TEREX CORPORATION
250,000 Units
consisting in the aggregate of
$250,000,000 13.25% Senior Secured Notes due 2002
and
1,000,000 Common Stock Appreciation Rights
PURCHASE AGREEMENT
April 27, 1995
XXXXXXXXX & COMPANY, INC.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
XXXXXX, READ & CO. INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Terex Corporation, a Delaware corporation ("Terex"), and the other
Terex Entities (defined below), hereby jointly and severally agree with you as
follows:
1. Issuance of Securities. Terex proposes to issue and sell to
purchasers listed on Schedule A hereto (the "Purchasers") (each such Purchaser
in the amount set forth opposite its name on Schedule A hereto) a total of
250,000 units (the "Units") consisting in the aggregate of (i) $250,000,000
aggregate principal amount of 13.25% Senior Secured Notes due 2002, Series A,
each with the related Guaranty (defined below) endorsed thereon (the "Series A
Notes"), and (ii) 1,000,000 Common Stock Appreciation Rights, Series A (the
"Series A Rights") of Terex. The Series A Notes will be issued pursuant to an
indenture (the "Indenture") to be dated as of the Closing Date (as defined
below) among Terex, the guarantors named in the Indenture (the "Guarantors")
and United States Trust Company of New York, as trustee (the "Trustee"). The
Guarantors will unconditionally guaranty the obligations under the Series A
Notes and the Indenture (collectively, the "Guaranty"). The obligations under
the Notes will be secured by security interests in or pledges of (the "Security
Interests") certain assets (the "Collateral") of Terex and certain of the
Subsidiaries (defined below) (collectively, the "Grantors") as set forth in the
Offering Circular (defined below). The Rights will be issued pursuant to a
common stock appreciation rights agreement (the "Rights Agreement") to be dated
as of the Closing Date between Terex and United States Trust Company of New
York, a New York banking corporation, as rights agent (the "Rights Agent").
Each Unit will consist of $1,000 principal amount of Series A Notes
and 4 Rights. Prior to separation, (i) the Units will be physically
represented by the Series A Notes, which will bear an endorsement representing
beneficial ownership of the Rights evidenced by a rights certificate (a "Rights
Certificate") on deposit with the Rights Agent, as custodian for the registered
holders of the Series A Notes, and (ii) transfer of a Series A Note also will
constitute transfer of a holder's beneficial interest in the related Rights.
On or after the Separation Date (as defined in the Indenture), the registered
holder of a Unit may surrender the Series A Note bearing the endorsement
relating to the Rights to the Rights Agent in exchange for a Series A Note and
a Rights Certificate.
The Units are being sold to refinance existing indebtedness and in
connection with the acquisition (the "Acquisition") of all of the outstanding
capital stock of Legris Industries, Inc. ("PPM North America") and 99.18% of
the outstanding capital stock of P.P.M., S.A. ("PPM Europe" and, together with
PPM North America, "PPM") from Legris Industries, S.A. ("Legris") by Terex
Cranes, Inc. ("Cranes"), a newly formed, wholly owned subsidiary of Terex. As
part of the Acquisition, pursuant to subscription letters, dated the Closing
Date (the "Subscription Agreements") between Terex and Cranes, Terex will
contribute substantially all of the assets and liabilities of its Koehring
Cranes and Excavators and Marklift division (the "Koehring Contribution") to
Koehring Cranes, Inc. ("Koehring"), a newly formed, wholly owned subsidiary of
Cranes. The Units will be offered and sold to the Purchasers pursuant to an
exemption from the registration requirements under the Securities Act of 1933,
as amended (the "Act"). Terex has prepared a preliminary offering circular,
dated April 10, 1995 (the "Preliminary Offering Circular") and a final offering
circular, dated April 28, 1995 (the "Offering Circular"), relating the offer
and sale of the Units.
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Act, the Series A
Notes and the Rights Certificates shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS THREE
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH TEREX OR ANY AFFILIATE OF TEREX WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) ONLY (A) TO TEREX, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR,"
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO TEREX'S AND THE [TRUSTEE'S] [RIGHTS AGENT'S]
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING
CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE [TRUSTEE]
[RIGHTS AGENT].
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained herein, and subject to the terms and
conditions hereof, Terex shall issue and sell to the Purchasers (and, in order
to induce the Purchasers to purchase such Units, the Guarantors shall grant the
Guaranty and the Grantors shall grant the Security Interests), and each of the
Purchasers agrees, severally and not jointly, to purchase from Terex, the
number of Units set forth opposite its name on Schedule A hereto. The purchase
price for each Unit shall be $965.00.
3. Terms of Offering. The Purchasers have advised Terex that the
Purchasers will make offers (the "Exempt Resales") of some or all of the Units
purchased by the Purchasers hereunder on the terms set forth in the Offering
Circular, as amended or supplemented, solely to (i) persons whom the Purchasers
reasonably believe to be "qualified institutional buyers" as defined in Rule
144A under the Act ("QIBs") and (ii) a limited number of institutional
"accredited investors," as defined in Rule 501(a)(1), (2), (3) or (7) under the
Act ("Accredited Investors") (such persons specified in clauses (i) and (ii)
being referred to herein as the "Eligible Purchasers").
Holders of the Series A Notes will have the registration rights set
forth in the registration rights agreement (the "Debt Registration Rights
Agreement"), to be executed on and dated as of the Closing Date. Pursuant to
the Debt Registration Rights Agreement, Terex and the Guarantors will agree,
among other things, to file with the Securities and Exchange Commission (i) a
registration statement under the Act (the "Debt Exchange Offer Registration
Statement") relating to the 13.25% Senior Notes due 2002, Series B of Terex,
each with the related Guaranty endorsed thereon (the "Debt Series B Notes" and,
together with the Series A Notes, the "Notes"), to be offered in exchange for
the Series A Notes (such offer to exchange being referred to as the "Debt
Registered Exchange Offer") and/or (ii) a shelf registration statement pursuant
to Rule 415 under the Act (the "Debt Shelf Registration Statement") relating to
the resale by certain holders of the Series A Notes. Holders of the Series A
Rights will have the registration rights set forth in the common stock
appreciation rights registration rights agreement (the "SAR Registration Rights
Agreement" and together with the Debt Registration Rights Agreement, the
"Registration Rights Agreements"), to be executed on and dated as of the
Closing Date. Pursuant to the SAR Registration Rights Agreement, Terex will
agree, among other things, to file with the Securities and Exchange Commission
(i) a registration statement under the Act (the "SAR Exchange Offer
Registration Statement" and together with the Debt Exchange Offer Registration
Statement, the "Exchange Offer Registration Statements") relating to the
1,000,000 Common Stock Appreciation Rights, Series B of Terex (the "Series B
Rights" and together with the Series A Rights, the "Rights", and the Series B
Rights together with the Series B Notes, the "Exchange Securities"), to be
offered in exchange for the Series A Rights (the "SAR Registered Exchange
Offer" and together with the Debt Registered Exchange Offer, the "Registered
Exchange Offers") and/or (ii) a shelf registration statement pursuant to Rule
415 under the Act (the "SAR Shelf Registration Statement" and together with the
Debt Shelf Registration Statement, the "Shelf Registration Statements")
relating to the resale of the Series A Rights.
On the Closing Date, the Grantors will enter into security
agreements, mortgages, deeds of trust and certain other collateral assignment
agreements (collectively, the "Collateral Agreements") that will provide for
the grant of the Security Interests in the Collateral to the Trustee, as
collateral agent (in such capacity, the "Collateral Agent"), for the benefit of
the holders of the Notes. The Security Interests will secure the payment and
performance when due of all of the obligations of the Company, the Guarantors
and the Grantors, under the Indenture, the Notes, and the Collateral
Agreements.
The Indenture, the Rights Agreement, the Registration Rights
Agreements, and the Collateral Agreements are hereinafter referred to
collectively as the "Operative Documents." The documents necessary to
consummate the transactions contemplated by the Offering Circular, including,
without limitation, this Agreement and the Operative Documents, the Notes, the
Rights, the Share Purchase Agreement among New Terex Holdings UK Limited,
Legris and Potain S.A. dated October 19, 1994, as amended, modified or
otherwise supplemented through the date hereof, the Assignment Agreement
between New Terex Holdings UK Limited and Cranes, and the Subscription
Agreements (collectively, the "Acquisition Agreements") and any documents or
instruments contemplated by or executed in connection with any of them, are
referred to herein as the "Documents." The Units, the Notes, and the Rights
are referred to herein as the "Securities." Terex, the Guarantors and the
Grantors are collectively referred to herein as the "Terex Entities."
4. Delivery and Payment. Delivery to the Purchasers of and payment
for the Units shall be made at a Closing (the "Closing") to be held at 9:00
A.M., New York time, on May 9, 1995 (the "Closing Date") at the offices of
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx. The Closing Date and the location of delivery of and the form
of payment for the Units may be varied by agreement among the Purchasers and
Terex.
Terex shall deliver to the Purchasers (i) one or more certificates
representing the Units, Notes and/or Rights (collectively, the "Global
Securities"), each in definitive form, registered in the name of Cede & Co., as
nominee of The Depository Trust Company ("DTC"), or such other names as the
Purchasers may request upon at least one business day's notice to Terex, in an
amount corresponding to the aggregate number or principal amount, as the case
may be, of Units, Notes and/or Rights sold pursuant to Exempt Resales to QIBs,
and (ii) one or more certificates representing the Units, Notes and/or Rights
(collectively, the "Individual Securities") in definitive form, registered in
such names and denominations as the Purchasers may so request, in an aggregate
amount corresponding to the aggregate number or principal amount, as the case
may be, of Units, Notes and/or Rights sold to Accredited Investors, in each
case against payment by the Purchasers of the purchase price thereof by an
immediately available Federal funds check made payable to Terex, or to its
order, or by Federal funds bank wire transfer to such bank account as Terex
shall designate at least two business days prior to the Closing.
The Global Securities and the Individual Securities in definitive
form shall be made available to the Purchasers for inspection not later than
9:30 A.M. on the business day immediately preceding the Closing Date.
5. Agreements of Terex Entities. Terex and the other Terex Entities
jointly and severally hereby agree with the Purchasers:
(a) To (i) advise the Purchasers promptly after obtaining
knowledge thereof and, if requested by the Purchasers, confirm such advice in
writing of (A) the issuance by any state securities commission of any stop
order suspending the qualification or exemption from qualification of any of
the Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purpose by any state securities commission or other
regulatory authority, or (B) the happening of any event that makes any
statement of a material fact made in the Offering Circular untrue or that
requires the making of any additions to or changes in the Offering Circular in
order to make the statements therein, in the light of the circumstances under
which they are made, not misleading, (ii) use their best efforts to prevent the
issuance of any stop order or order suspending the qualification or exemption
from qualification of any of the Securities under any state securities or Blue
Sky laws, and (iii) if at any time any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of any of the Securities under any such laws, use
their best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To (i) furnish the Purchasers, without charge, as many
copies of the Preliminary Offering Circular and the Offering Circular, and any
amendments or supplements thereto, as the Purchasers may reasonably request and
(ii) promptly prepare, upon the Purchasers' request, any amendment or
supplement to the Preliminary Offering Circular or the Offering Circular that
the Purchasers deem may be reasonably necessary in connection with Exempt
Resales. Terex and the other Terex Entities consent to the use of the
Preliminary Offering Circular and the Offering Circular, and any amendments and
supplements thereto, by the Purchasers in connection with Exempt Resales.
(c) Not to amend or supplement the Preliminary Offering
Circular or the Offering Circular prior to the Closing Date unless the
Purchasers shall previously have been advised thereof and shall not have
objected thereto within five business days after being furnished a copy thereof
unless Terex makes a good faith determination (after consulting with counsel)
that such amendment or supplement is required to comply with applicable law.
(d) If any event shall occur as a result of which, in the
reasonable judgment of any of them or the Purchasers, it becomes necessary or
advisable to amend or supplement the Offering Circular in order to make the
statements therein, in the light of the circumstances at the time the Offering
Circular is delivered to prospective Eligible Purchasers, not misleading, or if
it is necessary to amend or supplement the Offering Circular to comply with
applicable law, forthwith to prepare an appropriate amendment or supplement to
the Offering Circular (in form and substance reasonably satisfactory to the
Purchasers) so that (i) as so amended or supplemented the Offering Circular
will not include an untrue statement of material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances existing at the time it is delivered to prospective Exempt
Purchasers, not misleading, and (ii) the Offering Circular will comply with
applicable law.
(e) To cooperate with the Purchasers and the Purchasers'
counsel in connection with the qualification of the Securities under the
securities or Blue Sky laws of such jurisdictions as the Purchasers may request
and to continue such qualification in effect so long as required for Exempt
Resales; provided, however, that neither Terex nor any other Terex Entity shall
be required in connection therewith to qualify as a foreign corporation where
it is not now so qualified.
(f) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay (i) all
costs, expenses, fees and all taxes incident to and in connection with: (A) the
preparation, printing and distribution of the Preliminary Offering Circular and
the Offering Circular and all amendments and supplements thereto (including,
without limitation, financial statements and exhibits), and all preliminary and
final Blue Sky memoranda and all other agreements, memoranda, correspondence
and other documents prepared and delivered in connection herewith and with
Exempt Resales, (B) the preparation (including, without limitation, word
processing and duplication costs) and delivery of, and performance under, each
of the Documents, (C) the issuance and delivery of the Securities, (D) the
qualification of the Securities for offer and sale under the securities or Blue
Sky laws of the several states (including, without limitation, the fees and
disbursements of the Purchasers' counsel relating to such registration or
qualification), (E) furnishing such copies of the Preliminary Offering Circular
and the Offering Circular, and all amendments and supplements thereto, as may
reasonably be requested for use in connection with Exempt Resales, and (F) the
preparation of certificates for the Securities (including, without limitation,
printing and engraving thereof), (ii) all fees and expenses of the counsel and
accountants of Terex, (iii) all expenses and listing fees in connection with
the application for quotation of the Securities in the National Association of
Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL
("PORTAL"), (iv) all fees and expenses (including fees and expenses of counsel)
of Terex and Cranes in connection with approval of the Securities by DTC for
"book-entry" transfer, (v) all fees charged by rating agencies in connection
with the rating of the Notes and (vi) all fees and expenses (including
reasonable fees and expenses of counsel) incurred by the Purchasers in
connection with the preparation, negotiation and execution of the Documents and
the transactions contemplated hereby and thereby. Notwithstanding the
foregoing, Terex and the other Terex Entities shall not be required to pay for
more than one separate firm of attorneys for the Purchasers (together with
local counsel), unless Terex shall have approved the retention of additional
firms.
(g) To use the proceeds from the sale of the Units in the
manner described in the Offering Circular under the caption "Use of Proceeds."
(h) To the extent they may lawfully do so, not to insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension, usury or other law, wherever enacted, now or at any time
hereafter in force, that would prohibit or forgive the payment of all or any
portion of the principal of or interest on the Notes, or that may affect the
covenants or the performance of the Indenture, the Securities or any of the
Collateral Agreements. To the extent that they may lawfully do so, each of
Terex and each other Terex Entity hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power granted to the
Trustee in the Indenture or the Collateral Agent in the Collateral Agreements
but shall suffer and permit the execution of every such power as though no such
law had been enacted.
(i) To do and perform in all material respects all things
required to be done and performed under the Operative Documents by them prior
to and after the Closing Date and to satisfy in all material respects or obtain
the waiver of all conditions precedent on their part to the delivery of the
Units.
(j) Not to, and to use its best efforts to ensure that no
affiliate (as defined in Rule 501(b) of the Act) of any of them will, sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect of
any security (as defined in the Act) that would be integrated with the sale of
the Units in a manner that would require the registration under the Act of the
sale to the Purchasers or to the Eligible Purchasers of the Units.
(k) For so long as any of the Securities remain outstanding and
during any period in which any of them is not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make
available to any Eligible Purchasers or beneficial owner of the Securities in
connection with any sale thereof and any prospective purchaser of such
Securities from such Eligible Purchasers or beneficial owner, the information
required by Rule 144A(d)(4) under the Act.
(l) To comply with all of its agreements set forth in the
representation letters of Terex to DTC relating to the approval of the
Securities by DTC for "book-entry" transfer.
(m) To use their best efforts to effect the inclusion of the
Securities in PORTAL.
(n) For so long as any of the Securities remain outstanding, to
deliver to the Purchasers promptly upon their becoming available, copies of all
current, regular and periodic reports filed by any of them with the Securities
and Exchange Commission or any securities exchange.
(o) Not to (i) distribute any offering material in connection
with the offering and sale of the Units other than the Preliminary Offering
Circular and the Offering Circular and any amendments and supplements to the
Offering Circular prepared in compliance with Section 5(c) hereof or (ii)
solicit any offer to buy or sell the Units by means of any form of general
solicitation or advertising.
(p) Prior to the Closing Date, to furnish to the Purchasers,
promptly after they are filed with the Securities and Exchange Commission, a
copy of all consolidated financial statements of any of them, if any, for any
period subsequent to the period covered by the financial statements appearing
in the Offering Circular.
(q) Not to, directly or indirectly, without the prior consent
of the Purchasers, offer, sell, grant any option to purchase, or otherwise
dispose (or announce any offer, sale, grant of any option to purchase or other
disposition) of any securities of any of them for a period of 90 days after the
date of the Offering Circular, except for (i) the Exchange Securities as
contemplated by the Registration Rights Agreements, (ii) any options or other
securities issued pursuant to the 1986 Incentive Plan (as defined in the
Offering Circular) or the 1994 Incentive Plan (as defined in the Offering
Circular), and (iii) securities issued upon conversion of the Series A Common
Stock Purchase Warrants of Terex, the Series B Common Stock Purchase Warrants
of Terex, the Series A Cumulative Redeemable Convertible Preferred Stock of
Terex or the Series B Cumulative Redeemable Convertible Preferred Stock of
Terex.
(r) For so long as the Purchasers shall hold any Securities, to
promptly notify each Purchaser in writing if Terex or any of its ERISA
Affiliates becomes a party in interest or a disqualified person with respect to
any employee benefit plan other than any such plans described on Annex A of the
Offering Circular. The terms "ERISA," "Affiliates," "party in interest,"
"disqualified person" and "employee benefit plan" shall have the meanings as
set forth in Section 6(y) hereof.
6. Representations and Warranties of Terex Entities. Terex and the
other Terex Entities jointly and severally represent and warrant to each of the
Purchasers that:
(a) The Preliminary Offering Circular as of its date did not,
and the Offering Circular as of its date does not and the Offering Circular as
amended or supplemented as of the Closing Date will not, and each supplement or
amendment thereto as of its date will not, contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. No stop order preventing the use of the Preliminary
Offering Circular or the Offering Circular, or any amendment or supplement
thereto, or any order asserting that any of the transactions contemplated by
this Agreement are subject to the registration requirements of the Act, has
been issued. Each of the Preliminary Offering Circular and the Offering
Circular, as of their respective dates contained, the Offering Circular as
amended or supplemented as of the Closing Date will contain, and each amendment
or supplement thereto as of its date will contain, all the information
specified in, and meet the requirements of, Rule 144A(d)(4) under the Act.
(b) There are no securities of Terex or any of the other Terex
Entities registered under the Exchange Act or listed on a national securities
exchange registered under Section 6 of the Exchange Act or quoted in a United
States automated inter-dealer quotation system, other than the common stock,
par value $.01 per share, of Terex (the "Common Stock").
(c) Each of Terex and each Subsidiary has been duly organized,
is validly existing and, in the case of domestic organizations, is in good
standing under the laws of its respective jurisdiction of organization, and has
all requisite power and authority to carry on its business and to own, lease
and operate its properties and assets as described in the Offering Circular.
Each of Terex and each Subsidiary is duly qualified or licensed to do business
and is in good standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure to be
so qualified could not, singly or in the aggregate, have a material adverse
effect on (i) the properties, business, prospects, operations, earnings,
assets, liabilities or condition (financial or otherwise) of Terex and the
Subsidiaries, taken as a whole, (ii) the ability of Terex and the Subsidiaries
to perform their respective obligations under any of the Documents or (iii) the
perfection or priority of any Security Interest in any material portion of the
Collateral (a "Material Adverse Effect").
(d) Immediately following the Closing, (i) the only direct or
indirect subsidiaries of Terex (collectively, the "Subsidiaries") will be (A)
the corporations identified on Schedule 6(d), and (B) other Subsidiaries that
are not (and if taken in the aggregate would not be) Material Subsidiaries (as
defined in the Indenture) (ii) except as set forth in clause (i) above, Terex
will not directly or indirectly own any capital stock or other equity interest
in any other person, and (iii) except as set forth on Schedule 6(d), Terex will
directly and indirectly beneficially own 100% of the outstanding shares of
capital stock of each Subsidiary, free and clear of any security interest,
mortgage, pledge, transfer restriction, defect, claim, lien, limitation on
voting rights, encumbrance, equity or adverse interest of any nature (each, a
"Lien"), except as granted pursuant to the Collateral Agreements, the
Stockholders Agreement to be dated the Closing Date among Terex, Legris and
Potain S.A., the Stockholders Agreement (the "Potain Agreement"), entered into
on March 18, 1991, among Potain Tower Cranes, Inc., ("Potain Towers"), Century
II Acquisition Corp. (currently known as PPM Cranes, Inc.), and Group Legris
Industries S.A. ("Group"), and the Post-Merger Agreement (the "Merger
Agreement"), entered into on April 10, 1991, among Potain Towers, Century and
Group and except for Permitted Liens, and all of such shares of capital stock
will be duly authorized and validly issued, fully paid and nonassessable and
not issued in violation of, or subject to, any preemptive or similar rights.
(e) Immediately following the Closing, the total authorized
capital stock of Terex shall consist of 40,000,000 shares of capital stock,
$.01 par value, consisting of 30,000,000 shares of common stock, 10,314,217 of
which shall be issued and outstanding, and 10,000,000 shares of preferred
stock, 1,289,800 shares of which shall be issued and outstanding. All of the
outstanding shares of capital stock of Terex have been duly authorized and
validly issued, are fully paid and nonassessable and were not issued in
violation of, and are not subject to, any preemptive or similar rights. The
pro forma table under the caption "Capitalization" in the Offering Circular
sets forth and identifies all outstanding long-term indebtedness of Terex, on a
consolidated basis, after giving effect to the transactions described in the
Offering Circular. Except as set forth in such table, immediately following
the Closing, neither Terex nor any of the Subsidiaries shall have any
liabilities, absolute, accrued, contingent or otherwise other than any such
liabilities that either (x) are reflected in the Financial Statements (defined
below), (y) were incurred in the ordinary course of business and adequately
disclosed in the Offering Circular or (z) could not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Except as
set forth on Schedule 6(e), there are no outstanding (x) securities convertible
into or exchangeable for any capital stock of Terex or any of the Subsidiaries,
(y) options, warrants or other rights to purchase or subscribe to capital stock
of Terex or any of the Subsidiaries or securities convertible into or
exchangeable for capital stock of Terex or any of the Subsidiaries, or (z)
contracts, commitments, agreements, understandings, arrangements, calls or
claims of any kind relating to the issuance of any capital stock of Terex or
any of the Subsidiaries, any such convertible or exchangeable securities or any
such options, warrants or rights.
(f) Except for this Agreement and the Registration Rights
Agreements, and as set forth on Schedule 6(f), neither Terex nor any of the
Subsidiaries has entered into any agreement (i) to register its securities
under the Act or (ii) to purchase or offer to purchase any of its securities.
(g) Each of Terex and each Subsidiary has all requisite power
and authority to enter into, deliver and perform its obligations under the
Documents to which it is a party and to consummate the transactions
contemplated hereby and thereby. This Agreement and each other Document has
been duly and validly authorized by Terex and each Subsidiary that is, or that
will be, a party thereto, and this Agreement is, and on the Closing Date each
other Document will be, the legal, valid and binding obligation of each such
person that is a party hereto or thereto, enforceable against each such person
in accordance with its terms. Each Document conforms in all material respects
or, when executed and delivered, will conform in all material respects, to the
description thereof in the Offering Circular. The Securities, when issued and
delivered, will conform in all material respects to the description thereof in
the Offering Circular.
(h) The Series A Notes have been duly and validly authorized by
Terex for issuance and sale to the Purchasers pursuant to this Agreement and,
when issued in accordance with the terms hereof and of the Indenture, will be
legal, valid and binding obligations of Terex, enforceable against Terex in
accordance with their terms. The Series B Notes have been duly and validly
authorized by Terex and, when issued in accordance with the terms of the
Indenture, will be legal, valid and binding obligations of Terex, enforceable
against Terex in accordance with their terms. Each Guaranty has been duly and
validly authorized by the applicable Guarantor and, when issued in accordance
with the terms of the Indenture, will be a legal, valid and binding obligation
of such Guarantor, enforceable against such Guarantor in accordance with its
terms.
(i) The Series A Rights have been duly and validly authorized
by Terex for issuance and sale to the Purchasers pursuant to this Agreement
and, when issued in accordance with the terms hereof and of the Rights
Agreement, will be legal, valid and binding obligations of Terex, enforceable
against Terex in accordance with their terms. Neither the issuance nor
exercise of such Rights is subject to any preemptive or similar rights. The
Series B Rights have been duly and validly authorized by Terex and, when issued
in accordance with the terms of the Rights Agreement, will be legal, valid and
binding obligations of Terex, enforceable against Terex in accordance with
their terms.
(j) Neither Terex nor any of the Subsidiaries is (i) in
violation of its respective charter or by-laws (collectively, "Charter
Documents"), (ii) other than violations that could not, singly or in the
aggregate, result in a Material Adverse Effect, in violation of any Federal,
state, local or foreign statute, law (including, without limitation, common
law) or ordinance, or any judgment, decree, rule, regulation or order
(collectively, "Applicable Law") of any government, governmental or regulatory
agency or body, court or arbitrator, domestic or foreign (each, a "Governmental
Authority") or (iii) other than breaches or defaults that could not, singly or
in the aggregate, result in a Material Adverse Effect, in breach of or default
under any bond, debenture, note or other evidence of indebtedness, indenture,
mortgage, deed of trust, lease or any other agreement or instrument to which
any such person is a party or by which any of them or their respective property
is bound (collectively, "Applicable Agreements"). There exists no condition
that, with the passage of time or otherwise, would constitute a violation of
such Charter Documents or Applicable Laws or a breach of or default under any
Applicable Agreement or result in the imposition of any penalty or the
acceleration of any indebtedness, other than breaches, violations, penalties,
defaults or conditions which could not, singly or in the aggregate, result in a
Material Adverse Effect.
(k) Neither the execution, delivery or performance of the
Documents, nor the consummation of the transactions contemplated hereby or
thereby shall conflict with, violate, constitute a breach of or a default (with
the passage of time or otherwise) under, require the consent of any person
(other than consents already obtained) under, or result in the imposition of a
Lien on any assets of Terex or any of the Subsidiaries, or an acceleration of
indebtedness pursuant to (i) the Charter Documents of Terex or any of the
Subsidiaries, (ii) any Applicable Agreement, other than such breaches,
violations or defaults that could not, singly or in the aggregate, result in a
Material Adverse Effect or (iii) any Applicable Law, other than violations that
could not, singly or in the aggregate, result in a Material Adverse Effect.
After giving effect to the transactions contemplated by the Documents, no
Default or Event of Default (as defined in the Indenture) will exist.
(l) No authorization, approval, consent, license or order of,
or filing, registration or qualification with, any Governmental Authority and
no approval or consent of any other Person, is required in connection with, or
as a condition to, the execution, delivery or performance of this Agreement and
the other Documents or the consummation of the transactions contemplated hereby
and thereby other than such authorizations, approvals, consents, licenses,
orders, filings, registrations and qualifications, (i) as have been made or
obtained on or prior to the Closing Date, (ii) as are not required to be made
or obtained on or prior to the Closing Date that will be made or obtained when
required and (iii) the failure of which to make or obtain could not, singly or
in the aggregate, result in a Material Adverse Effect.
(m) Except as adequately disclosed in the Offering Circular,
there is no action, claim, suit or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition) (collectively,
"Proceedings") pending or threatened that either (i) seeks to restrain,
enjoin, prevent the consummation of, or otherwise challenge any of the
Documents or any of the transactions contemplated hereby or thereby or (ii)
could, singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Except as adequately disclosed in the Offering Circular,
neither Terex nor any of the Subsidiaries is subject to any judgment, order,
decree, rule or regulation of any Governmental Authority that could, singly or
in the aggregate, have a Material Adverse Effect.
(n) Each of Terex and the Subsidiaries has such permits,
licenses, franchises and authorizations of Governmental Authorities
(collectively, "Permits") as are necessary to own, lease and operate its
respective properties and to conduct its business in the manner described in
the Offering Circular except where the failure to so have such Permits could
not, singly or in the aggregate, have a Material Adverse Effect. All such
Permits are in full force and effect, and each of Terex and the Subsidiaries
has fulfilled and performed all of its obligations with respect to such
Permits, except where the failure to do so could not, singly or in the
aggregate, have a Material Adverse Effect. To the best knowledge of Terex and
the Subsidiaries, after due inquiry, no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination by the
issuer thereof or which results in any other material impairment of the rights
of the holder of any such material Permits. Neither Terex nor any of the
Subsidiaries has any reason to believe that any issuer is considering limiting,
suspending or revoking any such material Permit.
(o) Immediately following the Closing, each of Terex and the
Subsidiaries (i) will have good title, free and clear of all Liens (except for
Liens permitted under the Indenture), to all property and assets described in
the Offering Circular as being owned by it and (ii) will enjoy peaceful and
undisturbed possession under all such leases to which it is a party as lessee.
All Applicable Agreements are valid and binding and no default has occurred or
is continuing thereunder other than such defaults that could not, singly or in
the aggregate, have a Material Adverse Effect. Terex and the Subsidiaries
maintain insurance (including self-insurance consistent with prior practice as
adequately disclosed in the Offering Circular) covering their properties,
operations, personnel and businesses against such losses and risks as they
reasonably deem adequate in accordance with customary industry practice. Any
such insurance is outstanding and duly in force. Upon execution and delivery
thereof, the Collateral Agreements will create, in favor of the Collateral
Agent, for the benefit of the holders of the Notes, a valid grant of a security
interest in the Collateral and the proceeds thereof and, upon the filings or
the recording required by the Operative Documents, the Collateral Agent will
have a first priority perfected security interest in such Collateral, except to
the extent so limited in the Collateral Agreements. As of the Closing Date,
the book value of the Collateral in which the Collateral Agent has a perfected
security interest will be not less than $405 million.
(p) Concurrently with the Closing, (i) Terex will defease and
irrevocably call for redemption the 13% Senior Secured Notes (the "1996
Notes"), issued pursuant to an indenture as amended or supplemented (the "1996
Indenture"), dated July 31, 1992, among Terex, the guarantors named therein and
United States Trust Company of New York, as trustee thereunder, (ii) Terex will
defease and irrevocably call for redemption the 13-1/2% Senior Subordinated
Notes (the "1997 Notes" and together with the 1996 Notes, the "Existing
Notes"), issued pursuant to an indenture as amended or supplemented (the "1997
Indenture" and, together with the 1996 Indenture, the "Old Indentures"), dated
July 31, 1987, among Terex, the guarantors named therein and Bank of America
Illinois (formerly known as Continental Bank, N.A.), as trustee thereunder, and
(iii) Terex will have no further obligations with respect to the Existing Notes
except for those that the Old Indentures expressly state survive the defeasance
of the Existing Notes.
(q) Except as adequately disclosed on the Offering Circular,
all tax returns required to be filed by Terex and the Subsidiaries in any
jurisdiction (including foreign jurisdictions) have been filed and when filed
by Terex or its Subsidiaries, as the case may be, were accurate in all material
respects, and all material taxes, assessments, fees and other charges
(including, without limitation, withholding taxes, penalties and interest) due
or claimed to be due from such entities have been paid, other than those being
contested in good faith, or that are currently payable without penalty or
interest and for which an adequate reserve or accrual has been established or
extensions duly filed. Except as adequately disclosed in the Offering
Circular, (i) neither Terex nor any Terex Entity knows of any actual or
proposed additional tax assessments for any fiscal period against Terex or any
of the Subsidiaries that could, singly or in the aggregate, have a Material
Adverse Effect and (ii) the charges, accruals and reserves on the consolidated
books of each of Terex and the Subsidiaries in respect of any income and tax
liability for any years not finally determined are adequate to meet any
assessments or re-assessments for additional income tax for any years not
finally determined, except to the extent of any inadequacies that could not,
singly or in the aggregate, have a Material Adverse Effect, provided, however,
that no reserves are on the books with respect to the examination by the
Internal Revenue Service which is disclosed in the Offering Circular under the
heading "Risk Factors -- Net Operating Loss Carryovers and Other Tax Issues."
(r) Terex and the Subsidiaries own, or are licensed under, and
have the right to use all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "Intellectual
Property") currently employed by them in connection with, or necessary for the
conduct of, their businesses as set forth in the Offering Circular, except for
Intellectual Property the loss of ownership or license of which could not,
singly or in the aggregate, have a Material Adverse Effect. The consummation
of the transactions contemplated by the Documents shall not alter or impair any
such rights except with respect to Intellectual Property the loss of ownership
or license of which could not, singly or in the aggregate, have a Material
Adverse Effect. No claims have been asserted by any person and remain
outstanding, relating to the use of any Intellectual Property by Terex or any
of the Subsidiaries or challenging or questioning the validity or effectiveness
of any license or agreement related thereto, which claims could not, singly or
in the aggregate, have a Material Adverse Effect. Except for such as could not
singly or in the aggregate have a Material Adverse Effect, there is no valid
basis for any such claim and, to the best knowledge of Terex and the
Subsidiaries after due inquiry, the use of such Intellectual Property by Terex
and the Subsidiaries does not and will not infringe on the Intellectual
Property rights of any person.
(s) Each of Terex and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that
(i) material transactions are executed in accordance with management's general
or specific authorization, (ii) material transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles of the United States, consistently applied
("GAAP"), and to maintain asset accountability, (iii) access to assets is
permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken
with respect to any material differences.
(t) The audited financial statements and related notes
contained in the Preliminary Offering Circular and the Offering Circular
(collectively, the "Financial Statements") present fairly the consolidated
financial position, results of operations and cash flows of the entities named
therein as of the respective dates and for the respective periods to which they
apply and have been prepared in accordance with GAAP and with the instructions
to Form 10-K and Regulation S-X. The summary and selected consolidated
financial data included in the Preliminary Offering Circular and the Offering
Circular have been prepared on a basis consistent with that of the Financial
Statements and present fairly the consolidated financial position and results
of operations of Terex as of the respective dates and for the respective
periods indicated, except as noted in the Offering Circular. The pro forma
financial data included in the Offering Circular (i) present fairly the pro
forma financial position and results of operations of the Company and the
Subsidiaries as of the dates and for the periods indicated, after giving effect
to the transactions contemplated by the Documents, (ii) have been prepared on a
basis consistent with the Financial Statements, except for the pro forma
adjustments specified therein, and (iii) are based on the good faith estimates
and assumptions of Terex and all of such estimates and assumptions are
reasonable. All other financial and statistical data included in the Offering
Circular are fairly and accurately presented. Price Waterhouse LLP and Ernst &
Young LLP are independent public accountants with respect to Terex and the
Subsidiaries.
(u) Subsequent to the respective dates as of which information
is given in the Offering Circular, except as adequately disclosed in the
Offering Circular, (i) neither Terex nor any of the Subsidiaries has incurred
any liabilities, direct or contingent, that are material, singly or in the
aggregate, to any of them, or has entered into any material transactions not in
the ordinary course of business, (ii) there has not been any decrease in the
capital stock or any increase in long-term indebtedness or any material
increase in short-term indebtedness of any of them, or any payment of or
declaration to pay any dividends or any other distribution with respect to any
of them, and (iii) there has not been any material adverse change in the
properties, business, prospects, operations, earnings, assets, liabilities or
condition (financial or otherwise) of Terex and the Subsidiaries taken as a
whole (a "Material Adverse Change"). There is no fact known to Terex or any of
the Subsidiaries that is reasonably likely to occur and if occurred, could,
singly or in the aggregate, have a Material Adverse Effect that has not been
adequately disclosed in the Offering Circular.
(v) Immediately following the Closing, after giving effect to
the transactions contemplated by the Documents, (i) the present fair salable
value of the assets of each of Terex and each of the Subsidiaries will exceed
the amount that will be required to be paid on or in respect of the then
existing debts and other liabilities (including contingent liabilities) as they
become absolute and matured and (ii) the assets of Terex and the Subsidiaries
will not constitute unreasonably small capital to carry out their respective
businesses as conducted or as proposed to be conducted including the capital
needs of each of them, taking into account their respective projected capital
requirements and capital availability. Neither Terex nor any of the
Subsidiaries intends to, or believes that it will, incur debts beyond its
ability to pay such debts as they mature.
(w) Except as contemplated by this Agreement, neither Terex nor
any of the Subsidiaries has (i) taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of any of them to facilitate the sale or resale of any of
the Securities or (ii) except as disclosed in the Offering Circular, (A) sold,
bid for, purchased, or paid anyone any compensation for soliciting purchases
of, any of the Securities or (B) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of any of
them.
(x) No registration under the Act, and no qualification of the
Indenture or the Rights Agreement under the Trust Indenture Act of 1939, as
amended (the "TIA"), is required for the sale of the Units to the Purchasers as
contemplated hereby or for the Exempt Resales, assuming (i) that the Eligible
Purchasers who buy the Units in the Exempt Resales are QIBs or Accredited
Investors, (ii) the accuracy of the Purchasers' representations contained
herein regarding the absence of general solicitation in connection with the
sale of the Units to the Purchasers and the Exempt Resales, and (iii) the
accuracy of the representations made by each Accredited Investor who purchases
the Units pursuant to an Exempt Resale as set forth in the letters of
representation in the form of Annex A to the Offering Circular. No form of
general solicitation or general advertising was used by Terex or any of the
Subsidiaries or any of their representatives in connection with the offer and
sale of any of the Units or in connection with Exempt Resales. No securities
of the same class as any of the Securities have been offered, issued or sold by
Terex or any of the Subsidiaries within the six-month period immediately prior
to the date hereof.
(y) Based on the representation of the Purchasers set
forth in Section 7(e) hereof, the execution and delivery of this Agreement and
the other Documents, and the sale of the Securities to be purchased by the
Purchasers will not involve any non-exempt prohibited transaction within the
meaning of Section 406 of the Employee Retirement Income Act of 1974, as
amended, or the rules and regulations promulgated thereunder ("ERISA") or
Section 4975 of the Internal Revenue Code of 1986, as amended, or the rules,
regulations and published interpretations promulgated thereunder (the "Code").
Neither Terex nor any of its ERISA Affiliates is a "party in interest" or a
"disqualified person" except with respect to those employee benefit plans set
forth on Annex A of the Offering Circular. No condition exists or event or
transaction has occurred in connection with any employee benefit plan that
could result in Terex or any such ERISA Affiliate incurring any liability, fine
or penalty that could, singly or in the aggregate, have a Material Adverse
Effect. With respect to any employee pension benefit plan that is subject to
Title IV of ERISA, except as adequately disclosed in the Offering Circular, (i)
the fair market value of the assets of such employee pension benefit plan
equals or exceeds the present value of the liabilities of such pension plan (as
determined in accordance with the actuarial methods and assumptions set forth
in the latest actuarial report for such employee pension benefit plan), except
where the failure to so equal or exceed would not, singly or in the aggregate,
have a Material Adverse Effect and (ii) there exists no accumulated funding
deficiency which would have, singly or in the aggregate, a Material Adverse
Effect. The terms "employee benefit plan," "employee pension benefit plan,"
and "party in interest" shall have the meanings assigned to such terms in
Section 3 of ERISA, the term "Affiliate" shall have the meaning assigned to
such term in Section 407(d)(7) of ERISA, and the term "disqualified person"
shall have the meaning assigned to such term in section 4975 of the Code.
(z) None of the transactions contemplated by the Documents will
violate or result in a violation of Section 7 of the Exchange Act (including,
without limitation, Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R.
Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the
Federal Reserve System, in each case as in effect now or as the same may
hereafter be in effect on the Closing Date). Neither Terex nor any of the
Subsidiaries is subject to regulation, or shall become subject to regulation
upon the consummation of the transactions contemplated by the Documents, under
the Investment Company Act of 1940, as amended, and the rules and regulations
and interpretations promulgated thereunder, the Public Utility Holding Company
Act of 1935, as amended, the Federal Power Act, the Interstate Commerce Act,
the Commodity Exchange Act or any Federal or state statute or regulation
limiting its ability to incur or assume indebtedness for borrowed money. Terex
has complied with all provisions of Florida H.B. 1771, codified as Section
517.075 of the Florida Statutes, and all regulations promulgated thereunder
relating to issuers doing business with the Government of Cuba or with any
person or any affiliate located in Cuba.
(aa) Neither Terex nor any of the Subsidiaries has dealt with
any broker, finder, commission agent or other person (other than the
Purchasers) in connection with the transactions contemplated by the Documents,
and none of them is under any obligation to pay any broker's fee or commission
in connection with such transactions (other than commissions and fees to the
Purchasers as set forth in the Offering Circular).
(ab) Neither Terex nor any of the Subsidiaries is engaged in
any unfair labor practice that could, singly or in the aggregate, have a
Material Adverse Effect. Except as adequately disclosed in the Offering
Circular, there is (i) no unfair labor practice complaint or other proceeding
pending or, to the best of their knowledge after due inquiry, threatened
against Terex or any of the Subsidiaries before the National Labor Relations
Board or any industrial tribunal, and no grievance or arbitration proceeding
arising out of or under collective bargaining agreements is so pending or, to
the best of their knowledge after due inquiry, threatened, (ii) no strike,
labor dispute, slowdown or stoppage pending or, to the best of their knowledge
after due inquiry, threatened against Terex or any of the Subsidiaries, and
(iii) no union representation question existing with respect to the employees
of Terex or any of the Subsidiaries, and, to the best of their knowledge after
due inquiry, no union organizing activities are taking place, that could,
singly or in the aggregate, have a Material Adverse Effect.
(ac) Except as adequately disclosed in the Offering Circular or
as otherwise could not, singly or in the aggregate, have a Material Adverse
Effect:
(1) each of Terex and the Subsidiaries (i) has obtained
all Permits that are required with respect to the operation of its business,
property and assets under the Environmental Laws (as defined below) and are in
compliance with all terms and conditions of such required Permits, and (ii) is
in compliance with all Environmental Laws (including, without limitation,
compliance with standards, schedules and timetables therein);
(2) no real property or facility owned, used, operated,
leased, managed or controlled by Terex or any of the Subsidiaries, or any
predecessor in interest, is listed or proposed for listing on the National
Priorities List or the Comprehensive Environmental Response, Compensation, and
Liability Information System, both promulgated under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), or on any other state or local list established pursuant to any
Environmental Law, and neither Terex nor any of the Subsidiaries has received
any notification of potential or actual liability or request for information
under CERCLA or any comparable state or local law;
(3) no underground storage tank or other underground
storage receptacle, or related piping, is located on a facility or property
currently owned, operated, leased, managed or controlled by Terex or any of the
Subsidiaries;
(4) there have been no releases (i.e., any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing or dumping, on-site or,
to the best knowledge of Terex and the Subsidiaries after due inquiry,
off-site) of Hazardous Materials (as defined below) by Terex, any of the
Subsidiaries or, to the best knowledge of Terex and the Subsidiaries after due
inquiry, any predecessor in interest or any person or entity whose liability
for any release of Hazardous Materials, Terex or any of the Subsidiaries has
retained or assumed either contractually or by operation of law at, on, under,
from or into any facility or real property owned, operated, leased, managed or
controlled by any such person;
(5) neither Terex, the Subsidiaries nor any person or
entity whose liability Terex or any of the Subsidiaries has retained or assumed
either contractually or, to the best knowledge of Terex and the Subsidiaries
after due inquiry, by operation of law has any liability, absolute or
contingent, under any Environmental Law, and there is no civil, criminal or
administrative action, suit, demand, hearing, notice of violation or
deficiency, investigation, proceeding, notice or demand letter pending or, to
the best of their knowledge after due inquiry, threatened against any of them
under any Environmental Law;
(6) there are no events, activities, practices, incidents
or actions or, to the best knowledge of Terex and the Subsidiaries after due
inquiry, conditions, circumstances or plans that may interfere with or prevent
compliance by Terex or any of the Subsidiaries with any Environmental Law, or
that may give rise to any liability under any Environmental Laws; and
(7) in the ordinary course of their businesses, Terex and
each of the Subsidiaries conduct a periodic review of the effect of
Environmental Laws on the business, operations and properties of the Company
and each of the Subsidiaries in the course of which they identify and evaluate
associated costs and liabilities (including, without limitation, any capital or
operating expenditures required for cleanup, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company and each of the
Subsidiaries have reasonably concluded that such associated costs and
liabilities could not reasonably be expected, singly or in the aggregate, to
have a Material Adverse Effect on the Company and each of the Subsidiaries,
taken as a whole.
"Environmental Laws" means all Applicable Laws, now or
hereafter in effect, relating to pollution or protection of human health or the
environment, including, without limitation, laws relating to (1) emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous constituents, substances or
wastes, including, without limitation, asbestos or asbestos-containing
materials, polychlorinated biphenyls, petroleum or any constituents relating to
or arising out of any oil production activities, including crude oil or any
fraction thereof, or any petroleum product or other wastes, chemicals or
substances regulated by any Environmental Law (collectively referred to as
"Hazardous Materials"), into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata),
(2) the manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport or handling of Hazardous Materials and (3)
underground storage tanks, and related piping, and emissions, discharges,
releases or threatened releases therefrom.
(ad) No statement, representation, warranty or covenant
made by Terex, any of the Subsidiaries, or any other person in any of the
Documents or made in any certificate or document required by this Agreement to
be delivered to the Purchasers was or will be, when made, inaccurate, untrue or
incorrect in any material respect.
(ae) (i) the Acquisition Agreements and the transactions
contemplated thereunder have been duly authorized, executed, delivered and,
immediately following the Closing, will be performed in accordance with their
terms by the respective parties thereto in all material respects, including the
fulfillment (not merely the waiver, except as may be disclosed to the
Purchasers and consented to in writing by the Purchasers) of all conditions
precedent set forth therein, and after giving effect to the terms of the
Acquisition Agreements and the assignments to be executed and delivered by
Xxxxxx and Potain, S.A. thereunder, Cranes will acquire and have good title to
the stock so purchased thereunder, free and clear of all Liens (except for
Liens permitted under the Indenture) and (ii) all actions required by the
Acquisition Agreements, applicable law or regulation (including, but not
limited to, compliance with the Xxxx-Xxxxx-Xxxxxx Anti-trust Improvements Act
of 1976, as amended) will have been taken and the transactions required
thereunder have been duly and validly consummated.
7. Representations and Warranties of the Purchasers.
Each Purchaser severally represents and warrants to Terex that:
(a) It is a QIB.
(b) It (i) is not acquiring the Units with a view to any
distribution thereof that would violate the Act or the securities laws of any
state of the United States or any other applicable jurisdiction and (ii) will
be reoffering and reselling the Units only to (A) persons in the United States
whom it reasonably believes to be QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A and (B) a limited
number of Accredited Investors that execute and deliver a letter containing
certain representations and agreements in the form attached as Annex A to the
Offering Circular.
(c) No form of general solicitation or general advertising in
violation of the Securities Act has been or will be used by such Purchaser or
any of its representatives in connection with the offer and sale of any of the
Units.
(d) In connection with the Exempt Resales, it will solicit
offers to buy the Units only from, and will offer to sell the Units only to,
Eligible Purchasers. It will offer to sell the Units only to, and will solicit
offers to buy the Units only from, persons who, in purchasing such Units, will
be deemed to have represented and agreed (i) if such Eligible Purchasers are
QIBs, that they are purchasing the Units for their own accounts or accounts
with respect to which they exercise sole investment discretion and that they or
such accounts are QIBs, (ii) that such Units will not have been registered
under the Act and may be resold, pledged or otherwise transferred only (A)
inside the United States to a person who the seller reasonably believes is a
QIB in a transaction meeting the requirements of Rule 144A, in a transaction
meeting the requirements of Rule 144, or in accordance with another exemption
from the registration requirements of the Act, (B) to Terex, (C) pursuant to an
effective registration statement, and (D) outside the United States to a
foreign person in a transaction meeting the requirements of Rule 904 under the
Act and, in each case, in accordance with any applicable securities laws of any
state of the United States or any other applicable jurisdiction, and (iii) that
the holder will, and each subsequent holder is required to, notify any
purchaser from it of the security evidenced thereby of the resale restrictions
set forth in (ii) above.
(e) It is not a pension or welfare plan (as defined in Section
3 of ERISA) and it is not acquiring the Securities on behalf of a person whose
funds to be used for the purchase of the Securities constitute assets allocated
to any qualified trust that contains the assets of any employee benefit plan
with respect to which Terex is a party in interest or disqualified person or
the use of such assets would not constitute a non-exempt prohibited transaction
under ERISA or the Code. The representation made in the preceding sentence is
made solely in reliance upon such Purchasers' review of Annex A of the Offering
Circular, which sets forth the employee benefit plans with respect to which
Terex is a party in interest or a disqualified person.
(f) It has all requisite power and authority to enter into,
deliver and perform its obligations under this Agreement and the Registration
Rights Agreements and each of this Agreement and the Registration Rights
Agreements have been duly and validly authorized by it.
8. Indemnification.
(a) Terex and each other Terex Entity, jointly and severally,
shall, without limitation as to time, indemnify and hold harmless each
Purchaser and each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act) either Purchaser (any of
such persons being hereinafter referred to as a "controlling person") and the
respective officers, directors, partners, employees, representatives and agents
of each Purchaser and controlling person (collectively, the "Indemnified
Parties") to the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities, costs (including, without limitation, costs of
preparation and reasonable attorneys' fees) and expenses (including, without
limitation, costs and expenses incurred in connection with investigating,
preparing, pursuing or defending against any of the foregoing) (collectively,
"Losses"), as incurred, directly or indirectly caused by, related to, based
upon, arising out of or in connection with (i) any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Offering
Circular or the Offering Circular (or any amendment or supplement thereto), or
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading except for the
description of the Purchasers on the cover of the Offering Circular and for
statements contained in or omissions from the "Plan of Distribution" section of
the Offering Circular furnished in writing by, and relating to, the Purchasers
or (ii) any act, omission, transaction or event contemplated by the Documents;
provided, however, that neither Terex nor any other Terex Entity shall be
liable to any Indemnified Party for any Losses that arise solely from the gross
negligence or willful misconduct of such Indemnified Party. Terex shall notify
the Purchasers promptly of the institution, threat or assertion of any
Proceeding of which Terex or any Subsidiary is aware in connection with the
matters addressed by this Agreement which involves Terex, any of the
Subsidiaries or any of the Indemnified Parties.
(b) If any Proceeding shall be brought or asserted against any
Indemnified Party entitled to indemnification hereunder, such Indemnified Party
shall give prompt written notice to Terex; provided, however, that the failure
to so notify Terex shall not relieve Terex or any other Terex Entity from any
obligation or liability except to the extent (but only to the extent) that it
shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal) that the Terex Entities have been
prejudiced materially by such failure.
Neither Terex nor any of its Subsidiaries shall consent to entry
of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to each
Indemnified Party of a release, in form and substance satisfactory to the
Indemnified Party, from all liability in respect of such Proceeding for which
such Indemnified Party would be entitled to indemnification hereunder (whether
or not any Indemnified Party is a party thereto).
(c) If the indemnification provided for in this Section 8 is
unavailable to an Indemnified Party or is insufficient to hold such Indemnified
Party harmless for any Losses in respect of which this Section 8 would
otherwise apply by its terms (other than by reason of exceptions provided in
this Section 8), then Terex and the other Terex Entities, in lieu of
indemnifying such Indemnified Party, shall have a joint and several obligation
to contribute to the amount paid or payable by such Indemnified Party as a
result of such Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Terex Entities, on the one hand, and the
Purchasers, on the other hand, from the offering of the Units or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Terex
Entities, on the one hand, and the Purchasers, on the other hand, in connection
with the actions, statements or omissions that resulted in such Losses, as well
as any other relevant equitable considerations. The relative benefits received
by the Terex Entities, on the one hand, and the Purchasers, on the other hand,
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by Terex, and the total discounts
received by the Purchasers, bear to the total price of the Units in Exempt
Resales in each case as set forth in the table on the cover page of the
Offering Circular. The relative fault of the Terex Entities, on the one hand,
and the Purchasers, on the other hand, shall be determined by reference to,
among other things, whether any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by any Terex Entity, on the one hand, or the
Purchasers, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by an Indemnified Party as a result of
any Losses shall be deemed to include any legal or other fees or expenses
incurred by such party in connection with any Proceeding, to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section 8 was available to such party.
Each party hereto agrees that it would not be just and equitable
if contribution pursuant to this Section 8(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 8(c), the Purchasers
shall not be required to contribute, in the aggregate, any amount in excess of
the amount by which the total discounts received by it with respect to the
Units exceeds the amount of any damages that the Purchasers has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(d) The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability that Terex or the other Terex
Entities may otherwise have to the Indemnified Parties.
9. Conditions. (i) The obligation of the Purchasers to
purchase the Units under this Agreement is subject to the satisfaction of each
of the following conditions:
(a) All the representations and warranties of Terex and the
other Terex Entities contained in this Agreement shall be true and correct in
all material respects (except that any representation or warranty that already
contains a materiality exception therein, in each such case shall be true and
correct as written) at and as of the Closing Date after giving effect to the
transactions contemplated by the Documents, with the same force and effect as
if made on and as of such date. On or prior to the Closing Date, each of Terex
and the other Terex Entities shall have performed or complied in all material
respects with all of the agreements and satisfied in all material respects all
conditions on their part to be performed, complied with or satisfied pursuant
to the Documents.
(b) The Offering Circular shall have been printed and copies
distributed to the Purchasers not later than 12:00 noon, New York City time, on
April 30, 1995 or at such later date and time as the Purchasers may approve.
(c) No injunction, restraining order or order of any nature by
a Governmental Authority shall have been issued as of the Closing Date that
would prevent or interfere with the issuance and sale of the Units; and no stop
order suspending the qualification or exemption from qualification of any of
the Units in any jurisdiction designated by the Purchasers pursuant to Section
5(e) hereof shall have been issued and no Proceeding for that purpose shall
have been commenced or be pending or contemplated.
(d) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
Governmental Authority that would, as of the Closing Date, prevent the issuance
or sale of the Units; and on the Closing Date, no Proceeding shall be pending
against or affecting or, to the knowledge of any of the Terex Entities after
due inquiry, threatened against Terex or any of the Subsidiaries before any
Governmental Authority, except for such Proceedings that if adversely
determined could not, singly or in the aggregate, either (i) adversely affect
the issuance or marketability of the Units or (ii) are reasonably likely to be
adversely determined to Terex and if so adversely determined could have a
Material Adverse Effect.
(e) Since the date as of which information is given in the
Offering Circular,
(1) there shall not have been any Material Adverse Change;
and
(2) other than as adequately disclosed in the Offering
Circular, there shall not have been any material change in the capital stock or
long-term debt, or material increase in short-term debt, of Terex or any of the
Subsidiaries and (B) neither Terex nor any of the Subsidiaries shall have
incurred any liability, direct or contingent, that, singly or in the aggregate,
could have a Material Adverse Effect.
(f) On the Closing Date, the Purchasers shall have received (i)
certificates dated the Closing Date, signed by (A) the President and (B) a
principal financial or accounting officer of Terex, on behalf of all of the
Terex Entities, (x) confirming the matters set forth in paragraphs (a), (b),
(c), (d) and (e) of this Section 9 and (y) certifying as to such other matters
as the Purchasers may reasonably request, (ii) a certificate, dated the Closing
Date, signed by the Secretary or an Assistant Secretary of each domestic Terex
Entity, certifying such matters as the Purchasers may reasonably request and
(iii) a certificate of solvency, dated the Closing Date, signed by the chief
financial officer of Terex on behalf of each Terex Entity substantially in the
form previously approved by the Purchasers.
(g) The Purchasers shall have received on the Closing Date an
opinion (reasonably satisfactory in form and substance to the Purchasers and
counsel to the Purchasers), dated the Closing Date, of Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxx & Xxxxxx, special counsel to Terex, substantially in the form
of Exhibit A hereto.
(h) The Purchasers shall have received on the Closing Date an
opinion (in form and substance reasonably satisfactory to the Purchasers and
counsel to the Purchasers), dated the Closing Date, of Xxxxxx Xxxxxxxxx,
general counsel to Terex, substantially in the form of Exhibit B hereto.
(i) The Purchasers shall have received on the Closing Date the
opinions (in form and substance reasonably satisfactory to the Purchasers and
counsel to the Purchasers), dated the Closing Date, of (i) Xxxxxx Xxxxxx &
Xxxxx, special Scottish counsel to Terex, (ii) Simeon & Associes, special
French counsel to Terex, (iii) Xxxxxxxx, Xxxxxx & Partner, special German
counsel to Terex, (iv) Xxxxxxx X. Xxxxxx, special Italian counsel to Terex, and
(v) Xxxx & Xxxx, P.C., special Connecticut counsel to Terex, Xxxxxx Xxxxxxx
Arsht & Xxxxxxx, special Delaware counsel to Terex, Xxxxxxxxx, Xxxxxxxxxxxx,
Xxxxxx, Xxxxxxxxxx & Raife, special Iowa counsel to Terex, Xxxxxxxxxx Xxxx
XxXxxxxx, special Kentucky counsel to Terex, Butzel Long, special Michigan
counsel to Terex, Xxxxxxx, Xxxxxx & Xxxxxxx, special Mississippi counsel to
Terex, Xxxx, Xxxxxx, Xxxxxxxx, Xxxxx, Golden & Xxxxxx, special Oklahoma counsel
to Terex, Xxxxxx, Padget, Xxxxxx & Xxxxx, special South Carolina counsel to
Terex, and Xxxxx and Xxxx, special Wyoming counsel to Terex, in each case
substantially in the form of Exhibit C hereto.
(j) The Purchasers shall have received on the Closing Date
an opinion, dated the Closing Date, of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx, in
form and substance reasonably satisfactory to the Purchasers covering such
matters as are customarily covered in such opinions.
(k) The Purchasers shall have received from Price Waterhouse
and Ernst & Young (i) a customary comfort letter, dated the date of the
Offering Circular, in form and substance reasonably satisfactory to the
Purchasers, with respect to the financial statements and certain financial
information contained in the Offering Circular, and (ii) a customary comfort
letter, dated the Closing Date, in form and substance reasonably satisfactory
to the Purchasers, to the effect that they reaffirm the statements made in the
letter furnished pursuant to clause (i), except that the specified date
referred to shall be a date not more than five days prior to the Closing Date.
(l) The Operative Documents shall have been executed and
delivered by all parties thereto and the Purchasers shall have received a fully
executed original of each Operative Document, other than the Mortgages, in
which case the Purchasers shall be supplied a copy of each such Mortgage.
(m) On or prior to the Closing Date, each Terex Entity, Legris
and Potain, S.A. shall have entered into all of the agreements and consummated
all of the transactions required to be consummated on or prior to the Closing
Date described in, or contemplated by, the Offering Circular under the captions
"Summary--The Refinancing," "Use of Proceeds" and "The Acquisition" in each
case in form and substance reasonably satisfactory to the Purchasers,
including, but not limited to, (i) the consummation of the Acquisition of PPM
by Cranes and the Koehring Contribution and (ii) the issuance of one or more
intercompany notes by PPM Europe and its subsidiaries in an aggregate principal
amount reasonably satisfactory to the Purchasers in favor of Terex and the
application of the proceeds therefrom to repay existing indebtedness of PPM
Europe and its subsidiaries. The Purchasers shall have received all opinions,
certificates, letters and other documents delivered under or in connection with
the Acquisition Transaction, including the Acquisition Agreements, and letters
to the effect that the Purchasers may rely on such opinion, certificates,
letters and other documents as if addressed to it.
(n) The Purchasers shall have received (i) such UCC-3
termination statements, mortgages releases and other collateral releases and
terminations required by the Purchasers, each in form and substance reasonably
satisfactory to the Purchasers, duly executed and delivered by (A) United
States Trust Company of New York, relating to each item of collateral securing
the 1996 Notes and each public filing related thereto, and (B) Bank of America
Illinois (formerly known as Continental Bank, N.A.), relating to each item of
collateral securing the 1997 Notes and each public filing related thereto, and
each such release and termination shall be in full force and effect, (ii)
copies of all documents delivered pursuant to Article 3 and Article 8 of the
1996 Note Indenture, and all other documents evidencing the call of the 1996
Notes and the termination of the 1996 Note Indenture and the discharge of the
obligations relating to the 1996 Notes; and (iii) copies of all documents
delivered pursuant to Article 3 and Article 8 of the 1997 Note Indenture, and
all other documents evidencing the call of the 1997 Notes and the termination
of the 1997 Note Indenture and the discharge of the obligations relating to the
1997 Notes.
(o) The Purchasers shall have received such payoff letters,
UCC-3 termination statements and other collateral releases and terminations
deemed necessary by the Purchasers, each in form and substance satisfactory to
the Purchasers, (i) duly executed and delivered by Foothill Capital Corporation
("Foothill"), evidencing (A) the termination of each credit facility entered
into between Foothill and Terex and Foothill and any of Terex's subsidiaries
(the "Foothill Agreements"), and (B) the termination and release of each item
of collateral securing any of the Foothill Agreements and each public filing
related thereto, (ii) duly executed and delivered by each secured party with
respect thereto, the termination and release of each item of collateral
securing any obligations of PPM and each public filing related thereto, and
(iii) duly executed and delivered by each secured party thereto, the
termination and release of all other Liens (other than Liens permitted under
the Indenture) and, in each case, each such payoff letter, release and
termination shall be in full force and effect.
(p) The Collateral Agent shall have received (i) a certificate
of insurance demonstrating insurance coverage of types, in amounts, with
insurers and with other terms required by the terms of the Operative Documents,
(ii) executed copies of each UCC-1 financing statement signed by Terex and each
Subsidiary that is organized in, or has assets located in, any jurisdiction in
the United States, naming the Collateral Agent as secured party and filed in
such jurisdictions as the Purchasers may reasonably require, (iii) bailee
letters, in form and substance reasonably satisfactory to the Purchasers,
executed by Terex or the appropriate Grantors for delivery to each of the
Persons identified in the Collateral Agreements as holding Collateral, and (iv)
the original stock certificates and promissory notes pledged to the Collateral
Agent pursuant to the Operative Documents, together with undated stock powers
or endorsements duly executed in blank in connection therewith.
(q) Each of Terex, the Collateral Agent, Foothill and Congress
Financial shall have duly executed and delivered an intercreditor agreement in
form and substance satisfactory to the Purchasers.
(r) All documents and agreements shall have been filed, and
other actions shall have been taken, as may be required to perfect the Security
Interests of the Collateral Agent in the Collateral of Grantors organized in
jurisdictions outside of the United States, and to accord the Collateral Agent
the priorities over other creditors of such Grantors contemplated by the
Offering Circular and the Operative Documents.
(s) The Collateral Agent shall have received irrevocable
commitments for title insurance from First American Title Insurance Company, in
a form and substance reasonably satisfactory to the Purchasers, subject only to
Liens permitted under the Indenture, for title insurance for each of the
properties listed on Schedule 9(s) hereto.
(t) Terex, Xxxxx Material Handling Company, Koehring Cranes,
Inc., PPM Cranes, Inc. (collectively, the "Revolving Borrowers"), Congress
Financial and Foothill, individually and as agent, shall have entered into a
Loan and Security Agreement, satisfactory in form and substance to the
Purchasers, all conditions to the effectiveness thereof shall have been
satisfied, and the Revolving Borrowers shall have received proceeds from loans
thereunder in an amount reasonably satisfactory to the Purchasers, which
proceeds shall have been applied as contemplated in the Offering Circular.
(u) Counsel to the Purchasers shall have been furnished with
such documents as they may reasonably require for the purpose of enabling them
to review or pass upon the matters referred to in this Section 9 and in order
to evidence the accuracy, completeness or satisfaction in all material respects
of any of the representations, warranties or conditions herein contained. All
opinions, certificates, letters and other documents required by this Section 9
to be delivered by Terex will be in compliance with the provisions hereof only
if they are reasonably satisfactory in form and substance to the Purchasers.
(v) On the date hereof, Terex, Cranes and each domestic
subsidiary of Terex that is a Material Subsidiary (as defined in the Indenture)
shall have executed this Agreement and on or prior to the Closing Date, Terex
shall have caused each other Terex Entity to duly authorize, execute and
deliver this Agreement and this Agreement shall be enforceable against each
such Terex Entity as if executed on the date hereof.
(ii) The obligation of Terex to sell the Units under this
Agreement is subject to the satisfaction of each of the following conditions:
(a) The Purchasers shall have delivered payment to Terex in
respect of the several purchases of Units pursuant to Section 4 of this
Agreement.
(b) All of the representations and warranties of the Purchasers
shall be true and correct in all material respects at and as of the Closing
Date, after giving effect to the transactions contemplated by this Agreement.
(c) No injunction, restraining order, action, statute, rule or
regulation of any Governmental Authority shall have been issued as of the
Closing Date that would prevent or interfere with the issuance
and sale of the Units hereunder or subject any Terex Entity to any material
penalty if the Units were to be issued and sold hereunder.
10. Termination.
The Purchasers may terminate this Agreement at any time prior to the
Closing Date by written notice to Terex if any of the following has occurred:
(a) since the date as of which information is given in the
Offering Circular, any material adverse effect or development involving a
prospective adverse effect on the properties, business, prospects, operations,
earnings, assets, liabilities or condition (financial or otherwise), of Terex
or any Subsidiary, whether or not arising in the ordinary course of business,
that could, in the Purchasers' judgment, (i) make it impracticable or
inadvisable to proceed with the offering or delivery of the Units on the terms
and in the manner contemplated in the Offering Circular or (ii) materially
impair the investment quality of any of the Securities;
(b) any outbreak or escalation of hostilities or other national
or international calamity or crisis or material adverse change in economic
conditions or the financial markets of the United States or elsewhere, if the
effect of such outbreak, escalation, calamity, crisis or material adverse
change in the economic conditions or in the financial markets of the United
States or elsewhere could, in the Purchasers' judgment, make it impracticable
or inadvisable to market or proceed with the offering or delivery of the Units
on the terms and in the manner contemplated in the Offering Circular or to
enforce contracts for the sale of any of the Units;
(c) the suspension or limitation of trading generally in
securities on the New York Stock Exchange, the American Stock Exchange or the
NASDAQ National Market System or any setting of limitations on prices for
securities on any such exchange or National Market System;
(d) the enactment, publication, decree or other promulgation
after the date hereof of any Applicable Law that in the Purchasers' opinion
materially and adversely affects, or could materially and adversely
affect, the properties, business, prospects, operations, earnings, assets,
liabilities or condition (financial or otherwise) of Terex or any Subsidiary;
(e) any securities of Terex or any Subsidiary shall have been
downgraded or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization;
(f) the declaration of a banking moratorium by either Federal,
California or New York authorities; or
(g) the taking of any Governmental Authority after the date
hereof in respect of its monetary or fiscal affairs that in the Purchasers'
opinion could have a material adverse effect on the financial markets in the
United States.
The indemnities and contribution and expense reimbursement provisions
and the other agreements, representations and warranties of Terex and the other
Terex Entities set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
the Purchasers, (ii) acceptance of the Units, and payment for them hereunder,
and (iii) any termination of this Agreement.
Without limiting the foregoing, notwithstanding any termination of
this Agreement, Terex and the other Terex Entities shall be liable (i) for all
expenses that they have agreed to pay pursuant to Section 5(f) hereof, and (ii)
pursuant to Section 8 hereof.
11. Default by Purchaser. If any Purchaser or Purchasers default in
their obligations to purchase the Units on the Closing Date, and arrangements
satisfactory to you and Terex for the purchase of such Units by other persons
are not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Purchaser, Terex or any
other Terex Entity, except as provided in Section 10. Nothing herein will
relieve a defaulting Purchaser from liability for its default.
12. Miscellaneous.
(a) Notices given pursuant to any provision of this Agreement
shall be addressed as follows: (i) if to any Terex Entity, c/o Terex
Corporation, 000 Xxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Xxxxxx X. Xxxxxxxxx, Esq., Fax # (000) 000-0000, and (ii) if to the Purchasers,
Xxxxxxxxx & Company, Inc., 00000 Xxxxx Xxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxx, Esq., with a copy to
Skadden, Arps, Slate, Xxxxxxx & Xxxx, 000 X. Xxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx (provided that any
notice to the Purchasers pursuant to Section 8 hereof will be mailed,
delivered, telegraphed or telecopied and confirmed to the Purchasers and its
counsel), or in any case to such other address as the person to be notified may
have requested in writing.
(b) Except as otherwise provided, this Agreement has been and
is made solely for the benefit of and shall be binding upon Terex, the other
Terex Entities, the Purchasers, any controlling persons referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Units from the Purchasers merely because of such
purchase.
(c) THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND THE
RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH TEREX ENTITY
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH TEREX ENTITY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH
TEREX ENTITY IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO
SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO EACH TEREX ENTITY AT THE
ADDRESS SET FORTH HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PURCHASERS TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS
OR OTHERWISE PROCEED AGAINST ANY TEREX ENTITY IN ANY OTHER JURISDICTION.
(d) This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
(e) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the parties hereto shall
use their best efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be hereafter declared invalid, illegal, void or unenforceable.
(g) This Agreement may be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may be given,
provided that the same are in writing and signed by each of the signatories
hereto.
Please confirm that the foregoing correctly sets forth the agreement
between Terex, the Guarantors and the Purchasers.
Very truly yours,
TEREX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
CMH ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
XXXXX MATERIAL HANDLING GMBH
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
XXXXX MATERIAL HANDLING FRANCE S.A.
By: /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title:
XXXXX MATERIAL HANDLING COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
CLARKLIFT OF WESTERN MICHIGAN, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
CMH ACQUISITION INTERNATIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
KOEHRING CRANES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
TEREX CRANES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
TEREX EQUIPMENT LIMITED
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
UNIT RIG AUSTRALIA (PTY) LIMITED
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
LEGRIS INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
PPM CRANES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
P.P.M., S.A.
By: /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title:
BENDINI S.P.A.
By: /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title:
PPM XXXXX GMBH
By: /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title:
BRIMONT AGRAIRE S.A.
By: /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title:
BAULIFT BAUMASCHINEN UND XXXXX HANDELS GMBH
By: /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title:
Accepted and Agreed to:
XXXXXXXXX & COMPANY, INC.
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title:
XXXXXX, READ & CO., INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Managing Director
Exhibit C
Xxxxxxxxx & Company, Inc.
Xxxxxx, Read & Co. Inc.
United States Trust Company
of New York, as Trustee and
Collateral Agent
April ___, 1995
[Form of Local Domestic Counsel Opinion]
April ___, 1995
Xxxxxxxxx & Company, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Xxxxxx, Read & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
United States Trust Company
of New York, as Trustee and
Collateral Agent (each as defined below)
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Terex Corporation
Ladies and Gentlemen:
We have acted as special [insert State] counsel to Terex Corporation,
a Delaware corporation ("Terex"), and [insert name of each subsidiary
incorporated or owning real or personal property located in State], a
("Subsidiary"), in connection with the negotiation, execution and delivery by
[Terex/Subsidiary] of the Relevant Documents (as defined below). This opinion
is being delivered pursuant to Section 9(i) of the Purchase Agreement (as
defined below). Capitalized terms used herein and not otherwise defined herein
shall have the same meanings herein as ascribed thereto in the Indenture (as
defined below).
In our examination, we have assumed the genuineness of all
signatures, including endorsements, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such copies. As to any facts
material to this opinion that we did not independently establish or verify, we
have relied upon statements and representations of Terex and the Subsidiary and
its officers and other representatives, and of public officials.
In rendering the opinions set forth herein, we have examined and
relied on originals or copies of the following:
(i) the Purchase Agreement, dated as of April , 1995
among Terex, certain of its Subsidiaries [including Subsidiary] (the
"Guarantors") and the Initial Purchasers named therein (the "Purchase
Agreement") relating to the purchase and sale of 240,000 Units consisting in
the aggregate of $240,000,000 in principal amount of Terex's % Senior
Secured Notes due 2002 (the "Notes") and ___ Common Stock Appreciation Rights
(the "Rights");
(ii) that certain Indenture (the "Indenture") dated as of
April , 1995 among Terex, the Guarantors and United States Trust Company of
New York, as trustee (in such capacity, the "Trustee") relating to the Notes;
(iii) that certain Security and Pledge Agreement (the
"Security Agreement") dated as of April __, 1995 made by [Terex/Subsidiary and
the other Guarantors] in favor of United States Trust Company, as Collateral
Agent (in such capacity, the "Collateral Agent");
(iv) that certain [Mortgage] dated as of April __, 1995
made by [Terex/Subsidiary] in favor of the Collateral Agent (the "Mortgage");
(v) [list each other security document, if any, executed
by Xxxxxxxxxx];
(vi) [signed, but unfiled, copies of financing statements
naming Terex as a debtor and the Collateral Agent as secured party, which we
understand will be filed within ten days of the transfer of the security
interests in the filing offices set forth on Schedule I hereto (such filing
offices, the "Terex Filing Offices" and such financing statements, the "Terex
Financing Statements");]
(vii) [signed, but unfiled, copies of financing statements
naming Subsidiary as debtor and the Collateral Agent as secured party, which we
understand will be filed within ten days of the transfer of the security
interests in the filing offices set forth on Schedule II hereto (such filing
offices, the "Subsidiary Filing Offices" and together with the Terex Filing
Offices, the "Filing Offices"; and such financing statements the "Subsidiary
Financing Statements"; and together with the Terex Financing Statements, the
"Financing Statements");]1
[ (viii) certified copies of the certificate of
incorporation and by-laws of Subsidiary;]
[ (ix) a certified copy of certain resolutions of the Board
of Directors of Subsidiary adopted on April ___, 1995];2 and
(x) such other documents as we have deemed necessary or
appropriate as a basis for the opinions set forth below.
The documents identified in clauses ( ) through ( ) [relevant
documents executed by Terex and/or Subsidiary] above shall hereinafter be
referred to herein as the "Relevant Documents."
Members of our firm are admitted to practice law in [state] and we
express no opinion as to the laws of any other jurisdiction.
We are of the opinion that:
[ 1. Subsidiary is a corporation duly organized, validly existing and
in good standing under the laws of [state].] [[Terex/Subsidiary] is duly
qualified to do business and is in good standing under the laws of [State]].
[ 2. Subsidiary has the corporate power and corporate authority to
execute, deliver and perform all of its obligations under each of the Relevant
Documents. The execution and delivery by Subsidiary of each of the Relevant
Documents and the consummation by Subsidiary of the transactions contemplated
thereby have been duly authorized by all requisite corporate action on the part
of Subsidiary. Each of the Relevant Documents has been duly executed and
delivered by Xxxxxxxxxx.]3
3. The Mortgage constitutes the valid and binding obligation of
[Terex/Subsidiary], enforceable against [Terex/Subsidiary] in accordance with
its terms.
4. Neither the execution, delivery or performance by the Subsidiary
of the Relevant Documents nor the consummation of the transactions contemplated
thereby shall conflict with, violate, constitute a breach of or a default (with
the passage of time or otherwise) under, or require the consent of any person
(other than consents that have already been obtained) under, or result in the
imposition of any security interest, mortgage, pledge, transfer restriction,
defect, claim, lien, limitation on voting rights, encumbrance or adverse
interest on any asset of the Subsidiary, or an acceleration of any indebtedness
pursuant to [(i) the Charter Documents of the Subsidiary, or (ii)]4 any
statute, law or ordinance, or any judgment, decree, rule, regulation or order
of any court, judicial body, regulatory body, governmental agency or
administrative agency of [state].
5. No consent, approval, license, authorization or validation of, or
filing, recording or registration with any [state] legislative, judicial,
administrative or regulatory body which has not been obtained or taken and is
not in full force and effect is required to authorize or is required in
connection with the execution, delivery or performance of any of the Relevant
Documents by [Terex/Subsidiary].
6. The provisions of the Mortgage are effective to create, in favor
of the Collateral Agent, for the benefit of the holders of the Notes (the
"Secured Creditors"), to secure the Obligations (as defined therein), a valid
Lien on the Collateral (as defined therein).
7. The Financing Statements are in appropriate form for filing in
each of the Filing Offices under the Uniform Commercial Code as in effect in
[State]. To the extent that the filing of a financing statement in [State] is
effective to perfect a security interest in the Collateral (as defined in the
[Security Agreement][Subsidiary Security Agreement]), the security interest in
favor of the Collateral Agent for the benefit of the Secured Parties (as
defined in the [Security Agreement][Subsidiary Security Agreement]) in such
Collateral will be perfected upon the filing of the Financing Statements in the
Filing Offices.
8. The Mortgage is in proper form so as to comply with the recording
requirements of the recording offices identified on Exhibit attached hereto
(collectively, the "Recording Offices"), and upon recordation of the Mortgage
in the Recording Offices, the Mortgage will create in favor of the Collateral
Agent, for the benefit of the Secured Creditors, a valid, perfected,
first-priority lien on [all real property and other collateral described in the
Mortgage] [the "Property" (as defined in the Mortgage)], securing payment [of
the obligations contemplated to be secured by the Mortgage] [of the
"Obligations" (as defined in the Mortgage)], and no further action will be
required to create, perfect or maintain such lien.
9. The Mortgage contains such rights and remedies in favor of the
Collateral Agent, for the benefit of the Secured Creditors, as are customarily
found in mortgages recorded in [state].
10. No lien [on the Property] of any other creditor of Subsidiary is
or can be equal or senior in priority to the lien contemplated by the Mortgage.
11. There is no recording tax due in connection with the recording
of the Mortgage or the Financing Statements. No intangibles tax, documentary
stamp tax or similar taxes or charges are required to be paid in connection
with the recording of or as a condition of the legality or enforceability of
the Mortgage, the Relevant Documents or the Financing Statements. There will
be no recording, filing, privilege or other tax due upon the foreclosure of the
Mortgage.
12. The foreclosure of the Mortgage will not in any manner restrict,
affect or impair (i) [Terex's/the Subsidiary's] liability with respect to the
Obligations secured thereby or (ii) to the extent any deficiency remains unpaid
after application of the proceeds of the foreclosure of the Mortgage, the
Collateral Agent's rights or remedies with respect to the foreclosure or
enforcement of any other security interests or liens securing such Obligations.
13. The law of [state] does not require a lienholder to make an
election of remedies where such lienholder holds security interests and liens
in both the real estate and the personal property of the debtor or require a
lienholder to take recourse first or solely against its collateral.
14. In any action to enforce the liens of the Mortgage or the
security interests in the Collateral in [state], the law of the State of New
York will govern the legality of the interests and the other amounts to be paid
and received with respect to the Notes. If the law of [state] were to apply,
the interest and other amounts to be paid with respect to the Notes would not
be usurious.
15. The Collateral Agent is not required to register as a foreign
entity or qualify to do business in [State] solely by reason of the
transactions contemplated by the Relevant Documents.
Very truly yours,
Schedule A
Number
Purchaser of Units
Xxxxxxxxx & Company, Inc. 162,500
Xxxxxx, Read & Co. Inc. 87,500
TOTAL 250,000
Schedule 6(d)
Subsidiaries
I. Consolidated Wholly Owned Subsidiaries of Terex
Jurisdiction of
Name of Subsidiary Organization
CMH Acquisition Corp. Delaware
Xxxxx Material Handling GmbH Germany
Xxxxx Material Handling Company Kentucky
Clarklift of Western Michigan, Inc. Michigan
CMH Acquisition International Corporation Delaware
Koehring Cranes, Inc. Delaware
Terex Cranes, Inc. Delaware
Terex Equipment Limited Scotland
Unit Rig Australia (Pty) Limited New South Wales,
Australia
Legris Industries, Inc. Delaware
(1) Terex will own 100% of the outstanding common stock. Legris will own
1,000 shares of Series A Redeemable Exchangeable Preferred Stock which may be
redeemed for cash or approximately 20% of the Common Stock of Terex Cranes,
Inc.
II. Other Consolidated Subsidiaries of Terex
Terex Jurisdiction of
Name of Subsidiary Ownership Interest Organization
P.P.M., S.A. 99.18% France
PPM Cranes, Inc. 92.40% Delaware
P.P.M., S.A. 99.18% France
Xxxxxxx S.p.A. 99.18% Italy
PPM Xxxxx GmbH 95.21% Germany
Xxxxxxx Xxxxxxx S.A. 99.18% France
Baulift Baumaschinen und
Xxxxx Handels GmbH 95.21% Germany
Xxxxx Material Handling France S.A. 99.997% France
Schedule 6(e)
Rights to Securities
Set forth below are all outstanding (i) securities convertible into or
exchangeable for any capital stock of Terex or any of the Subsidiaries, (ii)
options, warrants or other rights to purchase or subscribe to capital stock of
Terex or any of the Subsidiaries or securities convertible into or exchangeable
for any capital stock of Terex or any of the Subsidiaries, or (iii) contracts,
commitments, agreements, understandings, arrangements, calls or claims of any
kind relating to the issuance of any capital stock of Terex or any of the
Subsidiaries, any such convertible or exchangeable securities or any such
options, warrants or rights:
1. Options issuable pursuant to the Terex Corporation Incentive Stock
Option Plan (Successor to Northwest Engineering Company Incentive Stock Option
Plan) dated May 5, 1988, as amended.
2. Securities, options or other rights to acquire securities issuable
pursuant to the 1986 Incentive Plan of Terex (as defined in the Offering
Circular) and the 1994 Incentive Plan of Terex (as defined in the Offering
Circular).
3. The Series A Common Stock Purchase Warrants of Terex
4. The Series B Common Stock Purchase Warrants of Terex
5. The Series A Cumulative Redeemable Convertible Preferred Stock of
Terex
6. The Series B Cumulative Redeemable Convertible Preferred Stock of
Terex
7. Seller Note (as defined in the Offering Circular)
8. Series A Redeemable Exchangeable Preferred Stock of Cranes
9. The Agreement, entered into on March 18, 1991, by and among
Harnischfeger Corporation, Potain Tower Cranes, Inc., Century II Acquisition
Corp. (now known as PPM Cranes, Inc.), and Groupe Legris Industries S.A.
10. The Post-Merger Agreement, entered into on April 10, 1991, by and
among Harnischfeger Corporation, Potain Tower Cranes, Inc., Century II
Acquisition Corp. (now known as PPM Cranes, Inc.), and Groupe Legris Industries
S.A., as modified by the Settlement Agreement and Release, effective December
9, 1992, by and among Harnischfeger Corporation, Harnischfeger Industries,
Inc., their respective subsidiaries, affiliates, parent corporations,
successors and assigns, and PPM Cranes, Legris Industries (formerly, Groupe
Legris Industries S.A.), Potain Tower Cranes, Inc., Legris Industries, Inc. and
their respective subsidiaries, affiliates, parent corporations, successors and
assigns.
Schedule 6(f)
Registration Rights With Respect to Terex
Registration rights covering Common Stock Appreciation Rights pursuant to
SAR Registration Rights Agreement dated as of July 31, 1992.
Registration rights covering Senior Secured Notes due 1996 pursuant to
Debt Registration Rights Agreement dated as of July 31, 1992.
Registration rights covering (i) the Series A Common Stock Purchase
Warrants of Terex, (ii) the Series B Common Stock Purchase Warrants of Terex,
(iii) the Series A Cumulative Redeemable Convertible Preferred Stock of Terex
and (iv) the Series B Cumulative Redeemable Convertible Preferred Stock of
Terex.
Registration Rights granted by Terex in favor of Xxxxxxxx X. Xxxx, Xxxxx
X. Xxxxxxxx, Xxxxxx X. Xxxxxxxxx and The Airlie Group L.P.
Registration Rights granted pursuant to the Stockholders Agreement among
Terex, Legris Industries, S.A. and Potain S.A.
Schedule 9(s)
Properties Subject to Title Insurance
1. Waverly Plant
000 00xx Xxxxxx X.X.
Waverly, Iowa 50677
2. Koehring Machinery Center
0000 Xxx Xxxx Xxxx
Xxxxxxxx, Xxxx 00000
3. Unit Rig, Tulsa
0000 Xxxxx 00xx
Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
4. Unit Rig - Parts Depot
0000 Xxx. 00-00 X
Xxxxxxxx, Xxxxxxx 00000
5. Terex Distribution Center
0000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
6. Engineering and Training Center
(Grantor: CMHC)
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
7. Leestown Plant
(Grantor: CMHC)
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
8. PPM Cranes Facility
Highway 000 Xxxx
Xxxxxxxx #00
Xxxxxx, Xxxxx Xxxxxxxx 00000
1 1 Insert one or both of the preceding paragraphs, as appropriate.
2 2 Previous two paragraphs to be included if Subsidiary is incorporated in
State.
3 3 Previous two paragraphs to be included if Subsidiary is incorporated in
State.
4 4 Clause (i) to be included if Subsidiary is incorporated in State.
