of the
Stock Purchase Agreement is hereby amended by inserting the phrase "40,000
shares of common stock, no par value, of Midland Clarklift, Inc.;" immediately
following the phrase "Clarklift of Washington/Alaska, Inc.;" contained therein.
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4. The definition of "German Mortgage" contained in Section 1.01 of
the Stock Purchase Agreement is hereby amended by deleting the phrase "8.08(b)"
contained therein and by inserting in lieu thereof the phrase "8.06(b)".
5. The definition of "Korean Mortgage" contained in Section 1.01 of
the Stock Purchase Agreement is hereby deleted in its entirety and the
following definition is added in lieu thereof:
"Korean Pledge Agreement" shall have the meaning assigned to such
term in Section 8.06(a) hereof.
6. The definition of "Transferred Affiliates" contained in Section
1.01 of the Stock Purchase Agreement is hereby amended by inserting the term
"Midland Clarklift, Inc., a South Carolina corporation;" immediately following
the phrase "Clarklift of Washington/Alaska, Inc., a Washington Corporation;".
7. Section 1.01 of the Stock Purchase Agreement is hereby amended by
inserting the following new definitions therein:
"CCI" shall have the meaning assigned to such term in
Section 8.06(a) hereof.
"CMH" shall have the meaning assigned to such term in
Section 8.06(a) hereof.
8. Section 2.01 of the Stock Purchase Agreement is hereby amended by
deleting the first sentence thereof in its entirety and inserting in lieu
thereof the following:
Subject to the terms and conditions set forth in this
Agreement, including, without limitation, the terms
and conditions set forth in Section 10.01, CEC agrees
to, and shall cause the Other Sellers to, sell, assign,
transfer and deliver to the Purchaser on the Closing
Date and the Purchaser agrees to purchase from CEC and
the Other Sellers on the Closing Date the Group Stock,
except for the stock of Samsung-Xxxxx Co., Ltd., which
may be assigned and transferred to CMHC on the Closing
Date or on a date subsequent to the Closing Date mutually
agreed upon by CEC and the Purchaser provided, however,
that nothing
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in this provision shall be construed to exclude the shares of
Samsung-Xxxxx from the definition of Group Stock.
9. Section 2.01 of the Stock Purchase Agreement is hereby
amended by deleting the phrase "the opening" contained in the last sentence
therein and inserting in lieu thereof the phrase "the close".
10. Section 2.02(d) of the Stock Purchase Agreement is hereby
amended by deleting the phrase "the opening" contained in the first sentence
therein and by inserting in lieu thereof the phrase "the close".
11. Section 5.09(c) of the Stock Purchase Agreement is hereby
amended by deleting the period at the end of the first and second sentences
thereof and adding the following language at the end of each such sentence:
", listing CEC and its past, present and future subsidiaries and
affiliates and members of the CMH Group as additional insureds and
stating that CEC is to be notified in writing in advance if the policy
or policies are cancelled or coverage amounts reduced."
12. The Stock Purchase Agreement is hereby amended by adding a
new Section 5.13 which shall read, in its entirety:
SECTION 5.13. Tax Matters. Neither the Purchaser nor any of
its subsidiaries or affiliates shall engage or cause any of the
Transferred Affiliates to engage in any transactions or activities on
the Closing Date that are outside the ordinary course of business which
give rise to any tax liability for which CEC or any of its affiliates is
or may be liable.
13. Section 8.06 of the Stock Purchase Agreement is hereby
amended to read, in its entirety:
SECTION 8.06. Receipt of Korean Pledge Agreement and German
Mortgage. CEC shall have received (a) a Pledge Agreement, executed by
each of CMH Acquisition Corp. ("CMH") and Xxxxx Components
International, Inc. ("CCI"), which shall provide for a first priority
perfected pledge by CCI of the shares of Xxxxx
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Components Korea, Inc. and a first priority perfected pledge by CMH of
the shares of CCI (the "Korean Pledge Agreement"), which Korean Pledge
Agreement shall secure all of the Purchaser's obligations under the Note
and shall be in form and substance reasonably satisfactory to CEC, and
(b) from Xxxxx Equipment GmbH, a mortgage creating a valid first
priority perfected mortgage lien on all of the real property (including
all buildings and improvements thereon) owned by Xxxxx Equipment GmbH in
Saarn, Germany (the "German Mortgage"), which German Mortgage shall
secure all of Purchaser's obligations under the Note and shall be in
form and substance reasonably satisfactory to CEC.
14. Exhibit 1.01(a) of the Stock Purchase Agreement is hereby deleted
in its entirety and replaced by Exhibit 1.01(a) attached hereto.
15. Exhibit 2.04 of the Stock Purchase Agreement is hereby amended to
add the term "Midland Clarklift, Inc." immediately after the term "Clarklift of
El Paso, Inc.," contained therein.
16. Exhibit 2.02(c) of the Stock Pledge Agreement is deleted in its
entirety and replaced by Exhibit 2.02(c) attached hereto.
17. Exhibit 5.09 of the Stock Purchase Agreement is deleted in its
entirety and replaced by Exhibit 5.09 attached hereto.
18. Exhibit 7.03(a) of the Stock Purchase Agreement is deleted in its
entirety and replaced by Exhibit 7.03(a) attached hereto.
19. Exhibit 7.03(b) of the Stock Purchase Agreement is deleted in its
entirety and replaced by Exhibit 7.03(b) attached hereto.
20. Exhibit 8.03(a) of the Stock Purchase Agreement is deleted in its
entirety and replaced by Exhibit 8.03(a) attached hereto.
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21. Exhibit 8.03(b) of the Stock Purchase Agreement is deleted in its
entirety and replaced by Exhibit 8.03(b) attached hereto.
22. Pursuant to Section 5.07 of the Stock Purchase Agreement, the
Disclosure Schedules are hereby amended by including in said Disclosure
Schedules the additional items set forth on Annex I attached hereto.
23. This First Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Stock Purchase Agreement, any of the Ancillary Agreements or the Disclosure
Schedules.
24. From and after the date hereof, all references in the Stock
Purchase Agreement, each of the Ancillary Documents and the Disclosure
Schedules shall be deemed to be references to the Stock Purchase Agreement, the
Ancillary Documents or the Disclosure Schedules as amended hereby.
25. This First Amendment may be executed on separate counterparts by
the parties hereto, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument.
26. The interpretation and construction of this First Amendment, and
all matters relating hereto, shall be governed by the laws of the State of New
York applicable to contracts made and to be performed entirely within the State
of New York (regardless of the laws that might otherwise govern under
applicable New York principles of conflicts of laws).
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IN WITNESS WHEREOF, each of the parties hereto has caused its corporate
name to be hereunto subscribed by its officer thereunto duly authorized, all as
of the day and year first above written.
XXXXX EQUIPMENT COMPANY
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
TEREX CORPORATION
By /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
XXXXX MATERIAL HANDLING COMPANY
(to the extent of its obligations
and agreements set forth or
referred to in Sections 10.05 and
10.06 of the Stock Purchase
Agreement, as amended hereby)
By /s/ Xxxx X. Xxxxx, Xx.
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Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
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